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Full-Text Articles in Law

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.


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 ...


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.


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 ...


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.


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 ...


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 ...


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 ...


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 ...


Journal Staff Apr 2017

Journal Staff

Duke Law Journal

No abstract provided.


Police Union Contracts, Stephen Rushin Mar 2017

Police Union Contracts, Stephen Rushin

Duke Law Journal

This Article empirically demonstrates that police departments’ internal disciplinary procedures, often established through the collective bargaining process, can serve as barriers to officer accountability.

Policymakers have long relied on a handful of external legal mechanisms like the exclusionary rule, civil litigation, and criminal prosecution to incentivize reform in American police departments. In theory, these external legal mechanisms should increase the costs borne by police departments in cases of officer misconduct, forcing rational police supervisors to enact rigorous disciplinary procedures. But these external mechanisms have failed to bring about organizational change in local police departments. This Article argues that state labor ...


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 ...


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 ...


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 ...


Journal Staff Mar 2017

Journal Staff

Duke Law Journal

No abstract provided.


A Market For Sovereign Control, Joseph Blocher, Mitu Gulati Jan 2017

A Market For Sovereign Control, Joseph Blocher, Mitu Gulati

Duke Law Journal

Can popular sovereignty and sovereign territory coexist? Can countries exchange sovereign territory consistently with the principle of self-determination? What if countries’ rights to territorial integrity were predicated on corresponding duties to govern well? And can the international system provide mechanisms and incentives to improve the status quo?

These questions are not simply academic. Across the world, many regions are located in the wrong nations—wrong in the sense that the people of these regions believe they would be safer, happier, and wealthier if surrounded by different borders and governed by different leaders. Such people might be able to improve their ...


Patent Law’S Reproducibility Paradox, Jacob S. Sherkow Jan 2017

Patent Law’S Reproducibility Paradox, Jacob S. Sherkow

Duke Law Journal

Clinical research faces a reproducibility crisis. Many recent clinical and preclinical studies appear to be irreproducible—their results cannot be verified by outside researchers. This is problematic for not only scientific reasons but also legal ones: patents grounded in irreproducible research appear to fail their constitutional bargain of property rights in exchange for working disclosures of inventions. The culprit is likely patent law’s doctrine of enablement. Although the doctrine requires patents to enable others to make and use their claimed inventions, current difficulties in applying the doctrine hamper or even actively dissuade reproducible data in patents. This Article assesses ...


Safeguarding The Ada’S Antidiscrimination Mandate: Subjecting Arrests To Title Ii Coverage, Shanna Rifkin Jan 2017

Safeguarding The Ada’S Antidiscrimination Mandate: Subjecting Arrests To Title Ii Coverage, Shanna Rifkin

Duke Law Journal

The news has been peppered with tragic stories of individuals with disabilities who have been killed or injured following police encounters. In the aftermath of these incidents, as injured parties seek accountability, a question looms: Can arrest proceedings violate the Americans with Disabilities Act?

The ADA was enacted to prohibit disability discrimination. The law had an ambitious agenda, supported by broad statutory authority, to ensure equality in all areas of public life for individuals with disabilities. But while the ADA has fostered integration into many aspects of modern life, one area remains deeply contested: arrests.

If Congress envisioned that Americans ...


Giving Vulnerable Students Their Due: Implementing Due Process Protections For Students Referred From Schools To The Justice System, Meredith S. Simons Jan 2017

Giving Vulnerable Students Their Due: Implementing Due Process Protections For Students Referred From Schools To The Justice System, Meredith S. Simons

Duke Law Journal

There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to ...


Journal Staff Jan 2017

Journal Staff

Duke Law Journal

No abstract provided.


Who Cares How Congress Really Works?, Ryan D. Doerfler Jan 2017

Who Cares How Congress Really Works?, Ryan D. Doerfler

Duke Law Journal

Legislative intent is a fiction. Courts and scholars accept this, by and large. As this Article shows, however, both are confused as to why legislative intent is a fiction and as to what this fiction entails.

This Article first argues that the standard explanation—that Congress is a “they,” not an “it”—rests on an unduly simple conception of shared agency. Drawing from contemporary scholarship in the philosophy of action, it contends that Congress has no collective intention, not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that ...


Rape Beyond Crime, Margo Kaplan Jan 2017

Rape Beyond Crime, Margo Kaplan

Duke Law Journal

Public health experts agree that sexual violence constitutes a significant public health issue. Yet criminal law dominates rape law almost completely, with public health law playing at best a small supporting role. Recent civil law developments, such as university disciplinary proceedings, similarly fixate on how best to find and penalize perpetrators. As a result, rape law continues to spin its wheels in the same arguments and obstacles.

This Article argues that, without broader cultural changes, criminal law faces a double bind: rape laws will either be ineffective or neglect the importance of individual culpability. Public health law provides more promising ...


When Stuff Becomes Art: The Protection Of Contemporary Art Through The Elimination Of Vara’S Public-Presentation Exception, Elizabeth Plaster Jan 2017

When Stuff Becomes Art: The Protection Of Contemporary Art Through The Elimination Of Vara’S Public-Presentation Exception, Elizabeth Plaster

Duke Law Journal

The Visual Artists Rights Act of 1990 (VARA) grants an artist the broad power to “prevent any intentional distortion, mutilation, or other modification of the work which would be prejudicial to [the artist’s] honor or reputation.” This right is significantly circumscribed, however, by VARA’s public-presentation exception, which states that a modification “which is the result . . . of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification” that would otherwise violate VARA.

This Note argues that the public-presentation exception is injudicious in light of the rise of the contemporary art ...