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Full-Text Articles in Law
Judicial Case Management: Caught In The Crossfire, Steven S. Gensler
Judicial Case Management: Caught In The Crossfire, Steven S. Gensler
Duke Law Journal
For thirty years, the Federal Rules of Civil Procedure have relied on active Judicial case management to combat undue cost and delay The complaints about cost and delay have not gone away, but few blame the case-management rules for that Indeed, lawyers continue to view active judicial case management as one of the best ways of reducing cost and delay, and most of the reforms being urged today seek even greater Judicial case management for that reason But some think the rulemakers took a wrong turn thirty years ago and that each round of rulemaking that places more reliance on …
International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White
International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White
Duke Law Journal
Though international criminal justice has flourished over the last two decades, scholars have neglected institutional design and procedure questions. International-criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law's main purpose should be not only to inflict retribution but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, stable career paths, and civil-service expertise. It should also draw on the American experience of federalism to cultivate cooperation with national authorities and select …
The Ncaa’S Lost Cause And The Legal Ease Of Redefining Amateurism, Virginia A. Fitt
The Ncaa’S Lost Cause And The Legal Ease Of Redefining Amateurism, Virginia A. Fitt
Duke Law Journal
The recent resolution of the Andrew Oliver case may mark the death throes of the NCAA's no-agent rule, prohibiting college athletes from retaining agents in professional contract negotiations, and perhaps the traditional paradigm of amateurism in sport. In light of the trial court's ruling, as well as continuing calls for the revocation of the NCAA's tax-exempt status, the time is ripe for a reexamination of amateurism and the law. This Note argues that the NCAA has developed a complicated web of largely unenforceable rules and regulations that are unnecessary to maintain tax-exempt status in light of the regulatory environment. This …
“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps
“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps
Duke Law Journal
No abstract provided.
International Law And State Socialization: Conceptual, Empirical, And Normative Challenges, Ryan Goodman, Derek Jinks
International Law And State Socialization: Conceptual, Empirical, And Normative Challenges, Ryan Goodman, Derek Jinks
Duke Law Journal
No abstract provided.
Valuing Life: A Plea For Disaggregation, Cass R. Sunstein
Valuing Life: A Plea For Disaggregation, Cass R. Sunstein
Duke Law Journal
Each government agency uses a uniform figure to measure the value of a statistical life (VSL). This is a serious mistake. The very theory that underlies current practice calls for far more individuation of the relevant values. According to that theory, VSL should vary across risks. More controversially, VSL should vary across individuals -- even or especially if the result would be to produce a lower number for some people than for others. One practical implication is that a higher value should be given to programs that reduce cancer risks. Another is that government should use a higher VSL for …
Exporting U.S. Corporate Governance Standards Through The Sarbanes-Oxley Act: Unilateralism Or Cooperation?, Minodora D. Vancea
Exporting U.S. Corporate Governance Standards Through The Sarbanes-Oxley Act: Unilateralism Or Cooperation?, Minodora D. Vancea
Duke Law Journal
No abstract provided.
Justification And Excuse, Law And Morality, Mitchell N. Berman
Justification And Excuse, Law And Morality, Mitchell N. Berman
Duke Law Journal
Anglo-American theorists of the criminal law have concentrated on-one is tempted to say "obsessed over"-the distinction between justification and excuse for a good quarter-century and the scholarly attention has purchased unusually widespread agreement. Justification defenses are said to apply when the actor's conduct was not morally wrongful; excuse defenses lie when the actor did engage in wrongful conduct but is not morally blameworthy. A near-consensus thus achieved, theorists have turned to subordinate matters, joining issue most notably on the question of whether justifications are "subjective"-turning upon the actor's reasons for acting-or "objective"-involving only facts independent of the actor's beliefs and …
Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones
Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones
Duke Law Journal
No abstract provided.
Copyright As A Rule Of Evidence, Douglas Lichtman
Copyright As A Rule Of Evidence, Douglas Lichtman
Duke Law Journal
Many copyright doctrines serve to exclude from the copyright regime cases particularly prone to evidentiary complexity. The implicit logic is that, for these cases, the social costs of litigation would likely outweigh the social benefits derived from offering copyright protection in the first place. Doctrines that serve this evidentiary function include some doctrines for which an evidentiary purpose is readily apparent (for example, the requirement that eligible works be fixed in tangible form), and some for which the link is quite subtle (for example, the rule against protecting work that lacks creativity). Understanding these doctrines in this light helps to …
Whither Securities Regulation? Some Behavioral Observations Regarding Proposals For Its Future, Robert Prentice
Whither Securities Regulation? Some Behavioral Observations Regarding Proposals For Its Future, Robert Prentice
Duke Law Journal
Respected commentators have floated several proposals for startling reforms of America's seventy-year-old securities regulation scheme. Many involve substantial deregulation with a view toward allowing issuers and investors to contract privately for desired levels of disclosure and fraud protection. The behavioral literature explored in this Article cautions that in a deregulated securities world it is exceedingly optimistic to expect issuers voluntarily to disclose optimal levels of information, securities intermediaries such as stock exchanges and stockbrokers to appropriately consider the interests of investors, or investors to be able to bargain efficiently for fraud protection.
Rational Expectations Of Leniency: Implicit Plea Agreements And The Prosecutor’S Role As A Minister Of Justice, Eli Paul Mazur
Rational Expectations Of Leniency: Implicit Plea Agreements And The Prosecutor’S Role As A Minister Of Justice, Eli Paul Mazur
Duke Law Journal
No abstract provided.
Presidential Management Of The Administrative State: The Not-So-Unitary Executive, Robert V. Percival
Presidential Management Of The Administrative State: The Not-So-Unitary Executive, Robert V. Percival
Duke Law Journal
No abstract provided.
Statistics, Not Experts, William Meadow, Cass R. Sunstein
Statistics, Not Experts, William Meadow, Cass R. Sunstein
Duke Law Journal
No abstract provided.
Congress As Culprit: How Lawmakers Spurred On The Court’S Anti-Congress Crusade, Neal Devins
Congress As Culprit: How Lawmakers Spurred On The Court’S Anti-Congress Crusade, Neal Devins
Duke Law Journal
No abstract provided.
Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson
Narratives Of Federalism: Of Continuities And Comparative Constitutional Experience, Vicki C. Jackson
Duke Law Journal
No abstract provided.
The New Deal Constitution In Exile, William E. Forbath
The New Deal Constitution In Exile, William E. Forbath
Duke Law Journal
No abstract provided.
The Dependence Of Cyberspace, Amy Lynne Bomse
The Implications Of Memetics For The Cultural Defense, Neal A. Gordon
The Implications Of Memetics For The Cultural Defense, Neal A. Gordon
Duke Law Journal
No abstract provided.
Congressional Factfinding And The Scope Of Judicial Review: A Preliminary Analysis, Neal Devins
Congressional Factfinding And The Scope Of Judicial Review: A Preliminary Analysis, Neal Devins
Duke Law Journal
No abstract provided.
Corralling Constitutional Fact: De Novo Fact Review In The Federal Appellate Courts, Adam Hoffman
Corralling Constitutional Fact: De Novo Fact Review In The Federal Appellate Courts, Adam Hoffman
Duke Law Journal
No abstract provided.
Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin
Toward A Pragmatic Understanding Of Status-Consciousness: The Case Of Deregulated Education, Tomiko Brown-Nagin
Duke Law Journal
This Article discusses the relationship between federal equal protection doctrine and the states' experiment with deregulated education-in particular, charter schools whose student bodies are identifiable on the basis of status. I argue that the states' experiment with deregulated education and the Supreme Court's understanding of the limitations imposed by the federal Equal Protection Clause on status-conscious state action are substantially in conflict, though not inevitably so. Reconciling state policy and federal constitutional law requires, first, that state legislatures draft laws that are consistent with the Court's skepticism of explicitly status-conscious state action, and its ambivalence toward state action that addresses …
Informal Aggregation: Procedural And Ethical Implications Of Coordination Among Counsel In Related Lawsuits, Howard M. Erichson
Informal Aggregation: Procedural And Ethical Implications Of Coordination Among Counsel In Related Lawsuits, Howard M. Erichson
Duke Law Journal
Even when related claims are not aggregated by any formal procedural mechanism, the lawyers involved in the separate lawsuits often coordinate their efforts. Such "informal aggregation" raises important questions about the boundaries of a dispute and the boundaries of the lawyer-client relationship. As an ethical matter, the central question is whether a lawyer owes ethical duties to a coordinating lawyer's client. Looking at confidentiality, loyalty, conflicts of interest, and malpractice, Professor Erichson suggests that ethical safeguards for clients of coordinating lawyers are neither strong enough nor explicit enough to provide adequate protection, and the problem inheres in the nature of …
Classical Republicanism And The Fifth Amendment’S “Public Use” Requirement, Nathan Alexander Sales
Classical Republicanism And The Fifth Amendment’S “Public Use” Requirement, Nathan Alexander Sales
Duke Law Journal
No abstract provided.
Prosecuting Race, Anthony V. Alfieri
Prosecuting Race, Anthony V. Alfieri
Duke Law Journal
Theoreticians and practitioners in the American criminal justice system increasingly debate the role of racial identity, racialized narratives, and race-neutral representation in law, lawyering, and ethics. This debate holds special bearing on the growing prosecution and defense of acts of racially motivated violence. In this continuing investigation of the prosecution and defense of such violence, Professor Alfieri examines the recent federal prosecution of five white New York City police officers charged with assaulting Abner Louima, a young male Haitian immigrant, in 1997. Professor Alfieri presents a raceconscious, community-oriented model of prosecutorial discretion guided by constitutional precepts, citizenship ideals, professionalism values, …
Semiotics, Analogical Legal Reasoning, And The Cf. Citation: Getting Our Signals Uncrossed, Ira P. Robbins
Semiotics, Analogical Legal Reasoning, And The Cf. Citation: Getting Our Signals Uncrossed, Ira P. Robbins
Duke Law Journal
The Bluebook's introductory citation signals are essential to effective legal discourse. The choice of signal can influence not only the interpretation of cited cases, but also the path of the law. In this Article, Professor Ira Robbins examines one commonly used signal: the cf. After exploring its semiotic function, he details the multitude of ways in which this signal has been used and misused. He argues that lawyers' and judges' careless use of the cf. leads to confusing and often incoherent developments in the law, and concludes by proposing a precise working definition for this irksome, but potentially powerful, citation …
The Defense Of Necessity Considered From The Legal And Moral Points Of View, George C. Christie
The Defense Of Necessity Considered From The Legal And Moral Points Of View, George C. Christie
Duke Law Journal
Questions concerning the scope of the defense of necessity frequently arise in a variety of legal and philosophical discussions. Professor Christie grapples with the questions raised by this defense: When can property be taken or destroyed to save human life? Must compensation always be paid? Can one destroy the property of others to save one's own property? Can one kill an innocent person to save the lives of a greater number of people? Professor Christie submits that much of the discussion of these difficult questions is too abstract and based on too cursory a review of the few legal authorities …
The Case For Punitive Damages In Contracts, William S. Dodge
The Case For Punitive Damages In Contracts, William S. Dodge
Duke Law Journal
The majority of American jurisdictions do not allow punitive damages for breach of contract unless the breach constitutes an independent tort. Increasingly, courts and commentators have relied on the theory of "efficient breach" to explain the rule against punitive damages in contracts. In this Article, Professor Dodge argues that economic efficiency supports a different rule-one allowing punitive damages for any willful breach of contract. Willful breaches fall into two categories: those that are "opportunistic" and those that are "efficient." An "opportunistic" breach does not increase the size of the economic pie; the breaching party gains simply by capturing a larger …
Restrictions On Prisoners’ Religious Freedom As Unconstitutional Conditions Of Confinement: An Eighth Amendment Argument, Jeffrey Welty
Restrictions On Prisoners’ Religious Freedom As Unconstitutional Conditions Of Confinement: An Eighth Amendment Argument, Jeffrey Welty
Duke Law Journal
No abstract provided.
Canon, Anti-Canon, And Judicial Dissent, Richard Primus
Canon, Anti-Canon, And Judicial Dissent, Richard Primus
Duke Law Journal
No abstract provided.