Digital Commons Network^™

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, …

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 …

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 …

Environmental Law’S Missing Piece: The Right To Nature, Ori Sharon

Duke Environmental Law & Policy Forum

For decades, environmental law has been trapped in a binary value system: it either treats nature instrumentally, as property to be used for human benefit, or views it as intrinsically valuable, deserving protection for its own sake. Both approaches, though ethically powerful, have struggled to deliver consistent and enforceable protections. As ecological crises deepen, this conceptual stalemate is no longer just inadequate—it is dangerous.

This article argues that environmental law remains structurally incomplete. It has overlooked a third category of value—relational value—long recognized in ethics and conservation science but largely absent from legal doctrine. Relational values arise from the lived, …

Local Rulemaking, Zachary D. Clopton, Marin K. Levy

Duke Law Journal

Any case heard in a United States federal court must adhere to a set of rules—or rather, a few different sets of rules. Regardless of the subject matter of the suit, the parties (and the judge) must follow the relevant Federal Rules. But that is not all. Parties bringing the case must also comply with local rules—those important rules that govern litigation in the space between and around the Federal Rules. These district- and circuit-specific rules govern highly consequential aspects of federal litigation, such as how cases will be assigned to judges, how those cases will then be managed, and …

The End Of Means-End Scrutiny, Francesca Procaccini

Duke Law Journal

It is black-letter law that courts apply means-end scrutiny to evaluate laws that burden constitutional rights. Not anymore. Discreetly and pervasively, the Supreme Court has ousted means-end scrutiny from constitutional law. It has done so through a series of smaller and seemingly unconnected doctrinal incursions, including the introduction of history and tradition tests, the transformation of equality doctrines, and the embrace of formalist rules to govern constitutional law.

This Article provides a complete and interconnected critique of the numerous doctrinal transformations that together comprise the larger constitutional revolution of ending means-end scrutiny. It tracks how this upheaval now touches nearly …

Supervising The Omnipresent Casino: Evaluating The Role Of State And Local Regulation In Stemming Youth Addiction To Sports Gambling, Matthew Connor Flink

Duke Law Journal

Since 2018, state legalization of sports betting and the industry’s corresponding proliferation has driven an epidemic of youth addiction. Current state legislation and regulations do little to combat youth addiction. Many legal scholars emphasize the value that a federal regulatory regime would provide to reign in youth sports betting. This Note explores the value that state and local government can have in the sports gambling space. To illustrate the unique importance of state and local legislation and regulation of sports betting, this Note analogizes to another addictive product with a history of youth addiction: nicotine.

Nicotine has been a regulatory …

"The Persistent And Muddy Dispute": How The Facial/As-Applied Distinction Creates Problems For Constitutional Litigants, Sean P. Wilson

Duke Law Journal

The distinction between facial and as-applied challenges continues to play a central role in constitutional litigation, including at the Supreme Court. Yet, the distinction and its related rules have long suffered from a lack of doctrinal clarity and consistency. This Note sets out a descriptive taxonomy of three problems facing constitutional litigants because of the murkiness surrounding the facial/as-applied distinction.

First, the “Doctrinal-Test Problem” refers to the fact that many constitutional doctrines appear to require the courts to engage in facial adjudication, even if a litigant wishes to bring an as-applied claim. Thus, as-applied litigants are forced into facial challenges, …

The Fourth Amendment’S Failure To Protect Against Mass Dna Collection At The Border, Zoe Holtzman

Duke Law Journal

The U.S. government has long surveilled immigrant communities by collecting identifying information, including biometric data. The passage of the DNA Fingerprint Act of 2005 expanded the possible sources of data to include DNA. In 2020, the Trump administration seized on the permissive language of the statute to require that DNA be collected from nearly every noncitizen detained by the federal government. Now, 2.6 million noncitizens and counting have their DNA permanently stored by the federal government. This expansive surveillance program operates despite the Fourth Amendment’s promise of protection because of the exceptionalism of both DNA searches and the border in …

Structural Logics Of Presidential Immunity, Aziz Z. Huq

Duke Law Journal

In Trump v. United States, the Supreme Court wrought two new presidential immunities from criminal prosecution. Supplemented by a pair of penumbral evidentiary rules, these immunities inhibit criminal indictment or conviction of the president, and indeed the criminal prosecution of a substantial number of subordinate officials, across many imaginable fact-patterns. The Court justified its interventions on consequentialist, and not originalist or precedential, grounds. But its analysis of immunity’s actual and likely effects was radically incomplete. It focused narrowly on the person of the president, eschewing any attempt to situate or relate that individual’s incentives and behavior to the wider institutional …

What Can Legal Knowledge Do For Access To Justice?, Kathryne M. Young, Heidi H. Liu

Duke Law Journal

Worker misclassification is one of the most pervasive and harmful civil justice problems in the U.S. The inaccurate and illegal categorization of workers as independent contractors costs U.S. workers billions of dollars annually in overtime pay and health benefits—a problem that has become even more pervasive with the expansion of the gig economy.

Yet, worker misclassification is only one dimension of the broader “access to justice crisis” in the United States—the unsolved legal problems and unmet legal needs that touch most people’s lives and livelihoods at many points, but especially impact low-income people and people of color. These legal issues …

From Womb To Wallet: Recognizing The Placenta’S Lawful Role In The U.S. Marketplace, Christina Moss

Duke Law Journal

Modern biotechnology has transformed the human placenta from medical waste into a lucrative commercial resource. Placental tissue is used across industries—from cosmetics touting antiaging effects to pharmaceuticals employing it as a raw material for wound therapies. Yet while hospitals and biotechnology companies profit from this growing placenta economy, the women from whom the placentas originate receive neither compensation nor complete information. Federal law provides little guidance, and most states lack explicit regulations, producing a legal vacuum that allows stakeholders to exploit ambiguity. For-profit companies routinely frame their placenta procurement as altruistic donation rather than commercial exchange, citing the federal law …

Fair And Balanced: Why We Need A Federal Anti-Slapp Law For Good-Faith Journalism, Christian H. Ross

Duke Law Journal

Strategic lawsuits against public participation (SLAPPs) pose a serious threat to free expression, often targeting journalists and media outlets to intimidate or silence critical reporting. Many states have adopted anti-SLAPP statutes that provide procedural protections for speech to deter meritless, speech-chilling suits. But not all states have such laws, resulting in a patchwork of uneven speech protections across the United States. Even where such laws exist, SLAPP plaintiffs can often evade them by forum-shopping or removing to federal court, where state anti-SLAPP provisions do not always apply. In the absence of a federal anti-SLAPP law, journalists across the country remain …

Note From The Editor

Alaska Law Review

No abstract provided.

The Corpus Juris Of (Alaska Native) Inherent Tribal Sovereignty, Nazune Menka

Alaska Law Review

The inherent Tribal sovereignty of Native nations predates the formation of the United States and is reflected in the constitutional vision of tripartite sovereignty. Yet their sovereignty is oft diminished explicitly by federal law or implicitly by federal courts. This implicit divestiture is often the result of the federal judiciary’s inconsistent interpretations of Indigenous Peoples law. This Article argues that a more principled and coherent approach for federal judges would be to consistently make use of the corpus juris, or whole body of law, including the in pari materia or affiliated statutes canon. The Article posits that the corpus juris …

Anchoring Deference: The Chevron Doctrine, Loper Bright, And Alaska Administrative Law, Jon W. Katchen, Will R. Crowther

Alaska Law Review

After statehood, the Alaska Supreme Court operated on a blank legal slate. No Alaska precedent, for example, addressed the fundamental question of when courts should defer to an agency’s statutory interpretation. In addressing this issue, the Alaska Supreme Court largely adopted the framework developed by federal courts in the 1950s and 1960s, prior to the emergence of the Chevron doctrine. The federal case law from this era relied on nebulous standards to guide when an agency’s interpretations were subject to the deferential reasonable basis review. Not surprisingly, by adopting that federal jurisprudence, Alaska precedent suffers from the same shortcomings. And …

“Parked Under The Influence” Is Not A Crime: Why The Alaska Supreme Court’S Broad Interpretation Of “Operating A Vehicle” Is Wrong, Paul A. Clark

Alaska Law Review

In Jacobson v. State, the Alaska Supreme Court interpreted the word “operate” in Alaska’s driving under the influence statute to include sitting in a running, parked car. Jacobson was part of a national trend. In the last few decades, courts in about half of states have interpreted “operate” to mean “being in control of” or “exercising dominion over” a vehicle—for example, sitting in an unmoving vehicle. This judge-made law is controversial as it expands the definition of “operate” without legislative approval. As one dissenting justice put it in a case similar to Jacobson, “[t]he effect of the majority opinion is …

Circumscribing Alaskan Law Enforcement’S Access To Pretrial Electronic Monitoring Location Data, Rosa Gibson

Alaska Law Review

In Alaska, pretrial detainees comprise much of the state’s prison population. Electronic monitoring—made possible by recent bail reforms—provides a pathway to pretrial release for those who cannot afford to pay bail. Using GPS data, the Pretrial Enforcement Division can monitor the location of a releasee’s ankle monitor for supervisory purposes. But when law enforcement seeks warrantless access to that data to investigate crimes other than the one for which a releasee is awaiting trial, that intrusion raises concerns under Alaska’s constitutional right to privacy. This Note argues that the Alaska judiciary, which is best positioned to guard the privacy of …

No More “Vague Handwaving”: Applying The Overlooked “Person Aggrieved” Provision Of The North Carolina Administrative Procedure Act To Election Litigation, William Allred

Duke Law Journal

The North Carolina Administrative Procedure Act requires claimants against state agencies to be “persons aggrieved,” meaning they have been “affected substantially” in their “person, property, or employment” by the challenged agency action. But in the 2024 general election, North Carolina state courts largely ignored this requirement, permitting plaintiffs to sue based on allegations of harm that some considered to reflect no more than “vague handwaving about election integrity.” This fact-light litigation strained state resources and reduced ballot access. But the solution is not so simple as just reminding courts that a statute exists. State appellate courts have never explained how …

Foreword, Régis Bismuth, Anne-Catherine Muller, Anne-Claire Rouaud, Steven L. Schwarcz

Law and Contemporary Problems

No abstract provided.

Delegation And Agency Deference In Financial Regulation: A Comparative Eu-U.S. Perspective, Rosa M. Lastra, Patricia A. Mccoy

Law and Contemporary Problems

No abstract provided.

An Ocean Apart: The Regulation Of Financial Technology In The United States And European Union, Dan Awrey, Pauline Pailler

Law and Contemporary Problems

No abstract provided.

The Regulation Of Technological Innovation In Financial Services: A Comparative Approach With Respect To Digital Assets And Artificial Intelligence, Howell E. Jackson, Katja Langenbucher

Law and Contemporary Problems

No abstract provided.

The Divergence Of Mandatory Climate Disclosure In The United States And European Union, Alessio M. Pacces, David Zaring

Law and Contemporary Problems

No abstract provided.

Banking On Jarkesy, Jacob Cunningham, Todd Phillips

Duke Law Journal Online

The 150-year-old bank regulatory system is under threat. Following the Supreme Court’s landmark decision in Jarkesy, bankers have filed numerous lawsuits challenging the ability of the federal bank regulatory agencies to adjudicate cases in non-Article III tribunals. But unlike the agencies tasked with enforcing the securities, antitrust, and consumer protection laws, the banking regulators lack statutory authority to file cases in federal court. A decision invalidating their in-house adjudicative authority strips of them of any forum in which to file enforcement actions.

This essay argues that these lawsuits should fail. Because the Seventh Amendment jury trial right exempts “public rights,” …