Digital Commons Network^™

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

Faculty Scholarship

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …

Cost–Benefit Analysis, Matthew D. Adler

Faculty Scholarship

This chapter will address the place of cost–benefit analysis (CBA) in constitutional law, by way of a case study. I’ll describe, and puzzle over, CBA’s absence from most U.S. constitutional doctrines, notwithstanding its major role in U.S. administrative law. The general questions that I seek to illuminate are by no means limited to the U.S. How might CBA figure within the tests that constitutional courts use to adjudicate alleged violations of constitutional rights? How might it serve to determine the structure of constitutional institutions? Would it be justified for CBA to play these doctrinal roles? But these general questions are …

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Faculty Scholarship

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …

Artificial Intelligence And Procedural Due Process, Brandon L. Garrett

Faculty Scholarship

Artificial intelligence (AI) violates procedural due process rights if the government uses it to deprive people of life, liberty, and property without adequate notice or an opportunity to be heard. A wide range of government agencies deploy AI systems, including in courts, law enforcement, public benefits administration, and national security. If the government refuses to disclose the reasons why it denied a person bail, public benefits, or immigration status, serious due process concerns arise. If the government delegates such tasks to an AI system, the due process analysis does not change. One asks whether a person received adequate notice and …

Narrowly Person-Affecting Axiology: A Reconsideration, Matthew D. Adler

Faculty Scholarship

A narrowly person-affecting (NPA) axiology is an account of the moral ranking of outcomes such that the comparison of any two outcomes depends on the magnitude and weight of individuals’ well-being gains and losses between the two. This article systematically explores NPA axiology. It argues that NPA axiology yields an outcome ranking that satisfies three fundamental axioms: Pareto, Anonymity and, plausibly, Pigou-Dalton. The axiology is neutral to non-well-being considerations (desert); and (assuming well-being measurability) leads to the Repugnant Conclusion (RC). In short, NPA axiology provides a grounding for Paretian, equity-regarding welfarism, albeit one that includes the RC.

Presidential Regulation, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade in or hold the personal information of U.S. citizens, and companies that can increase the production of energy-efficient equipment and technology. During his first term, President Trump regulated the kinds of technologies that U.S. telecommunications companies can buy and sell, placed restrictions on the electrical …

History And Tradition As Heightened Scrutiny, Andrew Willinger

Faculty Scholarship

The Supreme Court is turning to methodologies privileging text, history, and tradition, or THT, to interpret and implement various constitutional provisions. The Court has recently endorsed historically-focused approaches to determine how the Second Amendment protects the right to keep and carry a firearm, how the First Amendment protects the rights to free speech and freedom of religion, and whether the Due Process Clause protects reproductive autonomy, among other questions.

Much scholarship and popular commentary surrounding THT portrays the methodology as sui generis: presenting unique analytical challenges and impervious to direct comparison to existing doctrinal approaches. However, the jurist most …

A Critique Of Findings On Gun Ownership, Use, And Imagined Use From The 2021 National Firearms Survey: Response To William English, Deborah Azraek, Joseph Blocher, Philip J. Cook, David Hemenway, Matthew Miller

Faculty Scholarship

For a paper that has not yet been through peer review or even been formally published, William English’s “2021 National Firearms Survey” has been remarkably prominent in gun rights advocacy and scholarship. As of December 2024, it has been cited in roughly sixty-five briefs, invoked at oral argument in the Supreme Court and multiple courts of appeals, and regularly cited in public writings and published academic work.

This response is offered in the spirit of a peer review. Our focus is on methodological issues, questionable statistical results, and problematic conclusions. Because of serious methodological issues, English’s draft fails to provide …

Reconstructing The Meaning Of "Forty Acres And A Mule", Cynthia Nicoletti

Faculty Scholarship

This article offers a new interpretation of the land grant to freedpeople contained in General William T. Sherman’s Special Field Orders No. 15. Issued in January 1865 at the end of the Civil War, Sherman’s Orders are widely considered to be the origin of the government promise to endow freedpeople with “forty acres and a mule” as they transitioned from slavery to freedom. As such, the Special Field Orders have played a central role in shaping the cultural memory of the Civil War, historical accounts of Reconstruction, and contemporary debates over reparations for slavery. They have also been misunderstood and …

Building Successful Justice Worker Programs: Emerging Insights From Research And Practice, Rebecca L. Sandefur, Matthew Burnett

Alaska Law Review

America's deep access to justice crisis has long seemed intractable. But new and potentially transformative models for giving people access to legal services and to their own law are emerging around the country. Among the most promising of these are community justice workers. These are people already trusted in their communities, such as social workers, librarians, health aides, community leaders, teachers, mediators, and everyday citizens who are trained to help people understand and act on the legal challenges involved in critical life issues. These issues implicate basic needs like nutrition, health, income security, shelter, education, and care of dependents, and …

Power-Conscious Legal Work: Building A Roadmap For Rural Access To Justice Through Trust, Accountability, & Trauma-Informed Practices, Cayley Balser, Antonio M. Coronado

Alaska Law Review

The importance of trauma-informed practices has never been greater. In the United States, most of the population has experienced at least one traumatic event in their life. Experiencing a traumatic event may have long-lasting impacts on physical health, including disruption to all major system functioning. Mental health impacts may include behavior changes, memory challenges, inability to complete routine tasks, difficulty with interpersonal relationships, and other symptoms associated with Post Traumatic Stress Disorder. Extant literature examines the association between past trauma experiences and later interactions with the civil justice system, including litigant conceptualizations of legal system engagement as a traumatic event …

Transgenerational Legislative Awareness Issues In Children's Food, Yi Seul Kim

Duke Environmental Law & Policy Forum

No abstract provided.

Toward A Broader Theocentric Environmentalism, Melvin L. Otey

Duke Environmental Law & Policy Forum

No abstract provided.

Justice Beyond The State, Kirsten Matoy Carlson

Alaska Law Review

For decades the intersectionality of extreme rurality and cultural difference has led scholars and tribal leaders to advocate for recognition of local authority as a solution to the justice gap in rural Alaska. Local control often means developing courts in and extending jurisdiction to Alaska Native villages. This Article evaluates strengthening tribal courts or justice systems through restorations of jurisdiction as a way to address access to justice issues in Alaska Native villages. It argues that restorations of jurisdiction and the development of tribal justice systems must ensure that Alaska Natives define the justice provided in their communities. Restorations of …

Next Steps In Online Courts: Accelerating Access Tojustice Through Court Technology, J.J. Prescott

Alaska Law Review

For more than a decade, state courts have been expanding access to justice by adopting online dispute resolution (ODR) platforms and other outward-facing communication technologies. At a deep level, these reforms aim at improving society by bolstering the rule of law. At a surface level, these innovations recognize that the justice system works better when courts and law are easier and less costly to understand and use. In important respects, these efforts have been a success. The accessibility of many state courts is considerably more robust today than it was ten years ago, at least for small-stakes cases, like traffic …

Alaska's Arm-Of-The-Tribe Jurisprudence: Ito V. Copper River Native Association And Its Contribution To A More Uniform System Of Justice In America, Jack Jeffrey, Erik Gordon

Alaska Law Review

The Alaska Supreme Court recently overhauled its approach to arm-of-the-tribe sovereign immunity in Ito v. Copper River Native Association. The Court no longer utilizes financial insularity as a dispositive inquiry; instead, the Court has adopted a five-factor test that takes into account (1) the purpose of the entity’s creation, (2) the method of the entity's creation, (3) the degree of control the tribe maintains over the entity, (4) tribal intent concerning sharing sovereign immunity, and (5) financial relationship. This decision serves as a positive development for two reasons: (1) it is a step towards the elimination of a dual-track …

Textualism In Practice, Anita S. Krishnakumar

Duke Law Journal

Textualism has won the statutory interpretation wars. But despite this theoretical and methodological victory, textualism as practiced on the ground has proved less transformational than expected. Indeed, contrary to what textualist interpretive philosophy long has promised, the widespread embrace of textualism by judges on the ground has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—courts will invoke to construe a statute in a particular case. Part of the reason for this lack of predictability is that textualism as practiced often differs significantly from the approach that textualism as an interpretive philosophy …

Relocating Location Incentives, Brian Highsmith

Duke Law Journal

In recent years, a growing share of state and local budgetary resources has been diverted to a small number of firms through multibillion-dollar location incentive megadeals, as represented by Amazon’s HQ2 search and Wisconsin’s Foxconn boondoggle. These companies have become adept at devising new mechanisms for extracting the public resources of local communities to secure a competition advantage over their market rivals. But legal scholarship has not considered the possibility that dominant firms’ incentive demands might implicate the statutory protections enacted to protect against unfair methods of competition and corporate dominance more broadly. This Article develops a historical, economic, and …

In Conversation With Petr Angyalossy, Chief Justice Of The Czech Republic, Petr Angyalossy, David Collins

Judicature International

No abstract provided.

Volume 108, Number 2 (2024)

Judicature

No abstract provided.

Something Is Rotten In The State Of Healthcare: Accountability, Affordability, And The Court Of Public Opinion, Isabelle Breier

Duke Law & Technology Review

Many countries worldwide recognize a right to health and provide legal recourse for securing that right. By contrast, for many Americans, there is no legal right or remedy that enables them to access healthcare if they cannot afford it. While there are some statutes and measures in place, such as the Emergency Medical Treatment and Active Labor Act (EMTALA) and Medicaid, coverage remains piecemeal and access to healthcare is not guaranteed. Conditioning people’s access to healthcare upon their ability to pay violates the foundational bioethical principle of justice. In the United States, individuals and advocates use social media to fill …

To Legitimacy And Beyond: A Reform Agenda To Restore Public Confidence In The Federal Courts, Charles Gardner Geyh

Law and Contemporary Problems

No abstract provided.

Public Confidence, Judges, And Politics On And Off The Bench, Bruce A. Green, Rebecca Roiphe

Law and Contemporary Problems

No abstract provided.

Mere Words: The Role Of Bar Organizations In Maintaining Public Support For The Judiciary, Leslie C. Levin

Law and Contemporary Problems

No abstract provided.

The Role Of Accountability In Preserving Judicial Independence: Examining The Ethical Infrastructure Of The Federal Judicial Workplace, Susan Fortney

Law and Contemporary Problems

No abstract provided.

How The Politics Of Federal Judicial Selection Affect Judicial Diversity And What This Means For Public Confidence In Courts, Matthew E. Baker, Christina L. Boyd, Jennifer Hickey, Adam G. Rutkowski

Law and Contemporary Problems

No abstract provided.

Judges And The Regulatory State: Trends Of Resistance And Restraint, Luke P. Norris

Law and Contemporary Problems

No abstract provided.

The Psychology Of Persuasive Precedent, Jeffrey J. Rachlinski, Andrew J. Wistrich

Law and Contemporary Problems

No abstract provided.

Supreme Impropriety? Assessing The Justices' Conduct, Veronica Root Martinez

Law and Contemporary Problems

No abstract provided.