Digital Commons Network^™

"Just What Is Going On Here?" An Homage, Barak D. Richman

Law and Contemporary Problems

No abstract provided.

Methodological Tensions In Understanding Markets, Marietta Auer, Hanoch Dagan, Roy Kreitner, Ralf Michaels

Law and Contemporary Problems

No abstract provided.

Aristotle On Reciprocity, Equivalent Value, And The Embeddedness Of Markets, Rachel Z. Friedman

Law and Contemporary Problems

No abstract provided.

The Epicycles Of General Equilibrium Theory, David Singh Grewal

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Disentangling Race And Politics: Racial Gerrymandering In South Carolina's First Congressional District, Matthew Poliakoff

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2020 Census, South Carolina's Republican-controlled legislature redrew the boundaries for Congressional District 1, historically anchored in Charleston County. After thirty-thousand African American voters were moved out of District 1 and into District 6, the South Carolina State Conference of the NAACP challenged the new map as an unconstitutional racial gerrymander. A three-judge district court panel agreed, finding that race predominated above other factors in the map redraw. On appeal, the question remains not only whether the state legislature used race above other factors in its map design, but also how plaintiffs are expected to prove these claims in …

Bodies Of Evidence: The Criminalization Of Abortion And Surveillance Of Women In A Post-Dobbs World, Jolynn Dellinger, Stephanie Pell

Duke Journal of Constitutional Law & Public Policy

In the wake of Dobbs v. Jackson Women's Health Organization, state laws criminalizing abortion raise concerns about the investigation and prosecution of women seeking reproductive health care and about the surveillance such investigations will entail. The criminalization of abortion is not new, and the investigation of abortion crimes has always involved the surveillance of women. However, state statutes criminalizing abortion coupled with surveillance methods and technologies that did not exist pre-Roe present new and complex challenges surrounding the protection of women's privacy and liberty interests—in addition to the interests of those who may provide or help pregnant people obtain reproductive …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Meat Consumption Meets Risk Regulation In The United States, Andrew Kelbley

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

Finding A Core Of Sustainability In Directors' And Officers' Fiduciary Duties, Mark Ortega

Duke Environmental Law & Policy Forum

Directors and officers have a fiduciary duty to act in the best interests of a corporation and its shareholders. Yet corporations may be employing unsustainable, short-term business models that fail to properly account for financial and systemic risks that could harm the corporation in the long term. This paper asks whether there is, embedded within directors' fiduciary duties, a greater duty to consider "sustainability" (as this paper defines it). Specifically, this duty would require directors and officers to return corporations to the established shareholder wealth maximization ("SWM") norm of creating long-term shareholder value under Delaware law.

This paper …

"The Government Doesn't Take The Gay Community Seriously": The Failure Of Fema To Account For Lgbtq+ Individuals In Disaster Mitigation And Recovery, Alyssa Curcio

Duke Environmental Law & Policy Forum

No abstract provided.

The Challenges And Opportunities Of Beneficially Reusing Produced Water, Amy Hardberger

Duke Environmental Law & Policy Forum

No abstract provided.

The Lack Of Responsibility Of Higher Educaiton Institutions In Addressing Phishing Emails And Data Breaches, Muxuan (Muriel) Wang

Duke Law & Technology Review

Higher education institutions (HEIs) are highly susceptible to cyberattacks, particularly those facilitated through phishing, due to the substantial volume of confidential student and staff data and valuable research information they hold. Despite federal legislations focusing on bolstering cybersecurity for critical institutions handling medical and financial data, HEIs have not received similar attention. This Note examines the minimal obligations imposed on HEIs by existing federal and state statutes concerning data breaches, the absence of requirements for HEIs to educate employees and students about phishing attacks, and potential strategies to improve student protection against data breaches.

Among The Rarest: Saving The Eastern North Pacific Right Whale, Elza Bouhassira

Alaska Law Review

The North Pacific Right Whale (NPRW) is perhaps the rarest, most endangered large whale species in the world. Only about thirty surviving individuals make up the eastern population, which lives in waters around Alaska. This note aims to highlight the crisis facing eastern NPRWs and the steps that can be taken to support the recovery of this rare whale. The paper first presents information on the history of the species and its importance. It next examines existing international and domestic U.S. legal regimes as well as a pending petition to revise NPRW critical habitat off of Alaska. Finally, it advances …

Note From The Editor

Alaska Law Review

No abstract provided.

Sustainable Mining Challenges: Alaska Water Permitting And The United States Green Energy Transition, Morgan Pettit

Alaska Law Review

This Note addresses the myriad of legal and regulatory barriers new mining projects face in Alaska at present. These barriers have become increasingly important at a time when the United States has sought to bolster its domestic mineral supply chain. With over 100 newly located critical mineral deposits, Alaska may be the best place in the United States to establish further domestic sources of critical minerals. By streamlining the regulatory process at both the federal and state level, Alaska can better (1) protect domestic supply chains from global disruptions; (2) maximize the economic benefits of meeting increased global demand for …

Journal Staff

Alaska Law Review

No abstract provided.

In The Dark: State V. Alaska Legislative Council And Public-School Funding In The Face Of The Dedicated Funds Clause, Joe Perry

Alaska Law Review

In the past several years, Alaska has faced many challenges in its public education system. These challenges gave rise to an intense political debate, significant new legislation, and a protracted battle over the future of funding for public education. Governor Mike Dunleavy and the state legislature publicly clashed over the implementation of H.B. 287, a 2018 state law designed to provide financial stability to ailing schools and curtail teacher layoffs. In 2022, the Supreme Court of Alaska resolved the dispute in favor of the governor and found a contentious piece of state legislation unconstitutional under the states "Dedicated Funds Clause." …

Towards Better Local Governance In Alaska's Unorganized Borough, Jake Sherman

Alaska Law Review

Alaska's unorganized borough is the only unincorporated county-equivalent area in the entire United States, but the Alaska Constitution never envisioned that would be the case. The framers of the Alaska Constitution drafted a revolutionary article on local government that prioritized localism—participation in local government—to further democratic engagement in the state. Recognizing that much of rural Alaska lacked the population and infrastructure to support incorporated and localized self-governance in the 1950s, the framers opted not to automatically incorporate the entire state under various borough governments. Even so, the framers made clear that the state was to play an active role in …

Journal Staff

Duke Law Journal

No abstract provided.

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

The Return Of Three-Judge Constitutional Courts, Matt Queen

Duke Law Journal

State courts wield the authority to elevate state constitutional protections above those afforded by the U.S. Constitution. That power is great—so great that some legislatures have intervened in constitutional adjudication, purportedly to undermine forum shopping and check a single judge’s influence. Accordingly, North Carolina and Tennessee require that three-judge trial courts hear constitutional challenges to state laws. These courts echo twentieth-century congressional efforts to trim federal courts’ equitable jurisdiction. They also present new and familiar drawbacks spawned by their federal ancestors.

This Note examines these new constitutional courts through several lenses: their historical context, political development, advantages, and drawbacks. Although …

We're Gonna Need A Bigger Boat: The Importance Of Increased Shark Conservation Across Countries, States, And The High Seas, Emma Shahabi

Duke Environmental Law & Policy Forum

Sharks serve invaluable roles as apex predators in the world's ocean ecosystems. However, the rise of the shark fin trade and incidental bycatch have drastically eliminated shark populations so that several species are close to extinction. Without substantial upgrades to existing international frameworks including CITES, CMS, and IPOA-Sharks, and regulatory bodies such as RFMOs, shark populations may pass beyond recovery. However, strengthening those regulations, along with expanding the U.S.'s role as a leader in shark conservation carries significant potential in protecting shark populations. Lastly, governments and conservation entities must substantially increase research and public awareness regarding the issue to ensure …

Fighting Utility Wildfire With Knowledge Management, Catherine J.K. Sandoval

Duke Environmental Law & Policy Forum

No abstract provided.

Uncreative Designs, Sarah Burstein

Duke Law Journal

It is often said that the standards for patent protection are higher than the standards for copyright protection. Specifically, commentators assert that the copyright requirement of originality is easier to satisfy than the patent requirements of novelty and nonobviousness. And yet, the USPTO regularly grants patents for designs that fall below the low standard of copyright originality set by the Supreme Court in Feist v. Rural. Some may suggest that the existence of these “sub-Feist” design patents is a result of the USPTO abandoning its duty to scrutinize design patent applications. Or they may suggest that it is a result …

Stare Decisis And Remedy, Melissa Murray

Duke Law Journal

Much ink has been spilled on the Roberts Court’s approach to stare decisis and precedent. Such commentary is hardly surprising. In just the last five years, the Court has overruled extant precedents on issues that range from abortion and jury convictions to property rights and public unions. It has also substantially narrowed and limited existing precedents, curbing the reach of earlier decisions in ways that disrupt and distort the jurisprudential landscape.

Some view the Court’s uneven approach to precedent as ideologically determined. As these critics maintain, the Court adheres to precedents that are consistent with the views of its six-member …

The Past As A Colonialist Resource, Deepa Das Acevedo

Duke Law Journal

Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.

Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on …

Historical Analogy And The Role Morality Of Reason-Giving, Darrell A. H. Miller

Duke Law Journal Online

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 …

Missing Pieces: Gaps In The Record Of Early American Decisional Law, Andrew Willinger

Duke Law Journal Online

In its most recent major Second Amendment decision, New York State Rifle & Pistol Association v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were …