Law Commons^™

Michigan V. Bryant: Defining The “Testimonial Statement”, Hsien-Ying Shine Chen

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

The Constitutional Right To Informational Privacy: Nasa V. Nelson, Russell T. Gorkin

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Land Rights And Socio-Economic Development Of Afro-Brazilian Communities, Noah Browne, Anne Dana, Katherine Shea

Duke Law Student Papers Series

Law students and recent graduates who spent the Spring 2010 semester studying the land rights of Afro-Brazilian communities have submitted their final report to community leaders and Brazilian government officials, institutions, and non-government organizations engaged in the issue.

Written under the supervision of Laurence R. Helfer, the Harry R. Chadwick, Sr. Professor of Law, the report contains insights gleaned from the students’ intense study and research, both at Duke Law and on the ground in Brazil. Along with Helfer, the students spent their 2010 Spring break in Brazil as part of the seminar. They met with members of quilombos -- …

Dna And Due Process, Brandon L. Garrett

Faculty Scholarship

The U.S. Supreme Court in District Attorney's Office v. Osborne confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the United States, the Court heard its first claim by a convict seeking DNA testing that could prove innocence. I argue that, contrary to early accounts, the Court did not reject a constitutional right to postconviction DNA testing. Despite language suggesting the Court would not "constitutionalize the issue" by announcing an unqualified freestanding right, Chief Justice Roberts's majority opinion proceeded to carefully fashion an important, …

Laying Privileges Or Immunities To Rest: Mcdonald V. City Of Chicago, B. Aubrey Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

American Needle, Inc. V. Nfl: Professional Sports Leagues And “Single-Entity” Antitrust Exemption, M. Scott Leblanc

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Lewis V. City Of Chicago: Title Vii’S Limitations Period For Disparate Impact Charges, Kelsey Van Wart

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

How We Lost The High-Tech War Of 2020: A Warning From The Future, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

All Rise - Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

United States V. Comstock: Justifying The Civil Commitment Of Sexually Dangerous Offenders, Halerie Mahan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Briscoe V. Virginia: Reexamining The Scope Of Melendez-Diaz, Caroline Mix

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

The Power Of Posner: A Study Of Prestige And Influence In The Federal Judiciary, Ryan P. Thompson, Christopher C. Mccurdy

Duke Law Student Papers Series

Some judges have a disproportionate influence over the American judiciary; existing research has shown Judge Richard Posner is one of those judges. Our goal was to identify and determine how Judge Posner’s influence has changed over time. To measure and track his influence, we collected and compared citation and invocation data from three distinct time frames. While these measurements are imperfect, they can help illustrate the level of influence and prestige Judge Posner enjoys. The existing literature led us to expect Judge Posner’s early citation rates to be low. After several years on the bench, the citation rates for each …

The Year In Review 2009: Selected Cases From The Alaska Court Of Appeals, The Alaska Supreme Court, The United States Court Of Appeals For The Ninth Circuit, And The United States Supreme Court

Alaska Law Review Year in Review

No abstract provided.

From Judge To Dean: Reflections On The Bench And The Academy, David F. Levi

Faculty Scholarship

In July of 2007, having served nearly seventeen years as a United States District Judge with chambers in Sacramento, California, I moved to Durham, North Carolina, to become the fourteenth dean of the Duke University Law School. I would concede that in the grand scheme of things such a transition must be deemed unremarkable. Lawyers have become soldiers, presidents, artists, and inn keepers. Judges have left the bench to do much the same. Nonetheless, in the somewhat closed worlds of the federal bench and the legal academy, at a time when the two worlds have seemed to drift apart, such …

Pursuing Geoengineering For Atmospheric Restoration, James Salzman, Robert B. Jackson

Faculty Scholarship

Geoengineering is fraught with problems, but research on three approaches could lead to the greatest climate benefits with the smallest chance of unintentional environmental harm. The authors propose a model for thinking about geoengineering based on the concept of restoration, suggesting the term “atmospheric restoration.” Under this model geoengineering efforts are prioritized based on three principles: to treat the cause of the disease itself, to reduce the chance of harm, and to prioritize activities with the greatest chance of public acceptance.

Based on these principles, the authors propose three forms of geoengineering that could provide the greatest climate benefits with …

Proposition 13 And The California Fiscal Shell Game, Colin H. Mccubbins, Mathew D. Mccubbins

Faculty Scholarship

We study the effects of California’s tax and expenditure limitations, especially Proposition 13. We find that Proposition 13 was indeed effective at reducing both ad valorem property taxes per capita and total state and local taxes per capita, at least in the short run. We further argue that there have been unintended second- ary effects that have resulted in an increased tax burden, undermining the aims of Proposition 13. To circumvent the limits imposed by Proposition 13, the state has drastically increased nonguaranteed debt, has privatized the public fisc, and has devolved the authority to lay and collect taxes and …

The Forgotten Freedom Of Assembly, John D. Inazu

Faculty Scholarship

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution'. In 1939, the …

Climate Change, Dead Zones, And Massive Problems In The Administrative State: A Guide For Whittling Away, James Salzman, J.B. Ruhl

Faculty Scholarship

Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about them? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court recently observed in Massachusetts v. Environmental Protection Agency, agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best …

The Federal Circuit: A Model For Reform?, Paul D. Carrington, Paulina Orchard

Faculty Scholarship

Are our federal courts organized suitably to perform their mission of assuring coherent administration of our national law? Maybe not. The senior author of this Article, along with many others, argued to the contrary forty years ago. Now, experience with the United States Court of Appeals for the Federal Circuit tends to confirm that an alternative structure of the federal judiciary could better serve the need for coherent national law, and without serious adverse consequences. Perhaps, therefore, it is now time for Congress to reconsider the matter. We here suggest the possibility that the United States replicate the structure of …

Come The Revolution: A Legal Perspective On Air Operations In Iraq Since 2003, Charles J. Dunlap Jr.

Faculty Scholarship

Has the early part of the twenty-first century shown the most dramatic revolution in the role of law in armed conflict in history? Evidence suggests that it has. Today, for example, allegations about civilian casualties often dominate our discussions about strategy in irregular war, itself a phenomenon that, according to the National Defense Strategy, will preoccupy our military services for years to come. Indeed, as will be discussed below in more detail, adherence to law in armed conflict fact and perception is increasingly a central, if not defining, concern of field commanders, as well as military and civilian leaders at …

A Woman’S Worth, Kimberly D. Krawiec

Faculty Scholarship

This Article examines three traditionally “taboo trades”: (1) the sale of sex, (2) compensated egg donation, and (3) commercial surrogacy. The Article purposely invokes examples in which the compensated provision of goods or services (primarily or exclusively by women) is legal, but in which commodification is only partially achieved or is constrained in some way. I argue that incomplete commodification disadvantages female providers in these instances, by constraining their agency, earning power, or status. Moreover, anticommodification and coercion rhetoric is sometimes invoked in these settings by interest groups who, at best, have little interest in female empowerment and, at worst, …

Nature Or Nurture? Judicial Lawmaking In The European Court Of Justice And The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts’ authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This …

Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi

Faculty Scholarship

Empirical scholarship on judges, judging, and judicial institutions, a staple in political science, is becoming increasingly popular in law schools. We propose that this scholarship can be improved and enhanced by greater collaboration between empirical scholars, legal theorists, and the primary subjects of the research, the judges. We recently hosted a workshop that attempted to move away from the conventional mode of involving judges and theorists in empirical research, where they serve as commentators on empirical studies that they often see as reductionist and mis-focused. Instead, we had the judges and theorists set the discussion agenda for the empiricists by …

Responsible Sovereign Lending And Borrowing, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

There are three reasons for attempting to reach a common understanding of the responsibilities of sovereign borrowers and their lenders. First, the flow of capital to sovereign debtors is exceptionally important to the world economy. Industrialized countries rely on it to finance their budget deficits, these days to a breathtaking extent. Developing countries need it to develop. Misbehaviour, either by the sovereign debtors or by the creditors, destabilizes this key component of the international financial system, making credit less available and more costly.

Second, sovereign finance is uniquely unforgiving of mistakes. Unlike corporate or personal debtors, sovereigns do not have …

Trading-Off Reproductive Technology And Adoption: Does Subsidizing In Vitro Fertilization Decrease Adoption Rates And Should It Matter?, Daniel L. Chen, I. Glenn Cohen

Faculty Scholarship

For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and …

Enforcing International Corrupt Practices Law, Paul D. Carrington

Faculty Scholarship

This Essay strives to advance the current international movement to
deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.

Designing Payments For Ecosystem Services, James Salzman

Faculty Scholarship

This Policy Series by James Salzman brings attention to a rapidly developing phenomenon—payments for ecosystem services (PES).

Salzman, the Samuel F. Mordecai Professor of Law and the Nicholas Institute Professor of Environmental Policy at Duke University, explains when and where ecosystem services can be provided by voluntary markets rather than government actions. The key to understanding how PES work is rooted in the basis of any voluntary market transaction—gains from trade. One party agrees to take action because another party offers an incentive. Both parties benefit. A beekeeper, for example, brings her hives to an orchard to provide pollination services …

Dispute Regarding Navigational And Related Rights (Costa Rica V. Nicaragua), Coalter G. Lathrop

Faculty Scholarship

No abstract provided.

The Humanity Of Law, H. Jefferson Powell

Faculty Scholarship

No abstract provided.