Digital Commons Network^™

Developing A Working Model To Fight Fiscal Corruption: The Nexus At Which Tax Crimes And Corruption Meet, Pietro Sorbello, Stephen Holden

Law and Contemporary Problems

No abstract provided.

Corrupt Corporations And The Facilitation Of Tax Crimes: A Review Of The United Kingdom's Enforcement Mechanisms, Sam Bourton, Nicholas Ryder

Law and Contemporary Problems

No abstract provided.

Wave Your Little Hand And Whisper So Long Dearie: Proffering An Overdue Goodbye To Microunits In The Performing Arts, Amanda Joos

Law and Contemporary Problems

No abstract provided.

New Perspectives On Iran: The Path To Progressive Family Law Before The Islamic Revolution, Neeki Memarzadeh

Duke Journal of Comparative & International Law

A progressive Iranian women's rights movement has slipped through the cracks of mainstream scholarship. In the 1960s, Iranian women rallied for progressive family law reforms; their efforts culminated in the Family Protection Law of 1967. This note provides an alternative view of the women's rights movement in the Middle East and highlights how a social movement gave rise to comprehensive and progressive family law reform. Over the last century, Iran has been under authoritarian rule, first in the form of a monarchy and now in a theocracy. In spite of this, Iranian women have been steadfast in the fight for …

It Ain't Real Funky Unless It's Got That Pop: Artistic Fair Use After Goldsmith, Benjamin A. Spencer

Duke Journal of Constitutional Law & Public Policy Sidebar

The Pop Art style pioneered by artists such as Paolozzi, Lichtenstein, and Rauschenberg challenged notions of what art could be by recasting common objects and images into new contexts, transforming them into pieces that served as both cultural commentary and novel expression. Though examination of an artwork's meaning or message may seem more natural for a critic or curator, the Supreme Court will have a chance to weigh in with Andy Warhol Foundation for the Visual Arts v. Goldsmith. Here, the court will decide whether a Warhol painting based on a photograph of Prince is protected by fair use. …

Paternalism In International Human Rights Law, Lucas Lixinski, Noam Peleg

Duke Journal of Comparative & International Law

This article argues that international human rights law (IHRL) at a system-wide level produces paternalistic effects that undermine the work it is meant to do for rightsholders. Analyzing the work of four key United Nations human rights treaty bodies, we show how institutional arrangements exclude rightsholders from having a say on their own interests in what IHRL should mean for them, and we are instead left with a body of norms, guidelines, and institutions with self-serving dynamics that reinforce the position of IHRL institutions and only secondarily benefit rightsholders.

Law Over Legalism: International Court Legitimacy In Lautsi V. Italy, Sebastián Guidi

Duke Journal of Comparative & International Law

2009 brought an existential crisis to the European Court of Human Rights (ECtHR). In November, it unanimously ordered Italy to remove crucifixes from public schools. Backlash was unprecedented. The government promptly announced it would not comply. Politicians and social actors all across the political spectrum harshly criticized the decision and bashed the Court. Ten European countries joined Italy in referring the case to the Grand Chamber of the Court, which reversed the decision in 2011. The storm abated. Lautsi v. Italy likely received the most public attention of any ECtHR judgment. Much of the Court’s subsequent case-law was decided with …

Federal Recognition Of Native American Tribes In The United States And The International Right To Self-Determination: Why Congress Should Exercise Its Constitutional Authority To Federally Recognize The Lumbee Tribe, James Ennis Street

Duke Journal of Comparative & International Law

Native American tribal nations covet state and federal tribal recognition. The Lumbee Tribe is one of those tribes. Though North Carolina has granted the Lumbee Tribe State recognition, the Lumbee Tribe's 134-year-long quest for Federal recognition has not been successful. Neither of the two types of Federal Recognition – Administrative and Congressional – have permitted the Lumbee Tribe to benefit alongside the other federally-recognized Tribes from increased respect, sovereignty, and resources. Instead, the Lumbee Tribe has been spun around by the regulatory recognition rigmarole.

In this article, I first explore arguments for and against federal recognition of the Lumbee Tribe. …

The Puzzle Of Procedural Originalism, Mila Sohoni

Duke Law Journal

On a daily basis, lawyers and judges consult and apply the rules of subject matter jurisdiction and personal jurisdiction. These doctrines—the workhorses of procedural law—ostensibly spring from the Constitution’s text, but their substance owes more to considerations of fairness, efficiency, and sound policy than it does to original meaning. Indeed, these doctrines are among the most openly and obviously nonoriginalist doctrines in constitutional law. Curiously, the originalist movement has almost totally ignored this everyday terrain. That is beginning to change. Recent overtures by Supreme Court Justices suggest that originalists are now poised to advance into the field of civil procedure. …

Patent Forfeiture, Sean B. Seymore

Duke Law Journal

Patent law doesn’t look kindly on patent owners who engage in wrongdoing involving the patent. The U.S. Supreme Court and lower courts have refused to enforce patents tainted with inequitableness, fraud, or bad faith. This issue typically arises in patent litigation when an accused infringer asserts that the patent should be unenforceable if the patentee engaged in one of four proscribed activities: inequitable conduct (deliberate misrepresentations or omissions of material information from the Patent Office); patent misuse (anticompetitive licensing practices); unclean hands (business or litigation misconduct); or waiver/estoppel (a lack of candor before a standard-setting organization). This seems right—a patentee …

Token Wars: How The Sec Can Learn To Embrace Utility Tokens, Paul K. Drexler

Duke Law Journal

Tired of the power that mega platforms wield over the web, a growing chorus of internet users has hailed the arrival of blockchain technology, believing it can be used to build a new internet. Called “Web 3.0” by some, the new internet would allow users to exchange goods and services—digital currencies, cloud computing power, data storage—without needing a central intermediary to validate transactions. Instead, users would transact through decentralized platforms that use consensus-based mechanisms to verify users’ exchanges. And rather than rely on fiat money, users would use the platforms’ native currencies, called “utility tokens,” as the media of exchange. …

Building Trust(S): Rethinking Asset Return In Kleptocracy Forfeitures, Michael J. Biondi

Duke Law Journal

Kleptocracy, literally meaning “rule by thieves,” is a major destabilizing force in an already unstable world. Every year, corrupt government officials plunder billions of dollars rightfully belonging to their citizens and export them overseas. When these funds—often parked in luxury assets—reach the United States, federal prosecutors can seize them using a procedure known as nonconviction-based forfeiture. But after every such seizure, a question arises: How does the United States give stolen assets back to whom they belong? The United Nations Convention Against Corruption strongly encourages (or, in some circumstances, requires) forfeited assets to be returned to their state of origin …

The Laws That Regulate Police: The Wilson Center’S Policing Legislation Database, Brandon L. Garrett

Faculty Scholarship

To better understand lawmaking in response to calls for reform, the Wilson Center for Science and Justice began tracking the introduction of policing-related legislation. This report covers our database tracking policing legislation and our initial findings.

Hospitals Suing Patients: How Hospitals Use N.C. Courts To Collect Medical Debt, Barak Richman, Sara Sternberg Greene, Sean Chen, Julie Havlak

Faculty Scholarship

From January 2017 through June 2022, North Carolina hospitals brought 5,922 lawsuits to collect medical debt against 7,517 patients and family members. These actions were brought in small claims court, state district, and state superior courts, and generated 3,449 judgments for hospitals totaling $57.3 million, or an average of $16,623 per judgment.

Hospitals took advantage of North Carolina’s allowance of 8% annual interest on judgments, including by refiling actions to sustain judgments issued ten years earlier. These interest charges and other additional fees totaled an estimated $20.3 million, or 35.4% of the judgments awarded. Some patients faced more than a …

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and …

Restating The Law In The Shadow Of Codes: The Ali In Its Formative Era, Deborah A. Demott

Faculty Scholarship

This chapter recounts the American Law Institute’s (ALI’s) history in its formative era (1923–1945), drawing from archival sources to deepen existing accounts of the ALI’s self-definition as an ongoing institution. The history is more complex than it appears in prior accounts because institutional necessities—including funding—as well as multiple contingencies shaped both the ALI and its work. Likewise, the ALI’s signal work in this period, the Restatement, departed in significant ways from its original plan. Generating the revenues requisite to its ongoing existence required that the ALI partner with commercial publishers and, at their urging, separately publish Annotations for each Restatement …

Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli

Faculty Scholarship

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial …

The Territories Under Text, History, And Tradition, Andrew Willinger

Faculty Scholarship

In two of its major decisions in the 2021–2022 Term, New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice. Historical laws and practices are now key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what regulatory approaches were consistent …

Law And Courts In An Age Of Debt, Jared A. Ellias, Elisabeth De Fontenay

Faculty Scholarship

Judges perform very different analyses when investors ask for protection. When the petitioning party is a shareholder, the court will deploy broad equitable doctrines with an eye towards reaching a fair result. On the other hand, creditors usually find a much less sympathetic ear, as courts typically march through technical analyses such as examining whether the offending party violated a contract term, with far less concern for whether the outcome is fair. In an era where many firms are highly leveraged, the end result is that the role of the courts in regulating investor opportunism and creating boundaries for “market” …

Firearms Law And Scholarship Beyond Bullets And Bodies, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Academic work is increasingly important to court rulings on the Second Amendment and firearms law more generally. This article highlights two recent trends in social science research that supplement the traditional focus on guns and physical harm. The first strand of research focuses on the changing ways that gun owners connect with firearms, with personal security, status, identity, and cultural markers being key reasons people offer for possessing firearms. The second strand focuses on broadening our understanding of the impact of guns on the public sphere beyond just physical safety. This research surfaces the ways that guns can create fear, …

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

Faculty Scholarship

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Faculty Scholarship

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Camey v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware's requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue "will likely be raised again." The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state's "nonpartisan" …

Cryptic Patent Reform Through The Inflation Reduction Act, Arti K. Rai, Rachel E. Sachs, W. Nicholson Price Ii

Faculty Scholarship

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (“IRA”) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to …

Social Cognitive Processes Explain Bias In Juror Decisions, Jaime J. Castrellon, Shabnam Hakimi, Jacob M. Parelman, Lun Yin, Jonathan R. Law, Jesse A.G. Skene, David A. Ball, Artemis Malekpour, Donald H. Beskind, Neil Vidmar, John M. Pearson, J. H. Pate Skene, R. Mckell Carter

Faculty Scholarship

Jury decisions are among the most consequential social decisions in which bias plays a notable role. While courts take measures to reduce the influence of non-evidentiary factors, jurors may still incorporate biases into their decisions. One common bias, crime-type bias, is the extent to which the perceived strength of a prosecutor’s case depends on the severity of the crime. Moral judgment, affect and social cognition have been proposed as core processes underlying this and other biases. Behavioral evidence alone has been insufficient to distinguish these explanations. To identify the mechanism underlying crime-type bias, we collected functional magnetic resonance imaging patterns …

Corporate Governance And Risk-Taking: A Statistical Approach, Steven L. Schwarcz

Faculty Scholarship

Because prudent corporate governance often requires managers to take risks based on statistically expected outcomes, corporate failures that have a small but finite chance of occurring cannot always be prevented. This Article makes three related claims about risk-taking in corporate governance.

This Article’s first claim is that managers should not automatically be presumed to be at fault for corporate failures that result from risk-taking decisions based on statistical methodologies that reasonably justify the decisions ex ante. Conceptually, the business judgment rule should protect corporate managers for engaging in a reasonable decision-making process, including one that is statistically based. Jurisdictionally, however, …

Next-Generation Securitization: Nfts, Tokenization, And The Monetization Of ‘Things’, Steven L. Schwarcz

Faculty Scholarship

For decades, businesses have used securitization to monetize assets by selling to investors interests in the assets’ future value. Traditionally, securitization has monetized so-called financial assets, which generate cash flow to pay the investors. That payment source, coupled with the ability of investors to resell their interests, can create a highly liquid and attractive investment. Even so, securities laws generally restrict these investments to sophisticated and institutional investors.

In recent years, securitization has spawned a new generation of transactions that monetize nonfinancial assets and other rights that do not ordinarily generate cash flow, such as art, collectible cars, access to …

What We Talk About When We Talk About Tax Shelters, Lawrence A. Zelenak

Faculty Scholarship

This Response to Jonathan H. Choi’s recent Article, Beyond Purposivism in Tax Law, endorses Choi’s preference for purposivist approaches to the interpretation of tax statutes, but notes and explains three areas of disagreement. First, this Response proposes a different definition of a tax shelter, under which the “puzzle” motivating Choi’s analysis disappears. Second, this Response explains how an inductive approach to tax shelter analysis can produce important insights likely to be missed by Choi’s preferred deductive approach. Finally, this Response criticizes Choi’s conclusion that “the normative [policy] preferences of tax experts” should prevail over legislative intent; this Response instead urges …

No Peace Without Punishment? Reintegrating Islamic State “Collaborators” In Iraq, Mara R. Revkin, Kristen Kao

Faculty Scholarship

How does variation in the severity of punishment affect public opinion toward the reintegration of former enemy “collaborators” after war? We study this question in the context of Iraq where the Islamic State, an armed rebel group, captured and governed a population of more than five million Iraqi citizens between 2014 and 2017. Building upon extensive fieldwork and interviews in Iraq, we designed a survey experiment that randomly varied the severity of sentences in hypothetical scenarios of civilians who supported the Islamic State in non-violent roles (e.g., cleaners, cooks, and wives of fighters). The experiment allows us to estimate the …

Climate Change Adaptation And The Protection Of Indigenous Peoples’ Land & Resources In Latin America, Terrence Neal

Faculty Scholarship

No abstract provided.

Amicus Brief On Nonconsensual Nondebtor Releases In Chapter 11 Bankruptcy Reorganizations (Harrington V. Purdue Pharma), Ralph Brubaker, Bruce A. Markell, Jonathan M. Seymour

Faculty Scholarship

This amicus brief was filed in Harrington v. Purdue Pharma, 603 U.S. 204 (2024), which held that federal bankruptcy courts have no power to approve so-called nonconsensual nondebtor (or third-party) release provisions. Consistent with that holding, this brief argued that such provisions were illegitimate and unconstitutional.

Nonconsensual nondebtor releases extinguished creditors’ direct claims of liability against a nondebtor without the consent (and even over the objection) of creditors in precisely the same way that a bankruptcy discharge extinguishes a bankruptcy debtor’s debts. Such provisions frequently appeared in a Chapter 11 debtor’s proposed plan of reorganization. And in confirming a plan …