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Articles 181 - 198 of 198
Full-Text Articles in Law
Journal Staff
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Congress Can’T Trade America’S “Air”: Copyright, The “Kindred Subject Of Patent”, Michael P. Goodman Ph.D.
Congress Can’T Trade America’S “Air”: Copyright, The “Kindred Subject Of Patent”, Michael P. Goodman Ph.D.
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Requiem For Section 1983, Paul D. Reingold
Requiem For Section 1983, Paul D. Reingold
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Rights And The Religion Clauses, Frank S. Ravitch
Rights And The Religion Clauses, Frank S. Ravitch
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Journal Staff
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Reforming Eyewitness Identification Procedures Under The Fourth Amendment, Sarah Anne Mourer
Reforming Eyewitness Identification Procedures Under The Fourth Amendment, Sarah Anne Mourer
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Demarcating The Right To Gather News: A Sequential Interpretation Of The First Amendment, Erik Ugland
Demarcating The Right To Gather News: A Sequential Interpretation Of The First Amendment, Erik Ugland
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Why Originalism Won’T Die - Common Mistakes In Competing Theories Of Judicial Interpretation, Tara Smith
Why Originalism Won’T Die - Common Mistakes In Competing Theories Of Judicial Interpretation, Tara Smith
Duke Journal of Constitutional Law & Public Policy
In the debate over proper judicial interpretation of the law, the doctrine of Originalism has been subjected to numerous seemingly fatal criticisms. Despite the exposure of flaws that would normally bury a theory, however, Originalism continues to attract tremendous support, seeming to many to be the most sensible theory on offer. This Article examines its resilient appeal (with a particular focus on Scalia’s Textualism). By surveying and identifying the fundamental weaknesses of three of the leading alternatives to Originalism (Popular Will theory, Dworkin’s value theory, and Judicial Minimalism), the Article demonstrates that the heart of Originalism’s appeal rests in its …
A Visible Radiation: Interpreting The History Of The Eleventh Amendment As Foreign Policy To Circumscribe The Treaty Power, Michael T. Schwaiger
A Visible Radiation: Interpreting The History Of The Eleventh Amendment As Foreign Policy To Circumscribe The Treaty Power, Michael T. Schwaiger
Duke Journal of Constitutional Law & Public Policy
In the longstanding debate over the proper place of the Treaty Power in the Constitution's federal structure, on the one hand there are Federalists and on the other hand there are federalists. During the ratification of the Constitution, many Federalists believed the national government needed an expansive Treaty Power to preserve the nascent union. Today, many federalists see such a Treaty Power as a potential threat to the sovereignty of the states. Between 1998 and 2000, the Michigan Law Review published a series of articles by Curtis Bradley and David Golove on competing conceptions of how the Treaty Power fits …
Congressional Devolution Of Immigration Policymaking: A Separation Of Powers Critique, Roger C. Hartley
Congressional Devolution Of Immigration Policymaking: A Separation Of Powers Critique, Roger C. Hartley
Duke Journal of Constitutional Law & Public Policy
For roughly a decade, federal legislation has devolved to the states some of Congress's authority to adopt immigration policies that discriminate against permanent resident aliens. Equal protection challenges to discriminatory state policies so authorized by Congress raise the knotty issue of the appropriate scope of judicial review. Courts remain divided. The source of the difficulty is that the equal protection "congruence principle" is not applicable to alienage discrimination. Unlike equal protection cases throughout most of constitutional law, the judiciary deploys different standards of judicial review in alienage discrimination cases depending on whether the discrimination arises under federal or state law. …
Coming Full Circle: The Journey From Separate But Equal To Separate And Unequal Schools, Robert A. Garda Jr.
Coming Full Circle: The Journey From Separate But Equal To Separate And Unequal Schools, Robert A. Garda Jr.
Duke Journal of Constitutional Law & Public Policy
In this article, Professor Garda explains how the "separate but equal" doctrine rejected in Brown became the guiding principle in modern education reform. He tracks the evolution of education reform from integration to finance reform to the standards based accountability and freedom of choice reforms embraced in the No Child Left Behind Act to explain why racially separate schools are no longer considered inherently unequal. The desegregation movement's failure to remedy the de facto school segregation resulting from private residential choice dovetailed with school finance reform to make "separate" schools socially acceptable, so long as the schools were equitably funded …
Does The Declaration Of Independence Pass The Lemon Test?, Monte Kuligowski
Does The Declaration Of Independence Pass The Lemon Test?, Monte Kuligowski
Duke Journal of Constitutional Law & Public Policy
In 2004, Walt Disney Pictures released the motion picture, “National Treasure.” The main character, Benjamin Gates, discovers that the United States Declaration of Independence contains a treasure map on the backside of its old parchment, leading to unfathomable wealth of unprecedented historic significance. Gates discovers the symbols of the map because they are not apparent to the natural eye. One must look through a special lens to find the treasure. So it is with the real Declaration. We need not look to fantasy to discover unfathomable wealth of unprecedented historic significance. Hidden from the dualistic, secular eye, we find in …
Journal Staff
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
The Real Story Behind The Justice Department’S Implementation Of Section 5 Of The Vra: Vigorous Enforcement, As Intended By Congress, Mark A. Posner
The Real Story Behind The Justice Department’S Implementation Of Section 5 Of The Vra: Vigorous Enforcement, As Intended By Congress, Mark A. Posner
Duke Journal of Constitutional Law & Public Policy
This Article examines the manner in which the United States Department of Justice has carried out its responsibility for enforcing the preclearance requirement of Section 5 of the Voting Rights Act since its enactment in 1965. The Justice Department plays a central and preeminent role in the review of new voting laws and procedures adopted by Section 5 jurisdictions, and as Congress moves this year to extend Section 5 beyond its current 2007 expiration date, the question whether the Department has faithfully implemented Section 5 may play an important part in the anticipated Supreme Court review of the constitutionality of …
Why The Supreme Court Was Wrong About The Solomon Amendment, Erwin Chemerinsky
Why The Supreme Court Was Wrong About The Solomon Amendment, Erwin Chemerinsky
Duke Journal of Constitutional Law & Public Policy
The Supreme Court in Rumsfeld v. FAIR abandoned basic First Amendment principles. The decision cannot be reconciled with other cases concerning freedom of speech and association. Indeed, if followed, Rumsfeld v. FAIR sets a disturbing and dangerous precedent.
Genderless Marriage, Institutional Realities, And Judicial Elision, Monte Neil Stewart
Genderless Marriage, Institutional Realities, And Judicial Elision, Monte Neil Stewart
Duke Journal of Constitutional Law & Public Policy
The stuff of the marriage debate is not static. That is particularly true in the courts, where the legal definition of marriage is debated most thoroughly and most consequentially. This article addresses one of the new arguments advanced in support of man/woman marriage now drawing judicial attention, the argument from social institutional studies. The social institutional argument is a sufficient answer to the variety of constitutional challenges leveled against man/woman marriage. Yet to date, the courts holding for genderless marriage have chosen (consciously it appears) to elude rather than engage argument.
Popular Sovereignty, Judicial Supremacy, And The American Revolution: Why The Judiciary Cannot Be The Final Arbiter Of Constitutions, William J. Watkins Jr.
Popular Sovereignty, Judicial Supremacy, And The American Revolution: Why The Judiciary Cannot Be The Final Arbiter Of Constitutions, William J. Watkins Jr.
Duke Journal of Constitutional Law & Public Policy
The development of constitutional government in Great Britain and America is inseparable from the debate and the conflict over sovereignty. In Britain, parliamentary sovereignty triumphed over the divine right of kings to form the foundation of British liberty. In America, popular sovereignty triumphed over parliamentary/legislative sovereignty to render government the servant of the people. Without acceptance of popular sovereignty, judicial review would likely be unknown in the United States. Under parliamentary/legislative sovereignty, the legislative body exercises ultimate authority over statutory law and fundamental law. The legislature can make or repeal law as it sees fit. With the exception of revolution, …
Journal Staff
Duke Journal of Constitutional Law & Public Policy
No abstract provided.