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Articles 1 - 30 of 12421

Full-Text Articles in Law

Intelligent Design & Egyptian Goddess: A Response To Professors Buccafusco, Lemley & Masur, Sarah Burstein Feb 2019

Intelligent Design & Egyptian Goddess: A Response To Professors Buccafusco, Lemley & Masur, Sarah Burstein

Duke Law Journal Online

No abstract provided.


Waging War Against Corruption In Developing Countries: How Asset Recovery Can Be Compliant With The Rule Of Law, Mat Tromme Feb 2019

Waging War Against Corruption In Developing Countries: How Asset Recovery Can Be Compliant With The Rule Of Law, Mat Tromme

Duke Journal of Comparative & International Law

It is often said that criminals hardly ever mind financial penalties if they get caught, but on the other hand, they fear losing tangible as-sets. This is the underlying rationale for asset forfeiture approaches: forfeiting property can be a powerful detractor for crime and corrup-tion. Assume that John was running a gambling operation or cooking drugs in a room he rented from a house belonging to a retired couple. This case naturally raises a lot of questions (e.g. should the whole house be seized and forfeited, and if so, what would happen to the couple?) and brings into focus ...


Journal Staff Feb 2019

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.


Fragmented Laws, Contingent Choices: The Tragicomedy Of The Village Commons In China, Shitong Qiao Feb 2019

Fragmented Laws, Contingent Choices: The Tragicomedy Of The Village Commons In China, Shitong Qiao

Duke Journal of Comparative & International Law

Defining the direct conflict between law and social norms as a tragedy and their reconciliation as a comedy, this paper serves as a case study of the mixture of tragedies and comedies of collective land governance in China. The term tragicomedy encapsulates such a mixture. This paper presents two contrasting cases of collective land governance: one village co-op is captured by a mafia and the consequent mafia-style land development business is maintained through violence and the bribing of government officials; the other village co-op from time to time takes actions “in the name of law” in their bargaining for legal ...


The Rise Of The Extreme Right And The Crime Of Terrorism: Ideology, Mobilization, And The Case Of Golden Dawn, Nadia Banteka Feb 2019

The Rise Of The Extreme Right And The Crime Of Terrorism: Ideology, Mobilization, And The Case Of Golden Dawn, Nadia Banteka

Duke Journal of Comparative & International Law

The past decade has witnessed the rise in popularity of organizations and political parties founded on the extreme nationalism and populism that characterized the interwar period’s fascist and Nazi parties. These organizations have become known as the “alt-right” and include white supremacists, neo-Nazis, neo-fascists, and other extreme right-wing fringe groups. Extreme right-wing political parties have also enjoyed electoral victories while promulgating xenophobia and hatred based on race, religion, ethnicity, nationality, and sexual orientation. This article examines the resurgence of such extreme right-wing political parties and the relationship between right-wing extremism, political parties, and terrorism. The goal of this article ...


Journal Staff Feb 2019

Journal Staff

Duke Law Journal

No abstract provided.


At The Water’S Hedge: International Insider-Trading Enforcement After Morrison Hugh B. Hamilton Iii, Hugh B. Hamilton Iii Feb 2019

At The Water’S Hedge: International Insider-Trading Enforcement After Morrison Hugh B. Hamilton Iii, Hugh B. Hamilton Iii

Duke Law Journal

From copy rooms to boardrooms, many Americans have succumbed to the siren song of insider trading. As U.S. companies have gone international, so too have corporate secrets ripe for exploitation. With the growth of overseas derivatives based on U.S. stock, foreigners are able to engage in insider trading to a similar extent as Americans.

But in Morrison v. National Australia Bank, the Supreme Court limited the reach of the statutory insider-trading prohibition to transactions taking place in U.S. territory or transactions in securities listed on U.S. exchanges. Neither condition applies to overseas insider trading using derivatives ...


Discipline And Policing, Kate Levine Feb 2019

Discipline And Policing, Kate Levine

Duke Law Journal

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards.

This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency ...


Ad Hoc Diplomats, Ryan M. Scoville Feb 2019

Ad Hoc Diplomats, Ryan M. Scoville

Duke Law Journal

Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats—individuals chosen exclusively by the president to complete limited and temporary assignments—play a comparably significant role in addressing international crises, negotiating treaties, and otherwise executing foreign policy.

This Article critically examines the appointments process for such irregular agents ...


Deepfakes: False Pornography Is Here And The Law Cannot Protect You, Douglas Harris Jan 2019

Deepfakes: False Pornography Is Here And The Law Cannot Protect You, Douglas Harris

Duke Law & Technology Review

It is now possible for anyone with rudimentary computer skills to create a pornographic deepfake portraying an individual engaging in a sex act that never actually occurred. These realistic videos, called “deepfakes,” use artificial intelligence software to impose a person’s face onto another person’s body. While pornographic deepfakes were first created to produce videos of celebrities, they are now being generated to feature other nonconsenting individuals—like a friend or a classmate. This Article argues that several tort doctrines and recent non-consensual pornography laws are unable to handle published deepfakes of non-celebrities. Instead, a federal criminal statute prohibiting ...


Boiling Down Boilerplate In M&A Agreements: A Response To Choi, Gulati, & Scott, Robert Anderson, Jeffrey Manns Jan 2019

Boiling Down Boilerplate In M&A Agreements: A Response To Choi, Gulati, & Scott, Robert Anderson, Jeffrey Manns

Duke Law Journal Online

“Boilerplate” consists of standardized terms whose meaning is intended to be consistent from one transaction to the next, and these provisions are ubiquitous in contracts and related transactional documents. In their recent Duke Law Journal article Stephen Choi, Mitu Gulati, and Robert Scott have highlighted the potentially corrosive effect of the legal drafting process on boilerplate provisions. They show how incremental edits to boilerplate pari passu clauses for sovereign debt agreements have led to textual “black holes,” which potentially undercut the standardization purpose, wording, and substantive meaning of these boilerplate provisions. In this Article we offer preliminary evidence of a ...


Does The American Rule Promote Access To Justice? Was That Why It Was Adopted?, John Leubsdorf Jan 2019

Does The American Rule Promote Access To Justice? Was That Why It Was Adopted?, John Leubsdorf

Duke Law Journal Online

No abstract provided.


The Promising Viral Threat To Bacterial Resistance: The Uncertain Patentability Of Phage Therapeutics And The Necessity Of Alternative Incentives, Kelly Todd Jan 2019

The Promising Viral Threat To Bacterial Resistance: The Uncertain Patentability Of Phage Therapeutics And The Necessity Of Alternative Incentives, Kelly Todd

Duke Law Journal

Bacteriophages, or “phages,” are a category of highly adept and adaptable viruses that can infect and kill bacteria. With concerns over the burgeoning antibiotic-resistance crisis looming in recent years, scientists and policymakers have expressed a growing interest in developing novel treatments for bacterial infections that utilize bacteriophages. Because of the great expense associated with bringing a new drug to market, patents are usually considered the gold standard for incentivizing research and development in the pharmaceutical field. Absent such strong protection for a developer’s front end investment, pharmaceutical development remains financially risky and unattractive. Unfortunately, recent Supreme Court jurisprudence analyzing ...


Free Speech And The Law Of Evidence, Dan T. Coenen Jan 2019

Free Speech And The Law Of Evidence, Dan T. Coenen

Duke Law Journal

To what extent does the First Amendment limit the ability of prosecutors to offer evidence of a defendant’s past protected speech? As it turns out, the Supreme Court has touched on this question in only a handful of rulings, each of which was crafted to target only the distinctive facts of the case at hand. Many lower courts, however, have distilled from these decisions a sweeping, admissibility-favoring constitutional rule. According to that rule, the First Amendment imposes no limit on prosecutorial use of past-speech evidence—no matter how prejudicial—so long as it meets the minimum standard of evidentiary ...


Corporate Disobedience, Elizabeth Pollman Jan 2019

Corporate Disobedience, Elizabeth Pollman

Duke Law Journal

Corporate law has long taken a dim view of corporate lawbreaking. Corporations can be chartered only for lawful activity. Contemporary case law characterizes the intentional violation of law as a breach of the fiduciary duties of good faith and loyalty. While recognizing that rule breaking raises significant social and moral concerns, this Article demonstrates that corporate law and academic debate have overlooked important aspects of corporate disobedience.

This Article provides an overview of corporate disobedience and illuminates the role that it has played in entrepreneurship and legal change. Corporations violate laws in a variety of contexts, including as part of ...


The Ghost In The Courtroom: When Opinions Are Adopted Verbatim From Prosecutors, Natasha-Eileen Ulate Jan 2019

The Ghost In The Courtroom: When Opinions Are Adopted Verbatim From Prosecutors, Natasha-Eileen Ulate

Duke Law Journal

Judicial opinions captivate the legal community, serving as a hub for teaching new lawyers and developing the law. These opinions also provide a method for the justice system to communicate with the people it serves—both the parties to the cases and the public. This communication should be well-reasoned and developed from a neutral standpoint. However, this ideal is being seriously threatened by ghostwriting, the practice of allowing a party to write the opinion. This is particularly troubling in criminal cases, where the very lawyers charged with prosecuting defendants are writing the opinions against them.

This Note proposes that opinions ...


Journal Staff Jan 2019

Journal Staff

Duke Law Journal

No abstract provided.


Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Beyond 'The Annals Of Murder': The Life And Works Of Thomas M. Mcdade, Jennifer L. Behrens Jan 2019

Beyond 'The Annals Of Murder': The Life And Works Of Thomas M. Mcdade, Jennifer L. Behrens

Faculty Scholarship

Thomas M. McDade is best known (if not well-known enough) for his seminal 1961 reference bibliography, The Annals of Murder: A Bibliography of Books and Pamphlets on American Murders from Colonial Times to 1900. Beyond that singular text on early American murder trial accounts, though, lies more than 70 additional publications on American legal history, law enforcement, and literature, gathered together for the first time in an annotated bibliography of McDade’s lesser-known writings. The article also examines McDade’s fascinating life and varied career as an early FBI agent, World War II veteran, corporate executive, and true crime chronicler.


Unconstitutionally Illegitimate Discrimination, Brandon L. Garrett Jan 2019

Unconstitutionally Illegitimate Discrimination, Brandon L. Garrett

Faculty Scholarship

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines ...


The Ncaa And The Irs: Life At The Intersection Of College Sports And The Federal Income Tax, Richard L. Schmalbeck, Lawrence A. Zelenak Jan 2019

The Ncaa And The Irs: Life At The Intersection Of College Sports And The Federal Income Tax, Richard L. Schmalbeck, Lawrence A. Zelenak

Faculty Scholarship

Few organizational acronyms are more familiar to Americans than those of the National Collegiate Athletic Association (NCAA) and the Internal Revenue Service (IRS). Although neither organization is particularly popular, both loom large in American life and popular culture. Because there is a tax aspect to just about everything, it should come as no surprise that the domains of the NCAA and the IRS overlap in a number of ways. For many decades, the strong tendency in those areas has been for college athletics to enjoy unreasonably generous tax treatment-sometimes because of the failure of the IRS to enforce the tax ...


Private International Law As An Ethic Of Responsivity, Ralf Michaels Jan 2019

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of ...


Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman Jan 2019

Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to ...


Journal Staff Dec 2018

Journal Staff

Duke Journal of Gender Law & Policy

No abstract provided.


Voluntary Sterilization Of Inmates For Reduced Prison Sentences, Elise B. Adams Dec 2018

Voluntary Sterilization Of Inmates For Reduced Prison Sentences, Elise B. Adams

Duke Journal of Gender Law & Policy

In May 2017, a Tennessee judge issued a standing order allowing inmates to receive thirty days’ jail credit in exchange for undergoing a voluntary sterilization procedure. Although the order was ultimately rescinded, this Article will address the constitutional and ethical concerns that a district court would have considered had the order not been rescinded. While inmates can always choose to waive their constitutional rights, the coercive nature of prisons—explained in the unconstitutional conditions doctrine—may compromise a prisoner’s ability to provide voluntary consent. The constitutionality of the order largely depends on the level of scrutiny a court applies ...


Using Federal Nondiscrimination Laws To Avoid Erisa: Securing Protection From Transgender Discrimination In Employee Health Benefit Plans, Bridget Schaaff Dec 2018

Using Federal Nondiscrimination Laws To Avoid Erisa: Securing Protection From Transgender Discrimination In Employee Health Benefit Plans, Bridget Schaaff

Duke Journal of Gender Law & Policy

Recent attempts to repeal the Affordable Care Act and the potential rollback of the interpretation of the protections the Act affords transgender people put transgender people at risk of being denied services and coverage for gender-affirming care. This Article provides advocates with alternative legal arguments to help employees bring claims when their employer provides a health benefit plan that discriminates on the basis of gender identity. These arguments can avoid the Employee Retirement Income Security Act’s broad preemption scheme and lack of nondiscrimination provisions. This Article proposes that, based on a narrow exception to preemption regarding the Employee Retirement ...


From Sex Objects To Sisters-In-Arms: Reducing Military Sexual Assault Through Integrated Basic Training And Housing, Gabrielle Lucero Dec 2018

From Sex Objects To Sisters-In-Arms: Reducing Military Sexual Assault Through Integrated Basic Training And Housing, Gabrielle Lucero

Duke Journal of Gender Law & Policy

No abstract provided.


Defining And Regulating Cryptocurrency: Fake Internet Money Or Legitimate Medium Of Exchange?, Susan Alkadri Dec 2018

Defining And Regulating Cryptocurrency: Fake Internet Money Or Legitimate Medium Of Exchange?, Susan Alkadri

Duke Law & Technology Review

Digitalization makes almost everything quicker, sleeker, and more efficient. Many argue cryptocurrency is the future of money and payment transfers. This paper explores how the unique nature of cryptocurrencies creates barriers to a strict application of traditional regulatory strategies. Indeed, state and federal regulators remain uncertain if and how they can regulate this cutting-edge technology. Cryptocurrency businesses face difficulty navigating the unclear regulatory landscape, and consumers frequently fall prey to misinformation. To reconcile these concerns, this paper asserts cryptocurrency functions as “currency” or “money” and should be treated as such for regulatory purposes. It also proposes each state implement a ...


The Future Of Freedom Of Expression Online, Evelen Mary Aswad Dec 2018

The Future Of Freedom Of Expression Online, Evelen Mary Aswad

Duke Law & Technology Review

Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given that the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right? In June 2018, the United Nations’ top expert for freedom of expression called on companies to align ...


Electoral Due Process, Sarah Milkovich Nov 2018

Electoral Due Process, Sarah Milkovich

Duke Law Journal

Elections and their aftermath are matters left to the states by the U.S. Constitution. But the Supreme Court has made clear that the right to vote is federally protected, and fiercely so. When an election failure takes place and deprives citizens of their votes, challengers must resort to state law remedies. Many states have procedural requirements for election challenges that are stringent to the point of being prohibitive.

This Note argues that the due process concerns raised by these burdensome state procedures are amplified by their voting rights context. Where a voter must take to the courts to vindicate ...