Law Commons^™

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Ninth Amendment And Natural Rights/Social Compact Theory: A Defense Of Fundamental Unenumerated Constitutional Rights In The Wake Of Dobbs, Joseph R. Guerra

Duke Journal of Constitutional Law & Public Policy

In ruling that the Due Process Clause of the Fourteenth Amendment does not protect a right to an abortion, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization relied on reasoning that casts serious doubt on the continued validity of other unenumerated constitutional rights. According to Dobbs, unenumerated rights cannot be recognized unless they are deeply rooted in this Nation's history and traditions, and have long enjoyed legal protection. In ruling that a right to abortion failed this test, the Court asserted that its decision did not undermine other previously recognized unenumerated rights, such as rights to …

Judging Requires Judgment, Justin Driver

Duke Law Journal

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

Originalism's Unbalanced Ledger, David Zaring

Duke Law Journal

This Essay examines the fundamental tension between originalism and cost-benefit analysis—the two dominant methodologies shaping modern, public law decision-making. Originalism, currently triumphant, prioritizes historical meaning and textual fidelity. It operates in stark contrast to cost-benefit analysis, the byword of the administrative state since 1982, which focuses on the future and efficiency. Descriptively, the two methodologies are irreconcilable. Nor is it possible to pair them by claiming they serve different purposes; originalism and cost-benefit analysis conflict when assessing agency design, constitutional rights, and judicial review of administrative action. As regulatory policymaking continues to rely on empirical and economic assessments, originalism's influence …

Legalistic Noncompliance, Daniel T. Deacon, Leah M. Litman

Duke Law Journal

Will the executive branch comply with court orders? That question has garnered a considerable amount of attention over the first few months of the second Trump administration. But what does it mean to comply? And what if a form of noncompliance is already occurring?

This Article documents an emerging practice that has dominated the second Trump administration's approach to unfavorable court rulings, a practice this Article calls legalistic noncompliance. Legalistic noncompliance occurs when the administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. Drawing …

Restoring Chevron Deference By Statute, Scott Dodson

Duke Law Journal

This Essay details a solution for legislatively restoring Chevron deference: amend the APA to direct lower federal courts to give deference to reasonable agency decisions but retain nondeferential judicial review by the U.S. Supreme Court. This solution restores most of the practical benefits of Chevron by giving agencies flexibility to implement congressional policy directives with the expertise they have acquired, by maintaining stability in administrative regulation, and by relieving lower federal courts of the burdens of nondeferential review. And retaining nondeferential judicial review in the Supreme Court will preserve the constitutional role of the judicial branch to say what the …

Presidential Administration After Arthrex, Noah A. Rosenblum, Roderick M. Hills Jr.

Duke Law Journal

The federal government employs over 2 million civilian workers, all but a few thousand of whom enjoy forms of tenure and insulation from presidential control. This bureaucracy, sometimes called "the administrative state," is organized in a many-layered structure defined by statutes and regulations. Pursuant to law and court decisions, the administrative state routinely makes findings of fact, policy determinations, and conclusions of law, sometimes independent of the president. The Supreme Court's recent decision in United States v. Arthrex risks unsettling this arrangement. It adopts a simplistic, hierarchical vision of bureaucratic organization, which is frankly incompatible with existing statutes and regulations. …

Confidentiality Of Ai Conversations: Protecting Self-Represented Litigants Who Use Chatgpt For Legal Advice, Anoo D. Vyas

Duke Law & Technology Review

When a layperson uses ChatGPT to obtain feedback on a legal matter, attorney-client privilege may not apply, as ChatGPT is not a lawyer, much less a human. Further, while lawyers are entitled to protection for their opinion work-product, it is not clear whether self-represented litigants are entitled to the same protection. Additionally, the broader duty of confidentiality binds only attorneys, not AI systems like ChatGPT. The public increasingly uses AI tools such as ChatGPT. If a layperson employs ChatGPT for legal advice, particularly in a civil matter, such communications may be discoverable and potentially admissible. This presents an access to …

Humphrey's Eulogy: A Functionalist View Of Trump V. Slaughter And The Role Of The Ftc, Alex Zhang

Duke Journal of Constitutional Law & Public Policy Sidebar

Trump v. Slaughter presents the Supreme Court with a foundational question about the administrative state: whether the for-cause removal protections afforded to Federal Trade Commission Commissioners under the FTC Act are consistent with Article II's vesting of executive power in the President, and, if not, whether Humphrey's Executor v. United States should be overruled.

In March 2025, President Trump removed two FTC Commissioners without satisfying the statutory standard of inefficiency, neglect of duty, or malfeasance in office. The dismissed Commissioners sued, and the District Court for the District of Columbia granted summary judgment in their favor, holding that Humphrey's Executor …

Using Ai To Identify National Security Threats: A Holistic Examination Of The Legal Risks And Increased Need For Regulation, Skylar Mcvicar

Duke Journal of Constitutional Law & Public Policy Sidebar

Artificial intelligence (AI) is integrating rapidly into daily practice, including in the national security sector. AI has the potential to improve bureaucratic efficiency, enhance military intelligence and threat assessment, and develop autonomous vehicles and weapons, making it a revolutionary tool in national security. Since AI implementation is a relatively recent phenomenon, there is currently limited governmental regulation in place to safeguard against potential violations of civil liberties and other legal risks. Given AI's capacity to infringe on certain civil liberties such as the Fourth Amendment right to privacy and the Fourteenth Amendment protection against discriminatory policies, establishing strong oversight measures …

Juror Contact In The Digital Age: The Linkedin Problem, Drew Thornley

Duke Law & Technology Review

This Article examines an evolving dispute in professional responsibility: whether a lawyer makes a prohibited communication when viewing a juror’s LinkedIn account. When one LinkedIn user views another’s profile, the platform automatically notifies the profile owner and may include the viewer’s identity. Ethics rules are currently divided on whether or not this notification would count as a prohibited juror communication. On one hand, the ABA and some state bar associations explicitly allow attorneys to view social-media profiles of jurors even when the lawyer’s identity is revealed. On the other hand, some bar associations and courts believe these automatic notifications violate …

The Myth Of Sufficient Technological Barriers: Reevaluating The "Gates-Up-Or-Down" Analogy In Data Scraping, Yucen Zhong

Duke Law & Technology Review

In Van Buren v. United States, the Supreme Court adopted a “gates-up-or-down” analogy from physical trespass law to define “authorization” under the Computer Fraud and Abuse Act (CFAA). Despite historical shifts in judicial interpretation, courts have recently relied on this binary framework to interpret authorization as it applies to online trespass. But courts have struggled to apply this binary inquiry while still accounting for complications in modern authentication technologies. When pursuing a code-based inquiry based on the gates-up-or-down analogy, courts risk oversimplifying the dynamic nature of online trespass. Such an approach fails to account for how modern authentication measures—such as …

Historians For Hire: Evaluating Historian Expert Witnesses After Bruen, Jake Mcauliffe

Duke Law Journal

The Supreme Court in New York State Rifle & Pistol Association v. Bruen introduced a history-and-tradition test for Second Amendment challenges, directing courts to compare modern firearm regulations to past ones. To conduct this historical inquiry, litigants and judges have increasingly turned to professional historians as expert witnesses. This Note qualitatively examines how historian experts are used and received in post-Bruen federal litigation. It finds that a small group of repeat players—sixteen historians—make up this emerging field, typically appearing exclusively for either challengers or governments. These historians serve primarily in civil litigation, leaving a relative expertise gap in criminal cases, …

Historical Facts And Constitutional Law: New Challenges For Lawyers, Judges, And Scholars, Joseph Blocher, Brandon L. Garrett, H. Timothy Lovelace Jr.

Duke Law Journal

No abstract provided.

Unwanted Histories, Christen Hammock Jones, Karen M. Tani

Duke Law Journal

The Supreme Court’s turn to history as a method of constitutional decisionmaking has both intrigued and alarmed professional historians, for reasons now well-rehearsed in the literature. This Article takes as a given that history is now part of judges’ work. It then invites judges to think more expansively about the type of history they could—and perhaps should—be producing. This task, in turn, means engaging with some of the central questions about methodology and sources that preoccupy professional historians.

This Article focuses on a source base that historians routinely rely upon but that courts have shied away from: personal accounts of …

Falsifying Tradition, Darrell A. H. Miller

Duke Law Journal

From cases spanning gun rights, reproductive freedom, religious liberty, and personal jurisdiction; to separation of powers and other structural features of the Constitution, courts increasingly rely on tradition to guide their decisions. Often, judges appeal to tradition in a vaguely empirical way, as “facts to study, not convictions to demonstrate about,” in the words of Justice Antonin Scalia. Yet, for a claim that purports to be factual, there’s very little agreement, or even analysis, about what renders this factual assertion—tradition—true or false. This Article tackles that basic issue.

Part I surveys the ways in which courts use tradition in different …

Journal Staff

Duke Law Journal

No abstract provided.

Tradition Without Text?, Daniel B. Rice

Duke Law Journal Online

No abstract provided.

Towards State Legislative Codification Of The Wpath Soc Guidelines, Suresh Hanubal

Duke Journal of Constitutional Law & Public Policy Sidebar

Transgender rights have increasingly come under assault in the United States. As of early 2026, twenty-seven states have passed either bans or restrictions on access to gender-affirming care. The issue has also become a central focus at the federal level. The U.S. Supreme Court decided United States v. Skrmetti, a case concerning the legality of state restrictions on gender-affirming care, in the 2024 – 2025 term. Moreover, the second Trump administration has been clear that rolling back transgender rights, including access to gender-affirming care, is a priority. In this political environment, where access to gender-affirming care in the United States …

Journal Staff

Law and Contemporary Problems

No abstract provided.

Law As A Form Of Life: On Capitalism And Critical Theory, Justin Deystone

Law and Contemporary Problems

No abstract provided.

Foreword, Jedediah Britton-Purdy, Justin Deystone

Law and Contemporary Problems

No abstract provided.

Legal Method And Political Time, Odette Lienau, Aziz Rana

Law and Contemporary Problems

No abstract provided.

Marx, Marxism, And The Critique Of Law, Umut Özsu

Law and Contemporary Problems

No abstract provided.

Does Law Constitute Society?, Jeremy Kessler

Law and Contemporary Problems

No abstract provided.

Beyond The Market: What Does It Mean To Theorize Capitalism?, Amy Kapczynski

Law and Contemporary Problems

No abstract provided.

Indeterminacy And The Political Economy: Cls, Legal Politics, And Defetishizing The Lpe Debate, Akbar Rasulov

Law and Contemporary Problems

No abstract provided.

Capitalism & Jurisprudence, Paulo Barrozo

Law and Contemporary Problems

No abstract provided.

Falling Flat: Why Ai Cannot Free Melodies From Copyright Protection With “All The Music” As An Example, Hayley Huber

Duke Law & Technology Review

As artificial intelligence (AI) continues to surprise us with its humanlike abilities, it raises the question of whether AI-created music can or should be afforded legal protection. Particularly, how should copyright law treat melodies produced by an AI designed to algorithmically generate every possible melody? This article seeks to answer that question, ultimately concluding that AI-produced melodies are not copyrightable and that melodies are not merely facts undeserving of copyright protection, but something valuable to mankind and worth protecting by law.

The article explores Damien Riehl’s All the Music project (ATM) and his arguments for why ATM’s outputs should be …