Law Commons^™

Making Alaskans Whole: How Regulators Can Restore Trans-Alaska Pipeline System Lands And Recover Billions For The Public, Catherine H. Rocchi, Philip A. Wight, Michael Loughran

Alaska Law Review

This Article examines the dismantlement, removal, and restoration requirements associated with the Trans-Alaska Pipeline System (TAPS). These decommissioning obligations, rooted in the right-of-way lease agreements between state and federal agencies and the pipeline owners, require the lessees to remove pipeline infrastructure and restore Alaskan lands at the end of the pipeline’s useful life. Yet the regulatory structures governing TAPS decommissioning are deficient in several respects. Regulators have failed to safeguard decommissioning collections using a designated fund or a comprehensive liability regime. An opaque and overly permissive approach to transfers of ownership between the TAPS carriers has substituted private agreements for …

Feed It To The Ocean: The Federal Approach To Decommissioning In Alaska Native Climate Adaptation Projects, Sophia Tidler

Alaska Law Review

This Note calls on the Council on Environmental Quality (CEQ) to issue guidance clarifying that concurrent decommissioning is an in-scope “connected action” under the National Environmental Policy Act for relocation, managed retreat, and protect-in-place projects aimed at replacing infrastructure in environmentally threatened Alaska Native communities. In 2018, the Denali Commission completed the Final Environmental Impact Statement for Alaska’s first community-driven village relocation of the millennium, facilitating construction of essential infrastructure at Mertarvik, the relocation site for the village of Newtok. However, the Denali Commission chose to exclude a full-scale decommissioning plan for Newtok’s existing infrastructure. Today, more than seventy-three Alaska …

Sb 86/Hb 99: Navigating Alaska’S Digital Renaissance – A Strategic Approach To Virtual Currency Regulation, Nihit Desai, Alice Cao

Alaska Law Review

Alaska is navigating a transformative phase in its regulatory approach to virtual currency transmission, driven by the rapid growth of the fintech industry and the unique economic and geographic challenges faced by its residents. As the number of virtual currency transactions in Alaska has surged dramatically over recent years, the State’s existing money transmission framework—rooted in laws designed before the rise of cryptocurrencies and internet-based financial services—has proven insufficient to address this evolving landscape.

In light of the wide adoption of virtual currency by consumers, Alaska has implemented targeted amendments to its Administrative Code and proposed the Alaska Uniform Money …

The Future Of Alaska’S Wetlands In A Post-Sackett World, Johanna Crisman

Alaska Law Review

In 2023, the United States Supreme Court decided Sackett v. Environmental Protection Agency, which effectively restricted the United States Army Corps of Engineers’ (“USACE”) and the Environmental Protection Agency’s (EPA) ability to regulate development of wetlands. The State of Alaska submitted an amicus brief to the Court on behalf of the petitioners, the Sackett family. In the wake of the decision, Governor Dunleavy praised the decision by the Court, emphasizing that the decision provided the state more autonomy over its own wetlands. Still, there is concern by environmentalists that the State does not have the resources to protect the wetlands …

Criminalization Of Homelessness: The Impact Of A Market-Oriented Approach, Gabriella M. Chioffi

Duke Journal of Comparative & International Law

Since the fourteenth century, countries have sought to criminalize unhoused individuals by labeling them as "vagrants." Currently, the United States and other countries continue to criminalize acts of sleeping rough, begging, loitering and other vagrancy-type activities that disproportionately target unhoused persons. Despite going through a period of decriminalization in the 1960s and 1970s, these punitive measures were largely reinstated by the 1990s. In the most extreme case, vagrancy criminalization was entrenched in a state's constitution. This Note contends that the reversion to punitive measures is triggered by a country's transition to a market-oriented approach that privatizes housing development and de-emphasizes …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Gender-Based Crimes And The Colombian Special Jurisdiction For Peace, Caroline Davidson

Duke Journal of Comparative & International Law

The Special Jurisdiction for Peace ("JEP"), created as part of Colombia's historic 2016 Peace Agreement, has been hailed as a novel, restorative justice-oriented mechanism for addressing gross human rights violations at the domestic level. Commentators point to the JEP as a potential model for other jurisdictions looking to address mass atrocities. The success or failure of this model hinges on the JEP's ability to effectively address an issue of great concern to the International Criminal Court as well as to Colombian civil society: gender-based crimes. This Article is the first to examine comprehensively the JEP's progress on this vital issue, …

When Electrification Meets Reindustrialization: The First Eu Green Electric Vehicle Subsidies And The Wto Consistency, Mandy Meng Fang

Duke Journal of Comparative & International Law

The French Government recently reformed the "Ecological Bonus" scheme, which has generously supported its domestic consumers in purchasing electric vehicles ("EVs"), by introducing a new criterion based on the amount of carbon emitted in the vehicle's manufacturing. Starting in 2024, the scheme strictly sets the production carbon footprint ceiling at 14.75 tons of CO2, effectively denying the subsidy eligibility of more than one-third of EVs sold in France. Other European Union ("EU") Member States, including Italy, have considered taking similar policy actions. Criticized as the French version of the discriminatory United States Inflation Reduction Act, the new Ecological Bonus scheme …

Countering The Demand Side Of Foreign Bribery: An Analysis Of The Foreign Extortion Prevention Act, Noah Buyon

Duke Journal of Comparative & International Law

The United States has long criminalized bribery of foreign officials but not bribery by foreign officials. Under the Foreign Corrupt Practices Act ("FCPA"), an American may be criminally liable for paying a bribe to another country's official, but the official commits no corresponding crime. The official might face criminal charges if they launder the proceeds of the bribe through the United States and could find themselves the target of Executive Branch sanctions for their corrupt behavior. But until 2023, the United States largely left the official's punishment, if any, to the official's home country. Then, Congress passed the Foreign Extortion …

A Matter Of Public Concern: Wright V. Dorsey And The Need For Speech Protections Beyond Anti-Slapp Law, Henry Valentine

Duke Journal of Constitutional Law & Public Policy Sidebar

Wright v. Dorsey, a recent defamation case, demonstrates the limitations of anti-SLAPP ("Strategic Litigation Against Public Participation") law and the need for supplemental speech protections. Joshua Wright, an antitrust law practitioner and former professor, sued Elyse Dorsey and Angela Landry for defamation. Dorsey and Landry had claimed that Wright used his position as their professor (and later employer) to pressure them into non-consensual sexual relationships; Wright acknowledged their relationships but claimed they were fully consensual, and that stating otherwise was defamatory. Anti-SLAPP law failed to protect Dorsey and Landry even though Wright's lawsuit was ultimately a SLAPP. To better protect …

The Rogue Private Company And National Defense Emergencies, Gavin Small

Duke Journal of Constitutional Law & Public Policy Sidebar

This Note explores two overlapping challenges in the United States constitutional and political system. First, the United States increasingly relies on private companies for technologies necessary for national defense. This has given outsized power to a few unelected corporations and people who might have their own incentives that misalign with those of the United States. This is particularly dangerous in an emergency situation where the United States government, not a private company with its own interests, should be making decisions regarding national security. As an example, this Note focuses on the massive role that the company SpaceX plays in the …

Forcing Our Hand: Evaluating The Use Of Force In Responses To Wrongful Detentions Abroad, Tyler J. Marovitz

Duke Journal of Constitutional Law & Public Policy Sidebar

Wrongful detentions are on the rise. Over the past ten years, U.S. nationals have increasingly found themselves detained abroad upon spurious allegations, facing trumped-up charges, and deprived of basic due process protections. Most of these detentions occur in countries hostile to the United States: Russia, Iran, North Korea, China, and Venezuela. The U.S. has opted to release rightfully detained foreigners to those nations in exchange for its wrongfully detained nationals. All of this perpetuates a “prisoner bazaar” that encourages unscrupulous nations to continue their bad-faith detentions of U.S. nationals. This Note investigates this emerging issue through a use of military …

Chevron Was Not, And Cannot Be, Overruled: The Dullness Of Loper Bright, Edward L. Rubin

Duke Journal of Constitutional Law & Public Policy

As expected, the Supreme Court declared, in Loper Bright Enterprises. v. Raimondo, that "Chevron is overruled." But the Court did not understand the decision that it claimed to overrule. It focused its criticisms on Chevron's notorious two-step test, but failed to recognize that the decision is a major conceptual advance – the first clear judicial recognition that statutory interpretation is the initial and invariably necessary stage in the process by which administrative agencies enforce the law. Chevron thus revealed a reality that the current Court is powerless to alter. Most administrative statutes are not the normative declarations of the pre-administrative …

Employee Speech V. Workplace Values: A Defense Of At-Will Employment And Private Employer Regulation Of Political Speech, Isaac Mamaysky

Duke Law Journal Online

The public policy underlying at-will employment—and particularly our collective interest in freedom of choice in the employment relationship—weighs in favor of allowing employers to regulate their employees' political activities and thus align personnel decisions with organizational values.

Beginning with an exploration of the laws that somewhat limit employers' ability to regulate their employees' political activities, this Essay considers the National Labor Relations Act, Title VII of the Civil Rights Act, state anti-discrimination laws, state laws governing captive audience meetings, and state employment protections for political activity.

This Essay applies these laws to three increasingly prevalent employer practices: (1) prohibiting employees …

"I'M Guilty, But I'M Not A War Criminal!": Fixing Treaty Crimes, Dyllan M. Taxman

Duke Journal of Constitutional Law & Public Policy

This Article examines the Supreme Court's test for treaty crime constitutionality against the gauntlet of time and application. Treaty crimes are criminal behavior violating statutes penalizing private individuals for disobeying the terms of an international treaty obligation. The current treaty crime test from Bond v. United States has produced inconsistent results resting on shaky constitutional grounds. This Article proposes a new test relying on constitutional delegations of authority and treaty drafting history to determine when a treaty crime statute violates the Tenth Amendment. It measures the new test's effectiveness by applying the test to cases in which the Bond test …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Good, The Bad, And The Ugly: Redistricting Commissions In The 2021 Cycle, Samuel S.-H. Wang, Zachariah W. Sippy

Duke Journal of Constitutional Law & Public Policy

In the last decade, redistricting commissions have proliferated across the United States as a means of reducing partisan gerrymandering. This article provides a comprehensive evaluation of their performance using both qualitative and quantitative analysis. Drawing on redistricting data from all fifty states between 2021 and 2024, we analyze how different commission designs affected partisan fairness, competitiveness, and adherence to traditional principles like compactness and preservation of communities of interest. Our analysis reveals that autonomous commissions with final map-drawing authority, balanced bipartisan processes with multiple non-partisan actors, and binding judicial review consistently produced redistricting plans with lower partisan bias and higher …

The Captive Audience Doctrine Today, R. George Wright

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Blowing Through The Barriers Of Offshore Wind: Leveraging States' Authority To Ensure Energy Justice In Offshore Wind Development, Indya Woodfolk

Duke Environmental Law & Policy Forum

No abstract provided.

Cama At 50: The Coastal Area Management Act's Establishment, Implementation, And Future, David W. Owens

Duke Environmental Law & Policy Forum

No abstract provided.

On Valuing Community Environmental Management: Revenues, Costs Avoided, Economic Impacts, And Amenities, William N. Ferris

Duke Environmental Law & Policy Forum

No abstract provided.

Watching The Tide Roll Away: Looking Forward After Fifty Years Of The Coastal Area Management Act, Julia Furr Youngman

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

Jarkesy’S Stakes For The Sec, James Fallows Tierney

Duke Law Journal

This Article examines the implications of the Supreme Court’s decision in SEC v. Jarkesy for the Securities and Exchange Commission (“SEC” or “Commission”). In Jarkesy, the Court held that Congress cannot assign the adjudication of securities antifraud violations seeking civil penalties to an administrative agency without a jury trial, for such punitive actions involve “private rights.” Although this ruling might suggest a reduction in SEC enforcement actions due to the higher costs of federal jury trials, the SEC had already adjusted its practices following Lucia v. SEC in 2018. The Commission shifted away from using administrative law judges for civil …

Presidential Administration And The Accountability Illusion, Brian D. Feinstein

Duke Law Journal

For over a decade, the Supreme Court has upended executive-branch structures that insulated administrative agencies from the White House. Judges and scholars justify this project in part by claiming that presidential control over administration boosts agencies’ accountability to the American people. Yet, despite the importance of “the people” as this endeavor’s asserted beneficiaries, public attitudes concerning this foundational claim are unknown. This Article puts this claimed connection to the test. Grounded in a set of novel experiments involving over five thousand participants, it presents the first evidence of Americans’ views regarding whether greater presidential authority over agencies enhances accountability to …

Flips And Splits In Administrative Law, Daniel J. Hemel

Duke Law Journal

In Loper Bright Enterprises v. Raimondo, the Supreme Court discarded the four decades old Chevron deference regime and circumscribed the authority of federal agencies to choose among multiple interpretations of ambiguous statutes. In justifying its ruling, the Loper Bright majority argued that Chevron deference had generated unnecessary regulatory uncertainty by allowing agencies to switch from one interpretation of an ambiguous statute to another. In this respect, Loper Bright marks a move toward temporal uniformity in federal law: Once the courts recognize a certain reading of a statute as “best,” that reading will reign under Loper Bright unless and until Congress …

Scientific And Technical Expertise After Loper Bright, Sapna Kumar

Duke Law Journal

Courts once trusted federal agencies for their expertise in administering complex statutory schemes, particularly regarding science and technology. Unlike judges, agency officials can narrowly focus on a specific area of law and have access to experts to inform their decision making. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court created a presumption that, absent language to the contrary, Congress intends for agencies to interpret statutory ambiguities. Chevron allowed agencies to utilize their varied forms of expertise while ensuring oversight from generalist judges. This court–agency partnership abruptly ended, however, in Loper Bright Enterprises v. Raimondo. The Court …

Our Marbury: Loper Bright And The Administrative State, Cass R. Sunstein

Duke Law Journal

Loper Bright, overruling Chevron, is unmistakably part of administrative law’s current “Grand Narrative,” which sees contemporary administrative agencies with suspicion, as a product of successive breaches of Article I, II, and III of the Constitution. The decision should be seen as our Marbury v. Madison—an effort to insist that it is emphatically the province and duty of the judicial department to say what the law is. But will the decision produce large changes? The answer depends, of course, on the meaning of both Chevron and Loper Bright. Under Chevron, courts hardly gave a blank check to agencies; on the contrary, …

The Gambia’S Democratic Revival: An Interview With Chief Justice Hassan Bubacar Jallow, Hassan Bubacar Jallow, David Collins

Judicature International

No abstract provided.