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2009

Faculty Scholarship

Duke Law

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Articles 1 - 30 of 142

Full-Text Articles in Law

Guests At The Table?: Independent Directors In Family-Influenced Public Companies, Deborah A. Demott Apr 2009

Guests At The Table?: Independent Directors In Family-Influenced Public Companies, Deborah A. Demott

Faculty Scholarship

No abstract provided.


Regime Shifting In The International Intellectual Property System, Laurence R. Helfer Mar 2009

Regime Shifting In The International Intellectual Property System, Laurence R. Helfer

Faculty Scholarship

The international intellectual property system provides an important illustration of how regime complexity shapes domestic and international strategies of states and non-state actors. This article describes and graphically illustrates the multifaceted nature of the international intellectual property system. It then analyzes the consequences of regime complexity for international and domestic politics, emphasizing the strategy of regime shifting and its consequences for chessboard politics and the domestic implementation of international rules.


Desperately Seeking Subsidiarity: Danish Private Law In The Scandinavian, European And Global Context, Joseph M. Lookofsky Jan 2009

Desperately Seeking Subsidiarity: Danish Private Law In The Scandinavian, European And Global Context, Joseph M. Lookofsky

Faculty Scholarship

Professor Lookofsky delivered the Sixth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2007 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. As the European Union draws closer together as a single legal community, the states that comprise the EU and their various local subdivisions struggle to come to terms with the unification and universalization of EU laws across borders. The imposition of civil code practices, particularly in the area of private law, on EU member states has caused great consternation …


Ecosystem Services In Decision Making: Time To Deliver, James Salzman, Gretchen C. Daily, Stephen Polasky, Joshua Goldstein, Peter M. Kareiva, Harold A. Mooney, Liba Pejchar, Taylor H. Ricketts, Robert Shallenberger Jan 2009

Ecosystem Services In Decision Making: Time To Deliver, James Salzman, Gretchen C. Daily, Stephen Polasky, Joshua Goldstein, Peter M. Kareiva, Harold A. Mooney, Liba Pejchar, Taylor H. Ricketts, Robert Shallenberger

Faculty Scholarship

Over the past decade, efforts to value and protect ecosystem services have been promoted by many as the last, best hope for making conservation mainstream – attractive and commonplace worldwide. In theory, if we can help individuals and institutions to recognize the value of nature, then this should greatly increase investments in conservation, while at the same time fostering human well-being. In practice, however, we have not yet developed the scientific basis, nor the policy and finance mechanisms, for incorporating natural capital into resource- and land-use decisions on a large scale. Here, we propose a conceptual framework and sketch out …


Heller’S Problematic Second Amendment Categoricalism, Joseph Blocher Jan 2009

Heller’S Problematic Second Amendment Categoricalism, Joseph Blocher

Faculty Scholarship

No abstract provided.


A Careful Examination Of The Live Nation-Ticketmaster Merger, Barak D. Richman, Alan J. Meese Jan 2009

A Careful Examination Of The Live Nation-Ticketmaster Merger, Barak D. Richman, Alan J. Meese

Faculty Scholarship

As great admirers of The Boss and as fans of live entertainment, we share in the popular dismay over rising ticket prices for live performances. But we have been asked as antitrust scholars to examine the proposed merger of Live Nation and Ticketmaster, and we do so with the objectivity and honesty called for by The Boss’s quotes above. The proposed merger has been the target of aggressive attacks from several industry commentators and popular figures, but the legal and policy question is whether the transaction is at odds with the nation’s antitrust laws.

One primary source of concern to …


Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young Jan 2009

Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …


Implementing The New Ecosystem Services Mandate Of The Section 404 Compensatory Mitigation Program - A Catalyst For Advancing Science And Policy, James Salzman, J.B. Ruhl, Iris Goodman Jan 2009

Implementing The New Ecosystem Services Mandate Of The Section 404 Compensatory Mitigation Program - A Catalyst For Advancing Science And Policy, James Salzman, J.B. Ruhl, Iris Goodman

Faculty Scholarship

On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that …


Full Faith And Credit In The Early Congress, Stephen E. Sachs Jan 2009

Full Faith And Credit In The Early Congress, Stephen E. Sachs

Faculty Scholarship

After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that "Full Faith and Credit shall be given"), and then empowers Congress to prescribe the manner of proof and the "Effect" of state records in other states. But if states must accord each other full faith and credit-and if nothing could be more than full-then what "Effect" could Congress give state records that they wouldn't have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due?

This Article seeks to …


Insincere And Involuntary Public Apologies, Lisa Kern Griffin Jan 2009

Insincere And Involuntary Public Apologies, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.


Future Generations: A Prioritarian View, Matthew D. Adler Jan 2009

Future Generations: A Prioritarian View, Matthew D. Adler

Faculty Scholarship

No abstract provided.


Unpacking The State’S Reputation, Rachel Brewster Jan 2009

Unpacking The State’S Reputation, Rachel Brewster

Faculty Scholarship

International law scholars debate when international law matters to states, how it matters, and whether we can improve compliance. One of the few areas of agreement is that fairly robust levels of compliance can be achieved by tapping into states’ concerns with their reputation. The logic is intuitively appealing: a state that violates international law develops a bad reputation, which leads other states to exclude the violator from future cooperative opportunities. Anticipating a loss of future gains, states will often comply with international rules that are not in their immediate interests. The level of compliance that reputation can sustain depends, …


Becoming A Citizen: Marriage, Immigration, And Assimilation, Kerry Abrams Jan 2009

Becoming A Citizen: Marriage, Immigration, And Assimilation, Kerry Abrams

Faculty Scholarship

No abstract provided.


Making The Leap To Management: Tips For The Aspiring And New Manager, Femi Cadmus Jan 2009

Making The Leap To Management: Tips For The Aspiring And New Manager, Femi Cadmus

Faculty Scholarship

As the result of innate ability, a fortunate few are able to effortlessly transition from line positions. However, most of us need to plot the path to management astutely and with deliberation. Library professionals might also become "accidental" managers, finding themselves thrust into an unplanned and perhaps unwanted managerial position for which they were not prepared. This is particularly true in the current climate of constrained budgets characterized by restructuring, job freezes, and layoffs.


The Ice Storm In U.S. Homes: An Urgent Call For Policy Change, Katherine Evans Jan 2009

The Ice Storm In U.S. Homes: An Urgent Call For Policy Change, Katherine Evans

Faculty Scholarship

Since its creation in 2003, the Bureau of Immigration and Customs Enforcement (ICE) has used increasingly aggressive tactics to enforce U.S. immigration law. One of ICE's most prominent enforcement initiatives is its practice of raiding the homes of immigrants. Accounts of home raids from victims all over the country reveal a pattern of practice that differs widely from ICE's official statements regarding raids. This paper establishes that although immigration officials are governed by the Fourth Amendment when conducting home raids, ICE's agents nonetheless regularly violate the Constitution when carrying out home raids. Additionally, this paper argues that the number and …


University Software Ownership And Litigation: A First Examination, Arti K. Rai, John R. Allison, Bhaven N. Sampat, Colin Crossman Jan 2009

University Software Ownership And Litigation: A First Examination, Arti K. Rai, John R. Allison, Bhaven N. Sampat, Colin Crossman

Faculty Scholarship

Software patents and university-owned patents represent two of the most controversial intellectual property developments of the last twenty-five years. Despite this reality, and concerns that universities act as "patent trolls" when they assert software patents in litigation against successful commercializers, no scholar has systematically examined the ownership and litigation of university software patents. In this Article, we present the first such examination. Our empirical research reveals that software patents represent a significant and growing proportion of university patent holdings. Additionally, the most important determinant of the number of software patents a university owns is not its research and development ("R&D") …


Civil Justice Systems In Europe And The United States, Hein Kötz Jan 2009

Civil Justice Systems In Europe And The United States, Hein Kötz

Faculty Scholarship

Professor Kötz delivered the inaugural Herbert L. Bernstein Memorial Lecture in Comparative Law in 2002 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In order to highlight the similarities and differences in legal regimes between Europe and the United States, Professor Hein Kötz analyzes the German and American civil legal systems and, to a minor extent, the British civil legal system. Specifically, Kötz focuses on one of the distinguishing features of the American legal system, the civil jury, and its impact on the …


Europeanization As A Process: Thoughts On The Europeanization Of Private Law, Christian Joerges Jan 2009

Europeanization As A Process: Thoughts On The Europeanization Of Private Law, Christian Joerges

Faculty Scholarship

Professor Christian Joerges delivered the Second Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2003 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Professor Joerges puts forth a three part thesis concerning the “Europeanization of Private Law”, the process by which the European Community influences the legal and political policies of its member states within a framework of transnational cooperation. Joerges first establishes the eroding importance of the idea that legal systems operating at the national level fulfill the goals of …


Constitutions For The 21st Century: Emerging Patterns-The Eu, Iraq, Afghanistan…, Chibli Mallat Jan 2009

Constitutions For The 21st Century: Emerging Patterns-The Eu, Iraq, Afghanistan…, Chibli Mallat

Faculty Scholarship

Professor Mallat delivered the Third Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2004 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Strong moments in constitution-making often result from traumas; the breakthroughs by the European Union and constitutional achievements by both Iraq and Afghanistan stand as modern examples. The traumas of Europe, Afghanistan, and Iraq have been typified by violent conflict over the past century, including two World Wars, the Cold War, and the ‘war on terrorism’. Efforts and successes at …


Political Parties In China’S Judiciary, Jonathan K. Ocko, Zhu Suli Jan 2009

Political Parties In China’S Judiciary, Jonathan K. Ocko, Zhu Suli

Faculty Scholarship

Professor Suli delivered the Fifth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2006 and this article is based on his remarks, with a foreword by Jonathan Ocko. The article is included in the inaugural volume of CICLOPs thatcollects the first six Bernstein lectures. In responding to Sending Law to the Countryside, Professor Frank Upham levied a number of criticisms against Professor Zhu Suli’s book. Of particular importance was Upham’s criticism concerning a lack of attention to the role of politics and political power in the Chinese legal system. Suli finds this criticism to be extremely important because …


Reputation As Property In Virtual Economies, Joseph Blocher Jan 2009

Reputation As Property In Virtual Economies, Joseph Blocher

Faculty Scholarship

No abstract provided.


The Return Of The Rogue, Kimberly D. Krawiec Jan 2009

The Return Of The Rogue, Kimberly D. Krawiec

Faculty Scholarship

The “rogue trader”—a famed figure of the 1990s—recently has returned to prominence due largely to two phenomena. First, recent U.S. mortgage market volatility spilled over into stock, commodity, and derivative markets worldwide, causing large financial institution losses and revealing previously hidden unauthorized positions. Second, the rogue trader has gained importance as banks around the world have focused more attention on operational risk in response to regulatory changes prompted by the Basel II Capital Accord. This Article contends that of the many regulatory options available to the Basel Committee for addressing operational risk it arguably chose the worst: an enforced selfregulatory …


Judicial Independence In Excess: Reviving The Judicial Duty Of The Supreme Court, Paul D. Carrington, Roger C. Cramton Jan 2009

Judicial Independence In Excess: Reviving The Judicial Duty Of The Supreme Court, Paul D. Carrington, Roger C. Cramton

Faculty Scholarship

Independence from extrinsic influence is, we know, indispensable to public trust in the integrity of professional judges who share the duty to decide cases according to preexisting law. But such independence is less appropriate for those expected to make new law to govern future events. Indeed, in a democratic government those who make new law are expected to be accountable to their constituents, not independent of their interests and unresponsive to their desires. The Supreme Court of the United States has in the last century largely forsaken responsibility for the homely task of deciding cases in accord with preexisting law …


Best Cass Scenario, Jonathan B. Wiener Jan 2009

Best Cass Scenario, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.


Do Differences In Pleading Standards Cause Forum Shopping In Securities Class Actions?: Doctrinal And Empirical Analyses, James D. Cox, Randall S. Thomas, Lynn Bai Jan 2009

Do Differences In Pleading Standards Cause Forum Shopping In Securities Class Actions?: Doctrinal And Empirical Analyses, James D. Cox, Randall S. Thomas, Lynn Bai

Faculty Scholarship

No abstract provided.


The Antitrust Of Reputation Mechanisms: Institutional Economics And Concerted Refusals To Deal, Barak D. Richman Jan 2009

The Antitrust Of Reputation Mechanisms: Institutional Economics And Concerted Refusals To Deal, Barak D. Richman

Faculty Scholarship

An agreement among competitors to refuse to deal with another party is traditionally per se illegal under the antitrust laws. But coordinated refusals to deal are often necessary to punish wrongdoers, and thus to deter undesirable behavior that state-sponsored courts cannot reach. When viewed as a mechanism to govern transactions and induce socially desirable cooperative behavior, coordinated refusals to deal can sustain valuable reputation mechanisms. This paper employs institutional economics to understand the role of coordinated refusals to deal in merchant circles and to evaluate the economic desirability of permitting such coordinated actions among competitors. It concludes that if the …


Rethinking The Identity And Role Of United States Attorneys, Sara Sun Beale Jan 2009

Rethinking The Identity And Role Of United States Attorneys, Sara Sun Beale

Faculty Scholarship

This article considers the proper role of politics in federal prosecutions, and how that bears on the position of the U.S. Attorney. First, the article sets forth an account of the problems disclosed by investigations into the Bush Justice Department, including the controversial firing of nine U.S. Attorneys and claims that particular prosecutions were politically motivated. It then explores the historical development of the role of the U.S. Attorneys, their relationship to the Attorney General and the Department of Justice, and their role in the contemporary federal criminal justice system.

With that background, the article considers the question whether there …


Criminal Lying, Prosecutorial Power, And Social Meaning, Lisa Kern Griffin Jan 2009

Criminal Lying, Prosecutorial Power, And Social Meaning, Lisa Kern Griffin

Faculty Scholarship

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It sketches a conceptual framework for violations of 18 U.S.C. § 1001 and related false-statement charges, distinguishes between harmful deception and the typical investigative interaction, and describes the range of lies that fall within the wide margins of the offense. It then places these cases in a socio-legal context, suggesting that some false-statement charges function as penalties for defendants’ refusal to expedite investigations into their own wrongdoing. In those instances, the government positions itself as the victim of the lying offense and reasserts its authority through …


Using Decision Analysis To Improve Malaria Control Policy Making, Jonathan B. Wiener, Randall A. Kramer, Katherine L. Dickinson, Richard M. Anderson, Vance G. Fowler, Marie Lynn Miranda, Clifford M. Mutero, Kathryn A. Saterson Jan 2009

Using Decision Analysis To Improve Malaria Control Policy Making, Jonathan B. Wiener, Randall A. Kramer, Katherine L. Dickinson, Richard M. Anderson, Vance G. Fowler, Marie Lynn Miranda, Clifford M. Mutero, Kathryn A. Saterson

Faculty Scholarship

Malaria and other vector-borne diseases represent a significant and growing burden in many tropical countries. Successfully addressing these threats will require policies that expand access to and use of existing control methods, such as insecticide-treated bed nets (ITNs) and artemesinin combination therapies (ACTs) for malaria, while weighing the costs and benefits of alternative approaches over time. This paper argues that decision analysis provides a valuable framework for formulating such policies and combating the emergence and re-emergence of malaria and other diseases. We outline five challenges that policy makers and practitioners face in the struggle against malaria, and demonstrate how decision …


Theorizing And Generalizing About Risk Assessment And Regulation Through Comparative Nested Analysis Of Representative Cases, Jonathan B. Wiener, Brendon Swedlow, Denise Kall, Zheng Zhou, James K. Hammitt Jan 2009

Theorizing And Generalizing About Risk Assessment And Regulation Through Comparative Nested Analysis Of Representative Cases, Jonathan B. Wiener, Brendon Swedlow, Denise Kall, Zheng Zhou, James K. Hammitt

Faculty Scholarship

This article provides a framework and offers strategies for theorizing and generalizing about risk assessment and regulation developed in the context of an on-going comparative study of regulatory behavior. Construction of a universe of nearly 3,000 risks and study of a random sample of 100 of these risks allowed us to estimate relative U.S. and European regulatory precaution over a thirty-five-year period. Comparative nested analysis of cases selected from this universe of ecological, health, safety, and other risks or its eighteen categories or ninety-two subcategories of risk sources or causes will allow theory-testing and -building and many further descriptive and …