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Articles 1 - 11 of 11
Full-Text Articles in Law
Let History Repeat Itself: Solving Originalism's History Problem In Interpreting The Establishment Clause, Neil Joseph
Let History Repeat Itself: Solving Originalism's History Problem In Interpreting The Establishment Clause, Neil Joseph
Duke Journal of Constitutional Law & Public Policy Sidebar
The Supreme Court's Establishment Clause jurisprudence is all over the place. The current justices have widely divergent views on the Establishment Clause's meaning, and the Lemon test has been widely panned by several justices. Originalist judges, however, have had a fairly consistent approach to interpreting the Establishment Clause. This largely stems from their reliance on history. This Note argues that their use of history in analyzing the Establishment Clause is flawed. Originalist Establishment Clause jurisprudence has been and is criticized for being unprincipled. And those criticisms are correct. Originalists encounter such criticism because the justices struggle to reconcile historical practice …
Gamble V. United States: A Commentary, Kayla Mullen
Gamble V. United States: A Commentary, Kayla Mullen
Duke Journal of Constitutional Law & Public Policy Sidebar
Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single act, may …
Litigating War: The Justiciability Of Executive War Power, Chris Smith
Litigating War: The Justiciability Of Executive War Power, Chris Smith
Duke Journal of Constitutional Law & Public Policy Sidebar
Courts frequently dismiss claims against the Executive’s use of the war power as being non-justiciable political questions. This lack of a judicial check has created a situation in which meaningful checks and balances on the war power are found only in the Executive Branch itself. But the Constitution places the bulk of war powers in the hands of Congress. Executive usurpation of Congress’s constitutional prerogative to initiate hostilities has significantly weakened the separation of powers. In the aftermath of the Vietnam War, Congress sought to reassert its constitutional authority over war-making decisions by passing the War Powers Resolution. The Resolution …
The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor
The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor
Duke Journal of Constitutional Law & Public Policy Sidebar
In Herrera v. Wyoming, the Supreme Court is considering how to reconcile the Crow Tribe’s hunting right with Wyoming’s sovereignty. This endeavor requires examining nineteenth-century treaties and precedents to decipher the intents of the Crow Tribe and the United States government. If the Court’s decision includes a clear articulation of whether Native American treaty rights may be truncated by mere implication, tribes nationwide may be at risk of losing treaty rights they have enjoyed for centuries. In making its decision, the Supreme Court will also have to weigh the advantages and disadvantages of overturning precedent and of undermining its …
Apple V. Pepper: Applying The Indirect Purchaser Rule To Online Platforms, Jason Wasserman
Apple V. Pepper: Applying The Indirect Purchaser Rule To Online Platforms, Jason Wasserman
Duke Journal of Constitutional Law & Public Policy Sidebar
Long-established antitrust precedent bars customers who buy a firm’s product through intermediaries from suing that firm for antitrust damages. In Apple Inc. v. Pepper, this “indirect purchaser rule” is brought into the smartphone age in a price-fixing dispute between technology giant Apple and iPhone users. This case will determine whether iPhone users buy smartphone applications directly from Apple through the App Store, or if Apple is merely an intermediary seller-agent of app developers. The indirect purchase rule is generally considered settled precedent. How the rule should apply to online platforms, however, differs between circuit courts, which have split on …
A Test Of Sovereignty: Franchise Tax Board Of The State Of California V. Gilbert P. Hyatt, Timothy Dill
A Test Of Sovereignty: Franchise Tax Board Of The State Of California V. Gilbert P. Hyatt, Timothy Dill
Duke Journal of Constitutional Law & Public Policy Sidebar
In Franchise Tax Board of California v. Hyatt, the Supreme Court considers whether to overrule Nevada v. Hall, a 1979 Supreme Court decision. Hall permitted a State to be haled into the court of another State without its consent. In 2016, an evenly divided Supreme Court affirmed Hall 4-4 when faced with the same question, and following a remand to the Nevada Supreme Court, the Court has granted certiorari on this question once again. This Commentary contends that Hall was wrongly decided and should be overruled. The Constitution’s ratification did not alter the status of common-law State sovereign …
Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani
Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani
Duke Journal of Constitutional Law & Public Policy Sidebar
Leading a group in prayer in a public setting blurs the line between public and private. Such blurring implicates a constitutional tension between the Establishment Clause and the Free Exercise Clause. This tension is magnified when the constitutionality of prayer is questioned in the context of democratic participation. Current Supreme Court precedent holds legislative prayer to be constitutional, but the relevant cases, Marsh v. Chambers and Town of Greece, NY v. Galloway, do not address the specific constitutionality of legislator-led prayer. There is currently a circuit split on the subject: in Bormuth v. County of Jackson, the United …
Stepping Into The Breach: State Constitutions As A Vehicle For Advancing Rights-Based Climate Litigation, Benjamin T. Sharp
Stepping Into The Breach: State Constitutions As A Vehicle For Advancing Rights-Based Climate Litigation, Benjamin T. Sharp
Duke Journal of Constitutional Law & Public Policy Sidebar
The perceived failures of the political branches to mitigate climate change have led climate change activists to seek alternative means to achieve reductions in greenhouse gas emissions; many are turning to litigation. The claims in these cases rely on a variety of legal bases, but this Note will focus on those cases claiming that governments’ failures to prevent climate change amount to violations of the plaintiffs’ constitutional rights under the Due Process Clause of the Fifth Amendment. Rights-based climate change litigation is likely to increase in the future. Among the most prominent of the surviving rights-based cases is Juliana v. …
Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez
Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez
Duke Journal of Constitutional Law & Public Policy Sidebar
Once again, the Supreme Court of the United States has an opportunity to determine the extent to which death-row inmates can bring as-applied challenges to the states’ method of execution and prevent possible botched executions. In Bucklew v. Precythe, the Court will confront the assumptions that the execution team is equipped to handle any execution and that the procedure will go as planned. Additionally, the Court will determine whether the standard articulated in Glossip v. Gross, which requires inmates asserting facial challenges to the states’ method of execution to plead a readily available alternative method of execution, further …
Swords Into Plowshares: Nuclear Power And The Atomic Energy Act’S Preemptive Scope In Virginia Uranium, Inc. V. Warren, Francis X. Liesman
Swords Into Plowshares: Nuclear Power And The Atomic Energy Act’S Preemptive Scope In Virginia Uranium, Inc. V. Warren, Francis X. Liesman
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary highlights the considerations the Supreme Court should attend to in its decision in Virginia Uranium, Inc. v. Warren, both in construing § 2021(k) and in reviewing the Fourth Circuit’s reading of precedent from other circuits and from the Court’s prior opinions. Specifically, the Court must clarify how to interpret § 2021(k)’s activities component in concert with its “for purposes” language and determine the importance of the particular underlying activity the state seeks to regulate in a preemption analysis under the Atomic Energy Act. Clarification is necessary to ensure that courts properly effectuate Congress’s intent in regulating nuclear …
Timbs V. Indiana: The Constitutionality Of Civil Forfeiture When Used By States, Kris Fernandez
Timbs V. Indiana: The Constitutionality Of Civil Forfeiture When Used By States, Kris Fernandez
Duke Journal of Constitutional Law & Public Policy Sidebar
In Timbs v. Indiana, Petitioner Tyson Timbs asks the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment against the states, providing extra protection for individuals against fines and forfeiture that are “grossly disproportionate” to the harm caused. The decision to incorporate the Excessive Fines Clause and the guidelines for applying that incorporation would have a substantial effect on governments, which often rely on the revenue gained from forfeiture. This commentary argues that the Supreme Court of the United States should incorporate the Excessive Fines Clause based on historical support of an individual’s right to be …