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Differing Perceptions? Market Practice And The Evolution Of Foreign Sovereign Immunity, W. Mark C. Weidemaier, Mitu Gulati Jan 2017

Differing Perceptions? Market Practice And The Evolution Of Foreign Sovereign Immunity, W. Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

The 20th century witnessed a transformative, “tectonic” shift in international law, from “absolute” to “restrictive” theories of sovereign immunity. As conventionally understood, however, this dramatic transformation represented only a shift in the default rule. Under absolute immunity, national courts could not hear lawsuits and enforce judgments against a foreign sovereign without its consent. Under restrictive immunity, foreign sovereigns were presumptively not immune when they engaged in commercial acts. We demonstrate that market practices undermine this conventional understanding. Using an extensive, two-century data set of contracts between foreign governments and private creditors, we show that contracting parties have long treated absolute …


The Economics Of Healthcare Rationing, Michael D. Frakes, Matthew B. Frank, Kyle Rozema Jan 2017

The Economics Of Healthcare Rationing, Michael D. Frakes, Matthew B. Frank, Kyle Rozema

Faculty Scholarship

This article examines the economics of healthcare rationing. We begin with an overview of the various dimensions across which healthcare rationing operates, or at least has the potential to operate, in the first place. We then describe the types of economic analyses used in healthcare rationing decision-making, with particular reference to cost-benefit analysis and cost-effectiveness analysis. We also discuss healthcare rationing in practice, such as how economic analyses inform decisions regarding which services to cover, and conclude by discussing various practical and conceptual challenges that may arise with economic analyses and that span both economics and ethics.


Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Murphy Jan 2017

Just And Speedy: On Civil Discovery Sanctions For Luddite Lawyers, Michael Murphy

Faculty Scholarship

No abstract provided.


Inequality Rediscovered, Jedediah Purdy, David Singh Grewal Jan 2017

Inequality Rediscovered, Jedediah Purdy, David Singh Grewal

Faculty Scholarship

Widespread recognition that economic inequality has been growing for forty years in most of the developed world, and in fact has tended to grow across most of the history of modern economies, shows that the period 1945-1973, when inequality of wealth and income shrank, was a marked anomaly in historical experience. At the time, however, the anomalous period of equality seemed to vindicate a long history of optimism about economic life: that growth would overcome meaningful scarcity and usher in an egalitarian and humanistic period that could almost qualify as post-economic. This has not been the experience of the last …


Cracking The Code: An Empirical Analysis Of Consumer Bankruptcy Outcomes, Sara Sternberg Greene, Parina Patel, Katherine M. Porter Jan 2017

Cracking The Code: An Empirical Analysis Of Consumer Bankruptcy Outcomes, Sara Sternberg Greene, Parina Patel, Katherine M. Porter

Faculty Scholarship

Chapter 13 is a cornerstone of the bankruptcy system. Its legal requirements strike a balance between the rehabilitation of debtors through keeping assets and reducing debt, and the repayment of creditors over a period of years. Despite the accolades from policymakers, the hard truth is that the majority of the half-million families each year that seek refuge in chapter 13 bankruptcy will not achieve the debt relief of a discharge. Prior research found that those who drop out of bankruptcy quickly endure the serious financial struggles that they had before bankruptcy—now even worse off for having spent thousands of dollars …


Look Back To Go Forward, Elizabeth Saagulik Hensley Dec 2016

Look Back To Go Forward, Elizabeth Saagulik Hensley

Alaska Law Review

No abstract provided.


Volume 100, Number 2 (Summer 2016) Jul 2016

Volume 100, Number 2 (Summer 2016)

Judicature

No abstract provided.


Between Community Law And Common Law: The Rise Of The Caribbean Court Of Justice At The Intersection Of Regional Integration And Post-Colonial Legacies, Salvatore Caserta, Mikael Rask Madsen Mar 2016

Between Community Law And Common Law: The Rise Of The Caribbean Court Of Justice At The Intersection Of Regional Integration And Post-Colonial Legacies, Salvatore Caserta, Mikael Rask Madsen

Law and Contemporary Problems

No abstract provided.


Improving Access To Justice In Developing And Post-Conflict Countries: Practical Examples From The Field, Jessica Vapnek, Peter Boaz, Helga Turku Feb 2016

Improving Access To Justice In Developing And Post-Conflict Countries: Practical Examples From The Field, Jessica Vapnek, Peter Boaz, Helga Turku

Duke Forum for Law & Social Change

No abstract provided.


Assuming The Risk Of Death: Implications Of The Olivia Brown Case, Natalie Webb Feb 2016

Assuming The Risk Of Death: Implications Of The Olivia Brown Case, Natalie Webb

Duke Forum for Law & Social Change

No abstract provided.


Innocent Until Proven Guilty?: Examining The Constitutionality Of Public Housing Evictions Based On Criminal Activity, Leah Goodridge, Helen Strom Feb 2016

Innocent Until Proven Guilty?: Examining The Constitutionality Of Public Housing Evictions Based On Criminal Activity, Leah Goodridge, Helen Strom

Duke Forum for Law & Social Change

No abstract provided.


Hiv/Aids Care And Prevention Infrastructure In The U.S. Deep South, Susan S. Reif, Kristen Sullivan, Elena Wilson, Miriam Berger, Carolyn Mcallaster Jan 2016

Hiv/Aids Care And Prevention Infrastructure In The U.S. Deep South, Susan S. Reif, Kristen Sullivan, Elena Wilson, Miriam Berger, Carolyn Mcallaster

Faculty Scholarship

No abstract provided.


Agency Costs In Law-Firm Selection: Are Companies Under-Spending On Counsel?, Elisabeth De Fontenay Jan 2016

Agency Costs In Law-Firm Selection: Are Companies Under-Spending On Counsel?, Elisabeth De Fontenay

Faculty Scholarship

A growing body of literature examines whether corporate clients derive sufficient value from the law firms that they engage. Yet little attention has been paid to whether clients optimally select among law firms in the first place. One entry-point is to identify discrepancies in the quality of counsel selected by different corporate clients for the very same work. Using a large sample of loans, this Article finds that major U.S. public companies select lower-ranked law firms for their financing transactions than do private equity-owned companies, controlling for various deal characteristics. While some of this discrepancy can be attributed to value-maximizing …


Race, Class, And Access To Civil Justice, Sara Sternberg Greene Jan 2016

Race, Class, And Access To Civil Justice, Sara Sternberg Greene

Faculty Scholarship

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …


Privatizing Public Litigation, Margaret H. Lemos Jan 2016

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …


Ravin Revisited: Alaska's Historic Common Law Marijuana Rule At The Dawn Of Legalization, Jason Brandeis Dec 2015

Ravin Revisited: Alaska's Historic Common Law Marijuana Rule At The Dawn Of Legalization, Jason Brandeis

Alaska Law Review

For the past forty years, Alaska has had one of the most unique marijuana laws in the United States. Under the Ravin Doctrine, adults in Alaska could use and possess a small amount of marijuana in their homes for any personal purpose. That common law rule, grounded in the Alaska Constitution's explicit right of privacy, was effectively codified in November 2014 when Alaska voters approved Ballot Measure 2: "An act to tax and regulate the production, sale, and use of marijuana." Measure 2 ushered in a new era of marijuana regulation, adding Alaska to the short list of states that …


Alaska: North To The Future Of Federal Marijuana Regulation, Angela Macdonald Dec 2015

Alaska: North To The Future Of Federal Marijuana Regulation, Angela Macdonald

Alaska Law Review

The personal freedom Alaskans not only expect, but rely upon, exposes a significant need for federal cooperation in the reformation of marijuana laws, including the removal or reclassification of marijuana in the Controlled Substances Act. This Comment summarizes this issue in light of Alaska’s recent recreational marijuana legalization. In doing so, elements unique to Alaska and their likely influence on the state's upcoming marijuana legislation; the history and evolution of Alaska marijuana laws; and the scholarly literature on Alaska marijuana law regarding the tensions between federal and state marijuana regulation are discussed. This Comment proposes that marijuana be removed from …


When In Doubt Take Them Out: Removal Of Children From Victims Of Domestic Violence Ten Years After Nicholson V. Williams, Lynn F. Beller Jun 2015

When In Doubt Take Them Out: Removal Of Children From Victims Of Domestic Violence Ten Years After Nicholson V. Williams, Lynn F. Beller

Duke Journal of Gender Law & Policy

No abstract provided.


Whatever Happened To The Seveloff Fix?, Andy Harrington Jun 2015

Whatever Happened To The Seveloff Fix?, Andy Harrington

Alaska Law Review

This Article suggests that the Supreme Court has not deprived Alaska Native Villages of a valid basis for claiming the authority to create and enforce their own tribal alcohol regulations. Every federally recognized Alaskan Native Village is situated in an area over which Congress extended the federal Indian liquor laws in 1873, in an enactment Congress has never repealed; this should logically empower Alaska Native Villages to exercise the same federally-delegated authority within their federal Indian liquor law Indian country as lower-48 tribes have within their reservations or “dependent Indian communities.” Since this delegated authority is shared with the states, …


Advancing Tribal Court Criminal Jurisdiction In Alaska, Ryan Fortson Jun 2015

Advancing Tribal Court Criminal Jurisdiction In Alaska, Ryan Fortson

Alaska Law Review

Extensive case law already exists in Alaska on the jurisdiction of tribal courts over domestic relations cases, with one of the seminal cases—John v. Baker—establishing that Alaska tribes have jurisdiction even in the absence of Indian country. A common assumption, though, is that Alaska tribes do not have jurisdiction over criminal offenses. This Article argues that both under the logic of John v. Baker and the development of Indian law in the Lower 48, Alaska tribes already possess inherent jurisdiction over criminal offenses within their Native villages. With the gamut of social challenges facing Alaska Natives in rural …


Neoliberal Constitutionalism: Lochnerism For A New Economy, Jedediah Purdy Jan 2015

Neoliberal Constitutionalism: Lochnerism For A New Economy, Jedediah Purdy

Law and Contemporary Problems

No abstract provided.


The Year In Review 2014: Selected Cases From The Alaska Supreme Court And The Alaska Court Of Appeals Jan 2015

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.


New Problems For Subsidized Speech, Joseph Blocher Jan 2015

New Problems For Subsidized Speech, Joseph Blocher

Faculty Scholarship

The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat …


When The Lawyer Screws Up: A Portrait Of Legal Malpractice Claims And Their Resolution, Herbert M. Kritzer, Neil Vidmar Jan 2015

When The Lawyer Screws Up: A Portrait Of Legal Malpractice Claims And Their Resolution, Herbert M. Kritzer, Neil Vidmar

Faculty Scholarship

No abstract provided.


Grand Challenges, Grand Ideas: Ideas For Surmounting The Biggest Challenges Facing The Judiciary And The Legal Profession Today, David F. Levi Jan 2015

Grand Challenges, Grand Ideas: Ideas For Surmounting The Biggest Challenges Facing The Judiciary And The Legal Profession Today, David F. Levi

Faculty Scholarship

In delivering the Lloyd D. George Lecture on the Judicial Process at UNLV William S. Boyd School of Law last year, Duke Law School Dean David F. Levi laid out “The Grand Challenges for the Legal Profession and the Judiciary.” Following are his lecture and a roundtable discussion among judicial leaders who are responding to the call for new ideas and solutions for these Grand Challenges.


Hiv Infrastructure Study Jackson, Mississippi, Susan S. Reif, Elena Wilson, Carolyn Mcallaster, Miriam Berger Jan 2015

Hiv Infrastructure Study Jackson, Mississippi, Susan S. Reif, Elena Wilson, Carolyn Mcallaster, Miriam Berger

Faculty Scholarship

No abstract provided.


Law Firm Selection And The Value Of Transactional Lawyering, Elisabeth De Fontenay Jan 2015

Law Firm Selection And The Value Of Transactional Lawyering, Elisabeth De Fontenay

Faculty Scholarship

Following the contraction in demand for law firms’ services during the Great Recession, “Big Law” was widely diagnosed as suffering from several maladies that would spell its ultimate demise, including excessive fees, excessive size, increased competition from in-house counsel, the commoditization of legal work, and the decline in demand for “relationship firms.” While each of these market pressures is only too real for certain segments of the law-firm population, their threat to the most elite U.S. law firms has been largely misunderstood. Even as many firms reduce their fees and contract in size, we should expect certain firms to continue …


Hiv Infrastructure Study Birmingham, Alabama, Susan S. Reif, Kristen Sullivan, Carolyn Mcallaster, Miriam Berger Jan 2015

Hiv Infrastructure Study Birmingham, Alabama, Susan S. Reif, Kristen Sullivan, Carolyn Mcallaster, Miriam Berger

Faculty Scholarship

No abstract provided.


Fate Control And Human Rights: The Policies And Practices Of Local Governance In America’S Arctic, Mara Kimmel Dec 2014

Fate Control And Human Rights: The Policies And Practices Of Local Governance In America’S Arctic, Mara Kimmel

Alaska Law Review

The loss of territoriality over lands conveyed under the Alaska Native Claims Settlement Act had adverse impacts for Alaskan tribal governance. Despite policy frameworks that emphasize the value of local governance at an international, regional, and statewide level, Alaskan tribes face unique obstacles to exercising their authority, with consequences for both human development and human rights. This Article examines how territoriality was lost and analyzes the four major effects of this loss on tribal governance. It then describes two distinct but complimentary strategies to rebuilding tribal governance authority that rely on both territorial and non-territorial authority.


Organs Without Borders? Allocating Transplant Organs, Foreigners, And The Importance Of The Nation-State (?), I. Glenn Cohen Dec 2014

Organs Without Borders? Allocating Transplant Organs, Foreigners, And The Importance Of The Nation-State (?), I. Glenn Cohen

Law and Contemporary Problems

No abstract provided.