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Full-Text Articles in Law
The Last Bankrupt Hanged: Balancing Incentives In The Development Of Bankruptcy Law, Emily Kadens
The Last Bankrupt Hanged: Balancing Incentives In The Development Of Bankruptcy Law, Emily Kadens
Duke Law Journal
This Article frames the history of the Anglo-American bankruptcy tradition as a search for solutions to the basic problem that has from the first underlain the bankruptcy process: how to obtain the assistance of a debtor in his financial dismantling. The pivotal moment in this story came in the years 1705 and 1706, when the English Parliament drafted a bill making the bankrupt's refusal to cooperate with the commissioners running his bankruptcy a capital crime. Almost as an afterthought, they also introduced discharge of debt. Incentivizing cooperation with discharge would have a fruitful future. Coercing the debtor to be honest, …
Rescuing The Hero: The Ramifications Of Expanding The Duty To Rescue On Society And The Law, Amelia H. Ashton
Rescuing The Hero: The Ramifications Of Expanding The Duty To Rescue On Society And The Law, Amelia H. Ashton
Duke Law Journal
The ongoing debate about the legal duty to rescue another person in peril is fraught with a familiar tension. On one side stands the traditional and distinctly American determination that freedom from such a duty is essential, that the technical rules of tort law and self-preservation instincts disdain such a requirement, and that the postulates of religion and morality are sure to fill in any legal gaps. On the other, a more recent humanitarian perspective-seen in revisions to the Restatement, case law, and some state statutes-advocates for requiring easy rescue, positing that religiously inspired morality and public good-doing are unlikely, …
Gay Rights And American Constitutionalism: What’S A Constitution For?, J. Harvie Wilkinson Iii
Gay Rights And American Constitutionalism: What’S A Constitution For?, J. Harvie Wilkinson Iii
Duke Law Journal
No abstract provided.
Commons Ignorance: The Failure Of Environmental Law To Produce Needed Information On Health And The Environment, Wendy E. Wagner
Commons Ignorance: The Failure Of Environmental Law To Produce Needed Information On Health And The Environment, Wendy E. Wagner
Duke Law Journal
One of the most significant problems facing environmental law is the dearth of scientific information available to assess the impact of industrial activities on public health and the environment. After documenting the significant gaps in existing information, this Article argues that existing laws both exacerbate and perpetuate this problem. By failing to require actors to assess the potential harm from their activities, and by penalizing them with additional regulation when they do, existing laws fail to counteract actors' natural inclination to remain silent about the harms that they might be causing. Both theory and practice confirm that when the stakes …
Freedom In The Commons: Towards A Political Economy Of Information, Yochai Benkler
Freedom In The Commons: Towards A Political Economy Of Information, Yochai Benkler
Duke Law Journal
In 1999, George Lucas released a bloated and much maligned “prequel” to the Star Wars Trilogy, called The Phantom Menace. In 2001, a disappointed Star Wars fan made a more tightly cut version, which almost eliminated a main sidekick called Jar-Jar Binks and subtly changed the protagonist—rendering Anakin Skywalker, who was destined to become Darth Vader, a much more somber child than the movie had originally presented. The edited version was named “The Phantom Edit.” Lucas was initially reported amused, but later clamped down on distribution. It was too late. The Phantom Edit had done something that would have been …
Why Modest Proposals Offer The Best Solution For Combating Racial Profiling, Sean P. Trende
Why Modest Proposals Offer The Best Solution For Combating Racial Profiling, Sean P. Trende
Duke Law Journal
No abstract provided.
Shades Of Brown: The Law Of Skin Color, Trina Jones
Shades Of Brown: The Law Of Skin Color, Trina Jones
Duke Law Journal
Because antidiscrimination efforts have focused primarily on race, courts have largely ignored discrimination within racial classifications on the basis of skin color. In this Article, Professor Jones brings light to this area by examining the historical and contemporary significance of skin color in the United States. She argues that discrimination based on skin color, or colorism, is a present reality and predicts that this form of discrimination will assume increasing significance in the future as current understandings of race and racial classifications disintegrate. She maintains that the legal system must develop a firm understanding of colorism in order for the …
On Listening To The Kulturkampf, Or, How America Overruled Bowers V. Hardwick, Even Though Romer V. Evans Didn’T, Jay Michaelson
On Listening To The Kulturkampf, Or, How America Overruled Bowers V. Hardwick, Even Though Romer V. Evans Didn’T, Jay Michaelson
Duke Law Journal
No abstract provided.
A Black Party? Timmons, Black Backlash And The Endangered Two-Party Paradigm, Terry Smith
A Black Party? Timmons, Black Backlash And The Endangered Two-Party Paradigm, Terry Smith
Duke Law Journal
In a pair of 1997 electoral decisions, the Supreme Court decided that Minnesota could prohibit fusion candidacies in the interest of maintaining a strong two-party system, but that Georgia could not create two new majority-minority congressional districts because the redistricting process had been impermissibly infected by race. In this Article, Professor Smith argues that these two decisions unavoidably conflict. While the fusion case reaffirmed the states' interest in maintaining a strong two-party system, the racial gerrymandering case severely undercut the states' ability to achieve this interest in jurisdictions where the major parties are racially stratified. He demonstrates that blacks operating …
New Institutions For Old Neighborhoods, Robert C. Ellickson
New Institutions For Old Neighborhoods, Robert C. Ellickson
Duke Law Journal
Residential Community Associations are now the norm in new suburban developments, and in this Article, Professor Robert Ellickson suggests that existing neighborhoods, in inner cities and elsewhere, would benefit from similar institutions. Specifically, he proposes the creation of Block Improvement Districts. These District, would typically be formed by supermajorities of property owners, who would need to have the power to override objectors to avoid the free rider problem inherent in many kinds of group action. Once formed, these Districts would collect fees from member property owners and, in return, would provide block-level public goods. After exploring both the theoretical and …
The Electronic First Amendment: An Essay For The New Age, Glen O. Robinson
The Electronic First Amendment: An Essay For The New Age, Glen O. Robinson
Duke Law Journal
No abstract provided.
The Seattle Compromise: Multicultural Sensitivity And Americanization, Doriane Lambelet Coleman
The Seattle Compromise: Multicultural Sensitivity And Americanization, Doriane Lambelet Coleman
Duke Law Journal
No abstract provided.
Robert Mcnamara And The Art And Law Of Confession: “A Simple Desultory Philippic (Or How I Was Robert Mcnamara’D Into Submission)”, Robert N. Strassfeld
Robert Mcnamara And The Art And Law Of Confession: “A Simple Desultory Philippic (Or How I Was Robert Mcnamara’D Into Submission)”, Robert N. Strassfeld
Duke Law Journal
No abstract provided.
Legislating Virtue: How Segregationists Disguised Racial Discrimination As Moral Reform Following Brown V. Board Of Education, Anders Walker
Legislating Virtue: How Segregationists Disguised Racial Discrimination As Moral Reform Following Brown V. Board Of Education, Anders Walker
Duke Law Journal
No abstract provided.
The “Colonization” Of East Germany?: A Comparative Analysis Of German Privatization, Heather M. Stack
The “Colonization” Of East Germany?: A Comparative Analysis Of German Privatization, Heather M. Stack
Duke Law Journal
No abstract provided.
The Identity Crisis In Public Interest Law, David R. Esquivel
The Identity Crisis In Public Interest Law, David R. Esquivel
Duke Law Journal
No abstract provided.
Arbitrariness And The Death Penalty In An International Context, Mary K. Newcomer
Arbitrariness And The Death Penalty In An International Context, Mary K. Newcomer
Duke Law Journal
No abstract provided.
The Constitutionality Of The Bank Bill: The Attorney General’S First Constitutional Law Opinions, Walter Dellinger, H. Jefferson Powell
The Constitutionality Of The Bank Bill: The Attorney General’S First Constitutional Law Opinions, Walter Dellinger, H. Jefferson Powell
Duke Law Journal
No abstract provided.
Intention, Interpretation, And Stories, Jane B. Baron
Intention, Interpretation, And Stories, Jane B. Baron
Duke Law Journal
No abstract provided.
Butterfly Effects: The Possibilities Of Law Teaching In A Democracy, Paul D. Carrington
Butterfly Effects: The Possibilities Of Law Teaching In A Democracy, Paul D. Carrington
Duke Law Journal
No abstract provided.
The Wellsprings Of Legal Responses To Inequality: A Perspective On Perspectives, Howard Lesnick
The Wellsprings Of Legal Responses To Inequality: A Perspective On Perspectives, Howard Lesnick
Duke Law Journal
No abstract provided.
An Equal Protection Analysis Of United States Reproductive Health Policy: Gender, Race, Age, And Class, Ruth Colker
An Equal Protection Analysis Of United States Reproductive Health Policy: Gender, Race, Age, And Class, Ruth Colker
Duke Law Journal
No abstract provided.
Dissolving The Sameness/Difference Debate: A Post-Modern Path Beyond Essentialism In Feminist And Critical Race Theory, Joan C. Williams
Dissolving The Sameness/Difference Debate: A Post-Modern Path Beyond Essentialism In Feminist And Critical Race Theory, Joan C. Williams
Duke Law Journal
No abstract provided.
Images Of Mothers In Poverty Discourses, Martha L. Fineman
Images Of Mothers In Poverty Discourses, Martha L. Fineman
Duke Law Journal
No abstract provided.
On The Moral Obligation To Obey The Law, George C. Christie
On The Moral Obligation To Obey The Law, George C. Christie
Duke Law Journal
No abstract provided.
A Cultural Pluralist Case For Affirmative Action In Legal Academia, Duncan Kennedy
A Cultural Pluralist Case For Affirmative Action In Legal Academia, Duncan Kennedy
Duke Law Journal
No abstract provided.
Race Consciousness, Gary Peller
The Modern Day Scarlet Letter: A Critical Analysis Of Modern Probation Conditions, Jon A. Brilliant
The Modern Day Scarlet Letter: A Critical Analysis Of Modern Probation Conditions, Jon A. Brilliant
Duke Law Journal
No abstract provided.
The Rise And Fall Of Street Sweep Takeovers, Dale A. Oesterle
The Rise And Fall Of Street Sweep Takeovers, Dale A. Oesterle
Duke Law Journal
No abstract provided.
Social Science And Segregation Before Brown, Herbert Hovenkamp
Social Science And Segregation Before Brown, Herbert Hovenkamp
Duke Law Journal
A wide variety of scholarship has addressed the law of race relations during the late nineteenth and early twentieth centuries. Much of that scholarship has presented the judicial record in the Gilded Age and Progressive Era cases as reactionary and somehow in violation of the basic principles of equality implicit in the American Constitution, particularly in the thirteenth, fourteenth, and fifteenth amendments. Professor Hovenkamp calls this view into question by examining the science and social science of that period and the use of scientific information in race relations cases. He concludes that late nineteenth and early twentieth century courts used …