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Full-Text Articles in Law
A Quest For Fair And Balanced: The Supreme Court, State Courts, And The Future Of Same-Sex Marriage Review After Perry, Chase D. Anderson
A Quest For Fair And Balanced: The Supreme Court, State Courts, And The Future Of Same-Sex Marriage Review After Perry, Chase D. Anderson
Duke Law Journal
Gay rights advocates and social conservatives alike have criticized the Supreme Court for its recent decisions concerning sexual orientation. An examination of those decisions reveals that, taken together, they represent a surprisingly careful balance. The result is a principle of neutrality in which the Court has effectively demanded that states refrain from taking either side in the culture war surrounding sexual orientation. The true test of that neutrality principle will arise when the Court considers the constitutionality of a same-sex marriage ban. Thus far, challenges have taken place in state courts under state constitutions; those judges appear to have been …
A Diversion Of Attention? Immigration Courts And The Adjudication Of Fourth And Fifth Amendment Rights, Jennifer M. Chacón
A Diversion Of Attention? Immigration Courts And The Adjudication Of Fourth And Fifth Amendment Rights, Jennifer M. Chacón
Duke Law Journal
Because of fundamental changes in the nature of immigration enforcement over the past decade, an increasing number of interactions between law enforcement agents and noncitizens in the United States are ultimately adjudicated not in criminal courts, but in immigration courts. Unfortunately, unlike the state and federal courts that have long performed an oversight function with regard to police activity, immigration courts were not designed to police the police. As a result, there are inadequate mechanisms in place to address many of the rights violations that are occurring in the context of immigration enforcement. This Article explores the procedural deficiencies of …
When Insiders Become Outsiders: Parental Objections To Public School Sex Education Programs, Emily J. Brown
When Insiders Become Outsiders: Parental Objections To Public School Sex Education Programs, Emily J. Brown
Duke Law Journal
This Note argues that parents' fundamental right to direct their children's moral and educational upbringing includes the right to exempt their children from objectionable sex education programs in public schools. Schools usurp parents' fundamental rights when they unilaterally introduce children to topics of human sexuality without parental notice or permission. Alleged violations of these rights merit strict scrutiny review from courts. When parents' objections are confined to discrete, tangible events, parents are constitutionally entitled to exempt their children from objectionable activities. The efficacy of this constitutional relief is more limited, however, when parental objections are pervasive and unassociated with a …
Counting Offenses, Jeffrey M. Chemerinsky
Counting Offenses, Jeffrey M. Chemerinsky
Duke Law Journal
Is a criminal defendant who discharges a weapon five times in rapid succession guilty of one crime or several crimes? This question of how to divide charges has vexed legal philosophers and Supreme Court Justices. It is a question of profound importance, but one that legal scholarship has seldom addressed. The answer has an impact on each stage of a criminal justice prosecution. The difference between one charge and multiple charges can affect the likelihood of a plea bargain, the strategy for trial, and, if the defendant is convicted, the length of a prison sentence. This Note, citing numerous examples …
Punishment By The People: Rethinking The Jury’S Political Role In Assigning Punitive Damages, Nathan Seth Chapman
Punishment By The People: Rethinking The Jury’S Political Role In Assigning Punitive Damages, Nathan Seth Chapman
Duke Law Journal
No abstract provided.
Political Trials In Domestic And International Law, Eric A. Posner
Political Trials In Domestic And International Law, Eric A. Posner
Duke Law Journal
Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a nonimmediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections-often with the complicity of judges-but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This Article argues that the amount of process enjoyed by defendants in criminal trials reflects a balancing of two …
The Political Question Doctrine: Suggested Criteria, Jesse H. Choper
The Political Question Doctrine: Suggested Criteria, Jesse H. Choper
Duke Law Journal
Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed-textual commitment-is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these-structural issues: federalism and separation of powers-has been advanced and developed …
Diamond In The Rough: Mining Article 36(1)(B) Of The Vienna Convention On Consular Relations For An Individual Right To Due Process, Brittany P. Whitesell
Diamond In The Rough: Mining Article 36(1)(B) Of The Vienna Convention On Consular Relations For An Individual Right To Due Process, Brittany P. Whitesell
Duke Law Journal
No abstract provided.
When Privacy Fails: Invoking A Property Paradigm To Mandate The Destruction Of Dna Samples, Leigh M. Harlan
When Privacy Fails: Invoking A Property Paradigm To Mandate The Destruction Of Dna Samples, Leigh M. Harlan
Duke Law Journal
No abstract provided.
The Legal Subject In Exile, Kathryn Abrams
Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young
Federalism And The Double Standard Of Judicial Review, Lynn A. Baker, Ernest A. Young
Duke Law Journal
From 1937 to 1995, federalism was part of a “Constitution in exile.” Except for the brief interlude of the National League of Cities doctrine2—which, like Napoleon’s ill-fated return from Elba, met with crushing defeat3—the post–New Deal Supreme Court has been almost completely unwilling to enforce constitutional limits on national power vis-à-vis the states. The reason, by all accounts, has much to do with federalism’s historic link to other aspects of our expatriate constitution—e.g., economic substantive due process, legislative nondelegation— which were banished for their collusion against the New Deal.
On Listening To The Kulturkampf, Or, How America Overruled Bowers V. Hardwick, Even Though Romer V. Evans Didn’T, Jay Michaelson
On Listening To The Kulturkampf, Or, How America Overruled Bowers V. Hardwick, Even Though Romer V. Evans Didn’T, Jay Michaelson
Duke Law Journal
No abstract provided.
The Failure Of The Religious Freedom Restoration Act Under Section 5 Of The Fourteenth Amendment, William W. Van Alstyne
The Failure Of The Religious Freedom Restoration Act Under Section 5 Of The Fourteenth Amendment, William W. Van Alstyne
Duke Law Journal
No abstract provided.
Has Due Process Struck Out? The Judicial Rubberstamping Of Retroactive Economic Laws, Andrew C. Weiler
Has Due Process Struck Out? The Judicial Rubberstamping Of Retroactive Economic Laws, Andrew C. Weiler
Duke Law Journal
No abstract provided.
The First Duty Of Government: Protection, Liberty And The Fourteenth Amendment, Steven J. Heyman
The First Duty Of Government: Protection, Liberty And The Fourteenth Amendment, Steven J. Heyman
Duke Law Journal
No abstract provided.
A Critique Of Justice Antonin Scalia’S Approach To Fundamental Rights Adjudication, Edward Gary Spitko
A Critique Of Justice Antonin Scalia’S Approach To Fundamental Rights Adjudication, Edward Gary Spitko
Duke Law Journal
No abstract provided.
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Duke Law Journal
No abstract provided.
Politics And Due Process: The Rhetoric Of Social Security Disability Law, Anthony Taibi
Politics And Due Process: The Rhetoric Of Social Security Disability Law, Anthony Taibi
Duke Law Journal
No abstract provided.
Delegation And Due Process, Donald A. Dripps
Due Process, Postjudgment Garnishment, And “Brutal Need” Exemptions, Thomas W. Logue
Due Process, Postjudgment Garnishment, And “Brutal Need” Exemptions, Thomas W. Logue
Duke Law Journal
No abstract provided.