Duke Law Journal

Articles

Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has to Teach Us
Henry P. Monaghan
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Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic , subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.

Unqualified Ambassadors
Ryan M. Scoville
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In making appointments to the office of ambassador, U.S. presidents often select political supporters from outside the ranks of the State Department’s professional diplomatic corps. This practice is aberrational among advanced democracies and a source of recurrent controversy in the United States, and yet its merits and significance are substantially opaque: How do political appointees compare with career diplomats in terms of credentials? Are they less effective in office? Do they serve in some countries more than others? Have any patterns evolved over time? Commentators might assume answers to these questions, but actual evidence has been in short supply. In this context, it is difficult for the public to evaluate official practice and hold accountable those who wield power under the Appointments Clause.

This Article helps to correct for the current state of affairs. Using a novel dataset based on a trove of previously unavailable documents that I obtained from the State Department through requests and litigation under the Freedom of Information Act (“FOIA”), the Article systematically reveals the professional qualifications and campaign contributions of over 1900 ambassadorial nominees spanning the Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama administrations, along with the first two years of Donald Trump. In doing so, the Article substantially enhances the transparency of the appointments process and exposes conditions of concern: not only are political appointees on average much less qualified than their career counterparts under a variety of congressionally approved measures, but also the gap has grown along with the commonality and size of their campaign contributions to nominating presidents. These conditions raise the possibility that campaign contributions are generating an increasingly deleterious effect on the quality of U.S. diplomatic representation abroad. The Article concludes by identifying and defending the constitutional merits of plausible legal reforms, including Senate rule amendments and statutory measures to regulate qualifications and enhance transparency.

Notes

From Memphis, with Love: A Model to Protect Protesters in the Age of Surveillance
Farrah Bara
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In 1978, after two years of contentious litigation, the City of Memphis entered into a unique agreement with its citizens: it signed a consent decree, stipulating that it would halt its interference with First Amendment–protected activities. More specifically, the Consent Decree barred the City from surveilling protesters—the very conduct that triggered litigation.

Fast forward forty years. In 2018, narratives of police brutality dominated the nation’s headlines. Consequently, protesters demonstrated from the streets of Ferguson, Missouri to Oakland, California. And in Memphis, Tennessee, those who protested were often met with an all-too-familiar response—surveillance by the Memphis Police Department. That is until the Western District of Tennessee found that the City had violated the terms of its own agreement. The court’s message was undeniably clear—the Memphis Consent Decree is alive and well.

Memphis is by no means an outlier in police–civilian relations. After all, police departments across the country surveil protesters. But Memphis is an outlier in terms of the method it has chosen to address this issue. As the surveillance of protesters and the capacity to surveil protesters grow, the Memphis Consent Decree offers a model for future legislation that better safeguards First Amendment values. This Note accordingly narrates the story of Memphis, its successes and failures, and the lessons it holds for hundreds of cities, for decades to come.

Envisioning a Compulsory-Licensing System for Digital Samples Through Emergent Technologies
Christopher R. Sabbagh
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Despite the rapid development of modern creative culture, federal copyright law has remained largely stable, steeped in decades of tradition and history. For the most part, copyright finds strength in its stability, surviving the rise of recorded music, software programs, and, perhaps the most disruptive technology of our generation, the internet.

On the other hand, copyright’s resistance to change can be detrimental, as with digital sampling. Although sampling can be a highly creative practice, and although copyright purports to promote creativity, current copyright law often interferes with the practice of sampling. The result is a largely broken system: Those who can legally sample are usually able to do so because they are wealthy, influential, or both. Those who cannot legally sample often sample illegally.

Many scholars have suggested statutory solutions to this problem. Arguably, the most workable solutions are rooted in compulsory licenses. Unfortunately, implementing these solutions is practically difficult.

Two recent developments invite us to revisit these proposals. First, with the passage of the Music Modernization Act (“MMA”), Congress has evinced a willingness to “modernize” parts of copyright law. Second, emergent technologies—from the MMA’s musical-works database to blockchain to smart contracts—can be leveraged to more easily implement a compulsory-licensing solution. This time around, rather than simply discuss why this solution is favorable, this Note will focus on how it can be implemented.