Duke Journal of Constitutional Law & Public Policy

Articles

Owning Marijuana
John G. Sprankling
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Legal marijuana is the fastest-growing industry in the United States. It is premised on the assumption that marijuana ownership will be protected by law. But can marijuana be owned? This Article is the first scholarship to explore the issue.

Federal law classifies marijuana as contraband per se in which property rights cannot exist. Yet the Article demonstrates that marijuana can now be owned under the law of most states, even though no state statutes or decisions expressly address the issue. This conflict presents a fundamental question of federalism: Can property rights exist under state law if they are forbidden by federal law? The Article explains why federal law does not preempt state law on marijuana ownership.

This result creates a paradox: state courts and other state authorities will protect property rights in marijuana, but their federal counterparts will not. The Article analyzes the challenges arising from this hybrid approach to marijuana ownership. It also examines the fragmented status of marijuana ownership in the interstate context, where personal relationships or business transactions involve states with conflicting approaches to the issue.

The U.S. Supreme Court’s Personal Jurisdiction Paradigm Shift to End Litigation Tourism
Philip S. Goldberg, Christopher E. Appel & Victor E. Schwartz
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The Supreme Court of the United States has redefined the landscape of personal jurisdiction and venue over the past several years to limit where civil litigation can be filed against businesses and other defendants with operations in multiple states. In a series of unanimous or nearly unanimous decisions,  the Court established new due process standards for general personal jurisdiction and specific personal jurisdiction. This attention to personal jurisdiction—a subject the Court left largely unchanged for almost seventy years —appears directed at curbing “forum shopping” or “litigation tourism.” The high court’s departure from decades-old precedent reflects today’s changing economic and litigation environments. The Court recognized that its previous, permissive approach to personal jurisdiction had become anachronistic and inconsistent with due process.  The Court also revisited personal jurisdiction boundaries to address modern litigation gamesmanship. The theme the Court conveyed across these rulings is that location matters: under the U.S. Constitution, a lawsuit can be heard only in the states and venues with a legal interest in that dispute. The Court reformulated the due process tests for establishing jurisdiction in order to protect these constitutional limits and rights. Whether the Court’s rulings will have this intended impact, though, will depend on how lower courts apply the rulings and decide the doctrinal issues this article examines.

States of Resistance
Frédéric Gilles Sourgens
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In a recent essay, Dean Harold Hongju Koh argued that “states and localities […] should make clear to the international actors seeking to preserve the Paris accords that Donald Trump does not own the process or speak entirely for America.”  California has taken up Dean Koh’s call to arms and is actively challenging U.S. climate policy on the international stage.  Dean Koh’s statement, and California’s actions, facially contradict the Supreme Court’s pronouncement in Garamendi that “the exercise of the federal executive [foreign affairs] authority means that state law must give way where, as here, there is evidence of clear conflict between the policies adopted by the two.”  Am. Ins. Assn. v. Garamendi, 537 U.S. 1100 (2003).  The literature has split over the precise precedential value of Garamendi for the appraisal of the constitutionality of California’s conduct, giving ammunition to claims of a globalist subversion of regular Constitutional order by the nationalist right.  

This Article sets out to rebut such claims of subversion.  It will re-theorize state participation in foreign affairs through the lens of the transnational legal process and global governance network literatures.  In keeping with this literature, the Article submits that governments, including state governments, participate in a multitude of competing global governance networks. These multiple networks inherently create friction with each other due to the resistance by their participants against the norm proposals by participants in other networks.  State participation in global governance networks thus necessarily creates resistance to federal foreign policy, and does so along predictable lines mapped in the Article as logically separate “states of resistance.”

Once it is possible to explain the friction between state law and federal policy by means of such states of resistance, it is also possible to reframe the constitutional question posed by Garamendi:  When may states participate in global governance networks? And, relatedly, when may states challenge federal foreign policy through their participation in such networks?  Consistent with the framework of global governance networks, the Article will submit that all such state conduct must be appraised through the Constitution’s Compact Clause.  It will submit that states may challenge the federal government by coordinating their actions consistent with their existing regulatory powers even within the confines of Garamendi.  It will further submit that the jurisprudence of the Court, consistent with this frame, considers the relative traditional regulatory interests of the states and federal governments in assessing state conduct.

The Article will meaningfully advance the literature by providing a more precise legal framework for conflict and resistance between states and the federal government on foreign policy questions.  This framework can explain how states act as an additional check on federal foreign policy consistent with Garamendi.  It does so in a noticeable departure from dominant frameworks in the foreign affairs literature by harmonizing the traditional foreign affairs jurisprudence of the Court critiqued in that literature with a significant role for states to check and participate in the formulation of national foreign policy advocated by that literature.

The Triumph of the Southern Man: Dowell, Shelby County, and the Jurisprudence of Justice Lewis F. Powell, Jr.
Earl M. Maltz
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The year 2018 has witnessed widespread celebrations of the life and legacy of Dr. Martin Luther King, Jr., who was assassinated fifty years ago in Memphis, Tennessee. Yet if Dr. King were alive today, he would no doubt be dismayed by the path taken by the Supreme Court’s treatment of race-related issues in recent years. Not only has the Court abandoned the quest for school desegregation, but the 2013 decision in Shelby County v. Holder substantially reduced the effectiveness of the Voting Rights Act of 1965, which was the most important legislative monument to Dr. King’s efforts.

By contrast, these developments would no doubt have pleased Lewis F. Powell, Jr., a harsh critic of Dr. King who joined the Supreme Court less than four years after King’s death. Prior to taking his seat on the Court, Powell had been openly critical of the decision in Brown v. Board of Education , and in his capacity as chair of the school board of Richmond, Virginia, had worked ceaselessly to limit the pace and scope of the desegregation of the Richmond schools. Moreover, even before joining the Court, he had actively sought to limit the impact of the Voting Rights Act on the decision-making authority of state and local governments in the South. Similarly, in the cases that came before him after coming to the Court, Powell consistently voted to limit the scope of remedial orders in desegregation cases and argued that the Constitution imposed important limits on the scope of congressional authority to deal with the issues that the Voting Rights Act was designed to address.

Powell had only limited success in persuading a majority of his colleagues to support him on these issues. However, the reasoning of the Court’s decisions in the years after Powell left the Court in 1987 has often embraced the arguments made by Powell during his tenure as a justice. This article not only explores Powell’s background and jurisprudence, but also provides the first scholarly discussion of the relationship between his views and the positions currently taken by the Court.

The New White Flight
Erika K. Wilson
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White charter school enclaves—defined as charter schools located in school districts that are thirty percent or less white, but that enroll a student body that is fifty percent or greater white— are emerging across the country. The emergence of white charter school enclaves is the result of a sobering and ugly truth: when given a choice, white parents as a collective tend to choose racially segregated, predominately white schools. Empirical research supports this claim. Empirical research also demonstrates that white parents as a collective will make that choice even when presented with the option of a more racially diverse school that is of good academic quality.

Despite the connection between collective white parental choice and school segregation, greater choice continues to be injected into the school assignment process. School choice assignment policies, particularly charter schools, are proliferating at a substantial rate. As a result, parental choice rather than systemic design is creating new patterns of racial segregation and inequality in public schools. Yet the Supreme Court’s school desegregation jurisprudence insulates racial segregation in schools ostensibly caused by parental choice rather than systemic design from regulation. Consequently, the new patterns of racial segregation in public schools caused by collective white parental choice largely escapes regulation by courts.

This article argues that the time has come to reconsider the legal and normative viability of regulating racial segregation in public schools caused by collective white parental choice. The article makes two important contributions to the legal literature on school desegregation. First, using white charter school enclaves as an example, it documents the ways in which school choice policies are being used to allow whites as a collective to satisfy their preference for segregated predominately white schools. Second, the article sets forth both constitutional and normative arguments for regulating the private choices that result in stark racial segregation patterns in public schools.

The Role of Dissents in the Formation of Precedent
Nina Varsava
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I argue that dissenting opinions play an important role in the formation of precedent in the context of plurality decisions. Courts typically treat plurality cases as precedential. However, procedures for interpreting and following plurality decisions vary considerably across courts and judges, producing major inconsistencies in the adjudication of cases that are ostensibly governed by the same law. I suggest that, when a majority of judges agrees on legal principle, that principle should have binding effect, even if the judges in principled agreement disagree on result or case outcome. I explain why some courts and most commentators have categorically excluded dissents from the holding category, and why that move is mistaken. First of all, an analysis of the holdings/dicta distinction shows that, in some cases, dissenting views belong on the holding side. Second, if we think that principled decisionmaking is fundamental to the authority and legitimacy of case law, then judicial agreement at the level of rationale or principle merits precedential status, even where those who agree on principle disagree on how a case should come out.