16178 research outputs found
Sort by
Corporate Crime: An Introduction to the Law and its Enforcement
No full textCorporate Crime: An Introduction to the Law and Its Enforcement (Fourth Edition) is a comprehensive and current textbook covering the field of corporate and white collar crime and government enforcement, with balanced focus on both liability rules and procedural essentials. This text is a complete, low-cost introduction to the field designed for upper-level law students and rising practitioners. It includes coverage of the law and theory of corporate criminal liability, fraud, business corruption, securities offenses and enforcement, obstruction crimes, constitutional criminal procedure in the white collar context, attorney regulation, plea bargaining and settlements, sentencing, and more. It provides a full picture of a fast-evolving field by combining essential statutes and court decisions with primary source documents drawn from litigation and enforcement actions.https://scholarship.law.duke.edu/faculty_books/1038/thumbnail.jp
Textualism in Practice
Get PDFTextualism has won the statutory interpretation wars. But despite this theoretical and methodological victory, textualism as practiced on the ground has proved less transformational than expected. Indeed, contrary to what textualist interpretive philosophy long has promised, the widespread embrace of textualism by judges on the ground has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—courts will invoke to construe a statute in a particular case. Part of the reason for this lack of predictability is that textualism as practiced often differs significantly from the approach that textualism as an interpretive philosophy advertises; and part of the reason is that textualist philosophy is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the modern Supreme Court, it is time for scholars and jurists to grapple with these theoretical tensions and points of divergence between textualist interpretive philosophy and textualism as practiced on the ground.
This Article provides the first empirical and doctrinal analysis of three places where modern textualist interpretive practice diverges—sometimes sharply—from textualist interpretive philosophy. Based on 637 cases decided during the Roberts Court’s first fifteen-and-a-half terms, the Article highlights three surprising textualist points of divergence. First, although textualist philosophy seeks to limit the universe of acceptable interpretive resources upon which judges rely, textualism in practice is decidedly pluralist, as a clear majority of the Court, including all of the Justices widely considered textualists, regularly references several interpretive tools that textualist interpretive philosophy rejects. Second, although textualist philosophy insists that statutory terms be given their date-of-enactment, or “original public,” meaning, textualism in practice regularly uses present-day sources to determine statutory meaning. Third, although textualist philosophy emphasizes the meaning that statutory terms have in everyday conversational speech, textualism in practice relies heavily on sophisticated legal doctrines and constructs. These findings hold true even if we focus exclusively on data from the Court’s most recent 2017–2021 Terms, during which the Court’s membership has skewed lopsidedly textualist.
After chronicling several divergences between textualist interpretive philosophy and textualist practice, the Article considers and rejects the possibility that such divergences can be chalked up to faint-hearted judicial application of textualism—and that the solution should be more disciplined adherence to textualist principles. Instead, the Article suggests that textualist interpretive philosophy may actually be inherently contradictory in ways that give rise to these interpretive divergences; for example, textualism’s commitment to stability may be in tension with its commitment to predictability and fair notice. In the end, the Article offers some suggestions for how textualist philosophy might evolve to both reconcile these internal contradictions and better account for how textualism actually is practiced on the ground
On Sex and Gender: A Commonsense Approach
No full textAn eye-opening account of what the left and right get wrong about sex and gender--and how we can be a thoughtful, sex-smart society.On Sex and Gender focuses on three sequential and consequential questions: What is sex as opposed to gender? How does sex matter in our everyday lives? And how should it be reflected in law and policy? All three have been front-and-center in American life and politics since the rise of the trans rights movement: They are included in both major parties\u27 political platforms. They are the subject of ongoing litigation in the federal courts and of highly contentious legislation on Capitol Hill. And they are a pivotal issue in the culture wars between left and right playing out around dinner tables, on campuses and school boards, on op-ed pages, and in corporate handbooks.Doriane Coleman challenges both sides to chart a better way. In a book that is equal parts scientific explanation, historical examination, and personal reflection, she argues that denying biological sex and focusing only on gender would have detrimental effects on women\u27s equal opportunity, on men\u27s future prospects, and on the health and welfare of society. Structural sexism needed to be dismantled--a true achievement of feminism and an ongoing fight--but going forward we should be sex smart, not sex blind.This book is a clear guide for reasonable Americans on sex and gender--something everyone wants to understand but is terrified to discuss. Coleman shows that the science is settled, but equally that there is a middle ground where common sense reigns and we can support transgender people without denying the facts of human biology. She livens her narrative with a sequence of portraits of exceptional human beings from legal pioneers like Myra Bradwell and Ketanji Brown Jackson to champion athletes like Caster Semenya and Cate Campbell to civil rights giants like Ruth Bader Ginsburg and Pauli Murray. Above all, Coleman reminds us that sex not only exists, but is also good--and she shows how we can get both sex and gender right for society.https://scholarship.law.duke.edu/faculty_books/1018/thumbnail.jp
Community Justice Workers: Part of the Solution to Alaska\u27s Legal Deserts
Get PDFLegal deserts—large geographic areas where there are few or no attorneys—are found throughout the United States, including Alaska. These deserts are a major contributor to the access to justice gap. Further compounding the scarcity of legal resources in these areas, many people living in legal deserts cannot afford legal help, even when a lawyer is available. Legal aid organizations have struggled to overcome these challenges in meeting the legal needs of low-income Americans and are often forced to turn away as many people as they are able to help. Alaska Legal Services Corporation (ALSC) is responding to this challenge in part through a new type of legal professional: the community justice worker. Inspired by the Alaska Native Tribal health care system, community justice workers are non-attorneys trained to offer specific legal interventions for a particular legal issue. During Alaska\u27s recent Supplemental Nutrition Assistance Program (SNAP) crisis, community justice worker volunteers helped ALSC meet an exponential increase in SNAP delay and denial cases and successfully recovered $1.43 million in food security benefits on behalf of clients. ALSC looks to continue expanding its successful community justice worker program to meet the legal needs of low-income Alaskans
Alaska\u27s Healthcare Markets: The Free Market is Nota Cure
Get PDFHealthcare reform in the United States requires a nuanced approach to improve quality and access while managing costs—a challenge particularly pronounced in Alaska. Despite being the highest spender on healthcare globally, the U.S. fails to deliver commensurate health outcomes, with Alaska exemplifying these systemic issues. The state faces the highest healthcare costs in the nation yet performs poorly in quality and access metrics. This situation has prompted urgent legislative scrutiny of existing policies, such as the Certificate of Need (CON) Law and the 80th Percentile Rule. This Note critically evaluates the argument that deregulating Alaska\u27s healthcare market will lead to improved outcomes through increased market competition. Through a comprehensive analysis, it identifies unique factors contributing to Alaska\u27s healthcare dilemma, including geographical isolation, cultural distinctiveness, and specific budgetary constraints. The Note examines the primary cost drivers and contrasts Alaska\u27s market with those of other unique states. Ultimately, it argues that simplistic, market-driven solutions are inadequate; instead, legislative efforts should focus on addressing the root causes of high costs to create a more effective healthcare system tailored to Alaska\u27s specific needs
Judging Firearms Evidence
No full textFirearms violence results in hundreds of thousands of criminal investigations each year. To try to identify a culprit, firearms examiners seek to link fired shell casings or bullets from crime scene evidence to a particular firearm. The underlying assumption is that firearms impart unique marks on bullets and cartridge cases, and that trained examiners can identify these marks to determine which were fired by the same gun. For over a hundred years, firearms examiners have testified that they can conclusively identify the source of a bullet or cartridge case. In recent years, however, research scientists have called into question the validity and reliability of such testimony. Judges largely did not view such testimony with increased skepticism after the Supreme Court set out standards for screening expert evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc. Instead, the surge in judicial rulings came more than a decade later, particularly after reports by scientists shed light on limitations of the evidence.
In this Article, we detail over a century of case law and examine how judges have engaged with the changing practice and scientific understanding of firearms comparison evidence. We first describe how judges initially viewed firearms comparison evidence skeptically and thought jurors capable of making firearms comparisons themselves— without an expert. Next, judges embraced the testimony of experts who offered more specific and aggressive claims, and the work spread nationally. Finally, we explore the modern era of firearms case law and research. Judges increasingly express skepticism and adopt a range of approaches to limit in-court testimony by firearms examiners.
In December 2023, Rule 702 of the Federal Rules of Evidence was amended, for the first time in over twenty years, specifically due to the Rules Committee’s concern with the quality of federal rulings regarding forensic evidence, as well as the failure to engage with the ways that forensic experts express conclusions in court. There is perhaps no area in which judges, especially federal judges, have been more active than in the area of firearms evidence. Thus, the judging of firearms evidence has central significance for the direction that scientific evidence gatekeeping may take under the revised Rule 702 in federal, and then state courts. We conclude by examining lessons regarding the gradual judicial shift toward a more scientific approach. The more-than-a-century-long arc of judicial review of firearms evidence in the United States suggests that, over time, scientific research can displace tradition and precedent to improve the quality of justice
Standing and Probabilistic Injury
Get PDFStanding to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of probabilistic standing to cover categories of cases that ask distinct questions, such as cases involving who is subject to a challenged action, on the one hand, and those involving whether a person subject to such an action is sufficiently likely to be harmed, on the other. Second, courts should not ask how probable elements of a plaintiff’s case must be in order to support standing, but rather who should decide whether a given probability is sufficient. Judges and parties struggle in litigation to assess the actual probability of occurrences, and Article III of the Constitution provides no standard for how probable an injury must be to support a lawsuit. Third, any doctrinal probability threshold for standing would encounter a related problem, which is that the probability of an injury depends significantly on how that injury is framed. Which harms “count” for standing is thus a vital question in assessing the probability of injury, but Article III is an unlikely place to look for answers. Within certain constraints, courts should look instead to the underlying substantive law to define the relevant injuries for standing purposes. Finally, we contend that many of the concerns associated with probabilistic claims are better addressed through the law of remedies and prudential elements of the timing doctrines (mootness and ripeness) than through the constitutional law of standing
