Law Commons^™

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

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Blaine In The Joints: The History Of Blaine Amendments And Modern Supreme Court Religious Liberty Doctrine In Education, Mccarley Elizabeth Maddock

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Indian Child Welfare Act: A Roadblock In A Native Child's Pathway To Permanency, Melissa Gustafson

Alaska Law Review

The Indian Child Welfare Act (ICWA) requires the testimony of a qualified expert witness to support, beyond a reasonable doubt, the termination of parental rights in cases involving Native children. Initially, Congress expressed a preference for qualified expert witnesses to possess intimate knowledge of Native tribes' childrearing norms and practices. However, the permissive language of the 2016 Regulations has deemphasized this preference. Instead, the Alaska Supreme Court has interpreted the 2016 Regulations as requiring an expert to be qualified to testify about the mental, emotional, and physical wellbeing of children, therefore requiring formalized education in these areas of study. This …

Fishing In The Desert: Modernizing Alaskan Salmon Management To Protect Fisheries And Preserve Fishers' Livelihoods, Connor Sakati

Alaska Law Review

Many Alaskan salmon fisheries are in distress, threatening fishers' livelihoods, food sources, and cultures. This crisis—and the few, blunt tools managers possess to address it— reveals that the current state and federal legal framework for salmon management is inadequate to protect fisheries' health and preserve fishers' livelihoods, especially as the ocean warms and the distribution of species within it significantly changes. First, the current framework's regulatory tools, designed to combat human overuse of a single species, are poorly tailored to mitigating this multicausal, ecosystem-wide crisis. Current science indicates marine heatwaves, habitat degradation, and human use may be major culprits of …

Beyond Indian Country: The Sovereign Powers Of Alaska Tribes Without Reservations, Mitchell Forbes

Alaska Law Review

The Alaska Native Claims Settlement Act of 1971 (ANCSA) devised a land entitlement system markedly different from the Indian reservation system that prevailed in the Lower 48 states. It directed the creation of twelve, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations, which would receive the bulk of Native land in the state. This corporate model left nearly all tribes in Alaska without a land base. As such, there is very little Indian Country land in the state over which tribes can exercise territorial-based sovereignty. Yet, the Supreme Court has long recognized the power …

Issues In Implementing Special Domestic Violence Criminal Jurisdiction In Alaska's Tribal Courts, Danika Watson

Alaska Law Review

Until 2022, all but one of the 229 Alaska tribes were barred from special domestic violence criminal jurisdiction (SDVCJ): Congress's jurisdictional tool for tribal courts to address domestic violence and hold perpetrators of violence against Alaska Native women criminally accountable. The reauthorization of the Violence Against Women Act (VAWA) in 2022 brought SDVCJ to Alaska's rural Native communities. This landmark achievement was made possible by decades of advocacy from Alaska's tribal, state, and federal leadership. In the wake of VAWA 2022, Alaska tribes and tribal justice systems face several significant legal, political, and cultural challenges. This Article outlines the legal …

The Unique Promise Of The Alaska Constitution: The Right To Rehabilitation, Adam Beyer

Alaska Law Review

The Alaska Constitution creates a unique promise for those convicted of crimes. In Abraham v. State, the Alaska Supreme Court held that article I, § 12 grants offenders a "right to rehabilitation." Such a right is uncommon; few states, if they have similar protections at all, have labeled it a right. In the years since Abraham, the Court has occasionally addressed claims invoking the right, making clear that its decision was not an aberration. The court's most thorough examination of the right occurred this term in Department of Corrections v. Stefano. This article seeks to examine and clarify …

Law Thrown Overboard: Direct Democracy And The Alaska Ocean Rangers, Hannah Rogers

Alaska Law Review

Alaska is one of the premier cruise destinations in the world. The vessels' many amenities and luxuries, however, come with a price: cruise ships produce an inordinate amount of waste, most of which is dumped into the ocean. In 2006, Alaska voters passed a ballot measure establishing a program called the Ocean Rangers, which would monitor cruise ships in Alaskan waters to ensure that vessels were disposing of waste in accordance with state and federal law. In 2019, after an unsuccessful attempt in the state legislature to end the Ocean Rangers program, Alaska Governor Mike Dunleavy vetoed the entirety of …

Journal Staff

Alaska Law Review

No abstract provided.

Foreword

Duke Journal of Constitutional Law & Public Policy

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 …

The Permanent Court Of International Justice In Global History, James D. Fry

Duke Journal of Comparative & International Law

The Permanent Court of International Justice's contributions often are overshadowed by the fact that it was the predecessor of the overwhelmingly important International Court of Justice. This article is the first to look at the Permanent Court's possible contribution to global history in its own right. While the case-study method adopted in this article does not allow for the determination of causal linkages between acts of the Permanent Court and consequences in global history, it nevertheless provides compelling support for liberal institutionalism and the notion that global history has been influenced by actors other than states, even though states remain …

Discretion And The Rule Of Law: The Significance And Endurance Of Vagrancy And Vagrancy-Type Laws In England, The British Empire, And The British Colonial World, Christopher Roberts

Duke Journal of Comparative & International Law

This article explores the history of vagrancy laws in England, the British Empire, and the British colonial world, the significance of those laws, the various challenges that were made to vagrancy laws in the twentieth century, and the limits of those challenges to date. While vagrancy laws preceded the nineteenth century, the 1824 Vagrancy Act in England set a new model, which proved extremely influential around the world over the following centuries. Between the early nineteenth and the early twentieth centuries, vagrancy laws were adopted or reformulated almost everywhere the British left a footprint. The laws that were adopted covered …

Jurisprudential Hypocrisy Under Israel's Normative Umbrella: Punitive Demolitions As Pre-Conviction, Collective Punishment In The West Bank, Rebecca Mooney

Duke Journal of Comparative & International Law

Since the termination of the British Mandate in 1948 and Israel's subsequent occupation of Palestine, the Israeli government has punitively demolished hundreds of Palestinian homes in the West Bank. After a slight downturn during COVID-19, numbers are once again on the rise. Israel's punitive demolition strategy targets the innocent families of Palestinians allegedly involved in security offenses against Israel. When a suspected offender is detained, Israel orders the demolition of their family home—usually, before the suspect is tried or convicted, and regardless of whether they own or permanently reside in the house. In support of its punitive demolition campaign, Israel …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Reversing Cfius: Analyzing The International And Constitutional Implications Of The Revised National Critical Capabilities Defense Act, Madison Cash

Duke Journal of Comparative & International Law

In 2022, congressional consideration of the Revised National Critical Capabilities Defense Act (Revised NCCDA), colloquially known as "Reverse CFIUS", caused a flurry of conversation amongst congressional committees, legal practitioners, and private companies. The bill proposed a broad outbound foreign investment review regime for industries implicating national critical capabilities. While Congress ultimately declined to pass the Revised NCCDA, a similar outbound review mechanism is soon likely to be promulgated by the Executive Branch or the Legislative Branch. This note discusses the legislative history resulting in the proposal of an outbound investment review mechanism. It criticizes the breadth and ambiguity of the …

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 …

The Enforcement Value Of Disclosure, Stephanie Bornstein

Duke Law Journal

Information disclosures often “nudge” consumers to make better choices—for example, when manufacturers include nutrition labels on food packaging or fuel economy standards on cars. Yet having to disclose can have a nudge effect on the disclosing entity, too—for example, by incentivizing a manufacturer to make healthier food or more fuel-efficient cars. Recently, regulators around the world have begun to use information disclosures to improve racial and gender equality—for example, by requiring certain businesses to disclose information on things like harassment complaints, board diversity, and employee pay. But are such disclosure efforts worth their costs? And what would indicate that policymakers …

The Private Cost Of Behavioral Interventions, Avishalom Tor

Duke Law Journal

The increasing popularity of behavioral interventions—also known as nudges—is largely due to their perceived potential to promote public and private welfare at dramatically lower costs than those of traditional regulatory instruments, such as mandates or taxes. Yet, though nudges typically involve low implementation costs, scholars and policymakers alike tend to underestimate their often-substantial private costs. Once these costs are accounted for, most nudges turn out to generate significantly lower net benefits than assumed, and some prove less efficient or less cost-effective than traditional instruments. At other times, the private costs of behavioral interventions are sufficiently large to render them socially …

Nudges, Defaults, And The Problem Of Constructed Preferences, Jeffrey J. Rachlinski

Duke Law Journal

Regulatory bodies have increasingly become interested in “nudges,” or low-cost adjustments to the environment in which people make choices. These interventions promise to give more people what they truly want while preserving freedom of choice. In theory, default rules—a type of nudge—that can survive a thorough cost-benefit analysis should both preserve liberty and enhance welfare. In reality, altering default rules can also change people’s preferences. Neutral cost-benefit analysis is thus impossible, and choosing a default rule therefore influences personal freedom. This Article explains how nudges influence preferences and why this makes neutral cost-benefit analysis impossible for regulators.

Welfare Now, Cass R. Sunstein

Duke Law Journal

In evaluating interventions, policymakers should consider both their welfare effects, including their effects on people’s emotional states, and their effects on distributive justice, including their effects on those at the bottom of the economic ladder. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) revealed preferences and effects on participation rates. The arguments are also meant as a plea for investigation and specification of the effects of such interventions on experienced well-being. If interventions give people a sense of security and …

Journal Staff

Duke Law Journal

No abstract provided.

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.

Diversion And/As Decarceration, Katherine Beckett

Law and Contemporary Problems

No abstract provided.

Triaging Mental Health Emergencies: Lessons From Philadelphia, Jennifer D. Wood, Evan Anderson

Law and Contemporary Problems

No abstract provided.

North Carolina Law Enforcement Assisted Diversion (Lead): Considerations For Optimizing Eligibility And Referral, Allison R. Gilbert, Reah Siegel, Michele M. Easter, Meret S. Hofer, Josie Caves Sivaraman, Deniz Ariturk, Jeffrey W. Swanson, Marvin S. Swartz, Ruth Wygle, Grace Feng

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.