Digital Commons Network^™

Using Ai To Identify National Security Threats: A Holistic Examination Of The Legal Risks And Increased Need For Regulation, Skylar Mcvicar

Duke Journal of Constitutional Law & Public Policy Sidebar

Artificial intelligence (AI) is integrating rapidly into daily practice, including in the national security sector. AI has the potential to improve bureaucratic efficiency, enhance military intelligence and threat assessment, and develop autonomous vehicles and weapons, making it a revolutionary tool in national security. Since AI implementation is a relatively recent phenomenon, there is currently limited governmental regulation in place to safeguard against potential violations of civil liberties and other legal risks. Given AI's capacity to infringe on certain civil liberties such as the Fourth Amendment right to privacy and the Fourteenth Amendment protection against discriminatory policies, establishing strong oversight measures …

Fossil-Fueled Failure: How Nonrenewable Energy Policy Will Cost The United States The Ai Race, Kayla Landeros

Duke Law & Technology Review

This Article examines the structure and regulation of the United States electricity industry in light of accelerating electricity demand driven by Artificial Intelligence (“AI”) and digitalization. It argues that the One Big Beautiful Bill Act and related executive actions have exacerbated existing structural weaknesses within the nation’s energy governance framework by repealing renewable energy incentives, privileging nonrenewable generation, and reinforcing the instability of an executive dominated regulatory model. Through a comparative analysis, the Article contrasts the United States’ fragmented, market-based approach with China’s centralized, statute-based framework, which integrates renewable energy development, grid expansion, and AI infrastructure into a cohesive national …

Juror Contact In The Digital Age: The Linkedin Problem, Drew Thornley

Duke Law & Technology Review

This Article examines an evolving dispute in professional responsibility: whether a lawyer makes a prohibited communication when viewing a juror’s LinkedIn account. When one LinkedIn user views another’s profile, the platform automatically notifies the profile owner and may include the viewer’s identity. Ethics rules are currently divided on whether or not this notification would count as a prohibited juror communication. On one hand, the ABA and some state bar associations explicitly allow attorneys to view social-media profiles of jurors even when the lawyer’s identity is revealed. On the other hand, some bar associations and courts believe these automatic notifications violate …

The Myth Of Sufficient Technological Barriers: Reevaluating The "Gates-Up-Or-Down" Analogy In Data Scraping, Yucen Zhong

Duke Law & Technology Review

In Van Buren v. United States, the Supreme Court adopted a “gates-up-or-down” analogy from physical trespass law to define “authorization” under the Computer Fraud and Abuse Act (CFAA). Despite historical shifts in judicial interpretation, courts have recently relied on this binary framework to interpret authorization as it applies to online trespass. But courts have struggled to apply this binary inquiry while still accounting for complications in modern authentication technologies. When pursuing a code-based inquiry based on the gates-up-or-down analogy, courts risk oversimplifying the dynamic nature of online trespass. Such an approach fails to account for how modern authentication measures—such as …

Historians For Hire: Evaluating Historian Expert Witnesses After Bruen, Jake Mcauliffe

Duke Law Journal

The Supreme Court in New York State Rifle & Pistol Association v. Bruen introduced a history-and-tradition test for Second Amendment challenges, directing courts to compare modern firearm regulations to past ones. To conduct this historical inquiry, litigants and judges have increasingly turned to professional historians as expert witnesses. This Note qualitatively examines how historian experts are used and received in post-Bruen federal litigation. It finds that a small group of repeat players—sixteen historians—make up this emerging field, typically appearing exclusively for either challengers or governments. These historians serve primarily in civil litigation, leaving a relative expertise gap in criminal cases, …

Falsifying Tradition, Darrell A. H. Miller

Duke Law Journal

From cases spanning gun rights, reproductive freedom, religious liberty, and personal jurisdiction; to separation of powers and other structural features of the Constitution, courts increasingly rely on tradition to guide their decisions. Often, judges appeal to tradition in a vaguely empirical way, as “facts to study, not convictions to demonstrate about,” in the words of Justice Antonin Scalia. Yet, for a claim that purports to be factual, there’s very little agreement, or even analysis, about what renders this factual assertion—tradition—true or false. This Article tackles that basic issue.

Part I surveys the ways in which courts use tradition in different …

Historical Facts And Constitutional Law: New Challenges For Lawyers, Judges, And Scholars, Joseph Blocher, Brandon L. Garrett, H. Timothy Lovelace Jr.

Duke Law Journal

No abstract provided.

Unwanted Histories, Christen Hammock Jones, Karen M. Tani

Duke Law Journal

The Supreme Court’s turn to history as a method of constitutional decisionmaking has both intrigued and alarmed professional historians, for reasons now well-rehearsed in the literature. This Article takes as a given that history is now part of judges’ work. It then invites judges to think more expansively about the type of history they could—and perhaps should—be producing. This task, in turn, means engaging with some of the central questions about methodology and sources that preoccupy professional historians.

This Article focuses on a source base that historians routinely rely upon but that courts have shied away from: personal accounts of …

Tradition Without Text?, Daniel B. Rice

Duke Law Journal Online

No abstract provided.

Towards State Legislative Codification Of The Wpath Soc Guidelines, Suresh Hanubal

Duke Journal of Constitutional Law & Public Policy Sidebar

Transgender rights have increasingly come under assault in the United States. As of early 2026, twenty-seven states have passed either bans or restrictions on access to gender-affirming care. The issue has also become a central focus at the federal level. The U.S. Supreme Court decided United States v. Skrmetti, a case concerning the legality of state restrictions on gender-affirming care, in the 2024 – 2025 term. Moreover, the second Trump administration has been clear that rolling back transgender rights, including access to gender-affirming care, is a priority. In this political environment, where access to gender-affirming care in the United States …

Law As A Form Of Life: On Capitalism And Critical Theory, Justin Deystone

Law and Contemporary Problems

No abstract provided.

Foreword, Jedediah Britton-Purdy, Justin Deystone

Law and Contemporary Problems

No abstract provided.

Legal Method And Political Time, Odette Lienau, Aziz Rana

Law and Contemporary Problems

No abstract provided.

Marx, Marxism, And The Critique Of Law, Umut Özsu

Law and Contemporary Problems

No abstract provided.

Does Law Constitute Society?, Jeremy Kessler

Law and Contemporary Problems

No abstract provided.

Beyond The Market: What Does It Mean To Theorize Capitalism?, Amy Kapczynski

Law and Contemporary Problems

No abstract provided.

Indeterminacy And The Political Economy: Cls, Legal Politics, And Defetishizing The Lpe Debate, Akbar Rasulov

Law and Contemporary Problems

No abstract provided.

Capitalism & Jurisprudence, Paulo Barrozo

Law and Contemporary Problems

No abstract provided.

Falling Flat: Why Ai Cannot Free Melodies From Copyright Protection With “All The Music” As An Example, Hayley Huber

Duke Law & Technology Review

As artificial intelligence (AI) continues to surprise us with its humanlike abilities, it raises the question of whether AI-created music can or should be afforded legal protection. Particularly, how should copyright law treat melodies produced by an AI designed to algorithmically generate every possible melody? This article seeks to answer that question, ultimately concluding that AI-produced melodies are not copyrightable and that melodies are not merely facts undeserving of copyright protection, but something valuable to mankind and worth protecting by law.

The article explores Damien Riehl’s All the Music project (ATM) and his arguments for why ATM’s outputs should be …

Scaling Sustainable Propellants To Address Rocket Emissions: Lessons From The U.S. Aviation Industry, Zhizhou (Josie) Liu

Duke Law & Technology Review

The rapid growth of the U.S. commercial space industry has exposed a profound regulatory gap in addressing rocket emissions. By releasing greenhouse gases and particulates like black carbon, alumina, and water vapor, rocket launches not only contribute to climate change but also accelerate stratospheric ozone depletion. The U.S. aviation industry encountered similar environmental challenges decades ago, which eventually prompted legal and policy frameworks to curtail aviation emission through sustainable fuel technologies. Unlike aviation, however, the space industry now operates in a legal vacuum, with no binding international environmental standards or domestic regulations targeting rocket atmospheric pollution. As rocket emissions penetrate …

Testing Dobbs’S Democracy Premise: Can State Constitutions Be Amended To Reflect Popular Opinion On Abortion?, Isabel Sperber

Duke Law Journal

When the Supreme Court eliminated a federal constitutional right to abortion in Dobbs v. Jackson, it relied in significant part on the notion that abortion is an issue best left to the political process. Abortion has since become a main character in the national political conversation, with state legislatures around the United States embracing a wave of abortion-related legislation. The shifting landscape of abortion rights is not limited to the legislative process; voters are increasingly relying on state constitutional amendments to replace the protections previously provided by the federal Constitution. Political actors point to these amendments, typically enacted through a …

How Big Is Copyright’S Second Bite?: An Empirical Assessment Of Copyright Reversion, Christopher Buccafusco, Brent Lutes, S. Sean Tu

Duke Law Journal

Copyright law is unusual. Unlike virtually every other area of U.S. law, the Copyright Act allows people to change their minds and unilaterally cancel otherwise valid contracts. Thirty-five years after transferring or licensing their copyrights to others, authors—or their heirs—can terminate the grant for any reason, and the copyright reverts to its original owners. These termination of transfer provisions aren’t just unusual as a matter of law generally; they are also atypical for copyright law. While most of copyright law is justified on the grounds that it improves social welfare, these provisions are explicitly based on redistributive concerns—giving poorly situated …

Deferred Action For Workers? ¡Dale!, Avery Allen

Duke Law Journal

Immigration-related retaliation is a well-documented consequence for noncitizen workers who report dangerous and unlawful working conditions. Many noncitizen workers are tethered to their employers for legal status and work authorization, and this power dynamic often prevents them from speaking out for fear of being fired or deported. Little academic attention has been paid to a Biden-era initiative designed to assuage the threat of immigration-related retaliation against workers. Deferred Action for Labor Enforcement (“DALE”), created by the Department of Homeland Security in 2023, provides a streamlined process for workers involved in labor investigations to seek deferred action and receive related benefits, …

Eliminating The Fix In Vertical Merger Enforcement, Jessica Breznick

Duke Law Journal

As antitrust enforcers have increased their efforts to block vertical mergers, courts have been forced to grapple with the challenges of predicting the anticompetitive effects of vertical integration, as required by Section 7 of the Clayton Act. Merging parties have complicated this task by “litigating the fix”—proffering evidence that they have designed measures to prevent anticompetitive outcomes outside the consent decree process. Because the anticompetitive problems of vertical mergers do not lend themselves to structural relief, vertically-merging parties have instead proposed fixes aimed at constraining the parties’ post-merger conduct. Such conduct fixes come in the form of contractual agreements with …

Innovating For Access: Ai-Enhanced Triage & Intake For Legal Services Organizations, Heidi Behnke

Duke Center on Law & Technology

Artificial intelligence (AI) offers opportunities to meaningfully narrow the access to justice gap by improving the ability of Legal Services Organizations (LSOs) to connect individuals with pro se resources and more effectively connect with individuals who could not otherwise advocate for themselves. Some LSO early adopters have already developed or are in the process of developing such tools. Others are unsure where or how to start.

The results of semi-structured interviews of LSO staff, technology vendors, and leaders/experts in fall 2025 provide information that may assist LSOs in responsibly integrating AI-tools into their triage and intake systems. This paper includes …

Destabilization Or Clarification: The Potential Impact Of Chiles V. Salazar On Nifla And Other First Amendment Jurisprudence, Zhihan Xu

Duke Journal of Constitutional Law & Public Policy Sidebar

In 2019, the Colorado General Assembly passed the Minor Conversion Therapy Law (MCTL), a statute which prohibits mental health professionals from engaging in conversion therapy for minors. Three years later, Kaley Chiles, a licensed professional counselor and addiction counselor, filed a pre-enforcement challenge and sought a preliminary injunction, alleging that the MCTL improperly abridges her First Amendment right to free speech. Colorado challenged her claim, arguing that the MCTL merely regulates professional conduct and only incidentally (and permissibly) burdens speech. Chiles v. Salazar will decide whether the MCTL is a speech restriction or professional regulation, and, if it is a …

Reflections On Judging At The Intersection Of Constitutional Claims And Public Policy, Kimberly J. Mueller

Duke Journal of Constitutional Law & Public Policy Sidebar

Trial courts play an essential role in our judicial system. At the trial level, lived realities meet legal theories, and generalist judges must resolve constitutional disputes, develop the factual record, and administer justice. However, institutions, especially courts, face increasing pressure. This Keynote Address draws on cases over which I have presided to illustrate how careful process in trial courts helps maintain public trust in our institutions. These experiences reveal three lessons that trial courts teach us. First, the people bringing claims matter; they are real individuals seeking relief by telling authentic stories. Second, pleadings matter because they frame and shape …

Revisiting Eli Lilly V. Canada: Judicial Interpretation Of Ip Law And Exposure To Investor-State Disputes, Yumu Chen

Duke Law & Technology Review

Eli Lilly v. Canada was an investor-state dispute settlement (ISDS) case widely noted for signaling a regime shift in intellectual property (IP) protection from the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to ISDS. Its true yet often overlooked significance, however, lies in being a case of first impression on whether judicial interpretation of IP law may serve as a basis for state responsibility independent of denial of justice. To bridge that gap, this Note undertakes a close reading of the novel doctrinal discussion in Eli Lilly and related precedents, drawing implications for the broader theory of state …

State Siting Of Renewable Energy – Preemptive Power Grab Or Power Play?, Sarah Everhart

Duke Environmental Law & Policy Forum

The United States needs more—and cleaner—energy. Experts project that in the near future, the United States will need to significantly increase its electricity generation. Currently, the burning of fossil fuels remains a significant source of power generation in the United States. However, these fossil fuels produce greenhouse gases that are one of the main drivers of the impending and likely disastrous, climate change. Therefore, it has never been more vital to decarbonize the energy sector. However, there are two significant impediments to the deployment of renewable energy: restrictive local siting laws and community opposition.

According to the Sabin Center for …

Offshore Wind In Vertically-Integrated Versus Deregulated Models: Considerations For State Policymakers, Caroline Daniel

Duke Environmental Law & Policy Forum

Energy law scholars and economists have long studied the theoretical differences between vertically-integrated and deregulated models of electricity regulation. Now, diverse regulatory approaches and advances in renewable electricity technology present the opportunity to go beyond the abstract. This case study applies tenets of energy law and economic theory to offshore wind initiatives to concretize lessons of a clean energy transition for state policymakers going forward.

By comparing Virginia’s and New York’s offshore wind ventures, this analysis lends nuance and practicality to otherwise abstract energy regulation principles. These states are leaders in the volatile offshore wind industry, a target for the …