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Articles 1 - 30 of 44
Full-Text Articles in Law
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 …
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 …
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 …
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 …
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.
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 …
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.
Buyer Beware: Why The Class Arbitration Waiver Presents A Gloomy Future For Consumers, Daniel R. Higginbotham
Buyer Beware: Why The Class Arbitration Waiver Presents A Gloomy Future For Consumers, Daniel R. Higginbotham
Duke Law Journal
No abstract provided.
The Next “Great Dissenter”? How Clarence Thomas Is Using The Words And Principles Of John Marshall Harlan To Craft A New Era Of Civil Rights, Hannah L. Weiner
The Next “Great Dissenter”? How Clarence Thomas Is Using The Words And Principles Of John Marshall Harlan To Craft A New Era Of Civil Rights, Hannah L. Weiner
Duke Law Journal
No abstract provided.
Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry
Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry
Duke Law Journal
No abstract provided.
A Divine Comity: Certification (At Last) In North Carolina, Eric Eisenberg
A Divine Comity: Certification (At Last) In North Carolina, Eric Eisenberg
Duke Law Journal
No abstract provided.
Administrative Law As The New Federalism, Gillian E. Metzger
Administrative Law As The New Federalism, Gillian E. Metzger
Duke Law Journal
Despite the recognized impact that the national administrative state has had on the federal system, the relationship between federalism and administrative law remains strangely inchoate and unanalyzed. Recent Supreme Court case law suggests that the Court is increasingly focused on this relationship and is using administrative law to address federalism concerns even as it refuses to curb Congress's regulatory authority on constitutional grounds. This Article explores how administrative law may be becoming the new federalism and assesses how well-adapted administrative law is to performing this role. It argues that administrative law has important federalism-reinforcing features and represents a critical approach …
Tennis With The Net Down: Administrative Federalism Without Congress, Stuart Minor Benjamin, Ernest A. Young
Tennis With The Net Down: Administrative Federalism Without Congress, Stuart Minor Benjamin, Ernest A. Young
Duke Law Journal
No abstract provided.
The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Professors Galle And Seidenfeld, Nina A. Mendelson
The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Professors Galle And Seidenfeld, Nina A. Mendelson
Duke Law Journal
No abstract provided.
Administrative Law’S Federalism: Preemption, Delegation, And Agencies At The Edge Of Federal Power, Brian Galle, Mark Seidenfeld
Administrative Law’S Federalism: Preemption, Delegation, And Agencies At The Edge Of Federal Power, Brian Galle, Mark Seidenfeld
Duke Law Journal
This Article critiques the practice of limiting federal agency authority in the name of federalism. Existing limits bind agencies even more tightly than Congress. For instance, although Congress can regulate to the limits of its commerce power with a sufficiently clear statement of its intent to do so, absent clear congressional authorization an agency cannot, no matter how clear the language of the agency's regulation. Similarly, although Congress can preempt state law, albeit only when its intent to do so is clear, some commentators have read it line of Supreme Court decisions to hold that agencies cannot, except upon Congress's …
Assessing The Constitutionality Of The Alien Terrorist Removal Court, John Dorsett Niles
Assessing The Constitutionality Of The Alien Terrorist Removal Court, John Dorsett Niles
Duke Law Journal
In 1996, Congress created the Alien Terrorist Removal Court (ATRC). A court of deportation, the ATRC provides the U.S. attorney general a forum to remove expeditiously any resident alien who the attorney general has probable cause to believe is a terrorist. In theory, resident aliens receive different-and arguably far weaker-procedural protections before the ATRC than they would receive before an administrative immigration panel. In theory, the limited nature of the ATRC protections might implicate resident aliens' Fifth Amendment rights. In practice, however, the ATRC has never been used. Perhaps to avoid an adverse constitutional ruling, the attorney general has never …
The Costs Of Perceived Hypocrisy: The Impact Of U.S. Treatment Of Foreign Acquisitions Of Domestic Enterprises, Destiny Duron Deas
The Costs Of Perceived Hypocrisy: The Impact Of U.S. Treatment Of Foreign Acquisitions Of Domestic Enterprises, Destiny Duron Deas
Duke Law Journal
No abstract provided.
Cell Phone Ringtones: A Case Study Exemplifying The Complexities Of The Section 115 Mechanical License Of The Copyright Act Of 1976, Daniel M. Simon
Cell Phone Ringtones: A Case Study Exemplifying The Complexities Of The Section 115 Mechanical License Of The Copyright Act Of 1976, Daniel M. Simon
Duke Law Journal
Most Americans carry their cell phones everywhere. Cell phone users can purchase ringtones to replace the traditional telephone ring. But often the ringtones are excerpts from copyrighted works, including popular music. This technology has grown enormously in a short time span, forcing lawmakers to consider its applicability to copyright laws that predate ringtones' existence by nearly fifty years. This Note examines the mechanical license provision of the Copyright Act of 1976, including its overlooked legislative history, to determine whether the mechanical license applies to ringtones. It concludes that the statute's requirements exclude most types of ringtones from the scope of …
Is It Wrong To Sue For Rape?, Tom Lininger
Is It Wrong To Sue For Rape?, Tom Lininger
Duke Law Journal
The title of this Article poses a rhetorical question. Of course it is not improper to site a rapist. The act of rape qualifies as a tort in all fifty states. Rape causes egregious injuries, both physical and psychological. The Supreme Court regards rape as the ultimate violation of personal autonomy. Other than homicide, no act is more plainly tortious. Yet the criminal justice system is surprisingly hostile to civil suits by rape survivors. Judges in criminal cases virtually always allow impeachment of accusers with evidence of civil suits against the alleged assailants or third parties. This Article surveys every …
In Defense Of Prometheus: Some Ethical, Economic, And Regulatory Issues Of Sports Doping, Richard A. Posner
In Defense Of Prometheus: Some Ethical, Economic, And Regulatory Issues Of Sports Doping, Richard A. Posner
Duke Law Journal
No abstract provided.
The Problem Of Doping, Doriane Lambelet Coleman, James E. Coleman Jr.
The Problem Of Doping, Doriane Lambelet Coleman, James E. Coleman Jr.
Duke Law Journal
No abstract provided.
The Shadows Of Future Generations, Matthew W. Wolfe
The Shadows Of Future Generations, Matthew W. Wolfe
Duke Law Journal
This Note addresses the twin problems of political short-termism and intergenerational equity. Although scholars have discussed these concerns extensively, few scholars have developed proposals to modify democratic institutions-particularly legislatures-to better consider posterity's interests. This Note critiques one such set of proposals by several environmental ethicists for including posterity-oriented legislators in present-generation legislatures. It then proposes a system that ties the long-term outcomes of legislators' policy preferences to their pension plans by creating a new commodities market that values the decisions legislators make and their effect on posterity.
Economic Foundations Of Intellectual Property Rights, Joseph E. Stiglitz
Economic Foundations Of Intellectual Property Rights, Joseph E. Stiglitz
Duke Law Journal
No abstract provided.
The Right’S Reasons: Constitutional Conflict And The Spread Of Woman-Protective Anti-Abortion Argument, Reva B. Siegel
The Right’S Reasons: Constitutional Conflict And The Spread Of Woman-Protective Anti-Abortion Argument, Reva B. Siegel
Duke Law Journal
No abstract provided.
Paradigms Of Restraint, Erin Murphy
Paradigms Of Restraint, Erin Murphy
Duke Law Journal
Incapacitation of dangerous individuals has conventionally entailed the exercise of physical control over an actual body: the state confines the person in jail. But advances in technology have changed that convention. A variety of new technologies-such as GPS tracking bracelets, biometric scanners, online offender indexes, and DNA databases-give the government power to control dangerous persons without relying on any exertion of physical control. The government can track the location of a person in real time, receive remote notification that an individual has ingested alcohol, or electronically zone someone into a home or out of a public park. It can prove …
The Siren Song Of Interrogational Torture: Evaluating The U.S. Implementation Of The U.N. Convention Against Torture, Isaac A. Linnartz
The Siren Song Of Interrogational Torture: Evaluating The U.S. Implementation Of The U.N. Convention Against Torture, Isaac A. Linnartz
Duke Law Journal
No abstract provided.