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2014

Duke Law

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Articles 1 - 30 of 142

Full-Text Articles in Law

Kansas V. Nebraska & Colorado: Keeping Equity Afloat In The Republican River Dispute, Charles Punia Dec 2014

Kansas V. Nebraska & Colorado: Keeping Equity Afloat In The Republican River Dispute, Charles Punia

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kansas v. Nebraska & Colorado. The Supreme Court will have the opportunity to resolve a decades-old conflict over water rights in the Republican River which flows through Colorado, Nebraska, and Kansas. In this case of original jurisdiction, the Court will determine both whether Nebraska violated a 60-year old compact concerning water rights, and what the appropriate remedy should be for that violation.


Charting A New Course: Metal-Tech V. Uzbekistan And The Treatment Of Corruption In Investment Arbitration, Michael A. Losco Nov 2014

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 ...


Which Institution Should Determine Whether An Agency’S Explanation Of A Tax Decision Is Adequate?: A Response To Steve Johnson, Richard J. Pierce Jr Oct 2014

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 ...


Pragmatic Administrative Law And Tax Exceptionalism, Richard Murphy Oct 2014

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.


Reworking The Unworkable: Halliburton Ii And The Court's Reexamination Of Fraud On The Market, Mariana Estévez Jun 2014

Reworking The Unworkable: Halliburton Ii And The Court's Reexamination Of Fraud On The Market, Mariana Estévez

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews the upcoming Supreme Court case Erica P. John Fund, Inc. v. Halliburton Co. in which the Court is called upon to reexamine the controversial fraud-on-the-market rule. This rule, a cornerstone of securities litigation for the past two decades, allows the court to presume that securities fraud plaintiffs relied on a misstatement or omission if the security affected is traded on an efficient market. The subject of intense debate for years, this commentary reviews and analyzes precedent and predicts the case's likely outcome--that the Court will not expressly overrule the fraud-on-the-market rule, but will nevertheless modify it ...


What's Money Got To Do With It: Robers V. United States And Collateral Under The Mandatory Victims Restitution Act Of 1996, Tori M. Bennette May 2014

What's Money Got To Do With It: Robers V. United States And Collateral Under The Mandatory Victims Restitution Act Of 1996, Tori M. Bennette

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Robers v. United States. The Supreme Court will have the opportunity to resolve a major circuit split concerning how to value restitution owed to victims of mortgage lending fraud. Specifically, the court will determine whether the value of collateral mortgage property at the time of foreclosure is used to offset how much restitution fraudulent borrowers owe their victims, or whether the value of only the actual cash proceeds received from foreclosure of the property is used to offset restitution.


Bond V. United States. Deciphering Missouri V. Holland And The Scope Of Congress's Powers When Implementing A Non-Self-Executing Treaty, Stephanie Peral May 2014

Bond V. United States. Deciphering Missouri V. Holland And The Scope Of Congress's Powers When Implementing A Non-Self-Executing Treaty, Stephanie Peral

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bond v. United States. What started as an act of revenge by a jealous wife will require the Supreme Court to examine a ninety-year old precedent concerning the extent of Congress's powers when acting pursuant to a treaty and whether a valid treaty allows Congress to act without being limited by the Article I enumerated powers.


What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat May 2014

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.


A Tradition Of Sovereignty: Examining Tribal Sovereign Immunity In Bay Mills Indian Community V. Michigan, Meredith L. Jewitt Apr 2014

A Tradition Of Sovereignty: Examining Tribal Sovereign Immunity In Bay Mills Indian Community V. Michigan, Meredith L. Jewitt

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bay Mills Indian Community v. Michigan, in which the Court may decide whether the doctrine of Tribal Sovereign Immunity prohibits Michigan's attempt to enjoin Indian gaming in the state or whether Congress expressly allowed the suit when passing the Indian Gaming Regulatory Act.


Up In The Air: Lawson V. Fmr Llc & The Scope Of Sarbanes-Oxley Whistleblower Protection, Ryan Mccarthy Feb 2014

Up In The Air: Lawson V. Fmr Llc & The Scope Of Sarbanes-Oxley Whistleblower Protection, Ryan Mccarthy

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Lawson v. FMR LCC, in which the Court will consider whether Sarbanes-Oxley extends whistleblower protection to employees of the private contractors and subcontractors of public companies.


A Bridge Too Far: The Limits Of The Political Process Doctrine In Schuette V. Coalition To Defend Affirmative Action, Christopher E. D'Alessio Jan 2014

A Bridge Too Far: The Limits Of The Political Process Doctrine In Schuette V. Coalition To Defend Affirmative Action, Christopher E. D'Alessio

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Schuette v. Coalition to Defend Affirmative Action, in which the Court will consider whether Michigan violated the Equal Protection Clause of the Fourteenth Amendment by amending its constitution to prohibit race-based preferential treatment in public-university admissions decisions.


In Connection With What?: Chadbourne & Parke Llp V. Troice And The Applicability Of The Securities Litigation Uniform Standards Act, John W. Messick Jan 2014

In Connection With What?: Chadbourne & Parke Llp V. Troice And The Applicability Of The Securities Litigation Uniform Standards Act, John W. Messick

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Chadbourne & Parke LLP v. Troice, in which the Court will clarify whether the Securities Litigation Uniform Standards Act precludes a state law class action alleging a scheme of fraud involving misrepresentations about transactions in covered-securities.


Proskauer Rose Llp V. Troice: Deciphering The Proper Scope Of Slusa, Sriram Giridharan Jan 2014

Proskauer Rose Llp V. Troice: Deciphering The Proper Scope Of Slusa, Sriram Giridharan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine Jan 2014

Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kaley v. United States, in which the Court may decide whether a defendant who needs potentially forfeitable assets to retain counsel of choice is entitled, under the Due Process Clause, to a hearing to challenge the grand jury's finding of probable cause.


The Year In Review 2013: Selected Cases From The Alaska Supreme Court, The Alaska Court Of Appeals, The United States Supreme Court, The United States District Court For The District Of Alaska, And The United States Court Of Appeals For The Ninth Circuit Jan 2014

The Year In Review 2013: Selected Cases From The Alaska Supreme Court, The Alaska Court Of Appeals, The United States Supreme Court, The United States District Court For The District Of Alaska, And The United States Court Of Appeals For The Ninth Circuit

Alaska Law Review Year in Review

No abstract provided.


The Constitutional Standing Of Corporations, Brandon L. Garrett Jan 2014

The Constitutional Standing Of Corporations, Brandon L. Garrett

Faculty Scholarship

Are corporations “persons” with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth Amendment, and Seventh Amendment, but not, for example, the Self-Incrimination Clause of the Fifth Amendment. What theory explains why corporations may litigate some constitutional rights and not others? In this Article, I argue that the doctrine of Article III standing supplies an underlying general theory by requiring a judge to ask: does the organization suffer a concrete constitutional injury to its legal interests? Such ...


Accuracy In Sentencing, Brandon L. Garrett Jan 2014

Accuracy In Sentencing, Brandon L. Garrett

Faculty Scholarship

A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a "miscarriage of justice"-- that is, a claim of innocence. The Supreme Court's miscarriage of justice standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from "plain error" review on appeal, to excusing appeal waivers, the scope of cognizable claims under 28 U.S.C. § 2255, the post-conviction statute for federal prisoners, and the "Savings Clause ...


Differentiating Among International Investment Disputes, Julie A. Maupin Jan 2014

Differentiating Among International Investment Disputes, Julie A. Maupin

Faculty Scholarship

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze how ...


Restatements And Non-State Codifications Of Private Law, Deborah A. Demott Jan 2014

Restatements And Non-State Codifications Of Private Law, Deborah A. Demott

Faculty Scholarship

This paper offers a vantage point through which to assess the phenomenon of projects codifying private law that are undertaken by private persons or institutions, distinct from legislatures and state-sponsored codification and law-revision projects. The private institution on which this paper focuses is the American Law Institute (ALI). ALI works in statutory form—most notably the Uniform Commercial Code and the Model Penal Code—as well as through projects that generate “Principles” to guide legal development within their specific fields and “Restatements” that authoritatively cover the law in a field.

The history of the Restatements sketched in this essay fits ...


The Influence Of The Andean Intellectual Property Regime On Access To Medicines In Latin America, Laurence R. Helfer, Karen J. Alter Jan 2014

The Influence Of The Andean Intellectual Property Regime On Access To Medicines In Latin America, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

This chapter is a contribution to "Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America," Rochelle Dreyfuss & César Rodríguez-Garavito, eds. Part I of the chapter explains how the repeated interactions between the Andean Tribunal of Justice (ATJ) and domestic IP agencies in the Andean Community helped to build an effective IP rule of law and to solidify pro-consumer interpretations of regional patent and trademark rules. Part II documents how ATJ judges and agency officials enabled Andean governments to resist pressure from the United States and its pharmaceutical industry to ...


The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicolas Treich Jan 2014

The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicolas Treich

Faculty Scholarship

We examine how different welfarist frameworks evaluate the social value of mortality risk reduction. These frameworks include classical, distributively unweighted cost–benefit analysis—i.e., the “value per statistical life” (VSL) approach—and various social welfare functions (SWFs). The SWFs are either utilitarian or prioritarian, applied to policy choice under risk in either an “ex post” or “ex ante” manner. We examine the conditions on individual utility and on the SWF under which these frameworks display sensitivity to wealth and to baseline risk. Moreover, we discuss whether these frameworks satisfy related properties that have received some attention in the literature ...


Liability And Admission Of Wrongdoing In Public Enforcement Of Law, Samuel W. Buell Jan 2014

Liability And Admission Of Wrongdoing In Public Enforcement Of Law, Samuel W. Buell

Faculty Scholarship

Some judges and scholars have questioned the social value of the standard form in which the Securities and Exchange Commission settles its corporate enforcement actions, including the agency’s use of essentially unreviewed consent decrees that include no admission of liability or wrongdoing. This essay for a symposium on SEC enforcement provides an analysis of the deterrent effects of the three main components of settlements in public enforcement of law: liability, admission, and remedy. The conclusions are the following. All three components have beneficial deterrent effects. Cost considerations nonetheless justify some settlements that dispense with liability or admission, or even ...


Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang Jan 2014

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households ...


The Development And Evolution Of The U.S. Law Of Corporate Criminal Liability, Sara Sun Beale Jan 2014

The Development And Evolution Of The U.S. Law Of Corporate Criminal Liability, Sara Sun Beale

Faculty Scholarship

In the United States, corporate criminal liability developed in response to the industrial revolution and the rise in the scope and importance of corporate activities. This article focuses principally on federal law, which bases corporate criminal liability on the respondeat superior doctrine developed in tort law. In the federal system, the formative period for the doctrine of corporate criminal liability was the early Twentieth Century, when Congress dramatically expanded the reach of federal law, responding to the unprecedented concentration of economic power in corporations and combinations of business concerns as well as new hazards to public health and safety. Both ...


Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener Jan 2014

Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener

Faculty Scholarship

Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidential regulatory oversight through OIRA review, we analyze the incentives for agencies to cooperate with or avoid OIRA. We identify a wider array of agency avoidance tactics than has past scholarship, and a wider array of corresponding response options available to OIRA, the President, Congress, and the courts. We argue ...


The Governance Structure Of Shadow Banking: Rethinking Assumptions About Limited Liability, Steven L. Schwarcz Jan 2014

The Governance Structure Of Shadow Banking: Rethinking Assumptions About Limited Liability, Steven L. Schwarcz

Faculty Scholarship

In an earlier article, I argued that shadow banking — the provision of financial services and products outside of the traditional banking system, and thus without the need for bank intermediation between capital markets and the users of funds — is so radically transforming finance that regulatory scholars need to rethink their basic assumptions. This article attempts to rethink the corporate governance assumption that owners of firms should always have their liability limited to the capital they have invested. In the relatively small and decentralized firms that dominate shadow banking, equity investors tend to be active managers. Limited liability gives these investor-managers ...


Are Individuals Fickle-Minded?, Mathew D. Mccubbins, Mark Turner Jan 2014

Are Individuals Fickle-Minded?, Mathew D. Mccubbins, Mark Turner

Faculty Scholarship

Game theory has been used to model large-scale social events — such as constitutional law, democratic stability, standard setting, gender roles, social movements, communication, markets, the selection of officials by means of elections, coalition formation, resource allocation, distribution of goods, and war — as the aggregate result of individual choices in interdependent decision-making. Game theory in this way assumes methodological individualism. The widespread observation that game theory predictions do not in general match observation has led to many attempts to repair game theory by creating behavioral game theory, which adds corrective terms to the game theoretic predictions in the hope of making ...


State’S Rights, Last Rights, And Voting Rights, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2014

State’S Rights, Last Rights, And Voting Rights, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

There are two ways to read the Supreme Court’s decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of ...


Non-State Law In The Hague Principles On Choice Of Law In International Contracts, Ralf Michaels Jan 2014

Non-State Law In The Hague Principles On Choice Of Law In International Contracts, Ralf Michaels

Faculty Scholarship

Article 3 of the Hague Principles on Choice of Law in International Contracts is the first quasi-legislative text on choice of law to allow explicitly for the choice of non-state law also before state courts. This paper, forthcoming in a Festschrift, puts the provision into a broader context, discusses their drafting history and particular issues involved in their interpretation. It also provides a critical evaluation. Article 3 does not respond to an existing need, and its formulation, the fruit of a compromise between supporters and opponents of choosing non-state law, makes the provision unsuccessful for state courts and arbitrators alike.


Cultivating Inclusion, Patrick S. Shin, Mitu Gulati Jan 2014

Cultivating Inclusion, Patrick S. Shin, Mitu Gulati

Faculty Scholarship

In this symposium essay in honor of critical race theory stalwart Mari Matsuda, we discuss two of her essays on affirmative action, "Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground" and "Who is Excellent?" We draw on the insights of these essays, one written almost twenty-five years ago and the other over a decade ago, to reflect on currently prevailing justifications for affirmative action, which revolve entirely around debates about diversity. We contrast the production of racial diversity with the more robust concept of affirmative action that Matsuda advocated. We argue that the modern diversity rationale lies at ...