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Full-Text Articles in Law

The International Trade Commission: Potential Bias, Hold-Up, And The Need For Reform, William Dolan Dec 2009

The International Trade Commission: Potential Bias, Hold-Up, And The Need For Reform, William Dolan

Duke Law & Technology Review

The International Trade Commission (ITC) is an alternate venue for holders of U.S. patents to pursue litigation against infringing products produced abroad and imported to the United States. Because the ITC may only grant injunctive relief, it has awarded injunctions in situations where there may have been better and more efficient remedies to the infringement available through litigation in federal district court. The increased likelihood of injunctive relief bolsters the position of patent holders against a wide range of producers in royalty negotiations and can harm the end consumers through a process known as "patent hold-up." There are currently sweeping …


Note From The Editor, Angelo Suozzi Dec 2009

Note From The Editor, Angelo Suozzi

Alaska Law Review

No abstract provided.


The Ncaa’S Lost Cause And The Legal Ease Of Redefining Amateurism, Virginia A. Fitt Dec 2009

The Ncaa’S Lost Cause And The Legal Ease Of Redefining Amateurism, Virginia A. Fitt

Duke Law Journal

The recent resolution of the Andrew Oliver case may mark the death throes of the NCAA's no-agent rule, prohibiting college athletes from retaining agents in professional contract negotiations, and perhaps the traditional paradigm of amateurism in sport. In light of the trial court's ruling, as well as continuing calls for the revocation of the NCAA's tax-exempt status, the time is ripe for a reexamination of amateurism and the law. This Note argues that the NCAA has developed a complicated web of largely unenforceable rules and regulations that are unnecessary to maintain tax-exempt status in light of the regulatory environment. This …


Constitutional Limits On Private Policing And The State’S Allocation Of Force, M. Rhead Enion Dec 2009

Constitutional Limits On Private Policing And The State’S Allocation Of Force, M. Rhead Enion

Duke Law Journal

This Note argues that a variety of "private police" forces, such as university patrols and residential security guards, should. be held to the constitutional limitations found in the Bill of Rights. These private police act as arms of the state by supplying force in response to a public demand for order and security. The state, as sovereign, retains responsibility to allocate force, in the form of either public or private police, in response to public demand. This state responsibility-a facet of its police power-is evidenced throughout English and American history. When this force responds to a public demand for order …


Cybersieves, Derek E. Bambauer Dec 2009

Cybersieves, Derek E. Bambauer

Duke Law Journal

This Article offers a process-based method to assess Internet censorship that is compatible with different value sets about what content should be blocked. Whereas China's Internet censorship receives considerable attention, censorship in the United States and other democratic countries is largely ignored. The Internet is increasingly fragmented by nations' different value judgments about what content is unacceptable. Countries differ not in their intent to censor material-from political dissent in Iran to copyrighted songs in America-but in the content they target, how precisely they block it, and how involved their citizens are in these choices. Previous scholars have analyzed Internet censorship …


“Letters I’Ve Written, Never Meaning To Send …”: Conditional Relevance, Evidence Rule 104(B), And Mark Edwards’ Curious Murder Trial, James Fayette, Stephanie Busalacchi Dec 2009

“Letters I’Ve Written, Never Meaning To Send …”: Conditional Relevance, Evidence Rule 104(B), And Mark Edwards’ Curious Murder Trial, James Fayette, Stephanie Busalacchi

Alaska Law Review

No abstract provided.


Journal Staff Dec 2009

Journal Staff

Duke Law Journal

No abstract provided.


The Limits Of Advocacy, Amanda Frost Dec 2009

The Limits Of Advocacy, Amanda Frost

Duke Law Journal

Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called "issue creation"-that is, raising legal claims and arguments that the parties have overlooked or ignored-on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins and Mapp v. Ohio were decided on grounds never raised …


Not Peace, But A Sword: Navy V. Egan And The Case Against Judicial Abdication In Foreign Affairs, Jason Rathod Dec 2009

Not Peace, But A Sword: Navy V. Egan And The Case Against Judicial Abdication In Foreign Affairs, Jason Rathod

Duke Law Journal

In the United States' system of separation of powers, the judiciary must safeguard the rights of individuals from abuses by the political branches of government. Yet, when it comes to matters touching foreign affairs, scholars such as John Yoo and jurists such as Antonin Scalia argue that the executive branch is entitled to virtually unreviewable discretion. They point to Navy v. Egan for support. There, the Court held that an administrative body that hears appeals from adverse actions against government employees was precluded from reviewing the merits of security clearance determinations because the executive branch deserves "super-strong" deference in foreign …


Transgendered In Alaska: Navigating The Changing Legal Landscape For Change In Gender Petitions, Leslie Dubois-Need, Amber Kingery Dec 2009

Transgendered In Alaska: Navigating The Changing Legal Landscape For Change In Gender Petitions, Leslie Dubois-Need, Amber Kingery

Alaska Law Review

No abstract provided.


Journal Staff Dec 2009

Journal Staff

Alaska Law Review

No abstract provided.


Sentenced By Tradition: The Third-Party Custodian Condition Of Pretrial Release In Alaska, Elizabeth Johnston Dec 2009

Sentenced By Tradition: The Third-Party Custodian Condition Of Pretrial Release In Alaska, Elizabeth Johnston

Alaska Law Review

No abstract provided.


Merit Selection And Performance Evaluation Of Alaska’S Judges, Teresa W. Carns Dec 2009

Merit Selection And Performance Evaluation Of Alaska’S Judges, Teresa W. Carns

Alaska Law Review

No abstract provided.


Winkelman: Pro Se Parents Of Children With Disabilities In The Courts (Or Not?), Sonja Kerr Dec 2009

Winkelman: Pro Se Parents Of Children With Disabilities In The Courts (Or Not?), Sonja Kerr

Alaska Law Review

No abstract provided.


The Misinterpretation Of The Tonnage Clause In Polar Tankers, Inc. V. City Of Valdez, Angelo J. Suozzi Dec 2009

The Misinterpretation Of The Tonnage Clause In Polar Tankers, Inc. V. City Of Valdez, Angelo J. Suozzi

Alaska Law Review

No abstract provided.


Lenz V. Universal Music Corp. And The Potential Effect Of Fair Use Analysis Under The Takedown Procedures Of §512 Of The Dmca, Kathleen O’Donnell Nov 2009

Lenz V. Universal Music Corp. And The Potential Effect Of Fair Use Analysis Under The Takedown Procedures Of §512 Of The Dmca, Kathleen O’Donnell

Duke Law & Technology Review

The notice and takedown/putback procedures in §512 of the Digital Millennium Act fail to adequately protect the rights of individuals who post content on the internet. This iBrief examines the notice and takedown/putback procedures and Judge Fogel's decision in Lenz v. Universal Music Corp., which requires a copyright owner to conduct a fair use evaluation prior to issuing a takedown notice. This iBrief concludes such a requirement is an appropriate first step towards creating adequate protection for user-generated content on the Internet.


A Hypothetical Non-Infringing Network: An Examination Of The Efficacy Of Safe Harbor In Section 512(C) Of The Dmca, Cassius Sims Nov 2009

A Hypothetical Non-Infringing Network: An Examination Of The Efficacy Of Safe Harbor In Section 512(C) Of The Dmca, Cassius Sims

Duke Law & Technology Review

This iBrief will present a hypothetical network that allows dissidents to transfer information outside the watchful eye of an oppressive government. It will argue that because a network operator meets the requirements of the safe harbor of section 512(c) of the Digital Millennium Copyright Act, the hosts of the network are immune from any vicarious copyright liability.


How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Vanessa Baird, Tonja Jacobi Nov 2009

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Vanessa Baird, Tonja Jacobi

Duke Law Journal

No abstract provided.


Journal Staff Nov 2009

Journal Staff

Duke Law Journal

No abstract provided.


Journal Staff Nov 2009

Journal Staff

Duke Law Journal

No abstract provided.


Making Amends: Amending The Icsid Convention To Reconcile Competing Interests In International Investment Law, Kate M. Supnik Nov 2009

Making Amends: Amending The Icsid Convention To Reconcile Competing Interests In International Investment Law, Kate M. Supnik

Duke Law Journal

Globalization has increased international investment activity, but no unified legal framework governs international investments. After several attempts to establish a multilateral investment framework, prospective parties remain unable to reach a consensus on a viable system to address investor and state rights. Developed, capital-exporting states wish to protect their citizens' investments, whereas developing states simultaneously seek to attract investments and maintain regulatory autonomy. In the absence of a comprehensive agreement, bilateral investment treaties serve as the primary legal instruments setting forth the terms of cross-border investments. These treaties often grant private investors the right to file claims before the International Centre …


Reasonableness Meets Requirements: Regulating Security And Privacy In Software, Paul N. Otto Nov 2009

Reasonableness Meets Requirements: Regulating Security And Privacy In Software, Paul N. Otto

Duke Law Journal

Software security and privacy issues regularly grab headlines amid fears of identity theft, data breaches, and threats to security. Policymakers have responded with a variety of approaches to combat such risk. Suggested measures include promulgation of strict rules, enactment of open-ended standards, and, at times, abstention in favor of allowing market forces to intervene. This Note lays out the basis for understanding how both policymakers and engineers should proceed in an increasingly software-dependent society. After explaining what distinguishes software-based systems from other objects of regulation, this Note argues that policymakers should pursue standards-based approaches to regulating software security and privacy. …


Living Originalism, Thomas B. Colby, Peter J. Smith Nov 2009

Living Originalism, Thomas B. Colby, Peter J. Smith

Duke Law Journal

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the "writtenness" of the Constitution necessitates a fixed constitutional meaning, and that courts that see …


The Future Of “Fair And Balanced”: The Fairness Doctrine, Net Neutrality, And The Internet, Sasha Leonhardt Oct 2009

The Future Of “Fair And Balanced”: The Fairness Doctrine, Net Neutrality, And The Internet, Sasha Leonhardt

Duke Law & Technology Review

In recent months, different groups--pundits, politicians, and even an FCC Commissioner--have discussed resurrecting the now-defunct Fairness Doctrine and applying it to Internet communication. This iBrief responds to the novel application of the Doctrine to the Internet in three parts. First, this iBrief will review the history and legal rationale that supported the Fairness Doctrine, with a particular emphasis on emerging technologies. Second, this iBrief applies these legal arguments to the evolving structure of the Internet. Third, this iBrief will consider what we can learn about Net Neutrality through an analogy to the Fairness Doctrine. This iBrief concludes that, while the …


Foreword, Trina Jones Oct 2009

Foreword, Trina Jones

Law and Contemporary Problems

No abstract provided.


The Dawn Of A New, New International Economic Order, Ruth Gordon Oct 2009

The Dawn Of A New, New International Economic Order, Ruth Gordon

Law and Contemporary Problems

No abstract provided.


Theorizing Class, Gender, And The Law: Three Approaches, Angela P. Harris Oct 2009

Theorizing Class, Gender, And The Law: Three Approaches, Angela P. Harris

Law and Contemporary Problems

No abstract provided.


Patient Negligence, Michele Goodwin, L. Song Richardson Oct 2009

Patient Negligence, Michele Goodwin, L. Song Richardson

Law and Contemporary Problems

No abstract provided.


Rethinking Colorblind State Action: A Thought Experiment On Racial Preferences, Michele Goodwin, Nevin Gewertz Oct 2009

Rethinking Colorblind State Action: A Thought Experiment On Racial Preferences, Michele Goodwin, Nevin Gewertz

Law and Contemporary Problems

No abstract provided.


Does Gender Specificity In Constitutions Matter?, Laura E. Lucas Oct 2009

Does Gender Specificity In Constitutions Matter?, Laura E. Lucas

Duke Journal of Comparative & International Law

No abstract provided.