Digital Commons Network^™

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, …

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 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 …

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 …

"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, …

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 …

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 …

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 …

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 …

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 …

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,” …

Mexico’S Judicial Elections And The Politics Of Reform, Amanda Driscoll, Michael J. Nelson, Julio Ríos-Figueroa

Judicature International

No abstract provided.

Confession Contamination And Dna Exonerations, 1989-2025, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

The Brady Materiality Standard, Brandon L. Garrett, Adam M. Gershowitz

Faculty Scholarship

The Brady doctrine requires prosecutors to disclose all favorable and material evidence to the defense. To effectuate that rule, the U.S. Supreme Court has defined materiality as a “reasonable probability” that the evidence would have affected the outcome at trial. But apart from that definition, the Court has resisted offering any further guidance to lower courts. While far too little is known about how Brady materiality claims are actually adjudicated, there is strong evidence that courts often reject Brady claims involving withheld evidence on the grounds that the evidence was not significant enough to be material.

To examine how Brady …

Mahmoud V. Taylor: Cause Or Effect Of Disruptions In Public Schools?, Richard B. Katskee, Ira C. Lupu

Faculty Scholarship

Mahmoud v. Taylor represents an extraordinary departure from long-standing constitutional norms about the rights of parents of children in public schools. In Mahmoud, the Supreme Court upheld a Free Exercise Clause claim by parents in Montgomery County, Maryland, who sought to have their children (grades K–5) excused from readings that contain LGBTQ characters and themes. The majority opinion by Justice Alito rests on a highly controversial reading of Wisconsin v. Yoder.

Part I of the paper provides the doctrinal and historical backdrop to Mahmoud, which reflects the acute tension between a once-narrow understanding of Yoder and the post-Obergefell backlash against …

Religious Riders And The Sherman Act, Bailey Sanders

Faculty Scholarship

Can corporations engage in anticompetitive behavior on the basis of religious belief? While the answer may seem like an obvious no, in fact this question has largely been overlooked. It has hovered at the margins of the debate over religious exemptions: Proponents of religious exemptions have essentially argued that there is no harm in providing such exemptions to businesses because a competitive market will ensure consumers who might be denied services or goods by a religious firm can still obtain those goods and services elsewhere. But what if religiously minded businesses act in ways that are specifically designed to limit …

Are Private Equity Funds Liable For Anticompetitive Acquisitions?, Aslihan Asil, Paulo Henrique Alcantara Ramos, Amanda Starc, Thomas Wollmann

Faculty Scholarship

Private equity acquisitions grew tenfold over the past two decades. Over the same period, their focus shifted from financial engineering to industry consolidation, raising antitrust concerns. Heightening these concerns, privately backed acquisitions of competitors historically escaped detection by federal antitrust authorities in their incipiency because they fell below the reporting thresholds of the Premerger Notification Program. However, academic studies and agency investigations are now unearthing these transactions. Most salient is a recent complaint filed by the Federal Trade Commission challenging a series of acquisitions stretching back ten years.

In the wave of litigation that is likely to follow this “groundbreaking” …

Uncertain Enforcement And Standing To Sue, Ernest A. Young

Faculty Scholarship

Plaintiffs with strong claims that a law is unconstitutional may yet fail to establish standing when the law is rarely enforced. Other statutes, like Texas’s unusual abortion law, may render challenges difficult by delegating enforcement to private parties who are difficult to identify in advance. Both problems arise from the assumption that the law shapes behavior only through sanctions imposed in enforcement proceedings. This view is mistaken, both jurisprudentially and empirically. Worse, it requires courts to ask two unanswerable questions: How likely is enforcement? And how likely does Article III require it to be? It also asks standing doctrine to …

Crypto Litigation And Market Efficiency, Robert E. Bishop, Bradford Levy, Frank Partnoy, Daniel Taylor, Andrew Yeh

Faculty Scholarship

This paper investigates, for the first time in the literature, the factors that should matter to courts in determining whether a crypto  market is “efficient,” meaning that prices are sufficiently responsive to information. Based on new empirical evidence and a series of event studies, we recommend a new judicial framework for assessing market  efficiency in crypto litigation.

Market efficiency tests based on event studies have played an important role in other areas of litigation, particularly securities litigation, where courts frequently rely on what have become known as the “Cammer factors.” Academics have not yet assessed the extent to which market …