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Journal Staff May 2018

Journal Staff

Duke Law Journal

No abstract provided.


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 ...


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.


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 ...


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 ...


Fixing Law Reviews, Barry Friedman Apr 2018

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 ...


From Theory To Doctrine: An Empirical Analysis Of The Right To Keep And Bear Arms After Heller, Eric Ruben, Joseph Blocher Apr 2018

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 ...


Journal Staff Apr 2018

Journal Staff

Duke Law Journal

No abstract provided.


The Puzzle Of Traditional Knowledge, William Fisher Apr 2018

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 ...


A Free Bite At The Apple: How Flawed Statutory Drafting Has Undermined The Purpose Of The Patent Trial And Appeal Board, Rebecca Gentilli Apr 2018

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 ...


Capitalizing On Criminal Justice, Eisha Jain Apr 2018

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 ...


The True Lender Doctrine: Function Over Form As A Reasonable Constraint On The Exportation Of Interest Rates, John Hannon Mar 2018

The True Lender Doctrine: Function Over Form As A Reasonable Constraint On The Exportation Of Interest Rates, John Hannon

Duke Law Journal

The exportation doctrine permits national and state banks to export interest rates that are legal in one state where they operate to any other state, thereby shielding the banks from liability resulting from state usury claims. The doctrine has expanded over the last forty years to permit state and national banks to preempt a variety of state consumer-financial-protection laws. The doctrine’s high-water mark is the emergence of the “rent-a-charter” arrangement, a scheme in which a nonbank lender uses a bank as a mere conduit to originate loans that are not subject to state usury laws. This Note argues that ...


Crises And Tax, Andrew Blair-Stanek Mar 2018

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 ...


Competency, Counsel, And Criminal Defendants’ Inability To Participate, Sara R. Faber Mar 2018

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 ...


Journal Staff Mar 2018

Journal Staff

Duke Law Journal

No abstract provided.


Double Secret Protection: Bridging Federal And State Law To Protect Privacy Rights For Telemental And Mobile Health Users, Josh Sherman Feb 2018

Double Secret Protection: Bridging Federal And State Law To Protect Privacy Rights For Telemental And Mobile Health Users, Josh Sherman

Duke Law Journal

Mental health care in the United States is plagued by stigma, cost, and access issues that prevent many people from seeking and continuing treatment for mental health conditions. Emergent technology, however, may offer a solution. Through telemental health, patients can connect with providers remotely—avoiding stigmatizing situations that can arise from traditional healthcare delivery, receiving more affordable care, and reaching providers across geographic boundaries. And with mobile health technology, people can use smart phone applications both to self-monitor their mental health and to communicate with their doctors. But people do not want to take advantage of telemental and mobile health ...


Data Privacy And Dignitary Privacy: Google Spain, The Right To Be Forgotten, And The Construction Of The Public Sphere, Robert C. Post Feb 2018

Data Privacy And Dignitary Privacy: Google Spain, The Right To Be Forgotten, And The Construction Of The Public Sphere, Robert C. Post

Duke Law Journal

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both.

With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the ...


Resurrecting A Doctrine On Its Deathbed: Revisiting Federal Common Law Greenhouse Gas Litigation After Utility Air Regulatory Group V. Epa, Zachary Hennessee Feb 2018

Resurrecting A Doctrine On Its Deathbed: Revisiting Federal Common Law Greenhouse Gas Litigation After Utility Air Regulatory Group V. Epa, Zachary Hennessee

Duke Law Journal

This Note considers how the Supreme Court’s decision in Utility Air Regulatory Group v. EPA (UARG) may have created a new opening for federal common law nuisance litigation as a means to address climate change. The Court’s earlier decision in American Electric Power v. Connecticut (AEP) held that federal nuisance claims targeting greenhouse gas emissions were completely displaced by the Clean Air Act. However, the holding in AEP was premised on the assumption that the Clean Air Act uniformly addressed greenhouse gases throughout the statute. UARG upended this assumption, holding that there are sections of the Clean Air ...


Reputational Regulation, Kishanthi Parella Feb 2018

Reputational Regulation, Kishanthi Parella

Duke Law Journal

When organizations act in ways that offend the public interest, parties seeking to change that behavior traditionally turned to litigation to force these organizations to reform, whether by command or consent. For example, following Brown v. Board of Education , “structural reform litigation” forced large-scale organizations, from school boards to prisons, to change their practices. Similarly, federal prosecutors have used agreements with large corporations to introduce significant structural reforms.

This Article identifies an alternative strategy for organizational change that relies on the indirect reputational effects of litigation. Under this approach, organizational change does not result from court order or parties’ settlement ...


Journal Staff Feb 2018

Journal Staff

Duke Law Journal

No abstract provided.


The War Against Chinese Restaurants, Gabriel J. Chin, John Ormonde Jan 2018

The War Against Chinese Restaurants, Gabriel J. Chin, John Ormonde

Duke Law Journal

Chinese restaurants are a cultural fixture—as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks, and servers and motivating unions to fight them. Second, Chinese restaurants threatened white women, who were subject to seduction by Chinese men taking advantage of intrinsic female weakness and nefarious techniques such as opium addiction.

The efforts were creative. Chicago used anti-Chinese zoning, Los Angeles restricted restaurant ...


Journal Staff Jan 2018

Journal Staff

Duke Law Journal

No abstract provided.


A Violent Birth: Reframing Coerced Procedures During Childbirth As Obstetric Violence, Maria T.R. Borges Jan 2018

A Violent Birth: Reframing Coerced Procedures During Childbirth As Obstetric Violence, Maria T.R. Borges

Duke Law Journal

In the United States, women are routinely forced to undergo cesarean sections, episiotomies, and the use of forceps, despite their desire to attempt natural vaginal delivery. Yet, the current American legal system does little to provide redress for women coerced to undergo certain medical procedures during childbirth. Courts and physicians alike are prepared to override a woman’s choice of childbirth procedure if they believe this choice poses risks to the fetus, and both give little value to the woman’s right to bodily autonomy. This Note proposes a solution for addressing the problem of coerced medical procedures during childbirth ...


Choose Your Laws Carefully: Executive Authority To Unilaterally Withdraw The United States Outer Continental Shelf From Leasing Disposition, Payton A. Wells Jan 2018

Choose Your Laws Carefully: Executive Authority To Unilaterally Withdraw The United States Outer Continental Shelf From Leasing Disposition, Payton A. Wells

Duke Law Journal

Congress enacted the Outer Continental Shelf Lands Act (OCSLA) to both exert federal jurisdiction over the submerged lands of the U.S. Outer Continental Shelf and establish the legal framework for America’s offshore energy production regime. Section 12(a) of OCSLA is a short yet potent provision that grants a president the authority to withdraw unleased offshore lands from leasing disposition, effectively banning any form of energy exploration or production. In recent decades, presidents have embraced section 12(a) not only to ban offshore energy production, but also to protect the marine environment itself. Presidents have also utilized a ...


Characterizing Constitutional Inputs, Michael Coenen Jan 2018

Characterizing Constitutional Inputs, Michael Coenen

Duke Law Journal

Constitutional doctrine frequently employs tests that operate on abstract conceptual inputs rather than objectively identifiable facts. Consider some examples: substantive due process doctrine directs attention to whether a violated “right” qualifies as fundamental or nonfundamental; Commerce Clause doctrine directs attention to whether a regulated “activity” qualifies as economic or noneconomic; the strict scrutiny test directs attention to whether a relevant “government interest” qualifies as compelling or noncompelling; and so forth. These sorts of decision rules call for an evaluation of variables whose scope, content, and character are frequently up for debate, thereby requiring courts to characterize constitutional inputs as a ...


Algorithms & Fiduciaries: Existing And Proposed Regulatory Approaches To Artificially Intelligent Financial Planners, John Lightbourne Dec 2017

Algorithms & Fiduciaries: Existing And Proposed Regulatory Approaches To Artificially Intelligent Financial Planners, John Lightbourne

Duke Law Journal

Artificial intelligence is no longer solely in the realm of science fiction. Today, basic forms of machine learning algorithms are commonly used by a variety of companies. Also, advanced forms of machine learning are increasingly making their way into the consumer sphere and promise to optimize existing markets. For financial advising, machine learning algorithms promise to make advice available 24–7 and significantly reduce costs, thereby opening the market for financial advice to lower-income individuals. However, the use of machine learning algorithms also raises concerns. Among them, whether these machine learning algorithms can meet the existing fiduciary standard imposed on ...


Creating A More Certain Standard For Enhanced Patent Damages By Requiring Egregiousness As An Element In The Section 284 Analysis, Brian Barnes Dec 2017

Creating A More Certain Standard For Enhanced Patent Damages By Requiring Egregiousness As An Element In The Section 284 Analysis, Brian Barnes

Duke Law Journal

According to 35 U.S.C. § 284, district courts have the power to “increase the damages up to three times the amount found or assessed” by the jury in patent infringement cases where willful infringement occurred. Following the recent Supreme Court decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., it is now less clear how courts are to go about deciding whether to exercise this power. Halo established that the decision lies within the discretion of the district court judge, but declined to give a more concrete standard than urging the judge to “take into account the particular circumstances ...


One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl Dec 2017

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Duke Law Journal

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one ...


Journal Staff Dec 2017

Journal Staff

Duke Law Journal

No abstract provided.