Law Commons^™

Unlawful Genders, Anthony Michael Kreis

Law and Contemporary Problems

No abstract provided.

Stall Wars: Sex And Civil Rights In The Public Bathroom, Wickliffe Shreve

Law and Contemporary Problems

No abstract provided.

Feminism, Trans Justice, And Speech Rights: A Comparative Perspective, Madeleine Pape

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Allan Brooke, Ii, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding the formative experience of clerking.

Privilege In Peril: U.S. V. Zubaydah And The State Secrets Privilege, Alana Mattei

Duke Journal of Constitutional Law & Public Policy Sidebar

U.S. v. Zubaydah presents an opportunity for the Court to settle the scope of the state secrets privilege and the role of the judiciary when the government invokes a claim of privilege. The state secrets privilege, invoked by the executive, gives courts the power to prevent the disclosure of information that could pose a threat to national security by excluding the particular evidence or dismissing the case. The Court will decide whether the Ninth Circuit erred by rejecting the Government’s assertion of the state secrets privilege over the depositions of former CIA contractors requested by Abu Zubaydah. The Ninth Circuit …

Protecting Procedural Safeguards In Federal Capital Trials: United States V. Tsarnaev, Ashley Dabiere

Duke Journal of Constitutional Law & Public Policy Sidebar

The Commentary considers the constitutionality of (1) the trial court’s exclusion of relevant mitigating evidence during the trial’s penalty phase and (2) the imposition of a death sentence by the Supreme Court during a moratorium on federal executions. In the United States District Court for the District of Massachusetts, the jury ultimately convicted Dzhokhar of thirty counts and recommended death sentences for six of the capital offenses. On appeal, the First Circuit vacated these death sentences and remanded the case for a new sentencing hearing with a different jury. First, the Court of Appeals held that the voir dire used …

Cliff Brinson, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding testimony at the Clinton impeachment hearing before the House Judiciary Committee on Dec. 1, 1998.

Katz As Originalism, Orin S. Kerr

Duke Law Journal

The “reasonable expectation of privacy” test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the Constitution’s text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce.

This Article argues that originalist opposition to Katz is misplaced. …

A Prohibition On Purely Local Purposes: The "General Welfare" Limitation Of Congress's Spending Power, Elizabeth L. Brown

Duke Law Journal

Congress’s spending power allows the federal government to spend money to provide for the general welfare of the United States. While this “general welfare” language was initially understood as barring Congress from apportioning money for local purposes, the Supreme Court’s interpretation of the spending power has treated this limitation as effectively nonjusticiable. Consequently, the spending power has provided Congress with an attractive carrot to coax states into enacting regulations that Congress could not achieve through its other powers.

This Note challenges the notion that the general welfare limitation of the Spending Clause should be considered nonjusticiable. Instead, it calls for …

Not So Private, Stacey A. Tovino

Duke Law Journal

Federal and state laws have long attempted to strike a balance between protecting patient privacy and health information confidentiality on the one hand and supporting important uses and disclosures of health information on the other. To this end, many health laws restrict the use and disclosure of identifiable health data but support the use and disclosure of de-identified data. The goal of health data de-identification is to prevent or minimize informational injuries to identifiable data subjects while allowing the production of aggregate statistics that can be used for biomedical and behavioral research, public health initiatives, informed health care decision making, …

Why The Purcell Principle Should Be Abolished, Ruoyun Gao

Duke Law Journal

The Supreme Court seeks to promote orderly and effective voting through the Purcell principle, which prohibits district courts from altering election rules via injunctions on the eve of an election. Applying this principle, a court considers only the proximity of the upcoming election. The underlying rationale of the Purcell principle is to avoid possible voter confusion and election chaos caused by lastminute changes. While these are legitimate concerns, the rigid Purcell principle has led courts to blindly reject any changes proposed shortly before the election—even when the changes are necessary for an orderly, effective election.

This Note identifies the drawbacks …

Foreword, Karen J. Alter, Mikael Rask Madsen

Law and Contemporary Problems

No abstract provided.

The International Adjudication Of Mega-Politics, Karen J. Alter, Mikael Rask Madsen

Law and Contemporary Problems

No abstract provided.

Lgbt Rights As Mega-Politics: Litigating Before The Ecthr, Laurence R. Helfer, Clare Ryan

Law and Contemporary Problems

No abstract provided.

The Court Of Justice Of The European Union And The Mega-Politics Of Posted Workers, Dorte Sindbjerg Martinsen, Michael Blauberger

Law and Contemporary Problems

No abstract provided.

Against The Masters Of War: The Overlooked Functions Of Conflict Litigation By International Courts, Silvia Steininger, Nicole Deitelhoff

Law and Contemporary Problems

No abstract provided.

Territorial Disputes By Proxy: The Indirect Involvement Of International Courts In The Mega-Politics Of Territory, Salvatore Caserta, Pola Cebulak

Law and Contemporary Problems

No abstract provided.

Jus Cogens Before International Courts: The Mega-Political Side Of The Story, Hélène Ruiz Fabri, Edoardo Stoppioni

Law and Contemporary Problems

No abstract provided.

Judicialization Of Election Disputes In Africa's International Courts, James Thuo Gathii, Olabisi D. Akinkugbe

Law and Contemporary Problems

No abstract provided.

Beyond Backlash: The Consequences Of Adjudicating Mega-Politics, Karen J. Alter, Mikael Rask Madsen

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Personalized Smart Guns: A Futuristic Dream Or A Pragmatic Solution?, Andres Paciuc

Duke Law & Technology Review

No abstract provided.

Kevin Kaplan, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding the Judge Robert Vance assassination case (1989-1991).

Adaptive Regulation In India- Groundwater, Electric Vehicles, And Health Data, Rupanjali Karthik

Duke Law SJD Dissertations

No abstract provided.

Agents And Advisors, Deborah A. Demott

Faculty Scholarship

No abstract provided.

10 Things Judges Should Know About Cryptocurrency, Lee Reiners

Faculty Scholarship

No abstract provided.

The Law And Science Of Eyewitness Evidence, Thomas D. Albright, Brandon L. Garrett

Faculty Scholarship

Eyewitness evidence crucially depends on visual perception and memory, which are quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated in cases of wrongful conviction. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. Eyewitness evidence, where identification procedures themselves involve experiments, lends itself to scientific research as do few other areas in law. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors—state and federal courts, state lawmakers, …

Setting The Price Of Fertility: Egg Donor Compensation Following Kamakahi V. American Society For Reproductive Medicine, Bailey K. Sanders

Faculty Scholarship

Although much ink has been spilled debating whether the United States should permit the sale and purchase of human eggs, fewer scholars have considered how we might encourage more efficient competition in this market. This article considers the market impact of a 2011 price-fixing lawsuit brought on behalf of egg donors in the United States; the plaintiffs argued that the American Society for Reproductive Medicine was artificially suppressing compensation rates by requiring its members to adhere to pricing caps. When the plaintiffs secured the removal of the guidelines, many observers expected compensation rates to increase substantially.

I argue, however, that …

Thank You For Not Publishing (Unexamined Patent Applications), Lidiya Mishchenko

Faculty Scholarship

Since 2000, the U.S. Patent & Trademark Office (“PTO”) has published nearly all patent applications as they are submitted by applicants. Scholars and practitioners have praised this practice for providing timely notice of the potential legal rights the application may eventually cover. But maximizing timeliness and transparency in this way can also create significant costs, which may chill innovation and deter the development and funding of new research areas. This Article explores these often-unrecognized costs of publishing unexamined patent applications and proposes solutions that balance the benefits of early notice with the costs of patent system uncertainty.

Published patent applications …