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Full-Text Articles in Law

Journal Staff Mar 2018

Journal Staff

Duke Law Journal

No abstract provided.


Crises And Tax, Andrew Blair-Stanek Mar 2018

Crises And Tax, Andrew Blair-Stanek

Duke Law Journal

How can law best mitigate harm from crises like storms, epidemics, and financial meltdowns? This Article uses the law and economics framework of property rules and liability rules to analyze crisis responses across multiple areas of law, focusing particularly on the ways the Internal Revenue Service (IRS) battled the 2008–09 financial crisis.

Remarkably, the IRS’s responses to that crisis cost more than Congress’s higher-profile bank bailouts. Despite their costs, many of the IRS’s responses were underinclusive, causing preventable layoffs and foreclosures. This Article explains these failures and demonstrates that the optimal response to crises is to ...


The True Lender Doctrine: Function Over Form As A Reasonable Constraint On The Exportation Of Interest Rates, John Hannon Mar 2018

The True Lender Doctrine: Function Over Form As A Reasonable Constraint On The Exportation Of Interest Rates, John Hannon

Duke Law Journal

The exportation doctrine permits national and state banks to export interest rates that are legal in one state where they operate to any other state, thereby shielding the banks from liability resulting from state usury claims. The doctrine has expanded over the last forty years to permit state and national banks to preempt a variety of state consumer-financial-protection laws. The doctrine’s high-water mark is the emergence of the “rent-a-charter” arrangement, a scheme in which a nonbank lender uses a bank as a mere conduit to originate loans that are not subject to state usury laws. This Note argues that ...


Competency, Counsel, And Criminal Defendants’ Inability To Participate, Sara R. Faber Mar 2018

Competency, Counsel, And Criminal Defendants’ Inability To Participate, Sara R. Faber

Duke Law Journal

Built into the foundation of the U.S. criminal justice system is the idea that defendants must be able to participate in the trials against them. The right not to stand trial unless competent is premised on the idea that it is fundamentally unfair for defendants to stand trial unless they are able to participate in their trial in at least some capacity. Likewise, the right to counsel is based on a conception of defendants controlling at least some decisions in their case. These rights express an ideal that is foundational to our criminal system: defendant participation must be protected ...


Reputational Regulation, Kishanthi Parella Feb 2018

Reputational Regulation, Kishanthi Parella

Duke Law Journal

When organizations act in ways that offend the public interest, parties seeking to change that behavior traditionally turned to litigation to force these organizations to reform, whether by command or consent. For example, following Brown v. Board of Education , “structural reform litigation” forced large-scale organizations, from school boards to prisons, to change their practices. Similarly, federal prosecutors have used agreements with large corporations to introduce significant structural reforms.

This Article identifies an alternative strategy for organizational change that relies on the indirect reputational effects of litigation. Under this approach, organizational change does not result from court order or parties’ settlement ...


Resurrecting A Doctrine On Its Deathbed: Revisiting Federal Common Law Greenhouse Gas Litigation After Utility Air Regulatory Group V. Epa, Zachary Hennessee Feb 2018

Resurrecting A Doctrine On Its Deathbed: Revisiting Federal Common Law Greenhouse Gas Litigation After Utility Air Regulatory Group V. Epa, Zachary Hennessee

Duke Law Journal

This Note considers how the Supreme Court’s decision in Utility Air Regulatory Group v. EPA (UARG) may have created a new opening for federal common law nuisance litigation as a means to address climate change. The Court’s earlier decision in American Electric Power v. Connecticut (AEP) held that federal nuisance claims targeting greenhouse gas emissions were completely displaced by the Clean Air Act. However, the holding in AEP was premised on the assumption that the Clean Air Act uniformly addressed greenhouse gases throughout the statute. UARG upended this assumption, holding that there are sections of the Clean Air ...


Data Privacy And Dignitary Privacy: Google Spain, The Right To Be Forgotten, And The Construction Of The Public Sphere, Robert C. Post Feb 2018

Data Privacy And Dignitary Privacy: Google Spain, The Right To Be Forgotten, And The Construction Of The Public Sphere, Robert C. Post

Duke Law Journal

The 2014 decision of the European Court of Justice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both.

With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the ...


Journal Staff Feb 2018

Journal Staff

Duke Law Journal

No abstract provided.


Double Secret Protection: Bridging Federal And State Law To Protect Privacy Rights For Telemental And Mobile Health Users, Josh Sherman Feb 2018

Double Secret Protection: Bridging Federal And State Law To Protect Privacy Rights For Telemental And Mobile Health Users, Josh Sherman

Duke Law Journal

Mental health care in the United States is plagued by stigma, cost, and access issues that prevent many people from seeking and continuing treatment for mental health conditions. Emergent technology, however, may offer a solution. Through telemental health, patients can connect with providers remotely—avoiding stigmatizing situations that can arise from traditional healthcare delivery, receiving more affordable care, and reaching providers across geographic boundaries. And with mobile health technology, people can use smart phone applications both to self-monitor their mental health and to communicate with their doctors. But people do not want to take advantage of telemental and mobile health ...


The War Against Chinese Restaurants, Gabriel J. Chin, John Ormonde Jan 2018

The War Against Chinese Restaurants, Gabriel J. Chin, John Ormonde

Duke Law Journal

Chinese restaurants are a cultural fixture—as American as cherry pie. Startlingly, however, there was once a national movement to eliminate Chinese restaurants, using innovative legal methods to drive them out. Chinese restaurants were objectionable for two reasons. First, Chinese restaurants competed with “American” restaurants, thus threatening the livelihoods of white owners, cooks, and servers and motivating unions to fight them. Second, Chinese restaurants threatened white women, who were subject to seduction by Chinese men taking advantage of intrinsic female weakness and nefarious techniques such as opium addiction.

The efforts were creative. Chicago used anti-Chinese zoning, Los Angeles restricted restaurant ...


Characterizing Constitutional Inputs, Michael Coenen Jan 2018

Characterizing Constitutional Inputs, Michael Coenen

Duke Law Journal

Constitutional doctrine frequently employs tests that operate on abstract conceptual inputs rather than objectively identifiable facts. Consider some examples: substantive due process doctrine directs attention to whether a violated “right” qualifies as fundamental or nonfundamental; Commerce Clause doctrine directs attention to whether a regulated “activity” qualifies as economic or noneconomic; the strict scrutiny test directs attention to whether a relevant “government interest” qualifies as compelling or noncompelling; and so forth. These sorts of decision rules call for an evaluation of variables whose scope, content, and character are frequently up for debate, thereby requiring courts to characterize constitutional inputs as a ...


A Violent Birth: Reframing Coerced Procedures During Childbirth As Obstetric Violence, Maria T.R. Borges Jan 2018

A Violent Birth: Reframing Coerced Procedures During Childbirth As Obstetric Violence, Maria T.R. Borges

Duke Law Journal

In the United States, women are routinely forced to undergo cesarean sections, episiotomies, and the use of forceps, despite their desire to attempt natural vaginal delivery. Yet, the current American legal system does little to provide redress for women coerced to undergo certain medical procedures during childbirth. Courts and physicians alike are prepared to override a woman’s choice of childbirth procedure if they believe this choice poses risks to the fetus, and both give little value to the woman’s right to bodily autonomy. This Note proposes a solution for addressing the problem of coerced medical procedures during childbirth ...


Journal Staff Jan 2018

Journal Staff

Duke Law Journal

No abstract provided.


Choose Your Laws Carefully: Executive Authority To Unilaterally Withdraw The United States Outer Continental Shelf From Leasing Disposition, Payton A. Wells Jan 2018

Choose Your Laws Carefully: Executive Authority To Unilaterally Withdraw The United States Outer Continental Shelf From Leasing Disposition, Payton A. Wells

Duke Law Journal

Congress enacted the Outer Continental Shelf Lands Act (OCSLA) to both exert federal jurisdiction over the submerged lands of the U.S. Outer Continental Shelf and establish the legal framework for America’s offshore energy production regime. Section 12(a) of OCSLA is a short yet potent provision that grants a president the authority to withdraw unleased offshore lands from leasing disposition, effectively banning any form of energy exploration or production. In recent decades, presidents have embraced section 12(a) not only to ban offshore energy production, but also to protect the marine environment itself. Presidents have also utilized a ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


Journal Staff Oct 2017

Journal Staff

Duke Law Journal

No abstract provided.


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 ...


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 ...