Historical Analogy and the Role Morality of Reason-Giving Authors Darrell A. H. Miller, Duke Law SchoolFollow Document Type Article Publication Date 3-18-2024 Subject Category Law Abstract The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen. The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of Bruen and more focused on the ethical implications of this type of reasoning.

NEW | Prof. Darrell A. H. Miller, a Con Law and Second Amendment scholar, discusses the perils of relying on analogical reasoning in applying SCOTUS’ new 𝘽𝙧𝙪𝙚𝙣 test — and how to avoid them — in his Duke Law Journal article “Historical Analogy and the Role Morality of Reason-Giving.” ➡️ duke.is/m/q5ec

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Good morning from Duke Law! ☀️😎

Increasing compliance with international pandemic law: international relations and new global health agreements Matthew M Kavanagh, Clare Wenham, Elize Massard da Fonseca, Laurence R Helfer, Elvin Nyukuri, Allan Maleche, Sam F Halabi, Adi Radhakrishnan, Attiya Waris Across multiple pandemics, global health governance institutions have struggled to secure the compliance of states with international legal and political commitments, ranging from data sharing to observing WHO guidance to sharing vaccines. In response, governments are negotiating a new pandemic treaty and revising the International Health Regulations. Achieving compliance remains challenging, but international relations and international law research in areas outside of health offers insights. This Health Policy analyses international relations research on the reasons why states comply with international law, even in the absence of sanctions.

NEW📝: “Increasing Compliance with Int’l Pandemic Law” — Duke Law Professor Laurence Helfer, et al suggest 6 politically feasible monitoring mechanisms for a draft global health treaty to induce positive changes in state behavior.

Read here: 👉 duke.is/5/k8zh

Do students and faculty facing arrest at protests have First Amendment Rights? NPR's Ayesha Rascoe speaks with Sarah Ludington of Duke University's School of Law about the first amendment protections for students who are protesting on college campuses.

LISTEN 🎧 | “Universities can take proactive steps, for example, in educating their community about what civil discourse looks like...” First Amendment Clinic Dir. Sarah Ludington chats w/ @npr.org about 1A protections for students and faculty protesting on college campuses.

Man kneeling to propose to woman on a small bridge

While on a typical date for the couple, Aditi Mishra LLM ’24 never expected to receive a proposal from her longtime boyfriend, Jai Singh LLM ’24. But just a couple of months ago, she got what she had hoped for. 🌻🌹💍

Read their story ➡️ duke.is/5/8amj

Your Brain Waves Are Up for Sale. A New Law Wants to Change That. In a first, a Colorado law extends privacy rights to the neural data increasingly coveted by technology companies.

“It’s moving quickly, but it’s about to grow exponentially.”

Author of “The Battle for Your Brain,” Duke Law Professor Nita Farahany talks to the @nytimes.com about future of neurotech industry as new Colorado law extending protections to brain data garners national attention.

Cover of Siegel's book with title The Collective-Action Constitution

Prof. Neil Siegel's “𝐓𝐡𝐞 𝐂𝐨𝐥𝐥𝐞𝐜𝐭𝐢𝐯𝐞-𝐀𝐜𝐭𝐢𝐨𝐧 𝐂𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧” presents new insights on the structure and purpose of the founding document.

Siegel provides a broad but deep theory of the U.S. Constitution's basic structure, drawing from the disciplines of law, history, political science, and economics.

Portraits of Ashe-Card and James

We’re thrilled to share news of our Assoc. Dean for DEI Alison Ashe-Card and Sylvia James ’96 being elected to leadership positions for the National Association for Law Placement.

Ashe-Card was voted president-elect and James as VP for diversity, equity, and inclusion. Read more ➡️ duke.is/v/vmtt

Alan LeBlang ’24 chosen for FASPE Ethics Fellowship LeBlang sought a law fellowship to nurture his moral and ethical compass as an aspiring lawyer.

Alan LeBlang ’24 is one of 14 law students selected for a law fellowship that uses the conduct of legal professionals in Nazi-occupied Europe as a framework for approaching ethical responsibility in the legal profession today. “I wanted to start my legal career with a strong ethical foundation....”

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What was it like to clerk for Justice Sandra Day O'Connor? We heard from 3 of her former clerks—Duke Law Profs. Lisa Kern Griffin ('97-'98) and Matt Adler ('92-'93) and NC Deputy AG Sarah Boyce '12 ('15-'16)—at yesterday's 2024 Bolch Prize event recognizing Justice O'Connor as this year's recipient.

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We’re thrilled to see our own Assoc. Clinical Prof. Crystal Grant highlighted as a #Duke100 Trailblazer 🤩 for her thoughtful, innovative, and interdisciplinary approach to working with students in the Duke Children’s Law Clinic.

Read more about Prof. Grant ➡️ duke.is/9/azy6

Clerkships | Insights from Prof. Veronica Root Martinez Duke Law Prof. Veronica Root Martinez talks about what motivated her to pursue a clerkship as a law student, how she went about that process, and the legal s...

WATCH | We’re kicking off a new four-part video series exploring judicial clerkships! ⚖️👩‍⚖️ In Ep. 1, Prof. Veronica Root Martinez shares why she chose to clerk after law school, how it honed her legal skills as an attorney and academic, and ways to broaden the clerkship applicant pool.

Does legal online sports betting change behaviors of players and fans? While systems are in place to monitor the market, there have been instances of players betting on sports.

Speaking to WRAL-TV News, Professor Paul Haagen says he doesn't see a return to large-scale sports betting scandals, says players' activity is easier to monitor with legal online gambling.

"Once you make it legal, you can have some greater control in monitoring the market,” Haagen said.

1st amendment in Constitution graphic

“Highlighting the nation’s failure to protect journalists, Reporters Without Borders recently declared that the United States is ‘no longer a champion of press freedom, either at home or abroad,’” writes Second Amendment Prof. Joseph Blocher in his essay for @knightcolumbia.org ➡️ duke.is/j/atbc

Justice Daphne Barak-Erez speaking and sitting opposite David Levi

Justice Daphne Barak-Erez

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Justice Daphne Barak-Erez seated and gesturing with both hands while speaking

Tuesday at Duke Law: Israeli Supreme Court Justice Daphne Barak-Erez 👩‍⚖️ spoke about her new 📖, “Biblical Judgments: New Legal Readings in the Hebrew Bible,” which considers today's dilemmas of law and government, social justice, and human rights through the perspective of the Hebrew Bible.

Rees and Slade smiling for photo

Kudos to Mary-Grace Rees ’25 and Aysia Slade ’24 for reaching the semi-finals at the Costello competition at GMU’ Antonin Scalia Law School in Arlington, Va.

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“Trial lawyers should collaborate to get the best results for their clients. Practicing that teamwork with [Matt Queen ’24] and [Johanna Crisman ’25] at TYLA was an incredible way to prepare for my future litigation career,” said Margaret Kruzner ’24, who won the Best Opening Statement Award.

We're thrilled to share news of this year’s Mock Trial Board winning awards at the Texas Young Lawyers Association National Trial Competition and reaching the semi-finals at the John L. Costello National Criminal Law Trial Advocacy Competition! 🏆⚖️👏 https://duke.is/5/ywrd

POWELL: Is the Constitution obsolete? An increasing number of Americans are asking whether our Constitution is obsolete. Whether that fear leads to legal cynicism, political despair or a call for radical change varies from person to pers...

🗣️ 𝐈𝐬 𝐭𝐡𝐞 𝐂𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧 𝐨𝐛𝐬𝐨𝐥𝐞𝐭𝐞?

Duke Law Prof. Jeff Powell, a constitutional law scholar, argues that it is not. "The common life of the United States centers on the U.S. Constitution to a degree unparalleled elsewhere, and if that center is out of date, we have a serious problem," Powell writes.

Returning Citizens: Life Beyond Incarceration | Testimony | Episode 102 | WHYY Sentenced as teens, then freed by the Supreme Court, inmates tell their truths.

WATCH 👩‍💻📱 | PBS docuseries “Returning Citizens: Life Beyond Incarceration, Testimony” featured Asst. Clinical Prof. Lauren Fine ’11 talking about her work in juvenile justice. Fine is the co-founder and immediate past co-director of the Philadelphia-based Youth Sentencing & Reentry Project.

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Ready ➡️ Set ➡️ Go! Have a great Monday!😃🌞

Prof. Ruth Okediji standing at lectern

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Prof. Ruth Okediji standing at lectern

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An honor to have Harvard Law Prof. Ruth Okediji with us yesterday for this year's Lange Lecture in Intellectual Property, exploring how the interplay among U.S. identity politics, foreign relations crises, and the dynamics of European integration have shaped new frontiers in int'l IP lawmaking.

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Kudos to Profs. Doriane Coleman, Emily Ryo, Veronica Root Martinez & Sara Sternberg Greene on receiving distinguished professorships from Duke. They are among 32 recognized this year, including Prof. Elisabeth de Fontenay, who was awarded a distinguished professorship in Oct.

Story ➡️ duke.is/n/tvfy

Gun Laws to Face Fourth Circuit in Trio of Post-Bruen Tests A trio of Second Amendment cases this week will offer a look at how federal appellate judges are navigating gun regulations in the wake of the US Supreme Court’s 2022 Bruen decision, giving courts new...

4th Circuit rulings on 3 Second Amendment cases will help shape the post-Bruen landscape, says Andrew Willinger, executive director of the Duke Center for Firearms Law

“We’re still in that period where these appellate decisions are going to go a long way toward shaping the post-Bruen landscape.”

Lecture explores shift in international economic governance Georgetown University in Qatar (GU-Q) and the College of Law at Hamad Bin Khalifa University (HBKU) continued their collaborative lecture series “Foundations of International...

“The rule has been under enormous stress primarily because large economies...are increasingly interested in the kinds of activities that their consumption supports overseas,” said Prof. Tim Meyer on the trend of countries imposing tariffs and regulations on the production of goods elsewhere.

people walking outside of Duke Law building

Happy first day of spring from Duke Law!

#FirstDayOfSpring

Congress is right to want to curtail TikTok’s power and influence | Nita Farahany Millions of young Americans love the social media app – but it’s alarmingly addictive and a national security risk

In this Guardian op-ed, Duke Law Prof. Nita Farahany, a leading scholar on the ethical, legal, and social implications of emerging tech, is calling on Congress to adopt "a nuanced, risk-based framework" toward TikTok and other social platforms.

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wide view of large classroom full of seated audience and 5 panelists seated at table at the front of the room

panelists speaking with students

Duke Law is home to thought-provoking discussions like yesterday’s ‘Law and AI in China and the US’ talk exploring tech advancement and legal frameworks.

Speakers: Profs. Shitong Qiao and Arti Rai, Duke Engineering’s Profs. Yiran Chen and Jian Pei, and Prof. Jun Yang, from Duke’s Dept of Comp Sci.

John Macy ’22 to clerk for U.S. Supreme Court Associate Justice Samuel Alito Macy immersed himself in courts and the judiciary during his time at Duke Law and will have a front row seat this fall at the nation's highest court.

More wonderful alumni news! John Macy ’22, known for immersing himself in courts and the judiciary while at Duke Law, will have a front row seat this fall at the nation's highest court.

Macy has been selected to clerk for Supreme Court Associate Justice Samuel Alito for the upcoming term.

headshot of Donovan

We’re thrilled to share news of Duke Law alum Donovan Stone ’20 being selected to clerk for U.S. Supreme Court Associate Justice Ketanji Brown Jackson! 👏⚖️👏

“I am incredibly excited to start the clerkship,” Stone said.

Full story ➡️ duke.is/y/tvvy