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Full-Text Articles in Law
The Last Bankrupt Hanged: Balancing Incentives In The Development Of Bankruptcy Law, Emily Kadens
The Last Bankrupt Hanged: Balancing Incentives In The Development Of Bankruptcy Law, Emily Kadens
Duke Law Journal
This Article frames the history of the Anglo-American bankruptcy tradition as a search for solutions to the basic problem that has from the first underlain the bankruptcy process: how to obtain the assistance of a debtor in his financial dismantling. The pivotal moment in this story came in the years 1705 and 1706, when the English Parliament drafted a bill making the bankrupt's refusal to cooperate with the commissioners running his bankruptcy a capital crime. Almost as an afterthought, they also introduced discharge of debt. Incentivizing cooperation with discharge would have a fruitful future. Coercing the debtor to be honest, …
Realist Lawyers And Realistic Legalists: A Brief Rebuttal To Judge Posner, Michael A. Livermore
Realist Lawyers And Realistic Legalists: A Brief Rebuttal To Judge Posner, Michael A. Livermore
Duke Law Journal
No abstract provided.
Some Realism About Judges: A Reply To Edwards And Livermore, Richard A. Posner
Some Realism About Judges: A Reply To Edwards And Livermore, Richard A. Posner
Duke Law Journal
No abstract provided.
Pitfalls Of Empirical Studies That Attempt To Understand The Factors Affecting Appellate Decisionmaking, Harry T. Edwards, Michael A. Livermore
Pitfalls Of Empirical Studies That Attempt To Understand The Factors Affecting Appellate Decisionmaking, Harry T. Edwards, Michael A. Livermore
Duke Law Journal
No abstract provided.
Comment On Professor Yoo, Administration Of War, Richard H. Kohn
Comment On Professor Yoo, Administration Of War, Richard H. Kohn
Duke Law Journal
No abstract provided.
The Court And The Code: A Response To The Warp And Woof Of Statutory Interpretation, Lawrence Zelenak
The Court And The Code: A Response To The Warp And Woof Of Statutory Interpretation, Lawrence Zelenak
Duke Law Journal
No abstract provided.
The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Ditslear
The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Ditslear
Duke Law Journal
Debates about statutory interpretation-and especially about the role of the canons of construction and legislative history-are generally framed in one-size-fits-all terms. Yet federal judges-including most Supreme Court Justices-have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008. The authors conclude that the Justices tend to rely on legislative …
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics Of Improving Discovery Timing In A Digital Age, Scott A. Moss
Duke Law Journal
Cases are won and lost in discovery, yet discovery draws little academic attention. Most scholarship focuses on how much discovery to allow, not on how courts decide discovery disputes-which, unlike trials, occur in most cases. The growth of computer data-e-mails, lingering deleted files, and so forth-increased discovery cost, but the new e-discovery rules just reiterate existing cost-benefit proportionality limits that draw broad consensus among litigation scholars anti economists. But proportionality rules are impossible to apply effectively; they fail to curb discovery excess yet disallow discovery that meritorious cases need. This Article notes proportionality's flaws but rejects the consensus blaming bad …
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 …
Against Individually Signed Judicial Opinions, James Markham
Against Individually Signed Judicial Opinions, James Markham
Duke Law Journal
No abstract provided.
Evaluating E-Rulemaking: Public Participation And Political Institutions, Stuart Minor Benjamin
Evaluating E-Rulemaking: Public Participation And Political Institutions, Stuart Minor Benjamin
Duke Law Journal
Proponents of electronic rulemaking proposals designed to enhance ordinary citizens' involvement in the rulemaking process have debated with skeptics the question of whether such initiatives will actually increase citizens' involvement. In the debate thus far, however, proponents have largely assumed the desirability of such involvement, and skeptics have usually not challenged that assumption. In addition, proponents and skeptics have focused on the relationship between agencies and individuals, failing to consider the larger administrative law context-and in particular the role played by Congress and the courts. This Article considers e-rulemaking in a broader institutional context and directly addresses the desirability of …
Citizen Participation In Rulemaking: Past, Present, And Future, Cary Coglianese
Citizen Participation In Rulemaking: Past, Present, And Future, Cary Coglianese
Duke Law Journal
Administrative law scholars and governmental reformers argue that advances in information technology will greatly expand public participation in regulatory policymaking. They claim that e-rulemaking, or the application of new technology to administrative rulemaking, promises to transform a previously insulated process into one in which ordinary citizens regularly provide input. With the federal government having implemented several e-rulemaking initiatives in recent years, we can now begin to assess whether such a transformation is in the works-or even on the horizon. This paper compares empirical observations on citizen participation in the past, before e-rulemaking, with more recent data on citizen participation after …
E-Rulemaking: Bringing Data To Theory At The Federal Communication Commission, John M. De Figueiredo
E-Rulemaking: Bringing Data To Theory At The Federal Communication Commission, John M. De Figueiredo
Duke Law Journal
This Article examines the theoretical promise of e-rulemaking with an examination of data about all filings at the Federal Communications Commission (FCC) from 1999 to 2004. The Article first reviews the theoretical and empirical literature on e-rulemaking. It then analyzes a dataset of all filings at the FCC using descriptive statistics and regression analysis to determine what drives e-filings and whether the theoretical promise of e-rulemaking is being realized six years into the experiment. The Article finds that though there has indeed been a long-term trend away from paper filings and toward electronic filings, citizen participation seems not to have …
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 …
“Mediation-Only” Filings In The Delaware Court Of Chancery: Can New Value Be Added By One Of America’S Business Courts?, Leo E. Strine Jr.
“Mediation-Only” Filings In The Delaware Court Of Chancery: Can New Value Be Added By One Of America’S Business Courts?, Leo E. Strine Jr.
Duke Law Journal
The following Essay by Vice Chancellor Leo Strine of the Delaware Court of Chancery advocates the enactment of legislation that authorizes the Court of Chancery to handle "mediation-only" cases. Such cases would be filed solely to invoke the aid of a Chancellor to mediate a business dispute between parties. By advocating this innovative dispute resolution option, the Essay embraces a new dimension of the American judicial role that allows American businesses to more efficiently solve complicated business controversies. The mediation-only device was conceived in 2001 by members of the Delaware judiciary, including Vice Chancellor Strine, in consultation with members of …
Using Comparative Constitutional Law To Resolve Domestic Federal Questions, Donald E. Childress Iii
Using Comparative Constitutional Law To Resolve Domestic Federal Questions, Donald E. Childress Iii
Duke Law Journal
No abstract provided.
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.
Arbitrator Liability: Reconciling Arbitration And Mandatory Rules, Andrew T. Guzman
Arbitrator Liability: Reconciling Arbitration And Mandatory Rules, Andrew T. Guzman
Duke Law Journal
In this Article, Professor Guzman resolves the tension that exists between mandatory legal rules and the widespread use of arbitration. In recent years, U. S. courts have expanded the range of enforceable arbitration agreements to include agreements that cover areas of law previously thought to be within the exclusive domain of courts. Among the disputes that are now deemed arbitrable are those that implicate mandatory rules such as securities and antitrust laws. Under current law, the willingness of courts to enforce arbitration agreements and to uphold the resulting arbitral awards with minimal judicial review makes it possible for the parties …
Freedom Of Speech And Injunctions In Intellectual Property Cases, Mark A. Lemley, Eugene Volokh
Freedom Of Speech And Injunctions In Intellectual Property Cases, Mark A. Lemley, Eugene Volokh
Duke Law Journal
Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Even though libel may inflict truly irreparable harm on its victim, the most a libel plaintiff can hope for is damages, or perhaps a permanent injunction after final adjudication, not preliminary relief. Professors Lemley and Volokh argue the same rule should apply to preliminary injunctions in many copyright, trademark, right of publicity, and trade secret cases. They note that intellectual property rights, unlike other property rights, are a form of content-based, government-imposed speech restriction. The mere fact that the restriction is denominated a "property …
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.
Trade Legalism And International Relations Theory: An Analysis Of The World Trade Organization, G. Richard Shell
Trade Legalism And International Relations Theory: An Analysis Of The World Trade Organization, G. Richard Shell
Duke Law Journal
No abstract provided.
Evaluating And Admitting Expert Opinion Testimony In Child Sexual Abuse Prosecutions, Diana Younts
Evaluating And Admitting Expert Opinion Testimony In Child Sexual Abuse Prosecutions, Diana Younts
Duke Law Journal
No abstract provided.
Justice Scalia’S Use Of Sources In Statutory And Constitutional Interpretation: How Congress Always Loses, Arthur Stock
Justice Scalia’S Use Of Sources In Statutory And Constitutional Interpretation: How Congress Always Loses, Arthur Stock
Duke Law Journal
No abstract provided.
The Modern Day Scarlet Letter: A Critical Analysis Of Modern Probation Conditions, Jon A. Brilliant
The Modern Day Scarlet Letter: A Critical Analysis Of Modern Probation Conditions, Jon A. Brilliant
Duke Law Journal
No abstract provided.
Cleaning Labor’S House: Institutional Reform Litigation In The Labor Movement, Michael J. Goldberg
Cleaning Labor’S House: Institutional Reform Litigation In The Labor Movement, Michael J. Goldberg
Duke Law Journal
No abstract provided.
Dna Typing: A New Investigatory Tool, Clare M. Tande
Dna Typing: A New Investigatory Tool, Clare M. Tande
Duke Law Journal
No abstract provided.
Always A Borrower: Law And Other Disciplines, Phillip Areeda
Always A Borrower: Law And Other Disciplines, Phillip Areeda
Duke Law Journal
No abstract provided.
Discovery And Testimony Of Unretained Experts: Creating A Clear And Equitable Standard To Govern Compliance With Subpoenas, Mark Labaton
Discovery And Testimony Of Unretained Experts: Creating A Clear And Equitable Standard To Govern Compliance With Subpoenas, Mark Labaton
Duke Law Journal
No abstract provided.
Negotiation And Informal Agency Action: The Case Of Superfund, Frederick R. Anderson
Negotiation And Informal Agency Action: The Case Of Superfund, Frederick R. Anderson
Duke Law Journal
The multi-billion dollar federal "Superfund" program for the cleanup of thousands of hazardous waste sites currently emphasizes federally-funded cleanups followed by reimbursement actions filed against any responsible parties who can be found. Litigation to compel direct private cleanups supplements this strategy. Dean Anderson argues, however, that a variety of factors, including statutory constraints, inadequate funding, the shortcomings of litigation, and particularly the selection of a cumbersome quasi-regulatory implementation scheme, has combined to increase the costs and delay already inherent in the federal government's program. After a careful analysis of the existing program, he suggests that greater reliance on privately-funded cleanups …
The Suits In Admiralty Act And The Implied Discretionary Function, Donald S. Ingraham
The Suits In Admiralty Act And The Implied Discretionary Function, Donald S. Ingraham
Duke Law Journal
No abstract provided.