Duke Law Journal最新文献

{"title":"One Good Plaintiff Is Not Enough","authors":"A. Bruhl","doi":"10.2139/SSRN.2901122","DOIUrl":"https://doi.org/10.2139/SSRN.2901122","url":null,"abstract":"This Article concerns an aspect of Article III standing that has figured in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one plaintiff has standing. This practice of partially bypassing the requirement of standing is not limited to cases in which the plaintiffs are about to lose on other grounds anyway. Put differently, courts are willing to assume that all plaintiffs have standing as long as one plaintiff has it and then decide the merits either for or against all plaintiffs despite doubts as to the standing of some of those plaintiffs. We could call this the “one-plaintiff rule.”This Article examines the one-plaintiff rule from normative and positive perspectives. On the normative side, the goal is to establish that the one-plaintiff rule is erroneous in light of principle, precedent, and policy. All plaintiffs need standing, even if all of them present similar legal claims and regardless of the form of relief they seek. To motivate the normative inquiry, the Article also explains why the one-plaintiff rule is harmful as a practical matter, namely because it assigns concrete benefits and detriments to persons to whom they do not belong. The Article’s other principal goal is to explain the puzzle of how the mistaken one-plaintiff rule could attain such widespread acceptance. The explanatory account assigns the blame for the one-plaintiff rule to the incentives of courts and litigants as well as to the development of certain problematic understandings of the nature of judicial power.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"67 1","pages":"481-556"},"PeriodicalIF":1.9,"publicationDate":"2017-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43939269","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":"Don’t Try This at Home: the FDA’s Restrictive Regulation of Home Testing Devices.","authors":"Shelby Baird","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Over the past forty years, the Food and Drug Administration (FDA) has successfully restricted consumers' access to home-testing applications based on the notion that it should protect individuals from their own reactions to test results. In the 1970s, the FDA briefly denied women access to home pregnancy tests that were identical to those used in laboratories. In the late 1980s and early 1990s, it relied on concerns about consumer responses to HIV status results to justify a categorical ban on applications for HIV home-testing technology. More recently, it placed burdensome restrictions on direct-to-consumer (DTC) genetic testing companies, such as 23andMe, based on fears that consumers\u0000would make irrational medical decisions after receiving genetic variant results. Although the FDA has the statutory authority to ensure the \"safety and effectiveness\" of medical devices, it has expansively interpreted the term \"safety\" to encompass considerations of how consumers might use test results provided by purely informative devices. This Note\u0000argues that courts should not give the FDA deference on its broad interpretation of safety\" in restricting home-testing devices. It documents the evolution of the expertise-based rationale for judicial deference, noting that courts typically provide scientific agencies, including the FDA, \"super deference\" because of the complicated nature of their work. Ultimately, courts should not defer to the FDA's interpretation of \"safety\" because it did not use its scientific expertise\u0000when it considered how consumers might react to HIV home-testing and DTC genetic testing results. Further, the FDA should not have the authority to make decisions based on its view of \"safety\" because it should not have the power to make value judgments for consumers about whether they should seek their personal medical information.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"67 2","pages":"383-426"},"PeriodicalIF":1.9,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"35854122","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":"Exiting Congressional-Executive Agreements","authors":"C. Bradley","doi":"10.2139/SSRN.3049279","DOIUrl":"https://doi.org/10.2139/SSRN.3049279","url":null,"abstract":"Some commentators have argued that, even if the President has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the President lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This paper challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this paper contends, there is no compelling reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice, and, thus, for example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents do not have the authority to unilaterally terminate statutes, congressional-executive agreements are not mere statutes; they are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to the ones contained in Article II treaties that presidents have long claimed the authority to invoke unilaterally, and Congress has never indicated that it views presidents as having less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"67 1","pages":"1615-1645"},"PeriodicalIF":1.9,"publicationDate":"2017-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3049279","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42847092","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":"Fixing Law Reviews","authors":"Barry D. Friedman","doi":"10.2139/SSRN.3011602","DOIUrl":"https://doi.org/10.2139/SSRN.3011602","url":null,"abstract":"Very few people are happy at present with the law review publishing process, from article submission and selection to editing. Complaints are longstanding, and similar ones emerge from faculty and students alike. Yet, heretofore, change has not occurred. Instead, we are locked in our ugly world of submit and expedite, stepping on the toes of numerous student editors in the process. And the editing process falls far short of ideal. \u0000This Article recommends wholesale change to the submission and editing process. The first part details the dysfunctions of the current system, including everything from lack of student capacity to evaluate faculty scholarship — particularly under the gun of the expedite process — to faculty submitting subpar work in light of rigid submission cycles. It then turns to making a perverse defense of the current system. In light of technological change, law reviews play a very different function at present than even twenty years ago. Most faculty publish their work on electronic databases even prior to submission to law reviews. Law reviews serve as the final resting place of those articles for archival purposes, while ostensibly providing students with a sound pedagogical experience. Part three undercuts the perverse defense by pointing to the huge and unacceptable costs of the present system, in which student editors scramble over one another to accept manuscripts, often wasting time on rejected submissions, while faculty labor with student-overediting, all in the service of articles that for the most part are rarely or never cited. \u0000The final part of this article is a raft of suggestions to change the present system to produce better published scholarship, at lower cost to faculty and students, including blind submission, elimination of submitting articles to one’s own school, some form of peer review, and limiting submissions or requiring authors to accept the offer they receive. The suggestions extend to the editing process, which — at present — is out of control, and does little to make scholarship the best it can be.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"67 1","pages":"1297-1380"},"PeriodicalIF":1.9,"publicationDate":"2017-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49109088","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":"Data Privacy and Dignitary Privacy: Google Spain, the Right to Be Forgotten, and the Construction of the Public Sphere","authors":"R. Post","doi":"10.2139/SSRN.2953468","DOIUrl":"https://doi.org/10.2139/SSRN.2953468","url":null,"abstract":"In 2014, the decision of the European Court of Justice in Google Spain SL v. Agencia Espanola de Proteccion de Datos (“Google Spain”) set off a firestorm by holding that the fair information practices set forth in EU Directive 95/46/EC, which is probably the most influential data privacy text in the world, require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a “right to be forgotten.” As a result of Google Spain, Google has processed 703,910 requests to remove 1,948,737 URLs from its search engine, and some 43.2% of these URLs have been erased from searches made under the name of the person requesting removal. The world-wide influence of Google Spain is likely to become even greater when the EU promulgates it General Data Protection Regulation (“GDPR”) in 2018. \u0000At stake in Google Spain were both privacy values and freedom of expression values. Google Spain inadequately analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence of a “public” capable of forming “public opinion.” The creation of public opinion is essential for democratic self-governance and is a central purpose for protecting freedom of expression. As the rise of American newspapers in the 19th and 20th Century demonstrates, the press underwrites the public sphere by creating a structure of communication that is responsive to public curiosity and that is independent of the content of any particular news story. Google sustains the virtual public sphere by creating an analogous structure of communication. Even though Google is not itself an “author,” it should nevertheless have been accorded the same legal status as traditional press. \u0000With regard to privacy values, EU law, like the law of many nations, recognizes two distinct forms of privacy. The first is data privacy, which is protected by Article 8 of the Charter of Fundamental Rights of the European Union. Data privacy is safeguarded by fair information practices designed to ensure (among other things) that personal data is used only for the specified purposes for which it has been legally gathered. Data privacy operates according to an instrumental logic, and it applies whenever personal information is processed. Its object is ensure that persons retain “control” over their personal data. Google Spain interprets the Directive to give persons a right to have their personal data “forgotten” or erased whenever it is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine.” It is not necessary to show that the processing of such data will cause harm. \u0000In contrast to data privacy, Article 7 of the Charter of Fundamental Rights of the European Union is entitled “Respect for Family and Private Life.” Article 7 is to be understood","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"67 1","pages":"981-1072"},"PeriodicalIF":1.9,"publicationDate":"2017-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2953468","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49291425","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":"Contracts: Ex Machina","authors":"K. Werbach, N. Cornell","doi":"10.5040/9781509937059.ch-001","DOIUrl":"https://doi.org/10.5040/9781509937059.ch-001","url":null,"abstract":"Smart contracts are self-executing digital transactions using decentralized cryptographic mechanisms for enforcement. They were theorized more than twenty years ago, but the recent development of Bitcoin and blockchain technologies has rekindled excitement about their potential among technologists and industry. Startup companies and major enterprises alike are now developing smart contract solutions for an array of markets, purporting to offer a digital bypass around traditional contract law. For legal scholars, smart contracts pose a significant question: Can smart contracts offer a superior solution to the problem that contract law addresses? In this article, we aim to understand both the potential and the limitations of smart contracts. We conclude that smart contracts offer novel possibilities, may significantly alter the commercial world, and will demand new legal responses. But smart contracts will not displace contract law. Understanding why not brings into focus the essential role of contract law as a remedial institution. In this way, smart contracts actually can illuminate the role of contract law more than they can obviate it.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"67 1","pages":"313-382"},"PeriodicalIF":1.9,"publicationDate":"2017-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42858515","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":"Ad Hoc Diplomats","authors":"Ryan M. Scoville","doi":"10.2139/SSRN.2926010","DOIUrl":"https://doi.org/10.2139/SSRN.2926010","url":null,"abstract":"Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats — individuals chosen exclusively by the president to complete limited and temporary assignments — play a comparably significant role in addressing international crises, negotiating treaties, and otherwise executing foreign policy. \u0000 \u0000This Article critically examines the appointments process for such irregular agents. An orthodox view holds it permissible for the president to dispatch any ad hoc diplomat without Senate confirmation, but this view does not accord with the original meaning of Article II. Scrutinizing text and an extensive collection of original historical sources, I show that, under a formalist reading of the Constitution, the appointment of most ad hoc diplomats requires the advice and consent of the Senate because these agents are typically “public Ministers” and “Officers of the United States” under the Appointments Clause. \u0000 \u0000The analysis makes several contributions. First, it provides the first thorough account of the original meaning of “public Ministers” — a term that appears several times in the Constitution but lacks precise contours in contemporary scholarship and practice. Second, for formalists, the analysis reorients longstanding debates about the process of treaty-making and empowers the Senate to exert greater influence over a wide variety of presidential initiatives, including communications with North Korea, the renegotiation of trade agreements, the campaign to defeat ISIS, and the stabilization of Ukraine, all of which depend on the work of ad hoc diplomats. At a time of trepidation over the nature of U.S. foreign policy, such influence might operate as a stabilizing force. Third, the analysis illuminates rhetorical and doctrinal maneuvers that have facilitated the rise of the modern presidency, including historical revisionism and the marginalization of international law as an input in constitutional interpretation. These maneuvers complicate the political valence of originalism and cast the Justice Department’s Office of Legal Counsel (OLC) — a key proponent of the orthodox view — as a motivated expositor of the separation of powers.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"68 1","pages":"907-1002"},"PeriodicalIF":1.9,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44968747","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":"Health Care's Other \"Big Deal\": Direct Primary Care Regulation in Contemporary American Health Law.","authors":"Glenn E Chappell","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Direct primary care is a promising, market-based alternative to the fee-for-service payment structure that shapes doctor–patient\u0000relationships in America. Instead of billing patients and insurers service by service, direct primary care doctors charge their patients a periodic, prenegotiated fee in exchange for providing a wide range of healthcare services and increased availability compared to traditional practices. This “subscription” model is intended to eliminate the administrative burdens associated with insurer interaction, which, in theory, allows doctors to spend more time with their patients and less time doing paperwork.\u0000Direct practices have become increasingly popular since Congress passed the Affordable Care Act (ACA). This growth has been driven by legislation in several states that resolves a number of legal questions that slowed the model’s growth and by the ACA’s\u0000recognition of the model as a permissible way to cover primary care in \"approved\" health plans. Yet legal scholars have hardly focused on direct primary care. Given the model’s growth, however, the time is ripe for a more focused legal inquiry. This Note begins that inquiry. After tracing the model’s evolution and its core components, this Note substantively examines the laws in\u0000states that regulate direct practices and analyzes how those laws address a number of potential policy concerns. It then analyzes direct primary care’s broader role in the contemporary American healthcare marketplace. Based upon that analysis, this Note concludes that direct primary care is a beneficial innovation that harmonizes well with a cooperative-federalism-based healthcare policy model.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"66 6","pages":"1331-70"},"PeriodicalIF":1.9,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34885109","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":"Rape Beyond Crime.","authors":"Margo Kaplan","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Public health experts agree that sexual violence constitutes a significant public health issue. Yet criminal law dominates rape law almost completely, with public health law playing at best a small supporting role. Recent civil law developments, such as university disciplinary proceedings, similarly fixate on how best to find and penalize perpetrators. As a result, rape law continues to spin its wheels in the same arguments and obstacles. This Article argues that, without broader cultural changes, criminal law faces a double bind: rape laws will either be ineffective or neglect the importance of individual culpability. Public health law provides more promising terrain for rape prevention because it is a strong legal framework that can engage the complex causes of rape, including the social norms that promote sexual aggression. While criminal law can only punish bad behavior, public health interventions can use the more\u0000effective prevention strategy of promoting positive behaviors and relationships. They can also address the myriad sexual behaviors and social determinants that increase the risk of rape but are outside the scope of criminal law. Perhaps most importantly, public health law relies on evidence-based interventions and the expertise of public health authorities to ensure that laws and policies are effective. Transforming rape law in this way provides a framework for legal\u0000feminism to undertake the unmet challenge of \"theorizing yes,\" that is, moving beyond how to protect women’s right to refuse sex and toward promoting and exploring positive models of sex. Criminal law is simply incapable of meeting this challenge because it concerns only what sex should not be. A public health framework can give the law a richer role in addressing the full spectrum of sexual attitudes and behaviors.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"66 5","pages":"1045-111"},"PeriodicalIF":1.9,"publicationDate":"2017-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34761658","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 Class is Greener on the Other Side: How Private Donations to Public Schools Play into Fair Funding","authors":"A. Frisch","doi":"10.2139/SSRN.2915479","DOIUrl":"https://doi.org/10.2139/SSRN.2915479","url":null,"abstract":"Public schools have long drawn on private sources of funding to supplement federal, state, and local public funding. In the last thirty years, private funding has grown in sophistication and prominence, leading many schools to increasingly rely on formal educational support organizations to meet their budgetary needs. This trend, however, may be in tension with state funding schemes that attempt to weaken the link between a community's wealth and the quality of its schools. Educational support organizations appear to feature the same socioeconomic stratification that gave rise to the need for state formulas to mitigate differences in local funding based on the wealth of the community. Yet, there is no state legislation that speaks to the equitable results of private funding for public schools. This Note argues that it is an appropriate time for state legislatures to address the interplay between private donations and public school funding, and provides several frameworks by which to balance the competing interests related to the provision of high quality education and fair funding.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"67 1","pages":"427-478"},"PeriodicalIF":1.9,"publicationDate":"2017-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2915479","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46022362","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}