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Nudges, Defaults, And The Problem Of Constructed Preferences, Jeffrey J. Rachlinski

Duke Law Journal

Regulatory bodies have increasingly become interested in “nudges,” or low-cost adjustments to the environment in which people make choices. These interventions promise to give more people what they truly want while preserving freedom of choice. In theory, default rules—a type of nudge—that can survive a thorough cost-benefit analysis should both preserve liberty and enhance welfare. In reality, altering default rules can also change people’s preferences. Neutral cost-benefit analysis is thus impossible, and choosing a default rule therefore influences personal freedom. This Article explains how nudges influence preferences and why this makes neutral cost-benefit analysis impossible for regulators.

The Enforcement Value Of Disclosure, Stephanie Bornstein

Duke Law Journal

Information disclosures often “nudge” consumers to make better choices—for example, when manufacturers include nutrition labels on food packaging or fuel economy standards on cars. Yet having to disclose can have a nudge effect on the disclosing entity, too—for example, by incentivizing a manufacturer to make healthier food or more fuel-efficient cars. Recently, regulators around the world have begun to use information disclosures to improve racial and gender equality—for example, by requiring certain businesses to disclose information on things like harassment complaints, board diversity, and employee pay. But are such disclosure efforts worth their costs? And what would indicate that policymakers …

Unique Civic Education Program Aims To Teach Young People About Courts And Civility, Robin L. Rosenberg, Beth Bloom

Judicature International

No abstract provided.

Proposed Legal Reforms In Israel: Are Israel’S “Constitutional Conventions” In Jeopardy?, Peter Kahn, Dov Weissglas

Judicature International

No abstract provided.

Diversion And/As Decarceration, Katherine Beckett

Law and Contemporary Problems

No abstract provided.

Expansion Of The Police Role In Responding To Mental Health Crises Over The Past Fifty Years: Driving Factors, Race Inequities And The Need To Rebalance Roles, Amy C. Watson, Taleed El-Sabawi

Law and Contemporary Problems

No abstract provided.

Triaging Mental Health Emergencies: Lessons From Philadelphia, Jennifer D. Wood, Evan Anderson

Law and Contemporary Problems

No abstract provided.

In Consideration Of The Behavioral Health Of Police, Meret S. Hofer, Jennifer Rineer

Law and Contemporary Problems

No abstract provided.

Effecting Free Exercise And Equal Protection, Laura Portuondo

Duke Law Journal

There is an emerging discrepancy in free exercise and equal protection law. For decades, the Supreme Court has maintained that a law’s effects on a protected group are usually insufficient to trigger heightened scrutiny under either the Free Exercise or Equal Protection Clause. This longstanding rule has rendered it virtually impossible to challenge facially neutral laws on constitutional race, sex, and religious discrimination grounds, even where such laws inflict substantial harms on protected groups. Recent free exercise decisions, however, have abandoned this traditional barrier to enforcing constitutional equality rights. In doing so, they have subverted the usual rule that a …

Not Up For Deliberation: Expanding The Peña-Rodriguez Protection To Cover Jury Bias Against Lgbtq+ Individuals, Brett V. Ries

Duke Law Journal

Discrimination against LGBTQ+ individuals persists within the United States criminal justice system, which is no surprise given the history of LGBTQ+ discrimination in the United States. Evidence of jurors convicting LGBTQ+ defendants—or, in some extreme cases, sentencing them to death—because of the defendant’s queer identity is especially concerning.

Standing in the way of protecting LGBTQ+ defendants from LGBTQ+ bias in jury deliberations is Federal Rule of Evidence 606(b), which prohibits defendants from using juror testimony regarding jury deliberations to impeach the jury’s verdict. However, in 2017, the Supreme Court in Peña-Rodriguez v. Colorado provided an exception to this “no-impeachment rule” …

No Harm, No Problem (In State Court): Why States Should Reject Injury In Fact, Rebekah G. Strotman

Duke Law Journal

New judicial federalism urges states to extend their constitutional protections beyond the federal Constitution’s. Yet the scholarship has largely ignored justiciability doctrines—including standing—that dictate the requirements for suing in court. Meanwhile, the federal injury in fact requirement has been debated for years, with critics claiming it is ahistorical and overly restrictive. States, though, are not bound by Article III and can reject the federal standing doctrine. Some states have. In fact, the same year the Supreme Court doubled down on injury in fact by stating “no concrete harm, no standing,” the North Carolina Supreme Court rejected injury in fact and …

Causation And Conception In American Inventorship, Dan L. Burk

Duke Law & Technology Review

Increasing use of machine learning or “artificial intelligence” (AI) software systems in technical innovation has led some to speculate that perhaps machines might be considered inventors under patent law. While U.S. patent doctrine decisively precludes such a bizarre and counterproductive result, the speculation leads to a more fruitful inquiry about the role of causation in the law of inventorship. U.S. law has almost entirely disregarded causation in determining inventorship, with very few exceptions, some of which are surprising. In this essay, I examine those exceptions to inventive causality, the role they play in determining inventorship, and their effect in excluding …

The Fashion Industry Is Not As "Green" As It Would Like You To Believe, Ashly Riches

Duke Environmental Law & Policy Forum

No abstract provided.

Redlining Reimagined: "Race-Neutral Alternatives" In The Likely Wake Of Affirmative Action, Margaret Kruzner

Duke Journal of Constitutional Law & Public Policy Sidebar

For a decade, Justice Clarence Thomas has sharply criticized the Court's treatment of affirmative action, the race-conscious university admissions processed used to pursue the educational benefits associated with diverse classrooms. Calling affirmative action a "faddish theory" that the "Constitution abhors," Justice Thomas signaled his readiness to overrule Grutter v. Bollinger, which endorsed the practice in 2003.

Justice Thomas and the Court's originalist Justices have a new opportunity to strike down affirmative action in the Students for Fair Admissions litigation. Students for Fair Admissions, a non-profit organization founded by Edward Blum, is suing Harvard College and the University of North …

Moore V. Harper: The Independent State Legislature Theory And The Court At The Brink, Braden Fain

Duke Journal of Constitutional Law & Public Policy Sidebar

Moore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court's authority in federal elections. Scholars have recognized the theory's threat to American democracy and have accordingly produced a detailed record debunking the ISLT. …

Volume 107, Number 1 (2023)

Judicature

No abstract provided.

The Many State Doctrines Of Forum Non Conveniens, William S. Dodge, Maggie Gardner, Christopher A. Whytock

Duke Law Journal

Forum non conveniens is not as ancient or monolithic as U.S. courts often assume. The doctrine, which permits judges to decline to hear cases they believe would more appropriately be heard in another sovereign’s courts, was only adopted by the U.S. Supreme Court for use in nonadmiralty cases in 1947; the doctrine’s “deep roots in the common law” are thought instead to have grown in the states.

This Article tests that account by surveying the forum non conveniens doctrines of all fifty states and the District of Columbia. What we found should change how judges, practitioners, and scholars view the …

Solving The Valuation Challenge: The Ultra Method For Taxing Extreme Wealth, Brian Galle, David Gamage, Darien Shanske

Duke Law Journal

Recent reporting based on leaked tax returns of the ultrarich confirms what experts have long suspected: for the wealthiest Americans, paying taxes is mostly optional. Some of the country’s richest have reported annual taxable incomes that would be modest for a schoolteacher, even as the share of wealth held by the top .1 percent is at its highest in nearly a century.

Experts have long understood that one problem sits at the roots of many of the tax system’s failures to reach the very rich: valuation. Because it is difficult to appraise complex or unique assets, modern tax systems instead …

Protecting Natural Stewardship: Public Trusts, Wildlife Trusts, And The Effect Of Trophic Cascades, Nicholas Massey

Duke Journal of Constitutional Law & Public Policy Sidebar

The reintroduction of the Gray Wolf to the Greater Yellowstone Ecosystem conferred extensive ecological benefits to the region. The wolves' return resulted in a phenomenon known as a "trophic cascade," in which the presence of apex predators atop a food pyramid effectuates a "waterfall" of ecosystem-wide benefits. For example, the Gray Wolf has curtailed bloated elk populations, which has in turn reduced the damage of elk herds overgrazing on willow, aspen, and cottonwood plants—critical sources of food for the region's beavers. Importantly, the wolves' benefits are not confined to flora and fauna. Scientists have even discovered geological and riparian benefits …

The Spirit Of Gun Laws, Noah Levine

Duke Journal of Constitutional Law & Public Policy Sidebar

The firearms debate in the United States often pits public health against freedom. This false dichotomy implies that gun laws, even wise ones, inherently erode individual liberty. Indeed, this appeal to liberty finds fertile ground in the United States, where many Americans intuitively reject any incursion on their freedom. Yet this one-sided conception of liberty is, at best, incomplete: while the government can certainly encroach on our freedom, so too can our fellow citizens.

A historically grounded conception of liberty in the United States includes the sense of security that fosters self-expression without fear of arbitrary constraint. That is, when …

Allen V. Milligan: Anticlassification And The Voting Rights Act, Graham Stinnett

Duke Journal of Constitutional Law & Public Policy Sidebar

The "crown jewel" of the Civil Rights Movement, the Voting Rights Act of 1965 has been called "one of the most effective statutes ever enacted." However, in 2013 the Supreme Court famously gutted the Voting Rights Act in Shelby County v. Holder. Nearly a decade later, in Allen v. Milligan, the Court is now signaling that Section 2, the last remaining core provision of the Voting Rights Act, could be on the chopping block. With Milligan, the Court may be preparing to inject race-neutrality into Section 2, which could destroy the vestiges of the onetime "super-statute."

This …

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy Sidebar

Facial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense …

Cannabis Drug Development And The Controlled Substances Act, Gabrielle Feliciani

Duke Journal of Constitutional Law & Public Policy Sidebar

Cannabis is a federally illegal drug in the United States, yet thirty-seven states and four territories have now enacted laws allowing the production, distribution, and consumption of cannabis for medical use. An estimated 5.5 million individuals in medical-use states are qualified to purchase cannabis to treat and mitigate symptoms for conditions ranging from cancer to post-traumatic stress disorder to chronic pain. But, only three cannabis drugs have been approved by the Food and Drug Administration (FDA).

The current state of federal illegality creates a problem of supply and demand—consumer demand for cannabis is high, but the number of approved drug …

Too Much Salt: Rejecting The Pass-Through Entity Tax As A Salt Deduction Cap Workaround, Timothy Gray Ingram

Duke Journal of Constitutional Law & Public Policy Sidebar

Historically, U.S. taxpayers have been able to deduct their state and local taxes from their federal taxable income. This changed with the passage of the Tax Cuts and Jobs Act of 2017, which introduced a $10,000 cap on the state and local tax (SALT) deduction. States have reacted by turning to various methods to mitigate the negative tax consequences of the cap for their residents, including workarounds that use the charitable contribution deduction or a payroll tax as a means to allow full deductibility of state and local taxes.

With the IRS striking down the charitable contribution workaround, and the …

Covid Vaccines And Intellectual Property Rights: Evaluating The Potential For National Legislation Implementing Global Patent Waivers, Ashley Dabiere

Duke Law & Technology Review

Debates over the proper scope of intellectual property protections during the COVID-19 pandemic have occupied newspaper headlines since the first vaccines were developed nearly three years ago. Scholars and key politicians from several nations considered the implementation of a global patent waiver in an effort to make the vaccines more widely available in developing parts of the world. Although the question of whether such a waiver would fulfill this goal remains empirically unanswered and up for debate, the legal structure of United States patent law would make its implementation by Congress difficult given the value placed on intellectual property protections …

Misreading Campbell: Lessons From Warhol, Shyamkrishna Balganesh, Peter S. Menell

Duke Law Journal Online

In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a "transformative use." Purporting to rely on the Court’s adoption of "transformative use" as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous "transformativeness" inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might be considered as …

The Impact Of The Rule Of Law On National Security In African Countries, Catherine Lena Kelly

Judicature International

No abstract provided.

Endogenous Tax Law: Regulatory Capture And The Ethics Of Political Obligation, Daniel T. Ostas

Law and Contemporary Problems

No abstract provided.

Policing Fiscal Corruption: Tax Crime And Legally Corrupt Institutions In The United Kingdom, Branislav Hock

Law and Contemporary Problems

No abstract provided.

Beyond Bribery: Exploring The Intimate Interconnections Between Corruption And Tax Crimes, Diane Ring, Costantino Grasso

Law and Contemporary Problems

No abstract provided.