Constitutional Law Commons^™

Atlantic Marine V. J-Crew: The Future Of Forum-Selection Clauses In Federal Courts, Sarah Sheridan

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Atlantic Marine v. J-Crew, in which the Court may clarify a circuit split regarding the enforceability of forum-selection clauses by deciding which procedure should govern the enforcement of these clauses and which party carries the burden of proof in these disputes.

Five Justices, Section 4, And Three Ways Forward In Voting Rights, Kareem Crayton, Jane Junn

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Fraud On The Market After Amgen, James D. Cox

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Right To “Do Politics” And Not Just To Speak: Thinking About The Constitutional Protections For Political Action, Robert F. Bauer

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Interning Dissent: The Law Of Large Political Events, Aaron Johnson

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Fisher V. University Of Texas: Who Put The Holes In “Holistic”?, Rodney A. Smolla

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Journal Staff

Duke Journal of Constitutional Law & Public Policy

Abstract required.

Foreword

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Forgotten Equality Norm In Immigration Preemption: Discrimination, Harassment, And The Civil Rights Act Of 1870, Lucas Guttentag

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Immigration Structuralism: A Return To Form, David S. Rubenstein

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Delegating Away The Unitary Executive: Reviewing Ina § 287(G) Agreements Through The Lens Of The Unitary Executive Theory, Matthew A. Smith

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Justifying Power: Federalism, Immigration, And ‘Foreign Affairs’, Erin F. Delaney

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Citizenship And The Law Of Time In The United States, Elizabeth F. Cohen

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Voting Rights Act's Fight To Stay Rational: Shelby County V. Holder, Sudeep Paul

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Shelby County v. Holder, in which the Court may decide whether Congress's 2006 reauthorization of Section 5 and Section 4(b) of the Voting Rights Act was constitutional.

Maryland V. King: The Fourth Amendment Spirals Down The Double Helix, Sitara V. Witanachchi

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Maryland v. King, in which the Court may decide whether requiring an arrestee to submit to a buccal swab for identification purposes violates the arrestee's privacy interests under the Fourth Amendment.

Hollingsworth V. Perry: Expressive Harm And The Stakes Of "Marriage", Corinne Blalock

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Hollingsworth v. Perry, in which the Court may decide whether Proposition 8 violates either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

Patent Exhaustion And The Federal Circuit’S Deviant Conditional Sale Doctrine: Bowman V. Monsanto, Adam Garmezy

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Mcburney V. Young: Testing The Limits Of Citizens-Only Freedom Of Information Laws, Patrick Jamieson

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, McBurney v. Young, in which the Court will decide whether the citizens-only provision of Virginia's Freedom of Information Act violates the Privileges and Immunities Clause or the dormant Commmerce Clause.

Materiality Immaterial? Revisiting Standards For Securities Fraud Class Certification In Amgen V. Connecticut Retirement Plans And Trust Funds, Nancy My Nguyen

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Amgen v. Connecticut Retirement Plans and Trust Funds, in which the Court will decide whether plaintiffs in securities fraud class actions must prove materiality at the class certification stage, or if that inquiry is more appropriately left to later stages of litigation. The case requires the Court to resolve a circuit split on this issue, and will have far-reaching implications for the future of securities fraud litigation.

In All Fairness: Us Airways V. Mccutchen And The Use Of Equitable Defenses In Erisa Reimbursement Claims, Ravi Patel

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, US Airways v. McCutchen, in which the Court will decide whether courts are permitted to use equitable principles to rewrite contractual language for benefit plans under ERISA. In so doing, the Court must decide whether to give effect to the Third Circuit's holding, that ERISA does permit this use of equitable principles, which runs contrary to the majority of circuits.

The Prying Nose: Florida V. Jardines And Warrantless Dog-Sniff Tests On Private Property, Ali Mirsaidi

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Florida v. Jardines, in which the Court will decide whether a dog-sniff test at the front door of a home constitutes a Fourth Amendment search. The case asks the Court to resolve its prior decisions holding that dog-sniff tests are minimally intrusive when conducted in public with its decisions affording higher protections for searches of private residences.

Determining Rights To Resell: Kirtsaeng V. John Wiley & Sons, Sandra Yoo

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kirtsaeng v. John Wiley & Sons, in which the Court will decide whether the "first sale" doctrine applies to foreign-made copies. Broadly, the case will determine the ability of manufacturers to control the distribution of foreign-made copies once they have been sold and asks the Court to resolve a circuit split on the correct interpretation of the relevant provisions of the Copyright Act.

Take The Money And Run: Detainment Incident To A Search Warrant In Bailey V. United States, Alexander Hall

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bailey v. United States, in which the Court will examine the scope of permissible non-arrest seizures in the context of a detainment incident to a search warrant. The case offers the Court an opportunity to clarify its holding in Michigan v. Summers--that occupants of premises being searched pursuant to a valid warrant may be detained during the search--by determining whether such a detainment is permissible when the occupants have left the premises.

Clapper V. Amnesty International: Who Has Standing To Challenge Government Surveillance?, Elisa Sielski

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Clapper v. Amnesty International, in which the Court will examine whether plaintiffs have standing to challenge possible government surveillance under the Foreign Intelligence Surveillance Act. In so doing, the Court will have to revisit the standards for standing in surveillance cases in light of Laird v. Tatum and a circuit split stemming from that case.

Evans V. Michigan: The Impact Of Judicial Error On Double Jeopardy Protection, Zi-Xiang Shen

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Evans v. Michigan, in which the Court has an opportunity to clarify the bounds of the prohibition on double jeopardy. More specifically, the Court will determine what, if any, impact judicial error has on double jeopardy protection under the Fifth Amendment.

Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman

Faculty Scholarship

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …

Jack Balkin’S Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel

Faculty Scholarship

In Living Originalism, Jack Balkin reasons from two points of view — the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.”

Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about — or even deep awareness of — …

Nonsense And The Freedom Of Speech: What Meaning Means For The First Amendment, Joseph Blocher

Faculty Scholarship

A great deal of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome.

This Article is the first to explore thoroughly the relationship between …

Reverse-Commandeering, Margaret Hu

Faculty Scholarship

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …

Brief Of Federalism Scholars As Amici Curiae In Support Of Respondent Windsor, Ernest A. Young

Faculty Scholarship

No abstract provided.