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Full-Text Articles in Law
Administrative Law In The 1930s: The Supreme Court’S Accommodation Of Progressive Legal Theory, Mark Tushnet
Administrative Law In The 1930s: The Supreme Court’S Accommodation Of Progressive Legal Theory, Mark Tushnet
Duke Law Journal
In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal-the SEC, the NLRB, and others-meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself In a series of contentious cases decided by the Hughes Court, Progressives believed …
“A Considerable Surgical Operation”: Article Iii, Equity, And Judge-Made Law In The Federal Courts, Kristin A. Collins
“A Considerable Surgical Operation”: Article Iii, Equity, And Judge-Made Law In The Federal Courts, Kristin A. Collins
Duke Law Journal
No abstract provided.
The Last Bankrupt Hanged: Balancing Incentives In The Development Of Bankruptcy Law, Emily Kadens
The Last Bankrupt Hanged: Balancing Incentives In The Development Of Bankruptcy Law, Emily Kadens
Duke Law Journal
This Article frames the history of the Anglo-American bankruptcy tradition as a search for solutions to the basic problem that has from the first underlain the bankruptcy process: how to obtain the assistance of a debtor in his financial dismantling. The pivotal moment in this story came in the years 1705 and 1706, when the English Parliament drafted a bill making the bankrupt's refusal to cooperate with the commissioners running his bankruptcy a capital crime. Almost as an afterthought, they also introduced discharge of debt. Incentivizing cooperation with discharge would have a fruitful future. Coercing the debtor to be honest, …
Searching For Terrorists: Why Public Safety Is Not A Special Need, Ric Simmons
Searching For Terrorists: Why Public Safety Is Not A Special Need, Ric Simmons
Duke Law Journal
In the wake of the terrorist attacks of September 11, 2001, local police across the country instituted blanket searches without individualized suspicion at various venues-including political protests, sporting events, subway platforms, and public ferries-all in an attempt to prevent further terrorist attacks. When evaluating these searches, courts rely upon the special needs doctrine, which allows the government to conduct a suspicionless search as long as the search serves a special need distinct from the goals of law enforcement. Over the past eight years, courts have struggled to determine whether and how the special needs doctrine applies to these searches, and …
The Court And The Code: A Response To The Warp And Woof Of Statutory Interpretation, Lawrence Zelenak
The Court And The Code: A Response To The Warp And Woof Of Statutory Interpretation, Lawrence Zelenak
Duke Law Journal
No abstract provided.
A Rhetoric For Ratification: The Argument Of The Federalist And Its Impact On Constitutional Interpretation, Dan T. Coenen
A Rhetoric For Ratification: The Argument Of The Federalist And Its Impact On Constitutional Interpretation, Dan T. Coenen
Duke Law Journal
Courts, lawyers, and scholars have long assumed that The Federalist Papers supply important information for use in constitutional argument and interpretation. In recent years, commentators have questioned this view. Their skepticism grows out of two major concerns. First, Justice Scalia's challenge to the use of legislative history in the statutory context casts a cloud over judicial use of background texts such as The Federalist in seeking the meaning of the Constitution. Second, even if courts may rely on some background materials in interpreting the Constitution, there is reason to conclude that The Federalist. does not qualify as the sort of …
Crystal Eastman And The Internationalist Beginnings Of American Civil Liberties, John Fabian Witt
Crystal Eastman And The Internationalist Beginnings Of American Civil Liberties, John Fabian Witt
Duke Law Journal
The modern American civil liberties movement famously began with the United States's intervention in World War I. Yet these beginnings have long raised a conundrum for civil liberties historians. Why did the American civil liberties movement arise precisely when so many sophisticated legal and political thinkers began to call into question the truth value of abstract rights claims? The puzzling rise of civil liberties in an age of pragmatic skepticism is all the more startling given that early leaders of the civil liberties movement were themselves leading rights skeptics. This Article offers a new interpretation of the rise of the …
Federalism In The Taft Court Era: Can It Be “Revived”?, Robert Post
Federalism In The Taft Court Era: Can It Be “Revived”?, Robert Post
Duke Law Journal
This Article analyzes the Supreme Court's view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as "reviving" pre-New Deal principles. This Article concludes, however, that any such revival is highly implausible. It offers four reasons for this conclusion. First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government …
The Legal Subject In Exile, Kathryn Abrams
The New Deal Constitution In Exile, William E. Forbath
The New Deal Constitution In Exile, William E. Forbath
Duke Law Journal
No abstract provided.
The Thirteenth Amendment And The Lost Origins Of Civil Rights, Risa L. Goluboff
The Thirteenth Amendment And The Lost Origins Of Civil Rights, Risa L. Goluboff
Duke Law Journal
For the fifteen years prior to the Supreme Court's 1954 decision in Brown v. Board of Education, "civil rights" did not refer to a unified, coherent category. Rather, the content of the term was open, changing, and contradictory. The lawyers of the Civil Rights Section of the Department of Justice, which was created in 1939, were among those thinking about, and experimenting with, different ways of practicing and framing civil rights in the 1940s. Their practice shows how, as the Great Depression faded and World War II loomed, the most prominent civil rights issues shifted from the labor arena to …
Super-Statutes, William N. Eskridge Jr., John A. Ferejohn
Super-Statutes, William N. Eskridge Jr., John A. Ferejohn
Duke Law Journal
Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies. Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subject areas or represent legislative compromises that are short-term fixes to bigger problems and cannot easily be defended as the best policy result that can be achieved. Some statutes reveal ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional …
Promises Past: Marcus Atilius Regulus And The Dialogue Of Natural Law, William R. Nifong
Promises Past: Marcus Atilius Regulus And The Dialogue Of Natural Law, William R. Nifong
Duke Law Journal
No abstract provided.
Senate Trials And Factional Disputes: Impeachment As A Madisonian Device, Jonathan Turley
Senate Trials And Factional Disputes: Impeachment As A Madisonian Device, Jonathan Turley
Duke Law Journal
In this Article, Professor Turley addresses the use of impeachment, specifically the Senate trial, as a method of resolving factional disputes about an impeached official's legitimacy to remain in office. While the Madisonian democracy was designed to regulate factional pressures, academics and legislators often discuss impeachments as relatively static events focused solely on removal. Alternatively, impeachment is sometimes viewed as an extreme countermajoritarian measure used to "reverse" or "nullify" the popular election of a President. This Article advances a more dynamic view of the Senate trial as a Madisonian device to resolve factional disputes. This Article first discusses the history …
Love’S Litigation: Plato’S Phaedrus As Trial By Jury, Susan E. Kinz
Love’S Litigation: Plato’S Phaedrus As Trial By Jury, Susan E. Kinz
Duke Law Journal
No abstract provided.
The Constitutionality Of The Bank Bill: The Attorney General’S First Constitutional Law Opinions, Walter Dellinger, H. Jefferson Powell
The Constitutionality Of The Bank Bill: The Attorney General’S First Constitutional Law Opinions, Walter Dellinger, H. Jefferson Powell
Duke Law Journal
No abstract provided.
A Counter-History Of Antitrust Law, Rudolph J. Peritz
A Counter-History Of Antitrust Law, Rudolph J. Peritz
Duke Law Journal
No abstract provided.
“To Establish Justice”: Politics, The Judiciary Act Of 1789, And The Invention Of The Federal Courts, Wythe Holt
“To Establish Justice”: Politics, The Judiciary Act Of 1789, And The Invention Of The Federal Courts, Wythe Holt
Duke Law Journal
No abstract provided.
The Jurisprudence Of Poetic License, Calvin R. Massey
The Jurisprudence Of Poetic License, Calvin R. Massey
Duke Law Journal
No abstract provided.
Social Science And Segregation Before Brown, Herbert Hovenkamp
Social Science And Segregation Before Brown, Herbert Hovenkamp
Duke Law Journal
A wide variety of scholarship has addressed the law of race relations during the late nineteenth and early twentieth centuries. Much of that scholarship has presented the judicial record in the Gilded Age and Progressive Era cases as reactionary and somehow in violation of the basic principles of equality implicit in the American Constitution, particularly in the thirteenth, fourteenth, and fifteenth amendments. Professor Hovenkamp calls this view into question by examining the science and social science of that period and the use of scientific information in race relations cases. He concludes that late nineteenth and early twentieth century courts used …