Law Commons^™

Discharging Equity: Harrington V. Purdue Pharma L.P. And The Validity Of Nonconsensual Third-Party Releases, Andrew Klauber

Duke Journal of Constitutional Law & Public Policy Sidebar

In September 2019, Purdue Pharma L.P. petitioned for bankruptcy in the Southern District of New York. Purdue, which the Sackler family had owned and operated for decades, developed and aggressively marketed addictive opioid products, contributing to the modern opioid epidemic. The tsunami of litigation arising from the opioid epidemic gave rise to claims against Purdue and the Sackler family estimated to total more than $40 trillion, causing Purdue to petition for Chapter 11 bankruptcy.

In Purdue’s plan of reorganization, it employed a nonconsensual third-party release to discharge claims against the Sackler family. Nonconsensual third-party releases controversially enjoin parties to a …

Democratizing Administrative Law, Joshua D. Blank, Leigh Osofsky

Duke Law Journal

When agencies make statements about the law, people listen. This insight yields a fundamental tension. According to one set of views, such agency statements, and their ability to influence public behavior, are critical not only for a well-functioning bureaucracy but also for our entire system of government. According to another set of views, this agency power, if left unchecked, could border on tyranny.

Administrative law responds to this tension through an extensive, purportedly comprehensive, framework that attempts to police agency statements. The framework places different types of agency statements into different legal categories. On the one hand, legislative rules make …

Regulatory Body Shops, Bridget C.E. Dooling, Rachel Augustine Potter

Duke Law Journal

Agencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, …

Admininstrative Reliance, Haiyun Damon-Feng

Duke Law Journal

Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of …

Journal Staff

Duke Law Journal

No abstract provided.

Virtual Gaming, Actual Damage: Video Game Design That Intentionally And Successfully Addicts Users Constitutes Civil Battery, Allison Caffarone

Duke Law & Technology Review

In recent years, there has been increased academic interest in both the neurological effects of compulsive gaming and the potential tort liability of game developers who scientifically engineer games in order to addict users. Scholars from various disciplines are currently debating the scope and potential solutions to the problems associated with Gaming Disorder, now a globally recognized illness. This article contributes to this discussion by offering a multidisciplinary analysis of the scope of video game addiction, its neurological bases, and its relation to the legal rights and responsibilities of victims and game developers. In addition, this article explores the practical …

Barcoding Bodies: Rfid Technology And The Perils Of E-Carceration, Jackson Samples

Duke Law & Technology Review

Electronic surveillance now plays a central role in the criminal legal system. Every year, hundreds of thousands of people are tracked by ankle monitors and smartphone technology. And frighteningly, commentators and policymakers have now proposed implanting radio frequency identification (“RFID”) chips into people’s bodies for surveillance purposes. This Note examines the unique risks of these proposals—particularly with respect to people on probation and parole—and argues that RFID implants would constitute a systematic violation of individual privacy and bodily integrity. As a result, they would also violate the Fourth Amendment.

The Epistemic Preconditions Of Markets And Their Historicity, Lisa Herzog

Law and Contemporary Problems

No abstract provided.

Bargaining With Giants And Immortals: Bargaining Power As The Core Of Theorizing Inequality, Marietta Auer

Law and Contemporary Problems

No abstract provided.

The Monetary Structure Of Economic Activity: A Constitutional Analysis, Christine Desan

Law and Contemporary Problems

No abstract provided.

Concepts, Contexts, Contests, Roy Kreitner

Law and Contemporary Problems

No abstract provided.

"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 …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

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 …

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

Duke Environmental Law & Policy Forum

No abstract provided.

"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.

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 …

Journal Staff

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.

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 …

Note From The Editor

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 …

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 …