Digital Commons Network^™

Katz As Originalism, Orin S. Kerr

Duke Law Journal

The “reasonable expectation of privacy” test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the Constitution’s text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce.

This Article argues that originalist opposition to Katz is misplaced. …

A Prohibition On Purely Local Purposes: The "General Welfare" Limitation Of Congress's Spending Power, Elizabeth L. Brown

Duke Law Journal

Congress’s spending power allows the federal government to spend money to provide for the general welfare of the United States. While this “general welfare” language was initially understood as barring Congress from apportioning money for local purposes, the Supreme Court’s interpretation of the spending power has treated this limitation as effectively nonjusticiable. Consequently, the spending power has provided Congress with an attractive carrot to coax states into enacting regulations that Congress could not achieve through its other powers.

This Note challenges the notion that the general welfare limitation of the Spending Clause should be considered nonjusticiable. Instead, it calls for …

Why The Purcell Principle Should Be Abolished, Ruoyun Gao

Duke Law Journal

The Supreme Court seeks to promote orderly and effective voting through the Purcell principle, which prohibits district courts from altering election rules via injunctions on the eve of an election. Applying this principle, a court considers only the proximity of the upcoming election. The underlying rationale of the Purcell principle is to avoid possible voter confusion and election chaos caused by lastminute changes. While these are legitimate concerns, the rigid Purcell principle has led courts to blindly reject any changes proposed shortly before the election—even when the changes are necessary for an orderly, effective election.

This Note identifies the drawbacks …

The International Adjudication Of Mega-Politics, Karen J. Alter, Mikael Rask Madsen

Law and Contemporary Problems

No abstract provided.

Lgbt Rights As Mega-Politics: Litigating Before The Ecthr, Laurence R. Helfer, Clare Ryan

Law and Contemporary Problems

No abstract provided.

The Court Of Justice Of The European Union And The Mega-Politics Of Posted Workers, Dorte Sindbjerg Martinsen, Michael Blauberger

Law and Contemporary Problems

No abstract provided.

Against The Masters Of War: The Overlooked Functions Of Conflict Litigation By International Courts, Silvia Steininger, Nicole Deitelhoff

Law and Contemporary Problems

No abstract provided.

Territorial Disputes By Proxy: The Indirect Involvement Of International Courts In The Mega-Politics Of Territory, Salvatore Caserta, Pola Cebulak

Law and Contemporary Problems

No abstract provided.

Jus Cogens Before International Courts: The Mega-Political Side Of The Story, Hélène Ruiz Fabri, Edoardo Stoppioni

Law and Contemporary Problems

No abstract provided.

Judicialization Of Election Disputes In Africa's International Courts, James Thuo Gathii, Olabisi D. Akinkugbe

Law and Contemporary Problems

No abstract provided.

Beyond Backlash: The Consequences Of Adjudicating Mega-Politics, Karen J. Alter, Mikael Rask Madsen

Law and Contemporary Problems

No abstract provided.

Personalized Smart Guns: A Futuristic Dream Or A Pragmatic Solution?, Andres Paciuc

Duke Law & Technology Review

No abstract provided.

Adaptive Regulation In India- Groundwater, Electric Vehicles, And Health Data, Rupanjali Karthik

Duke Law SJD Dissertations

No abstract provided.

Agents And Advisors, Deborah A. Demott

Faculty Scholarship

No abstract provided.

10 Things Judges Should Know About Cryptocurrency, Lee Reiners

Faculty Scholarship

No abstract provided.

The Law And Science Of Eyewitness Evidence, Thomas D. Albright, Brandon L. Garrett

Faculty Scholarship

Eyewitness evidence crucially depends on visual perception and memory, which are quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated in cases of wrongful conviction. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. Eyewitness evidence, where identification procedures themselves involve experiments, lends itself to scientific research as do few other areas in law. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors—state and federal courts, state lawmakers, …

Setting The Price Of Fertility: Egg Donor Compensation Following Kamakahi V. American Society For Reproductive Medicine, Bailey K. Sanders

Faculty Scholarship

Although much ink has been spilled debating whether the United States should permit the sale and purchase of human eggs, fewer scholars have considered how we might encourage more efficient competition in this market. This article considers the market impact of a 2011 price-fixing lawsuit brought on behalf of egg donors in the United States; the plaintiffs argued that the American Society for Reproductive Medicine was artificially suppressing compensation rates by requiring its members to adhere to pricing caps. When the plaintiffs secured the removal of the guidelines, many observers expected compensation rates to increase substantially.

I argue, however, that …

Thank You For Not Publishing (Unexamined Patent Applications), Lidiya Mishchenko

Faculty Scholarship

Since 2000, the U.S. Patent & Trademark Office (“PTO”) has published nearly all patent applications as they are submitted by applicants. Scholars and practitioners have praised this practice for providing timely notice of the potential legal rights the application may eventually cover. But maximizing timeliness and transparency in this way can also create significant costs, which may chill innovation and deter the development and funding of new research areas. This Article explores these often-unrecognized costs of publishing unexamined patent applications and proposes solutions that balance the benefits of early notice with the costs of patent system uncertainty.

Published patent applications …

Navassa: Property, Sovereignty, And The Law Of The Territories, Joseph Blocher, Mitu Gulati

Faculty Scholarship

The United States acquired its first overseas territory—Navassa Island, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the law of the territories—a story that continued fifty years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States.

Contemporary scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights and …

Cities, Preemption, And The Statutory Second Amendment, Joseph Blocher

Faculty Scholarship

Although the Second Amendment tends to dominate the discussion about legal limits on gun regulation, nothing has done more to shape the state of urban gun law than state preemption laws, which fully or partially limit cities’ ability to regulate guns at the local level. The goals of this short Essay are to shed light on this “Statutory Second Amendment” and to provide a basic framework for evaluating it.

Jail Health And Early Release Practices, Brandon L. Garrett, Deniz Ariturk, Jessica Carda-Auten, David L. Rosen

Faculty Scholarship

Local jails in the United States incarcerate millions of people each year. The COVID-19 pandemic made jail health a pressing public health concern nationally, where releasing individuals from jails occurred across the country in order to prevent pandemic spread. But releases also faced substantial resistance and exposed long-standing challenges in delivering adequate healthcare in jail settings. People in jail have substantially higher levels of medical need than individuals in the general population, with large numbers having serious mental illnesses and substance use disorders. Further, overcrowded conditions and poor healthcare standards and delivery make jails harmful to those already-vulnerable people. What …

Moral Economies Of Family Reunification In The Trump Era: Translating Natural Affiliation, Autonomy, And Stability Arguments Into Constitutional Rights, Kerry Abrams, Daniel Pham

Faculty Scholarship

No abstract provided.

Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon

Faculty Scholarship

No abstract provided.

Securing Gun Rights By Statute: The Right To Keep And Bear Arms Outside The Constitution, Jacob D. Charles

Faculty Scholarship

In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike …

Viral Injustice, Brandon L. Garrett, Lee Kovarsky

Faculty Scholarship

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes a comprehensive look at the decisional law growing out of COVID-19 detainee litigation and situates the judicial response as part of a comprehensive institutional …

Dismantling The Wall, Charles Shane Ellison, Anjum Gupta

Faculty Scholarship

Between 2017 and 2021, the Trump Administration waged an unprecedented battle on U.S. asylum structure, procedure, and substantive law. Seeking to alter long-standing legal principles and practices in a host of areas, the former administration’s efforts to demolish asylum protections were systematic and comprehensive. The Immigration Policy Tracking Project cataloged no fewer than ninety-six discrete policy and regulatory changes that the former administration implemented to curtail access to asylum. While some of the administration’s actions, such as the decision to separate children from their parents at the border, were carried out in the open, many other actions were largely hidden …

Common Use, Lineage, And Lethality, Darrell A. H. Miller, Jennifer Tucker

Faculty Scholarship

Political and legal debates over assault rifles, large-capacity magazines, and other lethal technology are characterized by increasing rancor and hostility. Lack of a common vocabulary to describe the topics of debate, much less facilitate a constructive dialogue, only aggravates this trend. Sorely missing from the current debate is a shared vocabulary for what the public policy and the constitutional doctrine are aiming to achieve. Part I of this Article outlines the state of Second Amendment doctrine with respect to which and what type of arms are protected, and the confused language and goals of that doctrine. Part II provides a …

Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this …

Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos

Faculty Scholarship

This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.

In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …