Law Commons^™

A Way Forward After Dobbs: Human Rights Advocacy And Self-Managed Abortion In The United States, Kelly Keglovits

Duke Journal of Constitutional Law & Public Policy Sidebar

Even in the era before Dobbs, wherein the Supreme Court repeatedly classified abortion as a "fundamental right," the ability to have an abortion was inaccessible in many parts of the United States. The irony that a "fundamental right" was so difficult to exercise results from how Constitutional rights are understood, which left many open-ended avenues for states to bring restrictions. International Human Rights law, however, offers a more optimistic and accountable approach to steps forward in increasing abortion access—illustrating a need to bring a human rights-based approach home. Dobbs has eviscerated any concept of federal protections for abortion, severely worsening …

Ai And The Regulatory Paradigm Shift At The Fda, Catherine M. Sharkey, Kevin M. K. Fodouop

Duke Law Journal Online

No abstract provided.

Toward Recognizing An International Human Right To Claim Innocence, Brandon Garrett, Laurence R. Helfer, Jayne C. Huckerby, Mark Godsey, Luca Lupària

Judicature International

No abstract provided.

Note From The Editor

Alaska Law Review

No abstract provided.

Keynote Address: Alaska Native Peoples And The Environment, Elizabeth Saagulik Hensley, Esq.

Alaska Law Review

No abstract provided.

Heat Waves And A Public-Private Partnership In Alaska, Karen Sandrik, Sarah Matsumoto

Alaska Law Review

The recently-passed Inflation Reduction Act represents the largest single step that Congress has taken to combat harms from climate change. In its over $360 billion commitment, the Act incentivizes clean energy development and generation, includes methods to directly lower residential utility bills and increase home efficiency, promotes cleaner transportation and agricultural practices, and funds states' and cities' efforts to meet their individual climate goals. While many environmental organizations applauded the Act's passage, some—even simultaneously—expressed concern about its tradeoffs: the Act continues to invest in fossil fuels, subsidizing pipeline construction and guaranteeing new oil and gas leases, specifically expanding leasing in …

Protecting Subsistence Lands While Boosting The Bottom Line: The Enhanced Federal Tax Incentive Available To Alaska Native Corporations For Donations Of Conservation Easements, Timothy Troll, Konrad Liegel

Alaska Law Review

Alaska Native corporations face a dilemma. They own land of immense and significant cultural and ecological value. Their lands are critical for maintaining the Alaska Natives' subsistence needs. But they are also corporations established under the law to maximize the economic value of their land holdings to provide financial dividends to their Native shareholders. This paper explores the enhanced federal tax incentive for donations of perpetual conservation easements that became available in 2015 to Alaska Native corporations. The tax incentive offers Alaska Native corporations a way to protect the aboriginal lands conveyed to them under the Alaska Native Claims Settlement …

Coastal Marine Debris In Alaska: Problems Withplastics, Pollution, & Policy, Savannah Artusi

Alaska Law Review

Plastics pollute people and the planet throughout their lifecycle, from intensive extraction of raw materials to chemical leaching during their use to entangling animals in discarded plastic products. Plastic waste is especially troublesome in Alaska, where the state's extensive shoreline and coastal communities are disproportionately inundated with plastic marine debris. Current policies internationally, in the United States, and in Alaska have not done enough to prevent plastic waste from ending up on Alaska's coasts, to hold plastic producers accountable for that waste, or to provide Alaskan communities the support needed to remove the waste themselves. This Note offers several proposals …

Wilderness V. Oil: Resource Balancing In The Arcticnational Wildlife Refuge, Megan Mason Dister

Alaska Law Review

The Arctic National Wildlife Refuge (ANWR), a national wildlife refuge in a remote region of Alaska, has captured the national spotlight for decades due to conflicting viewpoints on how to manage the refuge's resources. ANWR is home to a large population of diverse species and Alaska Native communities. However, it may also contain large quantities of oil. Debates over ANWR resource management often provide only two options: preserve the Coastal Plain as wilderness or allow energy development. In 2017, a congressional budget resolution opened a portion of ANWR (the Coastal Plain) to oil and gas leasing for the first time. …

The Kenai Rule In Four Acts: Bear Baiting, Firearms, And Hunting: Comment & Analysis Of Alaska V. Bernhardt, Jon C. Nachtigal, Mike Stocz

Alaska Law Review

The Kenai Rule, enacted by the U.S. Fish and Wildlife Service in 2016, prohibits (a) the hunting of brown bears with bait in the Kenai National Wildlife Refuge, (b) most hunting in the Skilak Wildlife Recreation Area, and (c) the discharge of firearms along the Kenai and Russian Rivers. The Kenai Rule was challenged by the State of Alaska and Safari Club International in Alaska v. Bernhardt. This Comment provides an overview of the case as it was heard in the District Court of Alaska. This discussion includes arguments and counterarguments surrounding the application of four legislative acts: the …

Journal Staff

Alaska Law Review

No abstract provided.

The Fracas At The Fdic, Todd Phillips

Duke Law Journal Online

In December 2021, the Democratic members of the Board of Directors of the Federal Deposit Insurance Corporation (FDIC) attempted to use their majority to issue a request for information but were blocked by the Republican Chair. Although the Democrats outnumbered the Chair three-to-one, the agency's General Counsel declared the move invalid, and the request went unpublished. After weeks of hostility, the Chair resigned, effectively conceding her inability to lead the agency. Although governance at the FDIC is now settled, concern over the Democratic directors' actions and the Chair's resignation have reverberated beyond that singular agency. Republicans are concerned that the …

United, We Fall: Expelling Autocratic States From The European Union, Zachary Sanfilippo

Duke Law Journal

Since 2010, the Fidesz party has systemically and blatantly undermined Hungary’s democratic institutions. Led by the autocrat Orbán, Fidesz has rigged Hungary’s elections, packed its courts, and violated its citizens’ human rights. So far, it has done so without any real consequence from the European Union. This state cannot stand. The inefficacy of the EU’s current attempts to discipline Hungary suggests that a stronger remedy is necessary: expulsion. This Note argues that allowing expulsion of materially breaching Member States has not been foreclosed by CJEU jurisprudence and, indeed, advances the EU Treaties’ purpose of “ever closer union.” Should Member States …

Reviving Bank Antitrust, Jeremy C. Kress

Duke Law Journal

After decades of disuse, antitrust is back. Renewing the United States’ longstanding distrust of concentrated economic power, antimonopoly scholars have documented widespread harms of corporate “bigness” and inspired policy initiatives to de-concentrate the U.S. economy. To date, however, the new antitrust movement has largely overlooked a key cause of commercial concentration: the rapid consolidation of the U.S. banking sector. More than thirty thousand banks served local communities a century ago, but today just six financial conglomerates control half of the U.S. banking system. Bank consolidation, in turn, has spurred conglomeration throughout the economy. As the Supreme Court recognized in 1963, …

The Lost Right To Jury Trials In "All" Criminal Prosecutions, Andrea Roth

Duke Law Journal

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less. These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse. This apparently blatant contradiction of the U.S. Constitution’s text is justified by …

Jury Nullification In Abortion Prosecutions: An Equilibrium Theory, Peter N. Salib, Guha Krishnamurthi

Duke Law Journal Online

The Supreme Court has overturned Roe v. Wade. Doing so, it has rescinded recognition of a fundamental constitutional right for the first time in nearly a century. Even before Roe's demise, multiple states enacted laws to criminalize abortion once the abortion right was gone. More states will surely follow soon. Calls to action have gone out to those who can protect women's rights: the President, Congress, left­leaning state governments, and more. We add another call - to jurors.

Jurors - and sometimes judges - have the power to refuse to convict factually guilty defendants in criminal prosecutions when they believe …

Antitrust As An Instrument Of Democracy, Daniel A. Crane

Duke Law Journal Online

No abstract provided.

State Institutions And Democratic Opportunity, Miriam Seifter

Duke Law Journal

The burgeoning commentary on democratic decline in the United States focuses disproportionately on the national level. And seeing a national problem, reformers understandably seek to bolster democracy through large-scale federal solutions. Although their efforts hold popular appeal, they face strong institutional headwinds. As scholars have extensively documented, the Senate, the Electoral College, and the Supreme Court today are skewed against majority rule. Despair grows.

This Article urges legal scholars and reformers to turn their gaze to state-level institutions. State institutions, the Article shows, offer democratic opportunity that federal institutions do not. By design, they more readily give popular majorities a …

Carrots, Sticks, And Space Patents, Kyle Howarth

Duke Law Journal

Patents are essential for promoting scientific progress and innovation. However, the current framework for patents in outer space unduly disincentivizes U.S. patentees from obtaining patents. Importantly, these disincentives may hinder innovation for vital technologies relating to space. This Note explains why international collaboration is necessary to solve this problem and how the United States can incentivize international support for a space patent regime. Specifically, this Note advocates a patent regime consisting of a single set of substantive and procedural patent laws governing the distinct territory of space. First, Part I provides a background on current patent laws in space. Next, …

Investment Games, James Fallow Tierney

Duke Law Journal

Popular zero-commission stock trading apps like Robinhood innovate in user-experience design, featuring “gamification” practices—flashy graphics, leaderboards, and the like—that make it attractive, easy, and fun to trade stocks. Regulators are increasingly scrutinizing gamification and other digital engagement practices, with efforts underway at the SEC to adopt rules in broker-dealer and investment-advisor regulation. This attention reflects considerable skepticism about gamification in securities markets. At best, these practices encourage motivation and engagement, and democratize access to financial markets. But at worst, these practices encourage people to trade habitually and unreflectively, and more than they might want. This can lead to undesirable market-wide …

Collective Memory, Criminal Law, And The Trial Of Derek Chauvin, Sean A. Berman

Duke Law Journal

This Note describes how criminal trials for prominent criminal acts contribute to the collective memory of the underlying offense. Hannah Arendt once argued that the purpose of criminal trials is to “render justice, and nothing else.” Unlike criminal trials, political trials strive to produce collective memory. This Note utilizes political trials as a foil to criminal trials to identify the ways that criminal trials succeed (and fail) to produce collective memory. Several features of the criminal trial— namely, the trial’s unique narrative form, constituent storytellers, capacity to capture the gravity of the offense, and jury—add to society’s shared narrative of …

Journal Staff

Duke Law Journal

No abstract provided.

Cryptocurrency, Legibility, And Taxation, Amanda Parsons

Duke Law Journal Online

In Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance …

Agents Of Inequality: Common Ownership And The Decline Of The American Worker, Zohar Goshen, Doron Levit

Duke Law Journal

The last forty years have seen two major economic trends: wages have stalled despite rising productivity, and institutional investors have replaced retail shareholders as the predominant owners of the U.S. equity markets. A few powerful institutional investors—dubbed common owners—now hold large stakes in most U.S. corporations. And in no coincidence, when U.S. workers acquired this new set of bosses, their wages stopped growing while shareholder returns increased. This Article explains how common owners shift wealth from labor to capital, thereby exacerbating income inequality.

Powerful institutional investors pushing public corporations en masse to adopt strong corporate governance has an inherent, painful …

The Trouble With Court-Packing, Neil S. Siegel

Duke Law Journal

Wide-ranging public discussion of U.S. Supreme Court reform implicates fundamental questions of constitutional policy, norms, and law. This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing. This Article contends that there has likely been a constitutional convention against Court-packing for a long time now, although it is uncertain whether the convention continues to exist given Senate conduct since 2016. This Article also maintains that Court-packing is not as free from constitutional difficulty as the conventional wisdom holds, even if the arguments for its constitutionality are stronger on balance. Most importantly, this …

Climate Transition Relief: Federal Buyouts For Underwater Homes, Stephanie M. Stern

Duke Law Journal

As climate change causes unprecedented dislocation from flooding and sea-level rise, a new legal regime for climate retreat (i.e., shifting human settlement from severe climate risk zones) is developing. Buyout laws, such as FEMA’s Hazard Mitigation Grant Program, fund government acquisitions of severely flood-impacted homes, enabling owners to relocate, and require localities to rezone acquired land as open space. Despite the growing interest in flood buyouts as a tool for climate change adaptation, there has been little attention by policymakers or scholars to the capacity of buyouts to incentivize “buy ins” to flood zones by subsidizing flood risk-taking—a problematic irony …

Settling Old Scores: Proposing Targeted Regulation To Mitigate The Problem Of Looted Antiquities, Mary Genevieve Sanner

Duke Law Journal

Antiquities looting rips artifacts out of their historical and archaeological context. It deprives countries of their cultural property, and instead allows those artifacts to be sold or auctioned to wealthy individuals on the private market. Current enforcement mechanisms provide inadequate deterrence to the secondary market for these antiquities. A recent amendment to the Bank Secrecy Act could provide a solution. However, regulations enacted pursuant to that amendment should not simply transpose requirements and red flags from the financial context to the art context. They should look beyond concerns that looting might be used to fund terrorism and should instead consider …

Journal Staff

Duke Law Journal

No abstract provided.

Credit Scoring Duality, Pamela Foohey, Sara Sternberg Greene

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.