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Articles 1 - 30 of 39
Full-Text Articles in Law
Standing Up To Legislative Bullies: Separation Of Powers, State Courts And Educational Rights, Sonja Ralston Elder
Standing Up To Legislative Bullies: Separation Of Powers, State Courts And Educational Rights, Sonja Ralston Elder
Duke Law Journal
The separation of powers doctrine creates a strong presumption in favor of judicial deference to legislative policy determinations. This doctrine was developed for federal courts, however, and does not apply with identical force to state courts enforcing state constitutional rights. This Note examines rationales for the separation of powers doctrine and their potential application to state courts. After concluding that deference should be more limited in state courts, it then applies this conclusion to educational rights, which are frequently at risk due to political market failures. By examining case studies of constitutionally based education litigation in seven states, this Note …
Unionizing Ncaa Division I Athletics: A Viable Solution?, Rohith A. Parasuraman
Unionizing Ncaa Division I Athletics: A Viable Solution?, Rohith A. Parasuraman
Duke Law Journal
This Note considers whether college athletes-specifically Division I football and men's basketball players-can utilize the protections of the National Labor Relations Act to form unions. The Note examines the history of the National Collegiate Athletic Association, considers whether National Labor Relations Board jurisprudence allows the application of the NLRA to college athletics, and evaluates the potential consequences of the NLRB certifying a union of college athletes. The Note argues that the NLRB should not allow college athletes to unionize, but should instead let Congress decide whether college athletes are "employees" under the NLRA, and, if so, how they should be …
The Grand Bargain: Revitalizing Labor Through Nlra Reform And Radical Workplace Relations, Michael M. Oswalt
The Grand Bargain: Revitalizing Labor Through Nlra Reform And Radical Workplace Relations, Michael M. Oswalt
Duke Law Journal
No abstract provided.
The Legal Ethics Of Pediatric Research, Doriane Lambelet Coleman
The Legal Ethics Of Pediatric Research, Doriane Lambelet Coleman
Duke Law Journal
Since the mid- to late 1990s, the scientific and medical research community has sought to increase its access to healthy children for research protocols that involve harm or a risk of harm. This move reverses longstanding policy within that community generally to exclude healthy children from such protocols on the grounds that the research as to them is non-therapeutic, that they are particularly vulnerable to research-related abuses, and that they are unable themselves to give informed consent to their participation. The research community's new posture has been supported by prominent pediatric bioethicists who have argued that unless healthy children are …
Judicial Discretion And The Bankruptcy Abuse Prevention Act, Lauren E. Tribble
Judicial Discretion And The Bankruptcy Abuse Prevention Act, Lauren E. Tribble
Duke Law Journal
Generally, Chapter 7 bankruptcy is available to only the most desperate individual debtors who do not have the means to pay their creditors back over time. Before 2005, the Bankruptcy Code gave judges discretion to decide which debtors were eligible for Chapter 7. The Bankruptcy Abuse Prevention Act, however, curtails this discretion, mandating that judges use a rigid means test to determine when a debtor is allowed to file. This Note argues that it was a poor decision to foreclose judicial discretion with the means test. It then proposes a compromise between the means test approach and the old standard.
The Competing Paradigms Of Securities Regulation, James J. Park
The Competing Paradigms Of Securities Regulation, James J. Park
Duke Law Journal
Although the securities industry is primarily regulated by specific rules, it is also governed by general principles. When conduct violates a rule, the regulatory response is obvious-enforce the rule. The issue is more difficult when conduct does not violate a rule but violates a principle. A regulator can excuse the conduct on the ground that the law is unclear and prohibit the conduct going forward through rulemaking. Or, the regulator can punish the conduct through what I call a "principles-based" enforcement action. Since 2002, there has been a surge of principles-based enforcement actions, provoking criticism that regulators are engaging in …
The Costs Of A “Free” Education: The Impact Of Schaffer V. Weast And Arlington V. Murphy On Litigation Under The Idea, Kelly D. Thomason
The Costs Of A “Free” Education: The Impact Of Schaffer V. Weast And Arlington V. Murphy On Litigation Under The Idea, Kelly D. Thomason
Duke Law Journal
The Individuals with Disabilities Education Act guarantees to children with disabilities the right to receive a "free appropriate public education." This Note argues that the Supreme Court decisions Schaffer v. Weast and Arlington v. Murphy, cases dealing with procedural aspects of the Act, undermine a prior trend in IDEA litigation-a trend that had increased the substantive and procedural rights of children with disabilities. Considered together, the Schaffer and Arlington decisions ignore the realities of the litigation process and impose significant burdens on parents attempting to ensure that their children receive the free appropriate education to which they are entitled.
The Origins Of Article Iii “Arising Under” Jurisdiction, Anthony J. Bellia Jr.
The Origins Of Article Iii “Arising Under” Jurisdiction, Anthony J. Bellia Jr.
Duke Law Journal
Article III of the Constitution provides that the "judicial Power" of the United States extends to all cases "arising under" the Constitution, laws, and treaties of the United States. What the phrase "arising under" imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III "arising under" jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction-principles that animated early American jurisprudence regarding the scope of "arising under" jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood "arising …
Citing The Elite: The Burden Of Authorial Anxiety, Shane Tintle
Citing The Elite: The Burden Of Authorial Anxiety, Shane Tintle
Duke Law Journal
Academic legal writing is known for extensive citation. Generally, scholars who study citation practices are increasingly likely to link citation with authors' attempts to manage their impression. This Note offers an explanation of why authors of law review articles use citation as a means of managing impression. It combines a historical analysis that shows why excessive citation became conventional with a literary analysis that shows why excessive citation was unique in its ability to aid academics in substantively contributing to the bench and bar. It further shows how, because of the historic and literary significance of citation, a norm compelling …
Forgotten Racial Equality: Implicit Bias, Decisionmaking, And Misremembering, Justin D. Levinson
Forgotten Racial Equality: Implicit Bias, Decisionmaking, And Misremembering, Justin D. Levinson
Duke Law Journal
In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this phenomenon perpetuates racial bias in case outcomes. To test the hypothesis that judges and jurors misremember case facts in racially biased ways, I conducted an empirical study in which participants were asked to recall facts of stories they had read only minutes earlier. Results of the …
Reality Check: How Practical Circumstances Affect The Interpretation Of Depraved Indifference Murder, John C. Duffy
Reality Check: How Practical Circumstances Affect The Interpretation Of Depraved Indifference Murder, John C. Duffy
Duke Law Journal
This Note examines the treatment of depraved indifference murder across the thirty-six states that include the concept in their criminal codes. The Note identifies the broad range of practical circumstances that shape the development of depraved indifference murder statutes, and argues that it is not possible to develop a single interpretation that will function effectively across all jurisdictions. Finally, this Note identifies the three most important practical circumstances that affect the development of depraved indifference murder statutes.
Reining In The Minister Of Justice: Prosecutorial Oversight And The Superseder Power, Abby L. Dennis
Reining In The Minister Of Justice: Prosecutorial Oversight And The Superseder Power, Abby L. Dennis
Duke Law Journal
Virtually immune from judicial sanction, professional discipline, and civil liability, prosecutors enjoy limitless, unmonitored, and, for the most part, unreviewable power. This power and insulation from review invite abuse and public mistrust, shaking confidence in the criminal justice system. With the system in need of a means of curbing errant prosecutors and restoring public confidence, this Note explores a neglected mechanism of prosecutorial oversight-the superseder power-and argues for increased use of this oversight mechanism, coupled with explicit guidelines for its use and a public review process.
Black And White And Read All Over: Press Protection After Branzburg, Sean W. Kelly
Black And White And Read All Over: Press Protection After Branzburg, Sean W. Kelly
Duke Law Journal
In 1972, the Supreme Court handed the press an apparent resounding defeat in Branzburg v. Hayes, declaring that the Constitution provided reporters no privilege from testifying about their confidential sources. This Note uses previously unpublished materials from the Justices' personal files to illustrate the behind-the-scenes deliberations as the Court shifted in ideology from the propress posture established by Justice Hugo Black in the Pentagon Papers case to the anti-privilege position established by Justice Byron White one year later in Branzburg. It also examines the curious concurring opinion of Justice Lewis Powell in Branzburg and subsequent efforts to craft a qualified …
Harmonization Without Consensus: Critical Reflections On Drafting A Substantive Patent Law Treaty, Jerome H. Reichman, Rochelle Cooper Dreyfuss
Harmonization Without Consensus: Critical Reflections On Drafting A Substantive Patent Law Treaty, Jerome H. Reichman, Rochelle Cooper Dreyfuss
Duke Law Journal
In this Article, we contend that the World Intellectual Property Organization's proposed Substantive Patent Law Treaty (SPLT) is premature. Developing countries are struggling to adjust to the heightened standards of intellectual property protection required by the TRIPS Agreement of 1994. With TRIPS, at least, these countries obtained side payments (in the form of trade concessions) to offset the rising costs of knowledge products. A free-standing instrument, such as the SPLT, would shrink the remaining flexibilities in the TRIPS Agreement with no side payments and no concessions to the catch-up strategies of developing countries at different stages of technological advancement. More …
Deciding Death, Corinna Barrett Lain
Deciding Death, Corinna Barrett Lain
Duke Law Journal
When the Supreme Court is deciding death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment '' evolving standards of decency '' doctrine, but their criticism misses the mark. Majoritarian doctrine does not drive the Court's decisions in this area; majoritarian forces elsewhere do. To make my point, I first examine three sets of '' evolving standards '' death penalty decisions in which the Court implicitly or explicitly reversed itself, attacking the legal justification for the Court's change of position and offering an extralegal explanation for why those cases came out the …
Protecting The Least Of These: A New Approach To Child Pornography Pandering Provisions, Stephen T. Fairchild
Protecting The Least Of These: A New Approach To Child Pornography Pandering Provisions, Stephen T. Fairchild
Duke Law Journal
The pandering of child pornography - selling, distributing, or conveying the impression that one possesses sexually graphic images of children for sale or distribution - facilitates actual harm to children, such as molestation. Yet legislative attempts to curb pandering inevitably implicate concerns about panderers' First Amendment rights. This Note argues that in balancing the vulnerability of children against the power of the First Amendment, the law must shift to focus more on the subject of this grievous harm - children. This approach will appropriately extend protection to a subset of the population that is least able to protect itself.
A Measure Of Harmony: The Orchestration Of Rule 32(H) With The “Discordant Symphony” Of Booker, Leeann Rosnick
A Measure Of Harmony: The Orchestration Of Rule 32(H) With The “Discordant Symphony” Of Booker, Leeann Rosnick
Duke Law Journal
Sentencing in the post-Booker world presents a variety of challenges and uncertainties for the courts, Congress, and the general public. This Note examines one such challenge, considering the difficulties surrounding Federal Rule of Criminal Procedure 32(h) in light of Booker. The Note develops the history of both Rule 32(h) and the Booker decision, analyzes changes and suggested amendments to Rule 32(h), and concludes that the conflict between Rule 32(h) and Booker can be easily resolved with slight alterations to the language of Rule 32(h).
Per Se Reasonable Suspicion: Policy Authority To Stop Those Who Flee From Road Checkpoints, Shan Patel
Per Se Reasonable Suspicion: Policy Authority To Stop Those Who Flee From Road Checkpoints, Shan Patel
Duke Law Journal
No abstract provided.
In Appreciation, Sara Sun Beale, Stuart Minor Benjamin, George C. Christie, James D. Cox
In Appreciation, Sara Sun Beale, Stuart Minor Benjamin, George C. Christie, James D. Cox
Duke Law Journal
No abstract provided.
Beyond Food And Evil, Jim Chen
The Road Also Taken: Lessons From Organic Agriculture For Market- And Risk-Based Regulation, Donald T. Hornstein
The Road Also Taken: Lessons From Organic Agriculture For Market- And Risk-Based Regulation, Donald T. Hornstein
Duke Law Journal
No abstract provided.
Credit Where Credit Is Due: The Legal Treatment Of Early Greenhouse Gas Emissions Reductions, Nicholas Dimascio
Credit Where Credit Is Due: The Legal Treatment Of Early Greenhouse Gas Emissions Reductions, Nicholas Dimascio
Duke Law Journal
No abstract provided.
Fighting Childhood Obesity Through Performance-Based Regulation Of The Food Industry, Stephen D. Sugarman, Nirit Sandman
Fighting Childhood Obesity Through Performance-Based Regulation Of The Food Industry, Stephen D. Sugarman, Nirit Sandman
Duke Law Journal
That childhood obesity is an alarming public health problem is clear and widely appreciated. What is altogether unclear is what our society should do about it. Some people think the solution lies in using tort law to sue McDonald's, Coca-Cola, and other corporations. We reject that notion. Others believe that government should order specific changes in the behavior of food companies and school officials--and yet, there is little reason for confidence that these "command and control" strategies will make a difference. Instead, we propose "performance-based regulation" of the food industry. This is analogous to the approach our country is now …
The Competitive Food Conundrum: Can Government Regulations Improve School Food?, Ellen Fried, Michele Simon
The Competitive Food Conundrum: Can Government Regulations Improve School Food?, Ellen Fried, Michele Simon
Duke Law Journal
No abstract provided.
Another Hurdle To Habeas: The Streamlined Procedures Act, Michelle Hertz
Another Hurdle To Habeas: The Streamlined Procedures Act, Michelle Hertz
Duke Law Journal
No abstract provided.