Law Commons^™

Should U.S. Tax Law Be Constitutionalized? Centennial Reflections On Eisner V. Macomber (1920), Reuven Avi-Yonah

Duke Journal of Constitutional Law & Public Policy

The United States Supreme Court last decided a federal income tax case on constitutional grounds in 1920a century ago. The case was Eisner v. Macomber , and the issue was whether Congress had the power under the Sixteenth Amendment to include stock dividends in the tax base. The Court answered “no” because “income” in the Sixteenth Amendment meant “the gain derived from capital, from labor, or from both combined.” A stock dividend was not “income” because it did not increase the wealth of the shareholder.

Macomber was never formally overruled, and it is sometimes still cited by academics and practitioners …

Does Eliminating Life Tenure For Article Iii Judges Require A Constitutional Amendment?, David R. Dow, Sanat Mehta

Duke Journal of Constitutional Law & Public Policy

Beginning in the early 2000s, a number of legal academicians from across the political spectrum proposed eliminating life tenure for some or all Article III judges and replacing it with a term of years (or a set of renewable terms). These scholars were largely in agreement such a change could be accomplished only by a formal constitutional amendment of Article III. In this Article, Dow and Mehta agree with the desirability of doing away with life tenure but argue such a change can be accomplished by ordinary legislation, without the need for formal amendment. Drawing on both originalism and formalism, …

Social Media Defamation: A New Legal Frontier Amid The Internet Wild West, Hadley M. Dreibelbis

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Art Threats And First Amendment Disruption, Andrew Jensen Kerr

Duke Journal of Constitutional Law & Public Policy

The novel problem of art threats, typified by threatening rap lyrics, has destabilized our First Amendment regime. We have traditionally relied on industry gatekeepers like music labels or museum curators to determine what counts as art. However, with the advent of the Internet, amateur artists can share their aesthetic output with a public audience, bypassing the threshold quality control work of the Art World. This has forced courts to acknowledge foundational questions about what kind of art is covered by the First Amendment. In brief, it covers “good” art.

In this paper I offer a synthetic conception of the First …

"The Good Of Each Of The Parts": A Collective Action Understanding Of The Treaty Clause, Edward C. Beach Jr.

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Conceptual Conundrum At The Core Of The Kelo Dissent, Mark Kelman

Duke Journal of Constitutional Law & Public Policy

The “strict” public use requirement, articulated by Justice Thomas in his canonical Kelo dissent and adopted by a number of states in the wake of the decision, would bar any taking unless the condemned property would be owned, post-condemnation, by a governmental entity or a common carrier and “employed” directly by the public. Though purporting to establish a bright line rule, the test is highly indeterminate. Among other problems, it is impossible to determine what public “ownership” means, particularly when private parties may be bound (contractually or in fact) to use state-seized property in particular ways; equally impossible to determine …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Not A King: President Trump And The Case For Presidential Subpoena Reform, Robert J. Denault

Duke Journal of Constitutional Law & Public Policy Sidebar

In Trump v. Vance and Trump v. Mazars, the Supreme Court heard two expansive claims of presidential immunity from grand jury and Congressional subpoenas for the personal papers of the president. In both cases, the Court rejected the President’s claims. Despite winning both cases, the grand jury and Congress did not receive evidence relevant to potential misconduct by the President until after he left office—a remarkable feat for a President who did not win a single case or appeal in his effort to block either subpoena.

This Note argues for significant reforms in response to President Trump’s unprecedented success …

Missing The Mark: Nysrpa As A Vehicle To Clarify Inconsistencies In Mootness Doctrine, Leila Hatem

Duke Journal of Constitutional Law & Public Policy Sidebar

Federal mootness doctrine is far more confusing than helpful. Riddled with inconsistent jurisdictional outcomes, mootness doctrine lacks a unitary theoretical approach. This confusion results because the Court has historically characterized elements of the doctrine as either prudential or constitutional. Because the Court has reached the merits of otherwise moot claims, its doctrine is neither completely prudential nor constitutional. Rather, it is a messy hodge-podge of both.

This Note analyzes New York State Riffle & Pistol Association, Inc. v. The City of New York (“NYSRPA”) in light of this dichotomous framework and assesses how the opinion engages with the …

Who Protects Whom: Federal Law As A Floor, Not A Ceiling, To Protect Students From Inappropriate Use Of Force By School Resource Officers, Elsa Haag

Duke Journal of Constitutional Law & Public Policy Sidebar

Over the past forty years, students in the U.S. have experienced increasingly strict school discipline policies and increased police presence in schools. Sent into schools with the aim of improving security in the wake of mass shootings, school resource officers (SROs) are sworn law enforcement regularly assigned to schools. But there is a paucity of evidence that SROs are effective in preventing mass shootings or provide other significant benefits. Instead, research shows that the presence of SROs results in students achieving less and experiencing more physical and emotional harm, with long-term implications and costs for individuals and communities. As trained …

Interstate Burdens And Antitrust Federalism: A Reexamination Of Parker Immunity, John Sack

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court has largely immunized state action from Federal antitrust enforcement. However, this carte blanche immunity, while founded on federalism grounds, runs counter to a number of constitutional principles, and too easily allows states to impose costs on other states while reaping all the benefits of anti-competitive policies. While the Supreme Court has only scantily discussed revisiting this immunity, academics and the Federal Trade Commission have largely criticized the doctrine. The Sherman Act, described as taking on a constitutional standing, should seek to form a more perfect economic union, and our understanding of State Action Immunity should strive towards …

Tiktok Might Stop: Why The Ieepa Cannot Regulate Personal Data Privacy And The Need For A Comprehensive Solution, Alicia Faison

Duke Journal of Constitutional Law & Public Policy Sidebar

In August 2020, President Trump announced a ban on the popular app TikTok, citing the risk that TikTok could be sharing Americans’ personal data with the Chinese government. In doing so, President Trump used his powers under the International Emergency Economic Powers Act (IEEPA), which authorizes Presidents to impose economic sanctions in the face of a national emergency. Associating TikTok’s data mining practices with a national emergency raises interesting questions about the governance of our personal data: is there a national security risk and if so, how should data be protected? This Note argues that ineffective personal data privacy regulation …

A Fresh Start: Surveillance Tech And The Modern Law Firm, Titus R. Willis

Duke Law & Technology Review

The legal community is rapidly evolving: firms are more beholden to clients than ever, associates are growing more competitive with one another, and younger firm employees are more willing than ever to subject themselves to surveillance from their employers. These evolutions come alongside a boom in surveillance technology. Tech companies now provide services that can track every keystroke a lawyer makes on a company computer, analyze the content of their computer screens, or even develop algorithms to measure employee productivity. How does the modern law firm respond to these new technologies? How do they weigh their obligations to clients with …

Handle With Care: Constitutional Standards For Information Sharing In Medical-Correctional Transition, Andrew R. Hayes

Duke Journal of Constitutional Law & Public Policy Sidebar

Correctional institutions have an Eighth Amendment obligation to provide healthcare to inmates. In practice though, jails and prisons struggle to provide adequate care to millions of incarcerated individuals, roughly half of whom have at least one chronic health condition. As a result, harsh conditions of confinement routinely threaten the health of inmates who require specific medical accommodations. Recognizing this risk, the courts hold corrections institutions liable for harm when government officials are “deliberately indifferent” to prisoner medical needs.

Beginning with the HITECH Act of 2009, mainstream medicine embraced tools that eliminate gaps in medical communication. Today, most Americans rely on …

Exhausted And Confused: How Fry Complicated Obtaining Relief For Disabled Students, Chris Ricigliano

Duke Journal of Constitutional Law & Public Policy Sidebar

Congress guaranteed the right of disabled children to a Free Appropriate Public Education through legislation. The Individuals with Disabilities Education Act provides a mechanism for receiving redress when those educational services are denied. Before suing, representatives of disabled children must exhaust their claims administratively according to the procedures set by the states. However, how exactly to tell which kinds of wrongs are the denial of an education and subject to exhaustion has been a subject of much confusion. The Supreme Court in Fry v. Napoleon Community Schools tried to set up a framework for when exhaustion is required versus when …

Journal Staff

Law and Contemporary Problems

No abstract provided.

The Accessibility Of Credit And The Protection Of Consumers In The High-Cost Credit Sector: A Multifaceted Challenge, A Karim Aldohni

Law and Contemporary Problems

No abstract provided.

Resolving The Sustainable Finance Conundrum: Activist Policies And Financial Technology, Emilios Avgouleas

Law and Contemporary Problems

No abstract provided.

Financial Inclusion And The “War For Cash”, Federico Lupo-Pasini

Law and Contemporary Problems

No abstract provided.

Financial Inclusion, Access To Credit, And Sustainable Finance, John Linarelli, Steven L. Schwarcz, Ignacio Tirado

Law and Contemporary Problems

No abstract provided.

Scoping And Defining Financial Inclusion, Access To Credit, And Sustainable Finance, Steven L. Schwarcz, Theodore L. Leonhardt

Law and Contemporary Problems

No abstract provided.

Too Big To Care?: Financial Contracts And The Problem Of Transactional Asymmetry, Tt Arvind

Law and Contemporary Problems

No abstract provided.

(Re)Framing Student Loan Debt As A Commons, Victoria J. Haneman

Law and Contemporary Problems

No abstract provided.

Equality And Access To Credit: A Social Contract Framework, John Linarelli

Law and Contemporary Problems

No abstract provided.

Digital Financial Inclusion: Observations And Insights From Hong Kong’S Virtual Banks, Emily Lee

Law and Contemporary Problems

No abstract provided.

Regulating Sustainable Finance In Capital Markets: A Perspective From Socially Embedded Decentered Regulation, Iris H-Y Chiu

Law and Contemporary Problems

No abstract provided.

The Complex Implications Of Fintech For Financial Inclusion, Heather Hughes

Law and Contemporary Problems

No abstract provided.

Financial Inclusion And Banking Regulation: The Role Of Proportionality, Kern Alexander

Law and Contemporary Problems

No abstract provided.

Financial Inclusion, Access To Credit, And Sustainable Finance: What Role For The Uncitral Model Law On Secured Transactions?, Orkun Akseli

Law and Contemporary Problems

No abstract provided.

Keeping Up With China: Cfius And The Need To Secure Material Nonpublic Technical Knowledge Of Ai/Ml, Anthony Severin

Duke Law & Technology Review

Artificial intelligence (AI) and machine learning (ML) technologies will shape societies by the values they are programmed to respect. In part because of anti-competitive Chinese practices such as forced transfers of intellectual property (IP), companies based in the U.S. have lost the ability to compete in several fields. To avoid losing competitiveness in AI/ML sectors, the Committee on Foreign Investment in the United States (CFIUS) should promulgate rules blocking Chinese investors from acquiring ownership interests in U.S. companies when that ownership would allow access to material nonpublic technical knowledge of AI/ML. Such a categorical blacklist approach will limit forced transfers …