Current Issue

  • Volume 40,
  • Number 3 -
  • June 2024

Note From the Editor


Blight Made Right: Defects in State Condemnation Laws and a Roadmap for Reform in Alaska and Beyond
Sam Spiegelman

Susette Kelo’s old house in New London, Connecticut is long gone, as is the entire Fort Trumbull neighborhood that once surrounded it. In 2005, the U.S. Supreme Court decided a case—Kelo v. City of New London—that cost her and her neighbors their homes and sparked a wave of state-level reforms to mitigate its potential damage to private property. In Kelo, the Court held that “economic development” as a “public purpose” was also a legitimate “public use” under the Fifth Amendment’s Takings Clause, which provides “nor shall private property be taken for public use, without just compensation.” As Justice Clarence Thomas noted in his dissent: “If such ‘economic development’ takings are for a ‘public use,’ any taking is, and the Court has erased the Public Use Clause from our Constitution.” The risks to private property this approach presents are at their greatest when governments stretch the meaning of “blight” to essentially cover anything that impedes public progress, whatever lawmakers themselves conceive that to be.

This Article discusses the last roughly two decades of public-use jurisprudence and places Alaska’s response to Kelo in conversation with other states’. In places like New York, Arkansas, and Massachusetts, Kelo and other Supreme Court precedents have together swung state-level precedent on the topic too far in government’s favor. There, owners largely bear the burden of proving that the government has no good (or even decent) reason for condemning their properties.

On the other end of the spectrum, states including Florida and Michigan have read “public use” much more narrowly—and in a manner that far more closely reflects the original public meaning of the Takings Clause. The piece concludes with an exploration of recent efforts to expand the definition of blight in Alaska, and a discussion of judicial and popular means of protecting the status quo—or better yet improving upon it—in the fortunate event that Alaska’s legislature does not redefine “blight,” as some lawmakers have threatened in the recent past.

“Still Broken”: Alaska Rule of Professional Conduct 8.4(f) and (g)’s Insufficient Response to Workplace Harassment by Lawyers
Sam Turner

A report by Women Lawyers On Guard, entitled “Still Broken,” reported the results of a 2019 survey about sexual harassment and misconduct in the legal profession. It concluded that issues relating to sexual harassment and misconduct in the legal profession had not improved in the past thirty years. This Article looks at the Alaska Rules of Professional Conduct’s rule regarding harassment and discrimination by lawyers and argues that the rule does not sufficiently address workplace harassment by lawyers.

Alaska Rule of Professional Conduct 8.4(f), enacted in 2021, prohibits harassment or invidious discrimination by a lawyer “in the lawyer’s dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer’s firm” only if “the lawyer’s conduct results in a final agency or judicial determination of employment misconduct or discrimination.” But the nature of employment discrimination law and harassment in the legal profession means that very few instances of workplace harassment will result in formal findings by an agency or court.

The Article therefore recommends Alaska Rule of Professional Conduct 8.4(f) be amended to prohibit harassment or invidious discrimination “in the lawyer’s dealings with the lawyers, paralegals, and others working for that lawyer or for that lawyer’s firm”—subject to normal bar disciplinary proceedings and without any requirement of findings from an outside agency or a court. The Article also recommends adding a comment to the rule stating that firms, or at least large firms, should have and regularly disseminate an anti-harassment policy.

Practitioner Guide

Alaska’s Recognition of Tribes: Alaska House Bill 123 and Tribal Trust Lands
Gloria R. Jacobsen

For decades, the United States Department of the Interior’s land acquisition regulations included an “Alaska Exception” that barred acquisition of land into trust in Alaska apart from those acquisitions made for the Metlakatla Indian Community. Although the “Alaska Exception” was initially removed from the regulations in 2014, the fight continues over land-into-trust acquisitions within Alaska. Throughout these debates, the state of Alaska has consistently opposed land-into-trust acquisitions. This Practitioner Guide provides an overview of the recent history of land-into-trust acquisitions in Alaska and analyzes the juxtaposition of the intent behind Alaska’s “State Recognition of Tribes” in House Bill 123 and the continuing state opposition to land-into-trust applications. Specifically, this Practitioner Guide argues that, without state collaboration and cooperation with Tribal Nations on land-into-trust issues, House Bill 123, which was meant to signify “the State’s desire to foster engagement with Alaska Natives and tribal organizations,” ultimately rings hollow.


Facial Recognition AI: Alaska Is an Ideal Forum for Introducing Regulation
Sarah Edwards

As artificial intelligence becomes increasingly commonplace, we are all exposed to shockingly dystopian forms of surveillance. This Note details the unique danger of facial recognition technologies powered by artificial intelligence. First, this Note examines the rise of facial recognition technologies in both the public and the private sector. It illustrates this phenomenon by highlighting a few key players in both the development and implementation of facial recognition. Second, it proceeds by examining the current privacy landscape in Alaska. Alaska’s unique focus on privacy rights makes the State a promising forum for regulation. Finally, it provides possible statutory and judicial solutions to stop the spread of these technologies and secure the privacy rights of Alaskan citizens and visitors.


Kohlhaas v. State: Encouraging Democratic Reform Through Constitutional Flexibility
Allyson Barkley & Connor Sakati

In the spirit of democracy reform, Alaska recently adopted a jungle primary and ranked choice voting electoral system for all state-wide elections. In Kohlhaas v. State, the Alaska Supreme Court upheld this reform against numerous state and federal constitutional challenges. While doing so, the court avoided rigid constitutional interpretations that would have frozen the electoral system in its current first-past-the-post state. Moreover, the court refused to credit the plaintiff’s speculation about the hypothetical malign effects of ranked-choice voting, placing the burden to produce hard evidence of their critiques on RCV’s opponents. Alaska can serve as a model for other states, as those states increasingly consider adopting electoral reforms of their own and must interpret similar state constitutional language.