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Articles 1 - 30 of 33
Full-Text Articles in Law
Rational Custom, Edward T. Swaine
Rational Custom, Edward T. Swaine
Duke Law Journal
Customary international law is understood to require that state practices be followed from a sense of legal obligation, though international lawyers have long puzzled over how those obligations come into being. Recent work applying rational choice theory suggests, unsettlingly, that the entire inquiry is misconceived: practices commonly attributed to obligations are merely behavioral regularities that arise from intersecting state interests, and the role of legal obligations is minimal at best. This Article attempts to explain how the rational choice critique and traditional doctrine may be reconciled. Rational choice theory, it is argued, responds to a genuine problem in the existing …
The Juvenile Death Penalty And International Law, Curtis A. Bradley
The Juvenile Death Penalty And International Law, Curtis A. Bradley
Duke Law Journal
The United States is almost alone among nations in permitting the execution of juvenile offenders. Citing this fact, along with a variety of legal and historical materials, litigants and scholars are increasingly claiming that the United States' use of the juvenile death penalty violates international law. This Article examines the validity of this claim, from the perspective of both the international legal system and the U. S. legal system. Based on a detailed examination of the United States' interaction with treaty regimes and international institutions since the late 1940s, the Article concludes that the international law arguments against the juvenile …
Diplomats Or Defendants? Defining The Future Of Head-Of-State Immunity, Michael A. Tunks
Diplomats Or Defendants? Defining The Future Of Head-Of-State Immunity, Michael A. Tunks
Duke Law Journal
No abstract provided.
A Public Trust Argument For Public Access To Private Conservation Land, Sarah C. Smith
A Public Trust Argument For Public Access To Private Conservation Land, Sarah C. Smith
Duke Law Journal
No abstract provided.
On The Outside Seeking In: Must Intervenors Demonstrate Standing To Join A Lawsuit?, Juliet Johnson Karastelev
On The Outside Seeking In: Must Intervenors Demonstrate Standing To Join A Lawsuit?, Juliet Johnson Karastelev
Duke Law Journal
No abstract provided.
Congressional Access To Information: Using Legislative Will And Leverage, Louis Fisher
Congressional Access To Information: Using Legislative Will And Leverage, Louis Fisher
Duke Law Journal
No abstract provided.
Executive Privilege Revived?: Secrecy And Conflict During The Bush Presidency, Mark J. Rozell
Executive Privilege Revived?: Secrecy And Conflict During The Bush Presidency, Mark J. Rozell
Duke Law Journal
No abstract provided.
Shall Weigh Your God And You: Assessing The Imperialistic Implications Of The International Religious Freedom Act In Muslim Countries, Matthew L. Fore
Shall Weigh Your God And You: Assessing The Imperialistic Implications Of The International Religious Freedom Act In Muslim Countries, Matthew L. Fore
Duke Law Journal
No abstract provided.
The Patriot Act’S Impact On The Government’S Ability To Conduct Electronic Surveillance Of Ongoing Domestic Communications, Nathan C. Henderson
The Patriot Act’S Impact On The Government’S Ability To Conduct Electronic Surveillance Of Ongoing Domestic Communications, Nathan C. Henderson
Duke Law Journal
No abstract provided.
The Paradox Of Auxiliary Rights: The Privilege Against Self-Incrimination And The Right To Keep And Bear Arms, Michael Steven Green
The Paradox Of Auxiliary Rights: The Privilege Against Self-Incrimination And The Right To Keep And Bear Arms, Michael Steven Green
Duke Law Journal
According to Locke's theory of the social contract, which was widely accepted by the Founders, political authority is limited by those natural moral rights that individuals reserve against the government. In this Article, I argue that Locke's theory generates paradoxical conclusions concerning the government's authority over civil disobedients, that is, people who resist the government because they believe it is violating reserved moral rights. If the government lacks the authority to compel the civil disobedient to abide by its laws, the result is anarchism: The limits on governmental authority are whatever each individual says they are. If the government has …
The Scope Of Bar Orders In Federal Securities Fraud Settlements, David Kaplan
The Scope Of Bar Orders In Federal Securities Fraud Settlements, David Kaplan
Duke Law Journal
No abstract provided.
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
Duke Law Journal
The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused frequencies, but there is good reason to believe that such government-created idle frequencies exist. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This Article addresses the question whether the scarcity rationale-or any other reasoning-supports distinguishing …
A Gaudier Future That Almost Blinds The Eye: A Review Of The Future Of Ideas By Lawrence Lessig, Daphne Keller
A Gaudier Future That Almost Blinds The Eye: A Review Of The Future Of Ideas By Lawrence Lessig, Daphne Keller
Duke Law Journal
No abstract provided.
Road Shows On The Internet: Taking Individual Investors For A Ride On The Information Highway, Linda J. Yi
Road Shows On The Internet: Taking Individual Investors For A Ride On The Information Highway, Linda J. Yi
Duke Law Journal
No abstract provided.
Terrorism On Trial: The President’S Constitutional Authority To Order The Prosecution Of Suspected Terrorists By Military Commission, Christopher M. Evans
Terrorism On Trial: The President’S Constitutional Authority To Order The Prosecution Of Suspected Terrorists By Military Commission, Christopher M. Evans
Duke Law Journal
No abstract provided.
Linking The Culpability And Circumstantial Evidence Requirements For The Spoliation Inference, Drew D. Dropkin
Linking The Culpability And Circumstantial Evidence Requirements For The Spoliation Inference, Drew D. Dropkin
Duke Law Journal
No abstract provided.
Legal Turbulence: The Court’S Misconstrual Of The Airline Deregulation Act’S Preemption Clause And The Effect On Passengers’ Rights, Daniel H. Rosenthal
Legal Turbulence: The Court’S Misconstrual Of The Airline Deregulation Act’S Preemption Clause And The Effect On Passengers’ Rights, Daniel H. Rosenthal
Duke Law Journal
No abstract provided.
Miranda’S Final Frontier—The International Arena: A Critical Analysis Of United States V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey
Duke Law Journal
In recent years, the FBI and other federal law enforcement agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and Internet fraud schemes to terrorism. Where this law enforcement activity includes custodial interrogation of non-American citizens abroad, must American law enforcement officials provide Miranda warnings to such suspects? In 2001 in United States v. Bin Laden, a federal district court held that the Fifth Amendment's privilege against self-incrimination applies to non-American citizens interrogated abroad, thus requiring Miranda warnings in this context. This Article criticizes the Bin Laden court's strict application of Miranda and suggests that Miranda should …
The Architecture Of Innovation, Lawrence Lessig
The Architecture Of Innovation, Lawrence Lessig
Duke Law Journal
No abstract provided.
Whither Securities Regulation? Some Behavioral Observations Regarding Proposals For Its Future, Robert Prentice
Whither Securities Regulation? Some Behavioral Observations Regarding Proposals For Its Future, Robert Prentice
Duke Law Journal
Respected commentators have floated several proposals for startling reforms of America's seventy-year-old securities regulation scheme. Many involve substantial deregulation with a view toward allowing issuers and investors to contract privately for desired levels of disclosure and fraud protection. The behavioral literature explored in this Article cautions that in a deregulated securities world it is exceedingly optimistic to expect issuers voluntarily to disclose optimal levels of information, securities intermediaries such as stock exchanges and stockbrokers to appropriately consider the interests of investors, or investors to be able to bargain efficiently for fraud protection.
Keeping The “Civil” In Civil Litigation: The Need For A Punitive Damage-Actual Damage Link In Title Vii Cases , David C. Searle
Keeping The “Civil” In Civil Litigation: The Need For A Punitive Damage-Actual Damage Link In Title Vii Cases , David C. Searle
Duke Law Journal
No abstract provided.
Federalism In The Taft Court Era: Can It Be “Revived”?, Robert Post
Federalism In The Taft Court Era: Can It Be “Revived”?, Robert Post
Duke Law Journal
This Article analyzes the Supreme Court's view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial centralization through the enforcement of federal common law and constitutional rights. The resurgent federalism of the contemporary Court is typically characterized as "reviving" pre-New Deal principles. This Article concludes, however, that any such revival is highly implausible. It offers four reasons for this conclusion. First, the pre-New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government …
The Unintended Consequences Of Enhancing Gun Penalties: Shooting Down The Commerce Clause And Arming Federal Prosecutors, Sara Sun Beale
The Unintended Consequences Of Enhancing Gun Penalties: Shooting Down The Commerce Clause And Arming Federal Prosecutors, Sara Sun Beale
Duke Law Journal
No abstract provided.
Global Decentralization And The Subnational Debt Problem, Steven L. Schwarcz
Global Decentralization And The Subnational Debt Problem, Steven L. Schwarcz
Duke Law Journal
According to the World Bank, decentralization of government is a pivotal force that will shape global development policy in the twenty-first century. Subnational debt restructuring has emerged as one of decentralization's most difficult problems. Financially troubled municipalities face many of the same concerns, for example, as financially troubled nations: holdout creditors can stymie collective attempts at debt restructuring, and reliance on politically motivated lenders of last resort (the International Monetary Fund in the case of troubled nations, the central government in the case of troubled municipalities) can foster moral hazard. In a prior article, I argued that an international convention …
Rational Expectations Of Leniency: Implicit Plea Agreements And The Prosecutor’S Role As A Minister Of Justice, Eli Paul Mazur
Rational Expectations Of Leniency: Implicit Plea Agreements And The Prosecutor’S Role As A Minister Of Justice, Eli Paul Mazur
Duke Law Journal
No abstract provided.