Law Commons^™

A Model Administrative Order Regarding The Use Of Artificial Intelligence, Martin B. (Marty) Mcgee

Duke Center on Law & Technology

No abstract provided.

Patronage Pardons, Lee Kovarsky

Duke Law Journal

Abuse of presidential pardon power is taking a new and frightening turn. The Donald Trump administration is using clemency, including pardons, to signal impunity to regime allies contemplating misconduct. Such clemency has a predictable effect: it induces loyalist crime by reducing the expected penalty. "Patronage pardoning" refers to the clemency practices that power this loyalty-for-protection exchange. Those practices pose a grave threat to the rules-based constitutional order, and they are the subject of this Article.

Some historical observations predicate the diagnostic and prescriptive arguments that come later. Most importantly, the Framers concentrated federal pardon power in the president because they …

Ensuring "The Right To Live In The World": The Right To Repair Powered Wheelchairs, Maximillian J. Grahl

Duke Law Journal

Twenty-seven years ago, in Olmstead v. L.C., the Supreme Court held that improperly institutionalizing people with disabilities is a form of unlawful discrimination. In doing so, the Court acknowledged that people with disabilities have a right to live free from confinement. Yet today, repair restrictions and outdated Medicare standards combine to threaten powered-wheelchair users' ability to live out in the world. Some states have responded by passing right-to-repair laws, which require powered-wheelchair manufacturers and suppliers to provide the resources necessary for more accessible and more timely repairs. This Note analyzes these state laws in the context of previous right-to …

Private Equity For All: The Paradoxical Push To Democratize Private Markets, William W. Clayton, Elisabeth De Fontenay

Duke Law Journal

The recent push to open private equity and other private assets to retail investors represents one of the most profound changes to U.S. capital markets in decades. This "retailization" effort is often framed as an overdue democratization of superior investment opportunities. Indeed, private equity has long been viewed as special, both for its market-beating returns and its success in making companies more profitable. Yet it has historically been off-limits to retail investors.

This Article argues that the push to democratize private equity is subject to a glaring paradox: Expanding access to private equity undermines the very benefits that access aims …

Prosecutorial Guidance And Non-Prosecution Policies: A Pragmatic Path Forward For Ai In Legal Services, Jessica Bednarz, Ericka Byram, Kelli M. Raker, Jeff Ward

Duke Center on Law & Technology

No abstract provided.

Privately Negotiated Withdrawals: How Shareholders Can Shape A Company's Carbon Emissions Reduction, Gabriella M. Chioffi

Duke Environmental Law & Policy Forum

Governed by the U.S. Securities and Exchange Commission's Rule 14a-8, shareholder proposals are a fundamental and longstanding mechanism that investors use to express their opinions and preferences on how a corporation is operating. Over the last decade, there has been a marked shift in the subject matter of the proposals that shareholders are submitting, as concerns relating to the environment have become an increasingly key issue. However, shareholder support for these climate-related proposals reached its highest point in 2021 and has declined slightly in subsequent years. The conditions that made shareholder proposals a successful tool in 2021 have since changed, …

Climate Deregulation Under Trump 2: Will It Have Any Durable Impact?, John D. Graham

Duke Environmental Law & Policy Forum

Following through on his 2024 campaign pledges, President Donald Trump is dismantling President Biden's aggressive climate policies, including federal regulatory controls on the major sectors of the economy that account for most greenhouse gas emissions in the US. Although it is too early to make a definitive assessment of what Trump will accomplish, I present evidence that Trump is taking a more creative, radical, and legally sophisticated approach to climate deregulation in his second administration than was attempted in his first administration. I evaluate how durable climate deregulation may be. A major weakness in Trump's agenda is the lack of …

The Civil Liability Gap For Oil Spills Caused By Non-State Armed Groups: The Case Of The Mv Sounion Tanker In The Red Sea, Emery Hansell

Duke Environmental Law & Policy Forum

On August 21, 2024, the Greek-flagged oil tanker MV SOUNION ("Sounion") was attacked by Houthis as it passed through the Red Sea. The Houthis, a rebel group that controls large swaths of Yemen, then set the ship ablaze, threatening to spill roughly 1 million barrels of crude oil into the water. The cleanup was anticipated to cost $20 billion. The question thus arises: who would—and who should—pay for that cleanup? At the moment, there is no effective solution.

As an initial matter, current international law focuses on State liability and is therefore unlikely to require the Houthis—as a non-State actor—to …

Phasing Out A Way Of Life: How Decarbonization Affects Coal Dependent Communities, Alex Loeb

Duke Environmental Law & Policy Forum

As member states seek to comply with European Union industry rationalization directives that will force mines that cannot compete with free-market prices without subsidies to close, domestic governments across Europe will face competing pressure from civil society. Many traditional European mining communities are dependent on the coal industry and will resist the phase out of its position in the European energy mix. In Asturias, Spain, the phase out of non-competitive coal mines has had devastating impacts on former mining towns, as they struggle to transition to a coal-free economy. After phasing out coal, Asturias has struggled with unemployment and significant …

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

The Alaska Wolf War: Action On The Prince Of Wales Island Complex, Edward A. Fitzgerald

Alaska Law Review

This Article examines Alaska's management of the Alexander Archipelago wolf on the Prince of Wales Island Complex, pursuant to constitutional and statutory requirements. It begins by reviewing the history of unsuccessful efforts to declare the wolf a threatened or endangered species under the Endangered Species Act. It then analyzes Bennett v. State, which focused on the changed management regime and devastating wolf harvest of the 2019–20 season. The Article argues that the district and Alaska Supreme Court's decisions in the case were flawed because they failed to properly implement the "hard look" doctrine.

Note From The Editor

Alaska Law Review

No abstract provided.

A Trainwreck In The Making: The Alaska Railroad Right-Of-Way, John W. Pletcher, Mia E. Manney

Alaska Law Review

This Article argues that the Ninth Circuit erred in Alaska Railroad Corp. v. Flying Crown Subdivision Additions Nos. 1 & 2 Property Owners Ass'n by recognizing an exclusive use easement that permits the Alaska Railroad Corporation to unilaterally exclude private property owners from non-interfering uses of the right-of-way. Drawing on common law easement principles reaffirmed in Marvin M. Brandt Revocable Trust v. United States, the Article demonstrates that exclusivity must be conferred through specific language in a creating instrument and cannot be implied from federal railroad legislation. The Article calls for legislative reform and remedial judicial interpretation to curtail …

Protecting Bearded Seals In Alaska: The Esa, Critical Habitat Designations, And Climate Change, Caitlyn Leary

Alaska Law Review

Rapid climate change in the Arctic has accelerated the loss of sea ice, threatening the survival of one of Alaska's most vital species: the bearded seal. In 2012, the National Marine Fisheries Service (NMFS) listed the bearded seal as "threatened" under the Endangered Species Act (ESA). Ten years later, the agency designated approximately 174 million acres of occupied critical habitat for the seals on the northern coast of Alaska, along the Bering, Chukchi, and Beaufort Seas. NMFS reasoned that a large designation was necessary to account for the dynamic and seasonal nature of sea ice. In 2024, however, the U.S. …

Carbon Cash Back: A Green Ubi For A Decarbonized Future, Lily Skopp

Alaska Law Review

This Note supports a framework for climate governance that transforms carbon tax revenues into equal per‑capita cash distributions for all United States residents: a green universal basic income (UBI). It examines how the institutional structure of the Alaska Permanent Fund Dividend (PFD) can guide the design of a federal resource‑based dividend. By combining economic analyses of efficiency and distribution with legal scholarship on political salience and administrative design, the Note uses Alaska's PFD as an empirical case study to connect two often separate literatures. The Note introduces the PFD's key features—universality, independent fund management, and a narrative of collective resource …

Journal Staff

Alaska Law Review

No abstract provided.

Rules Of Origin And U.S. Tariffs On Imported Electric Vehicles: What Makes A Car Chinese?, Carlos F. Aguirre Cardenas

Duke Journal of Comparative & International Law

This article analyzes the legal and regulatory foundations of the U.S. Government's decision to impose unilateral tariffs on Chinese electric vehicles, including the 100 percent tariff enacted under Section 301 of the Trade Act of 1974, the 25 percent tariff established under Section 232 of the Trade Expansion Act of 1962. It focuses on how rules of origin influence the effectiveness of these measures and examines how Chinese electric vehicle manufacturers might design supply chain strategies to circumvent tariffs by classifying vehicles as non-Chinese.

Governing With Digital Platforms: A Chinese Lesson For The U.S.?, Shitong Qiao

Duke Journal of Comparative & International Law

Can digital platforms make law and governance more efficient? Both China and the United States host some of the world's largest digital platforms, which lead in internet technologies, provide critical digital infrastructure, and mediate private communication and public discourse. While the American experiment has stalled, the Chinese government has made remarkable progress in leveraging digital platforms to enhance efficiency in law and governance.

The study highlights China's successes in streamlining court operations, curbing online piracy, and reshaping interactions between the Chinese government and its citizens. In practice, digital platforms have become co-governors, exerting substantial influence over public institutions rather than …

From Smallpox To Synthetic Biology: The Evolving Threat Of Biological Weapons And The Jus Ad Bellum, Sabrina I. Slagowitz

Duke Journal of Comparative & International Law

Biological weapons are not new, but recent developments in genetic technology have fundamentally transformed their threat potential. Advances in genome sequencing, editing technologies, and CRISPR have made pathogen modification faster, cheaper, and more accessible than ever before, reinvigorating fears of large-scale biological warfare and giving rise to a new class of synthetic bioweapons. This note examines the implications of genetically modified biological weapons for the jus ad bellum, the international law governing the use of force. Drawing an analogy to cyberweapons, it argues that bioweapons share key characteristics with cyberweapons—stealth, latency, asymmetry, non-kinetic lethality, and anonymity—that will generate similar legal …

Security Threats And Diminishing Market Access: Implications For Chinese Investors, Audrey Faulks

Duke Journal of Comparative & International Law

Western countries have responded to geopolitical threats associated with China's rise as a world power by restricting the presence of leading Chinese telecommunications companies and equipment in their network infrastructure. The past several years have seen a targeted and expanding effort by countries to remove Huawei, one of the largest actors in the telecommunications sector, from their national markets. Huawei has responded to these regulatory measures by threatening to bring arbitration claims under China's bilateral investment treaties with several European states. Additionally, Huawei has filed a Request for Arbitration against Sweden for its exclusion from the 5G market. This note …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

The Early American Tradition Of Arms Regulation: Common Law, Common Weapons, And Common Use, Saul Cornell

Duke Law Journal Online

No abstract provided.

When The Second Amendment Meets The Third Dimension: Bruen In The Age Of 3d-Printed Firearms, Andrew Touma

Duke Journal of Constitutional Law & Public Policy Sidebar

3D-printed firearms pose a serious threat to the public by allowing individuals to circumvent traditional regulatory safeguards. Although the first shot from a 3D-printed firearm was over a decade ago, these weapons continue to exploit gaps in the federal regulatory scheme. In the meantime, state governments have adopted a variety of approaches to regulating 3D-printed firearms. As 3D printing pushes firearms technology into the future, the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen directs Second Amendment doctrine to look to history, leaving questions over whether a decidedly historical methodology could effectively adapt to technological …

Don't Ask, Don't Tell, Don't Possess: Mapping A Potential Second Amendment Challenge To 18 U.S. Code § 922(G)(6), Emil Zakarian

Duke Journal of Constitutional Law & Public Policy Sidebar

For decades, the United States military discharged LGBTQ+ service members based on their sexual orientation, often assigning discharge characterizations that carry enduring legal consequences. One overlooked consequence arises under 18 U.S.C. § 922(g)(6), which prohibits individuals discharged "under dishonorable conditions" from possessing firearms. Although this provision has received limited judicial scrutiny, the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen calls its constitutionality into question by requiring that modern firearm regulations be consistent with the Nation's historical tradition of regulation.

This Note argues that § 922(g)(6) is constitutionally vulnerable as applied to veterans discharged solely …

It's In The Money: The Independent Federal Reserve, Kathrynne E. Curtis

Duke Journal of Constitutional Law & Public Policy Sidebar

The case at the heart of the current controversy involves the President's firing of a Federal Reserve Governor against a backdrop of crumbling precedent. The backbone of administrative agency independence, Humphrey's Executor, awaits the Supreme Court's judgment. Therefore, distinguishing the Federal Reserve—responsible for controlling monetary policy and setting interest rates—has never been more pressing. This Note argues that the Federal Reserve can be meaningfully distinguished on a historical basis, as the Court suggests in Trump v. Wilcox, by reference to its family tree: the First and Second National Banks. Precedent and the fallout from lapses in the early …

Studying Supreme Court Advocacy: A Response To The Scotus Tournament, Margaret H. Lemos

Duke Law Journal Online

No abstract provided.

Reflections On Judging At The Intersection Of Constitutional Claims And Public Policy, Kimberly J. Mueller

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Dei Under Scrutiny: Doctrinal Shifts, Litigation Risk, And Emerging Threats To Civil Rights Law After Sffa, Richard J. Grad

Duke Journal of Constitutional Law & Public Policy

For decades, private employers, nonprofits, and philanthropic institutions have implemented voluntary diversity, equity, and inclusion (DEI) programs to promote opportunity, mitigate bias, enhance organizational performance, and advance social justice. These initiatives were long understood to comply with civil rights law. But following Students for Fair Admissions v. Harvard (SFFA), that understanding is steadily under attack.

Although SFFA's holding is confined to college admissions, the case's rhetoric has increasingly been appropriated in a broader campaign to dismantle DEI across sectors. Executive-branch actions, advocacy groups, state attorneys general, and private litigants have invoked SFFA's vision of colorblindness to …

The Griffin Principle: Defining And Deterring Election Contest Gamesmanship, Samuel Davis

Duke Journal of Constitutional Law & Public Policy

Through the lens of a protracted battle over a seat on the North Carolina Supreme Court in 2024, this Article considers the problem of election contest gamesmanship: the manipulation of the procedures states use to resolve post-election disputes in an effort to subvert the democratic results of an election. This Article illustrates how election contest gamesmanship problematizes basic assumptions of federal voting rights doctrines, exploiting the traditional deference afforded to the operation of state election administration procedures to evade federal judicial scrutiny and advance strictly partisan ends. The result is a unique and pernicious threat to the fair administration of …

Constitutional Litigation After Trump V. Casa, Howard M. Wasserman

Duke Journal of Constitutional Law & Public Policy

Trump v. CASA resolved a decade-old scholarly debate about whether federal courts can grant "universal" injunctions in constitutional cases—injunctions prohibiting the executive from enforcing the challenged law against all persons subject to the law, beyond the plaintiffs to the action. A 6-3 Court said federal courts could issue remedies necessary to accord "complete relief to the plaintiffs," without the power to protect non-parties.

The various opinions in CASA offer competing visions of litigation, adjudication, and judicial decisionmaking. The case plays and will continue to play an essential role in ongoing challenges to Trump Administration policies and regulations and all constitutional …