Law Commons^™

Administrative Law’S Extraordinary Cases, Jonathan Skinner-Thompson

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

Note From The Editor

Alaska Law Review

No abstract provided.

Did The Alaska Supreme Court Get It Right In Its Decision In The Alaska Permanent Fund Dividend Case?, Jack Brian Mcgee

Alaska Law Review

In 1976, Alaska voters ratified an amendment to Alaska’s constitution that created the Permanent Fund. The amendment required twenty-five percent of certain revenues received by the state be placed in this Fund. In 1980, the Alaska Legislature created the Permanent Fund dividend program. Beginning in 1982, each Alaska resident received an annual dividend in the same amount. The amount of the dividend was automatically determined by a statutory formula. No appropriation was required.

In 2016, the Governor of Alaska vetoed close to one-half of the amount of the annual dividend as calculated by the statutory formula. In subsequent litigation, the …

Alaska’S Explicit Right To Privacy Warrants Greater Protection Of Alaskans’ Personal Data, Eric Buchanan

Alaska Law Review

Alaska’s legislature should pass a comprehensive data privacy law to prevent companies’ exploitation of citizens’ personal data. The Alaska Constitution explicitly provides Alaskans with the right to privacy and calls upon the legislature to protect that right. Despite this explicit right, Alaskans’ privacy rights are vulnerable to exploitation by private companies. Proposed legislation to address this vulnerability should ensure data privacy protection, but the legislature should remain cognizant of concerns regarding innovation and business. To best achieve this balance, the legislation should be founded in generally accepted data privacy principles and should establish strong financial penalties for companies that violate …

The Incomplete Process Of Fixing Alaska’S Domestic Violence Protective Order Statute, Samuel R. Buchman

Alaska Law Review

The Alaska legislature has codified, in section 18.66.100 of the Alaska Statutes, a process through which petitioners can seek a domestic violence protective order. Such an order offers petitioners a range of protections against a household member who has committed a crime of domestic violence. Most of the protections afforded under these orders last one year, and the means by which a petitioner could renew a domestic violence protective order has, until recently, remained unclear. In Whalen v. Whalen, decided in August 2018 by a three to two margin, the Alaska Supreme Court clarified that renewal process. The court …

The Need For A Sharpe Appellate Record: Why A Clear And Complete Record On Expert Qualifications Is More Important Than Ever, Sarah Laws, Ryan Kuchinski

Alaska Law Review

In 2019, the Alaska Supreme Court overruled the twenty-year-old precedent established in State v. Coon that limited appellate review of trial courts’ rulings on the validity and admissibility of scientific evidence in a Daubert context. In State v. Sharpe , the court rejected the abuse of discretion standard, instead applying a more stringent de novo review in evaluating the trial courts’ determinations about the reliability of the scientific theory or technique underlying an expert’s testimony. Sharpe arose from three consolidated cases, all of which included evidence from the identical type of polygraph test admitted or excluded based on a single …

The Alaskan Variable: A Call For Education Clause Analysis In School Funding Cases, Sarah Laws

Alaska Law Review

The provision of public education in Alaska is a task as monumental as the state itself, requiring innovative solutions to unique challenges faced within the state. The drafters of the Alaska Constitution understood this dilemma and granted the state legislature broad power under the education clause. Early supreme court jurisprudence interpreted this mandate broadly and granted considerable deference. However, recent school funding cases have seen the court’s jurisprudence shift to focus on different constitutional provisions and neglect an education clause analysis. The supreme court now has an opportunity to change this. Alaska Legislative Council v. Dunleavy is currently pending before …

Avoiding The Obvious: Plain Meaning And The Endangerment Of Alaska’S Hunting Laws In Kinmon V. State, Brendan Mcguire, Cormac Bloomfield

Alaska Law Review

This Comment critiques the court of appeals’ statutory interpretation of Alaska’s hunting laws in Kinmon v. State and proposes legislative reform to correct those judicially created errors. Kinmon arose from a series of hunts between 2009 and 2011 during which nonresident hunters did not pay for their big game tags until after the completion of their hunts. The guide leading these hunts was charged with violating section 16.05.340(a)(15) of the Alaska Statutes, which prohibits nonresidents from hunting big game without “previously purchasing” a big game tag. The Alaska Court of Appeals held in favor of the guide, reasoning that “previously …

Any Safe Harbor In A Storm: Sesta-Fosta And The Future Of § 230 Of The Communications Decency Act, Charles Matula

Duke Law & Technology Review

No abstract provided.

High Health Care Spending And Developing Technology: Proton Beam Therapy, Yoojeong Jaye Han

Duke Law & Technology Review

No abstract provided.

Steel Standing: What’S Next For Section, Kayla Scott

Duke Journal of Comparative & International Law

This note considers possible legal challenges to the original Section 232 steel order and recommends different actions for alleviating the problem of broad executive power delegated by Congress in Section 232. Parts I and II provide an introduction and background to Section 232. Part III analyzes the constitutionality of Section 232 under both the Court’s current jurisprudence of the nondelegation doctrine and potential changes to the doctrine suggested by the dissent in Gundy . Part IV assesses potential challenges to the steel order under the theory that the President acted outside of the scope of his authority conferred by the …

An Introduction To Trade And National Security: New Concepts Of National Security In A Time Of Economic Uncertainty, Elizabeth Trujillo

Duke Journal of Comparative & International Law

Within the context of enhanced rhetoric about the need for national security measures to protect domestic economic interests, the Duke Journal of Comparative & International Law hosted a Symposium on National Security and Trade Law in which speakers raised questions as to not only what is meant by national security today, but also the significance of invoking national security exceptions in trade. This Introduction provides an overview of issues discussed as well as some reflections on the use of the national security exception in trade during a time when nations are moving away from international cooperation towards unilateralism and facing …

A Proposal For A Committee On National Security At The Wto, Simon Lester, Inu Manak

Duke Journal of Comparative & International Law

World Trade Organization (WTO) committees meet regularly to monitor and oversee the implementation of the WTO agreements. It rarely makes the news, but this work is nonetheless an important supportive function of the organization. The committees cover a wide range of topics, and some have been added from time to time. In this Article, we propose a Committee on National Security to address the growing challenge to the trade regime presented by national security measures. WTO litigation has a limited ability to handle these sensitive issues, and there would be great value in a committee designated to provide oversight of …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Export Controls: America’S Other National Security Threat, Chad P. Bown

Duke Journal of Comparative & International Law

The Trump administtation’s allegations that some imports are a threat to America’s national security have received wide publicity during 2017–20. But the administration was undertaking a more quiet U.S. policy shift on the export side in the same time frame. Addressing the national security threat presented by exports posed different economic and institutional challenges from those associated with import policy, including the acknowledgment that export controls for legitimate national security reasons can be the first-best policy to address the problem at its source. Yet, export controls could also be misused as a beggar-thy-neighbor policy to redistribute economic well-being across countries, …

Trade And Security Among The Ruins, J. Benton Heath

Duke Journal of Comparative & International Law

The collision of trade and security interests is taking place today in an increasingly fragmented landscape. Governments’ conceptions of their own vital interests are undergoing a rapid transformation as the concept of “national security” expands to encompass issues such as national industrial policy, cybersecurity, and responses to climate change and pandemic disease. At the same time, the system for settling trade disputes is being pulled apart by competing tendencies toward legalism and deformalization. Last year, a landmark decision suggested that international adjudicators could oversee this clash between security and trade, deciding which security interests can override trade rules and which …

Responding To Election Meddling In The Cyberspace: An International Law Case Study On The Russian Interference In The 2016 Presidential Election, Alex Xiao

Duke Journal of Comparative & International Law

International law is not the most perfect legal regime, and, perhaps to no one’s surprise, it is even less perfect in cyberspace. The United States has been a victim to a series of malicious cyber operations in recent years, and the key question is how to respond to and deter them. This Article offers a detailed survey of the Russian interference in the 2016 presidential election in the context of international law. Adapting the framework created by Tallinn Manual 2.0 , the Article examines the international legal basis of the response measures employed by the United States and other possible …

International Humanitarian Law And The Targeting Of Non-State Intelligence Personnel And Objects, Michael N. Schmitt

Duke Journal of Comparative & International Law

This Article examines the targetability of individuals and organizations performing intelligence functions for a non-State group involved in an armed conflict. Specifically, it considers the circumstances under which they lose the international humanitarian law (IHL) protections from, and during, attacks that they would otherwise enjoy as civilians. To do so, the piece deconstructs IHL’s “organized armed group” construct to determine when an intelligence organization can be characterized as a component thereof. Noting that some non-State groups consist of both entities involved in the hostilities and organizations having no relationship to them, the Article introduces the concept of a non-State group’s …

Charting The New Landscape Of Administrative Adjudication, Christopher J. Walker

Duke Law Journal

No abstract provided.

Regulating Impartiality In Agency Adjudication, Kent Barnett

Duke Law Journal

Which should prevail—the Take Care Clause of Article II or the Due Process Clause? To Justice Breyer’s chagrin, the majorities in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially …

The Symposium At Fifty, Randolph May

Duke Law Journal

No abstract provided.

Reckoning With Adjudication’S Exceptionalism Norm, Emily S. Bremer

Duke Law Journal

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter. The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization …

Are There As Many Trademark Offices As Trademark Examiners?, Michael D. Frakes, Melissa F. Wasserman

Duke Law Journal

Federal trademark-registration rights have grown in import, and trademark owners have taken notice. In the fiscal year of 2018, over 660,000 federal trademark registration applications were filed with the U.S. Patent & Trademark Office (“Trademark Office”), representing a 60 percent increase from a decade prior. Yet despite the fact that there is growing concern that the Trademark Office is routinely issuing inconsistent trademark determinations, systematic empirical studies of the administrative process of obtaining federal registration rights are virtually nonexistent. This Article begins to close this gap by conducting the first large-scale study of trademark officials, known as trademark-examining attorneys, who …

Presidential Ideology And Immigrant Detention, Catherine Y. Kim, Amy Semet

Duke Law Journal

In our nation’s immigration system, a noncitizen charged with deportability may be detained pending the outcome of removal proceedings. These individuals are housed in remote facilities closely resembling prisons, with severe restrictions on access to counsel and contact with family members. Due to severe backlogs in the adjudication of removal proceedings, such detention may last months or even years.

Many of the noncitizens initially detained by enforcement officials have the opportunity to request a bond hearing before an administrative adjudicator called an immigration judge (“IJ”). Although these IJs preside over relatively formal, on-the-record hearings and are understood to exercise “independent …

Journal Staff

Duke Law Journal

No abstract provided.

The Wrong Choice To Address School Choice: Espinoza V. Montana Department Of Revenue, Brooke Reczka

Duke Journal of Constitutional Law & Public Policy Sidebar

For many school-choice advocates, Espinoza v. Montana Department of Revenue is the chance to extend the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer in 2017. In Trinity Lutheran, the Supreme Court held that a state’s exclusion of a church from a public benefit program to resurface playgrounds discriminated against religion in violation of the Free Exercise Clause. Many school-choice proponents hope to extend the Trinity Lutheran holding from playgrounds materials to school funding and thus strike down religion-based exclusions in school voucher programs. However, Espinoza is the wrong vehicle to do so. In …

Has Revenge Become A Justification To Legitimize The Death Penalty?, Jordan Ryan

Duke Journal of Constitutional Law & Public Policy Sidebar

Revenge has played a role in criminal justice systems for thousands of years. From the Code of Hammurabi, to the Bible, to modern Supreme Court jurisprudence, revenge, or “getting even,” has been a consideration in how wrongdoers are punished, especially with respect to the imposition of the death penalty. Historically, revenge has not been viewed as a legitimate justification for punishment under American legal principles. However, in the past year, both the United States Supreme Court and the Department of Justice have signaled that revenge may well have a legitimate role in justifying the death penalty.

This Note will explore …

Stand In The Place Where Data Live: Data Breaches As Article Iii Injuries, Jason Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

Every day, another hacker gains unauthorized access to information, be it credit card data from grocery stores or fingerprint records from federal databases. Bad actors who orchestrate these data breaches, if they can be found, face clear criminal liability. Still, a hacker’s conviction may not be satisfying to victims whose data was accessed, and so victims may seek proper redress through lawsuits against compromised organizations. In those lawsuits, plaintiff-victims allege promising theories, including that the compromised organization negligently caused the data breach or broke an implied contract to protect customers’ personal information.

However, many federal courts see a data breach …

Pretrial And Error: The Use Of Statements Inadmissible At Trial In Preliminary Proceedings, Erin Hughes

Duke Journal of Constitutional Law & Public Policy Sidebar

This Note argues that a “criminal case,” as provided by the Fifth Amendment, begins with the initiation of adversarial judicial criminal proceedings, whether that commencement occurs through a formal charge, a preliminary hearing, indictment, information, or arraignment. A broad understanding of the Fifth Amendment’s scope aligns with the Second, Seventh, Ninth and Tenth Circuits’ analysis. In particular, this Note endorses the in-depth analysis provided by the Tenth Circuit in its determination that a “criminal case” under the Fifth Amendment includes preliminary proceedings. This Note further offers an analysis of past Supreme Court precedent as well as policy rationales that support …