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Full-Text Articles in Law

Gamble V. United States: A Commentary, Kayla Mullen May 2019

Gamble V. United States: A Commentary, Kayla Mullen

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single ...


Litigating War: The Justiciability Of Executive War Power, Chris Smith May 2019

Litigating War: The Justiciability Of Executive War Power, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

Courts frequently dismiss claims against the Executive’s use of the war power as being non-justiciable political questions. This lack of a judicial check has created a situation in which meaningful checks and balances on the war power are found only in the Executive Branch itself. But the Constitution places the bulk of war powers in the hands of Congress. Executive usurpation of Congress’s constitutional prerogative to initiate hostilities has significantly weakened the separation of powers. In the aftermath of the Vietnam War, Congress sought to reassert its constitutional authority over war-making decisions by passing the War Powers Resolution ...


The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor May 2019

The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor

Duke Journal of Constitutional Law & Public Policy Sidebar

In Herrera v. Wyoming, the Supreme Court is considering how to reconcile the Crow Tribe’s hunting right with Wyoming’s sovereignty. This endeavor requires examining nineteenth-century treaties and precedents to decipher the intents of the Crow Tribe and the United States government. If the Court’s decision includes a clear articulation of whether Native American treaty rights may be truncated by mere implication, tribes nationwide may be at risk of losing treaty rights they have enjoyed for centuries. In making its decision, the Supreme Court will also have to weigh the advantages and disadvantages of overturning precedent and of ...


A Test Of Sovereignty: Franchise Tax Board Of The State Of California V. Gilbert P. Hyatt, Timothy Dill Apr 2019

A Test Of Sovereignty: Franchise Tax Board Of The State Of California V. Gilbert P. Hyatt, Timothy Dill

Duke Journal of Constitutional Law & Public Policy Sidebar

In Franchise Tax Board of California v. Hyatt, the Supreme Court considers whether to overrule Nevada v. Hall, a 1979 Supreme Court decision. Hall permitted a State to be haled into the court of another State without its consent. In 2016, an evenly divided Supreme Court affirmed Hall 4-4 when faced with the same question, and following a remand to the Nevada Supreme Court, the Court has granted certiorari on this question once again. This Commentary contends that Hall was wrongly decided and should be overruled. The Constitution’s ratification did not alter the status of common-law State sovereign immunity ...


Apple V. Pepper: Applying The Indirect Purchaser Rule To Online Platforms, Jason Wasserman Apr 2019

Apple V. Pepper: Applying The Indirect Purchaser Rule To Online Platforms, Jason Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

Long-established antitrust precedent bars customers who buy a firm’s product through intermediaries from suing that firm for antitrust damages. In Apple Inc. v. Pepper, this “indirect purchaser rule” is brought into the smartphone age in a price-fixing dispute between technology giant Apple and iPhone users. This case will determine whether iPhone users buy smartphone applications directly from Apple through the App Store, or if Apple is merely an intermediary seller-agent of app developers. The indirect purchase rule is generally considered settled precedent. How the rule should apply to online platforms, however, differs between circuit courts, which have split on ...


Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani Apr 2019

Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani

Duke Journal of Constitutional Law & Public Policy Sidebar

Leading a group in prayer in a public setting blurs the line between public and private. Such blurring implicates a constitutional tension between the Establishment Clause and the Free Exercise Clause. This tension is magnified when the constitutionality of prayer is questioned in the context of democratic participation. Current Supreme Court precedent holds legislative prayer to be constitutional, but the relevant cases, Marsh v. Chambers and Town of Greece, NY v. Galloway, do not address the specific constitutionality of legislator-led prayer. There is currently a circuit split on the subject: in Bormuth v. County of Jackson, the United States ...


Equal Dignity And Unequal Protection: A Framework For Analyzing Disparate Impact Claims, Kyle P. Nodes Apr 2019

Equal Dignity And Unequal Protection: A Framework For Analyzing Disparate Impact Claims, Kyle P. Nodes

Duke Law Journal Online

The Supreme Court has long endorsed the theory of the “colorblind” Equal Protection Clause, viewing it as a mandate of only facial equality. Due to rigid doctrine that limits true protection to only a short, stagnant list of fundamental rights and suspect classifications and that requires proof of discriminatory intent, only the most blatant, purposeful inequality is within constitutional reach. Festering outside of this doctrinal sphere are powerful examples of state actions that impose disparate impacts on marginalized communities, such as the nationwide system of laws that disqualify individuals—disproportionately black men—with felony convictions from the jury pool.

However ...


Collateral Damage: Private Merger Lawsuits In The Wake Of Section 2’S Contraction, Paul F. Brzyski Apr 2019

Collateral Damage: Private Merger Lawsuits In The Wake Of Section 2’S Contraction, Paul F. Brzyski

Duke Law Journal Online

For over 100 years, the Clayton Act has ostensibly prohibited anticompetitive mergers and acquisitions. Yet, as fears of market concentration and market power grow, it seems high time for a boost in enforcement. Armed with statutory causes of action for injunctive relief and treble damages, private plaintiffs could provide that needed boost. However, these plaintiffs face an unexpected hurdle to enforcing the merger laws: section 2 of the Sherman Act.

This Note argues that the narrowing of liability under section 2 over the past three decades has had a collateral impact on private plaintiffs’—especially rival firms’—ability to satisfy ...


Timbs V. Indiana: The Constitutionality Of Civil Forfeiture When Used By States, Kris Fernandez Mar 2019

Timbs V. Indiana: The Constitutionality Of Civil Forfeiture When Used By States, Kris Fernandez

Duke Journal of Constitutional Law & Public Policy Sidebar

In Timbs v. Indiana, Petitioner Tyson Timbs asks the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment against the states, providing extra protection for individuals against fines and forfeiture that are “grossly disproportionate” to the harm caused. The decision to incorporate the Excessive Fines Clause and the guidelines for applying that incorporation would have a substantial effect on governments, which often rely on the revenue gained from forfeiture. This commentary argues that the Supreme Court of the United States should incorporate the Excessive Fines Clause based on historical support of an individual’s right to be ...


Swords Into Plowshares: Nuclear Power And The Atomic Energy Act’S Preemptive Scope In Virginia Uranium, Inc. V. Warren, Francis X. Liesman Mar 2019

Swords Into Plowshares: Nuclear Power And The Atomic Energy Act’S Preemptive Scope In Virginia Uranium, Inc. V. Warren, Francis X. Liesman

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary highlights the considerations the Supreme Court should attend to in its decision in Virginia Uranium, Inc. v. Warren, both in construing § 2021(k) and in reviewing the Fourth Circuit’s reading of precedent from other circuits and from the Court’s prior opinions. Specifically, the Court must clarify how to interpret § 2021(k)’s activities component in concert with its “for purposes” language and determine the importance of the particular underlying activity the state seeks to regulate in a preemption analysis under the Atomic Energy Act. Clarification is necessary to ensure that courts properly effectuate Congress’s intent ...


Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez Mar 2019

Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez

Duke Journal of Constitutional Law & Public Policy Sidebar

Once again, the Supreme Court of the United States has an opportunity to determine the extent to which death-row inmates can bring as-applied challenges to the states’ method of execution and prevent possible botched executions. In Bucklew v. Precythe, the Court will confront the assumptions that the execution team is equipped to handle any execution and that the procedure will go as planned. Additionally, the Court will determine whether the standard articulated in Glossip v. Gross, which requires inmates asserting facial challenges to the states’ method of execution to plead a readily available alternative method of execution, further extends to ...


Stepping Into The Breach: State Constitutions As A Vehicle For Advancing Rights-Based Climate Litigation, Benjamin T. Sharp Mar 2019

Stepping Into The Breach: State Constitutions As A Vehicle For Advancing Rights-Based Climate Litigation, Benjamin T. Sharp

Duke Journal of Constitutional Law & Public Policy Sidebar

The perceived failures of the political branches to mitigate climate change have led climate change activists to seek alternative means to achieve reductions in greenhouse gas emissions; many are turning to litigation. The claims in these cases rely on a variety of legal bases, but this Note will focus on those cases claiming that governments’ failures to prevent climate change amount to violations of the plaintiffs’ constitutional rights under the Due Process Clause of the Fifth Amendment. Rights-based climate change litigation is likely to increase in the future. Among the most prominent of the surviving rights-based cases is Juliana v ...


Intelligent Design & Egyptian Goddess: A Response To Professors Buccafusco, Lemley & Masur, Sarah Burstein Feb 2019

Intelligent Design & Egyptian Goddess: A Response To Professors Buccafusco, Lemley & Masur, Sarah Burstein

Duke Law Journal Online

No abstract provided.


Boiling Down Boilerplate In M&A Agreements: A Response To Choi, Gulati, & Scott, Robert Anderson, Jeffrey Manns Jan 2019

Boiling Down Boilerplate In M&A Agreements: A Response To Choi, Gulati, & Scott, Robert Anderson, Jeffrey Manns

Duke Law Journal Online

“Boilerplate” consists of standardized terms whose meaning is intended to be consistent from one transaction to the next, and these provisions are ubiquitous in contracts and related transactional documents. In their recent Duke Law Journal article Stephen Choi, Mitu Gulati, and Robert Scott have highlighted the potentially corrosive effect of the legal drafting process on boilerplate provisions. They show how incremental edits to boilerplate pari passu clauses for sovereign debt agreements have led to textual “black holes,” which potentially undercut the standardization purpose, wording, and substantive meaning of these boilerplate provisions. In this Article we offer preliminary evidence of a ...


Does The American Rule Promote Access To Justice? Was That Why It Was Adopted?, John Leubsdorf Jan 2019

Does The American Rule Promote Access To Justice? Was That Why It Was Adopted?, John Leubsdorf

Duke Law Journal Online

No abstract provided.


The Year In Review 2018: Selected Cases From The Alaska Supreme Court And The Alaska Court Of Appeals Jan 2019

The Year In Review 2018: Selected Cases From The Alaska Supreme Court And The Alaska Court Of Appeals

Alaska Law Review Year in Review

No abstract provided.


The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett Jan 2019

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Faculty Scholarship

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected ...


Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman Jan 2019

Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to ...


The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan Jan 2019

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results ...


Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel Jan 2019

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to ...


The Ncaa And The Irs: Life At The Intersection Of College Sports And The Federal Income Tax, Richard L. Schmalbeck, Lawrence A. Zelenak Jan 2019

The Ncaa And The Irs: Life At The Intersection Of College Sports And The Federal Income Tax, Richard L. Schmalbeck, Lawrence A. Zelenak

Faculty Scholarship

Few organizational acronyms are more familiar to Americans than those of the National Collegiate Athletic Association (NCAA) and the Internal Revenue Service (IRS). Although neither organization is particularly popular, both loom large in American life and popular culture. Because there is a tax aspect to just about everything, it should come as no surprise that the domains of the NCAA and the IRS overlap in a number of ways. For many decades, the strong tendency in those areas has been for college athletics to enjoy unreasonably generous tax treatment-sometimes because of the failure of the IRS to enforce the tax ...


Grounding Originalism, William Baude, Stephen E. Sachs Jan 2019

Grounding Originalism, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to ...


Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young Jan 2019

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Faculty Scholarship

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction ...


Judging Risk, Brandon L. Garrett, John Monahan Jan 2019

Judging Risk, Brandon L. Garrett, John Monahan

Faculty Scholarship

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process, from policing, to pre-trial, sentencing, corrections, and during parole. As efforts to reduce incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in criminal justice outcomes. Such work has neglected how decisionmakers use risk-assessment in practice. In this Article, we examine in detail the judging of risk assessment and we study why decisionmakers so often fail to consistently use such ...


A Theory Of Poverty: Legal Immobility, Sara Sternberg Greene Jan 2019

A Theory Of Poverty: Legal Immobility, Sara Sternberg Greene

Faculty Scholarship

The puzzle of why the cycle of poverty persists and upward class mobility is so difficult for the poor has long captivated scholars and the public alike. Yet with all of the attention that has been paid to poverty, the crucial role of the law, particularly state and local law, in perpetuating poverty is largely ignored. This Article offers a new theory of poverty, one that introduces the concept of legal immobility. Legal immobility considers the cumulative effects of state and local laws as a mechanism through which poverty is perpetuated and upward mobility is stunted. The Article provides an ...


Exemplary Legal Writing 2018: Five Recommendations, Femi Cadmus, Casandra Laskowski Jan 2019

Exemplary Legal Writing 2018: Five Recommendations, Femi Cadmus, Casandra Laskowski

Faculty Scholarship

A brief review of five recommended exemplary legal books published in 2018.


Private International Law As An Ethic Of Responsivity, Ralf Michaels Jan 2019

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of ...


Unconstitutionally Illegitimate Discrimination, Brandon L. Garrett Jan 2019

Unconstitutionally Illegitimate Discrimination, Brandon L. Garrett

Faculty Scholarship

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines ...


Beyond 'The Annals Of Murder': The Life And Works Of Thomas M. Mcdade, Jennifer L. Behrens Jan 2019

Beyond 'The Annals Of Murder': The Life And Works Of Thomas M. Mcdade, Jennifer L. Behrens

Faculty Scholarship

Thomas M. McDade is best known (if not well-known enough) for his seminal 1961 reference bibliography, The Annals of Murder: A Bibliography of Books and Pamphlets on American Murders from Colonial Times to 1900. Beyond that singular text on early American murder trial accounts, though, lies more than 70 additional publications on American legal history, law enforcement, and literature, gathered together for the first time in an annotated bibliography of McDade’s lesser-known writings. The article also examines McDade’s fascinating life and varied career as an early FBI agent, World War II veteran, corporate executive, and true crime chronicler.


Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...