Law Commons^™

Fourth Amendment Limits On Extensive Quarantine Surveillance, Benjamin Wolters

Duke Journal of Constitutional Law & Public Policy Sidebar

The devastation wreaked by the COVID-19 pandemic spurred innovations in technology and public policy. Many countries rushed to implement extensive quarantines, and some introduced disease surveillance, including location tracking to enforce quarantines. Though the United States has never implemented high-tech quarantine surveillance, such technology will certainly be available for the next disease outbreak.

Absent significant doctrinal change, the Fourth Amendment likely bars some, but not all, forms of quarantine surveillance. Quarantine surveillance probably constitutes a Fourth Amendment “search” that generally must be backed by probable cause. This probable cause requirement, and its subcomponent of individualized suspicion, likely applies differently to …

Trouble With Names: Commercial Speech And A New Approach To Food Product Label Regulation, William Cusack

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court has recognized First Amendment protection for “commercial speech” since 1975. Commercial speech doctrine seeks to balance advertiser interest in speech, consumer interest in information, and society’s interest that “economic decisions in the aggregate be intelligent and well-informed.” Regulations and compulsory disclosures of commercial speech play a part in ensuring consumers are well-informed. Yet, there continues to be consumer confusion surrounding the commercial speech doctrine’s application to food labeling. Lawmakers continue to pass regulations that are unnecessary or nonsensical. Regulators continue to enforce these regulations, even if the state interest in doing so is minimal or non-existent. There …

Mind The Gap: A Comparative Approach For Fixing Volcker, Learning From Liikanen, And Using Vickers To Repair The U.S. Banking System, Rachel Sereix

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2008 financial crisis, Congress, courts, and international banking agencies alike determined that their current banking infrastructures were inadequate to prevent such crises in the future. The Dodd-Frank Wall Street Reform Acttried to solve the problem by reducing derivatives-related risk through legislative provisions that increased capital and liquidity requirements for all banks. Yet, banks continued to find means to subvert the system and Congress remained relatively silent on the issue after the passage of Dodd-Frank—failing to amend Dodd-Frank in any meaningful way. Looking towards European peers for guidance about how to reform the United States’ banking regime has often …

A Modest Proposal: Leveraging Private Enforcement Mechanisms And The Bayh-Dole Act To Reduce Drug Prices In The U.S. Healthcare Industry, Brittany Day

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States healthcare system is one of the most expensive in the world. Unlike other products, when drug prices skyrocket, people may die. While advocating for various solutions, both the Biden and Trump administrations have recognized the importance of halting the rise of prescription drug prices. Most of the solutions advanced are focused on government-side initiatives, such as allowing Medicare to directly negotiate with pharmaceutical companies. Yet, the "march-in rights" built into the Bayh-Dole Act create an opportunity to set up a mechanism that would invite private actors to sue pharmaceutical companies for unconscionable drug pricing. The Bayh-Dole Act …

Ferpa And State Open Records Laws: What The North Carolina Supreme Court Got Wrong In Dth Media Corp. V. Folt, And How Courts & Congress Can Take Measures To Reconcile Privacy And Access Interests, Danielle Siegel

Duke Journal of Constitutional Law & Public Policy Sidebar

Over the past few years, courts across the country have confronted a common scenario. Members of the public and media request records from a public university pertaining to its investigations of sexual assault and misconduct on campus. Then, media outlets contend they have a right to access these records under state open records laws. But the university claims that it cannot, or will not, disclose the records under the Family Educational Rights and Privacy Act of 1974 ("FERPA").

The media outlet then files suit to compel disclosure. This Note explores the competing privacy and access interests at stake in this …

Paving The Way For Mind-Reading: Reinterpreting "Coercion" In Article 17 Of The Third Geneva Convention, John Zarrilli

Duke Journal of Constitutional Law & Public Policy Sidebar

Mind-reading is no longer a concept confined to the world of science-fiction: "Brain reading technologies are rapidly being developed in a number of neuroscience fields." One obvious application is to the field of criminal justice: Mind-reading technology can potentially aid investigators in assessing critical legal questions such as guilt, legal insanity, and the risk of recidivism. Two current techniques have received the most scholarly attention for their potential in aiding interrogators in determining guilt: brain-based lie detection and brain-based memory detection. The growing ability to peer inside someone's mind raises significant legal issues. A number of American scholars, especially in …

Kathryn Gibbons Johnson, Gerald B. Tjoflat

Special Collections

No abstract provided.

Nathan Chapman, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding litigation tactics, ethics, and the growth of magistrates’ system.

Comments Regarding “Technical Support Document: Social Cost Of Carbon, Methane, And Nitrous Oxide Interim Estimates Under Executive Order 13990”, Lawrence G. Baxter, Jospeh E. Stiglitz, Stephanie Kelton, Jay C. Shambaugh

Regenerative Crisis Response Committee

No abstract provided.

Secondary Capital For Credit Unions: Fact Sheet, Regenerative Crisis Response Committee

Regenerative Crisis Response Committee

Remove the NCUA rule restricting secondary capital access to low-income designated institutions, designating climate mitigation and opportunity finance as eligible for secondary capital.

Public Input On Climate Change Disclosures, Lawrence G. Baxter, Peter R. Fisher, Gina-Gail S. Fletcher, Megan Greene, Joseph E. Stiglitz

Regenerative Crisis Response Committee

No abstract provided.

The Myth Of Carbon Offsets, Lawrence G. Baxter, Megan Greene, Stephanie Kelton, Jennifer M. Silvi, Hannah H. Braun, Missie Frandsen, Rohan Kocharekar

Regenerative Crisis Response Committee

The RCRC’s mandate is to help identify and incubate fiscal, monetary, and financial regulatory policy solutions that will put the United States on track for net-zero emissions before 2050. Informed by the work of many scientists, regulators, climate advocates, and international organizations, we take a broadly critical view of the many carbon credit markets and offsetting strategies that have developed thus far and urge policymakers, firms, and other organizations to reevaluate and refine this approach. This paper discusses some of the foundational challenges associated with the practice of offsetting and presents recommendations to chart an alternative path forward.

The Case For Climate Conscious, Low Carbon Federal Procurement, Jay C. Shambaugh, Gina-Gail S. Fletcher, Jennifer M. Silvi, Hannah H. Braun, Missie Frandsen, Peter A. Bruno

Regenerative Crisis Response Committee

Purchasing practices are one of many contributors to the climate crisis. As the world’s largest purchaser of goods and services, the U.S. Federal Government is in a unique position to cut a significant portion of national emissions through the development of more responsible, sustainable, and—most importantly—climate-conscious supply chains. According to the Office of the Federal Chief Sustainability Officer, federal supply chain emissions associated with federal contracts are twice as high as Federal Scope 1 and Scope 2 emissions, combined. As such, reforming Federal procurement practices to limit direct emissions as well as emissions in supply chains can play a crucial …

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

Regenerative Crisis Response Committee

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.

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 …

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

Duke Law Journal Online

No abstract provided.

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 …

Othering Across Borders, Steven Arrigg Koh

Duke Law Journal Online

Our contemporary moment of reckoning presents an opportunity to evaluate racial subordination and structural inequality throughout our three-tiered domestic, transnational, and international criminal law system. In particular, this Essay exposes a pernicious racial dynamic in contemporary U.S. global criminal justice policy, which I call othering across borders. First, this othering may occur when race emboldens political and prosecutorial actors to prosecute foreign defendants. Second, racial animus may undermine U.S. engagement with international criminal legal institutions, specifically the International Criminal Court. This Essay concludes with measures to mitigate such othering.

Probable Cause And Performing "For The People", Irene Oritseweyinmi Joe

Duke Law Journal Online

The summer of 2020 presented the American public with two very different versions of how a state’s top prosecutor might respond to excessive use of force by law enforcement. In Kentucky, Attorney General Daniel Cameron was criticized for his conduct after stories emerged of his biased presentation to a grand jury contemplating whether officers should face criminal charges for killing an unarmed person, Breonna Taylor, in her own home. In Minnesota, Attorney General Keith Ellison proved to be less controversial as public sentiment emphasized his willingness to pursue the type of justice that the public demanded against all of the …

Brnovich V. Democratic National Committee: Examining Section 2 Of The Voting Rights Act, Arturo Nava

Duke Journal of Constitutional Law & Public Policy Sidebar

In Brnovich, the Court will determine whether Arizona’s out-of-precinct (OOP) policy and its ballot-collection law violate Section 2 of the VRA. The Ninth Circuit held that both voting provisions violate Section 2. The Supreme Court should affirm the Ninth Circuit’s decision, invoking the Section 2 Results Test adopted by multiple circuits, and find that a fact-specific inquiry should be preserved in assessing vote-denial claims. At a minimum, the Court should avoid establishing a bright-line rule as proposed by critics of the Section 2 Results Test. Such a rigid rule runs the risk of masking the nuances that the courts …

United States V. Arthrex Inc.: Clarifying Appointments Clause Requirements For Administrative Judges, Albert Barkan

Duke Journal of Constitutional Law & Public Policy Sidebar

Article II of the United States Constitution details the methods by which presidential subordinate officers must be appointed. Despite its presence in the Constitution’s original text, the Appointments Clause remains ambiguous. The Clause provides different appointment processes for principal and “inferior officers,” but does not distinguish between these officers’ functions. In United States v. Arthrex, Inc., the Supreme Court must clarify the relationship between an Executive officer’s responsibilities and their appointment process.

Guidelines And Best Practices For Implementing The 2015 Discovery Amendments Concerning Proportionality (Third Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

This third edition of The Guidelines and Best Practices to Achieve Proportionality was developed following a proportionality conference in June 2019, at which practitioners and judges reviewed and discussed the results of several studies evaluating the 2015 amendments to the Rules of Civil Procedure. A small working group convened by the Bolch Judicial Institute at Duke Law School, led by Judge Paul Grimm and including practitioners David Kessler and Jennie Anderson, gathered these insights, revised the guidelines, issued them for public comment, and made further revisions in light of the comments. As with any group product of this nature, where …

Not A King: President Trump And The Case For Presidential Subpoena Reform, Robert J. Denault

Duke Journal of Constitutional Law & Public Policy Sidebar

In Trump v. Vance and Trump v. Mazars, the Supreme Court heard two expansive claims of presidential immunity from grand jury and Congressional subpoenas for the personal papers of the president. In both cases, the Court rejected the President’s claims. Despite winning both cases, the grand jury and Congress did not receive evidence relevant to potential misconduct by the President until after he left office—a remarkable feat for a President who did not win a single case or appeal in his effort to block either subpoena.

This Note argues for significant reforms in response to President Trump’s unprecedented success …

Who Protects Whom: Federal Law As A Floor, Not A Ceiling, To Protect Students From Inappropriate Use Of Force By School Resource Officers, Elsa Haag

Duke Journal of Constitutional Law & Public Policy Sidebar

Over the past forty years, students in the U.S. have experienced increasingly strict school discipline policies and increased police presence in schools. Sent into schools with the aim of improving security in the wake of mass shootings, school resource officers (SROs) are sworn law enforcement regularly assigned to schools. But there is a paucity of evidence that SROs are effective in preventing mass shootings or provide other significant benefits. Instead, research shows that the presence of SROs results in students achieving less and experiencing more physical and emotional harm, with long-term implications and costs for individuals and communities. As trained …

Missing The Mark: Nysrpa As A Vehicle To Clarify Inconsistencies In Mootness Doctrine, Leila Hatem

Duke Journal of Constitutional Law & Public Policy Sidebar

Federal mootness doctrine is far more confusing than helpful. Riddled with inconsistent jurisdictional outcomes, mootness doctrine lacks a unitary theoretical approach. This confusion results because the Court has historically characterized elements of the doctrine as either prudential or constitutional. Because the Court has reached the merits of otherwise moot claims, its doctrine is neither completely prudential nor constitutional. Rather, it is a messy hodge-podge of both.

This Note analyzes New York State Riffle & Pistol Association, Inc. v. The City of New York (“NYSRPA”) in light of this dichotomous framework and assesses how the opinion engages with the …

Tiktok Might Stop: Why The Ieepa Cannot Regulate Personal Data Privacy And The Need For A Comprehensive Solution, Alicia Faison

Duke Journal of Constitutional Law & Public Policy Sidebar

In August 2020, President Trump announced a ban on the popular app TikTok, citing the risk that TikTok could be sharing Americans’ personal data with the Chinese government. In doing so, President Trump used his powers under the International Emergency Economic Powers Act (IEEPA), which authorizes Presidents to impose economic sanctions in the face of a national emergency. Associating TikTok’s data mining practices with a national emergency raises interesting questions about the governance of our personal data: is there a national security risk and if so, how should data be protected? This Note argues that ineffective personal data privacy regulation …