Law Commons^™

Kiobel V. Royal Dutch Petroleum: Delineating The Bounds Of The Alien Tort Statute, Tara Mcgrath

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews the upcoming Supreme Court case, Kiobel v. Royal Dutch Petroleum Co., in which the Court will address questions regarding the Alien Tort Statute and its applicability to foreign conduct and foreign litigants. The case will require the Court to reexamine the bounds of a long-ago established tort doctrine in light of more modern considerations and developments in international law.

Affirmative Action On Life Support: Fisher V. University Of Texas At Austin And The End Of Not-So-Strict Scrutiny, Jonathan W. Rash

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Introduction: Symposium On ‘Convicting The Innocent, Brandon L. Garrett

Faculty Scholarship

Examining what went wrong in the first 250 DNA exonerations was a sobering occupation, and I describe what I found in my book Convicting the Innocent, published by Harvard University Press in 2011. Still more haunting is the question of how many other wrongful convictions have not been uncovered and will never see the light of day. The New England Law Review has brought together a remarkable group of scholars who have each made leading contributions to the study of wrongful convictions from different disciplines and scholarly perspectives: Simon Cole, Deborah Davis, Gisli H. Gudjonsson, Richard Leo, and Elizabeth Loftus. …

Crying Mercy: Life Without Parole For Fourteen-Year-Old Offenders In Miller V. Alabama And Jackson V. Hobbs, Kathryn Mcevilly

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Knox V. Service Employees International Union: Balancing The First Amendment With Fairness Under Union-Shop Agreements, Donata Marcantonio

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Indecent Exposure: Fcc V. Fox And The End Of An Era, David Houska

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Discovering Concealment: Defining The Limits Of Equitable Tolling In Section 16(B) Of The Securities Exchange Act, Boris Rappoport

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

The Threat Of “Clair Motions”: Martel V. Clair And The Standard For Substitution Of Counsel In Federal Habeas Petitions, Lee Czocher

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Williams V. Illinois: Another Look At Expert Testimony And The Confrontation Clause, Libby Greismann

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Warrantless Gps In United States V. Jones: Is 2011 The New 1984?, Edward Boehme

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Minneci V. Pollard And The Uphill Climb To Bivens Relief, Elliot J. Weingarten

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

The Year In Review 2011: Selected Cases From The Alaska Supreme Court, The Alaska Court Of Appeals, 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.

Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum

Faculty Scholarship

No abstract provided.

Mental Health Care Consumption And Outcomes: Considering Preventative Strategies Across Race And Class, Barak D. Richman, Dan Grossman, Frank A. Sloan, Craig Chepke

Faculty Scholarship

In previous work (Richman 2007), we found that even under conditions of equal insurance coverage and access to mental healthcare providers, whites and high-income individuals consume more outpatient mental health services than nonwhites and low-income individuals. We follow-up that study to determine (1) whether nonwhite and low-income individuals obtain medical substitutes to mental healthcare, and (2) whether disparate consumption leads to disparate health outcomes. We find that nonwhites and low-income individuals are more likely than their white and high-income counterparts to obtain mental health care from general practitioners over mental healthcare providers, and nearly twice as likely not to follow …

Its Hour Come Round At Last? State Sovereign Immunity And The Great State Debt Crisis Of The Early Twenty-First Century, Ernest A. Young

Faculty Scholarship

State sovereign immunity is a sort of constitutional comet, streaking across the sky once a century to the amazement and consternation of legal commentators. The comet’s appearance has usually coincided with major state debt crises: The Revolutionary War debts brought us Chisholm v. Georgia and the Eleventh Amendment, and the Reconstruction debts brought us Hans v. Louisiana and the Amendment’s extension to federal question cases. This essay argues that much of our law of state sovereign immunity, including its odd fictions and otherwise-incongruous exceptions, can be understood as an effort to maintain immunity’s core purpose — protecting the states from …

A Neurological Foundation For Freedom, Nita A. Farahany

Faculty Scholarship

No abstract provided.

Can Wrongful Death Damages Recovered By A Married Person Be Separate Property Under California Law?, William A. Reppy Jr.

Faculty Scholarship

Existing California judicial precedent uniformly holds that damages recovered by a married person based on the wrongful death of a relative of the married person during the marriage—and while the spouses were not living separate and apart—is entirely community property. Under the theoretical basis for this community property classification, it is irrelevant that the person tortiously killed was a child or grandchild only of the plaintiff- or payee-spouse and had no legally recognized relationship to that party’s husband or wife, who becomes owner of half the recovery because of its classification as community property. This Article rejects this community property …

The Burdens And Benefits Of Brighton, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Flexibility In International Agreements, Laurence R. Helfer

Faculty Scholarship

This chapter is a contribution to the forthcoming edited volume INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: TAKING STOCK (Jeffrey Dunoff & Mark A. Pollack eds., Cambridge University Press 2012). The chapter provides an overview of flexibility mechanisms in international agreements and the role of such mechanisms in promoting or inhibiting international cooperation. Part I reviews the many flexibility devices available to treaty makers. It divides these tools into two broad categories: formal mechanisms (such as reservations, escape clauses, and withdrawal provisions) and informal practices (such as auto-interpretation, nonparticipation, and noncompliance). Part II reviews the international law and international relations scholarship on …

Accountability In Patenting Of Federally Funded Research, Arti K. Rai, Bhaven N. Sampat

Faculty Scholarship

Bayh-Dole allows academic grantees to patent federally-funded research for purposes of promoting the commercialization of this research. To ensure commercialization goals are achieved, the Act requires grantees to report to funding agencies not only the existence of federally-funded patents but also utilization efforts they and their licensees/assignees are making.

Although reporting is a cornerstone of accountability under Bayh-Dole, information about grantee compliance with reporting requirements is incomplete and dated. In fact, the last significant study of the question dates back to the late 1990s and analyzes only 633 patents. Since that time, concerns have emerged that federally-funded university patents are …

Standing The Test Of Time: The Breadth Of Majority Coalitions And The Fate Of U.S. Supreme Court Precedents, Stuart M. Benjamin, Bruce A. Desmarais

Faculty Scholarship

Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding …

When Copyright Law And Science Collide: Empowering Digitally Integrated Research Methods On A Global Scale, Jerome H. Reichman, Ruth L. Okediji

Faculty Scholarship

Automated knowledge discovery tools have become central to the scientific enterprise in a growing number of fields and are widely employed in the humanities as well. New scientific methods, and the evolution of entirely new fields of scientific inquiry, have emerged from the integration of digital technologies into scientific research processes that ingest vast amounts of published data and literature. The Article demonstrates that intellectual property laws have not kept pace with these phenomena.

Copyright law and science co-existed for much of their respective histories, with a benign tradition of the former giving way to the needs of the latter. …

Constitutional Backdrops, Stephen E. Sachs

Faculty Scholarship

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?

This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …

Ethical Issues Of The Practice Of National Security Law: Some Observations, Charles J. Dunlap

Faculty Scholarship

No abstract provided.

Shadow Banking, Financial Markets, And The Real Estate Sector, Steven L. Schwarcz

Faculty Scholarship

This is a relatively brief “firestarter” talk prepared by the author for the World Economic Forum’s Industry Partnership Strategists Meeting 2012 (held on October 3, 2012) on transformation of the real estate sector in light of ongoing shifts in the financial markets and broader global trends.

Slavery In The United States: Persons Or Property?, Paul Finkelman

Faculty Scholarship

No abstract provided.

Case Management In The Circuit Courts, Marin K. Levy

Faculty Scholarship

No abstract provided.

American Natures: The Shape Of Conflict In Environmental Law, Jedediah Purdy

Faculty Scholarship

There is a firestorm of political and cultural conflict around environmental issues,including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension,approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and …

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …

Further Perspectives On Corporate Wrongdoing, In Pari Delicto, And Auditor Malpractice, Deborah A. Demott

Faculty Scholarship

No abstract provided.