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Full-Text Articles in Law
The Limits Of Advocacy, Amanda Frost
The Limits Of Advocacy, Amanda Frost
Duke Law Journal
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called "issue creation"-that is, raising legal claims and arguments that the parties have overlooked or ignored-on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins and Mapp v. Ohio were decided on grounds never raised …
Living Originalism, Thomas B. Colby, Peter J. Smith
Living Originalism, Thomas B. Colby, Peter J. Smith
Duke Law Journal
Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the "writtenness" of the Constitution necessitates a fixed constitutional meaning, and that courts that see …
What’S The Constitution Got To Do With It? Regulating Marriage In Pakistan, Karin Carmit Yefet
What’S The Constitution Got To Do With It? Regulating Marriage In Pakistan, Karin Carmit Yefet
Duke Journal of Gender Law & Policy
[...] the supreme law of the land seems to embody a blatant contradiction. The Pakistani Constitution extends protection to an impressive catalog of fundamental rights, placing Pakistan in line with some of the most western-minded constitutional regimes in the world.3 At the same time, in contrast to the American-style constitutional commitment to separate church and state,4 the Pakistani regime is constitutionally committed to integrate the two, in the sense that all laws must conform to the injunctions of Islam as a condition of their constitutional validity.5 So the same Constitution that protects western fundamental rights also elevates Islamic law, a …
Military Values In Law, Diane H. Mazur
Military Values In Law, Diane H. Mazur
Duke Journal of Gender Law & Policy
Congress, for example, takes inappropriate advantage of the tremendous deference given by courts to its constitutional powers to raise and support Armies, to provide and maintain a Navy, and to make Rules for the Government and Regulation of the land and naval Forces.\n In a court-martial involving a military defendant and a civilian victim of sexual assault, application of the psychotherapist-patient privilege raises no difficult issues related to professional military values. When both the victim and the defendant are members of the military, however, the victim's assertion of privilege is at least potentially inconsistent with the victim's professional obligation to …
Broad Exemptions In Animal-Cruelty Statutes Unconstitutionally Deny Equal Protection Of The Law, William A. Reppy Jr.
Broad Exemptions In Animal-Cruelty Statutes Unconstitutionally Deny Equal Protection Of The Law, William A. Reppy Jr.
Law and Contemporary Problems
This article considers the history, interpretation, and constitutionality of statutory exemptions that preclude prosecution either for misdemeanor or felony violation of North Carolina's criminal animal-cruelty statute, section 14-3601 of the General Statutes, in nine situations.
Gay Rights And American Constitutionalism: What’S A Constitution For?, J. Harvie Wilkinson Iii
Gay Rights And American Constitutionalism: What’S A Constitution For?, J. Harvie Wilkinson Iii
Duke Law Journal
No abstract provided.
Understanding The Unoriginal: Indeterminant Originalism And Independent Interpretation Of The Alaska Constitution, Michael Schwaiger
Understanding The Unoriginal: Indeterminant Originalism And Independent Interpretation Of The Alaska Constitution, Michael Schwaiger
Alaska Law Review
No abstract provided.
Play It Again, Uncle Sam, A. Wallace Tashima
Play It Again, Uncle Sam, A. Wallace Tashima
Law and Contemporary Problems
Tashima, currently a federal judge, relates his experience in a Japanese American internment camp at Poston AZ during WWII. The unjust internment was in part a failure of the federal courts to protect the constitutional rights of American citizens.
Interning The “Non-Alien” Other: The Illusory Protections Of Citizenship, Natsu Taylor Saito
Interning The “Non-Alien” Other: The Illusory Protections Of Citizenship, Natsu Taylor Saito
Law and Contemporary Problems
Saito draws parallels between the internment of Japanese Americans during WWII and the current actions being taken by the US government as it seeks out terrorists in the post-9/11 world. The action of unequal prosecution of citizens based on race has roots that extend far back in American history, and the unfair internment of citizens in the 20th century should not be considered an aberration of public policy.
The Constitution Glimpsed From Tule Lake, Patrick O. Gudridge
The Constitution Glimpsed From Tule Lake, Patrick O. Gudridge
Law and Contemporary Problems
Although Ex Parte Endo undid the wrongs that resulted from the US Supreme Court decision Korematsu v. United States, the Japanese Americans who faced internment during WWII cannot so easily put the past behind them. Gudridge examines the publication The Spoilage, which documents the political efforts of those inside the internment camp at Tule Lake, and relates them to Endo and Korematsu.
Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla
Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla
Duke Law Journal
No abstract provided.
Korematsu: A Mélange Of Military Imperatives, Eugene Gressman
Korematsu: A Mélange Of Military Imperatives, Eugene Gressman
Law and Contemporary Problems
No abstract provided.
The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins
The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins
Duke Law Journal
No abstract provided.
“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps
“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps
Duke Law Journal
No abstract provided.
Speech And Strife, Robert L. Tsai
Speech And Strife, Robert L. Tsai
Law and Contemporary Problems
Tsai examines the ways in which the US Supreme Court uses language to signal its authority. One technique of the Court is to frequently use the image of institutional conflict within its rulings.
Foreword, Christopher H. Schroeder
Foreword, Christopher H. Schroeder
Law and Contemporary Problems
In the summer of 2001, a group of lawyers, law professors, students, and judges formed the American Constitution Society. The organization’s avowed purpose is "to counter the dominant vision of American law today, a narrow conservative vision that lacks appropriate regard for the ways in which the law affects people’s lives: and to "restore the fundamental principles of respect for human dignity, protection of individual rights and liberties, genuine equality, and access to justice to their rightful- and traditionally central-place in American law."1 By spring 2002, the American Constitution Society had formed more than fifty campus chapters, plus lawyer chapters …
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Law and Contemporary Problems
Johnsen examines the roles of nonjudicial entities--especially the Congress and the president--in the development of constitutional meaning. Although the other two branches are fearful of challenging judiciary supremacy, functional departmentalism may offer a certain degree of autonomy from the Court.
The Antebellum Political Background Of The Fourteenth Amendment, Garrett Epps
The Antebellum Political Background Of The Fourteenth Amendment, Garrett Epps
Law and Contemporary Problems
Epps presents information concerning the historical context of the Fourteenth Amendment. Among other implications, the Amendment should be viewed as an effort to defend the national government from control by transient majorities or undemocratic factions in the states.
Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry
Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry
Law and Contemporary Problems
Sherry presents information concerning the labeling of court decisions as being liberal or conservative victories. Because each case can be viewed in different aspects of liberalism and conservatism, it is more appropriate to simply recognize that there are important, non-ideological values at stake on both sides of each case.
Comparative Constitutional Reasoning: The Law And Strategy Of Selecting The Right Arguments, Taavi Annus
Comparative Constitutional Reasoning: The Law And Strategy Of Selecting The Right Arguments, Taavi Annus
Duke Journal of Comparative & International Law
No abstract provided.
The Cycles Of Constitutional Theory, Barry Friedman
The Cycles Of Constitutional Theory, Barry Friedman
Law and Contemporary Problems
Friedman presents information on the cyclical nature of constitutional theory. Because constitutional theory is a reaction to the current developments of constitutional law, it is interesting to view constitutional issues through the framework of different historical circumstances.
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
Duke Law Journal
The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused frequencies, but there is good reason to believe that such government-created idle frequencies exist. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This Article addresses the question whether the scarcity rationale-or any other reasoning-supports distinguishing …
The Supply And Demand Sides Of Judicial Policy-Making (Or, Why Be So Positive About The Judicialization Of Politics?), Cornell W. Clayton
The Supply And Demand Sides Of Judicial Policy-Making (Or, Why Be So Positive About The Judicialization Of Politics?), Cornell W. Clayton
Law and Contemporary Problems
A major reason that many people are intensely interested in who sits on the Supreme Court is that legal decisions can have great influence on the effectuation or frustration of political objectives. Clayton does not view the trend toward the "judicialization" of politics as necessarily antithetical to democratic values because Court decisions are within the mainstream of contemporary political values and electoral preferences.
Comment On Ferejohn’S “Judicializing Politics, Politicizing Law”, Michael C. Munger
Comment On Ferejohn’S “Judicializing Politics, Politicizing Law”, Michael C. Munger
Law and Contemporary Problems
Munger comments on John Ferejohn's recent article in which Ferejohn examines some key issues raised by the exercise of legislative power by the judicial branch. Ferejohn claims that Americans have chosen to accept the judicialization of politics, leaving the courts the option of exercising power inappropriately. Munger argues that while the courts do have power, they forebear from exercising it for long periods of time.
Deliberative Democracy’S Attempt To Turn Politics Into Law, Christopher H. Schroeder
Deliberative Democracy’S Attempt To Turn Politics Into Law, Christopher H. Schroeder
Law and Contemporary Problems
Deliberative democracy is one of the most discussed contemporary political theories. Schroeder argues that its central claim can be understood as the claim that politics needs to become more like law. While specific recommendations to make specific decision processes more deliberative are fair, the attempt to efface the distinctively non-lawlike attributes of politics entirely cannot withstand scrutiny.
Bush V. Gore And The French Revolution: A Tentative List Of Some Early Lessons, Sanford Levinson
Bush V. Gore And The French Revolution: A Tentative List Of Some Early Lessons, Sanford Levinson
Law and Contemporary Problems
Levinson examines the Supreme Court's decision in "Bush v. Gore" as an entry-point into understanding American constitutional culture. "Law," as people ordinarily think of it, may be much less important than people might believe (or hope) with regard to controlling politics. But "law" in another way may have Americans gripped within a constitutional iron cage that makes it next to impossible to engage in a cogent discussion of what might ail contemporary American polity and, concomitantly, what might be needed by way of reforms.
The Bill Of Rights And The Emerging Democracies, Jacek Kurczewski, Barry Sullivan
The Bill Of Rights And The Emerging Democracies, Jacek Kurczewski, Barry Sullivan
Law and Contemporary Problems
Today, the influence of the US Bill of Rights can be traced through its remote offspring, including the Helsinki Agreement, the German Basic Law, the post-war French constitutions, and the European Convention on Human Rights. These documents have influenced recent developments in the emerging democracies of eastern and central Europe.
Telling Miller’S Tale: A Reply To David Yassky, Brannon P. Denning, Glenn H. Reynolds
Telling Miller’S Tale: A Reply To David Yassky, Brannon P. Denning, Glenn H. Reynolds
Law and Contemporary Problems
A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard model and has started to generate alternatives to the Standard Model. Denning and Reynolds critique that part of Yassky's theory dismissing "United States v. Miller" as providing the basis for an individual rights interpretation of the Second Amendment.
Postcommunist Charters Of Rights In Europe And The U.S. Bill Of Rights, Wojciech Sadurski
Postcommunist Charters Of Rights In Europe And The U.S. Bill Of Rights, Wojciech Sadurski
Law and Contemporary Problems
The Bill of Rights of the US Constitution served as both a model and anti-model for the constitutionalization of citizens' rights in the new democracies emerging after the fall of communism in Central and Eastern Europe. The most striking contrast between the US Bill of Rights and postcommunist constitutional charters of rights is the absence in the former, and the inclusion in the latter, of catalogues of so-called "positive," socioeconomic rights.
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
Duke Law Journal
No abstract provided.