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2008

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Duke Law

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Articles 1 - 30 of 114

Full-Text Articles in Law

The New European Choice-Of-Law Revolution, Ralf Michaels Dec 2008

The New European Choice-Of-Law Revolution, Ralf Michaels

Faculty Scholarship

Conflict of laws in Europe was long viewed by outsiders as formalist, antiquated, and uninteresting. Now that the European Union has become more active in the field, things are changing, but most view these changes as a mere gradual evolution. This is untrue. Actually, and fascinatingly, we are observing a real European conflicts revolution—in importance, radicalness, and irreversibility comparable to the twentieth-century American conflicts revolution. European developments go beyond the federalization of choice-of-law rules in EU regulations. In addition, EU choice of law is being constitutionalized, in particular through the principles of mutual recognition and the country-of-origin principle, along with …


Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen Dec 2008

Introduction: Beyond The State? Rethinking Private Law, Ralf Michaels, Nils Jansen

Faculty Scholarship

Introduction to an issue of the journal that brings together the papers presented, as revised by the participants, at a conference held at the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany in the summer of 2007.


Arizona V. Johnson: Determining When A Terry Stop Becomes Consensual, Ryan Thompson Dec 2008

Arizona V. Johnson: Determining When A Terry Stop Becomes Consensual, Ryan Thompson

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Pacific Bell V. Linkline: Price Squeezing And The Limits Of Judicial Administrability, Sandeep Vaheesan Dec 2008

Pacific Bell V. Linkline: Price Squeezing And The Limits Of Judicial Administrability, Sandeep Vaheesan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Fitzgerald V. Barnstable School Committee: Enforcement Of Constitutional Rights, Sarah Branstetter Dec 2008

Fitzgerald V. Barnstable School Committee: Enforcement Of Constitutional Rights, Sarah Branstetter

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Davis V. Fec: The First Amendment Rights Of A Wealthy Candidate, Jeremy Earl Dec 2008

Davis V. Fec: The First Amendment Rights Of A Wealthy Candidate, Jeremy Earl

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Panetti V. Quarterman: Raising The Bar Against Executing The Incompetent, D. G. Maxted Dec 2008

Panetti V. Quarterman: Raising The Bar Against Executing The Incompetent, D. G. Maxted

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Explaining Change And Rethinking Dirty Words: Fcc V. Fox Television Stations, Inc., Tobias Coleman Dec 2008

Explaining Change And Rethinking Dirty Words: Fcc V. Fox Television Stations, Inc., Tobias Coleman

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Pleasant Grove City V. Summum: Identifying Government Speech & Classifying Speech Forums, Aaron Harmon Nov 2008

Pleasant Grove City V. Summum: Identifying Government Speech & Classifying Speech Forums, Aaron Harmon

Duke Journal of Constitutional Law & Public Policy Sidebar

In Pleasant Grove City v. Summum, the Supreme Court must decide whether a privately-donated Ten Commandments monument currently on display in a city park is the private speech of the donor or the government speech of Pleasant Grove City. Summum, a religious organization, sued Pleasant Grove City in federal court claiming that because the city had displayed in a city park a donated Ten Commandments monument, the First Amendment compelled the city to also accept and display Summum's proposed "Seven Aphorisms of Summum" monument. If the Court decides it is the private speech of the donor, it will have to …


Ksr V. Teleflex: How “Obviousness” Has Changed, Daniel Becker Nov 2008

Ksr V. Teleflex: How “Obviousness” Has Changed, Daniel Becker

Duke Journal of Constitutional Law & Public Policy Sidebar

In KSR v. Teleflex, the Supreme Court examined the Federal Circuit's obviousness jurisprudence for patents. Both prior to and in this case, the Federal Circuit rigidly applied its judicially created "teaching, suggestion, or motivation" (TSM) test to determine whether the prior art would direct an inventor of ordinary skill in the art to combine references or elements in references in the same way as the patentee did. The Supreme Court, however, reversed the decision of the Federal Circuit, and held that by applying the TSM test in such a strict manner, the Federal Circuit had "analyzed the issue in a …


Why The Incompatibility Clause Applies To The Office Of The President, Saikrishna Bangalore Prakash Nov 2008

Why The Incompatibility Clause Applies To The Office Of The President, Saikrishna Bangalore Prakash

Duke Journal of Constitutional Law & Public Policy Sidebar

Professor Saikrishna Bangalore Prakash responds to Mr. Seth Barret Tillman's Article and defends the traditional interpretation of the Incompatibility Clause, under which a President is prohibited from simultaneously serving as a congressional representative. The ramifications that would result if a President could also hold a position in the Senate or the House of Representatives, Professor Prakash argues, are too problematic for Mr. Tillman's reading to replace the traditional understanding of the Incompatibility Clause. Therefore, the next President, whether Senator McCain or Senator Obama, would need to resign from the Senate before assuming the Executive Office.


Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’S Incompatibility Clause, Seth Barrett Tillman Nov 2008

Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’S Incompatibility Clause, Seth Barrett Tillman

Duke Journal of Constitutional Law & Public Policy Sidebar

In this Article, Mr. Seth Barrett Tillman challenges the traditional interpretation of the Incompatibility Clause and argues that the President may serve both as the Chief Executive and as a member of Congress. Mr. Tillman utilizes the text, history, and structure of the Constitution to support his position. He ultimately concludes that whoever serves as the next President -- Senator Obama or Senator McCain -- need not resign from the Senate before assuming the Executive Office.


Systemic Risk, Steven L. Schwarcz Oct 2008

Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

Governments and international organizations worry increasingly about systemic risk, under which the world’s financial system can collapse like a row of dominoes. There is widespread confusion, though, about the causes and even the definition of systemic risk, and uncertainty about how to control it. This Article offers a conceptual framework for examining what risks are truly “systemic,” what causes those risks, and how, if at all, those risks should be regulated. Scholars historically have tended to think of systemic risk primarily in terms of financial institutions such as banks. However, with the growth of disintermediation, in which companies can access …


Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner Oct 2008

Skating With Donovan: Thoughts On Librarianship As A Profession, Richard A. Danner

Faculty Scholarship

James M. Donovan’s article: Skating on Thin Intermediation: Can Libraries Survive?, 27 Legal Reference Services Q. 95 (no. 2-3, 2008) argues that librarians place more emphasis than they might on providing service to library users at a time when information seekers are relying less on intermediaries, and that over-emphasizing service to the detriment of other values diminishes the status of librarianship as a profession. The article presents two contrasting models of librarianship. This article discusses Donovan’s models and comments on the continuing importance of the service model to librarianship.


The Year In Review 2007: Selected Cases From The Alaska Supreme Court, The Alaska Court Of Appeals, The United States Supreme Court, And The United States Court Of Appeals For The Ninth Circuit Jun 2008

The Year In Review 2007: Selected Cases From The Alaska Supreme Court, The Alaska Court Of Appeals, The United States Supreme Court, And The United States Court Of Appeals For The Ninth Circuit

Alaska Law Review Year in Review

No abstract provided.


Recidivism In Alaska, Teresa W. Carns Jun 2008

Recidivism In Alaska, Teresa W. Carns

Alaska Law Review Online Articles Forum

Recidivism data are a tool that can help policymakers determine how effectively a criminal justice system is working to protect the public. Such data can help answer whether the current system is appropriate, whether alternative methods could provide better results, and whether specialized programs such as therapeutic courts can help reduce recidivism rates. The Alaska Judicial Council published two reports in 2007 that sought to address these questions and more. This Comment has combined much of the data from these two reports in order to present them in a unified fashion, providing direct comparisons and contrasts where appropriate. The Council …


Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller Mar 2008

Softening The Formality And Formalism Of The “Testimonial” Statement Concept, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the United States Supreme Court ruled that “testimonial” statements are the core, perhaps exclusive, concern of the Confrontation Clause. The Court began a process of defining the testimonial-statement concept but did not develop a comprehensive definition. In Crawford, the Court concluded that a statement was testimonial, which was tape recorded and obtained from a criminal suspect who was in police custody, had been given warnings under Miranda v. Arizona (1966), and was being interrogated by known governmental agents using what the Court termed “structured” questioning. One of the definitions the Court explicitly presented as a …


Insurance Expansions: Do They Hurt Those They Are Designed To Help?, Barak D. Richman Jan 2008

Insurance Expansions: Do They Hurt Those They Are Designed To Help?, Barak D. Richman

Faculty Scholarship

Seeking to redress health disparities across income and race, many policy-makers mandate health insurance benefits, presuming that equalized benefits will help equalize use of beneficial health services. This paper tests that presumption by measuring health care use by a diverse population with comprehensive health insurance. Focusing on use of mental health care and pharmaceuticals, it finds that even when insurance benefits and access are constant, whites and those with high incomes consume more of these benefits than other people do. This suggests that privileged classes extract more health care services even when everyone pays equal premiums for equal insurance coverage.


Antitrust And Nonprofit Hospital Mergers: A Return To Basics, Barak D. Richman Jan 2008

Antitrust And Nonprofit Hospital Mergers: A Return To Basics, Barak D. Richman

Faculty Scholarship

Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles …


The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer Jan 2008

The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer

Faculty Scholarship

This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article …


Disclosure’S Failure In The Subprime Mortgage Crisis, Steven L. Schwarcz Jan 2008

Disclosure’S Failure In The Subprime Mortgage Crisis, Steven L. Schwarcz

Faculty Scholarship

This symposium article examines how disclosure, the regulatory focus of the federal securities laws, has failed to achieve transparency in the sub-prime mortgage crisis and what this failure means for modern financial securities markets.


Prosecuting Aggression, Noah Weisbord Jan 2008

Prosecuting Aggression, Noah Weisbord

Faculty Scholarship

The Assembly of States Parties to the International Criminal Court will soon have its first opportunity to revise the Rome Statute and activate the latent crime of aggression, which awaits a definition of its elements and conditions for the exercise of jurisdiction. The working group charged with drafting a provision is scheduled to complete its task by 2008 or 2009, one year before the International Criminal Court’s first review conference. Beginning with a history of the crime meant to put the current negotiations in the context of past initiatives, this article sets out the status of the negotiations and begins …


Science, Intersubjective Validity, And Judicial Legitimacy, Richard B. Katskee Jan 2008

Science, Intersubjective Validity, And Judicial Legitimacy, Richard B. Katskee

Faculty Scholarship

No abstract provided.


State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller Jan 2008

State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller

Faculty Scholarship

This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …


Executive Preemption, Ernest A. Young Jan 2008

Executive Preemption, Ernest A. Young

Faculty Scholarship

Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state …


To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz Jan 2008

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Faculty Scholarship

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …


Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman Jan 2008

Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman

Faculty Scholarship

Drug discovery is stagnating. Government agencies, industry analysts, and industry scientists have all noted that, despite significant increases in pharmaceutical R&D funding, the production of fundamentally new drugs - particularly drugs that work on new biological pathways and proteins - remains disappointingly low. To some extent, pharmaceutical firms are already embracing the prescription of new, more collaborative R&D organizational models suggested by industry analysts. In this Article, we build on collaborative strategies that firms are already employing by proposing a novel public-private collaboration that would help move upstream academic research across the valley of death that separates upstream research from …


Public And Private International Law : German Views On Global Issues, Ralf Michaels Jan 2008

Public And Private International Law : German Views On Global Issues, Ralf Michaels

Faculty Scholarship

No abstract provided.


Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller Jan 2008

Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller

Faculty Scholarship

Mike Nifong, the prosecutor in the Duke lacrosse rape case, was disbarred by the North Carolina State Bar in June 2007 principally for withholding exculpatory DNA evidence and for making false statements about his conduct. This article relates the central details of his actions and the process that led to disbarment. Its key overall insight is that full open-file discovery was the figurative workhorse and hero in the Nifong disbarment saga. That saga was itself strongly affected by two earlier death penalty cases where prosecutors also failed to provide exculpatory information to the defense. The constitutional doctrine in Brady v. …


Conciliatory Institutions And Constitutional Process In Post-Conflict States, Donald L. Horowitz Jan 2008

Conciliatory Institutions And Constitutional Process In Post-Conflict States, Donald L. Horowitz

Faculty Scholarship

There are two important questions in post-conflict constitution making, and at present neither of them has a definitive or uniformly accepted answer. The first relates to the best configuration of institutions to adopt in order to ameliorate the problem of the intergroup conflict. The second concerns the process most apt to produce the best configuration of institutions, whatever it might be. The first question is unanswered because there is a dispute among scholars and practitioners between two opposing views of appropriate institutions to mitigate conflict. Constitutional processes have not generally been geared to yield coherent exemplars of either configuration in …