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Articles 1 - 30 of 139
Full-Text Articles in Law
Medtronic V. Boston Scientific: Allocating The Burden Of Proof In Declaratory Judgment Actions For Patent Non-Infringement, Brianna Strange
Medtronic V. Boston Scientific: Allocating The Burden Of Proof In Declaratory Judgment Actions For Patent Non-Infringement, Brianna Strange
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Medtronic, Inc. v. Boston Scientific Corporation, in which the Court will decide which party bears the burden of proof in a declaratory judgment action for patent non-infringement.
At Home In The Outer Limits: Daimlerchrysler V. Bauman And The Bounds Of General Personal Jurisdiction, Todd W. Noelle
At Home In The Outer Limits: Daimlerchrysler V. Bauman And The Bounds Of General Personal Jurisdiction, Todd W. Noelle
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, DaimlerChrysler v. Bauman, in which the Court may decide whether maintaining a wholly-owned subsidiary in a forum state can render a foreign parent corporation "essentially at home" in that state, thereby permitting the forum state to exercise general personal jurisdiction over the parent corporation.
Atlantic Marine V. J-Crew: The Future Of Forum-Selection Clauses In Federal Courts, Sarah Sheridan
Atlantic Marine V. J-Crew: The Future Of Forum-Selection Clauses In Federal Courts, Sarah Sheridan
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Atlantic Marine v. J-Crew, in which the Court may clarify a circuit split regarding the enforceability of forum-selection clauses by deciding which procedure should govern the enforcement of these clauses and which party carries the burden of proof in these disputes.
The Voting Rights Act's Fight To Stay Rational: Shelby County V. Holder, Sudeep Paul
The Voting Rights Act's Fight To Stay Rational: Shelby County V. Holder, Sudeep Paul
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Shelby County v. Holder, in which the Court may decide whether Congress's 2006 reauthorization of Section 5 and Section 4(b) of the Voting Rights Act was constitutional.
Democratic Development And The Public Sphere: The Rights To Hear And Be Heard In Ghana, Duke Law School Seminar And Fact-Finding Trip To Ghana
Democratic Development And The Public Sphere: The Rights To Hear And Be Heard In Ghana, Duke Law School Seminar And Fact-Finding Trip To Ghana
Duke Law Student Papers Series
No abstract provided.
Maryland V. King: The Fourth Amendment Spirals Down The Double Helix, Sitara V. Witanachchi
Maryland V. King: The Fourth Amendment Spirals Down The Double Helix, Sitara V. Witanachchi
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Maryland v. King, in which the Court may decide whether requiring an arrestee to submit to a buccal swab for identification purposes violates the arrestee's privacy interests under the Fourth Amendment.
Hollingsworth V. Perry: Expressive Harm And The Stakes Of "Marriage", Corinne Blalock
Hollingsworth V. Perry: Expressive Harm And The Stakes Of "Marriage", Corinne Blalock
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Hollingsworth v. Perry, in which the Court may decide whether Proposition 8 violates either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
Patent Exhaustion And The Federal Circuit’S Deviant Conditional Sale Doctrine: Bowman V. Monsanto, Adam Garmezy
Patent Exhaustion And The Federal Circuit’S Deviant Conditional Sale Doctrine: Bowman V. Monsanto, Adam Garmezy
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Mcburney V. Young: Testing The Limits Of Citizens-Only Freedom Of Information Laws, Patrick Jamieson
Mcburney V. Young: Testing The Limits Of Citizens-Only Freedom Of Information Laws, Patrick Jamieson
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, McBurney v. Young, in which the Court will decide whether the citizens-only provision of Virginia's Freedom of Information Act violates the Privileges and Immunities Clause or the dormant Commmerce Clause.
Validating The Right To Counsel, Brandon L. Garrett
Validating The Right To Counsel, Brandon L. Garrett
Faculty Scholarship
This Essay, written as part of a Symposium celebrating the 50th Anniversary of Gideon v. Wainwright, focuses on the elaboration of the Gideon right in the context of ineffective assistance of counsel litigation. First, I describe how ineffective assistance of counsel claims came to dominate and define federal habeas corpus litigation, changing the structure of state post-conviction rules in reaction to the new prominence of ineffective assistance of counsel claims at the federal level, expanding to consider assistance of counsel during plea bargaining, and raising complex questions for post-conviction courts. Despite the ubiquity of ineffective assistance of counsel claims, the …
Materiality Immaterial? Revisiting Standards For Securities Fraud Class Certification In Amgen V. Connecticut Retirement Plans And Trust Funds, Nancy My Nguyen
Materiality Immaterial? Revisiting Standards For Securities Fraud Class Certification In Amgen V. Connecticut Retirement Plans And Trust Funds, Nancy My Nguyen
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Amgen v. Connecticut Retirement Plans and Trust Funds, in which the Court will decide whether plaintiffs in securities fraud class actions must prove materiality at the class certification stage, or if that inquiry is more appropriately left to later stages of litigation. The case requires the Court to resolve a circuit split on this issue, and will have far-reaching implications for the future of securities fraud litigation.
In All Fairness: Us Airways V. Mccutchen And The Use Of Equitable Defenses In Erisa Reimbursement Claims, Ravi Patel
In All Fairness: Us Airways V. Mccutchen And The Use Of Equitable Defenses In Erisa Reimbursement Claims, Ravi Patel
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, US Airways v. McCutchen, in which the Court will decide whether courts are permitted to use equitable principles to rewrite contractual language for benefit plans under ERISA. In so doing, the Court must decide whether to give effect to the Third Circuit's holding, that ERISA does permit this use of equitable principles, which runs contrary to the majority of circuits.
The Prying Nose: Florida V. Jardines And Warrantless Dog-Sniff Tests On Private Property, Ali Mirsaidi
The Prying Nose: Florida V. Jardines And Warrantless Dog-Sniff Tests On Private Property, Ali Mirsaidi
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Florida v. Jardines, in which the Court will decide whether a dog-sniff test at the front door of a home constitutes a Fourth Amendment search. The case asks the Court to resolve its prior decisions holding that dog-sniff tests are minimally intrusive when conducted in public with its decisions affording higher protections for searches of private residences.
Determining Rights To Resell: Kirtsaeng V. John Wiley & Sons, Sandra Yoo
Determining Rights To Resell: Kirtsaeng V. John Wiley & Sons, Sandra Yoo
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Kirtsaeng v. John Wiley & Sons, in which the Court will decide whether the "first sale" doctrine applies to foreign-made copies. Broadly, the case will determine the ability of manufacturers to control the distribution of foreign-made copies once they have been sold and asks the Court to resolve a circuit split on the correct interpretation of the relevant provisions of the Copyright Act.
Clapper V. Amnesty International: Who Has Standing To Challenge Government Surveillance?, Elisa Sielski
Clapper V. Amnesty International: Who Has Standing To Challenge Government Surveillance?, Elisa Sielski
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Clapper v. Amnesty International, in which the Court will examine whether plaintiffs have standing to challenge possible government surveillance under the Foreign Intelligence Surveillance Act. In so doing, the Court will have to revisit the standards for standing in surveillance cases in light of Laird v. Tatum and a circuit split stemming from that case.
Take The Money And Run: Detainment Incident To A Search Warrant In Bailey V. United States, Alexander Hall
Take The Money And Run: Detainment Incident To A Search Warrant In Bailey V. United States, Alexander Hall
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Bailey v. United States, in which the Court will examine the scope of permissible non-arrest seizures in the context of a detainment incident to a search warrant. The case offers the Court an opportunity to clarify its holding in Michigan v. Summers--that occupants of premises being searched pursuant to a valid warrant may be detained during the search--by determining whether such a detainment is permissible when the occupants have left the premises.
Evans V. Michigan: The Impact Of Judicial Error On Double Jeopardy Protection, Zi-Xiang Shen
Evans V. Michigan: The Impact Of Judicial Error On Double Jeopardy Protection, Zi-Xiang Shen
Duke Journal of Constitutional Law & Public Policy Sidebar
This commentary previews an upcoming Supreme Court case, Evans v. Michigan, in which the Court has an opportunity to clarify the bounds of the prohibition on double jeopardy. More specifically, the Court will determine what, if any, impact judicial error has on double jeopardy protection under the Fifth Amendment.
Emergency Power And Two-Tiered Legality, Curtis A. Bradley
Emergency Power And Two-Tiered Legality, Curtis A. Bradley
Duke Law Journal Online
No abstract provided.
The Year In Review 2012: Selected Cases From The Alaska Supreme Court, The Alaska Court Of Appeals, The United States Supreme Court, The United States District Court For The District Of Alaska, And The United States Court Of Appeals For The Ninth Circuit
Alaska Law Review Year in Review
No abstract provided.
The Greek Debt Restructuring: An Autopsy, Jeromin Zettelmeyer, Christoph Trebesch, Mitu Gulati
The Greek Debt Restructuring: An Autopsy, Jeromin Zettelmeyer, Christoph Trebesch, Mitu Gulati
Faculty Scholarship
The Greek debt restructuring of 2012 stands out in the history of sovereign defaults. It achieved very large debt relief—over 50 percent of 2012 GDP—with minimal financial disruption, using a combination of new legal techniques, exceptionally large cash incentives, and official sector pressure on key creditors. But it did so at a cost. The timing and design of the restructuring left money on the table from the perspective of Greece, created a large risk for European taxpayers, and set precedents—particularly in its very generous treatment of holdout creditors—that are likely to make future debt restructurings in Europe more difficult.
The Problem Of Holdout Creditors In Eurozone Sovereign Debt Restructuring, Mitu Gulati, Lee C. Buchheit, Ignacio Tirado
The Problem Of Holdout Creditors In Eurozone Sovereign Debt Restructuring, Mitu Gulati, Lee C. Buchheit, Ignacio Tirado
Faculty Scholarship
The Eurozone official sector has declared that the belated restructuring of Greek bonds held by private sector creditors in 2012 was a “unique and exceptional” event, never, ever to be repeated in any other Eurozone country. Maybe so. But if this assurance proves in time to be as fragile as the official sector’s prior pronouncements on the subject of “private sector involvement” in Eurozone sovereign debt problems, any future Eurozone debt restructuring will be surely plagued by the problem of non-participating creditors --- holdouts. Indeed, it is the undisguised fear of holdouts and the prospect of a messy, Argentine-style debt …
How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young
How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young
Faculty Scholarship
No abstract provided.
Collective Action Federalism And Its Discontents, Neil S. Siegel
Collective Action Federalism And Its Discontents, Neil S. Siegel
Faculty Scholarship
An increasing number of scholars argue that the Commerce Clause is best read in light of the collective action problems that the nation faced under the Articles of Confederation. The work of these “collective action theorists” is reflected in Justice Ginsburg’s opinion in National Federation of Independent Business v. Sebelius. Writing for four Justices, she stressed the “collective-action impasse” at the state level to which the Affordable Care Act responds.
In its purest form, a collective action approach maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient …
Dreaming Denationalized Law: Scholarship On Autonomous International Arbitration As Utopian Literature, Ralf Michaels
Dreaming Denationalized Law: Scholarship On Autonomous International Arbitration As Utopian Literature, Ralf Michaels
Faculty Scholarship
A completely denationalised law is of course a utopia. But it is a utopia not just in the broad sense of being unrealistic, at least for the present, and perhaps also for the future. No, it is a utopia in the very literal sense of the word. Recall what utopia means in Greek: no place. Delocalised arbitration, non-state law, is, quite literally, no-place law. It thus makes up a utopia in the central meaning of the term.
International Commercial Arbitration should be just about money. But its scholarship is full of invocations of dreams, visions, faith, utopia. These are not …
A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young
A General Defense Of Erie Railroad Co. V. Tompkins, Ernest A. Young
Faculty Scholarship
Erie Railroad Co. v. Tompkins was the most important federalism decision of the Twentieth Century. Justice Brandeis’s opinion for the Court stated unequivocally that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. . . . There is no federal general common law.” Seventy-five years later, however, Erie finds itself under siege. Critics have claimed that it is “bereft of serious intellectual or constitutional support” (Michael Greve), based on a “myth” that must be “repressed” (Craig Green), and even “the worst decision …
The End Of Annulment, Kerry Abrams
What Makes The Family Special?, Kerry Abrams
What Makes The Family Special?, Kerry Abrams
Faculty Scholarship
No abstract provided.
Remaining Silent After Salinas, Brandon L. Garrett
Remaining Silent After Salinas, Brandon L. Garrett
Faculty Scholarship
In its ruling last Term in Salinas v Texas, the Supreme Court further eroded what little remains of the Fifth Amendment jurisprudence protecting against coercive police questioning of suspects. In this short piece for the University of Chicago Law Review's online Dialogue, I explore the Salinas decision and its implications. I argue that the result encourages precisely the types of informal, undocumented questioning that can cause false confessions and wrongful convictions.
Does Agency Funding Affect Decisionmaking?: An Empirical Assessment Of The Pto’S Granting Patterns, Michael D. Frakes, Melissa F. Wasserman
Does Agency Funding Affect Decisionmaking?: An Empirical Assessment Of The Pto’S Granting Patterns, Michael D. Frakes, Melissa F. Wasserman
Faculty Scholarship
No abstract provided.
Regulating Shadows: Financial Regulation And Responsibility Failure, Steven L. Schwarcz
Regulating Shadows: Financial Regulation And Responsibility Failure, Steven L. Schwarcz
Faculty Scholarship
In the modern financial architecture, financial services and products increasingly are provided outside of the traditional banking system—and thus without the need for bank intermediation between capital markets and the users of funds. Most corporate financing, for example, no longer is dependent on bank loans but raised through special-purpose entities, money-market mutual funds, securities lenders, hedge funds, and investment banks. This shift, referred to as “disintermediation” and described as creating a “shadow banking” system, is so radically transforming finance that regulatory scholars need to rethink their assumptions. Two of the fundamental market failures underlying shadow banking—information failure and agency failure—were …