Law Commons^™

Making Green Mortgages Mainstream & Accessible, Megan Greene, Adam Tooze, Jennifer M. Silva, Rohan Kocharekar, Hannah H. Braun

Regenerative Crisis Response Committee

No abstract provided.

Valuing Injunctive Relief Under The Class Action Fairness Act, Sadie J. Kavalier

Duke Law Journal

Injunctive relief class actions afford victims of mass harms a chance to sue collectively and enjoin an actor’s conduct. While the moral value of these suits may be monumental for litigants, one procedural question remains murky: how should courts value the amount in controversy to determine whether the suit qualifies for federal diversity jurisdiction? Historically, federal courts adopted one of two approaches. The “Plaintiff’s Viewpoint approach” values the amount in controversy strictly from any monetary benefit to the plaintiff(s). The “Either Viewpoint approach” values the amount in controversy as the higher of any monetary benefit to the plaintiff or the …

Your Voice Gave You Away: The Privacy Risks Of Voice-Inferred Information, Emma Ritter

Duke Law Journal

Our voices can reveal intimate details about our lives. Yet, many privacy discussions have focused on the threats from speaker recognition and speech recognition. This Note argues that this focus overlooks another privacy risk: voice-inferred information. This term describes non-obvious information drawn from voice data through a combination of machine learning, artificial intelligence, data mining, and natural language processing. Companies have latched onto voiceinferred information. Early adopters have applied the technology in situations as varied as lending risk analysis and hiring. Consumers may balk at such strategies, but the current United States privacy regime leaves voice insights unprotected. By applying …

Error-Resilient Consumer Contracts, Danielle D'Onfro

Duke Law Journal

When firms contracting with consumers make mistakes, people get hurt. Inaccurate billing, misapplied payments, and similar problems push lucky consumers into Kafkaesque customer service queues—and unlucky ones off the financial cliff. Despite significant regulatory interventions, firms contracting with consumers continue to struggle to accurately bill customers, update accounts, and process payments. Firms largely rely on technology, especially databases and software, to discharge these servicing obligations. This technology must accommodate firms’ innovations in their contracts, shifting governmental regulations, and consumers’ unpredictable behavior. Given the complexity of servicing, even when firms invest significantly in technology, it will inevitably produce mistakes. When firms …

Insider Giving, S. Burcu Avci, Cindy A. Schipani, H. Nejat Seyhun, Andrew Verstein

Duke Law Journal

Corporate insiders can avoid losses if they dispose of their stock while in possession of material nonpublic information. One means of disposal, selling the stock, is illegal and subject to prompt mandatory reporting. A second strategy is almost as effective, yet it faces lax reporting requirements and enforcement. That second method is to donate the stock to a charity and take a charitable tax deduction at the inflated stock price. This “insider giving” is a potent substitute for insider trading. We show that insider giving is far more widespread than previously believed. In particular, we show that insider giving is …

Journal Staff

Duke Law Journal

No abstract provided.

Hon. William F. Jung, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding the investigation into Judge Alcee Hastings’ conduct, which led to his impeachment and conviction by the Senate.

A Personal Journey Through The Rule Of Law In The South Pacific, W. K. Hastings

Judicature International

No abstract provided.

Hon. Peter Dearing, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding his involvement in the Jacksonville school desegregation case Mims v. Duval County School Board.

Central Bank Activism, Christina Parajon Skinner

Duke Law Journal

Today, the Federal Reserve is at a critical juncture in its evolution. Unlike any prior period in U.S. history, the Fed now faces increasing demands to expand its policy objectives to tackle a wide range of social and political problems—including climate change, inequality, and foreign and small business aid.

This Article develops a framework for recognizing and identifying the problems with “central bank activism.” It refers to central bank activism as situations in which immediate public policy problems push the Fed to aggrandize its power beyond the text and purpose of its legal mandates, which Congress has established. To illustrate, …

Journal Staff

Duke Law Journal

No abstract provided.

Trust The Process? Rethinking Procedural Due Process And The President’S Emergency Powers Over The Digital Economy, Jonathan W. Ellison

Duke Law Journal

To protect U.S. user data from foreign threats, presidents have wielded their emergency power to ban transactions with certain technology companies. This emergency power, if unchecked, threatens both the procedural rights of some technology companies and U.S. constitutional structure.

Concerning procedural rights, this Note evaluates existing procedural due process jurisprudence to identify the scope of these protections in the data security context, which remains unexplored in scholarship and judicial opinions. For guidance, this Note looks to cases involving counterterrorist financing and national security reviews of foreign investment, and it concludes that procedural due process protects many technology companies that collect …

Rent-A-Bank: Bank Partnerships And The Evasion Of Usury Laws, Adam J. Levitin

Duke Law Journal

“Rent-a-bank” arrangements are the vehicle of choice for subprime lenders seeking to avoid state consumer protection laws. In a rent-a-bank arrangement, a nonbank lender contracts with a bank to make loans per its specifications and then buys the loans from the bank. The nonbank lender then claims to shelter in the bank’s federal statutory exemptions from state regulation. The validity of these arrangements is the most bitterly contested legal question in consumer finance.

The rent-a-bank phenomenon is a function of a binary, entity-based regulatory approach that treats banks differently than nonbanks and that treats bank safety-and-soundness regulation as a substitute …

Federal Judge Seeks Patent Cases, J. Jonas Anderson, Paul R. Gugliuzza

Duke Law Journal

That probably seems like a bizarre Craigslist ad. It’s not real—we mocked it up for this article. Still, and startlingly, it accurately portrays what’s happening in the Waco Division of the U.S. District Court for the Western District of Texas. One judge, appointed to the Western District only three years ago, has been advertising his courtroom through presentations to patent lawyers, comments to the media, procedural practices, and decisions in patent cases as the place to file a patent infringement lawsuit. That advertising has succeeded. In 2016 and 2017, the Waco Division received a total of five patent cases. In …

Three Suggestions To Promote New Scholarship From An Outgoing Editor-In-Chief, Christian I. Bale

Duke Law Journal Online

No abstract provided.

The Case For Chevron Deference To Immigration Adjudications, Patrick J. Glen

Duke Law Journal Online

Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower— to show that “this case against Chevron has . . . its greatest force when it comes to immigration.”

The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general …

The Supreme Court's Reticent Qualified Immunity Retreat, Katherine Mims Crocker

Duke Law Journal Online

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and …

Neuroscience And The Model Penal Code's Mens Rea Categories, Andreas Kuersten, John D. Medaglia

Duke Law Journal Online

This Essay addresses recent research and commentary regarding the potential contributions of cognitive neuroscience to law. For the first time, cognitive neuroscience methods have been brought to bear on the Model Penal Code’s (MPC’s) culpable–mental state categories through a neuroimaging study seeking to identify the neural correlates of knowledge and recklessness. Subsequently, this study has been presented as a paradigm for utilizing cognitive neuroscience to answer important legal questions. However, the original experiment appears to suffer serious experimental-design and conceptual limitations, belying subsequent advocacy for the legal utility of cognitive neuroscience. This Essay methodically details these limitations and argues that …

Seconds To Impact?: Regulatory Reform, New Kinds Of Legal Services, And Increased Access To Justice, Rebecca L. Sandefur, Thomas M. Clarke, James Teufel

Law and Contemporary Problems

No abstract provided.

Kinder Solutions To An Unkind Approach: Supporting Impoverished And Ill Parents Under North Carolina's Filial Responsibility Law, Karen L. Sheng

Duke Law Journal

The United States is caught in the crosshairs of skyrocketing health-care costs and a rapidly aging population. Families are buckling under the weight of supporting and caring for aging relatives, especially with the exorbitant costs of long-term care facilities, hospitalization, and chronic illness management. Although the government provides support through programs like Medicare and Medicaid, adult children, acting on an emotional impetus to support parents, often have to organize that support. They may even have a legal duty in over half of the states. These filial responsibility laws impose a duty on adult children to support their parents who cannot …

The Gay Perjury Trap, Christopher R. Leslie

Duke Law Journal

In Bostock v. Clayton County, the Supreme Court held Title VII’s prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. Prejudiced employers and managers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against lesbian, gay, and bisexual employees. A better understanding of history can …

The Unlikely Heroes Of Fair Elections: Contemporary Third-Party Enforcement Of Campaign Finance Violations, Chelsea Cooper

Duke Law Journal

It is uncontroversial that the Federal Election Commission fails to enforce campaign finance law adequately. This Note contributes to this discussion by analyzing more than four thousand summaries of standard enforcement proceedings to demonstrate the distribution of enforcement at the Federal Election Commission. This analysis indicates that the percentage of internally generated standard enforcement proceedings has declined precipitously, while the number of standard enforcement proceedings initiated each year has remained relatively constant. At present, the agency initiates very few standard enforcement proceedings.

Instead, third-party enforcers fill the enforcement void. Third-party enforcers are members of the public that monitor political actors …

Foreword, Jeff Ward

Law and Contemporary Problems

No abstract provided.

Beyond The Prediction Paradigm: Challenges For Ai In The Struggle Against Organized Crime, Paula Helm, Thilo Hagendorff

Law and Contemporary Problems

No abstract provided.

Negligent Algorithmic Discrimination, Andrés Páez

Law and Contemporary Problems

No abstract provided.

Normative Dimensions Of Consenual Application Of Black Box Artificial Intelligence In Administrative Adjudication Of Benefits Claims, Frank Pasquale

Law and Contemporary Problems

No abstract provided.

Are Judges More Transparent Than Black Boxes? A Scheme To Improve Judicial Decision-Making By Establishing A Relationship With Mathematical Function Maximization, Wim De Mulder, Peggy Valcke, Geneviève Vanderstichele, Joke Baeck

Law and Contemporary Problems

No abstract provided.

Their Brothers' Keepers: Procedural Justice In The Intermediate Appellate Courts, Keenan Molaskey

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

The New Parental Rights, Anne C. Dailey, Laura A. Rosenbury

Duke Law Journal

This Article sets forth a new model of parental rights designed to free children and families from the ideals of parent–child unity and family privacy that underlie the law’s expansive protection for parental rights. The law currently presumes that parents’ interests coincide with those of their children, creating an illusion of parent–child union that suppresses the very real ways in which children’s interests and identities, even at a young age, may depart from those of their parents. Expansive protection for parental rights also confines children to the private family, ignoring children’s broad range of interests beyond the family and thwarting …