Duke Law Journal最新文献

{"title":"Custom, Normative Practice, and the Law","authors":"G. Postema","doi":"10.2139/SSRN.2294081","DOIUrl":"https://doi.org/10.2139/SSRN.2294081","url":null,"abstract":"Legally binding custom is conventionally analyzed in terms of two independent elements: regularities of behavior (usus) and convictions of actors engaging in the behavior that it is legally required (opinio juris). This additive conception of custom is deeply flawed. This essay argues that we must abandon the additive conception and replace it with an account of custom that understands legally relevant customs as norms that arise from discursive normative practices embedded in rich contexts of social interaction characterized by intermeshing anticipations and interconnected conduct. The hallmark of legally binding customs, it is argued, is not the addition of belief or conviction to behavioral regularities, but rather the integration of meaningful conduct into a web of legally recognized reasons and arguments.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"62 1","pages":"707-738"},"PeriodicalIF":1.9,"publicationDate":"2012-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2294081","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68073073","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":"Out of Practice: The Twenty-First Century Legal Profession","authors":"Dana A. Remus","doi":"10.2139/SSRN.2344888","DOIUrl":"https://doi.org/10.2139/SSRN.2344888","url":null,"abstract":"Lawyering has changed dramatically in the past century, but scholarly and regulatory models have failed to keep pace. Because these models focus exclusively on the “practice of law” as defined by the profession, they ignore many types of work that today’s lawyers perform and many sources of ethical tension they encounter. To address these shortcomings, I examine significant twentieth and twenty-first century social dynamics that are fundamentally altering contemporary lawyers’ work by broadening and blurring the boundary between law and business. Within the resulting boundary zone, a growing number of lawyers occupy roles for which legal training is valuable but licensure is not required. I argue that the ambiguity surrounding these roles — regarding what constitutes legal practice, what roles lawyers play, and what professional obligations attach — creates opportunities for abuse by individual lawyers and for ethical arbitrage by sophisticated corporate clients. The proliferation of these roles gives rise to key ethical tensions, ignored by existing models of the profession, that threaten to extinguish the profession’s public-facing orientation in favor of its private interests. I conclude that we cannot effectively understand and regulate the twenty-first century legal profession until we move beyond the rigid constraints of existing models and begin to study the full range of roles and work settings — both in and out of practice — that today’s lawyers occupy.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"49 1","pages":"1243-1286"},"PeriodicalIF":1.9,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2344888","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68125604","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 Money Grew on Trees: Lucy v. Zehmer and Contracting in a Boom Market","authors":"Barak D Richman, Dennis Schmelzer","doi":"10.2139/SSRN.1754780","DOIUrl":"https://doi.org/10.2139/SSRN.1754780","url":null,"abstract":"This article revisits Lucy v. Zehmer, a 1950s Virginia Supreme Court ruling that has become a staple in most American law school contracts courses. The colorful facts are well-known to nearly all law students: Lucy and Zehmer met one evening in December 1952 at a restaurant in Dinwiddie, VA, and, following several drinks and much verbal banter, Zehmer wrote a contract on a restaurant bill in which he agreed to sell his farm to Lucy for $50,000. Zehmer later insisted that he had been intoxicated and thought the entire matter was a joke – he testified that he was “high as a Georgia pine” and was merely bluffing to try to get Lucy to admit that he did not actually have $50,000. The Court upheld the contract, ruling that, regardless of Zehmer’s intent, his outward behavior was reasonably construed to suggest that he was serious. The court thus invoked what is known as the “objective theory of contract formation.”Our findings suggest that the court misinterpreted the contractual setting surrounding that December evening in 1952. Our research uncovers the following discoveries: (1) Lucy, acting as a middleman for southern Virginia’s burgeoning pulp and paper industry, sought the Ferguson Farm for its rich timber reserves; (2) Lucy was one of scores of aggressive timber middlemen eager to purchase timberland across the region, in what amounted to a chaotic land grab that left a wake of shady transactions and colorful litigation; and (3) Within the eight years of winning injunctive relief from the Virginia Supreme Court and purchasing the Ferguson Farm from Zehmer for $50,000, Lucy earned approximately $142,000 from the land and its natural resources. These findings bring into question the opinion’s assertion that $50,000 was a fair price, its conclusion that Zehmer’s actions indicated contractual intent, and its confidence that the objective method captured the relevant background in which Lucy’s and Zehmer’s exchange took place. More generally, they suggest that conclusions reached by the objective method are highly dependent on the facts that are retold and the context in which they occur, and that historical analysis can meaningfully illustrate the limits of legal doctrines.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"61 1","pages":"1511-1562"},"PeriodicalIF":1.9,"publicationDate":"2012-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1754780","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67735507","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":"Forum Choice for Terrorism Suspects","authors":"Aziz Z Huq","doi":"10.2139/SSRN.2030303","DOIUrl":"https://doi.org/10.2139/SSRN.2030303","url":null,"abstract":"What forum should be used to adjudicate the status of persons suspected of involvement in terrorism? Recent clashes between Congress and the president as to whether the status of terrorism suspects should be determined via Article III courts or military commissions have revived debate about this venue question. The problem is typically framed as a matter of legal doctrine, with statutory and doctrinal rules invoked as dispositive guides for sorting suspects into either civilian or military venues. This Article takes issue with the utility of that framing of the problem. It argues that the forum question can more profitably be analyzed through an institutional-design lens. A key institutional-design decision is whether or when to create jurisdictional redundancy. When, that is, should the existence of overlapping jurisdictions vest the government with a threshold choice of forums or an option to retry a suspect who has been acquitted in an initial process? Jurisdiction redundancy is pervasive. But conventional wisdom suggests it is unwise. This Article demonstrates, however, that overlap between forums has complex direct and indirect effects on the accuracy and cost of terrorism-related adjudication. It presents a comprehensive framework for analyzing redundancy by exploring how it influences error rates, system maintenance costs, externalities, information production, and incentives. Applying that framework, I contend that the conventional wisdom is flawed. Pervasive redundancy has surprising merit in contrast to two leading reform proposals that would eliminate most jurisdictional overlap.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"61 1","pages":"1415-1509"},"PeriodicalIF":1.9,"publicationDate":"2012-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67868600","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":"Climate Change Meets the Law of the Horse","authors":"J. Ruhl, James E. Salzman","doi":"10.2139/SSRN.2010852","DOIUrl":"https://doi.org/10.2139/SSRN.2010852","url":null,"abstract":"The climate change policy debate has only recently turned its full attention to adaptation - how to address the impacts of climate change we have already begun to experience and that will likely increase over time. Legal scholars have in turn begun to explore how the many different fields of law will and should respond. During this nascent period, one overarching question has gone unexamined: how will the legal system as a whole organize around climate change adaptation? Will a new distinct field of climate change adaptation law and policy emerge, or will legal institutions simply work away at the problem through unrelated, duly self-contained fields, as in the famous Law of the Horse? This Article is the first to examine that question comprehensively, to move beyond thinking about the law and climate change adaptation to consider the law of climate change adaptation. Part I of the Article lays out our methodological premises and approach. Using a model we call Stationarity Assessment, Part I explores how legal fields are structured and sustained based on assumptions about the variability of natural, social, and economic conditions, and how disruptions to that regime of variability can lead to the emergence of new fields of law and policy. Case studies of environmental law and environmental justice demonstrate the model’s predictive power for the formation of new distinct legal regimes. Part II applies the Stationarity Assessment model to the topic of climate change adaptation, using a case study of a hypothetical coastal region and the potential for climate change impacts to disrupt relevant legal doctrines and institutions. We find that most fields of law appear capable of adapting effectively to climate change. In other words, without some active intervention, we expect the law and policy of climate change adaptation to follow the path of the Law of the Horse - a collection of fields independently adapting to climate change - rather than organically coalescing into a new distinct field. Part III explores why, notwithstanding this conclusion, it may still be desirable to seek a different trajectory. Focusing on the likelihood of systemic adaptation decisions with perverse, harmful results, we identify the potential benefits offered by intervening to shape a new and distinct field of climate change adaptation law and policy. Part IV then identifies the contours of such a field, exploring the distinct purposes of reducing vulnerability, ensuring resiliency, and safeguarding equity. These features provide the normative policy components for a law of climate change adaptation that would be more than just a Law of the Horse. This new field would not replace or supplant any existing field, however, as environmental law did with regard to nuisance law, and it would not be dominated by substantive doctrine. Rather, like the field of environmental justice, this new legal regime would serve as a holistic overlay across other fields to ensure more efficie","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"62 1","pages":"975-1027"},"PeriodicalIF":1.9,"publicationDate":"2012-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67850065","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":"Custom, contract, and kidney exchange.","authors":"Kieran Healy,&nbsp;Kimberly D Krawiec","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In this Essay, we examine a case in which the organizational and logistical demands of a novel form of organ exchange (the nonsimultaneous, extended, altruistic donor (NEAD) chain) do not map cleanly onto standard cultural schemas for either market or gift exchange, resulting in sociological ambiguity and legal uncertainty. In some ways, a NEAD chain resembles a form of generalized exchange, an ancient and widespread instance of the norm of reciprocity that can be thought of simply as the obligation to “pay it forward” rather than the obligation to reciprocate directly with the original giver. At the same time, a NEAD chain resembles a string of promises and commitments to deliver something in exchange for some valuable consideration--that is, a series of contracts. Neither of these salient \"social imaginaries\" of exchange--gift giving or formal contract--perfectly meets the practical demands of the NEAD system. As a result, neither contract nor generalized exchange drives the practice of NEAD chains. Rather, the majority of actual exchanges still resemble a simpler form of exchange: direct, simultaneous exchange between parties with no time delay or opportunity to back out. If NEAD chains are to reach their full promise for large-scale, nonsimultaneous organ transfer, legal uncertainties and sociological ambiguities must be finessed, both in the practices of the coordinating agencies and in the minds of NEAD-chain participants. This might happen either through the further elaboration of gift-like language and practices, or through a creative use of the cultural form and motivational vocabulary, but not necessarily the legal and institutional machinery, of contract.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"62 3","pages":"645-70"},"PeriodicalIF":1.9,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"31373780","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":"DNA as patentable subject matter and a narrow framework for addressing the perceived problems caused by gene patents.","authors":"Stephen H Schilling","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Concerns about the alleged harmful effects of gene patents--including hindered research and innovation and impeded patient access to high-quality genetic diagnostic tests--have resulted in overreactions from the public and throughout the legal profession. These overreactions are exemplified by Association for Molecular Pathology v. U.S. Patent and Trademark Office, a 2010 case in the Southern District of New York that held that isolated DNA is unpatentable subject matter under 35 U.S.C. § 101. The problem with these responses is that they fail to adequately consider the role that gene patents and patents on similar biomolecules play in facilitating investment in the costly and risky developmental processes required to transform the underlying inventions into marketable products. Accordingly, a more precisely refined solution is advisable. This Note proposes a narrowly tailored set of solutions to address the concerns about gene patents without destroying the incentives for companies to create and commercialize inventions derived from these and similar patents.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"61 3","pages":"731-73"},"PeriodicalIF":1.9,"publicationDate":"2011-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"30322312","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 false start in the race against doping in sport: concerns with cycling's biological passport.","authors":"Nicholas Hailey","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Professional cycling has suffered from a number of doping scandals. The sport's governing bodies have responded by implementing an aggressive new antidoping program known as the biological passport. Cycling's biological passport marks a departure from traditional antidoping efforts, which have focused on directly detecting prohibited substances in a cyclist's system. Instead, the biological passport tracks biological variables in a cyclist's blood and urine over time, monitoring for fluctuations that are thought to indirectly reveal the effects of doping. Although this method of indirect detection is promising, it also raises serious legal and scientific concerns. Since its introduction, the cycling community has debated the reliability of indirect biological-passport evidence and the clarity, consistency, and transparency of its use in proving doping violations. Such uncertainty undermines the legitimacy of finding cyclists guilty of doping based on this indirect evidence alone. Antidoping authorities should address these important concerns before continuing to pursue doping sanctions against cyclists solely on the basis of their biological passports.</p>","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"61 2","pages":"393-432"},"PeriodicalIF":1.9,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"30096964","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 Adversarial Myth: Appellate Court Extra-Record Factfinding","authors":"Brianne J. Gorod","doi":"10.2139/SSRN.1805703","DOIUrl":"https://doi.org/10.2139/SSRN.1805703","url":null,"abstract":"The United States’ commitment to adversarial justice is a defining feature of its legal system. Standing doctrine, for example, is supposed to ensure that courts can rely on adverse parties to present the facts courts need to resolve disputes. Although the U.S. legal system generally lives up to this adversarial ideal, it sometimes does not. Appellate courts often look outside the record the parties developed before the trial court, turning instead to their own independent research and to factual claims in amicus briefs. This deviation from the adversarial process is an important respect in which the nation’s adversarial commitment is more myth than reality. This myth is problematic for many reasons, including the fact that it obscures the extent to which some of the most significant cases the Supreme Court decides, such as Citizens United v. FEC, rely upon “facts” that have not been subjected to rigorous adversarial testing. The adversarial myth exists because the U.S. legal system’s current procedures were designed to address adjudicative facts — facts particularly within the knowledge of the parties — but many cases turn instead on legislative facts — more general facts about the state of the world. Recognizing this distinction between adjudicative and legislative facts helps identify those cases in which existing practices undermine, rather than promote, adversarial justice. This Article concludes with suggestions for reform, including liberalizing standing doctrine when legislative facts are at issue. If courts are going to turn to nonparties for help in resolving disputes of legislative fact, it is better that they be brought into the process earlier so the factual claims they offer can be rigorously tested.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"61 1","pages":"1-79"},"PeriodicalIF":1.9,"publicationDate":"2011-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67749482","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 Innocence Effect","authors":"Oren Gazal-Ayal, Avishalom Tor","doi":"10.2139/SSRN.1878498","DOIUrl":"https://doi.org/10.2139/SSRN.1878498","url":null,"abstract":"Nearly all felony convictions — about 95% — follow guilty pleas, suggesting plea offers are very attractive to defendants compared to trials. Some scholars even argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea offers only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial they may wish to avoid. Hence, even while heatedly disputing their desirability, both camps in the debate believe plea bargains commonly lead innocents to plead guilty. This article shows, however, that the belief innocents routinely plead guilty is overstated. We provide field and laboratory evidence for the hitherto neglected “innocence effect,” revealing that innocents are significantly less likely to accept plea offers that appear attractive to similarly-situated guilty defendants in light of the expected sanction at trial. The article further explores the psychological causes of the innocence effect and examines its implications for plea bargaining: Positively, we identify the striking “cost of innocence,” wherein innocents suffer harsher average sanctions than similarly-situated guilty defendants. Yet our findings also show that the innocence effect directly causes an overrepresentation of the guilty among plea bargainers and the innocent among those choosing trial. In this way, the effect beneficially reduces the rate of wrongful convictions, even when compared to a system that does not allow plea bargaining. Normatively, our analysis finds both detractors and supporters of plea bargaining should reevaluate, if not completely reverse, their long-held positions to account for the innocence effect, its causes and consequences. The Article concludes by outlining two proposals for minimizing false convictions, better protecting the innocent, and improving the plea bargaining process altogether by accounting for the innocence effect.","PeriodicalId":47625,"journal":{"name":"Duke Law Journal","volume":"62 1","pages":"339-401"},"PeriodicalIF":1.9,"publicationDate":"2011-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67768940","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}