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Series

Duke Law

2007

Articles 1 - 30 of 132

Full-Text Articles in Law

Carey V. Musladin: A Commentary On What Is Not Prejudicial, Christopher Donadio Nov 2007

Carey V. Musladin: A Commentary On What Is Not Prejudicial, Christopher Donadio

Duke Journal of Constitutional Law & Public Policy Sidebar

In a 9-0 decision, the United States Supreme Court refused to find that a California state court had acted "contrary to, or involved an unreasonable application of, clearly established Federal law," when that court found that it was not prejudicial for trial audience members to wear buttons with the image of the defendant's alleged murder victim. The Court relied upon the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and its previous rulings in Estelle v. Williams and Holbrook v. Flynn, earlier cases that defined certain actions as prejudicial to a defendant in a court of law. The ...


Cunningham V. California, Christopher P. Raab Nov 2007

Cunningham V. California, Christopher P. Raab

Duke Journal of Constitutional Law & Public Policy Sidebar

In Cunningham v. California, the United States Supreme Court voted 6-3 to invalidate California's determinate sentencing law ("DSL") as violative of the Sixth and Fourteenth Amendments. The Court held that, notwithstanding the California Supreme Court's determination to the contrary, the DSL conflicted with prior Supreme Court precedent "by placing sentence-elevating factfinding within the judge's province," thereby "violat[ing] a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments."


When Is Enough Too Much? The Broadcast Decency Enforcement Act Of 2005 And The Eighth Amendment’S Prohibition On Excessive Fines, Amy Kristin Sanders Esq. Nov 2007

When Is Enough Too Much? The Broadcast Decency Enforcement Act Of 2005 And The Eighth Amendment’S Prohibition On Excessive Fines, Amy Kristin Sanders Esq.

Duke Journal of Constitutional Law & Public Policy Sidebar

The next slip of the tongue or of the blouse will hit broadcasters where it hurts: their wallet. With the recent passage of the Broadcast Decency Enforcement Act of 2005 ("BDEA"), Congress raised potential fines ten-fold in an attempt to clean up the airwaves and prevent the televised snafus that have occurred with increasing frequency during the past five years. From the broadcast of a barely covered breast during the 2004 Super Bowl to the on-air announcement of a four-letter expletive on a prime-time awards show, indecent expression has attracted the attention of the general public, advocacy groups, the Federal ...


Medimmune, Inc. V. Genentech, Inc.: A Patent Licensee Does Not Need To Terminate Or Breach A License Agreement In Order To Challenge Its Validity Or Enforceability, C. Tyler Ohanian Nov 2007

Medimmune, Inc. V. Genentech, Inc.: A Patent Licensee Does Not Need To Terminate Or Breach A License Agreement In Order To Challenge Its Validity Or Enforceability, C. Tyler Ohanian

Duke Journal of Constitutional Law & Public Policy Sidebar

MedImmune, Inc. v. Genentech, Inc. asks whether Article III's restriction on the jurisdiction of the federal courts only to "cases" and "controversies," as required by the "actual controversy" limitation of the Declaratory Judgment Act, necessitates that a patent licensee terminate or breach its license agreement before seeking a declaratory judgment to hold the underlying patent invalid, unenforceable, or not infringed. Breaking with the Court of Appeals for the Federal Circuit, the MedImmune majority clearly establishes a patent licensee's legal right to challenge the validity and enforceability of a patent without actually breaching or terminating the underlying licensing agreement ...


Scott V. Harris, Uchenna Evans Nov 2007

Scott V. Harris, Uchenna Evans

Duke Journal of Constitutional Law & Public Policy Sidebar

In an 8-1 decision, the Supreme Court reversed an 11th Circuit ruling denying qualified immunity to a police officer sued by a fleeing motorist who was rendered quadriplegic when his car was pushed over an embankment by the officer's vehicle. . The Court ruled that the officer did not violate the motorist's Fourth Amendment right to be free from unreasonable seizure and that the officer was entitled to summary judgment. Both the federal district court and the 11th Circuit had ruled in favor of the respondent, denying the officer's summary judgment motion based on qualified immunity after finding ...


Whorton V. Bockting And The Watershed Exception Of Teague V. Lane, Tadhg Dooley Nov 2007

Whorton V. Bockting And The Watershed Exception Of Teague V. Lane, Tadhg Dooley

Duke Journal of Constitutional Law & Public Policy Sidebar

In Whorton v. Bockting, the Supreme Court considered whether its rule from Crawford v. Washington, prohibiting the admission of testimonial hearsay statements without a prior opportunity for the defendant to cross-examine the declarant, should be applied retroactively to cases on collateral appeal under the standard set forth in Teague v. Lane. The determination rested on whether Crawford announced a "new rule" that should be applied retroactively by virtue of its being a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." In a unanimous decision, the Court held that Crawford did announce a "new ...


Jones V. Bock: New Clarity Under The Prison Litigation Reform Act, Squire Servance Nov 2007

Jones V. Bock: New Clarity Under The Prison Litigation Reform Act, Squire Servance

Duke Journal of Constitutional Law & Public Policy Sidebar

On January 22, 2007, the Supreme Court decided the consolidated cases of Jones v. Bock , Williams v. Overton , and Walton v. Bouchard , all of which were Sixth Circuit cases. In a unanimous decision, the Supreme Court provided clarity to what constitutes exhaustion of prison grievance procedures under the Prison Litigation Reform Act of 1995 (PLRA). The Court's decision also offers its view on the correct way to balance the burden between prisoner plaintiffs and the judiciary, which labors to process prisoner complaints. Broken into three discreet issues, the essential holding provides a small victory for prison litigants. First, it ...


Philip Morris Usa V. Williams: A Confusing Distinction, Sachin Bansal Nov 2007

Philip Morris Usa V. Williams: A Confusing Distinction, Sachin Bansal

Duke Journal of Constitutional Law & Public Policy Sidebar

In Philip Morris USA v. Williams, the United States Supreme Court held 5-4 that it is unconstitutional under the Due Process Clause of the Constitution for a jury to award punitive damages for harm caused to individuals other than the plaintiff. Thus, the Court concluded that, under the Constitution, a trial court could not levy punitive damages out of a desire to punish a company for injuries it inflicts upon others who are "essentially, strangers to the litigation." However, the Court confusingly drew a narrow and arguably contradictory distinction to justify its holding. Under Philip Morris USA, a jury may ...


Planned Parenthood Federation Of America, Inc. V. Gonzales, Blake Mason Nov 2007

Planned Parenthood Federation Of America, Inc. V. Gonzales, Blake Mason

Duke Journal of Constitutional Law & Public Policy Sidebar

In one of the most pivotal cases of the Fall 2006 Term, the United States Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003 by a vote of 5-4. The Court found the Act to be facially valid, despite the absence of an exception for cases in which an abortion is necessary to preserve the health of the mother, stating that the Act was not "void for vagueness" and that it did not impose "an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception." The case signaled a departure ...


Safeco Ins. Co. Of America V. Burr: Defining Notification Requirements And Willfulness Under The Fair Credit Reporting Act, Travis S. Souza Nov 2007

Safeco Ins. Co. Of America V. Burr: Defining Notification Requirements And Willfulness Under The Fair Credit Reporting Act, Travis S. Souza

Duke Journal of Constitutional Law & Public Policy Sidebar

In a recent decision, the United States Supreme Court resolved a critical dispute regarding the interpretation of the Fair Credit Reporting Act ("FCRA") and its notice requirement. In Safeco Ins. Co. of America v. Burr, the Court settled the definition of "willful" violation, a determination that will have enormous effects for insurance companies. Specifically, the Court held that willfulness not only includes knowing violations, but also includes a violation committed in reckless disregard of statutory obligations. While both of the insurance companies in Burr were technically victorious -- both were held not to have willfully violated the FCRA -- the Court's ...


United Haulers Ass’N V. Oneida-Herkimer Solid Waste Mgmt. Auth., Joshua J. Faber Nov 2007

United Haulers Ass’N V. Oneida-Herkimer Solid Waste Mgmt. Auth., Joshua J. Faber

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court, in a 6-3 decision, upheld two counties' flow control ordinances that require trash haulers to deliver waste to government-owned processing facilities. The Court determined that the Commerce Clause is not violated by laws which favor state or local government entities but treat all private entities equal.


Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca E. Bignami Aug 2007

Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca E. Bignami

Faculty Scholarship

An earlier draft of this Article was presented at a faculty workshop at the University of Illinois College of Law. (Author's Manuscript, March 2005) This analysis of how civil society can contribute to a better system of global governance draws on the political philosophy of civil society and the comparative law of democracy. Its first part describes the civil society phenomenon in three different international organizations: the World Bank, the World Trade Organization, and the European Union. Part Two puts forward the moral principle upon which my argument rests: liberal democracy. The next part sets the stage for the ...


The Year In Review 2006: Selected Cases From The Alaska Supreme Court, The Alaska Court Of Appeals, And The United States Court Of Appeals For The Ninth Circuit Jun 2007

The Year In Review 2006: Selected Cases From The Alaska Supreme Court, The Alaska Court Of Appeals, And The United States Court Of Appeals For The Ninth Circuit

Alaska Law Review Year in Review

No abstract provided.


The Federal Circuit And Administrative Law Principles, Jim Sherwood Apr 2007

The Federal Circuit And Administrative Law Principles, Jim Sherwood

iBlawg

No abstract provided.


Blocking Former Sex Offenders From Online Social Networks: Is This A Due Process Violation?, Nichole Hines Apr 2007

Blocking Former Sex Offenders From Online Social Networks: Is This A Due Process Violation?, Nichole Hines

iBlawg

No abstract provided.


Viacom V. Google: Whose Tube Is It Anyway?, Cortney Arnold Mar 2007

Viacom V. Google: Whose Tube Is It Anyway?, Cortney Arnold

iBlawg

No abstract provided.


Lawrence V. Florida: Applications For Post-Conviction Relief Are, Elizabeth Richardson-Royer Mar 2007

Lawrence V. Florida: Applications For Post-Conviction Relief Are, Elizabeth Richardson-Royer

Duke Journal of Constitutional Law & Public Policy Sidebar

On February 20, 2007 , the Supreme Court announced its decision in Lawrence v. Florida, seeking to address confusion surrounding the tolling of a one-year statute of limitations applicable to federal habeas corpus petitions.


Dura Pharmaceuticals V. Broudo: The Unlikely Tort Of “Securities Fraud”: Dura Pharmaceuticals V. Broudo, Oleg Cross Mar 2007

Dura Pharmaceuticals V. Broudo: The Unlikely Tort Of “Securities Fraud”: Dura Pharmaceuticals V. Broudo, Oleg Cross

Duke Journal of Constitutional Law & Public Policy Sidebar

Created pursuant to section 10 of the 1934 Securities Act, Rule 10b-5 is a cornerstone of the federal securities laws. The federal courts' interpretations have largely defined the rule, which seeks to remedy a broad range of securities fraud and market manipulation. Elements of the rule, such as "scienter" and "reliance," were defined at length by earlier court decisions. However, no court had held definitively whether a private plaintiff bringing an action under the rule must demonstrate a causal connection between the alleged fraud and the subsequent loss to that plaintiff. This issue, referred to as "loss causation," was decided ...


Blocking Former Sex Offenders From Online Social Networks: Is This A Violation Of Free Speech?, Nichole Hines Feb 2007

Blocking Former Sex Offenders From Online Social Networks: Is This A Violation Of Free Speech?, Nichole Hines

iBlawg

No abstract provided.


Burton V. Stewart: Reconsidering What Makes A Supreme Court Decision ‘New’, Michael Goodman Feb 2007

Burton V. Stewart: Reconsidering What Makes A Supreme Court Decision ‘New’, Michael Goodman

Duke Journal of Constitutional Law & Public Policy Sidebar

In Burton v. Stewart, the Supreme Court narrowly avoided deciding whether Blakely v. Washington is a "new" rule as well as a related question of whether Blakely should be applied retroactively on collateral review. Instead, the Court ruled that Mr. Burton's petition for review did not meet the "gatekeeping requirements of 28 U.S.C. § 2244(b)." By deciding Burton on procedural grounds rather than considering the merits of the underlying claims upon which certiorari was granted, the Court delayed consideration of important issues, which are likely to resurface.


Upcoming Events At Duke Law, Jim Sherwood Feb 2007

Upcoming Events At Duke Law, Jim Sherwood

iBlawg

No abstract provided.


I Want My Supreme Court Tv!, Jim Sherwood Feb 2007

I Want My Supreme Court Tv!, Jim Sherwood

iBlawg

No abstract provided.


Burlington Northern & Santa Fe Railway Co. V. White, Christian J. Brann Jan 2007

Burlington Northern & Santa Fe Railway Co. V. White, Christian J. Brann

Duke Journal of Constitutional Law & Public Policy Sidebar

On June 22, 2006, the United States Supreme Court broadened the purview of the anti-retaliation provision of Title VII in all circuits but one when it held that the provision prohibits those employer actions that would be considered materially adverse by a reasonable employee, regardless of whether such actions occurred at the workplace or were related to employment. In so holding, the Supreme Court did three things worthy of comment. First, the Court expunged the confusion caused by disparate and incompatible treatments of the anti-retaliation provision by the circuit courts. Second, by subjecting all employer action to review, the Court ...


Lopez V. Gonzales & Toledo-Flores V. United States: State Felony Drug Convictions Not Necessarily Aggravated Felonies Requiring Deportation, Ryan Wagner Jan 2007

Lopez V. Gonzales & Toledo-Flores V. United States: State Felony Drug Convictions Not Necessarily Aggravated Felonies Requiring Deportation, Ryan Wagner

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States Courts of Appeals split over whether state felony drug convictions, which were punishable only as misdemeanors under federal law, constituted aggravated felonies under immigration law. The controversy was based upon the interpretation of the Immigration and Nationality Act (“INA”). Under the Act, an alien who is convicted of an “aggravated felony” is automatically deported from the United States. According to the INA, an aggravated felony includes “illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of Title 18).” Although the INA does not define “illicit trafficking,” Title 18 of ...


Eminent Domain After Kelo V. City Of New London: Compensating For The Supreme Court’S Refusal To Enforce The Fifth Amendment, Scott D. Mikkelsen Jan 2007

Eminent Domain After Kelo V. City Of New London: Compensating For The Supreme Court’S Refusal To Enforce The Fifth Amendment, Scott D. Mikkelsen

Duke Journal of Constitutional Law & Public Policy Sidebar

Governments, both state and federal, have the right to take private property for public use, provided that just compensation is paid. The Fifth Amendment to the United States Constitution sets the legal standard for these propositions; this power is known as the right of eminent domain. In the landmark decision, Kelo v. City of New London, the Supreme Court held that the taking of a citizen’s private property for economic development qualified as a public use within the meaning of the Fifth Amendment. Several scholars, legislatures, and individuals, have objected to Kelo’s extension of the power of eminent ...


Book Review: State Of Play, Jim Sherwood Jan 2007

Book Review: State Of Play, Jim Sherwood

iBlawg

No abstract provided.


Disloyal Agents, Deborah A. Demott Jan 2007

Disloyal Agents, Deborah A. Demott

Faculty Scholarship

This paper examines the consequences of an agent's breach of the fiduciary duty of loyalty. These consequences are underexplored in academic literature, in contrast to rationales for fiduciary duties more generally. The consequences of an agent's disloyalty are, moreover, not uniform across jurisdictions. The paper begins by differentiating between the meaning and consequences that the law ascribes to agency and its meaning in other academic disciplines, including economics and philosophy. It then considers the extent to which principles derived from contract and tort law can account for the consequences that courts assign to agents' disloyal conduct and concludes ...


Economic Growth And The Interests Of Future (And Past And Present) Generations: A Comment On Tyler Cowen, Matthew D. Adler Jan 2007

Economic Growth And The Interests Of Future (And Past And Present) Generations: A Comment On Tyler Cowen, Matthew D. Adler

Faculty Scholarship

No abstract provided.


Structural Reform Prosecution, Brandon L. Garrett Jan 2007

Structural Reform Prosecution, Brandon L. Garrett

Faculty Scholarship

In what I call a structural reform prosecution, prosecutors secure the cooperation of an organization in adopting internal reforms. No scholars have considered the problem of prosecutors seeking structural reform remedies, perhaps because until recently organizational prosecutions were themselves infrequent. In the past few years, however, federal prosecutors adopted a bold new prosecutorial strategy under which dozens of leading corporations entered into demanding settlements, including AIG, American Online, Bristol-Myers Squibb Co., Computer Associates, HealthSouth, KPMG, MCI, Merrill Lynch & Co, Monsanto, and Time Warner. To situate the DOJ's latest strategy, I frame alternatives to the pursuit of structural reform remedies ...


Promoting And Establishing The Recovery Of Endangered Species On Private Lands: A Case Study Of The Gopher Tortoise (Duke Law, Student Paper Series), Blake Hudson Jan 2007

Promoting And Establishing The Recovery Of Endangered Species On Private Lands: A Case Study Of The Gopher Tortoise (Duke Law, Student Paper Series), Blake Hudson

Faculty Scholarship

Important species are increasingly becoming endangered on private lands largely left unregulated by federal and state laws. The gopher tortoise is one such species. The tortoise is a keystone species, meaning that upon its existence numerous other species exist. Despite its importance, tortoise populations have declined by 80% - partly due to development pressures, but primarily due to forest management practices which have reduced the longleaf pine ecosystem upon which it depends. This article focus on legal and policy issues associated with both development and forest management. Because private forest management practices are the primary cause of tortoise decline, the article ...