Law Commons^™

The Ballot Is Stronger Than The Bullet: Alaska's Superior Strict Scrutiny Approach To Ballot Access Laws, Ben Sheppard, Josh Guckert

Alaska Law Review

Restrictive ballot access laws are the most burdensome requirement for third-party candidates. Such laws implicate First Amendment freedoms to associate both publicly and privately with like-minded individuals in order to advance political causes. Alaskan courts review state ballot access laws under the demanding standard of strict scrutiny. This standard was adopted through the efforts of Joe Vogler and his Alaskan Independence Party. The authors contend that such a standard has fostered Alaska’s unique openness toward third-party candidacies. Nonetheless, the Supreme Court of the United States does not utilize this same strict scrutiny review, instead using the Anderson-Burdick test, which balances …

Real Property, Real Problems: Expanding Alaska's Unfair Trade Practices And Consumer Protection Act, Michael E. Keramidas

Alaska Law Review

Alaska’s Unfair and Deceptive Acts and Practices (UDAP) statute was designed to provide broad, robust protections for everyday Alaskan consumers. Astonishingly, Alaska is one of only three states that does not protect Alaskans under its UDAP statute when they fall victim to fraudulent schemes involving real property. The Alaska Supreme Court has consistently upheld this interpretation of the UDAP statute by relying on precedent from over thirty years ago. At the same time, due to the COVID-19 pandemic, everyday Alaskans are more economically vulnerable than ever before, with the atmosphere being ripe for proliferation of fraudulent real property schemes. This …

Ware V. Ware And The Presumption Of Undue Influence In Confidential Relationships, Ian W. Fraser

Alaska Law Review

Alaska law has long recognized that a presumption of undue influence arises as a matter of law when a will’s primary beneficiary participates in its drafting and has a fiduciary or confidential relationship with the testator. In its 2007 decision Ware v. Ware, the Alaska Supreme Court extended this principle beyond testamentary scenarios to any situation in which the principal in a confidential relationship benefits from the relationship. But the decision stated the law incorrectly. The court’s analysis, cited precedents, and common sense all demonstrate that the court meant to say that the presumption of undue influence arises when a …

Journal Staff

Alaska Law Review

No abstract provided.

State Revenue Dedicated For Special Purposes: A Proposed Constitutional Amendment, Mark Andrews

Alaska Law Review

The Alaska State budget has decreased in recent years, and because of the lower price of oil, it is not expected to recover in the near term. This smaller budgetary pie may intensify the impulse to protect the funding of individual projects. However, the Alaska Constitution forbids the dedication of taxes for specific purposes. This Essay proposes a state constitutional amendment that would allow such dedications, subject to limits designed to avoid potential problems. The Essay describes the effect the proposal would have had on past decisions of the Alaska Supreme Court and compares the dedication of tax revenue to …

Note From The Editor

Alaska Law Review

No abstract provided.

Do You Know It When You See It? Using Alaska's Child Pornography Statute As A Nationwide Model For Proscribing Morphed Images, Daisy Gray

Alaska Law Review

In 1982, the United States Supreme Court addressed the tension between free speech and protecting children by holding child pornography outside the scope of First Amendment protections. Critical to the Court’s decision was the fact that child sexual abuse is necessary to produce child pornography. But what if technological advancement removed child abuse from the equation? The recent phenomena of virtual child pornography and morphed images involve the digital alteration of adult pornography to create the appearance of child pornography. The Alaska legislature amended its child pornography statute in response to these developments, proscribing the possession of morphed images. While …

Legalizing Local: Alaska's Unique Opportunity To Create An Equitable And Sustainable Seaweed Farming Industry, Logan Miller

Alaska Law Review

The seaweed farming industry in Alaska is in its nascent stages. There is tremendous potential for growth, but also risk of exploitation and inequitable outcomes. Alaskans have a unique and urgent opportunity to enact policies that can ensure and promote equitable, sustainable development that centers the voices and interests of marginalized groups—including Indigenous and rural populations—and provides benefits to local economies. This Note seeks to contribute to the creation of a sound policy framework for the responsible development of Alaska’s seaweed farming industry by advancing both a theoretical framework and specific policy recommendations. Drawing from the experiences of other jurisdictions …

Fourth Amendment Limits On Extensive Quarantine Surveillance, Benjamin Wolters

Duke Journal of Constitutional Law & Public Policy Sidebar

The devastation wreaked by the COVID-19 pandemic spurred innovations in technology and public policy. Many countries rushed to implement extensive quarantines, and some introduced disease surveillance, including location tracking to enforce quarantines. Though the United States has never implemented high-tech quarantine surveillance, such technology will certainly be available for the next disease outbreak.

Absent significant doctrinal change, the Fourth Amendment likely bars some, but not all, forms of quarantine surveillance. Quarantine surveillance probably constitutes a Fourth Amendment “search” that generally must be backed by probable cause. This probable cause requirement, and its subcomponent of individualized suspicion, likely applies differently to …

Trouble With Names: Commercial Speech And A New Approach To Food Product Label Regulation, William Cusack

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court has recognized First Amendment protection for “commercial speech” since 1975. Commercial speech doctrine seeks to balance advertiser interest in speech, consumer interest in information, and society’s interest that “economic decisions in the aggregate be intelligent and well-informed.” Regulations and compulsory disclosures of commercial speech play a part in ensuring consumers are well-informed. Yet, there continues to be consumer confusion surrounding the commercial speech doctrine’s application to food labeling. Lawmakers continue to pass regulations that are unnecessary or nonsensical. Regulators continue to enforce these regulations, even if the state interest in doing so is minimal or non-existent. There …

Mind The Gap: A Comparative Approach For Fixing Volcker, Learning From Liikanen, And Using Vickers To Repair The U.S. Banking System, Rachel Sereix

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2008 financial crisis, Congress, courts, and international banking agencies alike determined that their current banking infrastructures were inadequate to prevent such crises in the future. The Dodd-Frank Wall Street Reform Acttried to solve the problem by reducing derivatives-related risk through legislative provisions that increased capital and liquidity requirements for all banks. Yet, banks continued to find means to subvert the system and Congress remained relatively silent on the issue after the passage of Dodd-Frank—failing to amend Dodd-Frank in any meaningful way. Looking towards European peers for guidance about how to reform the United States’ banking regime has often …

A Modest Proposal: Leveraging Private Enforcement Mechanisms And The Bayh-Dole Act To Reduce Drug Prices In The U.S. Healthcare Industry, Brittany Day

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States healthcare system is one of the most expensive in the world. Unlike other products, when drug prices skyrocket, people may die. While advocating for various solutions, both the Biden and Trump administrations have recognized the importance of halting the rise of prescription drug prices. Most of the solutions advanced are focused on government-side initiatives, such as allowing Medicare to directly negotiate with pharmaceutical companies. Yet, the "march-in rights" built into the Bayh-Dole Act create an opportunity to set up a mechanism that would invite private actors to sue pharmaceutical companies for unconscionable drug pricing. The Bayh-Dole Act …

Paving The Way For Mind-Reading: Reinterpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli

Duke Journal of Constitutional Law & Public Policy Sidebar

Mind-reading is no longer a concept confined to the world of science-fiction: "Brain reading technologies are rapidly being developed in a number of neuroscience fields." One obvious application is to the field of criminal justice: Mind-reading technology can potentially aid investigators in assessing critical legal questions such as guilt, legal insanity, and the risk of recidivism. Two current techniques have received the most scholarly attention for their potential in aiding interrogators in determining guilt: brain-based lie detection and brain-based memory detection. The growing ability to peer inside someone's mind raises significant legal issues. A number of American scholars, especially in …

Ferpa And State Open Records Laws: What The North Carolina Supreme Court Got Wrong In Dth Media Corp. V. Folt, And How Courts & Congress Can Take Measures To Reconcile Privacy And Access Interests, Danielle Siegel

Duke Journal of Constitutional Law & Public Policy Sidebar

Over the past few years, courts across the country have confronted a common scenario. Members of the public and media request records from a public university pertaining to its investigations of sexual assault and misconduct on campus. Then, media outlets contend they have a right to access these records under state open records laws. But the university claims that it cannot, or will not, disclose the records under the Family Educational Rights and Privacy Act of 1974 ("FERPA").

The media outlet then files suit to compel disclosure. This Note explores the competing privacy and access interests at stake in this …

The Economic Dimensions Of Family Separation, Stephen Lee

Duke Law Journal

Migrants in the United States experience varying degrees of harm related to family separation. This article focuses on the economic dimensions of these harms by focusing on transnational remittances, a topic that has generated significant scholarly attention. Within this story, remitters are pitched as heroes and remittances are held up as a critical, market-based solution for solving global poverty. Of course, this picture is incomplete. This account ignores remittance-sending countries and provides only a narrow account of law. This Article focuses on anti-money laundering policies, an important set of U.S. laws that regulate the remittance economy. Examining remittances from this …

Commodifying Marginalization, Abbye Atkinson

Duke Law Journal

Pillars of U.S. social provision, public pension funds rely significantly on private investment to meet their chronically underfunded promises to America’s workers. Dependent on investment returns, pension funds are increasingly investing in marginalized debt, namely the array of high-interest-rate, subprime, risky debt—including small-dollar installment loans and other forms of subprime debt—that tends to concentrate in and among historically marginalized communities, often to catastrophic effect. Marginalized debt is a valuable investment because its characteristically high interest rates and myriad fees engender higher returns. In turn, higher returns ostensibly mean greater retirement security for ordinary workers who are themselves economically vulnerable in …

Give And Take: State Courts Should Be Able To Certify Questions Of Federal Law To Federal Courts, John Macy

Duke Law Journal

For some time, federal courts faced with unresolved questions of state law have been able to certify those questions to state courts for resolution. In the past half-century, certification practice has exploded. Nearly every state allows at least one federal court to certify questions to its state courts, and some federal courts exercise the option frequently. However, there is no analogous tool for state courts to certify questions of federal law to federal courts. This Note argues that the creation of such a tool would benefit both courts and litigants. Of course, the considerations motivating certification to state courts, such …

Journal Staff

Duke Law Journal

No abstract provided.

Regulating Homeowners' Disaster Insurance Through Federal Intervention: Lessons From The Affordable Care Act, Shannon O'Hara

Duke Law Journal

One of the most impactful effects of climate change in recent years has been the increasing frequency and severity of natural disasters, even in geographic areas not previously known as disaster-prone. These disasters have caused untold property damage. Typically, the cost of rebuilding a home is assumed at least in part by private insurance companies, but many homeowners are significantly underinsured for disaster-related losses. Additionally, in areas where natural disasters are becoming increasingly frequent, private insurers have determined that it is no longer profitable to continually issue massive payouts without charging astronomical premiums, leaving many homeowners without access to financial …

Kathryn Gibbons Johnson, Gerald B. Tjoflat

Special Collections

No abstract provided.

Nathan Chapman, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding litigation tactics, ethics, and the growth of magistrates’ system.

Comments Regarding “Technical Support Document: Social Cost Of Carbon, Methane, And Nitrous Oxide Interim Estimates Under Executive Order 13990”, Lawrence G. Baxter, Jospeh E. Stiglitz, Stephanie Kelton, Jay C. Shambaugh

Regenerative Crisis Response Committee

No abstract provided.

Secondary Capital For Credit Unions: Fact Sheet, Regenerative Crisis Response Committee

Regenerative Crisis Response Committee

Remove the NCUA rule restricting secondary capital access to low-income designated institutions, designating climate mitigation and opportunity finance as eligible for secondary capital.

Public Input On Climate Change Disclosures, Lawrence G. Baxter, Peter R. Fisher, Gina-Gail S. Fletcher, Megan Greene, Joseph E. Stiglitz

Regenerative Crisis Response Committee

No abstract provided.

The Myth Of Carbon Offsets, Lawrence G. Baxter, Megan Greene, Stephanie Kelton, Jennifer M. Silvi, Hannah H. Braun, Missie Frandsen, Rohan Kocharekar

Regenerative Crisis Response Committee

The RCRC’s mandate is to help identify and incubate fiscal, monetary, and financial regulatory policy solutions that will put the United States on track for net-zero emissions before 2050. Informed by the work of many scientists, regulators, climate advocates, and international organizations, we take a broadly critical view of the many carbon credit markets and offsetting strategies that have developed thus far and urge policymakers, firms, and other organizations to reevaluate and refine this approach. This paper discusses some of the foundational challenges associated with the practice of offsetting and presents recommendations to chart an alternative path forward.

The Case For Climate Conscious, Low Carbon Federal Procurement, Jay C. Shambaugh, Gina-Gail S. Fletcher, Jennifer M. Silvi, Hannah H. Braun, Missie Frandsen, Peter A. Bruno

Regenerative Crisis Response Committee

Purchasing practices are one of many contributors to the climate crisis. As the world’s largest purchaser of goods and services, the U.S. Federal Government is in a unique position to cut a significant portion of national emissions through the development of more responsible, sustainable, and—most importantly—climate-conscious supply chains. According to the Office of the Federal Chief Sustainability Officer, federal supply chain emissions associated with federal contracts are twice as high as Federal Scope 1 and Scope 2 emissions, combined. As such, reforming Federal procurement practices to limit direct emissions as well as emissions in supply chains can play a crucial …

Making Green Mortgages Mainstream & Accessible, Megan Greene, Adam Tooze, Jennifer M. Silva, Rohan Kocharekar, Hannah H. Braun

Regenerative Crisis Response Committee

No abstract provided.

Valuing Injunctive Relief Under The Class Action Fairness Act, Sadie J. Kavalier

Duke Law Journal

Injunctive relief class actions afford victims of mass harms a chance to sue collectively and enjoin an actor’s conduct. While the moral value of these suits may be monumental for litigants, one procedural question remains murky: how should courts value the amount in controversy to determine whether the suit qualifies for federal diversity jurisdiction? Historically, federal courts adopted one of two approaches. The “Plaintiff’s Viewpoint approach” values the amount in controversy strictly from any monetary benefit to the plaintiff(s). The “Either Viewpoint approach” values the amount in controversy as the higher of any monetary benefit to the plaintiff or the …

Error-Resilient Consumer Contracts, Danielle D'Onfro

Duke Law Journal

When firms contracting with consumers make mistakes, people get hurt. Inaccurate billing, misapplied payments, and similar problems push lucky consumers into Kafkaesque customer service queues—and unlucky ones off the financial cliff. Despite significant regulatory interventions, firms contracting with consumers continue to struggle to accurately bill customers, update accounts, and process payments. Firms largely rely on technology, especially databases and software, to discharge these servicing obligations. This technology must accommodate firms’ innovations in their contracts, shifting governmental regulations, and consumers’ unpredictable behavior. Given the complexity of servicing, even when firms invest significantly in technology, it will inevitably produce mistakes. When firms …

Insider Giving, S. Burcu Avci, Cindy A. Schipani, H. Nejat Seyhun, Andrew Verstein

Duke Law Journal

Corporate insiders can avoid losses if they dispose of their stock while in possession of material nonpublic information. One means of disposal, selling the stock, is illegal and subject to prompt mandatory reporting. A second strategy is almost as effective, yet it faces lax reporting requirements and enforcement. That second method is to donate the stock to a charity and take a charitable tax deduction at the inflated stock price. This “insider giving” is a potent substitute for insider trading. We show that insider giving is far more widespread than previously believed. In particular, we show that insider giving is …