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Full-Text Articles in Law
Advice And Complicity, Matthew A. Smith
Wielding The Wand Without Facing The Music: Allowing Utilization Review Physicians To Trump Doctors’ Orders, But Protecting Them From The Legal Risk Ordinarily Attached To The Medical Degree, Katherine L. Record
Duke Law Journal
This Note identifies a discrepancy in the law governing the decisionmaking that directs patient care. Seeking treatment that a third party will pay for, a patient needs not only a physician-prescribed course of treatment but also an insurer's verification that the cost is medically necessary or otherwise covered by the patient's plan. Both of these decisions directly impact the ultimate care delivered to the patient, but are governed by two very different liability regimes. A patient who suffers an adverse outcome may sue his physician in tort, while a patient who suffers from a lack of coverage may generally sue …
Restoring Rluipas Equal Terms Provision, Sarah Keeton Campbell
Restoring Rluipas Equal Terms Provision, Sarah Keeton Campbell
Duke Law Journal
The Religious Land Use and Institutionalized Persons Act's (RLUIPA) equal terms provision prohibits government from implementing a land-use regulation in a manner that treats religious assemblies and institutions less favorably than secular assemblies and institutions. Lower courts have only begun to interpret and apply RLUIPA's equal terms provision, but already they have significantly weakened its protections of religious liberty by giving the provision unnecessarily restrictive interpretations. Not surprisingly, in light of the Supreme Court's invalidation of the Religious Freedom Restoration Act of 1993 (RFRA), the lower courts' restrictive readings seen? driven by concerns that a broader interpretation would exceed Congress's …
Milberg’S Monopoly: Restoring Honesty And Competition To The Plaintiffs’ Bar, James P. Mcdonald
Milberg’S Monopoly: Restoring Honesty And Competition To The Plaintiffs’ Bar, James P. Mcdonald
Duke Law Journal
When the renowned plaintiffs' firm Milberg Weiss was indicted in 2006 for paying kickbacks to clients, most commentators saw the scandal as the product of five dishonest lawyers. This Note argues that the causes were more complex than the moral shortcomings of a few attorneys; rather, the kickbacks were but one symptom of a deeply flawed system for selecting lead counsel in securities class action lawsuits. Although the Private Securities Litigation Reform Act of 1995 attempted to curb abusive behavior by the plaintiffs' bar, its focus on reforming plaintiff behavior meant that attorneys were left relatively free to continue using …
The Competing Paradigms Of Securities Regulation, James J. Park
The Competing Paradigms Of Securities Regulation, James J. Park
Duke Law Journal
Although the securities industry is primarily regulated by specific rules, it is also governed by general principles. When conduct violates a rule, the regulatory response is obvious-enforce the rule. The issue is more difficult when conduct does not violate a rule but violates a principle. A regulator can excuse the conduct on the ground that the law is unclear and prohibit the conduct going forward through rulemaking. Or, the regulator can punish the conduct through what I call a "principles-based" enforcement action. Since 2002, there has been a surge of principles-based enforcement actions, provoking criticism that regulators are engaging in …
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.
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.
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.
Expert Testimony: Seeking An Appropriate Admissibility Standard For Behavioral Science In Child Sexual Abuse Prosecutions, Dara Loren Steele
Expert Testimony: Seeking An Appropriate Admissibility Standard For Behavioral Science In Child Sexual Abuse Prosecutions, Dara Loren Steele
Duke Law Journal
No abstract provided.
Is There A Place For A Reasonable Woman In The Law? A Discussion Of Recent Developments In Hostile Environment Sexual Harassment, Jolynn Childers
Is There A Place For A Reasonable Woman In The Law? A Discussion Of Recent Developments In Hostile Environment Sexual Harassment, Jolynn Childers
Duke Law Journal
No abstract provided.
Ignorance Is Not Bliss: Responsible Corporate Officers Convicted Of Environmental Crimes And The Federal Sentencing Guidelines, Lisa Ann Harig
Ignorance Is Not Bliss: Responsible Corporate Officers Convicted Of Environmental Crimes And The Federal Sentencing Guidelines, Lisa Ann Harig
Duke Law Journal
No abstract provided.
Background Paper, Thomas D. Rowe Jr.
Foreword: Study On Paths To A Better Way, Warren E. Burger
Foreword: Study On Paths To A Better Way, Warren E. Burger
Duke Law Journal
No abstract provided.
Legal Education In The Era Of Change: Law School Autonomy, James P. White
Legal Education In The Era Of Change: Law School Autonomy, James P. White
Duke Law Journal
No abstract provided.
The Lawyer As Informer, Gerard E. Lynch
Toward A Theory Of “Just Cause” In Employee Discipline Cases, Roger I. Abrams, Dennis R. Nolan
Toward A Theory Of “Just Cause” In Employee Discipline Cases, Roger I. Abrams, Dennis R. Nolan
Duke Law Journal
Although almost every collective bargaining agreement permits the employer to discipline an employee for "just cause," the concept of just cause is not well understood. Rather than leading to fair and consistent resolutions of disciplinary disputes, the concept, as applied in arbitration proceedings, has led to inconsistent results that fail to serve the interests of either management or labor. This article develops a systematic theory of just cause in employee discipline cases by exploring the fundamental understanding of the employment relationship and the effect of the collective bargaining agreement on the fundamental understanding. It presents a model of just cause, …
Nonlegislative Rulemaking And Regulatory Reform, Michael Asimow
Nonlegislative Rulemaking And Regulatory Reform, Michael Asimow
Duke Law Journal
The adoption of interpretive rules and policy statemens is a vital part of the administrative process. These "nonlegislative" rules clarify the language of statutes and prior rules and give structure to agency discretionary powers. Courts have encountered difficulty in distinguishing legislative from nonlegislative rules because the practical impact of both kinds of rules may be the same. Regulatory reform proposals at both federal and state levels would require agencies to employ notice and comment procedures before adopting many nonlegislative rules. This article contends that such requirements would discourage agencies from adopting nonlegislative rules and thus would dramatically disserve the public …
The Attorney’S Duty To Reveal A Client’S Intended Future Criminal Conduct, Timothy J. Miller
The Attorney’S Duty To Reveal A Client’S Intended Future Criminal Conduct, Timothy J. Miller
Duke Law Journal
No abstract provided.
Market Delineation And The Justice Department’S Merger Guidelines, Gregory J. Werden
Market Delineation And The Justice Department’S Merger Guidelines, Gregory J. Werden
Duke Law Journal
On June 14, 1982, the U. S. Department of Justice released new Merger Guidelines which outline its approach to enforcing section 7 of the Clayton Act. Perhaps the most innovative and important aspect of the Guidelines is their approach to market delineation. Gregory Werden, who was intimately involved in the preparation of the Guidelines, explores the practical applications of the Guidelines' market delineation principles. He finds that the Guidelines provide no rules for delineating markets but nevertheless make a major contribution by providing a coherent conceptual framework for thinking about the issues.
The Sec Safe Harbor For Forecasts—A Step In The Right Direction?, Kimberly Till
The Sec Safe Harbor For Forecasts—A Step In The Right Direction?, Kimberly Till
Duke Law Journal
No abstract provided.