Digital Commons Network^™

Gary Myers, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding jurisprudence, overall judicial philosophy, and approach to being a judge.

Turning Carbon Into Gold: Incentivizing The New Alchemy, Anthony E. Chavez

Duke Environmental Law & Policy Forum

One approach to help address climate change is carbon capture and utilization (CCU). CCU involves capturing atmospheric carbon dioxide and using it to generate marketable products. CCU, however, needs significant additional research and development to reach its potential. Development of CCU could yield benefits far in excess of its actual ability to sequester carbon. Research and development of CCU could stimulate improvements in carbon capture technologies, incentivize the capture and sequestration of carbon, and generate products that can benefit society generally. Nevertheless, most CCU uses remain only theoretical, or significant barriers prevent their current implementation.

A number of policy tools …

Maroons, The Law And Degrowth: A Sustainable People In A Sustainable Environment, Brenda Reddix-Smalls

Duke Environmental Law & Policy Forum

Maroon settlements in North America's Mid-Atlantic colonies have recently received extensive attention from scholars and researchers. While anthropological and archaeological research and explorations have unearthed significant material liminal artifacts to indicate the presence of maroon communities in the Great Dismal Swamp (GDS) located between Virginia and North Carolina, few human remains from the interior have been reported and unearthed. Colonial records, slave laws, deeds, and newspaper advertisements of the early colonial period (1600s–1800s), provide written documentary evidence of maroon presence in the GDS. However, scant attention has been paid to the correlation between the profit motives of the colonial settlers, …

Anonymous Companies, William J. Moon

Duke Law Journal

Hardly a day goes by without hearing about nefarious activities facilitated by anonymous “shell” companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering “zero percent” tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts, however, have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations.

This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies—business …

Long Over-Due Process: Proposing A New Standard For Pretrial Detainees' Length Of Confinement Claims, Kendall Huennekens

Duke Law Journal

Prolonged pretrial detention poses one of the greatest unchecked threats to due process in the United States. The Supreme Court has never announced the proper analysis to adjudicate detainees’ allegations of prolonged detention pending trial (for criminal detainees) or removal (for noncitizens in immigration detention centers). Because the Court has continually ducked this constitutional question, detainees and courts alike lack guidance regarding how to vindicate this fundamental liberty interest.

This Note identifies the inconsistencies in the Court’s due process jurisprudence generally, as well as the dangers intrinsic to collapsing the standards used to evaluate pretrial detainees’ claims under the Due …

Reconciling Reproductive Rights: Eugenic Abortion And Home Birth Disputes At The European Court Of Human Rights, Olivia Coral Daniels

Duke Law Journal

Reproductive autonomy has been at the heart of culture clashes across the world for decades. Judicial intervention has proven necessary to resolve the rights and interests clashes between pregnant women, medical care providers, and fetuses. At the European Court of Human Rights (“ECtHR”), judges have carefully parsed Article 8 of the European Convention on Human Rights to balance the various rights implicated, including the right to abortion, the right to agency in giving birth, and the right to conscientious objection. Further, decisionmakers may take into account state interests in fetal life. As the ECtHR prepares to face the next stages …

F.B.I. V. Fazaga: The Secret Of The State-Secrets Privilege, Rebecca Reeves

Duke Journal of Constitutional Law & Public Policy Sidebar

When the government successfully invokes the state-secrets privilege, it allows for evidence to be excluded from trial if making that evidence public would threaten national security. It is unclear, however, under what circumstances this privilege can be invoked, what happens when it is successfully invoked, and what occurs after the evidence is excluded. In Federal Bureau of Investigation v. Fazaga, the Supreme Court will have the opportunity to clarify the state-secrets privilege. Additionally, the Court will be asked to determine whether the Foreign Intelligence Surveillance Act of 1978 (FISA) displaces this privilege when the government invokes it regarding evidence …

Volume 106, Number 1 (Spring 2022)

Judicature

No abstract provided.

Governing By Algorithm? No Noise And (Potentially) Less Bias, Cass R. Sunstein

Duke Law Journal

As intuitive statisticians, human beings suffer from identifiable biases—cognitive and otherwise. Human beings can also be “noisy” in the sense that their judgments show unwanted variability. As a result, public institutions, including those that consist of administrative prosecutors and adjudicators, can be biased, noisy, or both. Both bias and noise produce errors. Algorithms eliminate noise, and that is important; to the extent that they do so, they prevent unequal treatment and reduce errors. In addition, algorithms do not use mental shortcuts; they rely on statistical predictors, which means that they can counteract or even eliminate cognitive biases. At the same …

Automating Fda Regulation, Mason Marks

Duke Law Journal

In the twentieth century, the Food and Drug Administration (“FDA”) rose to prominence as a respected scientific agency. By the middle of the century, it transformed the U.S. medical marketplace from an unregulated haven for dangerous products and false claims to a respected exemplar of public health. More recently, the FDA’s objectivity has increasingly been questioned. Critics argue the agency has become overly political and too accommodating to industry while lowering its standards for safety and efficacy. The FDA’s accelerated pathways for product testing and approval are partly to blame. They require lower-quality evidence, such as surrogate endpoints, and shift …

Algorithm V. Algorithm, Cary Coglianese, Alicia Lai

Duke Law Journal

Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, …

Empathy In The Digital Administrative State, Sofia Ranchordás

Duke Law Journal

Humans make mistakes. Humans make mistakes especially while filling out tax returns, benefit applications, and other government forms, which are often tainted with complex language, requirements, and short deadlines. However, the unique human feature of forgiving these mistakes is disappearing with the digitalization of government services and the automation of government decision-making. While the role of empathy has long been controversial in law, empathic measures have helped public authorities balance administrative values with citizens’ needs and deliver fair and legitimate decisions. The empathy of public servants has been particularly important for vulnerable citizens (for example, disabled individuals, seniors, and underrepresented …

Modeling Through, Ryan Calo

Duke Law Journal

Theorists of justice have long imagined a decision-maker capable of acting wisely in every circumstance. Policymakers seldom live up to this ideal. They face well-understood limits, including an inability to anticipate the societal impacts of state intervention along a range of dimensions and values. Policymakers see around corners or address societal problems at their roots. When it comes to regulation and policy-setting, policymakers are often forced, in the memorable words of political economist Charles Lindblom, to “muddle through” as best they can.

Powerful new affordances, from supercomputing to artificial intelligence, have arisen in the decades since Lindblom’s 1959 article that …

Proper Cause For Concern: New York State Rifle & Pistol Association V. Bruen, Ali Rosenblatt

Duke Journal of Constitutional Law & Public Policy Sidebar

Gun rights and gun control advocates alike are watching the Supreme Court, to see what happens in New York State Rifle & Pistol Association, Inc. v. Bruen. In this pivotal Second Amendment case, the Court finds its first opportunity to substantially extend its 2008 decision in District of Columbia v. Heller, and to define the scope of the Second Amendment right to bear arms outside the home. The Court can decide this case narrowly by limiting its decision to the statutes at issue, New York’s “proper cause” regime (the “New York law”). Alternatively, the Court can rule broadly and use …

Prof. Michael T. Morley, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding the Split of the U.S. Court of Appeals for the Fifth Circuit.

Addressing Interstate Ground Water Ownership: Mississippi V. Tennessee, Alec Sweet

Duke Journal of Constitutional Law & Public Policy Sidebar

Contemporaneous with significant climate change and heightened environmental concerns, the Supreme Court has seen an increasing number of water-related lawsuits between states. These lawsuits include disputes over water storage and water compacts as well as disputes over water usage affecting aquaculture. Scientists predict that in the future, the United States could face rising temperatures, droughts, and natural disasters. If states cannot cooperate to conserve the water they share, these catastrophes could cause immense suffering and numerous conflicts between states. The Supreme Court needs a consistent doctrine to apply in water disputes.

In prior disputes over surface water, the Court has …

Spurious Pedigree Of The "Valid-When-Made" Doctrine, Adam J. Levitin

Duke Law Journal Online

The “valid-when-made” doctrine holds that if a loan was not subject to a state usury law when it was made, it can never subsequently become so upon transfer. The doctrine is supposedly a “well-established and widely accepted” common law doctrine that is a “cardinal rule” of banking law endorsed by multiple Supreme Court decisions.

This Article demonstrates the valid-when-made doctrine’s spurious historical pedigree. The doctrine is a modern invention, fabricated by attorneys for financial services trade associations in the appeals from the Second Circuit’s Madden decision. It rests solely on decontextualized and misinterpreted quotations from nineteenth century cases dealing with …

Transgender Athletes And International Sports Policy, Joanna Harper

Law and Contemporary Problems

No abstract provided.

Defining Sex, Edward Schiappa

Law and Contemporary Problems

No abstract provided.

Sex Neutrality, Doriane Lambelet Coleman

Law and Contemporary Problems

No abstract provided.

Organizing And Arguing Sex And Gender, Anne B. Goldstein

Law and Contemporary Problems

No abstract provided.

Board Diversity: People Or Pathways?, June Carbone

Law and Contemporary Problems

No abstract provided.

Foreword, Doriane Lambelet Coleman, Kimberly D. Krawiec

Law and Contemporary Problems

No abstract provided.

The Importance Of Referring To Human Sex In Language, Kathleen Stock

Law and Contemporary Problems

No abstract provided.

Sex, Stamina, And Politics, Richard Chused

Law and Contemporary Problems

No abstract provided.

Unlawful Genders, Anthony Michael Kreis

Law and Contemporary Problems

No abstract provided.

Feminism, Trans Justice, And Speech Rights: A Comparative Perspective, Madeleine Pape

Law and Contemporary Problems

No abstract provided.

Allan Brooke, Ii, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding the formative experience of clerking.

Privilege In Peril: U.S. V. Zubaydah And The State Secrets Privilege, Alana Mattei

Duke Journal of Constitutional Law & Public Policy Sidebar

U.S. v. Zubaydah presents an opportunity for the Court to settle the scope of the state secrets privilege and the role of the judiciary when the government invokes a claim of privilege. The state secrets privilege, invoked by the executive, gives courts the power to prevent the disclosure of information that could pose a threat to national security by excluding the particular evidence or dismissing the case. The Court will decide whether the Ninth Circuit erred by rejecting the Government’s assertion of the state secrets privilege over the depositions of former CIA contractors requested by Abu Zubaydah. The Ninth Circuit …

Protecting Procedural Safeguards In Federal Capital Trials: United States V. Tsarnaev, Ashley Dabiere

Duke Journal of Constitutional Law & Public Policy Sidebar

The Commentary considers the constitutionality of (1) the trial court’s exclusion of relevant mitigating evidence during the trial’s penalty phase and (2) the imposition of a death sentence by the Supreme Court during a moratorium on federal executions. In the United States District Court for the District of Massachusetts, the jury ultimately convicted Dzhokhar of thirty counts and recommended death sentences for six of the capital offenses. On appeal, the First Circuit vacated these death sentences and remanded the case for a new sentencing hearing with a different jury. First, the Court of Appeals held that the voir dire used …