Law Commons^™

Michigan V. Bryant: Defining The “Testimonial Statement”, Hsien-Ying Shine Chen

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

The Constitutional Right To Informational Privacy: Nasa V. Nelson, Russell T. Gorkin

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Land Rights And Socio-Economic Development Of Afro-Brazilian Communities, Noah Browne, Anne Dana, Katherine Shea

Duke Law Student Papers Series

Law students and recent graduates who spent the Spring 2010 semester studying the land rights of Afro-Brazilian communities have submitted their final report to community leaders and Brazilian government officials, institutions, and non-government organizations engaged in the issue.

Written under the supervision of Laurence R. Helfer, the Harry R. Chadwick, Sr. Professor of Law, the report contains insights gleaned from the students’ intense study and research, both at Duke Law and on the ground in Brazil. Along with Helfer, the students spent their 2010 Spring break in Brazil as part of the seminar. They met with members of quilombos -- …

Dna And Due Process, Brandon L. Garrett

Faculty Scholarship

The U.S. Supreme Court in District Attorney's Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not "constitutionalize the issue" by announcing an unqualified freestanding right, Chief Justice Roberts's majority opinion proceeded to carefully fashion an important, …

Laying Privileges Or Immunities To Rest: Mcdonald V. City Of Chicago, B. Aubrey Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

American Needle, Inc. V. Nfl: Professional Sports Leagues And “Single-Entity” Antitrust Exemption, M. Scott Leblanc

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Lewis V. City Of Chicago: Title Vii’S Limitations Period For Disparate Impact Charges, Kelsey Van Wart

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

How We Lost The High-Tech War Of 2020: A Warning From The Future, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

All Rise - Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

United States V. Comstock: Justifying The Civil Commitment Of Sexually Dangerous Offenders, Halerie Mahan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Briscoe V. Virginia: Reexamining The Scope Of Melendez-Diaz, Caroline Mix

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

The Power Of Posner: A Study Of Prestige And Influence In The Federal Judiciary, Ryan P. Thompson, Christopher C. Mccurdy

Duke Law Student Papers Series

Some judges have a disproportionate influence over the American judiciary; existing research has shown Judge Richard Posner is one of those judges. Our goal was to identify and determine how Judge Posner’s influence has changed over time. To measure and track his influence, we collected and compared citation and invocation data from three distinct time frames. While these measurements are imperfect, they can help illustrate the level of influence and prestige Judge Posner enjoys. The existing literature led us to expect Judge Posner’s early citation rates to be low. After several years on the bench, the citation rates for each …

The Year In Review 2009: Selected Cases From The Alaska Court Of Appeals, The Alaska Supreme Court, The United States Court Of Appeals For The Ninth Circuit, And The United States Supreme Court

Alaska Law Review Year in Review

No abstract provided.

From Judge To Dean: Reflections On The Bench And The Academy, David F. Levi

Faculty Scholarship

In July of 2007, having served nearly seventeen years as a United States District Judge with chambers in Sacramento, California, I moved to Durham, North Carolina, to become the fourteenth dean of the Duke University Law School. I would concede that in the grand scheme of things such a transition must be deemed unremarkable. Lawyers have become soldiers, presidents, artists, and inn keepers. Judges have left the bench to do much the same. Nonetheless, in the somewhat closed worlds of the federal bench and the legal academy, at a time when the two worlds have seemed to drift apart, such …

Pursuing Geoengineering For Atmospheric Restoration, James Salzman, Robert B. Jackson

Faculty Scholarship

Geoengineering is fraught with problems, but research on three approaches could lead to the greatest climate benefits with the smallest chance of unintentional environmental harm. The authors propose a model for thinking about geoengineering based on the concept of restoration, suggesting the term “atmospheric restoration.” Under this model geoengineering efforts are prioritized based on three principles: to treat the cause of the disease itself, to reduce the chance of harm, and to prioritize activities with the greatest chance of public acceptance.

Based on these principles, the authors propose three forms of geoengineering that could provide the greatest climate benefits with …

The Market Reaction To Legal Shocks And Their Antidotes: Lessons From The Sovereign Debt Market, Michael Bradley, James D. Cox, Mitu Gulati

Faculty Scholarship

In October 2000 a hedge fund holding an unpaid debt claim won an enormous victory against the debtor, the Republic of Peru, through an opportunistic interpretation of the common pari passu clause by a Brussels court. This development was met by charges from policy makers and practitioners that the court's decision (its novel interpretation of the pari passu clause) would lead to a dramatic increase in the risks of holdout litigation faced by sovereign debtors. Over the ensuing years, multiple reform solutions were proposed including the revision of certain contractual terms, the filing of amicus briefs in a key case, …

Applied Legal History: Demystifying The Doctrine Of Odious Debts, Sarah Ludington, Mitu Gulati, Alfred L. Brophy

Faculty Scholarship

"Odious debts" have been the subject of debate in academic, activist, and policymaking circles in recent years. The term refers to the debts of a nation that a despotic leader incurs against the interests of the populace. When the despot is overthrown, the new government — understandably — does not wish to repay creditors who helped prop up the despot. One argument has focused on whether customary international law supports a "doctrine" of odious debts that justifies the nonpayment of sovereign debts when three conditions are met: (1) the debts were incurred by a despotic ruler (without the consent of …

International Movement To Deter Corruption: Should China Join?, Paul D. Carrington

Faculty Scholarship

Global concerns over the corruption of weak governments by firms engaged in transnational business are the source of an international movement that emerged in 1997. Special concern is presently directed at the weakness of enforcement of laws enacted in recent times to deter corrupt business practices in international trade that were enacted in response to that movement. One cause of weakness in law enforcement is the failure of China to share actively in those concerns and the efforts to address them. This essay will briefly record steps taken in other nations to address the concerns and the limited effectiveness of …

Does Lawfare Need An Apologia?, Charles J. Dunlap Jr.

Faculty Scholarship

Few concepts in international law are more controversial than lawfare. This essay contends that lawfare is best appreciated in the context of its original meaning as ideologically neutral description of how law might be used in armed conflict. It emphasizes that although law may be manipulated by some belligerents for nefarious purposes, it can still serve to limit human suffering in war. In discussing the current state of the concept of lawfare, the essay reviews several contentious areas, and recognizes the concerns of critics. The paper concludes that lawfare is still a useful term, and is optimized when it is …

Of Punitive Damages, Tax Deductions, And Tax-Aware Juries: A Response To Polsky And Markel, Lawrence A. Zelenak

Faculty Scholarship

In “Taxing Punitive Damages,” Gregg D. Polsky and Dan Markel argue that defendants paying punitive damages are under-punished relative to juries’ intentions, because tax-unaware juries do not take into account the fact that the deductibility of punitive damages significantly reduces defendants’ after-tax costs. They note that the Obama administration has proposed addressing the under-punishment problem by amending the Internal Revenue Code to disallow deductions for punitive damages (and for settlements paid on account of punitive damage claims). They conclude, however, that the proposal would be ineffective because defendants could avoid its impact by disguising nondeductible punitive damage settlements as deductible …

Rethinking Reliance On Eyewitness Confidence, Neil Vidmar, James E. Coleman Jr., Theresa A. Newman

Faculty Scholarship

No abstract provided.

Further Reflections On Not Being “Not An Originalist”, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

The Consequences Of Congress’S Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Faculty Scholarship

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

Brief Of Amici Curiae Of Professors Of History, Political Science, And Law In Support Of Petitioner, Kerry Abrams

Faculty Scholarship

No abstract provided.

Bobbleheads In Yale's Rare Book Collection!, Femi Cadmus

Faculty Scholarship

No abstract provided.

The Internationalization Of Law: The “Complex” Case Of Bank Regulation, Lawrence G. Baxter

Faculty Scholarship

International bank regulation has ramped to prominence over the past two decades, as nations and the global economy have lurched from one financial crisis to another. The current global financial crisis has brought unprecedented general attention to the subject. It is possible that we will witness fundamental changes in the way nations cooperate in the regulation of their financial institutions. Major reform efforts are underway. Yet international bank regulation has unusual characteristics and does not fit easily within the traditional framework of international law. The emerging system is also extremely fluid and complex-matching an extremely fluid and complex system of …

Fiduciaries With Conflicting Obligations, Steven L. Schwarcz

Faculty Scholarship

This Article examines the dilemma of a fiduciary acting for parties who, as among themselves, have conflicting commercial interests - an inquiry fundamentally different from that of the traditional study of conflicts between fiduciaries and their beneficiaries. Existing legal principles do not fully capture this dilemma because agency law focuses primarily on an agent’s duty to a given principal, not on conflicts among principals; trust law focuses primarily on gratuitous transfers; and commercial law generally addresses arm’s length, not fiduciary, relationships. The dilemma has become critically important, however, as defaults increase in the multitude of conflicting securities (e.g., classes of …

The Durham Statement On Open Access One Year Later: Preservation And Access To Legal Scholarship, Richard A. Danner

Faculty Scholarship

The Durham Statement on Open Access to Legal Scholarship calls for US law schools to stop publishing their journals in print format and to rely instead on electronic publication with a commitment to keep the electronic versions available in “stable, open, digital formats.” The Statement asks for two things: 1) open access publication of law school-published journals; and 2) an end to print publication of law journals. This paper was written as background for a July 2010 American Association of Law Libraries conference program on the preservation implications of the call to end print publication.

Discovery From Non-Parties (Third-Party Discovery) In International Arbitration, Charles O. Verrill Jr.

Faculty Scholarship

International arbitration rules and many arbitration laws usually provide procedures that permit tribunals to order parties to disclose documents and other materials to the other parties.1 More complex are the rules that determine opportunities to obtain discovery from persons that are not party to the arbitration (third-party discovery). This article will review third-party discovery under the Federal Arbitration Act (FAA) and the provisions of the US Code s.1782 that authorise US courts to act in aid of actions before foreign tribunals. Section 1782 has unique interest at this time because it figured prominently in the EU antitrust investigation of Intel …