Digital Commons Network^™

The Case For Chevron Deference To Immigration Adjudications, Patrick J. Glen

Duke Law Journal Online

Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower— to show that “this case against Chevron has . . . its greatest force when it comes to immigration.”

The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general …

The Supreme Court's Reticent Qualified Immunity Retreat, Katherine Mims Crocker

Duke Law Journal Online

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and …

Neuroscience And The Model Penal Code's Mens Rea Categories, Andreas Kuersten, John D. Medaglia

Duke Law Journal Online

This Essay addresses recent research and commentary regarding the potential contributions of cognitive neuroscience to law. For the first time, cognitive neuroscience methods have been brought to bear on the Model Penal Code’s (MPC’s) culpable–mental state categories through a neuroimaging study seeking to identify the neural correlates of knowledge and recklessness. Subsequently, this study has been presented as a paradigm for utilizing cognitive neuroscience to answer important legal questions. However, the original experiment appears to suffer serious experimental-design and conceptual limitations, belying subsequent advocacy for the legal utility of cognitive neuroscience. This Essay methodically details these limitations and argues that …

Kinder Solutions To An Unkind Approach: Supporting Impoverished And Ill Parents Under North Carolina's Filial Responsibility Law, Karen L. Sheng

Duke Law Journal

The United States is caught in the crosshairs of skyrocketing health-care costs and a rapidly aging population. Families are buckling under the weight of supporting and caring for aging relatives, especially with the exorbitant costs of long-term care facilities, hospitalization, and chronic illness management. Although the government provides support through programs like Medicare and Medicaid, adult children, acting on an emotional impetus to support parents, often have to organize that support. They may even have a legal duty in over half of the states. These filial responsibility laws impose a duty on adult children to support their parents who cannot …

The Gay Perjury Trap, Christopher R. Leslie

Duke Law Journal

In Bostock v. Clayton County, the Supreme Court held Title VII’s prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. Prejudiced employers and managers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against lesbian, gay, and bisexual employees. A better understanding of history can …

The Unlikely Heroes Of Fair Elections: Contemporary Third-Party Enforcement Of Campaign Finance Violations, Chelsea Cooper

Duke Law Journal

It is uncontroversial that the Federal Election Commission fails to enforce campaign finance law adequately. This Note contributes to this discussion by analyzing more than four thousand summaries of standard enforcement proceedings to demonstrate the distribution of enforcement at the Federal Election Commission. This analysis indicates that the percentage of internally generated standard enforcement proceedings has declined precipitously, while the number of standard enforcement proceedings initiated each year has remained relatively constant. At present, the agency initiates very few standard enforcement proceedings.

Instead, third-party enforcers fill the enforcement void. Third-party enforcers are members of the public that monitor political actors …

Foreword, Jeff Ward

Law and Contemporary Problems

No abstract provided.

Negligent Algorithmic Discrimination, Andrés Páez

Law and Contemporary Problems

No abstract provided.

Normative Dimensions Of Consenual Application Of Black Box Artificial Intelligence In Administrative Adjudication Of Benefits Claims, Frank Pasquale

Law and Contemporary Problems

No abstract provided.

Are Judges More Transparent Than Black Boxes? A Scheme To Improve Judicial Decision-Making By Establishing A Relationship With Mathematical Function Maximization, Wim De Mulder, Peggy Valcke, Geneviève Vanderstichele, Joke Baeck

Law and Contemporary Problems

No abstract provided.

Their Brothers' Keepers: Procedural Justice In The Intermediate Appellate Courts, Keenan Molaskey

Law and Contemporary Problems

No abstract provided.

The New Parental Rights, Anne C. Dailey, Laura A. Rosenbury

Duke Law Journal

This Article sets forth a new model of parental rights designed to free children and families from the ideals of parent–child unity and family privacy that underlie the law’s expansive protection for parental rights. The law currently presumes that parents’ interests coincide with those of their children, creating an illusion of parent–child union that suppresses the very real ways in which children’s interests and identities, even at a young age, may depart from those of their parents. Expansive protection for parental rights also confines children to the private family, ignoring children’s broad range of interests beyond the family and thwarting …

Food For Thought: Intellectual Property Protection For Recipes And Food Designs, Kurt M. Saunders, Valerie Flugge

Duke Law & Technology Review

As any chef will tell you, cooking and food preparation is a creative, sometimes innovative, endeavor. Much thought and time is invested in selecting ingredients, developing the process for preparing the dish, and designing an interesting or appealing look and feel for a food item. If this is true, then it should come as no surprise that recipes, food designs, and other culinary creations can be protected by various forms of intellectual property, namely: trade secrets, design and utility patents, trade dress, but usually not copyright. This article considers how intellectual property law has been applied to protect recipes and …

Volume 105, Number 3 (Fall/Winter 2021-22)

Judicature

No abstract provided.

Implementing Ecosystem-Based Management, Brian Gray, Jennifer Harder, Karrigan Bork

Duke Environmental Law & Policy Forum

Most freshwater ecosystems in the United States are in a state of collapse. Existing management efforts take a piecemeal approach, addressing individual stressors, managing the systems for individual benefits, and protecting individual species. These disjointed efforts are doomed to fail. Both the legal literature and the scientific literature are rich with articles extolling the advantages of ecosystem-based management; that is, simultaneous management of water, land, and organisms to achieve a desired ecosystem condition benefiting both native biodiversity and human well-being. This approach has succeeded in other aquatic systems, particularly marine ecosystems, but the ecosystem-based management approach has struggled for adoption …

Nondisclosure Agreements And The Unlikely Convergence Of Sexual Harassment And Fracking Toxic Tort Claims, Sean Lonnquist

Duke Environmental Law & Policy Forum

No abstract provided.

Note: Modernizing Conservationism: Renewable Energy's Species-Preserving Effect And The Endangered Species Act, Chase Hamilton

Duke Environmental Law & Policy Forum

Environmental policymakers face a dilemma, for the construction and operation of renewable energy facilities mitigates ecologically destructive climate change in the long term but often adversely affects species in the short term. This paper provides empirical, legal, and normative resources for analyzing what I call "species clash." In most cases, renewable energy is much more helpful than harmful when it comes to preventing species extinctions, but the Endangered Species Act paradoxically poses a barrier to such species-preserving projects. Framing the benefits of renewable energy in terms of species conservation may not only help secure speedy and cost-efficient compliance with the …

The (Human) Rights Of Nature: A Comparative Study Of Emerging Legal Rights For Rivers And Lakes In The United States Of America And Mexico, Elizabeth Macpherson

Duke Environmental Law & Policy Forum

An international consensus of scientific experts is now demanding "immediate action" in response to the environmental, climate, and biodiversity crises. But are our legal and regulatory frameworks equipped to respond to the rapid pace of environmental degradation, biodiversity loss and climate change? What incidence is there, transnationally, of laws that seek to protect the Earth from the humans that inhabit it? In the past few decades, there is a growing social, legal, and political movement towards more ecocentric regulation of the planet, where new laws and institutions seek to protect natural resources for their own intrinsic value. In this paper, …

Volume 105, Number 2 (Summer 2021)

Judicature

No abstract provided.

Francis Mcgovern: The Consummate Facilitator, Teacher, And Scholar, Elizabeth Cabraser, Robert Klonoff

Law and Contemporary Problems

No abstract provided.

Many Minds, Many Mdl Judges, Brian T. Fitzpatrick

Law and Contemporary Problems

No abstract provided.

A Legend In His Own Time, And A Fixer For Mass Tort Litigation, Richard Marcus

Law and Contemporary Problems

No abstract provided.

Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang

Law and Contemporary Problems

No abstract provided.

Mdl Drano: Rule 23-Based Solutions To Mass Tort Buildup, Myriam Gilles, Gary Friedman

Law and Contemporary Problems

No abstract provided.

Improving Our Understanding Of Mass Claims Evolution, Management, And Resolution: A Research Agenda In Honor Of Francis Mcgovern, Deborah R. Hensler

Law and Contemporary Problems

No abstract provided.

Rule 23 And The Triumph Of Experience, Samuel Issacharoff

Law and Contemporary Problems

No abstract provided.

Internal And External Governance In Complex Litigation, Troy A. Mckenzie

Law and Contemporary Problems

No abstract provided.

Mature Aggregation And Angst: Reframing Complex Litigation By Echoing Francis Mcgovern's Early Insights Into Remedial Innovation, Judith Resnik

Law and Contemporary Problems

No abstract provided.

Federalism In The Algorithmic Age, Chad Squitieri

Duke Law & Technology Review

No abstract provided.

The Emperor's Old Bonds, Mike Chen, Charlie Fendrych, Andres Paciuc

Duke Journal of Comparative & International Law

Recent news articles have suggested that Trump's trade war may finally provide relief to American holders of defaulted, pre-1950s Chinese bonds. Here, we examine the hurdles set before these bondholders, namely establishing jurisdiction over the People’s Republic of China as a sovereign and the long-lapsed statute of limitations. We also evaluate the Chinese government’s possible recourse.

Our investigation yielded key takeaways. First, to establish jurisdiction in the U.S., the bond must be denominated in U.S. Dollars or state a place of performance within the country. Second, to overcome the long-expired statute of limitations and win an equitable remedy, it must …