Duke Law Journal最新文献

{"title":"Overcoming the myth of free will in criminal law: the true impact of the genetic revolution.","authors":"Matthew Jones","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 5","pages":"1031-53"},"PeriodicalIF":1.9,"publicationDate":"2003-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22568443","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"When life is an injury: an economic approach to wrongful life lawsuits.","authors":"Thomas A Burns","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 4","pages":"807-39"},"PeriodicalIF":1.9,"publicationDate":"2003-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22522603","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Diplomats or Defendants? Defining the Future of Head-of-State Immunity","authors":"Michael A. Tunks","doi":"10.2307/1373165","DOIUrl":"https://doi.org/10.2307/1373165","url":null,"abstract":"In two seminal cases, the International Court of Justice (ICJ) and a U.S. federal district court recognized the immunity of the Congo's Foreign Minister Abdulaye Yerodia Ndombasi2 and Zimbabwe's President Robert Mugabe.3 These decisions establish a coherent framework for deciding difficult and politically sensitive questions of immunity that addresses the competing goals of promoting international discourse, respecting the sovereign equality of states, and ensuring accountability for serious international crimes. By establishing clear and predictable rules that define when a state's leaders may travel abroad freely without fear of arrest, this framework promises","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 1","pages":"651-682"},"PeriodicalIF":1.9,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1373165","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68572535","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Public Trust Argument for Public Access to Private Conservation Land","authors":"Sarah C. Smith","doi":"10.2307/1373164","DOIUrl":"https://doi.org/10.2307/1373164","url":null,"abstract":"Urban renaissances notwithstanding, American cities have dramatically changed in the last fifty years. Downtowns and small towns are on the way out. Suburbs have replaced towns, and corporate campuses are preferred to skyscrapers in expanding cities.' In general, people are building lower and wider. Necessarily, this kind of development requires land. As cities sprawl out, they incorporate more and more previously open land. Faced with changes they do not like, concerned residents have become activists, fighting to protect open space. And the first logical place to start is Washington, D.C. The federal government owns twenty-nine percent of land in this country, predominantly in the western states and Alaska.2 Federal land management policies have developed as the country has grown, and many give greater preference to resource developers than preservationists would like.3 The ranching industry, for example, depends heavily on cheap federal grazing permits.4 Countering development","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 1","pages":"629-650"},"PeriodicalIF":1.9,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1373164","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68572528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Juvenile Death Penalty and International Law","authors":"C. Bradley","doi":"10.2139/SSRN.348501","DOIUrl":"https://doi.org/10.2139/SSRN.348501","url":null,"abstract":"The United States is almost alone among nations in permitting the execution of juvenile offenders. Citing this fact, along with a variety of legal materials, litigants and scholars are increasingly claiming that the United States' use of the juvenile death penalty violates international law. This Article examines the validity of this claim, from the perspective of both the international legal system and the U.S. legal system. Based on a detailed examination of the United States' interaction with treaty regimes and international institutions since the late 1940s, the Article concludes that the international law arguments against the juvenile death penalty have significant weaknesses. As the Article documents, for a number of reasons the United States has consistently declined to consent to treaty provisions restricting the juvenile death penalty, and it has consistently declared the human rights treaties that contain such restrictions to be non-self-executing. In addition, since at least the mid-1980s, the United States has persistently objected to - and thereby legally opted out of - any customary international law restriction on the juvenile death penalty. The Article also argues that, even if these international law arguments were more persuasive, they would not provide a basis for relief in U.S. courts. For separation of powers reasons, courts properly will decline to apply international law to override the considered choices of the President and Senate in their ratification of treaties. In addition, because of concerns relating to both separation of powers and federalism, courts properly will decline to apply customary international law to override state criminal punishment, especially when (as is the case here) the political branches have expressly declined to do so by treaty. This potential gap between evolving international law norms and U.S. judicial enforcement is less disturbing than some commentators appear to assume - it simply means that the juvenile death penalty issue, like other difficult issues of social policy in the United States, must be resolved through U.S. democratic and constitutional processes. Although important on its own terms, the juvenile death penalty issue may also have broader implications for the relationship between U.S. law and international human rights law. Litigants and scholars have met with at least modest success in attempting to have international human rights law incorporated into the U.S. legal system. This success, however, has primarily come in the context of civil lawsuits seeking damages for human rights abuses committed in foreign countries. Increasingly, litigants and scholars are seeking to build on this success and persuade U.S. courts to apply international human rights law internally as a basis for overriding domestic laws and practices. The juvenile death penalty has become a central focus of this effort, and the way in which the international law challenges are resolved in this context may ","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 1","pages":"485-557"},"PeriodicalIF":1.9,"publicationDate":"2002-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.348501","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68597617","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Congressional Access to Information: Using Legislative Will and Leverage","authors":"Louis Fisher","doi":"10.2307/1373174","DOIUrl":"https://doi.org/10.2307/1373174","url":null,"abstract":"Presidents and their advisers cite various legal principles when they withhold documents from Congress and refuse to allow executive officials to testify before congressional committees. Congress can marshal its own impressive list of legal citations to defend legislative access to information, even when presidents assert executive privilege. These legal and constitutional principles, finely-honed as they might be, are often overridden by the politics of the moment and practical considerations. This Essay highlights the political settlements that decide most information disputes. Courts play a role, but it is a mistake to believe that handy cites from judicial opinions will win the day. Efforts to resolve interbranch disputes on purely legal grounds may have to give ground in the face of superior political muscle by a Congress determined to exercise the many coercive tools available to it. By the same token, a Congress that is internally divided or uncertain about its in-","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 1","pages":"323-402"},"PeriodicalIF":1.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1373174","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68572542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On the outside Seeking In: Must Intervenors Demonstrate Standing to Join a Lawsuit?","authors":"J. Karastelev","doi":"10.2307/1373177","DOIUrl":"https://doi.org/10.2307/1373177","url":null,"abstract":"The law's traditional conception of a \"case\" has evolved from a discrete dispute between two adverse parties to a multiparty structure covering a range of related and often conflicting interests.' The Federal Rules of Civil Procedure provide several avenues for expanding the involved participants in a case beyond a single plaintiff and single defendant to include other affected or interested parties.2 Intervention under Rule 24 is the vehicle nonparties use to protect their interests from potential impairment by a court's adjudication of a dispute between the original parties. By allowing nonparties to intervene, Rule 24 lets them represent their interests and arguably improves the court's decisionmaking by allowing the presentation of different viewpoints and evidence.3 Courts may also benefit from granting mo-","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"136 1","pages":"455-484"},"PeriodicalIF":1.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1373177","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68572644","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Shall Weigh Your God and You: Assessing the Imperialistic Implications of the International Religious Freedom Act in Muslim Countries","authors":"M. Fore","doi":"10.2307/1373176","DOIUrl":"https://doi.org/10.2307/1373176","url":null,"abstract":"\"Why do they hate us?\" is a question that Americans have been asking themselves in the post-September 11 world.' As the United States attempts to implement a new law involving international religious freedom, some members of the Muslim faith community may have yet another reason to \"hate us.\" Some Muslims believe that they must adjudge the United States's religious imperialist instincts (\"weigh your God and you\")2 as the United States attempts to export","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 1","pages":"423-453"},"PeriodicalIF":1.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1373176","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68572610","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Executive Privilege Revived?: Secrecy and Conflict During the Bush Presidency","authors":"Mark J. Rozell","doi":"10.2307/1373175","DOIUrl":"https://doi.org/10.2307/1373175","url":null,"abstract":"Although well established now as a legitimate presidential power, executive privilege remains controversial. Executive privilege is controversial in part because some presidents have overreached in exercising this authority. Presidential attempts to conceal evidence of wrongdoing during the Watergate scandal that led to President Richard Nixon’s resignation and during the scandal that led to President Bill Clinton’s impeachment gave executive privilege a bad name. The phrase “executive privilege” does not appear in the Constitution. To be precise, that phrase was not a part of the common language until President Eisenhower’s administration, leading some to suggest that executive privilege therefore cannot be constitutional. These semantic, textualist challenges to executive privilege’s constitutionality fail when viewed through a broader, historical lens of past","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 1","pages":"403-421"},"PeriodicalIF":1.9,"publicationDate":"2002-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1373175","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68572549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Road Shows on the Internet: Taking Individual Investors for a Ride on the Information Highway","authors":"Li Yi","doi":"10.2307/1373136","DOIUrl":"https://doi.org/10.2307/1373136","url":null,"abstract":"The Internet has prompted an evolution (indeed, a revolution) within securities transactions that has markedly changed the face of securities regulation. The ubiquitous nature of this information network has caused deviations from and alterations within the traditional business model. These changes, many of which are ongoing, include a movement toward a different type of public offering as well as a reassessment and redistribution of risk for market players. Consequently, the Securities and Exchange Commission (SEC or Commission) has been forced to reevaluate some of its rules and regulations. In particular, the SEC has had to learn how to utilize Internet resources without compromising either of its dual objectives of promoting market efficiency and protecting investors.' As a result, the SEC is now fighting a battle on two fronts. On the one hand, the Commission is battling broker-dealers, who feel that the SEC's attempts to \"level the playing field\" by imposing strict regulations on information disclosure is too stringent and is actually hampering market efficiency.2 On the other hand, the SEC is at odds with investors, who feel that the SEC's paternalistic approach is suffocating them in","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"26 1","pages":"243-271"},"PeriodicalIF":1.9,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1373136","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68572398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}