Law Commons^™

Kansas V. Nebraska & Colorado: Keeping Equity Afloat In The Republican River Dispute, Charles Punia

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kansas v. Nebraska & Colorado. The Supreme Court will have the opportunity to resolve a decades-old conflict over water rights in the Republican River which flows through Colorado, Nebraska, and Kansas. In this case of original jurisdiction, the Court will determine both whether Nebraska violated a 60-year old compact concerning water rights, and what the appropriate remedy should be for that violation.

Stopping Police In Their Tracks: Protecting Cellular Location Information Privacy In The Twenty-First Century, Stephen Wagner

Duke Law & Technology Review

Only a small fraction of law enforcement agencies in the United States obtain a warrant before tracking the cell phones of suspects and persons of interest. This is due, in part, to the fact that courts have struggled to keep pace with a changing technological landscape. Indeed, courts around the country have issued a disparate array of holdings on the issue of warrantless cell phone tracking. This lack of judicial uniformity has led to confusion for both law enforcement agencies and the public alike. In order to protect reasonable expectations of privacy in the twenty-first century, Congress should pass legislation …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Reworking The Unworkable: Halliburton Ii And The Court's Reexamination Of Fraud On The Market, Mariana Estévez

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews the upcoming Supreme Court case Erica P. John Fund, Inc. v. Halliburton Co. in which the Court is called upon to reexamine the controversial fraud-on-the-market rule. This rule, a cornerstone of securities litigation for the past two decades, allows the court to presume that securities fraud plaintiffs relied on a misstatement or omission if the security affected is traded on an efficient market. The subject of intense debate for years, this commentary reviews and analyzes precedent and predicts the case's likely outcome--that the Court will not expressly overrule the fraud-on-the-market rule, but will nevertheless modify it to …

Bond V. United States. Deciphering Missouri V. Holland And The Scope Of Congress's Powers When Implementing A Non-Self-Executing Treaty, Stephanie Peral

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bond v. United States. What started as an act of revenge by a jealous wife will require the Supreme Court to examine a ninety-year old precedent concerning the extent of Congress's powers when acting pursuant to a treaty and whether a valid treaty allows Congress to act without being limited by the Article I enumerated powers.

What's Money Got To Do With It: Robers V. United States And Collateral Under The Mandatory Victims Restitution Act Of 1996, Tori M. Bennette

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Robers v. United States. The Supreme Court will have the opportunity to resolve a major circuit split concerning how to value restitution owed to victims of mortgage lending fraud. Specifically, the court will determine whether the value of collateral mortgage property at the time of foreclosure is used to offset how much restitution fraudulent borrowers owe their victims, or whether the value of only the actual cash proceeds received from foreclosure of the property is used to offset restitution.

A Tradition Of Sovereignty: Examining Tribal Sovereign Immunity In Bay Mills Indian Community V. Michigan, Meredith L. Jewitt

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bay Mills Indian Community v. Michigan, in which the Court may decide whether the doctrine of Tribal Sovereign Immunity prohibits Michigan's attempt to enjoin Indian gaming in the state or whether Congress expressly allowed the suit when passing the Indian Gaming Regulatory Act.

Up In The Air: Lawson V. Fmr Llc & The Scope Of Sarbanes-Oxley Whistleblower Protection, Ryan Mccarthy

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Lawson v. FMR LCC, in which the Court will consider whether Sarbanes-Oxley extends whistleblower protection to employees of the private contractors and subcontractors of public companies.

A Bridge Too Far: The Limits Of The Political Process Doctrine In Schuette V. Coalition To Defend Affirmative Action, Christopher E. D'Alessio

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Schuette v. Coalition to Defend Affirmative Action, in which the Court will consider whether Michigan violated the Equal Protection Clause of the Fourteenth Amendment by amending its constitution to prohibit race-based preferential treatment in public-university admissions decisions.

In Connection With What?: Chadbourne & Parke Llp V. Troice And The Applicability Of The Securities Litigation Uniform Standards Act, John W. Messick

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Chadbourne & Parke LLP v. Troice, in which the Court will clarify whether the Securities Litigation Uniform Standards Act precludes a state law class action alleging a scheme of fraud involving misrepresentations about transactions in covered-securities.

Proskauer Rose Llp V. Troice: Deciphering The Proper Scope Of Slusa, Sriram Giridharan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kaley v. United States, in which the Court may decide whether a defendant who needs potentially forfeitable assets to retain counsel of choice is entitled, under the Due Process Clause, to a hearing to challenge the grand jury's finding of probable cause.

The “Constitution In Exile” As A Problem For Legal Theory, Stephen E. Sachs

Faculty Scholarship

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?

This …

Common Sense And Key Questions, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

Selling State Borders, Joseph Blocher

Faculty Scholarship

Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second.

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

Rollover Risk: Ideating A U.S. Debt Default, Steven L. Schwarcz

Faculty Scholarship

This article examines how a U.S. debt default might occur, how it could be avoided, its potential consequences if not avoided, and how those consequences could be mitigated. To that end, the article differentiates defaults caused by insolvency from defaults caused by illiquidity. The latter, which are potentiated by rollover risk (the risk that the government will be temporarily unable to borrow sufficient funds to repay its maturing debt), are not only plausible but have occurred in the past. Moreover, the ongoing controversy over the federal debt ceiling and the rise of the shadow-banking system make these types of defaults …

The Diversity Feedback Loop, Patrick Shin, Devon Carbado, Mitu Gulati

Faculty Scholarship

At some point in the near future, the Supreme Court will weigh in on the permissible scope of affirmative action to increase workplace diversity. Undoubtedly, many scholars will argue that if affirmative action is good for colleges and universities, it is good for workplaces as well. One cannot assess whether this “transplant” argument is right without understanding the complex ways in which diversity initiatives at colleges and universities interact with diversity initiatives at work. The university and the workplace are not separate and distinct institutional settings in which diversity is or is not achieved. They are part of an interconnected …

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …

The Puzzling Persistence Of Dual Federalism, Ernest A. Young

Faculty Scholarship

This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …

Is There A Federal Definitions Power?, Ernest A. Young

Faculty Scholarship

Although the Supreme Court decided United States v. Windsor on equal protection grounds, that case also raised important and recurring questions about federal power. In particular, defenders of the Defense of Marriage Act (DOMA) argued that Congress may always define the terms used in federal statutes, even if its definition concerns a matter reserved to the States. As the DOMA illustrates, federal definitions concerning reserved matters that depart from state law may impose significant burdens on state governments and private citizens alike. This Article argues that there is no general, freestanding federal definitions power and that sometimes—as with marriage—federal law …

None Of The Laws But One, Neil S. Siegel

Faculty Scholarship

This Symposium contribution explores differences in how congressional Republicans responded to Medicare and how they responded to the Patient Protection and Affordable Care Act (ACA). Given the narrowness of the constitutional challenges to the ACA that congressional Republicans promoted and the many federal taxes, expenditures, and regulations that they support, this Article rejects the suggestion that today's Republicans in Congress generally possess a narrow view of the constitutional scope of federal power. The Article instead argues that congressional Republicans then and now-and the two parties in Congress today-fracture less over the constitutional expanse of congressional authority and more over the …

Good Cause Requirements For Carrying Guns In Public, Joseph Blocher

Faculty Scholarship

No abstract provided.

The ‘Competition Of The Market’: “Enter The Elephant!” [A Restatement Of A Most Perplexing First Amendment Conundrum], William W. Van Alstyne

Faculty Scholarship

This short essay revisits the enduring problem of “government propaganda” in the domestic marketplace of “competing ideas.” Drawing his argument from the suggestions and from strongly worded dicta by several famous twentieth century justices (most notably Oliver Wendell Holmes, Jr., Louis Brandeis, Robert Jackson and Hugo Black), Van Alstyne suggests that the First Amendment invests every ordinary citizen with suitable standing (akin to that of a corporate shareholder) to call upon any judge bound by oath of office, as set forth in Article VI, and whose aid is thus appropriately invoked, to enjoin the government from acting as an ideological …

Peruta, The Home-Bound Second Amendment, And Fractal Originalism, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Exit, Voice, And Loyalty As Federalism Strategies: Lessons From The Same-Sex Marriage Debate, Ernest A. Young

Faculty Scholarship

No abstract provided.

Brief Of Financial Economists As Amici Curiae In Support Of Respondents, Ernest A. Young

Faculty Scholarship

No abstract provided.

Saving Originalism’S Soul, Stephen E. Sachs

Faculty Scholarship

No abstract provided.

The National Security State: The End Of Separation Of Powers, Michael E. Tigar

Faculty Scholarship

No abstract provided.

After Recess: Historical Practice, Textual Ambiguity, And Constitutional Adverse Possession, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The Supreme Court’s interpretation of the Recess Appointments Clause in NLRB v. Noel Canning stands as one of the Supreme Court’s most significant endorsements of the relevance of “historical gloss” to the interpretation of the separation of powers. This Article uses the decision as a vehicle for examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. As the Article explains, Noel Canning exemplifies how the constitutional text, perceptions about clarity or ambiguity, and “extra-textual” considerations such as historical practice operate interactively rather than as separate elements of interpretation. The decision also provides a …