Law Commons^™

Not Up For Deliberation: Expanding The Peña-Rodriguez Protection To Cover Jury Bias Against Lgbtq+ Individuals, Brett V. Ries

Duke Law Journal

Discrimination against LGBTQ+ individuals persists within the United States criminal justice system, which is no surprise given the history of LGBTQ+ discrimination in the United States. Evidence of jurors convicting LGBTQ+ defendants—or, in some extreme cases, sentencing them to death—because of the defendant’s queer identity is especially concerning.

Standing in the way of protecting LGBTQ+ defendants from LGBTQ+ bias in jury deliberations is Federal Rule of Evidence 606(b), which prohibits defendants from using juror testimony regarding jury deliberations to impeach the jury’s verdict. However, in 2017, the Supreme Court in Peña-Rodriguez v. Colorado provided an exception to this “no-impeachment rule” …

The Accidental Innovation Policymakers, Rachel E. Sachs

Duke Law Journal

Health care policymakers in the United States, particularly at the federal level, have recently considered a range of proposals that would lower prices for prescription drugs. The pharmaceutical industry and many politicians have argued that these proposals would harm innovation incentives, resulting in fewer new drugs coming to market in the future. This Article identifies and explores a key problem with this argument: that it is typically deployed both accidentally and asymmetrically in nature. Specifically, this Article considers previous changes to health laws that had the impact of increasing innovation incentives by providing large new subsidies to pharmaceutical companies—chiefly the …

Purpose Or Profit?: The Rise Of Public Benefit Corporations In The Technology Industry, Alanna Potter

Duke Law & Technology Review

Over the last several years, the demand for socially responsible companies has exploded. Many states have responded to this demand by offering a new corporate form, the public benefit corporation (“PBC”), which arguably allows companies to prioritize social benefit in a way that traditional corporations cannot. The technology industry has adopted the PBC structure at higher rates than corporations in other industries. This Note offers reasons for the appeal of PBCs to corporations generally and to the technology sector in particular. This Note also explores why technology companies may be able to achieve the goals discussed without the need for …

Causation And Conception In American Inventorship, Dan L. Burk

Duke Law & Technology Review

Increasing use of machine learning or “artificial intelligence” (AI) software systems in technical innovation has led some to speculate that perhaps machines might be considered inventors under patent law. While U.S. patent doctrine decisively precludes such a bizarre and counterproductive result, the speculation leads to a more fruitful inquiry about the role of causation in the law of inventorship. U.S. law has almost entirely disregarded causation in determining inventorship, with very few exceptions, some of which are surprising. In this essay, I examine those exceptions to inventive causality, the role they play in determining inventorship, and their effect in excluding …

Dignity And Respect At All Times: How Federal Agencies Can Measure Up In Complying With Nagpra And Related Statutes, Catherine E. Kanatas, Maxwell Smith

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

The Fashion Industry Is Not As "Green" As It Would Like You To Believe, Ashly Riches

Duke Environmental Law & Policy Forum

No abstract provided.

Addressing Green Energy's "Resource Curse", Roger E. Meiners, Andrew P. Morriss

Duke Environmental Law & Policy Forum

Policy changes that encourage non-fossil fuel energy mean increased reliance on batteries and other technologies that must develop rapidly. This article focuses on batteries, noting that key inputs come from corrupt countries, so little of the benefits of exports flow to citizens, and many key finished mineral products come from China. The United States thereby becomes more reliant on autocratic regimes. Using cobalt as an example, this article looks at the nature of its production, the inability of the United States to shoulder its share of the environmental burden of mineral extraction and refining, and looks to previous examples of …

Redlining Reimagined: "Race-Neutral Alternatives" In The Likely Wake Of Affirmative Action, Margaret Kruzner

Duke Journal of Constitutional Law & Public Policy Sidebar

For a decade, Justice Clarence Thomas has sharply criticized the Court's treatment of affirmative action, the race-conscious university admissions processed used to pursue the educational benefits associated with diverse classrooms. Calling affirmative action a "faddish theory" that the "Constitution abhors," Justice Thomas signaled his readiness to overrule Grutter v. Bollinger, which endorsed the practice in 2003.

Justice Thomas and the Court's originalist Justices have a new opportunity to strike down affirmative action in the Students for Fair Admissions litigation. Students for Fair Admissions, a non-profit organization founded by Edward Blum, is suing Harvard College and the University of North …

Moore V. Harper: The Independent State Legislature Theory And The Court At The Brink, Braden Fain

Duke Journal of Constitutional Law & Public Policy Sidebar

Moore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court's authority in federal elections. Scholars have recognized the theory's threat to American democracy and have accordingly produced a detailed record debunking the ISLT. …

Murder And Money: The Dark Side Of Taylor Swift, Fredrick E. Vars

Duke Law Journal Online

Under the dramatically named “Slayer Rule,” murderers cannot inherit from their victims. This principle is so intuitive that it is easy to miss critical questions of implementation. One such question is: What if one cannot prove the murder with certainty? Should the Slayer Rule apply only to individuals convicted beyond a reasonable doubt of murder, or should some lower level of proof suffice? This essay examines those questions through an unlikely lens: the music of Taylor Swift.

Volume 107, Number 1 (2023)

Judicature

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

The Many State Doctrines Of Forum Non Conveniens, William S. Dodge, Maggie Gardner, Christopher A. Whytock

Duke Law Journal

Forum non conveniens is not as ancient or monolithic as U.S. courts often assume. The doctrine, which permits judges to decline to hear cases they believe would more appropriately be heard in another sovereign’s courts, was only adopted by the U.S. Supreme Court for use in nonadmiralty cases in 1947; the doctrine’s “deep roots in the common law” are thought instead to have grown in the states.

This Article tests that account by surveying the forum non conveniens doctrines of all fifty states and the District of Columbia. What we found should change how judges, practitioners, and scholars view the …

Solving The Valuation Challenge: The Ultra Method For Taxing Extreme Wealth, Brian Galle, David Gamage, Darien Shanske

Duke Law Journal

Recent reporting based on leaked tax returns of the ultrarich confirms what experts have long suspected: for the wealthiest Americans, paying taxes is mostly optional. Some of the country’s richest have reported annual taxable incomes that would be modest for a schoolteacher, even as the share of wealth held by the top .1 percent is at its highest in nearly a century.

Experts have long understood that one problem sits at the roots of many of the tax system’s failures to reach the very rich: valuation. Because it is difficult to appraise complex or unique assets, modern tax systems instead …

Legal Strategies To Minimize Subway Air Pollution In The United States, Maia Foster

Duke Law Journal

Air pollution in U.S. subway systems poses a major threat to public health. People in subway stations breathe in dangerously high levels of dusts, called particulate matter. Current legislation does not effectively address this problem; in fact, the United States does not have a comprehensive indoor air quality law at all. Left unregulated, people regularly exposed to subway air pollution could suffer respiratory and cardiovascular issues and even premature death.

To mitigate these health effects, some countries have imposed PM standards in subway systems and underground spaces. Others have standards covering all indoor spaces. In the United States, many subway …

Standardized Exclusion: A Theory Of Barrier Lock-In, Andrew Tisinger

Duke Law Journal

The United States has relaxed antitrust scrutiny of private standard-setting organizations in recognition of their potential procompetitive benefits. In the meantime, however, the growing importance of network industries—and the coinciding move toward vendor-led standards consortia—has welcomed new, insidious anticompetitive risks. This Note proffers one such risk: barrier lock-in. A theory of barrier lock-in recognizes that dominant vendors can capture and control standards consortia to keep standardized equipment complex and costly. These practices are exclusionary. This Note situates barrier lock-in within the existing antitrust literature and jurisprudence, provides a potential example of barrier lock-in in the 5G network equipment standardization process, …

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

Duke Journal of Constitutional Law & Public Policy Sidebar

The reintroduction of the Gray Wolf to the Greater Yellowstone Ecosystem conferred extensive ecological benefits to the region. The wolves' return resulted in a phenomenon known as a "trophic cascade," in which the presence of apex predators atop a food pyramid effectuates a "waterfall" of ecosystem-wide benefits. For example, the Gray Wolf has curtailed bloated elk populations, which has in turn reduced the damage of elk herds overgrazing on willow, aspen, and cottonwood plants—critical sources of food for the region's beavers. Importantly, the wolves' benefits are not confined to flora and fauna. Scientists have even discovered geological and riparian benefits …

The Spirit Of Gun Laws, Noah Levine

Duke Journal of Constitutional Law & Public Policy Sidebar

The firearms debate in the United States often pits public health against freedom. This false dichotomy implies that gun laws, even wise ones, inherently erode individual liberty. Indeed, this appeal to liberty finds fertile ground in the United States, where many Americans intuitively reject any incursion on their freedom. Yet this one-sided conception of liberty is, at best, incomplete: while the government can certainly encroach on our freedom, so too can our fellow citizens.

A historically grounded conception of liberty in the United States includes the sense of security that fosters self-expression without fear of arbitrary constraint. That is, when …

Allen V. Milligan: Anticlassification And The Voting Rights Act, Graham Stinnett

Duke Journal of Constitutional Law & Public Policy Sidebar

The "crown jewel" of the Civil Rights Movement, the Voting Rights Act of 1965 has been called "one of the most effective statutes ever enacted." However, in 2013 the Supreme Court famously gutted the Voting Rights Act in Shelby County v. Holder. Nearly a decade later, in Allen v. Milligan, the Court is now signaling that Section 2, the last remaining core provision of the Voting Rights Act, could be on the chopping block. With Milligan, the Court may be preparing to inject race-neutrality into Section 2, which could destroy the vestiges of the onetime "super-statute."

This …

Misreading Campbell: Lessons From Warhol, Shyamkrishna Balganesh, Peter S. Menell

Duke Law Journal Online

In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a "transformative use." Purporting to rely on the Court’s adoption of "transformative use" as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous "transformativeness" inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might be considered as …

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

Duke Journal of Constitutional Law & Public Policy Sidebar

Facial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense …

Cannabis Drug Development And The Controlled Substances Act, Gabrielle Feliciani

Duke Journal of Constitutional Law & Public Policy Sidebar

Cannabis is a federally illegal drug in the United States, yet thirty-seven states and four territories have now enacted laws allowing the production, distribution, and consumption of cannabis for medical use. An estimated 5.5 million individuals in medical-use states are qualified to purchase cannabis to treat and mitigate symptoms for conditions ranging from cancer to post-traumatic stress disorder to chronic pain. But, only three cannabis drugs have been approved by the Food and Drug Administration (FDA).

The current state of federal illegality creates a problem of supply and demand—consumer demand for cannabis is high, but the number of approved drug …

Too Much Salt: Rejecting The Pass-Through Entity Tax As A Salt Deduction Cap Workaround, Timothy Gray Ingram

Duke Journal of Constitutional Law & Public Policy Sidebar

Historically, U.S. taxpayers have been able to deduct their state and local taxes from their federal taxable income. This changed with the passage of the Tax Cuts and Jobs Act of 2017, which introduced a $10,000 cap on the state and local tax (SALT) deduction. States have reacted by turning to various methods to mitigate the negative tax consequences of the cap for their residents, including workarounds that use the charitable contribution deduction or a payroll tax as a means to allow full deductibility of state and local taxes.

With the IRS striking down the charitable contribution workaround, and the …

Covid Vaccines And Intellectual Property Rights: Evaluating The Potential For National Legislation Implementing Global Patent Waivers, Ashley Dabiere

Duke Law & Technology Review

Debates over the proper scope of intellectual property protections during the COVID-19 pandemic have occupied newspaper headlines since the first vaccines were developed nearly three years ago. Scholars and key politicians from several nations considered the implementation of a global patent waiver in an effort to make the vaccines more widely available in developing parts of the world. Although the question of whether such a waiver would fulfill this goal remains empirically unanswered and up for debate, the legal structure of United States patent law would make its implementation by Congress difficult given the value placed on intellectual property protections …

The Impact Of The Rule Of Law On National Security In African Countries, Catherine Lena Kelly

Judicature International

No abstract provided.

Endogenous Tax Law: Regulatory Capture And The Ethics Of Political Obligation, Daniel T. Ostas

Law and Contemporary Problems

No abstract provided.

Encouraging Ethical Tax Compliance Behaviour: The Role Of The Tax Practitioner In Enhancing Tax Justice, Elaine Doyle

Law and Contemporary Problems

No abstract provided.

Policing Fiscal Corruption: Tax Crime And Legally Corrupt Institutions In The United Kingdom, Branislav Hock

Law and Contemporary Problems

No abstract provided.

Foreword: Tax Evasion, Corruption And The Distortion Of Justice, Diane Ring, Costantino Grasso

Law and Contemporary Problems

No abstract provided.