Law Commons^™

Journal Staff

Duke Law Journal

No abstract provided.

James D. Cox: The Shareholders’ Best Advocate, Randall S. Thomas, Harwell Wells

Duke Law Journal

This Article explores the historical development of the academic analysis of corporate law over the past forty years through the scholarship of one of its most influential commentators, Professor James D. Cox of the Duke University School of Law. It traces the ways in which corporate law scholarship changed from the 1970s to the present, including the rise of economic theory and empirical work in the study of corporate law. It shows how Professor Cox’s early scholarship shaped and challenged economic orthodoxy, while his later work used empirical analysis to help corporate law become a more dynamic and richer field. …

How Understanding The Nature Of Corporate Norms Can Prevent Their Destruction By Settlements, James D. Cox

Duke Law Journal

Scholars have long celebrated the importance of norms in corporate law. Indeed, norms likely guide corporate actors more than the omnipresent threat of shareholder suits. This Article divides corporate norms into two distinct groups: aspirational norms and arbiter norms. Aspirational norms announce socially desirable objectives for corporate managers and encourage certain disclosure practices; arbiter norms identify distinct transactions for closer scrutiny by an independent body, the court. This Article shows that even though aspirational norms and arbiter norms serve different objectives, they share a common characteristic—overbreadth. This feature exists whether the norm is set forth by statute or found in …

The Role Of Blue Sky Laws After Nsmia And The Jobs Act, Rutheford B. Campbell Jr.

Duke Law Journal

State securities laws—in particular, state laws requiring that securities offered by issuers be registered with the states—have been an impediment to the efficient movement of capital to its highest and best use. The pernicious effects of these laws—generally referred to as “blue sky laws”—have been felt most acutely by small businesses, a vital component of our national economy.

It has been difficult to remedy this problem. States and state regulators have been tenacious in protecting their registration authority from federal preemption. The Securities and Exchange Commission, on the other hand, has been reluctant to advocate for preemption and unwilling to …

Regulating Public Offerings Of Truly New Securities: First Principles, Merritt B. Fox

Duke Law Journal

The public offering of truly new securities involves purchases by investors in sufficient number and in small enough blocks that each purchaser’s shares can reasonably be expected to be freely tradable in a secondary market that did not exist before the offering. Increasing the ability of small and medium-sized enterprises (SMEs) to make such offerings has been the subject of much recent discussion.

At the time that a firm initially contemplates such an offering, unusually large information asymmetries exist between its insiders and potential investors. These can lead to severe adverse-selection problems that prevent a substantial portion of worthy offerings …

Detecting Good Public Policy Rationales For The American Rule: A Response To The Ill-Conceived Calls For “Loser Pays” Rules, Peter Karsten, Oliver Bateman

Duke Law Journal

Several critiques have been leveled at the American Rule—that is, the rule that each party to a lawsuit should pay for its attorneys. Some claim that there were no principled justifications offered by the nineteenth-century jurists who authored the opinions marking the rule’s origins. Instead, these jurists only cited their states’ “taxable costs” statutes. Others claim that the American Rule—as well as its close relative, the contingency-fee contract—contributed to a “liability explosion” in that century. This Article offers a comprehensive examination of the origins of, rationales given for, and impact of the American Rule; then it evaluates instances in which …

Friends With Benefits: Redefining Personal Gain In Insider Trading Under Salman V. United States, Wendy R. Becker

Duke Journal of Constitutional Law & Public Policy Sidebar

Since Congress has not enacted a statute outlawing insider trading, or the trading of securities based on non-public information, outright, courts have struggled to define what constitutes insider trading. The Supreme Court held that a fiduciary duty was breached when the insider privy to the information receives a “personal benefit.” This Commentary analyzes a pending Supreme Court case, Salman v. United States, which addresses whether pecuniary gain is needed to constitute the personal benefit necessary for insider trading, or if certain relationships are enough for the tip to inherently create a personal benefit for the insider. The author argues …

The Right To Privacy And The Right To Use The Bathroom Consistent With One’S Gender Identity, Vincent J. Samar

Duke Journal of Gender Law & Policy

No abstract provided.

Obergefell’S Legacy, Mark P. Strasser

Duke Journal of Gender Law & Policy

No abstract provided.

Journal Staff

Duke Journal of Gender Law & Policy

No abstract provided.

Celluloid And Silicon Ceilings: Underinvestment In Women Directors And Entrepreneurs, Rose Mckinley

Duke Journal of Gender Law & Policy

No abstract provided.

Transgender Bathroom Rights, Catherine Jean Archibald

Duke Journal of Gender Law & Policy

After winning the right to same-sex marriage in all 50 states in June, 2015, the LGBT community is once again battling in court for its rights, this time for the right of transgender people to use bathrooms and locker rooms that match their gender identity. In its “Dear Colleague Letter on Transgender Students,” the Federal Government has recently interpreted federal law as requiring that transgender students be permitted to use bathroom and locker rooms that correspond with their gender identity in schools receiving federal funding. In two separate lawsuits, 20 states have challenged the legitimacy of this interpretation.

This Article …

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

Climate Disobedience, Maxine Burkett

Duke Environmental Law & Policy Forum

In sharp contrast to the flurry of legal and policy-oriented efforts of years past, climate activists today employ protest and nonviolent civil disobedience to advance their agenda for rapid and ambitious mitigation and adaptation. In so doing, activists make explicit references to the storied past of defining social movements in American history—notably the anti-slavery movements of the 19th century and the civil rights movement of the 20th—and draw direct comparison to the moral failure igniting the relevant social movements. This article examines a topic largely ignored by the legal academy, the emerging climate movement, to assess the usefulness of its …

The Constitution V. The Convention: The Evolution Of The Court-Mandated Right To Counsel In The United States And Europe, Sara Sun Beale, Richard E. Myers Ii

Duke Journal of Comparative & International Law

No abstract provided.

Reframing Kurtz’S Painting: Colonial Legacies And Minority Rights In Ethnically Divided Societies, Tom Brower

Duke Journal of Comparative & International Law

Minority rights constitute some of the most normatively and economically important human rights. Although the political science and legal literatures have proffered a number of constitutional and institutional design solutions to address the protection of minority rights, these solutions are characterized by a noticeable neglect of, and lack of sensitivity to, historical processes. This Article addresses that gap in the literature by developing a causal argument that explains diverging practices of minority rights protections as functions of colonial governments’ variegated institutional practices with respect to particular ethnic groups. Specifically, this Article argues that in instances where colonial governments politicize and …

The Parched Earth Of Cooperation: How To Solve The Tragedy Of The Commons In International Environmental Governance, Bryan H. Druzin

Duke Journal of Comparative & International Law

This article proposes a way to strengthen international environmental agreements, such as the Paris Agreement and the Kyoto Protocol. Multilateral environmental agreements such as these are extremely fragile. At the heart of the problem is what is known as the tragedy of the commons—a unique dynamic that viciously sabotages cooperation. The cause of this tragedy is that no one can trust that other actors will conserve the common resource, which triggers a race to the bottom—a race to deplete. Global warming and our inability to halt it is perhaps the ultimate example of a tragedy of the commons on a …

How Far Have We Come And Where Do We Go From Here? A Culturally Sensitive Strategy For Judicial Independence In Myanmar, John M. Epling

Duke Journal of Comparative & International Law

No abstract provided.

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Genetically Engineered Crops: How The Courts Dismantled The Doctrine Of Substantial Equivalence, Trevor Findley

Duke Environmental Law & Policy Forum

No abstract provided.

Volume 100, Number 4 (Winter 2016)

Judicature

No abstract provided.

An American Reset – Safe Water & A Workable Model Of Federalism, Cara Cunningham Warren

Duke Environmental Law & Policy Forum

In 2015, at least 3.9 million Americans were exposed to lead in their drinking water at legally unacceptable levels. An additional 18 million Americans were at risk because their water systems were not in compliance with federal rules designed to detect the presence of lead contamination and to ameliorate its impact. What’s more, in 82 percent of the cases where the violation related to a health standard, no formal state or federal enforcement action was taken.

These startling statistics indicate that the Flint Water Crisis (“Flint Water”) is not an isolated event. In fact, it is a case study that …

The Trans-Pacific Partnership And The Construction Of A Syncretic Animal Welfare Norm, Andrew Jensen Kerr

Duke Environmental Law & Policy Forum

No abstract provided.

A River Basin Runs Through It: Evolving Understandings Of Equitable Apportionment And Water Rights At The Florida-Georgia Line, Michael Munoz

Duke Environmental Law & Policy Forum

No abstract provided.

The Choice Between Right And Easy: Pena-Rodriguez V. Colorado And The Necessity Of A Racial Bias Exception To Rule 606(B), Kevin Zhao

Duke Journal of Constitutional Law & Public Policy Sidebar

Traditionally, under Rule 606(b) of the Federal Rules of Evidence, jurors are barred from testifying towards matters within juror deliberations. However, many jurisdictions in the United States have adopted an exception to this rule for racial prejudice. That is, if a juror comes forward post-verdict to testify that another juror made racially charged comments within the jury room, then the verdict may be overturned. The Supreme Court will address this issue in its upcoming decision in Pena-Rodriguez v. Colorado. This commentary will argue that a racial bias exception is necessary to protect defendants' rights to a fair trial and …

Lee V. Macon County Board Of Education: The Possibilities Of Federal Enforcement Of Equal Educational Opportunity, Brian K. Landsberg

Duke Journal of Constitutional Law & Public Policy

Lee v. Macon County Board of Education shows the evolution of the role of the three branches in enforcing the equal protection clause in public education in Alabama. All three branches initially acquiesced in the separate but equal doctrine. The executive and the judicial branches rejected the doctrine in Brown, but the legislative branch remained silent until 1964. Despite Congress’ failure to authorize a federal role in desegregation, the Department of Justice was an active participant in Lee beginning in 1963. When Congress finally did act in 1964 to authorize such suits, it encumbered the authorization with severe limitations. Congress …

From Edward To Eric Garner And Beyond: The Importance Of Constitutional Limitations On Lethal Use Of Force In Police Reform, Nancy C. Marcus

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Treatment As An Individual And The Priority Of Persons Over Groups In Antidiscrimination Law, Patrick S. Shin

Duke Journal of Constitutional Law & Public Policy

The Supreme Court has said that the Equal Protection Clause of the Constitution and Title VII’s prohibition of discrimination require that all persons be treated as individuals and that the laws operate primarily to protect “persons, not groups.” This article shows that the legal requirement of individual treatment has two distinct components: a rule invalidating inferences about persons based on their membership in protected groups and a rule prohibiting disparate treatment for the sake of group interests or intergroup equality. The first rule is rooted in moral principles of respect for individual autonomy. The second rule is a principle that …

Undocumented Migrants As New (And Peaceful) American Revolutionaries, Daniel I. Morales

Duke Journal of Constitutional Law & Public Policy

This essay situates undocumented migrants in the history of the American revolutionary period. The lawbreaking of both groups produced constructive legal and social change. For example, the masses of American revolutionaries and many of their leading men fought to rid the colonies of hereditary aristocracy. Colonists had come to cherish the proto-meritocracy that had bloomed on colonial shores and rankled at local evidence of aristocratic privilege, like the Crown’s grant of landed estates to absentee English aristocrats.

Today’s equivalent hereditary aristocracy is the citizenry of wealthy democracies like the United States. Hereditary citizens use immigration restrictions to reserve the wealth …

Are Black Parents Locked Out Of Challenging Disproportionately Low Charter School Board Representation? Assessing The Role Of The Federal Courts In Building A House Of Cards, Steven L. Nelson, Heather N. Bennett

Duke Journal of Constitutional Law & Public Policy

No abstract provided.