Law Commons^™

Voluntary Sterilization Of Inmates For Reduced Prison Sentences, Elise B. Adams

Duke Journal of Gender Law & Policy

In May 2017, a Tennessee judge issued a standing order allowing inmates to receive thirty days’ jail credit in exchange for undergoing a voluntary sterilization procedure. Although the order was ultimately rescinded, this Article will address the constitutional and ethical concerns that a district court would have considered had the order not been rescinded. While inmates can always choose to waive their constitutional rights, the coercive nature of prisons—explained in the unconstitutional conditions doctrine—may compromise a prisoner’s ability to provide voluntary consent. The constitutionality of the order largely depends on the level of scrutiny a court applies. Regardless of the …

From Sex Objects To Sisters-In-Arms: Reducing Military Sexual Assault Through Integrated Basic Training And Housing, Gabrielle Lucero

Duke Journal of Gender Law & Policy

No abstract provided.

Journal Staff

Duke Journal of Gender Law & Policy

No abstract provided.

Using Federal Nondiscrimination Laws To Avoid Erisa: Securing Protection From Transgender Discrimination In Employee Health Benefit Plans, Bridget Schaaff

Duke Journal of Gender Law & Policy

Recent attempts to repeal the Affordable Care Act and the potential rollback of the interpretation of the protections the Act affords transgender people put transgender people at risk of being denied services and coverage for gender-affirming care. This Article provides advocates with alternative legal arguments to help employees bring claims when their employer provides a health benefit plan that discriminates on the basis of gender identity. These arguments can avoid the Employee Retirement Income Security Act’s broad preemption scheme and lack of nondiscrimination provisions. This Article proposes that, based on a narrow exception to preemption regarding the Employee Retirement Income …

Defining And Regulating Cryptocurrency: Fake Internet Money Or Legitimate Medium Of Exchange?, Susan Alkadri

Duke Law & Technology Review

Digitalization makes almost everything quicker, sleeker, and more efficient. Many argue cryptocurrency is the future of money and payment transfers. This paper explores how the unique nature of cryptocurrencies creates barriers to a strict application of traditional regulatory strategies. Indeed, state and federal regulators remain uncertain if and how they can regulate this cutting-edge technology. Cryptocurrency businesses face difficulty navigating the unclear regulatory landscape, and consumers frequently fall prey to misinformation. To reconcile these concerns, this paper asserts cryptocurrency functions as “currency” or “money” and should be treated as such for regulatory purposes. It also proposes each state implement a …

The Future Of Freedom Of Expression Online, Evelyn Mary Aswad

Duke Law & Technology Review

Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given that the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right? In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their …

Note From The Editor

Alaska Law Review

No abstract provided.

Of Time, Place, And The Alaska Constitution, G. Alan Tarr

Alaska Law Review

This Article places the Alaska Constitution in historical perspective by comparing it with other state constitutions. It first considers how the convention delegates’ need to satisfy four audiences—Congress, Alaska residents who would ratify the constitution, those who would live under the constitution, and posterity—affected the constitution’s design. It next shows how the Alaska Constitution reflects the fact that it is the state’s first constitution, that it is a western constitution, and that it is a mid-twentieth-century constitution. Finally, it compares the Alaska Constitution with the Hawaii Constitution, which was drafted at the same time.

Preparing The Way: Tom Stewart’S Recollections On The Alaska State Constitutional Convention, Thomas Metzloff

Alaska Law Review

One of the most important figures in the successful effort for Alaska statehood was Tom Stewart. Born into an established Juneau family headed by Ben Stewart, founder of the Alaska Territorial Department of Mines, Tom was raised in Juneau. After earning his B.A. at the University of Washington, he attended Yale Law School. Following graduation, he clerked for United States District Court Judge George Folta in Juneau in 1951 and became a member of the Alaska Bar. After clerking, he served as Assistant Attorney General for Alaska from 1951 to 1954. He was then elected to the House of Representatives …

Keynote Address: The Alaska Constitution And The Future Of Individual Rights, Erwin Chemerinsky

Alaska Law Review

No abstract provided.

Alaska Native Perspectives On The Alaska Constitution, William L. Iggiagruk Hensley, John Sky Starkey

Alaska Law Review

No abstract provided.

Alaska, The Last Statehood Constitution, And Subnational Rights And Governance, Robert F. Williams

Alaska Law Review

No abstract provided.

Racing To Regulation: A Comparative Analysis Of Virtual Currency Regulation In Alaska And The Proposed Alaska Money Services Act Carlos Manzano, Carlos Manzano

Alaska Law Review

The emergence of virtual currencies has revolutionized the financial industry by creating an alternative form of payment that seeks to insulate individuals from government and bank influence. Yet, federal regulation of virtual currency has remained limited. Many state legislators have rushed to fill the gap by enacting laws regulating virtual currency use and transmission. This state-by-state approach has led to significant variation between state regulatory regimes, creating a regulatory spectrum of lenient to strict regulatory approaches. In March 2017, Alaska House Representatives Zach Fansler and Sam Kito proposed the Alaska Money Services Act to require licensing for virtual currency activity. …

Banishment Of Non-Natives By Alaska Native Tribes: A Response To Alcoholism And Drug Addiction Halley Petersen, Halley Petersen

Alaska Law Review

Since 2015, at least a dozen tribal court banishments have been reported in Alaska, mainly involving alleged bootleggers and drug dealers in rural communities. Rural Alaska communities, which are predominantly Alaska Native, face high rates of alcoholism, drug abuse, and related crime. Faced with these drug and alcohol issues and insufficient access to law enforcement, it is not surprising that some communities have decided to banish offenders. However, banishment is not currently legal, at least when imposed upon non-Native citizens. Tribal courts lack sufficient jurisdiction over non-Natives to banish them for bootlegging or dealing drugs. Tribal governments are sovereigns with …

Merit Selection Of Judges In Alaska: The Judicial Council, The Independence Of The Judiciary, And The Popular Will, Walter L. Carpeneti, Brett Frazer

Alaska Law Review

The judicial selection and retention provisions of the Alaska Constitution, found in Article IV, achieve a delicate and remarkably successful balance between competing interests. The purposes of this article are to describe this constitutional plan (called “merit selection” because it begins with nomination based on merit alone), explain why the founders adopted it, examine historical challenges to it, and assess its performance on the 60th anniversary of Alaska statehood.

Alaska’S Merit Selection Of Judges: The Council’S Role, Past And Present, Teri White Carns, Susie Mason Dosik

Alaska Law Review

Delegates to Alaska's Constitutional Convention adopted a Judiciary Article that called for the state's judges to be selected and retained in a merit selection system. Modeled after the "Missouri Plan," attorneys applying for judgeships are reviewed by the Judicial Council; two or more candidates are nominated to the governor; the governor appoints from the Council's list; and all judges periodically stand for retention in the general elections. Alaska's Judicial Council is composed of three non-attorneys appointed by the governor and confirmed by the legislature, three attorneys appointed by the Alaska Bar Board of Governors, and the Chief Justice who serves …

Journal Staff

Alaska Law Review

No abstract provided.

Deviancy, Dependency, And Disability: The Forgotten History Of Eugenics And Mass Incarceration, Laura I. Appleman

Duke Law Journal

Three widely discussed explanations of the punitive carceral state are racism, harsh drug laws, and prosecutorial overreach. These three narratives, however, only partially explain how our correctional system expanded to its current overcrowded state. Neglected in our discussion of mass incarceration is our largely forgotten history of the long-term, wholesale institutionalization of the disabled. This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, is an important part of our history of imprisonment, one that has shaped key contours of our current supersized correctional system. Only by fully exploring this forgotten narrative of long-term …

The Data Breach Dilemma: Proactive Solutions For Protecting Consumers’ Personal Information, Daniel J. Marcus

Duke Law Journal

Data breaches are an increasingly common part of consumers’ lives. No institution is immune to the possibility of an attack. Each breach inevitably risks the release of consumers’ personally identifiable information and the strong possibility of identity theft.

Unfortunately, current solutions for handling these incidents are woefully inadequate. Private litigation like consumer class actions and shareholder lawsuits each face substantive legal and procedural barriers. States have their own data security and breach notification laws, but there is currently no unifying piece of legislation or strong enforcement mechanism.

This Note argues that proactive solutions are required. First, a national data security …

Journal Staff

Duke Law Journal

No abstract provided.

Legitimate Yet Manipulative: The Conundrum Of Open-Market Manipulation, Gina-Gail S. Fletcher

Duke Law Journal

Is manipulation possible in the absence of misconduct? This is the foundational inquiry at the heart of open-market manipulation. Open-market manipulation captures the attention of lawmakers and courts because it is market manipulation effected entirely through facially legitimate transactions. Whereas traditional, well-accepted forms of market manipulation involve deception, fraud, and monopolistic prices, open-market manipulation involves no objectively bad acts and, instead, is accomplished through permissible transactions executed on the open market. As enforcement of this form of manipulation increases, the question arises—when, if ever, is a legitimate transaction manipulative?

To the Securities Exchange Commission and the Commodity Futures Trading Commission …

Electoral Due Process, Sarah Milkovich

Duke Law Journal

Elections and their aftermath are matters left to the states by the U.S. Constitution. But the Supreme Court has made clear that the right to vote is federally protected, and fiercely so. When an election failure takes place and deprives citizens of their votes, challengers must resort to state law remedies. Many states have procedural requirements for election challenges that are stringent to the point of being prohibitive.

This Note argues that the due process concerns raised by these burdensome state procedures are amplified by their voting rights context. Where a voter must take to the courts to vindicate her …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

What Makes For More Or Less Powerful Constitutional Courts?, Stephen Gardbaum

Duke Journal of Comparative & International Law

It is sometimes suggested that one or another constitutional or supreme court (for example, the U.S., Indian, or German) is the “most powerful in the world.” And yet it is often far from clear what the measure of power is or should be, what the sources of judicial power are under the given measure, and what explains why some courts are more powerful than others. Is strength mostly a function of formal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only …

Trends In Admissibility Of Hearsay Evidence In War Crime Trials: Is Fairness Really Preserved?, Michaela Halpern

Duke Journal of Comparative & International Law

In the course of war, who determines what is just and fair? Fairness and justice are and should be universal constants; however, the paths to fairness and justice must be malleable and adapt to different circumstances.

The Nuremberg trials were marked by a conscious effort to avoid “victor’s justice” and provide a fair trial to the defendants who committed acts of atrocity. This paper examines whether this goal was achieved in the Nuremberg, Tokyo, and International Criminal Tribunal for the former Yugoslavia trials, as well as briefly touching upon the Guantanamo military commission trials, by looking particularly at the use …

Interrogation Or Experimentation? Assessing Non-Consensual Human Experimentation During The War On Terror, William J. Aceves

Duke Journal of Comparative & International Law

The prohibition against non-consensual human experimentation has long been considered sacrosanct. It traces its legal roots to the Nuremberg trials although the ethical foundations dig much deeper. It prohibits all forms of medical and scientific experimentation on non-consenting individuals. The prohibition against non-consensual human experimentation is now well established in both national and international law.

Despite its status as a fundamental and non-derogable norm, the prohibition against non-consensual human experimentation was called into question during the War on Terror by the CIA’s treatment of “high-value detainees.” Seeking to acquire actionable intelligence, the CIA tested the “theory of learned helplessness” on …

Dialing It Back: Why Courts Should Rethink Students’ Privacy And Speech Rights As Cell Phone Communications Erode The ‘Schoolhouse Gate’, Nicholas J. Mcguire

Duke Law & Technology Review

The ubiquity of cell phones in today’s society has forced courts to change or dismiss established, but inapplicable analytical frameworks. Two such frameworks in the school setting are regulations of student speech and of student searches. This Article traces the constitutional jurisprudence of both First Amendment off-campus speech protection and Fourth Amendment search standards as applied to the school setting. It then analyzes how the Supreme Court’s ruling in Riley v. California complicates both areas. Finally, it proposes a pragmatic solution: by recognizing a categorical First Amendment exception for “substantial threats” against the school community, courts could accommodate students’ constitutional …

Saving Disgorgement From Itself: Sec Enforcement After Kokesh V. Sec, Patrick L. Butler

Duke Law Journal

Disgorgement is under threat. In Kokesh v. SEC , the Supreme Court held that disgorgement—a routine remedy that allows the SEC to recoup ill-gotten gains from financial wrongdoers—is subject to a 5-year statute of limitations because it functions as a “penalty.” This ruling threatens to upend the traditional conception of disgorgement as an ancillary remedy granted by the court’s equity power, because there are no penalties at equity. With the possibility that Kokesh’s penalty reasoning could be adopted beyond the statute of limitations context, the future of disgorgement in federal court is in doubt.

This Note proposes a way forward …

Practicable And Justiciable: Why North Carolina’S Constitutional Vision Of Higher Education Is Judicially Enforceable, South A. Moore

Duke Law Journal

Two hundred and twenty-five years ago, North Carolina established the nation’s oldest public university, choosing as its home a particularly inviting poplar tree in present-day Chapel Hill. Today, UNC-Chapel Hill is part of a sixteen-campus university system known nationwide for its commitment to ensuring that public universities remain financially accessible to the citizens who support them.

That commitment is codified in Article IX, Section 9 of the North Carolina Constitution, which requires that tuition at the State’s public universities be “as far as practicable . . . free of expense.” That clause was first introduced in North Carolina’s 1868 Constitution, …

E-Notice, Christine P. Bartholomew

Duke Law Journal

Social media platforms and smartphone manufacturers face class action lawsuits, but how open are federal courts to using these very technologies to notify members of a class action? This Article details the results from an empirical analysis of over 2700 federal class notice decisions. It finds class notice changing, but very slowly. Supreme Court precedent demands a dynamic standard for class action notice. However, fears of change, technology, and imprecision keep courts tethered to twentieth-century modes of communication. This judicial fear encumbers E-Notice—at a cost to the utility of class action procedures.