Law Commons^™

Cutting Submarine Cables: The Legality Of The Use Of Force In Self-Defense, Blair Shepherd

Duke Journal of Comparative & International Law

No abstract provided.

A Step Closer: Economic Integration And The African Continental Free Trade Area, Nsongurua J. Udombana

Duke Journal of Comparative & International Law

Post-colonial Africa views economic integration as an endogenous means for attaining self-reliant, sustainable development. Working under various regional and sub-regional economic institutions, states elaborated several norms in search of legitimacy in economic competence. However, several political and economic pathogens, including weak institutions, have blighted those efforts. This paper interrogates the African Continental Free Trade Area (AfCFTA or CFTA), which is the latest attempt to reboot the integration drive and achieve sustainable development. The CFTA seeks to create a geographic zone where goods and services will move freely among member states by removing trade distortions and boosting factor mobility, competition, and …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Reframing Housing: Incorporating Public Law Principles Into Private Law, Kristen Barnes

Duke Journal of Comparative & International Law

A new public-private law paradigm is developing with respect to the relationship of the state to private contracts. The paradigm melds private law concepts like unconscionability, good faith, and fair dealing with the public human rights principles of dignity and vulnerability. I trace this paradigm shift in the context of the housing law of Spain, where several rich cultural and legal resources have inspired a new sensibility with regard to residential mortgage loan contracts, rental agreements, and the overall duties and obligations of governments to address the citizenry’s housing needs. Although this reorientation reflects decisions from the European Court of …

Testing Compliance, Brandon L. Garrett, Gregory Mitchell

Law and Contemporary Problems

No abstract provided.

Some Realism About Corporate Crime, James D. Nelson

Law and Contemporary Problems

No abstract provided.

Two Decades Of Corporate Criminal Enforcement, Samuel W. Buell, Brandon L. Garrett

Law and Contemporary Problems

No abstract provided.

Three Conceptions Of Corporate Crime (And One Avenue For Reform), Miriam H. Baer

Law and Contemporary Problems

No abstract provided.

Retiring Corporate Retribution, Samuel W. Buell

Law and Contemporary Problems

No abstract provided.

The Government’S Prioritization Of Information Over Sanction: Implications For Compliance, Veronica Root Martinez

Law and Contemporary Problems

No abstract provided.

The Body Corporate, Mihailis E. Diamantis

Law and Contemporary Problems

No abstract provided.

Using The Corporate Prosecution And Sentencing Model For Individuals: The Case For A Unified Federal Approach, Rachel E. Barkow

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

The Student Loan Bankruptcy Gap, Jason Iuliano

Duke Law Journal

Each year, a quarter of a million student loan debtors file for bankruptcy. Of those, fewer than three hundred discharge their educational debt. That is a success rate of just 0.1 percent. This chasm between success and failure is the titular “Student Loan Bankruptcy Gap,” and it is a phenomenon that is unprecedented in the law.

Drawing upon an original dataset of nearly five hundred adversary proceedings, this Article examines three key facets of the Student Loan Bankruptcy Gap. First, it establishes the true breadth of the gap. Second, it explores why the gap has persisted for more than two …

Journal Staff

Duke Law Journal

No abstract provided.

From Overdose To Crime Scene: The Incompatibility Of Drug-Induced Homicide Statutes With Due Process, Kaitlin S. Phillips

Duke Law Journal

As the opioid epidemic ravages the United States, federal and state legislators continue to seek various ways to mitigate the crisis. Though public health advocates have successfully pushed for harm-reduction initiatives, a contrasting punitive response has emerged. Across the country, prosecutors and legislators are turning to drug-induced homicide (“DIH”) statutes as a law-and-order response to the crisis. DIH statutes, which can carry sentences as severe as life in prison, impose criminal liability on anyone who provided drugs that led to a fatal overdose. Though DIH laws are often justified as tools to target large-scale drug distributors, in reality, they more …

Regulating Derivatives: A Fundamental Rethinking, Steven L. Schwarcz

Duke Law Journal

The conventional wisdom is that derivatives are exotic and uniquely risky, although innovative, financial instruments. That perception has given rise to a regulatory patchwork described as “confusing, incomplete, [and] contradictory.”1 This Article rethinks how derivatives should be regulated. It begins by demystifying derivatives. In contrast to the arcane industry-derived categories, the Article deconstructs derivatives more intuitively, by their economic functions, into two categories of traditional legal instruments—option contracts and guarantees. Being neither exotic nor uniquely risky, most derivatives should be regulated like those traditional instruments. The Article then explains why at least one subset of guarantees—financial guarantees with systemically important …

Checking The Purse: The President’S Limited Impoundment Power, Christian I. Bale

Duke Law Journal

The United States spends well over $700 billion annually on defense, more than the next ten countries combined and roughly half of the discretionary budget. The Department of Defense budget supports critical national security objectives, but even defense stalwarts acknowledge excessive spending, including unneeded military facilities, exponential cost overruns, outmoded weapons systems, and duplicative investments across the military services.

In the face of a congressional budget process distorted by special interest groups, this Note argues that the president possesses the constitutional authority to unilaterally curb some defense spending. In particular, the president may impound—refuse to spend money appropriated by Congress …

Optimal Sludge? The Price Of Program Integrity, Cass R. Sunstein, Julien L. Gosset

Duke Law Journal Online

Public officials often impose eligibility requirements for government programs that have two effects: (1) They screen out ineligible people and (2) they screen out eligible people. Consisting of paperwork requirements, interviews, waiting periods, and administrative burdens, such requirements are sometimes characterized as “sludge,” and for some eligible people, they might prove overwhelming or prohibitive. In these circumstances, there is a pervasive normative issue: What is the optimal tradeoff between the screening out of ineligible people and the screening out of eligible people? It is plausible to think that a great deal depends on numbers. If, for example, the number of …

Reconstructing Racially Polarized Voting, Travis Crum

Duke Law Journal

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles , the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the …

Keeping Secrets: The Unsettled Law Of Judge-Made Exceptions To Grand Jury Secrecy, H. Brent Mcknight Jr.

Duke Law Journal

Federal Rule of Criminal Procedure 6(e) functionally binds everyone who is present during grand jury proceedings (except witnesses) to secrecy. But questions arise when courts are asked to make exceptions to grand jury secrecy outside those enumerated in the rule, such as exceptions for Congress or for the release of historically significant grand jury records.

This Note examines the propriety of judge-made exceptions to grand jury secrecy. Contrary to some courts authorizing disclosure outside of Rule 6(e), this Note argues that the text and development of Rule 6(e), along with limitations on courts’ inherent authority over grand jury procedure, caution …

Quasi Campaign Finance, Nicholas O. Stephanopoulos

Duke Law Journal

Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance—giving or spending money to sway elections—is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on nonelectoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals—the Koch brothers, Michael Bloomberg, and the like—appears to be rising. It also seems to skew policy outcomes in the …

Furthering Decolonization: Judicial Review Of Colonial Criminal Law, Maryam Kanna

Duke Law Journal

Most of the world today was once colonized by a European power. Great Britain was one of the most prolific colonizers, with more than 412 million people under its rule at its height. As part of its colonial enterprise, Great Britain transplanted criminal laws into its colonies and territories, to varying degrees. Across many former Commonwealth colonies, the criminal codes implemented by the British were similar or even identical. Today, these colonial criminal codes remain largely intact in many former colonies. Some of these colonial criminal laws are notoriously used by modern postcolonial governments to infringe human rights and restrict …

Journal Staff

Duke Law Journal

No abstract provided.

Sex-Based Brain Differences And Emotional Harm, Betsy J. Grey

Duke Law Journal Online

Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether …

Journal Staff

Duke Law Journal

No abstract provided.

The Executive’S Privilege, Jonathan David Shaub

Duke Law Journal

Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legally binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in the context of congressional oversight. In that vacuum—unconstrained by precedent—the executive branch has developed a comprehensive theory of executive privilege to support and implement prophylactic doctrines that render Congress largely powerless in …

Preclusion Of Exclusion: How Many Bites Does Dhs Get At The Deportation Apple?, Christine M. Mullen

Duke Law Journal

The common law doctrine of res judicata prevents parties from relitigating claims that were, or could have been, litigated in a previous proceeding. In the background of all civil law, the doctrine has been regularly applied to executive agency adjudications. However, recent developments have highlighted a circuit split and tension between the branches of government, as different adjudicative bodies have come to differing conclusions on whether, and to what extent, res judicata applies in removal proceedings.

This Note argues that res judicata should apply broadly and uniformly in removal proceedings, limiting the Department of Homeland Security (“DHS”) to only one …

In Search Of Prerogative, Ilan Wurman

Duke Law Journal

The standard formalist account of Article II’s Executive Vesting Clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great Britain prior to the Constitution’s adoption, subject to the assignment of such powers and authorities to the other departments of the national government. In recent papers, a handful of scholars have challenged this “residual vesting thesis” by amassing evidence that “the executive power” textually referred only to the power to carry law into execution and not to the bundle of other royal prerogatives—for example over foreign affairs and national security—enjoyed by …

The Gorsuch Test: Gundy V. United States, Limiting The Administrative State, And The Future Of Nondelegation, Johnathan Hal

Duke Law Journal

The future of nondelegation is uncertain. Long considered an “axiom in constitutional law,” the nondelegation principle has almost never been seriously enforced—from the founding of the country to present day. After the Supreme Court’s decision in Gundy v. United States, that truism may soon change.

For much of its recent history, the Court has approached nondelegation challenges using the “intelligible principle” test. Now, for the first time in many years, five Justices have indicated a willingness to revisit that test. In his dissenting opinion in Gundy, Justice Gorsuch proposed a new test—the “Gorsuch test”—for adjudicating nondelegation disputes. He averred …