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Full-Text Articles in Law
Politics And Civil Procedure Rulemaking: Reflections On Experience, Paul D. Carrington
Politics And Civil Procedure Rulemaking: Reflections On Experience, Paul D. Carrington
Duke Law Journal
This Article is a reflection on personal experience as well as an account of what has happened to the Federal Rules of Civil Procedure in the most recent quarter century It observes that the Supreme Court of the United States has assigned to itself a role in making procedural law inconsistent with the Rules Enabling Act of 1934 or any more-recent utterance of Congress This procedural law made by the Court is responsive to the desire of business interests to weaken the ability of citizens to enforce laws enacted to protect them from business misconduct The Article concludes with the …
Antitrust Censorship Of Economic Protest, Hillary Greene
Antitrust Censorship Of Economic Protest, Hillary Greene
Duke Law Journal
Antitrust law accepts the competitive marketplace, its operation, and its outcomes as an ideal. Society itself need not and does not. Although antitrust is not in the business of evaluating, for example, the "fairness" of prices, society can, and frequently does, properly concern itself with these issues. When dissatisfaction results, it may manifest itself in an expressive boycott: a form of social campaign wherein purchasers express their dissatisfaction by collectively refusing to buy. Antitrust should neither participate in nor censor such normative discourse. In this Article, I explain how antitrust law impedes this speech, argue why it should not, and …
The Fiduciary Duty In Mutual Fund Excessive Fee Cases: Ripe For Reexamination, Emily D. Johnson
The Fiduciary Duty In Mutual Fund Excessive Fee Cases: Ripe For Reexamination, Emily D. Johnson
Duke Law Journal
Congress imposed a fiduciary duty regarding compensation on investment advisors by adding Section 36(b) to the Investment Company Act of 1940. Legislators intended this fiduciary duty to protect mutual fund investors from excessive management fees. It has failed. Mutual fund investors continue to pay significantly higher fees than institutional investors for the same money management services. In Jones v. Harris Associates, decided in 2008, the Seventh Circuit broke with the widely followed, thirty-year-old precedent of Gartenberg v. Merrill Lynch Asset Management. Chief Judge Easterbrook authored the majority opinion and Judge Posner wrote vigorously in dissent. This disagreement between two titans …
Political Control Of Federal Prosecutions: Looking Back And Looking Forward, Daniel Richman
Political Control Of Federal Prosecutions: Looking Back And Looking Forward, Daniel Richman
Duke Law Journal
This Essay explores the mechanisms of control over federal criminal enforcement that the administration and Congress used or failed to use during George W. Bush's presidency. It gives particular attention to Congress, not because legislators played a dominant role, but because they generally chose to play such a subordinate role. My fear is that the media focus on management inadequacies or abuses within the Justice Department during the Bush administration might lead policymakers and observers to overlook the hard questions that remain about how the federal criminal bureaucracy should be structured and guided during a period of rapidly shifting priorities …
Depoliticizing Administrative Law, Cass R. Sunstein, Thomas J. Miles
Depoliticizing Administrative Law, Cass R. Sunstein, Thomas J. Miles
Duke Law Journal
A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely …
A Response To Professor Ramseyer, Predicting Court Outcomes Through Political Preferences, Michael Boudin
A Response To Professor Ramseyer, Predicting Court Outcomes Through Political Preferences, Michael Boudin
Duke Law Journal
No abstract provided.
Predicting Court Outcomes Through Political Preferences: The Japanese Supreme Court And The Chaos Of 1993, J. Mark Ramseyer
Predicting Court Outcomes Through Political Preferences: The Japanese Supreme Court And The Chaos Of 1993, J. Mark Ramseyer
Duke Law Journal
Empiricists routinely explain politically sensitive decisions of the U.S. federal courts through the party of the executive or legislature appointing the judge. That they can do so reflects the fundamental independence of the courts. After all, appointment politics will predict judicial outcomes only when judges are independent of sitting politicians. Because Japanese Supreme Court justices enjoy an independence similar to that of U.S. federal judges, I use judicial outcomes to ask whether Japanese premiers from different parties have appointed justices with different political preferences. Although the Liberal Democratic Party (LDP) governed Japan for most of the postwar period, it temporarily …
Deciding Death, Corinna Barrett Lain
Deciding Death, Corinna Barrett Lain
Duke Law Journal
When the Supreme Court is deciding death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment '' evolving standards of decency '' doctrine, but their criticism misses the mark. Majoritarian doctrine does not drive the Court's decisions in this area; majoritarian forces elsewhere do. To make my point, I first examine three sets of '' evolving standards '' death penalty decisions in which the Court implicitly or explicitly reversed itself, attacking the legal justification for the Court's change of position and offering an extralegal explanation for why those cases came out the …
Punishment By The People: Rethinking The Jury’S Political Role In Assigning Punitive Damages, Nathan Seth Chapman
Punishment By The People: Rethinking The Jury’S Political Role In Assigning Punitive Damages, Nathan Seth Chapman
Duke Law Journal
No abstract provided.
Against Individually Signed Judicial Opinions, James Markham
Against Individually Signed Judicial Opinions, James Markham
Duke Law Journal
No abstract provided.
Horizontal Political Externalities: The Supply And Demand Of Disaster Management, Ben Depoorter
Horizontal Political Externalities: The Supply And Demand Of Disaster Management, Ben Depoorter
Duke Law Journal
This Article discusses the dynamics of shared political accountability and provides a supply- and demand-side analysis of disaster management. Because multiple levels of government share political accountability in national scale disasters, disaster management is subject to a collective action problem. Introducing the concept of horizontal political externalities, this Article explains the shortcomings of disaster management in terms of asymmetric political accountability costs for ex ante preparedness and ex post relief. In the presence of shared accountability, investments in prevention and relief by one government actor confer positive externalities upon other government actors by reducing the overall chance of being held …
Political Trials In Domestic And International Law, Eric A. Posner
Political Trials In Domestic And International Law, Eric A. Posner
Duke Law Journal
Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a nonimmediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections-often with the complicity of judges-but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This Article argues that the amount of process enjoyed by defendants in criminal trials reflects a balancing of two …
The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins
The Academic Expert Before Congress: Observations And Lessons From Bill Van Alstyne’S Testimony, Neal Devins
Duke Law Journal
No abstract provided.
Polygamy As A Red Herring In The Same-Sex Marriage Debate, Ruth K. Khalsa
Polygamy As A Red Herring In The Same-Sex Marriage Debate, Ruth K. Khalsa
Duke Law Journal
No abstract provided.
Freedom In The Commons: Towards A Political Economy Of Information, Yochai Benkler
Freedom In The Commons: Towards A Political Economy Of Information, Yochai Benkler
Duke Law Journal
In 1999, George Lucas released a bloated and much maligned “prequel” to the Star Wars Trilogy, called The Phantom Menace. In 2001, a disappointed Star Wars fan made a more tightly cut version, which almost eliminated a main sidekick called Jar-Jar Binks and subtly changed the protagonist—rendering Anakin Skywalker, who was destined to become Darth Vader, a much more somber child than the movie had originally presented. The edited version was named “The Phantom Edit.” Lucas was initially reported amused, but later clamped down on distribution. It was too late. The Phantom Edit had done something that would have been …
Bargaining In The Shadow Of Administrative Procedure: The Public Interest In Rulemaking Settlement, Jim Rossi
Bargaining In The Shadow Of Administrative Procedure: The Public Interest In Rulemaking Settlement, Jim Rossi
Duke Law Journal
No abstract provided.
The Psychology Of Accountability And Political Review Of Agency Rules, Mark Seidenfeld
The Psychology Of Accountability And Political Review Of Agency Rules, Mark Seidenfeld
Duke Law Journal
No abstract provided.
Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington
Taking What They Give Us: Explaining The Court’S Federalism Offensive, Keith E. Whittington
Duke Law Journal
No abstract provided.
Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder
Causes Of The Recent Turn In Constitutional Interpretation, Christopher H. Schroeder
Duke Law Journal
No abstract provided.
Why Modest Proposals Offer The Best Solution For Combating Racial Profiling, Sean P. Trende
Why Modest Proposals Offer The Best Solution For Combating Racial Profiling, Sean P. Trende
Duke Law Journal
No abstract provided.
On Listening To The Kulturkampf, Or, How America Overruled Bowers V. Hardwick, Even Though Romer V. Evans Didn’T, Jay Michaelson
On Listening To The Kulturkampf, Or, How America Overruled Bowers V. Hardwick, Even Though Romer V. Evans Didn’T, Jay Michaelson
Duke Law Journal
No abstract provided.
A Black Party? Timmons, Black Backlash And The Endangered Two-Party Paradigm, Terry Smith
A Black Party? Timmons, Black Backlash And The Endangered Two-Party Paradigm, Terry Smith
Duke Law Journal
In a pair of 1997 electoral decisions, the Supreme Court decided that Minnesota could prohibit fusion candidacies in the interest of maintaining a strong two-party system, but that Georgia could not create two new majority-minority congressional districts because the redistricting process had been impermissibly infected by race. In this Article, Professor Smith argues that these two decisions unavoidably conflict. While the fusion case reaffirmed the states' interest in maintaining a strong two-party system, the racial gerrymandering case severely undercut the states' ability to achieve this interest in jurisdictions where the major parties are racially stratified. He demonstrates that blacks operating …
A Politics Of Intellectual Property: Environmentalism For The Net?, James Boyle
A Politics Of Intellectual Property: Environmentalism For The Net?, James Boyle
Duke Law Journal
This Essay argues that we need a politics, or perhaps a political economy, of intellectual property. Using the controversy over copyright on the Internet as a case study and the history of the environmental movement as a comparison, it offers a couple of modest proposals about what such a politics might look like-what theoretical ideas it might draw upon, and what constituencies it might unite.
Posner On Duncan Kennedy And Racial Difference: White Authority In The Legal Academy, Jerome Mccristal Culp Jr.
Posner On Duncan Kennedy And Racial Difference: White Authority In The Legal Academy, Jerome Mccristal Culp Jr.
Duke Law Journal
No abstract provided.
A Hair Piece: Perspectives On The Intersection Of Race And Gender, Paulette M. Caldwell
A Hair Piece: Perspectives On The Intersection Of Race And Gender, Paulette M. Caldwell
Duke Law Journal
No abstract provided.
Congress To Administrative Agencies: Creator, Overseer, And Partner, Edward J. Markey
Congress To Administrative Agencies: Creator, Overseer, And Partner, Edward J. Markey
Duke Law Journal
No abstract provided.
Politics And Due Process: The Rhetoric Of Social Security Disability Law, Anthony Taibi
Politics And Due Process: The Rhetoric Of Social Security Disability Law, Anthony Taibi
Duke Law Journal
No abstract provided.
The President’S Power Of The Purse, J. Gregory Sidak
The President’S Power Of The Purse, J. Gregory Sidak
Duke Law Journal
No abstract provided.
Considering Political Alternatives To “Hard Look” Review, Peter L. Strauss
Considering Political Alternatives To “Hard Look” Review, Peter L. Strauss
Duke Law Journal
No abstract provided.
Two Problems In Administrative Law: Political Polarity On The District Of Columbia Circuit And Judicial Deterrence Of Agency Rulemaking, Richard J. Pierce Jr.
Two Problems In Administrative Law: Political Polarity On The District Of Columbia Circuit And Judicial Deterrence Of Agency Rulemaking, Richard J. Pierce Jr.
Duke Law Journal
In a refreshingly candid article, Chief Judge Wald of the D.C. Circuit noted in 1986: "The flow of membership in the D.C. Circuit . . . is more like what one would expect in Congress with elections every few years, or in the Executive, shifting its key policymakers with each administration." 1 Eleven of the twelve D.C. Circuit judges were appointed by President Reagan or President Carter within the last nine years. Most served previously in policymaking positions in either the legislative or executive branches of government. Based on their record of decisionmaking with respect to judicial review of agency …