Law Commons^™

Mineral Royalties: Historical Uses And Justifications, Jayni Foley Hein, Caroline Cecot

Duke Environmental Law & Policy Forum

Governments and private landowners have collected royalties on mineral resources for centuries. When comprehensive measures to account for the environmental externalities of mineral extraction are politically or practically unavailable, federal and state governments may consider adjusting royalty rates as an expedient way to account for these externalities and benefit society. One key policy question that has not received attention, however, is whether a royalty rate can and should be manipulated in this way, assuming statutory discretion to do so. This article fills that gap by evaluating the argument for increasing federal or state fossil fuel royalty rates through historical, theoretical, …

Whether Ancillary Regulatory Burdens Imposed By The Clean Power Plan Unconstitutionally Commandeer The States, Zachary Hennessee

Duke Environmental Law & Policy Forum

No abstract provided.

Volume 101, Number 4 (Winter 2017)

Judicature

No abstract provided.

Foreword, Doriane Lambelet Coleman, Kimberly D. Krawiec

Law and Contemporary Problems

No abstract provided.

Sex In Sport, Doriane Lambelet Coleman

Law and Contemporary Problems

No abstract provided.

Sex And Gender Segregation In Competitive Sport: Internal And External Normative Perspectives, Patrick S. Shin

Law and Contemporary Problems

No abstract provided.

More Than Seals And Sea Otters: Opa Causation And Moratorium Damages, Allan Kanner

Duke Environmental Law & Policy Forum

Following the 2010 BP/Deepwater Horizon oil spill, the Federal Government issued a drilling and permitting moratorium in the Gulf of Mexico that resulted in significant economic losses for many businesses that serve the oil and gas industry. The Oil Pollution Act should have covered these economic damages; however, the Eastern District of Louisiana held otherwise. This article details how the Oil Pollution Act should have been applied to those who suffered economic loss as a result of the oil spill following the six month moratorium in the Gulf.

Navigating The Confluence: Sources Of Reconciliation Flowing Between The Human Right To Water And Economic Efficiency, Brett A. Miller

Duke Environmental Law & Policy Forum

The purpose of this research is to identify the confluence of the law and economics disciplines, using these distinct channels of scholarship not as an empirical vessel to determine the “value” or “valueless” nature of water, but rather as a means to reconcile externalities among interested parties and to identify management strategies that embrace sentiments of economic efficiency throughout the arena of global hydrocommerce. The various perspectives on water, particularly with regards to an increasing global population and demand for freshwater, elicits an intricate mosaic of tensions concerning the availability, accessibility, provision, and protection of this fundamental natural resource.

Billions …

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

Placing Children With Relatives: The Case For A Clear Rationale For Separate Foster Care Licensing Standards, Background Check Procedures, And Improved Relative Placement Statutes In Alaska, Courtney Lewis

Alaska Law Review

Policymakers generally agree that if a child cannot live safely with her parents, then the child should be placed expeditiously with a relative. Alaska’s current system for evaluating relative caregivers is overly complicated, creating unnecessary barriers for relatives and increasing the risk of mistakenly denying placement with relatives. This Article argues that Alaska should adopt a three-step approach to achieve better outcomes based on the American Bar Association’s model licensing standards, which are narrowly tailored to evaluate whether a child should be placed with a relative. Additionally, this Article argues that Alaska should repeal its state statute that gives the …

Alaska’S Judicial Retention Elections: A Comparative Analysis, Albert J. Klumpp

Alaska Law Review

The results of recent judicial retention elections in Alaska, and the recent increase in political activities related to judicial selection in Alaska and many other states, have given rise to concerns about the fates of future Alaska retention candidates. This Article analyzes the results of retention elections nationwide and suggests that there may be good reason for Alaska judges to be worried. Baseline levels of voter support for retention candidates in most of Alaska are among the lowest in the country, and have gradually been declining over time. In addition, Alaskan voters have targeted individual judges for removal more frequently …

The Grand Compromise: The Ancsa Section 7(I) Settlement Agreement, Ethan G. Schutt, Aaron M. Schutt

Alaska Law Review

In 1982, Alaska’s twelve regional Native corporations finalized and executed a settlement agreement ending a decade of litigation involving Section 7(i) of the Alaska Native Claims Settlement Act. The 121-page Settlement Agreement is complex and covers a number of issues. The Agreement annually governs the distribution of tens of millions in revenue shared between the regional corporations pursuant to Section 7(i). This Article reviews the history of the Settlement Agreement, with emphasis on the negotiations that led to it, as well as the legal challenges regarding the Agreement since its execution. This Article also reviews the Agreement, section-by-section, and provides …

Justice Reinvestment In Alaska: The Past, Present, And Future Of Sb 91, Michael A. Rosengart

Alaska Law Review

In the summer of 2016, Alaska Governor Bill Walker signed SB 91, a landmark criminal justice reform law that implements a “justice reinvestment” program. SB 91 aims to reduce Alaska’s prison population, cut corrections costs, and then reinvest savings back into the state to improve public safety and reduce recidivism. It is 193 sections long and is likely the most substantial change to Alaskan criminal law since statehood. It also comes at a time when similar legislation, spearheaded by the Justice Reinvestment Initiative, is proliferating through the country. This Note overviews Alaska’s corrections problems that prompted SB 91, discusses the …

Note From The Editor

Alaska Law Review

No abstract provided.

Oil Production Tax In Alaska: An Evolution Away From A “True” Production Tax, Andrew C. Macmillan

Alaska Law Review

Alaska has long relied on taxing petroleum extraction as a key source of funding for the State. The oil production tax has changed dramatically since the first barrels of oil were taken from Alaskan land. Most noticeably, the production tax has adjusted its progressivity element and has moved from a gross tax to a net tax. This Note provides a historical reference to Alaska’s oil production taxation scheme in an effort to address whether it is a “true” production tax. Asserting that Alaska has departed from a “true” production tax scheme insofar as it more resembles an income tax, this …

Journal Staff

Alaska Law Review

No abstract provided.

Intrastate Crowdfunding In Alaska: Is There Security In Following The Crowd?, Evan Glustrom

Alaska Law Review

This Note analyzes the potential of crowdfunding for the State of Alaska. Crowdfunding can open up new sources of revenue for small businesses while simultaneously providing an avenue for Alaskans to invest in their own communities. The potential, however, must be weighed against the risk of fraud, poorly run businesses, and the lack of protection for investors. It is the responsibility of the Alaska legislature, the State’s securities administrators, and the Securities and Exchange Commission to ensure that investors are adequately protected. This Note discusses Alaska’s crowdfunding legislation, the Alaska Intrastate Crowdfunding Exemption, and recommends changes to the legislation that …

Contracts Ex Machina, Kevin Werbach, Nicolas Cornell

Duke Law Journal

Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Do smart contracts offer a superior solution to the problems that contract law addresses? In this article, we aim to understand both the potential and …

The Bootstrap Trap, Sara Sternberg Greene

Duke Law Journal

In the mid-1990s, Congress fundamentally altered the public safety net when it passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, otherwise known as welfare reform. Under the PRWORA, cash assistance was no longer an entitlement for income-qualifying families; instead, recipients faced work requirements and lifetime limits on receiving benefits. Bipartisan reformers sought to transform welfare from a program believed to trap poor mothers in a "culture of dependence" into a program that would promote a culture of "self-sufficiency" and "personal responsibility." This shift in culture, it was argued, would ultimately lead to upward mobility. This Article …

Journal Staff

Duke Law Journal

No abstract provided.

Don't Try This At Home: The Fda's Restrictive Regulation Of Home-Testing Devices, Shelby Baird

Duke Law Journal

Over the past forty years, the Food and Drug Administration (FDA) has successfully restricted consumers' access to home-testing applications based on the notion that it should protect individuals from their own reactions to test results. In the 1970s, the FDA briefly denied women access to home pregnancy tests that were identical to those used in laboratories. In the late 1980s and early 1990s, it relied on concerns about consumer responses to HIV status results to justify a categorical ban on applications for HIV home-testing technology. More recently, it placed burdensome restrictions on direct-to-consumer (DTC) genetic testing companies, such as 23andMe, …

The Class Is Greener On The Other Side: How Private Donations To Public Schools Play Into Fair Funding, Abigail Margaret Frisch

Duke Law Journal

It has been observed that forays into public education finance resemble Russian novels-"long, tedious, and everybody dies in the end." On any given day, dozens of news stories describe schools nationwide struggling to make ends meet. And, just as "each unhappy family is unhappy in its own way," each underfunded school is underfunded in its own complicated way. Funding for public education comes from many places, chief among them local property taxes, at least historically. States-which bear primary responsibility for administering their education systems-and private litigants have struggled for over sixty years to produce funding formulas that weaken the link …

Insurance Policies: The Grandparents Of Contractual Black Holes, Christopher C. French

Duke Law Journal Online

No abstract provided.

Cinderella Sovereignty, Anna Gelpern

Duke Law Journal Online

The Blocher-Gulati critique of the barriers to secession under public international law is insightful and thought provoking, an important contribution in its own right. I wish it had not been eclipsed by the authors' clever and provocative fix: turning sovereignty into a tradable commodity. I suspect that this fix would bring about more suffering than the status quo for two reasons. First, a market for sovereign control is unlikely to be a market in any meaningful sense. Therefore, trading sovereignty would not discipline oppressors. Second, should something like a real market materialize, it could diminish the incentives for states to …

Collection Of Cryptocurrency Customer-Information: Tax Enforcement Mechanism Or Invasion Of Privacy?, Austin Elliott

Duke Law & Technology Review

After granting permission to the Internal Revenue Service to serve a digital exchange company a summons for user information, the Federal District Court for the Northern District of California created some uncertainty regarding the privacy of cryptocurrencies. The IRS views this information gathering as necessary for monitoring compliance with Notice 2014-21, which classifies cryptocurrencies as property for tax purposes. Cryptocurrency users, however, view the attempt for information as an infringement on their privacy rights and are seeking legal protection. This Issue Brief investigates the future tax implications of Notice 2014-21 and considers possible routes the cryptocurrency market can take to …

This Name Is Your Name: Public Landmarks, Private Trademarks, And Our National Parks, Megan Elaine Ault

Duke Law Journal

To generations of Americans, Yosemite National Park and its landmarks have symbolized the core democratic ideals of the United States—spaces truly owned by the people and open to all. For those who created our national parks, “[t]he purpose of preserving this land was to cultivate a kind of rare experience [they] saw as endangered by a social world that turned every thing, moment, and human being to profit.” It is striking, then, that Yosemite, one of the nation’s first national parks, has become the focus of a battle over whether our landmarks and their names belong to us all or …

The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Duke Law Journal

Rote use of a standard-form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. When they occur, rote usage and encrustation weaken the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is emptied of meaning, it can create a contractual black hole in which, as the term loses meaning, random variations in language appear and persist. What, then, are the consequences if parties exploit these variations in language by successfully advancing an interpretation the market disavows? …

Polygamous Marriage, Monogamous Divorce, Michael J. Higdon

Duke Law Journal

Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more …

Journal Staff

Duke Law Journal

No abstract provided.

Rule 24 Notwithstanding: Why Article Iii Should Not Limit Intervention Of Right, Zachary N. Ferguson

Duke Law Journal

The Supreme Court recently decided in Town of Chester v. Laroe Estates, Inc. that intervenors of right under Federal Rule of Civil Procedure 24(a)(2) must demonstrate independent Article III standing when they pursue relief different from that requested by an original plaintiff. This decision resolved, in part, a decades-long controversy among the Courts of Appeals over the proper relationship between Rule 24 intervention and Article III standing that the Court first acknowledged in Diamond v. Charles. But the Court’s narrow decision in Town of Chester hardly disposed of the controversy, and Courts of Appeals are still free to require …