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Full-Text Articles in Law
Implementing Marriage Equality In America, Carl Tobias
Implementing Marriage Equality In America, Carl Tobias
Duke Law Journal Online
No abstract provided.
Exotic Addiction, Melissa A. Morgan
Exotic Addiction, Melissa A. Morgan
Duke Law Journal Online
With an annual profit between $10 and $20 billion, animal smuggling has become the third largest illegal trade in the world, behind only drugs and firearms, and the results are devastating to humans and animals alike. Zoonotic diseases are spreading, animal attack incidents are increasing, and several species are rapidly approaching extinction. This raises several questions that have been largely unanswered: What is causing the increase in demand? How serious are the effects? Why isn’t the law effective in preventing this? What can be done to slow this trend? This Comment attempts to answer these questions by investigating the causes …
A Fourth Way? Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz
A Fourth Way? Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz
Duke Law Journal Online
Ron Krotoszynski has written a very interesting interpretation and defense of Justice Breyer’s majority opinion in Noel Canning. In Krotoszynski’s account, the opinion is a paragon of “pragmatic formalism,” a two-step process that navigates deftly between the Scylla of hidebound formalism and the Charybdis of unmoored functionalism. The pragmatic formalist, Krotoszynski explains, begins by applying formalist tools, pulled from the standard textualist toolbox. In some cases, those tools will suffice to get to a determinate answer; if so, the pragmatic formalist is done. But the pragmatic formalist also recognizes that, in many situations, formalist tools are underdeterminate; when …
“Advice And Consent” In The Appointments Clause: From Another Historical Perspective, Steven I. Friedland
“Advice And Consent” In The Appointments Clause: From Another Historical Perspective, Steven I. Friedland
Duke Law Journal Online
This Essay, a response to Russell L. Weaver's symposium contribution, "Advice and Consent" in Historical Perspective, first explores the Appointments Clause’s antecedents in the Age of Enlightenment and its emergence in the Constitutional Convention in 1787, showing how its sturdy separation-of-powers foundation was built. In Part II, the Essay focuses on the historical realities of the Clause’s two-branch process, especially how the operability of two political bodies naturally yields results consonant with the etiquette and political sensibilities of the day. Then, in Part III, it offers several suggestions on how to cabin the potentially untrammeled discretion of the Senate …
The Need For A Law Of Church And Market, Nathan B. Oman
The Need For A Law Of Church And Market, Nathan B. Oman
Duke Law Journal Online
This Essay uses The Challenge of Co-Religionist Commerce, by Professors Michael Helfand and Barak Richman, as a means of raising the issue of the "law of church and market." In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce …
Punishing The Poor Through Welfare Reform: Cruel And Unusual?, Jennifer E.K. Kendrex
Punishing The Poor Through Welfare Reform: Cruel And Unusual?, Jennifer E.K. Kendrex
Duke Law Journal Online
This Comment aims to show how the Eighth Amendment intersects with welfare reform and what constitutional limits exist vis-à-vis welfare restrictions for society’s neediest citizens. Part I explores Eighth Amendment jurisprudence and its historical underpinnings and will provide background on the 1996 welfare reforms. Part II explores whether welfare reforms penalize individuals for their status as “poor” or “unemployed” and whether this constitutes cruel and unusual punishment. Finally, Part III illustrates how welfare programs can be reformed for constitutional compliance.
The Divisibility Of Crime, Jessica A. Roth
The Divisibility Of Crime, Jessica A. Roth
Duke Law Journal Online
Near the end of the Supreme Court's 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies. Descamps represents the Court's most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction "counts" for purposes of …
The Rule Of Law As A Law Of Standards: Interpreting The Internal Revenue Code, Alice G. Abreu, Richard K. Greenstein
The Rule Of Law As A Law Of Standards: Interpreting The Internal Revenue Code, Alice G. Abreu, Richard K. Greenstein
Duke Law Journal Online
This Essay seeks to demonstrate that the interpretive use of standards in applying provisions of the Internal Revenue Code is not inconsistent with the rule of law. Part I discusses the relationship between rules and the rule of law and explains why we think so many tax scholars are drawn to a view of the tax law as consisting primarily of rules. We then demonstrate that the definition of income is properly understood as a standard. Part II addresses the descriptive dimension of this claim, summarizing and expanding our previous discussion of the definition of income to determine whether the …