Law Commons^™

Real Property, Real Problems: Expanding Alaska's Unfair Trade Practices And Consumer Protection Act, Michael E. Keramidas

Alaska Law Review

Alaska’s Unfair and Deceptive Acts and Practices (UDAP) statute was designed to provide broad, robust protections for everyday Alaskan consumers. Astonishingly, Alaska is one of only three states that does not protect Alaskans under its UDAP statute when they fall victim to fraudulent schemes involving real property. The Alaska Supreme Court has consistently upheld this interpretation of the UDAP statute by relying on precedent from over thirty years ago. At the same time, due to the COVID-19 pandemic, everyday Alaskans are more economically vulnerable than ever before, with the atmosphere being ripe for proliferation of fraudulent real property schemes. This …

Ware V. Ware And The Presumption Of Undue Influence In Confidential Relationships, Ian W. Fraser

Alaska Law Review

Alaska law has long recognized that a presumption of undue influence arises as a matter of law when a will’s primary beneficiary participates in its drafting and has a fiduciary or confidential relationship with the testator. In its 2007 decision Ware v. Ware, the Alaska Supreme Court extended this principle beyond testamentary scenarios to any situation in which the principal in a confidential relationship benefits from the relationship. But the decision stated the law incorrectly. The court’s analysis, cited precedents, and common sense all demonstrate that the court meant to say that the presumption of undue influence arises when a …

State Revenue Dedicated For Special Purposes: A Proposed Constitutional Amendment, Mark Andrews

Alaska Law Review

The Alaska State budget has decreased in recent years, and because of the lower price of oil, it is not expected to recover in the near term. This smaller budgetary pie may intensify the impulse to protect the funding of individual projects. However, the Alaska Constitution forbids the dedication of taxes for specific purposes. This Essay proposes a state constitutional amendment that would allow such dedications, subject to limits designed to avoid potential problems. The Essay describes the effect the proposal would have had on past decisions of the Alaska Supreme Court and compares the dedication of tax revenue to …

Note From The Editor

Alaska Law Review

No abstract provided.

Do You Know It When You See It? Using Alaska's Child Pornography Statute As A Nationwide Model For Proscribing Morphed Images, Daisy Gray

Alaska Law Review

In 1982, the United States Supreme Court addressed the tension between free speech and protecting children by holding child pornography outside the scope of First Amendment protections. Critical to the Court’s decision was the fact that child sexual abuse is necessary to produce child pornography. But what if technological advancement removed child abuse from the equation? The recent phenomena of virtual child pornography and morphed images involve the digital alteration of adult pornography to create the appearance of child pornography. The Alaska legislature amended its child pornography statute in response to these developments, proscribing the possession of morphed images. While …

Legalizing Local: Alaska's Unique Opportunity To Create An Equitable And Sustainable Seaweed Farming Industry, Logan Miller

Alaska Law Review

The seaweed farming industry in Alaska is in its nascent stages. There is tremendous potential for growth, but also risk of exploitation and inequitable outcomes. Alaskans have a unique and urgent opportunity to enact policies that can ensure and promote equitable, sustainable development that centers the voices and interests of marginalized groups—including Indigenous and rural populations—and provides benefits to local economies. This Note seeks to contribute to the creation of a sound policy framework for the responsible development of Alaska’s seaweed farming industry by advancing both a theoretical framework and specific policy recommendations. Drawing from the experiences of other jurisdictions …

The Ballot Is Stronger Than The Bullet: Alaska's Superior Strict Scrutiny Approach To Ballot Access Laws, Ben Sheppard, Josh Guckert

Alaska Law Review

Restrictive ballot access laws are the most burdensome requirement for third-party candidates. Such laws implicate First Amendment freedoms to associate both publicly and privately with like-minded individuals in order to advance political causes. Alaskan courts review state ballot access laws under the demanding standard of strict scrutiny. This standard was adopted through the efforts of Joe Vogler and his Alaskan Independence Party. The authors contend that such a standard has fostered Alaska’s unique openness toward third-party candidacies. Nonetheless, the Supreme Court of the United States does not utilize this same strict scrutiny review, instead using the Anderson-Burdick test, which balances …

Journal Staff

Alaska Law Review

No abstract provided.

The Economic Dimensions Of Family Separation, Stephen Lee

Duke Law Journal

Migrants in the United States experience varying degrees of harm related to family separation. This article focuses on the economic dimensions of these harms by focusing on transnational remittances, a topic that has generated significant scholarly attention. Within this story, remitters are pitched as heroes and remittances are held up as a critical, market-based solution for solving global poverty. Of course, this picture is incomplete. This account ignores remittance-sending countries and provides only a narrow account of law. This Article focuses on anti-money laundering policies, an important set of U.S. laws that regulate the remittance economy. Examining remittances from this …

Commodifying Marginalization, Abbye Atkinson

Duke Law Journal

Pillars of U.S. social provision, public pension funds rely significantly on private investment to meet their chronically underfunded promises to America’s workers. Dependent on investment returns, pension funds are increasingly investing in marginalized debt, namely the array of high-interest-rate, subprime, risky debt—including small-dollar installment loans and other forms of subprime debt—that tends to concentrate in and among historically marginalized communities, often to catastrophic effect. Marginalized debt is a valuable investment because its characteristically high interest rates and myriad fees engender higher returns. In turn, higher returns ostensibly mean greater retirement security for ordinary workers who are themselves economically vulnerable in …

Give And Take: State Courts Should Be Able To Certify Questions Of Federal Law To Federal Courts, John Macy

Duke Law Journal

For some time, federal courts faced with unresolved questions of state law have been able to certify those questions to state courts for resolution. In the past half-century, certification practice has exploded. Nearly every state allows at least one federal court to certify questions to its state courts, and some federal courts exercise the option frequently. However, there is no analogous tool for state courts to certify questions of federal law to federal courts. This Note argues that the creation of such a tool would benefit both courts and litigants. Of course, the considerations motivating certification to state courts, such …

Journal Staff

Duke Law Journal

No abstract provided.

Regulating Homeowners' Disaster Insurance Through Federal Intervention: Lessons From The Affordable Care Act, Shannon O'Hara

Duke Law Journal

One of the most impactful effects of climate change in recent years has been the increasing frequency and severity of natural disasters, even in geographic areas not previously known as disaster-prone. These disasters have caused untold property damage. Typically, the cost of rebuilding a home is assumed at least in part by private insurance companies, but many homeowners are significantly underinsured for disaster-related losses. Additionally, in areas where natural disasters are becoming increasingly frequent, private insurers have determined that it is no longer profitable to continually issue massive payouts without charging astronomical premiums, leaving many homeowners without access to financial …

Valuing Injunctive Relief Under The Class Action Fairness Act, Sadie J. Kavalier

Duke Law Journal

Injunctive relief class actions afford victims of mass harms a chance to sue collectively and enjoin an actor’s conduct. While the moral value of these suits may be monumental for litigants, one procedural question remains murky: how should courts value the amount in controversy to determine whether the suit qualifies for federal diversity jurisdiction? Historically, federal courts adopted one of two approaches. The “Plaintiff’s Viewpoint approach” values the amount in controversy strictly from any monetary benefit to the plaintiff(s). The “Either Viewpoint approach” values the amount in controversy as the higher of any monetary benefit to the plaintiff or the …

Error-Resilient Consumer Contracts, Danielle D'Onfro

Duke Law Journal

When firms contracting with consumers make mistakes, people get hurt. Inaccurate billing, misapplied payments, and similar problems push lucky consumers into Kafkaesque customer service queues—and unlucky ones off the financial cliff. Despite significant regulatory interventions, firms contracting with consumers continue to struggle to accurately bill customers, update accounts, and process payments. Firms largely rely on technology, especially databases and software, to discharge these servicing obligations. This technology must accommodate firms’ innovations in their contracts, shifting governmental regulations, and consumers’ unpredictable behavior. Given the complexity of servicing, even when firms invest significantly in technology, it will inevitably produce mistakes. When firms …

Insider Giving, S. Burcu Avci, Cindy A. Schipani, H. Nejat Seyhun, Andrew Verstein

Duke Law Journal

Corporate insiders can avoid losses if they dispose of their stock while in possession of material nonpublic information. One means of disposal, selling the stock, is illegal and subject to prompt mandatory reporting. A second strategy is almost as effective, yet it faces lax reporting requirements and enforcement. That second method is to donate the stock to a charity and take a charitable tax deduction at the inflated stock price. This “insider giving” is a potent substitute for insider trading. We show that insider giving is far more widespread than previously believed. In particular, we show that insider giving is …

Your Voice Gave You Away: The Privacy Risks Of Voice-Inferred Information, Emma Ritter

Duke Law Journal

Our voices can reveal intimate details about our lives. Yet, many privacy discussions have focused on the threats from speaker recognition and speech recognition. This Note argues that this focus overlooks another privacy risk: voice-inferred information. This term describes non-obvious information drawn from voice data through a combination of machine learning, artificial intelligence, data mining, and natural language processing. Companies have latched onto voiceinferred information. Early adopters have applied the technology in situations as varied as lending risk analysis and hiring. Consumers may balk at such strategies, but the current United States privacy regime leaves voice insights unprotected. By applying …

Journal Staff

Duke Law Journal

No abstract provided.

Rent-A-Bank: Bank Partnerships And The Evasion Of Usury Laws, Adam J. Levitin

Duke Law Journal

“Rent-a-bank” arrangements are the vehicle of choice for subprime lenders seeking to avoid state consumer protection laws. In a rent-a-bank arrangement, a nonbank lender contracts with a bank to make loans per its specifications and then buys the loans from the bank. The nonbank lender then claims to shelter in the bank’s federal statutory exemptions from state regulation. The validity of these arrangements is the most bitterly contested legal question in consumer finance.

The rent-a-bank phenomenon is a function of a binary, entity-based regulatory approach that treats banks differently than nonbanks and that treats bank safety-and-soundness regulation as a substitute …

Journal Staff

Duke Law Journal

No abstract provided.

Federal Judge Seeks Patent Cases, J. Jonas Anderson, Paul R. Gugliuzza

Duke Law Journal

That probably seems like a bizarre Craigslist ad. It’s not real—we mocked it up for this article. Still, and startlingly, it accurately portrays what’s happening in the Waco Division of the U.S. District Court for the Western District of Texas. One judge, appointed to the Western District only three years ago, has been advertising his courtroom through presentations to patent lawyers, comments to the media, procedural practices, and decisions in patent cases as the place to file a patent infringement lawsuit. That advertising has succeeded. In 2016 and 2017, the Waco Division received a total of five patent cases. In …

Central Bank Activism, Christina Parajon Skinner

Duke Law Journal

Today, the Federal Reserve is at a critical juncture in its evolution. Unlike any prior period in U.S. history, the Fed now faces increasing demands to expand its policy objectives to tackle a wide range of social and political problems—including climate change, inequality, and foreign and small business aid.

This Article develops a framework for recognizing and identifying the problems with “central bank activism.” It refers to central bank activism as situations in which immediate public policy problems push the Fed to aggrandize its power beyond the text and purpose of its legal mandates, which Congress has established. To illustrate, …

Trust The Process? Rethinking Procedural Due Process And The President’S Emergency Powers Over The Digital Economy, Jonathan W. Ellison

Duke Law Journal

To protect U.S. user data from foreign threats, presidents have wielded their emergency power to ban transactions with certain technology companies. This emergency power, if unchecked, threatens both the procedural rights of some technology companies and U.S. constitutional structure.

Concerning procedural rights, this Note evaluates existing procedural due process jurisprudence to identify the scope of these protections in the data security context, which remains unexplored in scholarship and judicial opinions. For guidance, this Note looks to cases involving counterterrorist financing and national security reviews of foreign investment, and it concludes that procedural due process protects many technology companies that collect …

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.

Negligent Algorithmic Discrimination, Andrés Páez

Law and Contemporary Problems

No abstract provided.

Journal Staff

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 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 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 …

Foreword, Jeff Ward

Law and Contemporary Problems

No abstract provided.