Law Commons^™

A Way Forward After Dobbs: Human Rights Advocacy And Self-Managed Abortion In The United States, Kelly Keglovits

Duke Journal of Constitutional Law & Public Policy Sidebar

Even in the era before Dobbs, wherein the Supreme Court repeatedly classified abortion as a "fundamental right," the ability to have an abortion was inaccessible in many parts of the United States. The irony that a "fundamental right" was so difficult to exercise results from how Constitutional rights are understood, which left many open-ended avenues for states to bring restrictions. International Human Rights law, however, offers a more optimistic and accountable approach to steps forward in increasing abortion access—illustrating a need to bring a human rights-based approach home. Dobbs has eviscerated any concept of federal protections for abortion, severely worsening …

Ai And The Regulatory Paradigm Shift At The Fda, Catherine M. Sharkey, Kevin M. K. Fodouop

Duke Law Journal Online

No abstract provided.

Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària

Judicature International

No abstract provided.

The Fracas At The Fdic, Todd Phillips

Duke Law Journal Online

In December 2021, the Democratic members of the Board of Directors of the Federal Deposit Insurance Corporation (FDIC) attempted to use their majority to issue a request for information but were blocked by the Republican Chair. Although the Democrats outnumbered the Chair three-to-one, the agency's General Counsel declared the move invalid, and the request went unpublished. After weeks of hostility, the Chair resigned, effectively conceding her inability to lead the agency. Although governance at the FDIC is now settled, concern over the Democratic directors' actions and the Chair's resignation have reverberated beyond that singular agency. Republicans are concerned that the …

Jury Nullification In Abortion Prosecutions: An Equilibrium Theory, Peter N. Salib, Guha Krishnamurthi

Duke Law Journal Online

The Supreme Court has overturned Roe v. Wade. Doing so, it has rescinded recognition of a fundamental constitutional right for the first time in nearly a century. Even before Roe's demise, multiple states enacted laws to criminalize abortion once the abortion right was gone. More states will surely follow soon. Calls to action have gone out to those who can protect women's rights: the President, Congress, left­leaning state governments, and more. We add another call - to jurors.

Jurors - and sometimes judges - have the power to refuse to convict factually guilty defendants in criminal prosecutions when they believe …

Antitrust As An Instrument Of Democracy, Daniel A. Crane

Duke Law Journal Online

No abstract provided.

Cryptocurrency, Legibility, And Taxation, Amanda Parsons

Duke Law Journal Online

In Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance …

Artificial Justice: The Quandary Of Ai In The Courtroom, Paul W. Grimm, Maura R. Grossman, Sabine Gless, Mireille Hildebrandt

Judicature International

No abstract provided.

Designing Constitutions For A Lasting Democracy, Donald L. Horowitz, Elisabeth Perham

Judicature International

No abstract provided.

A Global Comparison Of Judicial Discipline Mechanisms, Zhuozhen Duan

Judicature International

No abstract provided.

Dueling Dictionaries And Clashing Corpora, Kevin Tobia

Duke Law Journal Online

No abstract provided.

We Can't Talk About Race Unless We Also Talk About Art, Lavinia Liang

Duke Law Journal Online

No abstract provided.

Catchall Policing And The Fourth Amendment, Nirej Sekhon

Duke Law Journal Online

American police do a bit of everything. They direct traffic, resolve private disputes, help the sick and injured, and do animal control. Far less frequently than one might think, they make arrests. Americans reflexively call the police for troubles, big and small. The “catchall tradition” is shorthand for this melding of non-adversarial, public assistance with adversarial, crime-control functions. The catchall tradition means that civilians are exposed to the police’s coercive power as a condition of receiving police help. This Article contends that the catchall tradition is antithetical to constitutional police regulation. The Supreme Court has distinguished adversarial from non-adversarial state …

Rattlesnakes, Debt, And Arpa § 1005: The Existential Crisis Of American Black Farmers, Maia Foster, P. J. Austin

Duke Law Journal Online

No abstract provided.

How Technology Is Changing Justice In China, Shitong Qiao, Zhiyu Li, Benjamin Chen

Judicature International

No abstract provided.

Done The Time, Still Being Punished For The Crime: The Irrationality Of Collateral Consequences In Occupational Licensing And Fourteenth Amendment Challenges, Mccarley Maddock

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. …

Universalizing Fraud, Parmida Enkeshafi

Duke Journal of Constitutional Law & Public Policy Sidebar

The criminal trial of Elizabeth Holmes has reanimated public interest in fraud. Holmes, once a Silicon Valley prodigy, was charged with two counts of conspiracy to commit wire fraud and eleven counts of wire fraud. A jury found Holmes guilty on four counts, potentially subjecting her to 80 years in prison. This Note uses the example of Elizabeth Holmes's case to examine more broadly the role of morality in fraud and argues for a new framework by which to articulate and prosecute fraud.

Criminal jurisprudence has struggled to construct a satisfactory definition of "white-collar crime" since sociologist Edwin H. Sutherland …

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 …

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 …

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 …

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 …

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.

F.B.I. V. Fazaga: The Secret Of The State-Secrets Privilege, Rebecca Reeves

Duke Journal of Constitutional Law & Public Policy Sidebar

When the government successfully invokes the state-secrets privilege, it allows for evidence to be excluded from trial if making that evidence public would threaten national security. It is unclear, however, under what circumstances this privilege can be invoked, what happens when it is successfully invoked, and what occurs after the evidence is excluded. In Federal Bureau of Investigation v. Fazaga, the Supreme Court will have the opportunity to clarify the state-secrets privilege. Additionally, the Court will be asked to determine whether the Foreign Intelligence Surveillance Act of 1978 (FISA) displaces this privilege when the government invokes it regarding evidence …

Proper Cause For Concern: New York State Rifle & Pistol Association V. Bruen, Ali Rosenblatt

Duke Journal of Constitutional Law & Public Policy Sidebar

Gun rights and gun control advocates alike are watching the Supreme Court, to see what happens in New York State Rifle & Pistol Association, Inc. v. Bruen. In this pivotal Second Amendment case, the Court finds its first opportunity to substantially extend its 2008 decision in District of Columbia v. Heller, and to define the scope of the Second Amendment right to bear arms outside the home. The Court can decide this case narrowly by limiting its decision to the statutes at issue, New York’s “proper cause” regime (the “New York law”). Alternatively, the Court can rule broadly and use …

Addressing Interstate Ground Water Ownership: Mississippi V. Tennessee, Alec Sweet

Duke Journal of Constitutional Law & Public Policy Sidebar

Contemporaneous with significant climate change and heightened environmental concerns, the Supreme Court has seen an increasing number of water-related lawsuits between states. These lawsuits include disputes over water storage and water compacts as well as disputes over water usage affecting aquaculture. Scientists predict that in the future, the United States could face rising temperatures, droughts, and natural disasters. If states cannot cooperate to conserve the water they share, these catastrophes could cause immense suffering and numerous conflicts between states. The Supreme Court needs a consistent doctrine to apply in water disputes.

In prior disputes over surface water, the Court has …

Spurious Pedigree Of The "Valid-When-Made" Doctrine, Adam J. Levitin

Duke Law Journal Online

The “valid-when-made” doctrine holds that if a loan was not subject to a state usury law when it was made, it can never subsequently become so upon transfer. The doctrine is supposedly a “well-established and widely accepted” common law doctrine that is a “cardinal rule” of banking law endorsed by multiple Supreme Court decisions.

This Article demonstrates the valid-when-made doctrine’s spurious historical pedigree. The doctrine is a modern invention, fabricated by attorneys for financial services trade associations in the appeals from the Second Circuit’s Madden decision. It rests solely on decontextualized and misinterpreted quotations from nineteenth century cases dealing with …

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 …

Moral Economies Of Family Reunification In The Trump Era: Translating Natural Affiliation, Autonomy, And Stability Arguments Into Constitutional Rights, Kerry Abrams, Daniel Pham

Faculty Scholarship

No abstract provided.

Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon

Faculty Scholarship

No abstract provided.