Duke Law Magazine, Spring 2019 by Duke Law

Spring 2019 | Volume 38 Number 1

THE TECH ISSUE

Training lawyers to lead the way

with a focus on ethics and interdisciplinary engagement

From the Dean Dear Friends:

We aim to train visionary leaders in a world of continuing technological evolution and change, which demands creativity and interdisciplinary collaboration.

hen I became dean last summer, one area I knew I wanted to delve into immediately was technology. Artificial intelligence, machine learning, and other emerging technologies are frequent topics of conversation in the legal profession, in part because of how they are beginning to disrupt the way lawyers work. But advances like these do not just cause problems, they also create opportunities to teach, to study, and to learn. Duke Law School has been at the forefront of technological change for decades, from analyzing the internet’s impact on intellectual property and championing digital access to legal scholarship to examining the law and ethics of DNA testing and high-tech warfare and genetic manipulation. We are also part of a great research university that’s home to some of the world’s leading minds in engineering, computer science, medicine, and life sciences, and where interdisciplinary engagement is prized. And we live in a region that is a global hub of innovation and entrepreneurship in IT, biotech, clean energy, and more. Little wonder that our students graduate uniquely comfortable engaging with technology and its impact on our society. To assess how emerging technologies might impact our teaching and research missions, I formed a Strategic Planning for Innovation and Technology Committee made up of distinguished members of our faculty. This group has already made great strides in evaluating the institutional and interdisciplinary opportunities in this realm and thinking through the sticky points of prioritization and collaboration. For example, they have explored how the Law School can leverage resources elsewhere on campus to embed instruction in data science throughout our curriculum. They’ve also looked at ways that we could be an expanded resource to other departments on the legal and ethical issues that these technologies pose to society. A key member of the committee is Associate Clinical Professor Jeff Ward JD/LLM ’09, whom I appointed in December as our first associate dean for technology and innovation. Jeff, who directs the Duke Center on Law & Technology, is quickly developing a national profile in this sphere. He was named to the 2018 Fastcase 50 list of entrepreneurs, visionaries, and innovators in the area of law and legal technology, in part for his efforts to help law students explore new technologies and understand how they will affect the law. In his new position, he is helping me develop programs to support research and broader thought leadership on law, technology,

and innovation, as well as facilitating and coordinating the development of related curriculum. He is also serving as the Law School’s primary point person to the Office of the Provost and other schools and institutes at Duke to develop collaborations for interdisciplinary research or curricular programs in law and technology. I have also been working on integrating a broader range of technical expertise into our research instruction and support with Femi Cadmus, who joined the Law School in November as Archibald C. and Frances Fulk Rufty Research Professor of Law, associate dean of information services and technology, and director of the J. Michael Goodson Law Library. Our law library has long been a focal point for instruction in technology — beginning with the rigorous legal research and writing course that all 1Ls go through and also the upper-level introduction to law office technology — as well as for using technology to aid empirical research. Femi, who previously directed the library at Cornell Law School and was also a member of the 2018 Fastcase 50, has been focused on how to integrate technology into legal research and instruction throughout her 30-year career in law librarianship. One of the first items on her agenda at Duke was to hire an associate director to support the growing amount of data-driven research that our faculty and students are undertaking. Jeff and Femi are just two of our faculty members who have emerged as thought leaders on matters of law, technology, and innovation that you will read about in two related features in this issue of Duke Law Magazine. The first frames our approach to training lawyers who have the skills to do more than just incorporate technology into their practice, but fully understand legal and regulatory frameworks applicable to emerging and often disruptive technologies and appreciate their cultural, social, and ethical implications. We aim to train visionary leaders in a world of continuing technological evolution and change, which demands creativity and interdisciplinary collaboration, and we want them to be central in establishing principles and protocols for how we build and deploy technology. The second story focuses on leadership in the area of cybersecurity and data-breach response, something virtually every lawyer will at some point confront, regardless of practice area. A data breach raises problems that generally lack traditional solutions and cut across disciplines. Our goal, again, is to ensure that our graduates emerge as wise counselors and team leaders in crafting the correct response. This is an exciting time to be a lawyer, and an exciting time to be training lawyers. I can’t imagine a better place than Duke to be doing that. Thank you for your friendship and support,

Kerry Abrams James B. Duke and Benjamin N. Duke Dean and Professor of Law

THE TECH ISSUE

Training lawyers to lead the way

Spring 2019 Volume 38 Number 1 Dean

Kerry Abrams

with a focus on ethics and interdisciplinary engagement

Executive Director of Communications

Andrew Park Editor

Frances Presma Contributing writers

Rachel Flores Claire Hermann Valerie Marino Jeannie Naujeck Forrest Norman Andrew Park Frances Presma Art Direction & Design

Marc Harkness Photography

Courtney Davis Rachel Flores Jon Gardiner Claire Hermann Chris Hildreth Colin Huth Kenneth Huth Jared Lazarus Megan Mendenhall Les Todd

26 page

COVER illustration

Martín Elfman

2 4

Web production

Madeeha Khan Michael Wright Alumni Notes Editor

Duke Law to launch immigration clinic

Janse Haywood

Duke Law Magazine is published under the auspices of the Office of the Dean, Duke University Law School, 210 Science Drive, Box 90362, Durham, NC 27708

This publication was produced using paper which supports Duke’s commitment to sustaining our environment.

Blocher and Miller co-direct Duke Center for Firearms Law

47 Remembering William Van Alstyne

Dean’s Message The Commons........................ 2 Faculty Focus .......................16 Profiles.................................. 45 Alumni Notes ...................... 54 In Memoriam ...................... 63 Sua Sponte ........................... 64

The Commons

Ideas, achievements, and events from around Duke Law School

AP Photo/Gregory Bull

Duke Law to launch immigration clinic A migrant who did not give his name waits with his children to apply for asylum in the United States, at the border in Tijuana, Mexico.

uke Law School is expanding its nationally recognized clinical program with the launch of a new clinic focused on immigration law. When it opens in the next academic year, the Duke Law Immigration Clinic will offer students the opportunity to develop critical professional skills and deepen their knowledge of this increasingly important area of law while providing free legal services to immigrants who could not otherwise afford a lawyer. Supervised by clinic faculty, student-attorneys in the clinic will primarily represent individuals seeking asylum or facing deportation. “There’s a tremendous demand from our students to get experience working directly with clients on immigration matters and a great need for high-quality representation in low-income populations, including right here in our own community,” said Kerry Abrams, James B. Duke and Benjamin N. Duke Dean and professor of law, who teaches and writes

Duke Law Magazine • Spring 2019

on immigration law. “We look forward to serving this need while training future lawyers to do this important work throughout their careers.” An immigration clinic recently emerged as a strategic priority for Duke, in part due to student interest. In 2016, a group of 1Ls revived a student organization that provided pro bono legal support, research assistance, and advocacy to immigrants, and they later merged it with student groups serving refugees and asylum-seekers. Groups of students have also spent the last two spring breaks volunteering with legal organizations at immigrant detention centers in Texas and Florida. “The demand is there,” said Dan Pham ’19, director of the Immigrant and Refugee Project. “A lot of people have approached me asking, ‘What can I do?’” The Immigration Clinic will be the Law School’s 12th clinic. While the existing clinics are housed in a dedicated wing of the Law School, Duke is seeking to

the Record d On at Duke Law Oct. 29, 2018

“ There’s a tremendous demand from our students to get experience working directly with clients on immigration matters and a great need for highquality representation in low-income populations, including right here in our own community.” — Dean Kerry Abrams locate the new clinic near downtown Durham to enable direct access to clients and opportunities to collaborate with other direct services agencies that support the region’s growing immigrant population. The Law School has begun a search for a clinic director to design and lead the clinic and a supervising attorney to manage day-to-day operations. As the clinic develops, it may expand into research, policy, and impact litigation. “We expect that our students will be able to use what they’ve learned representing people in the immigration system to find ways to make it work more effectively for all stakeholders,” said Andrew Foster, clinical professor of law and director of experiential education and clinical programs. “Duke Law is committed to preparing students to be problem-solvers and to accept the challenge of leadership. Given the current divides over the issue of immigration, this is a place where we hope our students, as well as the clinic’s faculty, will be able to help make a difference.” Access to legal services can make a critical difference for immigrants who are seeking asylum or relief from detention or deportation. In a study of deportation cases decided between 2007 and 2012, the American Immigration Council found that “immigrants with attorneys fare better at every stage of the court process.” For example, the study found that detained immigrants were four times more likely to be released from detention if they had a lawyer, 11 times more likely to seek relief such as asylum, and twice as likely to obtain relief. However, just 37 percent of those in the study who faced removal were represented by counsel, and only 14 percent of those in detention had lawyers. “Durham has a very large population of Latinos who can use the help, and North Carolina has a huge need,” said Ana Maganto Ramirez ’20 T’17, president of the Hispanic Law Students Association and a director of the Immigrant and Refugee Project. A $1.5 million gift from the Ting Tsung and Wei Fong Chao Foundation will support the first three years of the clinic’s operations. “We are very grateful for the generosity of this donor,” Abrams said. “This is a very substantial investment at the scale needed to position our newest clinic for success. It provides the Law School with the resources to recruit the excellent faculty needed to lead a clinic that will accelerate the professional development of our students, meet critical legal needs of vulnerable immigrants, and, over time, work to make the system more effective and just.” d

Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit, the inaugural Distinguished Judge in Residence at the Bolch Judicial Institute, discussed his 45-year tenure on the federal bench, his memoir, Benched (William S. Hein & Co., Inc., 2017), and how the U.S. judicial system might be improved during a conversation with David F. Levi. Asked by Levi, the Levi Family Professor of Law and Judicial Studies and Director of the Bolch Judicial Institute, to list three wishes or reforms for the legal and judicial system, Newman said he would abolish the civil jury system (calling it a major cause of delay and expense to litigants), sharply limit “diversity jurisdiction” through which federal courts gain subject-matter jurisdiction over certain cases, and make changes to the rules on “standing” in federal courts. “I would change our rules on standing so that any citizen could come to court to bring a suit to say that the action of the government — a government unit or a government official — was illegal, was unconstitutional, or in excess of a statute. Now … we have to have an ‘immediate injury’ to make the issue concrete. What a thought. You mean to say that if Joe Citizen walked into court tomorrow and said, ‘The action of the secretary of state, defense, or whatever, is illegal,’ there wouldn’t be 10 public interest firms in there helping Joe Citizen bring that case? Of course there would be. So you don’t need concrete injury to have adequate representation. “… You’d probably have a lot of cases. But courts can handle that — they would consolidate them, or they would take one as the lead case and stay all the others. Israel, you might be interested to know, lets any citizen walk into court and challenge the government for acting illegally, and their system runs far more efficiently than ours. “So I would allow all people to hold government and government officers to account for allegedly unconstitutional action or action in violation of a federal statute. … I think one of the most important things courts do is hold governments to account. That’s one of their principal purposes for existing. … [T]he system depends on being able to rule when the government has exceeded its power.” d

» Professor David F. Levi’s conversation with Second Circuit Judge Jon

O. Newman will be included in the Bolch Judicial Institute’s upcoming “Judgment Calls” podcast series. See judicialstudies.duke.edu.

Duke Law Magazine • Spring 2019

The Commons

Joseph Blocher, left, and Darrell Miller

“With the new Center for Firearms Law, Duke Law School is poised to become the leader in sober scholarly thinking and research regarding the Second Amendment.” — Dean Kerry Abrams

Second Amendment scholars Blocher and Miller co-direct

Duke Center for Firearms Law D

uke Law School’s newest research center is devoted to the development and dissemination of reliable and balanced scholarship on issues surrounding firearms, gun rights and regulation, and the Second Amendment. The Duke Center for Firearms Law launched in August with Professors Joseph Blocher and Darrell Miller as co-directors. Blocher and Miller are leading constitutional scholars who have written extensively about the Second Amendment, most recently co-authoring

Duke Law Magazine • Spring 2019

The Positive Second Amendment: Rights, Regulation, and the Future of Heller, published in September by Cambridge University Press (see page 16). Through its programming and development of resources, they hope the center will encourage others to undertake serious research and scholarship that reclaims the Second Amendment from distortions and misconceptions they argue currently surround it. Jacob Charles ’13 returned to Duke Law on Feb. 25 as the center’s inaugural executive director.

Addressing a paucity of serious scholarship “There are not enough constitutional law scholars working on Second Amendment issues, an area where the impact of scholarship can be — and has been — profound,” said Blocher, the Lanty L. Smith ’67 Professor of Law. He cited the landmark 2008 Supreme Court opinion in District of Columbia v. Heller, in which the Court found, for the first time, a right to keep and bear arms for private purposes. The opinion relied heavily on gun rights scholarship, citing scholarly and secondary materials more often than all constitutional provisions, statutes, and cases combined, Blocher said. He and Miller agree that gun rights scholarship is, by and large, unbalanced, suffering from hyper-partisanship and lack of rigor, which often make it even harder to find reasonable solutions to problems of gun violence. For example, there’s still scholarly disagreement on when a weapon is “dangerous and unusual,” and therefore unprotected by the Constitution, and the full extent of gun regulation in states and municipalities prior to the 1930s. “This has real consequences for firearms law and policy,” said Miller, the Melvin G. Shimm Professor of Law. “The paucity of solid, balanced, responsible, and reliable scholarship on firearms law is bad for the academy, bad for the judicial system, and bad for the public.” Through its conferences and symposia and mentoring of scholars and fellows, the two hope the center can significantly shape firearms law and policy as a scholarly field by developing resources to help inform the opinions and actions of lawyers and policymakers, among others. “With the new Center for Firearms Law, Duke Law School is poised to become the leader in sober scholarly thinking and research regarding the Second Amendment,” said Kerry Abrams, the James B. Duke and Benjamin N. Duke Dean of the School of Law. “With their extensive and impressive body of scholarship on the Second Amendment, Darrell Miller and Joseph Blocher are perfectly suited to lead this endeavor.”

A deep dive into the history of gun laws One major resource of the new center is the searchable Repository of Historical Gun Laws, a database compiling English statutes from the Middle Ages through 1776 and those in the United States from the Colonial era to the middle of the 20th century. Miller and Blocher brought the repository to Duke Law in 2017 for use as a research tool for scholars, litigators, journalists, and others interested in firearms regula-

tion and the Second Amendment. Conceived as a resource by Saul Cornell, the Paul and Diane Guenther Chair in American History at Fordham University, and created in partnership with researchers at Duke, Fordham, and elsewhere, the repository contains more than 1,500 examples of American gun regulations as well as historical European regulations that informed U.S. lawmakers’ thoughts on the issue. The opinions in Heller and McDonald v. City of Chicago relied heavily on history to define the scope of the right to bear arms, said Miller. “In fact, Justice [Antonin] Scalia says in the Heller opinion that you understand the contours of the Second Amendment by reference to regulations that are longstanding.” Yet the repository is the first catalogue of historical regulations. “Part of our goal, with the repository and with the center, is to correct the misconception that gun regulation is a brand-new phenomenon,” Blocher said. “The 1,500 examples in the repository are only a subset of the different ways guns have been regulated in the United States. Any legal or scholarly analysis of the Second Amendment has to take into account this history of gun regulation.”

Scholars of the Second Amendment In addition to their new book, which offers the first comprehensive account of the history, theory, and law of the right to keep and bear arms in the aftermath of Heller, Miller’s and Blocher’s scholarship on the issue has been cited extensively by scholars, in briefs to and opinions of the Supreme Court and other federal and state courts, and in congressional testimony. They are co-authors of “What is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment,” 83 University of Chicago Law Review 295 (2016), an exploration of how and whether the Second Amendment applies to general common law concepts like negligence or assault; and “Lethality, Public Carry, and Adequate Alternatives,” 53 Harvard Journal on Legislation 279 (2016), an investigation on how the availability of non-lethal self-defense technology affects the constitutionality of regulations of public carrying of lethal arms. Miller’s works on firearms law and the Second Amendment include “Text History and Tradition: What the Seventh Amendment Can Teach Us About the Second,” 122 Yale Law Journal 852 (2013), which maps out what a history-centric approach to Second Amendment claims would look like, and “Second Amendment Traditionalism and Desuetude,” 14 Georgetown Journal of Law & Public Policy 223 (2016), about the role of traditionalism in Supreme Court decisions involving government regulation. Blocher and co-author Eric Ruben offer a comprehensive examination of all post-Heller judicial opinions through Feb. 1, 2016, in “From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller,” 67 Duke Law Journal 1433 (2018). The concept of the article echoes the fundamental mission of the center and the repository, Blocher said. “Heller is not going anywhere. Politically and legally, Heller is established law. So, leaving aside the partisanship, what does a serious examination of legal challenges to gun regulations in Heller’s wake look like? It turns out that courts have generally upheld existing regulations, which is very much in keeping with the actual wording in Heller.” The article is the subject of an online Duke Law Journal symposium, which includes a piece on the future of Second Amendment scholarship co-authored by Blocher and Ruben, a fellow of the Brennan Center for Justice at New York University School of Law who will soon join the faculty at SMU Dedman School of Law. Blocher’s scholarship on the post-Heller legal landscape also includes “Firearm Localism,” 123 Yale Law Journal 82 (2013), which argues that Second Duke Law Magazine • Spring 2019

The Commons

Amendment doctrine and state preemption laws can and should incorporate longstanding and sensible differences between urban and rural gun use and regulation.

Charles ’13 oversees programming as inaugural executive director Charles joins the center as executive director after focusing on consumer and products litigation in state and federal courts as an associate at McGuireWoods in Raleigh. He earlier clerked for Judge Allyson K. Duncan ’75 of the U.S. Court of Appeals for the Fourth Circuit and now-Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York, and practiced for two years in the Washington, D.C., office of O’Melveny & Myers, where he represented clients in civil litigation as well as government and congressional investigations. “Jake is the perfect person to help achieve the center’s scholarly mission,” Blocher said. “In addition to his strong professional background as a law clerk and an attorney, he has a long-standing commitment to legal scholarship. His student note and master’s thesis were incisive, ambitious, and well-researched, and he did superb work as part of a team of students I took to Ghana in the spring of 2013 to study issues of free speech. We’re very lucky to have him back in the building.” Charles is facilitating and overseeing a slate of programming that in the spring semester has so far included a Feb. 28 panel discussion on the future of the Second Amendment with two leading firearms law scholars: David Kopel, research director at the Independence Institute and associate policy analyst at the Cato Institute, and George Mocsary of the Southern Illinois University School of Law, and a March 4 conversation about the Supreme Court, the Second Amendment, and the future of gun rights regulation with constitutional scholars Walter Dellinger, the Douglas B. Maggs Professor Emeritus of Law, and Sanford Levinson of the University of Texas. Next fall, the center will host a symposium titled “Gun Rights and Regulation Outside the Home,” the proceedings of which will be published by Law & Contemporary Problems. The center is also participating in ongoing interdisciplinary research with Duke’s Department of Psychiatry on the relationship between mental health and guns. The Center for Firearms Law is supported by grants from the Katie McGrath & J. J. Abrams Family Foundation, Crankstart, Everytown for Gun Safety, the Joyce Foundation, Andrew Marks, Howard and Nancy Marks, and Arthur and Toni Rembe Rock. d 6

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Faculty, students help investigate N.C.’s role in

CIA renditions A

commission that included faculty from Duke University and Duke Law and was supported by the Law School’s International Human Rights Clinic has issued a report on North Carolina’s role in a Central Intelligence Agency-led program to apprehend, detain, and transport suspected terrorists to be held, interrogated, and tortured outside the United States. The report by the citizen-led North Carolina Commission of Inquiry on Torture (NCCIT) is the culmination of a 13-year effort to hold federal, state, and local officials accountable for the state’s involvement in the post-9/11 “rendition, detention, and interrogation” program. Most notably, according to the report, a Smithfield-based aviation company operating out of two public airfields in Johnston County and Lenoir County was hired to deliver suspects into CIA or foreign custody, where many were subjected to torture and other forms of abuse. The renditions themselves may have also amounted to torture. Suspects, who included a 16-year-old student and a pregnant woman, were “forcibly seized without any due process, in a manner that itself amounted to torture and cruel, inhuman or degrading treatment,” according to the report. International law requires the prevention of and accountability and redress for torture and enforced disappearances. “What the report makes very clear … is that the U.S. government not only violated rights of individuals throughout the duration of the program, but by failing to investigate what happened, by failing to provide a remedy, this is an ongoing violation,” said Clinical Professor Jayne Huckerby, who directs the International Human Rights Clinic, at a Nov. 12 Duke Law presentation. “And until there has been an accounting for those victims, the U.S. government will continue to be in breach of its international human rights law obligations.” Huckerby testified before the commission during two days of public hearings it held in late 2017. Robin Kirk, faculty co-chair of the Duke Human Rights Center at the Franklin Humanities Institute, served as commission co-chair and James E. Coleman, Jr., the John S. Bradway Professor of the Practice of Law, was one of 11 members. The commission found that between 2001 and 2004, Aero Contractors, Ltd. transported 49 individuals to foreign countries to be interrogated by either the CIA at one of its undisclosed “black sites” or by foreign governments. The company leased space at two public airports in Johnston County and Lenoir County and used a hangar that was built specially for one of the two aircraft it operated. The commission also investigated allegations that other North Carolina companies participated in the torture program and that military personnel at Fort Bragg played a major role in developing abusive techniques against suspected terrorists. While the legality of the renditions and the state’s role in them have been scrutinized through inquiries held by European authorities

“What the report makes very clear … is that the U.S. government not only violated rights of individuals throughout the duration of the program, but by failing to investigate what happened, by failing to provide a remedy, this is an ongoing violation.” — Clinical Professor Jayne Huckerby

and five landmark cases decided by the European Court of Human Rights, the NCCIT is the first to publicly investigate them inside the United States, despite years of entreaties to state and local officials. “We do not often think about human rights in terms of what happens in the United States,” said Coleman, director of the Law School’s Center for Criminal Justice and Professional Responsibility and co-director of the Wrongful Convictions Clinic. “I think that is a mistake, and I think those of us who care about civil rights ought to be concerned about human rights. This program is an example of a systematic effort by the United States that violated international law and domestic law, in which lawyers played an important role in making it possible.” Coleman said he believed that the program breached both federal and state criminal laws, such as conspiracy, in addition to international human rights law, but that public officials in North Carolina had never bothered to look into them. He said he agreed to participate in the commission in part because he thought it might provide a model for investigating and documenting other contentious issues, such as racial injustice in the United States, with an ultimate goal of accountability. “I think that sometimes just producing the record is helpful,” Coleman said an interview. “I also have this notion that when public officials and law enforcement officials, are willing to overlook obvious wrongdoing in one area, they likely are indifferent to wrongdoing in other areas.” The International Human Rights Clinic began working with the commission in the spring 2017 semester, with students conducting extensive research and legal analysis as well as data visualization in support of the public hearings. Following the hearings, students engaged in additional research, analysis, and writing that contributed to the report. “I would say this was by far the most fulfilling experience I had in law school, not just because I got to play a small part in this really important work, but also because I felt a sense of camaraderie with the small team that I was fortunate to work with,” said Khaled Fayyad ’18. “It allowed me to see myself as part of a team of people with a shared purpose.”

L-R: James Coleman, Jr., Jayne Huckerby, and Aya Fujimura-Fanselow discussed the “Torture Flights” report at a Nov. 12 Duke Law presentation.

The hearings, which were held in Raleigh, provided an opportunity for victim testimony by two individuals. Mohamedou Ould Slahi, who was rendered by Aero Contractors and detained for 14 years at Guantanamo Bay, and Khadija Anna Pighizzini, the wife of Abou Elkassim Britel, who was rendered to a secret Moroccan prison reported to have been largely funded by the CIA, both spoke to the commission on video. “I think that actually seeing and hearing directly from one victim and the wife of a second victim at the hearing was really significant and impactful,” said Senior Lecturing Fellow Aya Fujimura-Fanselow, the clinic’s supervising attorney. “It can be difficult with international human rights law when we’re working with issues that are happening in different countries, and we don’t necessarily see it up close.” In the fall semester, students addressed issues that the report identified as requiring further attention to achieve an even more complete understanding of the ways in which the United States and North Carolina in particular are implicated in rendition and torture. Their work also included strategizing how best to advocate for the implementation of the commission’s recommendations, which are targeted at the federal, state, and local governments and law enforcement officials as well as citizens, and which include educating the public about the program, holding officials accountable, providing redress to victims, and preventing torture in the future. “It’s a good marriage of domestic politics and local politics with international law,” said Lauren Hughes ’19. “They’re not really areas that people usually think of as overlapping and really intersecting, but in this project they are absolutely bringing international human rights law to North Carolina, down to specific cities. For me that was really exciting to see, how human rights is being applied at the local level.” d

Duke Law Magazine • Spring 2019

The Commons

James Coleman, Jr., co-director of Duke’s Wrongful Convictions Clinic shows Charles Ray Finch a photograph during a visit at Franklin Correctional Center Wednesday, Sept. 23, 2015. Brad Coville | The Wilson Times

Wrongful Convictions Clinic

Fourth Circuit ruling grants client full hearing on merits of otherwise barred constitutional claims

he U.S. Court of Appeals for the Fourth Circuit has granted a Wrongful Convictions Clinic client’s request for a full federal court hearing on the merits of his constitutional claims following oral arguments made by Professor James Coleman, Jr., in November. The Fourth Circuit issued its ruling on behalf of clinic client Charles Ray Finch on Jan. 25. Finch, who is now 80 years old, has maintained that he did not commit the murder in Black Creek, N.C., for which he was convicted and incarcerated in 1976. The clinic appealed to the Fourth Circuit on his behalf after the U.S. District Court for the Eastern District of North Carolina denied his habeas petition in 2016 on the grounds that it was barred by the one-year federal statute of limitations. “Because the present record meets the exacting standard for the actual innocence gateway to consideration of a constitutional claim, we reverse the

Duke Law Magazine • Spring 2019

district court’s decision and remand the petition for adjudication on the merits,” wrote Fourth Circuit Chief Judge Roger Gregory in an opinion joined by Judges Barbara Keenan and Henry Floyd. “Ray was elated to hear the news — he wanted to know when he would get out,” said Coleman, the John S. Bradway Professor of the Practice of Law and Wrongful Convictions Clinic co-director, who first interviewed Finch on his claims of innocence in 2001. “I started writing state officials in 2002 and 2003. Over the years, we wrote letters to every major elected state official. None showed any interest.” The district court dismissed Finch’s habeas petition, which the clinic filed on his behalf in 2015, without ruling on its merits, finding both that it was time-barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and that he failed to meet the actual innocence standard required to overcome the time barrier. The circuit court rejected

that finding, with Judge Gregory writing that “Finch alleges actual innocence which, if proven, serves as a gateway through which a habeas petitioner may pass when AEDPA’s statute of limitations has expired.” He cited earlier jurisprudence for the rule’s grounding in the “equitable discretion of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” To reach its verdict, the court extensively reviewed the evidence and testimony at Finch’s 1976 trial for the murder of convenience store owner Richard Holloman in the course of a robbery, noting problems relating to eyewitness testimony and line-up procedures. The court also took note of evidence proffered after Finch’s trial that cast further doubt on the eyewitness testimony, police interrogation tactics, and physical evidence, as well as the testimony of an expert presented by the clinic in a 2013 evidentiary hearing, that “called into question Finch’s culpability based on an unduly suggestive pretrial line-up” that increased the risk of misidentification. The opinion indicated that the judges found the new expert evidence relating to improper line-up procedures particularly persuasive in supporting Finch’s allegations that his rights under the Due Process Clause of the 14th Amendment were violated and that he was misidentified by the state’s eyewitness. “No reasonable juror would likely find Finch guilty beyond a reasonable doubt if it knew the high likelihood he was misidentified [by the key eyewitness] both outside and inside the courtroom as a murder suspect because of impermissibly suggestive procedures,” Judge Gregory wrote. The court determined that Finch had satisfied the “exacting standard” of demonstrating that properly instructed, reasonable jurors would, “more likely than not,” find him not guilty based on the totality of the evidence now available, and that his continued incarceration would constitute a miscarriage of justice unless the merits of his constitutional claims were decided. In analyzing the evidence on record, the court took note of the lack of any physical evidence implicating Finch and new medical and ballistic evidence indicating that the murder weapon, a pistol, was misidentified as a shotgun, a fact that undermined the eyewitness testimony that Finch fired the fatal shot — critical to the first-degree murder conviction — and was even at the murder scene, required for a felony-murder conviction. “Criminal liability, under any theory, including the felony-murder rule, would not attach to Finch if there is no evidence that he was at Holloman’s store during the murder,” Judge Gregory wrote. “The Fourth Circuit’s opinion is strong enough that it is unlikely the state could overcome our claims on the merits,” said Coleman, who directs the Duke Center for Criminal Justice and Professional Responsibility. “One claim is that the line-ups were unconstitutional. On remand the state would have to show by clear and convincing evidence that the eyewitness identification was independent of the line-ups and otherwise reliable.” The Fourth Circuit’s conclusion that the record as a whole was insufficient to convict Finch makes such a showing inconceivable, Coleman said. The clinic will ask N.C. Attorney General Josh Stein to join a motion in the district court to grant the habeas petition, he said. “I hope we can quickly wrap up what remains.” Professor Nita Farahany ’04, who researches and writes extensively on matters at the intersection of science and criminal law, co-authored the brief the clinic filed with the Fourth Circuit with Eileen Ulate ’19 and Sarah Milkovich ’19 and attended the oral arguments held in Cherokee, N.C., along with a contingent of clinic students and faculty and members of Finch’s family. Farahany also worked on the case as a student at the Law School. d

Appellate Litigation Clinic

Client gains release following Third Circuit habeas ruling

fter serving more than 18 years of a life sentence, Alonzo Price walked out of New Jersey state prison Oct. 8 a free man. His release came after the Appellate Litigation Clinic successfully represented him in obtaining a writ of habeas corpus from the U.S. Court of Appeals for the Third Circuit. Supervised by Clinical Professor Sean Andrussier ’92, the clinic’s director, a team of students briefed Price’s habeas claims in the 2016-2017 academic year, challenging his trial counsel’s approach to the state’s use of DNA evidence against him. In the summer of 2017, Andrussier argued the case before the Third Circuit in Philadelphia, which issued its ruling in March 2018. Price was convicted of burglary and other offenses stemming from two home-invasion incidents that took place in a small New Jersey town in June 2000. Sean Andrussier ’92 He maintained his innocence and sought relief in state court, arguing that he received ineffective assistance of counsel at trial, in violation of the Sixth Amendment, concerning DNA evidence. The evidence had been culled from a cigarette butt discovered by the victim’s friend at the scene of the second burglary, on the roof by the window through which the burglar had entered. In his post-conviction pleadings, Price maintained that the cigarette tested for his DNA could not have been recovered from the roof and instead must have come from an ashtray in his apartment that a detective encountered during a search just a few hours after the rooftop find. He argued that his counsel failed to properly discredit that evidence. The state courts rejected Price’s claim, as did a federal district court on his petition for a writ of habeas corpus. Price appealed to the Third Circuit, which appointed Andrussier to represent him. Under Andrussier’s supervision, a team of third-year clinic students in the class of 2017 worked on the appeal and entered appearances in the Third Circuit as student counsel for Price: Chase Harrington, Kate Perkins, Laura Revolinski, Christine Umeh, and Wenbo Zhang. In briefs challenging trial counsel’s approach to discredit the DNA evidence — in particular the chain of custody — the clinic stressed that “DNA evidence has a unique and potent influence on jurors.” Duke Law Magazine • Spring 2019

The Commons Environmental Law and Policy Clinic The clinic also pointed to gaps and deficiencies in the state’s other evidence. For example, DNA on other evidence tested did not match Price, the victims’ estimates of the perpetrator’s size — they had not seen his face — did not match his, and none of the items stolen were found in his possession. The clinic’s briefs also challenged the state’s voice-identification evidence. The second victim, who alleged familiarity with Price’s voice because Price was a customer at the pharmacy where he worked, told police the perpetrator’s voice sounded like Price’s. The clinic highlighted problems generally with mistaken eyewitness identification and in particular empirical research on “earwitness” testimony — identification by voice alone. “Researchers have warned,” the clinic argued, “that such testimony can be unreliable and that a variety of factors can yield mistaken identifications.” In an opinion authored by Judge Jane Roth and joined by Judges Theodore McKee and Thomas Ambro, the Third Circuit accepted the clinic’s argument that the state courts had unreasonably adjudicated Price’s constitutional claim about his counsel’s performance. “Cigarette butts,” the court observed, “are ubiquitous, almost indistinguishable, and easily substituted one for another by a person wishing to do so.” The court also agreed with the clinic’s argument that Price established prejudice, ruling that had the case been properly tried the jury could have chosen to disregard the cigarette butt, the single most important piece of evidence for the prosecution. “If the jury began to doubt police procedures regarding the cigarette butt,” it “might have become concerned about other pieces of evidence,” Judge Roth wrote. The court reversed the district court’s judgment, directed that “the writ of habeas corpus be granted,” and ordered that “[t]he State must release Price or grant him a new trial within six months.” Price wasn’t retried, however, and instead a deal was reached that led to his early release. Now in his late 50s, Price said that he was “ecstatic” when the Duke Law clinic took on his case. “The team’s effort was incredible and the legal representation was of the highest caliber,” he said, noting that during his 18 years in prison he always retained hope that he would someday gain release. “I held my breath for so many years, and now I can breathe again. I was blessed to have them represent me.” Price said he looked forward to spending time with his family and helping to care for his elderly mother, and to finding employment. Clinic alumni who represented Price said this experience ranked as their most challenging and meaningful in law school. “It showed me that, by hard work, a lawyer can protect someone’s rights and make a difference,” said Harrington, who joined the Becket Fund for Religious Liberty as a constitutional law fellow after completing a clerkship with Tenth Circuit Judge Allison H. Eid. d 10 Duke Law Magazine • Spring 2019

Project tackles marine pollution through plastics reduction in Durham, at Duke

s an Environmental Law and Policy Clinic intern, Christine Gerbode spent the past summer wading into creeks around Durham, carefully counting and categorizing bags of bottles, cans, grocery bags, golf balls, and other trash washed in by rainstorms. Gerbode, who is pursuing a master of environmental management degree at Duke’s Nicholas School of the Environment, sometimes made some unusual finds, like a megaphone and a footlong, gold letter “I.” “All this plastic is going somewhere, ultimately, into the marine environment and also to the major drinking water reservoirs around Durham and Raleigh,” said Gerbode after one collection trip. In fact, every year an estimated 8 million metric tons of plastic waste enters the oceans. Much of that waste is washed downstream from inland sources through stormwater runoff, posing a threat to both marine and coastal environments and sea life. Gerbode’s efforts are part of a long-term clinic project to curb plastic pollution in the oceans through urban stormwater regulation, solid waste management, and a variety of policies and partnerships close to home. Clinical Professor Michelle Nowlin JD/MA ’92 conceived the project, which in its pilot stage involves addressing plastic waste and stormwater systems at Duke University and in Durham, after learning from a clinic client how sea turtles were affected by ingesting particles of plastic waste. Nowlin said clinic faculty wanted to address the problem close to its source and decided to focus on understanding and Michelle Nowlin JD/MA ’92 regulating litter in stormwater after exploring various legal hooks with the students. “The problem of plastics pollution requires a multi-dimensional approach,” she said. “With our multi-disciplinary student teams, we have the ability to tackle questions from a legal perspective, a policy change perspective, and a scientific perspective. Starting close to home with Durham and Duke allows us to explore what a mid-sized, inland city can do to prevent marine debris. We hope to offer approaches that can be replicated by similar communities.” Clinic students first undertook research, in the summer of 2017, to confirm federal legal authority to regulate trash in Durham’s waters as a recognized pollutant under the Clean Water Act. Next, the students from the Law and Nicholas

Environmental Law and Policy Clinic interns on a stream-sampling trip in Durham, L-R: Christine Gerbode, Ashley Tilley, and Mitchell Bishop

Schools gathered data on the location and type of trash (though often mixed with other waste, plastic waste was by far the most prevalent), investigated the environmental health and water quality impacts of plastic water pollutants, and mapped Durham’s watershed and stormwater system. They also evaluated legal tools available for stormwater regulation. In the last academic year, clinic students crafted their research into detailed comments to Durham officials regarding the city’s renewal of its stormwater control permit from the N.C. Department of Environmental Quality. Last fall, after consultation with Durham Stormwater Services, students presented their research to the Durham Environmental Affairs Board (EAB), explaining the nature and scope of the problem and offering a detailed plan for improvement through such means as business certification campaigns, trash traps, and floating collection infrastructure. The clinic’s recommendations to the city were informed, in part, by their research into policies and technologies used in other municipalities. Other key information came from litter surveys the clinic carried out in 2017, which are being continued in 2018. Using a protocol adapted by former clinic policy fellow Talia Sechley MEM ’16 to suit smaller inland cities, students put on waterproof boots and sampled litter from streams around Durham and Duke, cataloguing the types and locations of their finds. The clinic also worked with researchers at the Nicholas School to sample for microplastics — tiny pieces created when plastic

degrades — at some of the sites. Microplastics can get into drinking water and, as Duke research indicates, they can harm marine animals such as fish, zooplankton, and coral, if ingested. The clinic collaborates on the project with nonprofits, government agencies, and other organizations in Durham, at Duke, and on the coast. Sechley collaborated with undergraduate student groups on campaigns to reduce plastic use on campus. Duke Dining eliminated single-use plastic from all its facilities as of July 1, replacing it with plant-based, biodegradable products. The clinic also worked with a group of Durham nonprofits and government agencies to organize a sold-out film screening of the short film “Straws” at PSI Theater last spring, at which Mayor Steve Schewel T’73, G’82, declared March “No Straws Month.” Additionally, the clinic partnered with professionals working in stormwater management to better understand what solutions might work best for Durham and Duke. “Having this sort of experience taught me how to be very thoughtful about the other factors outside of the pure regulatory scheme and the law,” said Jeremy Iloulian ’18, who worked on the project while enrolled in the clinic. “Everyone has different factors that they’re weighing in their mind about cost and constituents and all those sorts of things. To be able to not only learn about the law, but also how to present it and work with people regarding those external factors was important.” d

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“I don’t see a dynamic that lifts us out of it because the court has become so important to the most activist wing of each party, and they’re the ones pressuring their senators, either to ram people through or to deny the other side the ability to get a seat filled. … We have to become less polarized politically across a whole range of issues, and then the court question would settle down some.”

Notable &Quotable “We have long accepted there should be no inquiry into whether a person came from the right race, cast or bloodline in establishing citizenship. Other nations may follow a different path. But our unique history has taught us that the bright-line fact of birth on U.S. soil is fundamental.” — Professor Emeritus Walter Dellinger, calling President Trump’s proposal to end birthright citizenship by executive order unconstitutional and unlawful as it is embedded both in the Constitution and in statute (Washington Post, Oct. 31, 2018)

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“I think the biggest damage, perhaps, is the large number of young Puerto Ricans who, because of Puerto Rico’s inability to effectively grow, are leaving and moving to places like Florida.” — Professor Mitu Gulati, a leading expert on sovereign debt, calling Puerto Rico “one of the most horrific examples of debt restructuring going on” and attributing its problems to a combination of bad investor advice, bad government, and lack of statehood (Slate Money podcast, Nov. 24, 2018)

Illustrations: Miguel Porlan

— Professor Christopher Schroeder, who played a key role in judicial nominations and confirmations while head of the Justice Department’s Office of Legal Policy in the Justice Department during the Obama administration, commenting on the political polarization that dominates the process (Vice, Sept. 28, 2018)

“The hard work that went into the First Step Act should be followed by serious scientific and public deliberation about the sound use of risk-based evaluation. The act will not do justice to the needs of our federal criminal system if the first step results in a hasty sprint to uncritically embrace risk assessment.” — Professor Brandon Garrett, saying that the promise of a bipartisan effort to make the federal criminal justice system fairer can be met only if “the engine that drives the entire piece of legislation” — risk assessments of prisoners’ likelihood to reoffend — is carefully used (Slate, Dec. 27, 2018)

“There’s a clear First Amendment issue here, that if we’re going to allow the president to pick and choose — essentially, arbitrarily — who is allowed to cover anything really involving the White House, then there’s an issue with the types of narratives that readers will be presented with.” — Lecturing Fellow and First Amendment Clinic Supervising Attorney Nicole Ligon ’16, reacting to the White House revocation of CNN correspondent Jim Acosta’s credentials (Washington Times, Nov. 13, 2018)

“In medicine, rafts of patents obstruct research into treatments such as a malaria vaccine; the costs of just identifying the relevant patents is prohibitive. Such a system is great for patent lawyers, whom I train. It is unlikely to be good for society as a whole.” — Professor James Boyle, lamenting the “digital fences” of the so-called second-enclosure movement that has applied the tragedy of the commons metaphor to the intellectual property sphere through a massive expansion of rights (The Economist, Nov. 12, 2018)

“The Department of Agriculture funds school lunch programs in public schools and childcare settings. Their mission to provide nutritious meals and safe drinking water is disingenuous without strictly enforced accountability standards. Ideally, all schools receiving public funding should test their drinking water for lead.” — Senior Lecturing Fellow and Children’s Law Clinic Supervising Attorney Crystal Grant, noting that lead toxicity is higher in low-income neighborhoods, disproportionately impacting minority children, and can “negatively influence the trajectory of their lives” (Medium, Nov. 19, 2018)

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The Commons

Dean Kerry Abrams, Judge Allyson Duncan, and President Vincent Price with Duncan’s portrait by Gale Fulton Ross

Duke Law celebrates retiring Fourth Circuit Judge Allyson K. Duncan ’75, unveils portrait

uke Law alumni, faculty, and friends gathered on Oct. 26 to celebrate Judge Allyson K. Duncan ’75 and unveil a portrait of her that will hang outside the James M. Poyner Moot Courtroom. “We are so honored to count you among our graduates and to have your portrait serve as a visible reminder to our students and to our community about how hard work, intellectual curiosity, service to others, civil discourse, and high standards for excellence can make the world a better place,” said Kerry Abrams, the James B. Duke and Benjamin N. Duke Dean and professor of law. Duncan had earlier announced plans to step down from the U.S. Court of Appeals for the Fourth Circuit, where she had served since August 2003, as soon as her replacement was confirmed. She assumed senior status on March 21 following the confirmation to the court of Allison Jones Rushing ’07 by the U.S. Senate. Abrams, who called getting to know Duncan “one of the highlights” of her tenure as dean thus far, listed the honoree’s many “firsts”: She graduated first in her class at Hampton University, became the first African-American woman to serve as justice on the N.C. Court of Appeals, the first African-American president of the N.C. Bar Association, and the first African-American woman to sit on the Fourth Circuit bench.

Duke Law Magazine • Spring 2019

Duncan, a Durham native, clerked for Judge Julia Cooper Mack on the District of Columbia Court of Appeals before joining the U.S. Equal Employment Opportunity Commission as an appellate attorney, rising eventually to agency counsel. She later taught law as an associate professor at North Carolina Central University (NCCU) and served as a judge on the N.C. Court of Appeals and as a commissioner on the N.C. Utilities Commission before joining Kilpatrick Townsend and Stockton in Raleigh as a partner. She was nominated to the federal judiciary by President George W. Bush and confirmed by a unanimous vote in the U.S. Senate. Calling Duncan “a force in the international arena,” Abrams noted her leadership of the Federal Judges Association, beginning in May 2015, and her subsequent appointment by U.S. Chief Justice John Roberts to chair the International Judicial Relations Committee of the U.S. Judicial Conference. Having a delegation of judges from Moldova hosted by Duncan attend classes and meet with Duke Law faculty on Oct. 26 offered proof of the strong connections she has built with nascent judicial systems in other parts of the world, said Abrams. Duke University President Vincent Price praised Duncan’s institutional leadership and dedication both as a member of the Law School’s Board of Visitors since 2004 and as a Duke trustee

the Record d On at Duke Law Oct. 4, 2018 since 2011. “As past chair of the trustees’ Academic Affairs Committee and current chair of the Graduate and Professional Education Committee, she has helped and is continuing to help David F. Levi redefine education at both the undergraduate and graduate levels, including here at Duke Law,” he said. “I’ve been very lucky to get to know her personally in her capacity as a trustee and I am so grateful that she has been willing to share her great talents with this university.” David F. Levi, the Levi Family Professor of Law and Judicial Studies and Director of the Bolch Judicial Institute, described Duncan’s service to Duke as “unparalleled,” adding that she had recently accepted his invitation to join the institute’s new board. “She never says no,” said Levi, who served as dean of the Law School from 2007 to 2018 and presented Duncan with the 2016 Dean’s Achievement Award. Recalling the friendship and guidance she extended to him when he arrived at Duke after serving as Chief Judge of the U.S. District Court for the Eastern District of California, he praised her devotion to students and young lawyers as they sought to advance in their careers. Levi joked that her outreach to him in that regard could be relentless: “She is a truly tireless advocate for her law clerks. I am tired by her advocacy.” Levi called Duncan “a towering figure in the rule-of-law space” internationally, evidenced by her election as vice president of the International Association of Judges. And in her judicial role, Duncan is “the epitome of the common law judge,” he said. “You approach it as a matter of professionalism and craft, you’re careful, you’re erudite, you’re fair, and you’re modest. And you see justice within the confines of those wise restraints that make us free.” Levi concluded by thanking her and her husband, former U.S. Magistrate Judge William Webb, for their establishment, last June, of the Judge Allyson K. Duncan Fund in support of legal writing at the Law School, observing that it was in keeping with her commitment and attention to careful research, scholarship, thinking, and writing. For her part, Duncan expressed her deep gratitude and appreciation for the honor of hanging her portrait at Duke Law before its eventual relocation to the courthouse in Richmond, Va., where the Fourth Circuit is based. She said she hoped to convey “a sense of the surreal that my portrait is going to hang on a wall in this august building that I approached with trembling trepidation so many years ago.” The portrait is by Gale Fulton Ross, who earlier painted one of Duncan’s mother, Anne, the longtime law librarian at NCCU Law School, that now hangs in that school’s law library. Having spent “a large part of my formative years” at NCCU Law School — her father was NCCU’s superintendent of buildings and grounds — Duncan said that becoming a lawyer was always her goal, and she looks forward to remaining engaged with societal challenges in her retirement, partly through her service at Duke Law. “To have reached the point in my life when I can take all that I have learned and perhaps bring it to bear on the front end of problems is, to me, just the highest possible aspiration,” she said. “I can’t really say anything other than thank you.” d

elivering the David L. Lange Lecture in Intellectual Property Law, Jessica Litman, the John F. Nickoll Professor of Law at the University of Michigan, argued that the most successful and far-reaching reforms to copyright law over the past 25 years, such as general acceptance that a “copy” can include temporary and ephemeral instantiations and end-user license agreements are legally enforceable, quietly evolved outside of the congressional or judicial lawmaking process. “They happened because copyright owners took controversial legal positions, insisted, again and again, that the law was on their side, and if necessary, litigated the question by choosing opponents who didn’t have the financial resources to manage a robust defense,” said Litman, the author of Digital Copyright. “And through that campaign, people came to accept, at least as a practical matter, that consumer peer-to-peer file sharing is illegal, and user license agreements are binding and trump user rights, whether those rights are recognized by courts or enumerated in the statute — the exclusive reproduction right is broad enough to reach any unauthorized digital use of a protected work.” While pointing out that these developments don’t bode well for a robust public domain, she also shared recent examples of resistance, such as advocacy to support fair use and other foundational copyright doctrines. “… [I]f we’re to succeed in asserting the public’s interest in access to works and freedom to make use of them, we’re unlikely to make much headway in Congress. And so I take some solace from the maddening fact that so many of the changes that turned out to be really important were accomplished without actual change in the words of the statute and, indeed, often without any judicial intervention. That means that they’re susceptible to being changed in the other direction by similar mechanisms. The fluidity that allowed important copyright doctrines to morph without changing the hard law gives us some room to morph them back. So the expansive definition of ‘copying,’ for example, never made any sense. Still doesn’t. That makes it vulnerable to reassessment.” d

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Faculty Focus

Joseph Blocher

Darrell Miller

The Positive Second Amendment

Blocher and Miller offer a comprehensive account of the past, present, and future of the Second Amendment in new book

n their new book, The Positive Second Amendment: Rights, Regulation, and the Future of Heller (Cambridge University Press, 2018), constitutional law scholars Joseph Blocher and Darrell Miller offer the first comprehensive account of the history, theory, and law of the right to keep and bear arms in the aftermath of District of Columbia v. Heller. The Supreme Court’s 2008 ruling that the Second Amendment protects a private, personal right to own guns opened a whole new avenue for Second Amendment research, which had previously been almost solely focused on defining its scope, said Miller, the Melvin G. Shimm Professor of Law. “The real question now is how to think through the

Duke Law Magazine • Spring 2019

post-Heller world and apply the Second Amendment as law. The private purposes theory was not constitutional law before 2008. No federal court struck down a law based on a private purposes theory before then, and our book is an attempt to wrestle with what it means now that we understand the amendment as constitutional law in that sense.” Added Blocher, the Lanty L. Smith ’67 Professor of Law: “We are trying to build and share a tool kit to answer the myriad Second Amendment questions that are still on the table.” Blocher and Miller, who are faculty co-directors of the new Center for Firearms Law (see page 4), spoke to Duke Law Magazine about their book.

Duke Law Magazine: Define the word “positive” in the context of your title and approach to the topic.

of statements about the Second Amendment coherent and we can have a conversation about them.

Darrell Miller: It’s a way of understanding a positive viewpoint of the Second Amendment — a statement that there is a place in the constitutional order both for gun rights and gun regulations. It’s not the kind of boogieman that persons on the left sometimes treat it as, but by the same token, it’s not an all-powerful champion that lays waste to all regulations in the way that some gun rights supporters mean. The other connotation, which is more for the lawyers in the audience, is positive in the sense of — not natural law, not God-given law — but positive law in the sense that it’s a law that is tractable, it’s earthly, it can be understood. You can make constitutional claims that can be disproved using the tools of legal argument.

DLM: How did writing the book advance your ideas for future scholarship?

Joseph Blocher: It’s also positive in the sense that there’s something hopeful about the book’s message and approach. As we see it, the Second Amendment and constitutional law are with the solid majority of Americans who believe both in the individual right to keep and bear arms and in reasonable gun regulation. And we want them to understand that, despite all the screeching from the extremes, actually there is something sort of positive about where the actual law is. The political debate pushes people to the edges; it’s very polarizing. But the Constitution is where most Americans are. DLM: You start the book with a frank account of the Sandy Hook shooting, and end it with the Pulse nightclub massacre in Orlando. How did you balance the need to avoid the extremes of the ongoing debate with a need to be honest about the stakes? JB: It was hard. At the same time that we want to be positive, we want to be unblinking. There are immense numbers of examples of firearm misuse and 100,000 Americans who are shot every year. It’s a serious challenge for public health and policy, but it’s not our main challenge in this book, which is to give a constitutional account. DM: The choice of bookending this project with two terrible massacres is to try to talk about the way in which the normal pathways in which people sort into their respective, reflexive camps about gun violence really is not the way that the Second Amendment works. In fact, an understanding of the Second Amendment as law could help people recognize that it doesn’t cause Sandy Hook and it doesn’t stop people who might want to prevent another Sandy Hook. It’s not the Constitution that is the problem, it’s the nature of the political discourse.

JB: We learned that there are certain issue areas that intersect with firearms law that would benefit from a lot more and deeper scholarship going forward, such as the intersection of gender and guns and the intersection of race and guns. You hear people make arguments based in realities of race and police enforcement saying, for example, enforcement of gun laws is likely to disproportionately burden young black men. We see that with stop-and-frisk policies. But young black men are also overwhelmingly disproportionately the victims of gun violence, so it is complicated. DM: That is a trend line that goes back to Reconstruction. Many people, especially on the gun rights side, point to racially denominated restrictions on guns in history and say, ‘See, all gun regulation is bad!’ But I think there is an argument that hopefully comes out in our book that says, ‘Sure, that is bad, but the lack of gun regulation has not been the friend of African Americans either.’ When you’re saying that we’ll just let people make their own decisions about who to police and under what circumstances, that can be a form of oppression too. You have to look at what you’re regulating, but also what you’re not regulating. DLM: Why did you employ a historical narrative for exploring this aspect of constitutional law? You include terribly grim moments, such as the mass shootings or the assassination of Dr. Martin Luther King, Jr., as well as colorful ones, like that of Gen. Daniel Sickles, who was acquitted for killing his wife’s lover in a duel by using the first successful temporary insanity defense in U.S. history.

JB: We’re trying to describe what we call in the book, and what others have described in other contexts, as a constitutional grammar. These are the moves that are legitimate when you are arguing in constitutional terms. And I think that has the benefit of disciplining the conversation and taking off the table some of the most emotive arguments. Hopefully that common language allows better engagement.

JB: The book begins in England in the 1300s, and ends by looking to the future. The narrative helps to illuminate the debate leading up to Heller, the Heller decision and its aftermath, and what Heller means going forward. It’s very easy with this issue to get lost the way that the public debate does, and end up lobbing abstract principles back and forth with no sense of their context. We wanted to introduce people to the story, whether it’s in the historical portions or the people involved in the legal cases.

DM: Our ambition is that, when somebody reacts to something like Sandy Hook or guns in schools or some piece of gun legislation and says, ‘The Constitution forbids that,’ or ‘The Constitution allows that,’ that it can mean something other than, ‘That’s how I wish it was.’ The idea of educating people in a grammar used in other constitutional domains that are perhaps less fraught, can make those kinds

DM: Part of it is driven by what I think Joseph and I share, which is an idea that the law isn’t an abstraction. The choice about whether you make a regulation has real impacts. If you don’t regulate certain types of high-capacity magazines, you risk [Sandy

DLM:

You talk about developing and educating people in a legal language with which we can discuss these issues.

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Hook shooter] Adam Lanza. If you do regulate certain types of non-lethal weapons like stun guns, you impact somebody like [Jaime] Caetano. [Caetano was prosecuted under Massachusetts’ ban on stun guns after using one to defend herself against an ex-boyfriend who had assaulted her multiple times.] Having the stories and having actual people and their lived experiences of the intersection of gun and law makes people understand the stakes. DLM: Why is it so important, right now, to develop serious post-Heller scholarship on the Second Amendment, and what role might this book play? JB: I think one thing that we can do as scholars is give people the tools they need to engage with one another. One thing that is frustrating about the gun debate is the feeling that people are just talking past each other a lot. When both sides are forced to be in dialogue, sometimes in the context of proposed legislation or a legal case, they can actually talk to one another using common languages like text and history and doctrine. Anything we can do to contribute to that is good. We also hope to dispel some common myths and misunderstandings about the Second Amendment being absolute and about the novelty of gun regulation. Those tend to cloud the debate and make it more polarized than it needs to be. Our goal isn’t to make everyone agree, but the debate could be healthier. DM: I think that the importance of encouraging scholarship is that once people are conversant with the tools of legal analysis they can create lines and boundaries, and ask, ‘You say this is a right, what are its boundaries?’ Then our hope is that by marking out the legal space, you can see if there is room to have policy-based conversations, and see what the ground rules are for those conversations. We know that, post-Heller, a conversation that starts with taking away all the guns is a legal non-starter. But what about other proposals? We’re hoping that, within the legal space this book develops, other people with other skills — the criminologists, the technologists, the policy makers — can then say, ‘Ah, I understand now that this is a right subject to these kinds of regulations for these kinds of reasons, and that helps my understanding of how the various elements fit into the constellation of legal and policy issues surrounding guns.’” d

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Siegel, co-author introduce readers to constitutional law, theory, politics

he practical importance of constitutional law is obvious from media coverage of such hot-button issues as health care, gun control, ballot access, abortion, and same-sex marriage, all recent (and possibly future) topics of deliberation and binding decision by the United States Supreme Court. In the introduction to their new book, United States Constitutional Law (Foundation Press, 2019), David W. Ichel Professor of Law and Professor of Political Science Neil Siegel and Daniel Farber, the Sho Sato Professor of Law at the University of California, Berkeley, explore the dynamic “interactive process” between the Supreme Court and a range of actors and institutions who make claims on the Constitution in the sphere of constitutional politics, including social movements, political parties, and governmental institutions. “A mature and balanced understanding of constitutional law,” Siegel said, “requires close attention both to the legal doctrine that is developed by the U.S. Supreme Court and to the ideas about the Constitution that circulate in constitutional politics.” Siegel takes a similar approach in his wide-ranging body of scholarship on matters of constitutional law, theory, and politics, considering ways in which a methodologically pluralist approach can accommodate changes in society and the needs of American governance while remaining disciplined and bound by the rule of law. In addition to teaching Duke Law students and undergraduates in Duke University’s Trinity College and in the Law School’s D.C. Summer Institute on Law and Policy, which he directs, Siegel teaches judges in Duke’s Master of Judicial Studies Program. A former Supreme Court clerk — as is Farber — Siegel served as special counsel to Sen. Christopher Coons during the U.S. Supreme Court confirmation hearing of Justice Brett Kavanaugh,

having earlier advised Coons during the confirmation hearing of Justice Neil M. Gorsuch. He also served as special counsel to then Sen. Joseph R. Biden during the Supreme Court confirmation hearings of Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. Siegel is a member of the American Law Institute and was elected to the Board of Directors of the American Constitution Society in December. Siegel’s book with Farber introduces a diverse group of readers — students of law and political science, scholars, teachers, and engaged citizens — to the prevailing theories and “modalities” of constitutional interpretation. Siegel and Farber also take them through general themes and critical doctrines of constitutional law. “Subsidiary nuances can more easily be understood once the overall pattern is clear,” they write. “[I]t is impossible to truly grasp constitutional controversies without understanding how institutions, political parties, and social movements, not just doctrinal logic, have shaped legal outcomes.” The authors explain each of the principal methods of constitutional interpretation and illustrate how each can “push an interpreter in different directions with respect to a particular constitutional question. Typically, however, interpreters invoke multiple modalities in support of a different interpretation, and they present them as mutually supporting, like strands in a rope.” Siegel and Farber undertake a methodical examination of major areas of Supreme Court doctrine that are covered in foundational constitutional law courses in law school. In doing so, they bring in insights and historical changes that are central to many constitutional development courses in political science. “Those insights,” Siegel said, “include the influence of both partisan politics and constitutional politics on judge-made constitutional law, as well as the significance of judicial ideology in accounting for judicial decision-making.” As for significant historical changes, he noted as examples “the movement from the Articles of Confederation to the Constitution, the Civil War, Reconstruction, industrialization, the Great Depression and the New Deal, the Civil Rights Movement, second-wave feminism, and the gun rights movement.” After showing how “the Court itself claimed ownership” of the authority to declare laws or presidential actions unconstitutional in the early 19th century and how it slowly expanded that authority

over time, Siegel and Farber devote several chapters to the expanse and limits of congressional power and the nuances of executive power. They then turn to matters of individual rights, including the state action doctrine, incorporation, economic liberty, and equality guarantees in the areas of race and gender. Their penultimate chapter tackles what they describe as “perhaps the most controversial area of current constitutional doctrine,” that related to modern substantive due process (including the rights to marriage, procreation, contraception, abortion, same-sex intimacy, and same-sex marriage). Siegel describes gay rights as encompassing “issues on which public views changed very rapidly in the early 21st century, as did Supreme Court doctrine, and not unrelatedly.” They end their book with a consideration of congressional power to enforce the Reconstruction Amendments, which is central to current debates and Supreme Court rulings relating to voting and electoral politics. The most notable recent such ruling is Shelby County v. Holder, the 2011 decision that struck down a key provision of the Voting Rights Act. This decision illustrates, they write, that “the struggle between advocates of states’ rights and advocates of national power remains ongoing, with implications both for federal power and for individual rights.” Their broader goal in writing the book, part of the publisher’s Concepts and Insights series, is to demonstrate “how constitutional law is neither entirely autonomous of political forces nor simply a passive reflection of them,” they write. “We do not know what the Constitution’s third century will bring in the way of doctrinal change,” they conclude, “but we are confident that this interaction between constitutional law and constitutional politics will continue.” d

“A mature and balanced understanding of constitutional law requires close attention both to the legal doctrine that is developed by the U.S. Supreme Court and to the ideas about the Constitution that circulate in constitutional politics.” — Professor Neil Siegel

Duke Law Magazine • Spring 2019

The Commons | Faculty Focus

“ Dying Constitutionalism”

Young finds a cautionary lesson for living constitutionalists in the 14th Amendment’s “bad years”

or Alston & Bird Professor Ernest Young, an invitation to deliver a distinguished lecture commemorating the sesquicentennial of the 14th Amendment to the U.S. Constitution was not a call to celebrate unequivocally the Amendment’s civil rights legacy. Instead, in his Boden Lecture at Marquette University Law School and now in a forthcoming Marquette Law Journal article, Young used the “dark valley” of the amendment’s early decades — when the promise of liberty and equality for black Americans crumbled amid a retrenchment of white supremacy — to highlight “downside risks” in the evolution of constitutional interpretation and advocate a measured, more incremental approach to change. Young, a noted authority on the constitutional law of federalism, has delved into questions of interpretive theory at intervals throughout his scholarly career. He is a self-identified conservative living constitutionalist; the theory posits that the document’s meaning can and should evolve over time, rather than being wholly determined by the original understanding of the text. But looking at the grim historical record of the 14th Amendment’s “bad years” through the lens of living constitutionalism’s multiple interpretive modalities illustrates how those methods undergirded regressive policies, practices, and judicial rulings that served “to undermine and narrow the Amendment’s commitment to black equality.”

20 Duke Law Magazine • Spring 2019

With the title of his article, “Dying Constitutionalism and the Fourteenth Amendment,” Young offers a contrast to the “dead,” static constitution expounded by the late Justice Antonin Scalia, a famous originalist. “By ‘dying,’ I mean that a constitutional principle can become less constraining, less binding, less vibrant, less meaningful over time through ordinary processes of evolutionary interpretation — all the mechanisms of living constitutionalism,” he said in an interview. “I think constitutional principles need to be stickier. The current debate about living constitutionalism doesn’t talk about the times when it has gone badly and moved the Constitution in ways most people would acknowledge to be the wrong direction.” But it’s impossible to just tell people to “be more incrementalist,” he added with a laugh. “I think the way you change the culture is to put the fear of God into people, by showing them examples of where the failure comes by making the Constitution too easy to change.” “There needs to be a sense of tragedy. You might very well believe, in any given instance, that it’s worth the risk to push ahead and haul up the anchor, but you certainly shouldn’t do it without a strong sense, based on our constitutional experience, for how quickly constitutional change can be used to move in bad directions.”

Finding “tragedy” in 14th Amendment’s early history Young argues in his article that after its 1868 ratification, it was too easy to change the 14th Amendment in ways that moved it into the path of tragedy and away from its core liberating purpose. For one thing, he writes, its language did not entrench existing rights but was designed “to force reform to achieve some desired future state.” The amendment thus depended on the political and judicial branches for implementation at a time when politicians, judges, and the broader populace alike lacked any preexisting or unifying vision for making the concept of equality before the law for black Americans a reality. At the time, they likely had not imagined that civil rights might also encompass such “social rights” as the right to belong to the same club or to go to the same school, Young said, or the extent to which political rights, separately

“I think constitutional principles need to be stickier. The current debate about living constitutionalism doesn’t talk about the times when it has gone badly and moved the Constitution in ways most people would acknowledge to be the wrong direction.” — Professor Ernest Young enshrined in the 15th Amendment, were essential to protect civil rights. “There was no consensus understanding about what to do when these categories that the amendment’s Framers thought were separate turned out to conflict,” he said. Because the original understanding was essentially open-ended on many points, “the evolving social and political context tended to press courts and other interpreters — consciously or unconsciously — to resolve these conflicts in line with contemporary social mores,” he said. Young details how the various methods of interpretation favored by living constitutionalists — “social movements, movements of public opinion, electoral and legislative politics, common law development” — facilitated the erosion, not the positive development, of civil, social, and political rights for black citizens. Any commitment to those principles, he writes, came into early and lasting conflict with “the residual racism and resistance to change of even the northern electorate,” and organized opposition from diverse constituencies: white supremacist Redeemers who controlled Southern state governments, labor unions fearing competition from black workers, anti-immigrant populists and progressives who “sympathized with Southern radicalism,” and frustrated women’s advocates who also sought equality under law. Young cites war-weariness and the urge for reconciliation between North and South as strong, albeit stealthy, forces against minority interests; not only did President Ulysses S. Grant quickly tire of sending troops to quell violent attacks on Southern blacks, but a resolution to the deadlocked 1876 election was secured through a promise to withdraw Union troops from the South, effectively ending Reconstruction. Another failure of political will can be found in Congress’s refusal to enforce the penalties outlined in Section 2 of the 14th Amendment for denying voting rights to black men, he said. The judiciary didn’t help, with the Supreme Court undercutting the 14th Amendment in 1883 by striking down the Civil Rights Act of 1875 in the consolidated Civil Rights Cases. While the statute had banned race discrimination in access to services offered to

the public, the Court held that Congress lacked authority to regulate the “private affairs” at issue when blacks were suing for access to hotels, theaters, and transit. While nothing in that ruling legitimated the state-mandated segregation of the Jim Crow system, the ruling seemed to ratify the political branches’ decision to bring Reconstruction to a close and portended a shift in the Court’s 14th Amendment jurisprudence to other issues, such as the freedom of business from economic regulation. “This is living constitutionalism in action,” Young writes. “… [T]he same mechanisms that living constitutionalists rely on to make constitutional meaning better and better over time … all took the Fourteenth Amendment further and further away from its noble aspirations during the first 75 years of its life.”

Changing interpretive culture to prevent backsliding Had its framers and interpreters viewed the 14th Amendment as locking in “not so much a particular view of social versus political versus civil rights, but just the basic proposition that they were enacting this amendment to liberate people,” Young maintains the backsliding that occurred would have likely been harder. That doesn’t mean, however, that he rejects evolution in constitutional meaning. “My point is simply that there is no necessary connection between living constitutionalism and moral progress,” he writes. “But I do suggest that we will get better results out of living constitutionalism if we spend more time worrying about the downside risks. “If we let the movement of history into interpretation — as opposed to history’s state at an originalist snapshot in time — then we let in the contingency that comes with it. What I am suggesting is that constitutional culture may be more important than constitutional method when it comes to hanging on to constitutional values. I think we need to change the culture of living constitutionalism if we are going to prevent future tragedies, like the dying constitutionalism of the Fourteenth Amendment’s lost years.” The cultural change Young proposes involves making living constitutionalism “a little less lively” by tying changes in constitutional meaning to “very sustained trends over time.” It’s an approach that has held an “almost dispositional” appeal for him since taking a deep dive into the political theory of Edmund Burke, first as an undergraduate and later as a law student; his third-year capstone paper at Harvard Law, “Rediscovering Conservativism: Burkean Political Theory and Constitutional Interpretation,” (72 North Carolina Law Review 619-724 (1994)) became his first published scholarly work. “My paper argued that a lot of the thought dominating legal conservativism in this country — originalism and bright-line rules over flexible standards — actually wasn’t particularly conservative from a Burkean standpoint,” said Young. He plans to develop ideas from that piece, along with “Dying Constitutionalism” and other works on interpretive theory, in a forthcoming book. Burke, he said, articulated a “positional conservativism” that promoted slow, incremental, yet constant reform over radical change. Although it can seem tempting to broaden the scope of the sources of constitutional meaning to make room for the Constitution over time, Young said that he learned from Burke “that things don’t always get better. Sometimes they get worse. “Society is really complex and really fragile, and the gains we have are hard won. If you start allowing for change you can go backwards as well as forwards.” The “stiff-necked” constitutionalism Young proposes might lack “the exciting potential for surprising and inspiring moral growth,” he concluded in “Dying Constitutionalism.” “But a stiffer, creakier, even grumpier constitutionalism might also make it harder to go from ratification of a Fourteenth Amendment committed to black equality to the Civil Rights Cases in 15 years, or from a Fifteenth Amendment committed to black suffrage to the abandonment of black voters to murderous white supremacist mobs in just five.” d

Duke Law Magazine • Spring 2019

The Commons | Faculty Focus

Faculty Notes Curtis Bradley, the William Van Alstyne Professor of Law and Professor of Public Policy Studies, served as reporter on the American Law Institute’s Restatement of the Law Fourth, The Foreign Relations Law of the United States, which was published in early November. The reporters on the Restatement (Fourth), the first since 1987, addressed three areas of foreign relations law: the domestic status of treaties, jurisdiction, and sovereign immunity. Bradley, a co-director of the Center for International and Comparative Law and co-editor-in-chief of the American Journal of International Law, worked primarily on the portions of the Restatement relating to treaties, which focus on a variety of issues, including the circumstances under which treaties are to be considered “self-executing” and thus directly enforceable by the courts and the circumstances under which presidents can act unilaterally in withdrawing the United States from treaties. The reporters’ work, which began in 2012, involved extensive research and drafting to describe and clarify the state of the law in this area and numerous meetings at which drafts of the sections were discussed and debated and then revised in light of the comments. All of the proposed sections were approved by the American Law Institute. d

Professors Richard Schmalbeck (below, left) and Lawrence Zelenak have published the fifth edition of their casebook, Federal Income Taxation (Aspen Publishers, 2018) (with Sarah B. Lawsky). Schmalbeck, the Simpson Thacher & Bartlett Professor of Law who teaches Federal Income Taxation and Nonprofit Organizations, has focused his recent scholarly work on issues involving nonprofit organizations, and the federal estate and gift taxes. He has also served as an advisor to the Russian Federation in connection with its tax-reform efforts. Zelenak, the Pamela B. Gann Professor of Law, teaches income tax, corporate tax, and a tax policy seminar. His publications include numerous articles on tax policy issues and a treatise on federal income taxation of individuals. d

Duke Law Magazine • Spring 2019

In February, Professor Doriane Lambelet Coleman testified before the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, in a case with broad implications for the participation of intersex and transgender athletes in women’s competitions. Coleman was one of five expert witnesses providing evidence in support of the International Association of Athletics Federations (IAAF), the world governing body for track and field, in an arbitration with South African runner Caster Semenya, who has naturally elevated levels of the hormone testosterone. Semenya, a two-time Olympic gold medalist, has challenged pending IAAF eligibility requirements that would require “athletes who identify as female but have testes, and testosterone levels in the male range, at least to drop their testosterone levels into the female range in order to compete at the elite level in the female classification.” Coleman is an expert in anti-doping rules who has practiced, taught, and written about sports law with a focus on the Olympic movement and eligibility issues. Her current work focuses on the differences between biological sex and gender identity and the implications of those differences for institutions ranging from elite sport to education and medicine. She is the author of “Sex in Sport,” 80 Law & Contemporary Problems 63-126 (2017), and has written recently on the topic for The Volokh Conspiracy and The New York Times. d

Clinical Professor Ryke Longest, who directs the Environmental Law and Policy Clinic, began a three-year term, in April, as chair of Scenic America’s board of directors. Scenic America is a national nonprofit dedicated to preserving and enhancing the visual character of the nation’s roadways, communities, and countryside through a combination of public and corporate education and policy initiatives. In addition to fostering citizen engagement by assisting in the formation of state and city affiliate organizations, Scenic America promotes and supports advocacy around such issues as billboard and sign control, scenic byway conservation, tree ordinances, context-sensitive road design, historic preservation, and installation of utilities and wireless telecommunication towers. Longest’s engagement with Scenic America began in 2012, when the Environmental Law and Policy Clinic represented Scenic North Carolina in its efforts to protect restrictions on billboards along highways in Durham. He joined the board of the national organization, which prioritizes combatting billboard construction along roadways, after the local case concluded in 2014. He is a co-author of Taking the Long View: A Proposal for Realizing America the Beautiful, a Scenic America white paper designed as a blueprint for the policy initiatives relating to the visual environment. Many of the recommendations, which include preserving community character, honoring parks and open spaces, celebrating gateways to iconic landscapes, and burying utility wires, also resonate with the goal of establishing livable, walkable communities, with public transit, places to sit, trashcans, and other amenities. d

Professors Arti Rai and Michael Frakes took part in the Federal Trade Commission’s (FTC) “Hearings Initiative” on Oct. 23 and 24. Held at the FTC’s Constitution Center facilities in Washington, D.C., the event, titled “Competition and Consumer Protection in the 21st Century,” examined the role of intellectual property in promoting innovation from academic, economic, and industry perspectives; examined emerging trends in patent quality, and litigation; and included the FTC’s first wide-scale exploration of copyright issues. The series of FTC hearings were designed to examine whether broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to the commission’s competition and consumer protection enforcement priorities, according to the commission’s website. Rai, the Elvin R. Latty Professor of Law and co-director of the Duke Law Center for Innovation Policy (CIP), spoke in the opening session, titled “An Overview of Innovation and IP Policy.” Rai focuses her current work on theoretical and empirical analyses of patent eligibility doctrine and on patent institutions, including the Patent Trial and Appeals Board created by the America Invents Act of 2011. She based her testimony, in part, on a recent CIP white paper titled “Righting the Research Imbalance.” Frakes, a scholar of health law and innovation policy who holds a secondary appointment in Duke University’s Economics Department, participated in a hearing titled “Economic Perspectives on Innovation and IP.” His empirical research in innovation policy centers on the relationship between the financing of the U.S. Patent and Trademark Office and key aspects of its decision-making. He also serves as a research associate at the National Bureau of Economic Research. d

Carolyn McAllaster, the Colin W. Brown Clinical Professor of Law and director of the HIV/AIDS Policy Clinic, received the NC AIDS Action Network’s 2018 Advocate of the Year Award on Nov. 16. The award is presented annually to an advocate who has made a meaningful and lasting impact in their advocacy on behalf of people living with HIV in North Carolina. McAllaster, who in 1996 founded Duke Law’s Health Justice Clinic (then known as the AIDS Legal Project), also serves as project director for the Southern HIV/AIDS Strategy Initiative (SASI), advocating for increased federal resources to stop the spread of HIV in the South, which has the highest rates of new infection and HIV-related deaths in the United States. She also engages in national and global policy advocacy. “Carolyn was a founding board member of NC AIDS Action Network and her work with SASI has helped inform a research base that has changed the way we talk about the importance of HIV treatment and prevention in the South,” said Lee Storrow, executive director of the NC AIDS Action Network. “She’s been a voice at the federal level for the needs of Southern states, and helped lead the way on a number of policy wins for our community, including modernizing the Housing Opportunities for Persons with AIDS funding formula, increasing federal funding to rural communities, and modernizing North Carolina’s HIV criminal law.” d

Duke Law Magazine • Spring 2019

The Commons | Faculty Focus

Remembering William Van Alstyne

Duke Law mourns passing of renowned scholar

illiam W. Van Alstyne, an eminent scholar of constitutional law who served on the Duke Law faculty from 1965 until his retirement in 2004, died on Jan. 29 at his home in Huntington Beach, Calif. He was 84. At Duke, Van Alstyne was the William R. and Thomas L. Perkins Professor Emeritus of Law. Through his scholarship, public testimony, and private advice to many congressional committees and members of the House and Senate, he was counted among the nation’s leading legal scholars, with particular expertise on the First Amendment. “Bill was an intellectual giant,” said A. Kenneth Pye Professor of Law Katharine Bartlett, who served as dean of the Law School from 2000 to 2007. “No one did more to elevate the reputation of this law school into one of the premier law schools of this country, and no one was more generous with his ideas or in transmitting to students respect for the rule of law.”

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Van Alstyne’s wide-ranging scholarship has been cited in a large number of judicial opinions including those of the Supreme Court. In January 2000, the Journal of Legal Studies named him among the top 40 most frequently cited legal scholars in the United States of the preceding half-century. He was twice selected in polls of federal judges, lawyers, and academics as one of three academics among “the 10 most qualified” persons in the country for appointment to the Supreme Court. He was elected into the American Academy of Arts and Sciences in 1994. “I have been a huge fan of his work since first reading his famous article on Marbury v. Madison in law school,” said Professor Curtis Bradley on receiving the distinguished Van Alstyne Professorship in 2012. “The rigor, independence of mind, and clarity of thought that are evident in his scholarship are all qualities that I deeply admire and hope to emulate in my own work.” The professorship was established in Van Alstyne’s

“Bill was an intellectual giant.” — Professor Katharine Bartlett

honor by Duke Law Board of Visitors member J. Michael Goodson ’66. Richard Horvitz ’78, who established the Program in Public Law at Duke in 1998, recalled Van Alstyne as “one of the most brilliant and intellectually honest” academics he has known. “An example was his 1994 article in the Duke Law Journal on the Second Amendment,” said Horvitz, a member of the Board of Visitors. “Although Bill personally wasn’t a big fan of guns, that personal preference did not affect the rigorous scholarship he brought to bear in his analysis of this issue. The same was true with respect to other politically charged issues. Not only did I lose a friend but the law community lost a highly principled, intellectual giant. Bill had a major influence on my passion to support the Program in Public Law.” After retiring from Duke, Van Alstyne joined the College of William and Mary’s Marshall-Wythe Law School as the Lee Professor of Law, teaching there until 2012. A native of Chico, Calif., Van Alstyne received his BA in philosophy, magna cum laude, from the University of Southern California and his JD from Stanford Law School, where he was articles and book review editor of the Stanford Law Review. Following his admission to the California Bar and brief service as deputy attorney general of California, he joined the Civil Rights Division of the U.S. Department of Justice, handling voting rights cases in the South. After active duty with the U.S. Air Force, Van Alstyne was appointed to the law faculty of the Ohio State University, advancing to full professor in three years. He was named to Duke’s Perkins Chair of Law in 1974. He also received a certificate from The Hague Academy of International Law and was honored with LLD degrees by Wake Forest University and the College of William & Mary. Van Alstyne served as a visiting faculty member on the law faculties of the University of Chicago, Stanford, California (Berkeley and UCLA), Pennsylvania, Michigan, and Illinois. He was also a Fulbright lecturer in Chile, a senior fellow at Yale Law School, and a faculty fellow at the Hague International Court of Justice. He appeared as counsel and as amicus curiae in constitutional litigation in the federal courts, including the Supreme Court, and in numerous hearings before Senate and House com-

mittees concerning such matters as the separation of powers, war powers, constitutional amendments, impeachments, civil rights and civil liberties, and nominations to the Supreme Court. Van Alstyne was past national president of the American Association of University Professors and a member of the national board of directors of the ACLU. Colleagues and former students have shared many fond memories of Van Alstyne. Calling him “my favorite colleague,” Charles L. B. Lowndes Professor Emeritus of Law William Reppy recalled their extensive travels including to Africa, where they climbed Mt. Kenya, and to the Caribbean, where Van Alstyne introduced Reppy and his wife, Juliann Tenney ’79, to another friend, Justice Ruth Bader Ginsburg. “And he was a great supporter of my academic career,” said Reppy. “Bill Van Alstyne in his heyday was — in the law school world — the most well-known member of the Duke Law faculty,” said James B. Duke Professor Emeritus of Law George Christie, who joined the faculty in 1967. “The lucky students who were able to take his limited enrollment course on the First Amendment came away with an unforgettable experience. For the Law School community as a whole, Bill will be remembered for his love of Corvettes, motorcycles, leather clothes, and his enjoyment of pipe-smoking. He was truly one of a kind. His friends will sorely miss him.” Clinical Professor Sean Andrussier ’92, director of the Appellate Litigation Clinic, was in Van Alstyne’s two-semester Constitutional Law class as a 1L, in his First Amendment seminar as a 3L, and served as a teaching assistant for the man many students called “V.A.” in between. They stayed in touch after Andrussier graduated. “V.A. inspired a love of the law and of ideas,” he said. “And he was a nurturing mentor. I likely couldn’t have accomplished some things I did were it not for his inspiration.” Van Alstyne is survived by his wife, Lan Cao, and their daughter, Harlan Van Cao. He is survived by three children, Marshall, Allyn, and Lisa Van Alstyne, from his marriage to Carol Frances, and two grandchildren. Also surviving is his former wife, Pamela Gann ’73, who served as dean of Duke Law from 1988 to 1999. d

Duke Law Magazine • Spring 2019

THE TECH ISSUE At Duke Law, we believe lawyers should be leaders in the ethical development of technology and in guiding clients through the legal fallout when it goes awry. In this section, read how members of the Duke Law community are leading in an ever-evolving and interconnected world.

26 Duke Law Magazine â&#x20AC;˘ Spring 2019

ON EMERGING TECH

Training lawyers to lead the way

with a focus on ethics and interdisciplinary engagement

by Frances Presma ILLUSTRatIONS by Martín Elfman

n a Wednesday afternoon in late January, Associate Clinical Professor Jeff Ward is leading 30 students in his Frontier AI & Robotics course in a wide-ranging discussion of automated vehicles, or AVs. They start by considering the technological state-of-play: the radar, LiDAR, mapping software, cameras, and other data-recording devices that signal aspirations toward fully automated vehicles and that already allow even modest new cars to include a vast array of automated features. Based on engineering and psychology insights into human-robotic interaction, the class probes the ways that partial automation may cause safety issues. Ward JD/LLM ’09 then shares aspects of the National Highway Traffic Safety Administration guidelines on AVs and offers an overview of the numerous federal, state, and local regulatory bodies that set safety and certification standards for vehicles, drivers, and roads. The students, 20 from Duke Law and 10 from such disciplines as neuroscience, engineering, and public policy, discuss questions raised by the technology — what data, for instance, is being collected and how might it be used or abused? — as well as the strengths and potential weaknesses of the various legislatures, agencies, and courts charged with overseeing AVs, and the human driving challenges that might be helped or hindered by automation. As they break into small groups to reflect on what Ward calls the “socio-tech framework” for autonomous vehicles, he reminds them to keep a series of overarching questions in Duke Law Magazine • Spring 2019

RESEARCH NOTES

Associate Clinical Professor Jeff Ward JD/LLM ’09 posits that public health offers inspiration for policy approaches to combat the social and legal harms threatened by the digital generation of disinformation. Ward, director of the Duke Center on Law & Technology and the Law School’s associate dean for technology and innovation, examined some of the social and legal challenges posed by advances in artificial intelligence — specifically generative adversarial networks (GANS) — in a November talk at Stanford University’s CodeX Center. Demonstrating how “generative” systems replicate data to create digital artifacts (photos, speeches, or videos, for example) to try to fool “discriminative” systems designed to guess whether the creations are real or fake, Ward observed that the systems are becoming both increasingly expert and autonomous at their tasks. And increasingly sophisticated “deep fakes,” can have very real consequences: pornographic videos can be created or electoral candidates can be depicted making racist comments from snippets of an individual’s voice and photos pulled from a social media account; automated tweets from bots can generate and spread false statistics relating to vaccination harms; and GANs-generated evidence can find its way into court proceedings. “What happens when you supercharge the data — the fakes — such that it’s harder and harder for even a sophisticated audience to determine whether it’s real or fake,” asks Ward, who also cautioned judges to be alert to deep fakes in court in a recent Judicature essay. “This is the most frightening thing to me — that it undermines our ability to believe in anything, in any context.” A deep fake’s source uncertainty, coupled with free speech protections, makes traditional legal and regulatory approaches that focus on punishing or controlling their sources and intermediaries insufficient, he said, pointing to a promising approach in the way public health campaigns focus on intermediaries and receptors to fight the spread of infectious diseases. “How do we combat the flu? Our first response are flu shots and vaccines.” He likened disinformation to influenza: “Receptors are important.” A public health approach would include trying to raise awareness and understanding of the threat at hand, as well as the approach and intervention, and build structures for organized action, Ward said. In the case of threats posed by GANs, the focus might shift from just regulating industry to educating community stewards and influencers. It would build upon liability regimes to include coping strategies for building systemic resilience to the problem. “I have faith in the ability of people — the receptors — to be an important part of the defense to disinformation,” Ward said. d

28 Duke Law Magazine • Spring 2019

THE TECH ISSUE

“ At a time when technology is offering so much potential, lawyers have to ask not what technology can do but what it can do to help people and communities to flourish.” — Jeff Ward JD/LLM ’09 mind: What are the goals of the emerging technology? What should be the roles of the various actors involved, such as those in government, industry, and consumers? Do the technological innovations fit within the existing regulatory framework, or are changes or new rules needed? And what specific policy and legal tools, such as liability regimes, should be used in regulation? Foundational to Ward’s course design is his belief that machines run by evolving systems of artificial intelligence (AI) and other frontier technologies must develop in ways that protect human well-being and societal values and that, properly deployed, law and policy can further those goals without impeding innovation. The key to making that happen is reflected, in part, in his students’ varied academic paths: His class brings future lawyers together with future policymakers, technologists, and scientists to collaborate on working through the issues. Lawyers can’t sit on the sidelines acting solely as counselors and risk managers as transformative and disruptive technologies develop, says Ward, who directs the Duke Center on Law & Technology (DCLT) and was appointed in late December as the Law School’s inaugural associate dean for technology and innovation by Kerry Abrams, the James B. Duke and Benjamin N. Duke Dean of the School of Law. His goal: to empower and enable Duke Law graduates not only to participate in conversations about bringing emerging technology to its highest and best use, but to lead them. “Lawyers can and should be leaders in this sphere,” he says. “They should be the visionaries who help us identify both social norms and ways of steering these technologies accordingly.” And they should be bringing other social thinkers into the conversations, adds Ward, who focuses much of his current research and writing on the implications of advanced AI systems that can autonomously generate highly realistic digital artifacts, or deep fakes. (See sidebar at left.) “We can’t cede technological development to the technologists. Even more than that, we need to offer something that makes the technologists want us to be part of the conversations.” Institutionally, it’s an approach that begins with The , run by the Duke Center the firm grounding in law on Law & Technology, is a light-touch, remote pre-acand ethics, as well as in celerator program for early-stage legal-tech companies. legal analysis, research, Entrepreneurs are connected to mentors and after and writing (including developing their businesses over a series of months, courses in legal technolthey present their innovations at an annual Demo Day, ogy), that characterize competing for cash prizes. The winner at Demo Day a Duke Law education. 2018: Hello Divorce, a service that assists divorcing Ward’s courses on artifiCalifornia couples to manage the process online. This cial intelligence, robotics, year’s Duke Law Tech Lab will expand to include both and blockchain law and a traditional market track and additional resources policy are just part of a for companies whose missions prioritize access to robust program in innovalegal services. tion and entrepreneurship that includes the three-

PROGRAM NOTES

Ward: Mining public health strategies to inoculate against damage from “deep fakes”

Duke Law Tech Lab

RESEARCH NOTES

PROGRAM NOTES

year dual JD/LLM in Law and Entrepreneurship and the corresponding one-year LLM for graduate lawyers. Clinical options like the Start-Up Ventures Clinic and the Community Enterprise Clinic, and research centers such as DCLT, the Center for Innovation Policy, the Global Financial Markets Center, the Center on Law, Ethics and National Security, the Center for the Study of the Public Domain, and the Bolch Judicial Institute, offer multiple opportunities for students to engage directly with technological and legal innovators and decisionmakers. And an increasing number of law students are taking part in campus-wide interdisbrought together ciplinary research projects teams of law students from Duke, UNC, and Wake focused on emerging techForest at Duke’s I & E Bullpen in downtown Durham on nology through Duke’s Oct. 18 to create custom analytics for AI contract analScience & Society and ysis. A team from Seal Software, led by Chief Strategy Bass Connections initiaOfficer Jim Wagner ’93, a pioneering entrepreneur in tives and such programs the field of legal technology, provided the AI tools, as Rethinking Regulation sample contracts, and hands-on training and support. at the Kenan Institute In a timed competition, students used the Seal tools to for Ethics. analyze 2,500 contracts for indemnification obligations, Ward sees cultivating liability caps, cyber insurance requirements, and data an attitude of engagement breach notifications requirements. (UNC won.) The towards emerging techDuke Center on Law & Technology, Duke’s Law & Tech nology as more important Society, and Seal Software co-sponsored the showdown. than having an aptitude for any particular application. Lawyer-leaders, he says, engage in interdisciplinary dialogue and investigation, stay vigilant about emerging trends in tech and understand what aspects of law, policy, and regulation apply, imagine a nascent technology’s promise as well as understand its capacity for misuse, and are willing to critique and rethink traditional approaches to regulation and governance while keeping societal needs and values paramount. Says Ward, “In crafting creative solutions to any problem, our mindset is to keep the human at the center. At a time when technology is offering so much potential, lawyers have to ask not what technology can do but what it can do to help people and communities to flourish.”

The Legal AI Showdown

Developing a “symbiotic relationship” with technology

Professor of Law and Philosophy Nita Farahany ’04, PhD ’06, is dedicated to cultivating that mindset in students, both through her research and teaching at the Law School and leadership of the Duke Science & Society initiative, which she founded in 2013. She forged her own interdisciplinary path as a Duke student seeking to gain an educational grounding in law, philosophy, and science that would inform her understanding of the implications of scientific discoveries and emerging technology. “Now I try to create those same opportunities for students,” says Farahany, a leading scholar on the ethical, legal, and social implications of emerging technologies and chair of the Duke MA in bioethics and science policy. (See sidebar at right.) Technical literacy is already a skill that good lawyers must have, Farahany says, but the many interdisciplinary curricular and investigative opportunities at Duke can help students learn to go deeper to forecast what technological and scientific advances mean for society and communicate with experts from different areas to ensure they proceed ethically. “It’s rarely, if ever, about stopping a technology or saying this is ethically impossible,” she says. “Instead, it’s figuring out if there is a way for society to be an active partner in helping to shape the direction and applications of the technology

Farahany: Carving out protections for mental privacy

Professor Nita Farahany ’04, PhD ’06 proposes the addition of a right to cognitive liberty as a basic human right in order to protect individual freedom of thought, access, and control over our own brains and our mental privacy. Speaking on a TED stage beside an EEG image of her own brain activity in a “relaxed and curious” state, captured by an early consumer-based monitor she wore on her head, Farahany, a professor of law and philosophy and director of Duke Science & Society and the MA in bioethics and science policy, noted the ability of such devices already to reliably gauge mood and, with the help of artificial intelligence, decode simple numbers, shapes, or words a person is thinking, hearing, or seeing. While the future, she predicted, involves transformative brain transparency that could challenge everything from the definition of data privacy to laws and ideas about freedom, her research indicates that people don’t fully understand or even believe the implications of quickly evolving brain-decoding technology. In such a world, she asked, “Who would dare have a politically dissident thought or a creative one? “I worry about the ability of our laws to keep up with technological change,” she said. “Can the NSA spy on our brains using these new mobile devices? Can the companies that collect the brain data through their applications sell this information to third parties? Right now, no laws prevent them from doing so.” And the situation could be particularly problematic in authoritarian countries, she added. Calling attempts to protect privacy by restricting the flow of information “a losing battle,” Farahany suggested working to secure rights and remedies against the misuse of information: “If people had the right to decide how their information was shared and, more importantly, had legal redress if their information was used against them, say, to discriminate against them in an employment setting or in health care or education, this would go a long way toward building trust.” Special protections for mental privacy “would secure for us our freedom of thought and rumination, our freedom of self-determination,” she said. “The time has come for us to call for a cognitive liberty revolution to make sure that we responsibly advance technology that could enable us to embrace the future while fiercely protecting all of us from any person, company, or government that attempts to unlawfully access or alter our innermost lives.” d

Duke Law Magazine • Spring 2019

RESEARCH NOTES

In an essay that appeared Nov. 1 in the New England Journal of Medicine, Professor Barak Richman offers several examples of promising emerging technologies that can improve health care delivery: an iPhone feature that facilitates patient access to medical records, a wearable device for monitoring vital signs and detecting the onset of illness, and artificial-intelligence algorithms that help patients stick to their care plans. But, he noted, a major obstacle for these and other tech-assisted diagnostic and therapeutic tools is that they will meet resistance from traditional health care regulations. “As new products and systems emerge, the health policy community faces a basic question: If these technologies are at odds with current regulations, does that reveal a shortcoming in the technologies or a shortcoming in the law? Does it make sense that Alexa can remind me when I need to purchase more cereal, but not when I need to take my insulin?” The problem, writes Richman, the Edgar P. and Elizabeth C. Bartlett Professor of Law and Professor of Business Administration, stems from a mismatch: Current regulations were designed for a system that posits health care services being delivered by a (human) doctor to a patient in person, while in the digital age, algorithms, artificial intelligence, massive data-storage systems, and multiple telecommunications devices all come into play. “Of course, digital health care interventions and services must meet acceptable quality standards,” he writes, noting the role of regulators at the Food and Drug Administration, which oversees devices, and the Centers for Medicare and Medicaid Services, which regulates electronic health systems. “But assessing them effectively will mean discarding traditional guidelines and inherited legal categories, instead recognizing the needs they aim to meet, the realistic dangers they introduce, and the new models of care they offer.” Among other areas where Richman spots a mismatch: the fee-for-service payment model that places providers at the core of health care delivery, whereas mobile technology makes the patient the primary point of contact; the medical malpractice regime that focuses on physician failure as opposed to algorithmic or systemic inadequacy; and state board licensure for the practice of medicine when “the hallmark of digital medicine is the blurring of boundaries between providers and products.” New technologies, he writes, “are stretching health care regulatory categories beyond recognition. A better approach might be to change the law to meet the needs of the public and the industry, rather than the other way around. … [I]f the law is used with foresight, it can help enable Americans to benefit from the promise of new digital technologies.” d

30 Duke Law Magazine • Spring 2019

THE TECH ISSUE and research that occurs in ways appropriate to all subjects and stakeholders who might be involved. “I think the most important roles going forward are for effective leaders who can serve as the bridges between spotting the connections and helping people to see the connections.” Farahany stresses the importance of early engagement with new technology, pointing out that she spends significant amounts of time reading scientific journals. That’s how she recently learned of a study aimed at erasing the memory of cocaine use in rats through the use of a neural simulation technique called optogenetics. The study could hold promise for addiction treatment if, in fact, pleasurable memories of being high could be reduced or eliminated, she says. “Obviously this memory study in rats has possible implications for human research on memory modification. And memory modification has huge implications for law — we deal with witness memories all the time. We deal with individuals who have traumatic memories of past experiences and award damages in tort law to compensate for that trauma.” Farahany fires off a list of questions that the technology could raise: What does it mean to be able to modify memory? Should it be allowed at all? How would the law regard a witness whose memory was modified? What does it mean for an addict charged with drug possession who might be treated through memory modification? “That’s the kind of work you have to do to build effective bridges,” she says, noting that the researcher doing the study on rats isn’t thinking about the implications for law, and law students, legal scholars, and judges usually aren’t reading scientific journals about rat studies. “If you wait until the technology is fully here, we’re already behind as people seek to implement it, and apply it in ways that may have negative ethical or legal implications for society,” Farahany says. “So we aim to inspire in students a curiosity to engage early in technological and scientific development and couple it with a depth of knowledge that allows them to identify new advances and think creatively about the science-fiction version of how these might unfold or be applied.” At the same time, thinking critically is also essential, says Farahany, who is the principal investigator of SLAPLAB (Science, Law & Policy Lab), with research projects focused on fashioning a right to likeness for non-celebrities and contemplating what misuse of an ordinary person’s likeness might mean, how claims by young adult defendants rooted in developing brain theory are faring in courts, and public attitudes towards AI decision-making in different contexts. She warns against assuming that “every new thing” is a breakthrough, emphasizing the importance of replication in science. “And even if it works in the lab, can it work in another context?” Farahany asks. “You have to be very wary of misapplication.” That is particularly true in criminal proceedings when an individual’s life or liberty may be at stake, she says. “The earlier you can immerse yourself in a technology and understand both its promises and its limitations, the more effective you can be as a law student or a lawyer in guiding judges and others in deciding whether it should be admitted in court or applied for forensic purposes, or as a sentence if, for instance, someday a

PROGRAM NOTES

Richman: Correcting mismatches in health regulation in the digital age

Duke Law By Design

DCLT’s integrates design thinking processes into academic courses and campus and community workshops. One component of these efforts, the Access Tech Tools Initiative, embeds human-centered tech-development projects in Duke Legal Clinics that aim expressly at expanding access to legal services and increasing efficiency at the Law School. Tools have included automated document formation to assist low-wealth entrepreneurs, machine learning-driven research to assist environmental advocacy, and expert systems to assist with applications for SSI and SSDI benefits.

RESEARCH NOTES

“ I think the most important roles going forward are for effective leaders who can serve as the bridges between spotting the connections and helping people to see the connections.” — Nita Farahany ’04, PhD ’06

pedophile could have pleasurable memories of being a pedophile eliminated. Even if those possibilities are decades away, you need them on your radar. “We have to train our students to understand what technology is out there, how to learn about new technologies that may not be out there yet but will be, and how to develop a symbiotic relationship with technology to enable them to be lawyers of the future.”

Assessing and expanding the regulatory toolbox PROGRAM NOTES

To nurture disruptive advances and ensure they provide the maximum benefit to society will require a rigorous and forward-thinking approach to regulation. The (CIP) at Indeed, assessing the Duke Law is a forum for independent analysis and balapplicability of regulatory anced discussion of policies for promoting technologmeasures to emerging ical innovation that enhances long-term social welfare. technologies and altering The center brings together technology and business or expanding them as leaders, government officials, lawyers, and academics to required is the primary identify improvements in legal frameworks and policies purview of lawyers and an that directly affect innovation. These include intellectual ever-growing focus of facproperty, other R&D incentives, as well as industry-speulty research and teaching. cific regulation in life sciences, information, and comSays Farahany: “Any munications. A recent CIP white paper, titled “Righting time you’re asking about the Research Imbalance,” builds on presentations made regulation of technoloat one of the center’s conferences in examining the gy, you’re asking, really, decline and effects of reductions of public funding for what’s the right balance the physical sciences and engineering and discusses between progress, ethical what corrective steps are needed. progress, innovation, and

Center for Innovation Policy

Rai: Identifying policy approaches to support AI innovation and improved health care decision-making

Elvin R. Latty Professor of Law Arti Rai, who co-directs the Duke Center for Innovation Policy, and colleagues at the Duke University’s Robert J. Margolis, MD, Center for Health Policy (Duke-Margolis Center) are studying an emerging problem in artificial intelligence (AI)-enabled health care delivery: the tension between the need for “explainability” of treatment rationales versus the need to protect trade secrets in the burgeoning area of clinical decision support software innovation (CDSS). Health care professionals’ duty to promote patient welfare includes basing decisions on sound and explainable rationales. Institutional providers, federal regulators, and payors also need information relevant to explainability. But certain types of detailed explanations could potentially facilitate reproduction and in that way, compromise trade secrets, a key incentive for innovation in the field. Rai, an internationally recognized expert in intellectual property law, innovation policy, administrative law, and health law, said the project is the first of its kind to tie explainability issues to quantitative data on current needs for trade secrecy by commercial actors. “While software development has always involved trade secrecy, the importance of trade secrecy as an innovation incentive may have increased as a consequence of challenges associated with securing and enforcing software patents,” she said. “For this reason, the principal regulator of AI-based software in health care, the FDA, as well as professional organizations, providers, and insurers are actively interested in the question of how to balance explainability and trade secrecy.” Rai is a principal investigator on the project, which is funded by a $196,000 “Making a Difference” grant from The Greenwall Foundation. Rai had previously co-authored a white paper with Gregory Daniel, PhD, MPH, deputy director, policy and clinical professor at the Duke-Margolis Center and Christina Silcox, PhD, a managing associate at the center. That prior paper serves as a background document on the legal and regulatory landscape surrounding AI-based CDSS. The current project, which will gather information through private workshops, public conferences, and databases of patents and venture capital funding, will produce peer-reviewed journal articles as well as white papers. d

Duke Law Magazine • Spring 2019

RESEARCH NOTES

“Regulation is typically a one-time, yes-no decision, but the world changes, so regulation needs to learn and adapt,” says Jonathan Wiener, the Perkins Professor of Law, Professor of Public Policy, and Professor of Environmental Policy. Last year, he co-led an interdisciplinary Duke Bass Connections project on developing model regulatory design to address automated vehicles. Students in the project, titled Governance and Adaptive Regulation of Transformational Technologies in Transportation, explored different policy instruments and the evolving landscape of relevant risks — ordinary car accidents as well as network failures or hackers — before proposing a regulatory framework. Their final reports included a proposal to the N.C. Department of Transportation for testing self-driving trucks. “We’re going to learn more in the future about how automated vehicles interact with human drivers, how well their on-board sensors detect obstacles, how vehicle-to-vehicle and vehicle-to-infrastructure communication can help avoid accidents, and how people and pedestrians react,” says Wiener, co-director of both the Rethinking Regulation program at Duke University’s Kenan Institute for Ethics and the new Duke Center on Risk at Duke Science & Society. He worked with Lori Bennear, the Juli Plant Grainger Associate Professor of Energy Economics and Policy at the Nicholas School of the Environment, on the Bass Connections project, and they are writing a paper on a framework for adaptive regulation. “So automated vehicles are a good example of new technology for which an adaptive approach that can take into account learning over time may be needed.” “Adaptive licensing” is one policy instrument Wiener and his colleagues introduced to their Bass Connections students and are examining in their scholarship, taking note of its advantages and possible limitations. “Instead of just saying ‘yes’ or ‘no’ to automated vehicles for everyone, regulators might say, ‘Automated vehicles should be licensed first for the drivers who would benefit most from them,’” says Wiener. “Those might be the least experienced drivers, or those unable to drive, or those who have the worst accident records. And as technology improves and as we learn from those first sub-populations to improve the vehicles and networks, then their use could be expanded.” The concept is neither simple nor straightforward, he says, given the many gradations of automated technology that range from lane assist and automatic braking to completely self-driving cars. Moreover, “emergencies may come up quickly, and the human, having relied on the algorithm, may not be attentive or skilled to take over quickly,” he says. “Those kinds of human-machine interactions present a challenge to the partial or gradual introduction of the new technology that we are going to learn a lot about. And fully automated vehicles and a full fleet of automated vehicles networked with each other, may be safer than a mixed fleet in most conditions, and use less energy with less pollution — but may also pose a rare risk of system-wide failure due to glitch or hacking. We need to study these kinds of potential risk-risk tradeoffs.” d

Duke Law Magazine • Spring 2019

THE TECH ISSUE

“ [I]f you think about laws creatively and dynamically, then you will have an eye for what the technological and economic needs are as opposed to just thinking about the law as an inflexible ‘black-letter’ framework that you have to apply.” — Barak Richman

PROGRAM NOTES

Wiener: Applying adaptive regulation to the case of automated vehicles

J. Michael Goodson Law Library

The includes a team of academic technologists and legal reference librarians who bring research technology into Legal Analysis, Research, and Writing courses. One continually evolving course taught by library administrators introduces students to law office technology and covers privacy and security, practice management, electronic discovery, advanced research techniques and media literacy, courtroom technology and presentation, and ethical issues arising from technology use. The library, which includes a Tech Hub, also has a statistician (with a JD) on staff who consults with faculty on all facets of empirical research and teaches an upper-level seminar on empirical research methods in law.

social welfare more generally? You don’t want to overregulate to impede progress. You don’t want a ‘let’er-rip’ model where technology is allowed to develop without any oversight.” And oversight of AI-based technologies that may be used to predict such high-stakes matters as the likelihood of an inmate up for parole to reoffend or which cancer drugs will most effectively shrink a tumor or which vehicular safety measures are needed in dangerous driving conditions demands a level of operational transparency that doesn’t eliminate trade secrecy as an incentive for innovation, she says. (See sidebar, page 31.) “The challenge is, then, to find the right balance between encouraging progress and balancing that against some of the concerns that can arise.” Professor Barak Richman, a scholar of health care policy, antitrust, and institutional economics, says the solution to assessing and expanding the regulatory toolbox involves, in part, a renewed commitment to legal creativity. Lawyers, says Richman, the Edgar P. and Elizabeth C. Bartlett Professor of Law and Professor of Business Administration, need to draw lessons from the team approach tech and other industries apply to research and development: “You want a legal ‘R & D’ team that thinks about the laws and regulations that need updating. Maybe some are being misapplied or applied over-broadly. But if you think about laws creatively and dynamically, then you will have an eye for what the technological and economic needs are as opposed to just thinking about the law as an inflexible ‘black-letter’ framework that you have to apply.” Avoiding “regulatory ossification” isn’t just about motivating Congress, says Richman, who has been examining the capacity of the regulatory framework to address the provision of health care services in his scholarship — and finding it lacking (see page 30). “It’s about thinking of what

RESEARCH NOTES

flexibility current regulations have, how certain rules can be revisited, and how certain agencies can be engaged.” Richman regularly teaches a mix of law and business students in his health care policy course. “That makes the experience more akin to having lawyers in the C-suite, as opposed to having them cordoned off in the legal department,” he says. “It allows lawyers to think entrepreneurially like business students do. And it encourages the business students to understand how valuable a legal strategy can be to overall corporate strategy.” Richman’s goal is to encourage his students to think about the law in a prospective way and not just a categorical, rigid, retrospective way. “I start with the fact that we have a health care system that has some very serious problems,” says Richman. “Let’s understand what those are, then look at these major areas of law and think about how they might mitigate problems or how they might exacerbate problems. You need to be problem-solving, you need to be interdisciplinary, you need to think across traditional categories. “It’s not just a better way to be a lawyer, but it also shows how much value creative and smart lawyering can bring to these areas of technology,” he says. “If we can re-conceptualize the way current law should be applied, and it’s different from the way current law is being applied, then we can be as necessary a part of the creative process as the engineers or software developers.”

Fintech, bitcoin, blockchain, and beyond

PROGRAM NOTES

In his Fintech Law and Policy course, Lecturing Fellow Lee Reiners frequently addresses regulatory challenges facing the financial services industry, which has been substantially transformed by the entry of tech-enabled non-traditional players over the past decade. “In finance, technology is being used in radically new ways,” says Reiners, executive director of the Global Financial Markets Center (GFMC). “Someone can now start a business offering loans to small businesses with nothing but a laptop.” The banking industry is heavily regulated, Reiners points out, and whether they are advising an established fintech client or working in-house with a start-up, Duke Law graduates will be relied upon to steer clients through choppy waters. Reiners aims to give them the knowledge and skills to navigate both scenarios. Examining the use of technology in such services as lending and payments, wealthmanagement, and account aggregation, as well as cryptocurrencies enabled by blockchain technology, he asks his students to think through how they fit within existing regulatory structures and, if it’s unclear, what policy changes may be needed. “One of the things students come away with from my course, is an understanding of how fragmented the U.S. financial regulatory structure is,” he says. “We have an alphabet soup of regulators that have different opinions and approaches to new technology. What does that mean for the development of fintech? From a young lawyer’s standpoint, it represents a great opportunity.” Many of his students,

Center on Law, Ethics and National Security

Duke’s ’s 24th annual conference included panels focused on current and emerging issues relating to cybersecurity, cyberwarfare, data privacy, and the use of autonomous weapons. The conference opened on March 1 with a keynote address on near-term security threats by Craig Silliman, executive vice president and general counsel for Verizon Corp. He expressed concern that Chinese tech giants Huawei and ZTE could eventually drive the entire global wireless network if other companies fail to invest in the requisite research and development to allow them to compete. “This is the point where industrial policy is national security and national security is industrial policy,” he said. “And if you wait until that scenario happens, it’s too late.”

Cadmus: Facilitating open access to legal scholarship and information Last year’s Fastcase 50, an annual list recognizing entrepreneurs and innovators in law and legal technology, included just one law school librarian: Femi Cadmus, who joined the Duke Law faculty in November as the Archibald C. and Frances Fulk Rufty Research Professor of Law, associate dean of Information Services and Technology, and director of the Michael J. Goodson Law Library. Cadmus, who was recognized for her efforts to promote open access to legal scholarship, is a longstanding leader in using digital technology to deliver information in innovative ways. In 2017, while serving as Cornell University’s Edward Cornell Law Librarian, associate dean for Library Services and professor of the practice of law, Cadmus helped launch LawArXiv, a free open-access legal repository owned and maintained by members of the scholarly legal community as a partnership between Cornell’s library and those at four other institutions. Also under Cadmus’s leadership, the Cornell law library joined with Yale and the International Labor Organization to develop Global Online Access to Legal Information, or GOALI, to provide free or low cost online access training and law-related academic and professional content available to eligible institutions in more than 115 low- and middle-income countries. Many of the academic and professional peer-reviewed journals, publications, and databases from leading academic publishers covered by GOALI would otherwise be hidden behind paywalls, Cadmus said. The broader aim of the GOALI initiative is to strengthen legal frameworks and institutions and further the rule of law in developing nations through improved legal research and education. Cadmus, who currently serves as president of the American Association of Law Libraries (AALL) and has explored the impact of technology on law libraries, law librarianship, and legal instruction in her scholarship, also was instrumental in the development of Cornell’s Legal Research Clinic, in which upper-level students work under the supervision of attorney-instructors to complete research requests from nonprofit organizations and entrepreneurs, individuals, and legal services providers in the community. Discussing the biggest challenges in law librarianship in the November/December 2018 issue of the AALL Spectrum, Cadmus observed that technological disruption presents the opportunity for legal information professionals to update and upgrade traditional skills and expertise or risk becoming obsolete and irrelevant. Her advice: “Stay relevant, be willing to be flexible, responsive, and update your skills. Law librarians are here to advocate for the profession, to give stakeholders the tools that they need to advocate for themselves, and to respond to their needs.” d

Duke Law Magazine • Spring 2019

THE TECH ISSUE

PROGRAM NOTES

International Legal Tech Summit

The on Oct. 3 featured presentations from six companies with legal technology products at various stages of development: Alexsei (Canada), Athennian (Canada), Nikka Builder (U.S.), Legalicity (Canada), Vaultedge (India), and OneLegem (Argentina), a legal services company launched by Matias Avila Nores LLM ’02. The event was sponsored by the Duke Center on Law & Technology, Duke Law Career Center, Duke Law International Studies, and Lawyers Mutual Liability Insurance Company of North Carolina.

34 Duke Law Magazine • Spring 2019

its promise for democratizing access to resources and proThe Bolch Judicial Institute at Duke Law moting civic participation. It fosters programs and scholarship that improve remains nascent, says Ward, the law through technology and educate the who is fond of categorizing judiciary and legal profession on the promise technological advancements and challenges of technology in the law. Specific as being either “here,” “near” initiatives include EDRM, a community of e-dis— the category in which he covery and legal professionals who create practical places most blockchains — or resources to improve e-discovery and information “oh-my-dear,” referring to governance, and the institute’s partnership with the stuff of hair-raising scithe Federal Judicial Center on a June conference ence fiction. for judges that will focus on artificial intelligence, “Blockchain causes some cybersecurity and other technology-related matchallenges as an omni-use ters. This summer, Professor Nita Farahany will technology,” he says. “Almost also lead judges enrolled in the Master of Judicial every single characteristic of Studies program in an examination of cutting-edge blockchain can be both good legal and policy issues arising from new discoverand bad. For example, its ies in genetics and neuroscience. partial anonymity might offer women financial autonomy in systems where banking is disallowed for them while concurrently obscuring the fundraising activities of terrorist groups and impeding the ability of financial intelligence units to do their jobs.” The challenge, he says, is to recognize and facilitate development of the technology’s promise while also mitigating its potential harms. “That’s not just a legal or policy task, but a legal, policy, technical, and cultural task. You have to have all sorts of pressures on the system. “If we acknowledge the fact that our current regulatory system is always going to have to be adapting, how can we build tools to anticipate where something might go? We have to recognize the technological potential and apply creativity and imagination to scope out all of its possible uses and consequences. No technology is neutral in its social impact.”

PROGRAM NOTES

in fact, find themselves being the first to apply legal research and analysis to fintech-related topics in their term papers. The regulatory “soup” applicable to cryptocurrency like bitcoin is particularly messy, Reiners explains, with the Commodity Futures Trading Commission (CFTC) classifying it as a commodity, the IRS treating it as property, and most states considering it to be money, which means that cryptocurrency firms must register as money transmitters in each state they wish to operate in. The Treasury Department’s Financial Crimes Enforcement Network (FinCEN), which is responsible for combatting money laundering and terrorist financing, also considers cryptocurrency to be money, meaning cryptocurrency firms are required to flag suspicious transactions and file the relevant reports with FinCEN. In articles on the GFMC’s FinReg Blog (see page 35) and in his online course on the Coursera platform, Reiners has addressed the way cryptocurrencies have entered the mainstream since bitcoin and its underlying technology, blockchain, were unveiled in an October 2008 white paper. “There are now over 2,000 cryptocurrencies and they’ve spawned an entirely new way for companies to raise money, with blockchain being utilized across multiple industries,” he says. “Mainstream financial institutions are now getting involved. It’s hard to point to something that’s had that big of an impact in such a short period of time.” The underlying purpose of blockchain — to keep an immutable and secure ledger of transactions that is not controlled by any one entity — has the potential to be transformative in ways beyond cryptocurrency, Reiners says. “It could change the way society operates, pushing aside centralized institutions and facilitating a reclamation of control over our information, our privacy, and our security.” In addition to examining blockchain’s disruptive potential for financial and other intermediaries in his Blockchain Law and Policy Lab, Ward also considers

Ethical tech: Human needs are paramount

During the Law School’s Wintersession in early January, Ward and Richman teamed up to teach a course titled Designing Creative Legal Solutions, premised on the importance of bringing people with a range of perspectives together and looking beyond traditional boundaries to solve complex legal and social problems. Both use variations of this “design thinking” technique in their broader teaching. During their course, they teamed students with local housing and public health officials, the chair of the Durham County Commission, a community activist who has faced homelessness, and faculty from the Law School’s Civil Justice Clinic to design solutions to Durham’s eviction crisis. The guests were also able to give them practical perspectives on eviction and its often-devastating effects on individuals and families. Outside of class, students also delved into the court dockets and reached out to faith communities, real estate developers, and others interested in housing to gain further insights into the problem and the “pain-points” of all parties involved. With much of the course devoted to small-group brainstorming on ways to reduce the negative impact of evictions, both Richman and Ward stressed the importance of teamwork and bringing an open and non-judgmental “beginner’s mindset” to the process. “Lawyers can be bad at suspending criticism,” Ward said. “Do not say the word ‘but,’ and instead respond to an idea with ‘Yes, and … ’”

RESEARCH NOTES

“ [Design thinking is] simply a way of encouraging lawyers and others to look at a system and say, ‘It doesn’t have to be this way.’ So it’s a prerequisite to making sure that technology ends up playing the role that it needs to play and isn’t simply used to entrench incumbent players and maintain gaps in equality and access.” — Jeff Ward

PROGRAM NOTES

Many of the ideas that emerged from the course involved legislative changes and incentives to construct affordable housing. Only one suggestion depended on technology, an online “legal-circumstances matrix” that would allow judges to understand the specific challenges of locating alternative housing for each tenant before them to find a fair and workable solution for all parties. And that cuts to the essence of design thinking: Human needs are paramount, with technology just offering tools to deliver legal or policy tools in new ways. That human-centeredness was also apparent in Ward’s last blockchain class of the fall semester, which he devoted to an exercise in ethical tech development and design thinking. He challenged his students to apply the attributes of blockchain technology, such as the ability to move value or assets like data, coordinate a network of distributed actors, and to sidestep intermediaries, to the design of a social-media network and a ride-sharing service. One group, identifying the need to minimize fake news and “click bait” on their social-media platform, came up with a plan to offer users utility tokens exchangeable for services or site access as an incentive for reading ads. Another group with similar goals proposed offering utility tokens to site users who checked facts in social media posts. And a group designing a ride-sharing service proposed building employment protections for drivers into the digital architecture through the use of smart contract code. At the end of the class, Ward had each student write one guiding principle or rule of conduct for principles of ethical tech development on sticky notes. Many of their suggestions, he reports, focused on ways to balance innovation and safety, ways to include marginalized communities in technology development, and ways to reshape cultural understandings of privacy. Ward says he is increasingly committed to design thinking as a “process, an attitude, and a key component of modern legal education,” but he is quick to note that the process should never “fetishize technology.” Rather, technology should be viewed as a useful tool to address human need: “It’s simply a way of encouraging lawyers and others to look at a system and say, ‘It doesn’t have to be this way.’ AI in the Administrative State: So it’s a prerequisite to making sure that Applications, Innovations, Transparency, technology ends up playing the role that Adaptivity brought leading scholars from a range of it needs to play and isn’t simply used to disciplines to Duke Law last May to examine the value, entrench incumbent players and mainas well as the risks, in harnessing artificial intelligence tain gaps in equality and access.” to assist in improving regulation and public services. With technology developing expoParticipants explored such AI use-cases as intellectual nentially, from AI systems used in property-related search and classification, automated diagnostics, decision-making, and data vehicles and transportation policy, and biomedical collection to the emergence of sophistiresource creation, biopharmaceuticals, and digital cated brain-computer interfaces, lawyers health. The conference was co-sponsored by the Duke have a special role to play in shaping its Center for Innovation Policy, the Duke Center on Law governing principles, protocols, and use, & Technology the Duke Initiative in Science & Society, Ward says. “We’d better step up. But and the Rethinking Regulation program at the Kenan these reflect really exciting challenges Institute for Ethics. for lawyers.” d

Reiners: The problems with crypto’s revolving door Global Financial Markets Center Executive Director Lee Reiners parsed the trend of cryptocurrency start-ups recruiting former financial regulators to serve as directors in an essay published in American Banker on Oct. 25 (and earlier published on the center’s FinReg Blog). The trend is understandable, he writes, given the fact these companies operate in a complex, uncertain, and everchanging legal and regulatory environment. No single U.S. agency, he points out, has sole jurisdiction over cryptocurrency and different agencies have varied interpretations of what cryptocurrency is (largely reflecting the agency’s statutory mandate). It is also relatively common for former top regulators to serve as directors or advisors at regulated financial services firms. Given the trepidation — or outright contempt — with which some influential investors and members of the public view cryptocurrency, the start-ups’ primary goal with these hires is legitimacy, Reiners argues: “When a cryptocurrency company appoints a former top regulator to its advisory board, they are simply renting that person’s reputation to improve the firm’s credibility.” But these appointments are problematic in part, he writes — pointing to research indicating rampant manipulation in the cryptocurrency market — because they lend “an aura of legitimacy to a product and industry that may not be legitimate.” “Former regulators and senior government officials that serve on the boards of cryptocurrency firms may genuinely believe in the transformative potential of cryptocurrency. But the pecuniary benefits they receive for their service may be of little consolation if they’re wrong.” d

Duke Law Magazine • Spring 2019

THE TECH ISSUE

FIELD NOTES

Duke lawyers blaze new trails in tech

Ian Darrow ’15: Counsel, Protocol Labs A self-described computer geek and selftaught programmer, Ian Darrow left Big Law to join a tech start-up after a chance meeting with the company’s founder led to them bonding over a shared love of technology. As general counsel for LedgerX, Darrow oversaw its successful certification by the Commodity Futures Trading Commission (CFTC) as the first federally regulated exchange and clearinghouse to list and clear physically-settled bitcoin swaps and options. “Not only did we get this DCO — derivatives clearing organization — approved for a new asset class, but we did it within six months, likely the fastest ever,” says Darrow, who credits “invaluable” assistance of outside counsel. “I was really proud of that.” Darrow is now counsel at Protocol Labs, which builds protocols, systems, and tools to improve the fundamental architecture of the internet, and is involved in a number of projects regarding the storage, location, and movement of information. Knowing how to explain the technology has been central to Darrow’s work at both organizations. “The DCO registration was extremely complex, but I understood our technology really well,” he says, noting that he had to explain its ins and outs to CFTC officials with varying levels of understanding but a keen sense of responsibility for protecting both consumers and the financial system. A related challenge was applying regulations written for traditional commodities to a cryptocurrency for the first time. “There are a lot of aspects of the law that made little sense in this context,” he says. “You just have to help people understand your analogies and occasionally ask for

36 Duke Law Magazine • Spring 2019

first-time exemptions from certain regulations.” The entire process, he says, was “nuanced and subtle, hands-on and messy, involving a fascinating combination of legal and technical knowledge coupled with human interaction. It was a lot of fun.” Now, in addition to handling matters that face any early-stage start-up, Darrow engages in a mix of product development and policy work relating to cryptocurrency and open-source decentralized file storage. Last fall, along with other members of the Blockchain Association, he advised lawmakers and congressional staff as they crafted a bipartisan bill to exempt certain digital assets from securities laws. Introduced in December by Reps. Warren Davidson, R-Ohio, and Darren Soto, D-Fla., Darrow says he emphasized the need for “extremely open and extremely trustworthy” protocols and procedures. Darrow has returned to Duke Law to share his experience and insights with students in Clinical Professor Erika Buell’s advanced contract drafting course, Associate Clinical Professor Jeff Ward’s blockchain class and Lecturing Fellow Lee Reiners’s fintech course. As a corporate attorney, he tells students, it’s important to adopt a mindset of “I’m here to help.” “It’s crucial to develop a really deep empathy for what the company is trying to do and for the concerns of your colleagues,” he says. “You have to figure out how to enable them in a way that is rigorous and ethical and decreases risk to the company, but at the end of the day is supportive of its mission.” Those are lessons he learned, in part, through Advising the Entrepreneurial Client, taught by Buell, who directs the Program in Law & Entrepreneurship, and the Community Enterprise Clinic, led by Clinical Professor Andrew Foster. “[The courses] helped me realize how important it was to listen to my client and understand their goals,” he says. d

Trevor Kiviat ’16: Associate, Davis Polk & Wardwell In mid-February, SEC Commissioner Hester M. Peirce cited a forthcoming article co-authored by Davis Polk & Wardwell associate Trevor Kiviat and partner Jai Massairi ’07 for the argument that initial coin offerings (ICOs) have certain technical and economic features that are not adequately addressed by the current regulatory framework applicable to initial public offerings (IPOs). Advising clients on various matters involving digital currency-based businesses is a central part of Kiviat’s practice in Davis Polk’s Investment Management Group. Kiviat has been deeply involved in this space ever since his Duke Law days. In fact, he expounded on these topics in his student note: “Beyond Bitcoin: Issues in Regulating Blockchain Transactions,” 65 Duke Law Journal 569, which informed policymakers and practitioners considering the appropriate regulation of certain digital currency-related activities. With over 20,000 unique downloads to date, Kiviat’s paper foreshadowed the digital currency market boom of 2016-2017 and marked the first widely read and cited academic paper to clearly distinguish digital currencies, like bitcoin, from blockchain technology. Also engaged in more traditional aspects of counseling private equity, hedge funds, and venture capital funds at his firm, Kiviat says his “nerdy interest” in digital currencies is seen as a “value-add,” even among more traditional clients, who are increasingly taking interest in this growing asset class. His practice of sharing industry developments and “hot takes” with a core group of partners led to his organization of a firm-wide network of attorneys interested in the field that is now about 100 strong. And for nearly one year straight, he found himself giving frequent presentations to clients — major banks and private investment firms — with questions about digital currencies and their impact on business. Clients are now expressing serious interest, Kiviat says, in such matters as whether the SEC is likely

ever to approve a bitcoin-based exchange traded fund (ETF) and the regulatory treatment of so-called “stablecoins,” which are digital currencies designed to remain pegged to the price of more traditional currencies or assets, such as the U.S. dollar. Building a comprehensive understanding of the financial regulatory landscape and relationships with regulators is crucial in advising clients seeking to engage with digital currency-based businesses. Kiviat appreciates his firm’s refusal to greenlight ICOs when many other firms were “acting like cheerleaders,” calling some of the analysis “questionable at best.” Their decision, he says, has been vindicated by dozens of recent enforcement actions taken by the SEC against issuers of ICOs as being in violation of securities laws. “A move-fast-and-break-things mentality tends not to work so well in heavily regulated industries,” Kiviat says. “It’s probably a bad idea here to ask for forgiveness instead of permission. You very much need permission.” Kiviat says his thinking on digital currencies and blockchain technology has evolved since he authored his student note, which was quite bullish, at the time, on the promise of blockchain technology. He notes that bitcoin is arguably still the only true “killer app” to date, and he wonders if blockchain technology is largely a “solution in search of a problem.” In any case, he believes regulators are taking the correct approach as the industry matures. “Federal regulators are moving at the right pace,” says Kiviat, “and they are generally prioritizing correctly. First, they weed out the clear and obvious frauds; then, they explore the more nuanced and interesting questions affecting legitimate businesses.” And finally, he says, there will need to be “new law in certain areas,” but he doesn’t expect it to come any time soon. d

Duke Law Magazine • Spring 2019

THE TECH ISSUE

Kirsten Albers-Fiedler LLMLE ’18: Law Associate and Legal Engineer, Open Law After graduating from Georgetown University and The George Washington University Law School, Kirsten Albers-Fiedler worked on structuring impact investment transactions for a nonprofit organization. Having enrolled in the law and entrepreneurship LLM program at Duke Law to gain a deeper knowledge of law pertaining to the support of entrepreneurial clients, she became interested in emerging technologies through Associate Clinical Professor Jeff Ward’s courses on frontier AI and robotics and blockchain law and ethics. And through those classes, she also established an internship at ConsenSys, a global blockchain technology company. Now Albers-Fiedler is helping to grow OpenLaw, a “spoke” of ConsenSys whose protocol automates natural language and enables parties to use smart-contract functionality — code run on a blockchain — in their legal contracts, with the goal of lowering transaction costs, streamlining contract formation, and democratizing access to the legal system. “Its protocol,” she explains, “functions as a toolkit for the creation, management, and execution of ‘smart’ legal agreements.” Parties can create legally binding agreements with contractual provisions that execute automatically when triggered by smart contract “calls” that can be embedded into agreement templates. OpenLaw aims to increase the efficiency of legal operations, allow users to create and transfer blockchain-based or tokenized assets, and provide access a publicly available legal agreement repository. Albers-Fiedler’s roles at OpenLaw include analyzing and drafting legal agree-

38 Duke Law Magazine • Spring 2019

ments, acquiring socially impactful partnerships, and identifying which portions of legal agreements can be automated to leverage blockchain technology. “Professor Ward’s course offerings through the Duke Center on Law & Technology piqued my desire to join an emerging technologies start-up, and I was provided with the knowledge and tools necessary to pursue this non-traditional career path,” she says. “Learning about the positive impact that emerging technologies can have in a variety of areas appealed to me, and I was particularly fascinated with their application in the legal industry.” During her yearlong law and entrepreneurship studies, Albers-Fiedler began to see how disruptive technology could solve a great need: access to legal services that are efficient and affordable. “Lawyers, on the whole, are only providing adequate services for 14 percent of low-income individuals in need of legal assistance,” she says, “and this statistic does not include those who are above the low-income threshold and are not able to afford a lawyer or even realize that they have a legal issue or could benefit from legal protection. If lawyers are providing adequate assistance solely to wealthy individuals or institutions, they distance themselves from the larger community that they are likewise meant to serve.” “My belief is that if lawyers make increasing use of blockchain technology and artificial intelligence to draft agreements and conduct legal research, the cost of legal services will decrease, and they will have more time to provide their services to more people,” she says. “I am grateful to be working for a company that has developed a protocol that has the potential to benefit everyone conducting legal transactions.” d

Rohit Jayawardhan ’19: Technical Consultant, iManage Rohit Jayawardhan doesn’t plan to practice law after receiving his JD in May, but such matters as contract analysis and pleadings will still be central to his work. Jayawardhan will be returning to iManage, where he spent his 2L summer, as a data scientist charged with creating artificial intelligence-enabled systems to store, analyze and search documents for law firms, corporate legal departments, and others. Having realized during his first year of law school that he was still drawn to mathematics — he majored in management science, a quantitatively-focused economics degree, at the University of California San Diego — Jayawardhan supplemented his legal studies with a course in Duke’s computer science department and online courses in advanced machine learning through Coursera. And in his third year, he’s taken a deep dive into law and technology, enrolling in courses in fintech, frontier artificial intelligence (AI) and robotics, and blockchain law and ethics. As an independent study project, he is also designing a predictive AI tool that the Environmental Law and Policy Clinic can use to identify pockets of North Carolina housing stock polluted with lead paint and combat lead poisoning in children. Jayawardhan is confident that he is leaving Duke with a skill-set that enables him to straddle two domains: “the qualitative legal world and the quantitative, machine-learning world.” During his summer internship, when a client requested a bespoke system to identify pleadings within an enormous data-set of documents, he expanded it to also identify answers and complaints. He also refined a process for training an AI-enabled system to understand “legalese.” “Having a basic understanding

of how the law works really helped,” he says. “It’s allowing me to serve as that bridge between the two worlds.” Jayawardhan has also brought insights from data science to his law classes. For his final project in Fintech Law and Policy he programmed a pseudo smart contract for a loan, designing it to handle different forms of collateral with different remedies for default and be customized for any loan amount with any term, any interest rate, and any number of payments. “We had talked a lot about blockchain in the class, but it’s hard to understand the technical aspects of an entirely self-executing contract,” he says. Blockchainenabled lending also interests him from an accessto-justice perspective, he adds. “If you’re able to get rid of the middleman — the bank — and connect an investor in America, say, to an emerging entrepreneur in Nigeria or India, it could free up a lot of capital around the world and really empower people who currently don’t have access to finance or financing.” Jayawardhan says he’s appreciated the approaches to and varied perspectives on technology he’s encountered in his third-year courses, such as Frontier AI and Robotics, which includes students from other Duke schools and departments who have thought deeply about the long-term and ethical ramifications of emerging technologies. And while he prefers developing programs to writing regulations, he looks forward, he says, to also being involved with regulatory and legal developments around emerging technologies. d

Duke Law Magazine • Spring 2019

THE TECH ISSUE

LAWYERS TAKE THE LEAD WHEN CLIENTS SUFFER A

DATA BREACH A

by Andrew park

s a student, Elizabeth Johnson ’03 didn’t envision a legal career focused on technology. At Duke she paired her JD with a master’s in environmental management and joined the environmental practice of large law firm after graduation. But at her first associate review, the partner suggested she pick up some extra hours working with the firm’s emerging privacy group. Her first meaty assignment was to fly to Brussels to pitch in for the EU-based team on cases involving European data protection issues, a topic she knew nothing about. “I read a book about it on the way there,” Johnson says. “U.S. privacy law was developed but very much emerging in 2005. Europe had a comprehensive Data Protection Directive Elizabeth Johnson ’03 and it had been in place for many years. Here in the United States, we had HIPAA governing data protection law for health care, we had the Gramm-Leach-Bliley Act for financial services, we had a few data breach notification laws at the state level. There were very few people who could make a full-time practice of that. It existed, but it was pretty apparent that it was going to grow very quickly.” And grow it did. Today, Johnson heads the seven-member Privacy and Data Security practice at Wyrick Robbins in Raleigh that counts both large, global corporations and small- and medium-sized businesses as clients. The team has worked to clean up legal fallout from more than 500 data breaches. “Back when I started, I was trying to sell a service, legal advice on privacy and cybersecurity, that the majority of clients hadn’t figured out they might like to buy — in fact, they didn’t even know what I was talking about a lot of the time,” she says. “It’s a lot easier to do that now.” For her clients and for organizations in every sector of the economy, cybersecurity and information protection are now front-burner issues. The recent wave of massive data breaches — from Yahoo and Equifax to Marriott

40 Duke Law Magazine • Spring 2019

RESEARCH NOTES

“ In every situation I’ve ever been in, it’s the lawyer who is the quarterback of the entire incident response.” — John Reed Stark ’89 and Facebook — has only turned up the heat, as has the emergence of technologies such as biometrics and artificial intelligence that are causing the amount of personal information collected by business and government to explode. Lawyers who understand the risks of handling all this data and how to mitigate them have become highly sought after, and at least a baseline knowledge is increasingly a requirement across practice areas. “There’s no way that any practicing lawyer will not run into this issue in some way, shape, or form during the course of their first few years in practice,” says John Reed Stark ’89, a cybersecurity and data breach response expert who is teaching a course on the topic in the spring semester. “Client data breaches are inevitable. Stopping them is like trying to stop one of my children from catching a cold at school.”

An “unworkable patchwork” of laws and regulations

For Johnson, moving from budding environmental lawyer to cybersecurity specialist was not the massive leap it might seem. Both practices are rooted in administrative law and both are governed through regulations at the state and federal levels. But they differ in the pace at which new rules are introduced, and as data breaches have proliferated lawmakers have been scrambling to keep up. “A big part of our practice is identifying the laws that apply to the client and then helping them understand what they’re allowed to do and not allowed to do under those laws,” Johnson says. “The change is that there is just a ton more law reacting to rapidly evolving technology. It’s not unusual to find dozens of new laws that pertain to privacy or data security enacted within a year.” Last year, for example, Alabama and South Dakota became the last two states to pass laws requiring that businesses and governments notify consumers or residents when personal information has been shared, according to the National Conference of State Legislatures. Another 31 states plus Puerto Rico and Washington, D.C., were considering measures that would amend existing security-breach laws. And California passed a sweeping new consumer privacy law, the California Consumer Privacy Act, that, among other things, will create a private right of action when personal information is affected by a data breach and the business did not have appropriate safeguards in place. It also provides significant individual rights for California consumers, like the right to opt out when a business intends to sell personal information. Several states have already introduced legislation that mirrors that law. Outside the U.S., the European Union’s stringent new privacy standard known as the General Data Protection Regulation, or GDPR, greatly expanded the obligation of organizations that handle personal information to safeguard it when it was implemented in May. More than 100 countries around the world have a national data protection law, and there are calls for the passage of one at the federal level in the U.S. “The lack of a U.S. federal law requires individual states to legislate and thereby creates an unworkable patchwork,” said David Hoffman ’93, associate general counsel and global privacy officer at Intel Corp., in testimony for the Senate Judiciary Committee on March 12. “This confusing approach is bad both for individuals and companies.”

Dunlap: Considering the implications for terrorism and crime of “going dark” Near the end of an essay parsing Apple’s refusal, in 2016, to honor a warrant obtained by the FBI requiring it to unlock an encrypted phone used by one of the perpetrators of the San Bernadino massacre, Professor Charles Dunlap, Jr., Maj. Gen. USAF (retired), points out that demanding “more privacy than the Constitution or existing law might provide” comes with a social cost. “It is certain that every terrorist, drug dealer, Wall Street cheat, sex-slaver, and crook of every variety will use a secure device if they think it will shield them from law enforcement, and to the extent that using such devices fulfills that desire, we have to expect and accept more terrorism and more crime,” Dunlap writes in “Social Justice and Silicon Valley: A Perspective on the Apple-FBI Case and the ‘Going Dark’ Debate,” 49 Connecticut Law Review 1685-1702 (2017). “Significantly, that cost and risk will not be borne by those who are profiting from the devices, but by those without the resources or ability to protect themselves.” Dunlap, executive director of the Center on Law, Ethics and National Security whose teaching, scholarship, and commentary address a wide range of topics relating to the law and ethics of national security, armed conflict, cyberwar, and others, notes that the Department of Justice eventually dropped its case against Apple after a third party helped it gain access to the phone, so the matter was never adjudicated in court. But the dispute, he writes, highlights the debate about strongly encrypted communications relating to crimes and national security threats that can’t be monitored — or “go dark” — “even where the government is working through the judiciary.” Publicly, Apple framed its objections to unlocking the phone in a desire to protect individual rights against government intrusion, but Dunlap suggests that it was fighting the warrant (with the resources to do so) in large measure to protect hyper-security as a valuable aspect of its brand. And in that sense, the dispute “engages fundamental notions of social justice and the rule of law,” he argues. “Put another way, should a company be allowed to refuse to open some kind of a safe, so as to allow a child pornographer to flaunt a bona fide search warrant?,” he writes. “Should a certain class of criminals be permitted to avoid searches simply because they can afford to buy some kind of high-end safe or data encryption device? Why should people who, for example, send letters searchable with a warrant enjoy less privacy than someone who can afford the latest high-tech data gadget?” d

Duke Law Magazine • Spring 2019

RESEARCH NOTES

THE TECH ISSUE

Stark: How to manage the ransomware crime wave

Understanding the technology — and the risks

42 Duke Law Magazine • Spring 2019

Hoffman, a senior lecturing fellow who co-teaches Information Privacy and Government Surveillance Law with Charles S. Murphy Professor of Law and Public Policy Studies Christopher Schroeder, emphasizes the need for lawyers to have a basic understanding of technology to serve their clients, whether as in-house attorneys or outside counsel. “They need to understand how data is being used, how data is being stored, and the basics of the hardware and software that is being used to protect that data,” he says. “What we’re seeing is the evolution of longstanding legal principles to take care of new uses of technology at a scale and with global interactivity David Hoffman ’93 that we haven’t seen before.” The scale can be scary: Within minutes of a new device connecting to the internet, its defenses are already being probed by potential attackers, Hoffman says, and the devices operated by large organizations like Intel can receive millions of such probes every day. In the past, their goal might have been to try to shut down computers through denial-of-service attacks, but today these probes are increasingly attempting to gain access and steal data. Many are coming from vast networks of “bots” deployed by criminal syndicates or even nation-states and are capable of grabbing the personally A Jan. 25 panel discussion on the future of privacy and data identifiable protection marked Data Privacy Day, which was foundinformation ed at Duke Law in 2008 by Senior Lecturing Fellows Jolynn of millions Dellinger ’93 and David Hoffman ’93 and former EU Fellow of individuLeonardo Cervera-Navas, now director of the European Data als at once. Protection Supervisor. They were joined in the panel by Dan Nearly 3.4 Caprio, former chief privacy officer at the U.S. Department billion data of Commerce. records were compromised in the first half of 2018 alone, estimates security software maker Gemalto. The impact of such a breach may not be immediately obvious to the organization whose network has been compromised nor to the individual whose data may have been exposed, says Sarah Bloom Raskin, former deputy U.S. treasury secretary who is now a Rubenstein Fellow at Duke University. Raskin is leading an interdisciplinary Bass Connections team of Duke students from the Law School, the Pratt School Sarah Bloom Raskin of Engineering, and Trinity College of Arts & Sciences, that in the fall semester investigated the harm caused by data breaches, which can range from the theft of an individual’s identity to a decline in trust in the financial system. “The harm manifests itself much later, and then it manifests itself in a way that you may not even be able to connect in a causal way,” she says. “Certainly courts and judges have had a hard time saying and ruling that the harm that comes eventually from the misappropriated data was a result of an initial breach.” Indeed, courts have split on when and under what conditions a plaintiff can sue a company that has suffered a data breach. However,

PROGRAM NOTES

Senior Lecturing Fellow John Reed Stark offered recommendations for improving legal defenses against and penalties for malicious “ransomware” attacks in an essay published on Jan. 28 in Law 360 and D&O Diary. While attacks come in many forms, Stark explains, in each case they infect a computer and restrict users’ access to certain data, systems, and files, until a ransom is paid. Stark, former chief of the Securities and Exchange Commission’s Office of Internet Enforcement and now president of John Reed Stark Consulting LLC, cites predictions that by the end of the year, worldwide, a company will be hit by a ransomware attack every 14 seconds and result in financial damages of $11 billion in terms of recovery costs after the inevitable shutdown and ransoms paid. And most corporate victims of ransomware attacks pay the ransoms demanded, increasingly in cryptocurrencies like bitcoin that are fast, reliable, verifiable, subject to little regulation, and virtually untraceable. They pay, he writes, because of the “mammoth” impacts of the attacks: “Typically, all file servers and workstations are renamed with virus-like extensions. Email servers and website servers become inoperable. Operations cease – no ability to track accounts receivable, issue invoices, and pay bills and employees. … Amid the bedlam, the damage due to a ransomware shutdown raises costs exponentially, not to mention the dire business development and reputational ramifications.” Detailing why U.S. law enforcement agencies have experienced scant success in identifying and prosecuting perpetrators of ransomware attacks, Stark recommends a series of improvements: “Clearly, any governmental intervention should begin at the ‘front end,’ to deprive cybercriminals of access to financial channels, and financial penalties and end at the ‘back end,’ particularly asset forfeiture, to recover the proceeds of criminal activity.” Additional steps could include providing financial incentives for private investment in ransomware prevention and remediation technologies; bringing more criminal and regulatory enforcement actions and creating new legal penalties for attacks; discouraging payments that monetize crime; and adding more ransomware attackers to terrorist lists. But, Stark writes, “the reality is that when it comes to ransomware attacks, the government seems unfortunately idle and relatively powerless, which means ransomware victims are often on their own.” He advises companies to manage their risk through preparation — deploying effective and tested offsite backup and disaster-recovery plans — using professionals to implement preemptive measures and help handle the response, and being continually vigilant against attacks. He concludes: “The only guarantees during a ransomware attack are the feelings of fear, uncertainty, vulnerability and dread inevitably experienced by the corporate victim. Someone needs to stop the madness — or in the least, start talking about it. Right now, the silence is deafening.” d

RESEARCH NOTES

“ The harm [caused by a data breach] manifests itself much later, and then it manifests itself in a way that you may not even be able to connect in a causal way.” — Sarah Bloom Raskin in January U.S. District Judge Thomas W. Thrash, Jr. of the Northern District of Georgia allowed a class action suit to go forward against Equifax alleging that the company’s 2017 data breach affecting nearly half of all Americans was the result of negligence and fraud with regard to its cybersecurity measures. “That is actually promising from a standing perspective,” Raskin says.

Leading the response

PROGRAM NOTES

Another phenomenon Raskin’s students identified as the number of massive data breaches has mounted: “breach fatigue,” which can lead to an inertia in which consumers neglect to take necessary measures to safeguard their data. “People just don’t know what to do,” she says. “You hear that your information has been stolen and you don’t know what action to take.” The Bass Connections team hopes to relieve that pressure with a set of materials it is designing to encourage “cyber-hygiene.” A pamphlet, “Cybersecurity for America’s Families: A 10-Step Data Security Guide for the People You Love,” will be distributed through consumer protection agencies, technology groups, and other organizations. The team is also creating a website with embedded videos of people talking about the effect that breaches of their personal data have had on them and their lives. Knowing how to react can be a challenge for the organization that has suffered a data breach, too, and lawyers are increasingly looked to for direction, says Stark, who before starting his consulting firm founded the Securities and Exchange Commission’s Office of Internet Enforcement and ran the Washington office of Stroz Friedberg, an international digital risk management firm. The demands go far beyond what a privacy lawyer historically would be asked to do. While the initial, immediate breach response may be managed by a chief information officer or other technology leader, Stark says lawyers will inevitably take charge from there. They then typically create and lead multidisciplinary teams that manage everything from the forensic investigation and remediation to notifying law enforcement and handling regulatory inquiries. “In every situation that I’ve ever been in, it’s the lawyer who is the quarterback of the entire incident response,” he says. “These matters have Data, Technology, and Criminal Law brought U.S. become mega-enand European legal scholars to Duke in early April to disgagements for law cuss such emerging issues as protecting technology trade firms. Most compasecrets in the U.S. adversarial system, the GDPR, machine nies have rarely, if evidence in criminal trials, government response to election ever, experienced hacking, and reforming the U.S. Computer Fraud and Abuse the massive fallout Act. Organized by Professor Sara Sun Beale and Professor from a cyber-attack, Eric Hilgendorf of the University of Würzburg Faculty of Law, and eventually realthe workshop was co-sponsored by Würzburg and Duke ize that they are in Law School’s Center for International and Comparative Law, dire need of expert Program in Public Law, and Center for Innovation Policy. legal assistance.”

Beale: Assessing the legal response to attacks on “internet of things” The phrase “internet of things” (IoT) encompasses devices other than computers and phones connected to the internet that collect, send, and receive data, such as so-called “smart” household and wearable appliances, implanted medical devices, voting machines, cars, trains, airplanes, power plants, dams, and other components of infrastructure. As Charles L. B. Lowndes Professor of Law Sara Sun Beale and Peter Berris ’17 point out in a recent paper, virtually every type of IoT device has been subject to corruption through hacking or a botnet attack that uses malware to reprogram its function. Motives for these attacks, they observe in “Hacking the Internet of Things: Vulnerabilities, Dangers, and Legal Responses,” 16 Duke Law & Technology Review 161204 (2018), include pranking, data theft, extortion, revenge, and terrorism. Insecurity in the IoT that makes it vulnerable to hacking can cause damage in the physical world, they observe. Yet they find the current legal response to such attacks inadequate; while they are often illegal under the federal Consumer Fraud and Abuse Act (CFAA) or analogous state legislation, “existing laws punish conduct after the fact without addressing the vulnerabilities that facilitate hacking.” Beale, an expert in federal criminal law and procedure, and Berris, an associate at Shipman & Goodwin in Washington, D.C., outline the nature and causes of underlying vulnerabilities in the IoT, as well as the practical and procedural issues in investigating and prosecuting attacks under the CFAA. These include jurisdictional challenges, given that many attacks originate abroad, and it can be difficult to identify the source of hacks, which are typically routed through intermediaries, and botnet attacks, which often cross jurisdictions and involve millions of computers. In addition to examining options for improving security of the IoT, Beale and Berris parse possible theories for legalizing “hacking back” against botnets, as by creating exceptions for invasive counterattacks through a legal framework modeled on the laws governing recapture of property. Apart from a host of ethical concerns, hacking back could just escalate attacks and create new ones, or even be interpreted by a foreign government as a military response, leading to cyberwarfare or physical hostilities. However difficult it may be to find a comprehensive solution to the “complex, multifaceted, and numerous” dangers faced by the IoT, government inaction is the “worst option,” Beale and Berris conclude: “If we wait passively for the full array of dangers of the IoT to become a reality, the wait will not be long, and the crisis could be severe.” d

Duke Law Magazine • Spring 2019

THE Tech ISSUE

“ You need to be tightly coupled with the folks who are deploying the technology internally, but you also need to be thinking about where the the law is headed and determining whether to play a role in influencing it.” — David Hoffman ’93 Stark’s Duke Law course includes a weeks-long simulation involving a hypothetical incident at a financial institution that puts students in the position of managing every step of the company’s response. The role-playing starts with a call from the company’s chief information officer and progresses to briefings with the board of directors, law enforcement, federal and state regulators, and insurance companies — all played by actual data breach experts, including retired FBI agents, former Justice Department officials, and current officials from the SEC and the Financial Industry Regulatory Authority. Knowing the methods that cyber-attackers use and the damage they can cause is fundamental to these interactions, Stark says. He stresses the need for lawyers to be able to question the information they are receiving from technologists — how certain is the CIO that the source of the attack was in China, for example — and then thoughtfully “modulate” the message for the other stakeholders in the process. They need to be probative and careful while still acting collaboratively, even when facing major civil or criminal liabilities. But he also encourages them to consider it an honor to lead a client through such an intense and complex process when the stakes are so high. “When you’re in a foxhole with your clients, it’s a tremendous opportunity to become a trusted advisor,” he says. “You’re in a bet-the-company situation that mandates 24/7 attention. The way you speak with your client, the speed and manner in which you respond to questions, and how you conduct yourself under such pressure become just as important as how knowledgeable you are.”

Prevention and policy

Of course, the work should begin long before a breach. Data security specialists increasingly spend their time helping clients prepare for threats and comply with regulations designed to mitigate harm. Organizations are also reviewing their insurance policies to understand how they would treat a massive attack. And cybersecurity is now a vital aspect of due-diligence procedures, particularly after Marriott’s breach was revealed to have targeted its Starwood subsidiary before it had acquired it. “I don’t mind having to put the time into staying on top of the issues so that we can be where the clients need us to be when they pop up and propose something pretty interesting,” says Wyrick Robbins’ Johnson. “It just keeps getting more and more complex, more technologically advanced, more that you have to think about. The types of data that regulators are defining as personal also continuously expands. Authenticating payment with your hand print, using fitness apps to track your physical activity and eating habits, shipping your DNA off for genetic testing by mail, ‘fingerprinting’ a device to track it online as a method to combat fraud, mining giant repositories of personal data for predictive health care, controlling

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home appliances with voice activation — there are businesses behind all these operations that face real legal challenges and risk. These opportunities and their legal implications didn’t exist when I started, and they just keep evolving. I remember the first time a client called about their interest in having a Facebook page. It feels like that was the Stone Age.” Indeed, as the public outcry about data breaches gets louder, civil law will only get more complex. The new California privacy statute, Johnson points out, covers inferences drawn from personal information and offers individuals the right to ask for that information to be deleted. That could keep a retailer or ad tech from creating an accurate predictive algorithm that uses order history to suggest what a consumer should buy next. The ability of criminal law to address incursions into private information is in some respects more constrained, though. Shane Stansbury, a former federal prosecutor who is now the Robinson Everett Distinguished Fellow in the Center for Law, Ethics and National Security, notes that just investigating potentially criminal breaches can be a challenge, even where statutes are available to prosecutors. “In some ways the information is easier to obtain because there’s more of it, in some Shane Stansbury ways it’s harder to obtain because there are more actors involved, there are more intermediaries involved,” says Stansbury, who taught an introductory cyber law and policy class in the fall. “You’re dealing with, for example, private sector victim companies that might be holding consumer data and they are the gatekeepers for releasing the information to the government. Government may have tools at its disposal to obtain that kind of information, but everything depends on the willingness of corporations to come forward and acknowledge that they’ve been breached.” Intel’s Hoffman says organizations may one day be able to use artificial intelligence to share information about attacks as they are happening and stop them from spreading. But there is still substantial work to be done to create the legal environment in which that can happen, both in the U.S. and internationally. He advises attorneys to engage with public policy on cybersecurity and privacy issues because of how rapidly and significantly it is changing, and points out that his own team consists of an equal number of lawyers, technologists, and public policy specialists. “You need to be tightly coupled with the folks who are deploying the technology internally, but you also need to be thinking about where the law’s headed and determining whether you want to play a role in influencing it,” he says. “For anybody who’s playing at a high level here, I think making sure that they’re integrating what’s going on in the public policy environment into their practice is really critical.” d

Profiles Q and A:

Satana Deberry ’94 Durham DA discusses plan for criminal justice reform

atana Deberry ’94 became Durham County’s district attorney on Jan. 1, her latest step in a diverse career that has included criminal defense practice, government service, community economic development, nonprofit management, and fair housing advocacy. Deberry, who secured the post last May in the Democratic primary, ran on a platform promising sweeping reform of criminal justice in Durham. A native of Hamlet, N.C., Deberry practiced criminal defense in nearby Rockingham early in her career. She said she was persuaded to run for election by community activists who told her that efforts at making the justice system in Durham more fair and efficient “always were stopped at the DA’s office.” She has been focused full-time since July on staffing and strategic planning, recruiting deputies with a wide range of legal experience, including public defense, to lead teams with specific areas of focus, and finding out how similar reform efforts are being implemented in such cities as Philadelphia, Brooklyn, Chicago, Seattle, and Corpus Christi, Texas. Deberry spoke with Duke Law Magazine in November about her plans. The interview has been edited for length. Duke Law Magazine: What are you bringing to this new post from your time as a criminal defense attorney in Rockingham, N.C.? Satana Deberry: When I returned home [after attending Princeton and Duke Law and working in the Legal Honors Program of the U.S. Department of the Interior] I was practicing with people I knew, so they were more than just clients for me. And I saw how easily you can become involved in the criminal justice system when you’re poor and black. It may be for no other reason than your community is over-policed or there’s a lack of economic opportunity for you in that community, so you turn to the things that bring you to the attention of the police. I was able to “unhook” the behavior, or what we were punishing, from the people. I never thought of my clients as criminals. I also learned that prosecutors often cheat and lie. I left criminal law in 2000 partly because I felt like I had no power. By the time my clients got to me, the die had been cast, essentially — my role was to just keep them from going over into the abyss this time, with full knowledge that we’d be back to the edge of the abyss again. That takes a toll emotionally. DLM: You have pointed out that Durham has a long history of black political power and are, in fact, replacing a black district attorney who spent his career as a prosecutor. What is the key to changing what you see as persistent racial bias in the administration of criminal justice in Durham?

SD: It’s about culture. It is difficult to bring about change when you are raised in a culture, and there are also certain ways that career prosecutors are raised. When you’re in law enforcement, whether as a prosecutor or a cop on the street, when people see you, it is most likely the worst day of their lives. If every day you’re seeing people on the worst day of their lives, it can affect the way you view people. And a 20-year career of viewing people like that might not incline you towards change. You might not think the system is broken and in need of wholesale change, just tinkering around the edges. You are more likely to think you are overworked with cases and you’d like more resources. You likely don’t think that you control the number of cases that come to you. But the DA controls the calendar. The idea behind my campaign was that we understand the impact on communities of punitive criminal justice policies and understand the breadth and power and discretion of the DA’s office. In North Carolina, the district attorney has almost 100 percent discretion

Duke Law Magazine • Spring 2019

Profiles

Key elements of Deberry’s platform: » concentrating resources on violent crime over minor felonies and misdemeanors » diverting people with addiction and mental health issues to treatment instead of jail » addressing racial bias in the criminal justice system and stopping the school-to-prison pipeline » eliminating cash bail » strengthening relationships with other authorities and with the people of Durham

as to who is prosecuted, what they’re prosecuted for, and how they are prosecuted. The only thing that the DA doesn’t have full discretion over is DWIs. So as DA, I don’t supervise law enforcement, but I can make the decisions about the cases that go forward. We know, for example, that simple possession of marijuana is, for black and brown kids, generally their entry into the criminal justice system. It mostly happens through traffic stops, which are designed to search cars and make arrests around simple possession. But we know that you can de-prioritize the prosecution of drug possession and still keep your community safe. A career prosecutor might say, “I just have to take what the police give me.” But I’ll explain to law enforcement why I’m not taking those cases anymore: One, these are bad cases, and two, I’ve got 100 open homicide cases in Durham County. Which would you prefer I work on? I have to spend the same amount of energy on every case, and if I’m not spending the same amount of energy on these misdemeanor cases, I’m violating the constitutional rights of those defendants. We have people now who plead to stuff just to get out of jail. There may be no evidence, but it’s more efficient for the system. DLM: Why are you seeking to eliminate bail and how will you do so? SD: North Carolina law only requires bail in cases in which defendants may not show up for court or are threats to themselves or others. We are working now on a pretrial release policy with input from community stakeholders, defenders, and prosecutors. You can’t prove that somebody won’t show up to court before they fail to do so, so it shouldn’t be the assumption at the beginning that unless you put money on the table, people don’t show up for court. Most people do. And most people charged with misdemeanors and low-level felonies are not a danger to themselves or others. The problem with bail is that if you don’t have any money, you can’t make it. People accused of misdemeanors are generally the poorest people in our community who have the least access to resources. They may have mental health or substance abuse issues that make it difficult for them to even gather the resources that they need. So they just sit in jail until their case is called. They are untreated while detained. And we’re all innocent until proven guilty, so we shouldn’t be detained unless guilt has been proven. In Durham, poor people sit in jail until they’ve accumulated enough time to plead to time served and then get out. They are thinking in the short term — they won’t have probation and can just be done with the matter. But it leads to a criminal record. There are thousands of collateral consequences to even being

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charged with a crime in North Carolina, and certainly more collateral consequences to being convicted of one, even at a low level. I am hoping to divert people with addiction or mental-health issues and trying to build infrastructure in the community to support that. We have all the discretion in pretrial diversion, so once charges have been filed, the DA’s office can review each case to determine whether it’s appropriate for diversion, as a lot of misdemeanors and low-level felonies are. Right now, we don’t have enough community resources, but that may be partly because we haven’t demanded them. There are lots of groups that are working on substance-abuse issues, like the Criminal Justice Resource Center downtown, which just got a big grant to do more diversion and pretrial release work in Durham County. We are going to do all of the things we can that are within our discretion and within the bounds of the statutes. Making the system safer doesn’t just mean for you and me, but also for the people accused of crimes. DLM: What is your plan for assessing past prosecutions and identifying — and remedying — possible wrongful convictions? SD: We’re putting together what we’re calling a “relief unit” to handle everything from wrongful convictions to expungements. We want to create a culture in which we are consistently reviewing ourselves. Right now, motions for appropriate relief are assigned to an assistant DA who is also prosecuting cases and they tend to fall to the bottom of their caseloads. We want to create some in-house expertise and policy around how we look at these motions and complaints about wrongful convictions and how we can be proactive. Expungements are also getting a lot of play in North Carolina. A new state law allows for more expungements, but it’s done on the affected person’s motion. We’d like to make a policy change where we move some of that to the DA so that we can move to expunge records. Even when you have a voluntary dismissal or plead not guilty in North Carolina, it still goes on your record. Wouldn’t it be great if at such time as we dismissed the case we also had a pre-populated form to make a motion to the court for expungement of your record? My career, whether I’ve been actively practicing law or not, has been mostly about how we drive change through large-scale systems, whether that be health care, housing, or criminal justice. They’re mostly affecting people of color, communities of color, and low-income communities. I find the challenges facing the DA’s office very exciting — and daunting, but I tell people that I went from Hamlet to Princeton, so daunting is what I do. d — Frances Presma

Alexandra Korry ’86

lexandra Korry’s early career aspirations centered on journalism and politics. During college she served as managing editor of the Harvard Crimson, worked for Ralph Nader’s Pension Rights Center and U.S. Sen. Daniel Patrick Moynihan, and then spent a summer at The Washington Post followed by a year in London studying international relations and working for Newsweek on the side. Her main interest in Big Law, Korry says, was as a means to pay off her student loans. So no one was more surprised than she to get hooked on mergers and acquisitions on her very first deal as a 2L summer associate at Sullivan & Cromwell in New York. “I vividly remember sitting in a room with a bunch of senior people on this deal and one of them turned to me and said, ‘What do you think, Alexandra?’” she recalls. “I was floored that I would be asked for my view. I realized it was very collaborative, it was very strategic and fast-paced, and I’m a bit of an adrenaline junkie. It was for me.” Korry, who returned to Sullivan & Cromwell after her Duke Law graduation, was running her own deals by her third year at the firm. A partner since 1993, she has risen to become a leading M&A lawyer and one of a handful of senior women practitioners in the field, advising on a diverse range of deals in a host of industries, from technology, media and financial services to energy, retail and commodities. She also teaches a course on public takeovers at Columbia Law School and recently stepped down from chairing the New York City Bar Committee on M&A. “I have found my practice and outside activities really fun and engaging and I’ve never been bored,” she says. Throughout her career, Korry has worked to build a supportive culture for women at her firm. She’s also maintained her commitment to social justice through an active pro bono practice and leadership posts with such organizations as the New York State Advisory Committee to the U.S. Commission on Civil Rights and the Harlem Educational Activities Fund. “I try to do good for society on the outside and I think everybody who is privileged enough to be in Big Law has an obligation to give back,” says Korry, a former member of the Duke Law Board of Visitors. “The outside activities I’m involved in are a means to give back, and I believe that with time and talent and energy you can really effect change.”

Crafting a practice for a curious mind Korry has deliberately stayed a generalist in M&A, finding that a varied practice has allowed her to feed her curiosity about the world through exposure to different businesses. Her transactions have included: advising Fifth Third Bank in the formation of Vantiv as a joint venture and in the Vantiv/Worldpay merger; Microsoft in its investment in the then fledgling Roadrunner portal and its attempted acquisition of Yahoo!; Adelphia Communications in its bankruptcy sale to Time Warner and Comcast; and UBS in a range of private principal transactions as well as in its capacity as financial advisor to public companies.

“It’s interesting to me how they convert cow dung into energy on German farms, and it’s interesting to see how wireless access points work,” she says, referring to some of the deals she has brokered. “I like a varied practice so that I not only face new legal issues but I also meet different people and learn about how they approach issues, and how their companies run.” M&A, adds Korry, involves a lot of problem solving. “You’re really half business person and half lawyer. So I like my practice to involve as many skillsets as possible because it makes my advice better and makes it more interesting for me.” Korry entered her field and arrived at her firm at a time when both were male dominated; in her early years she often was the only woman on a deal team. And when, as a freshly minted partner, she had her first child with husband Robin Panovka ’86 — whom she met at Duke Law — S&C lacked the welldeveloped maternal-leave policy it now has in place. So Korry laid out her boundaries to her principals. “I said, ‘Listen, I don’t know what I’m capable of but there’s no way I can do what I did before and do what I want to do as a mother,” she says. “‘If you want me to resign I will, but otherwise we’re just going to have to figure out something that will work for both of us.’ I was very forward about it and to its credit, the firm was very flexible in return.” Partly because of her advocacy, the firm now has well-institutionalized policies dealing with personal leave and flexibility for employees reintegrating back into work life.

Duke Law Magazine • Spring 2019

Profiles

“ The outside activities I’m involved in are a means to give back, and I believe that with time and talent and energy you can really effect change.”

“I say this to young associates all the time: ‘You have to design a career that works for you. You have a lot more power than you understand,’” says Korry, whose two daughters, Rebecca and Sarah, are now young adults.

Working to right the wrongs Korry expanded her volunteer work and pro bono practice as she rose in seniority at S&C and her children became more independent. Her deeply engrained sense of justice originates, she says, in a childhood spent primarily overseas, while her father served as U.S. ambassador to Ethiopia and Chile during the Kennedy, Johnson, and Nixon administrations. Korry’s “very enlightened” parents made sure she and her siblings engaged with the local cultures; in Ethiopia, for example, they refused to let their children attend the American school when they arrived because of its refusal to enroll Ethiopians. By the time the family returned to the U.S. when she was 12, Korry says she viewed the country as a different, even foreign, culture. “It really made me appreciate all the opportunities that exist here — how fortunate we are, and how unfortunate certain segments of our community are,” she says. “This is not a society in which we have equality of opportunity, and I feel very strongly about doing my piece to try to correct that.” Deeply committed to education and civil rights, she is a board member and former chair of the Harlem Educational Activities Fund, which helps underprivileged but high-potential youths enter New York City’s most competitive high schools and prepares them to attend four-year colleges. Korry leads a legal program that guides students through mock negotiations and a case they “argue” before a judge of the Second Circuit Court of Appeals. “There’s a huge gap between kids who are in some of these schools and the opportunities my kids have,” Korry says. “We have to do something really big globally to correct the inequity but I’m trying to do it on a small scale too.” As chair of the New York State Advisory Committee to the U.S. Commission on Civil Rights, Korry has worked to spotlight issues involving criminal justice and civil rights. In March 2018, the committee presented a report on the disproportionate effects of “broken windows” policing on minorities in New York City. And in 2014, the group released an investigation of juveniles subjected to solitary confinement in New York City jails, including the notorious Rikers Island complex. During a visit to Rikers, Korry says she was horrified to see a row of inmates under age 21 serving up to six months in solitary confinement. It’s something she believes more Americans should witness.

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“Most New Yorkers have no idea what happens on the inside,” she says. “As a society, we aren’t exposed to that on a day-to-day basis, where it would actually hurt us to see that. It’s too easy to become immune or inoculated against any of these things. But we should be more aware of how other people are living.” The committee’s work helped convince New York City officials to ban solitary confinement for inmates under age 22. “My own view is that nobody should be subjected to solitary confinement,” Korry says. “It is, to me, cruel and unusual punishment. We were part of the process that helped get New York City to raise the age. That, I think, was a pretty significant step.”

Building opportunities for women Along with other female partners, Korry continues to build opportunities for women at her firm and in her field by providing advice, accommodating scheduling needs and helping them to build their own practices. She is gratified, she says, to now see at least one other woman at the table on most deals, and by the “huge” progress women have made in law overall since her early days in practice. “It has been somewhat transformative for women over my career, and I like to think that I helped to pave the way for that, but we’re not anywhere near where we should be,” she says. “We’re nowhere near parity.” Large firms still do poorly at retaining women, who represent less than 20 percent of equity partners at the top 200 U.S. private law firms and make up just five percent of Fortune 500 CEOs, according to recent surveys. Faced with difficult choices regarding work-life balance, Korry says, some women opt out. But in her experience, it’s simply more difficult being a woman in a man’s world. “There was and is today still a presumption that women are not as smart, not as capable, not going to be able to lead us through the transformation of our company,” she says. “It is a rebuttable presumption, but it is still a presumption and you have to work really, really hard at rebutting it.” That’s easiest to do when one’s work feels like play, she says. “I never set my sights on becoming a partner. It happened because I was enjoying what I was doing.” Korry advises all law students and associates to gravitate towards their areas of genuine interest — and to “learn to pivot” because some jobs will gradually disappear due to advances in technology. “But I always tell associates, ‘It’s your choice to shape your own career. Live your life the way you want to and not the way others think you should. Choose what you want to do based on the fact that you enjoy it. And if you’re not enjoying it, leave.’” d — Jeannie Naujeck

Mike Levin ’05

ike Levin was sworn in to his freshman term in the U.S. House of Representatives in the midst of the longest federal government shutdown in history. The central issue — a proposed wall on the U.S. Mexico border — hits particularly close to home for him. Not only is his district, California’s 49th, just an hour away from the border, but his grandparents were Mexican immigrants. “They made sacrifices and risked everything to come to this country and seek better opportunities for their children and grandchildren,” Levin said in an interview during the shutdown. “I’m extremely hopeful that both parties can come together around a comprehensive immigration policy that is focused on security and humanity. That’s the America I know from my own family history.” Immigration is just one of many significant issues Levin, a Democrat, is tackling as part of the youngest and most diverse freshman class in congressional history. His district stretches from southern Orange County to northern San Diego County, encompassing more than 50 miles of coastline. A former environmental attorney, he built a career in clean energy and ran on a progressive platform focusing on climate change that won over enough independent voters to flip a district that was represented by Republican Darrell Issa for 16 years. Levin won the seat by 13 points. Since being sworn in on Jan. 3, Levin has sponsored or supported bills on a wide range of issues: raising the federal minimum wage, creating gender pay parity, strengthening Social Security, mandating background checks for gun purchases, and bringing more federal funding to California for wildfire recovery and prevention. And he introduced two bills to ban offshore oil and gas leasing along the California coast. “I was not elected to be a wallflower or to fail to take a stand on the important issues of the day,” Levin says. “As a member of the progressive caucus, I think that it is important that we are bold and not afraid to stand up for our values, whether it’s on social justice or economic justice or environmental justice.” In Washington, Levin is emerging as a leading voice on climate change — his signature issue — with appointments to the House Natural Resources Committee and the new House Select Committee on the Climate Crisis. On the latter committee he is one of three Democrats who signed a resolution supporting a “Green New Deal” that aims to curtail fossil fuel

Rep. Mike Levin, right, was joined on Capitol Hill by his wife, Chrissy, and their children, Elizabeth and Jonathan, when he was sworn into office on Jan. 3.

consumption by supporting further development of the clean energy industry. In California, the solar energy industry alone employs 87,000 people, he points out. “Our solar energy industry in California is now larger than the coal industry in the entire U.S. because we’ve doubled down on innovation, research, development, and deployment of next-generation clean energy technology,” Levin says. “The myth is that if you protect the environment, you cannot also grow the economy — that it’s one or the other, and that is simply a false choice. “Either we are going to lead in inventing and deploying the clean energy technologies of the future that will be used the world over, or we will be using technologies that are invented and developed elsewhere. So why not lead?” Duke Law Magazine • Spring 2019

Profiles

“I’m extremely hopeful that both parties can come together around a comprehensive immigration policy that is focused on security and humanity. That’s the America I know from my own family history.”

Years at Duke Law inform, solidify environmental path Except for his three years at Duke Law, Levin has spent his life and career in California, where he remembers growing up with chronically smoggy air. He became politically active as an undergraduate at Stanford University, where he majored in political science and was elected student body president in his junior year. His interests and future career in environmental law started to take shape at Duke, where he read widely on climate change and was involved in the Duke Environmental Law & Policy Forum. “I think everyone needs to know their purpose and needs to figure out how they want to best make their mark,” he says. “Certainly, my passion for the environment stems from being raised in Southern California where we had significant air quality issues growing up and wanting to protect our beach and our coast. Then I went off to a very environmentally conscious undergraduate school and law school. All of it had an additive impact that led to the career I chose, and ultimately the issues that I ran on and now hope to serve on as a member of Congress.” After law school, Levin became executive director of the Orange County (Calif.) Democratic Party, then practiced law at Bryan Cave, focusing on environmental law and government affairs before leaving for the entrepreneurial sector. He worked at Flex Energy, EnerCore, and Fuel Cell Energy, and also co-founded Sustain OC, a clean energy trade association in Orange County. The 2016 election catalyzed his run for office. Levin had served on the National Finance Committee for Hillary Clinton’s presidential campaign and was in the New York ballroom on election night where she conceded defeat. After the post-inauguration Women’s March on Washington, Levin says he and his wife, Chrissy, who have two young children, decided together that it was the right time for him to seek national office. Levin ran a grassroots campaign that did not accept funding from corporate political action committees and focused on climate change and creating green jobs through investment in science, engineering, biotechnology, and research. It’s a message, he says, that resonates in Southern California, where residents have endured droughts and frequent wildfires in recent years. California has the largest oceanbased economy in the nation, and the 49th District is home to two large scientific research institutions: UC San Diego and the Scripps Institute of Oceanography. “We’ve got some of the best climatologists in the world studying these issues right here in our district,” Levin says. “They will tell you that if we don’t take bold and dramatic action in the coming decade to reduce our greenhouse gas footprint, we aren’t going to 50 Duke Law Magazine • Spring 2019

get another chance to prevent significant harm — not only to our environment but also to our economy.” Levin received endorsements from former President Barack Obama and many progressive and labor organizations. His Duke network also was an important asset, providing get-out-the-vote support as well as financial backing. His California friends and allies include Scott Peters T’80, a fellow Democrat who represents the adjoining 52nd District that includes the rest of San Diego County. “I was really blown away by all the support I received from not just my classmates but the Duke community at large,” Levin says. “And now we have two Congress members with Duke backgrounds representing Greater San Diego.” In addition to his two environmentally oriented committee appointments, Levin also serves on the Committee on Veterans’ Affairs; his district includes Camp Pendleton, a 200-square-mile Marine base, and 77,000 military veterans live within a 50-mile radius. He holds monthly town hall meetings with his constituents where he has discussed his support for a “Medicare-for-all” bill and plans to organize a task force to address storage for millions of pounds of waste from the closed San Onofre nuclear plant. Despite the partisan divide in Washington, Levin is optimistic that Republicans and Democrats can come to agreement on shared concerns. He is certain that many of his GOP colleagues agree with scientific consensus on climate change and will view attempts to curb it as being in their constituents’ interests. And he likes to note that the Environmental Protection Agency was created by executive order of a Republican — fellow Duke law alum Richard Nixon ’37. “I always remind people of all the good environmental work that Republicans used to do,” Levin says. “The EPA was created on Nixon’s watch, not as a front for big polluters but rather to protect our environment, our air, our water, our natural resources, and also to put in place health and safety protections against pesticides and other toxins that ultimately benefit everyone.” Levin notes that his political destiny must have been apparent to his classmates at Duke: Even though he never ran for office at Duke Law, a student publication called him “most likely to become president.” But a future run for higher office depends on his family’s consent, he says. “My wife and two young kids are making an incredible sacrifice for their husband and father to be on the road 135 days a year,” Levin says. “I’m extremely mindful of my family always needing to come before any political ambition, and for me that is non-negotiable. My only interest right now is serving the residents of the 49th District well.” d — Jeannie Naujeck

UMG is one of the world’s largest entertainment companies, with a roster of artists that includes Taylor Swift, Jay-Z, Kanye West, Adele, Lady Gaga, Coldplay, and Rihanna. With more outlets than ever competing for content, Universal Music Group re-launched Polygram Entertainment two years ago to produce compelling film and TV projects spanning features and documentaries, scripted and unscripted TV shows, and premium short-form content. Baltimore joined UMG in 2016 to create new commercial opportunities from its catalog, which came into focus when the 2015 documentary “Amy” broke British box office records, generated a hit soundtrack, and won awards including an Oscar and a posthumous Grammy for Amy Winehouse, who recorded for the UMG label Island Records. Baltimore also handles certain complex recording contracts, such as the deal UMG recently inked with Chinese actor and singer Kris Wu to market and distribute his solo records, like his debut album “Antares,” internationally.

An unexpected path

Jennifer Baltimore ’92

s senior vice president of business and legal affairs at Universal Music Group, Jennifer Baltimore builds ancillary businesses around the company’s biggest asset: a huge, diverse catalog of sound recordings that date back over a century. “When you think of the legal profession, oftentimes you don’t think of it as a creative field,” Baltimore says. “But creating the template for new business models and diversifying the revenue stream — those are the kinds of things where I am able to find creativity.” Baltimore’s skill at deal-making has put her on Billboard’s list of top women music executives for the past two years. She recently negotiated a deal with 20th Century Fox to use the songs of Bob Marley on a forthcoming animated film about Jamaica. Marley recorded for Island Records from 1972 until his death in 1981. She also crafted a deal for a documentary on the late operatic tenor Luciano Pavarotti, the most commercially successful artist in the history of classical recordings who spent his entire career on UMG-owned Decca Records. “We’re looking for TV and film projects that leverage our catalog, either our catalog of songs, our catalog of recordings, or our existing roster of artists,” says Baltimore.

Baltimore didn’t aspire to join a glamour profession. She grew up near Washington, D.C., where her mother worked for the U.S. Commission on Civil Rights and her father boarded horses on a farm in Culpeper, Va. “Dad was an outdoorsman and Mom was into politics and sports and fashion,” she says. “There was always a lot of fun around them. I think that’s why I love the entertainment business. The whole purpose of the business is to create fun.” Like her mother, Baltimore was interested in fashion. But she was encouraged to pursue a more practical career. “I definitely had a leaning toward creativity and I actually think I could have been a creative myself, but there was more comfort around being a lawyer than pursuing something like that,” she says. At Duke Law, Baltimore envisioned a career in mergers and acquisitions and targeted a job at Morrison & Foerster. As luck would have it, “MoFo” offered her a position in its Los Angeles office, putting her in the center of the entertainment world. Two years later, through a friend with music connections, she found herself considering a job offer in MCA Music Entertainment Group’s business and legal affairs department. Baltimore was intrigued, but hesitated. “I wasn’t even looking for a new job,” she says. “I was very focused at the time on what I thought my pathway was supposed to be, which was to become a partner at a big law firm. Then one of the MCA lawyers said, ‘Wait a minute. Do you understand that people line up for this job?’ He described his typical day and I thought, ‘Oh wow, that sounds like fun.’

Duke Law Magazine • Spring 2019

Profiles

“It’s ironic that so many people would love to be in entertainment but I was so focused on this one goal that I almost missed the amazing opportunity in front of me. That’s why the advice I often give is to take the ‘stretch’ opportunity. It’s great to have a direction, but be willing to deviate from that path.” Baltimore spent more than four years at MCA before moving back to the East Coast for personal reasons. She became one of AOL’s first hires during its push into music and entertainment and spent 15 years as a corporate transactions, media, and intellectual property attorney for AOL and other organizations. In September 2016, she returned to California to assume her current position at UMG, which was formed by the merger of MCA and PolyGram. She had come full circle.

Riding the digital wave Since Baltimore first joined MCA the music business has changed dramatically, due in large part to the digital revolution. But that transition has created opportunities for her. When she graduated from Duke Law in 1992, the World Wide Web consisted of 26 websites. At MCA, she was given responsibility for digital initiatives — then a low priority. Today, digital music streaming services such as Apple Music, Spotify, Pandora, and YouTube generate twice as much revenue for the industry as CDs and paid downloads combined, and a great deal of music marketing is done online and through social media. “I’ve had such good fortune,” Baltimore says. “I really grew up in that business as it was growing up. When I came to MCA, I was the most junior lawyer and the whole dot-com thing was new and it wasn’t big business yet. So they said, ‘Here, you take this.’ I went to AOL with those music relationships and from there I’ve always been in music and entertainment plus digital — the merger of those two worlds. That has been the common thread throughout my career.” Baltimore says she embraces the daily challenges — and sometimes fear — that comes with being in an industry in constant reinvention. It’s required her to have a “DNA for change” — a core value at AOL that she adopted for herself. “I think that is really a big part of who I am — I really embrace discomfort and disruption,” she says. “That’s what I like about being in emerging businesses. There may be a bit of fear but it’s so gratifying when you can push through it and learn. You may not get the result you hoped for, but there’s always learning and I have a real passion for that.” d — Jeannie Naujeck

52 Duke Law Magazine • Spring 2019

Ana Maria Maganto Ramirez ’20, T’17

s a child, Ana Maganto Ramirez loved to play dress-up. But her fantasy wardrobe didn’t include princess gowns and tiaras. Instead, she liked to put on her grandmother’s blazers, pearls and heels and pretend she was a lawyer or businesswoman. “Ever since I was a little girl I’ve wanted to wear those clothes,” Ramirez says. “It felt really powerful to dress like that.” Soon Ramirez will be doing so daily when she spends her 2L summer as an associate in international corporate law at Willkie, Farr & Gallagher in Manhattan. But her journey has been no fairy tale. For Ramirez, the president of the Latin American Law Students Association (LALSA) and a student officer of the Immigrant and Refugee Project, the path to a JD has been marked by hardship, perseverance and, above all, dedication to family. Ramirez moved at age 12 from San Juan, Puerto Rico, to an Atlanta suburb with her mother and grandmother. She excelled at English, which she attributes to long hours watching the Disney Channel. But in her new multicultural community she saw how difficult it can be for immigrants to adapt to a different language and culture. And while her mother and grandmother are both comfortable using English socially, they felt anxious in situations where using imprecise language could result in serious legal or financial consequences. Often they would defer to Ramirez, with her more nuanced mastery of English, to communicate their needs. “Feeling helpless because you can’t speak the language, that’s something my family experiences a lot,” Ramirez says. “You feel like every breath you take, you still need more air to just be able to kind of get your bearings. I think a lot of people feel that way with the law.” Until her freshman year at Duke, Ramirez had never spent more than three days away from her mother, a special needs teacher and parent liaison at schools in Georgia. But she plunged into campus life, getting involved in Chorale, the Catholic community, and Mi Gente, Duke’s largest undergraduate Latinx organization, and

serving as a peer leader through Duke’s Office of Access and Outreach. She also took full advantage of Duke’s study abroad programs, spending summers in Paris, Venice, and South Korea, and semesters in Scotland and South Africa. “My mom very much tried to reinforce that, regardless of where you go or what you do in your life, travel as much as possible to get to know as many people and places as you can,” she says. But those relatively carefree days came to an end on Feb. 9, 2017, while Ramirez was finishing up her senior year and waiting to hear back from law schools. Hoping to take in a Duke-UNC game that evening, Ramirez was walking to her tent in K’ville when she got a phone call from home. Her mother had suffered a stroke that would leave her partially paralyzed. During the hazy month that followed, Ramirez got her acceptance from Duke Law. Telling her mother, who was still in intensive care and fading in and out of lucidity, was a moment she says she’ll never forget. “She was so happy — it was beautiful,” Ramirez says. “Law school had been both of our dreams since I was a little kid, and for me to get into law school at Duke — the place that had given me an education and now a future — it was her dream come true.” And although she had applied to several other schools, she immediately knew she would stay at Duke. “It became the only choice when I saw how happy it made her, even when she wasn’t fully there.” But the stroke upended the family’s life. Ramirez’s mother and grandmother, who is 87, left Georgia to live with relatives in Okeechobee, a town in rural south-central Florida, until Ramirez finishes law school. After graduation she will become the family’s chief provider and will be responsible for ensuring her mother and grandmother have a safe, secure home where they will both get the care they need. For the past two years, Ramirez has spent her school breaks in Okeechobee, relieving her aunt of caretaking and housekeeping duties. Back at Duke, She checks two or three times a day to make sure her mother is eating and getting her physical therapy. Between classes and studying she navigates health care bureaucracy for her mother, as she does for Durham residents as a student in the Duke Health Justice Clinic. Yet despite the hardships in her life, Ramirez is unfailingly upbeat, says Lecturing Fellow Emily Strauss, who taught Ramirez in her Legal Analysis, Research and Writing class. “She manages to maintain a very positive and kind outlook, to herself and to others,” Strauss says, noting the multiple activities and leadership roles Ramirez has taken on at Duke Law. “She’s always 100 percent present and involved.

One of the things I found striking was how seriously she took her community and mentoring role.” Ramirez has indeed poured her spare time into causes close to her heart, including immigrant and refugee assistance, in addition to LALSA (formerly the Hispanic Law Students Association). During her tenure as president LALSA has become more active than ever, bringing in guest speakers like a Latinx judge, hosting Hispanic Heritage Month events for the first time in three years, and holding a first-ever pre-orientation week dinner for new Hispanic students that was attended by the dean, career counselors, and first-year professors. LALSA also is working on creating career networks for alumni in markets with a large Latinx population. “I always seek community and I always try to provide that for other people,” Ramirez says. “At the end of the day, people always come before anything else that might need to be done.” The relationships Ramirez has built at Duke are paying off as her career path comes into focus. Through Mi Gente she met Melany Cruz Burgos JD/MA ’17, a bankruptcy attorney at Willkie who became Ramirez’s mentor through First Generation Professionals (1GP), a program for Duke Law students who are the first in their families to graduate from college. Learning of her interest in international corporate law, Cruz Burgos connected Ramirez with a Latina associate in that division at Willkie. Their quick rapport helped pave the way for the summer associate offer. “Before I got my job with Willkie it was difficult because I was spending all this time here with no guaranteed success,” Ramirez says. “If, at the end of three years, all I have is debt and no specific way to provide for my mom, it would be very, very hard. So going to a law firm is crucial for me in terms of providing the financial stability that my family has never had.” Ramirez’s first wish is to have her family attend graduation. Because of her mother’s hospitalization, no family members were present when Ramirez received her undergraduate diploma. She hopes to replace that bittersweet memory with a happier one next year. “My first four years of Duke were very precious and valuable but they didn’t end well,” Ramirez says. “It wasn’t the graduation that I or my mother or anyone else in my family envisioned. “So my goal in staying here was to have a bit of a do-over, and hopefully at least one of the people who has been fighting with me can experience not just the end of my journey, but what has been their journey as well. This is a chance to rewrite the ending of our Duke story.” d — Jeannie Naujeck Duke Law Magazine • Spring 2019

Alumni Notes This section reflects notifications received between May. 1, 2018 and November 15, 2018. BOV denotes membership on the Law School’s Board of Visitors.

1968

Bruce Alexander retired in June as vice president for New Haven and state affairs and campus development at Yale University. Bruce was appointed to the new post in 1998, which over 20 years expanded to include oversight of campus facilities planning, construction, and operations. He is continuing to work on special projects on a part-time basis.

Christopher Britton has published his third novel, A Blind Eye Crying (2018), a suspense/courtroom drama, whose protagonist is a struggling San Diego attorney.

Gordon Rather, senior partner of Wright, Lindsey & Jennings in Little Rock, Ark., has been selected for the Lawdragon 500 Hall of Fame for having been recognized 12 years in a row as one of the 500 leading lawyers in America.

1969

Charles Becton was honored, in June, with the “Lifetime Champion Award” from the North Carolina Justice Center. Becton is a past president of the N.C. Bar Association and former judge on the N.C. Court of Appeals. He also has served as interim chancellor at N.C. Central University and Elizabeth City State University.

» For Super Lawyers and other professional kudos, see page 61.

1970

Bill Stevens, senior counsel at Dentons in Atlanta, has received a Lifetime Achievement Award from the Daily Report, Georgia’s legal industry publication. The awards celebrate accomplished figures in Georgia’s legal profession. BOV

1971

Christine Durham was awarded an honorary degree and delivered the address at Westminster College’s May commencement ceremonies in Salt Lake City. Christine retired in November 2017 after 35 years as a justice of the Supreme Court of Utah. She currently serves on the board of overseers for the RAND Institute for Civil Justice and co-chairs Utah Center for Legal Inclusion and the Coordinating Committee for Access to Justice. She is also a trustee for University of the People, an accredited, tuition-free, online institution for higher education. BOV

1972

Ned Leiken retired Jan. 1, 2018 from practice at Leiken & Leiken in the Peoria, Ill., area. Maryellen Madden married Judith Graves on April 28, 2018, in Philadelphia, where Maryellen is of counsel to Montgomery McCracken Walker & Rhoads, practicing commercial litigation. She was a guest lecturer on transgender history at Duke Law in fall 2017 and 2018.

1973

Dan Blue, Democratic leader of the North Carolina Senate and managing partner of the Raleigh law firm, Blue, was the commencement speaker for Livingston College in Salisbury, N.C., on May 4. Dan welcomed the same class of Livingston graduates as freshmen at their 2014 Fall Convocation. BOV

Ken Starr ’73 has published Contempt: A Memoir of the Clinton Investigation (Penguin Random House, 2018). He was appointed to serve as independent counsel for five investigations, including Whitewater, from 1994 to 1999, and his report led to President Bill Clinton’s 1998 impeachment by the U.S. House of Representatives. A former U.S. circuit judge for the District of Columbia Circuit and U.S. solicitor general, Ken has argued 36 cases before the Supreme Court of the United States and has served as dean of the Pepperdine University School of Law and president and chancellor of Baylor University. In 2018, Ken joined the Lanier Law Firm in Houston where he works as of counsel on a range of appellate matters and legal issues and causes of special interest. He continues to serve on the Boards of Advocates International, the Supreme Court Historical Society, and the Christian Legal Society. BOV d 54 Duke Law Magazine • Spring 2019

1974

Candace Carroll received the 2018 Outstanding Attorney Award from the San Diego County Bar Association. She is an appellate practitioner at Sullivan Hill Lewin Rez & Engel with more than 40 years’ experience handling appeals in the federal, state, and bankruptcy appellate courts. Candace is active with a variety of legal and civic organizations. BOV

1976

Frederick Claybrook, a former partner and founding member of Crowell & Moring, has joined Nichols Liu in Washington, D.C., as of counsel. A frequent contributor to scholarship on government contracts, he received the 2016 Board of Contract Appeals Bar Association Writing Award. Gray Wilson took office, in October, as president of the North Carolina State Bar, the agency responsible for the regulation of the legal profession in the state. Gray is a litigation partner at Nelson Mullins Riley & Scarborough in Winston-Salem, and a former president of the N.C. Bar Association, the state’s voluntary, professional organization.

1977

Steven Gilford has joined JAMS as a mediator, arbitrator, and special master based in its Chicago Resolution Center. Most recently a litigation partner at Proskauer Rose, Steve has more than 40 years of experience in litigation, insurance, and negotiation of complex settlements.

1981

1983

Michael Lampert has been re-elected president of Alpert Jewish Family & Children’s Service in West Palm Beach, Fla. A fellow of the American College of Tax Counsel and former chair of the Florida Bar Tax Section, Michael is a tax and elder law practitioner in West Palm Beach.

1984

Audrey Moran has been promoted to executive vice president of Baptist Health of Northeast Florida and named president of the Baptist Health Foundation. She joined Baptist Health in 2011 and became chair of the Jacksonville Regional Chamber of Commerce in 2016.

1978

Charlie Condon has been appointed chair of the Santee Cooper Board of Directors by South Carolina Gov. Henry McMaster. Santee Cooper is the state-owned electric and water utility. A former South Carolina attorney general, Charlie is in private practice in Mt. Pleasant.

1980

Kirk Nakamura has been elected presiding judge of the Superior Court of California, County of Orange. He was first appointed to the court in 2001 and has served as assistant presiding judge since 2016. He is a former president of the Orange County Japanese American Lawyers Association, Orange County Asian American Bar Association, the William P. Gray/Lex Legion Inn of Court, and the California Asian Pacific American Judges Association. He has served on the boards of the Orange County Bar Association and the California Judges Association, and was awarded the Trailblazer Award from the National Asian Pacific American Bar Association.

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John Yates and his wife, Ellen, received the inaugural Ragab Spirit of Hope Award from CURE Childhood Cancer, a nonprofit organization dedicated to funding disease-fighting research and supporting children with cancer and their families. John, who chairs Morris, Manning & Martin’s technology group, has also been named a 2018 Atlanta Groundbreaker by Atlanta Magazine. BOV

1982

1985

Hezekiah Sistrunk is a 2018 inductee to The National Trial Lawyer’s Hall of Fame. He is managing attorney in the Atlanta office of The Cochran Firm.

Janet Ward Black, principal owner of Ward Black Law in Greensboro, N.C., has been selected by the North Carolina Advocates for Justice (NCAJ) as a recipient of the 2018 Ebbie Award. The award recognizes “service and inspired commitment to the NCAJ and its mission.” Janet, who served as NCAJ president in 2003, was recognized for her service to the organization and for her work inside and outside the courtroom as a “selfless public servant and fierce advocate for justice for those who have been injured by the wrongdoing of others.” Janet was also named the “Woman of the Year” by 1808: Greensboro’s Magazine.

» Drop us a line at

law.duke.edu/alumni

Duke Law Magazine • Spring 2019

Alumni Notes

Susan Bysiewicz ’86 was sworn into office as lieutenant governor of Connecticut on Jan. 9, after being elected to the office on Nov. 6. A Democrat who was also endorsed by the Working Families Party, Susan, a Middletown resident, served as Connecticut’s secretary of state from 1999 to 2011 and earlier as a state representative. Running alongside Gov. Ned Lamont, Susan made advocating for working families a cornerstone of her campaign, promising, among other things, “to support small business, secure equal pay for equal work, raise the minimum wage, and invest in people, schools, and infrastructure.” In 2013, Susan joined Pastore & Dailey as a partner heading the firm’s Glastonbury office and focusing her practice on corporate law and finance, banking, securities, and contract negotiation. She met her husband David Donaldson ’87 at Duke Law School. BOV d

Anna Chacko has been appointed general counsel of the Long Island Power Authority. She has over 20 years of utility, energy, and regulatory law experience, and has held senior positions at the Consolidated Edison Company of New York (Con Edison), National Grid, and a privately held global energy and gas company. Kip Frey has joined The Heritage Group (THG) as executive vice president of new ventures. The New Ventures Group is a new division of THG, established to support internal and external innovation and new business creation. It includes HG Ventures, which focuses on early and growth-stage opportunities with flexibility to invest at any stage across the venture capital spectrum. Frey joined THG after serving as vice provost for innovation and entrepreneurship at Duke University

and as inaugural director of the Law and Entrepreneurship program at Duke Law. He has long been active as a venture capitalist and has served as entrepreneurial CEO for multiple start-ups. BOV

1986

Stephen Labaton has joined Booz Allen Hamilton as executive vice president for corporate affairs with duties that include overseeing the company’s marketing and communications, media relations, government relations, and corporate social responsibility functions. Steve previously was president, North America at Finsbury, a global strategic communications firm. He earlier served as a senior writer in the Washington Bureau of The New York Times. BOV

Let your classmates know how you’ve been! 56 Duke Law Magazine • Spring 2019

1987

Yan Xuan has joined Squire Patton Boggs in Shanghai as a partner and head of its new China International Public Policy Practice. He advises Chinese companies on entering global markets and helps the firm’s international clients operate and invest in China. Most recently, Yan was the greater China president for The Nielsen Co., where he oversaw its market research operations in China, Hong Kong, Macau, and Taiwan.

Brian Rubin, partner at Eversheds Sutherland, was named Pro Bono Attorney for the Month (June) by Kids In Need of Defense (KIND) DC. In the course of his pro bono work for KIND, Brian has headed a team that won asylum for a child and has encouraged his colleagues to work with and support the organization.

1988

John Flyger was awarded a posthumous Hero of Child Justice Award in September by the advocacy group Child Justice Inc. in recognition of his work in Burak v.Burak, a landmark child custody case decided by the Maryland Court of Appeals in 2017. John died on July 8, 2018, of gastroesophageal cancer (see In Memoriam, page 63).

New position? Promotion? Life changes? Awards? Adventures? » Drop us a line at law.duke.edu/alumni.

Mark DiOrio has been appointed managing director and general counsel at Bulfinch, a private real estate investment, development, and management firm in Boston. Since joining Bulfinch in 1997, Mark has overseen the company’s legal affairs and played key roles in asset management and development. Taylor Ward has joined Taylor English Duma as a partner in its real estate practice in Florida, where he provides legal advice on matters including the purchase, sale, lease, and finance of real estate. He previously practiced at Lowndes, Drosdick in Orlando.

1989

Paul Sun has been selected as a 2019 “Lawyer of the Year” by Best Lawyers in America for appellate practice. Paul is a partner at Ellis & Winters in Raleigh.

1990

Bernard Chao has been promoted to professor of law at the University of Denver’s Sturm College of Law, where he directs the school’s intellectual property certificate program, and serves as co-director of the Empirical Justice Institute.

Rhonda Tobin has been named by Benchmark Litigation as one of its Top 250 Women in Litigation for 2018. A partner at Robinson+Cole in Hartford, Conn, she is a member of the firm’s insurance and reinsurance group, co-chair of the litigation section, and serves on the firm’s managing committee.

1991

Brad Krouse has been named managing partner at Philadelphia-based Klehr Harrison Harvey Branzburg. He also serves on the firm’s executive committee and chairs the real estate and finance department.

Louis Citron has been promoted to chief administrative officer and chief legal officer of New Enterprise Associates Inc., located in Washington, D.C. An 18-year veteran of the company, he oversees all legal issues pertaining to NEA’s investments, partnerships, operations and regulatory compliance, and is responsible for executing new strategic initiatives within the firm.

LaVonne Lawson was installed as president of the Beverly Hills Bar Association in September. A solo tax attorney in West Los Angeles, LaVonne is also of counsel to the law firm of Albrecht & Barney and a former senior attorney with the Office of the Chief Counsel, Internal Revenue Service.

Garrett Epps has joined the board of directors of the American Constitution Society for Law and Policy. He has also joined a National Constitutional Center advisory board created to develop an exhibit commemorating the ratification of the 13th, 14th, and 15th Amendments. Garrett is professor of law at the University of Baltimore and Supreme Court correspondent at The Atlantic. Doug Phillips and his wife, Monica, welcomed a second son, Benjamin, in April 2018.

1993

Anne Lindner has been appointed vice president for state legislative affairs for Pepco Holdings, a national energy provider. She sets legislative strategy, identifies public policy trends, and leads legislative initiatives. Anne previously developed legislative and regulatory strategy for Exelon, Pepco’s parent company. Peter Lobl authored a commentary in the June 8 issue of the New York Law Journal titled “How a NY Lawyer Lost His Job Because of Depression and Anxiety.” Peter is a clinical psychologist practicing in New York City and an assistant professor at the Icahn School of Medicine at Mount Sinai Hospital. He also works as faculty in the Harlem Family Medicine Residency at The Institute for Family Health where he teaches medical residents about the impact of psychosocial factors on patient health.

1994

Rindala Beydoun became managing partner of BonelliErede Middle East and a member of its Africa Committee in June after the boutique law firm she founded in the United Arab Emirates in 2011, Tribonian Law Advisors (TLA), was acquired by the international law firm.

Colm Connolly ’91 was sworn in as a United States district judge of the U.S. District Court for the District of Delaware on Aug. 3 after being nominated for the post by President Donald Trump and receiving Senate confirmation. At the time of his judicial nomination, Judge Connolly was a partner at Morgan, Lewis & Bockius, where his practice included complex commercial and intellectual property litigation, white collar criminal matters, and corporate investigations, and he was managing partner in the firm’s Wilmington office. He served as the U.S. attorney for the District of Delaware from 2001 to 2009, nominated by President George W. Bush. He had earlier served as assistant U.S. attorney in the district for seven years and practiced law at Morris, Nichols, Arsht & Tunnell for two. d

Satana Deberry began her tenure as district attorney of Durham County in January, after being elected to the post in November. She previously was executive director of the N.C. Housing Coalition and earlier practiced criminal defense law and worked with Self-Help in Durham. (Read more, page 45.) Jason Hanson has been appointed president, chief executive officer, and director of enGene, Inc., a biotechnology company based in Montreal and Boston. Jason most recently served as president and CEO of Ohana Biosciences, a biotechnology company based in Cambridge, Mass. Natasha Marcus was elected to the North Carolina General Assembly in November. She represents the new 41st district in Mecklenburg County in the state Senate. Mark Pugsley, chair of the securities litigation group at Ray Quinney & Nebeker in Salt Lake City, is serving a term as a third division commissioner of the Utah State Bar.

1997

Jennifer Yelton Henry has joined Estes Thorne & Carr in Dallas, one of the largest women-owned law firms in the Southwest, as a partner. Her practice focuses on complex commercial litigation. She previously was at McKool Smith in Dallas. Robert McCarthy has joined Stephens Inc., an independent financial services firm, as managing director and senior research analyst in the equity capital markets group based in Boston. He covers the electrical equipment/multi-industry sector, and joined the firm after four years at Stifel Financial. In 2017, he was recognized by Institutional Investor as a leading industry analyst.

Duke Law Magazine • Spring 2019

Alumni Notes Leif Cervantes de Reinstein has joined Sheppard Mullin’s entertainment and digital media practice group as a partner in Century City, Calif. Leif was most recently a partner at Reed Smith, where he was head of the global television practice.

1998

Brandon Blevans has been admitted as a fellow of the American Academy of Matrimonial Lawyers. A partner at Blevans & Blevans based in the California wine country, Brandon’s practice focuses primarily on the litigation of complex, high net worth, marital dissolution cases throughout northern California. Nicole Becton Jackson has been promoted to chief legal officer and advisor for Events DC, the official convention and sports authority of the District of Columbia. Having joined the organization in 2009 as the deputy general counsel of sports, entertainment, and special events, Nicole now provides legal guidance to the president and chief executive officer, executive staff, and Board of Directors and oversees the Office of General Counsel. She also is a policy advisor on all major organizational operations and initiatives. Valecia McDowell, a litigation partner at Moore & Van Allen’s Charlotte office, has been named to the firm’s management committee. She is co-head of the firm’s white collar, regulatory defense and investigations practice.

Michael Sorrell ’94, MPP ’90, president of Paul Quinn College in Dallas, delivered the keynote address at Duke University’s annual Founders’ Day Convocation in Duke Chapel on Sept. 27, challenging the university to use its resources to tackle such matters as income inequality, diabetes, cancer, and heart disease, and criminal justice reform. “Duke, I challenge you to take your time, your talent, your treasure and make this a better world,” said Sorrell, who also received Duke’s Distinguished Alumnus Award. In announcing Michael’s selection as speaker and honoree, Duke praised his transformation of Paul Quinn since becoming its president in 2007 through such actions as making job experience and outcomes central to the curriculum at the historically black college, significantly cutting tuition, and turning the football field into a farm that now provides food for students and the neighboring urban communities. He returned to Duke last year to speak at the Law School’s graduation convocation and a provost’s forum on campus free speech and civility, and recently initiated a program through which Paul Quinn students are mentored by Duke alumni. d

1999

Kenya Woodruff has joined the Dallas office of Katten Muchin Rosenman as a partner in the health care practice, where she focuses on transactions and compliance matters for physicians, hospitals, home health providers, hospice providers, and others in the health care industry. She previously was a partner at Haynes and Boone in Dallas.

58 Duke Law Magazine • Spring 2019

2000

Alaina Brooks has been promoted to executive vice president, chief legal and administrative officer, and secretary at EnLink Midstream in Dallas. She leads several departments across the company, including legal, regulatory, human resources, public and industry affairs, and environmental health and safety. She joined EnLink’s predecessor company in 2008, filling several legal positions.

Scott Dodson has been appointed as the inaugural Geoffrey C. Hazard Jr. distinguished professor of law at UC Hastings College of the Law in San Francisco. An expert in civil procedure and federal courts, he previously held the James Edgar Hervey Chair in Litigation. Scott also serves as the school’s associate dean for research.

Mirah Horowitz has been named executive director consultant of the Kauai Humane Society in Lihue, Hawaii. She is also a member of its board of directors. Mirah previously founded Lucky Dog Animal Rescue in Washington, D.C., and is an executive search consultant, recruiting leaders for nonprofits and universities across the United States. Gerhard Radtke has been elected partner in Davis Polk & Wardwell’s Hong Kong office, where his practice focuses on securities offerings, credit and other corporate finance transactions.

2001

Faye Rodman Barbour has been promoted to assistant general counsel at Turner Broadcasting. An in-house employment attorney, her clients include Turner’s advertising sales department and several divisions of CNN. She also handles all on-air talent agreements across CNN Worldwide. Kristi Bowman has been appointed senior advisor to the provost at Michigan State University where she is also professor of law and affiliated faculty in the College of Education. She previously served as vice dean for academic affairs at the College of Law. She has been elected to the American Law Institute and is involved in its Restatement of Children and the Law project. In spring 2019, Kristi is a visiting professor at Doshisha University in Kyoto, Japan and a visiting scholar at the University of Queensland in Brisbane, Australia.

Pamela Lialias has been awarded the Homeopath Master Clinician diploma by Louis Klein, FSHom, a graduate level course for advanced practitioners of homeopathy. Stephen Pedersen has joined Medical Solutions, a travel nurse staffing company, as general counsel, based in Omaha. He is former managing director and general counsel at Javlin Capital.

2002

Ryan DiSantis has joined Jones Day’s Boston office as of counsel, representing clients in investigations and government enforcement actions with a focus on cybersecurity, white collar defense, and trial work. Ryan spent more than a decade as an assistant U.S. attorney in Boston. Terry Eaton and his wife, Meera, welcomed baby Ameer on Jan. 1, 2018. Terry is founder and principal of The Eaton Law Firm, a Washington, D.C., litigation boutique specializing in white collar and criminal defense.

Derek Meilman has joined King & Spalding as a partner in the London office. He previously was a partner at Hogan Lovells in New York and London.

2003

Heather Olson has been promoted to partner in the Philadelphia office of Eckert Seamans, where she concentrates her practice on commercial and product liability litigation.

2005

Mike Levin has been elected to the United States House of Representatives representing California’s 49th District. In his practice, Mike has focused on environmental and energy regulatory compliance and government affairs. He has served for several years on the board of the Center for Sustainable Energy, based in San Diego, and co-founded Sustain OC in Orange County. (Read profile, page 49.) David Prestwood has joined Target Corporation as director of government affairs. He previously served as a strategy consultant to the Minneapolis-Saint Paul Regional Economic Development Partnership and as director of communications for the mayor of Minneapolis.

2006

Jieni Gu has joined Haiwen & Partners in Shanghai, where she specializes in mergers and acquisitions and private equity transactions. She previously was a partner at Ropes & Gray in Shanghai. Yendelela Neely Holston has joined Kilpatrick Townsend & Stockton as chief diversity and inclusion officer and as partner on the firm’s labor and employment team. She returned to the firm where she had practiced first as an associate and then as a partner from 2006 to 2015 after serving as assistant vice presidentsenior legal counsel at AT&T. A member of the Furman University Board of Trustees, Yendelela was honored with the Community Champion Award at the annual Corporate Counsel Awards in Atlanta in May.

Kiyoung Kim LLM ’01 was inaugurated as a justice of the Constitutional Court of Korea on Oct. 18. In an English translation of his remarks on the court’s website, Justice Kim pledged to “deliberate on how to overcome social bipolarization and help the vulnerable in the society and economy,” and to “unite the society along with the Constitutional Court.” The independent Constitutional Court has jurisdiction over constitutional review of statutes, constitutional complaints, competence disputes between governmental entities, impeachment of high governmental officials, and dissolution of political parties. Its decisions cannot be appealed and bind all state agencies and local governments. Justice Kim previously served as chief presiding judge of the Seoul Eastern District Court and earlier as presiding judge of the Seoul Central District Court and the Seoul Southern District Court. d

Duke Law Magazine • Spring 2019

Alumni Notes Matt Leerberg is the first attorney inducted into Business North Carolina’s Legal Elite “Hall of Fame” for appellate practice. He joined the N.C. Pro Bono Honor Society in 2017, after donating more than 50 hours of legal services through the state’s voluntary pro bono reporting effort. Matt is managing partner of Fox Rothschild’s Raleigh and Wilmington offices and focuses his practice on helping businesses navigate state and federal litigation and appeals.

2007

Meredith Tanchum Altieri and her husband, Daniel, welcomed a second son, Jacob Errol, on June 15, 2018. The family lives in Durham. Erica Williamson Barnes has rejoined the Birmingham, Ala., office of Maynard Cooper & Gale as a shareholder in the white-collar defense and investigations practice. She returned to the firm after four years as an assistant U.S. attorney for the Northern District of Alabama. Nathan Chapman, associate professor of law at the University of Georgia, was selected by the law student body to receive the 2018 C. Ronald Ellington Award for Excellence in Teaching. Nathan’s scholarship focuses on the history of due process and law and religion. His most recent articles are “Due Process Abroad,” 112 Nw. U. L. Rev. 377 (2017); and “Due Process of War,” 94 Notre Dame L. Rev. 639 (2018). Landon Zimmer has been appointed by North Carolina Gov. Roy Cooper to the N.C. Board of Transportation as an at-large member representing state ports and aviation. He is in-house counsel for the Zimmer Development Company in Wilmington, N.C., where he is responsible for project development, market selection, general corporate administration, and strategic planning. Landon

also serves on the N.C. Wildlife Resources Commission and the Bald Head Island Transportation Authority Board of Trustees.

2008

Meredith Caiafa has been elected partner at Morris, Manning & Martin in Atlanta. She represents corporate clients on matters involving employment, executive compensation and restrictive covenants as part of the employment and employee benefits and litigation practices. Tomas Nassar was one of 10 finalists for Euromoney Legal Media Group’s “Americas Rising Star” in the category of “Best Corporate Rising Star in Latin America.” He is a partner in Nassar Abogados’ corporate/M&A department and represents private equity funds and multinational companies doing business in Costa Rica. Justin Outling has been appointed co-chair of the Board of Visitors of the University of North Carolina at Greensboro. A member since 2013, he co-chairs the board with his wife, Cora Outling. Justin is a partner at Brooks Pierce in Greensboro, focusing his practice on business litigation and white-collar criminal defense. He is also a member of the Greensboro City Council. Brian Rosenzweig has been elected a member of Simpson Thacher & Bartlett’s Houston office. His practice focuses on corporate finance transactions with a particular emphasis on the energy sector. Ana Santos Rutschman has joined the faculty of the Saint Louis University School of Law as an assistant professor in the Center for Health Law Studies and the

60 Duke Law Magazine • Spring 2019

Center for International and Comparative Law. She teaches and writes in the areas of health law, intellectual property, innovation in the life sciences, and law and technology. In 2017, she was named a Bio IP Scholar by the American Society of Law, Medicine & Ethics, and in 2018 she was named a Health Law Scholar by the same institution.

Jon Christman has been elevated to partner in the Blue Bell, Pa., office of Fox Rothschild, where he represents clients in cases involving the First Amendment, class and collective actions, and federal employment laws.

Sarah Hawkins Warren was sworn in as an associate justice of the Supreme Court of Georgia on Sept. 17 by Gov. Nathan Deal. Immediately before her judicial appointment, she served as Georgia’s solicitor general and held several positions in Georgia’s Office of the Attorney General. She earlier was a partner at Kirkland & Ellis in Washington, D.C. BOV

Bob Walker and his wife, Anna, welcomed a son, John Robert “Jack” Walker V, on July 28, 2018. He joins big sister, Caroline, at home in Durham.

Pelham Wilder IV and Kathryn Wilder welcomed a son, Pelham Wilder V, on Jan. 27, 2018. Pelham is an associate in Morris, Manning & Martin’s real estate development and finance practice in Atlanta.

2009

Jennifer Brevorka has been promoted to partner at Rusty Hardin & Associates in Houston. A trial lawyer, she handles both criminal and civil matters.

Kamil Chaudhary has been promoted to vice president and general counsel of Alfresco Software in San Mateo, Calif. He joined the company in 2014 as assistant general counsel.

2010

Lyndon Carter has been promoted to senior associate counsel in the development law department of Darden Restaurants, Inc. in Orlando. He joined the company in 2017, and is responsible for real estate legal issues. He and his wife, Micaella, welcomed their first child, Brixton Luke, on Jan. 4, 2018. Morgan Clemons, financial services attorney in Atlanta and adjunct professor at Emory University School of Law, served as contributing editor of Dury Consulting Presents: The Lawyers’ Activity & Coloring Book. The book provides activities for lawyers and law students to relieve stress and anxiety associated with the practice of law and the law school experience. Meghan Ferguson has joined the Financial Industry Regulatory Authority (FINRA) as principal counsel in the Main Enforcement Division. She previously practiced at Williams & Connolly. Brooke Girley has joined start-up Ambo TV — a New York-based streaming network broadcasting Christian sermons — as chief content officer. She previously was principal of The Girley Law Firm in Orlando.

Sheena Paul was featured in the May issue of Austin Woman magazine. Sheena is chief operating officer of World Class Holdings, a private real-estate-focused investment firm headquartered in Austin, Texas.

2011

Jaime de Larraechea Carvajal has joined Garrigues as partner in Santiago, Chile, where he specializes in mergers and acquisitions and corporate and financial matters. He also advises on cross-border transactions to Chilean clients investing abroad. Prior to joining the firm, he was a partner in Cruzat, Vicuña, de Larraechea Abogados. Andrea Dinamarco has been named corporate counsel-structured finance at Tesla, Inc., in Fremont, Calif. She previously was lead counsel at GM Financial. Nick Simon has been elected partner at Keating Muething & Klekamp in Cincinnati. He practices in the business representation and transactions group and advises companies, financial institutions, and investors in corporate, finance, and commercial transactions.

2012

Upasana Garnaik started the Ph.D. program in sociology at the University of Texas at Austin in August. Most recently, she served as a legal officer for Lawyers Collective, an NGO in India that promotes human rights issues, and as assistant professor at Jindal Global Law School.

Einat Levy has joined Vimeo LLC in New York as senior counsel. She previously was a member of the capital markets group at Skadden.

2013

Shannon Arata, a staff attorney in the Duke Environmental Law and Policy Clinic, was appointed by Gov. Roy Cooper in June as a member of the North Carolina Environmental Management Commission (EMC) with special training in freshwater, estuarine, marine biological, or ecological sciences. The 15-member EMC is responsible for adopting rules for the protection, preservation, and enhancement of the state’s air and water resources. Lauren Bonds has returned to her home state as legal director and interim director of ACLU Kansas. She previously served as assistant general counsel at the Service Employees International Union where she provided legal support to the union’s “Fight for $15” campaign. Zach Kleiman married Jenny Fernandez on April 7, 2018. Zach has been promoted to team counsel and assistant general manager of the NBA’s Memphis Grizzlies.

2014

Chris Bryant has received an Alumni Achievement Award from the District 128 Foundation for Learning (Chicago area). The awards are presented to graduates of a District 128 high school who have made significant contributions and shown leadership and character. Chris practices with Yarborough Applegate Law Firm in Charleston, S.C., and is on the board of Charleston Legal Access. Hector Gonzalez and his wife, Kelly, welcomed a daughter, Etta Luna, on Sept. 25, 2018. She joins big brother Luka Joaquin. Hector practices with the Ontier firm in Mexico City.

Lindsay Kirton has joined Thompson & Knight in Dallas as an associate. Her practice focuses on multistate commercial real estate transactions. She previously was an associate at Hunton & Williams. Kristi Lundstrom Hill is president of Western Pension & Benefits Council — Phoenix Chapter. She is an associate at Fennemore Craig practicing ERISA and labor and employment law. Bastian Pasten has been named counsel at the World Bank, Environmental and International Law Unit in Washington, D.C. He was previously a consultant to the same unit. Danli Song co-authored “A Touchy Subject: The Eleventh Circuit’s Tugof-War Over What Constitutes Violent ‘Physical Force,’” 72 U. Miami L. Rev. 1131 (May 2018). She is an attorney at the Federal Defender’s Office in the Middle District of Florida.

2015

Judea Davis is a law clerk to Judge J. Michelle Childs ’16, United States District Court for the District of South Carolina. Judea previously clerked and was a staff attorney at the South Carolina Court of Appeals. Lucy Partain is an assistant United States attorney for the Eastern District of North Carolina, where she is assigned to the Organized Crime Drug Task Force Unit that handles drug trafficking cases. She previously was an assistant district attorney for Cherokee County, Georgia.

2016

Kristin Bender has joined the Washington, D.C. office of Boies, Schiller & Flexner as a litigation associate, after completing clerkships on the U.S. district and appellate courts.

Kudos

The following alumni have been recognized by their peers for excellence in their respective specialty areas as listed in such publications as Best Lawyers in America, Super Lawyers, Chambers USA, Law 360, BTI Client Service All Stars, D Magazine, and Thomson Reuters. See details at law.duke. edu/alumni/news/classnotes. This list reflects notifications received by Nov. 15, 2018, and includes such designations as “Rising Stars.”

Edgar Fisher ’61 Erwin Fuller ’64 William Stevens ’70 Candace Carroll ’74 Mark Prak ’77 James Sherriff ’79 Rich Van Nostrand ’80 Mark Prak ’80 Robert Vieth ’84 Janet Ward Black ’85 Forbes Sergent ’85 Peter Weinstock ’85 Joey Morris ’88 Paul Sun ’89 Brad Krouse ’90 Rhonda Tobin ’90 Amy Meyers Batten ’92 David Cox ’93 Larry Organ ’94 Christopher Vaughn ’94 Subhash Viswanathan ’95 David Kushner ’96 Geoff Adams ’98 Brandon Blevans ’98 Forrest Deegan ’02 Erica Schohn ’03 Matt Leerberg ’06 Amy Yeung ’06 Linton Mann ’07 Tomas Nassar ’08 Pelham Wilder ’08 Mike Dowling ’10 Catherine Singer ’10 Joseph Apatov ’11 Melissa York Lanska ’13 Samuel Bivins ’14

Duke Law Magazine • Spring 2019

Alumni Notes

Jenna Goldberg ’16 received a 2018 Equal Justice Works fellowship to work on veterans’ rights. Hosted by the National Veterans Legal Services Program in Washington, D.C., where she was previously assisting veterans with applications to military correction boards, Jenna’s two-year fellowship, which began in September, is dedicated to creating a nationwide Medical-Legal Partnership to obtain medical and psychological assessments and records reviews to Kathryn Betts has joined Akin Gump in Dallas where she is a corporate associate. She previously was at Baker Botts.

support veterans’ applications for records corrections and benefits before those boards and the VA. Veterans’ applications for disability benefits and records corrections frequently hinge on a corroborating psychiatric or medical opinion, but many veterans do not have access to high quality, low-cost medical care to obtain an opinion in support of their application. A nationwide MedicalLegal Partnership would be able to identify professionals willing to work with these veterans and provide these necessary opinions for a reasonable, reduced fee. Jenna’s fellowship is sponsored by Hogan Lovells US and the Lockheed Martin Corporation. d

OPEN TO LAW STUDENTS AND PRACTITIONERS

Vinay Mysoor has joined the Palo Alto, Calif., office of Simpson Thacher & Bartlett as a corporate practice associate. He previously was at White & Case in New York. Cole Randle has joined the New York office of Finsbury, a global strategic communications firm, as associate director of financial communications. Cole previously was a corporate associate at Freshfields Bruckhaus Deringer. Alexis Reynolds and Ryan Weiss were married on Sept. 22, 2018, in Wintergreen, Va. Ryan is an associate at Susman Godfrey and Alexis is an associate at McGuireWoods, both in Houston.

Duke-Leiden Institute in Global and Transnational Law

2017

Spencer Hughes has joined Kirkland & Ellis as an associate in the firm’s Washington, D.C., office after completing a clerkship with Judge Gerald Tjoflat ’57 of the United States Court of Appeals for the Eleventh Circuit in Jacksonville, Fla. Aleaha Jones was the runner-up in the 2018 ABA Journal/Ross Writing Contest for Legal Short Fiction for her story about a public defender in a former coal mining town hit hard by the opioid crisis. She works in the legal department of Credit Suisse. Blanca Mendoza has opened a law firm in Mexico City — Vite Mendoza Abogados — that specializes in complex legal solutions, with experience in tax, finance, capital markets, and fintech. Anais Rios has joined the Global Maritime Crime Program of the United Nations Office on Drugs and Crime as a maritime crime specialist in Bangkok, Thailand. She previously worked as a consultant in Mobile, Ala.

62 Duke Law Magazine • Spring 2019

June 16 - July 17, 2019 •

Courses taught by leading scholars from Duke University and Leiden University law schools include: •

Taxation of Cross-Border Transactions

•

Challenges in Multilateral and Regional Trade Governance

•

Comparative Foreign Relations Law and Democratic Accountability

•

Comparative Perspectives on Criminal Justice: Central Issues and Contextual Implementation

•

Introduction to American Law

•

Realizing Rights: Strategic Human Rights Litigation and Advocacy

Live in the heart of Europe with international law students and lawyers from the U.S., Europe, and around the world

• Visit

prominent international courts and institutions in The Hague and learn from expert international law practitioners

Sponsored by Duke University School of Law and Leiden University Law School Contact Tinia De Bruycker, Leiden University t.m.de.bruycker@law.leidenuniv.nl

Applications accepted through May 1, 2019

law.duke.edu/internat/leiden

Applications are welcome from American and non-American law students and lawyers. All courses are fully accredited. See the website for application instructions, course details, and faculty information.

In Memoriam (Received August 1, 2018 – March 8, 2019)

Class of ’50

Class of ’66

John J. Coleman, Jr.

Roy W. Moore III

Class of ’51

Class of ’68

November 29, 2018

John Earl Marsh, Jr. December 30, 2017

Donald Mosure Stearns January 13, 2019

Class of ’52

Joe W. Gerstein

February 15, 2019

C. Michael Abbott October 8, 2018

Stuart M. Foss August 20, 2018

Rosemary Kittrell September 13, 2018

August 24, 2018

Walter G. Moeling IV

Class of ’54

Brice Toland Voran

Eugene M. Anderson, Jr. January 16, 2019

March 4, 2019

September 18, 2018

Class of ’69

Class of ’59

Kathleen Merry Mills

February 14, 2019

Charles Webb III

Egerton King van den Berg

February 1, 2019

Class of ’80

C. Mark Baldwin November 27, 2018

Robert Patrick “Pat” Murphy February 19, 2019

Class of ’81

Thomas H. Stark December 17, 2018

Class of ’82

Christopher Edward Rozek July 19, 2018

Class of ’84

Patricia Anne Speth November 8, 2018

Class of ’88

Michael Joseph Steinbaum February 21, 2019

February 21, 2017

Class of ’60

Stanley E. Faye December 24, 2018

Maynard Francis Swanson, Jr. February 4, 2019

Class of ’71

M. Douglass Bellis

Robert N. Thomas August 1, 2018

Merwin D. Grant

C. William Dawson, Jr. January 21, 2019

March 9, 2017

Class of ’97

Elizabeth Martin Bowe October 19, 2018

Class of ’73

James Murrel Cooper March 7, 2019

Class of ’64

Dana Lesemann

October 15, 2018

October 11, 2018

Class of ’62

Class of ’91

Class of ’99

Giampiero Cotellessa August 10, 2018

Class of ’79

Jon Carl Yergler September 6, 2018

Class of ’01

Thibaud Van Rillas May 2018

Margaret F. Bradshaw

Receptionist and information secretary 1973–1988 February 24, 2019

Duke Law Magazine • Spring 2019

Sua Sponte

Remembering “V.A.” William Van Alstyne, the William R. and Thomas L. Perkins Professor Emeritus of Law, who taught at Duke Law from 1965 until 2004, died on Jan. 29, at the age of 84. Many alumni offered tributes to the constitutional scholar they fondly called “V.A.” on social media, praising his brilliance, his compassion for students, and his passion for teaching such subjects as constitutional law, federal civil rights, and the First Amendment. Several also recalled his love of his Harley-Davidson motorcycle and its accoutrements. “I enjoyed his classes because he challenged us to think beyond the cases,” Michael Krimminger ’82 posted on Facebook. “He could be excruciatingly complex or obscure (take your pick), but I got a lot out of it. Plus the Harley and leathers at Duke Law always stood out.”

Duke Law Magazine, Spring 2019

Articles inside

Rohit Jayawardhan \u201919: Technical Consultant, iManage

Kirsten Albers-Fiedler LLMLE \u201918: Law Associate and Legal Engineer, Open Law

Trevor Kiviat \u201916: Associate, Davis Polk & Wardwell

Ian Darrow \u201915: Counsel, Protocol Labs

Profiles

The Commons

Alumni Notes

On Emerging Tech: Training lawyers to lead the way