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Full-Text Articles in Law
"The Good Of Each Of The Parts": A Collective Action Understanding Of The Treaty Clause, Edward C. Beach Jr.
"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.
Art Threats And First Amendment Disruption, Andrew Jensen Kerr
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 …
Why The Equal Rights Amendment Would Endanger Women’S Equality: Lessons From Colorblind Constitutionalism, Kim Forde-Mazrui
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, …
Should U.S. Tax Law Be Constitutionalized? Centennial Reflections On Eisner V. Macomber (1920), Reuven Avi-Yonah
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 1920a 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
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
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 …
A Comparative Study Of The Political Question Doctrine In The Context Of Political System Failures: The United States And The United Kingdom, Hayley N. Lawrence
A Comparative Study Of The Political Question Doctrine In The Context Of Political System Failures: The United States And The United Kingdom, Hayley N. Lawrence
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Social Media Defamation: A New Legal Frontier Amid The Internet Wild West, Hadley M. Dreibelbis
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.