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Full-Text Articles in Law

The Last Bankrupt Hanged: Balancing Incentives In The Development Of Bankruptcy Law, Emily Kadens Apr 2010

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 Oct 2009

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 Nov 2006

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 Apr 2004

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 Apr 2003

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 Oct 2000

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 Apr 2000

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 Apr 2000

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 Oct 1998

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 Oct 1998

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 Mar 1998

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 Feb 1998

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 Dec 1997

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 Nov 1997

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 Mar 1997

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 Nov 1996

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 Dec 1995

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 Oct 1994

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 Dec 1992

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 Feb 1992

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 Apr 1991

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 Apr 1991

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 Apr 1991

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 Apr 1991

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 Dec 1990

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 Sep 1990

A Cultural Pluralist Case For Affirmative Action In Legal Academia, Duncan Kennedy

Duke Law Journal

No abstract provided.


Race Consciousness, Gary Peller Sep 1990

Race Consciousness, Gary Peller

Duke Law Journal

No abstract provided.


The Modern Day Scarlet Letter: A Critical Analysis Of Modern Probation Conditions, Jon A. Brilliant Nov 1989

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 Feb 1989

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 Jun 1985

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 …