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Articles 1 - 30 of 40
Full-Text Articles in Law
Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone
Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone
Duke Law Journal
Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons …
Race-Conscious Student Assignment Plans: Balkanization, Integration, And Individualized Consideration, Neil S. Siegel
Race-Conscious Student Assignment Plans: Balkanization, Integration, And Individualized Consideration, Neil S. Siegel
Duke Law Journal
In deciding Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court of the United States will likely confront a critical issue to emerge from the lower court opinions on voluntary integration plans: whether school districts that use race as a factor in student assignment must comply with a legal requirement of individualized consideration. The Court has imposed such a requirement in other contexts, but it has not clearly explained what the concept of individualized consideration means and why particular forms of it matter.
Against Individually Signed Judicial Opinions, James Markham
Against Individually Signed Judicial Opinions, James Markham
Duke Law Journal
No abstract provided.
Working Toward Democracy: Thurgood Marshall And The Constitution Of Kenya, Mary L. Dudziak
Working Toward Democracy: Thurgood Marshall And The Constitution Of Kenya, Mary L. Dudziak
Duke Law Journal
This Article is a work of transnational legal history. Drawing upon new research in foreign archives, it sheds new light on the life of Thurgood Marshall, exploring for the first time an episode that he cared very deeply about. his work with African nationalists on an independence constitution for Kenya. The story is paradoxical, for Marshall, a civil rights legend in America, would seek to protect the rights of white landholders in Kenya who had gained their land through discriminatory land laws, but were soon to lose political power. In order to understand why Marshall would take pride in entrenching …
Taking The Sting Out Of Reporting Requirements: Reproductive Health Clinics And The Constitutional Right To Informational Privacy, Jessica Ansley Bodger
Taking The Sting Out Of Reporting Requirements: Reproductive Health Clinics And The Constitutional Right To Informational Privacy, Jessica Ansley Bodger
Duke Law Journal
No abstract provided.
Regulation As Delegation: Private Firms, Decisionmaking, And Accountability In The Administrative State, Kenneth A. Bamberger
Regulation As Delegation: Private Firms, Decisionmaking, And Accountability In The Administrative State, Kenneth A. Bamberger
Duke Law Journal
Administrative agencies increasingly enlist the judgment of private firms they regulate to achieve public ends. Regulation concerning the identification and reduction of risk-from financial, data and homeland security risk to the risk of conflicts of interest-increasingly mandates broad policy outcomes and accords regulated parties wide discretion in deciding how to interpret and achieve them. Yet the dominant paradigm of administrative enforcement, monitoring and threats of punishment, is ill suited to oversee the sound exercise of judgment and discretion.
An Empirical Examination Of The Equal Protection Challenge To Contingency Fee Restrictions In Medical Malpractice Reform Statutes, Casey L. Dwyer
An Empirical Examination Of The Equal Protection Challenge To Contingency Fee Restrictions In Medical Malpractice Reform Statutes, Casey L. Dwyer
Duke Law Journal
No abstract provided.
Moving Past Hippies And Harassment: A Historical Approach To Sex, Appearance, And The Workplace, Erica Williamson
Moving Past Hippies And Harassment: A Historical Approach To Sex, Appearance, And The Workplace, Erica Williamson
Duke Law Journal
No abstract provided.
The Rooker-Feldman Doctrine: What Does It Mean To Be Inextricably Intertwined?, Allison B. Jones
The Rooker-Feldman Doctrine: What Does It Mean To Be Inextricably Intertwined?, Allison B. Jones
Duke Law Journal
No abstract provided.
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.
A Rhetoric For Ratification: The Argument Of The Federalist And Its Impact On Constitutional Interpretation, Dan T. Coenen
A Rhetoric For Ratification: The Argument Of The Federalist And Its Impact On Constitutional Interpretation, Dan T. Coenen
Duke Law Journal
Courts, lawyers, and scholars have long assumed that The Federalist Papers supply important information for use in constitutional argument and interpretation. In recent years, commentators have questioned this view. Their skepticism grows out of two major concerns. First, Justice Scalia's challenge to the use of legislative history in the statutory context casts a cloud over judicial use of background texts such as The Federalist in seeking the meaning of the Constitution. Second, even if courts may rely on some background materials in interpreting the Constitution, there is reason to conclude that The Federalist. does not qualify as the sort of …
The Problems Of The Utility Analysis In Fisher And Its Associated Policy Implications And Flaws, Samantha A. Jameson
The Problems Of The Utility Analysis In Fisher And Its Associated Policy Implications And Flaws, Samantha A. Jameson
Duke Law Journal
No abstract provided.
Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow
Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow
Duke Law Journal
The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …
The Virtue Of Vagueness: A Defense Of South Dakota V. Dole, Reeve T. Bull
The Virtue Of Vagueness: A Defense Of South Dakota V. Dole, Reeve T. Bull
Duke Law Journal
No abstract provided.
Post-Disaster Tax Legislation: A Series Of Unfortunate Events, Ellen P. Aprill, Richard Schmalbeck
Post-Disaster Tax Legislation: A Series Of Unfortunate Events, Ellen P. Aprill, Richard Schmalbeck
Duke Law Journal
When a disaster strikes the United States, Congress typically feels heavy pressure to enact legislation, including tax legislation, to provide relief. This Article discusses features of two tax legislative initiatives, which responded to two quite different disasters: first, the response to the devastation of the fall 2005 hurricane season and, then, the response to the earlier terrorist attacks on the World Trade Center and Pentagon of September 11, 2001. The Article first raises the possibility that some of the provisions of these acts may be vulnerable to indirect constitutional challenge under the Uniformity Clause. In examining some of the problems …
Horizontal Political Externalities: The Supply And Demand Of Disaster Management, Ben Depoorter
Horizontal Political Externalities: The Supply And Demand Of Disaster Management, Ben Depoorter
Duke Law Journal
This Article discusses the dynamics of shared political accountability and provides a supply- and demand-side analysis of disaster management. Because multiple levels of government share political accountability in national scale disasters, disaster management is subject to a collective action problem. Introducing the concept of horizontal political externalities, this Article explains the shortcomings of disaster management in terms of asymmetric political accountability costs for ex ante preparedness and ex post relief. In the presence of shared accountability, investments in prevention and relief by one government actor confer positive externalities upon other government actors by reducing the overall chance of being held …
State Executive Lawmaking In Crisis, Jim Rossi
State Executive Lawmaking In Crisis, Jim Rossi
Duke Law Journal
Courts and scholars have largely overlooked the constitutional source and scope of a state executive's powers to avert and respond to crises. This Article addresses how actual and perceived legal barriers to executive authority under state constitutions can have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature-a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional …
Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler
Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler
Duke Law Journal
How should agencies and legislatures evaluate possible policies to mitigate the impacts of earthquakes, floods, hurricanes and other natural hazards? In particular, should governmental bodies adopt the sorts of policy-analytic and risk assessment techniques that are widely used in the area of environmental hazards (chemical toxins and radiation)? Environmental hazards policy analysis regularly employs proxy tests, in particular tests of technological "feasibility," rather than focusing on a policy's impact on well-being. When human welfare does enter the analysis, particular aspects of well-being, such as health and safety, are often given priority over others. "Individual risk" tests and other features of …
Did Nepa Drown New Orleans? The Levees, The Blame Game, And The Hazards Of Hindsight, Douglas A. Kysar, Thomas O. Mcgarity
Did Nepa Drown New Orleans? The Levees, The Blame Game, And The Hazards Of Hindsight, Douglas A. Kysar, Thomas O. Mcgarity
Duke Law Journal
This Article highlights the. hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were "caused" by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers' hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the …
Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson
Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson
Duke Law Journal
No abstract provided.
Taxing Endowment, Lawrence Zelenak
Acculturation And The Development Of Death Penalty Doctrine In The United States, Krista L. Patterson
Acculturation And The Development Of Death Penalty Doctrine In The United States, Krista L. Patterson
Duke Law Journal
No abstract provided.
It’S Not About The Fox: The Untold History Of Pierson V. Post, Bethany R. Berger
It’S Not About The Fox: The Untold History Of Pierson V. Post, Bethany R. Berger
Duke Law Journal
For generations, Pierson v. Post, the famous fox case, has introduced students to the study of property law. Two hundred years after the case was decided, this Article examines the history of the case to show both how it fits into the American ideology of property, and how the facts behind the dispute challenge that ideology. Pierson is a canonical case because it replicates a central myth of American property law: that we start with a world in which no one has rights to anything, and the fundamental problem is how best to convert it to absolute individual ownership. The …
The Case For Reauthorizing Section Five Of The Voting Rights Act, John Michael Eden
The Case For Reauthorizing Section Five Of The Voting Rights Act, John Michael Eden
Duke Law Journal
No abstract provided.
Evaluating E-Rulemaking: Public Participation And Political Institutions, Stuart Minor Benjamin
Evaluating E-Rulemaking: Public Participation And Political Institutions, Stuart Minor Benjamin
Duke Law Journal
Proponents of electronic rulemaking proposals designed to enhance ordinary citizens' involvement in the rulemaking process have debated with skeptics the question of whether such initiatives will actually increase citizens' involvement. In the debate thus far, however, proponents have largely assumed the desirability of such involvement, and skeptics have usually not challenged that assumption. In addition, proponents and skeptics have focused on the relationship between agencies and individuals, failing to consider the larger administrative law context-and in particular the role played by Congress and the courts. This Article considers e-rulemaking in a broader institutional context and directly addresses the desirability of …