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Articles 1 - 30 of 44
Full-Text Articles in Law
A Matter Of Good Form: The (Downsized) Hague Judgments Convention And Conditions Of Formal Validity For The Enforcement Of Forum Selection Agreements, Jason Webb Yackee
A Matter Of Good Form: The (Downsized) Hague Judgments Convention And Conditions Of Formal Validity For The Enforcement Of Forum Selection Agreements, Jason Webb Yackee
Duke Law Journal
Can the Hague Judgments Convention be saved through radical downsizing? It has been more than ten years since the Hague Conference on Private International Law (Hague Conference) first officially began exploring the possibility of drafting a global convention on jurisdiction and the enforcement of foreign judgments in civil and commercial matters. (1) It has been more than four years since the Conference presented its preliminary draft convention, (2) itself modeled largely on the European Community's 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels I). (3) However, this preliminary draft convention was rejected …
The Cherokee Removal And The Fourteenth Amendment, Gerard N. Magliocca
The Cherokee Removal And The Fourteenth Amendment, Gerard N. Magliocca
Duke Law Journal
This Article recasts the original understanding of the Fourteenth Amendment by showing how its drafters were influenced by the events that culminated in The Trail of Tears. A fresh review of the primary sources reveals that the removal of the Cherokee Tribe by President Andrew Jackson was a seminal moment that sparked the growth of the abolitionist movement and then shaped its thought for the next three decades on issues ranging from religious freedom to the antidiscrimination principle. When these same leaders wrote the Fourteenth Amendment, they expressly invoked the Cherokee Removal and the Supreme Court's opinion in Worcester v. …
The Problems Of Pouring-Rights Contracts, David S. Almeling
The Problems Of Pouring-Rights Contracts, David S. Almeling
Duke Law Journal
No abstract provided.
Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood
Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood
Duke Law Journal
No abstract provided.
The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove
The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove
Duke Law Journal
This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others. Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between …
Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner
Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner
Duke Law Journal
Recent scholarship on regulatory oversight has focused on cost-benefit analysis of perscriptive regulations-regulations that restrict behavior such as pollution-and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis; cost-effectiveness analysis, however, can be …
“Mediation-Only” Filings In The Delaware Court Of Chancery: Can New Value Be Added By One Of America’S Business Courts?, Leo E. Strine Jr.
“Mediation-Only” Filings In The Delaware Court Of Chancery: Can New Value Be Added By One Of America’S Business Courts?, Leo E. Strine Jr.
Duke Law Journal
The following Essay by Vice Chancellor Leo Strine of the Delaware Court of Chancery advocates the enactment of legislation that authorizes the Court of Chancery to handle "mediation-only" cases. Such cases would be filed solely to invoke the aid of a Chancellor to mediate a business dispute between parties. By advocating this innovative dispute resolution option, the Essay embraces a new dimension of the American judicial role that allows American businesses to more efficiently solve complicated business controversies. The mediation-only device was conceived in 2001 by members of the Delaware judiciary, including Vice Chancellor Strine, in consultation with members of …
State Regulation Of Medical Necessity: The Case Of Weight-Reduction Surgery, Mark A. Hall
State Regulation Of Medical Necessity: The Case Of Weight-Reduction Surgery, Mark A. Hall
Duke Law Journal
No abstract provided.
“Vacation” At Sea: Judicial Remedies And Equitable Discretion In Administrative Law, Ronald M. Levin
“Vacation” At Sea: Judicial Remedies And Equitable Discretion In Administrative Law, Ronald M. Levin
Duke Law Journal
Scholars have rarely examined the remedial issues that federal courts may face when they find that an administrative agency has acted unlawfully. This Article presents a broad survey of that topic in the course of exploring a narrower doctrinal issue: the validity of "remand without vacation." That term denotes a practice whereby a court remands an agency action for further work but allows the action to remain in place during the remand proceedings. In recent years many appellate panels have resorted to this practice in order to minimize disruption of an ongoing administrative program or to protect private reliance interests. …
Outsourcing Government Regulation, Sidney A. Shapiro
Outsourcing Government Regulation, Sidney A. Shapiro
Duke Law Journal
No abstract provided.
Shareholder Value And Auditor Independence, William W. Bratton
Shareholder Value And Auditor Independence, William W. Bratton
Duke Law Journal
This Article questions the practice of framing problems concerning auditors' professional responsibility inside a principal-agent paradigm. If professional independence is to be achieved, auditors cannot be enmeshed in agency relationships with the shareholders of their audit clients. As agents, the auditors by definition become subject to the principal's control and cannot act independently. For the same reason, auditors' duties should be neither articulated in the framework of corporate law fiduciary duty, nor conceived relationally at all. These assertions follow from an inquiry into the operative notion of the shareholder-beneficiary. The Article unpacks the notion of the shareholder and tells a …
Exporting U.S. Corporate Governance Standards Through The Sarbanes-Oxley Act: Unilateralism Or Cooperation?, Minodora D. Vancea
Exporting U.S. Corporate Governance Standards Through The Sarbanes-Oxley Act: Unilateralism Or Cooperation?, Minodora D. Vancea
Duke Law Journal
No abstract provided.
Remarks On The Presentations By Professors Shapiro And Levin, Mary M. Schroeder
Remarks On The Presentations By Professors Shapiro And Levin, Mary M. Schroeder
Duke Law Journal
No abstract provided.
Some Thoughts On An Agenda For The Public Company Accounting Oversight Board, Elliott J. Weiss
Some Thoughts On An Agenda For The Public Company Accounting Oversight Board, Elliott J. Weiss
Duke Law Journal
No abstract provided.
Preventing Defendants From Mooting Class Actions By Picking Off Named Plaintiffs, David Hill Koysza
Preventing Defendants From Mooting Class Actions By Picking Off Named Plaintiffs, David Hill Koysza
Duke Law Journal
No abstract provided.
The Qualified Legal Compliance Committee: Using The Attorney Conduct Rules To Restructure The Board Of Directors, Jill E. Fisch, Caroline M. Gentile
The Qualified Legal Compliance Committee: Using The Attorney Conduct Rules To Restructure The Board Of Directors, Jill E. Fisch, Caroline M. Gentile
Duke Law Journal
The Securities and Exchange Commission introduced a new corporate governance structure, the qualified legal compliance committee, as part of the professional standards of conduct for attorneys mandated by the Sarbanes-Oxley Act of 2002. QLCCs are consistent with the Commission's general approach to improving corporate governance through specialized committees of independent directors. This Article suggests, however, that assessing the benefits and costs of creating QLCCs may be more complex than is initially apparent. Importantly, QLCCs are unlikely to be effective in the absence of incentives for active director monitoring. This Article concludes by considering three ways of increasing these incentives.
Managed Care’S Crimea: Medical Necessity, Therapeutic Benefit, And The Goals Of Administrative Process In Health Insurance, William M. Sage
Managed Care’S Crimea: Medical Necessity, Therapeutic Benefit, And The Goals Of Administrative Process In Health Insurance, William M. Sage
Duke Law Journal
No abstract provided.
Perspectives On State And Federal Antitrust Enforcement, Stephen Calkins
Perspectives On State And Federal Antitrust Enforcement, Stephen Calkins
Duke Law Journal
This Article reviews federal and (especially) state antitrust enforcement in light of the Microsoft proceeding. Criticism of state enforcement based on that case is misplaced. The Article identifies three consensus comparative advantages of state enforcers: familiarity with local and regional markets, closeness to state and local institutions, and ability and experience in compensating individuals. A review of state enforcement activities finds that the vast majority are consistent with one or more of these advantages. The Article also identifies hallmarks of generally accepted federal civil non-merger enforcement: both antitrust agencies participate actively, using a variety of tools, while showing support for …
Sec Enforcement Heuristics: An Empirical Inquiry, James D. Cox, Randall S. Thomas, Dana Kiku
Sec Enforcement Heuristics: An Empirical Inquiry, James D. Cox, Randall S. Thomas, Dana Kiku
Duke Law Journal
This Article examines the overlap between SEC securities enforcement actions and private securities fraud class actions. We begin with an overview of data concerning all SEC enforcement actions from 1997 to 2002. We find that the volume of SEC enforcement proceedings is relatively modest. We next examine the scope of the recently enacted "Fair Fund" provision that authorizes the SEC to designate civil penalties it recovers from defendants to benefit defrauded private investors. We conclude that this provision offers only limited potential relief for private investors. We complete this Part of the Article with an analysis of the serious resource …
The Pervasive Problem Of Court-Sanctioned Secrecy And The Exigency Of National Reform, David S. Sanson
The Pervasive Problem Of Court-Sanctioned Secrecy And The Exigency Of National Reform, David S. Sanson
Duke Law Journal
No abstract provided.
Using Comparative Constitutional Law To Resolve Domestic Federal Questions, Donald E. Childress Iii
Using Comparative Constitutional Law To Resolve Domestic Federal Questions, Donald E. Childress Iii
Duke Law Journal
No abstract provided.
The Law And Economics Of Disability Accommodations, Michael Ashley Stein
The Law And Economics Of Disability Accommodations, Michael Ashley Stein
Duke Law Journal
The Americans with Disabilities Act provides a clear mandate that disabled workers be provided with "reasonable" accommodations, but does not meaningfully articulate the standards by which reasonableness ought to be measured. Until now, neither courts nor commentators have provided a systematic model for analyzing accommodation claims. This Article articulates an initial law and economics framework for analyzing disability-related accommodations. In doing so, it demonstrates how accommodations span a cost continuum that can be divided into areas of Wholly Efficient and Semi-Efficient Accommodations to be funded by private employers, Social Benefit Gain Efficient Accommodations where the costs should be borne by …
Following The Law, Not The Crowd: The Constitutionality Of Nontraditional High School Athletic Seasons, Courtney E. Schafer
Following The Law, Not The Crowd: The Constitutionality Of Nontraditional High School Athletic Seasons, Courtney E. Schafer
Duke Law Journal
No abstract provided.
The Laws Of Securities Lawyering After Sarbanes-Oxley, Dongju Song
The Laws Of Securities Lawyering After Sarbanes-Oxley, Dongju Song
Duke Law Journal
No abstract provided.
Justification And Excuse, Law And Morality, Mitchell N. Berman
Justification And Excuse, Law And Morality, Mitchell N. Berman
Duke Law Journal
Anglo-American theorists of the criminal law have concentrated on-one is tempted to say "obsessed over"-the distinction between justification and excuse for a good quarter-century and the scholarly attention has purchased unusually widespread agreement. Justification defenses are said to apply when the actor's conduct was not morally wrongful; excuse defenses lie when the actor did engage in wrongful conduct but is not morally blameworthy. A near-consensus thus achieved, theorists have turned to subordinate matters, joining issue most notably on the question of whether justifications are "subjective"-turning upon the actor's reasons for acting-or "objective"-involving only facts independent of the actor's beliefs and …
The Ambiguity Of Gatt Article Xxi: Subtle Success Or Rampant Failure, Peter Lindsay
The Ambiguity Of Gatt Article Xxi: Subtle Success Or Rampant Failure, Peter Lindsay
Duke Law Journal
No abstract provided.
Waivers Of State Sovereign Immunity And The Ideology Of The Eleventh Amendment, Jonathan R. Siegel
Waivers Of State Sovereign Immunity And The Ideology Of The Eleventh Amendment, Jonathan R. Siegel
Duke Law Journal
States normally enjoy immunity from suit by private parties, but they may waive this immunity. The Supreme Court's steady contraction of other exceptions to the rule of state sovereign immunity has renewed interest in the previously little-discussed possibilities of waiver. This Article explores the boundaries of waiver doctrine. This Article shows that, prior to 1945, the Supreme Court-even as it enforced a broad, substantive rule of state sovereign immunity-applied a sensible doctrine of waiver that balanced the interests of states with those of private parties and the federal judicial system. The Court's traditional doctrine treated state sovereign immunity like the …