The first issue of what was to become the Duke Law Journal was published in March 1951 as the Duke Bar Journal. Created to provide a medium for student expression, the Duke Bar Journal consisted entirely of student-written and student-edited work until 1953, when it began publishing faculty contributions. To reflect the inclusion of faculty scholarship, the Duke Bar Journal became the Duke Law Journal in 1957. In 1969, the Journal published its inaugural Administrative Law Symposium issue, a tradition that continues today.    Volume 1 of the Duke Bar Journal spanned two issues and 259 pages. In 1959, the Journal grew to four issues and 649 pages, growing again in 1970 to six issues and 1263 pages. Today, the Duke Law Journal publishes eight issues per volume. Our staff is committed to the purpose set forth in our constitution: to publish legal writing of superior quality. We seek to publish a collection of outstanding scholarship from established legal writers, up-and-coming authors, and our own student editors.

The first issue of the Duke Law Journal was published in March 1951 under the name Duke Bar Journal. It was created to provide a platform for student expression, consisting entirely of student-written and student-edited work until 1953, when faculty contributions were included. To reflect the inclusion of faculty scholarship, the Duke Bar Journal was renamed the Duke Law Journal in 1957. In 1969, the Journal published its inaugural Administrative Law Symposium issue, a tradition that continues today. Volume 1 of the Duke Bar Journal spanned two issues and 259 pages. By 1959, the Journal had grown to four issues and 649 pages, and in 1970 it expanded again to six issues and 1263 pages. Today, the Duke Law Journal publishes eight issues per volume. Our staff is committed to the purpose set forth in our constitution: to publish legal writing of superior quality. We aim to present a collection of outstanding scholarship from established legal writers, emerging authors, and our own student editors.

《Duke Law Journal》的第一期于1951年3月出版，最初名为《Duke Bar Journal》。该期刊旨在为学生提供表达的平台，最初完全由学生撰写和编辑，直到1953年开始接受教师的投稿。为了反映教师学术贡献的纳入，《Duke Bar Journal》于1957年更名为《Duke Law Journal》。1969年，期刊首次出版行政法研讨会特刊，这一传统至今仍在延续。第一卷的《Duke Bar Journal》包含两个期刊，共259页。1959年，期刊增至四期，649页；1970年再次增长至六期，1263页。如今，《Duke Law Journal》每卷出版八期。我们的团队致力于实现宪法中设定的目标：出版高质量的法律写作。我们希望汇集来自成熟法律作家、崭露头角的作者以及我们自己的学生编辑的杰出学术作品。

Duke Law Journal

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, not the 1960s. Prior to the Fifteenth Amendment’s passage, Republicans received overwhelming support from newly enfranchised Black voters in the former Confederate States and expected that support to continue. The Reconstruction Framers were thus attentive to the realities of racially polarized voting and openly recognized that extending the franchise would empower Black voters to mobilize politically and protect their own interests. Racially polarized voting was a feature—not a bug—in the passage and ratification of the Fifteenth Amendment. Accordingly, this Article argues that the Court’s treatment of racially polarized voting as a constitutional taboo is historically unfounded and doctrinally incoherent.

There are significant implications for acknowledging the role of racially polarized voting during Reconstruction. This historical insight moves vote dilution claims—and their predicate finding of racially polarized voting—far closer to the heart of the Reconstruction Amendments and challenges the Court’s hostility to race-based redistricting. It is powerful evidence that Congress is well within its enforcement authority to remedy and deter dilutive measures that exploit racially polarized voting. Finally, reconstructing racially polarized voting helps reorient voting rights doctrine toward a Fifteenth Amendment framework.

Travis Crum

Reconstructing Racially Polarized Voting

重建种族极化投票

Kaitlin S. Phillips

From Overdose to Crime Scene: The Incompatibility of Drug-Induced Homicide Statutes with Due Process

从过量用药到犯罪现场：药物引发杀人罪法规与正当程序的不相容性

Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legally binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in the context of congressional oversight. In that vacuum—unconstrained by precedent—the executive branch has developed a comprehensive theory of executive privilege to support and implement prophylactic doctrines that render Congress largely powerless in oversight disputes. 

For the first time, this Article sets out the full extent of the executive branch’s doctrine, the various pieces of which have been expressed in OLC opinions, letters to Congress, and court filings. Existing scholarship largely ignores this doctrine and addresses executive privilege on the basis of two unexamined premises: first, that the privilege is an affirmative constitutional authority belonging to the president, and, second, that the privilege is akin to an evidentiary privilege that protects specified categories of information. Moreover, existing scholarship rarely distinguishes between executive privilege in the context of judicial proceedings and congressional oversight.

Rejecting those premises, this Article proposes an understanding of executive privilege specific to congressional oversight that better reflects history and first principles of constitutional interpretation. Executive privilege in the context of congressional oversight is not an affirmative constitutional authority based on specific types of information but a limited presidential immunity from compelled congressional process—the Executive’s privilege. Both Congress’s oversight authority and executive privilege are recognized as implied constitutional authorities. But rather than infer two competing affirmative authorities, this Article proposes to infer a limit—presidential immunity—on the first. Doing so is more consonant with first principles of constitutional interpretation, more consistent with history, and more conducive to the proper balance of power between the branches. The Executive’s privilege, as set out in this Article, is an immunity contingent upon a president’s finding that concrete, identifiable harm would result from the disclosure of specific information to Congress. Understanding executive privilege as a limited immunity—and severing the privilege from the undifferentiated confidentiality interests and broad categories of information with which the executive branch has conflated it—eliminates the prophylactic doctrines on which the executive branch relies to thwart legitimate congressional oversight. Further, this understanding of the privilege provides a theoretical foundation to explain why it does not apply in impeachment, a position consistent with the historical understanding of Congress’s broad powers of inquiry during impeachments and subsequent trials.

Jonathan David Shaub

The Executive’s Privilege

行政特权

The sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized non-violent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial effect” on her “day-to-day activities.” Such a vaguely-drafted crime would raise insurmountable due process problems under the U.S. Constitution. Should the states wish to address the gravity of the harms of coercive control, however, this Article proposes an alternative statutory approach. It argues that a state legislature could combine the due process limits to traditionally enterprise-related offenses such as fraud and conspiracy with the goals of domestic abuse prevention to create a new offense based upon the fraud-like nature of coercively controlling behavior. It argues that the most useful legal framework for defining coercive control is similar to that of common law fraud, and that legislatures should adapt the scienter requirements of fraud to the actus reus of coercive control. In so doing, this Article also argues that it is risky for legislatures to punish gender-correlated offenses with specialized legal solutions, rather than recognizing the interrelationship between such offenses and other well-established crimes.

Erin L. Sheley

Criminalizing Coercive Control Within the Limits of Due Process

在正当程序限度内将强制控制犯罪化

Johnathan Hal

The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation

《戈萨奇测试：冈迪诉美国案，限制行政国家，以及非授权原则的未来》

Lauren N. Smith

The Constitution and the Campaign Trail: When Political Action Becomes State Action

宪法与竞选之路：当政治行为成为国家行为

Emmanuel Abraham Perea Jimenez

The Fourth Amendment Limits of Facial Recognition at the Border

第四修正案对边境人脸识别的限制

Katie Lew

Unbalanced: The Case for Removing Title IX’s Private College Admissions Exemption

不平衡：取消《教育法修正案第九条》对私立学院招生豁免的案例

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA of an identified suspect from a database or, more commonly, by matching crime-scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Although both efforts would probably be called “searches” under common parlance, until recently they were clearly not searches for fourth amendment purposes, because the Supreme Court has defined that word in terms of “expectations of privacy society is prepared to recognize as reasonable” and has construed that phrase narrowly, without reference to society’s actual views. The empirical study presented in this article, which attempts to gauge those views, suggests that even the Court’s recent decision in Carpenter v. United States, which has expanded the definition of “search” to new terrains, is antithetical to societal norms as they apply in the genetic investigation context. In fact, our respondents considered law enforcement access to genetic information to be as intrusive as, or more intrusive than, searches of bedrooms, text messages or emails, not only when one’s DNA is held by healthcare providers, but also when it is obtained from direct-to-consumer genetic testing companies and public genealogy websites. Our research also suggests that the location of genetic information, rather than its nature or the purpose for which it is acquired, is the primary driver of these intrusiveness ratings. Based on this research, we argue that both police access to non-governmental genetic databases and police use of covert methods to collect DNA in the hope of matching crime scene DNA require judicial authorization, although not necessarily a traditional warrant. More broadly, we argue that empirical data about the public’s privacy concerns surrounding law enforcement’s collection of and access to genetic data should be an integral consideration in judicial determinations of how these activities should be regulated by the Constitution.

Christopher Slobogin

J. W. Hazel

A World of Difference? Law Enforcement, Genetic Data, and the Fourth Amendment

执法、基因数据与第四修正案：差异何在？

When firms contracting with consumers make mistakes, people get hurt. Inaccurate billing, misapplied payments, and similar problems push lucky consumers into kafkaesqe customer-service queues and unlucky ones off the financial cliff. Despite significant regulatory interventions, firms contracting with consumers continue to struggle to accurately bill customers, update accounts, and process payments. Firms largely rely on technology, especially databases and software, to discharge these servicing obligations. This technology must accommodate firms’ innovations in their contracts, shifting regulations, and unpredictable consumer behavior. Given the complexity of servicing, the technology will inevitably produce mistakes even when firms invest in technology. When firms skimp on their servicing technology, errors that harm consumers become even more likely. And even if it were possible to build perfect servicing technology, the costs that firms would pass on to consumers may outweigh the benefits. Then challenge, then, is how to reduce customer harm, accepting that perfect servicing is neither possible nor desirable.

This Article argues that structural improvements to consumer contracts can make them more resilient to errors. Far from being new, these structural improvements have long been recognized in contract theory. But these theoretical insights have not been applied to modern consumer financial contracts. Specifically, modularity and formalities improve resilience by mitigating the complexity of servicing, regulation, and consumer behavior. While mitigating complexity may reduce errors ex ante, the bigger pay-off is in simplifying customer redress if and when errors occur. Intervening in the structure of consumer financial contracts is an underappreciated tool for achieving substantive consumer protection.

Danielle D'Onfro

Error-Resilient Consumer Contracts

容错型消费合同

Abbreviation	Duke Law J.
Journal Impact	1.62
Quartiles(Global)	LAW(Q1)

ISSN	0012-7086, 1939-9111
h-index	51

Publication Information	Publisher: Duke Law Publications，Publishing cycle: ，Journal Type: journal，Open Access Journals: No
Basic data	Year of publication: 1996，Proportion of original research papers: 100.00%，Self Citation Rate:5.60%， Gold OA Rate: 0.00%

Duke Law Journal

Journal Citation Format

A journal article with 1 author

A journal article with 2 authors

A journal article with 3 authors

A journal article with 5 or more authors

Books Citation Format

Thesis Citation Format

Web sites Citation Format

Patent Citation Format

Staying up late manually editing references? ivySCI automatically matches journals and helps you generate references with a single click.

Share Submission Experience