Law Commons^™

“The Only Clear Limitation On Improper Districting Practices”: Using One-Person, One-Vote To Combat Partisan Gerrymandering, Allison J. Riggs, Anita S. Earls

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Truth And Reconciliation Commissions: A Needed Force In Alaska?, Heather Parker

Alaska Law Review

Truth and Reconciliation Commissions are official, temporary bodies used for communities to come to terms with past violence, promote education and awareness of historic trauma, and to provide recognition and closure for victims and successors. By bringing past issues to light, such commissions promote healing and allow these communities to move forward. Although the Commission on Truth and Reconciliation in South Africa after the Apartheid-era is best known, several similar commissions have been established throughout the globe and within the United States. This paper compares commissions from South Africa, El Salvador, South Korea, and Canada with those that have been …

Children And Alaska’S Permanent Fund Dividend: Reasons For Rethinking Parental Duty, Eli Kozminsky

Alaska Law Review

Alaska’s Permanent Fund Dividend (Dividend) is an annual payment to eligible residents derived from state investment earnings on mineral royalties. Since 1982, the Dividend has averaged a payout of approximately $1,000 annually. The Permanent Fund Dividend program allows a parent, guardian, or other authorized representative to claim a Dividend on behalf of a child. Yet Alaska law currently imposes no requirements whatsoever on how parents use a child’s Dividend. This Note questions Alaska’s lack of parental duty when it comes to managing children’s Dividends. Part I sketches the Permanent Fund Dividend’s history and motivations, the mechanics of the program itself, …

The Future Of Challenges To The Alaskan Public School Funding Scheme After State V. Ketchikan, Kate Wheelock

Alaska Law Review

In 2013, the Ketchikan Gateway Borough initiated a challenge to the Alaska public education funding scheme by paying its required local contribution (RLC) to its school district under protest. The Borough subsequently filed a lawsuit against the State of Alaska in 2014. This Note discusses the supreme court’s constitutional analysis of the RLC in State v. Ketchikan. Despite extensive discussion of the RLC in the context of the Alaska Constitution’s Dedicated Funds Clause, the court failed to sufficiently analyze the RLC (a critical component of public school funding) in the context of the state’s responsibility for education—a duty rooted in …

Note From The Editor

Alaska Law Review

No abstract provided.

The Economic Loss Doctrine In Alaska And The Design Professional Exception, Ashley K. Sundquist

Alaska Law Review

The economic loss doctrine has prevented countless plaintiffs from recovering their economic losses in tort. However, over the last several decades, numerous courts have found exceptions to this doctrine. Alaska currently provides two important exceptions: the independent duty exception and the design professional exception. These two exceptions as applied provide for inconsistent results which create liability for design professionals and cut off liability for non-design professionals. Providing the same approach and analysis for all professionals creates greater consistency and predictability and provides an opportunity for design professionals to limit their exposure to negligence claims.

Journal Staff

Alaska Law Review

No abstract provided.

Illiberal Democracy: The Toxic Mix Of Fake News, Hyperpolarization, And Partisan Election Administration, Anthony J. Gaughan

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

North Carolina’S Racial Politics: Dred Scott Rules From The Grave, Irving Joyner

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Standing To Sue: Lessons From Scotland’S Actio Popularis, James E. Pfander

Duke Law Journal

Much of what we think we know about the nature of judicial power in the early Republic comes from the history of English common law. Our focus on the common law seems natural enough: Blackstone’s Commentaries on the Laws of England shaped many an antebellum lawyer’s notion of legal practice, and jurists in the twentieth century quite deliberately pointed to the courts at Westminster when discussing the origins of judicial power in America.

An emerging body of scholarship has come to question this single-minded focus. Litigation in eighteenth-century America was an eclectic affair, also drawing on the practices of the …

Lessons From New Orleans: A Stronger Role For Public Defenders In Spurring Indigent Defense Reform, Ace M. Factor

Duke Law Journal

Excessive caseloads prevent public defenders from fulfilling their ethical obligations and curtail criminal defendants’ right to the effective assistance of counsel. Despite this ethical and constitutional dilemma, legislators have been reluctant to provide adequate funds for indigent defense. And because of the separation of powers, courts have been unable to force legislators’ hands. Against this backdrop, criminal defendants in states that choose not to adequately fund indigent defense face a serious risk of wrongful conviction.

The Orleans Public Defenders Office (OPD) provides a case study of public defenders playing a stronger role in spurring legislative reform. In response to a …

Zivotofsky Ii And National Security Decisionmaking At The Lowest Ebb, Chase Harrington

Duke Law Journal

This Note examines assertions of exclusive presidential power in light of the Supreme Court’s 2015 decision in Zivotofsky ex rel. Zivotofsky v. Kerry. This Note argues that, contrary to the suggestion of some commentators, the decision enhances the President’s ability to disregard legislative restrictions at flashpoints of national security decisionmaking.

As Zivotofsky II saw, the President exclusively holds the power to recognize foreign countries. More significant, however, are the analytic moves that the Court introduces when assessing a President’s defiance of an act of Congress—a setup where the President’s power reaches its “lowest ebb.”

The Zivotofsky II Court reshaped the …

Liquidation Of Constitutional Meaning Through Use, Paul G. Ream

Duke Law Journal

In recent years, constitutional scholars have engaged in dialogue over the validity of looking to historical and social practice to determine what the Constitution means. Part of this debate has focused on the idea of “liquidation,” suggested by James Madison in Federalist 37 and other writings as a means by which the text of the Constitution might take on additional meaning after the ink had dried. Constitutional decisionmakers, both on the Supreme Court and in the executive branch, have found recent occasion to consider the importance of past practice when deciding what our founding document means now.

This Note clarifies …

Debunking Antinovelty, Leah M. Litman

Duke Law Journal

This Article debunks the idea that a federal statute’s novelty is an indication that the statute violates constitutional principles of federalism or the separation of powers. In the last six years, every Justice on the Supreme Court has signed onto the idea that legislative novelty signals that a statute is unconstitutional. Many courts of appeals have also latched onto antinovelty rhetoric, two doing so in the course of finding federal statutes unconstitutional. The Supreme Court’s rhetoric about legislative novelty originated as an observation: the Court described a statute as novel when distinguishing that statute from other, constitutionally permissible ones. Since …

Journal Staff

Duke Law Journal

No abstract provided.

Mcdonnell V. United States: Defining “Official Action” In Public Corruption Law, Christopher Murphy

Duke Journal of Constitutional Law & Public Policy Sidebar

McDonnell v. United States involved the former Governor of Virginia leveraging the power of his position to help a wealthy constituent gain access to top state decision makers in exchange for valuable gifts and loans. The Government argued that conduct like setting up phone calls and meetings, as well as hosting receptions on behalf of the constituent was sufficient to constitute an “official act” under public corruption laws. Governor McDonnell argued for a narrower interpretation of “official act,” claiming that his conduct was akin to run of the mill things public officials do every day to benefit their constituents. The …

What Is The Relevant Parcel? Clarifying The "Parcel As A Whole" Standard In Murr V. Wisconsin, Gavin S. Frisch

Duke Journal of Constitutional Law & Public Policy Sidebar

Murr v. Wisconsin seeks to determine whether commonly-owned, adjacent parcels of land are considered as 1 or 2 parcels for purposes of analyzing a regulatory takings claim. Nearly 40 years ago, the Court in Penn Central rejected a property owner's takings claim which segmenting the entire parcel into discrete property rights because a compensatory taking must result from governmental action which interferes with the "parcel as a whole." In Murr, property owners argue that a local zoning ordinance effected a taking of one of their two adjoining parcels because the ordinance prohibited the owners from developing their lot. I …

Foreword: How To Think About Law And Markets, Joseph Blocher, Kimberly D. Krawiec

Law and Contemporary Problems

No abstract provided.

Moral Economies In Early Modern Land Markets: History And Theory, Taisu Zhang

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Contract Development In A Matching Market: The Case Of Kidney Exchange, Kimberly D. Krawiec, Wenhao Liu, Marc L. Melcher

Law and Contemporary Problems

No abstract provided.

The Body In Question: The Income Tax And Human Body Materials, Lawrence Zelenak

Law and Contemporary Problems

No abstract provided.

State Incentives, Plea Bargaining Regulation, And The Failed Market For Indigent Defense, Lisa Kern Griffin

Law and Contemporary Problems

No abstract provided.

On Morals, Markets, And Climate Change: Exploring Pope Francis’ Challenge, Jonas J. Monast, Brian C. Murray, Jonathan B. Wiener

Law and Contemporary Problems

No abstract provided.

Changing Law To Address Changing Markets: A Consequence-Based Inquiry, Steven L. Schwarcz

Law and Contemporary Problems

No abstract provided.

The Market For Global Anticorruption Enforcement, Rachel Brewster, Samuel W. Buell

Law and Contemporary Problems

No abstract provided.

Forced Secessions, Joseph Blocher, Mitu Gulati

Law and Contemporary Problems

No abstract provided.

The Dawn Of Fully Automated Contract Drafting: Machine Learning Breathes New Life Into A Decades-Old Promise, Kathryn D. Betts, Kyle R. Jaep

Duke Law & Technology Review

Technological advances within contract drafting software have seemingly plateaued. Despite the decades-long hopes and promises of many commentators, critics doubt this technology will ever fully automate the drafting process. But, while there has been a lack of innovation in contract drafting software, technological advances have continued to improve contract review and analysis programs. “Machine learning,” the leading innovative force in these areas, has proven incredibly efficient, performing in mere minutes tasks that would otherwise take a team of lawyers tens of hours. Some contract drafting programs have already experimented with machine learning capabilities, and this technology may pave the way …

Captive Or Criminal?: Reappraising The Legal Status Of Ira Prisoners At The Height Of The Troubles Under International Law, Samantha Anne Caesar

Duke Journal of Comparative & International Law

For the citizens of Ireland and Great Britain, the second half of the twentieth century represents a period of great political struggle. The historical debate concerns the constitutional status of Northern Ireland; that is, whether the six northeastern most counties on the emerald isle belong to Ireland or to the United Kingdom. The late 1960s through the early 1990s is referred to commonly as “The Troubles,” a time rife with political struggle, violence, and reactionary laws aimed at restricting civil liberties in the name of security. One topic of contention during this era relates to the political status of prisoners …

An Alcohol Mindset In A Drug-Crazed World: A Review Of Birchfield V. North Dakota, Devon Beeny

Duke Journal of Constitutional Law & Public Policy Sidebar

Birchfield v. North Dakota involved the ability of legislatures to criminalize a driver’s refusal to submit to a chemical test after a law enforcement officer arrested the individual for driving under the influence of alcohol or drugs. The driver’s argued this criminalized their constitutional right to refuse a warrantless search, while the governments’ argued they needed this power in order to effectively address drunk driving in their jurisdictions. The Court decided that refusing a breath test could be criminalized because requiring the test did not violate the driver’s constitutional rights, however the Court also ruled that because of the invasive …