Law Commons^™

Journal Staff

Duke Law Journal

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 …

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 …

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 …

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 …

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 …

Limited Liability And The Known Unknown, Michael Simkovic

Duke Law Journal

Limited liability is a double-edged sword. On the one hand, limited lia-bility may help overcome investors’ risk aversion and facilitate capital formation and economic growth. On the other hand, limited liability is widely believed to contribute to excessive risk-taking and externaliza-tion of losses to the public. The externalization problem can be mitigated imperfectly through existing mechanisms such as regulation, mandatory insurance, and minimum capital requirements. These mechanisms would be more effective if information asymmetries between industry and poli-cymakers were reduced. Private businesses typically have better infor-mation about industry-specific risks than policymakers.

A charge for limited liability entities—resembling a corporate income …

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.

Journal Staff

Duke Law Journal

No abstract provided.

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, …

Statutory Interpretation And The Rest Of The Iceberg: Divergences Between The Lower Federal Courts And The Supreme Court, Aaron-Andrew P. Bruhl

Duke Law Journal

This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions, while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court’s discretionary docket. Another finding—based on a study of 40 years of cases from all …

Journal Staff

Duke Law Journal

No abstract provided.

Fixing Soft Dollars Is Not That Hard: A Consent And Reporting Framework For Regulating Client Commission Arrangements, Brendan Biffany

Duke Law Journal

Under soft dollar arrangements, investment advisers promise portfolio trades to participating brokers in exchange for investment research or other benefits. Recently, some academics, financial regulators, and practitioners have scrutinized such arrangements, arguing that they provide an avenue for advisers to unjustly enrich themselves at the expense of their clients. However, others defend soft dollar arrangements, seeing them as a mechanism for binding advisers to clients and increasing client returns.

A safe harbor currently protects advisers’ use of soft dollars, so long as certain minimum requirements are met. Critics argue that soft dollars should be banned outright, contending that advisers should …

Leave Your Guns At Home: The Constitutionality Of A Prohibition On Carrying Firearms At Political Demonstrations, Luke Morgan

Duke Law Journal

Armed protest has long been a tool of American political groups. Neo-Nazis, socialists, fascists, antifascists, the Black Panthers, neo-Confederates, and others have all taken up arms not necessarily to do violence, but to do politics. But such protests always risk rending a violent hole in our social fabric. If war is politics by other means, armed protests erase the distinction.

This Note argues that the Constitution’s relevant guarantees of individual rights—the First and Second Amendments—do not include a constitutional right to armed protest.

With respect to free speech, it is unlikely that current doctrine would cover armed protests. But, considering …

Intelligent Design, Christopher Buccafusco, Mark A. Lemley, Jonathan S. Masur

Duke Law Journal

When designers obtain exclusive intellectual property (IP) rights in the functional aspects of their creations, they can wield these rights to increase both the costs to their competitors and the prices that consumers must pay for their goods. IP rights and the costs they entail are justified when they create incentives for designers to invest in new, socially valuable designs. But the law must be wary of allowing rights to be misused. Accordingly, IP law has employed a series of doctrinal and costly screens to channel designs into the appropriate regime—copyright law, design patent law, or utility patent law—depending upon …

Journal Staff

Duke Law Journal

No abstract provided.

Presidential Exit, J.B. Ruhl, James Salzman

Duke Law Journal

No abstract provided.

Exiting Congressional-Executive Agreements, Curtis A. Bradley

Duke Law Journal

Commentators have argued that, even if the president has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the president lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This Article challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this Article contends, there is no persuasive reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice. For example, …

A Process-Based Approach To Presidential Exit, Mark Seidenfeld

Duke Law Journal

No abstract provided.

Regulatory Horcruxes, Sarah E. Light

Duke Law Journal

The regulator that designs and first implements a federal regulatory program does not always have the ability to control the timing and process of how that regulatory program will, in this Symposium’s language, “exit.” As the 2016 election has demonstrated, the initiating regulator cannot necessarily plan in advance for the program’s expiration, diminution, or scaling back. A successor instead wields this power. Whether one views this as a terrible thing or a salutary feature of democracy depends in part upon one’s relationship to the regulatory status quo, but also implicates broader questions about policy stability and democratic accountability. At the …

Constrained Regulatory Exit In Energy Law, Jim Rossi, Hannah J. Wiseman

Duke Law Journal

In recent years, the federal government’s efforts to open up competitive electricity markets have transformed how we think about the regulation of energy. In many respects, the Federal Energy Regulatory Commission’s (FERC) broad “deregulatory” efforts, which commenced in the 1990s, might appear to be a case of paradigmatic regulatory exit as defined by J.B. Ruhl and Jim Salzman. But our case study of FERC’s restructuring of wholesale electricity markets reveals some important institutional features that make exit in federalism contexts, and under federal statutory duties, a rich and difficult problem. In the context of energy, exit from one regulatory sphere …

Journal Staff

Duke Law Journal

No abstract provided.

From Theory To Doctrine: An Empirical Analysis Of The Right To Keep And Bear Arms After Heller, Eric Ruben, Joseph Blocher

Duke Law Journal

As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller , scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it.

This Article is the first comprehensive empirical analysis of post- Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion—state and federal, trial and appellate—from Heller up until February 1, 2016. The dataset is deep …

Fixing Law Reviews, Barry Friedman

Duke Law Journal

Very few people are happy at present with the law review publishing process, from article submission and selection to editing. Complaints are longstanding; similar ones emerge from faculty and students alike. Yet, change has not occurred. We remain locked in a process in which neither faculty nor students are happy.

This Article recommends wholesale changes to the submission and editing process. The first part details the dysfunctions of the current system, including everything from lack of student capacity to evaluate faculty scholarship—particularly under the gun of the expedite process—to faculty submitting subpar work in light of rigid submission cycles. It …

Capitalizing On Criminal Justice, Eisha Jain

Duke Law Journal

The U.S. criminal justice system “piles on.” It punishes too many for too long. Much criminal law scholarship focuses on the problem of excessive punishment. Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence. It stems from spiraling hidden penalties and the impact of a criminal record. The key question is not just why the state over-punishes, but rather why so many different institutions—law enforcement institutions as well as civil regulatory agencies and private actors—find it valuable to do so. This Article argues that …

A Free Bite At The Apple: How Flawed Statutory Drafting Has Undermined The Purpose Of The Patent Trial And Appeal Board, Rebecca Gentilli

Duke Law Journal

In the years before Congress passed the America Invents Act, patent litigation became exorbitantly expensive. Congress created three types of proceedings before the Patent Trial and Appeal Board (PTAB), which were intended to provide a cheaper and more cost-effective alternative to district court litigation over patent validity. A major factor in ensuring that the PTAB proceedings effectively substituted for district court litigation was a harsh estoppel provision that prevented any petitioner from relitigating any issue which was raised or reasonably could have been raised during the PTAB proceeding. The Federal Circuit, however, recently applied a narrow interpretation to the estoppel …

The Puzzle Of Traditional Knowledge, William Fisher

Duke Law Journal

Drawing on three case studies, this Essay contends that the proper role of law in managing uses of traditional knowledge is highly contextual. In some settings, distributive justice, cultural diversity, and group identity formation would be promoted by according indigenous groups more power to control or to benefit from uses of knowledge developed and sustained by their members, while in other settings, respect for individual autonomy and the promotion of semiotic democracy counsel against providing the groups that power. The Essay then outlines two alternative legal frameworks, either of which could accommodate this complex combination of competing values. The first …

Crises And Tax, Andrew Blair-Stanek

Duke Law Journal

How can law best mitigate harm from crises like storms, epidemics, and financial meltdowns? This Article uses the law and economics framework of property rules and liability rules to analyze crisis responses across multiple areas of law, focusing particularly on the ways the Internal Revenue Service (IRS) battled the 2008–09 financial crisis.

Remarkably, the IRS’s responses to that crisis cost more than Congress’s higher-profile bank bailouts. Despite their costs, many of the IRS’s responses were underinclusive, causing preventable layoffs and foreclosures. This Article explains these failures and demonstrates that the optimal response to crises is to shift from harsh property …

Journal Staff

Duke Law Journal

No abstract provided.

Competency, Counsel, And Criminal Defendants’ Inability To Participate, Sara R. Faber

Duke Law Journal

Built into the foundation of the U.S. criminal justice system is the idea that defendants must be able to participate in the trials against them. The right not to stand trial unless competent is premised on the idea that it is fundamentally unfair for defendants to stand trial unless they are able to participate in their trial in at least some capacity. Likewise, the right to counsel is based on a conception of defendants controlling at least some decisions in their case. These rights express an ideal that is foundational to our criminal system: defendant participation must be protected.

Ultimately, …