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Articles 1 - 30 of 54
Full-Text Articles in Law
Gamble V. United States: A Commentary, Kayla Mullen
Gamble V. United States: A Commentary, Kayla Mullen
Duke Journal of Constitutional Law & Public Policy Sidebar
Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single act, may …
Litigating War: The Justiciability Of Executive War Power, Chris Smith
Litigating War: The Justiciability Of Executive War Power, Chris Smith
Duke Journal of Constitutional Law & Public Policy Sidebar
Courts frequently dismiss claims against the Executive’s use of the war power as being non-justiciable political questions. This lack of a judicial check has created a situation in which meaningful checks and balances on the war power are found only in the Executive Branch itself. But the Constitution places the bulk of war powers in the hands of Congress. Executive usurpation of Congress’s constitutional prerogative to initiate hostilities has significantly weakened the separation of powers. In the aftermath of the Vietnam War, Congress sought to reassert its constitutional authority over war-making decisions by passing the War Powers Resolution. The Resolution …
The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor
The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor
Duke Journal of Constitutional Law & Public Policy Sidebar
In Herrera v. Wyoming, the Supreme Court is considering how to reconcile the Crow Tribe’s hunting right with Wyoming’s sovereignty. This endeavor requires examining nineteenth-century treaties and precedents to decipher the intents of the Crow Tribe and the United States government. If the Court’s decision includes a clear articulation of whether Native American treaty rights may be truncated by mere implication, tribes nationwide may be at risk of losing treaty rights they have enjoyed for centuries. In making its decision, the Supreme Court will also have to weigh the advantages and disadvantages of overturning precedent and of undermining its …
Apple V. Pepper: Applying The Indirect Purchaser Rule To Online Platforms, Jason Wasserman
Apple V. Pepper: Applying The Indirect Purchaser Rule To Online Platforms, Jason Wasserman
Duke Journal of Constitutional Law & Public Policy Sidebar
Long-established antitrust precedent bars customers who buy a firm’s product through intermediaries from suing that firm for antitrust damages. In Apple Inc. v. Pepper, this “indirect purchaser rule” is brought into the smartphone age in a price-fixing dispute between technology giant Apple and iPhone users. This case will determine whether iPhone users buy smartphone applications directly from Apple through the App Store, or if Apple is merely an intermediary seller-agent of app developers. The indirect purchase rule is generally considered settled precedent. How the rule should apply to online platforms, however, differs between circuit courts, which have split on …
A Test Of Sovereignty: Franchise Tax Board Of The State Of California V. Gilbert P. Hyatt, Timothy Dill
A Test Of Sovereignty: Franchise Tax Board Of The State Of California V. Gilbert P. Hyatt, Timothy Dill
Duke Journal of Constitutional Law & Public Policy Sidebar
In Franchise Tax Board of California v. Hyatt, the Supreme Court considers whether to overrule Nevada v. Hall, a 1979 Supreme Court decision. Hall permitted a State to be haled into the court of another State without its consent. In 2016, an evenly divided Supreme Court affirmed Hall 4-4 when faced with the same question, and following a remand to the Nevada Supreme Court, the Court has granted certiorari on this question once again. This Commentary contends that Hall was wrongly decided and should be overruled. The Constitution’s ratification did not alter the status of common-law State sovereign …
Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani
Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani
Duke Journal of Constitutional Law & Public Policy Sidebar
Leading a group in prayer in a public setting blurs the line between public and private. Such blurring implicates a constitutional tension between the Establishment Clause and the Free Exercise Clause. This tension is magnified when the constitutionality of prayer is questioned in the context of democratic participation. Current Supreme Court precedent holds legislative prayer to be constitutional, but the relevant cases, Marsh v. Chambers and Town of Greece, NY v. Galloway, do not address the specific constitutionality of legislator-led prayer. There is currently a circuit split on the subject: in Bormuth v. County of Jackson, the United …
Stepping Into The Breach: State Constitutions As A Vehicle For Advancing Rights-Based Climate Litigation, Benjamin T. Sharp
Stepping Into The Breach: State Constitutions As A Vehicle For Advancing Rights-Based Climate Litigation, Benjamin T. Sharp
Duke Journal of Constitutional Law & Public Policy Sidebar
The perceived failures of the political branches to mitigate climate change have led climate change activists to seek alternative means to achieve reductions in greenhouse gas emissions; many are turning to litigation. The claims in these cases rely on a variety of legal bases, but this Note will focus on those cases claiming that governments’ failures to prevent climate change amount to violations of the plaintiffs’ constitutional rights under the Due Process Clause of the Fifth Amendment. Rights-based climate change litigation is likely to increase in the future. Among the most prominent of the surviving rights-based cases is Juliana v. …
Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez
Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez
Duke Journal of Constitutional Law & Public Policy Sidebar
Once again, the Supreme Court of the United States has an opportunity to determine the extent to which death-row inmates can bring as-applied challenges to the states’ method of execution and prevent possible botched executions. In Bucklew v. Precythe, the Court will confront the assumptions that the execution team is equipped to handle any execution and that the procedure will go as planned. Additionally, the Court will determine whether the standard articulated in Glossip v. Gross, which requires inmates asserting facial challenges to the states’ method of execution to plead a readily available alternative method of execution, further …
Swords Into Plowshares: Nuclear Power And The Atomic Energy Act’S Preemptive Scope In Virginia Uranium, Inc. V. Warren, Francis X. Liesman
Swords Into Plowshares: Nuclear Power And The Atomic Energy Act’S Preemptive Scope In Virginia Uranium, Inc. V. Warren, Francis X. Liesman
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary highlights the considerations the Supreme Court should attend to in its decision in Virginia Uranium, Inc. v. Warren, both in construing § 2021(k) and in reviewing the Fourth Circuit’s reading of precedent from other circuits and from the Court’s prior opinions. Specifically, the Court must clarify how to interpret § 2021(k)’s activities component in concert with its “for purposes” language and determine the importance of the particular underlying activity the state seeks to regulate in a preemption analysis under the Atomic Energy Act. Clarification is necessary to ensure that courts properly effectuate Congress’s intent in regulating nuclear …
Timbs V. Indiana: The Constitutionality Of Civil Forfeiture When Used By States, Kris Fernandez
Timbs V. Indiana: The Constitutionality Of Civil Forfeiture When Used By States, Kris Fernandez
Duke Journal of Constitutional Law & Public Policy Sidebar
In Timbs v. Indiana, Petitioner Tyson Timbs asks the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment against the states, providing extra protection for individuals against fines and forfeiture that are “grossly disproportionate” to the harm caused. The decision to incorporate the Excessive Fines Clause and the guidelines for applying that incorporation would have a substantial effect on governments, which often rely on the revenue gained from forfeiture. This commentary argues that the Supreme Court of the United States should incorporate the Excessive Fines Clause based on historical support of an individual’s right to be …
Racing On Two Different Tracks: Using Substantive Due Process To Challenge Tracking In Schools, Katarina Wong
Racing On Two Different Tracks: Using Substantive Due Process To Challenge Tracking In Schools, Katarina Wong
Duke Journal of Constitutional Law & Public Policy Sidebar
Tracking is a widespread educational practice where secondary schools divide students into different classes or “tracks” based on their previous achievements and perceived abilities. Tracking produces different levels of classes, from low ability to high ability, based on the theory that students learn better when grouped with others at their own level. However, tracking often segregates students of color and low socioeconomic status into low-tracked classes and these students do not receive the same educational opportunities as white and/or wealthier students. Students and parents have historically challenged tracking structures in their schools using an Equal Protection Clause framework. However, this …
Compelled Speech, Expressive Conduct, And Wedding Cakes: A Commentary On Masterpiece Cakeshop V. Colorado Civil Rights Commission, Andrew Jensen
Compelled Speech, Expressive Conduct, And Wedding Cakes: A Commentary On Masterpiece Cakeshop V. Colorado Civil Rights Commission, Andrew Jensen
Duke Journal of Constitutional Law & Public Policy Sidebar
Masterpiece Cakeshop v. Colorado Civil Rights Commission is the most important same-sex rights case since Obergefell v. Hodges and will determine if businesses and individuals have a First Amendment right to refuse serving gay weddings against their conscience. In this case, Jack Phillips, owner of Masterpiece Cakeshop, refused to create a custom cake for Charlie Craig and David Mullins to celebrate their wedding because it was against his Christian beliefs. The Supreme Court will decide whether the First Amendment gave Phillips this right of refusal or whether Colorado’s anti-discrimination laws will compel him to serve same-sex weddings. This commentary argues …
Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit
Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit
Duke Journal of Constitutional Law & Public Policy Sidebar
NCAA v. Christie will determine whether a federal statute that prevents a state legislature from repealing a previously enacted state law violates the anti-commandeering doctrine. In 2014, New Jersey passed a state law repealing state prohibitions against sports wagering in Atlantic City. Five sports leagues sued New Jersey in federal court. The leagues asserted that the new state law violated the Professional and Amateur Sports Protection Act (“PASPA”), a federal law. New Jersey claimed PASPA violated the anti-commandeering doctrine and was accordingly unconstitutional. The Third Circuit Court of Appeals held that PASPA does not violate the anti-commandeering doctrine because it …
Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith
Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith
Duke Journal of Constitutional Law & Public Policy Sidebar
In Husted v. A. Philip Randolph Institute, the Supreme Court will decide whether the Ohio’s Supplemental Process for maintaining its voter rolls violates the requirements of the National Voter Registration Act (“NVRA”) and the Help America Vote Act (“HAVA”). The Court’s opinion will shape the landscape of voting rights, as many states are struggling to meet the dual mandates of election sanctity and increased voter access. This commentary argues that the Supreme Court can give states a guideline for what is an acceptable process that complies with the conflicting federal policies in the NVRA and HAVA. The Court should …
Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher
Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher
Duke Journal of Constitutional Law & Public Policy Sidebar
Mr. Patchak was a concerned citizen with standing to bring a suit against the federal government. A previous Supreme Court decision, Carcieri v. Salazar, made it clear that Mr. Patchak would win his case. Congress, however, did not want him to do so. Congress passed, and President Obama signed, the Gun Lake Act, which effectively ordered Mr. Patchak’s suit to be dismissed. Mr. Patchak’s suit was subsequently dismissed, and he appealed on the grounds that the Gun Lake Act violated separation of powers principles.
Carpenter V. United States: How Many Cell Phone Location Points Constitute A Search Under The Fourth Amendment?, Douglas Harris
Carpenter V. United States: How Many Cell Phone Location Points Constitute A Search Under The Fourth Amendment?, Douglas Harris
Duke Journal of Constitutional Law & Public Policy Sidebar
In Carpenter v. United States, the Supreme Court will decide whether the government’s acquisition of a suspect’s cell site location information (“CSLI”) during an ongoing criminal investigation is a “search” under the Fourth Amendment, and thus requires a showing of probable cause to obtain a warrant. This opinion will have future consequences for Americans and their privacy interests as cell sites continue to be built and CSLI records increasingly contain more private information about cell phone users. This commentary argues that that the necessity of owning and using cell phones renders past tests obsolete. With wavering, subjective expectations of …
Preserving The ‘Jewel Of Their Souls’: How North Carolina’S Common Law Could Save Cyber-Bullying Statutes, Nick Mcguire
Preserving The ‘Jewel Of Their Souls’: How North Carolina’S Common Law Could Save Cyber-Bullying Statutes, Nick Mcguire
Duke Journal of Constitutional Law & Public Policy Sidebar
In State v. Bishop, the North Carolina Supreme Court struck down the state’s cyber-bullying statute on the grounds that it violated the First Amendment right to freedom of speech. Cyber-bullying, bullying that occurs through electronic technology, has become more prevalent in recent years as much of adolescent life shifts to social media and digital communications. Increasing evidence of cyber-bullying’s negative effects on children has prompted numerous state legislatures to take action. Many states have enacted generic policies for school personnel to take reasonable action to combat cyber-bullying during school hours. This note, however, argues for an alternative approach to …
Chance To Change: Jennings V. Rodriguez As A Chance To Bring Due Process To A Broken Detention System, Joe Bianco
Chance To Change: Jennings V. Rodriguez As A Chance To Bring Due Process To A Broken Detention System, Joe Bianco
Duke Journal of Constitutional Law & Public Policy Sidebar
Jennings v. Rodriguez will determine whether specific classes of detained noncitizens will be entitled to bond hearings before Immigration Judges moving forward. The challenge comes from the Ninth Circuit, which, with the Second Circuit, mandates bond hearings for some detainees automatically after six months. Those Circuits found that after that point, the detention was arbitrary without a showing by the Government of why the noncitizen needed continued detention. The Government seeks to retain the current system, where the noncitizen’s detention release is entirely at the Government’s discretion. This commentary sets out the case and argues that the better route is …
National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey
National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey
Duke Journal of Constitutional Law & Public Policy Sidebar
National Labor Relations Board v. Murphy Oil USA pits two co-equal federal statutes head-to-head. The Federal Arbitration Act mandates that all arbitration clauses be enforced. The National Labor Relations Act grants employees the right to act collectively to bring claims against employers. The Supreme Court must decide whether arbitration clauses in employment contracts, which require employees to arbitrate work-related disputes on an individual basis, contravene the interests of the NLRA. This commentary argues that the Supreme Court should recognize how these arbitration clauses undermine and subvert the protections of the NLRA by disallowing employees to act collectively. By invoking the …
Sessions V. Dimaya: Vagueness Doctrine & Deportation Statutes, Matthew Gibbons
Sessions V. Dimaya: Vagueness Doctrine & Deportation Statutes, Matthew Gibbons
Duke Journal of Constitutional Law & Public Policy Sidebar
Sessions v. Dimaya seeks to determine whether the residual clause of a criminal provision, incorporated by reference into a civil immigration law, is void for vagueness. Although there is an instance of the Supreme Court applying the criminal vagueness standard to an immigration statute resulting in deportation, the United States argues that immigration law is not subject to that vagueness standard because it is civil and not criminal. This commentary argues that Sessions v. Dimaya presents the Supreme Court with an opportunity to conform with its precedents, further the principles underlying vagueness doctrine, and appear to apply judicial rules consistently. …
Mcdonnell V. United States: Defining “Official Action” In Public Corruption Law, Christopher Murphy
Mcdonnell V. United States: Defining “Official Action” In Public Corruption Law, Christopher Murphy
Duke Journal of Constitutional Law & Public Policy Sidebar
McDonnell v. United States involved the former Governor of Virginia leveraging the power of his position to help a wealthy constituent gain access to top state decision makers in exchange for valuable gifts and loans. The Government argued that conduct like setting up phone calls and meetings, as well as hosting receptions on behalf of the constituent was sufficient to constitute an “official act” under public corruption laws. Governor McDonnell argued for a narrower interpretation of “official act,” claiming that his conduct was akin to run of the mill things public officials do every day to benefit their constituents. The …
What Is The Relevant Parcel? Clarifying The "Parcel As A Whole" Standard In Murr V. Wisconsin, Gavin S. Frisch
What Is The Relevant Parcel? Clarifying The "Parcel As A Whole" Standard In Murr V. Wisconsin, Gavin S. Frisch
Duke Journal of Constitutional Law & Public Policy Sidebar
Murr v. Wisconsin seeks to determine whether commonly-owned, adjacent parcels of land are considered as 1 or 2 parcels for purposes of analyzing a regulatory takings claim. Nearly 40 years ago, the Court in Penn Central rejected a property owner's takings claim which segmenting the entire parcel into discrete property rights because a compensatory taking must result from governmental action which interferes with the "parcel as a whole." In Murr, property owners argue that a local zoning ordinance effected a taking of one of their two adjoining parcels because the ordinance prohibited the owners from developing their lot. I …
An Alcohol Mindset In A Drug-Crazed World: A Review Of Birchfield V. North Dakota, Devon Beeny
An Alcohol Mindset In A Drug-Crazed World: A Review Of Birchfield V. North Dakota, Devon Beeny
Duke Journal of Constitutional Law & Public Policy Sidebar
Birchfield v. North Dakota involved the ability of legislatures to criminalize a driver’s refusal to submit to a chemical test after a law enforcement officer arrested the individual for driving under the influence of alcohol or drugs. The driver’s argued this criminalized their constitutional right to refuse a warrantless search, while the governments’ argued they needed this power in order to effectively address drunk driving in their jurisdictions. The Court decided that refusing a breath test could be criminalized because requiring the test did not violate the driver’s constitutional rights, however the Court also ruled that because of the invasive …
Ditching Your Duty: When Must Private Entities Comply With Federal Antidiscrimination Law?, Tara Knapp
Ditching Your Duty: When Must Private Entities Comply With Federal Antidiscrimination Law?, Tara Knapp
Duke Journal of Constitutional Law & Public Policy Sidebar
This Commentary considers how the Fifth Circuit characterizes “services, programs, and activities” of public agencies in Ivy v. Williams, in the context of determining whether a private entity is subject to federal antidiscrimination law. “Services, programs, and activities” of public agencies must comply with Title II of the Americans with Disabilities Act, whether directly distributed by a public or a private entity. This Commentary argues private driving schools in Texas that distribute a driving course necessary to obtaining a drivers’ license are subject to Title II because the providing the course functionally constitutes a program of the Texas Education …
Birchfield V. North Dakota: Warrantless Breath Tests And The Fourth Amendment, Sara Jane Schlafstein
Birchfield V. North Dakota: Warrantless Breath Tests And The Fourth Amendment, Sara Jane Schlafstein
Duke Journal of Constitutional Law & Public Policy Sidebar
In Birchfield v. North Dakota, the Supreme Court explored warrantless breath tests during DUI stops and their validity under the Fourth Amendment. To determine their constitutionality, the Court adopted a balancing test, weighing the government’s interest in preventing instances of drunk driving with the intrusion on an individual’s privacy. The Court ultimately concluded that warrantless breath tests are constitutional when conducted incident to a lawful DUI arrest. This commentary explores the Court’s reasoning and holding and will argue that the Court was correct in deciding that a warrant is not necessary for conducting a breath test incident to a …
Drawing Lines: Racial Gerrymandering In Bethune-Hill V. Virginia Board Of Elections, Scott Reed
Drawing Lines: Racial Gerrymandering In Bethune-Hill V. Virginia Board Of Elections, Scott Reed
Duke Journal of Constitutional Law & Public Policy Sidebar
In Bethune-Hill v. Virginia Board of Elections, the Supreme Court had to decide whether twelve Virginia challenged legislative districts, in which a one-size-fits-all 55% black voting age population floor was imposed, withstood constitutional scrutiny. The Court, though stating that the lower court misapplied precedent, declined to hold that race predominated in the formation of the districts and that strict scrutiny would be triggered, instead remanding to the lower court for reexamination. This commentary argues that the Court missed an opportunity to hold that a 55% BVAP floor prioritized above all else is per se racial predomination, and such a …
May The Best Canon Win: Lockhart V. United States And The Battle Of Statutory Interpretation, Hassan Shaikh
May The Best Canon Win: Lockhart V. United States And The Battle Of Statutory Interpretation, Hassan Shaikh
Duke Journal of Constitutional Law & Public Policy Sidebar
In Lockhart v. United States, the Supreme Court resolved a long-standing circuit split regarding 18 U.S.C. § 2252(b)(2), which triggered a mandatory minimum sentence for recidivists who had previously been convicted under federal or state crimes relating to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” In expected fashion, the Court relied on the statute’s plain meaning to decide whether Lockhart’s previous crime had triggered the mandatory minimum. However, even with identical approaches to the text, the majority and dissent reached contrary conclusions. This commentary explores how a single approach could result in …
Commodity Supply And Extraterritorial Patent Infringement In Life Technologies V. Promega, G. Edward Powell
Commodity Supply And Extraterritorial Patent Infringement In Life Technologies V. Promega, G. Edward Powell
Duke Journal of Constitutional Law & Public Policy Sidebar
American patent law grants inventors the exclusive right, within U.S. territory, to make, sell, use, and import their patented inventions. In response to attempts to circumvent the right by making the components of an invention within the U.S. and exporting them for assembly abroad, Congress passed 35 U.S.C. § 271(f), prohibiting “suppl[ying] . . . from the United States all or a substantial portion of the components of a patented invention . . . to actively induce the combination of such components outside of the United States . . . .” Petitioner Life Technologies supplied one commodity component of a …
Without More, There Is No More: Standing And Racial Gerrymandering In Wittman V. Personhuballah, Jessica Edmundson
Without More, There Is No More: Standing And Racial Gerrymandering In Wittman V. Personhuballah, Jessica Edmundson
Duke Journal of Constitutional Law & Public Policy Sidebar
In drawing election maps, racial gerrymandering separates minority groups, packing them into specific districts to weaken the power of their votes. In Wittman v. Personhuballah, the Supreme Court held that a group of Virginia congressmen that neither lived in, nor represented a district did not have standing to defend gerrymandering in that district. Although the Court had the opportunity to address the substantive issues in the case, it did not, leaving a substantial gap in racial gerrymandering jurisprudence. This commentary explores the consequences of this gap and argues that the Court should not find a legally cognizable right in …
Mccrory V. Harris: Constitutional Prohibitions On Racial Classifications And The Requirements Of The Voting Rights Act In Redistricting, Alex Dietz
Duke Journal of Constitutional Law & Public Policy Sidebar
In McCrory v. Harris, the Supreme Court is faced with yet another redistricting case: Are the first and twelfth Congressional Districts in North Carolina the result of impermissible racial gerrymandering? The parties' dispute centers around two questions: In what circumstances is race the predominant factor in a state legislature's redistricting plan? And in what circumstances is the use of race as a predominant factor in redistricting plans an impermissible racial gerrymander? This Commentary will provide a summary and analysis of the arguments presented for the Court's review, and argue that both North Carolina Congressional Districts should be struck down …