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Why The Nineteenth Amendment Matters Today: A Guide For The Centennial, Neil S. Siegel

Duke Journal of Gender Law & Policy

No abstract provided.

Chaos, Accomplishment, And Work, Or, What I Learned On Paternity Leave, Ernest A. Young

Duke Journal of Gender Law & Policy

No abstract provided.

“We Will See That You Are Troubled Right Along”: Women And The Politics Of The Early Federal Income Tax, Lawrence Zelenak

Duke Journal of Gender Law & Policy

No abstract provided.

Patents And State Constitutionally Protected Speech, Dan L. Burk

Duke Journal of Constitutional Law & Public Policy

Recent American patent scholarship has begun to explore the intersection of the patent system and guarantees of expressive freedom, noting that patents may impinge on the First Amendment to the Federal Constitution and chill or prohibit protected speech. But guarantees of expressive freedom are not limited to the Federal Constitution; they are also found in state constitutional provisions, some of which offer broader protection than that guaranteed in the First Amendment. In this essay I examine the relationship between federally issued patents and the guarantees of expressive freedom found in state constitutions. State constitutions vary in their wording and interpretation, …

Goodbye To Concurring Opinions, Meg Penrose

Duke Journal of Constitutional Law & Public Policy

Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors. The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions.

The modern Court writes more separate opinions than past courts. It is becoming far too common …

Marriage, Domicile And The Constitution, Mark Strasser

Duke Journal of Constitutional Law & Public Policy

In three of the major right to marry cases in which the plaintiffs challenged their domicile’s refusal to permit them to marry, the couples had married in a sister state in accord with local law. In none of these cases did the Court address the conditions under which states, as a constitutional matter, must recognize marriages validly celebrated in another state. This article argues that the position reflected in the First and Second Restatements of the Conflicts of Law captures the United States Constitution’s approach. A marriage valid in the states of celebration and domicile at the time of its …

W(H)Ither Glucksberg?, Ronald Turner

Duke Journal of Constitutional Law & Public Policy

This article is a tale of two significant United States Supreme Court decisions interpreting and applying the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Washington v. Glucksberg, the Court held that an asserted right to physician-assisted suicide is not a fundamental liberty interest protected by the clause because it is not a right deeply rooted in this nation's history and tradition. More recently, in Obergefell v. Hodges, the Court held that state laws prohibiting same-sex marriage violated the Due Process Clause. In so holding, the Obergefell Court departed from Glucksberg’s history-and-tradition …

Masterpiece Cakeshop And Tolerance As A Constitutional Mandate: Strategic Compromise In The Enactment Of Civil Rights Laws, Samuel A. Marcosson

Duke Journal of Constitutional Law & Public Policy

The Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission took up the question whether a state law barring discrimination on the basis of sexual orientation could be applied to a business whose owner had religious objections to participating in a same-sex wedding. The decision turned on the majority’s finding that the Commission’s ruling against Masterpiece Cakeshop was tainted by anti-religious animus, an impermissible basis for government action. The Court did not need to reach the broader question of whether a law like Colorado’s could constitutionally be applied if the agency acted without the impermissible animus. In …

“Souls Aren’T Saved Just In Church Buildings”: Defining “Religious Exercise” Under The Religious Land Use And Institutionalized Persons Act, Taylor Luckey Brennan

Duke Law Journal

Throughout its First Amendment jurisprudence, the Supreme Court has acknowledged the difficulty inherent in determining the scope of the multivalent term “religion.” The Court has repeatedly struggled to articulate workable definitions of religion, religious belief, and religious exercise. And the struggle is ongoing. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) protects “religious exercise” in the land-use context. If a claimant can prove that its religious exercise is substantially burdened by a land ordinance or zoning regulation, it may receive an exemption.

Although RLUIPA offers a definition of “religious exercise,” it remains unclear just what types of land uses …

Constructing A Legal Framework For The Expansion Proposals Of Collection Museums, Colleen O’Leary

Duke Law Journal

In 2018, The Frick Collection, a museum featuring the private art collection of Henry Clay Frick and housed in the Frick family’s private residence, finally received approval from the New York City Landmarks Preservation Commission to expand its physical footprint to accommodate its growing number of visitors. Official sanctioning of the plan came after years of consternation, however, demonstrating the competing legal principles and conflicting interests that emerge when collection museums seek to expand their physical structures.

Collection museums, like the Frick, are institutions created from individuals’ private art collections that were themselves amassed to found and open the museum. …

Transferable Sovereignty: Lessons From The History Of The Congo Free State, Joseph Blocher, Mitu Gulati

Duke Law Journal

In November 1908, the international community tried to buy its way out of the century’s first recognized humanitarian crisis: King Leopold II’s exploitation and abuse of the Congo Free State. And although the oppression of Leopold’s reign is by now well recognized, little attention has been paid to the mechanism that ended it—a purchased transfer of sovereign control. Scholars have explored Leopold’s exploitative acquisition and ownership of the Congo and their implications for international law and practice. But it was also an economic transaction that brought the abuse to an end.

The forced sale of the Congo Free State is …

Backdoor Purposivism, Anita S. Krishnakumar

Duke Law Journal

It has become standard among statutory interpretation commentators to declare that, “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined since its heyday in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at …

Retroactive Diplomatic Immunity, Anna Raphael

Duke Law Journal

When German tennis star Boris Becker attempted to become a diplomat of the Central African Republic in 2018 to avoid bankruptcy proceedings in the United Kingdom, much of the world ridiculed his efforts. But his actions begged a genuine question: Can an individual become a diplomat so that his or her past actions are immunized from prosecution or suit, even after the actions have occurred or court proceedings have been instituted? In the United States, the answer appears to be yes. On at least two occasions, federal courts have allowed such retroactive applications of diplomatic immunity in cases involving allegations …

Volume 104, Number 1 (Spring 2020)

Judicature

No abstract provided.

Questioning The Definition Of "Sex" In Title Vii: Bostock V. Clayton County, Ga., Katherine Carter

Duke Journal of Constitutional Law & Public Policy Sidebar

In October of 2019, the Supreme Court heard the arguments of two cases presenting the same inquiry: whether Title VII’s prohibition on sex discrimination encompasses discrimination on the basis of sexual orientation. Currently, twenty-one states as well as the District of Columbia expressly prohibit discrimination based on sexual orientation by statute or regulation. Other states offer protection in the form of agency interpretation or court ruling. However, for the remaining states with no established protections, Title VII stands as the only potential safeguard against sexual orientation discrimination.

The following Commentary considers the case of Gerald Bostock, a gay man from …

Contracting Free From Racial Animus: Comcast Corporation V. National Association Of African American-Owned Media And Entertainment Studios, Catherine Tarantino

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States has come a long way in promoting racial equality since the 1866 and 1964 Civil Rights Acts, but racial animus still plays an impermissible role in many contracting and employment decisions. Comcast Corporation v. National Association of African American-Owned Media and Entertainment Studios offers the Supreme Court the opportunity to decide which causal standard applies to claims alleging racial bias in contracting under 42 U.S.C. § 1981. Specifically, the Court will decide whether § 1981 requires a plaintiff to demonstrate that racial animus was the but-for cause or simply a motivating-factor in the defendant’s refusal to contract. …

Kahler V. Kansas: The End Of The Insanity Defense?, Eric Roytman

Duke Journal of Constitutional Law & Public Policy Sidebar

In 1995, Kansas, along with a small number of other states, passed a statute abrogating the widely recognized common law insanity defense. At common law, a defendant could raise the defense when a mental illness impaired his ability to distinguish right from wrong, allowing him to escape liability even when the elements of the crime were otherwise fulfilled. However, under Kansas’ statutory scheme, evidence of a defendant’s mental illness can only be used to negate the mens rea element of the offense. In other words, evidence of mental illness is only relevant when it shows that the defendant lacked the …

Motherhood As Misogyny, Jane H. Aiken

Women & Law

No abstract provided.

Carrying On 'Korematsu:' Reflections On My Father's Legacy, Karen Korematsu

Women & Law

No abstract provided.

Inching Toward Equal Dignity, Denise Brogan-Kator

Women & Law

No abstract provided.

Kafka's Court: Seeking Law And Justice At Guantanamo Bay, Alka Pradhan

Women & Law

No abstract provided.

The Nerve: Women Of Color In The Legal Academy, Khiara M. Bridges

Women & Law

No abstract provided.

Law School In A Different Voice, Melissa Murray

Women & Law

No abstract provided.

On Firsts, Feminism, And The Future Of The Legal Profession, Risa L. Goluboff

Women & Law

No abstract provided.

The Nineteenth Amendment: The Catalyst That Opened Courthouse Doors For Women On The Federal Bench, Ann Claire Williams

Women & Law

No abstract provided.

On Power & Indian Country, Maggie Blackhawk

Women & Law

No abstract provided.

Women & Law, Various Authors

Women & Law

No abstract provided.

Family, Gender, And Leadership In The Legal Profession, Kerry Abrams

Women & Law

No abstract provided.

State Attorneys General As Agents Of Police Reform, Jason Mazzone, Stephen Rushin

Duke Law Journal

State attorneys general can and should play an important role in remedying police violations of constitutional rights. In 1994, Congress enacted 34 U.S.C. § 12601 to authorize the U.S. attorney general to seek equitable relief against state and local police departments engaged in patterns or practices of misconduct. The Department of Justice (“DOJ”) has used this statute to reform some of the nation’s most troubled police departments. However, the DOJ has lacked the resources to pursue more than a few cases each year, and in 2017 the Trump administration announced it would no longer enforce § 12601.

In response, some …

“Foreign Agents” In An Interconnected World: Fara And The Weaponization Of Transparency, Nick Robinson

Duke Law Journal

The Foreign Agents Registration Act (“FARA”) is a sweeping and generally underenforced public-disclosure statute. Enacted in 1938, FARA was used during World War II to target fascist propaganda, but by the 1960s its enforcement had shifted to lobbyists and public-relations firms for foreign governments. After the 2016 presidential election, FARA has gained favor among policymakers and prosecutors as a central tool to respond to a range of foreign influence in U.S. politics, including foreign lobbying, electioneering, and disinformation.

This Article argues that FARA’s breadth creates substantial risk that it will be used in a politicized manner. In the past decade, …