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Articles 1 - 30 of 131
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Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar
Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar
Faculty Scholarship
No abstract provided.
Six Degrees Of Separation: Attribution Under The Foreign Sovereign Immunities Act In Obb Personenverkehr Ag V. Sachs, Daniel R. Echeverri
Six Degrees Of Separation: Attribution Under The Foreign Sovereign Immunities Act In Obb Personenverkehr Ag V. Sachs, Daniel R. Echeverri
Duke Journal of Constitutional Law & Public Policy Sidebar
The Foreign Sovereign Immunities Act (FSIA) generally prevents foreign sovereigns from falling within the jurisdiction of U.S. courts, subject to exceptions the FSIA lists. This commentary analyzes BB Personenverkehr AG v. Sachs, a case before the Supreme Court on the question of whether the commercial activities exception of the FSIA applies when only one element of a plaintiff's claim is based upon commercial activity occurring in the United States and whether that sale can be attributed to a foreign sovereign. In this case, the plaintiff purchased a rail pass through an online, third-party travel agent. While traveling abroad and …
Implementing Marriage Equality In America, Carl Tobias
Implementing Marriage Equality In America, Carl Tobias
Duke Law Journal Online
No abstract provided.
Exotic Addiction, Melissa A. Morgan
Exotic Addiction, Melissa A. Morgan
Duke Law Journal Online
With an annual profit between $10 and $20 billion, animal smuggling has become the third largest illegal trade in the world, behind only drugs and firearms, and the results are devastating to humans and animals alike. Zoonotic diseases are spreading, animal attack incidents are increasing, and several species are rapidly approaching extinction. This raises several questions that have been largely unanswered: What is causing the increase in demand? How serious are the effects? Why isn’t the law effective in preventing this? What can be done to slow this trend? This Comment attempts to answer these questions by investigating the causes …
A Fourth Way? Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz
A Fourth Way? Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz
Duke Law Journal Online
Ron Krotoszynski has written a very interesting interpretation and defense of Justice Breyer’s majority opinion in Noel Canning. In Krotoszynski’s account, the opinion is a paragon of “pragmatic formalism,” a two-step process that navigates deftly between the Scylla of hidebound formalism and the Charybdis of unmoored functionalism. The pragmatic formalist, Krotoszynski explains, begins by applying formalist tools, pulled from the standard textualist toolbox. In some cases, those tools will suffice to get to a determinate answer; if so, the pragmatic formalist is done. But the pragmatic formalist also recognizes that, in many situations, formalist tools are underdeterminate; when …
“Advice And Consent” In The Appointments Clause: From Another Historical Perspective, Steven I. Friedland
“Advice And Consent” In The Appointments Clause: From Another Historical Perspective, Steven I. Friedland
Duke Law Journal Online
This Essay, a response to Russell L. Weaver's symposium contribution, "Advice and Consent" in Historical Perspective, first explores the Appointments Clause’s antecedents in the Age of Enlightenment and its emergence in the Constitutional Convention in 1787, showing how its sturdy separation-of-powers foundation was built. In Part II, the Essay focuses on the historical realities of the Clause’s two-branch process, especially how the operability of two political bodies naturally yields results consonant with the etiquette and political sensibilities of the day. Then, in Part III, it offers several suggestions on how to cabin the potentially untrammeled discretion of the Senate …
The Need For A Law Of Church And Market, Nathan B. Oman
The Need For A Law Of Church And Market, Nathan B. Oman
Duke Law Journal Online
This Essay uses The Challenge of Co-Religionist Commerce, by Professors Michael Helfand and Barak Richman, as a means of raising the issue of the "law of church and market." In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce …
Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss
Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss
Duke Journal of Constitutional Law & Public Policy Sidebar
In Crawford v. Washington, the Supreme Court declared that an accused right under the Constitution to confront the witnesses against him applied only to “testimonial statements.” That decision, however, did not attempt to fully define the scope of testimonial statements. This commentary analyzes Ohio v. Clark, a case which will decide the question of whether statements made by a child to a person with a duty to report allegations of child abuse are testimonial statements. In this case a young child was questioned at school by a teaching assistant about his injuries. This statement was then offered in …
Hiding In Plain Sight: Jesinoski And The Consumer’S Right Of Rescission, Milan Prodanovic
Hiding In Plain Sight: Jesinoski And The Consumer’S Right Of Rescission, Milan Prodanovic
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Keeping Civil Rights Debates Civil: Removing Opportunities For Prejudice, Steven Saracco
Keeping Civil Rights Debates Civil: Removing Opportunities For Prejudice, Steven Saracco
Duke Journal of Constitutional Law & Public Policy Sidebar
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion in employment decisions made by private employers. This commentary analyzes Equal Employment Opportunity Commission v. Abercrombie & Fitch, a case before the Supreme Court on the issue of whether a job applicant bears the burden of expressly notifying an employer of a conflict between the applicant’s religious beliefs and the employer’s policies before the employer must offer a reasonable accommodation. This case deals with a Muslim woman who was denied employment at a clothing store because her headdress was deemed to be a …
Punishing The Poor Through Welfare Reform: Cruel And Unusual?, Jennifer E.K. Kendrex
Punishing The Poor Through Welfare Reform: Cruel And Unusual?, Jennifer E.K. Kendrex
Duke Law Journal Online
This Comment aims to show how the Eighth Amendment intersects with welfare reform and what constitutional limits exist vis-à-vis welfare restrictions for society’s neediest citizens. Part I explores Eighth Amendment jurisprudence and its historical underpinnings and will provide background on the 1996 welfare reforms. Part II explores whether welfare reforms penalize individuals for their status as “poor” or “unemployed” and whether this constitutes cruel and unusual punishment. Finally, Part III illustrates how welfare programs can be reformed for constitutional compliance.
Violently Possessed: Johnson As The Vehicle For Limiting Sentencing Enhancement Under The Armed Career Criminals Act, Jonathan Robe
Violently Possessed: Johnson As The Vehicle For Limiting Sentencing Enhancement Under The Armed Career Criminals Act, Jonathan Robe
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Johnson v. United States in which the Court will decide whether conviction for mere possession of a short-barreled shotgun qualifies as a "violent felony" that warrants sentence-enhancement under the Armed Career Criminals Act. The Author argues that he plain text of the statute and the Court's prior cases on the issue suggest tat convictions for "mere possession" do not satisfy the definition of "violent felony" and that the Court should overturn the Eighth Circuit's ruling upholding Johnson's sentence enhancement.
Is That A Threat?: Elonis V. United States And The Standard Of Intent For True Threat Convictions, Peter S. Larson
Is That A Threat?: Elonis V. United States And The Standard Of Intent For True Threat Convictions, Peter S. Larson
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary analyzes the Supreme Court case Elonis v. United States where the Court will determine the applicable criminal-intent standard required to convict a defendant for threatening speech. After a series of violent Facebook posts against coworkers and his estranged wife, Petitioner Elonis was convicted for making so-called "true threats" of violence--speech not granted First-Amendment protection. Elonis argues that the prosecution should have been required to prove that he actually had the intent to threaten people when he wrote the posts, not simply that a reasonable person would find the posts threatening. The Author argues that the Court should rule …
The Divisibility Of Crime, Jessica A. Roth
The Divisibility Of Crime, Jessica A. Roth
Duke Law Journal Online
Near the end of the Supreme Court's 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies. Descamps represents the Court's most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction "counts" for purposes of …
Up In The Air: Department Of Homeland Security V. Maclean And The Whistleblower Protection Act, Mike Brett
Up In The Air: Department Of Homeland Security V. Maclean And The Whistleblower Protection Act, Mike Brett
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary analyzes the Supreme Court case Department of Homeland Security v. MacLean deciding whether an employee of the Department of Homeland Security comes under the protection of the Whistleblower Protection Act when they release potentially sensitive information to the media. Generally, the Act protects whistleblowers unless the information they release is not allowed "as specified by law." The particular statutory question in this case is whether the "law" prohibiting release must be contained in a statute, or can include the Department of Homeland Security's own promulgated regulation. The Author profiles the background of the case, applicable legal precedent, and …
Zivotofsky V. Kerry: Of Passports, Politics, And Foreign Policy Powers, Cara J. Grand
Zivotofsky V. Kerry: Of Passports, Politics, And Foreign Policy Powers, Cara J. Grand
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary profiles the upcoming Supreme Court decision in Zivotofsky v. Kerry, which will decide, for the first time in United States history, the dividing line between legislative and executive authority to recognize foreign nations. Though it emanates from a seemingly-benign passport disagreement about a place-of-birth designation, this case will address an unprecedented and extremely controversial issue about separation of powers that has somehow evaded a Supreme Court decision. The Author profiles the case history and applicable legal precedent and analyzes the arguments for both sides before recommending that the Court should not find the President's power in this …
Jennings V. Stephens And Judicial Efficiency In Habeas Appeals, Eric O'Brien
Jennings V. Stephens And Judicial Efficiency In Habeas Appeals, Eric O'Brien
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews the Supreme Court case Jennings v. Stevens which deals with several areas of federal habeas corpus law and procedure. The Court will consider, inter alia, whether a habeas petitioner who succeeds in federal district court nevertheless needs to request a certificate of appealability to bring an alternate grounds for habeas relief at the appellate level. Further, the Court can resolve a major circuit split on whether a court considering an ineffective assistance of counsel claim should consider each instance of ineffective assistance as a single claim or as all parts of one claim. Eric O'Brien suggests …
The Rule Of Law As A Law Of Standards: Interpreting The Internal Revenue Code, Alice G. Abreu, Richard K. Greenstein
The Rule Of Law As A Law Of Standards: Interpreting The Internal Revenue Code, Alice G. Abreu, Richard K. Greenstein
Duke Law Journal Online
This Essay seeks to demonstrate that the interpretive use of standards in applying provisions of the Internal Revenue Code is not inconsistent with the rule of law. Part I discusses the relationship between rules and the rule of law and explains why we think so many tax scholars are drawn to a view of the tax law as consisting primarily of rules. We then demonstrate that the definition of income is properly understood as a standard. Part II addresses the descriptive dimension of this claim, summarizing and expanding our previous discussion of the definition of income to determine whether the …
The Year In Review 2014: Selected Cases From The Alaska Supreme Court And The Alaska Court Of Appeals
Alaska Law Review Year in Review
No abstract provided.
Brief Of Prof. Steven L. Schwarcz As Amicus Curiae, Steven L. Schwarcz
Brief Of Prof. Steven L. Schwarcz As Amicus Curiae, Steven L. Schwarcz
Faculty Scholarship
No abstract provided.
When Biopharma Meets Software: Bioinformatics At The Patent Office, Saurabh Vishnubhakat, Arti K. Rai
When Biopharma Meets Software: Bioinformatics At The Patent Office, Saurabh Vishnubhakat, Arti K. Rai
Faculty Scholarship
Scholars have spilled much ink questioning patent quality. Complaints encompass concern about incoming applications, examination by the U.S. Patent and Trademark Office (“USPTO”), and the USPTO’s ultimate output. The literature and some empirical data also suggest, however, that applications, examination, and output may differ considerably based on technology. Most notably, although definitions of patent quality are contested, quality in the biopharmaceutical industry is often considered substantially higher than that in information and communications technology (ICT) industries.
This Article presents the first empirical examination of what happens when the two fields are combined. Specifically, it analyzes the creation and early history …
"Least Restrictive Means”: Burwell V. Hobby Lobby, Noah Marks
"Least Restrictive Means”: Burwell V. Hobby Lobby, Noah Marks
Faculty Scholarship
No abstract provided.
Equity By The Numbers: Measuring Poverty, Inequality, And Injustice, Matthew D. Adler
Equity By The Numbers: Measuring Poverty, Inequality, And Injustice, Matthew D. Adler
Faculty Scholarship
Can we measure inequity? Can we arrive at a number or numbers capturing the extent to which a given society is equitable or inequitable? Sometimes such questions are answered with a “no”: equity is a qualitative, non-numerical consideration.
This Article offers a different perspective. The difficulty with equity measurement is not the impossibility of quantification, but the overabundance of possible metrics. There currently exist at least four families of equity-measurement frameworks, used by scholars and, to some extent, governments: inequality metrics (such as the Gini coefficient), poverty metrics, social-gradient metrics (such as the concentration index), and equity-regarding social welfare functions. …
Law Libraries And Laboratories: The Legacies Of Langdell And His Metaphor, Richard A. Danner
Law Libraries And Laboratories: The Legacies Of Langdell And His Metaphor, Richard A. Danner
Faculty Scholarship
Law Librarians and others have often referred to Harvard Law School Dean C.C. Langdell’s statements that the law library is the lawyer’s laboratory. Professor Danner examines the context of what Langdell through his other writings, the educational environment at Harvard in the late nineteenth century, and the changing perceptions of university libraries generally. He then considers how the “laboratory metaphor” has been applied by librarians and legal scholars during the twentieth century and into the twenty-first. The article closes with thoughts on Langdell’s legacy for law librarians and the usefulness of the laboratory metaphor.
Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley
Agora: Reflections On Zivotofsky V. Kerry : Historical Gloss, The Recognition Power, And Judicial Review, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie
The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie
Faculty Scholarship
There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …
Wealth And Democracy, Jedediah Purdy
Wealth And Democracy, Jedediah Purdy
Faculty Scholarship
The renewed debate over inequality has highlighted a set of deficits in much of the last fifty-plus years of thinking on the topic. The late twentieth-century tradition of thinking about distributive justice largely assumed (1) that market dynamics would produce stable and tolerable levels of inequality; and (2) that a relatively powerful, competent, and legitimate state could effectively redistribute to mitigate what inequality did arise. What was largely overlooked in this thought and has since risen to central attention is the prospect that (1) accelerating levels of market-produced inequality will (2) undermine the legitimacy and efficacy of the state and …
Law Firm Selection And The Value Of Transactional Lawyering, Elisabeth De Fontenay
Law Firm Selection And The Value Of Transactional Lawyering, Elisabeth De Fontenay
Faculty Scholarship
Following the contraction in demand for law firms’ services during the Great Recession, “Big Law” was widely diagnosed as suffering from several maladies that would spell its ultimate demise, including excessive fees, excessive size, increased competition from in-house counsel, the commoditization of legal work, and the decline in demand for “relationship firms.” While each of these market pressures is only too real for certain segments of the law-firm population, their threat to the most elite U.S. law firms has been largely misunderstood. Even as many firms reduce their fees and contract in size, we should expect certain firms to continue …
Brief Of Corporate Law Professors As Amici Curie In Support Of Respondents, John C. Coates, Lucian A. Bebchuk, Bernard S. Black, John C. Coffee, James D. Cox, Ronald J. Gilson, Jeffrey N. Gordon, Lawrence Hamermesh, Henry B. Hansmann, Robert J. Jackson Jr., Marcel Kahan, Vikramaditya S. Khanna, Michael Klausner, Reinier H. Kraakman, Donald C. Langevoort, Brian Jm Quinn, Edward B. Rock, Mark J. Roe, Helen S. Scott
Brief Of Corporate Law Professors As Amici Curie In Support Of Respondents, John C. Coates, Lucian A. Bebchuk, Bernard S. Black, John C. Coffee, James D. Cox, Ronald J. Gilson, Jeffrey N. Gordon, Lawrence Hamermesh, Henry B. Hansmann, Robert J. Jackson Jr., Marcel Kahan, Vikramaditya S. Khanna, Michael Klausner, Reinier H. Kraakman, Donald C. Langevoort, Brian Jm Quinn, Edward B. Rock, Mark J. Roe, Helen S. Scott
Faculty Scholarship
The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt …
The Effect Of Statutory Rape Laws On Teen Birth Rates, Michael D. Frakes, Matthew C. Harding
The Effect Of Statutory Rape Laws On Teen Birth Rates, Michael D. Frakes, Matthew C. Harding
Faculty Scholarship
Policymakers have often been explicit in expanding statutory rape laws to reduce teenage pregnancies and live births by teenage mothers, often with the goal of reducing associated welfare outlays. In this paper, we explore whether expansions in such laws are indeed associated with reductions in teen birth rates. In order to codify statutory-rape-law expansions, we use a national micro-level sample of sexual encounters to simulate the degree to which such encounters generally implicate the relevant laws. By codifying statutory-rape laws in terms of their potential reach into sexual encounters, as opposed to using crude binary treatment variables, this simulation approach …