Duke Law Journal最新文献_第4页

Causation's nuclear future: applying proportional liability to the Price-Anderson Act. 因果关系的核心未来:比例责任在普莱斯-安德森法案中的应用。

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2014-11-01

William D O'Connell

{"title":"Causation's nuclear future: applying proportional liability to the Price-Anderson Act.","authors":"William D O'Connell","doi":"","DOIUrl":"","url":null,"abstract":"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 antediluvian preponderance-of-the-evidence logic of state tort law, even though radiation science insists that the causes of radiation-induced cancers are more complex. After a major nuclear accident, the Act's paradoxically outdated rules for adjudicating \"causation\" would make post-incident compensation unworkable. This Note urges that nuclear-power-plant liability should not turn on eighteenth-century tort law. Drawing on modern scientific conclusions regarding the invariably \"statistical\" nature of cancer, this Note suggests a unitary federal standard for the Price-Anderson Act--that a defendant be deemed to have \"caused\" a plaintiff's injury in direct proportion to the increased risk of harm the defendant has imposed. This \"proportional liability\" rule would not only fairly evaluate the costs borne by injured plaintiffs and protect a reawakening nuclear industry from the prospect of bank-breaking litigation, but would prove workable with only minor changes to the Price-Anderson Act's standards of \"injury\" and \"fault.\"","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"64 2","pages":"333-76"},"PeriodicalIF":1.9,"publicationDate":"2014-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32837838","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}

引用次数: 0

Choosing not to choose. 选择不去选择。

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2014-10-01

Cass R Sunstein

{"title":"Choosing not to choose.","authors":"Cass R Sunstein","doi":"","DOIUrl":"","url":null,"abstract":"Choice can be an extraordinary benefit or an immense burden. In some contexts, people choose not to choose, or would do so if they were asked. In part because of limitations of \"bandwidth,\" and in part because of awareness of their own lack of information and potential biases, people sometimes want other people to choose for them. For example, many people prefer not to make choices about their health or retirement plans; they want to delegate those choices to a private or public institution that they trust (and may well be willing to pay a considerable amount to those who are willing to accept such delegations). This point suggests that however well accepted, the line between active choosing and paternalism is often illusory. When private or public institutions override people's desire not to choose and insist on active choosing, they may well be behaving paternalistically, through a form of choice-requiring paternalism. Active choosing can be seen as a form of libertarian paternalism, and a frequently attractive one, if people are permitted to opt out of choosing in favor of a default (and in that sense permitted not to choose); it is a form of nonlibertarian paternalism insofar as people are required to choose. For both ordinary people and private or public institutions, the ultimate judgment in favor of active choosing, or in favor of choosing not to choose, depends largely on the costs of decisions and the costs of errors.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"64 1","pages":"1-52"},"PeriodicalIF":1.9,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759463","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}

引用次数: 0

Constructed Constraint and the Constitutional Text 建构约束与宪法文本

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2014-08-11 DOI: 10.2139/SSRN.2392101

C. Bradley, Neil S. Siegel

{"title":"Constructed Constraint and the Constitutional Text","authors":"C. Bradley, Neil S. Siegel","doi":"10.2139/SSRN.2392101","DOIUrl":"https://doi.org/10.2139/SSRN.2392101","url":null,"abstract":"In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally thought to come into play only after the text is found to be ambiguous — the purpose of a constitutional provision, structural inferences, understandings of the national ethos, consequentialist considerations, customary practice, and precedent. The constraining effect of clear text, in other words, is partially constructed by considerations that are commonly regarded as extra-textual. This phenomenon of constructed constraint unsettles certain distinctions drawn by modern theorists: between interpretation and construction; between the written and the unwritten constitutions; and between the Constitution and the “Constitution outside the Constitution.” While primarily descriptive, the Article also suggests that constructed constraint may produce benefits for the constitutional system by helping interpreters to negotiate tensions within democratic constitutionalism.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"64 1","pages":"1213-1294"},"PeriodicalIF":1.9,"publicationDate":"2014-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2392101","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68172808","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}

引用次数: 6

The Fall and Rise of the Exit Consent 退出协议的兴衰

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2013-03-28 DOI: 10.2139/SSRN.2242225

Keegan S. Drake

引用次数: 3

Patents and the University 专利与大学

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2013-02-14 DOI: 10.2139/SSRN.2217719

Peter Lee

{"title":"Patents and the University","authors":"Peter Lee","doi":"10.2139/SSRN.2217719","DOIUrl":"https://doi.org/10.2139/SSRN.2217719","url":null,"abstract":"This Article advances two novel claims about the internalization of academic science within patent law and the concomitant evolution of “academic exceptionalism.” Historically, relations between patent law and the university were characterized by mutual exclusion, based in part on normative conflicts between academia and exclusive rights. These normative distinctions informed “academic exceptionalism” — the notion that the patent system should exclude the fruits of academic science or treat academic entities differently than other actors — in patent doctrine. As universities began to embrace patents, however, academic science has become internalized within the traditional commercial narrative of patent protection. Contemporary courts frequently invoke universities’ commercial nature to reject exceptional treatment for such institutions. The twin trends of internalization and exceptionalism have evolved again in recent legislative patent reform. On one hand, the interests of academic science have become completely internalized within the patent system to the extent that they inform general rules of patentability applying to all inventions. On the other hand, academic exceptionalism has been resurrected in the form of special statutory carve-outs for universities. Turning from the descriptive to the normative, this Article concludes with recommendations for improving the patent system’s regulation of academic science.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"52 1","pages":"1-87"},"PeriodicalIF":1.9,"publicationDate":"2013-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67999654","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}

引用次数: 13

Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment 胡言乱语与言论自由:第一修正案的意义

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2013-02-01 DOI: 10.2139/SSRN.2209362

Joseph Blocher

{"title":"Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment","authors":"Joseph Blocher","doi":"10.2139/SSRN.2209362","DOIUrl":"https://doi.org/10.2139/SSRN.2209362","url":null,"abstract":"A great deal of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome.This Article is the first to explore thoroughly the relationship between nonsense and the freedom of speech; in doing so, it suggests ways to determine what “meaning” means for First Amendment purposes. The Article begins by demonstrating the scope and constitutional salience of meaningless speech, showing that nonsense is multifarious, widespread, and sometimes intertwined with traditional First Amendment values like autonomy, the marketplace of ideas, and democracy. The second part of the Article argues that exploring nonsense can illuminate the meaning of meaning itself. This, too, is an important task, for although free speech discourse often relies on the concept of meaning to chart the Amendment’s scope, courts and scholars have done relatively little to establish what it entails. Analytic philosophers, meanwhile, have spent the past century doing little else. Their efforts — echoes of which can already be heard in First Amendment doctrine — suggest that free speech doctrine is best served by finding meaning in the way words are used, rather than in their relationship to extra-linguistic concepts.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"63 1","pages":"1423-1481"},"PeriodicalIF":1.9,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67992075","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}

引用次数: 6

Revitalizing the patent system to incentivize pharmaceutical innovation: the potential of claims with means-plus-function clauses. 振兴专利制度以激励医药创新:手段加功能条款的权利要求的潜力。

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2013-02-01

Wanli Lily Tang

{"title":"Revitalizing the patent system to incentivize pharmaceutical innovation: the potential of claims with means-plus-function clauses.","authors":"Wanli Lily Tang","doi":"","DOIUrl":"","url":null,"abstract":"The pharmaceutical industry relies on innovation. However, many innovative firms are cutting their research and development investments and seeing their new product pipelines dry up, due in part to a lack of sufficient patent protection. This Note identifies two major factors that have caused this inadequacy in patent protection. First, pharmaceutical patents are challenged early and often by generic manufacturers, as encouraged by the 1984 Hatch-Waxman Act. Second, the scope of pharmaceutical-patents is sometimes unduly restrained due to limited application of the doctrine of equivalents. Consequently, pharmaceutical patents, especially drug-product patents, are easily designed around and cannot offer the protection necessary for innovative firms to recoup their developmental costs. This Note argues for a wider application of means-plus-function clauses in pharmaceutical patents as a potential cure for this problem. Means-plus-function claims, although authorized by Congress in the 1952 Patent Act, have not been explored much in the pharmaceutical context. This Note argues that this claiming strategy is not only appropriate but also particularly effective for pharmaceutical patents. Means-plus-function claims would give drug-product patents adequate scope even with the limited use of the doctrine of equivalents and thus would provide the protection necessary for innovative firms to withstand frequent attacks by generic manufacturers. Finally, this Note examines issues anticipated with applying means-plus-function claims to pharmaceutical patents and proposes possible solutions.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"62 5","pages":"1069-108"},"PeriodicalIF":1.9,"publicationDate":"2013-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759462","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}

引用次数: 0

Does the Supreme Court Follow the Economic Returns? A Response to A Macrotheory of the Court 最高法院遵循经济回报吗?对法院宏观理论的回应

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2013-01-31 DOI: 10.2139/SSRN.2209941

E. A. Young, Erin C. Blondel

{"title":"Does the Supreme Court Follow the Economic Returns? A Response to A Macrotheory of the Court","authors":"E. A. Young, Erin C. Blondel","doi":"10.2139/SSRN.2209941","DOIUrl":"https://doi.org/10.2139/SSRN.2209941","url":null,"abstract":"This paper responds to an article by Professors Brennan, Epstein, and Staudt showing that Supreme Court justices tend to decide cases in favor of the government more often during economic upswings, decide cases against the government more often during economic downturns, and again favor the government during severe economic crises. Brennan, Epstein, and Staudt conclude that these data prove that the justices deliberately vote to influence economic policy. Our paper questions that logical leap. We argue that although these data strongly suggest that the economic environment influences judicial decisions, there is no proof that justices intentionally decide cases to shape the economy rather than based on the law. We suggest that although empirical studies of judicial decision-making -- such as the study by Brennan, Epstein, and Staudt -- provide valuable insight that doctrinal analysis cannot supply, scholars should avoid overstating what those studies prove. Many such scholars seek not to understand what external factors shape judges but to debunk legal decisionmaking and prove that it is merely a cover for political action. That conclusion has much less support in data and overlooks the real possibility that legal doctrine truly does shape judicial decisions too.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"58 1","pages":"1759-1782"},"PeriodicalIF":1.9,"publicationDate":"2013-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2209941","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67991611","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}

引用次数: 4

DNA profiles, computer searches, and the Fourth Amendment. DNA档案，电脑搜索，还有第四修正案。

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2013-01-01

Catherine W Kimel

引用次数: 0

Distinguishing the 'Truly National' from the 'Truly Local': Customary Allocation, Commercial Activity, and Collective Action 区分“真正的国家”与“真正的地方”:习惯分配、商业活动和集体行动

IF 1.9 2区社会学

Duke Law Journal Pub Date : 2012-12-12 DOI: 10.2139/SSRN.2097997

Neil S. Siegel

{"title":"Distinguishing the 'Truly National' from the 'Truly Local': Customary Allocation, Commercial Activity, and Collective Action","authors":"Neil S. Siegel","doi":"10.2139/SSRN.2097997","DOIUrl":"https://doi.org/10.2139/SSRN.2097997","url":null,"abstract":"This Essay makes two claims about different methods of defining the expanse and limits of the Commerce Clause. My first claim is that approaches that privilege traditional subjects of state regulation are unworkable and undesirable. The approaches are unworkable in light of the frequency with which the states and the federal government regulate the same subject matter in our modern world of largely overlapping federal and state legislative jurisdiction. The approaches are undesirable because the question of customary allocation is unrelated to the principal reason why Congress possesses the power to regulate interstate commerce: solving collective action problems involving multiple states. These problems are evident in the way that some federal judges invoked regulatory custom in litigation over the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act. The areas of “health insurance” and “health care” are not of exclusive state concern, and it is impossible to lose — or to win — a competition requiring skillful lawyers or judges to describe them as more state than federal, or more federal than state. Nor is it most important what the answer is. More promising are the approaches that view congressional authority as turning on either commercial activity or collective action problems facing the states. My second claim is that these two approaches have advantages and disadvantages, and that the choice between them exemplifies the more general tension between applying rules and applying their background justifications. I have previously defended a collective-action approach to Article I, Section 8. My primary purpose in this Essay is to clarify the jurisprudential stakes in adopting one method or the other, and to identify the problems that advocates of each approach must address.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"62 1","pages":"797-828"},"PeriodicalIF":1.9,"publicationDate":"2012-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67909764","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}

引用次数: 4