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Full-Text Articles in Law

Foreign Price-Fixing Conspiracies, Christopher R. Leslie Dec 2017

Foreign Price-Fixing Conspiracies, Christopher R. Leslie

Duke Law Journal

Although price-fixing agreements remain per se illegal in the United States, courts have undermined the per se rule against price fixing by making it harder for plaintiffs to prove that such an agreement exists. For example, most courts that have considered the issue have held that defendants’ price-fixing conduct in a foreign market is not probative of price fixing in the United States. This Article examines the relationship between foreign and domestic price-fixing activity and shows how expanding a price-fixing cartel from foreign markets into the United States benefits the cartel by reducing the risk of arbitrage, stabilizing the cartel ...


Algorithms & Fiduciaries: Existing And Proposed Regulatory Approaches To Artificially Intelligent Financial Planners, John Lightbourne Dec 2017

Algorithms & Fiduciaries: Existing And Proposed Regulatory Approaches To Artificially Intelligent Financial Planners, John Lightbourne

Duke Law Journal

Artificial intelligence is no longer solely in the realm of science fiction. Today, basic forms of machine learning algorithms are commonly used by a variety of companies. Also, advanced forms of machine learning are increasingly making their way into the consumer sphere and promise to optimize existing markets. For financial advising, machine learning algorithms promise to make advice available 24–7 and significantly reduce costs, thereby opening the market for financial advice to lower-income individuals. However, the use of machine learning algorithms also raises concerns. Among them, whether these machine learning algorithms can meet the existing fiduciary standard imposed on ...


Creating A More Certain Standard For Enhanced Patent Damages By Requiring Egregiousness As An Element In The Section 284 Analysis, Brian Barnes Dec 2017

Creating A More Certain Standard For Enhanced Patent Damages By Requiring Egregiousness As An Element In The Section 284 Analysis, Brian Barnes

Duke Law Journal

According to 35 U.S.C. § 284, district courts have the power to “increase the damages up to three times the amount found or assessed” by the jury in patent infringement cases where willful infringement occurred. Following the recent Supreme Court decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., it is now less clear how courts are to go about deciding whether to exercise this power. Halo established that the decision lies within the discretion of the district court judge, but declined to give a more concrete standard than urging the judge to “take into account the particular circumstances ...


Journal Staff Dec 2017

Journal Staff

Duke Law Journal

No abstract provided.


One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl Dec 2017

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Duke Law Journal

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one ...


Don't Try This At Home: The Fda's Restrictive Regulation Of Home-Testing Devices, Shelby Baird Nov 2017

Don't Try This At Home: The Fda's Restrictive Regulation Of Home-Testing Devices, Shelby Baird

Duke Law Journal

Over the past forty years, the Food and Drug Administration (FDA) has successfully restricted consumers' access to home-testing applications based on the notion that it should protect individuals from their own reactions to test results. In the 1970s, the FDA briefly denied women access to home pregnancy tests that were identical to those used in laboratories. In the late 1980s and early 1990s, it relied on concerns about consumer responses to HIV status results to justify a categorical ban on applications for HIV home-testing technology. More recently, it placed burdensome restrictions on direct-to-consumer (DTC) genetic testing companies, such as 23andMe ...


The Class Is Greener On The Other Side: How Private Donations To Public Schools Play Into Fair Funding, Abigail Margaret Frisch Nov 2017

The Class Is Greener On The Other Side: How Private Donations To Public Schools Play Into Fair Funding, Abigail Margaret Frisch

Duke Law Journal

It has been observed that forays into public education finance resemble Russian novels-"long, tedious, and everybody dies in the end." On any given day, dozens of news stories describe schools nationwide struggling to make ends meet. And, just as "each unhappy family is unhappy in its own way," each underfunded school is underfunded in its own complicated way. Funding for public education comes from many places, chief among them local property taxes, at least historically. States-which bear primary responsibility for administering their education systems-and private litigants have struggled for over sixty years to produce funding formulas that weaken the ...


The Bootstrap Trap, Sara Sternberg Greene Nov 2017

The Bootstrap Trap, Sara Sternberg Greene

Duke Law Journal

In the mid-1990s, Congress fundamentally altered the public safety net when it passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, otherwise known as welfare reform. Under the PRWORA, cash assistance was no longer an entitlement for income-qualifying families; instead, recipients faced work requirements and lifetime limits on receiving benefits. Bipartisan reformers sought to transform welfare from a program believed to trap poor mothers in a "culture of dependence" into a program that would promote a culture of "self-sufficiency" and "personal responsibility." This shift in culture, it was argued, would ultimately lead to upward mobility. This Article ...


Contracts Ex Machina, Kevin Werbach, Nicolas Cornell Nov 2017

Contracts Ex Machina, Kevin Werbach, Nicolas Cornell

Duke Law Journal

Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Do smart contracts offer a superior solution to the problems that contract law addresses? In this article, we aim to understand both the potential and ...


Journal Staff Nov 2017

Journal Staff

Duke Law Journal

No abstract provided.


The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, Mitu Gulati, Robert E. Scott Oct 2017

The Black Hole Problem In Commercial Boilerplate, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Duke Law Journal

Rote use of a standard-form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. When they occur, rote usage and encrustation weaken the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is emptied of meaning, it can create a contractual black hole in which, as the term loses meaning, random variations in language appear and persist. What, then, are the consequences if parties exploit these variations in language by successfully advancing an interpretation the market disavows ...


Polygamous Marriage, Monogamous Divorce, Michael J. Higdon Oct 2017

Polygamous Marriage, Monogamous Divorce, Michael J. Higdon

Duke Law Journal

Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more ...


This Name Is Your Name: Public Landmarks, Private Trademarks, And Our National Parks, Megan Elaine Ault Oct 2017

This Name Is Your Name: Public Landmarks, Private Trademarks, And Our National Parks, Megan Elaine Ault

Duke Law Journal

To generations of Americans, Yosemite National Park and its landmarks have symbolized the core democratic ideals of the United States—spaces truly owned by the people and open to all. For those who created our national parks, “[t]he purpose of preserving this land was to cultivate a kind of rare experience [they] saw as endangered by a social world that turned every thing, moment, and human being to profit.” It is striking, then, that Yosemite, one of the nation’s first national parks, has become the focus of a battle over whether our landmarks and their names belong to ...


Rule 24 Notwithstanding: Why Article Iii Should Not Limit Intervention Of Right, Zachary N. Ferguson Oct 2017

Rule 24 Notwithstanding: Why Article Iii Should Not Limit Intervention Of Right, Zachary N. Ferguson

Duke Law Journal

The Supreme Court recently decided in Town of Chester v. Laroe Estates, Inc. that intervenors of right under Federal Rule of Civil Procedure 24(a)(2) must demonstrate independent Article III standing when they pursue relief different from that requested by an original plaintiff. This decision resolved, in part, a decades-long controversy among the Courts of Appeals over the proper relationship between Rule 24 intervention and Article III standing that the Court first acknowledged in Diamond v. Charles. But the Court’s narrow decision in Town of Chester hardly disposed of the controversy, and Courts of Appeals are still free ...


Journal Staff Oct 2017

Journal Staff

Duke Law Journal

No abstract provided.


On Dollars And Deference: Agencies, Spending, And Economic Rights, Mila Sohoni May 2017

On Dollars And Deference: Agencies, Spending, And Economic Rights, Mila Sohoni

Duke Law Journal

Agencies can change society not just by prescribing conduct, but also by spending money. The Obama administration gave us two powerful examples of this phenomenon. To secure widespread access to affordable health insurance and affordable higher education, the administration took actions that were not required by statutory text. These entitlements are built upon a scaffolding of aggressive agency statutory interpretations, not upon clear legislative commands.

This Article uses these two examples as case studies for evaluating the institutional competence of the executive branch to underwrite large-scale positive economic entitlements on the basis of ambiguous statutory authority. Such agency-initiated schemes may ...


Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin A. Collins May 2017

Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin A. Collins

Duke Law Journal

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating ...


Administering Suspect Classes, Bertrall L. Ross Ii May 2017

Administering Suspect Classes, Bertrall L. Ross Ii

Duke Law Journal

It has been over forty years since the Supreme Court declared a class suspect under the Equal Protection Clause. In that time, the Court has denied suspect-class status—and the special judicial protections associated with it—to the elderly, the disabled, and the poor, and it has avoided suspect-class determinations when addressing laws that discriminate against members of the LGBTQ community. Administrative agencies, however, have stepped in to provide marginalized groups with some protections through their interpretation of civil rights laws. The Court has shown hostility to those agency interpretations, often in opaque decisions that seem to rest on principles ...


Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson May 2017

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Duke Law Journal

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new “inclusive regulation” can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.


An Administrative Right To Be Free From Sexual Violence? Title Ix Enforcement In Historical And Institutional Perspective, Karen M. Tani May 2017

An Administrative Right To Be Free From Sexual Violence? Title Ix Enforcement In Historical And Institutional Perspective, Karen M. Tani

Duke Law Journal

One of the most controversial administrative actions in recent years is the U.S. Department of Education’s campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department’s Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Article offers crucial context ...


Journal Staff May 2017

Journal Staff

Duke Law Journal

No abstract provided.


Debunking Antinovelty, Leah M. Litman Apr 2017

Debunking Antinovelty, Leah M. Litman

Duke Law Journal

This Article debunks the idea that a federal statute’s novelty is an indication that the statute violates constitutional principles of federalism or the separation of powers. In the last six years, every Justice on the Supreme Court has signed onto the idea that legislative novelty signals that a statute is unconstitutional. Many courts of appeals have also latched onto antinovelty rhetoric, two doing so in the course of finding federal statutes unconstitutional. The Supreme Court’s rhetoric about legislative novelty originated as an observation: the Court described a statute as novel when distinguishing that statute from other, constitutionally permissible ...


Lessons From New Orleans: A Stronger Role For Public Defenders In Spurring Indigent Defense Reform, Ace M. Factor Apr 2017

Lessons From New Orleans: A Stronger Role For Public Defenders In Spurring Indigent Defense Reform, Ace M. Factor

Duke Law Journal

Excessive caseloads prevent public defenders from fulfilling their ethical obligations and curtail criminal defendants’ right to the effective assistance of counsel. Despite this ethical and constitutional dilemma, legislators have been reluctant to provide adequate funds for indigent defense. And because of the separation of powers, courts have been unable to force legislators’ hands. Against this backdrop, criminal defendants in states that choose not to adequately fund indigent defense face a serious risk of wrongful conviction.

The Orleans Public Defenders Office (OPD) provides a case study of public defenders playing a stronger role in spurring legislative reform. In response to a ...


Zivotofsky Ii And National Security Decisionmaking At The Lowest Ebb, Chase Harrington Apr 2017

Zivotofsky Ii And National Security Decisionmaking At The Lowest Ebb, Chase Harrington

Duke Law Journal

This Note examines assertions of exclusive presidential power in light of the Supreme Court’s 2015 decision in Zivotofsky ex rel. Zivotofsky v. Kerry. This Note argues that, contrary to the suggestion of some commentators, the decision enhances the President’s ability to disregard legislative restrictions at flashpoints of national security decisionmaking.

As Zivotofsky II saw, the President exclusively holds the power to recognize foreign countries. More significant, however, are the analytic moves that the Court introduces when assessing a President’s defiance of an act of Congress—a setup where the President’s power reaches its “lowest ebb.”

The ...


Liquidation Of Constitutional Meaning Through Use, Paul G. Ream Apr 2017

Liquidation Of Constitutional Meaning Through Use, Paul G. Ream

Duke Law Journal

In recent years, constitutional scholars have engaged in dialogue over the validity of looking to historical and social practice to determine what the Constitution means. Part of this debate has focused on the idea of “liquidation,” suggested by James Madison in Federalist 37 and other writings as a means by which the text of the Constitution might take on additional meaning after the ink had dried. Constitutional decisionmakers, both on the Supreme Court and in the executive branch, have found recent occasion to consider the importance of past practice when deciding what our founding document means now.

This Note clarifies ...


Standing To Sue: Lessons From Scotland’S Actio Popularis, James E. Pfander Apr 2017

Standing To Sue: Lessons From Scotland’S Actio Popularis, James E. Pfander

Duke Law Journal

Much of what we think we know about the nature of judicial power in the early Republic comes from the history of English common law. Our focus on the common law seems natural enough: Blackstone’s Commentaries on the Laws of England shaped many an antebellum lawyer’s notion of legal practice, and jurists in the twentieth century quite deliberately pointed to the courts at Westminster when discussing the origins of judicial power in America.

An emerging body of scholarship has come to question this single-minded focus. Litigation in eighteenth-century America was an eclectic affair, also drawing on the practices ...


Journal Staff Apr 2017

Journal Staff

Duke Law Journal

No abstract provided.


A Picture Is Worth A Thousand Material-Connection Disclosures: Endorsers, Instagram, And The Federal Trade Commission’S Endorsement Guides, Lauren Myers Mar 2017

A Picture Is Worth A Thousand Material-Connection Disclosures: Endorsers, Instagram, And The Federal Trade Commission’S Endorsement Guides, Lauren Myers

Duke Law Journal

With the spread of social-media advertising, the Federal Trade Commission (FTC) has made many attempts to regulate the burgeoning field. However, the complexity of social media makes it difficult to regulate without violating the First Amendment. This difficulty is especially true for Instagram, a social-media platform where pictures—a form of speech protected by the First Amendment—are the primary focal point. This Note argues that the FTC’s material-connection disclosure requirement potentially violates the First Amendment as it applies to Instagram advertisements. Instead of focusing on audience perception when determining whether an endorser must include a material-connection disclosure, the ...


Health Care’S Other “Big Deal”: Direct Primary Care Regulation In Contemporary American Health Law, Glenn E. Chappell Mar 2017

Health Care’S Other “Big Deal”: Direct Primary Care Regulation In Contemporary American Health Law, Glenn E. Chappell

Duke Law Journal

Direct primary care is a promising, market-based alternative to the fee-for-service payment structure that shapes doctor–patient relationships in America. Instead of billing patients and insurers service by service, direct primary care doctors charge their patients a periodic, prenegotiated fee in exchange for providing a wide range of healthcare services and increased availability compared to traditional practices. This “subscription” model is intended to eliminate the administrative burdens associated with insurer interaction, which, in theory, allows doctors to spend more time with their patients and less time doing paperwork.

Direct practices have become increasingly popular since Congress passed the Affordable Care ...


Rise Of The Digital Regulator, Rory Van Loo Mar 2017

Rise Of The Digital Regulator, Rory Van Loo

Duke Law Journal

The administrative state is leveraging algorithms to influence individuals’ private decisions. Agencies have begun to write rules to shape for-profit websites such as Expedia and have launched their own online tools such as the Consumer Financial Protection Bureau’s mortgage calculator. These digital intermediaries aim to guide people toward better schools, healthier food, and more savings. But enthusiasm for this regulatory paradigm rests on two questionable assumptions. First, digital intermediaries effectively police consumer markets. Second, they require minimal government involvement. Instead, some for-profit online advisers such as travel websites have become what many mortgage brokers were before the 2008 financial ...