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Duke Law

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2007

Articles 31 - 60 of 136

Full-Text Articles in Law

Synthetic Biology: Caught Between Property Rights, The Public Domain, And The Commons, Arti K. Rai, James Boyle Jan 2007

Synthetic Biology: Caught Between Property Rights, The Public Domain, And The Commons, Arti K. Rai, James Boyle

Faculty Scholarship

Synthetic biologists aim to make biology a true engineering discipline. In the same way that electrical engineers rely on standard capacitors and resistors, or computer programmers rely on modular blocks of code, synthetic biologists wish to create an array of modular biological parts that can be readily synthesized and mixed together in different combinations. Synthetic biology has already produced important results, including more accurate AIDS tests and the possibility of unlimited supplies of previously scarce drugs for malaria. Proponents hope to use synthetic organisms to produce not only medically relevant chemicals but also a large variety of industrial materials, including …


Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca E. Bignami Jan 2007

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca E. Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting -- the Data Retention Directive. Based on a detailed examination of the Directive's legislative …


Legal Information And The Development Of American Law: Writings On The Form And Structure Of The Published Law, Richard A. Danner Jan 2007

Legal Information And The Development Of American Law: Writings On The Form And Structure Of The Published Law, Richard A. Danner

Faculty Scholarship

Robert C. Berring's writings about the impacts of electronic databases, the Internet, and other communications technologies on legal research and practice are an essential part of a larger literature that explores the ways in which the forms and structures of published legal information have influenced how American lawyers think about the law. This paper reviews Berring's writings, along with those of other writers concerned with these questions, focusing on the implications of Berring's idea that in the late nineteenth century American legal publishers created a "conceptual universe of thinkable thoughts" through which U.S. lawyers came to view the law. It …


Think Globally, Act Globally: The Limits Of Local Climate Policies, Jonathan B. Wiener Jan 2007

Think Globally, Act Globally: The Limits Of Local Climate Policies, Jonathan B. Wiener

Faculty Scholarship

State-level actions to address global climate change, such as laws and litigation recently undertaken by California and by several Northeastern states to limit greenhouse gas (GHG) emissions, reflect creative legal strategies understandably intended to achieve a major environmental objective while the US federal government has not joined the Kyoto Protocol and has not yet adopted national legislation. But even assuming that forestalling global climate change is urgently needed, state-level action is not the best way to do so. Acting locally is not well suited to regulating moveable global conduct yielding a global externality. Legally, state-level action confronts several obstacles, including …


Rebuilding Illinois Brick: A Functionalist Approach To The Indirect Purchaser Rule, Barak D. Richman, Christopher R. Murray Jan 2007

Rebuilding Illinois Brick: A Functionalist Approach To The Indirect Purchaser Rule, Barak D. Richman, Christopher R. Murray

Faculty Scholarship

The landmark case of Illinois Brick Co. v. Illinois, which denied standing to indirect purchasers to sue antitrust violators, has been subjected to steady and widespread criticism since it was decided in 1977. Despite three decades of dissatisfaction, however, debate over indirect purchaser standing has failed to generate satisfying solutions that meet the objectives of antitrust law and reflect its underlying principles. We attribute the lack of creative alternatives to an undue emphasis on legal formalism, fostered both by the Supreme Court's elaboration of the indirect purchaser rule and the doctrine's failure to recognize the pervasiveness of multilayer supply chains. …


Asbestos Lessons: The Consequences Of Asbestos Litigation, Paul D. Carrington Jan 2007

Asbestos Lessons: The Consequences Of Asbestos Litigation, Paul D. Carrington

Faculty Scholarship

Abstract not available


The First Restatement Of Agency: What Was The Agenda?, Deborah A. Demott Jan 2007

The First Restatement Of Agency: What Was The Agenda?, Deborah A. Demott

Faculty Scholarship

No abstract provided.


An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky Jan 2007

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Challenging Direct Democracy, Erwin Chemerinsky Jan 2007

Challenging Direct Democracy, Erwin Chemerinsky

Faculty Scholarship

I want to argue today that direct democracy is undesirable and unconstitutional. I want to argue to you that the Supreme Court should find that the Michigan Civil Rights Initiative is unconstitutional, and strike it down. So I want to make two points. First, I am going to argue that direct democracy is undesirable. This is a normative argument; it’s not an argument about constitutional doctrine. Second, I want to argue that direct democracy is unconstitutional, and make a series of different arguments as to why.


Property As Constitutional Myth: Utilities And Dangers, Laura S. Underkuffler Jan 2007

Property As Constitutional Myth: Utilities And Dangers, Laura S. Underkuffler

Faculty Scholarship

No abstract provided.


Injunctions In Defamation Cases, Erwin Chemerinsky Jan 2007

Injunctions In Defamation Cases, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


Contracts Without Law: Sovereign Versus Corporate Debt, Mitu Gulati, George G. Triantis Jan 2007

Contracts Without Law: Sovereign Versus Corporate Debt, Mitu Gulati, George G. Triantis

Faculty Scholarship

Although extralegal enforcement is widely acknowledged, the conventional understanding of written contract provisions, such as the complex and detailed provisions in bond contracts, is that they are drafted to be enforced by law. This framing neglects the value of contracts in shaping extralegal forces, particularly where litigation is unlikely or not possible. Sovereign debt contracts provide an example in which lengthy and detailed contracts play a key role even though the debtor is largely litigation-proof. We examine how contract provisions in sovereign debt contracts improve the efficiency of creditor control outside the realm of legal enforcement.


Following The Script: An Empirical Analysis Of Court-Ordered Mediation Of Medical Malpractice Cases, Thomas B. Metzloff, Ralph A. Peeples, Catherine T. Harris Jan 2007

Following The Script: An Empirical Analysis Of Court-Ordered Mediation Of Medical Malpractice Cases, Thomas B. Metzloff, Ralph A. Peeples, Catherine T. Harris

Faculty Scholarship

No abstract provided.


A Reverse Notice And Takedown Regime To Enable Public Interest Uses Of Technically Protected Copyrighted Works, Jerome H. Reichman, Graeme B. Dinwoodie, Pamela Samuelson Jan 2007

A Reverse Notice And Takedown Regime To Enable Public Interest Uses Of Technically Protected Copyrighted Works, Jerome H. Reichman, Graeme B. Dinwoodie, Pamela Samuelson

Faculty Scholarship

No abstract provided.


Some Notes On Principled Pragmatism, Christopher H. Schroeder Jan 2007

Some Notes On Principled Pragmatism, Christopher H. Schroeder

Faculty Scholarship

Symposium dedicated to the work of Professor Paul J. Mishkin. This article examines several articles by Mishkin. One of the ideas developed here stresses the importance of being mindful of the wider context within which the Supreme Court operates.


Stalking The Yeti: Protective Jurisdiction, Foreign Affairs Removal, And Complete Preemption, Ernest A. Young Jan 2007

Stalking The Yeti: Protective Jurisdiction, Foreign Affairs Removal, And Complete Preemption, Ernest A. Young

Faculty Scholarship

Symposium dedicated to the work of Professor Paul J. Mishkin. This essay explores the Mishkin's theory of protective jurisdiction and applyies it to contemporary controversies.


The Fifth Amendment And The Grand Jury, Sara Sun Beale, James E. Felman Jan 2007

The Fifth Amendment And The Grand Jury, Sara Sun Beale, James E. Felman

Faculty Scholarship

No abstract provided.


Writing Other Peoples’ Constitutions, Paul D. Carrington Jan 2007

Writing Other Peoples’ Constitutions, Paul D. Carrington

Faculty Scholarship

No abstract provided.


Police Deception Before Miranda Warnings: The Case For Per Se Exclusion Of An Entirely Unjustified Practice At A Particularly Sensitive Moment, Robert P. Mosteller Jan 2007

Police Deception Before Miranda Warnings: The Case For Per Se Exclusion Of An Entirely Unjustified Practice At A Particularly Sensitive Moment, Robert P. Mosteller

Faculty Scholarship

This essay focuses on the limits of deception practiced before the suspect waives his or her rights under Miranda v. Arizona (1966). In Miranda, the Court stated: [A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the suspect did not voluntarily waive his privilege. The quotation appears to forbid any evidence of threats, tricks, or cajolery, which contributes to a waiver of the privilege, creating a per se exclusion. However, in Moran v. Burbine (1986), the Court shifts focus away from the nature of the police conduct to its effect on …


Intellectual Property: Does Ip Harm Or Help Developing Countries?, Jerome H. Reichman Jan 2007

Intellectual Property: Does Ip Harm Or Help Developing Countries?, Jerome H. Reichman

Faculty Scholarship

No abstract provided.


School Naming Rights And The First Amendment’S Perfect Storm, Joseph Blocher Jan 2007

School Naming Rights And The First Amendment’S Perfect Storm, Joseph Blocher

Faculty Scholarship

In the past five years, public schools across the country have begun to explore a new avenue of fundraising: selling naming rights to school facilities. The popularity and monetary value of these sales, however, only highlight the importance of the First Amendment concerns they raise. This Article uses school naming rights as a lens through which to examine the conflicts between government speech, commercial speech, and forum analysis, three categories of First Amendment analysis that are simultaneously and problematically implicated by school naming rights sales. Courts and scholars have long noted the internal ambiguities within these three categories, but have …


Toward A Human Rights Framework For Intellectual Property, Laurence R. Helfer Jan 2007

Toward A Human Rights Framework For Intellectual Property, Laurence R. Helfer

Faculty Scholarship

This Article, prepared for a Symposium on Intellectual Property and Social Justice held at the University of California at Davis School of Law in March 2006, addresses the growing intersection of human rights law and intellectual property law. Its principal point of departure is a November 2005 General Comment on "the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author" - a relatively obscure provision of the International Covenant on Economic, Social and Cultural Rights. The Article builds upon the analysis …


On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco Jan 2007

On The Legal Consequences Of Sauces: Should Thomas Keller’S Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco

Faculty Scholarship

No abstract provided.


Geographic Variation In Informed Consent Law: Two Standards For Disclosure Of Treatment Risks, David M. Studdert, Michelle M. Mello, Marin K. Levy, Russell L. Gruen, Edward J. Dunn, E. John Orav, Troyen A. Brennan Jan 2007

Geographic Variation In Informed Consent Law: Two Standards For Disclosure Of Treatment Risks, David M. Studdert, Michelle M. Mello, Marin K. Levy, Russell L. Gruen, Edward J. Dunn, E. John Orav, Troyen A. Brennan

Faculty Scholarship

We analyzed 714 jury verdicts in informed consent cases tried in 25 states in 1985–2002 to determine whether the applicable standard of care (“patient” vs. “professional” standard) affected the outcome. Verdicts for plaintiffs were significantly more frequent in states with a patient standard than in states with a professional standard (27 percent vs. 17 percent, P = 0.02). This difference in outcomes did not hold for other types of medical malpractice litigation (36 percent vs. 37 percent, P = 0.8). The multivariate odds of a plaintiff’s verdict were more than twice as high in states with a patient standard than …


Promoting And Establishing The Recovery Of Endangered Species On Private Lands: A Case Study Of The Gopher Tortoise (Duke Law, Student Paper Series), Blake Hudson Jan 2007

Promoting And Establishing The Recovery Of Endangered Species On Private Lands: A Case Study Of The Gopher Tortoise (Duke Law, Student Paper Series), Blake Hudson

Faculty Scholarship

Important species are increasingly becoming endangered on private lands largely left unregulated by federal and state laws. The gopher tortoise is one such species. The tortoise is a keystone species, meaning that upon its existence numerous other species exist. Despite its importance, tortoise populations have declined by 80% - partly due to development pressures, but primarily due to forest management practices which have reduced the longleaf pine ecosystem upon which it depends. This article focus on legal and policy issues associated with both development and forest management. Because private forest management practices are the primary cause of tortoise decline, the …


Criminal Procedure Within The Firm, Samuel W. Buell Jan 2007

Criminal Procedure Within The Firm, Samuel W. Buell

Faculty Scholarship

It seems improbable that the theoretical and doctrinal framework of criminal procedure, developed mostly through a binary model of the individual and the state, would fit without modification in the tripartite model of the state, the firm, and the individual that characterizes the investigation and sanctioning of criminal conduct within legal entities. This intuition—which has been underexplored in spite of heated public debate about the state’s practices in this area—proves correct. I develop some components of a framework for understanding procedure for individual cases of criminal wrongdoing within firms and generating insights to guide reform. The process of pursuing individual …


Reforming Punishment Of Financial Reporting Fraud, Samuel W. Buell Jan 2007

Reforming Punishment Of Financial Reporting Fraud, Samuel W. Buell

Faculty Scholarship

Present sentencing law in criminal cases of financial reporting fraud is embarrassingly flawed. The problem is urgent given that courts are now regularly sentencing corporate offenders, sometimes (but sometimes not) to extremely punitive terms of imprisonment. Policing of fraud by multiple jurisdictions in a federal system means that principled sentencing law is necessary not only for first-order policy reasons but also for coordination of sanctioning efforts. Proportionality and rationality demand that sentencing law have an agreed scale for measuring cases of financial reporting fraud in relation to each other, a sound methodology for fixing a given case on that scale, …


Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman Jan 2007

Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman

Faculty Scholarship

This paper integrates and extends the literatures on industry evolution and dominant firms to develop a dynamic theory of dominant and fringe competitive interaction in a segmented industry. It argues that a dominant firm, seeing contraction of growth in its current segment(s), enters new segments in which it can exploit its technological strengths, but that are sufficiently distant to avoid cannibalization. The dominant firm acts as a low-cost Stackelberg leader, driving down prices and triggering a sales takeoff in the new segment. We identify a “churn” effect associated with dominant firm entry: fringe firms that precede the dominant firm into …


Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne Jan 2007

Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne

Faculty Scholarship

This article explores the consequences of a Constitution not entirely aligned with moral law. These remarks encourage all legal minds to acknowledge such gaps when they are found, although there are a variety of ways in which such acknowledgment may take shape.


What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2007

What Statutes Mean: Interpretive Lessons From Positive Theories Of Communication And Legislation, Cheryl Boudreau, Arthur Lupia, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.