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Articles 1 - 30 of 36
Full-Text Articles in Law
Kiobel V. Royal Dutch Petroleum: Delineating The Bounds Of The Alien Tort Statute, Tara Mcgrath
Kiobel V. Royal Dutch Petroleum: Delineating The Bounds Of The Alien Tort Statute, Tara Mcgrath
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews the upcoming Supreme Court case, Kiobel v. Royal Dutch Petroleum Co., in which the Court will address questions regarding the Alien Tort Statute and its applicability to foreign conduct and foreign litigants. The case will require the Court to reexamine the bounds of a long-ago established tort doctrine in light of more modern considerations and developments in international law.
Affirmative Action On Life Support: Fisher V. University Of Texas At Austin And The End Of Not-So-Strict Scrutiny, Jonathan W. Rash
Affirmative Action On Life Support: Fisher V. University Of Texas At Austin And The End Of Not-So-Strict Scrutiny, Jonathan W. Rash
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin
Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Getting Juvenile Life Without Parole “Right” After Miller V. Alabama, Doriane L. Coleman, James E. Coleman Jr.
Getting Juvenile Life Without Parole “Right” After Miller V. Alabama, Doriane L. Coleman, James E. Coleman Jr.
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
“Abandoned… Without A Word Of Warning”: Perspectives On Maples V. Thomas, Deborah A. Demott
“Abandoned… Without A Word Of Warning”: Perspectives On Maples V. Thomas, Deborah A. Demott
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Clarity At Sentencing Deferred: How Dorsey V. United States Could Have Reformed Federal Sentencing, Jonathan Ross
Clarity At Sentencing Deferred: How Dorsey V. United States Could Have Reformed Federal Sentencing, Jonathan Ross
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Crying Mercy: Life Without Parole For Fourteen-Year-Old Offenders In Miller V. Alabama And Jackson V. Hobbs, Kathryn Mcevilly
Crying Mercy: Life Without Parole For Fourteen-Year-Old Offenders In Miller V. Alabama And Jackson V. Hobbs, Kathryn Mcevilly
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Knox V. Service Employees International Union: Balancing The First Amendment With Fairness Under Union-Shop Agreements, Donata Marcantonio
Knox V. Service Employees International Union: Balancing The First Amendment With Fairness Under Union-Shop Agreements, Donata Marcantonio
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Indecent Exposure: Fcc V. Fox And The End Of An Era, David Houska
Indecent Exposure: Fcc V. Fox And The End Of An Era, David Houska
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Discovering Concealment: Defining The Limits Of Equitable Tolling In Section 16(B) Of The Securities Exchange Act, Boris Rappoport
Discovering Concealment: Defining The Limits Of Equitable Tolling In Section 16(B) Of The Securities Exchange Act, Boris Rappoport
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
The Threat Of “Clair Motions”: Martel V. Clair And The Standard For Substitution Of Counsel In Federal Habeas Petitions, Lee Czocher
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Williams V. Illinois: Another Look At Expert Testimony And The Confrontation Clause, Libby Greismann
Williams V. Illinois: Another Look At Expert Testimony And The Confrontation Clause, Libby Greismann
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Warrantless Gps In United States V. Jones: Is 2011 The New 1984?, Edward Boehme
Warrantless Gps In United States V. Jones: Is 2011 The New 1984?, Edward Boehme
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Minneci V. Pollard And The Uphill Climb To Bivens Relief, Elliot J. Weingarten
Minneci V. Pollard And The Uphill Climb To Bivens Relief, Elliot J. Weingarten
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Freedom Of Expression And Its Competitors, George C. Christie
Freedom Of Expression And Its Competitors, George C. Christie
Faculty Scholarship
The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article …
Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller
Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller
Faculty Scholarship
Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to enforce the Fourteenth Amendment, few scholars have offered sustained treatment of custom as a way to understand the meaning and scope of the Thirteenth Amendment. This gap exists despite the fact that Congress specifically identified custom as a subject of regulation when it passed the Civil Rights Act of 1866 and despite the fact that the Thirteenth Amendment operates directly on the behavior of …
The Right Not To Keep Or Bear Arms, Joseph Blocher
The Right Not To Keep Or Bear Arms, Joseph Blocher
Faculty Scholarship
Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak. This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding them, and what practical implications, if any, the latter right would have. The Article concludes - albeit with some important qualifications - that a right not to keep or bear arms is …
“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf
“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf
Faculty Scholarship
In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA's exaction for being uninsured qualifies as a …
Not The Power To Destroy: An Effects Theory Of The Tax Power, Neil S. Siegel, Robert D. Cooter
Not The Power To Destroy: An Effects Theory Of The Tax Power, Neil S. Siegel, Robert D. Cooter
Faculty Scholarship
The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient …
States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman
States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman
Faculty Scholarship
This article explores the arguments used by southern secessionists to explain why they left the Union. The article demonstrates that support for "states' rights" was not the main reason for secession, and that on the contrary, most of the slave states left the Union because the free states were exercising their states' rights in opposing slavery. The main reason for secession, as this essay shows, was the desire to protect slavery and to create a new nation, self-consciously based on slavery and white supremacy. This article began as part of an AALS legal history section program in 2010 and is …
Incriminating Thoughts, Nita A. Farahany
Incriminating Thoughts, Nita A. Farahany
Faculty Scholarship
The neuroscience revolution poses profound challenges to current selfincrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self- Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to …
Searching Secrets, Nita A. Farahany
Searching Secrets, Nita A. Farahany
Faculty Scholarship
A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated …
Section 2 Is Dead: Long Live Section 2, Guy-Uriel Charles
Section 2 Is Dead: Long Live Section 2, Guy-Uriel Charles
Faculty Scholarship
No abstract provided.
Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller
Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
Rights To And Not To, Joseph Blocher
Rights To And Not To, Joseph Blocher
Faculty Scholarship
When and why should a “right to” include a “right not to”? If a person has a right to engage in an activity or to receive a particular form of procedural protection, under what circumstances should he also have a right not to engage in that activity or to refuse that process? The basic project of this Article is to show why these questions are important in American constitutional law, to explore how doctrine and scholarship have implicitly and sometimes awkwardly dealt with them, and to suggest normative frameworks with which they can be answered.
Interpretive Contestation And Legal Correctness, Matthew D. Adler
Interpretive Contestation And Legal Correctness, Matthew D. Adler
Faculty Scholarship
No abstract provided.
Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher
Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher
Faculty Scholarship
Professor Blocher responds to Gregory Magarian’s article on the implications of the First Amendment for the Second.
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Historical Gloss And The Separation Of Powers, Curtis A. Bradley, Trevor W. Morrison
Faculty Scholarship
Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that …
The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel
The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel
Faculty Scholarship
In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …
Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young
Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young
Faculty Scholarship
State sovereign immunity is a sort of constitutional comet, streaking across the sky once a century to the amazement and consternation of legal commentators. The comet’s appearance has usually coincided with major state debt crises: The Revolutionary War debts brought us Chisholm v. Georgia and the Eleventh Amendment, and the Reconstruction debts brought us Hans v. Louisiana and the Amendment’s extension to federal question cases. This essay argues that much of our law of state sovereign immunity, including its odd fictions and otherwise-incongruous exceptions, can be understood as an effort to maintain immunity’s core purpose — protecting the states from …