Law Commons^™

Pre-Service Removal In The Forum Defendant's Arsenal, Saurabh Vishnubhakat

Faculty Scholarship

This article is the first academic defense of pre-service removal in diversity cases by forum-state defendants under the “properly joined and served” language of 28 U.S.C. § 1441(b). Pre-service removal has proliferated nationally in recent years. Appellate courts, however, have been silent on the issue for two reasons: First, orders that remand a case to state court are statutorily non-reviewable on appeal. Second, cases retained in federal court and litigated to final judgment are highly unlikely, for reasons of judicial economy, to be voided for de novo readjudication in state court. After tracing the development of the removal statute and …

Reconceiving The Patent Rocket Docket: An Empirical Study Of Infringement Litigation 1985-2010, Saurabh Vishnubhakat

Faculty Scholarship

This Article presents the first survival model for systematically identifying and comparing United States district courts as patent rocket dockets, and for examining related trends in patent litigation. The conventional wisdom of rocket docket status in a judicial district tends to rely on average case disposition times and the availability of court rules for patent cases, as well as anecdotal information about well-known jurists with experience in patent adjudication.

By comparison, this Article approaches rocket dockets through a quantitative investigation of recent historical trends in patent case filings as well as through market concentration analysis at the district court and …

Are Developing Countries Playing A Better Trips Game, Peter K. Yu

Faculty Scholarship

The Agreement on Trade-Related Aspects of Intellectual Property Rights entered into force more than 15 years ago. Although commentators have widely criticized the Agreement for its failure to address the needs, interests, conditions, and priorities of less developed countries, few have examined whether these countries have now attained greater success in shaping the development of the Agreement than they did before. This Article seeks to fill the void by examining the performance of these countries at various stages of development of the TRIPS Agreement.

Utilizing game theory and game metaphors, this Article disaggregates the "TRIPS game" into five different mini-games: …

Tribal Rights In Kenya And Zimbabwe: To Promote Or Not To Promote, That Is The Question, Kristin Macdougall

Connecticut Journal of International Law

Africa has seen its share of turmoil throughout history. Before colonialism, Africa was a place where tribes governed, and community was at the forefront of society.' During colonialism and post-colonialism, tribal rights have remained an incredibly important part of African life.2 Although there are strong tribal identities in almost every country in Africa, methods for promoting tribal rights differ.' In particular, Zimbabwe and Kenya are two nations in which tribal rights have undergone different paths to recognition.

This paper will analyze the differences between Zimbabwe and Kenya's strategies for promoting (or not promoting) tribal rights. Furthermore, there are several explanations …

Brown And Roper: The American South And The Supreme Court, Takuya Katsuta

Connecticut Journal of International Law

This article examines the significance of foreign law and international relations for the Supreme Court of the United States when it resolves constitutional controversies, focusing primarily on the controversial 2005 decision, Roper v. Simmons. The conflict between Justices Kenney and Scalia on the issue of referring to foreign law comes under review by reference to the number of states and nations that permitted the challenged practice when the Court applied the cruel and unusual punishment clause of the Eighth Amendment in its decisions on major death penalty issues. This article reveals that since 1958, the Court has consistently referred to …

A Preface To World Government: A Comparison Of The Current State Of International Governance With The State Of Governance That Followed Adoption Of The American Articles Of Confederation, Vincent J. Samar

Connecticut Journal of International Law

Is the current state of international governance by the United Nations and related organizations a preface to what eventually might become a world government?' Is it at all similar to the structure of government in the United States after the adoption of the Articles of Confederation in 1781 and before adoption of the Constitution of 1787? Are changes in the way international institutions like the United Nations operate related to changes in our conceptions of the role of these institutions in providing international governance? When governmental institutions prove to be too weak to adequately perform the tasks expected of them …

Hip-Hop And Housing: Revisiting Culture, Urban Space, Power, And Law, Lisa T. Alexander

Faculty Scholarship

U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based …

Foreword, James L. Olmsted

Law and Contemporary Problems

The land trust community and governments at all levels have become married to conservation easements as their land conservation tool of choice. The numbers speak for themselves: as of the date of this writing, there were reportedly 1,700 land trusts that have protected twelve million acres of land by use of conservation easements. The bulk of this growth both in conservation easements and the land trusts that deploy them has occurred since the 1980s when federal income tax incentives became more fully utilized by conservation easement donors. But the parties to this marriage have become complacent and inattentive in the …

The Invisible Forest: Conservation Easement Databases And The End Of The Clandestine Conservation Of Natural Lands , James L. Olmsted

Law and Contemporary Problems

Olmsted talks about "invisible forest" refers to forest lands -- and, for that matter, any other land types -- protected by a perpetual conservation easement, the existence and location of which are concealed from the public, whether deliberately or because of the opaque nature of the easement process. Because easements, like other forms of deeds, must be recorded at the local land registry or recorder's office, they can never be made undiscoverable. But, despite the efforts of some states and conservation organizations to compile conservation easement data for public consumption, there are few functional systems that comprehensively track and provide …

Exploring Net Benefit Maximization: Conservation Easements And The Public-Private Interface, Julie Ann Gustanski, John B. Wright

Law and Contemporary Problems

Gustanski and Wright talk about conservation easements and the public-private interface. The ease of application across varied lands coupled with the financial and tax-associated benefits of conservation easements have driven the popularity of their use in conserving private lands across the US. Conservation easements typically require sizeable public funding resources, which are provided through either direct public expenditures via diverse public programs established to promote the conservation of land or through tax benefits.

Evaluating Conservation Effectiveness And Adaptation In Dynamic Landscapes, Adena R. Rissman

Law and Contemporary Problems

Rissman talks about evaluating conservation easement effectiveness requires interdisciplinary research that reaches beyond legal analysis to examine how easements influence human behaviors, which subsequently influence environmental conditions. Conservation easement effectiveness is not a fixed target, but is influenced over time by social and ecological landscape change. The promise of perpetuity is central to the appeal of conservation easements within the conservation movement.

Conservation Easements At The Climate Change Crossroads, Jessica Owley

Law and Contemporary Problems

Owley discusses the conundrum that occurs when climate change leads to a landscape that conflicts with conservation easement terms. A conservation easement that is too changeable endangers the perpetual protection that is the cornerstone of conservation easements. But, forcing the landscape to fit a conservation easement requires active management, something more often associated with fee-simple ownership.

Conservation Easements And Perpetuity: Till Legislation Do Us Part, Richard Brewer

Law and Contemporary Problems

Brewer talks about conservation easements and perpetuity. Although conservation easements have many appealing features, their drawbacks have caused some observers to see the heavy reliance on them by land trusts as a weakness with possibly serious consequences. The protection provided may be fragile or, at least, of unproven dependability.

Conservation Easements And The Doctrine Of Merger, Nancy A. Mclaughlin

Law and Contemporary Problems

McLaughlin talks about conservation easements and the doctrine of merger. This article explains that merger generally should not occur in such cases because the unity of ownership that is required for the doctrine to apply typically will not be present. For merger to occur, the two estates must be in the same person at the same time and in the same right.

Journal Staff

Law and Contemporary Problems

No abstract provided.

The Content Of Confrontation, Lisa Kern Griffin

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Limits Of Liability In Promoting Safe Geologic Sequestration Of Co2, David E. Adelman, Ian J. Duncan

Duke Environmental Law & Policy Forum

No abstract provided.

Innovations In Governance: A Functional Typology Of Private Governance Institutions, Tracey M. Roberts

Duke Environmental Law & Policy Forum

No abstract provided.

An Ecosystem-Based Approach To Slowing The Synergistic Effects Of Invasive Species And Climate Change, David A. Strifling

Duke Environmental Law & Policy Forum

No abstract provided.

Journal Staff

Duke Environmental Law & Policy Forum

No abstract provided.

Do We Value Our Cars More Than Our Kids? The Conundrum Of Care For Children , Palma Joy Strand

Duke Journal of Gender Law & Policy

Formal child care workers in the United States earn about $21,110 per year. Parking lot attendants, in contrast, make $21,250. These relative wages are telling: the market values the people who look after our cars more than the people who look after our kids.

This article delves below the surface of these numbers to explore the systemic disadvantages of those who care for children—and children themselves. The article first illuminates the precarious economic position of U.S. children, a disproportionate number of whom live in poverty. The article then shows both that substantial care for children is provided on an unpaid …

Alimony: What Social Science And Popular Culture Tell Us About Women, Guilt, And Spousal Support After Divorce , Judith G. Mcmullen

Duke Journal of Gender Law & Policy

Over the past few decades, fewer divorcing women have received alimony, and when alimony awards are made, they are in declining amounts and for shorter periods of time. Conventional explanations of this trend focus on legal changes that have made divorces easier to obtain, as well as social changes that have led to larger numbers of married women in the paid workforce, and to greater social tolerance of divorce. Certainly these changes partly explain the downward trend in alimony, but they do not fully explain why alimony awards continue to decline, even among women who do not have viable job …

With All My Worldly Goods I Thee Endow, Or Maybe Not: A Reevaluation Of The Uniform Premarital Agreement Act After Three Decades, J. Thomas Oldham

Duke Journal of Gender Law & Policy

No abstract provided.

Implementing Grutter’S Diversity Rationale: Diversity And Empathy In Leadership , Rebecca K. Lee

Duke Journal of Gender Law & Policy

This Article examines the role of leadership in implementing the diversity rationale affirmed by the U.S. Supreme Court in Grutter v. Bollinger and argues that greater diversity and empathy are needed for effective leadership in diverse settings. In Grutter, the Court held that the University of Michigan Law School's use of race in selecting students for admission did not violate the Constitution's Equal Protection Clause. In so doing, the Court affirmed Justice Powell's diversity rationale as expressed in an earlier case, Regents of University of California v. Bakke, in which he noted that "'the nation's future depends upon leaders …

The Role Of Social Science In Judicial Decision Making: How Gay Rights Advocates Can Learn From Integration And Capital Punishment Case Law , Amy Rublin

Duke Journal of Gender Law & Policy

This Article explores the intersection of social science and judicial decision making. It examines to what extent, and in what contexts, judges utilize social science in reaching and bolstering their rulings. The Article delves into three areas of law that are typically not grouped together—integration, gay rights, and capital punishment—to see the similarities and differences in the use of empirical findings. Analyzing the language in judicial opinions from family courts, district courts, circuit courts, and the United States Supreme Court enabled the emergence of trends. The opinions revealed that inconsistency in the use of social science may stem from how …

Journal Staff

Duke Journal of Gender Law & Policy

No abstract provided.

Looking A Gift Horse In The Mouth—The Underutilization Of Crime Victim Compensation Funds By Domestic Violence Victims , Njeri Mathis Rutledge

Duke Journal of Gender Law & Policy

No abstract provided.

Series Llcs In Real Estate Transactions, Bradley T. Borden, Mathews Vattamala

Faculty Scholarship

No abstract provided.

Medical Deduction Allowed For In-Home Personal Use, Danny A. Pannese

WCBT Faculty Publications

The Tax Court held that payments made to an elderly woman's providers of personal care that she required due to her diminished capacity qualified as long-term-care services and were therefore deductible under IRC § 213(d)(1)(C). Lillian Baral was diagnosed with dementia by her physician in 2004. The court agreed with Baral's estate that the amounts paid to the caregivers for their services were deductible as qualified long-term-care services. Baral was chronically ill, and the care was medically necessary to protect her from threats to her health and safety, as determined by her physician. The court also held the amounts paid …

Should Laptops Be Banned? Providing A Robust Classroom Learning Experience Within Limits, Robin A. Boyle

Faculty Publications

(Excerpt)
/="/">Technology abounds today’s law students. Laptops, iPods, iPads, and BlackBerrys are just a few of the newly developed modes of communication, notetaking, and music-storing devices that creep into our vocabulary – and students’ backpacks. Given the competitive nature of law school, students understandably bring laptops to class hoping to maximize their performance. Unfortunately for all involved, students use their laptops beyond the task of note-taking. The distractions that present themselves in class have led law professors to complain on various fora about the frequency of laptop use in the classroom. Some posit that students’ inappropriate use of laptops …