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Articles 2071 - 2100 of 14433
Full-Text Articles in Law
Volume 101, Number 4 (Winter 2017)
Alaska’S Judicial Retention Elections: A Comparative Analysis, Albert J. Klumpp
Alaska’S Judicial Retention Elections: A Comparative Analysis, Albert J. Klumpp
Alaska Law Review
The results of recent judicial retention elections in Alaska, and the recent increase in political activities related to judicial selection in Alaska and many other states, have given rise to concerns about the fates of future Alaska retention candidates. This Article analyzes the results of retention elections nationwide and suggests that there may be good reason for Alaska judges to be worried. Baseline levels of voter support for retention candidates in most of Alaska are among the lowest in the country, and have gradually been declining over time. In addition, Alaskan voters have targeted individual judges for removal more frequently …
Placing Children With Relatives: The Case For A Clear Rationale For Separate Foster Care Licensing Standards, Background Check Procedures, And Improved Relative Placement Statutes In Alaska, Courtney Lewis
Alaska Law Review
Policymakers generally agree that if a child cannot live safely with her parents, then the child should be placed expeditiously with a relative. Alaska’s current system for evaluating relative caregivers is overly complicated, creating unnecessary barriers for relatives and increasing the risk of mistakenly denying placement with relatives. This Article argues that Alaska should adopt a three-step approach to achieve better outcomes based on the American Bar Association’s model licensing standards, which are narrowly tailored to evaluate whether a child should be placed with a relative. Additionally, this Article argues that Alaska should repeal its state statute that gives the …
The Grand Compromise: The Ancsa Section 7(I) Settlement Agreement, Ethan G. Schutt, Aaron M. Schutt
The Grand Compromise: The Ancsa Section 7(I) Settlement Agreement, Ethan G. Schutt, Aaron M. Schutt
Alaska Law Review
In 1982, Alaska’s twelve regional Native corporations finalized and executed a settlement agreement ending a decade of litigation involving Section 7(i) of the Alaska Native Claims Settlement Act. The 121-page Settlement Agreement is complex and covers a number of issues. The Agreement annually governs the distribution of tens of millions in revenue shared between the regional corporations pursuant to Section 7(i). This Article reviews the history of the Settlement Agreement, with emphasis on the negotiations that led to it, as well as the legal challenges regarding the Agreement since its execution. This Article also reviews the Agreement, section-by-section, and provides …
Oil Production Tax In Alaska: An Evolution Away From A “True” Production Tax, Andrew C. Macmillan
Oil Production Tax In Alaska: An Evolution Away From A “True” Production Tax, Andrew C. Macmillan
Alaska Law Review
Alaska has long relied on taxing petroleum extraction as a key source of funding for the State. The oil production tax has changed dramatically since the first barrels of oil were taken from Alaskan land. Most noticeably, the production tax has adjusted its progressivity element and has moved from a gross tax to a net tax. This Note provides a historical reference to Alaska’s oil production taxation scheme in an effort to address whether it is a “true” production tax. Asserting that Alaska has departed from a “true” production tax scheme insofar as it more resembles an income tax, this …
Justice Reinvestment In Alaska: The Past, Present, And Future Of Sb 91, Michael A. Rosengart
Justice Reinvestment In Alaska: The Past, Present, And Future Of Sb 91, Michael A. Rosengart
Alaska Law Review
In the summer of 2016, Alaska Governor Bill Walker signed SB 91, a landmark criminal justice reform law that implements a “justice reinvestment” program. SB 91 aims to reduce Alaska’s prison population, cut corrections costs, and then reinvest savings back into the state to improve public safety and reduce recidivism. It is 193 sections long and is likely the most substantial change to Alaskan criminal law since statehood. It also comes at a time when similar legislation, spearheaded by the Justice Reinvestment Initiative, is proliferating through the country. This Note overviews Alaska’s corrections problems that prompted SB 91, discusses the …
Intrastate Crowdfunding In Alaska: Is There Security In Following The Crowd?, Evan Glustrom
Intrastate Crowdfunding In Alaska: Is There Security In Following The Crowd?, Evan Glustrom
Alaska Law Review
This Note analyzes the potential of crowdfunding for the State of Alaska. Crowdfunding can open up new sources of revenue for small businesses while simultaneously providing an avenue for Alaskans to invest in their own communities. The potential, however, must be weighed against the risk of fraud, poorly run businesses, and the lack of protection for investors. It is the responsibility of the Alaska legislature, the State’s securities administrators, and the Securities and Exchange Commission to ensure that investors are adequately protected. This Note discusses Alaska’s crowdfunding legislation, the Alaska Intrastate Crowdfunding Exemption, and recommends changes to the legislation that …
The Bootstrap Trap, Sara Sternberg Greene
The Bootstrap Trap, Sara Sternberg Greene
Duke Law Journal
In the mid-1990s, Congress fundamentally altered the public safety net when it passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, otherwise known as welfare reform. Under the PRWORA, cash assistance was no longer an entitlement for income-qualifying families; instead, recipients faced work requirements and lifetime limits on receiving benefits. Bipartisan reformers sought to transform welfare from a program believed to trap poor mothers in a "culture of dependence" into a program that would promote a culture of "self-sufficiency" and "personal responsibility." This shift in culture, it was argued, would ultimately lead to upward mobility. This Article …
Don't Try This At Home: The Fda's Restrictive Regulation Of Home-Testing Devices, Shelby Baird
Don't Try This At Home: The Fda's Restrictive Regulation Of Home-Testing Devices, Shelby Baird
Duke Law Journal
Over the past forty years, the Food and Drug Administration (FDA) has successfully restricted consumers' access to home-testing applications based on the notion that it should protect individuals from their own reactions to test results. In the 1970s, the FDA briefly denied women access to home pregnancy tests that were identical to those used in laboratories. In the late 1980s and early 1990s, it relied on concerns about consumer responses to HIV status results to justify a categorical ban on applications for HIV home-testing technology. More recently, it placed burdensome restrictions on direct-to-consumer (DTC) genetic testing companies, such as 23andMe, …
The Class Is Greener On The Other Side: How Private Donations To Public Schools Play Into Fair Funding, Abigail Margaret Frisch
The Class Is Greener On The Other Side: How Private Donations To Public Schools Play Into Fair Funding, Abigail Margaret Frisch
Duke Law Journal
It has been observed that forays into public education finance resemble Russian novels-"long, tedious, and everybody dies in the end." On any given day, dozens of news stories describe schools nationwide struggling to make ends meet. And, just as "each unhappy family is unhappy in its own way," each underfunded school is underfunded in its own complicated way. Funding for public education comes from many places, chief among them local property taxes, at least historically. States-which bear primary responsibility for administering their education systems-and private litigants have struggled for over sixty years to produce funding formulas that weaken the link …
Contracts Ex Machina, Kevin Werbach, Nicolas Cornell
Contracts Ex Machina, Kevin Werbach, Nicolas Cornell
Duke Law Journal
Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Do smart contracts offer a superior solution to the problems that contract law addresses? In this article, we aim to understand both the potential and …
Insurance Policies: The Grandparents Of Contractual Black Holes, Christopher C. French
Insurance Policies: The Grandparents Of Contractual Black Holes, Christopher C. French
Duke Law Journal Online
No abstract provided.
Cinderella Sovereignty, Anna Gelpern
Cinderella Sovereignty, Anna Gelpern
Duke Law Journal Online
The Blocher-Gulati critique of the barriers to secession under public international law is insightful and thought provoking, an important contribution in its own right. I wish it had not been eclipsed by the authors' clever and provocative fix: turning sovereignty into a tradable commodity. I suspect that this fix would bring about more suffering than the status quo for two reasons. First, a market for sovereign control is unlikely to be a market in any meaningful sense. Therefore, trading sovereignty would not discipline oppressors. Second, should something like a real market materialize, it could diminish the incentives for states to …
Collection Of Cryptocurrency Customer-Information: Tax Enforcement Mechanism Or Invasion Of Privacy?, Austin Elliott
Collection Of Cryptocurrency Customer-Information: Tax Enforcement Mechanism Or Invasion Of Privacy?, Austin Elliott
Duke Law & Technology Review
After granting permission to the Internal Revenue Service to serve a digital exchange company a summons for user information, the Federal District Court for the Northern District of California created some uncertainty regarding the privacy of cryptocurrencies. The IRS views this information gathering as necessary for monitoring compliance with Notice 2014-21, which classifies cryptocurrencies as property for tax purposes. Cryptocurrency users, however, view the attempt for information as an infringement on their privacy rights and are seeking legal protection. This Issue Brief investigates the future tax implications of Notice 2014-21 and considers possible routes the cryptocurrency market can take to …
This Name Is Your Name: Public Landmarks, Private Trademarks, And Our National Parks, Megan Elaine Ault
This Name Is Your Name: Public Landmarks, Private Trademarks, And Our National Parks, Megan Elaine Ault
Duke Law Journal
To generations of Americans, Yosemite National Park and its landmarks have symbolized the core democratic ideals of the United States—spaces truly owned by the people and open to all. For those who created our national parks, “[t]he purpose of preserving this land was to cultivate a kind of rare experience [they] saw as endangered by a social world that turned every thing, moment, and human being to profit.” It is striking, then, that Yosemite, one of the nation’s first national parks, has become the focus of a battle over whether our landmarks and their names belong to us all or …
Rule 24 Notwithstanding: Why Article Iii Should Not Limit Intervention Of Right, Zachary N. Ferguson
Rule 24 Notwithstanding: Why Article Iii Should Not Limit Intervention Of Right, Zachary N. Ferguson
Duke Law Journal
The Supreme Court recently decided in Town of Chester v. Laroe Estates, Inc. that intervenors of right under Federal Rule of Civil Procedure 24(a)(2) must demonstrate independent Article III standing when they pursue relief different from that requested by an original plaintiff. This decision resolved, in part, a decades-long controversy among the Courts of Appeals over the proper relationship between Rule 24 intervention and Article III standing that the Court first acknowledged in Diamond v. Charles. But the Court’s narrow decision in Town of Chester hardly disposed of the controversy, and Courts of Appeals are still free to require …
The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, Mitu Gulati, Robert E. Scott
The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, Mitu Gulati, Robert E. Scott
Duke Law Journal
Rote use of a standard-form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. When they occur, rote usage and encrustation weaken the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is emptied of meaning, it can create a contractual black hole in which, as the term loses meaning, random variations in language appear and persist. What, then, are the consequences if parties exploit these variations in language by successfully advancing an interpretation the market disavows? …
Polygamous Marriage, Monogamous Divorce, Michael J. Higdon
Polygamous Marriage, Monogamous Divorce, Michael J. Higdon
Duke Law Journal
Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more …
Volume 101, Number 3 (Autumn 2017)
Administrative Rights In Institutional Perspective, Eloise Pasachoff
Administrative Rights In Institutional Perspective, Eloise Pasachoff
Duke Law Journal Online
No abstract provided.
Towards An International Right To Claim Innocence, Brandon L. Garrett
Towards An International Right To Claim Innocence, Brandon L. Garrett
Faculty Scholarship
In the past, wrongful convictions were seen as a local problem largely undeserving of national or international attention. Very different legal systems have shared a common approach of emphasizing the finality of criminal convictions, thereby making it very difficult to claim innocence by relying on new evidence uncovered post-trial. While international law guarantees a right to a fair trial, a presumption of innocence, and a right to appeal, no international human rights norms clearly obligate countries to allow defendants to meaningfully assert post-trial claims of innocence. Today, the procedures and attitudes toward claims of innocence that rely on newly discovered …
Volume 101, Number 2 (Summer 2017)
Living Constitutional Theory, Andrew Coan
Living Constitutional Theory, Andrew Coan
Duke Law Journal Online
No abstract provided.
Sports Betting Has An Equal Sovereignty Problem, Ryan M. Rodenberg, John T. Holden
Sports Betting Has An Equal Sovereignty Problem, Ryan M. Rodenberg, John T. Holden
Duke Law Journal Online
No abstract provided.
From Shark Finning To Shark Fishing: A Strategy For The U.S. & Eu To Combat Shark Finning In China & Hong Kong, Jeremy Iloulian
From Shark Finning To Shark Fishing: A Strategy For The U.S. & Eu To Combat Shark Finning In China & Hong Kong, Jeremy Iloulian
Duke Environmental Law & Policy Forum
Globally, the shark population is under extreme stress, primarily due to the rise of China and a growing middle class with a taste for a cultural dish: shark fin soup. Sharks play an important ecologic role and can be extremely beneficial to the local economy. They can also be an important food source for people if harvested sustainably and not in a manner that challenges the morality of humans’ relationship with the ocean; something the current shark finning practices do. Approaches to sustainable shark fishing at the international and domestic level have met some success. Even so, China and Hong …