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Duke Law

Duke Law Journal Online

2024

Articles 1 - 5 of 5

Full-Text Articles in Law

Historical Analogy And The Role Morality Of Reason-Giving, Darrell A. H. Miller Mar 2024

Historical Analogy And The Role Morality Of Reason-Giving, Darrell A. H. Miller

Duke Law Journal Online

The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.

The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of …


Missing Pieces: Gaps In The Record Of Early American Decisional Law, Andrew Willinger Mar 2024

Missing Pieces: Gaps In The Record Of Early American Decisional Law, Andrew Willinger

Duke Law Journal Online

In its most recent major Second Amendment decision, New York State Rifle & Pistol Association v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were …


"Just The Facts, Ma'am"? A Response To Professors Blocher And Garrett, Haley N. Proctor Feb 2024

"Just The Facts, Ma'am"? A Response To Professors Blocher And Garrett, Haley N. Proctor

Duke Law Journal Online

No abstract provided.


The Precarious Art Of Classifying Facts, Allison Orr Larsen Feb 2024

The Precarious Art Of Classifying Facts, Allison Orr Larsen

Duke Law Journal Online

No abstract provided.


Corpus Linguistics And The Original Public Meaning Of The Sixteenth Amendment, Thomas R. Lee, Lawrence B. Solum, James C. Phillips, Jesse A. Egbert Feb 2024

Corpus Linguistics And The Original Public Meaning Of The Sixteenth Amendment, Thomas R. Lee, Lawrence B. Solum, James C. Phillips, Jesse A. Egbert

Duke Law Journal Online

Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes, from whatever source derived” under the original meaning of the Sixteenth Amendment. Moore is widely viewed as the most important tax case to reach the United States Supreme Court in decades. It is also an opportunity for the Court to refine its theory and method of finding original meaning.

We focus here on the original public meaning of the Sixteenth Amendment—the ordinary, common meaning attributed to its text by the general public in 1913. So far, the …