Digital Commons Network^™

From Overdose To Crime Scene: The Incompatibility Of Drug-Induced Homicide Statutes With Due Process, Kaitlin S. Phillips

Duke Law Journal

As the opioid epidemic ravages the United States, federal and state legislators continue to seek various ways to mitigate the crisis. Though public health advocates have successfully pushed for harm-reduction initiatives, a contrasting punitive response has emerged. Across the country, prosecutors and legislators are turning to drug-induced homicide (“DIH”) statutes as a law-and-order response to the crisis. DIH statutes, which can carry sentences as severe as life in prison, impose criminal liability on anyone who provided drugs that led to a fatal overdose. Though DIH laws are often justified as tools to target large-scale drug distributors, in reality, they more …

Regulating Derivatives: A Fundamental Rethinking, Steven L. Schwarcz

Duke Law Journal

The conventional wisdom is that derivatives are exotic and uniquely risky, although innovative, financial instruments. That perception has given rise to a regulatory patchwork described as “confusing, incomplete, [and] contradictory.”1 This Article rethinks how derivatives should be regulated. It begins by demystifying derivatives. In contrast to the arcane industry-derived categories, the Article deconstructs derivatives more intuitively, by their economic functions, into two categories of traditional legal instruments—option contracts and guarantees. Being neither exotic nor uniquely risky, most derivatives should be regulated like those traditional instruments. The Article then explains why at least one subset of guarantees—financial guarantees with systemically important …

Checking The Purse: The President’S Limited Impoundment Power, Christian I. Bale

Duke Law Journal

The United States spends well over $700 billion annually on defense, more than the next ten countries combined and roughly half of the discretionary budget. The Department of Defense budget supports critical national security objectives, but even defense stalwarts acknowledge excessive spending, including unneeded military facilities, exponential cost overruns, outmoded weapons systems, and duplicative investments across the military services.

In the face of a congressional budget process distorted by special interest groups, this Note argues that the president possesses the constitutional authority to unilaterally curb some defense spending. In particular, the president may impound—refuse to spend money appropriated by Congress …

Optimal Sludge? The Price Of Program Integrity, Cass R. Sunstein, Julien L. Gosset

Duke Law Journal Online

Public officials often impose eligibility requirements for government programs that have two effects: (1) They screen out ineligible people and (2) they screen out eligible people. Consisting of paperwork requirements, interviews, waiting periods, and administrative burdens, such requirements are sometimes characterized as “sludge,” and for some eligible people, they might prove overwhelming or prohibitive. In these circumstances, there is a pervasive normative issue: What is the optimal tradeoff between the screening out of ineligible people and the screening out of eligible people? It is plausible to think that a great deal depends on numbers. If, for example, the number of …

Reconstructing Racially Polarized Voting, Travis Crum

Duke Law Journal

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles , the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the …

Keeping Secrets: The Unsettled Law Of Judge-Made Exceptions To Grand Jury Secrecy, H. Brent Mcknight Jr.

Duke Law Journal

Federal Rule of Criminal Procedure 6(e) functionally binds everyone who is present during grand jury proceedings (except witnesses) to secrecy. But questions arise when courts are asked to make exceptions to grand jury secrecy outside those enumerated in the rule, such as exceptions for Congress or for the release of historically significant grand jury records.

This Note examines the propriety of judge-made exceptions to grand jury secrecy. Contrary to some courts authorizing disclosure outside of Rule 6(e), this Note argues that the text and development of Rule 6(e), along with limitations on courts’ inherent authority over grand jury procedure, caution …

Quasi Campaign Finance, Nicholas O. Stephanopoulos

Duke Law Journal

Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance—giving or spending money to sway elections—is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on nonelectoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals—the Koch brothers, Michael Bloomberg, and the like—appears to be rising. It also seems to skew policy outcomes in the …

Furthering Decolonization: Judicial Review Of Colonial Criminal Law, Maryam Kanna

Duke Law Journal

Most of the world today was once colonized by a European power. Great Britain was one of the most prolific colonizers, with more than 412 million people under its rule at its height. As part of its colonial enterprise, Great Britain transplanted criminal laws into its colonies and territories, to varying degrees. Across many former Commonwealth colonies, the criminal codes implemented by the British were similar or even identical. Today, these colonial criminal codes remain largely intact in many former colonies. Some of these colonial criminal laws are notoriously used by modern postcolonial governments to infringe human rights and restrict …

Sex-Based Brain Differences And Emotional Harm, Betsy J. Grey

Duke Law Journal Online

Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether …

The Executive’S Privilege, Jonathan David Shaub

Duke Law Journal

Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legally binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in the context of congressional oversight. In that vacuum—unconstrained by precedent—the executive branch has developed a comprehensive theory of executive privilege to support and implement prophylactic doctrines that render Congress largely powerless in …

Preclusion Of Exclusion: How Many Bites Does Dhs Get At The Deportation Apple?, Christine M. Mullen

Duke Law Journal

The common law doctrine of res judicata prevents parties from relitigating claims that were, or could have been, litigated in a previous proceeding. In the background of all civil law, the doctrine has been regularly applied to executive agency adjudications. However, recent developments have highlighted a circuit split and tension between the branches of government, as different adjudicative bodies have come to differing conclusions on whether, and to what extent, res judicata applies in removal proceedings.

This Note argues that res judicata should apply broadly and uniformly in removal proceedings, limiting the Department of Homeland Security (“DHS”) to only one …

In Search Of Prerogative, Ilan Wurman

Duke Law Journal

The standard formalist account of Article II’s Executive Vesting Clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great Britain prior to the Constitution’s adoption, subject to the assignment of such powers and authorities to the other departments of the national government. In recent papers, a handful of scholars have challenged this “residual vesting thesis” by amassing evidence that “the executive power” textually referred only to the power to carry law into execution and not to the bundle of other royal prerogatives—for example over foreign affairs and national security—enjoyed by …

The Gorsuch Test: Gundy V. United States, Limiting The Administrative State, And The Future Of Nondelegation, Johnathan Hal

Duke Law Journal

The future of nondelegation is uncertain. Long considered an “axiom in constitutional law,” the nondelegation principle has almost never been seriously enforced—from the founding of the country to present day. After the Supreme Court’s decision in Gundy v. United States, that truism may soon change.

For much of its recent history, the Court has approached nondelegation challenges using the “intelligible principle” test. Now, for the first time in many years, five Justices have indicated a willingness to revisit that test. In his dissenting opinion in Gundy, Justice Gorsuch proposed a new test—the “Gorsuch test”—for adjudicating nondelegation disputes. He averred …

Religious Liberty In A Pandemic, Caroline Mala Corbin

Duke Law Journal Online

The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.

Volume 104, Number 3 (Fall/Winter 2020-21)

Judicature

No abstract provided.

The Right To Carry Your Gun Outside: A Snapshot History, Joyce Lee Malcolm

Law and Contemporary Problems

No abstract provided.

Defiance, Concealed Carry, And Race, Nicholas J. Johnson

Law and Contemporary Problems

No abstract provided.

The Geography Of A Constitutional Right: Gun Rights Outside The Home, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Law and Contemporary Problems

No abstract provided.

Natural Rights, Positive Rights, And The Right To Keep And Bear Arms, Jud Campbell

Law and Contemporary Problems

No abstract provided.

The Second Amendment’S Safe Space, Or The Constitutionalization Of Fragility, Mary Anne Franks

Law and Contemporary Problems

No abstract provided.

Conflicting Reports: When Gun Rights Threaten Free Speech, Gregory P. Magarian

Law and Contemporary Problems

No abstract provided.

Gun Accessories And The Second Amendment: Assault Weapons, Magazines, And Silencers, Robert J. Spitzer

Law and Contemporary Problems

No abstract provided.

The Right To Code And Share Arms, Josh Blackman

Law and Contemporary Problems

No abstract provided.

Defeasible Second Amendment Rights: Conceptualizing Gun Laws That Dispossess Prohibited Persons, Jacob D. Charles

Law and Contemporary Problems

No abstract provided.

History, Text, Tradition, And The Future Of Second Amendment Jurisprudence: Limits On Armed Travel Under Anglo-American Law, 1688–1868, Saul Cornell

Law and Contemporary Problems

No abstract provided.

Have Gun—Will Travel?, Brannon P. Denning

Law and Contemporary Problems

No abstract provided.

The Swerve To “Guns Everywhere”: A Legal And Empirical Evaluation, John J. Donohue

Law and Contemporary Problems

No abstract provided.

Assessing The Effect Of Firearms Regulations Using Partial Identification Methods: A Case Study Of The Impact Of Stand Your Ground Laws On Violent Crime, Megan Miller, John Pepper

Law and Contemporary Problems

No abstract provided.

Volume 104, Number 2 (Summer 2020)

Judicature

No abstract provided.

The Law Of The Market, Hanoch Dagan, Avihay Dorfman, Roy Kreitner, Daniel Markovits

Law and Contemporary Problems

No abstract provided.