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Full-Text Articles in Law

Central Bank Activism, Christina Parajon Skinner Oct 2021

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 ...


Trust The Process? Rethinking Procedural Due Process And The President’S Emergency Powers Over The Digital Economy, Jonathan W. Ellison Oct 2021

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 ...


Rent-A-Bank: Bank Partnerships And The Evasion Of Usury Laws, Adam J. Levitin Oct 2021

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 ...


Federal Judge Seeks Patent Cases, J. Jonas Anderson, Paul R. Gugliuzza Oct 2021

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 ...


Journal Staff Oct 2021

Journal Staff

Duke Law Journal

No abstract provided.


Journal Staff Sep 2021

Journal Staff

Duke Law Journal

No abstract provided.


The Gay Perjury Trap, Christopher R. Leslie Sep 2021

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 ...


The New Parental Rights, Anne C. Dailey, Laura A. Rosenbury Sep 2021

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 ...


The Unlikely Heroes Of Fair Elections: Contemporary Third-Party Enforcement Of Campaign Finance Violations, Chelsea Cooper Sep 2021

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 ...


Kinder Solutions To An Unkind Approach: Supporting Impoverished And Ill Parents Under North Carolina's Filial Responsibility Law, Karen L. Sheng Sep 2021

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 ...


Jailhouse Immigration Screening, Eisha Jain May 2021

Jailhouse Immigration Screening, Eisha Jain

Duke Law Journal

Within the past decade, U.S. interior immigration enforcement has shifted away from the street and into the jailhouse. The rationale behind jailhouse screening is to target enforcement efforts on those who fall within federal removal priorities. This Article shows how a program undertaken with the stated aim of targeting immigration enforcement has had precisely the opposite effect: it has massively expanded the reach of immigration enforcement and created extended carceral treatment within the criminal justice system based on suspected immigration status. This approach, in turn, leads to removals that lack adequate process, are inaccurate, or that reflect underlying racial ...


Journal Staff May 2021

Journal Staff

Duke Law Journal

No abstract provided.


Regulation And The Geography Of Inequality, Ganesh Sitaraman, Morgan Ricks, Christopher Serkin May 2021

Regulation And The Geography Of Inequality, Ganesh Sitaraman, Morgan Ricks, Christopher Serkin

Duke Law Journal

We live in an era of widening geographic inequality. Around the country, the spread between economically and culturally thriving places and those that are struggling has been increasing. “Superstar” cities like New York, San Francisco, Boston, and Atlanta continue to attract talent and grow, while the economies of other cities and rural areas are left behind. Troublingly, escalating geographic inequality in the United States has arrived hand in hand with serious economic, social, and political problems. Areas that are left behind have not only failed to keep up with their thriving peers; in many ways, they have stagnated and seen ...


The Fourth Amendment Limits Of Facial Recognition At The Border, Emmanuel Abraham Perea Jimenez May 2021

The Fourth Amendment Limits Of Facial Recognition At The Border, Emmanuel Abraham Perea Jimenez

Duke Law Journal

On any given day, hundreds of thousands of people enter the United States through ports of entry along the Mexican and Canadian borders. At the same time, the Department of Homeland Security (“DHS”) seizes millions of dollars’ worth of contraband entering the United States annually. Under the border-search exception, border officials can perform routine, warrantless searches for this contraband, based on no suspicion of a crime, without violating the Fourth Amendment. But as DHS integrates modern technology into its enforcement efforts, the question becomes how these tools fit into the border-search doctrine. Facial recognition technology (“FRT”) is a prime example ...


Why Bartlett Is Not The End Of Aggregated Minority Group Claims Under The Voting Rights Act, Scotty Schenck May 2021

Why Bartlett Is Not The End Of Aggregated Minority Group Claims Under The Voting Rights Act, Scotty Schenck

Duke Law Journal

The 2020 election showed the importance of faith in the democratic system and the ability for citizens to cast a ballot for federal, state, and local races. After the election, state legislatures will be redrawing federal, state, and local electoral districts. Those new districts will affect the voting rights of nearly every American. This Note examines Section 2 of the Voting Rights Act of 1965, which has traditionally afforded minority group members the opportunity to challenge discriminatory electoral policies that thwart the ability “to participate in the political process and to elect representatives of their choice.” This is an important ...


Journal Staff Apr 2021

Journal Staff

Duke Law Journal

No abstract provided.


The Law Of Lenity: Enacting A Codified Federal Rule Of Lenity, Maisie A. Wilson Apr 2021

The Law Of Lenity: Enacting A Codified Federal Rule Of Lenity, Maisie A. Wilson

Duke Law Journal

The rule of lenity is an ancient canon of statutory construction that requires courts to find in favor of criminal defendants charged under ambiguous statutes. Traditionally, lenity endorses important constitutional concerns regarding due notice, consistent enforcement of law, and legislative supremacy. In modern courts, if lenity were regularly—and properly—applied, it could combat important social problems that plague our criminal justice system. Ambiguous laws allow government actors to arbitrarily target disfavored groups. And more generally, ambiguity within criminal law contributes to overcriminalization, wanton punishment, and capricious enforcement. As the volume of federal criminal law continues to expand, this overcriminalization ...


Scalpels Over Sledgehammers: Saving Diagnostic Patents Through Judicial Intervention Rather Than Legislative Override, Elaine H. Nguyen Apr 2021

Scalpels Over Sledgehammers: Saving Diagnostic Patents Through Judicial Intervention Rather Than Legislative Override, Elaine H. Nguyen

Duke Law Journal

Diagnostic tests have become indispensable in the rapidly growing field known as “precision medicine.” Precision medicine tailors treatments to individual patients by using these diagnostic tests to identify how a patient may respond to different therapies. Diagnostics are expensive to develop but show promise in optimizing patient treatment and creating healthcare savings. Even as the medical community has heralded precision medicine as the way of the future, the Supreme Court and Federal Circuit have handed down a dizzying array of decisions regarding attempts to patent diagnostics and precision medicine techniques. Subsequently, courts have struggled to apply the test for patent ...


Follow-Up Enforcement, Andrew K. Jennings Apr 2021

Follow-Up Enforcement, Andrew K. Jennings

Duke Law Journal

Firms sometimes break the law. When they do, a host of government agencies have power to bring enforcement actions against them, which serve to punish past wrongs, compensate victims, disgorge unlawful gains, deter others, and prevent recidivism. Each of these purposes but one—preventing recidivism—is either met or not once the case reaches settlement. Whether recidivism will occur, however, remains uncertain at the time a case is settled. In light of that uncertainty, this Article takes a critical look at how enforcers currently address recidivism prevention—what it dubs the “clawback” approach—under which defendant firms receive penalty credit ...


The Agent’S Problem, Asaf Eckstein, Gideon Parchomovsky Apr 2021

The Agent’S Problem, Asaf Eckstein, Gideon Parchomovsky

Duke Law Journal

The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had a long-lasting impact on corporate-law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem has surfaced: what we call the “reverse agency problem.” The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms, including pretrial diversion agreements and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach settlements with law enforcement authorities as expeditiously ...


Time To Reload: The Harms Of The Federal Felon-In-Possession Ban In A Post-Heller Worl, Zach Sherwood Mar 2021

Time To Reload: The Harms Of The Federal Felon-In-Possession Ban In A Post-Heller Worl, Zach Sherwood

Duke Law Journal

Federal law permanently prohibits anyone who has been convicted of a felony from possessing a firearm. Keeping lethal weapons out of the hands of those who pose a risk to public safety is no doubt a worthy policy goal. But the federal felon-in-possession ban is blunt, punitive, and supremely damaging to the ex-felons who fall within its ambit. The statute’s sweeping scope ensures that any ex-felon who possesses any firearm for any length of time for any reason can be swiftly and harshly punished. And it indiscriminately targets conduct that is often neither harmful nor criminal.

The felon-in-possession ban ...


The Splinternet, Mark A. Lemley Mar 2021

The Splinternet, Mark A. Lemley

Duke Law Journal

No abstract provided.


Criminalizing Coercive Control Within The Limits Of Due Process, Erin Sheley Mar 2021

Criminalizing Coercive Control Within The Limits Of Due Process, Erin Sheley

Duke Law Journal

The sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized nonviolent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial ...


The Youngstown Canon: Vetoed Bills And The Separation Of Powers, Kristen E. Eichensehr Mar 2021

The Youngstown Canon: Vetoed Bills And The Separation Of Powers, Kristen E. Eichensehr

Duke Law Journal

As presidents make ever more expansive claims of executive power, Congress’s ability and willingness to counter the executive is often limited. That makes all the more significant instances when Congress does overcome structural and political challenges to pass legislation to rein in the president. But thanks to the Supreme Court’s invalidation of legislative vetoes in INS v. Chadha , such congressional actions are necessarily subject to presidential veto. President Donald Trump, for example, vetoed joint resolutions aimed at restraining executive action relating to the border wall and war powers. Although vetoed bills are not binding law, this Article argues ...


The Constitution And The Campaign Trail: When Political Action Becomes State Action, Lauren N. Smith Mar 2021

The Constitution And The Campaign Trail: When Political Action Becomes State Action, Lauren N. Smith

Duke Law Journal

Constitutional law often splits society into two realms: public and private. A person’s constitutional rights and obligations depend on her classification into one of these realms. Almost all constitutional rights are only protected against encroachment by the state, and thus whether an action constitutes private or state action is incredibly significant. However, the body of law that governs this determination—the state action doctrine—is notoriously muddled.

The longstanding assumption is that political candidates and their campaigns are private actors, though the Court has on occasion, such as in the “white primary” cases, held that action by political parties ...


Journal Staff Mar 2021

Journal Staff

Duke Law Journal

No abstract provided.


The Case Against Chevron Deference In Immigration Adjudication, Shoba Sivaprasad Wadhia, Christopher J. Walker Feb 2021

The Case Against Chevron Deference In Immigration Adjudication, Shoba Sivaprasad Wadhia, Christopher J. Walker

Duke Law Journal

The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron ’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron ...


Congress’S Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence, Eric A. Posner Feb 2021

Congress’S Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence, Eric A. Posner

Duke Law Journal

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.

The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that ...


Narrowing Chevron’S Domain, Kristin E. Hickman, Aaron L. Nielson Feb 2021

Narrowing Chevron’S Domain, Kristin E. Hickman, Aaron L. Nielson

Duke Law Journal

Chevron deference has become increasingly controversial. Some Justices on the Supreme Court have stated that they would overrule Chevron, and others have urged that it be curtailed. If Chevron were merely modified rather than overturned, it is unclear what that modified Chevron would look like. This Article argues that the time has come to narrow Chevron’s domain by limiting Chevron deference to interpretations announced in rulemaking and not those announced in adjudication.

Under the classic formulation of Chevron, a court should defer to an agency’s reasonable interpretation of ambiguous statutory language. This formulation is grounded in the notion ...


The Future Of Chevron Deference, Kristin E. Hickman, Aaron L. Nielson Feb 2021

The Future Of Chevron Deference, Kristin E. Hickman, Aaron L. Nielson

Duke Law Journal

No abstract provided.