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Articles 1 - 30 of 291
Full-Text Articles in Law
Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen
Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen
Faculty Scholarship
Introduction to an issue of the journal that brings together the papers presented, as revised by the participants, at a conference held at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany in the summer of 2007.
The New European Choice-Of-Law Revolution, Ralf Michaels
The New European Choice-Of-Law Revolution, Ralf Michaels
Faculty Scholarship
Conflict of laws in Europe was long viewed by outsiders as formalist, antiquated, and uninteresting. Now that the European Union has become more active in the field, things are changing, but most view these changes as a mere gradual evolution. This is untrue. Actually, and fascinatingly, we are observing a real European conflicts revolution—in importance, radicalness, and irreversibility comparable to the twentieth-century American conflicts revolution. European developments go beyond the federalization of choice-of-law rules in EU regulations. In addition, EU choice of law is being constitutionalized, in particular through the principles of mutual recognition and the country-of-origin principle, along with …
Arizona V. Johnson: Determining When A Terry Stop Becomes Consensual, Ryan Thompson
Arizona V. Johnson: Determining When A Terry Stop Becomes Consensual, Ryan Thompson
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Pacific Bell V. Linkline: Price Squeezing And The Limits Of Judicial Administrability, Sandeep Vaheesan
Pacific Bell V. Linkline: Price Squeezing And The Limits Of Judicial Administrability, Sandeep Vaheesan
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Fitzgerald V. Barnstable School Committee: Enforcement Of Constitutional Rights, Sarah Branstetter
Fitzgerald V. Barnstable School Committee: Enforcement Of Constitutional Rights, Sarah Branstetter
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Davis V. Fec: The First Amendment Rights Of A Wealthy Candidate, Jeremy Earl
Davis V. Fec: The First Amendment Rights Of A Wealthy Candidate, Jeremy Earl
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Panetti V. Quarterman: Raising The Bar Against Executing The Incompetent, D. G. Maxted
Panetti V. Quarterman: Raising The Bar Against Executing The Incompetent, D. G. Maxted
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Explaining Change And Rethinking Dirty Words: Fcc V. Fox Television Stations, Inc., Tobias Coleman
Explaining Change And Rethinking Dirty Words: Fcc V. Fox Television Stations, Inc., Tobias Coleman
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Regulation With Placebo Effects, Anup Malani
Regulation With Placebo Effects, Anup Malani
Duke Law Journal
A growing scientific literature supports the existence of placebo effects from a wide range of health interventions and for a range of medical conditions. This Article reviews this literature, examines the implications for law and policy, and suggests future areas for research on placebo effects. In particular, it makes the case for altering the drug approval process to account for, if not credit, placebo effects. It recommends that evidence of placebo effects be permitted as a defense in cases alleging violations of informed consent or false advertising. Finally, it finds that tort law already has doctrines such as joint and …
Milberg’S Monopoly: Restoring Honesty And Competition To The Plaintiffs’ Bar, James P. Mcdonald
Milberg’S Monopoly: Restoring Honesty And Competition To The Plaintiffs’ Bar, James P. Mcdonald
Duke Law Journal
When the renowned plaintiffs' firm Milberg Weiss was indicted in 2006 for paying kickbacks to clients, most commentators saw the scandal as the product of five dishonest lawyers. This Note argues that the causes were more complex than the moral shortcomings of a few attorneys; rather, the kickbacks were but one symptom of a deeply flawed system for selecting lead counsel in securities class action lawsuits. Although the Private Securities Litigation Reform Act of 1995 attempted to curb abusive behavior by the plaintiffs' bar, its focus on reforming plaintiff behavior meant that attorneys were left relatively free to continue using …
Note From The Editor, Kelly Taylor
Spending Clause Litigation In The Roberts Court, Samuel R. Bagenstos
Spending Clause Litigation In The Roberts Court, Samuel R. Bagenstos
Duke Law Journal
Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power tinder Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power tinder the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's exercise of the spending power. But the …
Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions With First Amendment Rights, Brian D. Eyink
Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions With First Amendment Rights, Brian D. Eyink
Duke Law Journal
First created in the 1980s, national security letters and their nondisclosure provisions evaded judicial review until 2004. These secretive investigative tools allow federal agencies such as the FBI to compel disclosure of information about hundreds of thousands of people while also allowing the same agencies to unilaterally issue gag orders that can silence the people who receive these letters. This Note examines the nondisclosure provisions in the national security letter statutes. It argues that the nondisclosure provisions are unconstitutional prior restraints on speech and content-based speech restrictions. This Note then proposes a three-part solution that constitutionally balances the government's need …
Policing The Corporate Citizen: Arguments For Prosecuting Organizations, Daniel L. Cheyette
Policing The Corporate Citizen: Arguments For Prosecuting Organizations, Daniel L. Cheyette
Alaska Law Review
No abstract provided.
Dimond, Not Daubert: Reviving The Discretionary Standard Of Expert Admission In Alaska, Gregory R. Henrikson
Dimond, Not Daubert: Reviving The Discretionary Standard Of Expert Admission In Alaska, Gregory R. Henrikson
Alaska Law Review
No abstract provided.
Marsingill V. O’Malley: The Duty To Disclose Becomes The Duty To Divine, Douglas E. Hutchinson
Marsingill V. O’Malley: The Duty To Disclose Becomes The Duty To Divine, Douglas E. Hutchinson
Alaska Law Review
No abstract provided.
When Parent’S Fight: Alaska’S Presumption Against Awarding Custody To Perpetrators Of Domestic Violence, Lisa Bolotin
When Parent’S Fight: Alaska’S Presumption Against Awarding Custody To Perpetrators Of Domestic Violence, Lisa Bolotin
Alaska Law Review
No abstract provided.
Silence At A Price? Judicial Questionnaires And The Independence Of Alaska’S Judiciary, Kelly Taylor
Silence At A Price? Judicial Questionnaires And The Independence Of Alaska’S Judiciary, Kelly Taylor
Alaska Law Review
No abstract provided.
Pleasant Grove City V. Summum: Identifying Government Speech & Classifying Speech Forums, Aaron Harmon
Pleasant Grove City V. Summum: Identifying Government Speech & Classifying Speech Forums, Aaron Harmon
Duke Journal of Constitutional Law & Public Policy Sidebar
In Pleasant Grove City v. Summum, the Supreme Court must decide whether a privately-donated Ten Commandments monument currently on display in a city park is the private speech of the donor or the government speech of Pleasant Grove City. Summum, a religious organization, sued Pleasant Grove City in federal court claiming that because the city had displayed in a city park a donated Ten Commandments monument, the First Amendment compelled the city to also accept and display Summum's proposed "Seven Aphorisms of Summum" monument. If the Court decides it is the private speech of the donor, it will have to …
The Future Of Generic Biologics: Should The United States “Follow-On” The European Pathway?, Ingrid Kaldre
The Future Of Generic Biologics: Should The United States “Follow-On” The European Pathway?, Ingrid Kaldre
Duke Law & Technology Review
The United States is embarking on a biotechnology drug revolution. In the last few decades, biotech drugs have saved millions of lives, and the market for these miracle cures continues to grow at an astronomical rate. Unfortunately, as the market for biotech drugs is skyrocketing, drug prices are following suit. As Congress strives to make these new drugs more affordable, it must not ignore significant safety concerns unique to these revolutionary therapies. Congress should follow the lead of the European Union to create an accessible pathway for generic forms of biotech drugs that includes strict regulatory measures to ensure drug …
Ksr V. Teleflex: How “Obviousness” Has Changed, Daniel Becker
Ksr V. Teleflex: How “Obviousness” Has Changed, Daniel Becker
Duke Journal of Constitutional Law & Public Policy Sidebar
In KSR v. Teleflex, the Supreme Court examined the Federal Circuit's obviousness jurisprudence for patents. Both prior to and in this case, the Federal Circuit rigidly applied its judicially created "teaching, suggestion, or motivation" (TSM) test to determine whether the prior art would direct an inventor of ordinary skill in the art to combine references or elements in references in the same way as the patentee did. The Supreme Court, however, reversed the decision of the Federal Circuit, and held that by applying the TSM test in such a strict manner, the Federal Circuit had "analyzed the issue in a …
Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’S Incompatibility Clause, Seth Barrett Tillman
Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’S Incompatibility Clause, Seth Barrett Tillman
Duke Journal of Constitutional Law & Public Policy Sidebar
In this Article, Mr. Seth Barrett Tillman challenges the traditional interpretation of the Incompatibility Clause and argues that the President may serve both as the Chief Executive and as a member of Congress. Mr. Tillman utilizes the text, history, and structure of the Constitution to support his position. He ultimately concludes that whoever serves as the next President -- Senator Obama or Senator McCain -- need not resign from the Senate before assuming the Executive Office.
Why The Incompatibility Clause Applies To The Office Of The President, Saikrishna Bangalore Prakash
Why The Incompatibility Clause Applies To The Office Of The President, Saikrishna Bangalore Prakash
Duke Journal of Constitutional Law & Public Policy Sidebar
Professor Saikrishna Bangalore Prakash responds to Mr. Seth Barret Tillman's Article and defends the traditional interpretation of the Incompatibility Clause, under which a President is prohibited from simultaneously serving as a congressional representative. The ramifications that would result if a President could also hold a position in the Senate or the House of Representatives, Professor Prakash argues, are too problematic for Mr. Tillman's reading to replace the traditional understanding of the Incompatibility Clause. Therefore, the next President, whether Senator McCain or Senator Obama, would need to resign from the Senate before assuming the Executive Office.
Victims’ Rights In An Adversary System, Erin C. Blondel
Victims’ Rights In An Adversary System, Erin C. Blondel
Duke Law Journal
The victims' rights movement argues that because the outcome of criminal prosecutions affects crime victims, the justice system should consider their interests during proceedings. In 2004, Congress passed the Crime Victims' Rights Act (CVRA), giving victims some rights to participate in the federal criminal justice system. This Note probes both the theoretical assumptions and practical implications of the CVRA. It demonstrates that the victims' rights movement revisits a long-acknowledged tension between adversary adjudication and third-party interests. It shows, however, that American law has resolved this tension by conferring party or quasi-party status on third parties. Despite some pro-victims rhetoric, Congress …
Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz
Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz
Duke Law Journal
No abstract provided.
The Development And Failure Of Social Norms In Second Life, Phillip Stoup
The Development And Failure Of Social Norms In Second Life, Phillip Stoup
Duke Law Journal
This Note analyzes the development and efficacy of social norms in maximizing the welfare of participants in the virtual community of Second Life. Although some of these norms developed appropriately in response to the objectives and purposes of this virtual world, Second Life is so thoroughly steeped in conditions that have impeded the development of successful social norms in other communities that any system of social norms in Second Life will ultimately fail. Because social norms will likely,fail to successfully maximize resident welfare, regulatory schemes imposed both by the operators of the virtual world and by real-world governing institutions are …
The Newest Spectator Sport: Why Extending Victims’ Rights To The Spectators’ Gallery Erodes The Presumption Of Innocence, Sierra Elizabeth
The Newest Spectator Sport: Why Extending Victims’ Rights To The Spectators’ Gallery Erodes The Presumption Of Innocence, Sierra Elizabeth
Duke Law Journal
No abstract provided.
Systemic Risk, Steven L. Schwarcz
Systemic Risk, Steven L. Schwarcz
Faculty Scholarship
Governments and international organizations worry increasingly about systemic risk, under which the world’s financial system can collapse like a row of dominoes. There is widespread confusion, though, about the causes and even the definition of systemic risk, and uncertainty about how to control it. This Article offers a conceptual framework for examining what risks are truly “systemic,” what causes those risks, and how, if at all, those risks should be regulated. Scholars historically have tended to think of systemic risk primarily in terms of financial institutions such as banks. However, with the growth of disintermediation, in which companies can access …