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Full-Text Articles in Law
The Need For A Law Of Church And Market, Nathan B. Oman
The Need For A Law Of Church And Market, Nathan B. Oman
Duke Law Journal Online
This Essay uses The Challenge of Co-Religionist Commerce, by Professors Michael Helfand and Barak Richman, as a means of raising the issue of the "law of church and market." In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce …
Punishing The Poor Through Welfare Reform: Cruel And Unusual?, Jennifer E.K. Kendrex
Punishing The Poor Through Welfare Reform: Cruel And Unusual?, Jennifer E.K. Kendrex
Duke Law Journal Online
This Comment aims to show how the Eighth Amendment intersects with welfare reform and what constitutional limits exist vis-à-vis welfare restrictions for society’s neediest citizens. Part I explores Eighth Amendment jurisprudence and its historical underpinnings and will provide background on the 1996 welfare reforms. Part II explores whether welfare reforms penalize individuals for their status as “poor” or “unemployed” and whether this constitutes cruel and unusual punishment. Finally, Part III illustrates how welfare programs can be reformed for constitutional compliance.
The Divisibility Of Crime, Jessica A. Roth
The Divisibility Of Crime, Jessica A. Roth
Duke Law Journal Online
Near the end of the Supreme Court's 2012-2013 term, the Court decided Descamps v. United States, which concerned the application of the federal Armed Career Criminal Act (ACCA). The ACCA is a recidivist statute that vastly increases the penalties for persons convicted of federal firearms offenses if they have previously been convicted of certain qualifying felonies. Descamps represents the Court's most recent word on the so-called categorical approach, which directs courts to consider the elements of a prior offense of conviction, rather than the underlying facts of the crime, in determining whether the prior conviction "counts" for purposes of …
The Rule Of Law As A Law Of Standards: Interpreting The Internal Revenue Code, Alice G. Abreu, Richard K. Greenstein
The Rule Of Law As A Law Of Standards: Interpreting The Internal Revenue Code, Alice G. Abreu, Richard K. Greenstein
Duke Law Journal Online
This Essay seeks to demonstrate that the interpretive use of standards in applying provisions of the Internal Revenue Code is not inconsistent with the rule of law. Part I discusses the relationship between rules and the rule of law and explains why we think so many tax scholars are drawn to a view of the tax law as consisting primarily of rules. We then demonstrate that the definition of income is properly understood as a standard. Part II addresses the descriptive dimension of this claim, summarizing and expanding our previous discussion of the definition of income to determine whether the …
Charting A New Course: Metal-Tech V. Uzbekistan And The Treatment Of Corruption In Investment Arbitration, Michael A. Losco
Charting A New Course: Metal-Tech V. Uzbekistan And The Treatment Of Corruption In Investment Arbitration, Michael A. Losco
Duke Law Journal Online
This Essay examines Metal-Tech’s treatment of corruption, building upon the analytical structure set forth in this author’s 2014 Note, Streamlining the Corruption Defense. That Note’s framework for analyzing ICSID awards involving allegations of corruption proves useful for examining the Metal-Tech award. Implementing that framework, this Essay concludes that the standard of proof applied by the tribunal represents a departure from prior ICSID jurisprudence. It also questions whether an application of comparative fault principles could have achieved a more just result. Finally, this Essay argues that the tribunal could have resolved some lingering questions by staying the proceedings pending …
Pragmatic Administrative Law And Tax Exceptionalism, Richard Murphy
Pragmatic Administrative Law And Tax Exceptionalism, Richard Murphy
Duke Law Journal Online
This Essay responds to the 2014 Duke Law Journal Administrative Law Symposium. Its principal contention is that courts and other commentators should give due weight to the history and virtues of the evolution of administrative law in the United States—and consider embracing the pragmatism and flexibility that it enables—in applying general principles of administrative law in the tax context.
Which Institution Should Determine Whether An Agency’S Explanation Of A Tax Decision Is Adequate?: A Response To Steve Johnson, Richard J. Pierce Jr
Which Institution Should Determine Whether An Agency’S Explanation Of A Tax Decision Is Adequate?: A Response To Steve Johnson, Richard J. Pierce Jr
Duke Law Journal Online
This Essay responds to Professor Steve Johnson’s Article for the 2014 Duke Law Journal Administrative Law Symposium, Reasoned Explanation and IRS Adjudication. I first describe the ways in which courts have added burdensome procedures that are not required by the APA for the notice and comment process. Next, I explain why the Office of Information and Regulatory Affairs (OIRA) is better than courts at reviewing the adequacy of agency reasons for issuing a rule. Finally, I explain how courts can eliminate judicial review for the adequacy of the reasons IRS gives for issuing a rule by applying the traditional …
What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat
What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat
Duke Law Journal Online
This Essay provides an empirical account of attorney fee awards over the last decade of patent litigation. Given the current attention in legislative proposals and on the Supreme Court’s docket to more liberal fee shifting as a check on abusive patent litigation, a fuller descriptive understanding of the current regime is of utmost importance to forming sound patent-litigation policy. Following a brief overview of judicial experience in patent cases and trends in patent-case filing, this study presents analysis of over 200 attorney fee award orders from 2003–2013.
Emergency Power And Two-Tiered Legality, Curtis A. Bradley
Emergency Power And Two-Tiered Legality, Curtis A. Bradley
Duke Law Journal Online
No abstract provided.