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Full-Text Articles in Law
Custom, Normative Practice, And The Law, Gerald J. Postema
Custom, Normative Practice, And The Law, Gerald J. Postema
Duke Law Journal
Legally binding custom is conventionally analyzed in terms of two independent elements: regularities of behavior (usus) and convictions of actors engaging in the behavior that it is legally required (opinio juris). This additive conception of custom is deeply flawed. This Essay argues that we must abandon the additive conception and replace it with an account of custom that understands legally relevant customs as norms that arise from discursive normative practices embedded in rich contexts of social interaction characterized by intermeshing anticipations and interconnected conduct. The hallmark of legally binding customs, it is argued, is not the addition of belief or …
Custom, Contract, And Kidney Exchange , Kieran Healy, Kimberly D. Krawiec
Custom, Contract, And Kidney Exchange , Kieran Healy, Kimberly D. Krawiec
Duke Law Journal
In this Essay, we examine a case in which the organizational and logistical demands of a novel form of organ exchange (the nonsimultaneous, extended, altruistic donor (NEAD) chain) do not map cleanly onto standard cultural schemas for either market or gift exchange, resulting in sociological ambiguity and legal uncertainty. In some ways, a NEAD chain resembles a form of generalized exchange, an ancient and widespread instance of the norm of reciprocity that can be thought of simply as the obligation to "pay it forward" rather than the obligation to reciprocate directly with the original giver. At the same time, a …
International Adjudication And Custom Breaking By Domestic Courts , Suzanne Katzenstein
International Adjudication And Custom Breaking By Domestic Courts , Suzanne Katzenstein
Duke Law Journal
This Essay identifies a fundamental but overlooked tension between international adjudication and the evolution of customary international law (CIL). According to the traditional understanding, the evolution of CIL requires one or more states to deviate from existing customary rules and engage in new conduct—a concept that I refer to as "custom breaking." A deviation's legal status is determined over time, as other states respond by deciding whether to follow the proposed break or adhere to the existing rule. Therefore, the deviation cannot be classified definitively as either legal or illegal at the time it occurs. During the period of state …
The Custom-To-Failure Cycle, Steven L. Schwarcz, Lucy Chang
The Custom-To-Failure Cycle, Steven L. Schwarcz, Lucy Chang
Duke Law Journal
In areas of complexity, people often rely on heuristics—by which we broadly mean simplifications of reality that allow people to make decisions in spite of their limited ability to process information. When this reliance becomes routine and widespread within a community, it can develop into a custom. As long as such a heuristic-based custom reasonably approximates reality, society continues to benefit. In the financial sector, however, rapid changes in markets and products have disconnected some of these customs from reality, leading to massive failures, and increasing financial complexity is accelerating the rate of change, threatening future failures. We examine this …
Artful Good Faith: An Essay On Law, Custom, And Intermediaries In Art Markets, Deborah A. Demott
Artful Good Faith: An Essay On Law, Custom, And Intermediaries In Art Markets, Deborah A. Demott
Duke Law Journal
This Essay explores relationships between custom and law in the United States in the context of markets for art objects. The Essay argues that these relationships are dynamic, not static, and that law can prompt evolution in customary practice well beyond the law's formal requirements. Understanding these relationships in the context of art markets requires due attention to two components distinctive to art markets: the role of dealers and auction houses as transactional intermediaries as well as the role of museums as end-collectors. In the last decade, the business practices of major transactional intermediaries reflected a significant shift in customary …
Tradition As Past And Present In Substantive Due Process Analysis, Katharine T. Bartlett
Tradition As Past And Present In Substantive Due Process Analysis, Katharine T. Bartlett
Duke Law Journal
Tradition is often understood as an inheritance from the past that has no connection to the present. Justices of the U.S. Supreme Court on both ends of the ideological spectrum work from this understanding, particularly in analyzing cases under the substantive due process clause. Some conservative Justices say that substantive due process protects only rights that were firmly established when the Constitution was ratified. In contrast, some liberal Justices dismiss tradition as being too stagnant and oppressive to serve as a limit on substantive due process rights, relying instead on contemporary norms and reason. Both of these approaches share an …
Distinguishing The “Truly National” From The “Truly Local”: Customary Allocation, Commercial Activity, And Collective Action, Neil S. Siegel
Distinguishing The “Truly National” From The “Truly Local”: Customary Allocation, Commercial Activity, And Collective Action, Neil S. Siegel
Duke Law Journal
This Essay makes two claims about different methods of defining the expanse and limits of the Commerce Clause. My first claim is that approaches that privilege traditional subjects of state regulation are unworkable and undesirable. These approaches are unworkable in light of the frequency with which the federal government and the states regulate the same subject matter in our world of largely overlapping federal and state legislative jurisdiction. The approaches are undesirable because the question of customary allocation is unrelated to the principal reason why Congress possesses the power to regulate interstate commerce: solving collective action problems involving multiple states. …
Custom And The Rule Of Law In The Administration Of The Income Tax, Lawrence Zelenak
Custom And The Rule Of Law In The Administration Of The Income Tax, Lawrence Zelenak
Duke Law Journal
From the early years of the federal income tax to the present, the Internal Revenue Service (IRS) has engaged in what might be termed "customary deviations" from the dictates of the Internal Revenue Code, always in a taxpayer-favorable direction. A prominent current example is the IRS's "don't ask, don't tell" policy with respect to employee-retained frequent flier miles; in a 2002 announcement (which, as of 2012, is still in force), the IRS indicated that such miles were technically within the scope of the statutory definition of gross income, but that the IRS had no intention of enforcing the law. This …
The Duke Project On Custom And Law , Curtis A. Bradley, Mitu Gulati
The Duke Project On Custom And Law , Curtis A. Bradley, Mitu Gulati
Duke Law Journal
No abstract provided.
Order Without Judges: Customary Adjudication, Joseph Blocher
Order Without Judges: Customary Adjudication, Joseph Blocher
Duke Law Journal
Scholarship on custom and law has largely focused on the creation and enforcement of informal rules, demonstrating and in some cases endorsing the existence of "order without law." But creating and enforcing rules are only two of the three functions of governance, corresponding roughly with what in other contexts are called the legislative and executive branches. The third function—adjudication—has not played such a prominent role in the scholarly literature on informal governance. As one leading scholar puts it: "Custom has no constitution or judges." But if customs can be created and enforced by nonstate actors, why should scholars assume that …
Norms And Law: Putting The Horse Before The Cart, Barak D. Richman
Norms And Law: Putting The Horse Before The Cart, Barak D. Richman
Duke Law Journal
Law and society scholars have long been fascinated with the interplay of formal legal and informal extralegal procedures. Unfortunately, the fascination has been accompanied by imprecision, and scholars have conceptually conflated two very different mechanisms that extralegally resolve disputes. One set of mechanisms might be described as the "shadow of the law," made famous by seminal works by Professors Stewart Macaulay and Marc Galanter, in which social coercion and custom have force because formal legal rights are credible and reasonably defined. The other set of mechanisms, recently explored by economic historians and legal institutionalists, might be described as "order without …
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
Duke Law Journal
Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and uantitatively significant enough—or "substantially similar"—for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright's requirement of "substantial similarity" has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright's substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of other areas …
Should Moving In Mean Losing Out? Making A Case To Clarify The Legal Effect Of Cohabitation On Alimony, Emily M. May
Should Moving In Mean Losing Out? Making A Case To Clarify The Legal Effect Of Cohabitation On Alimony, Emily M. May
Duke Law Journal
As nonmarital cohabitation has skyrocketed over the last several decades, courts and legislatures have increasingly struggled to decide what legal effect an ex-spouse's cohabitation with a new partner should have on the receipt of alimony payments. In seeking to answer this cohabitation question, states have taken a variety of approaches. Often, however, courts' answers to the cohabitation question are not grounded in the rationale that those courts used to award alimony in the first place and may therefore lead to inconsistent or absurd results. This Note addresses the cohabitation question and argues that states should revisit their current approaches in …
Using Foreign Relations Law To Limit Extraterritorial Application Of The Foreign Corrupt Practices Act , Lauren Ann Ross
Using Foreign Relations Law To Limit Extraterritorial Application Of The Foreign Corrupt Practices Act , Lauren Ann Ross
Duke Law Journal
Because the Foreign Corrupt Practices Act (FCPA) can be used to regulate conduct that has but a tangential connection to the United States, the statute exemplifies the potential difficulties of applying U.S. criminal law extraterritorially. The FCPA's heightened enforcement environment and the norm of deferred-prosecution agreements that settle FCPA charges out of court combine to increase the probability that a foreign individual or firm will be prosecuted under the FCPA for bribery that occurred in and affected a foreign country. This Note proposes drawing from the presumption against extraterritoriality, a concept from foreign relations law, to find a reasonable limit …
Sexual Assault On College Campuses: Seeking The Appropriate Balance Between Due Process And Victim Protection , Matthew R. Triplett
Sexual Assault On College Campuses: Seeking The Appropriate Balance Between Due Process And Victim Protection , Matthew R. Triplett
Duke Law Journal
Peer sexual assault is a significant problem on American college and university campuses. On April 4, 2011, the Office for Civil Rights of the Department of Education sought to address this problem by issuing a new "Dear Colleague Letter" that provided enhanced guidance on how educational institutions should adjudicate such incidents. The letter has the perverse effect of complicating matters further by blurring the already fine line between victim protection and due process for the accused, and it exposes a potential liability trap for educational institutions. This Note explains why the law surrounding victim protection and due process is difficult …
Criminal Law Reform And Thepersistence Of Strict Liability, Darryl K. Brown
Criminal Law Reform And Thepersistence Of Strict Liability, Darryl K. Brown
Duke Law Journal
Two reform movements transformed American criminal law in the quarter century that began in the late 1960s. Their origins and effects were starkly different, and their conflict meant that, on core choices about the basis for criminal liability, one movement had to win and the other had to lose. The first movement was the wave of criminal code reform inspired by the American Law Institute's Model Penal Code (MPC), first published in 1962. The MPC movement sought to increase the role of culpability as a prerequisite for liability by presumptively requiring proof of mens rea for every element of criminal …
The Innocence Effect, Oren Gazal-Ayal, Avishalom Tor
The Innocence Effect, Oren Gazal-Ayal, Avishalom Tor
Duke Law Journal
Nearly all felony convictions—about 95 percent—follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty is overstated. We provide …
Individualized Vs. Generalized Assessments: Why Rluipa Should Not Apply To Every Land-Use Request, Katie M. Ertmer
Individualized Vs. Generalized Assessments: Why Rluipa Should Not Apply To Every Land-Use Request, Katie M. Ertmer
Duke Law Journal
Courts and advocates alike have struggled to articulate a coherent rule regarding when the Religious Land Use and Institutionalized Persons Act (RLUIPA) should apply to local governments' land-use decisions. When it is applied too broadly, RLUIPA runs roughshod over the ability of state and local governments to control their own land-use patterns, and it is inconsistent with the Supreme Court's First Amendment and federalism precedents. When applied too narrowly, RLUIPA fails to provide a remedy for victims of religious discrimination. This Note explains the legally cognizable—but previously unrecognized—differences between the types of land-use decisions that local governments make, and it …
How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Richard Squire
How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Richard Squire
Duke Law Journal
Corporations insure against liability in shareholder lawsuits by buying tiered coverage from multiple insurers who each cover a distinct segment of the potential damages range. Rather than negotiating to settle individually with the plaintiff, the insurers seek to reach a single, collectively binding settlement agreement. This combination of segmented coverage and collective settlements produces a conflict of interests: the corporation's managers and some insurers are better off if the case settles pre-trial for the expected damages, while other insurers are better off going to trial. To force reluctant insurers to settle, courts have created a duty that can require an …
Subprime Education: For-Profit Colleges And The Problem With Title Iv Federal Student Aid, Matthew A. Mcguire
Subprime Education: For-Profit Colleges And The Problem With Title Iv Federal Student Aid, Matthew A. Mcguire
Duke Law Journal
Federal student-aid policy is designed with the goal of expanding access to higher education for all students. It has been enormously successful in achieving that goal. Yet, for many students, federal student aid has served only to burden them with oppressive student-debt obligations. These obligations are a particular problem with respect to the for-profit higher-education sector, which receives a large and ever-growing proportion of federal aid. This Note examines the interaction between federal student-aid policy and for-profit institutions, arguing that the noble goals of modern federal student-aid policy enable the very practices that lead to negative outcomes for many students …
Toward A Comparative Approach To The Crime Of Genocide, Tatiana E. Sainati
Toward A Comparative Approach To The Crime Of Genocide, Tatiana E. Sainati
Duke Law Journal
The annihilation of more than 1.5 million Cambodians at the hands of the Khmer Rouge is widely considered a quintessential case of genocide. Whether these atrocities meet the definition of genocide as a legal matter, however, remains unsettled. As of October 2012, the question of whether genocide occurred in Cambodia within the meaning of the 1948 United Nations Genocide Convention is pending before the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC will determine this question against the backdrop of an ongoing debate about the appropriate scope of the crime of genocide. This debate pits expansionists, who believe …
Administrative Law As Blood Sport: Policy Erosion In A Highly Partisan Age, Thomas O. Mcgarity
Administrative Law As Blood Sport: Policy Erosion In A Highly Partisan Age, Thomas O. Mcgarity
Duke Law Journal
Students of the policymaking process are familiar with the fashion in which the policies underlying crisis-driven legislation are gradually eroded during the implementation process. A substantial body of administrative-law scholarship stands for the proposition that policymaking in administrative agencies is not confined to the formal structures of administrative law as envisioned by the drafters of the Administrative Procedure Act. This Article suggests that in this era of deep divisions over the proper role of government in society, high-stakes rulemaking has become a "blood sport" in which regulated industries, and occasionally beneficiary groups, are willing to spend millions of dollars to …
Cooperative Federalism, The New Formalism, And The Separation Of Powers Revisited: Free Enterprise Fund And The Problem Of Presidential Oversight Of State-Government Officers Enforcing Federal Law, Ronald J. Krotoszynski Jr.
Cooperative Federalism, The New Formalism, And The Separation Of Powers Revisited: Free Enterprise Fund And The Problem Of Presidential Oversight Of State-Government Officers Enforcing Federal Law, Ronald J. Krotoszynski Jr.
Duke Law Journal
Formalism has returned, displacing the flexible, functionalist separation-of-powers analysis that often characterized the Supreme Court's separation-of-powers decisions during the Rehnquist Court. Free Enterprise Fund v. Public Co. Accounting Oversight Board provides powerful evidence of this emerging trend. Moreover, a reliable majority of the Justices have strongly embraced formalism in other important separation-of-powers decisions as well. A new formalism now appears to govern the Court's contemporary separation-of-powers jurisprudence—with the defenders of more flexible, functional approaches to separation-of-powers questions relegated to writing dissents. The Roberts Court, however, has failed to elucidate fully the precise scope and meaning of its new formalist vision …
The Political Turn In American Administrative Law: Power, Rationality, And Reasons, Jodi L. Short
The Political Turn In American Administrative Law: Power, Rationality, And Reasons, Jodi L. Short
Duke Law Journal
Reason giving is central to U.S. administrative law and practice. Traditionally, courts and scholars alike have located both the constraining and the legitimating force of reasons in the constraining and legitimating force of Reason, or rationality, but several recent developments signal a political turn in understandings of administrative justification. First, in upholding the decision of the Federal Communications Commission (FCC) to penalize broadcasters for televising "fleeting expletives" in the Fox Television case, the U.S. Supreme Court signaled the diminished importance of reasoned administrative justification and a broadened acceptance of political justifications for changes in agency policy. Second, motivated by …
Presidential Control, Expertise, And The Deference Dilemma, Emily Hammond Meazell
Presidential Control, Expertise, And The Deference Dilemma, Emily Hammond Meazell
Duke Law Journal
Courts reviewing agency action frequently point to superior political accountability and expertise as justifying deference to agencies. These fundamentals of deference often operate in tandem, providing distinct but complimentary reasons why courts will not substitute their judgment for that of agencies. But when courts review agency actions arising from shared regulatory space, political accountability—often expressed as presidential control—and expertise can seem at odds. How should courts respond when, for example, one agency lays claim to presidential control but another relies on expertise, and the two take inconsistent positions so that a court must choose one over the other? This Article …
Regulatory Moratoria, Kathryn A. Watts
Regulatory Moratoria, Kathryn A. Watts
Duke Law Journal
Reason giving is central to U.S. administrative law and practice. Traditionally, courts and scholars alike have located both the constraining and the legitimating force of reasons in the constraining and legitimating force of Reason, or rationality, but several recent developments signal a political turn in understandings of administrative justification. First, in upholding the decision of the Federal Communications Commission (FCC) to penalize broadcasters for televising "fleeting expletives" in the Fox Television case, the U.S. Supreme Court signaled the diminished importance of reasoned administrative justification and a broadened acceptance of political justifications for changes in agency policy. Second, motivated by …