Law Commons^™

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 …

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 …

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 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 …

Jailhouse Immigration Screening, Eisha Jain

Duke Law Journal

Within the past decade, U.S. interior immigration enforcement has shifted away from the street and into the jailhouse. The rationale behind jailhouse screening is to target enforcement efforts on those who fall within federal removal priorities. This Article shows how a program undertaken with the stated aim of targeting immigration enforcement has had precisely the opposite effect: it has massively expanded the reach of immigration enforcement and created extended carceral treatment within the criminal justice system based on suspected immigration status. This approach, in turn, leads to removals that lack adequate process, are inaccurate, or that reflect underlying racial biases …

Regulation And The Geography Of Inequality, Ganesh Sitaraman, Morgan Ricks, Christopher Serkin

Duke Law Journal

We live in an era of widening geographic inequality. Around the country, the spread between economically and culturally thriving places and those that are struggling has been increasing. “Superstar” cities like New York, San Francisco, Boston, and Atlanta continue to attract talent and grow, while the economies of other cities and rural areas are left behind. Troublingly, escalating geographic inequality in the United States has arrived hand in hand with serious economic, social, and political problems. Areas that are left behind have not only failed to keep up with their thriving peers; in many ways, they have stagnated and seen …

Why Bartlett Is Not The End Of Aggregated Minority Group Claims Under The Voting Rights Act, Scotty Schenck

Duke Law Journal

The 2020 election showed the importance of faith in the democratic system and the ability for citizens to cast a ballot for federal, state, and local races. After the election, state legislatures will be redrawing federal, state, and local electoral districts. Those new districts will affect the voting rights of nearly every American. This Note examines Section 2 of the Voting Rights Act of 1965, which has traditionally afforded minority group members the opportunity to challenge discriminatory electoral policies that thwart the ability “to participate in the political process and to elect representatives of their choice.” This is an important …

The Fourth Amendment Limits Of Facial Recognition At The Border, Emmanuel Abraham Perea Jimenez

Duke Law Journal

On any given day, hundreds of thousands of people enter the United States through ports of entry along the Mexican and Canadian borders. At the same time, the Department of Homeland Security (“DHS”) seizes millions of dollars’ worth of contraband entering the United States annually. Under the border-search exception, border officials can perform routine, warrantless searches for this contraband, based on no suspicion of a crime, without violating the Fourth Amendment. But as DHS integrates modern technology into its enforcement efforts, the question becomes how these tools fit into the border-search doctrine. Facial recognition technology (“FRT”) is a prime example. …

Journal Staff

Duke Law Journal

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

The Law Of Lenity: Enacting A Codified Federal Rule Of Lenity, Maisie A. Wilson

Duke Law Journal

The rule of lenity is an ancient canon of statutory construction that requires courts to find in favor of criminal defendants charged under ambiguous statutes. Traditionally, lenity endorses important constitutional concerns regarding due notice, consistent enforcement of law, and legislative supremacy. In modern courts, if lenity were regularly—and properly—applied, it could combat important social problems that plague our criminal justice system. Ambiguous laws allow government actors to arbitrarily target disfavored groups. And more generally, ambiguity within criminal law contributes to overcriminalization, wanton punishment, and capricious enforcement. As the volume of federal criminal law continues to expand, this overcriminalization leads to …

Scalpels Over Sledgehammers: Saving Diagnostic Patents Through Judicial Intervention Rather Than Legislative Override, Elaine H. Nguyen

Duke Law Journal

Diagnostic tests have become indispensable in the rapidly growing field known as “precision medicine.” Precision medicine tailors treatments to individual patients by using these diagnostic tests to identify how a patient may respond to different therapies. Diagnostics are expensive to develop but show promise in optimizing patient treatment and creating healthcare savings. Even as the medical community has heralded precision medicine as the way of the future, the Supreme Court and Federal Circuit have handed down a dizzying array of decisions regarding attempts to patent diagnostics and precision medicine techniques. Subsequently, courts have struggled to apply the test for patent …

Follow-Up Enforcement, Andrew K. Jennings

Duke Law Journal

Firms sometimes break the law. When they do, a host of government agencies have power to bring enforcement actions against them, which serve to punish past wrongs, compensate victims, disgorge unlawful gains, deter others, and prevent recidivism. Each of these purposes but one—preventing recidivism—is either met or not once the case reaches settlement. Whether recidivism will occur, however, remains uncertain at the time a case is settled. In light of that uncertainty, this Article takes a critical look at how enforcers currently address recidivism prevention—what it dubs the “clawback” approach—under which defendant firms receive penalty credit today in exchange for …

The Agent’S Problem, Asaf Eckstein, Gideon Parchomovsky

Duke Law Journal

The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had a long-lasting impact on corporate-law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem has surfaced: what we call the “reverse agency problem.” The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms, including pretrial diversion agreements and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach settlements with law enforcement authorities as expeditiously …

The Youngstown Canon: Vetoed Bills And The Separation Of Powers, Kristen E. Eichensehr

Duke Law Journal

As presidents make ever more expansive claims of executive power, Congress’s ability and willingness to counter the executive is often limited. That makes all the more significant instances when Congress does overcome structural and political challenges to pass legislation to rein in the president. But thanks to the Supreme Court’s invalidation of legislative vetoes in INS v. Chadha , such congressional actions are necessarily subject to presidential veto. President Donald Trump, for example, vetoed joint resolutions aimed at restraining executive action relating to the border wall and war powers. Although vetoed bills are not binding law, this Article argues that …