Study

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.

In today's global economy, parties to cross-border commercial transactions increasingly choose to resolve their disputes through arbitration. This course introduces students to the law and practice of international arbitration. Among other things, the course will consider the formation and enforcement of arbitration agreements; the conduct of arbitral proceedings; the recognition and enforcement of arbitral awards; the international conventions, national laws, and institutional arbitration rules that govern the arbitral process and the enforcement of arbitration agreements and awards; the strategic issues that arise in the course of international arbitration proceedings; and the practical benefits (and disadvantages) of arbitration.

This course explores the field of comparative legal studies by inquiring into what it means to compare one legal system with one another, as well as how to determine what ought to count as a legal system in the first place. The study is historical, ranging from the ancient emergence of the Hindu, Confucian, and Roman legal families, to the medieval traditions of Jewish, Islamic, and Canon jurisprudence, and into modernity. From the Renaissance forward, the course investigates several frameworks, including common law, civil law, theocracy, and indigeneity, and the ways in which these legal frameworks transformed in the contexts of nineteenth century imperialism and twentieth century decolonization.  Students will be evaluated on class participation and a 30-research paper. 

This course in legal reasoning highlights the central problematic of conflict of laws: the rule of law and the specter of judicial activism. It does so by way of a systematic exploration of the judicial methods and patterns of legal argument used to decide cases in which the relevant facts of the dispute are connected with multiple jurisdictions. The first half of the course is focused on domestic conflicts issues in the United States, mostly dealing with choice of law questions in tort, contract, and family law. This study examines the full range of approaches that developed in the courts between the time of Joseph Beale and rise of the Second Restatement on Conflict of Laws. The second half of the course turns from domestic to transnational conflicts problems, and in particular, brings a focus to the topic of extraterritorial jurisdiction. This study survey US federal court decisions on extraterritorial choice of law, including questions in constitutional law, civil rights law, environmental law, labor law, antitrust law, securities law, and human rights law. 

Grade is 20% class participation, 80% paper.

This course in advanced constitutional law is a study of the legal limitations on criminal investigative practices contained in the Fourth, Fifth, and Sixth Amendments. Topics include search and seizure, arrest, the exclusionary rule, electronic surveillance, the privilege against self-incrimination, interrogation, confessions, and the right to counsel.

Much of the business of governing takes place at the state and local level, rather than on the federal level. Competent attorneys must consider the effect that various state and local actors will have on their clients' interests, whether they represent large corporations, small franchises, or individuals. This course is designed to offer an overview of the issues concerning state and local governance from both a theoretical and practical perspective. The course will acquaint students with the broad issues surrounding state and local government, rather than focus on any particular state or municipality. Among the topics of discussion: state constitutional law, structure, and rights; distribution of authority between federal, state, and local governments; federal, state, and local government coordination and conflict; issues surrounding state and local provision of services and employment; state and municipal governance and oversight, and the role of localism and direct democracy in our constitutional structure. Evaluation will be based on class participation, class exercises, and an examination.

A study of the law of employment discrimination, focusing mainly on federal statutes that prohibit discrimination based on race, color, sex, religion, national origin, and age. Class time is committed to both doctrinal and policy analysis. The course does not examine disability discrimination.

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.

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.

This course examines the legal doctrines, theories, and arguments arising out of the free speech and religion clauses of the First Amendment.

This course offers a broad introduction to international law and provides a foundation for more specialized courses.  Topics covered include the key sources, actors, and institutions of international law; the application of international law by domestic courts; adjudication by international tribunals; the extraterritorial application of domestic law.  Part I of the course provides an overview of these foundations issues.  Part II is comprised of a series of case studies on selected topics in international law, including human rights, international crimes, international trade and investment, environmental protection, and the use of force.

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.

This course explores laws and policies that affect decisions on United States ocean and coastal resources. We examine statutes, regulations, attitudes, and cases that shape how the United States (and several states) use, manage, and protect the coasts and oceans out to – and sometimes beyond – the 200-mile limit of the Exclusive Economic Zone. We cover government and private approaches to coastal and ocean resources, including beaches, wetlands, estuaries, reefs, fisheries, endangered species, and special areas.

This course will examine the regulation of technology, and specifically the technology of Internet and telecommunications. We will examine the possible application of antitrust law and more specific forms of regulation, and will consider pending policy proposals. We will also examine the constitutional (principally First Amendment) constraints on any such regulation.

What decides legal cases? One obvious answer is: the law. Judges apply the law to the facts of a case and an answer presents itself. This simple understanding of how law and the judicial process work may be true in many cases, but it is not true in all of them. Social scientists have sought to explain judicial decisionmaking by reference to a variety of non-legal factors, including judges' personal characteristics, their caseloads, and their relationships with each other. The social scientific study of courts raises a host of interesting questions.

For example, on a multi-member court like the Supreme Court, does it matter which Justice is assigned to write the opinion, or will the majority (or the whole Court) bargain to the same outcome anyway? If opinion assignment matters to outcomes, how might judges' choices about the division of labor influence the content of the law? How do higher courts ensure that lower courts comply with their decisions? Does the need to police lower courts alter legal doctrine, giving us more bright line rules and fewer fuzzy standards? Similarly, does the fact that certain groups, like the Chamber of Commerce, are repeat players, affect the outcome of cases? Does it affect doctrine? Finally, does it matter who is under the robes? Does the ideology of the judge, or her race or gender, matter to the outcome of cases? (Which cases?) If so, is it possible to predict how judicial characteristics will shape the law? Should our answers to these questions affect how we choose judges?

This course that will examine these questions and many like them. In law schools, these sorts of questions get limited attention: our focus is primarily on the legal doctrine or rules themselves. Social scientists take a very different approach, studying the behavior of judges rather than legal doctrine and trying to understand what accounts for judicial outcomes and the shape of legal institutions. This course will marry the social science literature and the questions it raises to a set of normative problems within the law itself.

 

This course analyzes the legal and policy regimes that shape the introduction of new products, processes, and services in the life science industries. Innovation in biopharmaceuticals, medical devices, health services, and health care delivery is central to the heavily regulated life sciences sector, and thus the sector offers a window into multiple intersections of scientific innovation, regulatory policy, and law.  Innovation in this sector is also shaped by multiple bodies of law (e.g. intellectual property law, FDA law, federal and state-based insurance and professional regulation, antitrust, tax), each with its own private and public constituencies, and therefore offers an opportunity to assess how different bodies of law approach the common issue of innovation.  Although this course focuses on innovation in the life science industries, this focus will produce lessons for innovation policy in other regulated and less-regulated industries. 

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.

This course focuses on section 1983 of the United States Code, a Reconstruction-era statute that enables private parties to sue any other person who "under color" of law deprives them of the "rights, privileges, or immunities secured by the Constitution and laws" of the United States.  Class participants will become familiar with the theoretical, procedural, and practical aspects of civil rights litigation, including constitutional and statutory claims, defenses and immunities, and available remedies, including attorney fees.   Related U.S. Code provisions concerning discrimination in housing, contractual relations, employment, and voting are examined where relevant. Exam-based evaluation.

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.

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 2 is the second 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 2 (Public Law Litigation) focuses on litigation meant to vindicate federal statutory and constitutional rights. We begin with the ins and outs of the Federal Question jurisdictional statute, then move on to suits against the government. We address both federal and state sovereign immunity in depth, and we explore civil rights litigation against state and federal officers under 42 U.S.C. 1983 and the Bivens doctrine. We also canvass various statutory and judge-made rules limiting parallel litigation in state and federal courts. The course concludes with an in-depth treatment of federal habeas corpus as a vehicle for judicial review of executive detention and for collateral attack on state criminal convictions.

A survey of the legal environment of the health services industry in a policy perspective, with particular attention to the tensions and trade-offs between quality and cost concerns. Topics for selective study include access to health care; private and public programs for financing and purchasing health services; the economics of health care and health care costs; the role of professionalism versus the new commercialism in health care; the legal and tax treatment of not-for-profit corporations; regulation of commercial practice in professional fields; fraud and abuse in government programs; the application of antitrust law in professional fields; the internal organization and legal liabilities of hospitals; public regulation of institutional providers, including certification of need; personnel licensure; private personnel credentialing and institutional accreditation; liability for medical accidents; legal liabilities associated with the administration of health benefits; and public regulation of managed-care organizations. Study of the diverse legal problems encountered by a single industry, particularly one as important, complex, and intrinsically interesting as health care, may appeal to students generally interested in public policy and in law and economics as well as those with specific interests in the health care field.

This course will not be a survey course covering all aspects typically covered in American Indian Law courses. Rather the course will focus on the intersection between justice and law for American Indian Tribes in matters relating to natural and cultural heritage and resources. Some global perspective is also introduced. Seminar topics which will be the subjects of readings, videos, and reflection/discussion include: indigenous culture, law, and politics; federal power over tribal relations and trust responsibilities; select Supreme Court cases on natural and cultural resources; and federal statutory and regulatory authorities implicated in the context of natural and cultural resource disputes. 

After this class, students should be able to: identify applicable federal laws and regulations that apply in case studies; describe the application of federal and state regulations to indigenous cultural heritage sites; understand the role of museums, governments, tribes, scientists, and intergovernmental organizations in the management and preservation of indigenous cultural heritage, sovereignty and self-governance; analyze relevant case studies for strategies for promoting indigenous justice claims; and demonstrate knowledge of expert testimony used in supporting indigenous justice.

Grade will be based on class participation, short writing assignments; quizzes, an expert witness exercise, midterm, and advocacy video project.

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 will provide an overview of immigration law and policy. It combines a study of constitutional law, statutory interpretation, and administrative regulations. We examine the constitutional law governing noncitizens as they seek to enter and remain in the United States as well as the statutory provisions governing humanitarian protection, family-based and employment-based migration. We also discuss the immigration consequences of criminal convictions, the obligations of criminal defense attorneys to advise noncitizen clients, and the intersection of criminal and immigration enforcement systems.

The course explores the legal, social, historical, and political factors that have constructed immigration law and policy in the U.S.  In examining these various factors, the course will analyze several inherent conflicts that arise in immigration law, including, among other things, the tension between the right of a sovereign nation to determine whom to admit to the nation state and the constitutional and human rights of noncitizens to gain admission or stay in the U.S., the power of the executive branch to set and change immigration policy, issues that arise between noncitizens and citizens of the U.S. with regard to employment, security, and civil rights and the tension between the federal and state governments in regulating immigration law. Students will participate in a mock removal proceeding and will complete hypothetical immigration problems that illustrate the application of constitutional, statutory, and regulatory immigration law.

This course covers the basic rules governing the U.S. income taxation of international business and investment transactions. After a brief explanation of basic American income tax concepts, the principal rules of taxation relating to income of American taxpayers that is earned abroad, and the income of foreign taxpayers that is earned in the U.S., will be described and discussed. The course will then focus on how the United States’ rules interact with taxation systems in other countries, exploring the concepts of source of income and residence of the taxpayer, and their role in the tax rules relating to international trade. The course will also include consideration of the role of bilateral tax treaties as a means of promoting crossborder investments and international trade through the avoidance of international double taxation. The OECD model treaty will be examined as an illustration of the interaction between double tax treaties and domestic regulations. The course will also describe and discuss the role of transfer pricing in tax avoidance efforts by business taxpayers, especially U.S. multinational corporations.  Finally, the course will explore recent developments in the international effort to reduce tax-base erosion and income shifting among taxing jurisdictions.

International trade and the World Trade Organization attract a lot of attention and debate. Why do almost all economists say that liberalizing trade flows is a good thing? Why do politicians – even ones who purportedly support free markets – often rail against import competition and "unfair trade"? How does trade liberalization interact with other public policy choices such as protecting the environment or promoting the economic development of poor countries? In this course, we will examine why the WTO exists, how it developed from the GATT and how it fits in the international economic order (Part I). The course will offer you an in-depth, practical knowledge of substantive WTO law drawing heavily on case law. It will address the basic principles of trade in goods and trade in services, as well as some of the more specialized WTO agreements on, for example on trade remedies (subsidies, anti-dumping and safeguards). From a more procedural side, the course will pay close attention to the unique WTO mechanism for the solution of global trade disputes, with special reference again to recent and ongoing cases (Part II). It will conclude by examining U.S. trade law – particularly the widely-used trade remedies laws – and assessing not only the practice of international trade law in the United States, but also whether these laws actually achieve their supposed policy objectives (Part III). Although this course will necessarily address key principles and theories undergirding the international trade law system, one of its driving themes will be the actual practice of this discipline in the United States and at the WTO. The course will be graded based on class participation and an open-book final exam.

This course will explore the important field of State Constitutional Law.  It will focus on State Supreme Court decisions, especially those decisions that have decided important constitutional claims differently from the United States Supreme Court.  The focus will be on important constitutional law issues involving voting rights, abortion and other privacy rights, gun regulation, funding of public education, and religious freedom.  It will also explore several structural issues relating to State judiciaries and State Constitutions.

70% of the course grade will be based on a three-hour take-home exam.  20% will be based on a 10-page paper on an approved state constitutional law topic.  And 10% will be based on class participation.

Legislation is one of the most important forms of law in modern American society. Indeed, it has been said that we are living in an 'age of statutes.' Almost every aspect of legal practice involves construction of statutes, whether defining the jurisdiction of the courts or establishing the norms to which society must conform. In this course, we will examine the legal theory and practice of the making and enforcement of statutes. The course will begin with a study of the legislative process, with special attention to theories that seek to understand why some bills succeed where others fail. The next unit of the course will consider statutes as a unique source of law, comparing them to the common law and the Constitution. We will then move to the heart of the course, which will focus on how judges and other legal actors (agencies, enforcers, etc.) interpret statutes. There will be a take-home final for this course.

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.

Since September 11, 2001, transnational terrorism has been treated as both crime and war.  Accordingly, the U.S. and other states have targeted members of Al Qaeda and associated forces in major military operations and in surgical strikes, captured and held such persons as law-of-war detainees, and prosecuted suspected members of such groups for terrorism offenses and war crimes, in civilian courts and military tribunals. 

This course will examine these developments in historical perspective, and will analyze their implications for the interstate system (focusing on the law of state responsibility), the law of war (in particular, combatant and civilian status and associated protections), and the structures of the U.S. Constitution governing war, crime, and military jurisdiction.

Grades will be based on the quality of weekly (3-page) briefings, practical simulations, and class participation.

The Appellate Litigation Clinic is a yearlong clinic that offers students the opportunity to work on a federal appeal in a civil or criminal case involving complex, important legal questions. The clinic aims to advance the public interest and help secure access to justice for those who are underserved by the legal system. Because appellate practice focuses largely on legal research, brief-writing, and oral argument, students will receive intensive training in written and oral advocacy as they are practiced in some of the highest courts in the nation. Students will also engage in all the other critical aspects of appellate practice, including: meeting with clients, listening to them, learning to tell their stories, educating them (and co-counsel) about the substantive law and appellate practice, developing effective legal strategy, and identifying and addressing ethical concerns. Skills developed in the clinic will be directly transferable to trial-court litigation, regulatory work, government service, and many other career paths in the law.

Clinic students will work in teams to review the trial-court record, identify legal issues, conduct legal research, prepare research memorandums and outlines of arguments, participate in tactical decision-making, draft and edit briefs, and prepare for oral argument. Students will also collaborate on classmates’ cases and participate in the litigation of a variety of legal issues. Subject to the clients’ permission, court approval, and an argument date during the school year, a student will argue each appeal in court. A weekly seminar will include reflection on case work, instruction in appellate procedure and effective written and oral advocacy, and exploration of how to negotiate workplace power dynamics and ethical issues that new lawyers often face.

Enrollment is limited to third-year students (i.e., students who have completed four semesters of law school).

To allow students to experience the entire life-cycle of an appeal, from filing the notice of appeal through oral argument, the Appellate Clinic is a full-year clinic. Students enrolled in LAW 407 will therefore also be enrolled in LAW 408, Appellate Litigation Clinic (Spring). Students will receive 3 credits each semester.

As with other clinics, students are required to attend the clinic intensive training session, and the course may not be dropped after the first class meeting.

International LLM students who wish to enroll in a clinic must seek the permission of the clinic’s faculty director before the enrollment period. Permission is required for LLM students to enroll but does not guarantee a spot in the clinic.

Clinics Enrollment Policy

Important:

Students are required to attend the clinic intensive training session. Students who have previously completed a clinic may skip some portions of the intensive.

International LLM students who wish to enroll in a clinic must seek the permission of the clinic's faculty director prior to the enrollment period. Permission is required to enroll but permission does not constitute entry into the clinic.

Ethics Requirement

Students are required to have instruction in the Model Rules of Professional Conduct prior to, or during, enrollment in the Appellate Litigation Clinic. Examples of ethics classes that meet the requirement include Ethics in Action: Large Firm Practice (LAW 231), Ethics of Social Justice Lawyering (LAW 237), Ethics and the Law of Lawyering (LAW 238), Ethics and the Law of Lawyering in Civil Litigation (LAW 239), Criminal Justice Ethics (LAW 317) and Ethics in Action (LAW 539).

Spring continuation of Appellate Litigation Clinic.

This two or three credit course is available to students who have participated in one semester in the Children's Law Clinic, and wish to participate for a second semester. Students may enroll only with approval of the Director of the Clinic. Supervisors will work with advanced students to develop an advanced experience that meets the interests of both the students and needs of the clinic. Students enrolled in advanced clinical studies are required to participate fully in the case work and/or policy portion of the clinic, performing a minimum of 100 hours (2 credits), 125 hours (3 credits) or 150 hours (4 credits) of client representation work, but will not be required to attend the class sessions. A classroom component is available for students using advanced clinic to satisfy their experiential learning requirement.

For lawyers in every type of law practice, the ability to negotiate effectively is an essential skill.  As a lawyer, you will negotiate when you try to settle a lawsuit, close a merger, or arrange a plea bargain.  You will negotiate with counterparts, clients, and co-workers.  You will negotiate with service providers and the “system” – the court, the government, or your community.  And, you will continue to negotiate with your friends and family.  In this highly interactive seminar, we will explore the theories, skills, and ethics involved in legal negotiation.  With limited exceptions, in each class you will participate in a role-play simulation of increasing complexity, experiment with new techniques, and then reflect on what negotiation strategies worked best for you.  Over the course of the semester, in addition to in-person exercises, you will have opportunities to negotiate by email, telephone, and videoconference, and to evaluate the pros and cons of each so you understand how to select the most appropriate medium given the particular parties and circumstances.  Through this process, you will not only gain insight into your own negotiation style, you will develop the toolkit you need to approach each new negotiation with confidence. 

Because of the nature of the course, the amount of information delivered during the first class period, the importance of participating in the first role-play simulation during the first class period, and the typical waitlists for enrollment in the course, attendance at the first class is absolutely required.  A student who fails to attend the first class without prior consent of the instructor will forfeit his or her place in the class.  (Working for an additional week in the summer and call-back interviews are not acceptable excuses for missing the first class.)  Students who are on the waitlist for the course are encouraged to attend the first class, and those who do will be given preference to fill open slots in the class.  There is a shortened drop period for this course so that students who are waitlisted can enroll before the second class occurs.  Thus, students may drop this course without permission only before the second class. 

Because of the similarities between this course and the negotiation course taught at the Fuqua School of Business, a law student may not receive law school credit for both courses.

This course analyzes civil suits in U.S. federal courts that raise cross-border, international and foreign legal issues. Specific topics covered include transnational jurisdiction, international forum selection, transborder choice of law, extraterritorial application of U.S. law, federal rules for service of process and discovery of evidence abroad, the special treatment of foreign governments as parties, and recognition and enforcement of foreign judgments.

The Sixth Amendment guarantees “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.”  United States v. Cronic (1984).  Most individuals prosecuted with federal crimes cannot afford an attorney, and thus, rely on the assistance of federal defenders and other lawyers in the community appointed to defend them.  This course provides an in-depth introduction to the substantive law and professional skills needed to represent an indigent defendant.  The course will be equally valuable to students interested in working as a federal prosecutor or as a prosecutor or defender in state court.  

Effective representation in a federal criminal case requires an understanding not just of the substantive and procedural federal law, but also of the U.S. Sentencing Guidelines and the interaction between federal and state law.  The attorney needs to understand the practical problems involved in representing a true underdog facing the power and endless resources of the United States government, develop sharp advocacy and negotiation skills, and possess deep empathy for individuals who would not otherwise have a voice.

Students will study these issues from the perspective of appointed attorneys representing a defendant based on an actual federal criminal case.  Substantive areas of focus will include federal firearm and drug laws (the government’s bread and butter charges in indigent cases), challenging the guilty plea and sentence, overcoming waivers and unpreserved errors, constitutional issues including common Fourth Amendment concerns arising from police searches and seizures, and the practical considerations involved in obtaining the best outcome for the client.  The course will also necessarily consider the intersection of race, poverty, and systemic discrimination in our system of justice. 

Professor H. Jefferson Powell will focus on relevant constitutional issues.

“An international crime,” wrote eminent legal scholar George Schwarzenberger in 1950, "presupposes the existence of an international criminal law. Such a branch of international law does not exist." This course will begin by probing the concept of international criminal law. What does it mean to say that certain conduct constitutes an "international crime"? What are the objectives of such a legal regime? We will then examine the law of genocide, war crimes, crimes against humanity, and aggression, as well as “treaty crimes,” such as terrorism offenses. Particular attention will be focused on the question of jurisdiction over such offenses in national courts and international tribunals,” and on immunities to such jurisdiction.

Grades will be based on the quality of weekly (3-page) briefings, practical simulations, and class participation.

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.

Collective action problems arise where every member of a group has a choice between alternatives, and if each member acts in a narrowly self-interested fashion or all members are unable to coordinate their actions, the outcome will be worse for all members by their own estimations than it will be if all or some of them choose another alternative.  Collective action problems are caused either by externalities (e.g., a prisoners’ dilemma), or by coordination difficulties (e.g., deciding which side of the road to drive on).  This seminar will examine the extent to which the United States Constitution can be understood as solving collective action problems that arise for the states and as empowering the states themselves and the federal government to solve such problems.  Topics will include:

1. the number and importance of multi-state collective action problems both today and at the time of the creation of the Constitution;
2. collective action theory in the social sciences;
3. the promise and perils of relying on interstate compacts and other agreements to solve multi-state collective action problems;
4. the necessity of federal power to solve such problems and a general examination of how Article I, Section 8, of the Constitution authorizes Congress to do so;
5. the Interstate Commerce Clause and related structural principles (i.e., the anti-commandeering doctrine and the dormant commerce doctrine);
6. the Taxing and Spending Clause and the Necessary and Proper Clause;
7. the many other parts of the Constitution that can be explained to a significant extent by the logic of collective action (e.g., the Foreign and Indian Commerce Clauses; Article I, Section 10; the Treaty Clause of Article II; certain heads of federal jurisdiction in Article III, especially diversity and suits between states; the Privileges and Immunities Clause and the Territories Clause, both of Article IV; Article V’s requirements for constitutional amendments; and Article VII’s requirements for ratification of the Constitution);
8. the inability of the collective action theory of the Constitution to explain certain parts of the Constitution, especially the Reconstruction Amendments, which follow a different structural logic;
9. various challenges to the theory (e.g., that partisan polarization and congressional dysfunction undermine federal power to solve collective action problems; that the theory threatens to collapse the text of the Constitution into its underlying purposes; that the theory limits federal power too much (according to legal liberals) or not enough (according to legal conservatives); and that claims about whether collective action is rational or likely to occur are historically contingent and normatively contestable; and
10. why the theory should matter to judges, elected officials, academics in several disciplines, and engaged citizens.

Readings will draw from The Federalist Papers and other Founding materials (e.g., the Articles of Confederation, Madison’s Vices memorandum, various letters of the Founders, the Virginia Plan, and the Constitution); book chapters (by, e.g., Akhil Amar, Jack Balkin, Daniel Farber, Jack Rakove, and Neil Siegel); law review articles (by, e.g., Robert Stern, Donald Regan, Steven Calabresi, Robert Bork, Robert Cooter, Neil Siegel, and Ernest Young); U.S. Supreme Court opinions from the Marshall Court to the present; and select draft chapters of my book manuscript.

Students will be required to write a 30-page research paper on a topic related to the substance of the seminar, which may be used to fulfill the JD SRWP degree requirements, the LLM writing requirement, or the special writing requirement for JD/LLMs. 

Grades will be based on the quality of students’ course participation (40%) and the quality of their research papers (60%).

Urban Legal History is a research seminar which will focus on the legal issues relating to Durham's political, social, and economic development. The class will involve intensive study of primary and secondary materials, and will require students to produce substantial (45 page) research papers.

This seminar will examine the international law of armed conflict, and it focuses on the jus in bello context. Students will consider the rationale for the key concepts of the law of armed conflict and examine their practical application in various contexts. Case studies (to include the wars in Ukraine and Israel as well as other contemporary and historical conflicts) will be examined in conjunction with the topics covered. This historical context for the law of armed conflict agreements, the status of conflicts, combatants, and civilians, targeting, rules of engagement, war crimes, are all included among the topics the class will address. Students are encouraged to relate legal and interdisciplinary sources to better understand the multi-faceted interaction between law and war. There is no examination for this course but a 30-page paper (constituting 60% of the grade) is required on a legal topic chosen by the student and approved by the instructor. Students desiring to use the course paper to fulfill Substantial Research and Writing Project (SRWP) and possibly other writing requirements must obtain instructor approval. The remainder of the grade (40%) is based on the quality and frequency of class participation. Students should be aware that this course may include discussion and visual depictions (still and video) of armed conflict and other acts of extreme violence. The textbook for this course is Gary D. Solis's The Law of Armed Conflict: International Humanitarian Law in War (3rd ed., 2021). Students are required to attend part of the 29th Annual National Security Law Conference 23-24 February 2024 at the Law School. This course is only offered in the spring.

This fall-only survey course is designed to provide students, particularly those with no background in the topic, with an overview of the American legal architecture related to the U.S. security enterprise. The class will also examine related issues that arise "in the news." It is aimed not only at students considering a career in government or the military, but also for those headed to private practice who appreciate that the U.S.’s $778 billion defense budget, ($2 trillion in defense outlays worldwide), impact virtually all potential clients.

The course includes analyzing the constitutional structure governing national security matters, and the role played by the three branches of government (with special emphasis on Presidential power). It will also examine governmental surveillance, the investigation and prosecution of national security cases, as well as First Amendment issues related to national security. In addition, homeland security issues (to include the domestic use of the armed forces), security-based travel restrictions, public health emergencies, civil-military relations, and the impact of national security issues on business transactions will be reviewed. The textbook for this course will be Dycus, et al., National Security Law (7th ed., 2020) ISBN9781543806793 as well as the National Security Law and Counterterrorism Law 2022-2023 Supplement. Other materials may be provided as necessary. The instructors will offer practical, real-world perspectives on the issues discussed based on their extensive careers in government.

There is one assigned time block for the course, but the structure of classes may vary, and students may be divided into sections, discussion groups, and panels.

The course is expected to include guest speakers. There may be occasional asynchronous content, including short lectures, podcasts, and some documentary footage. Students will have advance notice of all required participation elements.

Given this is a course in national security, class instruction will likely include written, oral, and visual depictions of physical force and violence—and occasionally extreme representations of the same.

There is no examination for this course, but a 30-page research paper (constituting 60% of the grade) is required on a topic chosen by the student and approved by the instructors. With instructor approval, the course paper may fulfill the Substantial Research and Writing Project provided all SRWP requirements are met. The remainder of the grade (40%) is based on the quality and frequency of class participation (which may include short papers and/or brief oral presentations).

This course will examine the social, political, and legal forces that shape race relations in the United States. Students will engage competing visions of racial equality through law by examining major civil rights issues such as affirmative action, voting rights, and mass incarceration. This course will also highlight the limitations of law in racial reform and will consider the ways in which law can perpetuate race, gender, and class hierarchies. The course’s readings will draw from a wide range of interdisciplinary materials. Evaluation will be based on class participation and an examination.

This three-credit integrated externship will immerse students in the theory, practice, and politics of Movement Lawyering.  The course proceeds in two parts: a weekly seminar and partner work.  In the seminar, students learn the foundations and tactics of movement activism and discover how lawyers work with social movements to build power and create change.  In the partner work portion, students are paired with lawyers and organizers from around the Southeast to produce legal analyses, policy papers, legislative reviews, rapid response documents, outreach materials, and more, with a special emphasis on racial and reproductive justice.  Past and current projects include:

• Data collection and analysis on local police budgets
• Legal research on the viability of decarcerating people imprisoned during the War on Drugs
• Background research for a bill outlawing unauthorized pelvic exams in teaching hospitals
• Drafting a policy paper on the family policing system (often called the foster care system) and convening a working group
• Compiling geographic and demographic information for a project on infrastructure justice and food apartheid

Course enrollment is by application.  Students interested in applying for the course should submit their CV and an approximately one-paragraph statement of interest about their background and why they would like to enroll in the course. For the Spring 2024 semester, statements should be sent to Professor Anne Gordon (agordon@law.duke.edu), no later than 5 pm on November 3.

Professors Michelle Nowlin and Steve Roady are working with colleagues at Dalhousie University in Nova Scotia and the Environmental Law Institute to organize a workshop that will take place on November 3-4, 2022 at the Duke in D.C. office.  The workshop, Transboundary Marine Species at Risk in a Changing Atlantic: Taking Stock of Canadian and US Scientific and Governance Responses, Enhancing Future Cooperation, will bring together marine scientists, government experts, and legal scholars to assess the population and recovery status of species at risk of extinction due to habitat degradation, incidental impacts of commercial activities, and climate change; compare national approaches to species management and protection; assess the effectiveness of existing agreements; and  explore ways to improve bilateral and regional cooperation and address changes in migration patterns as the ocean warms.  This Research Tutorial provides students at the Law School and the School of the Environment with the opportunity to engage with experts and contribute to this workshop.  Students would conduct legal research and literature reviews and develop case studies that they would present at the workshop.  Students also would attend the full two-day workshop, serving as rapporteurs of the different sessions, and then work with the workshop’s steering committee to produce a report of the proceedings.

At the federal level, the regulatory regimes for the management and conservation of ocean life forms present different issues in the USA and Canada.  As a general rule, this country’s environmental laws provide more robust protections than those in Canada.  At the same time, the Canadian Department of Fisheries and Oceans has been more aggressive than its US counterpart (the National Marine Fisheries Service) in efforts to limit damage to such species as endangered whales.  The ability of these two agencies to work cooperatively in a constructive fashion is growing in importance as climate change is driving more ocean species to shift the balance of their activities from one side of the USA/Canada border to the other.  With specific species (e.g., the right whale, the blue whale, and the American eel) as the focus of case studies, students in this tutorial would engage in comparative analyses of the differing regulatory approaches in the two countries and endeavor to formulate suggestions for improvement. 

Enrollment requires instructor permission, and applicants should have both interest in this field and some background in/academic focus on marine species, international or environmental law, and government policy/governance.   Students interested in applying for the course should submit a short (250-500 word) statement of interest about why they would like to enroll in the course and highlighting coursework and/or experience. Statements should be sent to Professor Roady sroady@duke.edu, no later than 4 pm on Friday, June 17.  Students will be notified before the first registration window opens on Tuesday morning so that you can factor the seminar into your semester credit load. 

Modern capital and financial markets rely on a wide variety of complex instruments, including Treasury securities, structured debt and equity instruments, and derivatives of various kinds.  Public awareness regarding these instruments has grown since the Financial Crisis of 2008 because they are thought to have played an important role in both the rapid growth of financial markets (“financialization”) and their destabilization.  Yet these instruments and the role they play in modern markets remain little understood.  A basic understanding of these instruments has now become important in modern financial law practice and any discussions on financial policy and regulation.

This course will review the workings of derivative instruments in the capital markets and how such instruments themselves are used.  The relationship between banking and capital markets, and between government and the private markets, will be explored, as will the most important legal and fiduciary responsibilities involved.  While not highly technical, the various principal types of government securities and derivatives will be examined. 

Warren Buffet once called derivatives “weapons of mass financial destruction.”  We will consider the numerous public policy issues relating to derivatives, their role in the Crisis of 2008 (and more recent financial distress such as the Eurozone crisis and the US debt ceiling controversy), the history of attempts to regulate these instruments, and the current regulatory structure.

Final grades are based on a final exam and in class participation.

The acquisition, management, analysis, dissemination, and security of data are increasing important issues for individuals, commercial enterprises and governments.   New technologies create a more connected and personal digital society.  Every day, transactions engaged in by individuals generate ever expanding amounts of personal information, including credit card transaction information, purchasing histories, bank and other financial transaction information, location information, health information, real property ownership information, information relating to interactions with the criminal justice system, information shared on social media and other types of information.  Not only is the volume of personal information escalating rapidly; much of it is revealed in on line transactions, enabling it to be acquired for multiple uses, and much resides on servers and storage media where it can be accessible or potentially accessible to commercial enterprises and government agencies. New cybersecurity risks are demanding responses from governments as they address attacks on critical infrastructure, election interference and the potential for manipulation of the data used to train artificial intelligence tools.

In both the commercial sector and the government sector, the legal and policy issues associated with data, cybersecurity and surveillance are growing in importance.   Discussion of these issues in either sector cannot ignore the others, because the issues frequently intersect.  They also transcend national boundaries. For example, in President Obama’s proposals to revise government policy towards signals intelligence collection, he states that such policies implicate “the cooperation we receive from other nations on law enforcement, counterterrorism, and other issues; our commercial, economic, and financial interests, including a potential loss of international trust in U.S. firms and the decreased willingness of other nations to participate in international data sharing, privacy, and regulatory regimes …”[1]  This intersection of issues creates particular challenges for existing constitutional, legislative and international governance models.

In the government sector, increased risks such as nation state cyber threats now create new priorities to add to those efforts spurred by the terrorist attacks on September 11, 2001.  Combating and preventing terrorist and cybersecurity attacks relies heavily on the collection of information through electronic surveillance.  The tension between these efforts and individual privacy creates frictions that are forcing reconsideration of existing methods of mediating these interests.  This tension then creates challenges for long accepted ideas of nation state use of signals intelligence interception and other information gathering operations (such as the gathering of intelligence about potentially hostile governments).  Similar reconsideration is occurring in the commercial sector, where consumers’ desire for confidentiality in the data that relates to them can conflict with markets for information and commercial and entrepreneurial interests that wish to take advantage of such data to provide new goods and services that consumers value.  

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.

This seminar will investigate the possibility and promise of substantive reason in constitutional law. Doubts that reason plays any non-instrumental role in constitutional decisions often reflect a broad skepticism that constitutional law can be anything other than political decision-making in disguise. We do not share that skepticism, but we readily concede that many constitutional arguments and opinions are poorly reasoned, and that constitutional lawyers often seem unable to offer a coherent account of what they are doing, or what constitutional decision-making is or ought to be, that doesn't collapse into a species of political choice.

Our goal is to explore some of the resources that contemporary philosophy may offer constitutional lawyers in the effort to understand and practice constitutional law as a distinct and coherent form of thought and decision.
Attention will be paid to the work of Alasdair MacIntyre and Ludwig Wittgenstein, among others.

Students will be expected to participate actively in class discussion and to prepare a seminar paper, which can be written to satisfy the upper-level writing requirement.

This seminar explores the intersection between literary and legal studies, with a particular focus on race and gender. Through literature and some film, the seminar examines the role of law in the structure of conflict, personal relationships, social hierarchy and social change, with attention to privilege, perspective, and voice.  Possible authors include Margaret Atwood, James Baldwin, Octavia Butler, Ava DuVernay, Lorraine Hansberry, Ursula Hegi, Kazuo Ishiguro, Nella Larsen, Gabriel García Márquez, Toni Morrison, Colson Whitehead, and Richard Wright.

Grades will be determined from class participation, weekly response papers, and a final take-home examination.

American law attempts to protect individual interests in personal dignity and to guarantee a robust system of free expression. Both concerns are implemented, in part, through the common law of dignitary torts, and US constitutional law addresses their overlap and potential conflict. This course will cover the torts of defamation, invasion of privacy, and intentional infliction of emotional harm, and the related constitutional doctrines that the Supreme Court has developed since 1964.