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Articles 1 - 30 of 122
Full-Text Articles in Law
Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr.
Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr.
Faculty Scholarship
No abstract provided.
Dna And Due Process, Brandon L. Garrett
Dna And Due Process, Brandon L. Garrett
Faculty Scholarship
The U.S. Supreme Court in District Attorney's Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not "constitutionalize the issue" by announcing an unqualified freestanding right, Chief Justice Roberts's majority opinion proceeded to carefully fashion an important, …
How We Lost The High-Tech War Of 2020: A Warning From The Future, Charles J. Dunlap Jr.
How We Lost The High-Tech War Of 2020: A Warning From The Future, Charles J. Dunlap Jr.
Faculty Scholarship
No abstract provided.
All Rise - Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
All Rise - Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.
Faculty Scholarship
No abstract provided.
From Judge To Dean: Reflections On The Bench And The Academy, David F. Levi
From Judge To Dean: Reflections On The Bench And The Academy, David F. Levi
Faculty Scholarship
In July of 2007, having served nearly seventeen years as a United States District Judge with chambers in Sacramento, California, I moved to Durham, North Carolina, to become the fourteenth dean of the Duke University Law School. I would concede that in the grand scheme of things such a transition must be deemed unremarkable. Lawyers have become soldiers, presidents, artists, and inn keepers. Judges have left the bench to do much the same. Nonetheless, in the somewhat closed worlds of the federal bench and the legal academy, at a time when the two worlds have seemed to drift apart, such …
Punitive Damages And Class Actions, Francis Mcgovern
Punitive Damages And Class Actions, Francis Mcgovern
Faculty Scholarship
The union of punitive damages and class actions can be aptly described with Samuel Johnson’s famous quotation regarding marriage: “The triumph of hope over experience.” By most conventional wisdom, there is little future for plaintiffs or defendants who desire to resolve punitive damages claims globally using the procedural vehicle of a class action. From a conceptual perspective, however, there are circumstances under which the union could function. This Article explores those possibilities, not in the spirit of normative support, but in the spirit of exploring theories that may have some prospective vitality. Notwithstanding the chilly reception that punitive damages class …
Pursuing Geoengineering For Atmospheric Restoration, James Salzman, Robert B. Jackson
Pursuing Geoengineering For Atmospheric Restoration, James Salzman, Robert B. Jackson
Faculty Scholarship
Geoengineering is fraught with problems, but research on three approaches could lead to the greatest climate benefits with the smallest chance of unintentional environmental harm. The authors propose a model for thinking about geoengineering based on the concept of restoration, suggesting the term “atmospheric restoration.” Under this model geoengineering efforts are prioritized based on three principles: to treat the cause of the disease itself, to reduce the chance of harm, and to prioritize activities with the greatest chance of public acceptance.
Based on these principles, the authors propose three forms of geoengineering that could provide the greatest climate benefits with …
Withdrawing From International Custom, Curtis A. Bradley, Mitu Gulati
Withdrawing From International Custom, Curtis A. Bradley, Mitu Gulati
Faculty Scholarship
Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to withdraw unilaterally from them. By contrast, the conventional wisdom is that nations never have the legal right to withdraw unilaterally from the unwritten rules of customary international law (CIL), a proposition that we refer to as the “Mandatory View.” It is not obvious, however, why it should be easier to exit from treaties than from CIL, especially given the significant overlap that exists today between the regulatory coverage of treaties and CIL, as well as the frequent use of …
Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin
Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin
Faculty Scholarship
Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …
Government Of Sudan V. Sudan’S People’S Liberation Movement/Army (“Abyei Arbitration”), Coalter G. Lathrop
Government Of Sudan V. Sudan’S People’S Liberation Movement/Army (“Abyei Arbitration”), Coalter G. Lathrop
Faculty Scholarship
No abstract provided.
The Substance Of False Confessions, Brandon L. Garrett
The Substance Of False Confessions, Brandon L. Garrett
Faculty Scholarship
A puzzle is raised by cases of false confessions: How could an innocent on convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said …
Clear Statement Rules And Executive War Powers, Curtis A. Bradley
Clear Statement Rules And Executive War Powers, Curtis A. Bradley
Faculty Scholarship
This article is based on a presentation at the Annual Federalist Society National Student Symposium on Law and Public Policy that explored the theme of separation of powers in American constitutionalism.
The scope of the President’s independent war powers is notoriously unclear, and courts are understandably reluctant to issue constitutional rulings that might deprive the federal government as a whole of the flexibility needed to respond to crises. As a result, courts often look for signs that Congress has either supported or opposed the President’s actions and rest their decisions on statutory grounds. There have been both liberal and conservative …
The Forgotten Freedom Of Assembly, John D. Inazu
The Forgotten Freedom Of Assembly, John D. Inazu
Faculty Scholarship
The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution'. In 1939, the …
Climate Change, Dead Zones, And Massive Problems In The Administrative State: A Guide For Whittling Away, James Salzman, J.B. Ruhl
Climate Change, Dead Zones, And Massive Problems In The Administrative State: A Guide For Whittling Away, James Salzman, J.B. Ruhl
Faculty Scholarship
Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best …
One Student’S Thoughts On Law School Clinics, Jeffrey Ward
One Student’S Thoughts On Law School Clinics, Jeffrey Ward
Faculty Scholarship
Law school offers few opportunities for students to move beyond the ink and paper law of textbooks to see the actual effects of real law on real communities. Because law school clinics offer a rare opportunity for students to see the real and imperfect law-in-action, the import of immersive clinical experiences on the education of tomorrow's lawyers is inestimable. Through clinics, students learn how the law really works, witness its power and its shortcomings, and ideally begin to envision what shape the law ought to take. Expressing a student's perspective on how to make the most of the extraordinary opportunity …
The Federal Circuit: A Model For Reform?, Paul D. Carrington, Paulina Orchard
The Federal Circuit: A Model For Reform?, Paul D. Carrington, Paulina Orchard
Faculty Scholarship
Are our federal courts organized suitably to perform their mission of assuring coherent administration of our national law? Maybe not. The senior author of this Article, along with many others, argued to the contrary forty years ago. Now, experience with the United States Court of Appeals for the Federal Circuit tends to confirm that an alternative structure of the federal judiciary could better serve the need for coherent national law, and without serious adverse consequences. Perhaps, therefore, it is now time for Congress to reconsider the matter. We here suggest the possibility that the United States replicate the structure of …
Club Goods And Group Identity: Evidence From Islamic Resurgence During The Indonesian Financial Crisis, Daniel L. Chen
Club Goods And Group Identity: Evidence From Islamic Resurgence During The Indonesian Financial Crisis, Daniel L. Chen
Faculty Scholarship
This paper tests a model in which group identity in the form of religious intensity functions as ex post insurance. I exploit relative price shocks induced by the Indonesian financial crisis to demonstrate a causal relationship between economic distress and religious intensity (Koran study and Islamic school attendance) that is weaker for other forms of group identity. Consistent with ex post insurance, credit availability reduces the effect of economic distress on religious intensity, religious intensity alleviates credit constraints, and religious institutions smooth consumption shocks across households and within households, particularly for those who were less religious before the crisis.
Lying And Getting Caught: An Empirical Study Of The Effect Of Securities Class Action Settlements On Targeted Firms, James D. Cox, Lynn Bai, Randall S. Thomas
Lying And Getting Caught: An Empirical Study Of The Effect Of Securities Class Action Settlements On Targeted Firms, James D. Cox, Lynn Bai, Randall S. Thomas
Faculty Scholarship
The ongoing Great Recession has triggered numerous proposals to improve the regulation of financial markets and, most importantly, the regulation of organizations such as credit rating agencies, underwriters, hedge funds, and banks, whose behavior is believed to have caused the credit crisis that spawned the economic collapse. Not surprisingly, some of the reform efforts seek to strengthen the use of private litigation. Private suits have long been championed as a necessary mechanism not only to compensate investors for harms they suffer from financial frauds but also to enhance deterrence of wrongdoing. However, in recent years there has been a chorus …
Come The Revolution: A Legal Perspective On Air Operations In Iraq Since 2003, Charles J. Dunlap Jr.
Come The Revolution: A Legal Perspective On Air Operations In Iraq Since 2003, Charles J. Dunlap Jr.
Faculty Scholarship
Has the early part of the twenty-first century shown the most dramatic revolution in the role of law in armed conflict in history? Evidence suggests that it has. Today, for example, allegations about civilian casualties often dominate our discussions about strategy in irregular war, itself a phenomenon that, according to the National Defense Strategy, will preoccupy our military services for years to come. Indeed, as will be discussed below in more detail, adherence to law in armed conflict fact and perception is increasingly a central, if not defining, concern of field commanders, as well as military and civilian leaders at …
Judicial Ability And Securities Class Actions, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Judicial Ability And Securities Class Actions, Mitu Gulati, Stephen J. Choi, Eric A. Posner
Faculty Scholarship
We exploit a new data set of judicial rulings on motions in order to investigate the relationship between judicial ability and judicial outcomes. The data set consists of federal district judges’ rulings on motions to dismiss, to approve the lead plaintiff, and to approve attorneys’ fees in securities class actions cases, and also judges’ decisions to remove themselves from cases. We predict that higher-quality judges, as measured by citations, affirmance rates, and similar criteria, are more likely to dismiss cases, reject lead plaintiffs, reject attorneys’ fees, and retain cases rather than hand them over to other judges. Our results are …
Public Choice And Environmental Policy: A Review Of The Literature, Christopher H. Schroeder
Public Choice And Environmental Policy: A Review Of The Literature, Christopher H. Schroeder
Faculty Scholarship
This paper is a draft of a chapter for a forthcoming book, Research Handbook in Public Law and Public Choice, edited by Daniel Farber and Anne Joseph O'Connell, to be published by Elgar. It reviews the public choice literature on environmental policy making, first generally and then with respect to four fundamental environmental policy questions: (1) whether or not government action is warranted; (2) if it is, the scope and stringency of the government action, including the manner in which a bureaucracy will implement and enforce any statutory standards; (3) the level of government that assumes responsibility; and (4) the …
A Woman’S Worth, Kimberly D. Krawiec
A Woman’S Worth, Kimberly D. Krawiec
Faculty Scholarship
This Article examines three traditionally “taboo trades”: (1) the sale of sex, (2) compensated egg donation, and (3) commercial surrogacy. The Article purposely invokes examples in which the compensated provision of goods or services (primarily or exclusively by women) is legal, but in which commodification is only partially achieved or is constrained in some way. I argue that incomplete commodification disadvantages female providers in these instances, by constraining their agency, earning power, or status. Moreover, anticommodification and coercion rhetoric is sometimes invoked in these settings by interest groups who, at best, have little interest in female empowerment and, at worst, …
Nature Or Nurture? Judicial Lawmaking In The European Court Of Justice And The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter
Nature Or Nurture? Judicial Lawmaking In The European Court Of Justice And The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter
Faculty Scholarship
Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts’ authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This …
Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi
Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi
Faculty Scholarship
Empirical scholarship on judges, judging, and judicial institutions, a staple in political science, is becoming increasingly popular in law schools. We propose that this scholarship can be improved and enhanced by greater collaboration between empirical scholars, legal theorists, and the primary subjects of the research, the judges. We recently hosted a workshop that attempted to move away from the conventional mode of involving judges and theorists in empirical research, where they serve as commentators on empirical studies that they often see as reductionist and mis-focused. Instead, we had the judges and theorists set the discussion agenda for the empiricists by …
Responsible Sovereign Lending And Borrowing, Mitu Gulati, Lee C. Buchheit
Responsible Sovereign Lending And Borrowing, Mitu Gulati, Lee C. Buchheit
Faculty Scholarship
There are three reasons for attempting to reach a common understanding of the responsibilities of sovereign borrowers and their lenders. First, the flow of capital to sovereign debtors is exceptionally important to the world economy. Industrialized countries rely on it to finance their budget deficits, these days to a breathtaking extent. Developing countries need it to develop. Misbehaviour, either by the sovereign debtors or by the creditors, destabilizes this key component of the international financial system, making credit less available and more costly.
Second, sovereign finance is uniquely unforgiving of mistakes. Unlike corporate or personal debtors, sovereigns do not have …
A Foundational Proposal For Making The Durham Statement Real, Wayne V. Miller
A Foundational Proposal For Making The Durham Statement Real, Wayne V. Miller
Faculty Scholarship
This outline is an attempt to synthesize the issues surrounding the ambitious project of the Durham Statement on Open Access to Legal Scholarship into a coherent, though still quite preliminary solution. At the heart is the conviction that the problems of digital publishing are best solved by a stable and open organization of and by the stakeholders.
Trading-Off Reproductive Technology And Adoption: Does Subsidizing In Vitro Fertilization Decrease Adoption Rates And Should It Matter?, Daniel L. Chen, I. Glenn Cohen
Trading-Off Reproductive Technology And Adoption: Does Subsidizing In Vitro Fertilization Decrease Adoption Rates And Should It Matter?, Daniel L. Chen, I. Glenn Cohen
Faculty Scholarship
For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and …
Enforcing International Corrupt Practices Law, Paul D. Carrington
Enforcing International Corrupt Practices Law, Paul D. Carrington
Faculty Scholarship
This Essay strives to advance the current international movement to
deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.
Designing Payments For Ecosystem Services, James Salzman
Designing Payments For Ecosystem Services, James Salzman
Faculty Scholarship
This Policy Series by James Salzman brings attention to a rapidly developing phenomenon—payments for ecosystem services (PES).
Salzman, the Samuel F. Mordecai Professor of Law and the Nicholas Institute Professor of Environmental Policy at Duke University, explains when and where ecosystem services can be provided by voluntary markets rather than government actions. The key to understanding how PES work is rooted in the basis of any voluntary market transaction—gains from trade. One party agrees to take action because another party offers an incentive. Both parties benefit. A beekeeper, for example, brings her hives to an orchard to provide pollination services …
Dispute Regarding Navigational And Related Rights (Costa Rica V. Nicaragua), Coalter G. Lathrop
Dispute Regarding Navigational And Related Rights (Costa Rica V. Nicaragua), Coalter G. Lathrop
Faculty Scholarship
No abstract provided.