Law Commons^™

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar

Faculty Scholarship

No abstract provided.

Six Degrees Of Separation: Attribution Under The Foreign Sovereign Immunities Act In Obb Personenverkehr Ag V. Sachs, Daniel R. Echeverri

Duke Journal of Constitutional Law & Public Policy Sidebar

The Foreign Sovereign Immunities Act (FSIA) generally prevents foreign sovereigns from falling within the jurisdiction of U.S. courts, subject to exceptions the FSIA lists. This commentary analyzes BB Personenverkehr AG v. Sachs, a case before the Supreme Court on the question of whether the commercial activities exception of the FSIA applies when only one element of a plaintiff's claim is based upon commercial activity occurring in the United States and whether that sale can be attributed to a foreign sovereign. In this case, the plaintiff purchased a rail pass through an online, third-party travel agent. While traveling abroad and …

Implementing Marriage Equality In America, Carl Tobias

Duke Law Journal Online

No abstract provided.

Exotic Addiction, Melissa A. Morgan

Duke Law Journal Online

With an annual profit between $10 and $20 billion, animal smuggling has become the third largest illegal trade in the world, behind only drugs and firearms, and the results are devastating to humans and animals alike. Zoonotic diseases are spreading, animal attack incidents are increasing, and several species are rapidly approaching extinction. This raises several questions that have been largely unanswered: What is causing the increase in demand? How serious are the effects? Why isn’t the law effective in preventing this? What can be done to slow this trend? This Comment attempts to answer these questions by investigating the causes …

A Fourth Way? Bringing Politics Back Into Recess Appointments (And The Rest Of The Separation Of Powers, Too), Josh Chafetz

Duke Law Journal Online

Ron Krotoszynski has written a very interesting interpretation and defense of Justice Breyer’s majority opinion in Noel Canning. In Krotoszynski’s account, the opinion is a paragon of “pragmatic formalism,” a two-step process that navigates deftly between the Scylla of hidebound formalism and the Charybdis of unmoored functionalism. The pragmatic formalist, Krotoszynski explains, begins by applying formalist tools, pulled from the standard textualist toolbox. In some cases, those tools will suffice to get to a determinate answer; if so, the pragmatic formalist is done. But the pragmatic formalist also recognizes that, in many situations, formalist tools are underdeterminate; when …

“Advice And Consent” In The Appointments Clause: From Another Historical Perspective, Steven I. Friedland

Duke Law Journal Online

This Essay, a response to Russell L. Weaver's symposium contribution, "Advice and Consent" in Historical Perspective, first explores the Appointments Clause’s antecedents in the Age of Enlightenment and its emergence in the Constitutional Convention in 1787, showing how its sturdy separation-of-powers foundation was built. In Part II, the Essay focuses on the historical realities of the Clause’s two-branch process, especially how the operability of two political bodies naturally yields results consonant with the etiquette and political sensibilities of the day. Then, in Part III, it offers several suggestions on how to cabin the potentially untrammeled discretion of the Senate …

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 …

Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss

Duke Journal of Constitutional Law & Public Policy Sidebar

In Crawford v. Washington, the Supreme Court declared that an accused right under the Constitution to confront the witnesses against him applied only to “testimonial statements.” That decision, however, did not attempt to fully define the scope of testimonial statements. This commentary analyzes Ohio v. Clark, a case which will decide the question of whether statements made by a child to a person with a duty to report allegations of child abuse are testimonial statements. In this case a young child was questioned at school by a teaching assistant about his injuries. This statement was then offered in …

Hiding In Plain Sight: Jesinoski And The Consumer’S Right Of Rescission, Milan Prodanovic

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Keeping Civil Rights Debates Civil: Removing Opportunities For Prejudice, Steven Saracco

Duke Journal of Constitutional Law & Public Policy Sidebar

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion in employment decisions made by private employers. This commentary analyzes Equal Employment Opportunity Commission v. Abercrombie & Fitch, a case before the Supreme Court on the issue of whether a job applicant bears the burden of expressly notifying an employer of a conflict between the applicant’s religious beliefs and the employer’s policies before the employer must offer a reasonable accommodation. This case deals with a Muslim woman who was denied employment at a clothing store because her headdress was deemed to be a …

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.

Violently Possessed: Johnson As The Vehicle For Limiting Sentencing Enhancement Under The Armed Career Criminals Act, Jonathan Robe

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Johnson v. United States in which the Court will decide whether conviction for mere possession of a short-barreled shotgun qualifies as a "violent felony" that warrants sentence-enhancement under the Armed Career Criminals Act. The Author argues that he plain text of the statute and the Court's prior cases on the issue suggest tat convictions for "mere possession" do not satisfy the definition of "violent felony" and that the Court should overturn the Eighth Circuit's ruling upholding Johnson's sentence enhancement.

Is That A Threat?: Elonis V. United States And The Standard Of Intent For True Threat Convictions, Peter S. Larson

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary analyzes the Supreme Court case Elonis v. United States where the Court will determine the applicable criminal-intent standard required to convict a defendant for threatening speech. After a series of violent Facebook posts against coworkers and his estranged wife, Petitioner Elonis was convicted for making so-called "true threats" of violence--speech not granted First-Amendment protection. Elonis argues that the prosecution should have been required to prove that he actually had the intent to threaten people when he wrote the posts, not simply that a reasonable person would find the posts threatening. The Author argues that the Court should rule …

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 …

Up In The Air: Department Of Homeland Security V. Maclean And The Whistleblower Protection Act, Mike Brett

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary analyzes the Supreme Court case Department of Homeland Security v. MacLean deciding whether an employee of the Department of Homeland Security comes under the protection of the Whistleblower Protection Act when they release potentially sensitive information to the media. Generally, the Act protects whistleblowers unless the information they release is not allowed "as specified by law." The particular statutory question in this case is whether the "law" prohibiting release must be contained in a statute, or can include the Department of Homeland Security's own promulgated regulation. The Author profiles the background of the case, applicable legal precedent, and …

Zivotofsky V. Kerry: Of Passports, Politics, And Foreign Policy Powers, Cara J. Grand

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary profiles the upcoming Supreme Court decision in Zivotofsky v. Kerry, which will decide, for the first time in United States history, the dividing line between legislative and executive authority to recognize foreign nations. Though it emanates from a seemingly-benign passport disagreement about a place-of-birth designation, this case will address an unprecedented and extremely controversial issue about separation of powers that has somehow evaded a Supreme Court decision. The Author profiles the case history and applicable legal precedent and analyzes the arguments for both sides before recommending that the Court should not find the President's power in this …

Jennings V. Stephens And Judicial Efficiency In Habeas Appeals, Eric O'Brien

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews the Supreme Court case Jennings v. Stevens which deals with several areas of federal habeas corpus law and procedure. The Court will consider, inter alia, whether a habeas petitioner who succeeds in federal district court nevertheless needs to request a certificate of appealability to bring an alternate grounds for habeas relief at the appellate level. Further, the Court can resolve a major circuit split on whether a court considering an ineffective assistance of counsel claim should consider each instance of ineffective assistance as a single claim or as all parts of one claim. Eric O'Brien suggests …

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 …

The Year In Review 2014: Selected Cases From The Alaska Supreme Court And The Alaska Court Of Appeals

Alaska Law Review Year in Review

No abstract provided.

Compelling Interests And Contraception, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

On the eve of Griswold v. Connecticut’s fiftieth anniversary, employers are bringing challenges under the Religious Freedom Restoration Act (RFRA) to federal laws requiring them to include contraception in the health insurance benefits that they offer their employees. In Burwell v. Hobby Lobby Stores, five Justices asserted that the government has compelling interests in ensuring employees access to contraception, but did not discuss those interests in any detail. In what follows, we clarify those interests by connecting discussion in the Hobby Lobby opinions and the federal government’s briefs to related cases on compelling interests and individual rights in the areas …

Brief Of Prof. Steven L. Schwarcz As Amicus Curiae, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

When Biopharma Meets Software: Bioinformatics At The Patent Office, Saurabh Vishnubhakat, Arti K. Rai

Faculty Scholarship

Scholars have spilled much ink questioning patent quality. Complaints encompass concern about incoming applications, examination by the U.S. Patent and Trademark Office (“USPTO”), and the USPTO’s ultimate output. The literature and some empirical data also suggest, however, that applications, examination, and output may differ considerably based on technology. Most notably, although definitions of patent quality are contested, quality in the biopharmaceutical industry is often considered substantially higher than that in information and communications technology (ICT) industries.

This Article presents the first empirical examination of what happens when the two fields are combined. Specifically, it analyzes the creation and early history …

Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

This paper examines to what extent agency rulemaking is democratic. It reviews theories of administrative rulemaking in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. It then evaluates how the empirical evidence lines up in light of these two approaches. The paper concludes with a discussion of avenues for future research.

Would You Choose To Be Happy? Tradeoffs Between Happiness And The Other Dimensions Of Life In A Large Population Survey, Matthew D. Adler, Paula Dolan, Georgios Kavetsos

Faculty Scholarship

A large literature documents the correlates and causes of subjective well-being, or happiness. But few studies have investigated whether people choose happiness. Is happiness all that people want from life, or are they willing to sacrifice it for other attributes, such as income and health? Tackling this question has largely been the preserve of philosophers. In this article, we find out just how much happiness matters to ordinary citizens. Our sample consists of nearly 13,000 members of the UK and US general populations. We ask them to choose between, and make judgments over, lives that are high (or low) in …

The Politics Of Chinese Land: Partial Reform, Vested Interests And Small Property, Shitong Qiao

Faculty Scholarship

This paper investigates the evolution of the Chinese land regime in the past three decades and focus on one question: why has the land use reform succeeded in the urban area, but not in the rural area? Through asking this question, it presents a holistic view of Chinese land reform, rather than the conventional "rural land rights conflict" picture. This paper argues that the so­called rural land problem is the consequence of China's partial land use reform. In 1988, the Chinese government chose to conduct land use reform sequentially: first urban and then rural. It was a pragmatic move because …

The Importance Of The Right To Food For Achieving Global Health, Emilie K. Aguirre

Faculty Scholarship

The Framework Convention on Global Health (FCGH) represents a significant opportunity to realize the right to health globally. However, in order to succeed the FCGH must be carefully considered: it must take a new evidence-based approach that departs meaningfully from past shortcomings in realizing the right to health. Central to this approach is recognizing, formally incorporating, and operationalizing the right to adequate food. This right should be correctly interpreted as a right to a standard of nutritional quality and not as a right to a minimum number of calories. Because nutrition is critical to the achievement and maintenance of good …

The Evolution Of Relational Property Rights: A Case Of Chinese Rural Land Reform, Shitong Qiao, Frank Upham

Faculty Scholarship

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who …

How Local Discrimination Can Promote Global Public Goods, Timothy Meyer

Faculty Scholarship

International negotiations struggle to keep pace with global problems like climate change. To fill this gap, local governments increasingly take matters into their own hands. For example, to promote the benefits of clean energy, a local government might give subsidies to renewable energy companies. Since 2001, California has given $2 billion in such subsidies, while states ranging from Minnesota to Kansas and Mississippi have doled out hundreds of millions of dollars each. Cities, such as Austin and Los Angeles, have also gotten into the act, contributing millions to renewable energy firms. To build support for these measures, the local government …

Eco-Environmental Risk Management, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.

Evaluating The 2013 Euro Cac Experiment, Elena Carletti, Paolo Colla, Mitu Gulati

Faculty Scholarship

On January 1, 2013, it became mandatory that every new sovereign bond issued by a member of the European Monetary Union include a new contract clause called a Collective Action Clause or CAC. This, we believe, constituted the biggest one-time change to the terms of sovereign debt contracts in history, impacting a market of many trillions of euros. And it was not just that the change was big in terms of the size of the market it impacted; it was big in terms of its impact on the documentation of each individual Euro area sovereign bond contract. To illustrate, prior …