Law Commons^™

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Further Punishing The Wrongfully Accused: Manuel V. City Of Joliet, The Fourth Amendment, And Malicious Prosecution, James R. Holley

Duke Journal of Constitutional Law & Public Policy Sidebar

Manuel v. City of Joliet is before the Supreme Court to determine whether detention before trial without probable cause is a violation of the Fourth Amendment, or whether it is merely a violation of the Due Process Clause. Every circuit except the Seventh Circuit treats this type of detention as being a violation of the Fourth Amendment; only the Seventh Circuit considers this question under the Due Process Clause. This commentary argues that the Supreme Court should look to its precedent, which clearly treats pretrial detention without probable cause as being a Fourth Amendment issue, and reverse the Seventh Circuit. …

Determining Classified Evidence’S “Primary Purpose”: The Confrontation Clause And Classified Information After Ohio V. Clark, J. Peter Letteney

Duke Law Journal Online

No abstract provided.

The Jurisdictional Difficulties Of Defining Charter-School Teachers Unions Under Current Labor Law, Amelia A. Degory

Duke Law Journal

As charter schools have flourished in form, they have also evolved in variety: parents can send their children to a trilingual immersion school or a school whose classes meet entirely online. The same flexibility that charters offer as an alternative to traditional public schools also makes them difficult to classify for purposes of labor law. When charter-school teachers form a union, it is not clear why the National Labor Relations Board (NLRB), and not a state labor analogue, should have jurisdiction over a charter-school labor dispute. And yet, the NLRB has asserted jurisdiction in most charter-school cases. This Note examines …

Fiduciary Voters?, D. Theodore Rave

Duke Law Journal

What does the majority owe the minority when issues are put to a vote? This question is central to direct democracy, where voters bypass the legislature and enact law directly. Some scholars have argued that voters in direct democracy bear fiduciary-like duties because they act as representatives when casting their ballots. The Supreme Court, by contrast, has suggested that voters are not agents of the people and thus have no fiduciary obligation. By focusing on whether direct-democracy voters are representatives who bear duties, both sides have framed the issue incorrectly. They have imported a legal tool—fiduciary duty—from private law designed …

Journal Staff

Duke Law Journal

No abstract provided.

Muscle Memory And The Local Concentration Of Capital Punishment, Lee Kovarsky

Duke Law Journal

The modern death penalty is not just concentrating in a handful of practicing states; it is disappearing in all but a few capitally active localities. Capital-punishment concentration, however, still surfaces more as the subject of casual observation than as the object of sophisticated academic inquiry. Normative and doctrinal analyses of the phenomenon are virtually nonexistent, in part because the current ability to measure and report concentration is so limited.

This Article is the first attempt to measure capital-punishment concentration rigorously, by combining different sources of county-level data and by borrowing quantitative tools that economists use to study market competition. The …

(In)Equitable Subrogation: The Federal Circuit’S Irrational And Unworkable Progress Payment Framework In Balboa, Will F. Hawkins

Duke Law Journal

American taxpayers spend more than $100 billion per year on federal construction projects. Yet massive construction delays, huge budget overruns, and unorganized contractors increase the cost of construction for the federal government. Passed in 1935, the Miller Act attempted to protect the federal government in the event that the contractor defaulted or was unable to complete the project. By requiring contractors to enlist third party “sureties” as guarantors on projects, the Miller Act provides the government with the assurance that another party will step in to complete projects if need be. Contractors are typically paid via periodic progress payments, with …

Mississippi V. Tennessee: Resolving An Interstate Groundwater Dispute, Peter G. Berris

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary explores the legal background and potential ramifications of Mississippi v. Tennessee: an original jurisdiction case involving a dispute over aquifer groundwater. Although the Supreme Court has addressed water disputes between states in the past, Mississippi v. Tennessee is the first such case to center exclusively on groundwater. As a result the Court has the opportunity to resolve a question of great relevance in an era where access to water is a recurring news story; is aquifer groundwater an interstate resource subject to equitable apportionment, or an intrastate resource subject to state sovereign ownership.

The Death Knell For The Death Penalty And The Significance Of Global Realism To Its Abolition From Glossip V. Gross To Brumfield V. Cain, Linda A. Malone

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Empirical Analysis And The Fate Of Capital Punishment, John J. Donohue

Duke Journal of Constitutional Law & Public Policy

In his dissenting opinion in Glossip v. Gross, Justice Breyer attempted to give content to the Supreme Court’s prior command in Atkins v. Virginia that unless the imposition of the death penalty “measurably contributes to one or both of [the legitimate penological goals of deterrence and retribution], it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” Justice Breyer’s opinion illuminates the central role that empirical studies have played in death penalty litigation since Furman v. Georgia on issues ranging from the lack of deterrence associated with the death …

Forty Years Of Death: The Past, Present, And Future Of The Death Penalty In South Carolina (Still Arbitrary After All These Years), John H. Blume, Lindsey S. Vann

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Geographic Distribution Of Us Executions, Frank R. Baumgartner, Woody Gram, Kaneesha R. Johnson, Arvind Krishnamurthy, Colin P. Wilson

Duke Journal of Constitutional Law & Public Policy

We review statistical patterns of the geographic distribution of US executions, compare them to homicides, and demonstrate extremely high degrees of concentration of executions in the modern period compared to previous historical periods. We further show that this unprecedented level of concentration has been increasing over the past 20 years. We demonstrate that it is virtually uncorrelated with factors related to homicides. Finally, we show that it corresponds to a statistical distribution associated with “self-reinforcing” processes: a power-law or exponential distribution.

These findings stand whether we look at individual counties within death-penalty states, across the 50 states of the United …

Un-Gregg-Ulated: Capital Charging And The Missing Mandate Of Gregg V. Georgia, Sherod Thaxton

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Challenges Of “Improving” The Modern Death Penalty, Douglas A. Berman

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

People Prefer System 2 Nudges (Kind Of), Cass R. Sunstein

Duke Law Journal

In the United States, the United Kingdom, Australia, and many other nations, those involved in law and policy have been exploring initiatives that preserve freedom of choice, or “nudges,” informed by behavioral science and promoting important public policy goals, such as improved health and safety. But there is a large and insufficiently explored difference between System 1 nudges, which target or benefit from automatic processing, and System 2 nudges, which target or benefit from deliberative processing. Graphic warnings and default rules are System 1 nudges; statistical information and factual disclosures are System 2 nudges. On philosophical grounds, it might seem …

To Erie Or Not To Erie: Do Federal Courts Follow State Statutory Interpretation Methodologies?, J. Stephen Tagert

Duke Law Journal

The Erie doctrine requires federal courts sitting in diversity jurisdiction to apply state substantive law if applying federal law would change the outcome of the case. If statutory interpretation methodologies affect the outcomes of cases and state courts give them stare decisis effect, does Erie require federal courts to use state interpretation methodologies when applying state substantive law? This Note examines whether federal courts are already applying state interpretation methodologies when they interpret state statutes by examining state statutory interpretation cases heard in Michigan federal courts interpreting Michigan statutes. This Note examines Michigan state cases because its supreme court established …

Leveling The Playing Field: Applying Federal Corporate Charging Considerations To Individuals, Nicole T. Amsler

Duke Law Journal

The American prison system is grappling with a well-publicized carceral crisis. In the words of former U.S. Attorney General Eric Holder, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” And, as a result of developments in federal law over the past few decades, the power of federal prosecutors to decide when and how to charge individuals with crimes is crucial to when and how American citizens go to prison.

Many ideas have been proposed to revise prosecutorial discretionary powers, but few have been heeded by the Department of …

Analyzing Avoidance: Judicial Strategy In Comparative Perspective, Erin F. Delaney

Duke Law Journal

Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of—or the evolution of popular societal consensus around—a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security.

Accepting this assumption arguendo, this Article seeks …

Journal Staff

Duke Law Journal

No abstract provided.

Institutions And The Second Amendment, Darrell A. H. Miller

Duke Law Journal

District of Columbia v. Heller ruptured the one institution—the militia—that courts had used for centuries to implement the right to keep and bear arms. If the question was “what arms?,” one looked to the militia to find an answer; if the question was “whose arms?,” again, one looked to the militia. Heller loosened the fit between the militia and the right, causing a welter of conflict as to what institutions now facilitate and constrain the Second Amendment. This Article attempts to restructure the inquiry into Second Amendment rights by drawing from the literature on institutionalism and constitutional law.

Although the …

Icrc, Nato And The U.S. – Direct Participation In Hacktivities – Targeting Private Contractors And Civilians In Cyberspace Under International Humanitarian Law, Ido Kilovaty

Duke Law & Technology Review

Cyber-attacks have become increasingly common and are an integral part of contemporary armed conflicts. With that premise in mind, the question arises of whether or not a civilian carrying out cyber-attacks during an armed conflict becomes a legitimate target under international humanitarian law. This paper aims to explore this question using three different analytical and conceptual frameworks while looking at a variety of cyber-attacks along with their subsequent effects. One of the core principles of the law of armed conflict is distinction, which states that civilians in an armed conflict are granted a set of protections, mainly the protection from …

Police Body Worn Cameras And Privacy: Retaining Benefits While Reducing Public Concerns, Richard Lin

Duke Law & Technology Review

Recent high-profile incidents of police misconduct have led to calls for increased police accountability. One proposed reform is to equip police officers with body worn cameras, which provide more reliable evidence than eyewitness accounts. However, such cameras may pose privacy concerns for individuals who are recorded, as the footage may fall under open records statutes that would require the footage to be released upon request. Furthermore, storage of video data is costly, and redaction of video for release is time-consuming. While exempting all body camera video from release would take care of privacy issues, it would also prevent the public …

The Silence After The Beep: Envisioning An Emergency Information System To Serve The Visually Impaired, Elana Reman

Duke Law & Technology Review

Due to a series of legal and regulatory setbacks, media accessibility regulations for consumers who are blind and visually impaired have lagged significantly behind those for deaf individuals. Until April 2014, when the Federal Communications Commission’s Emergency Information Order took effect, blind consumers were left “in the dark” when their safety mattered most—during weather emergencies—because visual emergency information displayed in the on-screen crawl during television programming was not accessible in an aural format. The Commission now mandates that this information be provided in an aural form through the secondary audio stream for linear programming viewed on televisions and mobile devices …

Volume 100, Number 3 (Autumn 2016)

Judicature

No abstract provided.

The Frontiers Of Peer-To-Peer Lending: Thinking About A New Regulatory Approach, William S. Warren

Duke Law & Technology Review

The growth of online alternative lending presents several advantages for both those seeking credit and those with excess capital to lend. Over the past decade, several different models of peer-to-peer lending have emerged in the US and U.K. Each of these models has developed in response to the different regulatory system it faces, which has led to the models’ different risk and reward profiles. However, the current regulatory framework for regulating peer-to-peer lending, especially in the U.S., leaves much to be desired. The inadequate regulatory regime not only hampers the potential for growth and further innovation in the industry, but …

On The Existence Of A Customary Rule Granting Functional Immunity To State Officials And Its Exceptions: Back To Square One, Micaela Frulli

Duke Journal of Comparative & International Law

No abstract provided.

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Categorizing Acts By State Officials: Attribution And Responsibility In The Law Of Foreign Official Immunity, Chimène I. Keitner

Duke Journal of Comparative & International Law

No abstract provided.