Law Commons^™

The Hidden Cost Of Venture Capital, Emilie Aguirre

Faculty Scholarship

Founders, employees, consumers, and even funders increasingly expect businesses to pursue social goals alongside financial performance. Yet even the most committed firms have found it difficult to maintain social performance over time. Scholars in economics, management, and law have put forth several explanations for this “mission drift,” including inappropriate governance, poor management, lack of genuine commitment, and threat of takeovers. Puzzlingly, research to date primarily focuses on later-stage firms, even though the events and decisions that take place in a firm’s early stages can critically impact retention of its social performance.

Drawing from over five years of qualitative field research …

Plea Tracking In The Durham County District Attorney’S Office: Second Report On Superior Court Cases Pled From April 2021 To November 2023, Kelly Evans, Elizabeth Gifford, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Technologies Of Violence: Law, Markets, And Innovation For Gun Safety, Joseph Blocher, Christopher Buccafusco

Faculty Scholarship

Violence in the United States is distinctive in many ways, perhaps none more visceral and fundamental than the technologies with which it is practiced. American violence disproportionately involves guns, and because guns are such an effective tool of violence, confrontations involving them are disproportionately deadly. Decades of research confirm this "instrumentality effect, " and it is reflected in the broad, bipartisan agreement that the nation has a gun violence problem. The deep disagreement, of course, remains about how to address it, with most of the debate focused on regulating who can carry which guns, where, and how.

But fully understanding, …

The Judicial Administrative Power, Jonathan Petkun, Joseph Schottenfeld

Faculty Scholarship

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and …

Opening The Channels And Speeding The Game: A Short History Of Transactional Forms, Laura M. Scott

Faculty Scholarship

Citators, digests, annotated codes. These standard legal research tools, developed by generations of lawyers and now adapted for the online era, tend to be the province of litigators. Transactional lawyers may also occasionally use these tools, but for the practitioner making and documenting commercial, corporate, real estate, or securities deals, legal forms are often a more useful tool. Used judiciously, these sample documents make drafting more efficient, guide junior business lawyers through unfamiliar transactions, and help identify legal issues to be researched.

For today’s dealmakers, online transactional forms are essential research and drafting tools in their own right, but examining …

The Dangerous Rise Of Dual-Use Objects In War, Oona A. Hathaway, Azmat Khan, Mara R. Revkin

Faculty Scholarship

Each day, the news brings stories of military attacks on schools, hospitals, apartment buildings, electrical facilities, and other critical civilian infrastructure. The militaries attacking these objects often seek to justify the attacks by claiming that the civilian objects are being used by militants. Objects that are believed to have both military and civilian use are often referred to as “dual-use” objects. Even though the term has become common, international law does not recognize a “dual-use” object as a legally meaningful category. Rather, the postwar Geneva Conventions that lie at the core of modern international humanitarian law establish a bright line …

Shareholder Litigation In Delaware: An Empirical Investigation, James D. Cox, Randall S. Thomas, Lynn Bai

Faculty Scholarship

The empirical study of shareholder litigation in state courts is a seriously underexamined subject. To remedy this gap, we collected data on all 4,741 fiduciary duty complaints filed in the Delaware Court of Chancery over a sixteen-year period, from January 1, 2004, to December 31, 2019. After removing the duplicative cases consolidated into a lead complaint, the number of unique complaints was reduced to 2,958 in our dataset. In our coding, we examined over one hundred variables (with many variables being further subdivided into as many as eight subvariables) for each of these cases, including information about the parties, claims, …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Faculty Scholarship

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

The Rise Of Global Fcpa Settlements, Rachel Brewster

Faculty Scholarship

For the last two decades, the United States has been the dominant enforcer of anti-bribery norms worldwide. Using the broad extraterritorial jurisdiction granted by the Foreign Corrupt Practices Act (FCPA), the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have prosecuted domestic and foreign corporations for bribing foreign government officials. This transnational enforcement system has been described as a negative comity regime: foreign governments defer to American prosecutions even if the case involves their nationals. This system has created a robust enforcement environment but often faces foreign resistance to the perceived “American dominance” of the regime. This …

Building Successful Justice Worker Programs: Emerging Insights From Research And Practice, Rebecca L. Sandefur, Matthew Burnett

Alaska Law Review

America's deep access to justice crisis has long seemed intractable. But new and potentially transformative models for giving people access to legal services and to their own law are emerging around the country. Among the most promising of these are community justice workers. These are people already trusted in their communities, such as social workers, librarians, health aides, community leaders, teachers, mediators, and everyday citizens who are trained to help people understand and act on the legal challenges involved in critical life issues. These issues implicate basic needs like nutrition, health, income security, shelter, education, and care of dependents, and …

Power-Conscious Legal Work: Building A Roadmap For Rural Access To Justice Through Trust, Accountability, & Trauma-Informed Practices, Cayley Balser, Antonio M. Coronado

Alaska Law Review

The importance of trauma-informed practices has never been greater. In the United States, most of the population has experienced at least one traumatic event in their life. Experiencing a traumatic event may have long-lasting impacts on physical health, including disruption to all major system functioning. Mental health impacts may include behavior changes, memory challenges, inability to complete routine tasks, difficulty with interpersonal relationships, and other symptoms associated with Post Traumatic Stress Disorder. Extant literature examines the association between past trauma experiences and later interactions with the civil justice system, including litigant conceptualizations of legal system engagement as a traumatic event …

Transgenerational Legislative Awareness Issues In Children's Food, Yi Seul Kim

Duke Environmental Law & Policy Forum

No abstract provided.

Toward A Broader Theocentric Environmentalism, Melvin L. Otey

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

Altruistic Arbitrage And Climate Change Mitigation:Rethinking The Role Of Cap And Trade Policies, Fatjon Kaja, Matthew G. Nagler

Duke Environmental Law & Policy Forum

We examine the implications for efficient public goods provision by exploring the relationship of altruism to the endowment effect, focusing our analysis on the problem of climate change mitigation. We argue that the reduction in distortionary valuation (i.e., willingness-to-accept departing from willingness-to-pay) experienced by altruistic market participants implies an ability to mediate ignored trades and extract the gains from trade — an activity we call "altruistic arbitrage" — thereby improving the efficiency of markets. This activity, broadly speaking, restores the Coase Theorem in the context of WTA-WTP disparities. Moreover, it leads to previously unidentified benefits to when markets are employed …

On The Brink: Red Wolves On The Albemarle Peninsula, Jessica Hardee

Duke Environmental Law & Policy Forum

No abstract provided.

Addressing The Access To Justice Crisis: Think Systemically, Act Locally, Nikole Nelson

Alaska Law Review

No abstract provided.

Community Justice Workers: Part Of The Solution To Alaska's Legal Deserts, Joy Anderson, Sarah Carver, Dr. Robert Onders

Alaska Law Review

Legal deserts—large geographic areas where there are few or no attorneys—are found throughout the United States, including Alaska. These deserts are a major contributor to the access to justice gap. Further compounding the scarcity of legal resources in these areas, many people living in legal deserts cannot afford legal help, even when a lawyer is available. Legal aid organizations have struggled to overcome these challenges in meeting the legal needs of low-income Americans and are often forced to turn away as many people as they are able to help. Alaska Legal Services Corporation (ALSC) is responding to this challenge in …

Note From The Editor

Alaska Law Review

No abstract provided.

Justice Beyond The State, Kirsten Matoy Carlson

Alaska Law Review

For decades the intersectionality of extreme rurality and cultural difference has led scholars and tribal leaders to advocate for recognition of local authority as a solution to the justice gap in rural Alaska. Local control often means developing courts in and extending jurisdiction to Alaska Native villages. This Article evaluates strengthening tribal courts or justice systems through restorations of jurisdiction as a way to address access to justice issues in Alaska Native villages. It argues that restorations of jurisdiction and the development of tribal justice systems must ensure that Alaska Natives define the justice provided in their communities. Restorations of …

Next Steps In Online Courts: Accelerating Access Tojustice Through Court Technology, J.J. Prescott

Alaska Law Review

For more than a decade, state courts have been expanding access to justice by adopting online dispute resolution (ODR) platforms and other outward-facing communication technologies. At a deep level, these reforms aim at improving society by bolstering the rule of law. At a surface level, these innovations recognize that the justice system works better when courts and law are easier and less costly to understand and use. In important respects, these efforts have been a success. The accessibility of many state courts is considerably more robust today than it was ten years ago, at least for small-stakes cases, like traffic …

Alaska's Healthcare Markets: The Free Market Is Nota "Cure", Katie Raya

Alaska Law Review

Healthcare reform in the United States requires a nuanced approach to improve quality and access while managing costs—a challenge particularly pronounced in Alaska. Despite being the highest spender on healthcare globally, the U.S. fails to deliver commensurate health outcomes, with Alaska exemplifying these systemic issues. The state faces the highest healthcare costs in the nation yet performs poorly in quality and access metrics. This situation has prompted urgent legislative scrutiny of existing policies, such as the Certificate of Need (CON) Law and the 80th Percentile Rule. This Note critically evaluates the argument that deregulating Alaska's healthcare market will lead to …

Alaska's Arm-Of-The-Tribe Jurisprudence: Ito V. Copper River Native Association And Its Contribution To A More Uniform System Of Justice In America, Jack Jeffrey, Erik Gordon

Alaska Law Review

The Alaska Supreme Court recently overhauled its approach to arm-of-the-tribe sovereign immunity in Ito v. Copper River Native Association. The Court no longer utilizes financial insularity as a dispositive inquiry; instead, the Court has adopted a five-factor test that takes into account (1) the purpose of the entity’s creation, (2) the method of the entity's creation, (3) the degree of control the tribe maintains over the entity, (4) tribal intent concerning sharing sovereign immunity, and (5) financial relationship. This decision serves as a positive development for two reasons: (1) it is a step towards the elimination of a dual-track …

Journal Staff

Alaska Law Review

No abstract provided.

Glacial Progress: Thawing The Path To A Law School In Alaska, Kathrine Coonjohn

Alaska Law Review

My contribution to this symposium is clear: to advocate for the establishment of an Alaskan law school. As the only state in the nation without one Alaska keenly suffers the repercussions of this absence. The resulting void creates shortages of legal professionals, reduces opportunities for continuing legal education, cultural and community disconnection, and contributes to brain drain. Further, it undermines the state's legal infrastructure and limits access to justice. Despite significant logistical and financial hurdles, including the high costs of establishment and sustainability concerns, the need for a local legal institution is undeniable, and this need will only grow more …

Predatory Decarceration, Elenore Wade

Duke Law Journal Online

This Essay critiques the bipartisan criminal legal system reforms that have emerged over the past several years. These reforms result in predatory decarceration that exacerbates the precarious conditions of returning prisoners and supervisees—as well their communities—and distributes the benefits of reform upward. Taking an abolitionist perspective and drawing an analogy to Keeanga-Yamahtta Taylor’s concept of predatory inclusion, this Essay contends that these reforms offer freedom from incarceration only in exchange for productivity and compliance with non-incarceration penal controls such as community supervision sentences, which almost universally include work requirements. Thus, the reforms, while reducing incarceration rates, ultimately reinforce an ultraliberal …

Textualism In Practice, Anita S. Krishnakumar

Duke Law Journal

Textualism has won the statutory interpretation wars. But despite this theoretical and methodological victory, textualism as practiced on the ground has proved less transformational than expected. Indeed, contrary to what textualist interpretive philosophy long has promised, the widespread embrace of textualism by judges on the ground has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—courts will invoke to construe a statute in a particular case. Part of the reason for this lack of predictability is that textualism as practiced often differs significantly from the approach that textualism as an interpretive philosophy …

Inside Outsider Art: Challenges And Opportunities For A Marginalized Genre, Lucas Lynn

Duke Law Journal

Outsider art encompasses the work of artists, typically self-taught, who experience some form of marginalization and do not proactively participate in the mainstream art world. Adored in part for the biographies of the artists and in part for the quality of the art, the genre has become increasingly popular in secondary markets and museums over the last half century. However, buyers of outsider art still find it difficult to authenticate and attribute works. This Note examines the challenges inherent in outsider art and proposes three opportunities that can help address the challenges with authentication and provenance in outsider art while …

The Social Benefits Of Control, Emilie Aguirre

Duke Law Journal

When firm founders want to increase access to capital, one traditional route has been to take the firm public. Most public firms allow equal voting rights for all shareholders, so by going public, founders and early insiders inevitably give up a certain amount of control over the firm. More recently, however, a governance structure known as multiclass shares has exploded in popularity. Multiclass share structures separate voting rights from economic rights, allowing insiders to retain control while still raising money on public markets. Because multiclass structures can allow insiders to extract private benefits at the expense of outside shareholders, they …

Journal Staff

Duke Law Journal

No abstract provided.