No Eyes in the Skies: State of Alaska v. McKelvey’s Impact on Aerial Surveillance in Alaska

Alaska contains a dynamic and complex aviation culture. As one of the most visually captivating places on earth, Alaska also hosts enthralling scenery that could be deemed a photographer’s dream landscape, creating an interesting desire for aerial capture of certain scenes. The Alaska Supreme Court considered whether Alaska’s unique aviation culture, in conjunction with aerial police surveillance, infringes on residents’ right to privacy in State of Alaska v. McKelvey. While the United States Constitution contains no express right to privacy, the Alaskan Constitution explicitly ensures that the right to privacy of Alaskan residents will not be infringed upon. The United States Supreme Court has yet to address the issue of warrantless searches involving enhanced aerial surveillance, but the decision rendered by Alaska’s Supreme Court in State of Alaska v. McKelvey should be the standing precedent followed by all states. Alaska reached the correct decision in protecting citizens’ privacy, and other states should also consider placing this high of a premium on respective privacy rights

The Savings Mirage

In the past, we did not worry much about elderly poverty because retirement was short for most Americans – a brief jaunt of post-work life was soon met with death. But with the 100-year life becoming a reality for more Americans, an elderly poverty crisis looms. The American dream of abundant retirement savings remains elusive for many, particularly low-wage workers. While government initiatives emphasize individual responsibility and financial education as a way toward retirement success, the reality is that governmental policies are barriers, including asset limitations that prevent those who receive public benefits from saving. This chapter urges reform in order to ensure the financial stability of the elderly. If we want to focus on individual responsibility for savings, we should repeal asset limitations while providing benefits and structures, early and often, that allow even our lowest-wage workers to save and at a rate that would support them in retirement. Or, social security could be reformed to be truly progressive so that all workers are secure in their golden years. Ultimately, change is needed to circumvent an elderly poverty epidemic

Presidential Administration\u27s Accountability

Intro by Brandon Brian D. Feinstein, Presidential Administration’s Accountability Fallacy Discussant Kevin M. Stac

The Invention of Authenticity

Christopher Sprigman, Murray and Kathleen Bring Professor of Law and Co-Director of the Engelberg Center on Innovation Law and Policy at NYU Law will deliver the annual David L. Lange Lecture in Intellectual Property Law. The title of the lecture is The Invention of Authenticity. Professor Sprigman will investigate the role that arguments about authenticity play in our culture, and the role of law in determining the predicates of authenticity for a wide array of cultural products. Sponsored by the Office of the Dean

Fraudulent Transfer Law and Sovereign Immunity: An Actual Abuse of Federalism?

After All Resort Group filed for bankruptcy, David Miller, its appointed trustee, sought to claw back tax payments the company had made on behalf of two of its principals to the IRS by arguing the payments constituted fraudulent transfers. Unlike a typical clawback action, however, the trustee brought this proceeding under Section 544(b), rather than the more common fraudulent transfer provision, Section 548, because § 544(b) permits the trustee to rely on state fraudulent transfer law—which has longer statutes of limitations than the federal fraudulent transfer provision. The Government challenged this action, arguing that recovery from the IRS was barred by sovereign immunity. The United States Bankruptcy Court for the District of Utah rejected this view, finding that the plain text of § 106(a)(1) of the Bankruptcy Code, which waives sovereign immunity for fifty-nine sections of the Code, including 544, unequivocally abrogates sovereign immunity as to the underlying Utah state law cause of action. On appeal, the Tenth Circuit affirmed, holding that the language of § 106(a), which abrogates sovereign immunity with respect to Section 544, was intended to be broad enough to encompass applicable state law. The Court should reverse, as an actual creditor who sought to avoid the transfer in question would be prohibited from doing so outside of bankruptcy. To affirm the Appellate Court\u27s holding would allow a trustee in bankruptcy to exploit a favorable state law—here, a longer statute of limitations—thereby circumventing federal law. In doing so, the Court risks undermining the nation\u27s delicate system of structural federalism

The Solicitor General, Consistency, and Credibility

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on the meaning of the law, and to unpack the connections between consistency and credibility. To assess these questions, we build an original dataset of 131 cases, dating from 1892 to the close of the Court’s 2022 Term, that include such reversals. A close reading of the cases and associated briefing and oral argument transcripts confirms that changes in the government’s litigating position have become more common in recent decades—but it also reveals significant blind spots in the prevailing picture, which depicts positional changes as a function of political polarization and shifts in presidential administrations. Reversals happen for a variety of (often overlapping) reasons, many of which stem from the SG’s unique role in coordinating litigation across a vast and constantly changing federal government. Indeed, our study calls into question the idea that ideological swings associated with changes of presidential administrations can be isolated, either in theory or in practice, from other sorts of legal, social, and technological changes that shape the government’s understanding of the law. It also shows that the connection between consistency and credibility, while intuitive at first blush, rests on a formalist understanding of law and an unpersuasive equation of the judiciary and the executive. These insights are particularly important today, given the Justices’ willingness to jettison their own longstanding precedents while simultaneously hamstringing administrative agencies’ ability to update or modify policies. The Court’s decision in Loper Bright Enterprises v. Raimondo, overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., endorsed an understanding of the law and legal interpretation in which even the hardest questions have single “best” answers—and, once ascertained, the meaning of the law is fixed. As we show, the Justices’ reactions to litigation reversals by the government rest on similar premises. Given that the SG has powerful incentives to offer arguments that appeal to the Justices, the Court’s skepticism of litigation reversals risks freezing legal interpretation by the government actors who often are best situated—by virtue of democratic accountability and on-the-ground experience—to consider the tradeoffs between stability and change

Civilian Harm and Military Legitimacy: Evidence from the Battle of Mosul

The legitimacy of armed forces in the eyes of civilians is increasingly recognized as crucial not only for battlefield effectiveness but also for conflict resolution and peace building. However, the concept of “military legitimacy” remains under-theorized and its determinants poorly understood. We argue that perceptions of military legitimacy are shaped by two key dimensions of warfare: just cause and just conduct. Leveraging naturally occurring variation during one of the deadliest urban battles in recent history—the multinational campaign to defeat the Islamic State in Mosul, Iraq—we evaluate our theory using a mixed-methods design that combines original survey data, satellite imagery, and interviews. Civilians living in neighborhoods where armed forces were less careful to protect civilians view those forces as less legitimate than civilians elsewhere. Surprisingly, these results persist after conditioning on personal experiences of harm, suggesting that perceptions are influenced not only by victimization—consistent with previous studies—but also by beliefs about the morality of armed forces’ conduct and the cause for which they are fighting

National Security Law and Business

Moderator: Prof Robert E. “Bobby” Bishop, associate professor, Duke Law School Panelists: Ms. Rachael D. Kent, Vice Chair, International Arbitration Practice Group, WilmerHale Prof Timothy Meyer, Richard Allen/Cravath Distinguished Professor in International Business Law, Duke University School of Law Ms. Jennifer S. Zucker, Co-Chair, Government Contracts Practice, Greenberg Trauig, LLP Ms. Caroline E. Brown, Partner, Crowell & Moring, member of the firm’s International Trade groups and serves on the National Security Practice steering committe