Law Commons^™

W(H)Ither Glucksberg?, Ronald Turner

Duke Journal of Constitutional Law & Public Policy

This article is a tale of two significant United States Supreme Court decisions interpreting and applying the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Washington v. Glucksberg, the Court held that an asserted right to physician-assisted suicide is not a fundamental liberty interest protected by the clause because it is not a right deeply rooted in this nation's history and tradition. More recently, in Obergefell v. Hodges, the Court held that state laws prohibiting same-sex marriage violated the Due Process Clause. In so holding, the Obergefell Court departed from Glucksberg’s history-and-tradition …

Patents And State Constitutionally Protected Speech, Dan L. Burk

Duke Journal of Constitutional Law & Public Policy

Recent American patent scholarship has begun to explore the intersection of the patent system and guarantees of expressive freedom, noting that patents may impinge on the First Amendment to the Federal Constitution and chill or prohibit protected speech. But guarantees of expressive freedom are not limited to the Federal Constitution; they are also found in state constitutional provisions, some of which offer broader protection than that guaranteed in the First Amendment. In this essay I examine the relationship between federally issued patents and the guarantees of expressive freedom found in state constitutions. State constitutions vary in their wording and interpretation, …

Goodbye To Concurring Opinions, Meg Penrose

Duke Journal of Constitutional Law & Public Policy

Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors. The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions.

The modern Court writes more separate opinions than past courts. It is becoming far too common …

A Revised Revisionist Position In The Law Of Nations Debate, David M. Howard

Duke Journal of Constitutional Law & Public Policy

One of the most contentious debates in the legal field has continued for decades over the question: is customary international law incorporated into U.S. domestic law? This question has sparked controversy that has resulted in multiple positions but no definite answer—the modern position with Dean Harold Koh and Professor Carlos Vasquez to the revisionist position with Professors Curtis Bradley and Jack Goldsmith. The U.S. Supreme Court has declined to answer this question while acknowledging the importance of its impact on U.S. law. The latest case before the Supreme Court—Jesner v. Arab Bank—touched upon this debate once again, and …

Masterpiece Cakeshop And Tolerance As A Constitutional Mandate: Strategic Compromise In The Enactment Of Civil Rights Laws, Samuel A. Marcosson

Duke Journal of Constitutional Law & Public Policy

The Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission took up the question whether a state law barring discrimination on the basis of sexual orientation could be applied to a business whose owner had religious objections to participating in a same-sex wedding. The decision turned on the majority’s finding that the Commission’s ruling against Masterpiece Cakeshop was tainted by anti-religious animus, an impermissible basis for government action. The Court did not need to reach the broader question of whether a law like Colorado’s could constitutionally be applied if the agency acted without the impermissible animus. In …

Federal Prosecutorial Independence, Todd David Peterson

Duke Journal of Constitutional Law & Public Policy

Of all the controversial presidential actions during President Trump’s first three years in office, few challenged the norms of presidential behavior more than his constant barrage of attacks on his own Department of Justice. President Trump violated traditional norms governing the relationship between the White House and the Department of Justice in two distinct ways. First, on Twitter and in other public statements, he repeatedly called upon the Department to investigate political opponents. Second, the President repeatedly attacked the Department’s investigation of Russian interference with the 2016 presidential election (“the Mueller investigation”) and other investigations relating to the misconduct of …

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson

Duke Journal of Constitutional Law & Public Policy

The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns …

Marriage, Domicile And The Constitution, Mark Strasser

Duke Journal of Constitutional Law & Public Policy

In three of the major right to marry cases in which the plaintiffs challenged their domicile’s refusal to permit them to marry, the couples had married in a sister state in accord with local law. In none of these cases did the Court address the conditions under which states, as a constitutional matter, must recognize marriages validly celebrated in another state. This article argues that the position reflected in the First and Second Restatements of the Conflicts of Law captures the United States Constitution’s approach. A marriage valid in the states of celebration and domicile at the time of its …