Law Commons^™

Dna Profiles, Computer Searches, And The Fourth Amendment, Catherine W. Kimel

Duke Law Journal

Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled a database containing the DNA profiles of over eleven million citizens. Without judicial authorization, the government searches each of these profiles one-hundred thousand times every day, seeking to link database subjects to crimes they are not suspected of committing. Yet, courts and scholars that have addressed DNA databasing have focused their attention almost exclusively on the constitutionality of the government's seizure of the biological samples from which the profiles are generated. This Note fills a gap in the scholarship by examining the Fourth …

Journal Staff

Duke Law Journal

No abstract provided.

Our Place In The World: A New Relationship For Environmental Ethics And Law, Jedediah Purdy

Duke Law Journal

Forty years ago, at the birth of environmental law, both legal and philosophical luminaries assumed that the new field would be closely connected with environmental ethics. Instead, the two grew dramatically apart. This Article diagnoses that divorce and proposes a rapprochement. Environmental law has always grown through changes in public values; for this and other reasons, it cannot do so without ethics. Law and ethics are most relevant to each other when there are large open questions in environmental politics: lawmakers act only when some ethical clarity arises; but law can itself assist in that ethical development. This process is …

Creating Political Leaders: Lawyer Stories About Transitioning Into Political Office In Canada, Ralph A. Chatoor

Dissertations

Problem. Sustaining healthy democracies requires citizens to successfully transition from civilian life into political leadership positions. Despite the need for this transition to take place, little is known about the transition. Globally, lawyers are the most represented professional group inpolitics, therefore, a study of their transition acts as a good starting point in understanding the process. This study used the Nicholson Transition Cycle (NTC) to explore the transition of 65 lawyers into Canadian politics.

Method. An exploratory multiple case study approach was used to gather data from face-to-face interviews, phone interviews, public archives, email, and websites. Interviews were transcribed, coded, …

The Vexations Of Aging From The Imagination (A Lot) And Life (A Little) Of Bill Miller, James J. White

Reviews

Bill Miller has done something quite uncommon, possibly singular: he has become a prominent law professor by writing books that have nothing to do with the law. His books do not even have the remote relation to law that books by philosophers or historians can claim. Having studied medieval history before law school and achieved law school tenure by teetering on the edge of law in his work on Icelandic sagas, Miller jumped the fence completely in his books The Mystery of Courage, The Anatomy of Disgust, and Faking It. He has never returned. Presumably, this Review earned a place …

Late-Night Law Firms, Scott Hershovitz

Reviews

But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court. They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are …

Deprivation And Hispanic Health Paradox: Neighborhood Effects On Children's Wheezing In El Paso, Texas, Young-An Kim

Open Access Theses & Dissertations

This study examines the impact of hypothetical health determinants - including objective and relative economic deprivation, as well as foreign-born composition -at the neighborhood-level on respiratory wheezing among Hispanic children in El Paso, Texas while accounting for individual-level covariates based on hierarchical logistic modeling (HLM). Due to El Paso's majority Latino/a population, focus is placed on the so-called "Hispanic health paradox" through analysis of the impact of neighborhood foreign-born composition on Hispanic children's wheezing. Neighborhood-level variables at the census tract-level are derived from US Census data. The percent of families in poverty and the GINI coefficient for income (income inequality) …

Human Rights Obligations To The Poor, Monica Hakimi

Faculty Scholarship

Poverty unquestionably detracts fromthe human rights mission.Modern human rights law recognizes a broad range of rights – for example, “to life, liberty, and security of person” and to adequate “food, clothing, and medical care.”1 Any number of those rights might go unrealized in conditions of extreme poverty. However, human rights law has always been partly aspirational. For those seeking to improve the lives of the poor, the key question is not what rights exist but how to make those rights operational.What does human rights law actually require of states? And how might its obligations benefit the poor?

Assessing The Equity Implications Of Greenspace Distribution In An Arid Region, Abdelatif Eldeb

Open Access Theses & Dissertations

In the last few decades, vegetation deterioration is receiving increased attention because of its adverse impacts on societal and human health, environmental sustainability, and quality of life. I have selected two cities in Chihuahua Desert region (El Paso and Juarez) as case study sites to develop a novel and applicable methodology for integrating remotely sensed data of different spectral and spatial resolutions into an analysis of the spatial distribution of an urban amenity. The primary objective of this research is to determine if the spatial distribution of greenspace in 2010 is equitable with respect to socio-demographics in El Paso and …

The Development Of The Rapport Scales For Investigative Interviews And Interrogations, Misty Christina Duke

Open Access Theses & Dissertations

The purpose of this study was to develop the Rapport Scales for Investigative Interviews and Interrogations (RS3i), a measure of rapport for use in the context of investigative interviews and interrogations. Eighty "source" participants were interviewed by 80 "interview" participants. Each source rated the interview using the Prototype RS3i-Source Version. Observer participants each viewed and rated two interviews. Exploratory analyses were done on 374 observer ratings of 20 interviews to explore the factor structure of the items and develop the final scales. The final version of the RS3i contained 32 items comprising 8 rapport scales and one Commitment to Communication …

The Effect Of Co-Witness Information And Individual Differences In Cognitive Abilities On The Suggestibility Of Pre-School Children, Rachell Leanne Jones

Open Access Theses & Dissertations

Despite nearly 25 years of research, psychologists are still learning new ways in which various demographic, psychological, social, and cognitive factors contribute to child suggestibility. Numerous facets of each area have been studied independently, but as a field, it is becoming apparent that suggestibility is also affected by complex interactions between these various components (Scullin, Kanaya, & Ceci, 2002). The current study investigated several forensic interviewing techniques and psychosocial and cognitive factors that were hypothesized to influence child suggestibility. One hundred children were randomly assigned to five interview conditions after viewing a live event. The supposed statements of a co-witness …

Motivations For A Source To Resist An Interrogation: Consequences To The Self Versus Consequences To An Other, Julia Labianca

Open Access Theses & Dissertations

The current research investigated the effect of situational and dispositional factors on a source's decision to confess guilty knowledge of another's actions to an interrogator. The extant literature suggests that potential consequences to the self are a major motivator for decisions to confess or resist an interrogation. Previous research also suggests that the potential consequences to the other person may also influence a source's motivations to confess guilty knowledge. Additionally, personality measures related to interdependence versus personal independence (collectivism and individualism) and individual loyalty may also influence a source's motivations to cooperate with or resist an interrogation. However, few experiments …

Front Matter

Intercultural Human Rights Law Review

Front Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 8 (2013).

Privacy-Invading Technologies And Recommendations For Designing A Better Future For Privacy Rights, Alexandra Rengel

Intercultural Human Rights Law Review

The concept of privacy has been discussed for centuries by philosophers, anthropologists, sociologists, and legal scholars. The importance that individuals place on privacy is beyond question and transcends geographical, cultural and racial boundaries. Individuals' need for secrecy and private space is so fundamental to forging relationships with others, and to preserving our sense of self, that a society with a complete lack of individual privacy would be unimaginable. A right to privacy protects individuals from having the contents of certain private information made public and regulates the means and manner by which that information is obtained. However, new technologies often …

Plugging The Gap: A Reconsideration Of The U.N. Charter's Approach To Low-Gravity Warfare, Benjamin Zweifach

Intercultural Human Rights Law Review

There is a little discussed but critically important gap in the U.N. Charter's law of force regime. While Article 2(4) prohibits all threats and uses of force by a state or non-state actor, Article 51 only authorizes self-defense when an armed attack or "most grave" use of force has occurred-leaving a considerable spectrum of low-gravity coercion below that threshold, where a victim state may be violently assaulted, but have no lawful recourse to protect itself with military action. This Paper explores the loophole in the Charter's regulatory architecture, and finds that it provides a safe harbor, protected from military counter-strikes, …

Gandhi And Copyright Pragmatism, Shyamkrishna Balganesh

Faculty Scholarship

Mahatma Gandhi is revered the world over for his views on freedom and nonviolence – ideas that he deployed with great success during India’s freedom struggle. As a thinker, he is commonly considered to have been a moral idealist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with copyright law – as a writer, editor, and publisher – he routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced understanding of copyright law and its conflicting normative goals, Gandhi’s thinking on copyright law reveals a reasoned, contextual, …

Does Criminal Diversion Contribute To The Vanishing Civil Trial?, John B. Meixner Jr., Shari Seidman Diamond

Scholarly Works

Through his seminal work on the vanishing trial, Professor Marc Galanter has had a profound impact on public and scholarly discourse about the role of the trial in litigation, documenting the sharp reductions in the rate of civil cases since the mid-twentieth century. While there is little remaining doubt that the American civil trial is an increasingly scarce commodity, there is still much debate as to what has caused the decline.

In this Article, we seek to explore the extent to which the federal criminal docket may be contributing to the rapid disappearance of the civil trial by taking priority …

Bankrupting The Faith, Pamela Foohey

Scholarly Works

This Article presents the results of a comprehensive empirical study of religious organizations that filed bankruptcy under Chapter 11 from the beginning of 2006 to the end of 2011. It examines the institutions’ characteristics, reasons for filing, and case outcomes to investigate whether Chapter 11 is an effective solution to their financial problems. In investigating the religious organizations’ cases, the Article also assesses the role of bankruptcy courts in adjudicating Chapter 11 cases and places the cases within theories about the larger purposes of Chapter 11.

The study finds that the vast majority of debtors are small organizations that operate …

Error Costs & Ip Law, Joseph S. Miller

Scholarly Works

A court in doubt about an ip statute’s scope can err in two ways. It can wrongly narrow the ip right’s reach, or wrongly broaden it. The latter error, however, is worse: A wrongly broadened ip statute effectively creates new property. To correct erroneous broadening, unlike erroneous narrowing, the legislature must thus eliminate a now-established property right. And that is very hard to do. Courts cannot, of course, avoid making at least some mistakes. Courts can, however, prefer the mistakes that are easier, not harder, for the legislature to correct. This essay explores this error-cost-based approach to ip statutes, as …

How The Poor Got Cut Out Of Banking, Mehrsa Baradaran

Scholarly Works

The United States currently has two banking systems — one for the rich, one for the poor. It wasn’t always this way. Throughout U.S. history, the government has enlisted certain banking institutions to serve the needs of the poor and offer low cost credit to enable low-income Americans to escape poverty. Credit unions, savings and loans and Morris Banks are three prominent examples of government-supported institutions with a specific focus of helping the poor. Unfortunately, these institutions are no longer fulfilling their missions and high-cost, usurious, and sometimes predatory check-cashers and payday lenders have quickly filled the void. These fringe …

A Numerus Clausus Principle For Intellectual Property, Christina Mulligan

Scholarly Works

Real property can only be held and conveyed in a small number of forms, such as fee simple, life estate, and lease. This principle is known as numerus clausus, meaning “the number is closed.” For centuries, the principle has been central to the common-law system of property rights. Scholars have justified it as a mechanism for facilitating effective property alienation, maintaining low transaction costs in the buying and selling of property, and keeping the scope of property owners’ rights clear.

In contrast, the numerus clausus principle is essentially nonexistent in intellectual property law. In the context of patents and copyrights, …

State Interests And The Duration Of Abortion Rights, Randy Beck

Scholarly Works

Few areas of the Supreme Court’s jurisprudence have attracted as much attention in recent decades as the case law recognizing a constitutional right to terminate a pregnancy. Justice Anthony M. Kennedy has exercised more influence over the Court’s abortion jurisprudence than perhaps any other sitting Justice. His jointly authored plurality opinion in Planned Parenthood of Southeastern Pa. v. Casey reaffirmed the basic right to an abortion first recognized in Roe v. Wade, applying that right to regulations effective from the outset of pregnancy. Later opinions, particularly Justice Kennedy’s dissent in Stenberg v. Carhart and his majority opinion in Gonzales v. …

Death Panels And The Rhetoric Of Rationing, Elizabeth Weeks Leonard

Scholarly Works

This essay offers an explanation for the United States' continued resistance to universal health care as grounded in two taboos: taxation and rationing. Even we were willing to pay more in taxes to directly subsidize the cost of medical care for those in need, rather than our current system of indirect subsidization through private insurance risk-pooling and cost-shifting, we still would face the unavoidable reality of resource limitations. Attempts to limit resource consumption, however, have been strongly opposed, as evidenced by the "death panels" controversy. Governor Palin's grossly erroneous characterization of the Patient Protection and Affordable Care Act (ACA) rendered …

Children And The First Verdict Of The International Criminal Court, Diane Marie Amann

Scholarly Works

Child soldiers were a central concern in the first decade of the International Criminal Court; indeed, the court’s first trial, Prosecutor v. Lubanga, dealt exclusively with the war crimes of conscripting, enlisting, and using child soldiers. This article compares the attention that the court has paid to children – an attention that serves the express terms of the ICC Statute – with the relative inattention in post-World War II international instruments such as the statutes of the Nuremberg and Tokyo tribunals. The article then analyzes the Lubanga conviction, sentence, and reparations rulings. It recommends that the ICC focus attention on …

Disentangling Conscience And Religion, Nathan Chapman

Scholarly Works

What does “liberty of conscience” mean? Religious liberty? Freedom of strong conviction? Freedom of thought? Since the Founding Era, Americans have used liberty of conscience to paper over disputes about the proper scope of religious, moral, and philosophical liberty. This Article explores the relationship between conscience and religion in history, political theory, and theology, and proposes a conception of conscience that supports a liberty of conscience distinct from religious liberty. In doing so, it offers a theoretical basis for distinguishing between conscience and religion in First Amendment scholarship and related fields. Conscience is best understood, for purposes of legal theory, …

The Outside Investor: Citizen Shareholders & Corporate Alienation, Anne M. Tucker

Scholarly Works

This Article explores the creation and conundrum of citizen shareholders-investors who enter the securities market primarily through employer- sponsored defined-contribution plans, invest in mutual or index funds, and are saving for long-term goals like retirement. Citizen shareholders are a consequence of a retirement revolution, and are the fastest growing group of investors. Citizen shareholders are distinguishable from other shareholders on the grounds of choice, exit, and the number of intermediaries inserted into the investment chain in defined-contribution plans. They are largely missing from corporate policy and scholarship debates; few discussions have incorporated the growing reality that shareholder status has changed …

Retirement Revolution: Unmitigated Risks In The Defined Contribution Society, Anne M. Tucker

Scholarly Works

A revolution in the retirement landscape over the last several decades shifted the predominant savings vehicle from traditional pensions (defined benefit plans) to self-directed accounts in defined contribution plans like the 401(k) and has drastically changed how people invest in the stock market and why. The prevalence of these self-directed accounts has created our defined contribution society and a new class of investors-the citizen shareholders-who enter the private securities market through self-directed retirement plans, invest for long-term savings goals, and are predominately indirect shareholders. With 90 million Americans invested in mutual funds, and nearly 75 million who do so through …

Can Executive Compensation Reform Cure Short-Termism?, Gregg Polsky, Andrew C. Lund

Scholarly Works

There is an increasingly pervasive view among corporate governance observers that senior managers are too focused on short-term results at the expense of long-term interests. Concerns about “short-termism” have been expressed within the financial industry context and outside of it, but because of the recent financial crisis, much of the discussion has been directed at financial institutions. To combat short-termism, several commentators have advocated executive compensation reform to encourage senior managers to adopt a longer-term perspective. Yet these reforms will likely prove ineffective because of other significant pressures on managers to maintain current stock prices.

Persuasion Treaties, Melissa J. Durkee

Scholarly Works

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties along a fault line: Treaties that govern the behavior of state parties and their agents fall on one side. Treaties in the second category — those I call “persuasion” treaties — commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas …

A Response To Beyond Separation: Professor Copeland’S Ambitious Proposal For “Integrative” Federalism, Elizabeth Weeks

Scholarly Works

No abstract provided.