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Articles 31 - 43 of 43
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Where Are My Children … And My Rights? Parental Rights Termination As A Consequence Of Deportation, C. Elizabeth Hall
Where Are My Children … And My Rights? Parental Rights Termination As A Consequence Of Deportation, C. Elizabeth Hall
Duke Law Journal
The U.S. Supreme Court has set out a constitutional framework under which termination-of-parental-rights cases must be adjudicated in state courts. In all cases, this framework requires proof of parental unfitness by clear and convincing evidence before parental rights can be terminated, even when the parents in question are illegal immigrants. Despite this framework, in a rash of recently published cases, courts have terminated the parental rights of illegal immigrant parents without regard for these requirements. Those who work closely with immigrants fear that the published instances are merely the tip of the iceberg. This Note aims to shed light on …
Mohammed Jawad And The Military Commissions Of Guantánamo, David J. R. Frakt
Mohammed Jawad And The Military Commissions Of Guantánamo, David J. R. Frakt
Duke Law Journal
On December 17, 2002, Mohammed Jawad, then about fourteen or fifteen years old, was arrested by Afghan police on suspicion of involvement in a single grenade attack on a U.S. military jeep in a crowded public bazaar in Kabul. The attack injured two U.S. service members and their local interpreter. According to news accounts and public statements by senior Afghan officials, multiple persons were arrested for and confessed to this crime. But Jawad was the only suspect handed over to U.S. authorities. Before turning him over, Afghan officials threatened to kill Jawad or a member of his family if he …
Prescription For Fairness: A New Approach To Tort Liability Of Brand-Name And Generic Drug Manufacturers, Allen Rostron
Prescription For Fairness: A New Approach To Tort Liability Of Brand-Name And Generic Drug Manufacturers, Allen Rostron
Duke Law Journal
Over the past two decades, courts have consistently ruled that the manufacturer of a brand-name prescription drug cannot be liable for injuries suffered by those taking generic imitations of its product. This meant that a patient injured by a generic drug could have no remedy at all because in many instances the generic drug manufacturer would escape liability on the ground that it did not produce any information on which the patient's doctor relied. It was a perplexing dilemma. The generic drug manufacturer made the product that the plaintiff received, the brand-name manufacturer produced all of the information the patient's …
Relevance And Fairness: Protecting The Rights Of Domestic-Violence Victims And Left-Behind Fathers Under The Hague Convention On International Child Abduction, Noah L. Browne
Duke Law Journal
Thirty years ago, the international community took a hard line against international parental kidnapping. The Hague Convention on the Civil Aspects of International Child Abduction allows parental child abduction only in rare circumstances, such as when returning the child would create a "grave risk" of harm. Recently, mothers who have abducted their children when fleeing domestic violence have successfully pled this grave-risk exception, demonstrating the Convention's relevance to the realities of domestic violence. This Note welcomes that development, but argues that the rights of left-behind parents, who increasingly are fathers, must also be taken into account. Left-behind fathers, whether guilty …
Executive Deference In U.S. Refugee Law: Internationalist Paths Through And Beyond Chevron, Bassina Farbenblum
Executive Deference In U.S. Refugee Law: Internationalist Paths Through And Beyond Chevron, Bassina Farbenblum
Duke Law Journal
No abstract provided.
“There Is Something Unique … About The Government Funding Of The Arts For First Amendment Purposes”: An Institutional Approach To Granting Government Entities Free Speech Rights, Leslie Cooper Mahaffey
“There Is Something Unique … About The Government Funding Of The Arts For First Amendment Purposes”: An Institutional Approach To Granting Government Entities Free Speech Rights, Leslie Cooper Mahaffey
Duke Law Journal
The common understanding of the First Amendment is that its purpose is primarily libertarian, serving to protect private citizens' expression from government censorship. In the modern era, however, the government's pervasive presence-especially in the role of funder of private activity-has blurred the lines between governmental and private speech. Further, the relatively new, increasingly influential government speech doctrine-which dictates that the government will not be subjected to First Amendment scrutiny when it is engaging in communication-has been the Supreme Court's guidepost of late when the Court has been confronted with a case involving expression with both private and public elements. The …
Congressional Manipulation Of The Sentencing Guideline For Child Pornography Possession: An Argument For Or Against Deference?, John Gabriel Woodlee
Congressional Manipulation Of The Sentencing Guideline For Child Pornography Possession: An Argument For Or Against Deference?, John Gabriel Woodlee
Duke Law Journal
Many proponents of the Federal Sentencing Guidelines envisioned a system in which a politically insulated agency would craft guidelines based on empirical study. This vision of the now-advisory Guidelines survives in Supreme Court opinions that appear to accept that the work of the U.S. Sentencing Commission, the agency tasked with formulating the Guidelines, is driven largely by empirical analysis. This vision has created uncertainty, however, about how much deference courts should show particular Guidelines-such as Section 2G2.2, the Guideline applicable to possession of child pornography- that do not reflect empirical study by the Commission, but that have instead been shaped …
Blind Dates: When Should The Statute Of Limitations Begin To Run On A Method-Of-Execution Challenge?, Ty Alper
Blind Dates: When Should The Statute Of Limitations Begin To Run On A Method-Of-Execution Challenge?, Ty Alper
Duke Law Journal
This Article is the first to take a comprehensive look at the issue of statute-of-limitations accrual in method-of-execution cases. In other words, when does the clock start ticking on a death row inmate's right to challenge the way in which the state intends to execute him? Most circuit courts have held that method-of-execution challenges accrue at the completion of the direct appeal process. This means that death row inmates in these jurisdictions must file method-of-execution challenges years, and sometimes even decades, before an actual execution is scheduled. Although this approach has been the subject of much criticism, even the dissenting …
Rethinking Novelty In Patent Law, Sean B. Seymore
Rethinking Novelty In Patent Law, Sean B. Seymore
Duke Law Journal
The novelty requirement seeks to ensure that a patent will not issue if the public already possesses the invention. Although gauging possession is usually straightforward for simple inventions, it can be difficult for those in complex fields like biotechnology, chemistry, and pharmaceuticals. For example, if a drug company seeks to patent a promising molecule that was disclosed but never physically made in the prior art, the key possession question is whether a person having ordinary skill in the art (PHOSITA) could have made it at the time of the prior disclosure. Put differently, could the PHOSITA rely on then-existing knowledge …
Fee Shifting In Investor-State Arbitration: Doctrine And Policy Justifying Application Of The English Rule, David P. Riesenberg
Fee Shifting In Investor-State Arbitration: Doctrine And Policy Justifying Application Of The English Rule, David P. Riesenberg
Duke Law Journal
In investor-state arbitration, tribunals can and should apply the English rule on legal costs and abandon the two alternatives, the American rule and the pro-claimant rule. Under the English rule, the unsuccessful party in a dispute must indemnify the prevailing party for the costs of dispute resolution. Both doctrine and public policy support the application of the English rule, particularly in light of the much-publicized backlash against the investor-state arbitration system. Most importantly, the English rule would help to mitigate the two most commonly identified causes of the backlash the system's alleged proinvestor bias and its chilling effect on host …