Law Commons^™

Historical Analogy And The Role Morality Of Reason-Giving, Darrell A. H. Miller

Duke Law Journal Online

The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.

The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of …

Missing Pieces: Gaps In The Record Of Early American Decisional Law, Andrew Willinger

Duke Law Journal Online

In its most recent major Second Amendment decision, New York State Rifle & Pistol Association v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were …

"Just The Facts, Ma'am"? A Response To Professors Blocher And Garrett, Haley N. Proctor

Duke Law Journal Online

No abstract provided.

The Precarious Art Of Classifying Facts, Allison Orr Larsen

Duke Law Journal Online

No abstract provided.

Corpus Linguistics And The Original Public Meaning Of The Sixteenth Amendment, Thomas R. Lee, Lawrence B. Solum, James C. Phillips, Jesse A. Egbert

Duke Law Journal Online

Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes, from whatever source derived” under the original meaning of the Sixteenth Amendment. Moore is widely viewed as the most important tax case to reach the United States Supreme Court in decades. It is also an opportunity for the Court to refine its theory and method of finding original meaning.

We focus here on the original public meaning of the Sixteenth Amendment—the ordinary, common meaning attributed to its text by the general public in 1913. So far, the …

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 …

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. …

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 …

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 …

Murder And Money: The Dark Side Of Taylor Swift, Fredrick E. Vars

Duke Law Journal Online

Under the dramatically named “Slayer Rule,” murderers cannot inherit from their victims. This principle is so intuitive that it is easy to miss critical questions of implementation. One such question is: What if one cannot prove the murder with certainty? Should the Slayer Rule apply only to individuals convicted beyond a reasonable doubt of murder, or should some lower level of proof suffice? This essay examines those questions through an unlikely lens: the music of Taylor Swift.

Misreading Campbell: Lessons From Warhol, Shyamkrishna Balganesh, Peter S. Menell

Duke Law Journal Online

In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a "transformative use." Purporting to rely on the Court’s adoption of "transformative use" as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous "transformativeness" inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might be considered as …

Ai And The Regulatory Paradigm Shift At The Fda, Catherine M. Sharkey, Kevin M. K. Fodouop

Duke Law Journal Online

No abstract provided.

The Fracas At The Fdic, Todd Phillips

Duke Law Journal Online

In December 2021, the Democratic members of the Board of Directors of the Federal Deposit Insurance Corporation (FDIC) attempted to use their majority to issue a request for information but were blocked by the Republican Chair. Although the Democrats outnumbered the Chair three-to-one, the agency's General Counsel declared the move invalid, and the request went unpublished. After weeks of hostility, the Chair resigned, effectively conceding her inability to lead the agency. Although governance at the FDIC is now settled, concern over the Democratic directors' actions and the Chair's resignation have reverberated beyond that singular agency. Republicans are concerned that the …

Jury Nullification In Abortion Prosecutions: An Equilibrium Theory, Peter N. Salib, Guha Krishnamurthi

Duke Law Journal Online

The Supreme Court has overturned Roe v. Wade. Doing so, it has rescinded recognition of a fundamental constitutional right for the first time in nearly a century. Even before Roe's demise, multiple states enacted laws to criminalize abortion once the abortion right was gone. More states will surely follow soon. Calls to action have gone out to those who can protect women's rights: the President, Congress, left­leaning state governments, and more. We add another call - to jurors.

Jurors - and sometimes judges - have the power to refuse to convict factually guilty defendants in criminal prosecutions when they believe …

Antitrust As An Instrument Of Democracy, Daniel A. Crane

Duke Law Journal Online

No abstract provided.

Cryptocurrency, Legibility, And Taxation, Amanda Parsons

Duke Law Journal Online

In Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance …

Catchall Policing And The Fourth Amendment, Nirej Sekhon

Duke Law Journal Online

American police do a bit of everything. They direct traffic, resolve private disputes, help the sick and injured, and do animal control. Far less frequently than one might think, they make arrests. Americans reflexively call the police for troubles, big and small. The “catchall tradition” is shorthand for this melding of non-adversarial, public assistance with adversarial, crime-control functions. The catchall tradition means that civilians are exposed to the police’s coercive power as a condition of receiving police help. This Article contends that the catchall tradition is antithetical to constitutional police regulation. The Supreme Court has distinguished adversarial from non-adversarial state …

Dueling Dictionaries And Clashing Corpora, Kevin Tobia

Duke Law Journal Online

No abstract provided.

Rattlesnakes, Debt, And Arpa § 1005: The Existential Crisis Of American Black Farmers, Maia Foster, P. J. Austin

Duke Law Journal Online

No abstract provided.

We Can't Talk About Race Unless We Also Talk About Art, Lavinia Liang

Duke Law Journal Online

No abstract provided.

Spurious Pedigree Of The "Valid-When-Made" Doctrine, Adam J. Levitin

Duke Law Journal Online

The “valid-when-made” doctrine holds that if a loan was not subject to a state usury law when it was made, it can never subsequently become so upon transfer. The doctrine is supposedly a “well-established and widely accepted” common law doctrine that is a “cardinal rule” of banking law endorsed by multiple Supreme Court decisions.

This Article demonstrates the valid-when-made doctrine’s spurious historical pedigree. The doctrine is a modern invention, fabricated by attorneys for financial services trade associations in the appeals from the Second Circuit’s Madden decision. It rests solely on decontextualized and misinterpreted quotations from nineteenth century cases dealing with …

The Case For Chevron Deference To Immigration Adjudications, Patrick J. Glen

Duke Law Journal Online

Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower— to show that “this case against Chevron has . . . its greatest force when it comes to immigration.”

The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general …

The Supreme Court's Reticent Qualified Immunity Retreat, Katherine Mims Crocker

Duke Law Journal Online

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and …

Three Suggestions To Promote New Scholarship From An Outgoing Editor-In-Chief, Christian I. Bale

Duke Law Journal Online

No abstract provided.

Neuroscience And The Model Penal Code's Mens Rea Categories, Andreas Kuersten, John D. Medaglia

Duke Law Journal Online

This Essay addresses recent research and commentary regarding the potential contributions of cognitive neuroscience to law. For the first time, cognitive neuroscience methods have been brought to bear on the Model Penal Code’s (MPC’s) culpable–mental state categories through a neuroimaging study seeking to identify the neural correlates of knowledge and recklessness. Subsequently, this study has been presented as a paradigm for utilizing cognitive neuroscience to answer important legal questions. However, the original experiment appears to suffer serious experimental-design and conceptual limitations, belying subsequent advocacy for the legal utility of cognitive neuroscience. This Essay methodically details these limitations and argues that …

Othering Across Borders, Steven Arrigg Koh

Duke Law Journal Online

Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.

Probable Cause And Performing "For The People", Irene Oritseweyinmi Joe

Duke Law Journal Online

The summer of 2020 presented the American public with two very different versions of how a state’s top prosecutor might respond to excessive use of force by law enforcement. In Kentucky, Attorney General Daniel Cameron was criticized for his conduct after stories emerged of his biased presentation to a grand jury contemplating whether officers should face criminal charges for killing an unarmed person, Breonna Taylor, in her own home. In Minnesota, Attorney General Keith Ellison proved to be less controversial as public sentiment emphasized his willingness to pursue the type of justice that the public demanded against all of the …