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Race, Marriage, Markets, Choice, And Some Reflections On Is Marriage For White People?, Twila L. Perry Oct 2015

Race, Marriage, Markets, Choice, And Some Reflections On Is Marriage For White People?, Twila L. Perry

Duke Journal of Gender Law & Policy

No abstract provided.


Coordination And Conflict: The Persistent Relevance Of Networks In International Financial Regulation, Robert B. Ahdieh Oct 2015

Coordination And Conflict: The Persistent Relevance Of Networks In International Financial Regulation, Robert B. Ahdieh

Law and Contemporary Problems

No abstract provided.


The Case In Favor Of Ocr’S Tougher Title Ix Policies: Pushing Back Against The Pushback, Sarah Edwards Oct 2015

The Case In Favor Of Ocr’S Tougher Title Ix Policies: Pushing Back Against The Pushback, Sarah Edwards

Duke Journal of Gender Law & Policy

No abstract provided.


Judicial Independence And The Rationing Of Constitutional Remedies, Aziz Z. Huq Oct 2015

Judicial Independence And The Rationing Of Constitutional Remedies, Aziz Z. Huq

Duke Law Journal

This Article analyzes the doctrinal instruments federal courts use to allocate scarce adjudicative resources over competing demands for constitutional remedies. It advances two claims. First, a central, hitherto underappreciated, doctrinal instrument for rationing judicial resources is a demand that most constitutional claimants demonstrate that an official violated an exceptionally clear, unambiguous constitutional rule—that is, not only that the Constitution was violated, but that the violation evinced a demanding species of fault. This fault rule first emerged in constitutional tort jurisprudence. It has diffused to the suppression and postconviction review contexts. The Article’s second claim is that fault-based rationing of constitutional …


Volume 99, Number 2 (2015) Aug 2015

Volume 99, Number 2 (2015)

Judicature

No abstract provided.


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.


Relocation Law And Survivors Of Domestic Violence, Talley Wood Jun 2015

Relocation Law And Survivors Of Domestic Violence, Talley Wood

Duke Journal of Gender Law & Policy

No abstract provided.


Note From The Editor, Philip A. Tarpley Jun 2015

Note From The Editor, Philip A. Tarpley

Alaska Law Review

No abstract provided.


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 …


What's It Worth To Keep A Secret?, Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat May 2015

What's It Worth To Keep A Secret?, Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat

Duke Law & Technology Review

This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is …


Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss Apr 2015

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 …


The Classified Information Procedures Act In The Age Of Terrorism: Remodeling Cipa In An Offense-Specific Manner, Arjun Chandran Apr 2015

The Classified Information Procedures Act In The Age Of Terrorism: Remodeling Cipa In An Offense-Specific Manner, Arjun Chandran

Duke Law Journal

The Classified Information Procedures Act (CIPA) sets the balancing point between the government’s interest in preventing disclosure of classified information with a criminal defendant’s right to exculpatory material. Although CIPA was originally drafted with espionage cases in mind, the statute has become more commonly associated with terrorism prosecutions. This contextual shift has disrupted CIPA’s interest-balancing formulation by altering the governmental interests at stake. CIPA’s discovery burdens on the defendant are ordinarily constitutionally justified by the strong countervailing state interest in preserving vital national-security information. This concern is less salient with terrorism defendants, who are unlikely to possess state secrets. Accordingly, …


The Presence And Absence Of Legal Mind: A Comment On Duncan Kennedy’S Three Globalizations, Christopher Tomlins Mar 2015

The Presence And Absence Of Legal Mind: A Comment On Duncan Kennedy’S Three Globalizations, Christopher Tomlins

Law and Contemporary Problems

No abstract provided.


Violently Possessed: Johnson As The Vehicle For Limiting Sentencing Enhancement Under The Armed Career Criminals Act, Jonathan Robe Mar 2015

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.


Universal Jurisdiction, The Alien Tort Statute, And Transnational Public-Law Litigation After Kiobel, Ernest A. Young Mar 2015

Universal Jurisdiction, The Alien Tort Statute, And Transnational Public-Law Litigation After Kiobel, Ernest A. Young

Duke Law Journal

The Alien Tort Statute (ATS), enacted in 1789 as part of the first Judiciary Act, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations . . . .” Although the statute lay dormant until the 1980s, the ATS has since become the font of transnational public-law litigation in American courts. This litigation, frequently involving largely foreign parties and events, is a form of civil-side universal jurisdiction. Like more traditional forms of universal jurisdiction, the ATS allows American courts to hear human-rights …


Jennings V. Stephens And Judicial Efficiency In Habeas Appeals, Eric O'Brien Jan 2015

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 …


Excessive Corporate Risk-Taking And The Decline Of Personal Blame, Steven L. Schwarcz Jan 2015

Excessive Corporate Risk-Taking And The Decline Of Personal Blame, Steven L. Schwarcz

Faculty Scholarship

Government agencies and prosecutors are being criticized for seeking so few indictments against individuals in the wake of the 2008-09 financial crisis and its resulting banking failures. This article analyzes why — contrary to a longstanding historical trend — personal liability may be on the decline, and whether agencies and prosecutors should be doing more. The analysis confronts fundamental policy questions concerning changing corporate and social norms. The public and the media perceive the crisis’s harm as a “wrong” caused by excessive risk-taking. But that view can be too simplistic, ignoring the reality that firms must take greater risks to …


Culpability And Modern Crime, Samuel W. Buell Jan 2015

Culpability And Modern Crime, Samuel W. Buell

Faculty Scholarship

Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material. Many of these projects are laudable. But progressive programs in substantive criminal law can raise difficult problems of culpability. Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded …


Less Enforcement, More Compliance: Rethinking Unauthorized Migration, Emily Ryo Jan 2015

Less Enforcement, More Compliance: Rethinking Unauthorized Migration, Emily Ryo

Faculty Scholarship

A common assumption underlying the current public discourse and legal treatment of unauthorized immigrants is that unauthorized immigrants are lawless individuals who will break the law—any law—in search of economic gain. This notion persists despite substantial empirical evidence to the contrary. Drawing on original empirical data, this Article examines unauthorized immigrants and their relationship to the law from a novel perspective to make two major contributions. First, I demonstrate that unauthorized immigrants view themselves and their noncompliance with U.S. immigration law in a manner that is strikingly different from the prevalent view of criminality and lawlessness found in popular and …


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.


Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin Jan 2015

Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin

Faculty Scholarship

In her twenty plus years on the United States Supreme Court, Justice Ruth Bader Ginsburg has issued momentous decisions and significant dissents concerning constitutional guarantees of equality. She is best known for her leadership – as an advocate, scholar, judge, and justice – on issues of gender discrimination. Although one might expect related commitments to civil liberties to shape cases concerning the criminal justice process, Justice Ginsburg’s mark on constitutional criminal procedure appears comparatively faint. Her contributions have been subtle, and her cautious opinions at first seem disconnected from the clear principles established in the discrimination cases.


Resisting Wholesale Electronic Invasion Of The Fourth Amendment, Michael E. Tigar Jan 2015

Resisting Wholesale Electronic Invasion Of The Fourth Amendment, Michael E. Tigar

Faculty Scholarship

No abstract provided.


The Corporate Criminal As Scapegoat, Brandon L. Garrett Jan 2015

The Corporate Criminal As Scapegoat, Brandon L. Garrett

Faculty Scholarship

A corporation is no scapegoat, assures the Department of Justice, because the first priority is to prosecute culpable individuals and not artificial entities. Yet, as I document in this empirical study, far more often than not, when the largest corporations settle federal criminal cases, no individuals are charged. High profile failures to prosecute executives in the wake of the Global Financial Crisis have only made the problem more urgent. The corporation appears to be a kind of a scapegoat: impossible to physically jail, but capable of receiving blame and punishment while individual culprits go free. In this Article, I develop …


Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar Jan 2015

Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar

Faculty Scholarship

Over the past decade and a half, a great deal of attention has rightfully been given to the issue of wrongful convictions. In 2003, Jim Dwyer, Peter Neufeld and Barry Scheck published Actual Innocence, an eyeopening treatise on the reality of wrongful convictions in the United States. In the years since, more than 1400 innocent persons have been exonerated, and a very diverse research community of attorneys, academics, social scientists, and activists has developed in response to the realization offlaws in our criminal justice system. In 2012, Brandon Garrett's Convicting the Innocent quantitatively evaluated the first 250 DNA exonerations and …


Instead Of Suspension: Alternative Strategies For Effective School Discipline, Jenni Owen, Jane Wettach, Katie Claire Hoffman Jan 2015

Instead Of Suspension: Alternative Strategies For Effective School Discipline, Jenni Owen, Jane Wettach, Katie Claire Hoffman

Faculty Scholarship

No abstract provided.


Decriminalizing Delinquency: The Effect Of Raising The Age Of Majority On Juvenile Recidivism, Charles E. Loeffler, Ben Grunwald Jan 2015

Decriminalizing Delinquency: The Effect Of Raising The Age Of Majority On Juvenile Recidivism, Charles E. Loeffler, Ben Grunwald

Faculty Scholarship

In the last decade, a number of states have expanded the jurisdiction of their juvenile courts by increasing the maximum age to 18. Proponents argue that these expansions reduce crime by increasing access to the beneficial features of the juvenile justice system. Critics counter that the expansions risk increasing crime by reducing deterrence. In 2010, Illinois raised the maximum age for juvenile court for offenders who commit a misdemeanor. By examining the effect of this law on juvenile offenders in Chicago, this paper provides the first empirical estimates of the consequences of recent legislative activity to raise the age of …


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.


Contaminated Confessions Revisited, Brandon L. Garrett Jan 2015

Contaminated Confessions Revisited, Brandon L. Garrett

Faculty Scholarship

A second wave of false confessions is cresting. In the first twenty-one years of post-conviction DNA testing, 250 innocent people were exonerated, forty of which had falsely confessed. Those false confessions attracted sustained public attention from judges, law enforcement, policymakers, and the media. Those exonerations not only showed that false confessions can happen, but did more by shedding light on the problem of confession contamination, in which details of the crime are disclosed to suspects during the interrogation process. As a result, false confessions can appear deceptively rich, detailed, and accurate. In just the last five years, there has been …


Interrogation Policies, Brandon L. Garrett Jan 2015

Interrogation Policies, Brandon L. Garrett

Faculty Scholarship

Despite growing concern regarding the problem of false confessions, including due to high profile DNA and death row exonerations, far too little is known about police interrogations in practice, including the written procedures that govern interrogations. This Essay provides a first study of police interrogation policies, focusing on written policies adopted by Virginia law enforcement agencies. Reviewing FOIA responses from over 180 agencies, the study found that few agencies require recording of entire interrogations as a matter of policy; nine did so. Over half, or 58 of 116 policies obtained, made recording an option, but did not encourage it or …


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.