Law Commons^™

Authority And The Globalisation Of Inclusion And Exclusion: Conceptual And Normative Considerations, Hans Lindahl

Duke Journal of Comparative & International Law

No abstract provided.

Another Hague Judgments Convention? Bucking The Past To Provide For The Future, Louise Ellen Teitz

Duke Journal of Comparative & International Law

No abstract provided.

Can Global Legal Pluralism Be Both “Global” And “Pluralist”?, Paul Schiff Berman

Duke Journal of Comparative & International Law

No abstract provided.

The Judgments Convention—The Current State Of Play, David Goddard

Duke Journal of Comparative & International Law

No abstract provided.

A Symmetry Of Asymmetries? A Private-International-Law Reconstruction Of Lindahl’S Work On Boundaries, Ralf Michaels

Duke Journal of Comparative & International Law

No abstract provided.

Meet Me In The Middle?, Nicole Roughan

Duke Journal of Comparative & International Law

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.

A Test Of Sovereignty: Franchise Tax Board Of The State Of California V. Gilbert P. Hyatt, Timothy Dill

Duke Journal of Constitutional Law & Public Policy Sidebar

In Franchise Tax Board of California v. Hyatt, the Supreme Court considers whether to overrule Nevada v. Hall, a 1979 Supreme Court decision. Hall permitted a State to be haled into the court of another State without its consent. In 2016, an evenly divided Supreme Court affirmed Hall 4-4 when faced with the same question, and following a remand to the Nevada Supreme Court, the Court has granted certiorari on this question once again. This Commentary contends that Hall was wrongly decided and should be overruled. The Constitution’s ratification did not alter the status of common-law State sovereign …

Apple V. Pepper: Applying The Indirect Purchaser Rule To Online Platforms, Jason Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

Long-established antitrust precedent bars customers who buy a firm’s product through intermediaries from suing that firm for antitrust damages. In Apple Inc. v. Pepper, this “indirect purchaser rule” is brought into the smartphone age in a price-fixing dispute between technology giant Apple and iPhone users. This case will determine whether iPhone users buy smartphone applications directly from Apple through the App Store, or if Apple is merely an intermediary seller-agent of app developers. The indirect purchase rule is generally considered settled precedent. How the rule should apply to online platforms, however, differs between circuit courts, which have split on …

Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani

Duke Journal of Constitutional Law & Public Policy Sidebar

Leading a group in prayer in a public setting blurs the line between public and private. Such blurring implicates a constitutional tension between the Establishment Clause and the Free Exercise Clause. This tension is magnified when the constitutionality of prayer is questioned in the context of democratic participation. Current Supreme Court precedent holds legislative prayer to be constitutional, but the relevant cases, Marsh v. Chambers and Town of Greece, NY v. Galloway, do not address the specific constitutionality of legislator-led prayer. There is currently a circuit split on the subject: in Bormuth v. County of Jackson, the United …

Equal Dignity And Unequal Protection: A Framework For Analyzing Disparate Impact Claims, Kyle P. Nodes

Duke Law Journal Online

The Supreme Court has long endorsed the theory of the “colorblind” Equal Protection Clause, viewing it as a mandate of only facial equality. Due to rigid doctrine that limits true protection to only a short, stagnant list of fundamental rights and suspect classifications and that requires proof of discriminatory intent, only the most blatant, purposeful inequality is within constitutional reach. Festering outside of this doctrinal sphere are powerful examples of state actions that impose disparate impacts on marginalized communities, such as the nationwide system of laws that disqualify individuals—disproportionately black men—with felony convictions from the jury pool.

However, the door …

Collateral Damage: Private Merger Lawsuits In The Wake Of Section 2’S Contraction, Paul F. Brzyski

Duke Law Journal Online

For over 100 years, the Clayton Act has ostensibly prohibited anticompetitive mergers and acquisitions. Yet, as fears of market concentration and market power grow, it seems high time for a boost in enforcement. Armed with statutory causes of action for injunctive relief and treble damages, private plaintiffs could provide that needed boost. However, these plaintiffs face an unexpected hurdle to enforcing the merger laws: section 2 of the Sherman Act.

This Note argues that the narrowing of liability under section 2 over the past three decades has had a collateral impact on private plaintiffs’—especially rival firms’—ability to satisfy the antitrust …

Clause Construction: A Glimpse Into Judicial And Arbitral Decision-Making, David Horton

Duke Law Journal

For decades, the U.S. Supreme Court has insisted that forcing a plaintiff to arbitrate—rather than allowing her to litigate—does not affect the outcome of a dispute. Recently, the Court has invoked this “parity assumption” to expand arbitral jurisdiction. Reasoning that it does not matter whether an arbitrator or a judge resolves a particular issue, the Justices have allowed arbitrators to decide important questions about the arbitral proceeding itself.

The parity assumption has proven impossible to test. First, cases that are arbitrated differ from those that end up in the judicial system, complicating efforts to compare outcomes from each sphere. Second, …

Journal Staff

Duke Law Journal

No abstract provided.

Write This Down: A Model Market-Share Liability Statute, Logan L. Page

Duke Law Journal

The 1980s featured a remarkable series of lawsuits: the DES cases. The women who brought these cases had been harmed by a drug—DES—that their mothers had taken while the future plaintiffs were in utero. Hundreds of companies manufactured DES, each unit of DES sold was chemically identical, and the harmed women were generally unable to identify the manufacturer who had filled their mothers’ prescriptions. Many of the plaintiffs could not prove causation as to a specific manufacturer and so could not bring traditional tort suits.

To provide relief, some courts forged ahead with a new tort theory: market-share liability. Under …

Icts, Social Media, & The Future Of Human Rights, Nikita Mehandru, Alexa Koenig

Duke Law & Technology Review

As communication increasingly shifts to digital platforms, information derived from online open sources is starting to become critical in creating an evidentiary basis for international crimes. While journalists have led the development of many newly emerging open source investigation methodologies, courts have heightened the requirements for verifying and preserving a chain of custody—information linking all of the individuals who possessed the content and indicating the duration of their custody—creating a need for standards that are just now beginning to be identified, articulated, and accepted by the international legal community. In this article, we discuss the impact of internet-based open source …

Norming In Administrative Law, Jonathan S. Masur, Eric A. Posner

Duke Law Journal

How do regulatory agencies decide how strictly to regulate an industry? They sometimes use cost-benefit analysis or claim to, but more often the standards they invoke are so vague as to be meaningless. This raises the question whether the agencies use an implicit standard or instead regulate in an ad hoc fashion. We argue that agencies frequently use an approach that we call “norming.” They survey the practices of firms in a regulated industry and choose a standard somewhere within the distribution of existing practices, often no higher than the median. Such a standard burdens only the firms whose practices …

Strange Bedfellows: Native American Tribes, Big Pharma, And The Legitimacy Of Their Alliance, Daniel C. Kennedy

Duke Law Journal

Lost in the cacophony surrounding the debate about high drug prices is the fundamental principle that pharmaceutical innovation will not occur without the prospect of outsized returns enabled through market exclusivity. Biopharmaceutical patents are currently under siege, subject to challenge both in inter partes review (“IPR”) proceedings and in Hatch-Waxman actions. These twin assaults threaten to eliminate the incentives necessary for biotechnological innovation—particularly for discoveries made upstream in the innovation pipeline—thus imperiling the development of new drug therapies. But a fascinating solution has emerged: invoking tribal immunity to shield pharmaceutical patents from IPR before the Patent Trial and Appeal Board …

Stepping Into The Breach: State Constitutions As A Vehicle For Advancing Rights-Based Climate Litigation, Benjamin T. Sharp

Duke Journal of Constitutional Law & Public Policy Sidebar

The perceived failures of the political branches to mitigate climate change have led climate change activists to seek alternative means to achieve reductions in greenhouse gas emissions; many are turning to litigation. The claims in these cases rely on a variety of legal bases, but this Note will focus on those cases claiming that governments’ failures to prevent climate change amount to violations of the plaintiffs’ constitutional rights under the Due Process Clause of the Fifth Amendment. Rights-based climate change litigation is likely to increase in the future. Among the most prominent of the surviving rights-based cases is Juliana v. …

Timbs V. Indiana: The Constitutionality Of Civil Forfeiture When Used By States, Kris Fernandez

Duke Journal of Constitutional Law & Public Policy Sidebar

In Timbs v. Indiana, Petitioner Tyson Timbs asks the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment against the states, providing extra protection for individuals against fines and forfeiture that are “grossly disproportionate” to the harm caused. The decision to incorporate the Excessive Fines Clause and the guidelines for applying that incorporation would have a substantial effect on governments, which often rely on the revenue gained from forfeiture. This commentary argues that the Supreme Court of the United States should incorporate the Excessive Fines Clause based on historical support of an individual’s right to be …

Bucklew V. Precythe: The Power Of Assumptions And Lethal Injection, Renata Gomez

Duke Journal of Constitutional Law & Public Policy Sidebar

Once again, the Supreme Court of the United States has an opportunity to determine the extent to which death-row inmates can bring as-applied challenges to the states’ method of execution and prevent possible botched executions. In Bucklew v. Precythe, the Court will confront the assumptions that the execution team is equipped to handle any execution and that the procedure will go as planned. Additionally, the Court will determine whether the standard articulated in Glossip v. Gross, which requires inmates asserting facial challenges to the states’ method of execution to plead a readily available alternative method of execution, further …

Swords Into Plowshares: Nuclear Power And The Atomic Energy Act’S Preemptive Scope In Virginia Uranium, Inc. V. Warren, Francis X. Liesman

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary highlights the considerations the Supreme Court should attend to in its decision in Virginia Uranium, Inc. v. Warren, both in construing § 2021(k) and in reviewing the Fourth Circuit’s reading of precedent from other circuits and from the Court’s prior opinions. Specifically, the Court must clarify how to interpret § 2021(k)’s activities component in concert with its “for purposes” language and determine the importance of the particular underlying activity the state seeks to regulate in a preemption analysis under the Atomic Energy Act. Clarification is necessary to ensure that courts properly effectuate Congress’s intent in regulating nuclear …

Suspended Sentences And Service Labor In Israel—From Alternatives To Imprisonment To Net-Widening, Nevine Emmanuel, Oren Gazal-Ayal

Law and Contemporary Problems

No abstract provided.

Foreword: Alternatives To Imprisonment: Recent International Developments, Oren Gazal-Ayal, Julian V. Roberts

Law and Contemporary Problems

No abstract provided.

Articulating The Custody Threshold, Neil Hutton

Law and Contemporary Problems

No abstract provided.

Community Sanctions As Substitutes To Imprisonment In The Nordic Countries, Tapio Lappi-Seppälä

Law and Contemporary Problems

No abstract provided.

Suspended Sentences And Free-Standing Probation Orders In U.S. Guidelines Systems: A Survey And Assessment, Richard S. Frase

Law and Contemporary Problems

No abstract provided.

Swimming Against The Tide: The Suspended Sentence Order In England And Wales, 2000-2017, Keir Irwin-Rogers, Julian V. Roberts

Law and Contemporary Problems

No abstract provided.

Missed Opportunities: A Postmortem On Canada’S Experience With The Conditional Sentence, Cheryl Marie Webster, Anthony N. Doob

Law and Contemporary Problems

No abstract provided.

Targeting Poverty In The Courts: Improving The Measurement Of Ability To Pay, Meghan M. O’Neil, J.J. Prescott

Law and Contemporary Problems

No abstract provided.