Law Commons^™

Black Hole Apparitions, Lisa Bernstein

Duke Law Journal Online

No abstract provided.

Pari Passu Clauses And The Skeuomorph Problem In Contract Law, Douglas G. Baird

Duke Law Journal Online

No abstract provided.

Sherlock Holmes Meets Rube Goldberg: Fixing The Entry-Into-Force Provisions Of The Comprehensive Nuclear Test Ban Treaty, David A. Koplow

Duke Journal of Comparative & International Law

The Comprehensive Nuclear Test Ban Treaty (CTBT) is widely heralded as the most important international legal instrument for arresting the nuclear arms race and impeding further nuclear proliferation. Concluded in 1996, the treaty has been signed by 183 countries and ratified by 166. But it has not yet entered into force, because of its unique requirement that it not become operational for any state until it has been ratified by all forty-four countries designated in its Annex 2. Thirty-six of those Annex 2 states have ratified, but there is little prospect that all of the other eight (including the United …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

Regional International Courts In Search Of Relevance: Adjudicating Politically Sensitive Disputes In Central America And The Caribbean, Salvatore Caserta

Duke Journal of Comparative & International Law

The Central American and the Caribbean Courts of Justice (CACJ and CCJ) are hybrid judicial institutions. While their Member States envisioned them as "EU-style" regional economic courts, they have explored the whole extension of their formally delegated functions and have developed peculiar expertise in matters relating to freedom of movement, human and fundamental rights, and other politically fraught issues. The article explains how two International Courts (ICs) seemingly established to build common markets have come to adjudicate high-stakes political disputes, which, ostensibly, have little to do with regional economic integration. The article posits that the scholarship on delegation to ICs …

Restructuring Venezuela's Debt Using Pari Passu, Khaled Fayyad, Dimitrios Lyratzakis

Duke Journal of Comparative & International Law

Given the depth of Venezuela's economic crisis, many fear that the government and the state-owned oil company Petroleos de Venezuela, S.A. ("PDVSA") are on the brink of insolvency. In this paper, we introduce a restructuring plan that would allow Venezuela to restructure its external debt in an orderly manner. We propose that Venezuela restructure both PDVSA debt and its own external debt via Exchange Offers. To maximize the number of participating bondholders and receive sufficient debt relief, we suggest that Venezuela primarily utilize the pari passu clauses included in the vast majority of PDVSA and Venezuelan bonds, which are modified …

Equity Extraterritoriality, S. Nathan Park

Duke Journal of Comparative & International Law

Territoriality is a foundational principle of international order, and U.S. laws have always operated on a territorial basis. However, when U.S. jurisprudence speaks of extraterritorial application of its laws, it is usually assessing whether the legislature or the court has jurisdiction over persons, properties and conducts outside of the territorial borders of the United States. This paper argues that such a conception of the extraterritoriality doctrine only reveals half of the picture, because U.S. courts may indirectly apply U.S. law beyond U.S. borders through extraterritorial court orders without relying on extraterritorial jurisdiction. I term such exercise of extraterritorial power "Equity …

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Duke Law Journal

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one …

Algorithms & Fiduciaries: Existing And Proposed Regulatory Approaches To Artificially Intelligent Financial Planners, John Lightbourne

Duke Law Journal

Artificial intelligence is no longer solely in the realm of science fiction. Today, basic forms of machine learning algorithms are commonly used by a variety of companies. Also, advanced forms of machine learning are increasingly making their way into the consumer sphere and promise to optimize existing markets. For financial advising, machine learning algorithms promise to make advice available 24–7 and significantly reduce costs, thereby opening the market for financial advice to lower-income individuals. However, the use of machine learning algorithms also raises concerns. Among them, whether these machine learning algorithms can meet the existing fiduciary standard imposed on human …

Journal Staff

Duke Law Journal

No abstract provided.

Foreign Price-Fixing Conspiracies, Christopher R. Leslie

Duke Law Journal

Although price-fixing agreements remain per se illegal in the United States, courts have undermined the per se rule against price fixing by making it harder for plaintiffs to prove that such an agreement exists. For example, most courts that have considered the issue have held that defendants’ price-fixing conduct in a foreign market is not probative of price fixing in the United States. This Article examines the relationship between foreign and domestic price-fixing activity and shows how expanding a price-fixing cartel from foreign markets into the United States benefits the cartel by reducing the risk of arbitrage, stabilizing the cartel, …

Creating A More Certain Standard For Enhanced Patent Damages By Requiring Egregiousness As An Element In The Section 284 Analysis, Brian Barnes

Duke Law Journal

According to 35 U.S.C. § 284, district courts have the power to “increase the damages up to three times the amount found or assessed” by the jury in patent infringement cases where willful infringement occurred. Following the recent Supreme Court decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., it is now less clear how courts are to go about deciding whether to exercise this power. Halo established that the decision lies within the discretion of the district court judge, but declined to give a more concrete standard than urging the judge to “take into account the particular circumstances …

Artificial Intelligence: Application Today And Implications Tomorrow, Sean Semmler, Zeeve Rose

Duke Law & Technology Review

This paper analyzes the applications of artificial intelligence to the legal industry, specifically in the fields of legal research and contract drafting. First, it will look at the implications of artificial intelligence (A.I.) for the current practice of law. Second, it will delve into the future implications of A.I. on law firms and the possible regulatory challenges that come with A.I. The proliferation of A.I. in the legal sphere will give laymen (clients) access to the information and services traditionally provided exclusively by attorneys. With an increase in access to these services will come a change in the role that …

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of “A Condition Analogous To That Of A Slave” In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Sessions V. Dimaya: Vagueness Doctrine & Deportation Statutes, Matthew Gibbons

Duke Journal of Constitutional Law & Public Policy Sidebar

Sessions v. Dimaya seeks to determine whether the residual clause of a criminal provision, incorporated by reference into a civil immigration law, is void for vagueness. Although there is an instance of the Supreme Court applying the criminal vagueness standard to an immigration statute resulting in deportation, the United States argues that immigration law is not subject to that vagueness standard because it is civil and not criminal. This commentary argues that Sessions v. Dimaya presents the Supreme Court with an opportunity to conform with its precedents, further the principles underlying vagueness doctrine, and appear to apply judicial rules consistently. …

Slave To The Algorithm? Why A 'Right To An Explanation' Is Probably Not The Remedy You Are Looking For, Lilian Edwards, Michael Veale

Duke Law & Technology Review

Algorithms, particularly machine learning (ML) algorithms, are increasingly important to individuals’ lives, but have caused a range of concerns revolving mainly around unfairness, discrimination and opacity. Transparency in the form of a “right to an explanation” has emerged as a compellingly attractive remedy since it intuitively promises to open the algorithmic “black box” to promote challenge, redress, and hopefully heightened accountability. Amidst the general furore over algorithmic bias we describe, any remedy in a storm has looked attractive. However, we argue that a right to an explanation in the EU General Data Protection Regulation (GDPR) is unlikely to present a …

Endocrinology And Women’S Sports: The Diagnosis Matters, Richard J. Auchus

Law and Contemporary Problems

No abstract provided.

More Than Seals And Sea Otters: Opa Causation And Moratorium Damages, Allan Kanner

Duke Environmental Law & Policy Forum

Following the 2010 BP/Deepwater Horizon oil spill, the Federal Government issued a drilling and permitting moratorium in the Gulf of Mexico that resulted in significant economic losses for many businesses that serve the oil and gas industry. The Oil Pollution Act should have covered these economic damages; however, the Eastern District of Louisiana held otherwise. This article details how the Oil Pollution Act should have been applied to those who suffered economic loss as a result of the oil spill following the six month moratorium in the Gulf.

Minimalist Solution To Williamson County, Raymond J. Nhan

Duke Environmental Law & Policy Forum

Williamson County Regional Planning Commission v. Hamilton Bank of Johnson County relegated Fifth Amendment takings claims to a second-class of federal rights. Before a takings plaintiff can sue in federal court, she must first seek compensation through an “adequate state procedure.” Many federal courts have held that requirement to mean a takings litigant must first seek compensation through state courts if that state provides an inverse condemnation proceeding. However, if a takings litigant sues in state court, she will be unable to sue in federal court because of issue preclusion. This effectively shuts the federal courthouse door to many property …

Whether Ancillary Regulatory Burdens Imposed By The Clean Power Plan Unconstitutionally Commandeer The States, Zachary Hennessee

Duke Environmental Law & Policy Forum

No abstract provided.

Foreword, Doriane Lambelet Coleman, Kimberly D. Krawiec

Law and Contemporary Problems

No abstract provided.

Women’S Sports And The Forgotten Gender, Ara Wilson

Law and Contemporary Problems

No abstract provided.

Heterosexuality As A Factor In The Long History Of Women’S Sports, Mary Anne Case

Law and Contemporary Problems

No abstract provided.

Sex And Gender Segregation In Competitive Sport: Internal And External Normative Perspectives, Patrick S. Shin

Law and Contemporary Problems

No abstract provided.

Sex In Sport, Doriane Lambelet Coleman

Law and Contemporary Problems

No abstract provided.

Athletic Gender, Joanna Harper

Law and Contemporary Problems

No abstract provided.

Challenging Gender In Single-Sex Spaces: Lessons From A Feminist Softball League, Erin E. Buzuvis

Law and Contemporary Problems

No abstract provided.

Journal Staff

Law and Contemporary Problems

No abstract provided.

Mineral Royalties: Historical Uses And Justifications, Jayni Foley Hein, Caroline Cecot

Duke Environmental Law & Policy Forum

Governments and private landowners have collected royalties on mineral resources for centuries. When comprehensive measures to account for the environmental externalities of mineral extraction are politically or practically unavailable, federal and state governments may consider adjusting royalty rates as an expedient way to account for these externalities and benefit society. One key policy question that has not received attention, however, is whether a royalty rate can and should be manipulated in this way, assuming statutory discretion to do so. This article fills that gap by evaluating the argument for increasing federal or state fossil fuel royalty rates through historical, theoretical, …

Navigating The Confluence: Sources Of Reconciliation Flowing Between The Human Right To Water And Economic Efficiency, Brett A. Miller

Duke Environmental Law & Policy Forum

The purpose of this research is to identify the confluence of the law and economics disciplines, using these distinct channels of scholarship not as an empirical vessel to determine the “value” or “valueless” nature of water, but rather as a means to reconcile externalities among interested parties and to identify management strategies that embrace sentiments of economic efficiency throughout the arena of global hydrocommerce. The various perspectives on water, particularly with regards to an increasing global population and demand for freshwater, elicits an intricate mosaic of tensions concerning the availability, accessibility, provision, and protection of this fundamental natural resource.

Billions …