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Articles 1 - 30 of 192
Full-Text Articles in Law
Custom, Normative Practice, And The Law, Gerald J. Postema
Custom, Normative Practice, And The Law, Gerald J. Postema
Duke Law Journal
Legally binding custom is conventionally analyzed in terms of two independent elements: regularities of behavior (usus) and convictions of actors engaging in the behavior that it is legally required (opinio juris). This additive conception of custom is deeply flawed. This Essay argues that we must abandon the additive conception and replace it with an account of custom that understands legally relevant customs as norms that arise from discursive normative practices embedded in rich contexts of social interaction characterized by intermeshing anticipations and interconnected conduct. The hallmark of legally binding customs, it is argued, is not the addition of belief or …
“Abandoned… Without A Word Of Warning”: Perspectives On Maples V. Thomas, Deborah A. Demott
“Abandoned… Without A Word Of Warning”: Perspectives On Maples V. Thomas, Deborah A. Demott
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin
Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Getting Juvenile Life Without Parole “Right” After Miller V. Alabama, Doriane L. Coleman, James E. Coleman Jr.
Getting Juvenile Life Without Parole “Right” After Miller V. Alabama, Doriane L. Coleman, James E. Coleman Jr.
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Where The Wild Things Were: A Chance To Keep Alaska’S Challenge Of The Roadless Rule Out Of The Supreme Court, Kirsten Rønholt
Where The Wild Things Were: A Chance To Keep Alaska’S Challenge Of The Roadless Rule Out Of The Supreme Court, Kirsten Rønholt
Alaska Law Review
No abstract provided.
Custom, Contract, And Kidney Exchange , Kieran Healy, Kimberly D. Krawiec
Custom, Contract, And Kidney Exchange , Kieran Healy, Kimberly D. Krawiec
Duke Law Journal
In this Essay, we examine a case in which the organizational and logistical demands of a novel form of organ exchange (the nonsimultaneous, extended, altruistic donor (NEAD) chain) do not map cleanly onto standard cultural schemas for either market or gift exchange, resulting in sociological ambiguity and legal uncertainty. In some ways, a NEAD chain resembles a form of generalized exchange, an ancient and widespread instance of the norm of reciprocity that can be thought of simply as the obligation to "pay it forward" rather than the obligation to reciprocate directly with the original giver. At the same time, a …
International Adjudication And Custom Breaking By Domestic Courts , Suzanne Katzenstein
International Adjudication And Custom Breaking By Domestic Courts , Suzanne Katzenstein
Duke Law Journal
This Essay identifies a fundamental but overlooked tension between international adjudication and the evolution of customary international law (CIL). According to the traditional understanding, the evolution of CIL requires one or more states to deviate from existing customary rules and engage in new conduct—a concept that I refer to as "custom breaking." A deviation's legal status is determined over time, as other states respond by deciding whether to follow the proposed break or adhere to the existing rule. Therefore, the deviation cannot be classified definitively as either legal or illegal at the time it occurs. During the period of state …
The Custom-To-Failure Cycle, Steven L. Schwarcz, Lucy Chang
The Custom-To-Failure Cycle, Steven L. Schwarcz, Lucy Chang
Duke Law Journal
In areas of complexity, people often rely on heuristics—by which we broadly mean simplifications of reality that allow people to make decisions in spite of their limited ability to process information. When this reliance becomes routine and widespread within a community, it can develop into a custom. As long as such a heuristic-based custom reasonably approximates reality, society continues to benefit. In the financial sector, however, rapid changes in markets and products have disconnected some of these customs from reality, leading to massive failures, and increasing financial complexity is accelerating the rate of change, threatening future failures. We examine this …
Artful Good Faith: An Essay On Law, Custom, And Intermediaries In Art Markets, Deborah A. Demott
Artful Good Faith: An Essay On Law, Custom, And Intermediaries In Art Markets, Deborah A. Demott
Duke Law Journal
This Essay explores relationships between custom and law in the United States in the context of markets for art objects. The Essay argues that these relationships are dynamic, not static, and that law can prompt evolution in customary practice well beyond the law's formal requirements. Understanding these relationships in the context of art markets requires due attention to two components distinctive to art markets: the role of dealers and auction houses as transactional intermediaries as well as the role of museums as end-collectors. In the last decade, the business practices of major transactional intermediaries reflected a significant shift in customary …
Custom And The Rule Of Law In The Administration Of The Income Tax, Lawrence Zelenak
Custom And The Rule Of Law In The Administration Of The Income Tax, Lawrence Zelenak
Duke Law Journal
From the early years of the federal income tax to the present, the Internal Revenue Service (IRS) has engaged in what might be termed "customary deviations" from the dictates of the Internal Revenue Code, always in a taxpayer-favorable direction. A prominent current example is the IRS's "don't ask, don't tell" policy with respect to employee-retained frequent flier miles; in a 2002 announcement (which, as of 2012, is still in force), the IRS indicated that such miles were technically within the scope of the statutory definition of gross income, but that the IRS had no intention of enforcing the law. This …
The Continuing Vitality Of Ravin V. State: Alaskans Still Have A Constitutional Right To Possess Marijuana In The Privacy Of Their Homes , Jason Brandeis
The Continuing Vitality Of Ravin V. State: Alaskans Still Have A Constitutional Right To Possess Marijuana In The Privacy Of Their Homes , Jason Brandeis
Alaska Law Review
No abstract provided.
Your Papers, Please: Police Authority To Request Identification From A Passenger During A Traffic Stop In Alaska, Patricia Haines
Your Papers, Please: Police Authority To Request Identification From A Passenger During A Traffic Stop In Alaska, Patricia Haines
Alaska Law Review
No abstract provided.
Anderson V. State: The Consent To Search Doctrine Revisited, Andrew G. Perrin
Anderson V. State: The Consent To Search Doctrine Revisited, Andrew G. Perrin
Alaska Law Review
No abstract provided.
Note From The Editor, Nick Passarello
Copyright Protection’S Challenges And Alaska Natives’ Cultural Property, Stuart Schüssel
Copyright Protection’S Challenges And Alaska Natives’ Cultural Property, Stuart Schüssel
Alaska Law Review
No abstract provided.
Clarity At Sentencing Deferred: How Dorsey V. United States Could Have Reformed Federal Sentencing, Jonathan Ross
Clarity At Sentencing Deferred: How Dorsey V. United States Could Have Reformed Federal Sentencing, Jonathan Ross
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Journal Staff
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
The Duke Project On Custom And Law , Curtis A. Bradley, Mitu Gulati
The Duke Project On Custom And Law , Curtis A. Bradley, Mitu Gulati
Duke Law Journal
No abstract provided.
Tradition As Past And Present In Substantive Due Process Analysis, Katharine T. Bartlett
Tradition As Past And Present In Substantive Due Process Analysis, Katharine T. Bartlett
Duke Law Journal
Tradition is often understood as an inheritance from the past that has no connection to the present. Justices of the U.S. Supreme Court on both ends of the ideological spectrum work from this understanding, particularly in analyzing cases under the substantive due process clause. Some conservative Justices say that substantive due process protects only rights that were firmly established when the Constitution was ratified. In contrast, some liberal Justices dismiss tradition as being too stagnant and oppressive to serve as a limit on substantive due process rights, relying instead on contemporary norms and reason. Both of these approaches share an …
Order Without Judges: Customary Adjudication, Joseph Blocher
Order Without Judges: Customary Adjudication, Joseph Blocher
Duke Law Journal
Scholarship on custom and law has largely focused on the creation and enforcement of informal rules, demonstrating and in some cases endorsing the existence of "order without law." But creating and enforcing rules are only two of the three functions of governance, corresponding roughly with what in other contexts are called the legislative and executive branches. The third function—adjudication—has not played such a prominent role in the scholarly literature on informal governance. As one leading scholar puts it: "Custom has no constitution or judges." But if customs can be created and enforced by nonstate actors, why should scholars assume that …
Distinguishing The “Truly National” From The “Truly Local”: Customary Allocation, Commercial Activity, And Collective Action, Neil S. Siegel
Distinguishing The “Truly National” From The “Truly Local”: Customary Allocation, Commercial Activity, And Collective Action, Neil S. Siegel
Duke Law Journal
This Essay makes two claims about different methods of defining the expanse and limits of the Commerce Clause. My first claim is that approaches that privilege traditional subjects of state regulation are unworkable and undesirable. These approaches are unworkable in light of the frequency with which the federal government and the states regulate the same subject matter in our world of largely overlapping federal and state legislative jurisdiction. The approaches are undesirable because the question of customary allocation is unrelated to the principal reason why Congress possesses the power to regulate interstate commerce: solving collective action problems involving multiple states. …
Norms And Law: Putting The Horse Before The Cart, Barak D. Richman
Norms And Law: Putting The Horse Before The Cart, Barak D. Richman
Duke Law Journal
Law and society scholars have long been fascinated with the interplay of formal legal and informal extralegal procedures. Unfortunately, the fascination has been accompanied by imprecision, and scholars have conceptually conflated two very different mechanisms that extralegally resolve disputes. One set of mechanisms might be described as the "shadow of the law," made famous by seminal works by Professors Stewart Macaulay and Marc Galanter, in which social coercion and custom have force because formal legal rights are credible and reasonably defined. The other set of mechanisms, recently explored by economic historians and legal institutionalists, might be described as "order without …
The America Invents Act 500: Effects Of Patent Monetization Entities On Us Litigation, Sara Jeruss, Robin Feldman, Joshua Walker
The America Invents Act 500: Effects Of Patent Monetization Entities On Us Litigation, Sara Jeruss, Robin Feldman, Joshua Walker
Duke Law & Technology Review
Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non-practicing entities have been long on speculation and short on data. In 2011 Congress directed the nonpartisan Government Accountability Office to study the effects of non-practicing entities on patent litigation. At the request of the GAO, we collected and coded a set of patent lawsuits filed over the past five years. This article presents our analysis of the data and its implications. The data confirm in a dramatic fashion …
Cooking Protestors Alive: The Excessive-Force Implications Of The Active Denial System, Brad Turner
Cooking Protestors Alive: The Excessive-Force Implications Of The Active Denial System, Brad Turner
Duke Law & Technology Review
The Active Denial System (ADS) is unlike any other nonviolent weapon: instead of incapacitating its targets, it forces them to flee, and it does so without being seen or heard. Though it is a promising new crowd-control tool for law-enforcement, excessive-force claims involving the ADS will create a Fourth Amendment jurisprudential paradox. Moreover, the resolution of that paradox could undermine other constitutional principles—like equality, fairness, and free speech. Ultimately, the ADS serves as a warning that without legislation, American jurisprudence may not be ready for the next generation of law-enforcement technology and the novel excessive-force claims sure to follow.
A Comparative Critique To U.S. Courts’ Approach To E-Discovery In Foreign Trials, Lauren Ross
A Comparative Critique To U.S. Courts’ Approach To E-Discovery In Foreign Trials, Lauren Ross
Duke Law & Technology Review
This Issue Brief explores an oft-neglected irony in international e-discovery: the rationales used by courts to compel discovery against foreign parties embroiled in litigation in U.S. courts may contradict courts’ reasoning when compelling discovery against U.S. parties engaged in litigation overseas. U.S. courts often grant petitions for discovery, increasingly electronic in form, both against a foreign party in the U.S. and against a domestic party abroad. Although allowing discovery in both scenarios appears consistent, it actually ignores important counterconsiderations like fairness and reciprocity in different legal systems. Because the rise of technology has exacerbated the existing problem, making discovery more …
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
Duke Law Journal
Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and uantitatively significant enough—or "substantially similar"—for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright's requirement of "substantial similarity" has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright's substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of other areas …
Hauerwas And Disability Law: Exposing The Cracks In The Foundations Of Disability Law , Elizabeth R. Schiltz
Hauerwas And Disability Law: Exposing The Cracks In The Foundations Of Disability Law , Elizabeth R. Schiltz
Law and Contemporary Problems
No abstract provided.
Must Liberalism Be Violent? A Reflection On The Work Of Stanley Hauerwas , Stephen L. Carter
Must Liberalism Be Violent? A Reflection On The Work Of Stanley Hauerwas , Stephen L. Carter
Law and Contemporary Problems
No abstract provided.