Digital Commons Network^™

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 …

"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 …

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 …

"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." …

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 …

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. …

Too Young To Suspend: Ending Early Grade School Exclusion By Applying Lessons From The Fight To Increase The Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

In many respects, the evolution of juvenile court reform and school discipline reform follow similar trajectories. This Article begins by tracking those respective evolutions. Part I outlines the evolution of the juvenile court system in the United States and focuses on the fledgling system’s distinction of children from adults and its “rehabilitative ideal” that children could outgrow challenging behavior if given the right treatment and services. After a long period of “adultification” of the juvenile court in response to rising crime rates, more recent reform efforts have focused on returning to the early court’s rehabilitative model, including policies that would …

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?

Budgets And The Timing, Intensity, And Composition Of Interest Group Lobbying In The U.S. States, John M. De Figueiredo

Faculty Scholarship

This paper examines state level lobbying data to determine how budgeting affects the timing, intensity and composition of lobbying expenditures. Using a database of all available lobbying expenditures in the U.S. states ranging up to 25  years, the paper shows interest group lobbying increases substantially during the budgeting process, and the budgeting process is unlike other issues lobbyists face. Spikes in lobbying during budgeting are driven primarily by business groups, and these business groups account for most of the changes on the margin in lobbying activity. Moreover, even groups relatively unaffected by budgets lobby more intensely during legislative budgeting, consistent …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Faculty Scholarship

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Arbitrating Corruption, Rachel Brewster

Faculty Scholarship

One of the most controversial issues in international investment law is how arbitral panels should deal with investments tainted by corruption at their inception. The current practice of investment arbitrators is to refuse to hear investors’ claims when bribery allegations are substantiated. A recent wave of scholarship has attacked this “corruption defense,” arguing that the practice unfairly harms investors and encourages governments to maintain corrupt practices. This Essay responds to that scholarship, arguing that the current approach is the best policy choice on balance. The Essay analyzes three core policy questions at the heart of the debate: Would eliminating the …

False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin

Faculty Scholarship

According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …

The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards For Refugees, Charles Shane Ellison

Faculty Scholarship

Deep, variegated, and unresolved tensions run between and within the U.S. courts of appeals’ standard of review classifications of the five core elements of the refugee definition. Several circuits have taken note of their dissonant jurisprudence, calling for either en banc or Supreme Court intervention. While existing scholarship raises cogent criticisms of excessive factual deference in U.S. immigration adjudications, very little attention has been paid to how the fact-law divide regarding the refugee definition maps onto review standards in the appellate context. This dearth of scholarly consideration is accompanied by the reality that standards of review often decide cases where …

Partisan Panel Composition And Reliance On Earlier Opinions In The Circuit Courts, Stuart Minor Benjamin, Byungkoo Kim, Kevin M. Quinn

Faculty Scholarship

Does the partisan composition of three-judge panels affect how earlier opinions are treated and thus how the law develops? Using a novel data set of Shepard's treatments for all cases decided in the U.S. courts of appeals from 1974 to 2017, we investigate three different versions of this question. First, are panels composed of three Democratic (Republican) appointees more likely to follow opinions decided by panels of three Democratic (Republican) appointees than are panels composed of three Republican (Democratic) appointees? Second, does the presence of a single out-party judge change how a panel relies on earlier decisions compared to what …

Consumption Governance: The Role Of Production And Consumption In International Economic Law, Timothy Meyer

Faculty Scholarship

Over the last decade, international economic conflict has increased dramatically. To name only a few examples, the European Union banned the import of products from deforested land and is poised to impose duties on carbon-intensive imports; the United States banned Chinese imports made with forced labor; and countries the world over threatened to impose digital services taxes on U.S. corporations, leading to a new multilateral agreement on apportioning income tax revenue among countries.

This Article argues that these conflicts represent a shift in norms governing the authority to tax and regulate international commerce. Different fields within international economic law describe …

Safe Storage Laws And Self-Defense From Heller To Bruen, Joseph Blocher

Faculty Scholarship

This short Essay, written for a symposium honoring Walter Dellinger, explores one of the most underappreciated—and indefensible—holdings of District of Columbia v. Heller, the landmark Second Amendment case that Walter ably argued for the District. Most scholars have focused on Heller’s announcement of an “individual” right to keep and bear arms for private purposes and its invalidation of the District’s prohibition on handguns. But along the way, almost in passing, the Court also struck down the District’s requirement that firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device.” It did this not by asking …

Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the …

The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher

Faculty Scholarship

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

The U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Faculty Scholarship

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

The Children Are Our Future (Not Our Future Criminals): Protecting South Carolina’S Youngest Citizens By Setting A Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

No abstract provided.

Reflections On Race, The Constitution, And Growing Up In The Segregated South, Walter Dellinger

Faculty Scholarship

The following passages are excerpted from the manuscript entitled Balcony Reserved for White Spectators that Walter Dellinger was writing at the time of his death in February 2022. These particular excerpts were chosen first and foremost because they demonstrate Dellinger’s unwavering and lifelong commitment to the pursuit of racial justice. But they were also chosen because they illustrate the array of talents that Dellinger brought to his work—his encyclopedic knowledge of constitutional history, his powers of legal analysis and persuasion, his attunement to the latent meanings in popular culture, and last, but certainly not least, his spellbinding storytelling.

Note: The …

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 …