Law Commons^™

A State’S Right To Military Power: The International Legal Implications Of Potential Sdf Action, Rachel Mueller

Duke Journal of Comparative & International Law

No abstract provided.

In Ambiguous Battle: The Promise (And Pathos) Of Public Domain Day, 2014, Jennifer Jenkins

Duke Law & Technology Review

On the first day of each year, Public Domain Day celebrates the moment when copyrights expire, and books, films, songs, and other creative works enter the public domain, where they become, in Justice Brandeis’s words, “free as the air to common use.” Educators, students, artists, and fans can use them with neither permission nor payment. Online archives can digitize and make them fully available without the threat of lawsuits or licensing demands. Sadly, in the United States, as a result of copyright term extensions, not a single published work will enter the public domain in 2014. In fact, almost no …

Medtronic V. Boston Scientific: Allocating The Burden Of Proof In Declaratory Judgment Actions For Patent Non-Infringement, Brianna Strange

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Medtronic, Inc. v. Boston Scientific Corporation, in which the Court will decide which party bears the burden of proof in a declaratory judgment action for patent non-infringement.

At Home In The Outer Limits: Daimlerchrysler V. Bauman And The Bounds Of General Personal Jurisdiction, Todd W. Noelle

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, DaimlerChrysler v. Bauman, in which the Court may decide whether maintaining a wholly-owned subsidiary in a forum state can render a foreign parent corporation "essentially at home" in that state, thereby permitting the forum state to exercise general personal jurisdiction over the parent corporation.

Atlantic Marine V. J-Crew: The Future Of Forum-Selection Clauses In Federal Courts, Sarah Sheridan

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Atlantic Marine v. J-Crew, in which the Court may clarify a circuit split regarding the enforceability of forum-selection clauses by deciding which procedure should govern the enforcement of these clauses and which party carries the burden of proof in these disputes.

The Right To “Do Politics” And Not Just To Speak: Thinking About The Constitutional Protections For Political Action, Robert F. Bauer

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Interning Dissent: The Law Of Large Political Events, Aaron Johnson

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Bull In The China Market: The Gap Between Investor Expectations And Auditor Liability For Chinese Financial Statement Frauds, Phillip Barber

Duke Journal of Comparative & International Law

No abstract provided.

Inflationary Trends In Law And Development, Benjamin Van Rooji, Pip Nicholson

Duke Journal of Comparative & International Law

This Article analyzes two seemingly contradictory trends in the study and practice of law and development. First, it looks at the ever-rising level of expectations and ambitions about what law can do for development. Second, it looks at the increasingly vocal criticism and frustration, both from inside and outside the field, that law often fails to achieve the desired developmental effects. This Article argues that there is a relationship between increasing ambition and lack of impact. More particularly, it suggests that increasing ambition produces limited impacts but that lack of impact, ironically, leads to recommendations to increase ambition. This Article …

Journal Staff

Duke Journal of Constitutional Law & Public Policy

Abstract required.

The Paper Chase: Securitization, Foreclosure, And The Uncertainty Of Mortgage Title, Adam J. Levitin

Duke Law Journal

The mortgage foreclosure crisis raises legal questions as important as its economic impact. Questions that were straightforward and uncontroversial a generation ago today threaten the stability of a $13 trillion mortgage market: Who has standing to foreclose? If a foreclosure was done improperly, what is the effect? And what is the proper legal method for transferring mortgages? These questions implicate the clarity of title for property nationwide and pose a too-big-to-fail problem for the courts.

The legal confusion stems from the existence of competing systems for establishing title to mortgages and transferring those rights. Historically, mortgage title was established and …

Inferring Desire, Jessica A. Clarke

Duke Law Journal

In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results.

This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual …

Mission Creep Or A Search For Relevance: The East African Court Of Justice’S Human Rights Strategy, James Gathii

Duke Journal of Comparative & International Law

No abstract provided.

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

Note From The Editor, Kristie Beaudoin

Alaska Law Review

No abstract provided.

Pretext Searches And Seizures: In Search Of Solid Ground, Jeff D. May, Rob Duke, Sean Gueco

Alaska Law Review

Despite numerous attempts to subject the use of pretext law enforcement stops to Alaska Constitutional scrutiny, the issue has never been thoroughly reviewed. Alaska courts currently allow pretext investigative stops so long as a reasonable officer following permissible police practices could have made the stop for the proffered reason. This is a minority position, inconsistent with federal law which deems pretext motivations constitutionally irrelevant. It is also far less protective of individual rights than an outright ban on officer pretext. This reasonable officer standard, however, offers some advantages over banning all types of pretext. This Article explores Alaska's historical treatment …

Duties Of The Judicial System To The Pro Se Litigant, Mark Andrews

Alaska Law Review

Alaska courts have assisted unrepresented litigants in civil cases, explaining procedural technicalities to pro se litigants and applying more lenient standards to pro se pleadings. Although the origin of this policy is unclear, the Alaska Supreme Court in Breck v. Ulmer held that the trial court should advise pro se litigants of procedural requirements and hold pro se litigants to less stringent standards than attorneys. However, two recent cases, Greenway v. Heathcott and Wagner v. Wagner, have complicated Alaska's policy by adopting different approaches regarding when a court should advise a pro se litigant of procedural requirements. This Article …

Giving Up The Ghost: Alaska Bar Ethics Opinion 93-1 And Undisclosed Attorney Assistance Revisited, Howard Burgoyne Rhodes

Alaska Law Review

Twenty years ago, the Alaska Bar Association adopted Ethics Opinion No. 93-1 which permitted attorneys to "ghostwrite" pleadings and provide other undisclosed services to pro se litigants. The goal of this ethical guidance was to enable attorneys to assist low-income individuals who could not otherwise afford representation. Ethics Opinion No. 93-1 construed "ghostwriting" broadly as an attorney's undisclosed assistance to a pro se client whether by providing legal advice or drafting pleadings or other documents. This Note argues that, despite the moral allure of its theoretical justifications, ghostwriting is unnecessary, provides little demonstrable benefit to pro se litigants, and potentially …

Alaska Natives And American Laws, By David S. Case And David A. Voluck, Troy A. Eid

Alaska Law Review

No abstract provided.

The “Middle Place”: The Npr-A Impact Mitigation Program And Alaska’S North Slope, Shauna Woods

Alaska Law Review

The communities of Alaska's North Slope increasingly find themselves in a "middle place," stuck between a past to which they cannot return and a future that is fraught with uncertainty. Oil and gas development on Alaska's North Slope has resulted in environmental, cultural, and social changes that have adversely affected the communities in the area. At the same time, oil and gas leasing in the National Petroleum Reserve in Alaska, located on the North Slope, has created an important revenue source for helping those communities mitigate the impacts of development and augment their capacities for addressing future changes. In particular, …

Mutiny Against The Mmpa: A Look At Alaska Sb 60, Garrett Boyle

Alaska Law Review

In an attempt to curb the detrimental effects of a ballooning sea otter population, a new bill proposed in the Alaska State Senate seeks to amend the Alaska fish and game statutes by placing a bounty of $100 on sea otters lawfully taken by Alaska Natives. This Note studies the conflicting nature of the proposed bill, SB 60, with the current version of the Marine Mammal Protection Act, examining the enforceability of the provision in light of precedent from the Alaska Supreme Court and a liberal interpretation of the MMPA. The Note ultimately concludes that SB 60, as written, is …

Journal Staff

Alaska Law Review

No abstract provided.

Fraud On The Market After Amgen, James D. Cox

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Fisher V. University Of Texas: Who Put The Holes In “Holistic”?, Rodney A. Smolla

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Five Justices, Section 4, And Three Ways Forward In Voting Rights, Kareem Crayton, Jane Junn

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Cell Phones, Police Recording, And The Intersection Of The First And Fourth Amendments, Conor M. Reardon

Duke Law Journal

In a recent spate of highly publicized incidents, citizens have used cell phones equipped with video cameras to record violent arrests. Oftentimes they post their recordings on the Internet for public examination. As the courts have recognized, this behavior lies close to the heart of the First Amendment.

But the Constitution imperfectly protects this new form of government monitoring. Fourth Amendment doctrine generally permits the warrantless seizure of cell phones used to record violent arrests, on the theory that the recording contains evidence of a crime. The Fourth Amendment inquiry does not evaluate a seizing officer's state of mind, permitting …

Getting Slapp-Ed In Federal Court: Applying State Anti-Slapp Special Motions To Dismiss In Federal Court After Shady Grove, Katelyn E. Saner

Duke Law Journal

In recent years, dozens of states have enacted anti-Strategic Lawsuits Against Public Participation (SLAPP) laws to counter SLAPP suits, or lawsuits filed to silence a defendant who has spoken out against a plaintiff. The goal of a SLAPP suit is not to win on the merits, but rather to discourage the defendant's right to free speech through the prospect of ruinously expensive litigation. State anti-SLAPP laws provide for special motions to dismiss, which allow a defendant to file an expedited motion to dispose of the SLAPP suit before engaging in costly discovery.

It is well established that a federal court …

Citizenship And The Law Of Time In The United States, Elizabeth F. Cohen

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Delegating Away The Unitary Executive: Reviewing Ina § 287(G) Agreements Through The Lens Of The Unitary Executive Theory, Matthew A. Smith

Duke Journal of Constitutional Law & Public Policy

No abstract provided.