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Series

Duke Law

2003

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Articles 1 - 30 of 86

Full-Text Articles in Law

Subject Unrest, Jerome M. Culp Jr., Angela P. Harris, Francisco Valdes Jun 2003

Subject Unrest, Jerome M. Culp Jr., Angela P. Harris, Francisco Valdes

Faculty Scholarship

No abstract provided.


When All Of Us Are Victims: Juror Prejudice And ‘Terrorist’ Trials, Neil Vidmar Jan 2003

When All Of Us Are Victims: Juror Prejudice And ‘Terrorist’ Trials, Neil Vidmar

Faculty Scholarship

No abstract provided.


The Cracked Foundations Of The Right To Secede, Donald L. Horowitz Jan 2003

The Cracked Foundations Of The Right To Secede, Donald L. Horowitz

Faculty Scholarship

No abstract provided.


Asbestos Legislation I: A Defined Contribution Plan, Francis Mcgovern Jan 2003

Asbestos Legislation I: A Defined Contribution Plan, Francis Mcgovern

Faculty Scholarship

No abstract provided.


Mozart And The Red Queen: The Problem Of Regulatory Accretion In The Administrative State, James Salzman, J.B. Ruhl Jan 2003

Mozart And The Red Queen: The Problem Of Regulatory Accretion In The Administrative State, James Salzman, J.B. Ruhl

Faculty Scholarship

No abstract provided.


Incorrect Speech, Incorrect Hearing: A Problem Of Postmodern Legal Education, Paul D. Carrington Jan 2003

Incorrect Speech, Incorrect Hearing: A Problem Of Postmodern Legal Education, Paul D. Carrington

Faculty Scholarship

No abstract provided.


What Exactly Is Racial Diversity?, Devon W. Carbado, Mitu Gulati Jan 2003

What Exactly Is Racial Diversity?, Devon W. Carbado, Mitu Gulati

Faculty Scholarship

No abstract provided.


The ‘Blaine’ Debate: Must States Fund Religious Schools?, Laura S. Underkuffler Jan 2003

The ‘Blaine’ Debate: Must States Fund Religious Schools?, Laura S. Underkuffler

Faculty Scholarship

It is my view that efforts to force states to fund religious schools through voucher plans or otherwise will and should fail. My reasons for this conclusion are two-fold. First, there is no viable federal constitutional argument that states are required to fund religious institutions, including religious schools. Second, there are excellent reasons why the funding of religious institutions is very bad and dangerous policy—reasons which states are free to use as the groundings for their own policies, and which the decision in Zelman has left untouched.


The Trouble With Global Constitutionalism, Ernest A. Young Jan 2003

The Trouble With Global Constitutionalism, Ernest A. Young

Faculty Scholarship

No abstract provided.


Legal Transitions: Some Welfarist Remarks, Matthew D. Adler Jan 2003

Legal Transitions: Some Welfarist Remarks, Matthew D. Adler

Faculty Scholarship

This essay offers a sympathetic, utilitarian critique of Louis Kaplow's famous argument for legal retroactivity in his 1986 article, "An Economic Analysis of Legal Transitions." The argument, very roughly, is that the prospect of retroactivity is desirable if citizens are rational because it gives them a desirable incentive to anticipate legal change. My central claim is that this argument trades upon a dubious, objective view of probability that assumes rational citizens assign the same probabilities to states as rational governmental officials. But it is subjective, not objective probabilities that bear on rational choice, and the subjective probabilities of rational citizens …


Risk, Death And Harm: The Normative Foundations Of Risk Regulation, Matthew D. Adler Jan 2003

Risk, Death And Harm: The Normative Foundations Of Risk Regulation, Matthew D. Adler

Faculty Scholarship

Is death a harm? Is the risk of death a harm? These questions lie at the foundations of risk regulation. Agencies that regulate threats to human life, such as the EPA, OSHA, the FDA, the CPSC, or NHTSA, invariably assume that premature death is a first-party harm - a welfare setback to the person who dies - and often assume that being at risk of death is a distinct and additional first-party harm. If these assumptions are untrue, the myriad statutes and regulations that govern risky activities should be radically overhauled, since the third-party benefits of preventing premature death and …


Introduction To, Preferences And Rational Choice: New Perspectives And Legal Implications, Matthew D. Adler, Claire Finkelstein, Peter Huang Jan 2003

Introduction To, Preferences And Rational Choice: New Perspectives And Legal Implications, Matthew D. Adler, Claire Finkelstein, Peter Huang

Faculty Scholarship

No abstract provided.


Governmental And Academic Integrity At Home And Abroad, Sara Sun Beale Jan 2003

Governmental And Academic Integrity At Home And Abroad, Sara Sun Beale

Faculty Scholarship

No abstract provided.


The Importance Of Recognizing The Underlying Assumptions Of Legal And Moral Arguments: Of Law And Rawls, George C. Christie Jan 2003

The Importance Of Recognizing The Underlying Assumptions Of Legal And Moral Arguments: Of Law And Rawls, George C. Christie

Faculty Scholarship

No abstract provided.


A Flawed Search For Bias In The American Bar Association’S Ratings Of Prospective Judicial Nominess: A Critique Of The Lindgren Study, Neil Vidmar, Michael J. Saks Jan 2003

A Flawed Search For Bias In The American Bar Association’S Ratings Of Prospective Judicial Nominess: A Critique Of The Lindgren Study, Neil Vidmar, Michael J. Saks

Faculty Scholarship

No abstract provided.


Environmental Tribalism, James Salzman, Douglas A. Kysar Jan 2003

Environmental Tribalism, James Salzman, Douglas A. Kysar

Faculty Scholarship

No abstract provided.


Mixing Metaphors: Voting, Dollars, And Campaign Finance Reform (Review Essay), Guy-Uriel Charles Jan 2003

Mixing Metaphors: Voting, Dollars, And Campaign Finance Reform (Review Essay), Guy-Uriel Charles

Faculty Scholarship

Reviewing, Bruce Ackerman & Ian Ayers, Voting with Dollars: A New Paradigm for Campaign Finance (2002)


Book Review: Dekker, The Invisible Line, Joseph Blocher Jan 2003

Book Review: Dekker, The Invisible Line, Joseph Blocher

Faculty Scholarship

Reviewing Henri A.L. Dekker, The Invisible Line: Land Reform, Land Tenure Security and Land Registration (2003)


The Law And Economics Of Critical Race Theory, Mitu Gulati, Devon W. Carbado Jan 2003

The Law And Economics Of Critical Race Theory, Mitu Gulati, Devon W. Carbado

Faculty Scholarship

Legal academics often perceive law and economics (L&E) and critical race theory (CRT) as oppositional discourses. Using a recently published collection of essays on CRT as a starting point, we argue that the understanding of workplace discrimination can be furthered through a collaboration between L&E and CRT. L&E's strength is in its attention to incentives and norms, specifically its concern with explicating how norms incentivize behavior. Its limitation is that it treats race as exogenous and static. Thus, the literature fails to consider how institutional norms affect, and are affected by, race. To put the point another way, L&E does …


Entrenchment Of Ordinary Legislation: A Reply To Professors Posner And Vermeule, Erwin Chemerinsky Jan 2003

Entrenchment Of Ordinary Legislation: A Reply To Professors Posner And Vermeule, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


A Comment On New York Times V. Tasini, David L. Lange Jan 2003

A Comment On New York Times V. Tasini, David L. Lange

Faculty Scholarship

No abstract provided.


Three Generations Of Participation Rights In European Administrative Proceedings, Francesca E. Bignami Jan 2003

Three Generations Of Participation Rights In European Administrative Proceedings, Francesca E. Bignami

Faculty Scholarship

This paper develops a conceptual framework for analyzing the development of participation rights in Community administration from the early 1970's to the present day. Procedural rights can be divided into three categories, each of which is associated with a distinct phase in Community history and a particular set of institutional actors. The first set of rights, the right to a fair hearing when the Commission inflicts sanctions or other forms of hardship on individuals, first emerged in the 1970's in the context of competition proceedings and later in areas such as anti-dumping and structural funds. This phase was driven by …


Understanding The Rehnquist Court: An Admiring Reply To Professor Merril, Erwin Chemerinsky Jan 2003

Understanding The Rehnquist Court: An Admiring Reply To Professor Merril, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.


The Segregation And Resegregation Of American Public Education: The Court’S Role, Erwin Chemerinsky Jan 2003

The Segregation And Resegregation Of American Public Education: The Court’S Role, Erwin Chemerinsky

Faculty Scholarship

Schools in the South and throughout the country are resegregating. Why is this occuring, and why were desegregation efforts limited in their success? This Essay argues that the Supreme Court is largely to blame. In a series of decisions in the 1970's, the Court ensured separate and unequal schools by preventing inderdistrict remedies, refusing to find that inequities in school funding are unconstitutional, and making it difficult to prove a constitutional violation in northern de facto segregated school systems. In a series of decisions in the 1990's, the Court ordered an end to effective desegregation orders. Lower federal courts have …


More On Lazy Rules: Remarks At The Investiture Of Ira Mark Ellman, Katharine T. Bartlett Jan 2003

More On Lazy Rules: Remarks At The Investiture Of Ira Mark Ellman, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.


On Rankings, A Response To Mitchell Berger, Paul D. Carrington Jan 2003

On Rankings, A Response To Mitchell Berger, Paul D. Carrington

Faculty Scholarship

No abstract provided.


The Limits Of Litigation: ‘Americanization’ And Negotiation In The Settlement Of Wto Disputes, Joost H. B. Pauwelyn Jan 2003

The Limits Of Litigation: ‘Americanization’ And Negotiation In The Settlement Of Wto Disputes, Joost H. B. Pauwelyn

Faculty Scholarship

This Article examines the extent to which World Trade Organization WTO) dispute settlement is "Americanized." It scrutinizes three features of the WTO mechanism for proof of "Americanization": the right to a panel, the legalization of the panel process, and the bilateral and adversarial nature of the WTO dispute settlement system. Recognizing the many benefits linked to these three features, the Article then identifies some of the problems that have accompanied them. Finally, the Article suggests ways to remedy those problems focusing, in particular, on how trade disputes could be settled other than through bilateral state-to-state litigation. In that sense, the …


Commercial Trusts As Business Organizations: Unraveling The Mystery, Steven L. Schwarcz Jan 2003

Commercial Trusts As Business Organizations: Unraveling The Mystery, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.


Juror Discussions During Civil Trials: Studying An Arizona Innovation, Neil Vidmar, Shari S. Diamond, Mary R. Rose, René Stemple Ellis Jan 2003

Juror Discussions During Civil Trials: Studying An Arizona Innovation, Neil Vidmar, Shari S. Diamond, Mary R. Rose, René Stemple Ellis

Faculty Scholarship

No abstract provided.


Admissibility Of Fruits Of Breached Evidentiary Privileges: The Importance Of Adversarial Fairness, Party Culpability, And Fear Of Immunity, Robert P. Mosteller Jan 2003

Admissibility Of Fruits Of Breached Evidentiary Privileges: The Importance Of Adversarial Fairness, Party Culpability, And Fear Of Immunity, Robert P. Mosteller

Faculty Scholarship

No abstract provided.