Law Commons^™

Looking Backward To Move Forward: Ending The "History And Tradition" Of Gun Violence Against The Lgbtq+ Community, Brett V. Ries

Duke Law Journal Online

Anti-LGBTQ+ gun violence is occurring in the United States at an alarming rate. The Department of Homeland Security has even issued a domestic terrorism warning for attacks against the LGBTQ+ community. When the shootings at the Pulse Nightclub in Florida and Club Q in Colorado are combined, fifty-four individuals were murdered and seventy-eight more were wounded while simply existing in an LGBTQ+ space. Both of these targeted shootings occurred within the past six years, indicating that anti-LGBTQ+ gun violence is not a relic of the past. As they were ten years ago, LGBTQ+ individuals are still disproportionately impacted by hate …

All Grown Up: Qualified Immunity, Student Rights, And The Way Forward, Matthew Mcknight, Angela Guo

Duke Law Journal Online

No abstract provided.

101 Lawyers: Attorney Appearances In Twitter V. Musk, Andrew K. Jennings

Duke Law Journal Online

In summer 2022, Twitter sued Elon Musk, the world’s richest person, in Delaware’s Court of Chancery over his refusal to close his agreed-to $44 billion acquisition of the social-media company. Twitter v. Musk had the makings of corporate law’s trial of the century. Leading law firms represented Twitter, Musk, and third parties in a dispute with enormous financial, social, and political implications. In the lead up to trial, however, Musk relented and closed the deal. The corporate trial of the century was a bust, over almost as soon as it began.

But in the meantime, in Twitter’s eighty-six days of …

Inside The Internet, Nick Merrill, Tejas N. Narechania

Duke Law Journal Online

Conventional wisdom—particularly in the legal literatures—suggests that competition reigns the inside of the internet. This common understanding has shaped regulatory approaches to questions of network security and competition policy among service providers. But the original research presented here undermines that long-held assumption. Where the markets for internet traffic exchange (and related services) have long been thought to be characterized by robust competition among various network services providers, our findings suggest that these markets have consolidated. These trends raise a host of concerns for network reliability, online speech, and consumer choice, among other matters. Indeed, some recent high-profile internet outages reflect …

Creditors Strike Back: The Return Of The Cooperation Agreement, Samir D. Parikh

Duke Law Journal Online

In the low interest rate environment that followed the Great Recession, a fanatical demand for high-yield investments provided private equity firms an opportunity. Newfound borrower leverage facilitated credit documents with few creditor safeguards and various loopholes. Borrowers subject to these “sponsor-favorable” terms now had options in times of financial distress. More specifically, they had the option to strike first.

Utilization of coercive exchanges began in earnest around 2015 and has since flourished. Unmonitored portfolio companies experiencing financial distress now regularly rely on questionable interpretations of ambiguous contractual provisions to surreptitiously move assets away from creditors’ collateral baskets and subordinate lenders. …

Climate Change And The Courts: Balancing Stewardship And Restraint, Susan Glazebrook

Judicature International

No abstract provided.

Ukraine’S Supreme Court: Born Amid Crisis, Now Under Siege, Sergii Koziakov, David Collins

Judicature International

No abstract provided.

Playing The Long Game: The Role Of International Courts And Tribunals In The Russo-Ukrainian War, Paul W. Grimm, Kim Scheppele, Paul Stephan, Harold Hongju Koh, Oleksandra Matviichuk

Judicature International

No abstract provided.

Upholding The Domestic Violence Firearm Prohibitors Under Bruen’S Second Amendment, Samantha L. Fawcett

Duke Journal of Constitutional Law & Public Policy Sidebar

Federal law prohibits individuals subject to a domestic violence protective order (§ 922(g)(8)) or convicted of domestic violence misdemeanors (§ 922(g)(9)) from possessing firearms. Before New York State Rifle and Pistol Association v. Bruen, these commonsense gun laws had generally been considered uncontroversial, both in terms of their broad popular support and their constitutionality under the Second Amendment. In Bruen, however, the Supreme Court held that when a regulation burdens a Second Amendment right, the regulation must be consistent with American historical tradition, meaning that the regulation must be analogous to a pattern of historical firearm regulation.

After …

Historic Preservation: Launched From Grand Central Terminal, But Derailing, Kraz Greinetz

Duke Journal of Constitutional Law & Public Policy Sidebar

In Penn Central Transportation Co. v. City of New York, the Supreme Court authorized the practice of historic preservation. Ruling that when a city designates a building as "historic" and therefore restricting its development, it is not a "taking" of private property that requires just compensation under the Fifth Amendment. Since that time, historic preservation has proliferated in America's cities. But it's time for another look. Since Penn Central was decided, the facts and law of property regulation in the United States have changed. And the decision, which was wrong from an originalist perspective when it was decided, has …

Gonzalez V. Google: The Case For Protecting "Targeted Recommendations", Tomer Kenneth, Ira Rubinstein

Duke Law Journal Online

Does Section 230 of the Communications Decency Act protect online platforms (e.g., Facebook, YouTube, and Twitter) when they use recommendation algorithms? Lower courts upheld platforms’ immunity, notwithstanding notable dissenting opinions. The Supreme Court considers this question in Gonzalez v Google, LLC. Plaintiffs invite the Court to analyze “targeted recommendations” generically and to revoke Section 230 immunity for all recommended content. We think this would be a mistake.

This Article contributes to existing scholarship about Section 230 and online speech governance by adding much needed clarity to the desirable—and undesirable—regulation of recommendation algorithms. Specifically, this Article explains the technology behind algorithmic …

Tax Intelligence, Kathleen Claussen

Duke Law Journal Online

At the start of 2023, tax policymakers are increasingly contemplating how tax law and policy could bolster U.S. foreign policy goals. The most recent proposals seek to leverage information gathered from tax reporting—what this Essay calls “tax intelligence.” However, front and center in considering how tax intelligence can be used to make foreign policy is a challenge: how that information can make its way through the grinder of our foreign commerce bureaucracy in furtherance of productive outcomes. To address this challenge and amplify the promise of these proposals, this Essay offers four contributions. First, it demonstrates that these proposals make …

Unique Civic Education Program Aims To Teach Young People About Courts And Civility, Robin L. Rosenberg, Beth Bloom

Judicature International

No abstract provided.

Proposed Legal Reforms In Israel: Are Israel’S “Constitutional Conventions” In Jeopardy?, Peter Kahn, Dov Weissglas

Judicature International

No abstract provided.

Redlining Reimagined: "Race-Neutral Alternatives" In The Likely Wake Of Affirmative Action, Margaret Kruzner

Duke Journal of Constitutional Law & Public Policy Sidebar

For a decade, Justice Clarence Thomas has sharply criticized the Court's treatment of affirmative action, the race-conscious university admissions processed used to pursue the educational benefits associated with diverse classrooms. Calling affirmative action a "faddish theory" that the "Constitution abhors," Justice Thomas signaled his readiness to overrule Grutter v. Bollinger, which endorsed the practice in 2003.

Justice Thomas and the Court's originalist Justices have a new opportunity to strike down affirmative action in the Students for Fair Admissions litigation. Students for Fair Admissions, a non-profit organization founded by Edward Blum, is suing Harvard College and the University of North …

Moore V. Harper: The Independent State Legislature Theory And The Court At The Brink, Braden Fain

Duke Journal of Constitutional Law & Public Policy Sidebar

Moore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court's authority in federal elections. Scholars have recognized the theory's threat to American democracy and have accordingly produced a detailed record debunking the ISLT. …

Murder And Money: The Dark Side Of Taylor Swift, Fredrick E. Vars

Duke Law Journal Online

Under the dramatically named “Slayer Rule,” murderers cannot inherit from their victims. This principle is so intuitive that it is easy to miss critical questions of implementation. One such question is: What if one cannot prove the murder with certainty? Should the Slayer Rule apply only to individuals convicted beyond a reasonable doubt of murder, or should some lower level of proof suffice? This essay examines those questions through an unlikely lens: the music of Taylor Swift.

The Spirit Of Gun Laws, Noah Levine

Duke Journal of Constitutional Law & Public Policy Sidebar

The firearms debate in the United States often pits public health against freedom. This false dichotomy implies that gun laws, even wise ones, inherently erode individual liberty. Indeed, this appeal to liberty finds fertile ground in the United States, where many Americans intuitively reject any incursion on their freedom. Yet this one-sided conception of liberty is, at best, incomplete: while the government can certainly encroach on our freedom, so too can our fellow citizens.

A historically grounded conception of liberty in the United States includes the sense of security that fosters self-expression without fear of arbitrary constraint. That is, when …

Allen V. Milligan: Anticlassification And The Voting Rights Act, Graham Stinnett

Duke Journal of Constitutional Law & Public Policy Sidebar

The "crown jewel" of the Civil Rights Movement, the Voting Rights Act of 1965 has been called "one of the most effective statutes ever enacted." However, in 2013 the Supreme Court famously gutted the Voting Rights Act in Shelby County v. Holder. Nearly a decade later, in Allen v. Milligan, the Court is now signaling that Section 2, the last remaining core provision of the Voting Rights Act, could be on the chopping block. With Milligan, the Court may be preparing to inject race-neutrality into Section 2, which could destroy the vestiges of the onetime "super-statute."

This …

Protecting Natural Stewardship: Public Trusts, Wildlife Trusts, And The Effect Of Trophic Cascades, Nicholas Massey

Duke Journal of Constitutional Law & Public Policy Sidebar

The reintroduction of the Gray Wolf to the Greater Yellowstone Ecosystem conferred extensive ecological benefits to the region. The wolves' return resulted in a phenomenon known as a "trophic cascade," in which the presence of apex predators atop a food pyramid effectuates a "waterfall" of ecosystem-wide benefits. For example, the Gray Wolf has curtailed bloated elk populations, which has in turn reduced the damage of elk herds overgrazing on willow, aspen, and cottonwood plants—critical sources of food for the region's beavers. Importantly, the wolves' benefits are not confined to flora and fauna. Scientists have even discovered geological and riparian benefits …

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy Sidebar

Facial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense …

Too Much Salt: Rejecting The Pass-Through Entity Tax As A Salt Deduction Cap Workaround, Timothy Gray Ingram

Duke Journal of Constitutional Law & Public Policy Sidebar

Historically, U.S. taxpayers have been able to deduct their state and local taxes from their federal taxable income. This changed with the passage of the Tax Cuts and Jobs Act of 2017, which introduced a $10,000 cap on the state and local tax (SALT) deduction. States have reacted by turning to various methods to mitigate the negative tax consequences of the cap for their residents, including workarounds that use the charitable contribution deduction or a payroll tax as a means to allow full deductibility of state and local taxes.

With the IRS striking down the charitable contribution workaround, and the …

Cannabis Drug Development And The Controlled Substances Act, Gabrielle Feliciani

Duke Journal of Constitutional Law & Public Policy Sidebar

Cannabis is a federally illegal drug in the United States, yet thirty-seven states and four territories have now enacted laws allowing the production, distribution, and consumption of cannabis for medical use. An estimated 5.5 million individuals in medical-use states are qualified to purchase cannabis to treat and mitigate symptoms for conditions ranging from cancer to post-traumatic stress disorder to chronic pain. But, only three cannabis drugs have been approved by the Food and Drug Administration (FDA).

The current state of federal illegality creates a problem of supply and demand—consumer demand for cannabis is high, but the number of approved drug …

Misreading Campbell: Lessons From Warhol, Shyamkrishna Balganesh, Peter S. Menell

Duke Law Journal Online

In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a "transformative use." Purporting to rely on the Court’s adoption of "transformative use" as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous "transformativeness" inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might be considered as …

The Impact Of The Rule Of Law On National Security In African Countries, Catherine Lena Kelly

Judicature International

No abstract provided.

It Ain't Real Funky Unless It's Got That Pop: Artistic Fair Use After Goldsmith, Benjamin A. Spencer

Duke Journal of Constitutional Law & Public Policy Sidebar

The Pop Art style pioneered by artists such as Paolozzi, Lichtenstein, and Rauschenberg challenged notions of what art could be by recasting common objects and images into new contexts, transforming them into pieces that served as both cultural commentary and novel expression. Though examination of an artwork's meaning or message may seem more natural for a critic or curator, the Supreme Court will have a chance to weigh in with Andy Warhol Foundation for the Visual Arts v. Goldsmith. Here, the court will decide whether a Warhol painting based on a photograph of Prince is protected by fair use. …

Increasing Compliance With International Pandemic Law: International Relations And New Global Health Agreements, Matthew M. Kavanagh, Clare Wenham, Elize Massard Da Fonseca, Laurence R. Helfer, Elvin Nyukuri, Allan Maleche, Sam F. Halabi, Adi Radhakrishnan, Attiya Waris

Faculty Scholarship

No abstract provided.

Firearms Law And Scholarship Beyond Bullets And Bodies, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Academic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun owners connect with firearms, with personal security, status, identity, and cultural markers being key reasons people offer for possessing firearms. The second strand focuses on broadening our understanding of the impact of guns on the public sphere beyond just physical safety. This research surfaces the ways that guns can create fear, …

The Possible Futures Of American Democracy, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …