Law Commons^™

Journal Staff

Duke Law Journal

No abstract provided.

Reforming Attempt Liability Under 18 U.S.C. § 2422(B): An Insubstantial Step Back From United States V. Rothenberg , Korey J. Christensen

Duke Law Journal

The statute under which Internet sex predators are prosecuted for illicit online communications prohibits attempts to “knowingly persuade[], induce[], entice[], or coerce[]” minors to engage in “any sexual activity for which any person” can be criminally charged. This broad language has allowed courts to gradually expand the statute’s reach by reducing the level of conduct considered sufficient to constitute a substantial step toward commission of the crime. The Eleventh Circuit’s decision in United States v. Rothenberg is especially illustrative of this problematic expansion, as the court held that a conversation between consenting adults, without more, was sufficient to support a …

What Is Securities Fraud?, Samuel W. Buell

Duke Law Journal

As Rule 10b-5 approaches the age of seventy, deep familiarity with this supremely potent and consequential provision of American administrative law has obscured its lack of clear conceptual content. The rule, as written, interpreted, and enforced, is missing a fully developed connection to—of all things—fraud. Fraud is difficult to define. Several approaches are plausible. But the law of securities fraud, and much of the commentary about that body of law, has neither attempted such a definition nor acknowledged its necessity to the coherence and effectiveness of the doctrine.

Securities fraud’s lack of mooring in a fully developed concept of fraud …

Turning Unambiguous Statutory Materials Into Ambiguous Statutes: Ordering Principles, Avoidance, And Transparent Justification In Cases Of Interpretive Choice, Carlos E. González

Duke Law Journal

How should courts handle interpretive choices, such as when statutory text strongly points to one statutory meaning but strong evidence of legislative intent suggests a contradictory statutory meaning? Courts have addressed this longstanding dilemma inconsistently. Sometimes courts follow statutory text over contradictory legislative intent; sometimes they do the exact opposite.

Though reaching contradictory conclusions, many courts facing interpretive choices have argued that the law of interpretation provides definitive solutions. This Article argues that the opposite is true: the law of interpretation generates, rather than resolves, interpretive choices. When this occurs, legally unconstrained judicial discretion and extralegal factors, rather than the …

Interpretive Freedom: A Necessary Component Of Article Iii Judging , Jennifer M. Bandy

Duke Law Journal

As judges have debated the best method of constitutional and statutory interpretation, scholars have begun calling for increased constraints on the methodological freedoms of Article III judges. This Note rejects such proposals on constitutional grounds. Drawing upon the jurisprudence and scholarship on inherent powers, I argue that interpretive choice is an inherent judicial power. The drafting and ratification history of Article III demonstrates that the Framers expected federal judges to interpret the law. To accomplish this task, however, judges must have some methodological approach to help them prioritize interpretive evidence. Thus, imposition of a binding interpretive methodology upon federal judges …

Dna As Patentable Subject Matter And A Narrow Framework For Addressing The Perceived Problems Caused By Gene Patents, Stephen H. Schilling

Duke Law Journal

Concerns about the alleged harmful effects of gene patents— including hindered research and innovation and impeded patient access to high-quality genetic diagnostic tests—have resulted in overreactions from the public and throughout the legal profession. These overreactions are exemplified by Association for Molecular Pathology v. U.S. Patent and Trademark Office, a 2010 case in the Southern District of New York that held that isolated DNA is unpatentable subject matter under 35 U.S.C. § 101. The problem with these responses is that they fail to adequately consider the role that gene patents and patents on similar biomolecules play in facilitating investment in …

The Unconstitutionality Of State Regulation Of Immigration Through Criminal Law, Gabriel J. Chin, Marc L. Miller

Duke Law Journal

The mirror-image theory of cooperative state enforcement of federal immigration law is a phenomenon—one of the most wildly successful legal ideas in decades. The mirror-image theory proposes that states can enact and enforce criminal immigration laws that are based on federal statutes. The theory that it is unobjectionable for a state to carry out federal policy is the basis of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act—better known as SB 1070—and similar laws enacted in Alabama, Georgia, Indiana, and Utah. The same theory has provoked the introduction of bills in numerous other states and earlier but more narrowly …

A False Start In The Race Against Doping In Sport: Concerns With Cycling’S Biological Passport, Nicholas Hailey

Duke Law Journal

Professional cycling has suffered from a number of doping scandals. The sport’s governing bodies have responded by implementing an aggressive new antidoping program known as the biological passport. Cycling’s biological passport marks a departure from traditional antidoping efforts, which have focused on directly detecting prohibited substances in a cyclist’s system. Instead, the biological passport tracks biological variables in a cyclist’s blood and urine over time, monitoring for fluctuations that are thought to indirectly reveal the effects of doping. Although this method of indirect detection is promising, it also raises serious legal and scientific concerns. Since its introduction, the cycling community …

Truth, Lies, And Stolen Valor: A Case For Protecting False Statements Of Fact Under The First Amendment, Julia K. Wood

Duke Law Journal

The Stolen Valor Act of 2005 (the Act) makes it a crime to lie about having received a medal authorized by Congress for the military. In 2010, in United States v. Alvarez, the Ninth Circuit found the Act unconstitutional under the First Amendment, holding that false statements of fact, like other content-based restrictions on speech, are subject to strict scrutiny. The Act failed this test because, according to the court, it was not narrowly tailored to serve a compelling government interest. The decision highlights the uncertainty of First Amendment protections for false speech. Though the Supreme Court has held that …

Every Grain Of Sand: Would A Judicial Takings Doctrine Freeze The Common Law Of Property?, David S. Wheelock

Duke Law Journal

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a plurality of the U.S. Supreme Court endorsed the proposition that the Takings Clause of the Fifth Amendment might operate as a constraint not only on executive and legislative action, but also on judicial decisions. In a federal system in which property rights are established almost exclusively by state law, and in which the meaning of state law is determined by state courts, the notion of judicial takings raises several difficult questions. The question that is the province of this Note is whether a doctrine of judicial takings …

Journal Staff

Duke Law Journal

No abstract provided.

The Mechanics Of Federal Appeals: Uniformity And Case Management In The Circuit Courts, Marin K. Levy

Duke Law Journal

Case-management practices of appellate courts define the judicial review of appeals. The circuit courts constantly make decisions about which cases will receive oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions—decisions that exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts. Despite their importance, there has been no in-depth review of the case-management practices of the different circuit courts in the academic literature.

This Article begins to fill that void. It first documents and analyzes the practices of five …

Corporate Criminal Liability For Homicide: A Statutory Framework, James W. Harlow

Duke Law Journal

Since the nineteenth century, judges, legislators, prosecutors, and academics have grappled with how best to accommodate within the criminal law corporations whose conduct causes the death of others. The result of this debate was a gradual legal evolution towards acceptance of corporate criminal liability for homicide. But, as this Note argues, the underlying legal framework for such liability is ill fitting and largely ineffective. Given the public benefit that would accrue from a clearly defined and potent liability scheme, this Note proposes a model criminal statute that would hold corporations directly liable for homicide. The proposed statute draws upon basic …

The Adversarial Myth: Appellate Court Extra-Record Factfinding, Brianne J. Gorod

Duke Law Journal

The United States' commitment to adversarial justice is a defining feature of its legal system. Standing doctrine, for example, is supposed to ensure that courts can rely on adverse parties to present the facts courts need to resolve disputes. Although the U.S. legal system generally lives up to this adversarial ideal, it sometimes does not. Appellate courts often look outside the record the parties developed before the trial court, turning instead to their own independent research and to factual claims in amicus briefs. This deviation from the adversarial process is an important respect in which the nation's adversarial commitment is …

Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf

Duke Law Journal

In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …

Advocacy In The Media: The Blagojevich Defense And A Reformulation Of Rule 3.6, Leigh A. Krahenbuhl

Duke Law Journal

The current ethical rule governing lawyers' interactions with the media applies equally to defense attorneys and prosecutors despite their different roles and responsibilities in the justice system. With a focus on the Blagojevich trial as an example of modern lawyers' interactions with the press, this Note argues for a separate rule governing defense lawyers' extrajudicial speech. Such a rule would recognize an interest in protecting the legitimacy of the justice system and would provide clear standards to guide defense lawyers' advocacy outside of the courtroom. This Note provides an overview of the development of the trial-publicity rules, a glimpse of …

Sensible Agnosticism: An Updated Approach To Domain-Name Trademark Infringement, Shiveh Roxana Reed

Duke Law Journal

The Internet era has brought a new battlefield to U.S.-trademark-law disputes: domain names. Trademark owners have vigorously challenged the registration of domain names that consist of-or merely include-their trademarked terms, suing these domain-name registrants in U.S. courts for trademark infringement. During the early years of the Internet, courts often found consumer confusion-and thus trademark infringement-in these cases. As Internet use has developed, however, many courts have not recognized the growing sophistication of online consumers. This Note proposes that U.S. courts adapt their analyses to recognize evolving consumer behavior and expectations. This updated analysis, based on a 2010 Ninth Circuit opinion, …

Journal Staff

Duke Law Journal

No abstract provided.

Supervising Managed Services, James B. Speta

Duke Law Journal

Many Internet-access providers simultaneously offer Internet access and other services, such as traditional video channels, video on demand, voice calling, and other emerging services, through a single, converged platform. These other services which can be called "managed services" because the carrier offers them only to its subscribers in a manner designed to ensure some quality of service in many circumstances will compete with services that are offered by unaffiliated parties as applications or services on the Internet. This situation creates an important interaction effect between the domains of Internet access and managed services, an effect that has largely been missing …

Agency Threats, Tim Wu

Duke Law Journal

Most legal writers are implicitly or explicitly critical of the use of threats as an alternative to rulemaking or adjudication. The general presumption is that the use of threats is a kind of symptom of an underlying malady - a broken rulemaking or adjudication process. For example, Professor Lars Noah describes the use of threats as an “intractable problem,” given the difficulty of “controlling the exercise of such wide-ranging discretionary power.” In this brief Essay, I write in defense of regulatory threats in particular contexts.

The use of threats instead of law can be a useful choice - not simply …

Myspace, Yourspace, But Not Theirspace: The Constitutionality Of Banning Sex Offenders From Social Networking Sites, Jasmine S. Wynton

Duke Law Journal

In recent years there has been intense public pressure to enact increasingly restrictive and intrusive sex offender laws. The regulation of sex offenders has now moved online, where a growing amount of protected expression and activity occurs. The latest trend in sex offender policy has been the passage of state laws prohibiting sex offenders from visiting social networking sites, such as Myspace or Facebook. The use of these websites implicates the First Amendment right of expressive association. Broad social-networking-site bans threaten the First Amendment expressive association rights of sex offenders, who do not lose all of their constitutional rights by …

Transmitting, Editing, And Communicating: Determining What “The Freedom Of Speech” Encompasses, Stuart Minor Benjamin

Duke Law Journal

How much can one say with confidence about what constitutes "the freedom of speech" that Congress shall not abridge? In this Article, I address that question in the context of the transmission of speech specifically, the regulation of Internet access known as net neutrality. This question has implications both for the future of economic regulation, as more and more activity involves the transmission of bits, and for First Amendment interpretation. As for the latter, the question is what a lawyer or judge can conclude without having to choose among competing conceptions of speech. How far can a basic legal toolkit …

The Network Utility, Kevin Werbach

Duke Law Journal

The rise of cloud computing, which involves remote network-based applications and storage, is shifting the balance in the data world from distributed edge systems to centralized networked platforms. This emerging paradigm bears a striking resemblance to the computer utility, a widespread vision among technologists in the 1960s. The way the Federal Communications Commission (FCC) grappled with the convergence of computing and communications in that period shaped the trajectory of both industries. Technology and market structure have changed dramatically, but the basic regulatory issues remain: networked computers need access to communications utilities, and networked computing platforms can themselves function as public …

Journal Staff

Duke Law Journal

No abstract provided.

Environmental Harms, Use Conflicts, And Neutral Baselines In Environmental Law, Todd S. Aagaard

Duke Law Journal

Accounts of environmental law that rely on concepts of environmental harm and environmental protection oversimplify the tremendous variety of uses of environmental resources and the often complex relationships among those uses. Such approaches are analytically unclear and, more importantly, insert hidden normativity into putatively descriptive claims. Instead of thinking about environmental law in terms of preventing environmental harm, environmental problems can be understood more specifically and more meaningfully as disputes over conflicting uses of environmental resources. This Article proposes a use-conflict framework as a means of acquiring a deeper understanding of environmental problems and lawmaking without favoring any particular normative …

Administrative Law In The 1930s: The Supreme Court’S Accommodation Of Progressive Legal Theory, Mark Tushnet

Duke Law Journal

In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal-the SEC, the NLRB, and others-meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself In a series of contentious cases decided by the Hughes Court, Progressives believed …

Promoting Progress With Fair Use, Joshua N. Mitchell

Duke Law Journal

The Intellectual Property (IP) Clause provides that Congress has the power "to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In the realm of copyright, Congress and the courts have interpreted the clause as granting Congress a power not to promote progress but to establish limited IP monopolies. To return to an understanding of the IP power better grounded in the constitutional text, Congress and the courts should ensure that any IP enactment "promote[s] ... Progress" by considering whether it improves the …

Journal Staff

Duke Law Journal

No abstract provided.

Unbundling Risk, Lee Anne Fennell

Duke Law Journal

Scholars have explored many ways to rearrange risk outside of traditional insurance markets. An interesting literature addresses a range of innovative alternatives, including the sale of unmatured tort claims or chances at windfalls, "anti-insurance," or "reverse insurance," and index-based derivatives that address routine (but life-altering) risks, such as those to home values or livelihoods. Because most of this work grows out of a conviction that specific risk allocations embedded in law could be improved upon, the merits of the newly proposed risk arrangements have taken center stage. This Article, in contrast, examines questions surrounding risk customization itself such as the …

Where Are My Children … And My Rights? Parental Rights Termination As A Consequence Of Deportation, C. Elizabeth Hall

Duke Law Journal

The U.S. Supreme Court has set out a constitutional framework under which termination-of-parental-rights cases must be adjudicated in state courts. In all cases, this framework requires proof of parental unfitness by clear and convincing evidence before parental rights can be terminated, even when the parents in question are illegal immigrants. Despite this framework, in a rash of recently published cases, courts have terminated the parental rights of illegal immigrant parents without regard for these requirements. Those who work closely with immigrants fear that the published instances are merely the tip of the iceberg. This Note aims to shed light on …