Law Commons^™

Let History Repeat Itself: Solving Originalism's History Problem In Interpreting The Establishment Clause, Neil Joseph

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court's Establishment Clause jurisprudence is all over the place. The current justices have widely divergent views on the Establishment Clause's meaning, and the Lemon test has been widely panned by several justices. Originalist judges, however, have had a fairly consistent approach to interpreting the Establishment Clause. This largely stems from their reliance on history. This Note argues that their use of history in analyzing the Establishment Clause is flawed. Originalist Establishment Clause jurisprudence has been and is criticized for being unprincipled. And those criticisms are correct. Originalists encounter such criticism because the justices struggle to reconcile historical practice …

#Metoo: Why Now? What Next?, Deborah L. Rhode

Duke Law Journal

This Essay explores the evolution, implications, and potential of #MeToo. It begins by reviewing the inadequacies of sexual harassment law and policies that have permitted continuing abuse and that prompted the outrage that erupted in 2017. Discussion then turns to the origins of the #MeToo movement and assesses the changes that it has propelled. Analysis centers on which changes are likely to last and the concerns of fairness and inclusion that they raise. A final section considers strategies for sustaining the positive momentum of the movement and directing its efforts toward fundamental reform.

Beyond Bias In Diversity Jurisdiction, Scott Dodson

Duke Law Journal

The long-running debate over the propriety and proper scope of diversity jurisdiction has always centered on the traditional justification for diversity jurisdiction: the need to avoid actual or perceived state court bias against out-of-state parties. Supporters of diversity jurisdiction assert that such bias continues to justify diversity jurisdiction, while opponents argue that it does not. This Article argues that both sides have it wrong. Supporters are wrong that out-of-state bias and its perception are sufficient to justify diversity jurisdiction today. Yet opponents are wrong that the lack of bias supports the abolition or extreme restriction of diversity jurisdiction. The problem …

Journal Staff

Duke Law Journal

No abstract provided.

Insuring Nature, Carolyn Kousky, Sarah E. Light

Duke Law Journal

Scholars and policymakers have argued that insurance can shape behavior in ways that mitigate climate risks, such as by providing financial incentives to property owners to safeguard their property from increasingly intense hurricanes or from the risk of sea-level rise. But natural ecosystems like coral reefs, mangroves, and forest ecosystems can themselves protect property from these increased climate risks. This Article turns the climate governance literature on its head, examining the circumstances under which it is possible to insure nature itself in order to preserve these critical ecosystem services in the face of a changing climate.

Dazed And Confused: Revamping The Sec’S Unpredictable Calculation Of Civil Penalties In The Technological Era, Samuel N. Liebmann

Duke Law Journal

Twenty-first-century problems cannot be solved with twentieth-century solutions. This applies with particular force to securities regulation, in which regulators must constantly adapt to rapid financial innovation. In an era of high-frequency trading and unprecedented market connectivity, the SEC has struggled to apply its existing regulatory framework. Specifically, the Commission’s tiered civil-penalty regime—a remnant of the 1990 Penny Stock Reform Act—is outdated and presents a number of challenges as applied to sophisticated trading violations. Primarily, the current structure, which allows Administrative Law Judges to punish financial misconduct for each illegal “act or omission” that has occurred, permits excessive discretion to impose …

Grappling With Gebardi: Paring Back An Overgrown Exception To Conspiracy Liability, Jack C. Smith

Duke Law Journal

For over a century, the Supreme Court has recognized that someone can conspire to commit a crime that he is not eligible to commit himself. Though this broad rule seeks to prevent the exploitation of statutory loopholes by concerted bad actors, courts have recognized narrow exceptions to this baseline reach of conspiracy liability for nearly as long as the rule itself. One such exception was announced in Gebardi v. United States, a 1932 Supreme Court case concerning an early human trafficking law that criminalized the act of transporting a woman across state lines for prostitution. The Court held that …

From Memphis, With Love: A Model To Protect Protesters In The Age Of Surveillance, Farrah Bara

Duke Law Journal

In 1978, after two years of contentious litigation, the City of Memphis entered into a unique agreement with its citizens: it signed a consent decree, stipulating that it would halt its interference with First Amendment–protected activities. More specifically, the Consent Decree barred the City from surveilling protesters—the very conduct that triggered litigation.

Fast forward forty years. In 2018, narratives of police brutality dominated the nation’s headlines. Consequently, protesters demonstrated from the streets of Ferguson, Missouri to Oakland, California. And in Memphis, Tennessee, those who protested were often met with an all-too-familiar response—surveillance by the Memphis Police Department. That is until …

Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan

Duke Law Journal

Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic , subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.

Journal Staff

Duke Law Journal

No abstract provided.

Envisioning A Compulsory-Licensing System For Digital Samples Through Emergent Technologies, Christopher R. Sabbagh

Duke Law Journal

Despite the rapid development of modern creative culture, federal copyright law has remained largely stable, steeped in decades of tradition and history. For the most part, copyright finds strength in its stability, surviving the rise of recorded music, software programs, and, perhaps the most disruptive technology of our generation, the internet.

On the other hand, copyright’s resistance to change can be detrimental, as with digital sampling. Although sampling can be a highly creative practice, and although copyright purports to promote creativity, current copyright law often interferes with the practice of sampling. The result is a largely broken system: Those who …

Unqualified Ambassadors, Ryan M. Scoville

Duke Law Journal

In making appointments to the office of ambassador, U.S. presidents often select political supporters from outside the ranks of the State Department’s professional diplomatic corps. This practice is aberrational among advanced democracies and a source of recurrent controversy in the United States, and yet its merits and significance are substantially opaque: How do political appointees compare with career diplomats in terms of credentials? Are they less effective in office? Do they serve in some countries more than others? Have any patterns evolved over time? Commentators might assume answers to these questions, but actual evidence has been in short supply. In …

The Public Reception Of The “Path Forward” Report, Steven Kendall

Duke Law Journal Online

No abstract provided.

The Trajectory Of Forensics, Peter Neufeld

Duke Law Journal Online

No abstract provided.

Statistics And The Impact Of The 2009 Nas Report, Karen Kafadar

Duke Law Journal Online

No abstract provided.

Forensics At The Federal Level, Sue Ballou

Duke Law Journal Online

No abstract provided.

Three Big Ideas For A Future Of Less Work And A Three-Dimensional Alternative, Cynthia Estlund

Law and Contemporary Problems

No abstract provided.

Democratic Norms And Governance Experimentalism In Worker Centers, Sameer M. Ashar, Catherine L. Fisk

Law and Contemporary Problems

No abstract provided.

Work After The End Of Employment – An Introduction, Catherine L. Fisk

Law and Contemporary Problems

No abstract provided.

Antitrust, The Gig Economy, And Labor Market Power, Marshall Steinbaum

Law and Contemporary Problems

No abstract provided.

Fissuring And The Firm Exemption, Sanjukta Paul

Law and Contemporary Problems

No abstract provided.

Alt-Bargaining, Michael M. Oswalt

Law and Contemporary Problems

No abstract provided.

Note: How Do You Solve A Problem Like Law-Disruptive Technology?, William Sowers

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Volume 103, Number 3 (Fall 2019)

Judicature

No abstract provided.

A Declaration Of The Independence Of Cyberspace, John Perry Barlow

Duke Law & Technology Review

No abstract provided.

Inventing The Future: Barlow And Beyond, Cindy Cohn

Duke Law & Technology Review

No abstract provided.

Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder

Duke Law & Technology Review

No abstract provided.

The Past And Future Of The Internet: A Symposium For John Perry Barlow, James Boyle

Duke Law & Technology Review

No abstract provided.

Selling Wine Without Bottles: The Economy Of Mind On The Global Net, John Perry Barlow

Duke Law & Technology Review

No abstract provided.