Law Commons^™

Looking Beyond The Easel: Artists’ Contexts And Resale Payments, Deborah A. Demott

Duke Journal of Gender Law & Policy

No abstract provided.

Federal Prosecutorial Independence, Todd David Peterson

Duke Journal of Constitutional Law & Public Policy

Of all the controversial presidential actions during President Trump’s first three years in office, few challenged the norms of presidential behavior more than his constant barrage of attacks on his own Department of Justice. President Trump violated traditional norms governing the relationship between the White House and the Department of Justice in two distinct ways. First, on Twitter and in other public statements, he repeatedly called upon the Department to investigate political opponents. Second, the President repeatedly attacked the Department’s investigation of Russian interference with the 2016 presidential election (“the Mueller investigation”) and other investigations relating to the misconduct of …

A Revised Revisionist Position In The Law Of Nations Debate, David M. Howard

Duke Journal of Constitutional Law & Public Policy

One of the most contentious debates in the legal field has continued for decades over the question: is customary international law incorporated into U.S. domestic law? This question has sparked controversy that has resulted in multiple positions but no definite answer—the modern position with Dean Harold Koh and Professor Carlos Vasquez to the revisionist position with Professors Curtis Bradley and Jack Goldsmith. The U.S. Supreme Court has declined to answer this question while acknowledging the importance of its impact on U.S. law. The latest case before the Supreme Court—Jesner v. Arab Bank—touched upon this debate once again, and …

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson

Duke Journal of Constitutional Law & Public Policy

The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns …

Editors’ Note, Duke Journal Of Gender Law & Policy Editors

Duke Journal of Gender Law & Policy

No abstract provided.

Foreword: Gender Journals And Gender Equality: Reflections On Twenty-Five Years Of The Duke Journal Of Gender Law And Policy, Kerry Abrams

Duke Journal of Gender Law & Policy

This Twenty-fifth Anniversary Volume of the Duke Journal of Gender Law and Policy is dedicated to Katharine T. Bartlett, A. Kenneth Pye Distinguished Professor of Law Emerita. She is a path-breaking scholar, inspiring leader, dynamic teacher, and loyal friend. Thank you, Kate, for your many contributions to furthering gender equality for generations of lawyers, students, and scholars.

Gender Law: After Twenty-Five Years, Katharine T. Bartlett

Duke Journal of Gender Law & Policy

No abstract provided.

Prosecuting Sexual Exploitation And Trafficking Abroad: Congress, The Courts, And The Constitution, Sara Sun Beale

Duke Journal of Gender Law & Policy

No abstract provided.

Domestic Violence And The Home-Centric Second Amendment, Joseph Blocher

Duke Journal of Gender Law & Policy

The most prominent line-drawing debate in Second Amendment law and scholarship is whether and to what degree the right to keep and bear arms extends outside the home. Inside the home, the right is thought to be strongest, as private interests are at their apex and governmental interests are correspondingly weaker. But an uncritical acceptance of this home-centric Second Amendment is not well-equipped to account for the intersection between guns and domestic violence (DV). For women in particular, domestic violence in the home is a more significant threat than assault by a stranger, and studies have shown that the availability …

Gender And International Trade Policy: Economic Nostalgia And The National Security Steel Tariffs, Rachel Brewster

Duke Journal of Gender Law & Policy

No abstract provided.

Re-Affirming The Value Of The Sports Exception To Title Ix’S General Non-Discrimination Rule, Doriane Lambelet Coleman, Michael J. Joyner, Donna Lopiano

Duke Journal of Gender Law & Policy

No abstract provided.

Annie Get Your Gun: The Constitution, Women, And Involuntary Service In Combat, Charles J. Dunlap Jr.

Duke Journal of Gender Law & Policy

No abstract provided.

Working To Fail, Sara Sternberg Greene

Duke Journal of Gender Law & Policy

No abstract provided.

In Harm’S Way: Gender And Human Rights In National Security, Jayne C. Huckerby

Duke Journal of Gender Law & Policy

No abstract provided.

Me Too? Race, Gender, And Ending Workplace Sexual Harassment, Trina Jones, Emma E. Wade

Duke Journal of Gender Law & Policy

No abstract provided.

Constitutional Pronouns, Darrell A. H. Miller

Duke Journal of Gender Law & Policy

No abstract provided.

Why The Nineteenth Amendment Matters Today: A Guide For The Centennial, Neil S. Siegel

Duke Journal of Gender Law & Policy

No abstract provided.

Chaos, Accomplishment, And Work, Or, What I Learned On Paternity Leave, Ernest A. Young

Duke Journal of Gender Law & Policy

No abstract provided.

“We Will See That You Are Troubled Right Along”: Women And The Politics Of The Early Federal Income Tax, Lawrence Zelenak

Duke Journal of Gender Law & Policy

No abstract provided.

Journal Staff

Duke Journal of Gender Law & Policy

No abstract provided.

Patents And State Constitutionally Protected Speech, Dan L. Burk

Duke Journal of Constitutional Law & Public Policy

Recent American patent scholarship has begun to explore the intersection of the patent system and guarantees of expressive freedom, noting that patents may impinge on the First Amendment to the Federal Constitution and chill or prohibit protected speech. But guarantees of expressive freedom are not limited to the Federal Constitution; they are also found in state constitutional provisions, some of which offer broader protection than that guaranteed in the First Amendment. In this essay I examine the relationship between federally issued patents and the guarantees of expressive freedom found in state constitutions. State constitutions vary in their wording and interpretation, …

Goodbye To Concurring Opinions, Meg Penrose

Duke Journal of Constitutional Law & Public Policy

Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors. The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions.

The modern Court writes more separate opinions than past courts. It is becoming far too common …

Marriage, Domicile And The Constitution, Mark Strasser

Duke Journal of Constitutional Law & Public Policy

In three of the major right to marry cases in which the plaintiffs challenged their domicile’s refusal to permit them to marry, the couples had married in a sister state in accord with local law. In none of these cases did the Court address the conditions under which states, as a constitutional matter, must recognize marriages validly celebrated in another state. This article argues that the position reflected in the First and Second Restatements of the Conflicts of Law captures the United States Constitution’s approach. A marriage valid in the states of celebration and domicile at the time of its …

W(H)Ither Glucksberg?, Ronald Turner

Duke Journal of Constitutional Law & Public Policy

This article is a tale of two significant United States Supreme Court decisions interpreting and applying the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Washington v. Glucksberg, the Court held that an asserted right to physician-assisted suicide is not a fundamental liberty interest protected by the clause because it is not a right deeply rooted in this nation's history and tradition. More recently, in Obergefell v. Hodges, the Court held that state laws prohibiting same-sex marriage violated the Due Process Clause. In so holding, the Obergefell Court departed from Glucksberg’s history-and-tradition …

Masterpiece Cakeshop And Tolerance As A Constitutional Mandate: Strategic Compromise In The Enactment Of Civil Rights Laws, Samuel A. Marcosson

Duke Journal of Constitutional Law & Public Policy

The Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission took up the question whether a state law barring discrimination on the basis of sexual orientation could be applied to a business whose owner had religious objections to participating in a same-sex wedding. The decision turned on the majority’s finding that the Commission’s ruling against Masterpiece Cakeshop was tainted by anti-religious animus, an impermissible basis for government action. The Court did not need to reach the broader question of whether a law like Colorado’s could constitutionally be applied if the agency acted without the impermissible animus. In …

“Souls Aren’T Saved Just In Church Buildings”: Defining “Religious Exercise” Under The Religious Land Use And Institutionalized Persons Act, Taylor Luckey Brennan

Duke Law Journal

Throughout its First Amendment jurisprudence, the Supreme Court has acknowledged the difficulty inherent in determining the scope of the multivalent term “religion.” The Court has repeatedly struggled to articulate workable definitions of religion, religious belief, and religious exercise. And the struggle is ongoing. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) protects “religious exercise” in the land-use context. If a claimant can prove that its religious exercise is substantially burdened by a land ordinance or zoning regulation, it may receive an exemption.

Although RLUIPA offers a definition of “religious exercise,” it remains unclear just what types of land uses …

Constructing A Legal Framework For The Expansion Proposals Of Collection Museums, Colleen O’Leary

Duke Law Journal

In 2018, The Frick Collection, a museum featuring the private art collection of Henry Clay Frick and housed in the Frick family’s private residence, finally received approval from the New York City Landmarks Preservation Commission to expand its physical footprint to accommodate its growing number of visitors. Official sanctioning of the plan came after years of consternation, however, demonstrating the competing legal principles and conflicting interests that emerge when collection museums seek to expand their physical structures.

Collection museums, like the Frick, are institutions created from individuals’ private art collections that were themselves amassed to found and open the museum. …

Journal Staff

Duke Law Journal

No abstract provided.

Transferable Sovereignty: Lessons From The History Of The Congo Free State, Joseph Blocher, Mitu Gulati

Duke Law Journal

In November 1908, the international community tried to buy its way out of the century’s first recognized humanitarian crisis: King Leopold II’s exploitation and abuse of the Congo Free State. And although the oppression of Leopold’s reign is by now well recognized, little attention has been paid to the mechanism that ended it—a purchased transfer of sovereign control. Scholars have explored Leopold’s exploitative acquisition and ownership of the Congo and their implications for international law and practice. But it was also an economic transaction that brought the abuse to an end.

The forced sale of the Congo Free State is …

Backdoor Purposivism, Anita S. Krishnakumar

Duke Law Journal

It has become standard among statutory interpretation commentators to declare that, “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined since its heyday in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at …