Law Commons^™

An Ad Hoc Dispute Settlement Mechanism Or A Harmonization Mission? A Reappraisal Of Jurisprudential Fragmentation In International Investment Arbitration, Mohammad Hamdy

Duke Journal of Comparative & International Law

Contrary to the numerous accounts of fragmentation in investment arbitration case law, this Article shows that the case law depicts a high degree of cohesion. The Article argues that jurisprudence in investment arbitration is stabilized by distinct mainstream interpretations of the key provisions of bilateral investment treaties, the main legal instrument in international investment law. The Article considers the frequently cited disagreements among arbitral tribunals in light of competing commitments to either regulatory pluralism or harmonization. It demonstrates that the vast majority of tribunals interpret bilateral investment treaties in a way that circumscribes pluralism and furthers the harmonization of the …

Forced Justice: The Kosovo Specialist Chambers, Sara L. Ochs, Kirbi Walters

Duke Journal of Comparative & International Law

The Kosovo Specialist Chambers (KSC), the court created to adjudicate war crimes and crimes against humanity committed in Kosovo at the turn of the century, is the world’s newest hybrid tribunal. The KSC is classified as a hybrid tribunal because it ostensibly blends aspects of international and domestic law and resources. Upon examination, however, the KSC departs in critical ways from the traditional concept of a hybrid tribunal, representing an internationally dominated court with minimal local involvement. By detailing the history of judicial mechanisms employed to prosecute crimes committed during and in the aftermath of the Kosovo War from 1998-1999, …

Fighting Words: Catalonia At The Language Instruction Crossroads, Jane Tien

Duke Journal of Comparative & International Law

The schism between Spain and Catalonia obscures a struggle over the teaching language for non-linguistic subjects in Catalonia's public schools. The recent two decades decanted into Catalan society two Spanish Constitutional Court rulings mandating a Castilian-Catalan conjunctive instruction model—with Catalan as the "center of gravity"—and tasking the Catalan legislature with configuring that "center." Pleasing none and spurned by all, the Constitutional Court duology emboldened activist lower courts to bypass the Catalan legislature, while schools in Catalonia continued to teach almost exclusively in Catalan. With the Castilians alienated and the Catalans defiant, language instruction in Catalonia turned into a festering wound …

Bankruptcy Basics: What The U.S. Can Learn From The U.K. Filing Processes, Courtney Kobren

Duke Journal of Comparative & International Law

Although filing for bankruptcy is the primary form of economic relief for U.S. consumers in financial distress, pro se debtors lack access to the consumer bankruptcy system. An individual debtor faces many challenges when filing for bankruptcy without an attorney, since the debtor must rely on free access to the information provided by the U.S. Courts website. However, that information is vague and presented in complex legalese and dissuasive diction. On the other hand, U.K. debtors who need financial relief can file for bankruptcy through a clear and accessible bankruptcy filing process. U.K. debtors also have access to free consumer …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Sovereignty In The Era Of Fragmentation – Eu Trade Agreements And The Notion Of Statehood In International Law, Harri Kalimo, Shorena Nikoleishvili

Duke Journal of Comparative & International Law

In this article, we explore the theme of sovereignty in the context of fragmented international law. We observe that the sovereignty of States may become relativized, not only by the political power of other States, but by its exposure to multiple, functionally separate fields of law. We analyze this theme by asking whether trade agreements as instruments of economic law offer a venue for discussing the sovereignty of sub-statal entities that lack standing on the more traditional international forums. Our analysis focuses first on a recent decision by the Court of Justice of the European Union, which concerned the status …

Tribal Sovereignty And The Right To Life, Clare Holtzman

Duke Journal of Comparative & International Law

On August 26, 2020, the only Native American on federal death row, Lezmond Mitchell was executed by the federal government for the murder of two Navajo citizens on Navajo Nation land. Federal law typically gives Tribal Nations the right to determine whether the death penalty is used against their citizens for crimes committed between Tribal citizens on Tribal land. Yet here, the federal government utilized a loophole to seek the death penalty against the Navajo Nation's wishes. Lezmond Mitchell was not a sympathetic man by any means; indeed, he brutally killed a grandmother and her young granddaughter to steal their …

Prescribing A Change To The Fda's Drug Labeling Rules After The 21st Century Cures Act, P. Sydney Engle

Duke Law Journal

Signed into law in 2016, the 21st Century Cures Act offers new hope to patients by empowering the FDA to expedite review of innovative, potentially lifesaving drugs. But these expedited approvals raise the risk that pivotal drug safety and efficacy data will not arise until after the drug is already on the market. The Cures Act failed to respond to two key aspects of shifting the discovery of safety and efficacy data to the postmarket phase. First, the Cures Act did not correspondingly enhance the FDA’s authority to require manufacturers to generate and disclose postmarket information. Second, it did not …

Not So Civil Commitment: A Proposal For Statutory Reform Grounded In Procedural Justice, Margaret J. Lederer

Duke Law Journal

Every year, millions of Americans struggle with serious mental illness. Of them, thousands experience civil, or involuntary, commitment—that is, hospitals invoke the coercive power of the state to force these individuals into psychiatric hospitals against their will. Whether someone requires hospitalization is a complex question of psychology, medicine, and substantive law.

But the process of civil commitment itself is troubling. Across the board, states fail to afford those facing civil commitment meaningful procedural protections. Current state laws subject individuals facing commitment to extended periods of confinement with little to no judicial intervention. Indeed, individuals facing commitment may wait weeks or …

Digital Habit Evidence, Andrew Guthrie Ferguson

Duke Law Journal

This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.

While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …

Employed Algorithms: A Labor Model Of Corporate Liability For Ai, Mihailis E. Diamantis

Duke Law Journal

The workforce is digitizing. Leading consultancies estimate that algorithmic systems will replace 45 percent of human-held jobs by 2030. One feature that algorithms share with the human employees they are replacing is their capacity to cause harm. Even today, corporate algorithms discriminate against loan applicants, manipulate stock markets, collude over prices, and cause traffic deaths. Ordinarily, corporate employers would be responsible for these injuries, but the rules for assessing corporate liability arose at a time when only humans could act on behalf of corporations. Those rules apply awkwardly, if at all, to silicon. Some corporations have already discovered this legal …

Journal Staff

Duke Law Journal

No abstract provided.

A Way Forward After Dobbs: Human Rights Advocacy And Self-Managed Abortion In The United States, Kelly Keglovits

Duke Journal of Constitutional Law & Public Policy Sidebar

Even in the era before Dobbs, wherein the Supreme Court repeatedly classified abortion as a "fundamental right," the ability to have an abortion was inaccessible in many parts of the United States. The irony that a "fundamental right" was so difficult to exercise results from how Constitutional rights are understood, which left many open-ended avenues for states to bring restrictions. International Human Rights law, however, offers a more optimistic and accountable approach to steps forward in increasing abortion access—illustrating a need to bring a human rights-based approach home. Dobbs has eviscerated any concept of federal protections for abortion, severely worsening …

Ai And The Regulatory Paradigm Shift At The Fda, Catherine M. Sharkey, Kevin M. K. Fodouop

Duke Law Journal Online

No abstract provided.

Heat Waves And A Public-Private Partnership In Alaska, Karen Sandrik, Sarah Matsumoto

Alaska Law Review

The recently-passed Inflation Reduction Act represents the largest single step that Congress has taken to combat harms from climate change. In its over $360 billion commitment, the Act incentivizes clean energy development and generation, includes methods to directly lower residential utility bills and increase home efficiency, promotes cleaner transportation and agricultural practices, and funds states' and cities' efforts to meet their individual climate goals. While many environmental organizations applauded the Act's passage, some—even simultaneously—expressed concern about its tradeoffs: the Act continues to invest in fossil fuels, subsidizing pipeline construction and guaranteeing new oil and gas leases, specifically expanding leasing in …

Journal Staff

Alaska Law Review

No abstract provided.

Protecting Subsistence Lands While Boosting The Bottom Line: The Enhanced Federal Tax Incentive Available To Alaska Native Corporations For Donations Of Conservation Easements, Timothy Troll, Konrad Liegel

Alaska Law Review

Alaska Native corporations face a dilemma. They own land of immense and significant cultural and ecological value. Their lands are critical for maintaining the Alaska Natives' subsistence needs. But they are also corporations established under the law to maximize the economic value of their land holdings to provide financial dividends to their Native shareholders. This paper explores the enhanced federal tax incentive for donations of perpetual conservation easements that became available in 2015 to Alaska Native corporations. The tax incentive offers Alaska Native corporations a way to protect the aboriginal lands conveyed to them under the Alaska Native Claims Settlement …

Note From The Editor

Alaska Law Review

No abstract provided.

The Kenai Rule In Four Acts: Bear Baiting, Firearms, And Hunting: Comment & Analysis Of Alaska V. Bernhardt, Jon C. Nachtigal, Mike Stocz

Alaska Law Review

The Kenai Rule, enacted by the U.S. Fish and Wildlife Service in 2016, prohibits (a) the hunting of brown bears with bait in the Kenai National Wildlife Refuge, (b) most hunting in the Skilak Wildlife Recreation Area, and (c) the discharge of firearms along the Kenai and Russian Rivers. The Kenai Rule was challenged by the State of Alaska and Safari Club International in Alaska v. Bernhardt. This Comment provides an overview of the case as it was heard in the District Court of Alaska. This discussion includes arguments and counterarguments surrounding the application of four legislative acts: the …

Keynote Address: Alaska Native Peoples And The Environment, Elizabeth Saagulik Hensley, Esq.

Alaska Law Review

No abstract provided.

Coastal Marine Debris In Alaska: Problems With Plastics, Pollution, & Policy, Savannah Artusi

Alaska Law Review

Plastics pollute people and the planet throughout their lifecycle, from intensive extraction of raw materials to chemical leaching during their use to entangling animals in discarded plastic products. Plastic waste is especially troublesome in Alaska, where the state's extensive shoreline and coastal communities are disproportionately inundated with plastic marine debris. Current policies internationally, in the United States, and in Alaska have not done enough to prevent plastic waste from ending up on Alaska's coasts, to hold plastic producers accountable for that waste, or to provide Alaskan communities the support needed to remove the waste themselves. This Note offers several proposals …

Wilderness V. Oil: Resource Balancing In The Arctic National Wildlife Refuge, Megan Mason Dister

Alaska Law Review

The Arctic National Wildlife Refuge (ANWR), a national wildlife refuge in a remote region of Alaska, has captured the national spotlight for decades due to conflicting viewpoints on how to manage the refuge's resources. ANWR is home to a large population of diverse species and Alaska Native communities. However, it may also contain large quantities of oil. Debates over ANWR resource management often provide only two options: preserve the Coastal Plain as wilderness or allow energy development. In 2017, a congressional budget resolution opened a portion of ANWR (the Coastal Plain) to oil and gas leasing for the first time. …

Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària

Judicature International

No abstract provided.

The Fracas At The Fdic, Todd Phillips

Duke Law Journal Online

In December 2021, the Democratic members of the Board of Directors of the Federal Deposit Insurance Corporation (FDIC) attempted to use their majority to issue a request for information but were blocked by the Republican Chair. Although the Democrats outnumbered the Chair three-to-one, the agency's General Counsel declared the move invalid, and the request went unpublished. After weeks of hostility, the Chair resigned, effectively conceding her inability to lead the agency. Although governance at the FDIC is now settled, concern over the Democratic directors' actions and the Chair's resignation have reverberated beyond that singular agency. Republicans are concerned that the …

Reviving Bank Antitrust, Jeremy C. Kress

Duke Law Journal

After decades of disuse, antitrust is back. Renewing the United States’ longstanding distrust of concentrated economic power, antimonopoly scholars have documented widespread harms of corporate “bigness” and inspired policy initiatives to de-concentrate the U.S. economy. To date, however, the new antitrust movement has largely overlooked a key cause of commercial concentration: the rapid consolidation of the U.S. banking sector. More than thirty thousand banks served local communities a century ago, but today just six financial conglomerates control half of the U.S. banking system. Bank consolidation, in turn, has spurred conglomeration throughout the economy. As the Supreme Court recognized in 1963, …

United, We Fall: Expelling Autocratic States From The European Union, Zachary Sanfilippo

Duke Law Journal

Since 2010, the Fidesz party has systemically and blatantly undermined Hungary’s democratic institutions. Led by the autocrat Orbán, Fidesz has rigged Hungary’s elections, packed its courts, and violated its citizens’ human rights. So far, it has done so without any real consequence from the European Union. This state cannot stand. The inefficacy of the EU’s current attempts to discipline Hungary suggests that a stronger remedy is necessary: expulsion. This Note argues that allowing expulsion of materially breaching Member States has not been foreclosed by CJEU jurisprudence and, indeed, advances the EU Treaties’ purpose of “ever closer union.” Should Member States …

The Lost Right To Jury Trials In "All" Criminal Prosecutions, Andrea Roth

Duke Law Journal

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less. These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse. This apparently blatant contradiction of the U.S. Constitution’s text is justified by …

Jury Nullification In Abortion Prosecutions: An Equilibrium Theory, Peter N. Salib, Guha Krishnamurthi

Duke Law Journal Online

The Supreme Court has overturned Roe v. Wade. Doing so, it has rescinded recognition of a fundamental constitutional right for the first time in nearly a century. Even before Roe's demise, multiple states enacted laws to criminalize abortion once the abortion right was gone. More states will surely follow soon. Calls to action have gone out to those who can protect women's rights: the President, Congress, left­leaning state governments, and more. We add another call - to jurors.

Jurors - and sometimes judges - have the power to refuse to convict factually guilty defendants in criminal prosecutions when they believe …

Journal Staff

Duke Law Journal

No abstract provided.

Investment Games, James Fallow Tierney

Duke Law Journal

Popular zero-commission stock trading apps like Robinhood innovate in user-experience design, featuring “gamification” practices—flashy graphics, leaderboards, and the like—that make it attractive, easy, and fun to trade stocks. Regulators are increasingly scrutinizing gamification and other digital engagement practices, with efforts underway at the SEC to adopt rules in broker-dealer and investment-advisor regulation. This attention reflects considerable skepticism about gamification in securities markets. At best, these practices encourage motivation and engagement, and democratize access to financial markets. But at worst, these practices encourage people to trade habitually and unreflectively, and more than they might want. This can lead to undesirable market-wide …