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Full-Text Articles in Law

Journal Staff Dec 2005

Journal Staff

Duke Law Journal

No abstract provided.


Of Treaties And Torture: How The Supreme Court Can Restrain The Executive, Jeffrey C. Goldman Dec 2005

Of Treaties And Torture: How The Supreme Court Can Restrain The Executive, Jeffrey C. Goldman

Duke Law Journal

No abstract provided.


Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro Dec 2005

Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro

Duke Law Journal

Employment, brokerage, and other contracts routinely include "predispute" arbitration clauses-provisions requiring the parties to submit any and all future disputes to arbitrators rather than courts. In recent years, courts have come to enforce these clauses in the vast run of cases, requiring parties to arbitrate even when the underlying dispute implicates employment discrimination, antitrust, or other "public law" rights. In response to this trend, interest has grown in the extent of courts' authority to overturn arbitral awards that do not give effect to such rights. At first blush, the Federal Arbitration Act (FAA) does not appear to authorize any such …


Title Vii Disparate Impact Suits Against State Governments After Hibbs And Lane, Claude Platton Dec 2005

Title Vii Disparate Impact Suits Against State Governments After Hibbs And Lane, Claude Platton

Duke Law Journal

No abstract provided.


State Punishment And Private Prisons, Sharon Dolovich Dec 2005

State Punishment And Private Prisons, Sharon Dolovich

Duke Law Journal

To date, the debate over private prisons has focused largely on the relative efficiency of private prisons as compared to their publicly-run counterparts, and has assumed that, if private contractors can run the prisons for less money than the state without a drop in quality, then states should be willing to privatize. This "comparative efficiency" approach, however, has two significant problems. First, it is concerned exclusively with efficiency, despite the fact that the privatization of prisons arguably implicates more urgent values. Second, it accepts the current state of public prisons as an unproblematic baseline, thus failing to consider the possibility …


Targeting Osama Bin Laden: Examining The Legality Of Assassination As A Tool Of U.S. Foreign Policy, Howard A. Wachtel Dec 2005

Targeting Osama Bin Laden: Examining The Legality Of Assassination As A Tool Of U.S. Foreign Policy, Howard A. Wachtel

Duke Law Journal

No abstract provided.


What Happens To A Dream Deferred?: Cleansing The Taint Of San Antonio Independent School District V. Rodriguez, Ian Millhiser Nov 2005

What Happens To A Dream Deferred?: Cleansing The Taint Of San Antonio Independent School District V. Rodriguez, Ian Millhiser

Duke Law Journal

No abstract provided.


Journal Staff Nov 2005

Journal Staff

Duke Law Journal

No abstract provided.


Appeal Waivers And The Future Of Sentencing Policy, Nancy J. King, Michael E. O'Neill Nov 2005

Appeal Waivers And The Future Of Sentencing Policy, Nancy J. King, Michael E. O'Neill

Duke Law Journal

This paper is the first empirical analysis of appeal waiversclauses in plea agreements by which defendants waive their rights to appellate and postconviction review. Based on interviews and an analysis of data coded from 971 randomly selected cases sentenced under the United States Sentencing Guidelines, the study's findings include (1) in nearly two-thirds of the cases settled by plea agreement, the defendants waived their rights to review; (2) the frequency of waiver varies substantially among the circuits, and among districts within circuits; (3) the government appears to provide some sentencing concessions more frequently to defendants who sign waivers than to …


Clarity And Confusion: Did Republic Of Austria V. Altmann Revive State Department Suggestions Of Foreign Sovereign Immunity?, Mark J. Chorazak Nov 2005

Clarity And Confusion: Did Republic Of Austria V. Altmann Revive State Department Suggestions Of Foreign Sovereign Immunity?, Mark J. Chorazak

Duke Law Journal

No abstract provided.


Proportionality As A Principle Of Limited Government, Alice Ristroph Nov 2005

Proportionality As A Principle Of Limited Government, Alice Ristroph

Duke Law Journal

This Article examines proportionality as a constitutional limitation on the power to punish. In the criminal context, proportionality is often mischaracterized as a specifically penological theory-an ideal linked to specific accounts of the purpose of punishment. In fact, a constitutional proportionality requirement is better understood as an external limitation on the state's penal power that is independent of the goals of punishment. Proportionality limitations on the penal power arise not from the purposes of punishment, but from the fact that punishing is not the only purpose that the state must pursue. Other considerations, especially the protection of individual interests in …


Congressional Authority To Require State Adoption Of Independent Redistricting Commissions, Ryan P. Bates Nov 2005

Congressional Authority To Require State Adoption Of Independent Redistricting Commissions, Ryan P. Bates

Duke Law Journal

No abstract provided.


Good Faith Business Judgment: A Theory Of Rhetoric In Corporate Law Jurisprudence, Sean J. Griffith Oct 2005

Good Faith Business Judgment: A Theory Of Rhetoric In Corporate Law Jurisprudence, Sean J. Griffith

Duke Law Journal

This Article develops a theory of rhetoric in corporate law jurisprudence. It begins by examining a recent innovation in Delaware case law: the emerging principle of "good faith." Good faith is an old notion in law generally, but it offers to bring significant change to corporate law, including realignment of the business judgment rule and a shift in the traditional balance between the authority of boards and the accountability of boards to courts. This Article argues, however, that good faith functions as a rhetorical device rather than a substantive standard. That is, it operates as a speech act, a performance, …


A Choice Of Rules In Title Vii Retaliation Claims For Negative Employer References, Sarah Carrington Walker Baker Oct 2005

A Choice Of Rules In Title Vii Retaliation Claims For Negative Employer References, Sarah Carrington Walker Baker

Duke Law Journal

No abstract provided.


Journal Staff Oct 2005

Journal Staff

Duke Law Journal

No abstract provided.


Interlocutory Appeals In Patent Cases Under 28 U.S.C. § 1292(C)(2): Are They Still Justified And Are They Implemented Correctly?, V. Ajay Singh Oct 2005

Interlocutory Appeals In Patent Cases Under 28 U.S.C. § 1292(C)(2): Are They Still Justified And Are They Implemented Correctly?, V. Ajay Singh

Duke Law Journal

No abstract provided.


Political Trials In Domestic And International Law, Eric A. Posner Oct 2005

Political Trials In Domestic And International Law, Eric A. Posner

Duke Law Journal

Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a nonimmediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections-often with the complicity of judges-but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This Article argues that the amount of process enjoyed by defendants in criminal trials reflects a balancing of two …


A Tribute To William W. Van Alstyne, Katharine T. Bartlett Apr 2005

A Tribute To William W. Van Alstyne, Katharine T. Bartlett

Duke Law Journal

No abstract provided.


Equal Citizenship At Ground Level: The Consequences Of Nonstate Action, Kenneth L. Karst Apr 2005

Equal Citizenship At Ground Level: The Consequences Of Nonstate Action, Kenneth L. Karst

Duke Law Journal

No abstract provided.


Journal Staff Apr 2005

Journal Staff

Duke Law Journal

No abstract provided.


Conduit-Based Regulation Of Speech, Jim Chen Apr 2005

Conduit-Based Regulation Of Speech, Jim Chen

Duke Law Journal

Architecture is destiny. As much as information today determines the contemporary wealth of nations, the physical world retains its relevance. Architecture affects crime rates, arguably even collegiality among professors. The interplay between the physical and the ethereal likewise shapes the constitutional doctrine that facilitates the free flow of ideas. The structure of a communicative medium dictates its performance. Awareness of the structure of information markets improves the calibration of intellectual property and refines legal responses to potential electronic bottlenecks. This Article takes the next logical step: revealing the deep doctrinal structure of legal efforts to influence the design and maintenance …


The Political Question Doctrine: Suggested Criteria, Jesse H. Choper Apr 2005

The Political Question Doctrine: Suggested Criteria, Jesse H. Choper

Duke Law Journal

Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed-textual commitment-is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these-structural issues: federalism and separation of powers-has been advanced and developed …


“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps Apr 2005

“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps

Duke Law Journal

No abstract provided.


Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla Apr 2005

Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla

Duke Law Journal

No abstract provided.


Impeachment: Advice And Dissent, Susan Low Bloch Apr 2005

Impeachment: Advice And Dissent, Susan Low Bloch

Duke Law Journal

No abstract provided.


Polygamy As A Red Herring In The Same-Sex Marriage Debate, Ruth K. Khalsa Apr 2005

Polygamy As A Red Herring In The Same-Sex Marriage Debate, Ruth K. Khalsa

Duke Law Journal

No abstract provided.


The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins Apr 2005

The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins

Duke Law Journal

No abstract provided.


Protecting Employer Investment In Training: Noncompetes Vs. Repayment Agreements, Brandon S. Long Mar 2005

Protecting Employer Investment In Training: Noncompetes Vs. Repayment Agreements, Brandon S. Long

Duke Law Journal

No abstract provided.


Institutional Settlement In A Globalizing Judicial System, Ernest A. Young Mar 2005

Institutional Settlement In A Globalizing Judicial System, Ernest A. Young

Duke Law Journal

This article argues that the field of "Federal Courts" scholarship ought to expand to consider the relations not just between state and federal courts, but also between domestic courts and judicial institutions operating at the international level. Both relationships raise similar sorts of "interjurisdictional" problems-issues of standards of review, abstention, procedural defaults, and the like. Moreover, the study of supranational courts would benefit from the Legal Process jurisprudence that dominates the field of domestic Federal Courts law. In particular, I emphasize Henry Hart and Al Sacks' notion of "institutional settlement," which holds that decisions should be allocated to particular institutions …


Journal Staff Mar 2005

Journal Staff

Duke Law Journal

No abstract provided.