Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 163
Full-Text Articles in Law
Are Muslims The New Catholics? Europe’S Headscarf Laws In Comparative Historical Perspective, Robert A. Kahn
Are Muslims The New Catholics? Europe’S Headscarf Laws In Comparative Historical Perspective, Robert A. Kahn
Duke Journal of Comparative & International Law
No abstract provided.
Administrative Law In The 1930s: The Supreme Court’S Accommodation Of Progressive Legal Theory, Mark Tushnet
Administrative Law In The 1930s: The Supreme Court’S Accommodation Of Progressive Legal Theory, Mark Tushnet
Duke Law Journal
In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal-the SEC, the NLRB, and others-meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself In a series of contentious cases decided by the Hughes Court, Progressives believed …
Legal Capital And The Model Business Corporation Act: An Essay For Bayless Manning, James J. Hanks Jr.
Legal Capital And The Model Business Corporation Act: An Essay For Bayless Manning, James J. Hanks Jr.
Law and Contemporary Problems
Hanks discusses the distribution provisions of the Model Business Corporation Act. The relatively smooth operation and interpretation of the MBCA's distribution provisions is an excellent example of the reflection, sophistication, care, and skill of the Committee on Corporate Laws in considering, drafting, revising, and updating the Model Business Corporation Act over the past sixty years. The overall success of the distribution provisions is a tribute to the many lawyers, judges, and law professors who have participated in the Committee's very successful efforts to advance the law of corporations in this country and elsewhere.
Indemnification And Advancement Through An Agency Lens, Deborah A. Demott
Indemnification And Advancement Through An Agency Lens, Deborah A. Demott
Law and Contemporary Problems
DeMott discusses the doctrines that define entitlements to indemnification. In the corporate context, indemnification is better grounded, as in the Model Business Corporation Act (MBCA), in the necessity of furnishing corporate directors with appropriate protection against personal risk. To be sure, as the MBCA's official comments implicitly acknowledge, the position of officers, especially senior executive officers, does not fit neatly and exclusively into either an "agent" or a "non-agent" category for indemnification purposes.
Delaware Corporate Law And The Model Business Corporation Act: A Study In Symbiosis , Jeffrey M. Gorris, Lawrence A. Hamermesh, Leo E. Strine Jr.
Delaware Corporate Law And The Model Business Corporation Act: A Study In Symbiosis , Jeffrey M. Gorris, Lawrence A. Hamermesh, Leo E. Strine Jr.
Law and Contemporary Problems
No abstract provided.
Disintegrating Customary International Law: Reactions To Withdrawing From International Custom, Christiana Ochoa
Disintegrating Customary International Law: Reactions To Withdrawing From International Custom, Christiana Ochoa
Duke Journal of Comparative & International Law
No abstract provided.
Acquiescence, Objections And The Death Of Customary International Law, David J. Bederman
Acquiescence, Objections And The Death Of Customary International Law, David J. Bederman
Duke Journal of Comparative & International Law
No abstract provided.
Exiting Custom: Analogies To Treaty Withdrawals, Laurence R. Helfer
Exiting Custom: Analogies To Treaty Withdrawals, Laurence R. Helfer
Duke Journal of Comparative & International Law
No abstract provided.
Who Killed Article 38(1)(B)? A Reply To Bradley And Gulati, Anthea Roberts
Who Killed Article 38(1)(B)? A Reply To Bradley And Gulati, Anthea Roberts
Duke Journal of Comparative & International Law
No abstract provided.
Persistent Objectors, Cooperation, And The Utility Of Customary International Law, Joel P. Trachtman
Persistent Objectors, Cooperation, And The Utility Of Customary International Law, Joel P. Trachtman
Duke Journal of Comparative & International Law
No abstract provided.
Judicial Specialization And The Adjudication Of Immigration Cases, Lawrence Baum
Judicial Specialization And The Adjudication Of Immigration Cases, Lawrence Baum
Duke Law Journal
When scholars and policymakers consider proposals for specialized courts, they are usually and appropriately mindful of the potential effects of specialization on the adjudication of cases. Focusing on the immigration field, this Article considers these potential effects in relation to other attributes of adjudication: the difficulty of cases, the severe caseload pressures, and the strong hierarchical controls that are each important attributes at some or all levels of the adjudication system. Specifically, this Article discusses the effects of those attributes, the effects of judicial specialization, and the intertwining of the two. It applies that analysis to proposals to substitute some …
Practical Impediments To Structural Reform And The Promise Of Third Branch Analytic Methods: A Reply To Professors Baum And Legomsky, Russell R. Wheeler
Practical Impediments To Structural Reform And The Promise Of Third Branch Analytic Methods: A Reply To Professors Baum And Legomsky, Russell R. Wheeler
Duke Law Journal
No abstract provided.
Reconsidering Reprisals, Michael A. Newton
Reconsidering Reprisals, Michael A. Newton
Duke Journal of Comparative & International Law
No abstract provided.
Narrowing The Bankruptcy Safe Harbor For Derivatives To Combat Systemic Risk, Bryan G. Faubus
Narrowing The Bankruptcy Safe Harbor For Derivatives To Combat Systemic Risk, Bryan G. Faubus
Duke Law Journal
Bankruptcy law establishes proceedings designed to rehabilitate debtors while protecting creditors, but a series of safe harbors effectively exempts from bankruptcy proceedings certain financial contracts known as derivatives. Accordingly, when a party to a derivative contract goes bankrupt, the counterparty may terminate the contract and seize what it is owed from the debtor's assets. Congress enacted these safe harbors to combat the risk of systemic failure by maintaining liquidity in troubled markets; in doing so, however, they allowed counterparties to engage in opportunistic behavior and inefficiently consume a debtor's limited assets. Because these two consequences may harm the debtor and …
The Ncaa’S Lost Cause And The Legal Ease Of Redefining Amateurism, Virginia A. Fitt
The Ncaa’S Lost Cause And The Legal Ease Of Redefining Amateurism, Virginia A. Fitt
Duke Law Journal
The recent resolution of the Andrew Oliver case may mark the death throes of the NCAA's no-agent rule, prohibiting college athletes from retaining agents in professional contract negotiations, and perhaps the traditional paradigm of amateurism in sport. In light of the trial court's ruling, as well as continuing calls for the revocation of the NCAA's tax-exempt status, the time is ripe for a reexamination of amateurism and the law. This Note argues that the NCAA has developed a complicated web of largely unenforceable rules and regulations that are unnecessary to maintain tax-exempt status in light of the regulatory environment. This …
Cybersieves, Derek E. Bambauer
Cybersieves, Derek E. Bambauer
Duke Law Journal
This Article offers a process-based method to assess Internet censorship that is compatible with different value sets about what content should be blocked. Whereas China's Internet censorship receives considerable attention, censorship in the United States and other democratic countries is largely ignored. The Internet is increasingly fragmented by nations' different value judgments about what content is unacceptable. Countries differ not in their intent to censor material-from political dissent in Iran to copyrighted songs in America-but in the content they target, how precisely they block it, and how involved their citizens are in these choices. Previous scholars have analyzed Internet censorship …
Merit Selection And Performance Evaluation Of Alaska’S Judges, Teresa W. Carns
Merit Selection And Performance Evaluation Of Alaska’S Judges, Teresa W. Carns
Alaska Law Review
No abstract provided.
Making Amends: Amending The Icsid Convention To Reconcile Competing Interests In International Investment Law, Kate M. Supnik
Making Amends: Amending The Icsid Convention To Reconcile Competing Interests In International Investment Law, Kate M. Supnik
Duke Law Journal
Globalization has increased international investment activity, but no unified legal framework governs international investments. After several attempts to establish a multilateral investment framework, prospective parties remain unable to reach a consensus on a viable system to address investor and state rights. Developed, capital-exporting states wish to protect their citizens' investments, whereas developing states simultaneously seek to attract investments and maintain regulatory autonomy. In the absence of a comprehensive agreement, bilateral investment treaties serve as the primary legal instruments setting forth the terms of cross-border investments. These treaties often grant private investors the right to file claims before the International Centre …
The Intersection Of Race And Class In U.S. Immigration Law And Enforcement, Kevin R. Johnson
The Intersection Of Race And Class In U.S. Immigration Law And Enforcement, Kevin R. Johnson
Law and Contemporary Problems
No abstract provided.
Eva And Her Baby (A Story Of Adolescent Sex, Pregnancy, Longing, Love, Loneliness, And Death), Michelle Oberman
Eva And Her Baby (A Story Of Adolescent Sex, Pregnancy, Longing, Love, Loneliness, And Death), Michelle Oberman
Duke Journal of Gender Law & Policy
[...] I took the bus to my uncle's house. [...] that wasn't the truth, or at least not all of it. Because in the end, there were a million reasons why it hadn't happened to me.
What’S The Constitution Got To Do With It? Regulating Marriage In Pakistan, Karin Carmit Yefet
What’S The Constitution Got To Do With It? Regulating Marriage In Pakistan, Karin Carmit Yefet
Duke Journal of Gender Law & Policy
[...] the supreme law of the land seems to embody a blatant contradiction. The Pakistani Constitution extends protection to an impressive catalog of fundamental rights, placing Pakistan in line with some of the most western-minded constitutional regimes in the world.3 At the same time, in contrast to the American-style constitutional commitment to separate church and state,4 the Pakistani regime is constitutionally committed to integrate the two, in the sense that all laws must conform to the injunctions of Islam as a condition of their constitutional validity.5 So the same Constitution that protects western fundamental rights also elevates Islamic law, a …
Excluding Unfit Workers: Social Control Versus Social Justice In The Age Of Economic Reform, David E. Bernstein, Thomas C. Leonard
Excluding Unfit Workers: Social Control Versus Social Justice In The Age Of Economic Reform, David E. Bernstein, Thomas C. Leonard
Law and Contemporary Problems
No abstract provided.
Pitfalls Of Empirical Studies That Attempt To Understand The Factors Affecting Appellate Decisionmaking, Harry T. Edwards, Michael A. Livermore
Pitfalls Of Empirical Studies That Attempt To Understand The Factors Affecting Appellate Decisionmaking, Harry T. Edwards, Michael A. Livermore
Duke Law Journal
No abstract provided.
Institutions From Above And Voices From Below: A Comment On Challenges To Group-Conflict Resolution And Reconciliation, Laurel E. Fletcher
Institutions From Above And Voices From Below: A Comment On Challenges To Group-Conflict Resolution And Reconciliation, Laurel E. Fletcher
Law and Contemporary Problems
Fletcher explores how assumptions about justice have succeeded in establishing a new international consensus on necessary processes of rebuilding societies, some pitfalls of this approach, and recommendations for new directions for the field of transitional justice. A central assumption animating the moral, political, and legal cases for transitional justice is that those responsible for unleashing and conducting mass violence that devastates countries and the lives of civilian residents should not get away with their criminal acts. And further, supporters of justice assume that a legal response is necessary in order to promote reconciliation. He thinks that the appropriate role of …
Persistent Nonviolent Conflict With No Reconciliation: The Flemish And Walloons In Belgium, Robert Mnookin, Alain Verbeke
Persistent Nonviolent Conflict With No Reconciliation: The Flemish And Walloons In Belgium, Robert Mnookin, Alain Verbeke
Law and Contemporary Problems
Mnookin and Verbeke describe the nonviolent but very serious conflict in Belgium between the Flemish (Dutch) of the North and the Walloons (French) of the South. The Flemish economy is more prosperous than the Walloon economy, and the Flemish constitute a majority of the Belgian population. Nevertheless, the Walloons enjoy a financial subsidy from the Flemish and share equally in the political power of the nation due to antimajoritarian restrictions built into the government structure. Even though significant and persistent, this conflict remains nonviolent due to several factors, including largely separate geography, language and social structure; a low-stakes conflict; relatively …
Economic Trends And Judicial Outcomes: A Macrotheory Of The Court, Thomas Brennan, Lee Epstein, Nancy Staudt
Economic Trends And Judicial Outcomes: A Macrotheory Of The Court, Thomas Brennan, Lee Epstein, Nancy Staudt
Duke Law Journal
We investigate the effect of economic conditions on the voting behavior of U.S. Supreme Court Justices. We theorize that Justices are akin to voters in political elections; specifically, we posit that the Justices will view short-term and relatively nit. nor economic downturns-recessions-as attributable to the failures of elected officials, but will consider long-term and extreme economic con tractions-depressions-as the result of exogenous shocks largely beyond the control of the government. Accordingly, we predict two patterns of behavior in economic-related cases that come before the Court: (1) in typical times, when the economy cycles through both recessionary and prosperous periods, the …
Comment On Meir Dan-Cohen, Skirmishes On The Temporal Boundaries Of States, John C. P. Goldberg
Comment On Meir Dan-Cohen, Skirmishes On The Temporal Boundaries Of States, John C. P. Goldberg
Law and Contemporary Problems
Goldberg praises Meir Dan-Cohen's creative thinking about state wrongdoing but argues that it is ultimately unclear how a nation gets relieved of responsibility for its past harms. Equally unclear is why as a normative matter nations should be permitted to obtain temporal shifts. Dyadic conflicts that redefine the wrongdoer might be easier to envision because the victim is empowered to redraw the boundary of the wrongdoer. When a nation commits wrong, the justification for redrawing its boundaries often must come from somewhere other than a single victim's forgiveness.
Legitimacy And Effectiveness Of A Grassroots Truth And Reconciliation Commission, Jill E. Williams
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 …
The Unforgiving: Reflections On The Resistance To Forgiveness After Atrocity, Thomas Brudholm, Valérie Rosoux
The Unforgiving: Reflections On The Resistance To Forgiveness After Atrocity, Thomas Brudholm, Valérie Rosoux
Law and Contemporary Problems
Brudholm and Rosoux question the ethics of having religious and political leaders call on individual victims to forgive wrongdoing as an aid to group-conflict resolution. Even though a group might strongly desire political stability and peace, these goals should not be obtained at the expense of the needs of the victim. They argue that even when the group strongly desires reconciliation, reconciliation does not necessarily require forgiveness. They also consider several actual examples of resistance with particular concentration on the reflections of two genocide survivors, namely Jean Amery and Esther Mujawayo.
The “Hidden Judiciary”: An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
The “Hidden Judiciary”: An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Duke Law Journal
Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.