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Articles 1 - 30 of 77
Full-Text Articles in Law
Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar
Judge James A. Wynn, Originalism, And The Juridical/Judicial Role, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Judging Without A J.D., Sara Sternberg Greene, Kristen M. Renberg
Judging Without A J.D., Sara Sternberg Greene, Kristen M. Renberg
Faculty Scholarship
One of the most basic assumptions of our legal system is that when two parties face off in court, the case will be adjudicated before a judge who is trained in the law. This Essay begins by showing that, empirically, the assumption that most judges have legal training does not hold true for many low-level state courts. Using data we compiled from all fifty states and the District of Columbia, we find that thirty-two states allow at least some low-level state court judges to adjudicate without a law degree, and seventeen states do not require judges who adjudicate eviction cases …
"Slack" In The Data Age, Shu-Yi Oei, Diane M. Ring
"Slack" In The Data Age, Shu-Yi Oei, Diane M. Ring
Faculty Scholarship
This Article examines how increasingly ubiquitous data and information affect the role of “slack” in the law. Slack is the informal latitude to break the law without sanction. Pockets of slack exist for various reasons, including information imperfections, enforcement resource constraints, deliberate nonenforcement of problematic laws, politics, biases, and luck. Slack is important in allowing flexibility and forbearance in the legal system, but it also risks enabling selective and uneven enforcement. Increasingly available data is now upending slack, causing it to contract and exacerbating the risks of unfair enforcement.
This Article delineates the various contexts in which slack arises and …
Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young
Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young
Faculty Scholarship
The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …
Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.
Martin, Ghana, And Global Legal Studies, H. Timothy Lovelace Jr.
Faculty Scholarship
This brief essay uses global legal studies to reconsider Dr. Martin Luther King, Jr.'s activism after Gayle v. Browder. During this undertheorized portion of King's career, the civil rights leader traveled the world and gained a greater appreciation for comparative legal and political analysis. This essay explores King's first trip abroad and demonstrates how King's close study of Kwame Nkrumah's approaches to law reform helped to lay the foundation for watershed moments in King's own life.
In To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr., renowned civil rights scholar and author, Adam …
Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett
Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett
Faculty Scholarship
Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual …
Race, Class, And Access To Civil Justice, Sara Sternberg Greene
Race, Class, And Access To Civil Justice, Sara Sternberg Greene
Faculty Scholarship
After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …
Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin
Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin
Faculty Scholarship
No abstract provided.
Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry
Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et Al. As Amici Curiae In Support Of Petitioners, Harold Hongju Koh, Thomas Buergenthal, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman, Sujit Choudhry
Faculty Scholarship
No abstract provided.
Contraception As A Sex Equality Right, Neil S. Siegel, Reva B. Siegel
Contraception As A Sex Equality Right, Neil S. Siegel, Reva B. Siegel
Faculty Scholarship
Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the 50th Anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception.
In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswold offered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would …
Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young
Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young
Faculty Scholarship
No abstract provided.
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Faculty Scholarship
No abstract provided.
Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller
Thirteenth Amendment And The Regulation Of Custom, Darrell A. H. Miller
Faculty Scholarship
Custom is an underdeveloped concept in Thirteenth Amendment jurisprudence. While a substantial body of work has explored the technical meaning of custom as it applies to § 1983 and, to a lesser extent, Congress’s power to enforce the Fourteenth Amendment, few scholars have offered sustained treatment of custom as a way to understand the meaning and scope of the Thirteenth Amendment. This gap exists despite the fact that Congress specifically identified custom as a subject of regulation when it passed the Civil Rights Act of 1866 and despite the fact that the Thirteenth Amendment operates directly on the behavior of …
A Quest For Fair And Balanced: The Supreme Court, State Courts, And The Future Of Same-Sex Marriage Review After Perry, Chase D. Anderson
A Quest For Fair And Balanced: The Supreme Court, State Courts, And The Future Of Same-Sex Marriage Review After Perry, Chase D. Anderson
Duke Law Journal
Gay rights advocates and social conservatives alike have criticized the Supreme Court for its recent decisions concerning sexual orientation. An examination of those decisions reveals that, taken together, they represent a surprisingly careful balance. The result is a principle of neutrality in which the Court has effectively demanded that states refrain from taking either side in the culture war surrounding sexual orientation. The true test of that neutrality principle will arise when the Court considers the constitutionality of a same-sex marriage ban. Thus far, challenges have taken place in state courts under state constitutions; those judges appear to have been …
Mandatory Arrest For Misdemeanor Domestic Violence: Is Alaska’S Arrest Statute Constitutional?, Paul A. Clark
Mandatory Arrest For Misdemeanor Domestic Violence: Is Alaska’S Arrest Statute Constitutional?, Paul A. Clark
Alaska Law Review
No abstract provided.
The Rights Of Others: Legal Claims And Immigration Outside The Law, Hiroshi Motomura
The Rights Of Others: Legal Claims And Immigration Outside The Law, Hiroshi Motomura
Duke Law Journal
This Article analyzes the rights of unauthorized migrants and elucidates how these noncitizens are incompletely but importantly integrated into the U.S. legal system. I examine four topics: (1) state and local laws targeting unauthorized migrants, (2) workplace rights and remedies, (3) suppression of evidence from an unlawful search or seizure, and (4) the right to effective counsel in immigration court. These four inquiries show how unauthorized migrants though unable to assert individual rights as directly as U.S. citizens in the same circumstances can nevertheless assert rights indirectly and obliquely by making transsubstantive arguments that fall into five general patterns. The …
Title Vii, Voluntary Compliance And Ricci: Rescuing Municipalities From A Legal ‘Backdraft’, Jared D. Stueckle
Title Vii, Voluntary Compliance And Ricci: Rescuing Municipalities From A Legal ‘Backdraft’, Jared D. Stueckle
Duke Journal of Gender Law & Policy
No abstract provided.
Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin
Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin
Duke Journal of Comparative & International Law
No abstract provided.
A Postscript To Struck By Stereotype, Ruth Bader Ginsburg
A Postscript To Struck By Stereotype, Ruth Bader Ginsburg
Duke Law Journal
No abstract provided.
Struck By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel
Struck By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel
Duke Law Journal
It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.(1)
The Limits Of Advocacy, Amanda Frost
The Limits Of Advocacy, Amanda Frost
Duke Law Journal
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called "issue creation"-that is, raising legal claims and arguments that the parties have overlooked or ignored-on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins and Mapp v. Ohio were decided on grounds never raised …
Transgendered In Alaska: Navigating The Changing Legal Landscape For Change In Gender Petitions, Leslie Dubois-Need, Amber Kingery
Transgendered In Alaska: Navigating The Changing Legal Landscape For Change In Gender Petitions, Leslie Dubois-Need, Amber Kingery
Alaska Law Review
No abstract provided.
Sentenced By Tradition: The Third-Party Custodian Condition Of Pretrial Release In Alaska, Elizabeth Johnston
Sentenced By Tradition: The Third-Party Custodian Condition Of Pretrial Release In Alaska, Elizabeth Johnston
Alaska Law Review
No abstract provided.
Does Gender Specificity In Constitutions Matter?, Laura E. Lucas
Does Gender Specificity In Constitutions Matter?, Laura E. Lucas
Duke Journal of Comparative & International Law
No abstract provided.
The Disparate Treatment Of Race And Class In Constitutional Jurisprudence, Mario L. Barnes, Erwin Chemerinsky
The Disparate Treatment Of Race And Class In Constitutional Jurisprudence, Mario L. Barnes, Erwin Chemerinsky
Law and Contemporary Problems
No abstract provided.
Abortion Post-Glucksberg And Post-Gonzales: Applying An Analysis That Demands Equality For Women Under The Law, Mary Kathryn Nagle
Abortion Post-Glucksberg And Post-Gonzales: Applying An Analysis That Demands Equality For Women Under The Law, Mary Kathryn Nagle
Duke Journal of Gender Law & Policy
Because the government has historically enacted laws criminalizing abortion to preserve traditional stereotypes regarding a woman's domestic and subordinate position in society,22 abortion regulations necessitate an Equal Protection Clause analysis. [...] this article will examine first how Gonzales and Glucksberg forecast Roe's now inevitable demise, and accordingly, why abortion regulations must now be evaluated under an Equal Protection Clause analysis- in place of the crumbling Due Process Clause framework.23 Finally, this article will explain how and why the Partial Birth Abortion Act of 2003 violates the Equal Protection Clause of the Fourteenth Amendment.
What’S The Constitution Got To Do With It? Regulating Marriage In Pakistan, Karin Carmit Yefet
What’S The Constitution Got To Do With It? Regulating Marriage In Pakistan, Karin Carmit Yefet
Duke Journal of Gender Law & Policy
[...] the supreme law of the land seems to embody a blatant contradiction. The Pakistani Constitution extends protection to an impressive catalog of fundamental rights, placing Pakistan in line with some of the most western-minded constitutional regimes in the world.3 At the same time, in contrast to the American-style constitutional commitment to separate church and state,4 the Pakistani regime is constitutionally committed to integrate the two, in the sense that all laws must conform to the injunctions of Islam as a condition of their constitutional validity.5 So the same Constitution that protects western fundamental rights also elevates Islamic law, a …
Restoring Rluipas Equal Terms Provision, Sarah Keeton Campbell
Restoring Rluipas Equal Terms Provision, Sarah Keeton Campbell
Duke Law Journal
The Religious Land Use and Institutionalized Persons Act's (RLUIPA) equal terms provision prohibits government from implementing a land-use regulation in a manner that treats religious assemblies and institutions less favorably than secular assemblies and institutions. Lower courts have only begun to interpret and apply RLUIPA's equal terms provision, but already they have significantly weakened its protections of religious liberty by giving the provision unnecessarily restrictive interpretations. Not surprisingly, in light of the Supreme Court's invalidation of the Religious Freedom Restoration Act of 1993 (RFRA), the lower courts' restrictive readings seen? driven by concerns that a broader interpretation would exceed Congress's …
What Can Brown Do For You?: Neutral Principles And The Struggle Over The Equal Protection Clause, Pamela S. Karlan
What Can Brown Do For You?: Neutral Principles And The Struggle Over The Equal Protection Clause, Pamela S. Karlan
Duke Law Journal
No abstract provided.
A Man’S Right To Choose His Surname In Marriage: A Proposal, Michael Mahoney Frandina
A Man’S Right To Choose His Surname In Marriage: A Proposal, Michael Mahoney Frandina
Duke Journal of Gender Law & Policy
[...] a brief history of marital and naming practices will outline how these two concepts have shifted to a primarily private issue today, as compared with the Middle Ages, when they were primarily public issues highly concerned with property matters. [...] naming involves important issues in the construction of one's identity.