Law Commons^™

Exploring Probation Supervision Compliance In The Netherlands, Pauline G.M. Aarten

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Suspended Sentences In Australia: Uncertain, Unstable, Unpopular, And Unnecessary?, Arie Freiberg

Law and Contemporary Problems

No abstract provided.

Racial Equity In Algorithmic Criminal Justice, Aziz Z. Huq

Duke Law Journal

Algorithmic tools for predicting violence and criminality are increasingly deployed in policing, bail, and sentencing. Scholarly attention to date has focused on these tools’ procedural due process implications. This Article considers their interaction with the enduring racial dimensions of the criminal justice system. I consider two alternative lenses for evaluating the racial effects of algorithmic criminal justice: constitutional doctrine and emerging technical standards of “algorithmic fairness.” I argue first that constitutional doctrine is poorly suited to the task. It often fails to capture the full spectrum of racial issues that can arise in the use of algorithmic tools in criminal …

Journal Staff

Duke Law Journal

No abstract provided.

Making Forum Non Conveniens Convenient Again: Finality And Convenience For Transnational Litigation In U.S. Federal Courts, Matthew J. Eible

Duke Law Journal

The forum non conveniens (“FNC”) doctrine allows a federal court to dismiss a case from the U.S. legal system in favor of a more convenient foreign jurisdiction. When a party moving for dismissal under the FNC doctrine succeeds, the losing party may immediately appeal that decision as of right to an appellate court. But if the motion to dismiss for FNC is denied, the right to an appeal is unavailable until after a final judgment is issued in the case.

This dichotomy in appellate review results from Van Cauwenberghe v. Biard , where the Supreme Court held that motions to …

Volume 103, Number 1 (Spring 2019)

Judicature

No abstract provided.

Chief Justice Robots, Eugene Volokh

Duke Law Journal

Say an AI program someday passes a Turing test, because it can con-verse in a way indistinguishable from a human. And say that its develop-ers can then teach it to converse—and even present an extended persua-sive argument—in a way indistinguishable from the sort of human we call a “lawyer.” The program could thus become an AI brief-writer, ca-pable of regularly winning brief-writing competitions against human lawyers.

Once that happens (if it ever happens), this Essay argues, the same technology can be used to create AI judges, judges that we should accept as no less reliable (and more cost-effective) than human …

Congress’S War Powers And The Political Question Doctrine After Smith V. Obama, Samuel R. Howe

Duke Law Journal

More than seventeen years after the attacks of September 11, 2001, the United States continues to battle terrorist organizations inspired by or derived from al Qaeda under the legal aegis of the 2001 Authorization for the Use of Military Force. The government has interpreted this law as providing expansive authority to conduct military operations against actors that did not even exist in 2001, including the Islamic State of Iraq and Syria (“ISIS”). Congress has largely supported this effort in annual authorizing legislation and by funding the campaign against ISIS.

Despite this permissive legal environment, the government pressed for even greater …

East Of Eden: A Contractual Lens For An Unsettled Area Of First Amendment Shunning Jurisprudence, Austin J. Rogers

Duke Law Journal

The Free Exercise Clause was enacted for the purpose of protecting diverse modes of religious practice. One practice that numerous religious traditions observe is shunning—the expulsion and social exclusion of noncompliant individuals from a religious community. Yet because shunning usually involves concomitant harm to religious congregants, plaintiffs often bring religious-tort claims against religious entities for the injuries they suffer. This implicates free-exercise concerns for both the plaintiff and the religious-entity defendant. Despite the utmost importance of religious freedom in American jurisprudence, courts analyze religious-tort claims in widely disparate ways. And they typically rely on consent and membership as the basis …

Intelligent Design & Egyptian Goddess: A Response To Professors Buccafusco, Lemley & Masur, Sarah Burstein

Duke Law Journal Online

No abstract provided.

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

The Rise Of The Extreme Right And The Crime Of Terrorism: Ideology, Mobilization, And The Case Of Golden Dawn, Nadia Banteka

Duke Journal of Comparative & International Law

The past decade has witnessed the rise in popularity of organizations and political parties founded on the extreme nationalism and populism that characterized the interwar period’s fascist and Nazi parties. These organizations have become known as the “alt-right” and include white supremacists, neo-Nazis, neo-fascists, and other extreme right-wing fringe groups. Extreme right-wing political parties have also enjoyed electoral victories while promulgating xenophobia and hatred based on race, religion, ethnicity, nationality, and sexual orientation. This article examines the resurgence of such extreme right-wing political parties and the relationship between right-wing extremism, political parties, and terrorism. The goal of this article is …

Proportionality And Its Applicability In The Realm Of Cyber Attacks, Hensey Fenton Iii

Duke Journal of Comparative & International Law

With an ever-increasing reliance on State cyber-attacks, the need for an international treaty governing the actions of Nation-States in the realm of cyberwarfare has never been greater. States now have the ability to cause unprecedented civilian loss with their cyber actions. States can destroy financial records, disrupt stock markets, manipulate cryptocurrency, shut off nuclear reactors, turn off power grids, open dams, and even shut down air traffic control systems with the click of a mouse. This article argues that any cyber-attack launched with a reasonable expectation to inflict “incidental loss of civilian life, injury to civilians, or damage to civilian …

Risk Analysis In Refugee Resettlement, Kelsey Glover

Duke Journal of Comparative & International Law

Refugees are individuals who hold a well-founded fear of persecution based upon their race, religion, nationality, political opinion or membership in a particular social group and who have resultingly been forced to flee their country. Public awareness of refugee resettlement has grown exponentially in the wake of the Syrian refugee crisis, raising questions about the risks and costs that arise from providing refuge and resettling foreigners. This article takes a look at the most frequently cited risks of the resettlement process and analyzes how they are weighted by the public and regulatory bodies. It compares the approach of the United …

Executive Power: Rethinking The Modalities Of Control, Sundaresh Menon

Duke Journal of Comparative & International Law

No abstract provided.

Fragmented Laws, Contingent Choices: The Tragicomedy Of The Village Commons In China, Shitong Qiao

Duke Journal of Comparative & International Law

Defining the direct conflict between law and social norms as a tragedy and their reconciliation as a comedy, this paper serves as a case study of the mixture of tragedies and comedies of collective land governance in China. The term tragicomedy encapsulates such a mixture. This paper presents two contrasting cases of collective land governance: one village co-op is captured by a mafia and the consequent mafia-style land development business is maintained through violence and the bribing of government officials; the other village co-op from time to time takes actions “in the name of law” in their bargaining for legal …

Waging War Against Corruption In Developing Countries: How Asset Recovery Can Be Compliant With The Rule Of Law, Mat Tromme

Duke Journal of Comparative & International Law

It is often said that criminals hardly ever mind financial penalties if they get caught, but on the other hand, they fear losing tangible assets. This is the underlying rationale for asset forfeiture approaches: forfeiting property can be a powerful detractor for crime and corruption. Assume that John was running a gambling operation or cooking drugs in a room he rented from a house belonging to a retired couple. This case naturally raises a lot of questions (e.g. should the whole house be seized and forfeited, and if so, what would happen to the couple?) and brings into focus not …

Discipline And Policing, Kate Levine

Duke Law Journal

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards.

This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency is …

Journal Staff

Duke Law Journal

No abstract provided.

Ad Hoc Diplomats, Ryan M. Scoville

Duke Law Journal

Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats—individuals chosen exclusively by the president to complete limited and temporary assignments—play a comparably significant role in addressing international crises, negotiating treaties, and otherwise executing foreign policy.

This Article critically examines the appointments process for such irregular agents. An orthodox view …

At The Water’S Hedge: International Insider-Trading Enforcement After Morrison, Hugh B. Hamilton Iii

Duke Law Journal

From copy rooms to boardrooms, many Americans have succumbed to the siren song of insider trading. As U.S. companies have gone international, so too have corporate secrets ripe for exploitation. With the growth of overseas derivatives based on U.S. stock, foreigners are able to engage in insider trading to a similar extent as Americans.

But in Morrison v. National Australia Bank, the Supreme Court limited the reach of the statutory insider-trading prohibition to transactions taking place in U.S. territory or transactions in securities listed on U.S. exchanges. Neither condition applies to overseas insider trading using derivatives. However, courts have …

China’S Emissions Trading System: Steps Toward Article 6 Linkage, Melinda Melvin

Duke Environmental Law & Policy Forum

No abstract provided.

The Complexity Dilemma In Policy Market Design, Todd S. Aagaard, Andrew N. Kleit

Duke Environmental Law & Policy Forum

Regulators are increasingly pursuing their policy objectives by creating markets. To create a policy market, regulators require firms to procure a product that is socially useful but that confers little direct private benefit to the acquiring party. Examples of policy markets include pollutant emissions trading programs, renewable energy credit markets, and electricity capacity markets. Existing scholarship has tended to analyze policy markets simply as market-based regulation. Although not inaccurate, such inquiries are necessarily incomplete because they do not focus on the distinctive traits of policy markets. Policy markets are neither typical regulations nor typical markets. Concentrating on policy markets as …

What Can The Apple Teach The Orange? Lessons U.S. Land Trusts Can Learn From The National Trust In The U.K., Lauren Gwin, Jessica Owley, Sally K. Fairfax

Duke Environmental Law & Policy Forum

The National Trust in England, Wales, and Northern Ireland is one of the oldest and most revered private land conservation organizations in the world. While the private land conservation movements in the United States and the United Kingdom began at a similar time and with similar tools, conservation attitudes and methods in the two countries diverged. Today, the National Trust dominates land conservation in the U.K. while the strength of the U.S. movement is the energy of over 1,500 smaller organizations operating at different scales across the country. Despite the differences, this project looks to the National Trust in England …

Agricultural Exceptionalism In Vermont Land Use Law, Jess Phelps

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

Deepfakes: False Pornography Is Here And The Law Cannot Protect You, Douglas Harris

Duke Law & Technology Review

It is now possible for anyone with rudimentary computer skills to create a pornographic deepfake portraying an individual engaging in a sex act that never actually occurred. These realistic videos, called “deepfakes,” use artificial intelligence software to impose a person’s face onto another person’s body. While pornographic deepfakes were first created to produce videos of celebrities, they are now being generated to feature other nonconsenting individuals—like a friend or a classmate. This Article argues that several tort doctrines and recent non-consensual pornography laws are unable to handle published deepfakes of non-celebrities. Instead, a federal criminal statute prohibiting these publications is …

Boiling Down Boilerplate In M&A Agreements: A Response To Choi, Gulati, & Scott, Robert Anderson, Jeffrey Manns

Duke Law Journal Online

“Boilerplate” consists of standardized terms whose meaning is intended to be consistent from one transaction to the next, and these provisions are ubiquitous in contracts and related transactional documents. In their recent Duke Law Journal article Stephen Choi, Mitu Gulati, and Robert Scott have highlighted the potentially corrosive effect of the legal drafting process on boilerplate provisions. They show how incremental edits to boilerplate pari passu clauses for sovereign debt agreements have led to textual “black holes,” which potentially undercut the standardization purpose, wording, and substantive meaning of these boilerplate provisions. In this Article we offer preliminary evidence of a …

Does The American Rule Promote Access To Justice? Was That Why It Was Adopted?, John Leubsdorf

Duke Law Journal Online

No abstract provided.