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Articles 1 - 13 of 13

Full-Text Articles in Law

The Limits Of Advocacy, Amanda Frost Dec 2009

The Limits Of Advocacy, Amanda Frost

Duke Law Journal

Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called "issue creation"-that is, raising legal claims and arguments that the parties have overlooked or ignored-on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins and Mapp v. Ohio were decided on grounds never ...


Living Originalism, Thomas B. Colby, Peter J. Smith Nov 2009

Living Originalism, Thomas B. Colby, Peter J. Smith

Duke Law Journal

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the "writtenness" of the Constitution necessitates a fixed constitutional meaning, and that courts that see ...


Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of, David H. Kaye Oct 2009

Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of, David H. Kaye

Cornell Journal of Law and Public Policy

No abstract provided.


Examining The Applicability Of The Concepts Of Apology, Forgiveness, And Reconciliation To Multi-Stakeholder, Collaborative Problem-Solving Processes, Jennifer Pratt Miles Apr 2009

Examining The Applicability Of The Concepts Of Apology, Forgiveness, And Reconciliation To Multi-Stakeholder, Collaborative Problem-Solving Processes, Jennifer Pratt Miles

Law and Contemporary Problems

In 2004, Meridian Institute, an organization with expertise in designing, facilitating, and mediating collaborative problem-solving processes, was asked to assess the feasibility of forming collaborative, community-based-watershed groups in northern New Mexico to develop plans to address water-quality problems and--if determined to be feasible--to facilitate the formation of those groups and plans. Early in the assessment process it became clear that the historical context was critically important and was one of the factors that had to be addressed. Here, Miles explores the applicability of apology, forgiveness, and reconciliation to a collaborative group process that can be examined through the example of ...


Using Criminal Punishment To Serve Both Victim And Social Needs, Erin Ann O'Hara, Maria Mayo Robbins Apr 2009

Using Criminal Punishment To Serve Both Victim And Social Needs, Erin Ann O'Hara, Maria Mayo Robbins

Law and Contemporary Problems

In recent decades, the criminal-justice pendulum has swung to the opposite extreme. Criminal law is often described as covering disputes between the offender and the state. Victims are not direct parties to criminal proceedings, they have no formal right to either initiate or terminate a criminal action, and they have no control over the punishment meted out to offenders. In this state-centric system, victim needs have been left unsatisfied, giving rise to a politically powerful victims' rights movement that has had success in giving victims rights of access to prosecutors and rights to be heard in the courtroom. Here, O ...


Polarization: The Role Of Emotions In Reconciliation Efforts, Meghan Clarke Apr 2009

Polarization: The Role Of Emotions In Reconciliation Efforts, Meghan Clarke

Law and Contemporary Problems

Clarke points out some strategies that have been used in the Collaborative Change Approach to group-conflict resolution that are designed to help depolarize the competing sides' stances toward one another. In order to try to break down the hostility between the groups, Clarke brings together each identity or stakeholder group in order to share with one another why each group cares passionately about the issue. Clarke provides the example of a groundfishery conflict that involved recreational fishermen, commercial fishermen, environmentalists, researchers, and government officials. The interests of each of these groups conflicted, but no group had morally problematic motivations or ...


Legitimacy And Effectiveness Of A Grassroots Truth And Reconciliation Commission, Jill E. Williams Apr 2009

Legitimacy And Effectiveness Of A Grassroots Truth And Reconciliation Commission, Jill E. Williams

Law and Contemporary Problems

Williams describes the Truth and Reconciliation Commission (TRC) process that was put into place in Greensboro NC. That process was set up to address community hostilities that had been festering for more than twenty years, since the 1979 killings of black protesters by Ku Klux Klansmen and American Nazis. In that case a grassroots-initiated TRC was formed to address the community problems, but it was not backed by the local government and it lacked the ability to grant amnesty or to subpoena witnesses. Community members had very different views regarding the necessity and likely helpfulness of the TRC. She concludes ...


Judicial Evaluations And Information Forcing: Ranking State High Courts And Their Judges, Stephen J. Choi, Mitu Gulati, Eric A. Posner Apr 2009

Judicial Evaluations And Information Forcing: Ranking State High Courts And Their Judges, Stephen J. Choi, Mitu Gulati, Eric A. Posner

Duke Law Journal

Judges and courts get evaluated and ranked in a variety of contexts. The President implicitly ranks lower-court judges when he picks some rather than others to be promoted within the federal judiciary. The ABA and other organizations evaluate and rank these same judges. For the state courts, governors and legislatures do similar rankings and evaluations, as do interest groups. The U.S. Chamber of Commerce, for example, produces an annual ranking of the state courts that is based on surveys of business lawyers. These various rankings and evaluations are often made on the basis of subjective information and opaque criteria ...


The Continuing Search For A Meaningful Model Of Judicial Rankings And Why It (Unfortunately) Matters, Scott Baker, Adam Feibelman, William P. Marshall Apr 2009

The Continuing Search For A Meaningful Model Of Judicial Rankings And Why It (Unfortunately) Matters, Scott Baker, Adam Feibelman, William P. Marshall

Duke Law Journal

No abstract provided.


Just Because You Can Measure Something, Does It Really Count?, Laura Denvir Stith Apr 2009

Just Because You Can Measure Something, Does It Really Count?, Laura Denvir Stith

Duke Law Journal

No abstract provided.


Judging The Judges, Frank B. Cross, Stefanie Lindquist Apr 2009

Judging The Judges, Frank B. Cross, Stefanie Lindquist

Duke Law Journal

The evaluation of judges, especially circuit court judges, has commanded increased attention, with the quantitative analyses of Stephen Choi and Mitu Gulati. However, the proper dimensions for the evaluation of judges remains much disputed. Critics have challenged Choi & Gulati's scales for measuring judicial quality but have offered little that is positive that would improve measurement. The critics make philosophical challenges to whether the measures truly capture the qualities of judging we should desire, but they offer no measurement tools to improve on Choi and Gulati. We hope to advance the theoretical and empirical evaluation by incorporating different scales for ...


Benefits Of Integrated Programs Over Non-Integrated Programs, Rebecca Flanagan Jan 2009

Benefits Of Integrated Programs Over Non-Integrated Programs, Rebecca Flanagan

Faculty Publications

I do see hybrid teaching as the ASP model of the future. It is not a method that will be adopted by all schools, and it will certainly take time, and analysis, to refine the model to fit the student and school culture. Success is always a work in progress, but can only be achieved once you step from your comfort zone and try a new method.


The Bfoq Defense: Title Vii’S Concession To Gender Discrimination, Katie Manley Jan 2009

The Bfoq Defense: Title Vii’S Concession To Gender Discrimination, Katie Manley

Duke Journal of Gender Law & Policy

Should the BFOQ exception still exist? Because permitting discrimination under Title VII seems fundamentally contrary to the anti-discrimination purpose of the statute, this article questions whether the BFOQ defense is consistent with the aims of Title VII or whether, in actuality, the defense undermines the Act's effectiveness by providing a loophole for employers to participate in the discriminatory practices Title VII seeks to forbid.