Digital Commons Network^™

Scientific And Technical Expertise After Loper Bright, Sapna Kumar

Duke Law Journal

Courts once trusted federal agencies for their expertise in administering complex statutory schemes, particularly regarding science and technology. Unlike judges, agency officials can narrowly focus on a specific area of law and have access to experts to inform their decision making. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court created a presumption that, absent language to the contrary, Congress intends for agencies to interpret statutory ambiguities. Chevron allowed agencies to utilize their varied forms of expertise while ensuring oversight from generalist judges. This court–agency partnership abruptly ended, however, in Loper Bright Enterprises v. Raimondo. The Court …

Jarkesy’S Stakes For The Sec, James Fallows Tierney

Duke Law Journal

This Article examines the implications of the Supreme Court’s decision in SEC v. Jarkesy for the Securities and Exchange Commission (“SEC” or “Commission”). In Jarkesy, the Court held that Congress cannot assign the adjudication of securities antifraud violations seeking civil penalties to an administrative agency without a jury trial, for such punitive actions involve “private rights.” Although this ruling might suggest a reduction in SEC enforcement actions due to the higher costs of federal jury trials, the SEC had already adjusted its practices following Lucia v. SEC in 2018. The Commission shifted away from using administrative law judges for civil …

Our Marbury: Loper Bright And The Administrative State, Cass R. Sunstein

Duke Law Journal

Loper Bright, overruling Chevron, is unmistakably part of administrative law’s current “Grand Narrative,” which sees contemporary administrative agencies with suspicion, as a product of successive breaches of Article I, II, and III of the Constitution. The decision should be seen as our Marbury v. Madison—an effort to insist that it is emphatically the province and duty of the judicial department to say what the law is. But will the decision produce large changes? The answer depends, of course, on the meaning of both Chevron and Loper Bright. Under Chevron, courts hardly gave a blank check to agencies; on the contrary, …

The Gambia’S Democratic Revival: An Interview With Chief Justice Hassan Bubacar Jallow, Hassan Bubacar Jallow, David Collins

Judicature International

No abstract provided.

Volume 108, Number 3 (2025)

Judicature

No abstract provided.

Pick Your Precedent: Bostock, Dobbs, And The Uncertain Reach Of Intermediate Scrutiny In United States V. Skrmetti, Molly Pines

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court will yet again wade into highly politically charged waters this term when it decides United States v. Skrmetti, a case about gender-affirming healthcare for minors. More specifically, Skrmetti will decide whether SB1, a 2023 Tennessee law that bans gender-affirming care for individuals below age 18, violates the Fourteenth Amendment's Equal Protection Clause. The Tennessee Plaintiffs and the Biden administration, which intervened on their behalf, have argued that SB1 unconstitutionally discriminates on the basis of sex and transgender status. In response, Tennessee has argued that SB1 only uses age and medical purpose—not sex or transgender status—to delineate …

On Innovation And The Coexistence Of Stablecoins And Central Bank Digital Currencies, Yuliya Guseva, Sangita Gazi, Douglas S. Eakeley

Law and Contemporary Problems

No abstract provided.

Implications For The Dollar Of Central Bank Digital Currencies, Ross P. Buckley

Law and Contemporary Problems

No abstract provided.

The Eu Approach To Digital Currencies, Dirk Zetzsche, Julia Sinnig

Law and Contemporary Problems

No abstract provided.

Proprietary Rights And Digital Assets: A "Modest Proposal" From A Transnational Law Perspective, Louise Gullifer, Ignacio Tirado

Law and Contemporary Problems

No abstract provided.

It’S Not So Simple: An Examination Of How The Internal Revenue Code Fails To Contemplate The Economic Realities Of Individuals With Disabilities And Their Families, Garret Hoff

Duke Law & Technology Review

Families with disabled students face extra costs associated with providing their child with the same education that other students get for free. Even though these costs are spent with the explicit purpose of supporting their child’s disability-informed care and are not incurred but for their disability (“but-for costs”), some of these costs are not deductible and others are subject to unnecessary ambiguity when it comes to their deductibility. Families with disabled students are forced to reckon with arbitrary distinctions if they want to receive any favorable tax treatment on but-for costs. This is because the relevant provision in the Internal …

History And Tradition? Anatomy Of A Constitutional Revolution, Noah Feldman

Duke Law Journal

No abstract provided.

Punishment, Penal Reform, And Alternatives To Incarceration In Durham, North Carolina, 1869-Present, Michael Deluca

Duke Law Journal

In the years following the Civil War, communities throughout the United States reckoned with divergent ideas about crime and punishment. Southern states in particular faced questions related to race and the legacy of slavery as they defined new crimes, designed penal facilities, and filled local jails. During this period, North Carolina adopted a new state constitution that manifested the transition from corporal punishment to incarceration that was occurring throughout the country. Like many states, North Carolina looked to New York and Pennsylvania for lessons to be gleaned from those states’ experiences with penitentiaries—new facilities that promised to rehabilitate incarcerated people …

Law And Historical Materialism, Jeremy Kessler

Duke Law Journal

Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From law and political economy to critical race theory to feminist legal studies to Marxist legal theory, new perspectives have flourished, and marginalized traditions have been revived and revised. These new perspectives and revisionist projects all share an intellectual debt to the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extralegal social and economic forces. Some of those …

Winning At Any Cost: Overcoming Professional Sports Team Rent Seeking Through The Sports Broadcasting Act, Omar S. Mattar

Duke Law Journal

U.S. professional sports teams are integrally linked with the identity of the cities they play in. Because of this prominence, they are some of the most valuable privately owned assets on earth. Their leagues are monopolies, insulated by entry costs that make competition from smaller competitors almost impossible. Owners rent seek using this leverage by demanding states and cities subsidize teams’ operating costs or risk the franchise departing for more generous taxpayer funding elsewhere, creating a race to the bottom. The most gratuitous of these subsidies, to build and renovate stadiums, will cost state and local taxpayers at least $20 …

Stacked Against Defendants: Retroactivity, Vacatur, And The First Step Act In Hewitt V. United States, Matthew N. Barry

Duke Journal of Constitutional Law & Public Policy Sidebar

In 2018, Congress passed the First Step Act with overwhelming bipartisan support. One of its provisions, § 403, clarifies 18 U.S.C. § 924(c) by eliminating the "stacking" of mandatory minimum sentences for certain firearm offenses for first-time offenders. Section 403(b) makes the provision retroactive so long as "a sentence for the offense has not been imposed" as of the Act's date of enactment.

In 2009, bank robbers Corey Duffey, Tony Hewitt, and Jarvis Ross were convicted of several federal crimes, including stacked § 924(c) offenses. After their sentences were vacated in 2020, they argued that they should be resentenced under …

Playing To Win: The Use Of Export Controls To Address Non-Military Strategic Competition, Joshua Angelo

Duke Law & Technology Review

Technology and national security have been intimately related throughout American history. Over the past eighty-five years, the United States has increasingly made use of export controls to prevent adversarial countries from using the fruits of its technological advancement to strengthen their militaries and harm American interests. Today, strategic competition with the People’s Republic of China involves a myriad of technologies which present risks outside of, as well as within, the military context. Chinese exports of technologies, including artificial intelligence, quantum computing, and 5G communications, can promote the country’s authoritarian model abroad, enable economic coercion, and help to enrich the regime. …

To Infinity And Beyond (And Beyond): The Legal And Ethical Imperative For Rocket Reusability, Matthew Lumia

Duke Law & Technology Review

Although the Space Shuttle’s first flight was in the 1980s, reusable rocket technology did not achieve mainstream viability until SpaceX’s reusable Falcon 9 rocket revolutionized access to space. This note argues that transitioning to reusable rocket technology is not only a practical and economic advancement, but also a legal and ethical imperative. By analyzing reusable rockets through the “due regard” framework of the Outer Space Treaty, this note demonstrates how reusable rockets mitigate space debris, expand access to space, and can reduce environmental harm. Additionally, reusable rockets address critical ethical concerns by lowering barriers to space exploration, allowing the benefits …

Anticipating A New Modern Skidmore Standard, Kristin E. Hickman

Duke Law Journal Online

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference but blessed giving agency interpretations of statutes “respect” or “weight” under the Skidmore standard during judicial review. Yet, the Court in Loper Bright offered only a few limited references regarding Skidmore as a doctrine, with little guidance regarding what judicial review under Skidmore ought to look like. The Court might not have felt the need to elaborate, as courts have been applying Skidmore for eighty years. As applied, however, Skidmore is a more complicated doctrine than many people realize. An extensive Skidmore jurisprudence exists, with nuances that …

Bruen In A Changing Judiciary, Joseph Blocher

Duke Law Journal Online

No abstract provided.

Judges, Guns, And Maga, Brannon P. Denning

Duke Law Journal Online

No abstract provided.

Fraudulent Transfer Law And Sovereign Immunity: An Actual Abuse Of Federalism?, Kyle Beck

Duke Journal of Constitutional Law & Public Policy Sidebar

After All Resort Group filed for bankruptcy, David Miller, its appointed trustee, sought to claw back tax payments the company had made on behalf of two of its principals to the IRS by arguing the payments constituted fraudulent transfers. Unlike a typical clawback action, however, the trustee brought this proceeding under Section 544(b), rather than the more common fraudulent transfer provision, Section 548, because § 544(b) permits the trustee to rely on state fraudulent transfer law—which has longer statutes of limitations than the federal fraudulent transfer provision. The Government challenged this action, arguing that recovery from the IRS was barred …

What Is The Rule Of Law?, Gerald Postema, Paul W. Grimm

Bolch Judicial Institute Publications

No abstract provided.

Reforming H-2a: Protecting Migrant Workers Before Arrival On U.S. Farms, Isabella J. Cheng

Duke Law Journal

Migrant farmworkers who seasonally enter the United States to work on farms using H-2A visas suffer well-documented abuses. Dependent on their employers for legal status, housing, transportation, and food, H-2A workers succumb to a power dynamic that keeps workers from speaking out for fear of being fired and possibly deported. However, little academic attention has been paid to the problematic dynamics that trap these workers in a cycle of abuse long before they even set foot on U.S. farms, starting with the H-2A recruitment process. This process, which often starts in Mexico, involves an opaque and complicated network of recruiters …

Justice On The Home Front: Domestic Prosecution Of Foreign Combatants During Wartime, Katherine K. French

Duke Law Journal

Russia's 2022 full-scale invasion of Ukraine produced a shock to the world order. The conflict has led to immense suffering for the Ukrainian people, many of whom have fled their homes or are directly involved in the fighting. In some instances, the use of improper tactics by both sides exacerbates the devastation, even amounting to war crimes. Although the war rages on, justice efforts have already begun. International tribunals and foreign countries’ domestic courts have initiated investigations into alleged violations of international law and prosecutions of the perpetrators. The most significant effort, though, has been within Ukraine’s own courts. These …

The Road To Slow Deportation, Elana Fogel, Kate Evans

Duke Law Journal

Traffic stops are the most common form of police-initiated contact with members of the public. The sheer volume of traffic stops combined with their use as a pretext to surveil Black and Latiné communities has generated substantial scholarship and movements for police reform. Yet this commentary assumes that the subjects of traffic stops are U.S. citizens. At the same time, scholarship on the intersection of criminal and immigration law and the convergence of their enforcement methods focuses on traffic stops as the immediate entry point for removal proceedings. This Article addresses the gap in literature by describing the experience of …

Guns, Judges, And Trump, Rebecca L. Brown, Lee Epstein, Mitu Gulati

Duke Law Journal Online

The Second Amendment landscape is widely perceived to have changed as a result of two cases, District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen. But how much did it change and in what ways? Empirical work on these questions has been sparse. This Essay reports on a preliminary look at the data. Although this is a developing story, the impact of these cases appears to have been substantial, and not only by increasing the sheer number of gun cases in the courts. More significant is the way that the Court’s new historical test …

Fair Notice Is A Sociopolitical Choice, Alexander Zhang

Duke Law Journal

This Article reframes a deadlocked debate about “fair notice” as a justification for statutory interpretation methods by developing a historical account of a crucial, overlooked dimension: legislatures’ and laypeople’s value judgments about notice. On one side of the debate are idealists who contend, on due process grounds, that judges should embrace interpretive methods and theories based on how well they promote fair notice. On the other side are realists who counter, on empirical grounds, that perfect notice is impossible. Each side continues to talk past the other because we lack a fleshed-out framework for evaluating when the fair-notice basis of …

Finding A Purpose In Bruen's World, Timothy J. Southam

Duke Law Journal

Fewer than seven months after the Highland Park mass shooting, the Illinois General Assembly passed the Protect Illinois Communities Act (“PICA”), a statewide ban on assault weapons and large-capacity magazines. Gun-rights advocates have characterized PICA (and other similar strong state gun laws) as unconstitutional laws intentionally enacted to defy the Supreme Court’s protection of the right to keep and bear arms. In response to such severe accusations, especially in light of New York State Rifle & Pistol Ass’n v. Bruen, this Note assesses these claims using PICA as a case study. Through an investigation of its legislative history—an investigation that …

By Scalpel Or Chainsaw: The Status Of Pre-Bruen Case Law In The Lower Courts, Thomas Moy

Duke Law Journal

The Second Amendment is in a state of flux. After the U.S. Supreme Court decided District of Columbia v. Heller, the lower federal courts coalesced around a means-end scrutiny test to judge the constitutionality of gun control laws. But enter New York State Rifle & Pistol Association v. Bruen. The analysis now centers around a test that focuses on text, history, and tradition. Courts have a new test with few guidelines about how to apply it.

Given the lack of guidance, courts have struggled to answer a key question: What pre-Bruen case law is still valid? Utilizing the undocumented immigrant …