Study

An examination of the distribution of and limitations upon governmental authority under the Constitution of the United States. Included are study of the doctrine of judicial review of legislative and executive action, the powers of Congress and the President, the limitations on state governmental powers resulting from the existence or exercise of congressional power, and judicial protection against the exercise of governmental power in violation of rights, liberties, privileges, or immunities conferred by the Constitution.

A study of the legal framework governing administrative agencies under the U.S. Constitution and the Administrative Procedure Act, with a particular focus on agency rulemaking and adjudication; Presidential power; Congressional control of agencies through statutes and other mechanisms of oversight; and judicial review of agency actions.

This course examines the laws governing interactions between human activities and the environment.  These include the laws governing the air, water, toxic chemicals, hazardous waste, resource use, biodiversity and ecosystems, and climate change.  The course focuses on the U.S. legal system, with some comparative analysis of the law in other countries and international regimes.  The course assesses key features of these environmental laws, including the rationales for environmental protection (e.g. ethical, economic); the choice of regulatory policy instruments (e.g. standards, taxes, trading, information disclosure); and the roles of different levels of government (e.g. local, state, national, international), branches of government (e.g. legislative, executive/administrative, judicial), and non-governmental actors.  We will study how these laws handle key questions such as:  (i) How serious a problem is it?  (ii) How much protection is desirable, overall and regarding distributional impacts?  (iii) How best to achieve this protection?  (iv) Who decides and acts upon these questions?  The course helps develop critical skills including statutory and regulatory interpretation, regulatory design, policy analysis, case law analysis, and litigation strategy.   This course, Law 235, is intended for professional and graduate students, and is also cross-listed as Environ 835 in the Nicholas School of the Environment.  Law students (e.g. JD, LLM, SJD) should enroll in Law 235, while students from outside the Law School (e.g. MEM, MPP, MBA, MA, PhD) should enroll in Environ 835, and may contact the Nicholas School registrar, Erika Lovelace, e.love@duke.edu , with any questions about enrollment.  (The Law School and the professor teaching this course do not have “permission numbers.”)  For undergraduate students, the Nicholas School offers a different course, Environ 265.

A study of how law regulates intimate adult relationships and relationships between parents and children. We will discuss constitutional and statutory rights and restrictions on marriage, adult relationships, adoption, parentage, child custody, dissolution of adult relationships, and financial support for children. We will explore the evolution of family law in relation to racial and gender equality and consider issues of socioeconomic inequality and access to justice.  Grading is based on a final examination and class participation. 

This course examines the constitutional and statutory doctrines regulating the conduct of American foreign relations. Topics include the distribution of foreign relations powers between the three branches of the federal government, the status of international law in U.S. courts, the scope of the treaty power, the validity of executive agreements, the pre-emption of state foreign relations activities, the power to declare and conduct war, and the political question and other doctrines regulating judicial review in foreign relations cases. Where relevant, we will focus on current events, such as the recent lawsuits against China concerning COVID-19, controversies over immigration enforcement, the withdrawal by the United States from various treaties, and uses of military force against alleged terrorists.

An introduction to federal income taxation, with emphasis on the determination of income subject to taxation, deductions in computing taxable income, the proper time period for reporting income and deductions, and the proper taxpayer on which to impose the tax

In planning their course schedules, students should keep in mind that Federal Income Taxation is a prerequisite for most other federal tax courses, including corporate tax, partnership tax, international tax, and the tax policy seminar.  For this reason, students who might want to take one or more advanced tax courses are strongly encouraged to take Federal Income Taxation during their second year of law school.

This course provides an introduction to copyright, trademark, and (to a lesser extent) patent law and trade secrecy. It does not require a technical background of any kind.  The course begins with an introduction to some of the theoretical and practical problems which an intellectual property regime must attempt to resolve; during this section, basic concepts of the economics of information and of the First Amendment analysis of intellectual property rights will be examined through a number of case-studies. The class will then turn to the law of trademark, copyright, and patent with a particular emphasis on copyright, developing the basic doctrinal frameworks and discussing the advantages and disadvantages of each. We will focus in particular on a number of areas where the theoretical tools developed at the beginning of the class can be applied to actual problems involving a full panoply of intellectual property rights; these areas include intellectual property on the Internet, the constitutional limits on intellectual property, and innovation, monopoly and competition in the technology sector. The overall theme of the course is that intellectual property is the legal form of the information age and thus that it is important not only for its enormous and increasing role in commercial life and legal practice, but also for its effects on technological innovation, democratic debate, and cultural formation. Much of our doctrinal work will be centered around a series of problems which help students build skills and learn the law in a highly interactive setting. You can also download the casebook for the class here – for free – to give you a sense of the topics that are covered. 

This course focuses primarily on the National Labor Relations Act (NLRA), which governs union organizing, collective bargaining, non-union collective action, and the exercise of economic pressure strategies by employees (e.g., strikes, pickets, boycotts). The NLRA also protects employees who resist or challenge unions.

The course is taught through a simulation in which the professor is the Chief Executive Officer of a company that produces labor law knowledge and employs students who are covered by the NLRA. Students/employees may organize and bargain with the owner over class rules and structure (e.g., content and grading). For instance, the course syllabus is described as an employment handbook that, among other things, states policies that may be the subject of collective bargaining between the professor/CEO and students/employees. In addition, some students may act as corporate counsel and aid the CEO in resisting union organizing and bargaining with the union. Students will not only learn substantive labor law, but also practice the area by, for instance, filing election petitions, filing unfair labor practice charges, raising election objections, appealing regional office decisions, and engaging in collective organizing and bargaining.

Students will be evaluated on the basis of an open-book exam, several papers and class participation.

Banking has evolved rapidly in just a few years. Global trade and investment have been supported and promoted by an emerging global financial system. This has in turn encouraged the growth of giant universal banks, based in the United States, the United Kingdom, mainland Europe, China and Japan. Most modern banks of any significant size (greater than $100 billion in total assets) have transnational and often truly global operations, but they also create major new risks and regulatory challenges. The debate over big banks and "too big to fail" concerns continued to be an important public policy concern in the 2016 Presidential election campaign and is certain to be so for the 2020 election. Since the Global Financial Crisis of 2008, the largest in a long run of domestic and international crises since the Great Depression of the 1930s, a new Dodd-Frank framework has been emerging. This framework has fundamentally changed the way in which such financial institutions are regulated. After more than a decade of reform, however, the framework remains controversial, at least in the United States, and executive and congressional efforts to reverse the Dodd-Frank and Basel models were deployed under the previous Administration, with some success. This controversy has now become more complicated in light of actions taken by the Treasury Department and the Fed to address financial and economic difficulties inflicted by COVID-19. Climate change is also starting to have a deep impact on financial markets, and this in turn is shaping some of the actions of regulators and banks. The walls between the three main sectors of finance - banking, securities and insurance - have broken down, yet at their core banks continue to be somewhat unique in their functions and the challenges they present for financial stability.

This course will review all the domestic and international regulatory developments since the Global Financial Crisis, focusing on the established and emerging regulatory architectures and systems, both domestic and international, currently proposed reforms, and future challenges and prospects for global and domestic financial reform. 

What is habeas corpus and why has it earned the title of the “Great Writ”? Habeas corpus allows prisoners to challenge their detentions and it empowers judges to free prisoners that are unlawfully detained. The writ reaches the most unpopular prisoners: enemies of the state, war criminals, and those convicted of the most heinous crimes. Due to its historic role as the last resort for prisoners to obtain judicial review, the U.S. Supreme Court has called the Great Writ one that is “indispensable” and one that “indisputably holds an honored position in our jurisprudence.” Thus, prisoner litigation is the subject of this course, and in particular, the rights and remedies available to prisoners who seek to challenge their detention.

We will use the co-authored casebook: the first to cover federal habeas corpus comprehensively, presenting post-conviction review and executive detention litigation in an accessible way. It is available on Sakai, along with the rest of our course materials. We will begin with an examination of the writ of habeas corpus, under which federal courts examine whether detentions are authorized. We will explore the historical evolution of the writ from a common law prerogative writ to the U.S. federal system and the meaning of the enigmatic Suspension Clause of the U.S. Constitution. We will then focus on habeas litigation by state prisoners convicted of crimes. We will study the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) and how it intersects with the key Supreme Court decisions that define the limits and procedures for habeas corpus, including through the doctrines of exhaustion, procedural default, non-retroactivity, and miscarriage of justice innocence “gateway” claims.

In the second part of the course, we will examine the Suspension Clause and how Article III of the Constitution shapes the power of judges to use habeas corpus. We will explore the use of habeas corpus to remedy unlawful executive detention, including immigration detention, military detention, and national security detention. We will study recent statutes and Supreme Court decisions relating to persons indefinitely detained or facing military commission trials post-9/11. We will conclude by studying the intersection of habeas corpus and civil litigation, and with a broader look at the future of habeas corpus.

We will conduct a series of practical exercises based on real cases, during synchronous classes and offline. Short lectures will often be recorded in advance to focus our synchronous time on engaging with the material. The goal is for you to understand the doctrine and theory but also develop practical litigation skills, directly applicable to prisoner litigation, and also to litigation generally. Some will be in-class exercises, while others will be written exercises outside of class. You will be given feedback on your work throughout the semester. Similarly, grading will be based not just on a final exam, but on class participation (in synchronous classes, in comments on each other’s work, and on the Sakai forum discussion pages), written answers to three review exercises, written comments on classmates’ answer to review exercises, a midterm exam, and a final exam. All midterm and final exam grading is blind.

This is a comprehensive course in copyright law. We will examine the legal rights that cover works of creative expression such as literature, music, film, photography, visual art, and software. The class will cover some of the fundamental pillars of the world of creative expression in which we all live—the economic and legal architecture of our culture. This is because copyright’s rules provide the economic incentives that influence our creative output as well as part of the legal framework that shapes our communications technology. The broad impact of copyright law means that it is of importance to a wide range of legal practice and not merely to the specialist. No technical background is needed.

The course will examine the legal framework governing energy production and consumption in the United States, and policy approaches for balancing energy needs with other societal goals. The course will include three main modules: (1) electricity sector regulation; (2) energy resources for electricity generation; and (3) oil and gas law. Key themes will include:

(1) The historic origins of public utility regulation;
(2) The major U.S. laws that govern energy production and use;
(3) The distinct roles of the federal and state governments; and
(4) Efforts to manage competing societal interests

Final grades will be comprised of the following:

1. Final exam, open book/open note one day exam:
2. Case study discussion leader: 
3. Class participation and current events: 

The case study will be a group project where students will be assigned a case study. The group will lead the class discussion and exercise on the case study. In addition, each student in the group will prepare a 3-page policy brief that advocates for an outcome to a decision maker. The grade will be based on both the group discussion and the policy brief.

Students will also be responsible for submitting discussion questions on the readings and short reflections on current events weekly. Students must submit questions for at least 10 weeks.

What are the government policies that support science? How is science regulated and controlled? What can science contribute to law and policy? How do the states, the federal government and international agencies interact to set science policy? How do disparate regulations and law impact research and translation? How is scientific research funded? These questions and more will be explored by looking at the interaction of law, science, and policy. The class is a mix of law, ethics and science students, and learning how to talk to one another in a common language is an important element of the course. Classes will include consideration and analysis of cases studies. There are no prerequisites for the course and there is no requirement that students have either graduate or upper-level undergraduate training in the sciences. Course evaluation (i.e. your grade) will be based on class participation and a final exam.

All MA, PhD and JD/MA students should register under BIOETHIC 704 – approval of professor is required. All law students (other than JD/MAs) should register under LAW 333.

Federal Courts is sometimes thought of as the love child of Constitutional Law and Civil Procedure. It takes the Con Law I themes of federalism, separation of powers, and protection of individual rights and develops them in the context of jurisdiction, procedure, and remedies. Most experienced litigators--including criminal and regulatory litigators--consider the course essential.

Federal Courts 1 is the first of a two course sequence designed to provide exhaustive coverage of the material at a very civilized pace. Both parts one and two are three-credit courses ordinarily taken in the Fall and Spring of the same year. They have separate exams that are graded independently. There is no requirement that one take both installments, but it is strongly recommended.

Federal Courts 1 (The Constitution and Judicial Power) focuses on the nature of the Article III judicial power and its place in the constitutional scheme. We begin with the justiciability doctrines (standing, ripeness, mootness, and finality), then move on to Congress's control over federal court jurisdiction and adjudication in non-Article III courts (e.g., bankruptcy courts and administrative agencies). This installment also addresses the relationship between federal and state courts, including the U.S. Supreme Court's power to review state court decisions, the Erie doctrine's restriction on the common lawmaking powers of federal courts, and the implication of private rights of action under federal statutes.

This course will examine the role of the U.S. civil rights movement in the development of U.S. constitutional law. Conventional theories of judicial independence do not define a legitimate role for social movements in the transformation of U.S. constitutional law, but recent advances in legal scholarship have underscored the co-constitutive relationship between law and social movements.  Accordingly, this course will explore how movement participants engaged the U.S. Constitution and how these encounters shaped constitutional doctrine, social institutions, public discourse, and movement participants themselves. We will investigate the processes of mobilization and counter-mobilization and reflect on how the U.S. civil rights movement often spurred constitutional change through means other than constitutionally specified procedures. We will also consider how and why movements fail and will critically analyze rights-based approaches to reform. Course readings will draw from a wide range of historical, sociological, and legal sources.

This course provides a comprehensive introduction to patent law and policy. No technical background is required. The course begins by addressing the history of patents as well as the policy arguments for and against using patents as a mechanism for inducing innovation. Following this introduction, students learn the basics of patent drafting and prosecution, patent claims, and claim construction. The class then addresses in depth the central patentability criteria of subject matter, utility, nonobviousness, and disclosure. Other topics of importance that are covered in the class include: the relationship between patents and other forms of intellectual property protection, particularly trade secrecy and copyright; the intersection of patent and antitrust law; the role of the two major institutions responsible for administering the patent system, the Patent and Trademark Office and the Court of Appeals for the Federal Circuit; and the role of patents in the two major industries of the knowledge-based economy, information technology and biotechnology.

The subject of the course is the diverse sector of the economy composed of nonprofit organizations. The topics to be covered include their economic function, governance issues, the tax laws covering them, abuses of their special status, and policy issues regarding them.

The goal of this course is to provide students with a broad overview of how international rules shape global commerce. It will serve as a foundation in international law for students who never plan to take another international law course but also serve as a roadmap of the possibilities for international law study (and careers) for students who want to do more with international law. The course begins with private, cross-border contracting, then moves on to public international law agreements as well. We start with conflict of law rules as well as international treaties designed to coordinate contract law (CISG). From there we dive into the world of private international arbitration, including questions of when state should not permit international arbitration. The course will also covers torts claims, particularly under the Alien Torts Claims Act. We will examine the Bhopal litigation before moving on to some of the cases that have been brought against major oil companies by citizens of developing countries. At that point, the course pivots towards more public law issues that govern international transactions. We look at the Foreign Corrupt Practices Act as well as the OECD Anti-bribery Convention. Finally, we turn to the major treaty regimes on economic subjects, including multilateral trade agreements and the network of bilateral investment treaties.

GRADING: Grades are based on an exam.