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Full Faith And Credit In The Post-Roe Era, Celia P. Janes

Duke Journal of Constitutional Law & Public Policy Sidebar

In 2022, the Supreme Court overturned Roe v. Wade, once again leaving the question of whether abortion should be legal to individual state legislatures. This decision allowed the Texas law known as S.B. 8, alternatively known as the Texas Heartbeat Act, to go into effect. The law allows private individuals to sue anyone who has performed or has aided and abetted the performance or inducement of an abortion in Texas. California responded to this law with Assembly Bill 2091, which prevents California state courts from issuing subpoenas arising under S.B. 8 and similar laws in other states. This Note addresses …

“Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric Ruben, Joseph Blocher

Faculty Scholarship

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Faculty Scholarship

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …

Free Speech And Justified True Belief, Joseph Blocher

Faculty Scholarship

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …

Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell

Faculty Scholarship

In this Article, Powell argues that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power-whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled. Part II of the Article first addresses the question before the Court in Comstock, which was limited to a pure question of Article I law: is a specific provision of a …

Reverse Incorporation Of State Constitutional Law, Joseph Blocher

Faculty Scholarship

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to …

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins

Duke Law Journal

No abstract provided.

The Bill Of Rights And The Emerging Democracies, Jacek Kurczewski, Barry Sullivan

Law and Contemporary Problems

Today, the influence of the US Bill of Rights can be traced through its remote offspring, including the Helsinki Agreement, the German Basic Law, the post-war French constitutions, and the European Convention on Human Rights. These documents have influenced recent developments in the emerging democracies of eastern and central Europe.

The New Deal Constitution In Exile, William E. Forbath

Duke Law Journal

No abstract provided.

The Independent Counsel Statute And Questions About Its Future, Orrin G. Hatch

Law and Contemporary Problems

Despite the divergence of opinion regarding the Ethics in Government Act, it appears there is a growing public consensus that the Act is genuinely and seriously flawed. Whether these flaws can be corrected is in serious doubt.

The Independent Counsel Statute: An Idea Whose Time Has Passed, Herbert J. Miller Jr., John P. Elwood

Law and Contemporary Problems

No abstract provided.

Putting Law And Politics In The Right Places — Reforming The Independent Counsel Statute, Christopher H. Schroeder

Law and Contemporary Problems

The fundamental flaw in the independent counsel statute consists of its attempt to convert a political decision, the decision whether to refer to a case of public corruption to an investigator outside normal prosecutorial offices, into a legal one. When the Independent Counsel Reauthorization Act of 1994 expires on Jun 30, 1999, it should not be reenacted unless this flaw is eliminated.

Symbolic Statues And Real Laws: The Pathologies Of The Antiterrorism And Effective Death Penalty Act And The Prison Litigation Reform Act, Mark Tushnet, Larry Yackle

Duke Law Journal

Criminals are not popular. No politician in recent memory has lost an election for being too tough on crime. In 1996, the Republican Congress and the Democratic President collaborated on two major statutes affecting the legal protections available to criminals. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) modifies the habeas corpus statute in a number of ways, affecting the disposition of federal post-conviction challenges to all criminal convictions, not just those resulting in death sentences. The Prison Litigation Reform Act (PLRA) addresses lawsuits filed by prisoners challenging the conditions of their confinement. The PLRA covers both suits …

The Least Among Us: Unconstitutional Changes In Prisoner Litigation Under The Prison Litigation Reform Act Of 1995, Julie M. Riewe

Duke Law Journal

I don't like prisoners. Nobody pretends to like them, but every once in a while, one of these people is right. And a society is judged by how it treats the least among it, not the best. I'm not worried about how presidents of banks and chairmen of the board and of country clubs are treated, or star quarterbacks, or other prima donnas. The job of the Constitution is to make sure that everyone is treated properly. [Prisoners] fall[] into the everybody category.

Arbitrariness And The Death Penalty In An International Context, Mary K. Newcomer

Duke Law Journal

No abstract provided.

The Dimensions Of American Constitutional Equality, J. Harvie Wilkinson Iii

Law and Contemporary Problems

Liberty and equality are the hallmark characteristics of any legal order. Constitutional equality in the US is discussed. The rights of equality are not economic in nature, and they are not subject to strictly majority rule.

Rights Of The Criminally Accused, B. J. George Jr.

Law and Contemporary Problems

No abstract provided.

Forty Years Of The Constitution And Its Various Influences: Japanese, American, And European , Yasuhiro Okudaira

Law and Contemporary Problems

No abstract provided.

Thinking About Habeas Corpus, Erwin Chemerinsky

Faculty Scholarship

Hailed as the "great writ of liberty," the writ of habeas corpus protects the American citizenry from arbitrary and wrongful governmental imprisonment. The scope of the protection provided by the writ, however, has never been finally settled during it's almost 200 year existence. This is the result of failure on the part of those analyzing its scope to recognize the complexity of the issues involved and to confront the true issues that underlie its application. In this Article, Professor Chemerinsky discusses what he considers to be the four primary considerations of habeas issues; federalism, separation of powers, the purposes of …

Rape Victim Shield Laws And The Sixth Amendment, J. Alexander Tanford, Anthony J. Bocchino

Faculty Scholarship

No abstract provided.

Book Review, Ira Michael Heyman, Michael E. Tigar

Faculty Scholarship

No abstract provided.