Current Issue

  • Volume 38,
  • Number 2 -
  • December 2021

Note From the Editor
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Article

The Ballot is Stronger than the Bullet: Alaska’s Superior Strict Scrutiny Approach to Ballot Access Laws
Ben Sheppard & Josh Guckert
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Restrictive ballot access laws are the most burdensome requirement for third-party candidates. Such laws implicate First Amendment freedoms to associate both publicly and privately with like-minded individuals in order to advance political causes. Alaskan courts review state ballot access laws under the demanding standard of strict scrutiny. This standard was adopted through the efforts of Joe Vogler and his Alaskan Independence Party. The authors contend that such a standard has fostered Alaska’s unique openness toward third-party candidacies. Nonetheless, the Supreme Court of the United States does not utilize this same strict scrutiny review, instead using the Anderson-Burdick test, which balances the interests of the state in election maintenance with the burden on First Amendment rights. The authors argue that Alaska’s strict scrutiny approach is superior to the Supreme Court’s Anderson-Burdick balancing test because it creates a predictable test and protects First Amendment associational freedoms.

Essay

State Revenue Dedicated for Special Purposes: A Proposed Constitutional Amendment
Mark Andrews
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The Alaska State budget has decreased in recent years, and because of the lower price of oil, it is not expected to recover in the near term. This smaller budgetary pie may intensify the impulse to protect the funding of individual projects. However, the Alaska Constitution forbids the dedication of taxes for specific purposes. This Essay proposes a state constitutional amendment that would allow such dedications, subject to limits designed to avoid potential problems. The Essay describes the effect the proposal would have had on past decisions of the Alaska Supreme Court and compares the dedication of tax revenue to the “New Property” identified by Charles Reich.

Notes

Do You Know It When You See It? Using Alaska’s Child Pornography Statute as a Nationwide Model for Proscribing Morphed Images
Daisy Gray
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In 1982, the United States Supreme Court addressed the tension between free speech and protecting children by holding child pornography outside the scope of First Amendment protections. Critical to the Court’s decision was the fact that child sexual abuse is necessary to produce child pornography. But what if technological advancement removed child abuse from the equation? The recent phenomena of virtual child pornography and morphed images involve the digital alteration of adult pornography to create the appearance of child pornography. The Alaska legislature amended its child pornography statute in response to these developments, proscribing the possession of morphed images. While the federal government has attempted to regulate this digitally altered child pornography, the majority of states aside from Alaska remain silent on the issue. This Note explores the relationship between free speech jurisprudence and the harm that morphed images pose to children, arguing that Alaska’s child pornography statute is a promising model for other states to address the threat that digital child pornography poses. However, this Note concludes that pornographic material must be intrinsically related to child abuse to justify its prohibition. Accordingly, this Note argues that while a state statutory ban on materials that rely exclusively on digital doctoring is likely unconstitutional, the Alaska statute prohibiting pornographic images that involve the digital editing of an identifiable child’s face onto an adult’s body is constitutional. Other states should thus follow Alaska’s example and enact a statutory ban on morphed images to ensure efforts to protect children keep pace with technological advancement.

Real Property, Real Problems: Expanding Alaska’s Unfair Trade Practices and Consumer Protection Act
Michael E. Keramidas
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Alaska’s Unfair and Deceptive Acts and Practices (UDAP) statute was designed to provide broad, robust protections for everyday Alaskan consumers. Astonishingly, Alaska is one of only three states that does not protect Alaskans under its UDAP statute when they fall victim to fraudulent schemes involving real property. The Alaska Supreme Court has consistently upheld this interpretation of the UDAP statute by relying on precedent from over thirty years ago. At the same time, due to the COVID-19 pandemic, everyday Alaskans are more economically vulnerable than ever before, with the atmosphere being ripe for proliferation of fraudulent real property schemes. This Note argues that the court has misapplied precedent and must therefore reevaluate the statute’s application to real property transactions, especially because the statute has been amended and strengthened since the court’s original rulings. If it does not, because of the sheer importance of housing in everyday life, a significant portion of the population could face devastating consequences not only to their economic wellbeing but also to their safety, security, and livelihood.

Legalizing Local: Alaska’s Unique Opportunity to Create an Equitable and Sustainable Seaweed Farming Industry
Logan Miller
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The seaweed farming industry in Alaska is in its nascent stages. There is tremendous potential for growth, but also risk of exploitation and inequitable outcomes. Alaskans have a unique and urgent opportunity to enact policies that can ensure and promote equitable, sustainable development that centers the voices and interests of marginalized groups—including Indigenous and rural populations—and provides benefits to local economies. This Note seeks to contribute to the creation of a sound policy framework for the responsible development of Alaska’s seaweed farming industry by advancing both a theoretical framework and specific policy recommendations. Drawing from the experiences of other jurisdictions and Alaska’s fishing industry, this Note suggests various policies that could be used to promote the development of the seaweed industry in ways that benefit local, rural, and Alaska Native populations. It then discusses potential legal barriers to the implementation of those policies and proposes strategies for navigating those barriers. This analysis involves state and federal law and could be applied to other jurisdictions seeking to promote equitable, sustainable local development. Finally, this Note advances several specific recommendations intended to help Alaskans realize an equitable, sustainable seaweed farming industry. These include: creating restrictions on seaweed farm leases, implementing policies that promote local participation and ownership, and promoting the development of cooperative businesses.

Comment

Ware v. Ware and the Presumption of Undue Influence in Confidential Relationships
Ian W. Fraser
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Alaska law has long recognized that a presumption of undue influence arises as a matter of law when a will’s primary beneficiary participates in its drafting and has a fiduciary or confidential relationship with the testator. In its 2007 decision Ware v. Ware, the Alaska Supreme Court extended this principle beyond testamentary scenarios to any situation in which the principal in a confidential relationship benefits from the relationship. But the decision stated the law incorrectly. The court’s analysis, cited precedents, and common sense all demonstrate that the court meant to say that the presumption of undue influence arises when a fiduciary in a confidential relationship benefits from the relationship, not when a principal benefits.