Law Commons^™

Frand V. Compulsory Licensing: The Lesser Of The Two Evils, Srividhya Ragavan, Brendan Murphy, Raj Davé

Duke Law & Technology Review

This paper focuses on two types of licenses that can best be described as outliers—FRAND and compulsory licenses. Overall, these two specific forms of licenses share the objective of producing a fair and reasonable license of a technology protected by intellectual property. The comparable objective notwithstanding, each type of license achieves this end using different mechanisms. The FRAND license emphasizes providing the licensee with reasonable terms, e.g., by preventing a standard patent holder from extracting unreasonably high royalty rates. By contrast, compulsory licenses emphasize the public benefit that flows from enabling access to an otherwise inaccessible invention. Ultimately, both forms …

Rethinking Janus: Preserving Primary-Participant Liability In Sec Antifraud Enforcement Actions, Greg Gaught

Duke Law Journal

The Securities and Exchange Commission relies heavily on the securities laws’ antifraud provisions in fulfilling its role as watchdog of the U.S. securities markets. But the Supreme Court’s decision in Janus Capital Group, Inc. v. First Derivative Traders has frustrated the SEC’s efforts to keep fraud at bay. There the Court drastically narrowed the scope of actors who can qualify as primary participants in misrepresentations perpetrated in connection with the purchase or sale of securities under Rule 10b-5(b). This Note argues that Janus’s holding creates an incongruence in the SEC’s ability to enforce the securities laws’ misrepresentation provisions, with …

Note From The Editor, Iuniki L. Ikahihifo-Bender

Alaska Law Review

No abstract provided.

Alaska And Vergara V. California: Evaluating The Constitutionality Of Teacher Tenure In Alaska, M. Rebecca Cooper

Alaska Law Review

In the summer of 2013, California's teacher tenure statutes were found to violate the equal protection clause of the state's Constitution. The statutes called for tenure to be granted after two years of teaching, contained significant due process protections in case of dismissal, and required that new hires be laid off before teachers with tenure. The group that brought the lawsuit, Students Matter, is considering filing lawsuits in other states. This Note examines Alaska's tenure statutes to assess the state's vulnerability to a copycat lawsuit. While most of Alaska's tenure statutes seem safe from challenge, the state should evaluate its …

Ravin Revisited: Alaska's Historic Common Law Marijuana Rule At The Dawn Of Legalization, Jason Brandeis

Alaska Law Review

For the past forty years, Alaska has had one of the most unique marijuana laws in the United States. Under the Ravin Doctrine, adults in Alaska could use and possess a small amount of marijuana in their homes for any personal purpose. That common law rule, grounded in the Alaska Constitution's explicit right of privacy, was effectively codified in November 2014 when Alaska voters approved Ballot Measure 2: "An act to tax and regulate the production, sale, and use of marijuana." Measure 2 ushered in a new era of marijuana regulation, adding Alaska to the short list of states that …

From Accession To Exemption: A Brief History Of The Development Of Alaska Property Exemption Laws, Eric H. Miller

Alaska Law Review

This Article examines the historical development of Alaska's debtor protections from their beginnings in the period of initial federal administration to the present. The current Alaska statutes protecting certain property of debtors from their creditors descended from policies first enacted by Congress. Although federal authority began in 1867 with the area's acquisition from Russia, Congress did not provide for governmental administration in Alaska until 1884, which act also provided Alaska its first debtor protection statutes. Extension of the federal Homestead Act to Alaska in 1898 brought the first protections for settlers' homesteads from their creditors. By 1912 and the creation …

"A System Appallingly Out Of Balance": Morgan V. State And The Rights Of Defendants And Victims In Sexual Assault Prosecutions, Daniel E. Doty

Alaska Law Review

In a series of three cases that culminate with Morgan v. State, Alaska's courts established a unique protection for defendants in sexual assault cases. This protection, which allows such defendants to attack their victims in court with previous reports of sexual assault that did not result in prosecution, is not afforded to defendants in other cases and is based on a dubious "general principle" that the credibility of sexual assault victims has "special relevance." The protection is problematic in several ways: it is grounded in erroneous stereotypes about the victims of sex crimes; it is detrimental to victims and …

Journal Staff

Duke Law Journal

No abstract provided.

Privacy As A Public Good, Joshua A. T. Fairfield, Christoph Engel

Duke Law Journal

Privacy is commonly studied as a private good: my personal data is mine to protect and control, and yours is yours. This conception of privacy misses an important component of the policy problem. An individual who is careless with data exposes not only extensive information about herself, but about others as well. The negative externalities imposed on nonconsenting outsiders by such carelessness can be productively studied in terms of welfare economics. If all relevant individuals maximize private benefit, and expect all other relevant individuals to do the same, neoclassical economic theory predicts that society will achieve a suboptimal level of …

Alaska: North To The Future Of Federal Marijuana Regulation, Angela Macdonald

Alaska Law Review

The personal freedom Alaskans not only expect, but rely upon, exposes a significant need for federal cooperation in the reformation of marijuana laws, including the removal or reclassification of marijuana in the Controlled Substances Act. This Comment summarizes this issue in light of Alaska’s recent recreational marijuana legalization. In doing so, elements unique to Alaska and their likely influence on the state's upcoming marijuana legislation; the history and evolution of Alaska marijuana laws; and the scholarly literature on Alaska marijuana law regarding the tensions between federal and state marijuana regulation are discussed. This Comment proposes that marijuana be removed from …

Breaking Bad Law: Meth Lab Investigations Highlight Alaska's Current Approach To Privacy, Victoria Sheets

Alaska Law Review

The right to privacy explicitly provided by the Alaska Constitution has long been broadly interpreted—even protecting Alaskan citizens' right to personal home use and possession of marijuana. Though this right to privacy has been interpreted many times over the last few decades, Alaska currently lacks a coherent approach to application of its privacy laws. As the prevalence of methamphetamine production increases in homes across Alaska, the Alaskan courts' approach to privacy must be reevaluated in light of its delicate interaction with search and seizure policies surrounding methamphetamine labs.

Journal Staff

Alaska Law Review

No abstract provided.

Beyond Bitcoin: Issues In Regulating Blockchain Transactions, Trevor I. Kiviat

Duke Law Journal

The buzz surrounding Bitcoin has reached a fever pitch. Yet in academic legal discussions, disproportionate emphasis is placed on bitcoins (that is, virtual currency), and little mention is made of blockchain technology—the true innovation behind the Bitcoin protocol. Simply, blockchain technology solves an elusive networking problem by enabling “trustless” transactions: value exchanges over computer networks that can be verified, monitored, and enforced without central institutions (for example, banks). This has broad implications for how we transact over electronic networks.

This Note integrates current research from leading computer scientists and cryptographers to elevate the legal community’s understanding of blockchain technology and, …

Predicting Outcomes In Investment Treaty Arbitration, Susan D. Franck, Lindsey E. Wylie

Duke Law Journal

Crafting appropriate dispute settlement processes is challenging for any conflict-management system, particularly for politically sensitive international economic law disputes. As the United States negotiates investment treaties with Asian and European countries, the terms of dispute settlement have become contentious. There is a vigorous debate about whether investment treaty arbitration (ITA) is an appropriate dispute settlement mechanism. While some sing the praises of ITA, others offer a spirited critique. Some critics claim that ITA is biased against states, while others suggest ITA is predictable but unfair due to factors like arbitrator identity or venue. Using data from 159 final cases derived …

The Evolution Of Giving: Considerations For Regulation Of Cryptocurrency Donation Deductions, Ashley Pittman

Duke Law & Technology Review

This Issue Brief looks at the rapidly growing area of cryptocurrency donations to nonprofit organizations. Given the recent IRS guidance issued on taxation of Bitcoin, specifically its decision to treat cryptocurrencies as property, questions now arise as to how charitable contributions of the coins will be valued for tax deductions. Though Bitcoin resembles most other capital gain property, its volatility, general decline in value, anonymity, and potential for abuse require specific guidance on valuation and substantiation so as to handle its unique nature and prevent larger deductions for charitable contributions than those to which taxpayers are entitled.

Noriega V. Activision/Blizzard: The First Amendment Right To Use A Historical Figure's Likeness In Video Games, Joshua Sinclair

Duke Law & Technology Review

Panama’s former dictator, Manuel Noriega, recently sued Activision Blizzard in the California Superior Court for using his likeness and image in the popular video game “Call of Duty: Black Ops II.” In his complaint, Noriega alleged that the use of his likeness violated his right of publicity. Former New York Mayor, Rudy Giuliani, came to Activision’s defense, and filed a motion to dismiss, which was granted. In granting Activision’s motion, the court held that Activision’s use of Noriega’s likeness was transformative and did not violate his right of publicity. This Issue Brief argues that the California Superior Court should not …

Authenticity And Admissibility Of Social Media Website Printouts, Wendy Angus-Anderson

Duke Law & Technology Review

Social media posts and photographs are increasingly denied admission as evidence in criminal trials. Courts often cite issues with authentication when refusing to admit social media evidence. Cases and academic writings separate recent case law into two approaches: The Maryland Approach and the Texas Approach. The first method is often seen as overly skeptical of social media evidence, setting the bar too high for admissibility. The second approach is viewed as more lenient, declaring that any reasonable evidence should be admitted in order for a jury to weigh its sufficiency. This Brief addresses the supposed differences between the two sets …

The New Stock Market: Sense And Nonsense, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg

Duke Law Journal

How stocks are traded in the United States has been totally transformed. Gone are the dealers on NASDAQ and the specialists at the NYSE. Instead, a company's stock can now be traded on up to sixty competing venues where a computer matches incoming orders. High-frequency traders (HFTs) post the majority of quotes and are the preponderant source of liquidity in the new market.

Many practices associated with the new stock market are highly controversial, as illustrated by the public furor following the publication of Michael Lewis's book Flash Boys. Critics say that HFTs use their speed in discovering changes in …

Defining Attempts: Mandujano's Error, Michael R. Fishman

Duke Law Journal

The law of attempt requires a court to determine when trying to commit a crime is, in itself, conduct that deserves criminal punishment. Common-law courts were cautious not to push the boundaries of attempt crimes too far, and early definitions of attempt required that a defendant come very close to the completion of an intended crime before he could be convicted. As Congress has codified criminal law, it has created attempt statutes without defining attempt, presumably believing that courts would continue to use common-law meanings as they had always done. This is exactly what happened until the late twentieth century, …

Journal Staff

Duke Law Journal

No abstract provided.

Death And Paperwork Reduction, Adam M. Samaha

Duke Law Journal

How does government value people's time? Often the valuation is implicit, even mysterious. But in patches of the federal administrative state, paperwork burdens are quantified in hours and often monetized. When agencies do monetize, they look to how the labor market values the time of the people faced with paperwork. The result is that some people's time is valued over ten times more than other people's time. In contrast, when agencies monetize the value of statistical life for cost-benefit analysis, they look to how people faced with a risk of death subjectively value its reduction. In practice, agencies assign the …

Upgrading Existing Regulatory Mechanisms For Transatlantic Regulatory Cooperation, C. Boyden Gray

Law and Contemporary Problems

No abstract provided.

Transatlantic Privacy Regulation: Conflict And Cooperation, Francesca Bignami, Giorgio Resta

Law and Contemporary Problems

No abstract provided.

From The Group Of Twenty To The Group Of Two: The Need For Harmonizing Derivatives Regulation Between The United States And The European Union, Tessa White

Law and Contemporary Problems

No abstract provided.

Developing A Domestic Framework For International Regulatory Cooperation, Reeve T. Bull

Law and Contemporary Problems

No abstract provided.

Coordination And Conflict: The Persistent Relevance Of Networks In International Financial Regulation, Robert B. Ahdieh

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Regulatory Cooperation In Latin America: The Case Of Mercosur, Mariana Mota Prado, Vladimir Bertrand

Law and Contemporary Problems

No abstract provided.

Mapping A Hidden World Of International Regulatory Cooperation, Jeffrey L. Dunoff

Law and Contemporary Problems

No abstract provided.

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.