Law Commons^™

Secured Transactions And Financial Stability: Regulatory Challenges, Steven L. Schwarcz

Law and Contemporary Problems

No abstract provided.

Creditor Equality, Secured Transactions, And Systemic Risk: A Complex Trilemma, Rodrigo Olivares-Caminal

Law and Contemporary Problems

No abstract provided.

A Global Tug Of War: A Topography Of Micro-Business Financing, Louise Gullifer, Ignacio Tirado

Law and Contemporary Problems

No abstract provided.

Asset Identification Under The Cape Town Convention And Protocols, Sir Roy Goode

Law and Contemporary Problems

No abstract provided.

The Role Of Party Autonomy In Determining The Third-Party Effects Of Assignments: Of “Secret Laws” And “Secret Liens”, Catherine Walsh

Law and Contemporary Problems

No abstract provided.

The Private International Law Of Secured Transactions: Rules In Search Of Harmonization, Neil B. Cohen

Law and Contemporary Problems

No abstract provided.

Initial Coin Offerings: Innovation, Democratization And The Sec, Jay Preston

Duke Law & Technology Review

Initial coin offerings are a source of controversy in the world of startup fundraising, and their legality is, at best, an open question. Amid soaring valuations and rumors of looming SEC action, investors and issuers alike are scrambling to forge a path forward for the token-based startups of tomorrow. While issuers may soon be forced to comply with United States securities laws, the existing regime is inadequate because it does not allow startups to capture the unique benefits of coin sales and, more importantly, it does not allow eager American investors to take part in funding the world’s next generation …

Crashed Software: Assessing Product Liability For Software Defects In Automated Vehicles, Sunghyo Kim

Duke Law & Technology Review

Automated vehicles will not only redefine the role of drivers, but also present new challenges in assessing product liability. In light of the increased risks of software defects in automated vehicles, this Note will review the current legal and regulatory framework related to product liability and assess the challenges in addressing on-board software defects and cybersecurity breaches from both the consumer and manufacturer perspective. While manufacturers are expected to assume more responsibility for accidents as vehicles become fully automated, it can be difficult to determine the scope of liability regarding unexpected software defects. On the other hand, consumers face new …

Fixing Law Reviews, Barry Friedman

Duke Law Journal

Very few people are happy at present with the law review publishing process, from article submission and selection to editing. Complaints are longstanding; similar ones emerge from faculty and students alike. Yet, change has not occurred. We remain locked in a process in which neither faculty nor students are happy.

This Article recommends wholesale changes to the submission and editing process. The first part details the dysfunctions of the current system, including everything from lack of student capacity to evaluate faculty scholarship—particularly under the gun of the expedite process—to faculty submitting subpar work in light of rigid submission cycles. It …

A Free Bite At The Apple: How Flawed Statutory Drafting Has Undermined The Purpose Of The Patent Trial And Appeal Board, Rebecca Gentilli

Duke Law Journal

In the years before Congress passed the America Invents Act, patent litigation became exorbitantly expensive. Congress created three types of proceedings before the Patent Trial and Appeal Board (PTAB), which were intended to provide a cheaper and more cost-effective alternative to district court litigation over patent validity. A major factor in ensuring that the PTAB proceedings effectively substituted for district court litigation was a harsh estoppel provision that prevented any petitioner from relitigating any issue which was raised or reasonably could have been raised during the PTAB proceeding. The Federal Circuit, however, recently applied a narrow interpretation to the estoppel …

The Puzzle Of Traditional Knowledge, William Fisher

Duke Law Journal

Drawing on three case studies, this Essay contends that the proper role of law in managing uses of traditional knowledge is highly contextual. In some settings, distributive justice, cultural diversity, and group identity formation would be promoted by according indigenous groups more power to control or to benefit from uses of knowledge developed and sustained by their members, while in other settings, respect for individual autonomy and the promotion of semiotic democracy counsel against providing the groups that power. The Essay then outlines two alternative legal frameworks, either of which could accommodate this complex combination of competing values. The first …

From Theory To Doctrine: An Empirical Analysis Of The Right To Keep And Bear Arms After Heller, Eric Ruben, Joseph Blocher

Duke Law Journal

As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller , scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it.

This Article is the first comprehensive empirical analysis of post- Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion—state and federal, trial and appellate—from Heller up until February 1, 2016. The dataset is deep …

Capitalizing On Criminal Justice, Eisha Jain

Duke Law Journal

The U.S. criminal justice system “piles on.” It punishes too many for too long. Much criminal law scholarship focuses on the problem of excessive punishment. Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence. It stems from spiraling hidden penalties and the impact of a criminal record. The key question is not just why the state over-punishes, but rather why so many different institutions—law enforcement institutions as well as civil regulatory agencies and private actors—find it valuable to do so. This Article argues that …

Journal Staff

Duke Law Journal

No abstract provided.

The Apple-Ireland Tax Case: Three Stories On Sovereign Power, Theodore F. Disalvo

Duke Journal of Comparative & International Law

No abstract provided.

Banning Burqas: The Perspective Of Postsecular Comparative Law, Ralf Michaels

Duke Journal of Comparative & International Law

No abstract provided.

Ivf Battles: Legal Categories And Comparative Tales, Daphne Barak-Erez

Duke Journal of Comparative & International Law

Coupled with modern reproductive technologies, the ancient desire for parenthood has led to novel legal challenges. This essay discusses landmark cases addressing those challenges. At the outset, it distinguishes between two litigation paradigms in this area—termed “horizontal” and “vertical.” Horizontal controversies involve private parties who have different aspirations regarding a joint parenthood project (e.g., between two partners who began an IVF procedure and later disagree whether to complete the process). In contrast, vertical controversies concern clashes between an individual (or individuals) and the state, such as when the state or one of its authorities does not allow the individual to …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Regulation In The Shadows Of Private Law, Pammela S. Quinn

Duke Journal of Comparative & International Law

With proponents of deregulation ascendant, both domestically and around the world, private regulation appears to be an attractive solution to a seemingly intractable problem—assuming it is or can be effective. This Article adds an important corrective to standard accounts of private legal regulation and its effectiveness.

Existing scholarship generally looks to the formal contract terms as the key to understanding private regulation and to evaluating its impact. This practice needs to be rethought. The relationship between contracting parties, as well as the regulatory authority that one party exerts over the other, can be quite different than the relationship described by …

Best Interest Of A Minor Theist: An American And Religiously Informed Response To Canada’S A.C. V. Manitoba, Kevin M. Simmons

Duke Journal of Comparative & International Law

No abstract provided.

Global Standard-Setting 2.0: How The Wto Spotlights Iso And Impacts The Transnational Standard-Setting Process, Panagiotis Delimatsis

Duke Journal of Comparative & International Law

Transnational technical standard-setting has grown in prominence in recent years. The World Trade Organization (WTO) requires the use of international standards but adopts a deferential approach towards international standards. However, practice shows that several international standards are promulgated through opaque and exclusionary processes. In line with this observation, in its recent US—Tuna II ruling, the Appellate Body adopted a more critical stance regarding international standards and the processes that lead to their adoption. Against this backdrop, this article focuses on an analysis of the properties and mechanics of international standard-setting processes within the International Organization for Standardization (ISO), discussing procedural …

Compelled Speech, Expressive Conduct, And Wedding Cakes: A Commentary On Masterpiece Cakeshop V. Colorado Civil Rights Commission, Andrew Jensen

Duke Journal of Constitutional Law & Public Policy Sidebar

Masterpiece Cakeshop v. Colorado Civil Rights Commission is the most important same-sex rights case since Obergefell v. Hodges and will determine if businesses and individuals have a First Amendment right to refuse serving gay weddings against their conscience. In this case, Jack Phillips, owner of Masterpiece Cakeshop, refused to create a custom cake for Charlie Craig and David Mullins to celebrate their wedding because it was against his Christian beliefs. The Supreme Court will decide whether the First Amendment gave Phillips this right of refusal or whether Colorado’s anti-discrimination laws will compel him to serve same-sex weddings. This commentary argues …

These Walls Can Talk! Securing Digital Privacy In The Smart Home Under The Fourth Amendment, Stefan Ducich

Duke Law & Technology Review

Privacy law in the United States has not kept pace with the realities of technological development, nor the growing reliance on the Internet of Things (IoT). As of now, the law has not adequately secured the “smart” home from intrusion by the state, and the Supreme Court further eroded digital privacy by conflating the common law concepts of trespass and exclusion in United States v. Jones. This article argues that the Court must correct this misstep by explicitly recognizing the method by which the Founding Fathers sought to “secure” houses and effects under the Fourth Amendment. Namely, the Court must …

Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit

Duke Journal of Constitutional Law & Public Policy Sidebar

NCAA v. Christie will determine whether a federal statute that prevents a state legislature from repealing a previously enacted state law violates the anti-commandeering doctrine. In 2014, New Jersey passed a state law repealing state prohibitions against sports wagering in Atlantic City. Five sports leagues sued New Jersey in federal court. The leagues asserted that the new state law violated the Professional and Amateur Sports Protection Act (“PASPA”), a federal law. New Jersey claimed PASPA violated the anti-commandeering doctrine and was accordingly unconstitutional. The Third Circuit Court of Appeals held that PASPA does not violate the anti-commandeering doctrine because it …

Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

In Husted v. A. Philip Randolph Institute, the Supreme Court will decide whether the Ohio’s Supplemental Process for maintaining its voter rolls violates the requirements of the National Voter Registration Act (“NVRA”) and the Help America Vote Act (“HAVA”). The Court’s opinion will shape the landscape of voting rights, as many states are struggling to meet the dual mandates of election sanctity and increased voter access. This commentary argues that the Supreme Court can give states a guideline for what is an acceptable process that complies with the conflicting federal policies in the NVRA and HAVA. The Court should …

Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher

Duke Journal of Constitutional Law & Public Policy Sidebar

Mr. Patchak was a concerned citizen with standing to bring a suit against the federal government. A previous Supreme Court decision, Carcieri v. Salazar, made it clear that Mr. Patchak would win his case. Congress, however, did not want him to do so. Congress passed, and President Obama signed, the Gun Lake Act, which effectively ordered Mr. Patchak’s suit to be dismissed. Mr. Patchak’s suit was subsequently dismissed, and he appealed on the grounds that the Gun Lake Act violated separation of powers principles.

Carpenter V. United States: How Many Cell Phone Location Points Constitute A Search Under The Fourth Amendment?, Douglas Harris

Duke Journal of Constitutional Law & Public Policy Sidebar

In Carpenter v. United States, the Supreme Court will decide whether the government’s acquisition of a suspect’s cell site location information (“CSLI”) during an ongoing criminal investigation is a “search” under the Fourth Amendment, and thus requires a showing of probable cause to obtain a warrant. This opinion will have future consequences for Americans and their privacy interests as cell sites continue to be built and CSLI records increasingly contain more private information about cell phone users. This commentary argues that that the necessity of owning and using cell phones renders past tests obsolete. With wavering, subjective expectations of …

The True Lender Doctrine: Function Over Form As A Reasonable Constraint On The Exportation Of Interest Rates, John Hannon

Duke Law Journal

The exportation doctrine permits national and state banks to export interest rates that are legal in one state where they operate to any other state, thereby shielding the banks from liability resulting from state usury claims. The doctrine has expanded over the last forty years to permit state and national banks to preempt a variety of state consumer-financial-protection laws. The doctrine’s high-water mark is the emergence of the “rent-a-charter” arrangement, a scheme in which a nonbank lender uses a bank as a mere conduit to originate loans that are not subject to state usury laws. This Note argues that, at …

Journal Staff

Duke Law Journal

No abstract provided.

Crises And Tax, Andrew Blair-Stanek

Duke Law Journal

How can law best mitigate harm from crises like storms, epidemics, and financial meltdowns? This Article uses the law and economics framework of property rules and liability rules to analyze crisis responses across multiple areas of law, focusing particularly on the ways the Internal Revenue Service (IRS) battled the 2008–09 financial crisis.

Remarkably, the IRS’s responses to that crisis cost more than Congress’s higher-profile bank bailouts. Despite their costs, many of the IRS’s responses were underinclusive, causing preventable layoffs and foreclosures. This Article explains these failures and demonstrates that the optimal response to crises is to shift from harsh property …