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Articles 1 - 30 of 98
Full-Text Articles in Law
Historic Preservation: Launched From Grand Central Terminal, But Derailing, Kraz Greinetz
Historic Preservation: Launched From Grand Central Terminal, But Derailing, Kraz Greinetz
Duke Journal of Constitutional Law & Public Policy Sidebar
In Penn Central Transportation Co. v. City of New York, the Supreme Court authorized the practice of historic preservation. Ruling that when a city designates a building as "historic" and therefore restricting its development, it is not a "taking" of private property that requires just compensation under the Fifth Amendment. Since that time, historic preservation has proliferated in America's cities. But it's time for another look. Since Penn Central was decided, the facts and law of property regulation in the United States have changed. And the decision, which was wrong from an originalist perspective when it was decided, has …
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 …
Administrative Law In The 1930s: The Supreme Court’S Accommodation Of Progressive Legal Theory, Mark Tushnet
Administrative Law In The 1930s: The Supreme Court’S Accommodation Of Progressive Legal Theory, Mark Tushnet
Duke Law Journal
In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal-the SEC, the NLRB, and others-meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself In a series of contentious cases decided by the Hughes Court, Progressives believed …
General Corporation Laws: History And Economics , David Mcbride
General Corporation Laws: History And Economics , David Mcbride
Law and Contemporary Problems
No abstract provided.
On Corporate Codification: A Historical Peek At The Model Business Corporation Act And The American Law Institute Principles Through The Delaware Lens, E. Norman Veasey
On Corporate Codification: A Historical Peek At The Model Business Corporation Act And The American Law Institute Principles Through The Delaware Lens, E. Norman Veasey
Law and Contemporary Problems
No abstract provided.
“A Considerable Surgical Operation”: Article Iii, Equity, And Judge-Made Law In The Federal Courts, Kristin A. Collins
“A Considerable Surgical Operation”: Article Iii, Equity, And Judge-Made Law In The Federal Courts, Kristin A. Collins
Duke Law Journal
No abstract provided.
Essay: Sovereign Syndicated Bank Credits In The 1970s, Philip R. Wood
Essay: Sovereign Syndicated Bank Credits In The 1970s, Philip R. Wood
Law and Contemporary Problems
No abstract provided.
Sovereign Sukuk: Adaptation And Innovation, A. Roger Wedderburn-Day
Sovereign Sukuk: Adaptation And Innovation, A. Roger Wedderburn-Day
Law and Contemporary Problems
No abstract provided.
The Last Bankrupt Hanged: Balancing Incentives In The Development Of Bankruptcy Law, Emily Kadens
The Last Bankrupt Hanged: Balancing Incentives In The Development Of Bankruptcy Law, Emily Kadens
Duke Law Journal
This Article frames the history of the Anglo-American bankruptcy tradition as a search for solutions to the basic problem that has from the first underlain the bankruptcy process: how to obtain the assistance of a debtor in his financial dismantling. The pivotal moment in this story came in the years 1705 and 1706, when the English Parliament drafted a bill making the bankrupt's refusal to cooperate with the commissioners running his bankruptcy a capital crime. Almost as an afterthought, they also introduced discharge of debt. Incentivizing cooperation with discharge would have a fruitful future. Coercing the debtor to be honest, …
Searching For Terrorists: Why Public Safety Is Not A Special Need, Ric Simmons
Searching For Terrorists: Why Public Safety Is Not A Special Need, Ric Simmons
Duke Law Journal
In the wake of the terrorist attacks of September 11, 2001, local police across the country instituted blanket searches without individualized suspicion at various venues-including political protests, sporting events, subway platforms, and public ferries-all in an attempt to prevent further terrorist attacks. When evaluating these searches, courts rely upon the special needs doctrine, which allows the government to conduct a suspicionless search as long as the search serves a special need distinct from the goals of law enforcement. Over the past eight years, courts have struggled to determine whether and how the special needs doctrine applies to these searches, and …
The Fiscal Revolution And Taxation: The Rise Of Compensatory Taxation, 1929-1938, Joseph J. Thorndike
The Fiscal Revolution And Taxation: The Rise Of Compensatory Taxation, 1929-1938, Joseph J. Thorndike
Law and Contemporary Problems
Thorndike explores the Keynesian conversion of Treasury Department tax-policy experts during the 1930s. At the beginning of the Great Depression, he narrates that there was no political interest in using tax cuts to promote economic recovery. In fact, in 1932 Congress responded to the economic emergency by enacting a tax increase in the name of fiscal responsibility. By 1937, however, Treasury experts had become persuaded of the merits of countercyclical taxation. Ironically, the first legislative experiment in Keynesian taxation took the form of a tax increase--the short-lived 1937 tax on undistributed corporate profits, intended to stimulate the economy by discouraging …
Surrogacy And The Politics Of Commodification, Elizabeth S. Scott
Surrogacy And The Politics Of Commodification, Elizabeth S. Scott
Law and Contemporary Problems
Scott explores the history of surrogacy over the past twenty years. She also offers a historical account of the legal and social issues surrounding surrogacy over the past twenty years. She seeks to explain how and why the social and political meanings of surrogacy have changed over the past decade. Furthermore, she examines how surrogacy was framed as commodification in the Baby M context.
Salmon, Sage-Brush, And Safaris: Alaska’S Territorial Judicial System And The Adventures Of The Floating Court, 1901-1915, Michael Schwaiger
Salmon, Sage-Brush, And Safaris: Alaska’S Territorial Judicial System And The Adventures Of The Floating Court, 1901-1915, Michael Schwaiger
Alaska Law Review
No abstract provided.
The Court And The Code: A Response To The Warp And Woof Of Statutory Interpretation, Lawrence Zelenak
The Court And The Code: A Response To The Warp And Woof Of Statutory Interpretation, Lawrence Zelenak
Duke Law Journal
No abstract provided.
‘The Federalist’ Abroad In The World, Donald L. Horowitz
‘The Federalist’ Abroad In The World, Donald L. Horowitz
Faculty Scholarship
This paper traces the influence of The Federalist Papers on five continents. From 1787 to roughly 1850, The Federalist was widely read and highly influential, especially in Europe and Latin America. Federalist justifications for federalism as a solution to the problem of creating a continental republic or to provincial rivalries were widely accepted. So, too, was the presidency, at least in Latin America, and that region adopted judicial review later in the nineteenth century. Presidentialism and judicial review fared less well in Western Europe. Following World War II, judicial review slowly became part of the standard equipment of new and …
Justice In Many Rooms Since Galanter: De-Romanticizing Legal Pluralism Through The Cultural Defense, Mitra Sharafi
Justice In Many Rooms Since Galanter: De-Romanticizing Legal Pluralism Through The Cultural Defense, Mitra Sharafi
Law and Contemporary Problems
Sharafi explores the emergence of legal pluralism during 1970s and 80s and discusses its relation in the cultural defense. Legal pluralism was more than a methodological stance intended to help lawyers and anthropologists talk to each other; it was an ideological commitment. In the 1980s, scholars like Marc Galanter and Sally Merry inaugurated the legal-pluralist sequel to the "what-is-law" debate between legal positivists and natural-law advocate. There are two major changes in the conception of legal pluralism brought about by the works of Galanter and his colleagues. The first was the shift from the understanding of legal pluralism as a …
Speaking Of Inconvenient Truths—A History Of The Public Trust Doctrine, James L. Huffman
Speaking Of Inconvenient Truths—A History Of The Public Trust Doctrine, James L. Huffman
Duke Environmental Law & Policy Forum
No abstract provided.
Women In Combat: Is The Current Policy Obsolete?, Martha Mcsally
Women In Combat: Is The Current Policy Obsolete?, Martha Mcsally
Duke Journal of Gender Law & Policy
No abstract provided.
A Rhetoric For Ratification: The Argument Of The Federalist And Its Impact On Constitutional Interpretation, Dan T. Coenen
A Rhetoric For Ratification: The Argument Of The Federalist And Its Impact On Constitutional Interpretation, Dan T. Coenen
Duke Law Journal
Courts, lawyers, and scholars have long assumed that The Federalist Papers supply important information for use in constitutional argument and interpretation. In recent years, commentators have questioned this view. Their skepticism grows out of two major concerns. First, Justice Scalia's challenge to the use of legislative history in the statutory context casts a cloud over judicial use of background texts such as The Federalist in seeking the meaning of the Constitution. Second, even if courts may rely on some background materials in interpreting the Constitution, there is reason to conclude that The Federalist. does not qualify as the sort of …
The Aftermath Of In Re 2001 Redistricting Cases: The Need For A New Constitutional Scheme For Legislative Redistricting In Alaska, Gordon S. Harrison
The Aftermath Of In Re 2001 Redistricting Cases: The Need For A New Constitutional Scheme For Legislative Redistricting In Alaska, Gordon S. Harrison
Alaska Law Review
No abstract provided.
You Say Takings, And I Say Takings: The History And Potential Of Regulatory Takings Challenges To The Endangered Species Act, Darren Botello-Samson
You Say Takings, And I Say Takings: The History And Potential Of Regulatory Takings Challenges To The Endangered Species Act, Darren Botello-Samson
Duke Environmental Law & Policy Forum
No abstract provided.
The Emergence Of Global Administrative Law, Benedict Kingsbury, Nico Krisch, Richard B. Stewart
The Emergence Of Global Administrative Law, Benedict Kingsbury, Nico Krisch, Richard B. Stewart
Law and Contemporary Problems
No abstract provided.
Korematsu And Beyond: Japanese Americans And The Origins Of Strict Scrutiny, Greg Robinson, Toni Robinson
Korematsu And Beyond: Japanese Americans And The Origins Of Strict Scrutiny, Greg Robinson, Toni Robinson
Law and Contemporary Problems
The authors examine the role that the Japanese American Citizens League played in the development of the "strict scrutiny" doctrine partly responsible for the ruling in Brown v. Board of Education. The plight of Japanese Americans during their WWII internment gave them experience in implementing this doctrine, which they passed on to the NAACP.
A Commander’S Power, A Civilian’S Reason: Justice Jackson’S Korematsu Dissent, John Q. Barrett
A Commander’S Power, A Civilian’S Reason: Justice Jackson’S Korematsu Dissent, John Q. Barrett
Law and Contemporary Problems
Barrett examines the dissent opinion of Supreme Court Justice Robert Houghwout Jackson in Korematsu v. United States, which centered on the internment of Japanese Americans during WWII. Although the dissent has been criticized as incoherent, it contains strong legal implications within its complexity.
A Penny For Their Thoughts: Draft Resistance At The Poston Relocation Center, Eric L. Muller
A Penny For Their Thoughts: Draft Resistance At The Poston Relocation Center, Eric L. Muller
Law and Contemporary Problems
Muller examines the prosecution and sentencing of Japanese Americans who resisted the draft of WWII from their internment camps. Although the hundreds of cases were almost identical, approaches to justice and sentencing of offenders varied widely.
Korematsu: A Mélange Of Military Imperatives, Eugene Gressman
Korematsu: A Mélange Of Military Imperatives, Eugene Gressman
Law and Contemporary Problems
No abstract provided.
The Japanese American Cases, 1942-2004: A Social History, Roger Daniels
The Japanese American Cases, 1942-2004: A Social History, Roger Daniels
Law and Contemporary Problems
Daniels examines the changing reactions of the government and the public to the internment of Japanese Americans during WWII and in the six decades following. Some comparisons can be drawn between this action and the attitudes encountered by the public in the wake of the Sep 11, 2001 terrorist attacks.
Crystal Eastman And The Internationalist Beginnings Of American Civil Liberties, John Fabian Witt
Crystal Eastman And The Internationalist Beginnings Of American Civil Liberties, John Fabian Witt
Duke Law Journal
The modern American civil liberties movement famously began with the United States's intervention in World War I. Yet these beginnings have long raised a conundrum for civil liberties historians. Why did the American civil liberties movement arise precisely when so many sophisticated legal and political thinkers began to call into question the truth value of abstract rights claims? The puzzling rise of civil liberties in an age of pragmatic skepticism is all the more startling given that early leaders of the civil liberties movement were themselves leading rights skeptics. This Article offers a new interpretation of the rise of the …
The Antebellum Political Background Of The Fourteenth Amendment, Garrett Epps
The Antebellum Political Background Of The Fourteenth Amendment, Garrett Epps
Law and Contemporary Problems
Epps presents information concerning the historical context of the Fourteenth Amendment. Among other implications, the Amendment should be viewed as an effort to defend the national government from control by transient majorities or undemocratic factions in the states.
Justice Jackson’S Lament: Historical And Comparative Perspectives On The Availability Of Legislative History, Richard A. Danner
Justice Jackson’S Lament: Historical And Comparative Perspectives On The Availability Of Legislative History, Richard A. Danner
Duke Journal of Comparative & International Law
No abstract provided.