Law Commons^™

Journal Staff

Alaska Law Review

No abstract provided.

Foreword

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Super Pac Contributions, Corruption, And The Proxy War Over Coordination, Richard L. Hasen

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Market Structure And Political Law: A Taxonomy Of Power, Zephyr Teachout, Lina Khan

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Classifying Corruption, Yasmin Dawood

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Between Access And Influence: Building A Record For The Next Court, Renata E. B. Strause, Daniel P. Tokaji

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The Disappearance Of Corruption And The New Path Forward In Campaign Finance, Eugene D. Mazo

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Perceptions Of Efficacy, Morality, And Politics Of Potential Cadaveric Organ-Transplantation Reforms, Christopher T. Robertson, David V. Yokum, Megan S. Wright

Law and Contemporary Problems

No abstract provided.

Born This Way: How Neuroimaging Will Impact Jury Deliberations, Tanneika Minott

Duke Law & Technology Review

Advancements in technology have now made it possible for scientists to provide assessments of an individual’s mental state. Through neuroimaging, scientists can create visual images of the brain that depict whether an individual has a mental disorder or other brain defect. The importance of these advancements is particularly evident in the context of criminal law, where defendants are able to dispute their culpability for crimes committed where they lack the capacity to form criminal intent. Thus, in theory, a neuroimage depicting defective brain functioning could demonstrate a defendant’s inability to form the requisite criminal intent. Due to early successes in …

Evidence And Extrapolation: Mechanisms For Regulating Off-Label Uses Of Drugs And Devices, Ryan Abbott, Ian Ayres

Duke Law Journal

A recurring, foundational issue for evidence-based regulation is deciding whether to extend governmental approval from an existing use with sufficient current evidence of safety and efficacy to a novel use for which such evidence is currently lacking. This "extrapolation" issue arises in the medicines context when an approved drug or device that is already being marketed is being considered (1) for new conditions (such as off-label diagnostic categories), (2) for new patients (such as new subpopulations), (3) for new dosages or durations, or (4) as the basis for approving a related drug or device (such as a generic or biosimilar …

The Duty To Maintain, Nadav Shoked

Duke Law Journal

Property is closely associated with freedom. Following the demise of the feudal property system, property ownership in Anglo-American law came to imply an individual's freedom to act as she pleases on her land. For their part, modern property theories—whether right-based, utilitarian, or relational—employ the normative value of freedom to justify ownership. Courts and scholars have always acknowledged the fact that this freedom of the owner cannot be absolute: an owner's freedom to do as she pleases on her land is often limited to protect other owners. However, the consensual assumption remains that an owner is not subject to affirmative duties. …

In Search Of Monsters Abroad: Serving Summonses On Foreign Organizations Under Rule 4 And Fifth Amendment Due Process, Kyle M. Druding

Duke Law Journal

Recently, federal prosecutors' increased interest in criminally charging foreign organizational defendants has revealed a "jurisdictional gap" in Rule 4 of the Federal Rules of Criminal Procedure. Rule 4, which has operated largely unchanged since its adoption in 1944, requires that a copy of a compulsory summons be served on an organizational defendant by mailing it either to the defendant's "last known address" in the relevant district or to its "principal place of business elsewhere in the United States." The courts have divided over how to confront jurisdictional challenges brought by certain foreign corporations—those without domestic principal places of business and …

Hipaa: Caught In The Cross Fire, Stephanie E. Pearl

Duke Law Journal

The Health Insurance Portability and Accountability Act (HIPAA) is nearly synonymous with patient privacy. In contrast, the National Instant Criminal Background Check System (NICS), a provision of the Gun Control Act of 1968, demands the disclosure of information about individuals, including mental-health information, that may prohibit their purchase of firearms.

These two statutes raise the following question: what if NICS requires or recommends the reporting of information protected by HIPAA? In the wake of recent gun violence by mentally disabled individuals, governmental and nongovernmental organizations have questioned whether HIPAA's privacy provisions have stultified national gun-control measures by prohibiting the reporting …

Journal Staff

Duke Law Journal

No abstract provided.

Charting A New Course: Metal-Tech V. Uzbekistan And The Treatment Of Corruption In Investment Arbitration, Michael A. Losco

Duke Law Journal Online

This Essay examines Metal-Tech’s treatment of corruption, building upon the analytical structure set forth in this author’s 2014 Note, Streamlining the Corruption Defense. That Note’s framework for analyzing ICSID awards involving allegations of corruption proves useful for examining the Metal-Tech award. Implementing that framework, this Essay concludes that the standard of proof applied by the tribunal represents a departure from prior ICSID jurisprudence. It also questions whether an application of comparative fault principles could have achieved a more just result. Finally, this Essay argues that the tribunal could have resolved some lingering questions by staying the proceedings pending …

Stopping Police In Their Tracks: Protecting Cellular Location Information Privacy In The Twenty-First Century, Stephen Wagner

Duke Law & Technology Review

Only a small fraction of law enforcement agencies in the United States obtain a warrant before tracking the cell phones of suspects and persons of interest. This is due, in part, to the fact that courts have struggled to keep pace with a changing technological landscape. Indeed, courts around the country have issued a disparate array of holdings on the issue of warrantless cell phone tracking. This lack of judicial uniformity has led to confusion for both law enforcement agencies and the public alike. In order to protect reasonable expectations of privacy in the twenty-first century, Congress should pass legislation …

Sharing Is Airing: Employee Concerted Activity On Social Media After Hispanics United, Ryan Kennedy

Duke Law & Technology Review

Section 7 of the United States’ National Labor Relations Act allows groups of American workers to engage in concerted activity for the purposes of collective bargaining or for “other mutual aid or protection.” This latter protection has been extended in cases such as Lafayette Park Hotel to workers outside the union context. Starting in 2005, the National Labor Relations Board increasingly signaled to employers that concerted activity may take place on social media such as Facebook. However, the Board proper delivered its first written opinion articulating these rules in the 2012 case of Hispanics United of Buffalo, Inc. There, the …

Dmca Safe Harbors For Virtual Private Server Providers Hosting Bittorrent Clients, Stephen J. Wang

Duke Law & Technology Review

By the time the U.S. Supreme Court decided Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. in 2005, Internet users around the globe who engaged in copyright infringement had already turned to newer, alternative forms of peer-to-peer filesharing. One recent development is the “seedbox,” a virtual private server rentable for use to download and upload (“seed”) files through the BitTorrent protocol. Because BitTorrent is widely used for both non-infringing and infringing purposes, the operators of seedboxes and other rentable BitTorrent-capable virtual private servers face the possibility of direct and secondary liability as did the defendants in Grokster and more recent cases like …

The Permit Power Revisited: The Theory And Practice Of Regulatory Permits In The Administrative State, Eric Biber, J.B. Ruhl

Duke Law Journal

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the "permit power," under which legislatures prohibit a specified activity by statute and delegate to administrative agencies the discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Accurately describing the permit power as an "enormous power in the state," Epstein bemoaned that it had "received scant attention in the academic literature." He sought to fill that gap. Centered on the premise that the permit power represents "a complete inversion of …

An Ex Ante Approach To Excessive State Debt, Vincent S. J. Buccola

Duke Law Journal

The recent recession has shone a very public spotlight on the perilous financial conditions of many American states. At the same time, it has renewed academic interest in the question of excessive state debt—its causes and possible cures. Scholars who see risk externalization as a primary driver of systematic overborrowing have proposed bankruptcy legislation for the states as one solution. Such advocates argue that a formal debt-adjustment mechanism could reduce the appeal of federal bailouts and thereby curtail the moral hazard leading to excessive debt. But given the states' unilateral power to set the terms of default, it is hard …

12 Confused Men: Using Flowchart Verdict Sheets To Mitigate Inconsistent Civil Verdicts, Jerry J. Fang

Duke Law Journal

The finality of jury verdicts reflects an implicit societal acceptance of the soundness of the jury's decision. Regardless, jurors are not infallible, and the questions they are often tasked with deciding are unfortunately neither obvious nor clear. The length of trial, complexity of subject matter, volume of factual background, and opaqueness of law can converge in a perfect storm that may confound even the most capable juror. Although the Federal Rules of Civil Procedure provide decision rules to resolve inconsistent verdicts, the current remedies authorized by Rule 49—notably, the resubmission of the verdict to the jury and the ordering of …

Causation’S Nuclear Future: Applying Proportional Liability To The Price-Anderson Act, William D. O’Connell

Duke Law Journal

For more than a quarter century, public discourse has pushed the nuclear-power industry in the direction of heavier regulation and greater scrutiny, effectively halting construction of new reactors. By focusing on contemporary fear of significant accidents, such discourse begs the question of what the nation's court system would actually do should a major nuclear incident cause radiation-induced cancers.

Congress's attempt to answer that question is the Price-Anderson Act, a broad statute addressing claims by the victims of a major nuclear accident. Lower courts interpreting the Act have repeatedly encountered a major stumbling block: it declares that judges must apply the …

Pragmatic Administrative Law And Tax Exceptionalism, Richard Murphy

Duke Law Journal Online

This Essay responds to the 2014 Duke Law Journal Administrative Law Symposium. Its principal contention is that courts and other commentators should give due weight to the history and virtues of the evolution of administrative law in the United States—and consider embracing the pragmatism and flexibility that it enables—in applying general principles of administrative law in the tax context.

Which Institution Should Determine Whether An Agency’S Explanation Of A Tax Decision Is Adequate?: A Response To Steve Johnson, Richard J. Pierce Jr

Duke Law Journal Online

This Essay responds to Professor Steve Johnson’s Article for the 2014 Duke Law Journal Administrative Law Symposium, Reasoned Explanation and IRS Adjudication. I first describe the ways in which courts have added burdensome procedures that are not required by the APA for the notice and comment process. Next, I explain why the Office of Information and Regulatory Affairs (OIRA) is better than courts at reviewing the adequacy of agency reasons for issuing a rule. Finally, I explain how courts can eliminate judicial review for the adequacy of the reasons IRS gives for issuing a rule by applying the traditional …

Mega, Digital Storage Lockers, And The Dmca: Will Innovation Be Stifled By Fears Of Piracy?, Ali V. Mirsaidi

Duke Law & Technology Review

Kim Dotcom, founder of Megaupload Limited, has been in many news headlines over the past year. Megaupload—one of Dotcom’s many peer-to-peer sharing sites—was the center of controversy, as it allowed users to upload and share all sorts of files, including copyrighted material. After an organized effort by the Department of Justice and several foreign governments, Dotcom was arrested for (secondary) copyright infringement and his site was ultimately shut down. Dotcom has recently launched a new service, MEGA, which he claims will evade copyright laws entirely. Like other well-known cloud-sharing services such as Dropbox and Google Drive, MEGA allows users to …

The Forum Selection Defense, Stephen E. Sachs

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Prudential Standing After Lexmark International, Inc. V. Static Control Components, Inc., Ernest A. Young

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

The International Monetary Fund's Imperiled Priority, Melissa Boudreau, Mitu Gulati

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

A Domestic Proposal To Revive The Hague Judgments Convention: How To Stop Worrying About Streams, Trickles, Asymmetry, And A Lack Of Reciprocity, Eric Porterfield

Duke Journal of Comparative & International Law

No abstract provided.