Law Commons^™

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Duke Law Journal

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

Tax's Digital Labor Dilemma, Amanda Parsons

Duke Law Journal

Digitalization has reshaped the relationship between companies and their customers and users. Customers and users increasingly serve a dual role. They are not only consumers but also producers, creating data and content. They are a value-creating workforce, functioning as “digital laborers.”

Digital laborers’ value creation highlights that there are two parts to the question of whether multinational companies are paying their “fair share” of taxes—one of amount and one of location. First, are companies’ total tax bills paid across all countries in line with their global income? Second, is taxing authority over multinational companies’ income being divided amongst countries in …

Civil Rights As Human Rights, H. Timothy Lovelace, Jr.

Duke Law Journal

During the early 1960s, government officials in the U.S. Department of State grappled with the following quandary: How could the United States shape and lead a racially diverse world while still denying rights to Black Americans domestically? One way the State Department set out to resolve this disconnect was through diplomacy and negotiations at the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which crafted the International Convention on the Elimination of all Forms of Racial Discrimination. Although extensive documentation exists on the exchanges between the Sub-Commission, the State Department, and the U.S. civil rights community, …

How Non-Product-Specific Manufacturing Patents Block Biosimilars, Chorong Song

Duke Law Journal

A new class of drugs called biologics has potential to finally cure previously untreatable conditions such as cancer and Alzheimer’s disease. But there is a catch: these innovative drugs are expensive. On average, prices range from $10,000 to $30,000 per year, and the most expensive ones exceed $500,000. The Biologics Price Competition and Innovation Act (“BPCIA”) was passed in 2010 to lower prices by providing a new regulatory pathway in approving biosimilars––copies of brand-name biologics. Yet, the BPCIA’s promised regulation of drug prices has not materialized partly due to brand-name companies’ vast patent portfolios, also known as patent thickets. This …

Journal Staff

Duke Law Journal

No abstract provided.

The Shurtleff Conundrum: Resolving The Conflict In Government-Speech And Public Forum Analysis, James Walraven

Duke Journal of Constitutional Law & Public Policy Sidebar

Shurtleff v. Boston is the Supreme Court's latest opportunity to clarify the murky line between the "government-speech" and "public forum" doctrines. The Court will decide whether the City of Boston violated the Free Speech Clause by refusing to fly a flag with Christian imagery in front of City Hall. The City had previously allowed the flying of numerous national and cultural flags by various organizations, but refused to fly a conservative social organization's "Christian flag" because of the City's fear of appearing to endorse a particular religion.

Under the public forum doctrine, private citizens' free speech is protected to varying …

Mind The Gap: A Comparative Approach For Fixing Volcker, Learning From Liikanen, And Using Vickers To Repair The Us Banking System, Rachel E. Sereix

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Escape Room: Implicit Takings After Cedar Point Nursery, Lee Anne Fennell

Duke Journal of Constitutional Law & Public Policy

In Cedar Point Nursery v. Hassid, the Supreme Court ruled 6-3 that a California regulation that gave union organizers limited access to agricultural worksites amounted to a per se taking. The Court went on to opine that any governmental grant of physical access, no matter how time-limited or functionally constrained, similarly works a per se taking, unless one of the Court’s exceptions applies. This essay argues that Cedar Point is best understood as part of an implicit takings apparatus designed to selectively apply scrutiny to property-facing governmental acts in ways that broadly entrench status quo patterns of property wealth. …

Judicial Retention Elections For State Appellate Judges: The Implications Of The Ballot-Access Cases, James F. Blumstein

Duke Journal of Constitutional Law & Public Policy

This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states' requirements that judges be elected. But …

A Modest Proposal: Leveraging Private Enforcement Mechanisms And The Bayh-Dole Act To Reduce Drug Prices In The U.S. Healthcare Industry, Brittany N. Day

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Reading Taylor's Tea Leaves: The Future Of Qualified Immunity, Jennifer E. Laurin

Duke Journal of Constitutional Law & Public Policy

Many observers of qualified immunity doctrine drew a sharp breath when the Supreme Court handed down Taylor v. Riojas in late 2020. The decision, reversing a grant of qualified immunity to prison officials sued under 42 U.S.C. § 1983, reflected a marked break in outcome and tone from the preceding decade of unwavering commitment by the Court to expanding the scope of qualified immunity's protection to sued officials: it was a nearly unheard-of victory for a plaintiff, and it was delivered in an opinion that cautioned against applying qualified immunity's "clearly-established-law" prong in a manner too protective of officials, rather …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Foreword

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Reason And Rhetoric In Edwards V. Vannoy, Richard M. Re

Duke Journal of Constitutional Law & Public Policy

Judicial reasoning and rhetoric should be mutually reinforcing, but often they end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared "moribund," may actually have survived. Second, Justice Gorsuch’s ostensibly strict judgment-based approach arguably called for providing relief in Edwards. Third, majority coalitions have a counterintuitive incentive, rooted in rhetoric, to overrule relatively insignificant precedents. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, the legal system may benefit from the superficial and even fallacious reasoning often …

Getting It Right: Whether To Overturn Qualified Immunity, David D. Coyle

Duke Journal of Constitutional Law & Public Policy

Qualified immunity, the defense available to police officers and other government officials facing civil rights lawsuits, has increasingly come under attack. In recent opinions, Justice Clarence Thomas has noted his growing concern that the Court's current qualified immunity jurisprudence, which deals with whether a right is "clearly established", strays from Congress's intent in enacting the Civil Rights Act of 1871 (the statute giving rise to civil rights claims). Other jurists and legal scholars similarly criticize the doctrine, with many calling for the Court to revisit its qualified immunity jurisprudence and abolish or significantly alter the doctrine.

Given that the Court's …

Paving The Way For Mindreading: Re-Interpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Giving The People A Voice Where It Counts: A Presumption In Favor Of Allowing Permanent Residents To Vote In Local Elections, Robin Liu

Duke Journal of Comparative & International Law

This article proposes, as a matter of principle, that there should be a rebuttable presumption in favor of extending voting rights in local elections to permanent residents. It will justify why the proposed presumption should apply, the ways in which it could be rebutted, and offer some insight into how the presumption could serve as a guide to constitutional interpretation and design. It will review the reasons for the connection between citizenship and voting rights, and then address why permanent residents should be granted the right to vote in local elections. Three case studies will be used to illustrate how …

On The Politics And Ideologies Of The Sovereignty Discourse In Cyberspace, Henning Lahmann

Duke Journal of Comparative & International Law

This article critically examines the current discourse on the legal status and substance of the international law concept of "sovereignty" in cyberspace against the backdrop of conflicting political-ideological attitudes. It first traces the origins of the interpretation of "respect for sovereignty" as a primary rule of international law, and then discusses two approaches to cyberspace that challenge the emerging consensus: "cyber imperialism," embodied by the US and the other Five Eyes members on the one hand, and "cyber-Westphalia," represented by China, Russia, and Iran on the other. Both groups conceive cyberspace in ways fundamentally irreconcilable with prevailing legal views. A …

Hiding In The Eye Of The Storm Cloud: How Cloud Act Agreements Expand U.S. Extraterritorial Investigatory Powers, Tim Cochrane

Duke Journal of Comparative & International Law

The United States and United Kingdom will soon implement a new reciprocal international law enforcement data sharing agreement (U.S.-UK Agreement), the first of its kind under the Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act), which will enable law enforcement of one signatory state to directly request data from service providers based in the other state. The United States says CLOUD Act agreements simply remove conflicts of law and do not affect its jurisdiction over overseas providers, claiming these are strictly constrained by the personal jurisdiction requirement contained within the Constitution’s Fifth Amendment Due Process Clause. It is …

Wage Boards And Labor Revitalization: U.S. Aspirations And Uruguayan Realities*, Ana Laura Ermida, César F. Rosado Marzán

Duke Journal of Comparative & International Law

State-supported sectoral bargaining through wage boards is gaining traction among some U.S. reformers interested in revitalizing unions, collective bargaining, and labor law. New York has become a celebrated case, but the recent experience there left some activists disappointed.

Theoretically, revitalization through wage boards is also complicated. Labor law doctrine, which favors labor union autonomy from the state, might endorse state-created wage boards, but only in a qualified manner. Moreover, reformers consider union membership growth to be important for labor revitalization. And yet, empirical studies have shown that sectoral bargaining has an indeterminate impact on union membership.

Given New York's uneven …

The International Law Of Colonialism In East Africa: Germany, England, And The Doctrine Of Discovery, Robert J. Miller, Olivia Stitz

Duke Journal of Comparative & International Law

The non-European, non-Christian world was colonized under international law that is known today as the Doctrine of Discovery. This common-law international Doctrine was codified into European international law at the Berlin Conference of 1884–85 and in the Berlin Act of 1885 specifically to partition and colonize Africa. Thirteen European countries and the United States attended the four-month Conference, which ended with thirteen countries signing the Berlin Act on February 26, 1885. Under the Discovery Doctrine and the Berlin Act, these European countries claimed superior rights over African nations and Indigenous Peoples. European explorers planted crosses, signed hundreds of treaties, and …

Qualified Immunity's 51 Imperfect Solutions, Aaron L. Nielsen, Christopher J. Walker

Duke Journal of Constitutional Law & Public Policy

Qualified immunity has no perfect solution. On one hand, qualified immunity can prevent individuals whose civil rights have been violated from receiving monetary compensation—obviously, a bad outcome. On the other hand, without qualified immunity, government officials who fear liability may hold back from protecting the public—another bad outcome. Qualified immunity seeks to strike a balance between those bad outcomes: Plaintiffs can recover damages only if a government official violated clearly established law. Some individuals thus will have their rights violated but receive no compensation, while other individuals may be harmed because the government does not come to their aid. Qualified …

Noncitizens' Rights In The Face Of Prolonged Detention: Johnson V. Arteaga-Martinez, Samantha L. Fawcett

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the Immigration and Nationality Act (the "INA"), codified in part at 8 U.S.C. § 1231, the federal government generally has ninety days to successfully deport a detained noncitizen who has reentered illegally after being removed once before. While exceptions to this time limit exist, the United States Supreme Court determined in 2001 that detention under Section 1231 cannot be indefinite.[1]

Now, more than two decades later, the Court must elaborate further. In Johnson v. Arteaga-Martinez, the Court must decide how long a detainment can last beyond the ninety-day statutory limit while a detainee seeks relief from deportation through …

Xiaomi Corporation V. U.S. Department Of Defense: Defending The International Emergency Economic Powers Act, Bailey Williams

Duke Journal of Constitutional Law & Public Policy Sidebar

The International Emergency Economic Powers Act (IEEPA) provides the Executive with emergency authority to act in the realm of foreign affairs and national security. As global power struggles increasingly play out in financial markets as opposed to battle fields, the United States is leveraging global capital markets, banking, and financial systems to effectuate national security goals – and is relying on IEEPA to do so. However, critics argue IEEPA lacks appropriate procedural safeguards given the courts' general deference to the Executive acting pursuant to national security and the corresponding lack of Congressional oversight.

After assessing various criticisms of IEEPA, this …

Name And Shame: How International Pressure Allows Civil Rights Activists To Incorporate Human Rights Norms Into American Jurisprudence, Lily Talerman

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States has ratified international human rights treaties sparingly. Where it has ratified, it has provided such a large number of reservations that the treaties’ domestic effects are effectively nullified. Even though international human rights law has not been directly incorporated into American jurisprudence, however, international human rights norms have greatly affected civil rights provisions in the United States by naming and shaming American civil rights abuses. Recognizing the relatively low success rate of tackling systemic racism in the United States through treaty implementation, this Note instead argues that naming and shaming American civil and human rights abuses more …

David F. Levi, Gerald B. Tjoflat

Special Collections

Dean David F. Levi interviews Judge Gerald B. Tjoflat about his experiences on the bench, at Duke Law School. and his legal career.

Dobbs V. Jackson Women's Health Organization And The Likely End Of The Roe V. Wade Era, Jeffrey Hannan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Gary Myers, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding jurisprudence, overall judicial philosophy, and approach to being a judge.

Exploring The Writ Of Replevin As A Pre-Judgment Remedy For Protecting Exotic Animals, Bailey Frank

Duke Environmental Law & Policy Forum

No abstract provided.