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Preview: Duke Journal of Constitutional Law & Public Policy

Duke Journal of Constitutional Law & Public Policy



Volume 1, Issue 1, 2006



Published: Tue, 26 Sep 2006 10:48:41 EST

 



Articles

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006



Eliding in New York

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006
07/26/2006 - In March 2006, this Journal published an article that set forth the social institutional argument for man/woman marriage, demonstrated how that argument is a sufficient response to all constitutional attacks leveled at the laws sustaining that social institution, and detailed how the courts mandating genderless marriage (and the dissenting judges favoring that result) had elided the argument ("the Judicial Elision article"). Since the Judicial Elision article's early December 2005 cut-off date, two more instances of judicial elision of social institutional realities have cropped up in New York. Both are dissenting opinions, one in the Appellate Division and one in the Court of Appeals. Because those dissenting opinions are interesting, and engagement with them intellectually productive, this article critically examines both. In preparation for doing so, and as an aid to the reader, this article also summarizes central aspects of the social institutional argument as set forth in the Judicial Elision article.



Why the Supreme Court Was Wrong About the Solomon Amendment

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006
07/12/2006 -The Supreme Court in Rumsfeld v. FAIR abandoned basic First Amendment principles. The decision cannot be reconciled with other cases concerning freedom of speech and association. Indeed, if followed, Rumsfeld v. FAIR sets a disturbing and dangerous precedent.



The Real Story Behind the Justice Department's Implementation of Section 5 of the VRA: Vigorous Enforcement, as Intended by Congress

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006
06/14/2006 - This Article examines the manner in which the United States Department of Justice has carried out its responsibility for enforcing the preclearance requirement of Section 5 of the Voting Rights Act since its enactment in 1965. The Justice Department plays a central and preeminent role in the review of new voting laws and procedures adopted by Section 5 jurisdictions, and as Congress moves this year to extend Section 5 beyond its current 2007 expiration date, the question whether the Department has faithfully implemented Section 5 may play an important part in the anticipated Supreme Court review of the constitutionality of the extension. The Article identifies the unique features and broadly-encompassing provisions of the Section 5 remedy, analyzes the specific enforcement approaches utilized by the Justice Department, and scrutinizes the assessments that previously have been offered regarding the Department's enforcement actions. The Article concludes that, historically, the Justice Department has enforced Section 5 in a vigorous and principled manner, that the Department's enforcement approach largely is a product of the manner in which Congress constructed the Section 5 remedy, and that the Justice Department, accordingly, has implemented the Section 5 preclearance remedy in precisely the manner that Congress intended. The Justice Department's performance, therefore, fully supports congressional extension of Section 5 and a ruling by the Supreme Court that the reauthorization is constitutional.



Genderless Marriage, Institutional Realities, and Judicial Elision

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006
03/23/2006 - Premised on the uncontroversial notion that marriage is a social institution and then informed by social institutional studies, the social /Page 2/ institutional argument for man/woman marriage is a sufficient response to the variety of constitutional challenges leveled at the laws sustaining that institution. That is so because of what the argument succeeds in demonstrating. It demonstrates that marriage, like all social institutions, is constituted by a web of shared public meanings; that these meanings teach, form, and transform individuals; and that in this way, these meanings provide vital social goods (which are described). The argument further demonstrates that, with its power to suppress social meanings, the law can radically change and even deinstitutionalize man/woman marriage, with concomitant loss of the institution's social goods; that genderless marriage is a radically different institution than man/woman marriage, as evidenced by the large divergence in the nature of their respective social goods; and that society can have at any time only one of those two institutions denominated marriage. Finally, the argument demonstrates that, although the law is potent to replace the man/woman marriage institution with the genderless marriage institution, it is powerless to allow same-sex couples into the privileged marriage institution we have always known; and that law-mandated genderless marriage will sweep in not only all couples who marry in the future but the man/woman couples who married into the old institution.



Supreme Court Commentaries

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006



Exxon Mobil Corp. v. Allapattah Services Inc.

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006
04/25/2006 - In diversity cases, only one plaintiff or class member must satisfy the amount in controversy requirement.



Smith v. City of Jackson: Age Discrimination Act Authorizes Disparate Impact Claims - But Scope is Narrow

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006
03/23/2006 - When Jackson, Mississippi revised its salary structure for police and public safety officers, it gave proportionately higher increases to officers with less than five years of seniority, who were overwhelmingly under forty years old. Thirty officers over the age of forty sued the city for age discrimination, alleging disparate impact. In a plurality opinion, the Court held that the Age Discrimination in Employment Act authorized claims of disparate impact. When it accepted the employer's justification for the raise and dismissed the plaintiffs' claim, however, the Court signaled that in the future, the scope of disparate impact claims would be narrow.



Mayle v. Felix: Relation Back, Habeas Relief, and the AEDPA

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006
03/23/2006 - Following his murder conviction, Felix filed a pro se habeas petition alleging Sixth Amendment violations at trial The petition was filed within the one-year Antiterrorism and Effective Death Penalty Act deadline. He was later appointed counsel, who filed an amended petition alleging Fifth Amendment violations; but that petition was filed five months after the AEDPA deadline had passed. The Court held that the amended petition was not saved by the Relation Back doctrine because it did not share with the earlier claims a common "core of operative facts."



Merck KGaA v. Integra Lifesciences I, Ltd.: Greater Research Protection for Drug Manufacturers

Tue, 26 Sep 2006 10:48:41 EST

Volume 1, Issue 1, 2006
03/23/2006 - Merck sought protection under a statutory exemption from claims of patent infringement brought by Integra Lifesciences. The Court held unanimously that the safe harbor contained in 35 U.S.C. § 271(e)(1) protected the use of patented inventions used in preclinical research where the results were not submitted to the FDA. The Court's interpretation of the safe harbor provision broadened protection for those engaged in drug research at a substantial cost to patent-holders.