Law Commons^™

Relocating Location Incentives, Brian Highsmith

Duke Law Journal

In recent years, a growing share of state and local budgetary resources has been diverted to a small number of firms through multibillion-dollar location incentive megadeals, as represented by Amazon’s HQ2 search and Wisconsin’s Foxconn boondoggle. These companies have become adept at devising new mechanisms for extracting the public resources of local communities to secure a competition advantage over their market rivals. But legal scholarship has not considered the possibility that dominant firms’ incentive demands might implicate the statutory protections enacted to protect against unfair methods of competition and corporate dominance more broadly. This Article develops a historical, economic, and …

In Conversation With Petr Angyalossy, Chief Justice Of The Czech Republic, Petr Angyalossy, David Collins

Judicature International

No abstract provided.

Something Is Rotten In The State Of Healthcare: Accountability, Affordability, And The Court Of Public Opinion, Isabelle Breier

Duke Law & Technology Review

Many countries worldwide recognize a right to health and provide legal recourse for securing that right. By contrast, for many Americans, there is no legal right or remedy that enables them to access healthcare if they cannot afford it. While there are some statutes and measures in place, such as the Emergency Medical Treatment and Active Labor Act (EMTALA) and Medicaid, coverage remains piecemeal and access to healthcare is not guaranteed. Conditioning people’s access to healthcare upon their ability to pay violates the foundational bioethical principle of justice. In the United States, individuals and advocates use social media to fill …

To Legitimacy And Beyond: A Reform Agenda To Restore Public Confidence In The Federal Courts, Charles Gardner Geyh

Law and Contemporary Problems

No abstract provided.

Public Confidence, Judges, And Politics On And Off The Bench, Bruce A. Green, Rebecca Roiphe

Law and Contemporary Problems

No abstract provided.

Mere Words: The Role Of Bar Organizations In Maintaining Public Support For The Judiciary, Leslie C. Levin

Law and Contemporary Problems

No abstract provided.

The Role Of Accountability In Preserving Judicial Independence: Examining The Ethical Infrastructure Of The Federal Judicial Workplace, Susan Fortney

Law and Contemporary Problems

No abstract provided.

How The Politics Of Federal Judicial Selection Affect Judicial Diversity And What This Means For Public Confidence In Courts, Matthew E. Baker, Christina L. Boyd, Jennifer Hickey, Adam G. Rutkowski

Law and Contemporary Problems

No abstract provided.

Foreword, Bruce A. Green, Leslie C. Levin

Law and Contemporary Problems

No abstract provided.

Judges And The Regulatory State: Trends Of Resistance And Restraint, Luke P. Norris

Law and Contemporary Problems

No abstract provided.

The Psychology Of Persuasive Precedent, Jeffrey J. Rachlinski, Andrew J. Wistrich

Law and Contemporary Problems

No abstract provided.

Supreme Impropriety? Assessing The Justices' Conduct, Veronica Root Martinez

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Gray Advice, Keith Porcaro

Duke Law & Technology Review

Debates over economic protectionism or the technology flavor-of-the-month obscure a simple, urgent truth: people are going online to find help that they cannot get from legal and health professionals. They are being let down, by products with festering trust and quality issues, by regulators slow to apply consumer protection standards to harmful offerings, and by professionals loath to acknowledge changes to how help is delivered. The status quo cannot continue. Waves of capital and code are empowering ever more organizations to build digital products that blur the line between self-help and professional advice. For good or ill, “gray advice” is …

Getting To Home: Understanding The Collateral Consequences Of Negative Records In The Rental Housing Market, Sara Sternberg Greene, Barbara Kiviat, Hesu Yoon

Duke Law Journal

The United States faces a rental housing crisis marked by a scarcity of housing supply, leading to intense competition among prospective tenants. This crisis is a particular challenge for the more than one hundred million U.S. residents burdened with negative records such as criminal records, debts in collections, and evictions. Landlords have more access than ever to applicants’ information, yet little is known about how landlords process and think about these records to make housing decisions. This Article draws on theories of cultural sociology to provide a data-driven understanding of how landlords conceptualize the value of several types of personal …

Journal Staff

Duke Law Journal

No abstract provided.

Relocating Justice, Ruhan Sidhu Nagra

Duke Law Journal

Managed retreat—the planned relocation of people facing imminent climate threats—is an inevitable part of future climate adaptation in the United States. Given that Black, Brown, and low-income communities are disproportionately vulnerable to climate hazards, managed retreat has significant justice implications. This Article explores what I call an apparent “justice paradox”—two “justice problems” with managed retreat that seem to point to opposite solutions. On the one hand, managed retreat can be inaccessible to marginalized communities, many of whom lack the resources to successfully navigate the relocation process. This justice problem suggests that decision-makers should prioritize managed retreat for marginalized communities since …

(Ctrl + F)Ourth Amendment Searches Of Digital Storage Devices: A Novel Framework, James Mullen

Duke Law Journal

Judges frequently analogize physical precedents when applying Fourth Amendment law to searches of digital storage devices. But these analogies do not map well from physical to digital spaces because they overlook fundamental structures of digital storage. And the stakes are high—courts’ errors lead to oversearches that irreparably harm device owners regardless of the suspects’ guilt or innocence. This Note examines the structure of common digital storage devices and courts’ erroneous attempts to apply Fourth Amendment law to them.

This Note also proposes a novel two-phase framework that would curb oversearch. The framework uses a forensic program to conduct a limited …

Antitrust Without Competition, Daniel Francis

Duke Law Journal

Competition is everywhere in antitrust. Courts, agencies, and scholars routinely insist that antitrust can, does, and should measure the legality of conduct by asking whether it has harmed or promoted “competition.” The idea that competition is, without further definition, a coherent value that can be increased or reduced—and used to guide the development and application of antitrust rules—has dominated doctrine for a century, and is deployed freely by judges, enforcers, and writers across the political spectrum.

This does more harm than good, and it should stop. There is no single value or quantity, in economics or antitrust law, that competition …

Mass Tort Litigation, Chapter 11, And Good Faith: Let Not Perfect Be The Enemy Of Pretty, Pretty Good, Lawrence Ponoroff

Duke Law Journal Online

Soon after enactment of the current Bankruptcy Code, Chapter 11 emerged as the forum of choice for companies seeking to resolve the otherwise intractable problems associated with mass tort liability. In recent years, the enactment of state law divisive merger statutes opened a new era in the evolution of mass tort liability cases. Specifically, companies could create a new entity that would assume responsibility for all outstanding tort claims, thus keeping the parent firm out of bankruptcy entirely. This practice, colloquially referred to as the Texas Two-Step, gained widespread notoriety when Johnson & Johnson placed its new subsidiary, LTL Management, …

Abortion Disorientation, Greer Donley, Caroline Kelly

Duke Law Journal

The word “abortion” pervades public discourse in the wake of Dobbs v. Jackson Women’s Health Organization. But do people know what it means? Not only do law and medicine define it differently, but state legislatures have codified wildly different definitions of abortion across jurisdictions. This Article exposes inherent ambiguities at the boundaries of the term, particularly as it intersects with other categories of reproductive health care often viewed as separate, like pregnancy loss and ectopic pregnancy. By juxtaposing statutory text with real people’s experiences of being denied care in states with abortion bans, this Article reveals how those ambiguities cause …

Secrecy By Stipulation, Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters, Aaron Schaffer-Neitz

Duke Law Journal

GM Ignition Switch. Dalkon Shield. Oxycontin. For decades, protective orders—court orders that require parties to maintain the confidentiality of information unearthed during discovery—have hid deadly defects and pervasive abuse from the public, perpetuating unnecessary harm.

But how worrisome are these protective orders, really? Under Rule 26(c)’s plain language, protective orders are to be granted only upon a showing of “good cause.” Doesn’t that adequately cabin the orders’ entry? Prominent judges and scholars have long insisted it does, and that, under Rule 26(c), the day-to-day grant of protective orders is careful, not cavalier. Critics disagree. They charge that parties frequently agree …

Restoring The Citizenship Of The Soldier, Chandler B. Cole

Duke Law Journal

Modern jurisprudence consistently treats the U.S. military as legally distinct, imposing different standards for service members’ constitutional rights, Federal Tort Claims Act lawsuits, and Title VII protections than it does for their civilian counterparts. The legal foundation for this treatment relies in large part on the constitutional military structure, which empowers Congress to prescribe rules and regulations for the “land and naval Forces” and exercise extensive power over “armies.” Usually, both entities—armies and the larger “land and naval Forces”—are considered synonymous with the modern-day all-volunteer force (“AVF”). This interpretation, though, neglects the foundational role the constitutional militia played in composing …

Journal Staff

Duke Law Journal

No abstract provided.

The Limits Of The Bank Service Company Act, Jacob Cunningham

Duke Law Journal

Modern banks rely on numerous third-party service providers. They host data using cloud services, rely on clearinghouses to settle financial transactions, and automate their operations using financial technology and artificial intelligence. Alongside convenience, cost savings, and sophistication, reliance on these service providers brings risks. Dysfunction in third-party services can lead to data breaches, core service outages, or—potentially—systemic risk. And the odds of these risks coming to fruition only increase as the market for service provision becomes more concentrated.

However, one clause of a little-studied antitrust statute from the 1960s provides regulators with the ability to supervise third-party services. This statute—the …

The Israel-Hamas Conflict: International Law, Accountability, And Challenges In Modern Warfare, Mara R. Revkin

Judicature International

No abstract provided.

Tribes And Ai: Possibilities For Tribal Sovereignty, Adam Crepelle

Duke Law & Technology Review

Artificial Intelligence (AI) has permeated every facet of modern existence. Governments across the globe are exploring its applications and attempting to establish regulatory frameworks. Numerous scholars have proffered recommendations for governing AI at the local, national, and international levels. However, as is often the case, Indian tribes have been neglected in AI policy discussions. This oversight is significant because the 574 federally recognized tribes are sovereigns with their own judicial, education, and healthcare systems. Due to their relatively small populations and geographic isolation, tribes stand to benefit significantly from the services AI can perform. Moreover, tribes are uniquely well-suited to …

On Responsive Judging, Rosalind Dixon

Judicature International

No abstract provided.

When John Locke Meets Lao Tzu: The Relationship Between Intellectual Property, Biodiversity, And Indigenous Knowledge And The Implications For Food Security, Paolo Davide Farah, Marek Prityi

Duke Environmental Law & Policy Forum

No abstract provided.

Human Rights In Texas: Analyzing Operation Lone Star Through A Human Rights Framework, Olivia S. Callan

Duke Journal of Comparative & International Law

In 2021, Texas Governor Greg Abbott launched Operation Lone Star (OLS) under the guise of border security. For over three years, OLS has threatened the lives of migrants and U.S. citizens alike. While advocates have primarily challenged OLS under U.S. state and federal law, this Note examines arguments based on the U.S.'s international treaty obligations, particularly emphasizing the importance of enforcing international mechanisms of accountability. This Note analyzes OLS under three international law treaties the U.S. has ratified: the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and the …