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Articles 1 - 16 of 16
Full-Text Articles in Law
National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey
National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey
Duke Journal of Constitutional Law & Public Policy Sidebar
National Labor Relations Board v. Murphy Oil USA pits two co-equal federal statutes head-to-head. The Federal Arbitration Act mandates that all arbitration clauses be enforced. The National Labor Relations Act grants employees the right to act collectively to bring claims against employers. The Supreme Court must decide whether arbitration clauses in employment contracts, which require employees to arbitrate work-related disputes on an individual basis, contravene the interests of the NLRA. This commentary argues that the Supreme Court should recognize how these arbitration clauses undermine and subvert the protections of the NLRA by disallowing employees to act collectively. By invoking the …
Sessions V. Dimaya: Vagueness Doctrine & Deportation Statutes, Matthew Gibbons
Sessions V. Dimaya: Vagueness Doctrine & Deportation Statutes, Matthew Gibbons
Duke Journal of Constitutional Law & Public Policy Sidebar
Sessions v. Dimaya seeks to determine whether the residual clause of a criminal provision, incorporated by reference into a civil immigration law, is void for vagueness. Although there is an instance of the Supreme Court applying the criminal vagueness standard to an immigration statute resulting in deportation, the United States argues that immigration law is not subject to that vagueness standard because it is civil and not criminal. This commentary argues that Sessions v. Dimaya presents the Supreme Court with an opportunity to conform with its precedents, further the principles underlying vagueness doctrine, and appear to apply judicial rules consistently. …
Mcdonnell V. United States: Defining “Official Action” In Public Corruption Law, Christopher Murphy
Mcdonnell V. United States: Defining “Official Action” In Public Corruption Law, Christopher Murphy
Duke Journal of Constitutional Law & Public Policy Sidebar
McDonnell v. United States involved the former Governor of Virginia leveraging the power of his position to help a wealthy constituent gain access to top state decision makers in exchange for valuable gifts and loans. The Government argued that conduct like setting up phone calls and meetings, as well as hosting receptions on behalf of the constituent was sufficient to constitute an “official act” under public corruption laws. Governor McDonnell argued for a narrower interpretation of “official act,” claiming that his conduct was akin to run of the mill things public officials do every day to benefit their constituents. The …
What Is The Relevant Parcel? Clarifying The "Parcel As A Whole" Standard In Murr V. Wisconsin, Gavin S. Frisch
What Is The Relevant Parcel? Clarifying The "Parcel As A Whole" Standard In Murr V. Wisconsin, Gavin S. Frisch
Duke Journal of Constitutional Law & Public Policy Sidebar
Murr v. Wisconsin seeks to determine whether commonly-owned, adjacent parcels of land are considered as 1 or 2 parcels for purposes of analyzing a regulatory takings claim. Nearly 40 years ago, the Court in Penn Central rejected a property owner's takings claim which segmenting the entire parcel into discrete property rights because a compensatory taking must result from governmental action which interferes with the "parcel as a whole." In Murr, property owners argue that a local zoning ordinance effected a taking of one of their two adjoining parcels because the ordinance prohibited the owners from developing their lot. I …
An Alcohol Mindset In A Drug-Crazed World: A Review Of Birchfield V. North Dakota, Devon Beeny
An Alcohol Mindset In A Drug-Crazed World: A Review Of Birchfield V. North Dakota, Devon Beeny
Duke Journal of Constitutional Law & Public Policy Sidebar
Birchfield v. North Dakota involved the ability of legislatures to criminalize a driver’s refusal to submit to a chemical test after a law enforcement officer arrested the individual for driving under the influence of alcohol or drugs. The driver’s argued this criminalized their constitutional right to refuse a warrantless search, while the governments’ argued they needed this power in order to effectively address drunk driving in their jurisdictions. The Court decided that refusing a breath test could be criminalized because requiring the test did not violate the driver’s constitutional rights, however the Court also ruled that because of the invasive …
Ditching Your Duty: When Must Private Entities Comply With Federal Antidiscrimination Law?, Tara Knapp
Ditching Your Duty: When Must Private Entities Comply With Federal Antidiscrimination Law?, Tara Knapp
Duke Journal of Constitutional Law & Public Policy Sidebar
This Commentary considers how the Fifth Circuit characterizes “services, programs, and activities” of public agencies in Ivy v. Williams, in the context of determining whether a private entity is subject to federal antidiscrimination law. “Services, programs, and activities” of public agencies must comply with Title II of the Americans with Disabilities Act, whether directly distributed by a public or a private entity. This Commentary argues private driving schools in Texas that distribute a driving course necessary to obtaining a drivers’ license are subject to Title II because the providing the course functionally constitutes a program of the Texas Education …
Birchfield V. North Dakota: Warrantless Breath Tests And The Fourth Amendment, Sara Jane Schlafstein
Birchfield V. North Dakota: Warrantless Breath Tests And The Fourth Amendment, Sara Jane Schlafstein
Duke Journal of Constitutional Law & Public Policy Sidebar
In Birchfield v. North Dakota, the Supreme Court explored warrantless breath tests during DUI stops and their validity under the Fourth Amendment. To determine their constitutionality, the Court adopted a balancing test, weighing the government’s interest in preventing instances of drunk driving with the intrusion on an individual’s privacy. The Court ultimately concluded that warrantless breath tests are constitutional when conducted incident to a lawful DUI arrest. This commentary explores the Court’s reasoning and holding and will argue that the Court was correct in deciding that a warrant is not necessary for conducting a breath test incident to a …
Drawing Lines: Racial Gerrymandering In Bethune-Hill V. Virginia Board Of Elections, Scott Reed
Drawing Lines: Racial Gerrymandering In Bethune-Hill V. Virginia Board Of Elections, Scott Reed
Duke Journal of Constitutional Law & Public Policy Sidebar
In Bethune-Hill v. Virginia Board of Elections, the Supreme Court had to decide whether twelve Virginia challenged legislative districts, in which a one-size-fits-all 55% black voting age population floor was imposed, withstood constitutional scrutiny. The Court, though stating that the lower court misapplied precedent, declined to hold that race predominated in the formation of the districts and that strict scrutiny would be triggered, instead remanding to the lower court for reexamination. This commentary argues that the Court missed an opportunity to hold that a 55% BVAP floor prioritized above all else is per se racial predomination, and such a …
May The Best Canon Win: Lockhart V. United States And The Battle Of Statutory Interpretation, Hassan Shaikh
May The Best Canon Win: Lockhart V. United States And The Battle Of Statutory Interpretation, Hassan Shaikh
Duke Journal of Constitutional Law & Public Policy Sidebar
In Lockhart v. United States, the Supreme Court resolved a long-standing circuit split regarding 18 U.S.C. § 2252(b)(2), which triggered a mandatory minimum sentence for recidivists who had previously been convicted under federal or state crimes relating to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” In expected fashion, the Court relied on the statute’s plain meaning to decide whether Lockhart’s previous crime had triggered the mandatory minimum. However, even with identical approaches to the text, the majority and dissent reached contrary conclusions. This commentary explores how a single approach could result in …
Commodity Supply And Extraterritorial Patent Infringement In Life Technologies V. Promega, G. Edward Powell
Commodity Supply And Extraterritorial Patent Infringement In Life Technologies V. Promega, G. Edward Powell
Duke Journal of Constitutional Law & Public Policy Sidebar
American patent law grants inventors the exclusive right, within U.S. territory, to make, sell, use, and import their patented inventions. In response to attempts to circumvent the right by making the components of an invention within the U.S. and exporting them for assembly abroad, Congress passed 35 U.S.C. § 271(f), prohibiting “suppl[ying] . . . from the United States all or a substantial portion of the components of a patented invention . . . to actively induce the combination of such components outside of the United States . . . .” Petitioner Life Technologies supplied one commodity component of a …
Without More, There Is No More: Standing And Racial Gerrymandering In Wittman V. Personhuballah, Jessica Edmundson
Without More, There Is No More: Standing And Racial Gerrymandering In Wittman V. Personhuballah, Jessica Edmundson
Duke Journal of Constitutional Law & Public Policy Sidebar
In drawing election maps, racial gerrymandering separates minority groups, packing them into specific districts to weaken the power of their votes. In Wittman v. Personhuballah, the Supreme Court held that a group of Virginia congressmen that neither lived in, nor represented a district did not have standing to defend gerrymandering in that district. Although the Court had the opportunity to address the substantive issues in the case, it did not, leaving a substantial gap in racial gerrymandering jurisprudence. This commentary explores the consequences of this gap and argues that the Court should not find a legally cognizable right in …
Mccrory V. Harris: Constitutional Prohibitions On Racial Classifications And The Requirements Of The Voting Rights Act In Redistricting, Alex Dietz
Duke Journal of Constitutional Law & Public Policy Sidebar
In McCrory v. Harris, the Supreme Court is faced with yet another redistricting case: Are the first and twelfth Congressional Districts in North Carolina the result of impermissible racial gerrymandering? The parties' dispute centers around two questions: In what circumstances is race the predominant factor in a state legislature's redistricting plan? And in what circumstances is the use of race as a predominant factor in redistricting plans an impermissible racial gerrymander? This Commentary will provide a summary and analysis of the arguments presented for the Court's review, and argue that both North Carolina Congressional Districts should be struck down …
Moore V. Texas: Balancing Medical Advancements With Judicial Stability, Emily Taft
Moore V. Texas: Balancing Medical Advancements With Judicial Stability, Emily Taft
Duke Journal of Constitutional Law & Public Policy Sidebar
In Moore v. Texas, the Supreme Court will consider whether the Eighth Amendment requires States to adhere to a particular organization’s most recent clinical definition of intellectual disability in determining whether a person is exempt from the death penalty under Atkins v. Virginia and Hall v. Florida. Generally, the Supreme Court has carved away at the death penalty with each new case it takes. This commentary argues that the Supreme Court should not continue that trend in this case and should find for Texas because the state’s intellectual disability determination is consistent with the Eighth Amendment under Atkins …
Flight Risk Or Danger To The Community? Rodriguez And The Protection Of Civil Liberties In The U.S. Immigration System, Charlie Kazemzadeh
Flight Risk Or Danger To The Community? Rodriguez And The Protection Of Civil Liberties In The U.S. Immigration System, Charlie Kazemzadeh
Duke Journal of Constitutional Law & Public Policy Sidebar
Upon arrival to the United States, foreign nationals are required to prove beyond a doubt that they comply with the various requirements for admission into the country. For those who fail to meet this standard, there are only two options: accept immediate removal to their country of origin, or fight removal. For many who contest their deportation, their fate is civil incarceration until their case is adjudicated, which can take several years. The case of Jennings v. Rodriguez addresses the constitutionality of prolonged civil incarceration without the access of mandatory, periodic bond hearings for these individuals.
A House Built On Shifting Sands: Standing Under The Fair Housing Act After Thompson V. North American Stainless, Eric Vanderhoef
A House Built On Shifting Sands: Standing Under The Fair Housing Act After Thompson V. North American Stainless, Eric Vanderhoef
Duke Journal of Constitutional Law & Public Policy Sidebar
For decades, the Supreme Court construed standing under the Fair Housing Act broadly; any party could bring suit as long as it met Constitutional Standing requirements. In January 2011, in Thompson v. North American Stainless, the Court restricted standing under Title VII—a statute with similar empowering language to the Fair Housing Act. The Court will address Fair Housing Act standing post-Thompson in Bank of America Corp. v. City of Miami. This commentary argues that standing under the Fair Housing Act should be restricted. Additionally, it argues that the allegations of the Plaintiff-Respondent, City of Miami, of widespread reductions in tax …
Violating Equal Protection: Lynch V. Morales-Santana And The Ina’S Sex Discriminatory Physical Presence Requirement, Courtney Magnus
Violating Equal Protection: Lynch V. Morales-Santana And The Ina’S Sex Discriminatory Physical Presence Requirement, Courtney Magnus
Duke Journal of Constitutional Law & Public Policy Sidebar
In Lynch v. Morales-Santana, the Supreme Court will consider whether the Immigration and Nationality Act’s physical presence requirement scheme violates the Fifth Amendment’s equal protection guarantee. Under 8 U.S.C. §§ 1401(a)(7) and 1409(c) (1952), an unwed U.S. citizen father wishing to convey citizenship at-birth to his child born abroad cannot do so unless he has been physically present in the United States for ten years prior to the child’s birth. In contrast, an unwed citizen mother only needs to be physically present for one continuous year. This commentary argues that because §§ 1401 and 1409 facially discriminate against unwed …