Law Commons^™

When Money Grew On Trees: Lucy V. Zehmer And Contracting In A Boom Market, Barak D. Richman, Dennis Schmelzer

Duke Law Journal

This Article revisits Lucy v. Zehmer, a 1950s Virginia Supreme Court ruling that has become a staple in most contracts courses in American law schools. The colorful facts are well known to nearly all law students: Lucy and Zehmer met one evening in December 1952 at a restaurant in Dinwiddie, Virginia, and, following several drinks and much verbal banter, Zehmer wrote a contract on a restaurant bill, in which he agreed to sell his farm to Lucy for $50,000. Zehmer later insisted that he had been intoxicated and had thought the entire matter was a joke. He testified that …

Agents Of Change: The Fiduciary Duties Of Forwarding Market Professionals, Peter D. Isakoff

Duke Law Journal

In the wake of the financial crisis of 2008, the legal system struggles to effectively regulate forwarding market professionals—broker-dealers and investment advisers who invest client funds with third parties. Defining the fiduciary duties these forwarding market professionals owe their clients when they invest funds with third parties raises complex issues concerning due diligence, postinvestment monitoring of investments, and disclosure of material facts. Weak regulatory standards, advances in technology in the financial-services industry, and changes in the scope of services provided by broker-dealers emphasize both the inadequacies of the system created by the Securities Exchange Act of 1934 (1934) Act and …

The Intellectual Property Clause’S External Limitations, Jeanne C. Fromer

Duke Law Journal

The text, structure, and history of the Intellectual Property Clause (IP Clause), as well as subsequent governmental activity, Supreme Court doctrine, and policy, show that the IP Clause limits Congress from using any of its other powers "To promote the Progress of Science and useful Arts" through laws that reach beyond the power conferred by the IP Clause to "secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." That is, the evidence marshaled by this Article shows that the IP Clause externally limits Congress from seeking, via legislation, to promote the progress …

Journal Staff

Duke Law Journal

No abstract provided.

Forum Choice For Terrorism Suspects, Aziz Z. Huq

Duke Law Journal

What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived the debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably …

Executive Defense Of Congressional Acts , Daniel J. Meltzer

Duke Law Journal

This Article explores the appropriate role of the executive branch in enforcing and defending federal statutes that the president, or executive-branch officials, believe may well be unconstitutional, but for whose constitutional validity reasonable arguments can be advanced. The Article first locates the question of the scope of the executive branch’s responsibility to enforce and defend federal statutes in the larger debate about the extent to which political branches of government are authorized—or even obligated—to make determinations of constitutionality independently of the views of the judiciary. It then reviews the historical practice of the executive branch in defending federal statutes—both the …

When Government Intrudes: Regulating Individual Behaviors That Harm The Environment, Katrina Fischer Kuh

Duke Law Journal

Emerging environmental problems and technologies, coupled with the existence of mature regulatory regimes governing most industrial sources of pollution, reveal with new clarity the harms that individual behaviors can inflict on the environment. Changing how individuals impact the environment through their daily behaviors, however, requires a reorientation of environmental law and policy and a balancing of government prerogatives with individual liberty. A growing body of legal scholarship recognizes the environmental significance of individual behaviors, critiques the failure of law and policy to capture harms traceable to individuals, and suggests and evaluates strategies for capturing individual harms going forward. In this …

Patent Validity Across The Executive Branch: Ex Ante Foundations For Policy Development, Arti K. Rai

Duke Law Journal

Among patent scholars who address institutional questions, many favor the courts over the PTO as the policymaker of choice. Even though courts have familiar limitations with respect to policymaking, scholars often argue that the PTO is more likely to be captured. This Essay argues that the capture story has significant limits, particularly in key cases where PTO decision making has been influenced by other executive-branch decision makers. Meanwhile, exclusive reliance on ex post judicial development can yield a one-way ratchet towards the expansion of patent protection. When courts expand patent rights, they generally do not have to worry about retroactive …

The Real Debate Over The Senate’S Role In The Confirmation Process, William Grayson Lambert

Duke Law Journal

The five Supreme Court nominations between 2005 and 2010 brought renewed attention to the Senate’s role in the confirmation process. This Note explores the debate over the Senate’s proper role in that process. First, this Note summarizes and clarifies the two traditional views of the Senate’s role, classifying them as the "assertive view" and the "deferential view," and offers a new framework for understanding these views. This Note then traces the traditional arguments made by proponents of these views. It first examines the historical arguments, both from original understanding and historical practice; it then turns to pragmatic arguments about which …

Journal Staff

Duke Law Journal

No abstract provided.

Stare Decisis And Foreign Affairs, Michael P. Van Alstine

Duke Law Journal

This Article examines whether the jurisprudential and institutional premises of the doctrine of stare decisis retain their validity in the field of foreign affairs. The proper role of the judicial branch in foreign affairs has provoked substantial scholarly debate—historical, institutional, and normative—since the founding of the Republic. Precisely because of the sensitivity of the subject, the Supreme Court has both warned about the judicial branch’s comparative lack of expertise in the field and established a web of deference doctrines designed to protect against improvident judicial action. Notwithstanding all of this discussion, however, neither the Supreme Court nor any scholar has …

The Obsolescence Of San Antonio V. Rodriguez In The Wake Of The Federal Government’S Quest To Leave No Child Behind, Sarah G. Boyce

Duke Law Journal

Since the mid-1950s, a sea change in public education has taken place. Public education—a policy concern traditionally reserved to the states—has become a core concern of the federal government. This Note surveys three of the federal government’s most significant appropriations of power: the enactment of the Elementary and Secondary Education Act (ESEA) in 1965; the creation of the Department of Education in 1980; and the passage of the No Child Left Behind Act of 2001 (NCLB), the most recent, and easily most expansive, iteration of the ESEA. This Note also considers the manner in which the Supreme Court has facilitated …

When For Better Is For Worse: Immigration Law’S Gendered Impact On Foreign Polygamous Marriage, Sarah L. Eichenberger

Duke Law Journal

The United States has banned polygamous immigrants since the late nineteenth century. Enacted amid isolationist fears that an influx of polygamists would cause moral deterioration, the polygamy bar remains a resolute, if often overlooked, feature of modern immigration law. The current immigration scheme continues this tradition, rendering immigrants who intend to practice polygamy in the United States categorically ineligible for legal-permanent-resident status. As a result, the immigration bar allows polygamous men to immigrate with a wife of their choosing and the children from each of their marriages. Their other wives, however, are deemed inadmissible to the United States.

This Note …

Journal Staff

Duke Law Journal

No abstract provided.

A New Generation Of International Adjudication, Gary Born

Duke Law Journal

This Article challenges the conventional view of contemporary international adjudication. It identifies a new generation of international tribunals, which has been largely ignored by commentators, and argues that these tribunals offer a highly successful, alternative model to traditional public-international-law adjudicatory bodies. The proliferation of international tribunals is widely regarded as one of the most significant developments in international law over the past century. The subject has given rise to an extensive and robust body of academic commentary. Although commentators reach widely divergent conclusions about many aspects of international law and adjudication, they all agree that international tribunals differ fundamentally from …

Functional Intimate Association Analysis: A Doctrinal Shift To Save The Roberts Framework, Joshua P. Roling

Duke Law Journal

In Roberts v. U.S. Jaycees, the Supreme Court recognized intimate association as one of the two distinct senses of the freedom of association. In doing so, the Court identified two essential functions that justify constitutional protection for the relationships that provide them: intimate relationships cultivate and transmit shared ideals and beliefs, and they provide opportunities for emotional enrichment and self-identification by facilitating the creation of close bonds among members. Then, recognizing that familial relationships often exemplify these functions, the Court identified four aspects of family relationships that would help distinguish intimate from nonintimate associations: size, purpose, selectivity, and seclusion from …

Friendly, J., Dissenting, Michael Boudin

Duke Law Journal

No abstract provided.

Journal Staff

Duke Law Journal

No abstract provided.