Law Commons^™

Choosing Leadership Judges By State Supreme Court Appointment: Analysis Of A Court Reform, Robert M. Brutinel

Law and Contemporary Problems

No abstract provided.

The Influence Of Re-Selection On Independent Decision Making In State Supreme Courts, Ann A. Scott Timmer

Law and Contemporary Problems

No abstract provided.

Communicating Disagreement Behind The Bench: The Importance Of Rules And Norms Of An Appellate Court, Renee Cohn Jubelirer

Law and Contemporary Problems

No abstract provided.

Re-Evaluating Competence To Stand Trial, David Collins

Law and Contemporary Problems

No abstract provided.

Mass Incarceration: The Obstruction Of Judges, Tracie A. Todd

Law and Contemporary Problems

No abstract provided.

Note: Children At The Border: Existing Tools For Effective Advocacy, Mollie Thompson

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Gamble V. United States: A Commentary, Kayla Mullen

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single act, may …

The Paradox Of Policing As Protection: A Harm Reduction Approach To Prostitution Using Safe Injection Sites As A Guide, Emani Walks

Duke Journal of Gender Law & Policy

No abstract provided.

The Other 20 Cents Isn’T Worth It: The Inadequacy Of Title Vii’S Anti-Retaliation Framework, Hannah Taylor

Duke Journal of Gender Law & Policy

This Article examines the framework for resolving Title VII retaliation disputes through the lens of gender pay disparity and proposes that the current framework is inadequate. The Article begins by illustrating the issue and the impact of retaliatory conduct in the workplace through the stories of two female workers. It also explains the Title VII retaliation standard and explores the process for filing and pursuing an anti-retaliation claim under this framework.

Ultimately, the current framework is inadequate for two reasons. First, it does little to discourage retaliatory conduct by employers or co-workers because what amounts to “retaliation” under the law …

Immigration, Adoption And Our National Identity, Shani M. King

Duke Journal of Gender Law & Policy

No abstract provided.

“Tragic And Glorious Pages”: The Evolution Of Intersex Rights In Russia And Reframing Law And Tradition To Advance Reform, Maggie J. Meyers

Duke Journal of Gender Law & Policy

No abstract provided.

Biopower, Disability And Capitalism: Neoliberal Eugenics And The Future Of Art Regulation, Gabrielle Goodrow

Duke Journal of Gender Law & Policy

Discourse around reproductive and contraceptive technology in the United States is typically organized around ideas of autonomy, privacy, and free choice. The dichotomy of “pro-choice” and “pro-life” structures all debates on the topic, and the political framework of neoliberalism channels discussion into prepackaged frameworks of cost-benefit analysis and the primacy of free market choice. However, an examination of history and present policy developments paints a different picture. This Note argues that access to and regulation around contraception, abortion, and overall reproductive health and technology has been informed by and continues to interact with ideas of biopower and both positive and …

Journal Staff

Duke Journal of Gender Law & Policy

No abstract provided.

Where To Prosecute Cybercrimes, Jacob T. Wall

Duke Law & Technology Review

Selecting the appropriate venue for a criminal trial has been a matter of constitutional concern since the founding of the country. The issue is thought to be essential to the fair administration of justice and thus public confidence in the criminal justice system. Constitutionally, crimes must be prosecuted in the states and districts in which they were committed. However, the rise of cybercrime has complicated the venue inquiry: cyberspace, the domain of cybercrime, and physical space have become increasingly decoupled. Consequently, under America’s primary but dated cybercrime law, the ideal location for a trial may not be a constitutionally proper …

Litigating War: The Justiciability Of Executive War Power, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

Courts frequently dismiss claims against the Executive’s use of the war power as being non-justiciable political questions. This lack of a judicial check has created a situation in which meaningful checks and balances on the war power are found only in the Executive Branch itself. But the Constitution places the bulk of war powers in the hands of Congress. Executive usurpation of Congress’s constitutional prerogative to initiate hostilities has significantly weakened the separation of powers. In the aftermath of the Vietnam War, Congress sought to reassert its constitutional authority over war-making decisions by passing the War Powers Resolution. The Resolution …

Nodal Governance Of The U.S. Electricity Grid, Alison Gocke

Duke Environmental Law & Policy Forum

The U.S. electricity grid faces more challenges on a wider scale than ever before—climate change, energy poverty, crumbling grid infrastructure, the pending onboarding of millions of new grid devices, etc. Preparing the grid for these challenges is not an engineering problem, but rather a governance one: we need a new model for how to govern our grid.

Grid experts often advocate for one of two centralized governance models: the command-and-control system associated with the early development of the electricity grid, or the neoliberal system associated with more recent market reforms.

This article argues that both of these models are wrong. …

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

After The Storm: The Importance Of Acknowledging Environmental Justice In Sustainable Development And Disaster Preparedness, Brie Sherwin

Duke Environmental Law & Policy Forum

The past decade has brought on some of the worst cases of flooding due to natural disasters and the resulting leaching of some of the most hazardous environmental contaminants back into nearby, often low-income, communities. Natural disasters are not “great equalizers” when it comes to recovery. Lower-income individuals are more likely to live in neighborhoods that are more susceptible to flooding and are near industrial areas and hazardous waste sites, leaving them more vulnerable to toxic leaks from storm damage. There is also a serious inequity when it comes to access to recovery based on average income levels of neighborhoods. …

A Military Response To A Warming World: Federalism, Militias, And Catastrophic Disasters, Samantha Olson

Duke Environmental Law & Policy Forum

No abstract provided.

Panel 3 – “Lasting” And Closing Remarks, Summer Quintana, Brie Sherwin, Keith Hirokawa, Mike Woodard, Heather Keefer, Kyle Medin

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

The Global Flock And The Beautiful Soul, Alexander Somek

Duke Journal of Comparative & International Law

No abstract provided.

The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor

Duke Journal of Constitutional Law & Public Policy Sidebar

In Herrera v. Wyoming, the Supreme Court is considering how to reconcile the Crow Tribe’s hunting right with Wyoming’s sovereignty. This endeavor requires examining nineteenth-century treaties and precedents to decipher the intents of the Crow Tribe and the United States government. If the Court’s decision includes a clear articulation of whether Native American treaty rights may be truncated by mere implication, tribes nationwide may be at risk of losing treaty rights they have enjoyed for centuries. In making its decision, the Supreme Court will also have to weigh the advantages and disadvantages of overturning precedent and of undermining its …

Deregulatory Cost-Benefit Analysis And Regulatory Stability, Caroline Cecot

Duke Law Journal

Cost-benefit analysis (“CBA”) has faced significant opposition during most of its tenure as an influential agency decisionmaking tool. As advancements have been made in CBA practice, especially in more complete monetization of relevant effects, CBA has been gaining acceptance as an essential part of reasoned agency decisionmaking. When carefully conducted, CBA promotes transparency and accountability, efficient and predictable policies, and targeted retrospective review.

This Article highlights an underappreciated additional effect of extensive use of CBA to support agency rulemaking: reasonable regulatory stability. In particular, a regulation based on a well-supported CBA is more difficult to modify for at least two …

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Duke Law Journal

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this Article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation as justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, reveal an especially prevalent …

The Administrative Law Of Regulatory Slop And Strategy, Robert L. Glicksman, Emily Hammond

Duke Law Journal

Judicial review of agency behavior is often criticized as either interfering too much with agencies’ domains or doing too little to ensure fidelity to statutory directives and the rule of law. But the Trump administration has produced an unprecedented volume of agency actions that blatantly flout settled administrative-law doctrine. This phenomenon, which we term “regulatory slop,” requires courts to reinforce the norms of administrative law by adhering to established doctrine and paying careful attention to remedial options. In this Article, we document numerous examples of regulatory slop and canvass how the Trump agencies have fared in court thus far. We …

Sludge And Ordeals, Cass R. Sunstein

Duke Law Journal

Is there an argument for behaviorally informed deregulation? In 2015, the United States government imposed 9.78 billion hours of paperwork burdens on the American people. Many of these hours are best categorized as “sludge,” understood as friction, reducing access to important licenses, programs, and benefits. Because of the sheer costs of sludge, rational people are effectively denied life-changing goods and services. The problem is compounded by the existence of behavioral biases, including inertia, present bias, and unrealistic optimism. A serious deregulatory effort should be undertaken to reduce sludge through automatic enrollment, greatly simplified forms, and reminders. At the same time, …

Rulemaking Inaction And The Failure Of Administrative Law, Sidney A. Shapiro

Duke Law Journal

The Trump administration may be the first presidency to go four years without promulgating new significant regulations to protect people and the environment. Although administrative law protects regulatory beneficiaries when agencies revoke or modify previous rules, those protections evaporate when an agency rejects a rulemaking petition, fails to answer a petition for years, or fails to work on pending regulatory protections. In effect, the courts have outsourced agency accountability for rulemaking inaction to political oversight, but as a defense of the interests of regulatory beneficiaries, political accountability is the “Maginot Line” of oversight. Despite the difficulty of judging an agency’s …

Deregulation Using Stealth “Science” Strategies, Thomas O. Mcgarity, Wendy E. Wagner

Duke Law Journal

In this Article, we explore the “stealth” use of science by the Executive Branch to advance deregulation and highlight the limited, existing legal and institutional constraints in place to discipline and discourage these practices. Political appointees have employed dozens of strategies over the years, in both Democratic and Republican administrations, to manipulate science in ends-oriented ways that advance the goal of deregulation. Despite this bald manipulation of science, however, the officials frequently present these strategies as necessary to bring “sound science” to bear on regulatory decisions. To begin to address this problem, it is important to reconceptualize how the administrative …