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Full-Text Articles in Law
The Limits Of Advocacy, Amanda Frost
The Limits Of Advocacy, Amanda Frost
Duke Law Journal
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called "issue creation"-that is, raising legal claims and arguments that the parties have overlooked or ignored-on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins and Mapp v. Ohio were decided on grounds never raised …
Living Originalism, Thomas B. Colby, Peter J. Smith
Living Originalism, Thomas B. Colby, Peter J. Smith
Duke Law Journal
Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the "writtenness" of the Constitution necessitates a fixed constitutional meaning, and that courts that see …
Gay Rights And American Constitutionalism: What’S A Constitution For?, J. Harvie Wilkinson Iii
Gay Rights And American Constitutionalism: What’S A Constitution For?, J. Harvie Wilkinson Iii
Duke Law Journal
No abstract provided.
Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla
Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla
Duke Law Journal
No abstract provided.
The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins
The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins
Duke Law Journal
No abstract provided.
“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps
“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps
Duke Law Journal
No abstract provided.
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
Duke Law Journal
The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused frequencies, but there is good reason to believe that such government-created idle frequencies exist. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This Article addresses the question whether the scarcity rationale-or any other reasoning-supports distinguishing …
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
How The Spending Clause Can Solve The Dilemma Of State Sovereign Immunity From Intellectual Property Suits, Jennifer Cotner
Duke Law Journal
No abstract provided.
Congress As Culprit: How Lawmakers Spurred On The Court’S Anti-Congress Crusade, Neal Devins
Congress As Culprit: How Lawmakers Spurred On The Court’S Anti-Congress Crusade, Neal Devins
Duke Law Journal
No abstract provided.
Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder
Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder
Duke Law Journal
No abstract provided.
A Localist Critique Of The New Federalism, David J. Barron
A Localist Critique Of The New Federalism, David J. Barron
Duke Law Journal
No abstract provided.
The New Unwritten Constitution, Jed Rubenfeld
Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson
Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson
Duke Law Journal
No abstract provided.
The New Deal Constitution In Exile, William E. Forbath
The New Deal Constitution In Exile, William E. Forbath
Duke Law Journal
No abstract provided.
Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington
Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington
Duke Law Journal
No abstract provided.
Evaluating Congressional Constitutional Interpretation: Some Criteria And Two Informal Case Studies, Mark Tushnet
Evaluating Congressional Constitutional Interpretation: Some Criteria And Two Informal Case Studies, Mark Tushnet
Duke Law Journal
No abstract provided.
Institutional Design Of A Thayerian Congress, Elizabeth Garrett, Adrian Vermeule
Institutional Design Of A Thayerian Congress, Elizabeth Garrett, Adrian Vermeule
Duke Law Journal
No abstract provided.
Legislative Constitutional Interpretation, Neal Kumar Katyal
Legislative Constitutional Interpretation, Neal Kumar Katyal
Duke Law Journal
No abstract provided.
Defining And Punishing Abroad: Constitutional Limits On The Extraterritorial Reach Of The Offenses Clause, Zephyr Rain Teachout
Defining And Punishing Abroad: Constitutional Limits On The Extraterritorial Reach Of The Offenses Clause, Zephyr Rain Teachout
Duke Law Journal
No abstract provided.
Sovereignty And Suspicion, Erik G. Luna
Sovereignty And Suspicion, Erik G. Luna
Duke Law Journal
Most academics agree that search and seizure jurisprudence is a "mess." Professor Luna proposes a new approach to the Fourth Amendment founded on a sovereignty-based theory of the Constitution. Under this individual rights model, a government search or seizure of an individual's home or body receives the strongest presumption of invalidity. This presumption, he argues, could only be rebutted in three discrete circumstances: (1) consent by the individual to search his home or body; (2) individualized suspicion of wrongdoing; or (3) real, direct, and substantial threats to the sovereignty of other persons. Apart from these exceptions, governmental intrusions into the …
Canon, Anti-Canon, And Judicial Dissent, Richard Primus
Canon, Anti-Canon, And Judicial Dissent, Richard Primus
Duke Law Journal
No abstract provided.
The Least Among Us: Unconstitutional Changes In Prisoner Litigation Under The Prison Litigation Reform Act Of 1995, Julie M. Riewe
The Least Among Us: Unconstitutional Changes In Prisoner Litigation Under The Prison Litigation Reform Act Of 1995, Julie M. Riewe
Duke Law Journal
I don't like prisoners. Nobody pretends to like them, but every once in a while, one of these people is right. And a society is judged by how it treats the least among it, not the best. I'm not worried about how presidents of banks and chairmen of the board and of country clubs are treated, or star quarterbacks, or other prima donnas. The job of the Constitution is to make sure that everyone is treated properly. [Prisoners] fall[] into the everybody category.
Symbolic Statues And Real Laws: The Pathologies Of The Antiterrorism And Effective Death Penalty Act And The Prison Litigation Reform Act, Mark Tushnet, Larry Yackle
Symbolic Statues And Real Laws: The Pathologies Of The Antiterrorism And Effective Death Penalty Act And The Prison Litigation Reform Act, Mark Tushnet, Larry Yackle
Duke Law Journal
Criminals are not popular. No politician in recent memory has lost an election for being too tough on crime. In 1996, the Republican Congress and the Democratic President collaborated on two major statutes affecting the legal protections available to criminals. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) modifies the habeas corpus statute in a number of ways, affecting the disposition of federal post-conviction challenges to all criminal convictions, not just those resulting in death sentences. The Prison Litigation Reform Act (PLRA) addresses lawsuits filed by prisoners challenging the conditions of their confinement. The PLRA covers both suits …
Cadenced Power: The Kinetic Constitution, Laura S. Fitzgerald
Cadenced Power: The Kinetic Constitution, Laura S. Fitzgerald
Duke Law Journal
No abstract provided.
Arbitrariness And The Death Penalty In An International Context, Mary K. Newcomer
Arbitrariness And The Death Penalty In An International Context, Mary K. Newcomer
Duke Law Journal
No abstract provided.
Forces And Mechanisms In The Constitution-Making Process, Jon Elster
Forces And Mechanisms In The Constitution-Making Process, Jon Elster
Duke Law Journal
No abstract provided.
The “Proper” Scope Of Federal Power: A Jurisdictional Interpretation Of The Sweeping Clause, Gary Lawson, Patricia B. Granger
The “Proper” Scope Of Federal Power: A Jurisdictional Interpretation Of The Sweeping Clause, Gary Lawson, Patricia B. Granger
Duke Law Journal
No abstract provided.
Justice And The Text: Rethinking The Constitutional Relation Between Principle And Prudence, Christopher L. Eisgruber
Justice And The Text: Rethinking The Constitutional Relation Between Principle And Prudence, Christopher L. Eisgruber
Duke Law Journal
No abstract provided.
Has Due Process Struck Out? The Judicial Rubberstamping Of Retroactive Economic Laws, Andrew C. Weiler
Has Due Process Struck Out? The Judicial Rubberstamping Of Retroactive Economic Laws, Andrew C. Weiler
Duke Law Journal
No abstract provided.
“If Angels Were To Govern”: The Need For Pragmatic Formalism In Separation Of Powers Theory, Martin H. Redish, Elizabeth J. Cisar
“If Angels Were To Govern”: The Need For Pragmatic Formalism In Separation Of Powers Theory, Martin H. Redish, Elizabeth J. Cisar
Duke Law Journal
No abstract provided.