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Articles 1 - 30 of 30
Full-Text Articles in Law
Liberating Lawyers: Divergent Parallels In Intruder In The Dust And To Kill A Mockingbird, Rob Atkinson
Liberating Lawyers: Divergent Parallels In Intruder In The Dust And To Kill A Mockingbird, Rob Atkinson
Duke Law Journal
Professor Atkinson hopes William Faulkner's Intruder in the Dust will replace Harper Lee's To Kill a Mockingbird as our favorite story of lawyerly virtue. In both stories, a white male lawyer and his protege try to free a black man falsely accused of a capital crime. But below these superficial similarities, Professor Atkinson finds fundamental differences. To Kill a Mockingbird, with its father-knows-best attorney, Atticus Pinch, celebrates lawyerly paternalism; Intruder in the Dust, through its aristocratic black hero, Lucas Beauchamp, and his lay allies, challenges the rule of lawyers, if not law itself The first urges us to serve others …
The Vertical Separation Of Powers, Victoria Nourse
The Vertical Separation Of Powers, Victoria Nourse
Duke Law Journal
Standard understandings of the separation of powers begin with the concept of function. Professor Nourse argues that function alone cannot predict important changes in structural incentives and thus serves as a poor proxy for assessing real risks to governmental structure. To illustrate this point, the Article returns to proposals considered at the Constitutional Convention and considers difficult contemporary cases such as Morrison v. Olson, Clinton v. Jones, and the Supreme Court's more recent federalism decisions. In each instance, function appears to steer us wrong because it fails to understand separation of powers questions as ones of structural incentive and political …
How Permanent Became Temporary In Del Monte Dunes, Michael C. Levine
How Permanent Became Temporary In Del Monte Dunes, Michael C. Levine
Duke Law Journal
Regulatory takings are like car accidents. They fascinate us. We cannot help slowing down to look. What a disaster, we say to ourselves. We are so glad it did not happen to us. But we wonder if we could be next, We think about who is at fault, who should pay for the damages, and how it all could have been avoided in the first place And we question how the rules of the road could be improved so that such collisions in the future could be averted.
The International Criminal Court: Assessing The Jurisdictional Loopholes In The Rome Statute, Melissa K. Marler
The International Criminal Court: Assessing The Jurisdictional Loopholes In The Rome Statute, Melissa K. Marler
Duke Law Journal
No abstract provided.
Choice Or Commonality: Welfare And Schooling After The End Of Welfare As We Knew It, Martha Minow
Choice Or Commonality: Welfare And Schooling After The End Of Welfare As We Knew It, Martha Minow
Duke Law Journal
Reflecting market rhetoric but also potentially advancing spiritual and religious values, school voucher plans dominate current debates on education reform. These voucher plans would enable parents to use public dollars to select private schools, including parochial ones, for their children. Moreover, the recent federal welfare reform includes the "charitable choice" provision, which enables states to issue vouchers to individuals who can redeem them for services and aid from private, including religious, entities. In this Article, Professor Minow predicts that constitutional challenges to these plans under the religion clauses are likely to result in judicial approval of school vouchers and judicial …
Whose Who? The Case For A Kantian Right Of Publicity, Alice Haemmerli
Whose Who? The Case For A Kantian Right Of Publicity, Alice Haemmerli
Duke Law Journal
Rapidly developing technological opportunities for unauthorized uses of identity-from "virtual kidnapping" to digitalcasting-coincide with growing demand for a preemptive federal right of publicity that can replace the existing welter of inconsistent state laws. Progress is impeded, however, by intractable doctrinal confusion and academic hostility to the right as allegedly inimical to society's cultural need to manipulate celebrity images. Because the right of publicity is traditionally based on Lockean labor theory and analogized to intellectual property in created works, it is vulnerable to such attacks; to date, no serious attempt has been made to elaborate an alternative philosophical justification that can …
The Reasonable Government Official Test: A Proposal For The Treatment Of Factual Information Under The Federal Deliberative Process Privilege, Kirk D. Jensen
The Reasonable Government Official Test: A Proposal For The Treatment Of Factual Information Under The Federal Deliberative Process Privilege, Kirk D. Jensen
Duke Law Journal
No abstract provided.
Classical Republicanism And The Fifth Amendment’S “Public Use” Requirement, Nathan Alexander Sales
Classical Republicanism And The Fifth Amendment’S “Public Use” Requirement, Nathan Alexander Sales
Duke Law Journal
No abstract provided.
Attorney-Client Relationships In Cyberspace: The Peril And The Promise, Catherine J. Lanctot
Attorney-Client Relationships In Cyberspace: The Peril And The Promise, Catherine J. Lanctot
Duke Law Journal
Despite the legal profession's historical resistance to technological advances, the burgeoning world of cyberspace is bringing change to the practice of law. As laypeople flock to the Internet to seek help with their legal problems, lawyers are going online to provide such assistance. Yet, these exchanges are occurring without close consideration of whether they create attorney-client relationships-the source of weighty ethical and legal obligations. In many cases, lawyers seek to avoid the consequences of such relationships merely by disclaiming their existence. In this Article, Professor Lanctot examines the issue of lawyer-layperson communications in cyberspace from doctrinal and historical perspectives. The …
Senate Trials And Factional Disputes: Impeachment As A Madisonian Device, Jonathan Turley
Senate Trials And Factional Disputes: Impeachment As A Madisonian Device, Jonathan Turley
Duke Law Journal
In this Article, Professor Turley addresses the use of impeachment, specifically the Senate trial, as a method of resolving factional disputes about an impeached official's legitimacy to remain in office. While the Madisonian democracy was designed to regulate factional pressures, academics and legislators often discuss impeachments as relatively static events focused solely on removal. Alternatively, impeachment is sometimes viewed as an extreme countermajoritarian measure used to "reverse" or "nullify" the popular election of a President. This Article advances a more dynamic view of the Senate trial as a Madisonian device to resolve factional disputes. This Article first discusses the history …
Organ Allocation And The States: Can The States Restrict Broader Organ Sharing?, Roderick T. Chen
Organ Allocation And The States: Can The States Restrict Broader Organ Sharing?, Roderick T. Chen
Duke Law Journal
No abstract provided.
Preserving Minors’ Rights After Casey: The “New Battlefield” Of Negligence And Strict Liability Statutes, Pammela S. Quinn
Preserving Minors’ Rights After Casey: The “New Battlefield” Of Negligence And Strict Liability Statutes, Pammela S. Quinn
Duke Law Journal
No abstract provided.
“A Derelict In The Stream Of The Law”: Overruling Baseball’S Antitrust Exemption, Morgen A. Sullivan
“A Derelict In The Stream Of The Law”: Overruling Baseball’S Antitrust Exemption, Morgen A. Sullivan
Duke Law Journal
No abstract provided.
Prosecuting Race, Anthony V. Alfieri
Prosecuting Race, Anthony V. Alfieri
Duke Law Journal
Theoreticians and practitioners in the American criminal justice system increasingly debate the role of racial identity, racialized narratives, and race-neutral representation in law, lawyering, and ethics. This debate holds special bearing on the growing prosecution and defense of acts of racially motivated violence. In this continuing investigation of the prosecution and defense of such violence, Professor Alfieri examines the recent federal prosecution of five white New York City police officers charged with assaulting Abner Louima, a young male Haitian immigrant, in 1997. Professor Alfieri presents a raceconscious, community-oriented model of prosecutorial discretion guided by constitutional precepts, citizenship ideals, professionalism values, …
Defining And Punishing Abroad: Constitutional Limits On The Extraterritorial Reach Of The Offenses Clause, Zephyr Rain Teachout
Defining And Punishing Abroad: Constitutional Limits On The Extraterritorial Reach Of The Offenses Clause, Zephyr Rain Teachout
Duke Law Journal
No abstract provided.
Rights And Responsibilities: Protecting The Victims Of Armed Conflict, Kenneth J. Keith
Rights And Responsibilities: Protecting The Victims Of Armed Conflict, Kenneth J. Keith
Duke Law Journal
No abstract provided.
Semiotics, Analogical Legal Reasoning, And The Cf. Citation: Getting Our Signals Uncrossed, Ira P. Robbins
Semiotics, Analogical Legal Reasoning, And The Cf. Citation: Getting Our Signals Uncrossed, Ira P. Robbins
Duke Law Journal
The Bluebook's introductory citation signals are essential to effective legal discourse. The choice of signal can influence not only the interpretation of cited cases, but also the path of the law. In this Article, Professor Ira Robbins examines one commonly used signal: the cf. After exploring its semiotic function, he details the multitude of ways in which this signal has been used and misused. He argues that lawyers' and judges' careless use of the cf. leads to confusing and often incoherent developments in the law, and concludes by proposing a precise working definition for this irksome, but potentially powerful, citation …
The Defense Of Necessity Considered From The Legal And Moral Points Of View, George C. Christie
The Defense Of Necessity Considered From The Legal And Moral Points Of View, George C. Christie
Duke Law Journal
Questions concerning the scope of the defense of necessity frequently arise in a variety of legal and philosophical discussions. Professor Christie grapples with the questions raised by this defense: When can property be taken or destroyed to save human life? Must compensation always be paid? Can one destroy the property of others to save one's own property? Can one kill an innocent person to save the lives of a greater number of people? Professor Christie submits that much of the discussion of these difficult questions is too abstract and based on too cursory a review of the few legal authorities …
Reproductive Misconception: Why Cloning Is Not Just Another Assisted Reproductive Technology, Andre P. Rose
Reproductive Misconception: Why Cloning Is Not Just Another Assisted Reproductive Technology, Andre P. Rose
Duke Law Journal
No abstract provided.
Sovereignty And Suspicion, Erik G. Luna
Sovereignty And Suspicion, Erik G. Luna
Duke Law Journal
Most academics agree that search and seizure jurisprudence is a "mess." Professor Luna proposes a new approach to the Fourth Amendment founded on a sovereignty-based theory of the Constitution. Under this individual rights model, a government search or seizure of an individual's home or body receives the strongest presumption of invalidity. This presumption, he argues, could only be rebutted in three discrete circumstances: (1) consent by the individual to search his home or body; (2) individualized suspicion of wrongdoing; or (3) real, direct, and substantial threats to the sovereignty of other persons. Apart from these exceptions, governmental intrusions into the …
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.
Why The Law Hates Speculators: Regulation And Private Ordering In The Market For Otc Derivatives, Lynn A. Stout
Why The Law Hates Speculators: Regulation And Private Ordering In The Market For Otc Derivatives, Lynn A. Stout
Duke Law Journal
A wide variety of statutory and common law doctrines in American law evidence hostility towards speculation. Conventional economic theory, however, generally views speculation as an efficient form of trading that shifts risk to those who can bear it most easily and improves the accuracy of market prices. This Article reconciles the apparent conflict between legal tradition and economic theory by explaining why some forms of speculative trading may be inefficient. It presents a heterogeneous expectations model of speculative trading that offers important insights into antispeculation laws in general, and the ongoing debate concerning over-the-counter (OTC) derivatives in particular. Although trading …
The Smalling Of America?: Growth Management Statutes And The Dormant Commerce Clause, Justin Shoemake
The Smalling Of America?: Growth Management Statutes And The Dormant Commerce Clause, Justin Shoemake
Duke Law Journal
When we start talking about quality of life, they start talking about cheap underwear. And I keep saying, "You cannot buy small-town quality of life at a Wal-Mart; they don't sell it.".
The Case For Punitive Damages In Contracts, William S. Dodge
The Case For Punitive Damages In Contracts, William S. Dodge
Duke Law Journal
The majority of American jurisdictions do not allow punitive damages for breach of contract unless the breach constitutes an independent tort. Increasingly, courts and commentators have relied on the theory of "efficient breach" to explain the rule against punitive damages in contracts. In this Article, Professor Dodge argues that economic efficiency supports a different rule-one allowing punitive damages for any willful breach of contract. Willful breaches fall into two categories: those that are "opportunistic" and those that are "efficient." An "opportunistic" breach does not increase the size of the economic pie; the breaching party gains simply by capturing a larger …