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Articles 31 - 60 of 320
Full-Text Articles in Law
The Origins Of Article Iii “Arising Under” Jurisdiction, Anthony J. Bellia Jr.
The Origins Of Article Iii “Arising Under” Jurisdiction, Anthony J. Bellia Jr.
Duke Law Journal
Article III of the Constitution provides that the "judicial Power" of the United States extends to all cases "arising under" the Constitution, laws, and treaties of the United States. What the phrase "arising under" imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III "arising under" jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction-principles that animated early American jurisprudence regarding the scope of "arising under" jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood "arising …
The Costs Of A “Free” Education: The Impact Of Schaffer V. Weast And Arlington V. Murphy On Litigation Under The Idea, Kelly D. Thomason
The Costs Of A “Free” Education: The Impact Of Schaffer V. Weast And Arlington V. Murphy On Litigation Under The Idea, Kelly D. Thomason
Duke Law Journal
The Individuals with Disabilities Education Act guarantees to children with disabilities the right to receive a "free appropriate public education." This Note argues that the Supreme Court decisions Schaffer v. Weast and Arlington v. Murphy, cases dealing with procedural aspects of the Act, undermine a prior trend in IDEA litigation-a trend that had increased the substantive and procedural rights of children with disabilities. Considered together, the Schaffer and Arlington decisions ignore the realities of the litigation process and impose significant burdens on parents attempting to ensure that their children receive the free appropriate education to which they are entitled.
Forgotten Racial Equality: Implicit Bias, Decisionmaking, And Misremembering, Justin D. Levinson
Forgotten Racial Equality: Implicit Bias, Decisionmaking, And Misremembering, Justin D. Levinson
Duke Law Journal
In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this phenomenon perpetuates racial bias in case outcomes. To test the hypothesis that judges and jurors misremember case facts in racially biased ways, I conducted an empirical study in which participants were asked to recall facts of stories they had read only minutes earlier. Results of the …
Citing The Elite: The Burden Of Authorial Anxiety, Shane Tintle
Citing The Elite: The Burden Of Authorial Anxiety, Shane Tintle
Duke Law Journal
Academic legal writing is known for extensive citation. Generally, scholars who study citation practices are increasingly likely to link citation with authors' attempts to manage their impression. This Note offers an explanation of why authors of law review articles use citation as a means of managing impression. It combines a historical analysis that shows why excessive citation became conventional with a literary analysis that shows why excessive citation was unique in its ability to aid academics in substantively contributing to the bench and bar. It further shows how, because of the historic and literary significance of citation, a norm compelling …
Reality Check: How Practical Circumstances Affect The Interpretation Of Depraved Indifference Murder, John C. Duffy
Reality Check: How Practical Circumstances Affect The Interpretation Of Depraved Indifference Murder, John C. Duffy
Duke Law Journal
This Note examines the treatment of depraved indifference murder across the thirty-six states that include the concept in their criminal codes. The Note identifies the broad range of practical circumstances that shape the development of depraved indifference murder statutes, and argues that it is not possible to develop a single interpretation that will function effectively across all jurisdictions. Finally, this Note identifies the three most important practical circumstances that affect the development of depraved indifference murder statutes.
A Budding Theory Of Willful Patent Infringement: Orange Books, Colored Pills, And Greener Verdicts, Christopher A. Harkins
A Budding Theory Of Willful Patent Infringement: Orange Books, Colored Pills, And Greener Verdicts, Christopher A. Harkins
Duke Law & Technology Review
The rules of engagement in the brand-name versus generic-drug war are rapidly changing. Brand-name manufacturers face increasing competition from Canadian manufacturers of generic drugs, online drug companies, and Wal-Mart® Super Centers deciding to cash in by turning a piece of the generic prescription drug business into a huge marketing campaign with offerings of generic drugs for four dollar prescriptions. Other discount drug providers are likely to follow suit in hopes of boosting customer traffic and sales of their generic drugs. Now, more than ever before, attorneys representing owners of pharmaceutical patents need to be creative with their damages theories to …
Equitable Subordination, Fraudulent Transfer, And Sovereign Debt, Adam Feibelman
Equitable Subordination, Fraudulent Transfer, And Sovereign Debt, Adam Feibelman
Law and Contemporary Problems
Feibelman focuses on two particular doctrines of lender liability-equitable subordination and fraudulent transfer, expanding upon proposals to employ private domestic law as a strategy for addressing the problem of odious debt. Although doctrines of equitable subordination and fraudulent transfer do not appear to have been applied to sovereign debt by US courts in the past, both should be available to sovereigns' creditors in most if not all US jurisdictions. In addition, he also addresses practical, doctrinal concerns as well as normative implications of employing theories such as equitable subordination and fraudulent transfer to respond to the problem of odious debt. …
Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, And Opportunities In Traditional Odious Debt Conceptions In Globalized Economic Regimes, Larry Catá Backer
Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, And Opportunities In Traditional Odious Debt Conceptions In Globalized Economic Regimes, Larry Catá Backer
Law and Contemporary Problems
Backer examines how the traditional notion of odious debt as a method of repudiating sovereign debt may undergo a conceptual revolution as it changes focus from the illegitimacy of governments obtaining loans to the illegitimacy of the systems through which such loans are made and enforced generally. He focus his analysis on the conceptual framework Fidel Castro sought to introduce into the debate about the legitimacy of sovereign debt and the extent to which this reframing might influence international institutional approaches.
The Odious Debt Doctrine After Iraq, Jai Damle
The Odious Debt Doctrine After Iraq, Jai Damle
Law and Contemporary Problems
The odious debt doctrine has experienced renewed popularity in the past few years; it has been heralded by academics, political commentators, economists, and politicians as a mechanism to alleviate burdens imposed by illegitimate rulers. In its classic formulation, the doctrine provides that a regime's debt is odious, and thus unenforceable, if the state's people did not consent to the debt, the proceeds from the debt were not used for the benefit of the people, and the regime's creditors had knowledge of the first two conditions. In 2003, the newly instated Iraqi regime began negotiations to restructure that country's debt, much …
Odious Debt In Retrospect, Daniel K. Tarullo
Odious Debt In Retrospect, Daniel K. Tarullo
Law and Contemporary Problems
In the eighty years since Alexander Sack coined the phrase "odious debt," academics and activists have periodically rediscovered Sack's idea, often arguing for its application or extension-to this point, in vain. Here, Tarullo reveals the degree to which current interest in the problem of odious debt is intertwined with other problems that strike more critically at the well-being of developing-and emerging-market countries. He reasons that the necessarily complex effort needed to institutionalize a doctrine of odious debt is a potentially effective organizing principle for generating the political will to address these other persistent, debilitating problems.
Somewhere To Run, Somewhere To Hide?: International Regulation Of Human Subject Experimentation, Adam H. Laughton
Somewhere To Run, Somewhere To Hide?: International Regulation Of Human Subject Experimentation, Adam H. Laughton
Duke Journal of Comparative & International Law
No abstract provided.
Speaking Of Inconvenient Truths—A History Of The Public Trust Doctrine, James L. Huffman
Speaking Of Inconvenient Truths—A History Of The Public Trust Doctrine, James L. Huffman
Duke Environmental Law & Policy Forum
No abstract provided.
Beyond The Sea And Spector: Reconciling Port And Flag State Control Over Cruise Ship Onboard Environ-Mental Procedures And Policies, Asia N. Wright
Beyond The Sea And Spector: Reconciling Port And Flag State Control Over Cruise Ship Onboard Environ-Mental Procedures And Policies, Asia N. Wright
Duke Environmental Law & Policy Forum
No abstract provided.
International Human Rights Law In Investment Arbitration: Evidence Of International Law’S Unity, James D. Fry
International Human Rights Law In Investment Arbitration: Evidence Of International Law’S Unity, James D. Fry
Duke Journal of Comparative & International Law
No abstract provided.
Financial Regulation In A Global Market Place: Report Of The Duke Global Capital Markets Roundtable, James D. Cox, Edward F. Greene
Financial Regulation In A Global Market Place: Report Of The Duke Global Capital Markets Roundtable, James D. Cox, Edward F. Greene
Duke Journal of Comparative & International Law
No abstract provided.
The World Trade Organization And Regional Trade Agreements: Bridging The Constitutional Credibility Gap, Youri Devuyst, Asja Serdarevic
The World Trade Organization And Regional Trade Agreements: Bridging The Constitutional Credibility Gap, Youri Devuyst, Asja Serdarevic
Duke Journal of Comparative & International Law
No abstract provided.
Exchange Consolidation And Models Of International Securities Regulation, Bo Harvey
Exchange Consolidation And Models Of International Securities Regulation, Bo Harvey
Duke Journal of Comparative & International Law
No abstract provided.
Private Versus Public Regulation: A Comparative Analysis Of British And American Takeover Controls, Brian E. Rosenzweig
Private Versus Public Regulation: A Comparative Analysis Of British And American Takeover Controls, Brian E. Rosenzweig
Duke Journal of Comparative & International Law
No abstract provided.
Sovereign Debt Restructuring, Odious Debt, And The Politics Of Debt Relief, Robert K. Rasmussen
Sovereign Debt Restructuring, Odious Debt, And The Politics Of Debt Relief, Robert K. Rasmussen
Law and Contemporary Problems
Odious debt is more of a literature than a doctrine. Going back to at least the 1920s, one can find arguments that countries should not have to pay back debts that are labeled "odious." The central intuition is that the citizens of a country should not have to pay for the debts incurred by a prior "odious" regime when those funds did not benefit these citizens. It is simply not right to ask people to pay for funds from which they did not benefit, especially when the lender knew of this fact when it made its loan. Here, Rasmussen comments …
Norton V. Suwa And The Unraveling Of Federal Public Land Planning, Michael C. Blumm, Sherry L. Bosse
Norton V. Suwa And The Unraveling Of Federal Public Land Planning, Michael C. Blumm, Sherry L. Bosse
Duke Environmental Law & Policy Forum
No abstract provided.
Law And Transnational Corruption: The Need For Lincoln’S Law Abroad?, Paul D. Carrington
Law And Transnational Corruption: The Need For Lincoln’S Law Abroad?, Paul D. Carrington
Law and Contemporary Problems
No abstract provided.
Odious Debts Or Odious Regimes, Patrick Bolton, David Skeel
Odious Debts Or Odious Regimes, Patrick Bolton, David Skeel
Law and Contemporary Problems
Odious regimes have always been there. That there is no silver-bullet solution that will prevent odious regimes from arising, or stymie them once they do, is evident from the plethora of responses employed by the international community once a regime's odiousness becomes clear. Current odious debt doctrine dates back to a 1927 treatise by a wandering Russian academic named Alexander Sack. The Sack definition contemplates a debt-by-debt approach to questionable borrowing. If a loan is used to benefit the population--to build a highway or water-treatment plant, for instance--the obligation would be fully enforceable, no matter how pernicious the borrower regime. …
Partially Odious Debts?, Omri Ben-Shahar, Mitu Gulati
Partially Odious Debts?, Omri Ben-Shahar, Mitu Gulati
Law and Contemporary Problems
Ben-Shahar borrows from a rich private-law tradition to explore the treatment of odious debt as a problem analogous to allocation of liability in private law. Drawing on the economic analysis of private law, it develops insights as to the structure of an optimal liability scheme. Under this approach, liability is imposed not on the basis of some intrinsic judgment as to the parties' relative blameworthiness, but rather in a forward-looking fashion, on parties who are best suited to take actions to prevent the loss. In addition, liability is imposed on a magnitude tailored to induce an optimal level of precautionary …
Agency By Analogy: A Comment On Odious Debt, Deborah A. Demott
Agency By Analogy: A Comment On Odious Debt, Deborah A. Demott
Law and Contemporary Problems
DeMott focuses on how one might think about the phenomenon of odious debt from the standpoint of common-law agency. Though this analogy has its flaws, some useful insights can be gathered by examining the similarities and differences between the two doctrines, especially when contemplating the theory of liability in the sovereign context. To illustrate the complexity of comparing odious debt to agency law, she develops a series of comparisons between the consequences of borrowing by a sovereign and that by a private corporation afflicted with inept or corrupt management.
Odious Debt, Old And New: The Legal Intellectual History Of An Idea, James V. Feinerman
Odious Debt, Old And New: The Legal Intellectual History Of An Idea, James V. Feinerman
Law and Contemporary Problems
In a sense, all debts are odious; that is, to use dictionary definitions, "hateful; disgusting; offensive." Yet insofar as international economic law today is concerned, only a certain few debts can be considered "odious debts" in order to contest and perhaps eventually to repudiate them. Here, Feinerman examines the concepts of odious debt and related international legal phenomena, in both historical and contemporary context, with a view of determining the role that denomination of certain debts as odious may play in the overall process of sovereign debt rescheduling.
Deciding Death, Corinna Barrett Lain
Deciding Death, Corinna Barrett Lain
Duke Law Journal
When the Supreme Court is deciding death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment '' evolving standards of decency '' doctrine, but their criticism misses the mark. Majoritarian doctrine does not drive the Court's decisions in this area; majoritarian forces elsewhere do. To make my point, I first examine three sets of '' evolving standards '' death penalty decisions in which the Court implicitly or explicitly reversed itself, attacking the legal justification for the Court's change of position and offering an extralegal explanation for why those cases came out the …