Digital Commons Network^™

State Public Morality Regulation And The Dormant Commerce Clause, Douglas Kysar

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Note From The Editor

Alaska Law Review

No abstract provided.

"Still Broken": Alaska Rule Of Professional Conduct 8.4(F) And (G)'S Insufficient Response To Workplace Harassment By Lawyers, Sam Turner

Alaska Law Review

A report by Women Lawyers On Guard, entitled "Still Broken," reported the results of a 2019 survey about sexual harassment and misconduct in the legal profession. It concluded that issues relating to sexual harassment and misconduct in the legal profession had not improved in the past thirty years. This Article looks at the Alaska Rules of Professional Conduct's rule regarding harassment and discrimination by lawyers and argues that the rule does not sufficiently address workplace harassment by lawyers.

Alaska Rule of Professional Conduct 8.4(f), enacted in 2021, prohibits harassment or invidious discrimination by a lawyer "in the lawyer's dealings with …

Facial Recognition Ai: Alaska Is An Ideal Forum For Introducing Regulation, Sarah Edwards

Alaska Law Review

As artificial intelligence becomes increasingly commonplace, we are all exposed to shockingly dystopian forms of surveillance. This Note details the unique danger of facial recognition technologies powered by artificial intelligence. First, this Note examines the rise of facial recognition technologies in both the public and the private sector. It illustrates this phenomenon by highlighting a few key players in both the development and implementation of facial recognition. Second, it proceeds by examining the current privacy landscape in Alaska. Alaska's unique focus on privacy rights makes the State a promising forum for regulation. Finally, it provides possible statutory and judicial solutions …

Blight Made Right: Defects In State Condemnation Laws And A Roadmap For Reform In Alaska And Beyond, Sam Spiegelman

Alaska Law Review

Susette Kelo's old house in New London, Connecticut is long gone, as is the entire Fort Trumbull neighborhood that once surrounded it. In 2005, the U.S. Supreme Court decided a case—Kelo v. City of New London—that cost her and her neighbors their homes and sparked a wave of state-level reforms to mitigate its potential damage to private property. In Kelo, the Court held that "economic development" as a "public purpose" was also a legitimate "public use" under the Fifth Amendment's Takings Clause, which provides "nor shall private property be taken for public use, without just compensation." As Justice …

Alaska's Recognition Of Tribes: Alaska House Bill 123 And Tribal Trust Lands, Gloria R. Jacobsen

Alaska Law Review

For decades, the United States Department of the Interior's land acquisition regulations included an "Alaska Exception" that barred acquisition of land into trust in Alaska apart from those acquisitions made for the Metlakatla Indian Community. Although the "Alaska Exception" was initially removed from the regulations in 2014, the fight continues over land-into-trust acquisitions within Alaska. Throughout these debates, the state of Alaska has consistently opposed land-into-trust acquisitions. This Practitioner Guide provides an overview of the recent history of land-into-trust acquisitions in Alaska and analyzes the juxtaposition of the intent behind Alaska's "State Recognition of Tribes" in House Bill 123 and …

Unintentional Algorithmic Discrimination: How Artificial Intelligence Undermines Disparate Impact Jurisprudence, Vincent Calderon

Duke Law & Technology Review

Artificial intelligence holds the capacity to revolutionize the economy by capturing efficiencies. These benefits, ostensibly, should pass down to consumers, thereby benefitting the general public. But the immense complexity of AI systems is bound to introduce legal hurdles for plaintiffs and frustrate our disparate impact jurisprudence. Specifically, demonstrating causation and proffering a less discriminatory alternative are herculean tasks for a plaintiff seeking to prove a disparate impact upon which legal relief may be granted. The courts have already begun to wrestle with these issues, primarily in the housing and employment sectors. With the rapid surge of AI systems, courts should …

Can Chatgpt Keep A Secret? An Evaluation Of The Applicability And Suitability Of Trade Secrecy Protection For Ai-Generated Inventions, Gina Campanelli

Duke Law & Technology Review

The rising popularity of generative artificial intelligence has sparked questions around whether AI-generated inventions and works can be protected under current intellectual property regimes, and if so, how. Guidance from the U.S. Copyright Office and recent court cases shed some light on the applicability of copyright and patent protection to AI-generated products; namely “authors” and “inventors” are limited to natural persons. But further developments in copyright and patent law are still lagging behind generative-AI’s rapid growth. Trade secrecy emerges as the most viable path forward to protect AI-generated works and inventions because ownership of trade secrets is not limited to …

Decoding Cryptocurrency Taxes: The Challenges For Estate Planners, Max Angel

Duke Law & Technology Review

In this article, Angel explores the unique challenges of estate planning with cryptocurrency, which include accurately valuing those assets, preserving their value, and addressing the complex tax implications of transferring cryptocurrency to heirs.

In Conversation About The U.S. Holocaust Memorial Museum’S New Mass Atrocity Prevention Training, Tatiana Varanko, Ann O’Rourke

Judicature International

No abstract provided.

Informationalism Beyond Managerialism, Salomé Viljoen

Law and Contemporary Problems

No abstract provided.

The Letter And Its Spirit: Interpretive Dynamism And Mediating Change In Biblical And Constitutional Law, Caleb V. Strawn

Law and Contemporary Problems

No abstract provided.

Beyond Patents: Incentive Strategies For Ocean Plastic Remediation Technologies, Jacob Stotser

Duke Law & Technology Review

With a garbage truck’s worth of plastic being dumped in the ocean each minute, there is a dire need for effective technological solutions aimed at mitigating the marine plastic pollution problem. However, the reliance of the U.S. patent system on market demand to incentivize this type of innovation has proven insufficient in light of the peculiarities of “green” technologies. To remedy this, this article proposes a multi-faceted incentivization approach that looks beyond the U.S. Patent and Trademark Office to stimulate the development of remediation technologies through comprehensive regulatory interventions, the establishment of prize funds and other alternative incentive mechanisms, and …

Discharging Equity: Harrington V. Purdue Pharma L.P. And The Validity Of Nonconsensual Third-Party Releases, Andrew Klauber

Duke Journal of Constitutional Law & Public Policy Sidebar

In September 2019, Purdue Pharma L.P. petitioned for bankruptcy in the Southern District of New York. Purdue, which the Sackler family had owned and operated for decades, developed and aggressively marketed addictive opioid products, contributing to the modern opioid epidemic. The tsunami of litigation arising from the opioid epidemic gave rise to claims against Purdue and the Sackler family estimated to total more than $40 trillion, causing Purdue to petition for Chapter 11 bankruptcy.

In Purdue’s plan of reorganization, it employed a nonconsensual third-party release to discharge claims against the Sackler family. Nonconsensual third-party releases controversially enjoin parties to a …

Democratizing Administrative Law, Joshua D. Blank, Leigh Osofsky

Duke Law Journal

When agencies make statements about the law, people listen. This insight yields a fundamental tension. According to one set of views, such agency statements, and their ability to influence public behavior, are critical not only for a well-functioning bureaucracy but also for our entire system of government. According to another set of views, this agency power, if left unchecked, could border on tyranny.

Administrative law responds to this tension through an extensive, purportedly comprehensive, framework that attempts to police agency statements. The framework places different types of agency statements into different legal categories. On the one hand, legislative rules make …

Administrative Reliance, Haiyun Damon-Feng

Duke Law Journal

Presidential regime change and the federal policy shifts that accompany it raise significant questions concerning continuity, stability, and governance in the administrative state. Presidential policymaking through the administrative state may generate serious reliance interests recognized under administrative law (what this Article calls “administrative reliance”), which agencies must consider prior to enacting policy change. Administrative reliance has developed into a robust form of judicial review over agency action. Administrative reliance has been invoked in highly politicized contexts, such as immigration law, to challenge a sitting administration’s termination of a prior administration’s policies. Despite its powerful and consequential effects, the doctrine of …

Regulatory Body Shops, Bridget C.E. Dooling, Rachel Augustine Potter

Duke Law Journal

Agencies do not always write their own rules. Contractors assist agencies in nearly all tasks relating to rulemaking, including reviewing public comments, conducting specialized research, and writing regulatory text. Despite perceptions that contractors’ roles are entirely ministerial, the reality is that contractors fulfill many more functions in the rulemaking process than is commonly understood, including everything right “up to pushing the big red policymaking button,” as one agency employee put it. The use of contractors in rulemaking fits within a broader pattern of increased government reliance on service contractors. Scholars have documented a bevy of governance concerns relating to ethics, …

Barcoding Bodies: Rfid Technology And The Perils Of E-Carceration, Jackson Samples

Duke Law & Technology Review

Electronic surveillance now plays a central role in the criminal legal system. Every year, hundreds of thousands of people are tracked by ankle monitors and smartphone technology. And frighteningly, commentators and policymakers have now proposed implanting radio frequency identification (“RFID”) chips into people’s bodies for surveillance purposes. This Note examines the unique risks of these proposals—particularly with respect to people on probation and parole—and argues that RFID implants would constitute a systematic violation of individual privacy and bodily integrity. As a result, they would also violate the Fourth Amendment.

Virtual Gaming, Actual Damage: Video Game Design That Intentionally And Successfully Addicts Users Constitutes Civil Battery, Allison Caffarone

Duke Law & Technology Review

In recent years, there has been increased academic interest in both the neurological effects of compulsive gaming and the potential tort liability of game developers who scientifically engineer games in order to addict users. Scholars from various disciplines are currently debating the scope and potential solutions to the problems associated with Gaming Disorder, now a globally recognized illness. This article contributes to this discussion by offering a multidisciplinary analysis of the scope of video game addiction, its neurological bases, and its relation to the legal rights and responsibilities of victims and game developers. In addition, this article explores the practical …

The Monetary Structure Of Economic Activity: A Constitutional Analysis, Christine Desan

Law and Contemporary Problems

No abstract provided.

Bargaining With Giants And Immortals: Bargaining Power As The Core Of Theorizing Inequality, Marietta Auer

Law and Contemporary Problems

No abstract provided.

Concepts, Contexts, Contests, Roy Kreitner

Law and Contemporary Problems

No abstract provided.

Methodological Tensions In Understanding Markets, Marietta Auer, Hanoch Dagan, Roy Kreitner, Ralf Michaels

Law and Contemporary Problems

No abstract provided.

The Epicycles Of General Equilibrium Theory, David Singh Grewal

Law and Contemporary Problems

No abstract provided.

Bodies Of Evidence: The Criminalization Of Abortion And Surveillance Of Women In A Post-Dobbs World, Jolynn Dellinger, Stephanie Pell

Duke Journal of Constitutional Law & Public Policy

In the wake of Dobbs v. Jackson Women's Health Organization, state laws criminalizing abortion raise concerns about the investigation and prosecution of women seeking reproductive health care and about the surveillance such investigations will entail. The criminalization of abortion is not new, and the investigation of abortion crimes has always involved the surveillance of women. However, state statutes criminalizing abortion coupled with surveillance methods and technologies that did not exist pre-Roe present new and complex challenges surrounding the protection of women's privacy and liberty interests—in addition to the interests of those who may provide or help pregnant people obtain reproductive …

Disentangling Race And Politics: Racial Gerrymandering In South Carolina's First Congressional District, Matthew Poliakoff

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2020 Census, South Carolina's Republican-controlled legislature redrew the boundaries for Congressional District 1, historically anchored in Charleston County. After thirty-thousand African American voters were moved out of District 1 and into District 6, the South Carolina State Conference of the NAACP challenged the new map as an unconstitutional racial gerrymander. A three-judge district court panel agreed, finding that race predominated above other factors in the map redraw. On appeal, the question remains not only whether the state legislature used race above other factors in its map design, but also how plaintiffs are expected to prove these claims in …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Adult Rights-Bearing Archetype And How It Stifles Young People's Equal Protection, Catherine E. Smith

Duke Journal of Constitutional Law & Public Policy

American constitutional law is defined by a rights-bearing archetype that prioritizes adults—and the Equal Protection Clause is no exception. The Supreme Court has recognized children as constitutional persons and proclaimed that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone," but courts mostly see autonomous, rational, individualistic, income-generating grown people as rights-bearers. For the first time, this article reveals six adult-rights-bearing analytical traps that limit children's equal protection, and proposes jettisoning the rigid Carolene Products test in favor of a nascent youth-based framework. Instead of shoehorning children's rights into a web of laws and principles designed …

"The Government Doesn't Take The Gay Community Seriously": The Failure Of Fema To Account For Lgbtq+ Individuals In Disaster Mitigation And Recovery, Alyssa Curcio

Duke Environmental Law & Policy Forum

No abstract provided.

The Lack Of Responsibility Of Higher Education Institutions In Addressing Phishing Emails And Data Breaches, Muxuan (Muriel) Wang

Duke Law & Technology Review

Higher education institutions (HEIs) are highly susceptible to cyberattacks, particularly those facilitated through phishing, due to the substantial volume of confidential student and staff data and valuable research information they hold. Despite federal legislations focusing on bolstering cybersecurity for critical institutions handling medical and financial data, HEIs have not received similar attention. This Note examines the minimal obligations imposed on HEIs by existing federal and state statutes concerning data breaches, the absence of requirements for HEIs to educate employees and students about phishing attacks, and potential strategies to improve student protection against data breaches.