Law Commons^™

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Bodies Of Evidence: The Criminalization Of Abortion And Surveillance Of Women In A Post-Dobbs World, Jolynn Dellinger, Stephanie Pell

Duke Journal of Constitutional Law & Public Policy

In the wake of Dobbs v. Jackson Women's Health Organization, state laws criminalizing abortion raise concerns about the investigation and prosecution of women seeking reproductive health care and about the surveillance such investigations will entail. The criminalization of abortion is not new, and the investigation of abortion crimes has always involved the surveillance of women. However, state statutes criminalizing abortion coupled with surveillance methods and technologies that did not exist pre-Roe present new and complex challenges surrounding the protection of women's privacy and liberty interests—in addition to the interests of those who may provide or help pregnant people obtain reproductive …

The End Of Balancing? Text, History & Tradition In First Amendment Speech Cases After Bruen, Clay Calvert, Mary-Rose Papandrea

Duke Journal of Constitutional Law & Public Policy

This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court's increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court's free-speech decisions. The Bruen majority, however, asserted …

The Remedies For Constitutional Flaws Have Major Flaws, Richard J. Pierce Jr.

Duke Journal of Constitutional Law & Public Policy

In this essay, Professor Pierce describes the many ways in which the conservative majority of the Supreme Court has attempted to use its unique approach to interpretation of the Constitution to restructure the government and to reallocate power among the branches of government. He then describes the problems that the Court has encountered in its efforts to choose remedies for the constitutional flaws that it detects.

Increasingly, the Court must choose between remedies that are ineffective and remedies that make it impossible for the government to function. Pierce predicts that the problems that the Court has experienced to date will …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Constitutional Hardball And Nationwide Preliminary Injunctions, Jack Thorlin

Duke Journal of Constitutional Law & Public Policy

Constitutional hardball—the breaking of norms while remaining technically within the bounds of the Constitution—has spread from the executive and legislative branches to the federal judiciary in the form of nationwide preliminary injunctions in politically sensitive cases. Preliminary injunctions evolved in the English judicial system to ensure that plaintiffs clearly in the right were not irrevocably harmed while waiting for torpid courts to rule on their case. Now, preliminary injunctions are a useful tool for delaying and disrupting the adoption of disfavored executive branch policies.

While the general problem of nationwide preliminary injunctions is well recognized, it is difficult to find …

Blaine In The Joints: The History Of Blaine Amendments And Modern Supreme Court Religious Liberty Doctrine In Education, Mccarley Elizabeth Maddock

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Protecting Natural Stewardship: Public Trusts, Wildlife Trusts, And The Effect Of Trophic Cascades, Nicholas Massey

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Foreword

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Reason And Rhetoric In Edwards V. Vannoy, Richard M. Re

Duke Journal of Constitutional Law & Public Policy

Judicial reasoning and rhetoric should be mutually reinforcing, but often they end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared "moribund," may actually have survived. Second, Justice Gorsuch’s ostensibly strict judgment-based approach arguably called for providing relief in Edwards. Third, majority coalitions have a counterintuitive incentive, rooted in rhetoric, to overrule relatively insignificant precedents. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, the legal system may benefit from the superficial and even fallacious reasoning often …

Escape Room: Implicit Takings After Cedar Point Nursery, Lee Anne Fennell

Duke Journal of Constitutional Law & Public Policy

In Cedar Point Nursery v. Hassid, the Supreme Court ruled 6-3 that a California regulation that gave union organizers limited access to agricultural worksites amounted to a per se taking. The Court went on to opine that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking, unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an implicit takings apparatus designed to selectively apply scrutiny to property-facing governmental acts in ways that broadly entrench status quo patterns of property wealth. …

Reading Taylor's Tea Leaves: The Future Of Qualified Immunity, Jennifer E. Laurin

Duke Journal of Constitutional Law & Public Policy

Many observers of qualified immunity doctrine drew a sharp breath when the Supreme Court handed down Taylor v. Riojas in late 2020. The decision, reversing a grant of qualified immunity to prison officials sued under 42 U.S.C. § 1983, reflected a marked break in outcome and tone from the preceding decade of unwavering commitment by the Court to expanding the scope of qualified immunity's protection to sued officials: it was a nearly unheard-of victory for a plaintiff, and it was delivered in an opinion that cautioned against applying qualified immunity's "clearly-established-law" prong in a manner too protective of officials, rather …

Getting It Right: Whether To Overturn Qualified Immunity, David D. Coyle

Duke Journal of Constitutional Law & Public Policy

Qualified immunity, the defense available to police officers and other government officials facing civil rights lawsuits, has increasingly come under attack. In recent opinions, Justice Clarence Thomas has noted his growing concern that the Court's current qualified immunity jurisprudence, which deals with whether a right is "clearly established", strays from Congress's intent in enacting the Civil Rights Act of 1871 (the statute giving rise to civil rights claims). Other jurists and legal scholars similarly criticize the doctrine, with many calling for the Court to revisit its qualified immunity jurisprudence and abolish or significantly alter the doctrine.

Given that the Court's …

Mind The Gap: A Comparative Approach For Fixing Volcker, Learning From Liikanen, And Using Vickers To Repair The Us Banking System, Rachel E. Sereix

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

A Modest Proposal: Leveraging Private Enforcement Mechanisms And The Bayh-Dole Act To Reduce Drug Prices In The U.S. Healthcare Industry, Brittany N. Day

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Qualified Immunity's 51 Imperfect Solutions, Aaron L. Nielsen, Christopher J. Walker

Duke Journal of Constitutional Law & Public Policy

Qualified immunity has no perfect solution. On one hand, qualified immunity can prevent individuals whose civil rights have been violated from receiving monetary compensation—obviously, a bad outcome. On the other hand, without qualified immunity, government officials who fear liability may hold back from protecting the public—another bad outcome. Qualified immunity seeks to strike a balance between those bad outcomes: Plaintiffs can recover damages only if a government official violated clearly established law. Some individuals thus will have their rights violated but receive no compensation, while other individuals may be harmed because the government does not come to their aid. Qualified …

Foreword

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James F. Blumstein

Duke Journal of Constitutional Law & Public Policy

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states' requirements that judges be elected. But …

Paving The Way For Mindreading: Re-Interpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Why The Equal Rights Amendment Would Endanger Women’S Equality: Lessons From Colorblind Constitutionalism, Kim Forde-Mazrui

Duke Journal of Constitutional Law & Public Policy

The purpose of the Equal Rights Amendment (ERA) to those who drafted it and those who worked for nearly a century to see it ratified, is women’s equality. The ERA may be on the cusp of ratification depending on congressional action and potential litigation. Its supporters continue to believe the ERA would advance women’s equality. Their belief, however, may be gravely mistaken. The ERA would likely endanger women’s equality. The reason is that the ERA would likely prohibit government from acting “on account of sex” and, therefore, from acting on account of or in response to sex inequality. Put simply, …

Social Media Defamation: A New Legal Frontier Amid The Internet Wild West, Hadley M. Dreibelbis

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

"The Good Of Each Of The Parts": A Collective Action Understanding Of The Treaty Clause, Edward C. Beach Jr.

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Foreword

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Should U.S. Tax Law Be Constitutionalized? Centennial Reflections On Eisner V. Macomber (1920), Reuven Avi-Yonah

Duke Journal of Constitutional Law & Public Policy

The United States Supreme Court last decided a federal income tax case on constitutional grounds in 1920a century ago. The case was Eisner v. Macomber , and the issue was whether Congress had the power under the Sixteenth Amendment to include stock dividends in the tax base. The Court answered “no” because “income” in the Sixteenth Amendment meant “the gain derived from capital, from labor, or from both combined.” A stock dividend was not “income” because it did not increase the wealth of the shareholder.

Macomber was never formally overruled, and it is sometimes still cited by academics and practitioners …

Does Eliminating Life Tenure For Article Iii Judges Require A Constitutional Amendment?, David R. Dow, Sanat Mehta

Duke Journal of Constitutional Law & Public Policy

Beginning in the early 2000s, a number of legal academicians from across the political spectrum proposed eliminating life tenure for some or all Article III judges and replacing it with a term of years (or a set of renewable terms). These scholars were largely in agreement such a change could be accomplished only by a formal constitutional amendment of Article III. In this Article, Dow and Mehta agree with the desirability of doing away with life tenure but argue such a change can be accomplished by ordinary legislation, without the need for formal amendment. Drawing on both originalism and formalism, …

The Conceptual Conundrum At The Core Of The Kelo Dissent, Mark Kelman

Duke Journal of Constitutional Law & Public Policy

The “strict” public use requirement, articulated by Justice Thomas in his canonical Kelo dissent and adopted by a number of states in the wake of the decision, would bar any taking unless the condemned property would be owned, post-condemnation, by a governmental entity or a common carrier and “employed” directly by the public. Though purporting to establish a bright line rule, the test is highly indeterminate. Among other problems, it is impossible to determine what public “ownership” means, particularly when private parties may be bound (contractually or in fact) to use state-seized property in particular ways; equally impossible to determine …

Art Threats And First Amendment Disruption, Andrew Jensen Kerr

Duke Journal of Constitutional Law & Public Policy

The novel problem of art threats, typified by threatening rap lyrics, has destabilized our First Amendment regime. We have traditionally relied on industry gatekeepers like music labels or museum curators to determine what counts as art. However, with the advent of the Internet, amateur artists can share their aesthetic output with a public audience, bypassing the threshold quality control work of the Art World. This has forced courts to acknowledge foundational questions about what kind of art is covered by the First Amendment. In brief, it covers “good” art.

In this paper I offer a synthetic conception of the First …