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Articles 1 - 30 of 12071

Full-Text Articles in Law

Hacking The Internet Of Things: Vulnerabilities, Dangers, And Legal Responses, Sara Sun Beale, Peter Berris Feb 2018

Hacking The Internet Of Things: Vulnerabilities, Dangers, And Legal Responses, Sara Sun Beale, Peter Berris

Duke Law & Technology Review

The Internet of Things (IoT) is here and growing rapidly as consumers eagerly adopt internet-enabled devices for their utility, features, and convenience. But this dramatic expansion also exacerbates two underlying dangers in the IoT. First, hackers in the IoT may attempt to gain control of internet-enabled devices, causing negative consequences in the physical world. Given that objects with internet connectivity range from household appliances and automobiles to major infrastructure components, this danger is potentially severe. Indeed, in the last few years, hackers have gained control of cars, trains, and dams, and some experts think that even commercial airplanes could be ...


Preserving The ‘Jewel Of Their Souls’: How North Carolina’S Common Law Could Save Cyber-Bullying Statutes, Nick Mcguire Feb 2018

Preserving The ‘Jewel Of Their Souls’: How North Carolina’S Common Law Could Save Cyber-Bullying Statutes, Nick Mcguire

Duke Journal of Constitutional Law & Public Policy Sidebar

In State v. Bishop, the North Carolina Supreme Court struck down the state’s cyber-bullying statute on the grounds that it violated the First Amendment right to freedom of speech. Cyber-bullying, bullying that occurs through electronic technology, has become more prevalent in recent years as much of adolescent life shifts to social media and digital communications. Increasing evidence of cyber-bullying’s negative effects on children has prompted numerous state legislatures to take action. Many states have enacted generic policies for school personnel to take reasonable action to combat cyber-bullying during school hours. This note, however, argues for an alternative approach ...


The War Against Chinese Restaurants, Gabriel J. Chin, John Ormonde Jan 2018

The War Against Chinese Restaurants, Gabriel J. Chin, John Ormonde

Duke Law Journal

Chinese restaurants are a cultural fixture—as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks, and servers and motivating unions to fight them. Second, Chinese restaurants threatened white women, who were subject to seduction by Chinese men taking advantage of intrinsic female weakness and nefarious techniques such as opium addiction.

The efforts were creative. Chicago used anti-Chinese zoning, Los Angeles restricted restaurant ...


Choose Your Laws Carefully: Executive Authority To Unilaterally Withdraw The United States Outer Continental Shelf From Leasing Disposition, Payton A. Wells Jan 2018

Choose Your Laws Carefully: Executive Authority To Unilaterally Withdraw The United States Outer Continental Shelf From Leasing Disposition, Payton A. Wells

Duke Law Journal

Congress enacted the Outer Continental Shelf Lands Act (OCSLA) to both exert federal jurisdiction over the submerged lands of the U.S. Outer Continental Shelf and establish the legal framework for America’s offshore energy production regime. Section 12(a) of OCSLA is a short yet potent provision that grants a president the authority to withdraw unleased offshore lands from leasing disposition, effectively banning any form of energy exploration or production. In recent decades, presidents have embraced section 12(a) not only to ban offshore energy production, but also to protect the marine environment itself. Presidents have also utilized a ...


A Violent Birth: Reframing Coerced Procedures During Childbirth As Obstetric Violence, Maria T.R. Borges Jan 2018

A Violent Birth: Reframing Coerced Procedures During Childbirth As Obstetric Violence, Maria T.R. Borges

Duke Law Journal

In the United States, women are routinely forced to undergo cesarean sections, episiotomies, and the use of forceps, despite their desire to attempt natural vaginal delivery. Yet, the current American legal system does little to provide redress for women coerced to undergo certain medical procedures during childbirth. Courts and physicians alike are prepared to override a woman’s choice of childbirth procedure if they believe this choice poses risks to the fetus, and both give little value to the woman’s right to bodily autonomy. This Note proposes a solution for addressing the problem of coerced medical procedures during childbirth ...


Characterizing Constitutional Inputs, Michael Coenen Jan 2018

Characterizing Constitutional Inputs, Michael Coenen

Duke Law Journal

Constitutional doctrine frequently employs tests that operate on abstract conceptual inputs rather than objectively identifiable facts. Consider some examples: substantive due process doctrine directs attention to whether a violated “right” qualifies as fundamental or nonfundamental; Commerce Clause doctrine directs attention to whether a regulated “activity” qualifies as economic or noneconomic; the strict scrutiny test directs attention to whether a relevant “government interest” qualifies as compelling or noncompelling; and so forth. These sorts of decision rules call for an evaluation of variables whose scope, content, and character are frequently up for debate, thereby requiring courts to characterize constitutional inputs as a ...


Journal Staff Jan 2018

Journal Staff

Duke Law Journal

No abstract provided.


Chance To Change: Jennings V. Rodriguez As A Chance To Bring Due Process To A Broken Detention System, Joe Bianco Jan 2018

Chance To Change: Jennings V. Rodriguez As A Chance To Bring Due Process To A Broken Detention System, Joe Bianco

Duke Journal of Constitutional Law & Public Policy Sidebar

Jennings v. Rodriguez will determine whether specific classes of detained noncitizens will be entitled to bond hearings before Immigration Judges moving forward. The challenge comes from the Ninth Circuit, which, with the Second Circuit, mandates bond hearings for some detainees automatically after six months. Those Circuits found that after that point, the detention was arbitrary without a showing by the Government of why the noncitizen needed continued detention. The Government seeks to retain the current system, where the noncitizen’s detention release is entirely at the Government’s discretion. This commentary sets out the case and argues that the better ...


Journal Staff Jan 2018

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.


Why Deporting Immigrants For “Crimes Involving Moral Turpitude” Is Now Unconstitutional, Lindsay M. Kornegay, Evan Tsen Lee Jan 2018

Why Deporting Immigrants For “Crimes Involving Moral Turpitude” Is Now Unconstitutional, Lindsay M. Kornegay, Evan Tsen Lee

Duke Journal of Constitutional Law & Public Policy

In the best of times, immigrants should only be deported according to the rule of law and not by the whim of executive branch officials. Now, it is imperative. Yet the statute authorizing removal of immigrants for “crimes involving moral turpitude” invites officials to base their prosecutorial choices on political or personal views. As a result, defense attorneys advising their clients on the immigration consequences of pleas have no basis for prediction. Although the Supreme Court long ago rejected the argument that the “moral turpitude” clause was void for vagueness, one of the Court’s most recent decisions now makes ...


“Safe Spaces” And The Educational Benefits Of Diversity, Vinay Harpalani Jan 2018

“Safe Spaces” And The Educational Benefits Of Diversity, Vinay Harpalani

Duke Journal of Constitutional Law & Public Policy

No abstract provided.


Loyal Denominatorism And The Fourteenth Amendment: Normative Defense And Implications, Christopher R. Green Jan 2018

Loyal Denominatorism And The Fourteenth Amendment: Normative Defense And Implications, Christopher R. Green

Duke Journal of Constitutional Law & Public Policy

No abstract provided.


Procedural Checks: How The Constitution (And Congress) Control The Power Of The Three Branches, Todd David Peterson Jan 2018

Procedural Checks: How The Constitution (And Congress) Control The Power Of The Three Branches, Todd David Peterson

Duke Journal of Constitutional Law & Public Policy

No abstract provided.


Live Sports Virtual Reality Broadcasts: Copyright And Other Protections, Marie Hopkins Jan 2018

Live Sports Virtual Reality Broadcasts: Copyright And Other Protections, Marie Hopkins

Duke Law & Technology Review

As virtual reality rapidly progresses, broadcasts are able to increasingly mimic the experience of actually attending a game. As the technology advances and the viewer can freely move about the game and virtual reality can simulate the in-stadium attendance, the virtual reality broadcast nears the point where the broadcast is indistinguishable from the underlying game. Thus, novel copyright protection issues arise regarding the ability to protect the experience through copyright. Although normal broadcasts may be copyrighted, virtual reality broadcasts of live sports could lack protection under the Copyright Act because the elements of originality, authorship, and fixation are harder to ...


Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett Jan 2018

Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett

Duke Law & Technology Review

Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection. Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success ...


Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati Jan 2018

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati

Faculty Scholarship

On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood, rather than independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress.

The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions. Could Congress expel ...


U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley Jan 2018

U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley

Faculty Scholarship

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a ...


Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu Jan 2018

Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu

Faculty Scholarship

In "The Dignity of Commerce", Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values other ...


The Original Theory Of Originalism, David Singh Grewal, Jedediah Purdy Jan 2018

The Original Theory Of Originalism, David Singh Grewal, Jedediah Purdy

Faculty Scholarship

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty ...


If We Allow Football Players And Boxers To Be Paid For Entertaining The Public, Why Don't We Allow Kidney Donors To Be Paid For Saving Lives?, Philip J. Cook, Kimberly D. Krawiec Jan 2018

If We Allow Football Players And Boxers To Be Paid For Entertaining The Public, Why Don't We Allow Kidney Donors To Be Paid For Saving Lives?, Philip J. Cook, Kimberly D. Krawiec

Faculty Scholarship

We contrast the compensation ban on organ donation with the legal treatment of football, boxing, and other violent sports where both acute and chronic injuries to participants are common. Our claim is that there is a stronger case for compensating kidney donors than for compensating participants in violent sports. If this proposition is accepted, one implication is that there are only three logically consistent positions: allow compensation for both kidney donation and for violent sports; allow compensation for kidney donation but not for violent sports; or allow compensation for neither. Our current law and practice is perverse in endorsing a ...


Treaty Exit And Intra-Branch Conflict At The Interface Of International And Domestic Law, Laurence R. Helfer Jan 2018

Treaty Exit And Intra-Branch Conflict At The Interface Of International And Domestic Law, Laurence R. Helfer

Faculty Scholarship

This chapter, forthcoming in the Oxford Handbook of Comparative Foreign Relations Law, considers two important and unresolved issues raised by unilateral withdrawal from or denunciation of treaties. The first issue concerns whether treaty obligations end in both international and domestic law after a state leaves a treaty. Exit often produces the same effects in both legal systems, but some withdrawals bifurcate a treaty’s status, ending its obligations in domestic law but continuing to bind the state internationally, or vice versa. The second issue concerns denunciations initiated by different branches of government. The decision to withdraw from a treaty is ...


Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz Jan 2018

Central Clearing Of Financial Contracts: Theory And Regulatory Implications, Steven L. Schwarcz

Faculty Scholarship

To protect economic stability, post-crisis regulation requires financial institutions to clear and settle most of their derivatives contracts through central counterparties, such as clearinghouses associated with derivatives and commodity exchanges. This Article asks whether regulators should expand the central clearing requirement to non-derivative financial contracts, such as loan agreements. The Article begins by theorizing how and why central clearing can reduce systemic risk. It then examines the theory’s regulatory and economic efficiency implications, first for current requirements to centrally clear derivatives contracts and thereafter for deciding whether to extend those requirements to non-derivative contracts. The inquiry has real practical ...


Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith Jan 2018

Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to:

(a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law;

(b) make increasingly consequential political commitments for the United States on practically any topic;

(c) interpret these obligations and commitments; and

(d) terminate or withdraw from these obligations and commitments.

While others have examined pieces of this ...


Journal Staff Dec 2017

Journal Staff

Duke Journal of Gender Law & Policy

No abstract provided.


Cultural Competency In A Post-Model Rule 8.4(G) World, Latonia Haney Keith Dec 2017

Cultural Competency In A Post-Model Rule 8.4(G) World, Latonia Haney Keith

Duke Journal of Gender Law & Policy

No abstract provided.


A Call To Arms: The Department Of Defense’S Egg Freezing Benefit Summons Increased Reporting Regulations, Gloria Y. Liu Dec 2017

A Call To Arms: The Department Of Defense’S Egg Freezing Benefit Summons Increased Reporting Regulations, Gloria Y. Liu

Duke Journal of Gender Law & Policy

No abstract provided.


The Fbi’S Fitness Tests And Title Vii—Does Gender Equality Require Lowering Standards?, Dylan Tucker Dec 2017

The Fbi’S Fitness Tests And Title Vii—Does Gender Equality Require Lowering Standards?, Dylan Tucker

Duke Journal of Gender Law & Policy

No abstract provided.


Advancing Faculty Diversitythrough Self-Directed Mentoring, Yvonne M. Dutton, Margaret Ryznar, Lea Shaver Dec 2017

Advancing Faculty Diversitythrough Self-Directed Mentoring, Yvonne M. Dutton, Margaret Ryznar, Lea Shaver

Duke Journal of Gender Law & Policy

Mentoring is widely acknowledged to be important in career success, yet may be lacking for female and minority law professors, contributing to disparities in retention and promotion of diverse faculty. This Article presents the results of a unique diversity mentoring program conducted at one law school. Mentoring is often thought of as something directed by the mentor on behalf of the protégé. Our framework inverts that model, empowering diverse faculty members to proactively cultivate their own networks of research mentors. The studied intervention consisted of modest programming on mentorship, along with supplemental travel funds to focus specifically on travel for ...


Undue Sacrifice: How Female Sexual Assault Victims Fight The Military While Fighting In The Military, Russell Spivak Dec 2017

Undue Sacrifice: How Female Sexual Assault Victims Fight The Military While Fighting In The Military, Russell Spivak

Duke Journal of Gender Law & Policy

Over the last century, women have fought for the right to serve their nation in the exact same way men have: in uniform. Women have indeed made enormous strides toward serving in equal measure to their male counterparts. But women are still too often perceived and treated as second-class citizens, inhibiting a genuine realization of their equality in the armed forces. This is exhibited, if not reinforced, by the prevalence of women’s sexual assault while serving their country and the insufficient prosecution thereof. By diagnosing and remedying the insufficiencies in the military justice system’s legal regime governing the ...


National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey Dec 2017

National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey

Duke Journal of Constitutional Law & Public Policy Sidebar

National Labor Relations Board v. Murphy Oil USA pits two co-equal federal statutes head-to-head. The Federal Arbitration Act mandates that all arbitration clauses be enforced. The National Labor Relations Act grants employees the right to act collectively to bring claims against employers. The Supreme Court must decide whether arbitration clauses in employment contracts, which require employees to arbitrate work-related disputes on an individual basis, contravene the interests of the NLRA. This commentary argues that the Supreme Court should recognize how these arbitration clauses undermine and subvert the protections of the NLRA by disallowing employees to act collectively. By invoking the ...