Digital Commons Network^™

Personal Jurisdiction And The Declaration Of Independence, Ryan C. Williams

Duke Law Journal

The Declaration of Independence accuses King George III of having "obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers." But despite the seemingly natural resonance of this particular charge with the legal profession, legal scholars have given remarkably little attention to the controversy that provoked this particular complaint. This Article traces the colonists' complaint to a somewhat surprising and unexpected source—a dispute about personal jurisdiction.

During the late eighteenth century, administrative officials responsible for overseeing Britain's North American possessions sought to eliminate the use of the custom of foreign attachment by colonial court systems. …

Illegal Corporate Cultures, Elise Bernlohr Maizel

Duke Law Journal

Culture is a powerful force in corporate compliance. Corporate culture shapes how employees behave, dictating whether, when, and how they follow the law. Cases arising out of cultural failures often involve public harm—plane crashes, poisoned rivers, tainted cancer drugs, and collapsed mines. Before these awful outcomes, however, the corporations that caused these harms fostered cultures that permitted the disregard of legal commands and public commitments. Managers disparaged safety regulations. Messages about profits and production drowned out messages about compliance and safety. Yet, there is a gap between all we know about the power of culture and our understanding of corporate …

Burdens Of Proof In Criminal Procedure, Eve Brensike Primus

Duke Law Journal

The Supreme Court's haphazard approach to allocating burdens of proof in criminal procedure has created a system in which constitutional rights can be rendered meaningless simply because defendants are required to prove things they cannot possibly know. Even though allocations of the burden of proof often drive litigation outcomes, the Court has failed to establish clear burden allocation structures for cases arising under the Fourth, Fifth, Sixth, and Fourteenth Amendments, leaving lower courts split about how to allocate the burdens. When the Supreme Court does allocate burdens, it often does so without explanation or consideration of key factors. Recent Supreme …

Restoring Chevron Deference By Statute, Scott Dodson

Duke Law Journal Online

This paper details a solution for legislatively restoring Chevron deference: amend the APA to direct lower federal courts to give deference to reasonable agency decisions but retain nondeferential judicial review by the U.S. Supreme Court. This solution restores most of the practical benefits of Chevron by giving agencies flexibility to implement congressional policy directives with the expertise they have acquired, by maintaining stability in administrative regulation, and by relieving lower federal courts of the burdens of nondeferential review. And retaining nondeferential judicial review in the Supreme Court will preserve the constitutional role of the judicial branch to say what the …

Strengthening The Rule Of Law In Ecuador: A Conversation With Jhoel Escudero Soliz, President Of The Constitutional Court, Jhoel Escudero, David Collins

Judicature International

No abstract provided.

A Democratic Rule Of Law, Jedediah Britton-Purdy

Law and Contemporary Problems

No abstract provided.

The Origins Of "The Rule Of Law", Jeremy Kessler

Law and Contemporary Problems

No abstract provided.

Campus Protests And The Rule Of Law, Shirin Sinnar

Law and Contemporary Problems

No abstract provided.

The Public Rule Of Law, Jonathan S. Gould

Law and Contemporary Problems

Across the globe, residents of many democracies worry that their public officials threaten the rule of law. But what, precisely, does that mean? Much of the literature on what the rule of law requires focuses on what it demands when government interacts with private parties. This article examines what I call the public rule of law, asking what the rule of law has to say about how public power is organized and exercised.

In doing so, I consider four approaches to the rule of law in a public law context. First, a rule of law problem could arise from an …

Foreword, Jedediah Britton-Purdy, Madhav Khosla

Law and Contemporary Problems

No abstract provided.

"Common Good Constitutionalism": Rule Of Law, Rule By Law, Or Something Else Entirely?, Jan-Werner Müller

Law and Contemporary Problems

No abstract provided.

Defending Rule-Of-Law Minimalism, Ashraf Ahmed

Law and Contemporary Problems

No abstract provided.

Law-Abiding Citizenship And Non-Violent Protest, David Bromwich

Law and Contemporary Problems

No abstract provided.

Caste Formalism: The Law And Politics Of Equality In India, Madhav Khosla, Pratap Bhanu Mehta

Law and Contemporary Problems

No abstract provided.

Volume 109, Number 1 (2025)

Judicature

No abstract provided.

No Eyes In The Skies: State Of Alaska V. Mckelvey’S Impact On Aerial Surveillance In Alaska, Lauren Beizer, Johanna Crisman

Alaska Law Review

Alaska contains a dynamic and complex aviation culture. As one of the most visually captivating places on earth, Alaska also hosts enthralling scenery that could be deemed a photographer’s dream landscape, creating an interesting desire for aerial capture of certain scenes. The Alaska Supreme Court considered whether Alaska’s unique aviation culture, in conjunction with aerial police surveillance, infringes on residents’ right to privacy in State of Alaska v. McKelvey. While the United States Constitution contains no express right to privacy, the Alaskan Constitution explicitly ensures that the right to privacy of Alaskan residents will not be infringed upon. The United …

The Corporate Governance Of The Biggest Corporations You’Ve Never Heard Of, Aaron M. Schutt

Alaska Law Review

When Congress passed the Alaska Native Claims Settlement Act (ANCSA) in 1971, it directed the creation of twelve regional and over two hundred village corporations chartered under Alaska state law. ANCSA subjected these corporations to Alaska’s corporate governance framework, including the laws and regulations governing corporate elections. This Article examines the statutory and regulatory requirements applicable to ANCSA corporations, including the various requirements around ANCSA corporation annual shareholder meetings. It also analyzes relevant state and federal case law interpreting and applying these requirements. Finally, the Article explores the rights and responsibilities of corporate directors and officers, as well as the …

Rediscovering Alaska’S Right To Housing, Helen Malley

Alaska Law Review

In the wake of Grants Pass v. Johnson, state constitutions provide an alternative avenue to protect the rights of people experiencing homelessness. While some states contemplate amending their constitutions to encompass a right to housing, this Article argues that such a right already exists in the Alaska Constitution. Article VII, Sections 4 and 5 explicitly direct the legislature to provide for the public health and welfare, and Article I, Section 22 recognizes all Alaskans’ fundamental right to privacy. When read together, these provisions provide for a dual right to housing, encompassing both an affirmative right to adequate and affordable housing, …

Note From The Editor

Alaska Law Review

No abstract provided.

Making Alaskans Whole: How Regulators Can Restore Trans-Alaska Pipeline System Lands And Recover Billions For The Public, Catherine H. Rocchi, Philip A. Wight, Michael Loughran

Alaska Law Review

This Article examines the dismantlement, removal, and restoration requirements associated with the Trans-Alaska Pipeline System (TAPS). These decommissioning obligations, rooted in the right-of-way lease agreements between state and federal agencies and the pipeline owners, require the lessees to remove pipeline infrastructure and restore Alaskan lands at the end of the pipeline’s useful life. Yet the regulatory structures governing TAPS decommissioning are deficient in several respects. Regulators have failed to safeguard decommissioning collections using a designated fund or a comprehensive liability regime. An opaque and overly permissive approach to transfers of ownership between the TAPS carriers has substituted private agreements for …

Feed It To The Ocean: The Federal Approach To Decommissioning In Alaska Native Climate Adaptation Projects, Sophia Tidler

Alaska Law Review

This Note calls on the Council on Environmental Quality (CEQ) to issue guidance clarifying that concurrent decommissioning is an in-scope “connected action” under the National Environmental Policy Act for relocation, managed retreat, and protect-in-place projects aimed at replacing infrastructure in environmentally threatened Alaska Native communities. In 2018, the Denali Commission completed the Final Environmental Impact Statement for Alaska’s first community-driven village relocation of the millennium, facilitating construction of essential infrastructure at Mertarvik, the relocation site for the village of Newtok. However, the Denali Commission chose to exclude a full-scale decommissioning plan for Newtok’s existing infrastructure. Today, more than seventy-three Alaska …

Sb 86/Hb 99: Navigating Alaska’S Digital Renaissance – A Strategic Approach To Virtual Currency Regulation, Nihit Desai, Alice Cao

Alaska Law Review

Alaska is navigating a transformative phase in its regulatory approach to virtual currency transmission, driven by the rapid growth of the fintech industry and the unique economic and geographic challenges faced by its residents. As the number of virtual currency transactions in Alaska has surged dramatically over recent years, the State’s existing money transmission framework—rooted in laws designed before the rise of cryptocurrencies and internet-based financial services—has proven insufficient to address this evolving landscape.

In light of the wide adoption of virtual currency by consumers, Alaska has implemented targeted amendments to its Administrative Code and proposed the Alaska Uniform Money …

The Future Of Alaska’S Wetlands In A Post-Sackett World, Johanna Crisman

Alaska Law Review

In 2023, the United States Supreme Court decided Sackett v. Environmental Protection Agency, which effectively restricted the United States Army Corps of Engineers’ (“USACE”) and the Environmental Protection Agency’s (EPA) ability to regulate development of wetlands. The State of Alaska submitted an amicus brief to the Court on behalf of the petitioners, the Sackett family. In the wake of the decision, Governor Dunleavy praised the decision by the Court, emphasizing that the decision provided the state more autonomy over its own wetlands. Still, there is concern by environmentalists that the State does not have the resources to protect the wetlands …

Countering The Demand Side Of Foreign Bribery: An Analysis Of The Foreign Extortion Prevention Act, Noah Buyon

Duke Journal of Comparative & International Law

The United States has long criminalized bribery of foreign officials but not bribery by foreign officials. Under the Foreign Corrupt Practices Act ("FCPA"), an American may be criminally liable for paying a bribe to another country's official, but the official commits no corresponding crime. The official might face criminal charges if they launder the proceeds of the bribe through the United States and could find themselves the target of Executive Branch sanctions for their corrupt behavior. But until 2023, the United States largely left the official's punishment, if any, to the official's home country. Then, Congress passed the Foreign Extortion …

When Electrification Meets Reindustrialization: The First Eu Green Electric Vehicle Subsidies And The Wto Consistency, Mandy Meng Fang

Duke Journal of Comparative & International Law

The French Government recently reformed the "Ecological Bonus" scheme, which has generously supported its domestic consumers in purchasing electric vehicles ("EVs"), by introducing a new criterion based on the amount of carbon emitted in the vehicle's manufacturing. Starting in 2024, the scheme strictly sets the production carbon footprint ceiling at 14.75 tons of CO2, effectively denying the subsidy eligibility of more than one-third of EVs sold in France. Other European Union ("EU") Member States, including Italy, have considered taking similar policy actions. Criticized as the French version of the discriminatory United States Inflation Reduction Act, the new Ecological Bonus scheme …

Gender-Based Crimes And The Colombian Special Jurisdiction For Peace, Caroline Davidson

Duke Journal of Comparative & International Law

The Special Jurisdiction for Peace ("JEP"), created as part of Colombia's historic 2016 Peace Agreement, has been hailed as a novel, restorative justice-oriented mechanism for addressing gross human rights violations at the domestic level. Commentators point to the JEP as a potential model for other jurisdictions looking to address mass atrocities. The success or failure of this model hinges on the JEP's ability to effectively address an issue of great concern to the International Criminal Court as well as to Colombian civil society: gender-based crimes. This Article is the first to examine comprehensively the JEP's progress on this vital issue, …

Criminalization Of Homelessness: The Impact Of A Market-Oriented Approach, Gabriella M. Chioffi

Duke Journal of Comparative & International Law

Since the fourteenth century, countries have sought to criminalize unhoused individuals by labeling them as "vagrants." Currently, the United States and other countries continue to criminalize acts of sleeping rough, begging, loitering and other vagrancy-type activities that disproportionately target unhoused persons. Despite going through a period of decriminalization in the 1960s and 1970s, these punitive measures were largely reinstated by the 1990s. In the most extreme case, vagrancy criminalization was entrenched in a state's constitution. This Note contends that the reversion to punitive measures is triggered by a country's transition to a market-oriented approach that privatizes housing development and de-emphasizes …

A Matter Of Public Concern: Wright V. Dorsey And The Need For Speech Protections Beyond Anti-Slapp Law, Henry Valentine

Duke Journal of Constitutional Law & Public Policy Sidebar

Wright v. Dorsey, a recent defamation case, demonstrates the limitations of anti-SLAPP ("Strategic Litigation Against Public Participation") law and the need for supplemental speech protections. Joshua Wright, an antitrust law practitioner and former professor, sued Elyse Dorsey and Angela Landry for defamation. Dorsey and Landry had claimed that Wright used his position as their professor (and later employer) to pressure them into non-consensual sexual relationships; Wright acknowledged their relationships but claimed they were fully consensual, and that stating otherwise was defamatory. Anti-SLAPP law failed to protect Dorsey and Landry even though Wright's lawsuit was ultimately a SLAPP. To better protect …

The Rogue Private Company And National Defense Emergencies, Gavin Small

Duke Journal of Constitutional Law & Public Policy Sidebar

This Note explores two overlapping challenges in the United States constitutional and political system. First, the United States increasingly relies on private companies for technologies necessary for national defense. This has given outsized power to a few unelected corporations and people who might have their own incentives that misalign with those of the United States. This is particularly dangerous in an emergency situation where the United States government, not a private company with its own interests, should be making decisions regarding national security. As an example, this Note focuses on the massive role that the company SpaceX plays in the …

Forcing Our Hand: Evaluating The Use Of Force In Responses To Wrongful Detentions Abroad, Tyler J. Marovitz

Duke Journal of Constitutional Law & Public Policy Sidebar

Wrongful detentions are on the rise. Over the past ten years, U.S. nationals have increasingly found themselves detained abroad upon spurious allegations, facing trumped-up charges, and deprived of basic due process protections. Most of these detentions occur in countries hostile to the United States: Russia, Iran, North Korea, China, and Venezuela. The U.S. has opted to release rightfully detained foreigners to those nations in exchange for its wrongfully detained nationals. All of this perpetuates a “prisoner bazaar” that encourages unscrupulous nations to continue their bad-faith detentions of U.S. nationals. This Note investigates this emerging issue through a use of military …