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Note From The Editor

Alaska Law Review

No abstract provided.

In The Dark: State V. Alaska Legislative Council And Public-School Funding In The Face Of The Dedicated Funds Clause, Joe Perry

Alaska Law Review

In the past several years, Alaska has faced many challenges in its public education system. These challenges gave rise to an intense political debate, significant new legislation, and a protracted battle over the future of funding for public education. Governor Mike Dunleavy and the state legislature publicly clashed over the implementation of H.B. 287, a 2018 state law designed to provide financial stability to ailing schools and curtail teacher layoffs. In 2022, the Supreme Court of Alaska resolved the dispute in favor of the governor and found a contentious piece of state legislation unconstitutional under the states "Dedicated Funds Clause." …

Towards Better Local Governance In Alaska's Unorganized Borough, Jake Sherman

Alaska Law Review

Alaska's unorganized borough is the only unincorporated county-equivalent area in the entire United States, but the Alaska Constitution never envisioned that would be the case. The framers of the Alaska Constitution drafted a revolutionary article on local government that prioritized localism—participation in local government—to further democratic engagement in the state. Recognizing that much of rural Alaska lacked the population and infrastructure to support incorporated and localized self-governance in the 1950s, the framers opted not to automatically incorporate the entire state under various borough governments. Even so, the framers made clear that the state was to play an active role in …

The Past As A Colonialist Resource, Deepa Das Acevedo

Duke Law Journal

Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.

Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on …

Uncreative Designs, Sarah Burstein

Duke Law Journal

It is often said that the standards for patent protection are higher than the standards for copyright protection. Specifically, commentators assert that the copyright requirement of originality is easier to satisfy than the patent requirements of novelty and nonobviousness. And yet, the USPTO regularly grants patents for designs that fall below the low standard of copyright originality set by the Supreme Court in Feist v. Rural. Some may suggest that the existence of these “sub-Feist” design patents is a result of the USPTO abandoning its duty to scrutinize design patent applications. Or they may suggest that it is a result …

Stare Decisis And Remedy, Melissa Murray

Duke Law Journal

Much ink has been spilled on the Roberts Court’s approach to stare decisis and precedent. Such commentary is hardly surprising. In just the last five years, the Court has overruled extant precedents on issues that range from abortion and jury convictions to property rights and public unions. It has also substantially narrowed and limited existing precedents, curbing the reach of earlier decisions in ways that disrupt and distort the jurisprudential landscape.

Some view the Court’s uneven approach to precedent as ideologically determined. As these critics maintain, the Court adheres to precedents that are consistent with the views of its six-member …

The Return Of Three-Judge Constitutional Courts, Matt Queen

Duke Law Journal

State courts wield the authority to elevate state constitutional protections above those afforded by the U.S. Constitution. That power is great—so great that some legislatures have intervened in constitutional adjudication, purportedly to undermine forum shopping and check a single judge’s influence. Accordingly, North Carolina and Tennessee require that three-judge trial courts hear constitutional challenges to state laws. These courts echo twentieth-century congressional efforts to trim federal courts’ equitable jurisdiction. They also present new and familiar drawbacks spawned by their federal ancestors.

This Note examines these new constitutional courts through several lenses: their historical context, political development, advantages, and drawbacks. Although …

Fighting Utility Wildfire With Knowledge Management, Catherine J.K. Sandoval

Duke Environmental Law & Policy Forum

No abstract provided.

Historical Analogy And The Role Morality Of Reason-Giving, Darrell A. H. Miller

Duke Law Journal Online

The Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.

The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of …

Missing Pieces: Gaps In The Record Of Early American Decisional Law, Andrew Willinger

Duke Law Journal Online

In its most recent major Second Amendment decision, New York State Rifle & Pistol Association v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were …

In Conversation With Stephen Gageler, Chief Justice Of The High Court Of Australia, Stephen Gageler, David Collins

Judicature International

No abstract provided.

"Just The Facts, Ma'am"? A Response To Professors Blocher And Garrett, Haley N. Proctor

Duke Law Journal Online

No abstract provided.

The Precarious Art Of Classifying Facts, Allison Orr Larsen

Duke Law Journal Online

No abstract provided.

Full Faith And Credit In The Post-Roe Era, Celia P. Janes

Duke Journal of Constitutional Law & Public Policy Sidebar

In 2022, the Supreme Court overturned Roe v. Wade, once again leaving the question of whether abortion should be legal to individual state legislatures. This decision allowed the Texas law known as S.B. 8, alternatively known as the Texas Heartbeat Act, to go into effect. The law allows private individuals to sue anyone who has performed or has aided and abetted the performance or inducement of an abortion in Texas. California responded to this law with Assembly Bill 2091, which prevents California state courts from issuing subpoenas arising under S.B. 8 and similar laws in other states. This Note addresses …

Neglected Discovery, Jenia I. Turner, Ronald F. Wright, Michael Braun

Duke Law Journal

In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery.

Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 …

"We're Not Selling Ice Cream Here": Plcaa, The Predicate Exception, And Providing Relief For Plaintiffs, Emma Kilroy

Duke Law Journal

In 2005, the Protection of Lawful Commerce in Arms Act (“PLCAA”) put a stop to most civil litigation against the firearms industry. In the nineteen years since, victims of gun violence have attempted to bring claims against members of the firearms industry, with varying degrees of success, using an exception to PLCAA known as the predicate exception. Recently, states have begun to pass legislation creating a right of action for plaintiffs to take advantage of the predicate exception. Whether the new legislation will be successful, however, remains to be seen.

This Note examines all of the available cases considering the …

Show Me The Green: The Battle For Investor Trust In Esg Funds, Benjamin R. Lukas

Duke Law Journal

Environmental, social, and governance (“ESG”) funds enable earnest investors to align their money with their values. Some believe that ESG funds can promote a more sustainable and just economy by encouraging companies to adopt better practices and by divesting from those that do not. Others expect that funds with limited carbon exposure will outperform as climate change imposes regulatory and financial risks on carbon-intensive industries. Research suggests that younger investors overwhelmingly support the idea behind ESG investing; one-third even report a willingness to forgo 10 percent or more of their retirement savings to protect the environment.

Unfortunately, ESG products also …

Next-Generation Data Governance, Kimberly A. Houser, John W. Bagby

Duke Law & Technology Review

The proliferation of sensors, electronic payments, click-stream data, location-tracking, biometric feeds, and smart home devices, creates an incredibly profitable market for both personal and non-personal data. It is also leading to an amplification of harm to those from or about whom the data is collected. Because federal law provides inadequate protection for data subjects, there are growing calls for organizations to implement data governance solutions. Unfortunately, in the U.S., the concept of data governance has not progressed beyond the management and monetization of data. Many organizations operate under an outdated paradigm which fails to consider the impact of data use …

Corpus Linguistics And The Original Public Meaning Of The Sixteenth Amendment, Thomas R. Lee, Lawrence B. Solum, James C. Phillips, Jesse A. Egbert

Duke Law Journal Online

Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes, from whatever source derived” under the original meaning of the Sixteenth Amendment. Moore is widely viewed as the most important tax case to reach the United States Supreme Court in decades. It is also an opportunity for the Court to refine its theory and method of finding original meaning.

We focus here on the original public meaning of the Sixteenth Amendment—the ordinary, common meaning attributed to its text by the general public in 1913. So far, the …

Communication With Public Officials In The Modern Age Of Social Media: Does It Violate The First Amendment When Public Officials Block Private Individuals From Their Social Media Pages?, Emily Cohen

Duke Journal of Constitutional Law & Public Policy Sidebar

In the modern world, social media dominates. It is considered an almost essential function of public officials, ranging from the President of the United States to local politicians, to maintain at least one social media page to keep the public updated on their policies and current events. As public officials shift toward social media to communicate with the public, these social media sites become the new spaces for public discourse, with members of the public often commenting on or responding to public officials' posts. As more public discourse occurs on these sites, and individuals begin to criticize their public officials …

Sovereignty And Dependence In The American Empire: Native Nations, Territories, And Overseas Colonies, Alvin Padilla-Babilonia

Duke Law Journal

What justifies plenary powers over Native nations, U.S. territories, and overseas colonies? One answer is the text of the Constitution: the Indian Commerce Clause or the Territorial Clause. Another answer is sovereignty under international law. In this Article, I argue that these legalistic explanations overlook a third answer: that political and judicial actors justified plenary powers based on the colonial notion that these so-called dependent peoples were incapable of self-government.

Members of Congress, presidents, federal judges, and territorial governors reconciled republicanism and colonialism in the American empire by constituting Native nations, the territories, and the overseas colonies as dependent peoples. …

Tech Platforms And The Common Law Of Carriers, Ganesh Sitaraman, Morgan Ricks

Duke Law Journal

Ever since Justice Clarence Thomas observed in a concurrence that tech platforms like Twitter were analogous to common carriers, there has been increasing interest in the possibility of regulating them under common carrier principles. Most of the conversation has centered on potential legislation, not on applying the common law’s common carrier obligations to big tech. Indeed, when Ohio sued Google under the common law’s common carrier principles, commentators called the lawsuit “bizarre.”

In this Article, we argue that far from being “bizarre,” tech platforms are and should be subject to liability at common law for violating the duties of common …

"Children Are Different" And Their Lawyers Should Be Too, Samuel K. Lawrence

Duke Law Journal

Nearly sixty years ago, In re Gault guaranteed children in juvenile court the right to counsel. However, Gault fell short. While recognizing children’s distinct vulnerability, the Court created a right for children that is weaker than that of adults and failed to recognize how youth in fact require a more expansive right to counsel. Grounded in the stories of court-involved youth who received deficient representation, this Note illustrates the devastating consequences of Gault’s limitations. It argues that the differences between children and adults that compelled the Court to adopt additional protections for children in sentencing also justify an expanded …

"Race-Blind" Redistricting Algorithms, Kayla Swan

Duke Law Journal

Litigants increasingly use algorithmic evidence in redistricting cases, employing a collection of algorithmically generated plans to point out the outlier status of the state’s current plan. But with the Supreme Court’s declaration of a race-blind Equal Protection Clause in Students for Fair Admissions v. Harvard, the constitutionality of these methods as used in racial gerrymandering cases remains uncertain. Other scholars have examined the potential impacts of race blindness as an algorithmic constraint. This Note instead interrogates the practical possibility of race-blind redistricting algorithms and finds the promise of blindness illusory. Rather, requirements to limit racial inputs in redistricting algorithms …

How To Destroy The Liberal International Order, Bryan H. Druzin

Duke Journal of Comparative & International Law

This Article argues that a policy of containment directed at China could have disastrous consequences on the stability of the global system. The liberal international order, created to promote international coordination and structure global trade, comprises key institutions such as the United Nations, the World Trade Organization, the International Monetary Fund, and the World Bank. It is possible that much of the strength of these institutions stems from the fact that nations are "locked" into them simply because they are the only game in town. Put another way, the liberal order is, for lack of a better word, a "monopoly." …

Made In China, Sued In The U.S.: The Exploitation Of Civil Procedure In Cross-Border E-Commerce Trademark Infringement Cases, Lei Zhu

Duke Journal of Comparative & International Law

During the period of economic resurgence after the subprime mortgage crisis, China became a manufacturing powerhouse, with Amazon playing a pivotal role. Amazon's attractive policies lured Chinese e-commerce sellers to its platform, subsequently drawing many more customers with their competitive pricing. This surge, however, also invited Chinese counterfeiters onto Amazon's platform. Major brands responded by suing those counterfeit sellers for trademark infringement. As most Chinese sellers failed to attend trials, these cases almost always resulted in uncontested wins for the brands, thereby granting them access to the sellers' financial accounts as a means to satisfy the damage claimed. Many U.S. …

Uncharted Waters: Should International Maritime Terrorism Be Included In The Jurisdiction Of The International Criminal Court?, Juan-Pablo Perez-Leon-Acevedo, Giorgi Chakhvadze

Duke Journal of Comparative & International Law

The International Criminal Court (ICC) lacks jurisdiction over international terrorism. Despite related academic literature, no academic publication discusses whether the ICC should have jurisdiction over international maritime terrorism. This deserves attention due to the increasing importance of this global phenomenon in the last few decades. Consequently, this Article considers whether international maritime terrorism should be included in the ICC’s jurisdiction. First, it discusses international maritime terrorism as a manifestation of the emerging international crime of international terrorism, examining i) whether there is an accepted or an emerging legal definition of international maritime terrorism, ii) whether international maritime terrorism is a …

A Codified Liability Regime To Stimulate Greater Investment In Subpatentable Innovation, Jerome H. Reichman, Ana Santos Rutschman

Faculty Scholarship

The global intellectual property system rests on a distinction between exclusive property rights and free competition. Exclusive rights vary in strength and intensity, but the opposite of protection is almost always free competition. Distinctions of intensity are drawn in terms of the length of protection given to different subject matters plus variable lists of exceptions and limitations to exclusive rights. But the bottom line is that, when protection is not available under the existing system, free competition prevails, and vice-versa (i.e., where there is exclusivity, free competition is deferred for a specified period of time).

This Article departs from a …

A Great American Gun Myth: Race And The Naming Of The “Saturday Night Special”, Jennifer L. Behrens, Joseph Blocher

Faculty Scholarship

At a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race and guns be taken seriously and vetted appropriately. In this short article, we evaluate the often-repeated claim that the nickname “Saturday Night Special” derives from the phrase “[n___er]-town Saturday night.”

Based on a review of newspapers, legislative debates, dictionaries, slang compendiums, and other sources, we find no historical support for this claim. It apparently appeared for the first time, unsourced, in a 1976 article …

The Line: Ai And The Future Of Personhood, James Boyle

Faculty Books

The line that distinguishes people from animals, systems, and things is getting harder to draw. For all the concern about AI and genetic engineering, there has been surprisingly little discussion of the possible personhood of the new entities this century will bring us: what about their claims to be inside the line, to be "us" -- not machines or animals but persons -- deserving all the moral and legal respect that any other person has by virtue of their status?