Law Commons^™

Pleading For A Bargain: The Upcoming Debate Over Competing Standards Of Prejudice In Missouri V. Frye, Ian Hampton

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Forbidden Territory Or Well-Defined Boundaries? M.B.Z. V. Clinton And The Overzealous Application Of The Political Question Doctrine, Andrew Hand

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Crying Wolfish: The Upcoming Challenge To Blanket Strip-Search Policies In Florence V. Board Of Chosen Freeholders, Aaron Johnson

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Golan V. Holder: Congressional Power Under The Copyright Clause And The First Amendment, Claire Fong

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

It’S My Church And I Can Retaliate If I Want To: Hosanna-Tabor And The Future Of The Ministerial Exception, Brad Turner

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Bullcoming V. New Mexico: Revisiting Analyst Testimony After Melendez-Diaz, Alex Herskowitz

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

The Significance Of It All: Corporate Disclosure Obligations In Matrixx Initiatives, Inc. V. Siracusano, Siobhan Innes-Gawn

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

A Deal Is A Deal In The West, Or Is It? Montana V. Wyoming And The Yellowstone River Compact, Shiran Zohar

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

A Father’S Presence: Flores-Villar V. United States And Equal Protection, Jeffrey Hochstetler

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Lacking Swiss Precision: The First-Sale Doctrine In Costco V. Omega, Justin Yedor

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

The More Things Change, The More They Stay The Same: Schwarzenegger V. Entertainment Merchants Association, Beatrice M. Hahn

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Bruesewitz V. Wyeth: The “Unavoidable” Vaccine Problem, Sara Wexler

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Staub V. Proctor Hospital: Cleaning Up The Cat’S Paw, Hannah Banks

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Harrington V. Richter: Aedpa Deference And The Right To Effective Counsel, Kara Duffle

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Snyder V. Phelps: First Amendment Boundaries On Speech-Based Tort Claims, Michael Villeggiante

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Viewpoint Neutrality And Government Speech, Joseph Blocher

Faculty Scholarship

Government speech creates a paradox at the heart of the First Amendment. To satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids: viewpoint discrimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City, Utah v. Summum, the …

Popular Constitutionalism And The State Attorneys General, Joseph Blocher

Faculty Scholarship

In her article Dead or Alive: Originalism as Popular Constitutionalism in Heller, Professor Reva Siegel argued that the Supreme Court’s opinion in District of Columbia v. Heller relied on originalism to enforce understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. In this Response, Professor Joseph Blocher argues that those understandings reappeared in McDonald v. City of Chicago, in part through the efforts of thirty-eight state attorneys general (SAGs) who filed an amicus brief urging the Court to incorporate the Second Amendment against the states. The SAGs invoked federalism, but their arguments …

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell

Faculty Scholarship

In this Article, Powell argues that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power-whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled. Part II of the Article first addresses the question before the Court in Comstock, which was limited to a pure question of Article I law: is a specific provision of a …

Retail Rebellion And The Second Amendment, Darrell A. H. Miller

Faculty Scholarship

When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for self-defense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals -- not just communities -- have the right to protect themselves from public violence. Individuals -- not just militias -- have the right to defend themselves against tyranny. In McDonald …

The Conflicted Assumptions Of Modern Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Contribution to Symposium - The Nature of Judicial Authority: A Reflection on Philip Hamburger's Law and Judicial Duty

Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects …

Case For Calling An Article V Convention, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioner, Ernest A. Young

Faculty Scholarship

No abstract provided.

Constitutionalizing Local Politics, Joseph Blocher, Ilan Graff

Faculty Scholarship

No abstract provided.

Transforming Property Into Speech, Joseph Blocher

Faculty Scholarship

No abstract provided.

Guns, Inc.: Citizens United, Mcdonald, And The Future Of Corporate Constitutional Rights, Darrell A. H. Miller

Faculty Scholarship

The Supreme Court began its 2009 Term by addressing the constitutional rights of corporations. It ended the Term by addressing the incorporated rights of the Constitution. In Citizens United v. Federal Election Commission, a five-member majority of the Court held that corporations have a First Amendment right to spend their own money on political advocacy. A corporation generally is no different than a natural person when it comes to the First Amendment - at least as it relates to political speech. In McDonald v. City of Chicago, a plurality of the Court held that the Second Amendment to the United …

Crisis In The Legal Profession: Don’T Mourn, Organize!, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Roberts’ Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher

Faculty Scholarship

No abstract provided.

Government Property And Government Speech, Joseph Blocher

Faculty Scholarship

The relationship between property and speech is close but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have – physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship …

Between Liberalism And Theocracy, John D. Inazu

Faculty Scholarship

Our symposium conveners have focused us on “the relationship between liberalism and Christianity and their influence on American constitutionalism.” My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for the relationship between church and state. By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are prone to …