Law Commons^™

The Combination Of Chevron And Political Polarity Has Awful Effects, Richard J. Pierce

Duke Law Journal Online

No abstract provided.

Disagreement About Chevron: Is Administrative Law The "Law Of Public Administration", Elizabeth Fisher, Sidney Shapiro

Duke Law Journal Online

No abstract provided.

Optimal Sludge? The Price Of Program Integrity, Cass R. Sunstein, Julien L. Gosset

Duke Law Journal Online

Public officials often impose eligibility requirements for government programs that have two effects: (1) They screen out ineligible people and (2) they screen out eligible people. Consisting of paperwork requirements, interviews, waiting periods, and administrative burdens, such requirements are sometimes characterized as “sludge,” and for some eligible people, they might prove overwhelming or prohibitive. In these circumstances, there is a pervasive normative issue: What is the optimal tradeoff between the screening out of ineligible people and the screening out of eligible people? It is plausible to think that a great deal depends on numbers. If, for example, the number of …

Sex-Based Brain Differences And Emotional Harm, Betsy J. Grey

Duke Law Journal Online

Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether …

Religious Liberty In A Pandemic, Caroline Mala Corbin

Duke Law Journal Online

The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.

Kleptocracy Buyouts?: A Response To Professors Blocher And Gulati, Matthias Goldmann

Duke Law Journal Online

No abstract provided.

Court Culture And Criminal Law Reform, Mitali Nagrecha, Sharon Brett, Colin Doyle

Duke Law Journal Online

No abstract provided.

Criminalization Of Poverty: Much More To Do, Peter B. Edelman

Duke Law Journal Online

No abstract provided.

Barricading The Immigration Courts, Jennifer Lee Koh

Duke Law Journal Online

No abstract provided.

The Justices’ Forgotten Debuts, Andrew R. Gould

Duke Law Journal Online

No abstract provided.

Forensics, Statistics, And Law: Ten Years After “A Path Forward”, Brandon Garrett

Duke Law Journal Online

No abstract provided.

The Trajectory Of Forensics, Peter Neufeld

Duke Law Journal Online

No abstract provided.

Forensics At The Federal Level, Sue Ballou

Duke Law Journal Online

No abstract provided.

The Public Reception Of The “Path Forward” Report, Steven Kendall

Duke Law Journal Online

No abstract provided.

Statistics And The Impact Of The 2009 Nas Report, Karen Kafadar

Duke Law Journal Online

No abstract provided.

Equal Dignity And Unequal Protection: A Framework For Analyzing Disparate Impact Claims, Kyle P. Nodes

Duke Law Journal Online

The Supreme Court has long endorsed the theory of the “colorblind” Equal Protection Clause, viewing it as a mandate of only facial equality. Due to rigid doctrine that limits true protection to only a short, stagnant list of fundamental rights and suspect classifications and that requires proof of discriminatory intent, only the most blatant, purposeful inequality is within constitutional reach. Festering outside of this doctrinal sphere are powerful examples of state actions that impose disparate impacts on marginalized communities, such as the nationwide system of laws that disqualify individuals—disproportionately black men—with felony convictions from the jury pool.

However, the door …

Collateral Damage: Private Merger Lawsuits In The Wake Of Section 2’S Contraction, Paul F. Brzyski

Duke Law Journal Online

For over 100 years, the Clayton Act has ostensibly prohibited anticompetitive mergers and acquisitions. Yet, as fears of market concentration and market power grow, it seems high time for a boost in enforcement. Armed with statutory causes of action for injunctive relief and treble damages, private plaintiffs could provide that needed boost. However, these plaintiffs face an unexpected hurdle to enforcing the merger laws: section 2 of the Sherman Act.

This Note argues that the narrowing of liability under section 2 over the past three decades has had a collateral impact on private plaintiffs’—especially rival firms’—ability to satisfy the antitrust …

Intelligent Design & Egyptian Goddess: A Response To Professors Buccafusco, Lemley & Masur, Sarah Burstein

Duke Law Journal Online

No abstract provided.

Boiling Down Boilerplate In M&A Agreements: A Response To Choi, Gulati, & Scott, Robert Anderson, Jeffrey Manns

Duke Law Journal Online

“Boilerplate” consists of standardized terms whose meaning is intended to be consistent from one transaction to the next, and these provisions are ubiquitous in contracts and related transactional documents. In their recent Duke Law Journal article Stephen Choi, Mitu Gulati, and Robert Scott have highlighted the potentially corrosive effect of the legal drafting process on boilerplate provisions. They show how incremental edits to boilerplate pari passu clauses for sovereign debt agreements have led to textual “black holes,” which potentially undercut the standardization purpose, wording, and substantive meaning of these boilerplate provisions. In this Article we offer preliminary evidence of a …

Does The American Rule Promote Access To Justice? Was That Why It Was Adopted?, John Leubsdorf

Duke Law Journal Online

No abstract provided.

Data Indicate Second Amendment Underenforcement, David Kopel

Duke Law Journal Online

No abstract provided.

What Does Puerto Rican Citizenship Mean For Puerto Rico’S Legal Status?, Joseph Blocher, Mitu Gulati

Duke Law Journal Online

No abstract provided.

Collaborate Construction Of A New Legal Field, Ronald F. Wright, Mark A. Hall

Duke Law Journal Online

No abstract provided.

Comment On Ruben And Blocher: Too Damn Many Cases, And An Absent Supreme Court, Sanford Levinson

Duke Law Journal Online

No abstract provided.

Is The Second Amendment A Second-Class Right?, Adam M. Samaha, Roy Germano

Duke Law Journal Online

No abstract provided.

Romanticism Meets Realism In Second Amendment Adjudication, Darrell A. H. Miller

Duke Law Journal Online

No abstract provided.

A Close Reading Of An Excellent Distant Reading Of Heller In The Courts, George A. Mocsary

Duke Law Journal Online

No abstract provided.

You Can Lead A Horse To Water: Heller And The Future Of Second Amendment Scholarship, Eric Ruben, Joseph Blocher

Duke Law Journal Online

No abstract provided.

The Constitutional Politics Heller Launched, Michael C. Dorf

Duke Law Journal Online

No abstract provided.

Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi

Duke Law Journal Online

No abstract provided.