Duke Law Journal

Articles

Deviancy, Dependency, and Disability: The Forgotten History of Eugenics and Mass Incarceration
Laura I Appleman
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Three widely discussed explanations of the punitive carceral state are racism, harsh drug laws, and prosecutorial overreach. These three narratives, however, only partially explain how our correctional system expanded to its current overcrowded state. Neglected in our discussion of mass incarceration is our largely forgotten history of the long-term, wholesale institutionalization of the disabled. This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, is an important part of our history of imprisonment, one that has shaped key contours of our current supersized correctional system. Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration.

Legitimate Yet Manipulative: The Conundrum of Open-Market Manipulation
Gina-Gail S. Fletcher
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Is manipulation possible in the absence of misconduct? This is the foundational inquiry at the heart of open-market manipulation. Open-market manipulation captures the attention of lawmakers and courts because it is market manipulation effected entirely through facially legitimate transactions. Whereas traditional, well-accepted forms of market manipulation involve deception, fraud, and monopolistic prices, open-market manipulation involves no objectively bad acts and, instead, is accomplished through permissible transactions executed on the open market. As enforcement of this form of manipulation increases, the question arises—when, if ever, is a legitimate transaction manipulative?

To the Securities Exchange Commission and the Commodity Futures Trading Commission (“the Commissions”), the answer is simple—legitimate transactions are manipulative if the trader intends to manipulate the market. The Commissions’ enforcement actions are based on the theory that the manipulative intent of the trader is sufficient to transform otherwise legitimate transactions into open-market manipulation. But this approach is fundamentally flawed. Traders may be treated differently for the same conduct under this approach, and it leaves market actors none the wiser as to when their conduct may be considered manipulative. Indeed, the Commissions’ intent-focused approach only exacerbates the chaos that currently surrounds the law of market manipulation and makes enforcement against open-market manipulation less effective.

This Article is the first in-depth analysis of the concept of open-market manipulation, and it finds the Commissions’ approach to be sorely lacking. While the Commissions are correct to conclude that facially legitimate transactions may be manipulative, the intent-centric model is untenable. Intent is an insufficient tool in identifying open-market manipulation because it does not address the most important aspect of open-market manipulation—how open-market transactions harm the markets. Thus, this Article argues that courts and regulators should, instead, coherently identify the necessary conditions under which open-market transactions are harmful to the markets. Specifically, this Article argues that only those open-market transactions that impede the markets’ efficiency and undermine their integrity should be deemed manipulative. Linking the theory of open-market manipulation to the purpose of anti-manipulation laws would provide the Commissions with more cogent principles on which to hold manipulators liable for their seemingly legitimate transactions.

Notes

The Data Breach Dilemma: Proactive Solutions for Protecting Consumers’ Personal Information
Daniel J. Marcus
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Data breaches are an increasingly common part of consumers’ lives. No institution is immune to the possibility of an attack. Each breach inevitably risks the release of consumers’ personally identifiable information and the strong possibility of identity theft.

Unfortunately, current solutions for handling these incidents are woefully inadequate. Private litigation like consumer class actions and shareholder lawsuits each face substantive legal and procedural barriers. States have their own data security and breach notification laws, but there is currently no unifying piece of legislation or strong enforcement mechanism.

This Note argues that proactive solutions are required. First, a national data security law—setting minimum data security standards, regulating the use and storage of personal information, and expanding the enforcement role of the Federal Trade Commission—is imperative to protect consumers’ data. Second, a proactive solution requires reconsidering how to minimize the problem by going to its source: the collection of personally identifiable information in the first place. This Note suggests regulating companies’ collection of Social Security numbers, and, eventually, using a system based on distributed ledger technology to replace the ubiquity of Social Security numbers.

Electoral Due Process
Sarah Milkovich
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Elections and their aftermath are matters left to the states by the U.S. Constitution. But the Supreme Court has made clear that the right to vote is federally protected, and fiercely so. When an election failure takes place and deprives citizens of their votes, challengers must resort to state law remedies. Many states have procedural requirements for election challenges that are stringent to the point of being prohibitive.

This Note argues that the due process concerns raised by these burdensome state procedures are amplified by their voting rights context. Where a voter must take to the courts to vindicate her right to vote, she should not be further deprived by an unfair process. Federal courts hearing cases about unfair election-challenge procedures have been reluctant to interfere and are thus overly deferential to the states.

This Note offers a new approach for “electoral due process” claims—an approach that is properly preservative of voters’ substantive rights and their rights to a fair hearing.