Duke Law Journal最新文献

{"title":"An administrative right to be free from sexual violence? Title IX enforcement in historical and institutional perspective.","authors":"Karen M Tani","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>One of the most controversial administrative actions in recent years is the U.S. Department of Education's campaign against sexual assault on college campuses. Using its authority under Title IX of the Education Amendments of 1972 (mandating nondiscrimination on the basis of sex in all educational programs and activities receiving federal funds), the Department's Office for Civil Rights (OCR) has launched an enforcement effort that critics denounce as aggressive, manipulative, and corrosive of individual liberties. Missing from the commentary is a historically informed understanding of why this administrative campaign unfolded as it did. This Article offers crucial context by reminding readers that freedom from sexual violence was once celebrated as a national civil right--upon the enactment of the Violence Against Women Act of 1994--but then lost that status in a 5-4 decision by the U.S. Supreme Court. OCR's recent campaign reflects a legal and political landscape in which at least some potential victims of sexual violence had come to feel rightfully connected to the institutions of the federal government, and then became righteously outraged by the endurance of such violence in their communities. OCR's campaign also reflects the unique role of federal administrative agencies in this landscape. Thanks to the power of the purse and the conditions that\u0000Congress has attached to funding streams, agencies enjoy a powerful form of jurisdiction over particular spaces and institutions. Attempts to harness this jurisdiction in service of aspirational rights claims should not surprise us; indeed, we should expect such efforts to continue. Building on this insight, the Article concludes with a research agenda for other scholars seeking to understand and evaluate OCR’s handiwork.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"66 8","pages":"1847-903"},"PeriodicalIF":1.9,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"35053920","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":"Efficacy of tiotropium-olodaterol fixed-dose combination in COPD.","authors":"Eric Derom, Guy G Brusselle, Guy F Joos","doi":"10.2147/COPD.S92840","DOIUrl":"10.2147/COPD.S92840","url":null,"abstract":"<p><p>Tiotropium-olodaterol, formulated in the Respimat soft-mist inhaler, is an inhaled fixed-dose combination (FDC) of a long-acting muscarinic antagonist (LAMA) and a long-acting β₂-agonist (LABA), commercialized under the name of Spiolto or Stiolto. The efficacy of tiotropium-olodaterol 5-5 μg once daily in adult patients with COPD was documented in eleven large, multicenter trials of up to 52 weeks duration. Tiotropium-olodaterol 5-5 μg not only improved spirometric values to a significantly greater extent than placebo but also resulted in statistically significant beneficial effects on dyspnea, markers of hyperinflation, use of rescue medication, health-related quality of life, and exercise endurance. Improvements exceeded the minimal clinically important difference (MCID) for forced expiratory volume in 1 second (FEV₁), dyspnea, and quality of life. Differences between tiotropium-olodaterol 5-5 μg and the respective monocomponents were statistically significant for FEV₁, dyspnea, markers of hyperinflation, use of rescue medication, and health-related quality of life, but did not reach the MCID. However, dual bronchodilatation significantly increased the number of patients who exceeded the MCID for dyspnea and quality of life. Moreover, tiotropium-olodaterol 5-5 μg was significantly more effective than salmeterol-fluticasone (FDC) twice daily at improving pulmonary function. Differences between tiotropium-olodaterol and other LAMA/LABA FDCs were not observed for FEV₁ or other efficacy markers. Therefore, tiotropium-olodaterol is a valuable option in the treatment of COPD patients who remain symptomatic under monotherapy.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"50 1","pages":"3163-3177"},"PeriodicalIF":2.8,"publicationDate":"2016-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5167492/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90553748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"People Prefer System 2 Nudges (Kind Of)","authors":"C. Sunstein","doi":"10.2139/SSRN.2731868","DOIUrl":"https://doi.org/10.2139/SSRN.2731868","url":null,"abstract":"In the United States, the United Kingdom, Australia, and many other nations, those involved in law and policy have been exploring choice-preserving approaches, or “nudges,” informed by behavioral science and with the purpose of promoting important public policy goals, such as improved health and safety. But there is a large and insufficiently explored difference between System 1 nudges, which target or benefit from automatic processing, and System 2 nudges, which target or benefit from deliberative processing. Graphic warnings and default rules are System 1 nudges; statistical information and factual disclosures are System 2 nudges. On philosophical grounds, it might seem tempting to prefer System 2 nudges, on the assumption that they show greater respect for individual dignity and promote individual agency. A nationally representative survey in the United States finds evidence that in important contexts, majorities do indeed prefer System 2 nudges. At the same time, that preference is not fixed and firm. If people are asked to assume that the System 1 nudge is significantly more effective, then large numbers of them will move in its direction. In a range of contexts, Republicans, Democrats, and independents show surprisingly similar responses. The survey findings, and an accompanying normative analysis, offer lessons for those involved in law and policy who are choosing between System 1 nudges and System 2 nudges.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"66 1","pages":"121-168"},"PeriodicalIF":1.9,"publicationDate":"2016-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2731868","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68278379","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":"Standing to Sue: Lessons from Scotland's Actio Popularis","authors":"James E. Pfander","doi":"10.2139/SSRN.2750550","DOIUrl":"https://doi.org/10.2139/SSRN.2750550","url":null,"abstract":"Much of what we think we know about the judicial power in the early Republic comes from the history of English common law. Our focus on the common law seems natural enough: Blackstone’s commentaries on the laws of England shaped many an antebellum lawyer’s notion of legal practice and jurists in the twentieth century quite deliberately pointed to the courts at Westminster in discussing the origins of judicial power in America.An emerging body of scholarship has come to question this single-minded focus. Litigation in eighteenth century America was an eclectic affair, also drawing on the practices of the courts of equity and admiralty, which relied on Romano-canonical alternatives to the common law writ system. Recognizing an inquisitorial role for judges and often relaxing strict adversary requirements in the issuance of investitive decrees, these courts registered legal claims and tested the boundaries of official authority.This Article examines the rules of standing to sue that emerged from one important court’s reliance on civil law modes of practice. The Scottish Court of Session heard cases both in law and equity and early developed a declaratory practice that allowed litigants to test their rights in a setting where no coercive judgment was contemplated. While the Scots imposed standing limits in private litigation – or what the courts referred to as title and interest to sue – they also permitted individuals to bring an actio popularis, or popular action, in certain circumstances. The Scottish actio popularis allowed individual suitors to press a legal claim held in common with other members of the public. By offering an account of Scots practice, this paper illuminates a remarkably mature but long ignored body of standing law, draws upon Scottish ideas to interrogate the rules of standing in the United States, and extends the growing literature on influential alternatives to the common law.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"22 1","pages":"1493-1563"},"PeriodicalIF":1.9,"publicationDate":"2016-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2750550","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68289132","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":"Privacy as a Public Good","authors":"Joshua Fairfield, C. Engel","doi":"10.1017/cbo9781316658888.004","DOIUrl":"https://doi.org/10.1017/cbo9781316658888.004","url":null,"abstract":"Privacy is commonly studied as a private good. The assumption on both sides of the Atlantic is that my privacy is mine to protect and control, and yours is yours. This misses an important component of the policy problem. An individual who is careless with data may expose not only extensive information about herself, but about others as well. The danger has two sources, one direct and one indirect. A piece of personal information about one individual can directly reveal personal information about a second individual. Consider, for example, an individual who posts a sensitive photograph online, in which she is accompanied by others. The consenting individual also indirectly empowers some intermediary to increase its ability to recognize patterns. The relevant example here is a social network that can make predictions about one consumer’s action based on the aggregated data it has obtained from others. These negative side effects of being careless with one’s own private information can be productively studied in terms of welfare economics. Quite often, making one’s own information available imposes a negative externality on non-consenting outsiders. Through this property, privacy is not a private, but a public good. Welfare economics defines a good as public if it has two properties. First, those who have made no contribution to the provision of the good are not excluded from benefiting from it. Second, the fact that one individual has benefited does not reduce the benefit for another individual. To illustrate: if I refrain from posting the photo that shows me with my colleagues at a dive bar, my own and my colleagues’ privacy are protected simultaneously. And the fact that I have benefited from this privacy does not diminish the benefit my colleagues derive from it as well. There is, however, a hitch. If my colleagues are behaving badly and hilariously, the benefit I, personally, gain from posting the photo to a social network site may outweigh my personal loss, although not everybody’s overall loss, of privacy. If all relevant individuals maximize private benefit, and expect all other relevant individuals to do the same, neoclassical theory predicts that society will achieve a suboptimal level of privacy. This prediction holds even if all individuals cherish privacy with the same intensity. As the theoretical literature would have it, the struggle for privacy is destined to become a tragedy. Yet there is hope. Both field data and experimental evidence draw a more benign picture. When made aware of the negative externality, not all individuals recklessly ignore it. If they gain the impression that a sufficient fraction of relevant others aims at containing the risk, they are willing to make an effort themselves. If rudimentary forms of institutions are made available, like vigilance and some basic sanction system, communities are even able to manage public goods themselves, without heavy-handed government intervention. Welfare economists and politi","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"65 1","pages":"385-457"},"PeriodicalIF":1.9,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cbo9781316658888.004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57122581","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":"Constituting children's bodily integrity.","authors":"B Jessie Hill","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Children have a constitutional right to bodily integrity. Courts do not hesitate to vindicate that right when children are abused by state actors. Moreover, in at least some cases, a child's right to bodily integrity applies within the family, giving the child the right to avoid unwanted physical intrusions regardless of the parents' wishes. Nonetheless, the scope of this right vis-à-vis the parents is unclear; the extent to which it applies beyond the narrow context of abortion and contraception has been almost entirely unexplored and untheorized. This Article is the first in the legal literature to analyze the constitutional right of minors to bodily integrity within the family by spanning traditionally disparate doctrinal categories such as abortion rights; corporal punishment; medical decisionmaking; and nontherapeutic physical interventions such as tattooing, piercing, and circumcision. However, the constitutional right of minors to bodily integrity raises complex philosophical questions concerning the proper relationship between family and state, as well as difficult doctrinal and theoretical issues concerning the ever-murky idea of state action. This Article canvasses those issues with the ultimate goal of delineating a constitutional right of bodily security and autonomy for children.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"64 7","pages":"1295-362"},"PeriodicalIF":1.9,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"33212145","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":"Judicial Independence and the Rationing of Constitutional Remedies","authors":"Aziz Z Huq","doi":"10.2139/SSRN.2584488","DOIUrl":"https://doi.org/10.2139/SSRN.2584488","url":null,"abstract":"This Article analyzes the doctrinal instruments federal courts use to allocate scarce adjudicative resources over competing demands for constitutional remedies. It advances two claims. The first is that a central, hitherto underappreciated, doctrinal instrument for rationing judicial resources is a demand that most constitutional claimants demonstrate that an official violated an exceptionally clear, unambiguous constitutional rule — that is, not only that the Constitution was violated, but that the violation evinced a demanding species of fault. This fault rule first emerged in constitutional tort jurisprudence. It has diffused to the suppression and postconviction review contexts. The Article’s second claim is that fault-based rationing of constitutional remedies flows, to an underappreciated degree, from a commitment to judicial independence. Federal courts have developed branch-level autonomy, along with distinctly institutional interests, over the twentieth century. These interests are inconsistent with the vindication of many individualized constitutional claims. While ideological preferences and changing socioeconomic conditions have had well-recognized influences on the path of constitutional remedies, I argue that the judiciary’s institutional preferences have also played a large role. This causal link between judicial independence and remedial rationing raises questions about federal courts’ function in the Separation of Powers.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"1 1","pages":"1-80"},"PeriodicalIF":1.9,"publicationDate":"2015-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68213107","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":"Shortening Agency and Judicial Vacancies through Filibuster Reform? An Examination of Confirmation Rates and Delays from 1981 to 2014","authors":"A. O'Connell","doi":"10.2139/SSRN.2607320","DOIUrl":"https://doi.org/10.2139/SSRN.2607320","url":null,"abstract":"This Article explores the failure of nominations and the delay in confirmation of successful nominations across recent administrations, with a focus on the November 2013 change to the Senate voting rules. Using a new database of all nonroutine civilian nominations from January 1981 to December 2014, there are several key findings. First, approximately one-quarter of submitted nominations between 1981 and 2014 were not confirmed, with a higher failure rate for the last two Presidents. Nominations to courts of appeals and independent regulatory commissions had much higher failure rates than other entities. Second, for confirmed nominations, the time to confirmation has been increasing. President Obama’s nominees faced confirmation delays that were more than twice as long as President Reagan’s choices. Failure rates of nominations did not always go hand-in-hand with confirmation delays for successful nominations. Although more nominations failed in divided government, confirmation delays were roughly equal when different parties controlled the Senate and the White House. Third, comparing the year after the change to the filibuster rules to the preceding year, confirmation times for the courts decreased but increased for all types of agencies. For many agencies and agency positions, however, significantly fewer nominations failed after the voting change. Even so, these improvements in 2014 — to the confirmation rates for both agency and judicial nominees and to the confirmation pace for judicial picks — are relative: for the average nomination, the failure rate was higher and the confirmation process was slower than under preceding administrations. Fourth, nearly 30 percent of nominees hailed from the District of Columbia, Maryland, and Virginia, raising concerns that the confirmation process may be narrowing the pool of top officials. This Article suggests some possible explanations for the findings and further avenues of investigation, and also proposes some reforms.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"64 1","pages":"1645-1715"},"PeriodicalIF":1.9,"publicationDate":"2015-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68220423","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":"Challenging the exclusion of gambling disorder as a disability under the Americans with Disabilities Act.","authors":"Kathleen V Wade","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The Americans with Disabilities Act explicitly excludes \"compulsive gambling\" from its definition of disability, thus denying gambling addicts protection from employer discrimination based on their disorder. Since the enactment of the ADA, however, scientific understandings of gambling disorder have evolved to view the condition as an addiction, rather than as a compulsion or impulse-control disorder. This move is mirrored in the DSM-5's reclassification of gambling disorder under the category of \"substance-related and other addictive disorders.\" This Note contends that gambling disorder would qualify as a \"disability\" under the ADA, were it not for the disorder's current statutory exclusion. This Note therefore recommends that the ADA be amended to bring gambling disorder within its coverage. Such a change would not only reflect recent developments in the field of addiction psychology, but would also further the ADA's underlying purpose--to protect individuals with disabilities from workplace discrimination.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"64 5","pages":"947-89"},"PeriodicalIF":1.9,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"33123355","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":"Class Action Myopia","authors":"Maureen Carroll","doi":"10.2139/SSRN.2542303","DOIUrl":"https://doi.org/10.2139/SSRN.2542303","url":null,"abstract":"Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief. This Article argues that the myopic focus on the aggregated-damages class action has led to under-theorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target has had a negative impact on the availability of the other class forms, harming the interests of both litigants and the judiciary. In particular, in civil rights cases involving injunctive or declaratory relief, obstacles to class treatment pose a threat to remedial efficacy and the rule of law. Courts, lawmakers, and scholars should therefore engage in a broader analysis that takes into account all of the subtypes set forth in the modern class action rule.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"65 1","pages":"843-908"},"PeriodicalIF":1.9,"publicationDate":"2014-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2542303","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68197653","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}