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Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document, which is designed to help judges and legal practitioners understand and efficiently navigate complex …

Kansas V. Nebraska & Colorado: Keeping Equity Afloat In The Republican River Dispute, Charles Punia

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kansas v. Nebraska & Colorado. The Supreme Court will have the opportunity to resolve a decades-old conflict over water rights in the Republican River which flows through Colorado, Nebraska, and Kansas. In this case of original jurisdiction, the Court will determine both whether Nebraska violated a 60-year old compact concerning water rights, and what the appropriate remedy should be for that violation.

Charting A New Course: Metal-Tech V. Uzbekistan And The Treatment Of Corruption In Investment Arbitration, Michael A. Losco

Duke Law Journal Online

This Essay examines Metal-Tech’s treatment of corruption, building upon the analytical structure set forth in this author’s 2014 Note, Streamlining the Corruption Defense. That Note’s framework for analyzing ICSID awards involving allegations of corruption proves useful for examining the Metal-Tech award. Implementing that framework, this Essay concludes that the standard of proof applied by the tribunal represents a departure from prior ICSID jurisprudence. It also questions whether an application of comparative fault principles could have achieved a more just result. Finally, this Essay argues that the tribunal could have resolved some lingering questions by staying the proceedings pending …

Pragmatic Administrative Law And Tax Exceptionalism, Richard Murphy

Duke Law Journal Online

This Essay responds to the 2014 Duke Law Journal Administrative Law Symposium. Its principal contention is that courts and other commentators should give due weight to the history and virtues of the evolution of administrative law in the United States—and consider embracing the pragmatism and flexibility that it enables—in applying general principles of administrative law in the tax context.

Which Institution Should Determine Whether An Agency’S Explanation Of A Tax Decision Is Adequate?: A Response To Steve Johnson, Richard J. Pierce Jr

Duke Law Journal Online

This Essay responds to Professor Steve Johnson’s Article for the 2014 Duke Law Journal Administrative Law Symposium, Reasoned Explanation and IRS Adjudication. I first describe the ways in which courts have added burdensome procedures that are not required by the APA for the notice and comment process. Next, I explain why the Office of Information and Regulatory Affairs (OIRA) is better than courts at reviewing the adequacy of agency reasons for issuing a rule. Finally, I explain how courts can eliminate judicial review for the adequacy of the reasons IRS gives for issuing a rule by applying the traditional …

Reworking The Unworkable: Halliburton Ii And The Court's Reexamination Of Fraud On The Market, Mariana Estévez

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews the upcoming Supreme Court case Erica P. John Fund, Inc. v. Halliburton Co. in which the Court is called upon to reexamine the controversial fraud-on-the-market rule. This rule, a cornerstone of securities litigation for the past two decades, allows the court to presume that securities fraud plaintiffs relied on a misstatement or omission if the security affected is traded on an efficient market. The subject of intense debate for years, this commentary reviews and analyzes precedent and predicts the case's likely outcome--that the Court will not expressly overrule the fraud-on-the-market rule, but will nevertheless modify it to …

Bond V. United States. Deciphering Missouri V. Holland And The Scope Of Congress's Powers When Implementing A Non-Self-Executing Treaty, Stephanie Peral

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bond v. United States. What started as an act of revenge by a jealous wife will require the Supreme Court to examine a ninety-year old precedent concerning the extent of Congress's powers when acting pursuant to a treaty and whether a valid treaty allows Congress to act without being limited by the Article I enumerated powers.

What's Money Got To Do With It: Robers V. United States And Collateral Under The Mandatory Victims Restitution Act Of 1996, Tori M. Bennette

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Robers v. United States. The Supreme Court will have the opportunity to resolve a major circuit split concerning how to value restitution owed to victims of mortgage lending fraud. Specifically, the court will determine whether the value of collateral mortgage property at the time of foreclosure is used to offset how much restitution fraudulent borrowers owe their victims, or whether the value of only the actual cash proceeds received from foreclosure of the property is used to offset restitution.

What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat

Duke Law Journal Online

This Essay provides an empirical account of attorney fee awards over the last decade of patent litigation. Given the current attention in legislative proposals and on the Supreme Court’s docket to more liberal fee shifting as a check on abusive patent litigation, a fuller descriptive understanding of the current regime is of utmost importance to forming sound patent-litigation policy. Following a brief overview of judicial experience in patent cases and trends in patent-case filing, this study presents analysis of over 200 attorney fee award orders from 2003–2013.

A Tradition Of Sovereignty: Examining Tribal Sovereign Immunity In Bay Mills Indian Community V. Michigan, Meredith L. Jewitt

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bay Mills Indian Community v. Michigan, in which the Court may decide whether the doctrine of Tribal Sovereign Immunity prohibits Michigan's attempt to enjoin Indian gaming in the state or whether Congress expressly allowed the suit when passing the Indian Gaming Regulatory Act.

Up In The Air: Lawson V. Fmr Llc & The Scope Of Sarbanes-Oxley Whistleblower Protection, Ryan Mccarthy

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Lawson v. FMR LCC, in which the Court will consider whether Sarbanes-Oxley extends whistleblower protection to employees of the private contractors and subcontractors of public companies.

A Bridge Too Far: The Limits Of The Political Process Doctrine In Schuette V. Coalition To Defend Affirmative Action, Christopher E. D'Alessio

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Schuette v. Coalition to Defend Affirmative Action, in which the Court will consider whether Michigan violated the Equal Protection Clause of the Fourteenth Amendment by amending its constitution to prohibit race-based preferential treatment in public-university admissions decisions.

In Connection With What?: Chadbourne & Parke Llp V. Troice And The Applicability Of The Securities Litigation Uniform Standards Act, John W. Messick

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Chadbourne & Parke LLP v. Troice, in which the Court will clarify whether the Securities Litigation Uniform Standards Act precludes a state law class action alleging a scheme of fraud involving misrepresentations about transactions in covered-securities.

Proskauer Rose Llp V. Troice: Deciphering The Proper Scope Of Slusa, Sriram Giridharan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kaley v. United States, in which the Court may decide whether a defendant who needs potentially forfeitable assets to retain counsel of choice is entitled, under the Due Process Clause, to a hearing to challenge the grand jury's finding of probable cause.

The Year In Review 2013: Selected Cases From The Alaska Supreme Court, The Alaska Court Of Appeals, The United States Supreme Court, The United States District Court For The District Of Alaska, And The United States Court Of Appeals For The Ninth Circuit

Alaska Law Review Year in Review

No abstract provided.

International Courts As Agents Of Legal Change: Evidence From Lgbt Rights In Europe, Laurence R. Helfer, Erik Voeten

Faculty Scholarship

Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? The authors develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. The authors examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual and transgender (LGBT) issues by creating a new dataset that matches these rulings with laws in all Council of Europe (CoE) member states. The …

A People’S History Of Collective Action Clauses, Mark C. Weidemaier, Mitu Gulati

Faculty Scholarship

For two decades, collective action clauses (CACs) have been part of the official-sector response to sovereign debt crisis, justified by claims that these clauses can help prevent bailouts and shift the burden of restructuring onto the private sector. Reform efforts in the 1990s and 2000s focused on CACs. So do efforts in the Eurozone today. CACs have even been suggested as the cure for the US municipal bond market. But bonds without CACs are still issued in major markets, so reformers feel obliged to explain why they know better. Over time, a narrative has emerged to justify pro-CAC reforms. It …

The “Constitution In Exile” As A Problem For Legal Theory, Stephen E. Sachs

Faculty Scholarship

How does one defend a constitutional theory that’s out of the mainstream? Critics of originalism, for example, have described it as a nefarious “Constitution in Exile,” a plot to impose abandoned rules on the unsuspecting public. This framing is largely mythical, but it raises a serious objection. If a theory asks us to change our legal practices, leaving important questions to academics or historians, how can it be a theory of our law? If law is a matter of social convention, how can there be conventions that hardly anybody knows about? How is a constitution in exile even possible?

This …

Liability And Admission Of Wrongdoing In Public Enforcement Of Law, Samuel W. Buell

Faculty Scholarship

Some judges and scholars have questioned the social value of the standard form in which the Securities and Exchange Commission settles its corporate enforcement actions, including the agency’s use of essentially unreviewed consent decrees that include no admission of liability or wrongdoing. This essay for a symposium on SEC enforcement provides an analysis of the deterrent effects of the three main components of settlements in public enforcement of law: liability, admission, and remedy. The conclusions are the following. All three components have beneficial deterrent effects. Cost considerations nonetheless justify some settlements that dispense with liability or admission, or even both. …

Rollover Risk: Ideating A U.S. Debt Default, Steven L. Schwarcz

Faculty Scholarship

This article examines how a U.S. debt default might occur, how it could be avoided, its potential consequences if not avoided, and how those consequences could be mitigated. To that end, the article differentiates defaults caused by insolvency from defaults caused by illiquidity. The latter, which are potentiated by rollover risk (the risk that the government will be temporarily unable to borrow sufficient funds to repay its maturing debt), are not only plausible but have occurred in the past. Moreover, the ongoing controversy over the federal debt ceiling and the rise of the shadow-banking system make these types of defaults …

An Exploration Of “Non-Economic” Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

Faculty Scholarship

Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of …

Differentiating Among International Investment Disputes, Julie A. Maupin

Faculty Scholarship

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …

Advancing The Empirical Research On Lobbying, John M. De Figueiredo, Brian Kelleher Richter

Faculty Scholarship

This essay identifies the empirical facts about lobbying which are generally agreed upon in the literature. It then discusses challenges to empirical research in lobbying and provides examples of empirical methods that can be employed to overcome these challenges—with an emphasis on statistical measurement, identification, and casual inference. The essay then discusses the advantages, disadvantages, and effective use of the main types of data available for research in lobbying. It closes by discussing a number of open questions for researchers in the field and avenues for future work to advance the empirical research in lobbying.

Are Individuals Fickle-Minded?, Mathew D. Mccubbins, Mark Turner

Faculty Scholarship

Game theory has been used to model large-scale social events — such as constitutional law, democratic stability, standard setting, gender roles, social movements, communication, markets, the selection of officials by means of elections, coalition formation, resource allocation, distribution of goods, and war — as the aggregate result of individual choices in interdependent decision-making. Game theory in this way assumes methodological individualism. The widespread observation that game theory predictions do not in general match observation has led to many attempts to repair game theory by creating behavioral game theory, which adds corrective terms to the game theoretic predictions in the hope …

The Development And Evolution Of The U.S. Law Of Corporate Criminal Liability, Sara Sun Beale

Faculty Scholarship

In the United States, corporate criminal liability developed in response to the industrial revolution and the rise in the scope and importance of corporate activities. This article focuses principally on federal law, which bases corporate criminal liability on the respondeat superior doctrine developed in tort law. In the federal system, the formative period for the doctrine of corporate criminal liability was the early Twentieth Century, when Congress dramatically expanded the reach of federal law, responding to the unprecedented concentration of economic power in corporations and combinations of business concerns as well as new hazards to public health and safety. Both …

The Puzzling Persistence Of Dual Federalism, Ernest A. Young

Faculty Scholarship

This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …

Is There A Federal Definitions Power?, Ernest A. Young

Faculty Scholarship

Although the Supreme Court decided United States v. Windsor on equal protection grounds, that case also raised important and recurring questions about federal power. In particular, defenders of the Defense of Marriage Act (DOMA) argued that Congress may always define the terms used in federal statutes, even if its definition concerns a matter reserved to the States. As the DOMA illustrates, federal definitions concerning reserved matters that depart from state law may impose significant burdens on state governments and private citizens alike. This Article argues that there is no general, freestanding federal definitions power and that sometimes—as with marriage—federal law …

Derivatives And Collateral: Balancing Remedies And Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

The Failed Promise Of User Fees: Empirical Evidence From The United States Patent And Trademark Office, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

In an attempt to shed light on the impact of user-fee financing structures on the behavior of administrative agencies, we explore the relationship between the funding structure of the Patent and Trademark Office (PTO) and its examination practices. We suggest that the PTO’s reliance on prior grantees to subsidize current applicants exposes the Agency to a risk that its obligatory costs will surpass incoming fee collections. When such risks materialize, we hypothesize, and thereafter document, that the PTO will restore financial balance by extending preferential examination treatment—i.e., higher granting propensities and/or shorter wait times—to some technologies over others.