Law Commons^™

The Gptjudge: Justice In A Generative Ai World, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown, Molly (Yiming) Xu

Duke Law & Technology Review

Generative AI (“GenAI”) systems such as ChatGPT recently have developed to the point where they can produce computer-generated text and images that are difficult to differentiate from human-generated text and images. Similarly, evidentiary materials such as documents, videos, and audio recordings that are AI-generated are becoming increasingly difficult to differentiate from those that are not AI-generated. These technological advancements present significant challenges to parties, their counsel, and the courts in determining whether evidence is authentic or fake. Moreover, the explosive proliferation and use of GenAI applications raises concerns about whether litigation costs will dramatically increase as parties are forced to …

Journal Staff

Duke Law Journal

No abstract provided.

Science As Superstition: A Model Statute For Changed Science Claims, Jack D. Wasserman

Duke Law Journal

Over the last fifteen years, the legal community has increasingly recognized the role of “changed science” in contributing to wrongful convictions. Changed science wrongful convictions occur when the scientific evidence used to convict a criminal defendant at trial has since been questioned or repudiated by the greater scientific community. To address this issue, seven states have enacted “changed science writs,” providing petitioners who may have been wrongfully convicted with a more reliable state habeas mechanism to challenge their convictions. Under these statutes, petitioners may bring challenges based on now-discredited scientific evidence, new guidelines, expert recantations, and scientific advancements. Importantly, these …

America's Other Separation Of Powers Tradition, Jonathan L. Marshfield

Duke Law Journal

As the Supreme Court returns many critical issues to the states, the structure of state government is increasingly significant to the American constitutional order. From redistricting to reproductive rights, battles are raging over which state institutions should decide these important issues. Yet there is surprisingly little scholarship dedicated to the separation of powers under state constitutions. Instead, state doctrine and commentary tend to mimic themes in federal constitutional law and parrot Madisonian ideas of constitutional design. On this view, the separation of powers is based on carefully balanced intragovernment rivalries fueled by the private ambition of government officers. This competition …

Immigration Incentives In Fcpa Enforcement: The Case For Protecting At-Risk Foreign Whistleblowers, Ken Krmoyan

Duke Law Journal

In recent years, the Securities and Exchange Commission (“SEC”) has aggressively enforced the Foreign Corrupt Practices Act (“FCPA”), which prohibits bribing foreign officials for business purposes. In doing so, it has relied heavily on tips from its increasingly popular whistleblower program, including ones received from scores of foreign countries. However, foreign whistleblowers enjoy unequal protections vis-à-vis their U.S. counterparts. For instance, foreign whistleblowers are not protected against retaliation for lawfully reporting information to the SEC. Worse still, some foreign whistleblowers are less protected than others due to inadequate protections in their domestic systems, and some face especially great risks for …

Legal Ethics After #Metoo: Autonomy, Domination, And Nondisclosure Agreements, Sung Hui Kim

Duke Law Journal

The legal profession has long embraced what is called the “standard conception” of legal ethics, the prevailing model guiding the social and professional norms of American lawyers since at least the 1970s. The standard conception requires lawyers to promote their clients’ interests vigorously within the bounds of law and urges lawyers to be morally neutral toward lawful client ends, regardless of even the predictable consequences of their representations, including any harms inflicted on third parties or the public at large. Central to the most prominent defenses of the standard conception is the value of individual autonomy, specifically the client’s. According …

All Grown Up: Qualified Immunity, Student Rights, And The Way Forward, Matthew Mcknight, Angela Guo

Duke Law Journal Online

No abstract provided.

101 Lawyers: Attorney Appearances In Twitter V. Musk, Andrew K. Jennings

Duke Law Journal Online

In summer 2022, Twitter sued Elon Musk, the world’s richest person, in Delaware’s Court of Chancery over his refusal to close his agreed-to $44 billion acquisition of the social-media company. Twitter v. Musk had the makings of corporate law’s trial of the century. Leading law firms represented Twitter, Musk, and third parties in a dispute with enormous financial, social, and political implications. In the lead up to trial, however, Musk relented and closed the deal. The corporate trial of the century was a bust, over almost as soon as it began.

But in the meantime, in Twitter’s eighty-six days of …

Inside The Internet, Nick Merrill, Tejas N. Narechania

Duke Law Journal Online

Conventional wisdom—particularly in the legal literatures—suggests that competition reigns the inside of the internet. This common understanding has shaped regulatory approaches to questions of network security and competition policy among service providers. But the original research presented here undermines that long-held assumption. Where the markets for internet traffic exchange (and related services) have long been thought to be characterized by robust competition among various network services providers, our findings suggest that these markets have consolidated. These trends raise a host of concerns for network reliability, online speech, and consumer choice, among other matters. Indeed, some recent high-profile internet outages reflect …

Creditors Strike Back: The Return Of The Cooperation Agreement, Samir D. Parikh

Duke Law Journal Online

In the low interest rate environment that followed the Great Recession, a fanatical demand for high-yield investments provided private equity firms an opportunity. Newfound borrower leverage facilitated credit documents with few creditor safeguards and various loopholes. Borrowers subject to these “sponsor-favorable” terms now had options in times of financial distress. More specifically, they had the option to strike first.

Utilization of coercive exchanges began in earnest around 2015 and has since flourished. Unmonitored portfolio companies experiencing financial distress now regularly rely on questionable interpretations of ambiguous contractual provisions to surreptitiously move assets away from creditors’ collateral baskets and subordinate lenders. …

Community Energy Exit, Sharon Jacobs, Dave Owen

Duke Law Journal

Communities across the United States are taking advantage of new technologies and governance forms to assert greater control over their energy systems. For decades, energy provision throughout much of the nation was heavily centralized. Even where market-oriented reforms emerged, most consumers had little ability to take advantage of the changes. But resurgent interest in municipal takeover of energy systems, alongside new phenomena such as community choice aggregation and microgrid construction, are making what we call “community energy exit” a reality. Popular and academic commentators have hailed these developments as key steps toward decarbonization, social justice, and energy democracy.

This Article …

Journal Staff

Duke Law Journal

No abstract provided.

Startup Failure, Elizabeth Pollman

Duke Law Journal

Venture-backed startups famously aim for a successful “exit” by going public or selling to another company through an acquisition deal and achieving financial return for all equity holders. A different path, however, is vastly more likely to occur—failure. Although high-risk innovative ventures fail at exceedingly high rates, no scholarly account systematically explains what happens to these startups at the end of their life cycle.

This Article provides a theory of startup failure: how law and culture have shaped a system for dealing with the large number of startups that cannot reach an exit that will produce a financial return for …

Hawks And Doves: Evaluating Presidential Powers And Duties Against Congress's Power To Declare War, Andrea L. R. Pillai

Duke Law Journal

What would happen if Congress declared war against the president’s wishes? Would the president be forced to prosecute the war? Or are there mechanisms, whether through the system of checks and balances or the president’s own delegated, independent powers, that give the president the authority to disregard Congress’s declaration? This Note argues that a declaration of war must go through the process of bicameralism and presentment to be valid. Thus, the president has the authority to veto a declaration of war. If Congress overcomes the president’s veto, this Note concludes that the president must prosecute the war. The president does …

Shading Sunshine: The Proliferation Of Exemptions To State Open Records Laws, Cat Reid

Duke Law Journal

State and local open records laws play a vital role in our democracy. They shed light on the darkest places, exposing corruption and holding the powerful accountable. Yet lawmakers are continually chipping away at the public’s right to know by limiting the information available under open records laws. Exemptions have been passed to bolster special interests, in response to investigative journalism, and to shield lawmakers. This Note examines the proliferation of exemptions and proposes a three-pronged solution that combines statutory improvements from federal FOIA and Florida’s open records law with a call for greater public engagement on the importance of …

When An Aspiring Tax Lawyer Considered Labor Unions Important To The Future Of Capitalism, Catherine L. Fisk

Law and Contemporary Problems

No abstract provided.

Surrey's Silence: Subpart F And The Swiss Subsidiary Tax That Never Was, Steven A. Dean

Law and Contemporary Problems

No abstract provided.

What Would Surrey Say? The Long Reach Of Stanley S. Surrey, Reuven Avi-Yonah, Nir Fishbien

Law and Contemporary Problems

No abstract provided.

Stanley Surrey, The New Deal, And The Virtues Of Incremental Tax Reform, Joseph J. Thorndike

Law and Contemporary Problems

No abstract provided.

Stanley Surrey, The American Law Institute Income Tax Project, And The Normative Structure Of The Income Tax, Charlotte Crane

Law and Contemporary Problems

No abstract provided.

Stanley Surrey's Lasting Influence, Assaf Harpaz, C. Eugene Steuerle

Law and Contemporary Problems

No abstract provided.

Assessing The Non-Cognitivist Defense Of The Supreme Court's Obscenity Doctrine, Benjamin Rossi

Law and Contemporary Problems

No abstract provided.

Foreword: The Legacy Of Stanley S. Surrey, Ajay K. Mehrotra, Lawrence Zelenak

Law and Contemporary Problems

No abstract provided.

The Surprising Surrey: Stanley S. Surrey As Educator, Mentor, And Institution Builder, Ajay K. Mehrotra

Law and Contemporary Problems

No abstract provided.

Stanley Surrey, The Shoup Mission, And Tax Administration In Japan, W. Elliot Brownlee, Eisaku Ide

Law and Contemporary Problems

No abstract provided.

Textualism, The Authoritativeness Of Congressional Committee Reports, And Stanley Surrey, George K. Yin

Law and Contemporary Problems

No abstract provided.

Stanley Surrey And Taxing Unreallized Appreciation, Lawrence Zelenak

Law and Contemporary Problems

No abstract provided.

The (Tax) Policy Entrepreneur, Mirit Eyal-Cohen

Law and Contemporary Problems

No abstract provided.

'Moralist' Versus 'Scientist': Stanley Surrey And The Public Intellectual Practice Of Tax Policy, Daniel Shaviro

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.