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Full-Text Articles in Law

Religious Liberty In A Pandemic, Caroline Mala Corbin Sep 2020

Religious Liberty In A Pandemic, Caroline Mala Corbin

Duke Law Journal Online

The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.


The Wrong Choice To Address School Choice: Espinoza V. Montana Department Of Revenue, Brooke Reczka Apr 2020

The Wrong Choice To Address School Choice: Espinoza V. Montana Department Of Revenue, Brooke Reczka

Duke Journal of Constitutional Law & Public Policy Sidebar

For many school-choice advocates, Espinoza v. Montana Department of Revenue is the chance to extend the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer in 2017. In Trinity Lutheran, the Supreme Court held that a state’s exclusion of a church from a public benefit program to resurface playgrounds discriminated against religion in violation of the Free Exercise Clause. Many school-choice proponents hope to extend the Trinity Lutheran holding from playgrounds materials to school funding and thus strike down religion-based exclusions in school voucher programs. However, Espinoza is the wrong vehicle to do so ...


Has Revenge Become A Justification To Legitimize The Death Penalty?, Jordan Ryan Apr 2020

Has Revenge Become A Justification To Legitimize The Death Penalty?, Jordan Ryan

Duke Journal of Constitutional Law & Public Policy Sidebar

Revenge has played a role in criminal justice systems for thousands of years. From the Code of Hammurabi, to the Bible, to modern Supreme Court jurisprudence, revenge, or “getting even,” has been a consideration in how wrongdoers are punished, especially with respect to the imposition of the death penalty. Historically, revenge has not been viewed as a legitimate justification for punishment under American legal principles. However, in the past year, both the United States Supreme Court and the Department of Justice have signaled that revenge may well have a legitimate role in justifying the death penalty.

This Note will explore ...


Stand In The Place Where Data Live: Data Breaches As Article Iii Injuries, Jason Wasserman Apr 2020

Stand In The Place Where Data Live: Data Breaches As Article Iii Injuries, Jason Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

Every day, another hacker gains unauthorized access to information, be it credit card data from grocery stores or fingerprint records from federal databases. Bad actors who orchestrate these data breaches, if they can be found, face clear criminal liability. Still, a hacker’s conviction may not be satisfying to victims whose data was accessed, and so victims may seek proper redress through lawsuits against compromised organizations. In those lawsuits, plaintiff-victims allege promising theories, including that the compromised organization negligently caused the data breach or broke an implied contract to protect customers’ personal information.

However, many federal courts see a data ...


Pretrial And Error: The Use Of Statements Inadmissible At Trial In Preliminary Proceedings, Erin Hughes Apr 2020

Pretrial And Error: The Use Of Statements Inadmissible At Trial In Preliminary Proceedings, Erin Hughes

Duke Journal of Constitutional Law & Public Policy Sidebar

This Note argues that a “criminal case,” as provided by the Fifth Amendment, begins with the initiation of adversarial judicial criminal proceedings, whether that commencement occurs through a formal charge, a preliminary hearing, indictment, information, or arraignment. A broad understanding of the Fifth Amendment’s scope aligns with the Second, Seventh, Ninth and Tenth Circuits’ analysis. In particular, this Note endorses the in-depth analysis provided by the Tenth Circuit in its determination that a “criminal case” under the Fifth Amendment includes preliminary proceedings. This Note further offers an analysis of past Supreme Court precedent as well as policy rationales that ...


Campus Sexual Assault And Due Process, Ilana Frier Apr 2020

Campus Sexual Assault And Due Process, Ilana Frier

Duke Journal of Constitutional Law & Public Policy Sidebar

College women experience rape and sexual assault at alarmingly high rates. One highly publicized statistic, famously asserted by President Obama, states that one in five women experience sexual assault while attending college. In 2011, the U.S. Department of Education radically expanded its involvement in campus sexual misconduct adjudications, encouraging vigorous enforcement. Sustained regulatory and public pressure effectuated some positive change for victims. However, a proliferation of litigation also followed. Students found responsible of campus sexual assault, most of whom were males, increasingly began suing their schools alleging due process violations in their adjudications. In 2018, the Trump administration's ...


Criminalization Of Poverty: Much More To Do, Peter B. Edelman Apr 2020

Criminalization Of Poverty: Much More To Do, Peter B. Edelman

Duke Law Journal Online

No abstract provided.


Kleptocracy Buyouts?: A Response To Professors Blocher And Gulati, Matthias Goldmann Apr 2020

Kleptocracy Buyouts?: A Response To Professors Blocher And Gulati, Matthias Goldmann

Duke Law Journal Online

No abstract provided.


Court Culture And Criminal Law Reform, Mitali Nagrecha, Sharon Brett, Colin Doyle Apr 2020

Court Culture And Criminal Law Reform, Mitali Nagrecha, Sharon Brett, Colin Doyle

Duke Law Journal Online

No abstract provided.


Dhs V. Regents Of The University Of California: Administrative Law Concerns In Repealing Daca, Charles Fendrych Mar 2020

Dhs V. Regents Of The University Of California: Administrative Law Concerns In Repealing Daca, Charles Fendrych

Duke Journal of Constitutional Law & Public Policy Sidebar

On its surface, deferred action is simple: it is a decision by Executive Branch officials to postpone deportation proceedings against an individual or group that is otherwise eligible to be removed from the United States.Deferred action is an exercise of the Executive’s inherent authority to manage its policies, but is not expressly grounded in statute Despite this lack of statutory authority, Congress and the Supreme Court have historically recognized deferred action policies. Indeed, records of such Executive discretion date back to the early twentieth century.The Executive, grounding its justification in humanitarian concerns, has continued to institute categorical ...


Questioning The Definition Of "Sex" In Title Vii: Bostock V. Clayton County, Ga., Katherine Carter Feb 2020

Questioning The Definition Of "Sex" In Title Vii: Bostock V. Clayton County, Ga., Katherine Carter

Duke Journal of Constitutional Law & Public Policy Sidebar

In October of 2019, the Supreme Court heard the arguments of two cases presenting the same inquiry: whether Title VII’s prohibition on sex discrimination encompasses discrimination on the basis of sexual orientation. Currently, twenty-one states as well as the District of Columbia expressly prohibit discrimination based on sexual orientation by statute or regulation. Other states offer protection in the form of agency interpretation or court ruling. However, for the remaining states with no established protections, Title VII stands as the only potential safeguard against sexual orientation discrimination.

The following Commentary considers the case of Gerald Bostock, a gay man ...


Contracting Free From Racial Animus: Comcast Corporation V. National Association Of African American-Owned Media And Entertainment Studios, Catherine Tarantino Feb 2020

Contracting Free From Racial Animus: Comcast Corporation V. National Association Of African American-Owned Media And Entertainment Studios, Catherine Tarantino

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States has come a long way in promoting racial equality since the 1866 and 1964 Civil Rights Acts, but racial animus still plays an impermissible role in many contracting and employment decisions. Comcast Corporation v. National Association of African American-Owned Media and Entertainment Studios offers the Supreme Court the opportunity to decide which causal standard applies to claims alleging racial bias in contracting under 42 U.S.C. § 1981. Specifically, the Court will decide whether § 1981 requires a plaintiff to demonstrate that racial animus was the but-for cause or simply a motivating-factor in the defendant’s refusal to ...


Barricading The Immigration Courts, Jennifer Lee Koh Feb 2020

Barricading The Immigration Courts, Jennifer Lee Koh

Duke Law Journal Online

No abstract provided.


The Justices’ Forgotten Debuts, Andrew R. Gould Feb 2020

The Justices’ Forgotten Debuts, Andrew R. Gould

Duke Law Journal Online

No abstract provided.


Kahler V. Kansas: The End Of The Insanity Defense?, Eric Roytman Feb 2020

Kahler V. Kansas: The End Of The Insanity Defense?, Eric Roytman

Duke Journal of Constitutional Law & Public Policy Sidebar

In 1995, Kansas, along with a small number of other states, passed a statute abrogating the widely recognized common law insanity defense. At common law, a defendant could raise the defense when a mental illness impaired his ability to distinguish right from wrong, allowing him to escape liability even when the elements of the crime were otherwise fulfilled. However, under Kansas’ statutory scheme, evidence of a defendant’s mental illness can only be used to negate the mens rea element of the offense. In other words, evidence of mental illness is only relevant when it shows that the defendant lacked ...


Kafka's Court: Seeking Law And Justice At Guantanamo Bay, Alka Pradhan Feb 2020

Kafka's Court: Seeking Law And Justice At Guantanamo Bay, Alka Pradhan

Women & Law

No abstract provided.


On Power & Indian Country, Maggie Blackhawk Feb 2020

On Power & Indian Country, Maggie Blackhawk

Women & Law

No abstract provided.


Family, Gender, And Leadership In The Legal Profession, Kerry Abrams Feb 2020

Family, Gender, And Leadership In The Legal Profession, Kerry Abrams

Women & Law

No abstract provided.


The Nerve: Women Of Color In The Legal Academy, Khiara M. Bridges Feb 2020

The Nerve: Women Of Color In The Legal Academy, Khiara M. Bridges

Women & Law

No abstract provided.


Inching Toward Equal Dignity, Denise Brogan-Kator Feb 2020

Inching Toward Equal Dignity, Denise Brogan-Kator

Women & Law

No abstract provided.


On Firsts, Feminism, And The Future Of The Legal Profession, Risa L. Goluboff Feb 2020

On Firsts, Feminism, And The Future Of The Legal Profession, Risa L. Goluboff

Women & Law

No abstract provided.


Carrying On 'Korematsu:' Reflections On My Father's Legacy, Karen Korematsu Feb 2020

Carrying On 'Korematsu:' Reflections On My Father's Legacy, Karen Korematsu

Women & Law

No abstract provided.


Reconstituting The Future: An Equality Amendment, Catherine A. Mackinnon, Kimberlé W. Crenshaw Feb 2020

Reconstituting The Future: An Equality Amendment, Catherine A. Mackinnon, Kimberlé W. Crenshaw

Women & Law

No abstract provided.


Law School In A Different Voice, Melissa Murray Feb 2020

Law School In A Different Voice, Melissa Murray

Women & Law

No abstract provided.


A Personal Essay, Nitza I. Quiñones Alejandro Feb 2020

A Personal Essay, Nitza I. Quiñones Alejandro

Women & Law

No abstract provided.


The Nineteenth Amendment: The Catalyst That Opened Courthouse Doors For Women On The Federal Bench, Ann Claire Williams Feb 2020

The Nineteenth Amendment: The Catalyst That Opened Courthouse Doors For Women On The Federal Bench, Ann Claire Williams

Women & Law

No abstract provided.


Motherhood As Misogyny, Jane H. Aiken Feb 2020

Motherhood As Misogyny, Jane H. Aiken

Women & Law

No abstract provided.


Reflections Of A Lady Lawyer, Lisa Blatt Feb 2020

Reflections Of A Lady Lawyer, Lisa Blatt

Women & Law

No abstract provided.


Journal Staff Feb 2020

Journal Staff

Women & Law

No abstract provided.


Forensics, Statistics, And Law: Ten Years After “A Path Forward”, Brandon Garrett Jan 2020

Forensics, Statistics, And Law: Ten Years After “A Path Forward”, Brandon Garrett

Duke Law Journal Online

No abstract provided.