Duke Law Journal

A bimonthly law journal edited by a student board. A third of each issue consists of student notes dealing with current legal developments, and the remaining content is devoted to articles and comments by professors and practitioners. Generally one issue

Articles from Vol. 51, No. 1, October

A Localist Critique of the New Federalism
INTRODUCTION This Essay takes the recent federalism revival (1) to rest, at least in part, on a commitment to a more localized form of decisionmaking. The notion that more governmental decisions could and should be handled locally seems to fit with...
Causes of the Recent Turn in Constitutional Interpretation
INTRODUCTION Due Process. Equal Protection of the Laws. Commerce Among the Several States. The words and phrases of the Constitution that produce most interpretive disagreements are very old. Many, such as the Presentment Clause and the Vesting...
Circles of Exile
There is a man who comes to consult me in my office at the University of Oregon, almost as a professional colleague might. We amicably discuss constitutional theory for a while, and then he goes away. He is a perfect gentleman and a fair debater when...
Congress as Culprit: How Lawmakers Spurred on the Court's Anti-Congress Crusade
Poor Congress. Twenty-seven of its laws have been struck down in just over six years. (1) According to the New York Times, Congress is now "The High Court's Target." (2) And to law professors, the Court is increasingly "obliterating a role for Congress...
Federalism and the Double Standard of Judicial Review
INTRODUCTION From 1937 to 1995, federalism was part of a "Constitution in exile." (1) Except for the brief interlude of the National League of Cities doctrine (2)--which, like Napoleon's ill-fated return from Elba, met with crushing defeat (3)--the...
Narratives of Federalism: Of Continuities and Comparative Constitutional Experience
INTRODUCTION The dramatic title of the conference for which this Essay was written raises the question, what is the Constitution "in exile" from? (1) The "Constitution in Exile" might refer to an entire set of doctrines and principles purportedly...
Taking What They Give Us: Explaining the Court's Federalism Offensive
INTRODUCTION For several years now, the Supreme Court has disquieted observers and commentators by reasserting the presence of constitutional limitations on national power resulting from the federal structure of the American political system. Although...
The Facts about Unwritten Constitutionalism
Professor Jed Rubenfeld's essay "The New Unwritten Constitution" (1) makes some sensible interpretive and normative points. But it seems to assume an empirical picture that is overdramatized. The right starting point is a positive rather than normative...
The Legal Subject in Exile
INTRODUCTION This Essay examines the contemporary reemergence of the "Constitution in Exile" (1) by focusing on a particular aspect of doctrine, the legal subject. By "legal subject," I mean courts' paradigmatic accounts of who human beings are...
The New Deal Constitution in Exile
INTRODUCTION Judge Douglas Ginsburg's evocative phrase "the Constitution-in-Exile" (1) recalls the New Dealers' battle against the classical liberal Constitution fashioned in the Lochner era. For Ginsburg, the Supreme Court's embrace of the New...
The New Unwritten Constitution
INTRODUCTION Americans do not know what to think about unwritten constitutional law. On the one hand, we know we have it, and we have had it for a very long time. Unwritten constitutional law did not begin with Roe v. Wade. (1) From the very beginning,...
Tripping on the Threshold: Federal Courts' Failure to Observe Controlling State Law under the Federal Arbitration Act
INTRODUCTION For almost a century, attorneys have debated the role federal law should play in the enforcement of private arbitration agreements. (1) Proponents of a nationalized arbitration law argue that states are too reluctant to enforce private...
Why Talking about "States' Rights" Cannot Avoid the Need for Normative Federalism Analysis
INTRODUCTION In an article provocatively titled Federalism: Some Notes on A National Neurosis, (1) Edward L. Rubin and Malcolm Feeley diagnose the American concern about federalism as neurotic. Americans' ideas about the states are inappropriate...