Law Commons^™

Journal Staff

Law and Contemporary Problems

No abstract provided.

Education From Condemnations: Learning From State And Federal Reforms For A More Efficient And Just Eminent Domain, Lydia Culp

Duke Law Journal

Under current takings doctrine, governments can identify entire neighborhoods as “blighted,” condemn the private property within, and transfer it to another private owner who will use the land in a more economically advantageous way. This causes injustice by incentivizing governments and developers to target poor and vulnerable neighborhoods. And by letting governments and developers evade market forces, buy land at a bargain, and afford to take on more projects than they can manage effectively, it causes inefficiency. Economic development takings, when not abused, can help revitalize downtrodden neighborhoods, so an outright ban is not the answer. Neither is relying on …

Rethinking The Presumption Of Enablement In Nonpatent Prior Art, Gabrielle Carlini

Duke Law Journal

The rising popularity of tools such as preprint servers, open-access data sources, and generative artificial intelligence has resulted in a proliferation of prior art that has never been seen before under the current patent system. In a rapidly changing world, patent law is slow to catch up, and the current system is not equipped to handle the flood of incoming prior art. In the academic research setting in particular, while the use of preprint servers and open-source data has allowed researchers to participate in widespread information exchange, these tools have also generated a new, large class of prior art dedicated …

Journal Staff

Duke Law Journal

No abstract provided.

Structural Inequality And The New Markets Tax Credit, Michelle D. Layser, Andrew J. Greenlee

Duke Law Journal

The New Markets Tax Credit (“NMTC”) is a federal tax incentive used to promote investment in low-income neighborhoods. Many of these neighborhoods are home to historically marginalized communities. However, very few minority-led institutions participate in the NMTC program. This Article provides the first theoretical and empirical exploration of the underrepresentation of minority-led institutions in the NMTC program. Based on original interviews with representatives of Community Development Entities (“CDEs”), investors, borrowers, and consultants who participate in the NMTC program, this Article describes the “NMTC ecosystem,” a complex, relationship-driven network of NMTC program participants who influence decision-making and create opportunities for success …

Hybrid-Status Immigrant Workers, Jacob Hamburger

Duke Law Journal

Precarious work arrangements have become a dominant feature of twenty-first-century political economy. One employer strategy that has contributed to eroding workers’ rights and protections is misclassifying employees as independent contractors, avoiding the obligations that come with employee status. Recently, policymakers in some states and at the federal level have sought to combat this trend by expanding the definition of employment, notably by adopting the three-prong standard known as the ABC test. The misclassification problem has received much attention in both legal scholarship and public discourse, but these discussions have not sufficiently addressed how these reforms affect a particularly vulnerable subset …

Smart Money For The People: Using Financial Innovation And Technology To Promote Esg, Frank Emmert

Duke Law & Technology Review

Traditional fiat currencies managed by governments and central banks have had negative impacts on environmental, social, and governance (ESG) goals. Central banks in mature democracies pursue policies that prioritize economic growth and high employment. However, these policies often lead to inflation, eroding the savings and pension funds of average citizens and encouraging risky behavior by banks and entrepreneurs. The pursuit of endless growth is socially and environmentally unsustainable. Leaders in developing countries and dictatorships use expansive monetary policy to maintain their positions, further exacerbating the situation. Convertible fiat currencies moving across borders in untraceable transactions evade regulation and taxation, with …

Regulatory Managerialism And Inaction: A Case Study Of Bank Regulation And Climate Change, Hilary J. Allen

Law and Contemporary Problems

No abstract provided.

With Regard For Persons, William Boyd

Law and Contemporary Problems

No abstract provided.

Regulation As Respect, Cristie Ford

Law and Contemporary Problems

No abstract provided.

The Anti-Managerial Information Commission, Margaret B. Kwoka

Law and Contemporary Problems

No abstract provided.

A Public Technology Option, Hannah Bloch-Wehba

Law and Contemporary Problems

No abstract provided.

Regulatory Managerialism As Gaslighting Government, Jodi L. Short

Law and Contemporary Problems

No abstract provided.

Power And Knowledge In Policy Evaluation: From Managing Budgets To Analyzing Scenarios, Frank Pasquale

Law and Contemporary Problems

No abstract provided.

Reclaiming Regulatory Intermediation For The Public, Daniel E. Walters

Law and Contemporary Problems

No abstract provided.

Introduction: Framing Regulatory Managerialism As An Object Of Study And Strategic Displacement, Julile E. Cohen, Ari Ezra Waldman

Law and Contemporary Problems

No abstract provided.

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 …

The Gptjudge: Justice In A Generative Ai World, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, Molly (Yiming) Xu

Duke Law & Technology Review

Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to …

Legal Ethics After #Metoo: Autonomy, Domination, And Nondisclosure Agreements, Sung Hui Kim

Duke Law Journal

The legal profession has long embraced what is called the “standard conception” of legal ethics, the prevailing model guiding the social and professional norms of American lawyers since at least the 1970s. The standard conception requires lawyers to promote their clients’ interests vigorously within the bounds of law and urges lawyers to be morally neutral toward lawful client ends, regardless of even the predictable consequences of their representations, including any harms inflicted on third parties or the public at large. Central to the most prominent defenses of the standard conception is the value of individual autonomy, specifically the client’s. According …

Immigration Incentives In Fcpa Enforcement: The Case For Protecting At-Risk Foreign Whistleblowers, Ken Krmoyan

Duke Law Journal

In recent years, the Securities and Exchange Commission (“SEC”) has aggressively enforced the Foreign Corrupt Practices Act (“FCPA”), which prohibits bribing foreign officials for business purposes. In doing so, it has relied heavily on tips from its increasingly popular whistleblower program, including ones received from scores of foreign countries. However, foreign whistleblowers enjoy unequal protections vis-à-vis their U.S. counterparts. For instance, foreign whistleblowers are not protected against retaliation for lawfully reporting information to the SEC. Worse still, some foreign whistleblowers are less protected than others due to inadequate protections in their domestic systems, and some face especially great risks for …

Journal Staff

Duke Law Journal

No abstract provided.

America's Other Separation Of Powers Tradition, Jonathan L. Marshfield

Duke Law Journal

As the Supreme Court returns many critical issues to the states, the structure of state government is increasingly significant to the American constitutional order. From redistricting to reproductive rights, battles are raging over which state institutions should decide these important issues. Yet there is surprisingly little scholarship dedicated to the separation of powers under state constitutions. Instead, state doctrine and commentary tend to mimic themes in federal constitutional law and parrot Madisonian ideas of constitutional design. On this view, the separation of powers is based on carefully balanced intragovernment rivalries fueled by the private ambition of government officers. This competition …

Science As Superstition: A Model Statute For Changed Science Claims, Jack D. Wasserman

Duke Law Journal

Over the last fifteen years, the legal community has increasingly recognized the role of “changed science” in contributing to wrongful convictions. Changed science wrongful convictions occur when the scientific evidence used to convict a criminal defendant at trial has since been questioned or repudiated by the greater scientific community. To address this issue, seven states have enacted “changed science writs,” providing petitioners who may have been wrongfully convicted with a more reliable state habeas mechanism to challenge their convictions. Under these statutes, petitioners may bring challenges based on now-discredited scientific evidence, new guidelines, expert recantations, and scientific advancements. Importantly, these …

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. …

Community Energy Exit, Sharon Jacobs, Dave Owen

Duke Law Journal

Communities across the United States are taking advantage of new technologies and governance forms to assert greater control over their energy systems. For decades, energy provision throughout much of the nation was heavily centralized. Even where market-oriented reforms emerged, most consumers had little ability to take advantage of the changes. But resurgent interest in municipal takeover of energy systems, alongside new phenomena such as community choice aggregation and microgrid construction, are making what we call “community energy exit” a reality. Popular and academic commentators have hailed these developments as key steps toward decarbonization, social justice, and energy democracy.

This Article …

Journal Staff

Duke Law Journal

No abstract provided.

Shading Sunshine: The Proliferation Of Exemptions To State Open Records Laws, Cat Reid

Duke Law Journal

State and local open records laws play a vital role in our democracy. They shed light on the darkest places, exposing corruption and holding the powerful accountable. Yet lawmakers are continually chipping away at the public’s right to know by limiting the information available under open records laws. Exemptions have been passed to bolster special interests, in response to investigative journalism, and to shield lawmakers. This Note examines the proliferation of exemptions and proposes a three-pronged solution that combines statutory improvements from federal FOIA and Florida’s open records law with a call for greater public engagement on the importance of …