Digital Commons Network^™

Finance Against Law: The Case Of China, Shitong Qiao

Faculty Scholarship

Can there be a highly developed financial market without legal protection for investors and creditors? The influential law and finance literature is built on the assumption that legal protection is essential to the development of an impersonal financial market. This Article investigates how two financial markets of trillions of dollars have developed extralegally in the past two decades despite the risk of regulatory enforcement and contract defaults. Specifically, I examine (1) how Chinese internet companies from Sina to Alibaba have designed contracts to circumvent the Chinese government’s ban on foreign capital in its internet industry and (2) how Chinese entities …

Forced Justice: The Kosovo Specialist Chambers, Sara L. Ochs, Kirbi Walters

Duke Journal of Comparative & International Law

The Kosovo Specialist Chambers (KSC), the court created to adjudicate war crimes and crimes against humanity committed in Kosovo at the turn of the century, is the world’s newest hybrid tribunal. The KSC is classified as a hybrid tribunal because it ostensibly blends aspects of international and domestic law and resources. Upon examination, however, the KSC departs in critical ways from the traditional concept of a hybrid tribunal, representing an internationally dominated court with minimal local involvement. By detailing the history of judicial mechanisms employed to prosecute crimes committed during and in the aftermath of the Kosovo War from 1998-1999, …

Fighting Words: Catalonia At The Language Instruction Crossroads, Jane Tien

Duke Journal of Comparative & International Law

The schism between Spain and Catalonia obscures a struggle over the teaching language for non-linguistic subjects in Catalonia's public schools. The recent two decades decanted into Catalan society two Spanish Constitutional Court rulings mandating a Castilian-Catalan conjunctive instruction model—with Catalan as the "center of gravity"—and tasking the Catalan legislature with configuring that "center." Pleasing none and spurned by all, the Constitutional Court duology emboldened activist lower courts to bypass the Catalan legislature, while schools in Catalonia continued to teach almost exclusively in Catalan. With the Castilians alienated and the Catalans defiant, language instruction in Catalonia turned into a festering wound …

Tribal Sovereignty And The Right To Life, Clare Holtzman

Duke Journal of Comparative & International Law

On August 26, 2020, the only Native American on federal death row, Lezmond Mitchell was executed by the federal government for the murder of two Navajo citizens on Navajo Nation land. Federal law typically gives Tribal Nations the right to determine whether the death penalty is used against their citizens for crimes committed between Tribal citizens on Tribal land. Yet here, the federal government utilized a loophole to seek the death penalty against the Navajo Nation's wishes. Lezmond Mitchell was not a sympathetic man by any means; indeed, he brutally killed a grandmother and her young granddaughter to steal their …

Sovereignty In The Era Of Fragmentation – Eu Trade Agreements And The Notion Of Statehood In International Law, Harri Kalimo, Shorena Nikoleishvili

Duke Journal of Comparative & International Law

In this article, we explore the theme of sovereignty in the context of fragmented international law. We observe that the sovereignty of States may become relativized, not only by the political power of other States, but by its exposure to multiple, functionally separate fields of law. We analyze this theme by asking whether trade agreements as instruments of economic law offer a venue for discussing the sovereignty of sub-statal entities that lack standing on the more traditional international forums. Our analysis focuses first on a recent decision by the Court of Justice of the European Union, which concerned the status …

An Ad Hoc Dispute Settlement Mechanism Or A Harmonization Mission? A Reappraisal Of Jurisprudential Fragmentation In International Investment Arbitration, Mohammad Hamdy

Duke Journal of Comparative & International Law

Contrary to the numerous accounts of fragmentation in investment arbitration case law, this Article shows that the case law depicts a high degree of cohesion. The Article argues that jurisprudence in investment arbitration is stabilized by distinct mainstream interpretations of the key provisions of bilateral investment treaties, the main legal instrument in international investment law. The Article considers the frequently cited disagreements among arbitral tribunals in light of competing commitments to either regulatory pluralism or harmonization. It demonstrates that the vast majority of tribunals interpret bilateral investment treaties in a way that circumscribes pluralism and furthers the harmonization of the …

Digital Habit Evidence, Andrew Guthrie Ferguson

Duke Law Journal

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …

Employed Algorithms: A Labor Model Of Corporate Liability For Ai, Mihailis E. Diamantis

Duke Law Journal

The workforce is digitizing. Leading consultancies estimate that algorithmic systems will replace 45 percent of human-held jobs by 2030. One feature that algorithms share with the human employees they are replacing is their capacity to cause harm. Even today, corporate algorithms discriminate against loan applicants, manipulate stock markets, collude over prices, and cause traffic deaths. Ordinarily, corporate employers would be responsible for these injuries, but the rules for assessing corporate liability arose at a time when only humans could act on behalf of corporations. Those rules apply awkwardly, if at all, to silicon. Some corporations have already discovered this legal …

Not So Civil Commitment: A Proposal For Statutory Reform Grounded In Procedural Justice, Margaret J. Lederer

Duke Law Journal

Every year, millions of Americans struggle with serious mental illness. Of them, thousands experience civil, or involuntary, commitment—that is, hospitals invoke the coercive power of the state to force these individuals into psychiatric hospitals against their will. Whether someone requires hospitalization is a complex question of psychology, medicine, and substantive law.

But the process of civil commitment itself is troubling. Across the board, states fail to afford those facing civil commitment meaningful procedural protections. Current state laws subject individuals facing commitment to extended periods of confinement with little to no judicial intervention. Indeed, individuals facing commitment may wait weeks or …

A Way Forward After Dobbs: Human Rights Advocacy And Self-Managed Abortion In The United States, Kelly Keglovits

Duke Journal of Constitutional Law & Public Policy Sidebar

Even in the era before Dobbs, wherein the Supreme Court repeatedly classified abortion as a "fundamental right," the ability to have an abortion was inaccessible in many parts of the United States. The irony that a "fundamental right" was so difficult to exercise results from how Constitutional rights are understood, which left many open-ended avenues for states to bring restrictions. International Human Rights law, however, offers a more optimistic and accountable approach to steps forward in increasing abortion access—illustrating a need to bring a human rights-based approach home. Dobbs has eviscerated any concept of federal protections for abortion, severely worsening …

Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària

Judicature International

No abstract provided.

Heat Waves And A Public-Private Partnership In Alaska, Karen Sandrik, Sarah Matsumoto

Alaska Law Review

The recently-passed Inflation Reduction Act represents the largest single step that Congress has taken to combat harms from climate change. In its over $360 billion commitment, the Act incentivizes clean energy development and generation, includes methods to directly lower residential utility bills and increase home efficiency, promotes cleaner transportation and agricultural practices, and funds states' and cities' efforts to meet their individual climate goals. While many environmental organizations applauded the Act's passage, some—even simultaneously—expressed concern about its tradeoffs: the Act continues to invest in fossil fuels, subsidizing pipeline construction and guaranteeing new oil and gas leases, specifically expanding leasing in …

Wilderness V. Oil: Resource Balancing In The Arcticnational Wildlife Refuge, Megan Mason Dister

Alaska Law Review

The Arctic National Wildlife Refuge (ANWR), a national wildlife refuge in a remote region of Alaska, has captured the national spotlight for decades due to conflicting viewpoints on how to manage the refuge's resources. ANWR is home to a large population of diverse species and Alaska Native communities. However, it may also contain large quantities of oil. Debates over ANWR resource management often provide only two options: preserve the Coastal Plain as wilderness or allow energy development. In 2017, a congressional budget resolution opened a portion of ANWR (the Coastal Plain) to oil and gas leasing for the first time. …

The Fracas At The Fdic, Todd Phillips

Duke Law Journal Online

In December 2021, the Democratic members of the Board of Directors of the Federal Deposit Insurance Corporation (FDIC) attempted to use their majority to issue a request for information but were blocked by the Republican Chair. Although the Democrats outnumbered the Chair three-to-one, the agency's General Counsel declared the move invalid, and the request went unpublished. After weeks of hostility, the Chair resigned, effectively conceding her inability to lead the agency. Although governance at the FDIC is now settled, concern over the Democratic directors' actions and the Chair's resignation have reverberated beyond that singular agency. Republicans are concerned that the …

United, We Fall: Expelling Autocratic States From The European Union, Zachary Sanfilippo

Duke Law Journal

Since 2010, the Fidesz party has systemically and blatantly undermined Hungary’s democratic institutions. Led by the autocrat Orbán, Fidesz has rigged Hungary’s elections, packed its courts, and violated its citizens’ human rights. So far, it has done so without any real consequence from the European Union. This state cannot stand. The inefficacy of the EU’s current attempts to discipline Hungary suggests that a stronger remedy is necessary: expulsion. This Note argues that allowing expulsion of materially breaching Member States has not been foreclosed by CJEU jurisprudence and, indeed, advances the EU Treaties’ purpose of “ever closer union.” Should Member States …

Reviving Bank Antitrust, Jeremy C. Kress

Duke Law Journal

After decades of disuse, antitrust is back. Renewing the United States’ longstanding distrust of concentrated economic power, antimonopoly scholars have documented widespread harms of corporate “bigness” and inspired policy initiatives to de-concentrate the U.S. economy. To date, however, the new antitrust movement has largely overlooked a key cause of commercial concentration: the rapid consolidation of the U.S. banking sector. More than thirty thousand banks served local communities a century ago, but today just six financial conglomerates control half of the U.S. banking system. Bank consolidation, in turn, has spurred conglomeration throughout the economy. As the Supreme Court recognized in 1963, …

The Lost Right To Jury Trials In "All" Criminal Prosecutions, Andrea Roth

Duke Law Journal

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less. These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse. This apparently blatant contradiction of the U.S. Constitution’s text is justified by …

Jury Nullification In Abortion Prosecutions: An Equilibrium Theory, Peter N. Salib, Guha Krishnamurthi

Duke Law Journal Online

The Supreme Court has overturned Roe v. Wade. Doing so, it has rescinded recognition of a fundamental constitutional right for the first time in nearly a century. Even before Roe's demise, multiple states enacted laws to criminalize abortion once the abortion right was gone. More states will surely follow soon. Calls to action have gone out to those who can protect women's rights: the President, Congress, left­leaning state governments, and more. We add another call - to jurors.

Jurors - and sometimes judges - have the power to refuse to convict factually guilty defendants in criminal prosecutions when they believe …

State Institutions And Democratic Opportunity, Miriam Seifter

Duke Law Journal

The burgeoning commentary on democratic decline in the United States focuses disproportionately on the national level. And seeing a national problem, reformers understandably seek to bolster democracy through large-scale federal solutions. Although their efforts hold popular appeal, they face strong institutional headwinds. As scholars have extensively documented, the Senate, the Electoral College, and the Supreme Court today are skewed against majority rule. Despair grows.

This Article urges legal scholars and reformers to turn their gaze to state-level institutions. State institutions, the Article shows, offer democratic opportunity that federal institutions do not. By design, they more readily give popular majorities a …

Collective Memory, Criminal Law, And The Trial Of Derek Chauvin, Sean A. Berman

Duke Law Journal

This Note describes how criminal trials for prominent criminal acts contribute to the collective memory of the underlying offense. Hannah Arendt once argued that the purpose of criminal trials is to “render justice, and nothing else.” Unlike criminal trials, political trials strive to produce collective memory. This Note utilizes political trials as a foil to criminal trials to identify the ways that criminal trials succeed (and fail) to produce collective memory. Several features of the criminal trial— namely, the trial’s unique narrative form, constituent storytellers, capacity to capture the gravity of the offense, and jury—add to society’s shared narrative of …

Agents Of Inequality: Common Ownership And The Decline Of The American Worker, Zohar Goshen, Doron Levit

Duke Law Journal

The last forty years have seen two major economic trends: wages have stalled despite rising productivity, and institutional investors have replaced retail shareholders as the predominant owners of the U.S. equity markets. A few powerful institutional investors—dubbed common owners—now hold large stakes in most U.S. corporations. And in no coincidence, when U.S. workers acquired this new set of bosses, their wages stopped growing while shareholder returns increased. This Article explains how common owners shift wealth from labor to capital, thereby exacerbating income inequality.

Powerful institutional investors pushing public corporations en masse to adopt strong corporate governance has an inherent, painful …

The Trouble With Court-Packing, Neil S. Siegel

Duke Law Journal

Wide-ranging public discussion of U.S. Supreme Court reform implicates fundamental questions of constitutional policy, norms, and law. This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing. This Article contends that there has likely been a constitutional convention against Court-packing for a long time now, although it is uncertain whether the convention continues to exist given Senate conduct since 2016. This Article also maintains that Court-packing is not as free from constitutional difficulty as the conventional wisdom holds, even if the arguments for its constitutionality are stronger on balance. Most importantly, this …

Credit Scoring Duality, Pamela Foohey, Sara Sternberg Greene

Law and Contemporary Problems

No abstract provided.

Race In The United States: A View From Outer Space, Stephen W. Smith, Géraldine Faes-Smith

Law and Contemporary Problems

No abstract provided.

Foreword: Two Americas, Doriane Lambelet Coleman

Law and Contemporary Problems

No abstract provided.

Xenophobic Conspiracy Theories And The Long Roots Of January Sixth, H. Timothy Lovelace Jr.

Law and Contemporary Problems

No abstract provided.

Unified Criminal Justice Reform, Brandon L. Garrett

Law and Contemporary Problems

No abstract provided.

Imagining The United States: Reflections From Constitutional Law, H. Jefferson Powell

Law and Contemporary Problems

No abstract provided.

Estoppel By Nonviolence, Darrell A.H. Miller

Law and Contemporary Problems

No abstract provided.

The Two "Two Americas" Of Trump And Romney, Lawrence Zelenak

Law and Contemporary Problems

No abstract provided.