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Full-Text Articles in Law
The Present Plight Of The United States District Courts, Patrick E. Higginbotham
The Present Plight Of The United States District Courts, Patrick E. Higginbotham
Duke Law Journal
No abstract provided.
Administrative Law, Filter Failure, And Information Capture, Wendy E. Wagner
Administrative Law, Filter Failure, And Information Capture, Wendy E. Wagner
Duke Law Journal
There are no provisions in administrative law for regulating the flow of information entering or leaving the system, or for ensuring that regulatory participants can keep up with a rising tide of issues, details, and technicalities. Indeed, a number of doctrinal refinements, originally intended to ensure that executive branch decisions are made in the sunlight, inadvertently create incentives for participants to overwhelm the administrative system with complex information, causing many of the decision-making processes to remain, for all practical purposes, in the dark. As these agency decisions become increasingly obscure to all but the most well-informed insiders, administrative accountability is …
A More Perfect System: The 2002 Reforms Of The Board Of Immigration Appeals, John D. Ashcroft, Kris W. Kobach
A More Perfect System: The 2002 Reforms Of The Board Of Immigration Appeals, John D. Ashcroft, Kris W. Kobach
Duke Law Journal
No abstract provided.
Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Tracey E. George, Chris Guthrie
Remaking The United States Supreme Court In The Courts’ Of Appeals Image, Tracey E. George, Chris Guthrie
Duke Law Journal
We argue that Congress should remake the United States Supreme Court in the U.S. courts' of appeals image by increasing the size of the Court's membership, authorizing panel decisionmaking, and retaining an en banc procedure for select cases. In so doing, Congress would expand the Court's capacity to decide cases, facilitating enhanced clarity and consistency in the law as well as heightened monitoring of lower courts and the other branches. Remaking the Court in this way would not only expand the Court's decisionmaking capacity but also improve the Court's composition, competence, and functioning.
The Grand Bargain: Revitalizing Labor Through Nlra Reform And Radical Workplace Relations, Michael M. Oswalt
The Grand Bargain: Revitalizing Labor Through Nlra Reform And Radical Workplace Relations, Michael M. Oswalt
Duke Law Journal
No abstract provided.
Citing The Elite: The Burden Of Authorial Anxiety, Shane Tintle
Citing The Elite: The Burden Of Authorial Anxiety, Shane Tintle
Duke Law Journal
Academic legal writing is known for extensive citation. Generally, scholars who study citation practices are increasingly likely to link citation with authors' attempts to manage their impression. This Note offers an explanation of why authors of law review articles use citation as a means of managing impression. It combines a historical analysis that shows why excessive citation became conventional with a literary analysis that shows why excessive citation was unique in its ability to aid academics in substantively contributing to the bench and bar. It further shows how, because of the historic and literary significance of citation, a norm compelling …
Indigenous Lands As Cultural Property: A New Approach To Indigenous Land Claims, Lindsey L. Wiersma
Indigenous Lands As Cultural Property: A New Approach To Indigenous Land Claims, Lindsey L. Wiersma
Duke Law Journal
No abstract provided.
Modular Environmental Regulation, Jody Freeman, Daniel Farber
Modular Environmental Regulation, Jody Freeman, Daniel Farber
Duke Law Journal
This Article proposes a "modular" conception of environmental regulation and natural resource management as an alternative to traditional approaches. Under traditional approaches, agencies tend to operate independently, and often at cross-purposes, using relatively inflexible regulatory tools, without significant stakeholder input, and without institutional mechanisms capable of adapting to changing conditions over time. Modularity, by contrast, is characterized by a high degree of flexible coordination across government agencies as well as between public agencies and private actors; governance structures in which form follows function; a problem-solving orientation that requires flexibility; and reliance on a mix of formal and informal tools of …
Nothing Besides Remains: Preserving The Scientific And Cultural Value Of Paleontological Resources In The United States, Alexa Z. Chew
Nothing Besides Remains: Preserving The Scientific And Cultural Value Of Paleontological Resources In The United States, Alexa Z. Chew
Duke Law Journal
No abstract provided.
Four Ways To Better 1l Assessments, Ron M. Aizen
Four Ways To Better 1l Assessments, Ron M. Aizen
Duke Law Journal
No abstract provided.
Frivolous Litigation And Civil Justice Reform: Miscasting The Problem, Recasting The Solution, Deborah L. Rhode
Frivolous Litigation And Civil Justice Reform: Miscasting The Problem, Recasting The Solution, Deborah L. Rhode
Duke Law Journal
No abstract provided.
Diversity And The Practice Of Interest Assessment, Robert F. Nagel
Diversity And The Practice Of Interest Assessment, Robert F. Nagel
Duke Law Journal
No abstract provided.
The Case For Jury Sentencing, Morris B. Hoffman
The Case For Jury Sentencing, Morris B. Hoffman
Duke Law Journal
There are powerful historical, constitutional, empirical, and policy justifications for a return to the practice of having juries, not judges, impose sentences in criminal cases. The fact that Americans inherited from the English a mild preference for judge sentencing was more a historical accident than a case of thoughtful policy. Jury sentencing became quite widespread in the colonial and postcolonial eras as a reflection of deep-seated mistrust of the judiciary. The gradual drift away from jury sentencing was driven not by a new-found faith in the judiciary, but rather by the now discredited paradigm of rehabilitationism. Now that that paradigm …
Road Shows On The Internet: Taking Individual Investors For A Ride On The Information Highway, Linda J. Yi
Road Shows On The Internet: Taking Individual Investors For A Ride On The Information Highway, Linda J. Yi
Duke Law Journal
No abstract provided.
The Scope Of Bar Orders In Federal Securities Fraud Settlements, David Kaplan
The Scope Of Bar Orders In Federal Securities Fraud Settlements, David Kaplan
Duke Law Journal
No abstract provided.
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.
Global Decentralization And The Subnational Debt Problem, Steven L. Schwarcz
Global Decentralization And The Subnational Debt Problem, Steven L. Schwarcz
Duke Law Journal
According to the World Bank, decentralization of government is a pivotal force that will shape global development policy in the twenty-first century. Subnational debt restructuring has emerged as one of decentralization's most difficult problems. Financially troubled municipalities face many of the same concerns, for example, as financially troubled nations: holdout creditors can stymie collective attempts at debt restructuring, and reliance on politically motivated lenders of last resort (the International Monetary Fund in the case of troubled nations, the central government in the case of troubled municipalities) can foster moral hazard. In a prior article, I argued that an international convention …
Electronic Discovery And The Litigation Matrix, Martin H. Redish
Electronic Discovery And The Litigation Matrix, Martin H. Redish
Duke Law Journal
The impact of the technological revolution on the operation of the discovery system in the federal courts has been dramatic. The enormous increase in storage capacity and communication that the use of computers in the corporate world has brought about has correspondingly increased both the burdens and stakes of the discovery process. This Article considers the extent to which these dramatic practical changes have created a need to develop a legal framework especially for the discovery of electronically stored information. Because the burdens of electronic discovery are likely to be substantially more severe than those involved in traditional discovery, the …
Norm Theory And The Future Of The Federal Appointments Process, Michael J. Gerhardt
Norm Theory And The Future Of The Federal Appointments Process, Michael J. Gerhardt
Duke Law Journal
No abstract provided.
Intermediary Risk In A Global Economy, Steven L. Schwarcz
Intermediary Risk In A Global Economy, Steven L. Schwarcz
Duke Law Journal
Worldwide financial markets increasingly depend on structures that reduce risk by interposing intermediaries between investors and the companies obligated to pay them. This reduction of risk may be offset, however, by the risk that an intermediary will fail, and its creditors then will claim against assets held by the intermediary for the benefit of investors. If the intermediary holds assets solely in a custodial capacity, this risk traditionally is addressed by agency and trust law. What is novel, however, is that intermediaries in a wide range of domestic and international dealings-including the trading of investment securities, the sale of loan …
Legislative Constitutional Interpretation, Neal Kumar Katyal
Legislative Constitutional Interpretation, Neal Kumar Katyal
Duke Law Journal
No abstract provided.
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 …
Student-Edited Law Reviews: Reflections And Responses Of An Inmate, Nathan H. Saunders
Student-Edited Law Reviews: Reflections And Responses Of An Inmate, Nathan H. Saunders
Duke Law Journal
In the classic description, students without law degrees set the standards for publication in the scholarly journals of American law-one of the few reported cases of the inmates truly running the asylum.(1)
Attorney-Client Relationships In Cyberspace: The Peril And The Promise, Catherine J. Lanctot
Attorney-Client Relationships In Cyberspace: The Peril And The Promise, Catherine J. Lanctot
Duke Law Journal
Despite the legal profession's historical resistance to technological advances, the burgeoning world of cyberspace is bringing change to the practice of law. As laypeople flock to the Internet to seek help with their legal problems, lawyers are going online to provide such assistance. Yet, these exchanges are occurring without close consideration of whether they create attorney-client relationships-the source of weighty ethical and legal obligations. In many cases, lawyers seek to avoid the consequences of such relationships merely by disclaiming their existence. In this Article, Professor Lanctot examines the issue of lawyer-layperson communications in cyberspace from doctrinal and historical perspectives. The …
Why The Law Hates Speculators: Regulation And Private Ordering In The Market For Otc Derivatives, Lynn A. Stout
Why The Law Hates Speculators: Regulation And Private Ordering In The Market For Otc Derivatives, Lynn A. Stout
Duke Law Journal
A wide variety of statutory and common law doctrines in American law evidence hostility towards speculation. Conventional economic theory, however, generally views speculation as an efficient form of trading that shifts risk to those who can bear it most easily and improves the accuracy of market prices. This Article reconciles the apparent conflict between legal tradition and economic theory by explaining why some forms of speculative trading may be inefficient. It presents a heterogeneous expectations model of speculative trading that offers important insights into antispeculation laws in general, and the ongoing debate concerning over-the-counter (OTC) derivatives in particular. Although trading …
Closing The Book On Jusen: An Account Of The Bad Loan Crisis And A New Chapter For Securitization In Japan, Howard M. Felson
Closing The Book On Jusen: An Account Of The Bad Loan Crisis And A New Chapter For Securitization In Japan, Howard M. Felson
Duke Law Journal
No abstract provided.
California Split: A Plan To Divide The Ninth Circuit, Eric J. Gribbin
California Split: A Plan To Divide The Ninth Circuit, Eric J. Gribbin
Duke Law Journal
No abstract provided.
Management, Control, And The Dilemmas Of Presidential Leadership In The Modern Administrative State, Daniel B. Rodriguez
Management, Control, And The Dilemmas Of Presidential Leadership In The Modern Administrative State, Daniel B. Rodriguez
Duke Law Journal
No abstract provided.
Is Efficient Government An Oxymoron?, Paul R. Verkuil
Is Efficient Government An Oxymoron?, Paul R. Verkuil
Duke Law Journal
No abstract provided.
Better Regulations: The National Performance Review’S Regulatory Reform Recommendations, Jeffrey S. Lubbers
Better Regulations: The National Performance Review’S Regulatory Reform Recommendations, Jeffrey S. Lubbers
Duke Law Journal
No abstract provided.