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Journal Staff Feb 2019

Journal Staff

Duke Law Journal

No abstract provided.


At The Water’S Hedge: International Insider-Trading Enforcement After Morrison Hugh B. Hamilton Iii, Hugh B. Hamilton Iii Feb 2019

At The Water’S Hedge: International Insider-Trading Enforcement After Morrison Hugh B. Hamilton Iii, Hugh B. Hamilton Iii

Duke Law Journal

From copy rooms to boardrooms, many Americans have succumbed to the siren song of insider trading. As U.S. companies have gone international, so too have corporate secrets ripe for exploitation. With the growth of overseas derivatives based on U.S. stock, foreigners are able to engage in insider trading to a similar extent as Americans.

But in Morrison v. National Australia Bank, the Supreme Court limited the reach of the statutory insider-trading prohibition to transactions taking place in U.S. territory or transactions in securities listed on U.S. exchanges. Neither condition applies to overseas insider trading using derivatives ...


Discipline And Policing, Kate Levine Feb 2019

Discipline And Policing, Kate Levine

Duke Law Journal

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards.

This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency ...


Ad Hoc Diplomats, Ryan M. Scoville Feb 2019

Ad Hoc Diplomats, Ryan M. Scoville

Duke Law Journal

Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats—individuals chosen exclusively by the president to complete limited and temporary assignments—play a comparably significant role in addressing international crises, negotiating treaties, and otherwise executing foreign policy.

This Article critically examines the appointments process for such irregular agents ...


The Promising Viral Threat To Bacterial Resistance: The Uncertain Patentability Of Phage Therapeutics And The Necessity Of Alternative Incentives, Kelly Todd Jan 2019

The Promising Viral Threat To Bacterial Resistance: The Uncertain Patentability Of Phage Therapeutics And The Necessity Of Alternative Incentives, Kelly Todd

Duke Law Journal

Bacteriophages, or “phages,” are a category of highly adept and adaptable viruses that can infect and kill bacteria. With concerns over the burgeoning antibiotic-resistance crisis looming in recent years, scientists and policymakers have expressed a growing interest in developing novel treatments for bacterial infections that utilize bacteriophages. Because of the great expense associated with bringing a new drug to market, patents are usually considered the gold standard for incentivizing research and development in the pharmaceutical field. Absent such strong protection for a developer’s front end investment, pharmaceutical development remains financially risky and unattractive. Unfortunately, recent Supreme Court jurisprudence analyzing ...


Free Speech And The Law Of Evidence, Dan T. Coenen Jan 2019

Free Speech And The Law Of Evidence, Dan T. Coenen

Duke Law Journal

To what extent does the First Amendment limit the ability of prosecutors to offer evidence of a defendant’s past protected speech? As it turns out, the Supreme Court has touched on this question in only a handful of rulings, each of which was crafted to target only the distinctive facts of the case at hand. Many lower courts, however, have distilled from these decisions a sweeping, admissibility-favoring constitutional rule. According to that rule, the First Amendment imposes no limit on prosecutorial use of past-speech evidence—no matter how prejudicial—so long as it meets the minimum standard of evidentiary ...


Corporate Disobedience, Elizabeth Pollman Jan 2019

Corporate Disobedience, Elizabeth Pollman

Duke Law Journal

Corporate law has long taken a dim view of corporate lawbreaking. Corporations can be chartered only for lawful activity. Contemporary case law characterizes the intentional violation of law as a breach of the fiduciary duties of good faith and loyalty. While recognizing that rule breaking raises significant social and moral concerns, this Article demonstrates that corporate law and academic debate have overlooked important aspects of corporate disobedience.

This Article provides an overview of corporate disobedience and illuminates the role that it has played in entrepreneurship and legal change. Corporations violate laws in a variety of contexts, including as part of ...


The Ghost In The Courtroom: When Opinions Are Adopted Verbatim From Prosecutors, Natasha-Eileen Ulate Jan 2019

The Ghost In The Courtroom: When Opinions Are Adopted Verbatim From Prosecutors, Natasha-Eileen Ulate

Duke Law Journal

Judicial opinions captivate the legal community, serving as a hub for teaching new lawyers and developing the law. These opinions also provide a method for the justice system to communicate with the people it serves—both the parties to the cases and the public. This communication should be well-reasoned and developed from a neutral standpoint. However, this ideal is being seriously threatened by ghostwriting, the practice of allowing a party to write the opinion. This is particularly troubling in criminal cases, where the very lawyers charged with prosecuting defendants are writing the opinions against them.

This Note proposes that opinions ...


Journal Staff Jan 2019

Journal Staff

Duke Law Journal

No abstract provided.


Electoral Due Process, Sarah Milkovich Nov 2018

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 ...


Deviancy, Dependency, And Disability: The Forgotten History Of Eugenics And Mass Incarceration, Laura I. Appleman Nov 2018

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 Nov 2018

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 ...


The Data Breach Dilemma: Proactive Solutions For Protecting Consumers’ Personal Information, Daniel J. Marcus Nov 2018

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 ...


Journal Staff Nov 2018

Journal Staff

Duke Law Journal

No abstract provided.


E-Notice, Christine P. Bartholomew Nov 2018

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.


Practicable And Justiciable: Why North Carolina’S Constitutional Vision Of Higher Education Is Judicially Enforceable, South A. Moore Nov 2018

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 ...


Limited Liability And The Known Unknown, Michael Simkovic Nov 2018

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 ...


Saving Disgorgement From Itself: Sec Enforcement After Kokesh V. Sec, Patrick L. Butler Nov 2018

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 ...


Journal Staff Nov 2018

Journal Staff

Duke Law Journal

No abstract provided.


Journal Staff Sep 2018

Journal Staff

Duke Law Journal

No abstract provided.


Statutory Interpretation And The Rest Of The Iceberg: Divergences Between The Lower Federal Courts And The Supreme Court, Aaron-Andrew P. Bruhl Sep 2018

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 ...


Intelligent Design, Christopher Buccafusco, Mark A. Lemley, Jonathan S. Masur Sep 2018

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 ...


Fixing Soft Dollars Is Not That Hard: A Consent And Reporting Framework For Regulating Client Commission Arrangements, Brendan Biffany Sep 2018

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 Sep 2018

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 ...


Exiting Congressional-Executive Agreements, Curtis A. Bradley May 2018

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 ...


Regulatory Horcruxes, Sarah E. Light May 2018

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 ...


Constrained Regulatory Exit In Energy Law, Jim Rossi, Hannah J. Wiseman May 2018

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 ...


Presidential Exit, J.B. Ruhl, James Salzman May 2018

Presidential Exit, J.B. Ruhl, James Salzman

Duke Law Journal

No abstract provided.


A Process-Based Approach To Presidential Exit, Mark Seidenfeld May 2018

A Process-Based Approach To Presidential Exit, Mark Seidenfeld

Duke Law Journal

No abstract provided.


Journal Staff May 2018

Journal Staff

Duke Law Journal

No abstract provided.