Law Commons^™

From Founded To Funded: Challenges & Visions For Justice Tech, Kelli Raker

Duke Center on Law & Technology

No abstract provided.

Fact Stripping, Joseph Blocher, Brandon L. Garrett

Duke Law Journal

Appellate fact review in constitutional litigation has never been more important. Whether someone’s rights were violated often turns on what happened—matters of fact—and not solely on matters of law. That makes it all the more striking that the U.S. Supreme Court has increasingly reversed rulings of lower courts based on factual disagreement, given that such factfinding is typically entitled to significant appellate deference. Scholars and would-be reformers have noted many problems with appellate factfinding, but have tended to assume that the Court itself has final say on the applicable standard of review.

Yet as a matter of constitutional law, the …

Norm Commandeering And The Tobacco Trust, George F. K. Werner

Duke Law Journal

In the early 1870s, Durham became a major center of tobacco marketing. Farmers brought their crops to auction warehouses, which then sold them to the town’s manufacturers. This was a process facilitated by a well-developed system of social norms. But the formation of the American Tobacco Company’s “tobacco trust” in the 1890s threatened that arrangement—buyers conspired to pay less per pound of tobacco, and warehousemen lost the ability to police buyers’ conduct. When farmers attempted to organize in response, geographic and social distance caused their efforts to fail. By the time federal courts dissolved the trust in 1911, the damage …

Journal Staff

Duke Law Journal

No abstract provided.

The Dead Hand Of A Silent Past: Bruen, Gun Rights, And The Shackles Of History, Jacob D. Charles

Duke Law Journal

In June 2022, the Supreme Court struck down New York’s concealed carry licensing law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. By requiring historical precedent for any modern regulation, that test is essentially sui generis in the Court’s individual-rights jurisprudence. Yet it represents both an extension of an increasingly historically focused Supreme Court case law and a harbinger of potential doctrinal transformations in other domains.

This Article critically assesses Bruen’s test and, …

The Last Black Tobacco Union: Local 208, Segregated Seniority, And The Integrating South, Kathy Rong Zhou

Duke Law Journal

After federal reforms in the 1930s protected the right to organize, the Tobacco Workers International Union made quick work of mobilizing the American South. Its unions, though segregated, made strides. Yet Black unions’ collective bargaining gains could not transcend one of the South’s most oppressive employment practices: segregated systems for worker seniority. One Black union, Local 208 at Liggett & Myers Tobacco Company in Durham, North Carolina, fought for seniority rights for more than three decades. During this time, the federal government increasingly pressured Southern industry and labor to desegregate. Steadfast, Local 208 refused to merge with any white union …

Forensic Evidence And Rule 3.8: What Does The Use Of Bite Mark Evidence Tell Us About Prosecutorial Ethics?, Brendan Clemente

Duke Law & Technology Review

Rule 3.8 of the ABA’s Model Rules of Professional Conduct should include rules that specifically address unethical uses of forensic evidence in criminal prosecutions. Forensic evidence is common in criminal trials. But the traditional rules of ethics do not effectively address the use of forensic evidence. Rule 3.8 should include a rule requiring prompt and full disclosure of information about expert witnesses whom the prosecutor plans to call and all relevant information that the prosecutor knows about a forensic method’s application in the case. Rule 3.8 should also include a requirement that the prosecutor use reasonable diligence to learn about …

Climate Change And The Courts: Balancing Stewardship And Restraint, Susan Glazebrook

Judicature International

No abstract provided.

Volume 107, Number 3 (2024)

Judicature

No abstract provided.

Volume 107, Number 2 (2023)

Judicature

No abstract provided.

Ukraine’S Supreme Court: Born Amid Crisis, Now Under Siege, Sergii Koziakov, David Collins

Judicature International

No abstract provided.

Playing The Long Game: The Role Of International Courts And Tribunals In The Russo-Ukrainian War, Paul W. Grimm, Kim Scheppele, Paul Stephan, Harold Hongju Koh, Oleksandra Matviichuk

Judicature International

No abstract provided.

Law Thrown Overboard: Direct Democracy And The Alaska Ocean Rangers, Hannah Rogers

Alaska Law Review

Alaska is one of the premier cruise destinations in the world. The vessels' many amenities and luxuries, however, come with a price: cruise ships produce an inordinate amount of waste, most of which is dumped into the ocean. In 2006, Alaska voters passed a ballot measure establishing a program called the Ocean Rangers, which would monitor cruise ships in Alaskan waters to ensure that vessels were disposing of waste in accordance with state and federal law. In 2019, after an unsuccessful attempt in the state legislature to end the Ocean Rangers program, Alaska Governor Mike Dunleavy vetoed the entirety of …

The Unique Promise Of The Alaska Constitution: The Right To Rehabilitation, Adam Beyer

Alaska Law Review

The Alaska Constitution creates a unique promise for those convicted of crimes. In Abraham v. State, the Alaska Supreme Court held that article I, § 12 grants offenders a "right to rehabilitation." Such a right is uncommon; few states, if they have similar protections at all, have labeled it a right. In the years since Abraham, the Court has occasionally addressed claims invoking the right, making clear that its decision was not an aberration. The court's most thorough examination of the right occurred this term in Department of Corrections v. Stefano. This article seeks to examine and clarify …

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Remedies For Constitutional Flaws Have Major Flaws, Richard J. Pierce Jr.

Duke Journal of Constitutional Law & Public Policy

In this essay, Professor Pierce describes the many ways in which the conservative majority of the Supreme Court has attempted to use its unique approach to interpretation of the Constitution to restructure the government and to reallocate power among the branches of government. He then describes the problems that the Court has encountered in its efforts to choose remedies for the constitutional flaws that it detects.

Increasingly, the Court must choose between remedies that are ineffective and remedies that make it impossible for the government to function. Pierce predicts that the problems that the Court has experienced to date will …

Constitutional Hardball And Nationwide Preliminary Injunctions, Jack Thorlin

Duke Journal of Constitutional Law & Public Policy

Constitutional hardball—the breaking of norms while remaining technically within the bounds of the Constitution—has spread from the executive and legislative branches to the federal judiciary in the form of nationwide preliminary injunctions in politically sensitive cases. Preliminary injunctions evolved in the English judicial system to ensure that plaintiffs clearly in the right were not irrevocably harmed while waiting for torpid courts to rule on their case. Now, preliminary injunctions are a useful tool for delaying and disrupting the adoption of disfavored executive branch policies.

While the general problem of nationwide preliminary injunctions is well recognized, it is difficult to find …

Protecting Natural Stewardship: Public Trusts, Wildlife Trusts, And The Effect Of Trophic Cascades, Nicholas Massey

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Blaine In The Joints: The History Of Blaine Amendments And Modern Supreme Court Religious Liberty Doctrine In Education, Mccarley Elizabeth Maddock

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The End Of Balancing? Text, History & Tradition In First Amendment Speech Cases After Bruen, Clay Calvert, Mary-Rose Papandrea

Duke Journal of Constitutional Law & Public Policy

This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court's increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court's free-speech decisions. The Bruen majority, however, asserted …

Note From The Editor

Alaska Law Review

No abstract provided.

Issues In Implementing Special Domestic Violence Criminal Jurisdiction In Alaska's Tribal Courts, Danika Watson

Alaska Law Review

Until 2022, all but one of the 229 Alaska tribes were barred from special domestic violence criminal jurisdiction (SDVCJ): Congress's jurisdictional tool for tribal courts to address domestic violence and hold perpetrators of violence against Alaska Native women criminally accountable. The reauthorization of the Violence Against Women Act (VAWA) in 2022 brought SDVCJ to Alaska's rural Native communities. This landmark achievement was made possible by decades of advocacy from Alaska's tribal, state, and federal leadership. In the wake of VAWA 2022, Alaska tribes and tribal justice systems face several significant legal, political, and cultural challenges. This Article outlines the legal …

Indian Child Welfare Act: A Roadblock In A Native Child's Pathway To Permanency, Melissa Gustafson

Alaska Law Review

The Indian Child Welfare Act (ICWA) requires the testimony of a qualified expert witness to support, beyond a reasonable doubt, the termination of parental rights in cases involving Native children. Initially, Congress expressed a preference for qualified expert witnesses to possess intimate knowledge of Native tribes' childrearing norms and practices. However, the permissive language of the 2016 Regulations has deemphasized this preference. Instead, the Alaska Supreme Court has interpreted the 2016 Regulations as requiring an expert to be qualified to testify about the mental, emotional, and physical wellbeing of children, therefore requiring formalized education in these areas of study. This …

Fishing In The Desert: Modernizing Alaskan Salmon Management To Protect Fisheries And Preserve Fishers' Livelihoods, Connor Sakati

Alaska Law Review

Many Alaskan salmon fisheries are in distress, threatening fishers' livelihoods, food sources, and cultures. This crisis—and the few, blunt tools managers possess to address it— reveals that the current state and federal legal framework for salmon management is inadequate to protect fisheries' health and preserve fishers' livelihoods, especially as the ocean warms and the distribution of species within it significantly changes. First, the current framework's regulatory tools, designed to combat human overuse of a single species, are poorly tailored to mitigating this multicausal, ecosystem-wide crisis. Current science indicates marine heatwaves, habitat degradation, and human use may be major culprits of …

Beyond Indian Country: The Sovereign Powers Of Alaska Tribes Without Reservations, Mitchell Forbes

Alaska Law Review

The Alaska Native Claims Settlement Act of 1971 (ANCSA) devised a land entitlement system markedly different from the Indian reservation system that prevailed in the Lower 48 states. It directed the creation of twelve, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations, which would receive the bulk of Native land in the state. This corporate model left nearly all tribes in Alaska without a land base. As such, there is very little Indian Country land in the state over which tribes can exercise territorial-based sovereignty. Yet, the Supreme Court has long recognized the power …

Journal Staff

Alaska Law Review

No abstract provided.

Foreword

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Upholding The Domestic Violence Firearm Prohibitors Under Bruen’S Second Amendment, Samantha L. Fawcett

Duke Journal of Constitutional Law & Public Policy Sidebar

Federal law prohibits individuals subject to a domestic violence protective order (§ 922(g)(8)) or convicted of domestic violence misdemeanors (§ 922(g)(9)) from possessing firearms. Before New York State Rifle and Pistol Association v. Bruen, these commonsense gun laws had generally been considered uncontroversial, both in terms of their broad popular support and their constitutionality under the Second Amendment. In Bruen, however, the Supreme Court held that when a regulation burdens a Second Amendment right, the regulation must be consistent with American historical tradition, meaning that the regulation must be analogous to a pattern of historical firearm regulation.

After …

Historic Preservation: Launched From Grand Central Terminal, But Derailing, Kraz Greinetz

Duke Journal of Constitutional Law & Public Policy Sidebar

In Penn Central Transportation Co. v. City of New York, the Supreme Court authorized the practice of historic preservation. Ruling that when a city designates a building as "historic" and therefore restricting its development, it is not a "taking" of private property that requires just compensation under the Fifth Amendment. Since that time, historic preservation has proliferated in America's cities. But it's time for another look. Since Penn Central was decided, the facts and law of property regulation in the United States have changed. And the decision, which was wrong from an originalist perspective when it was decided, has …