Volume 64 (2014–2015)

Volume 64, Number 8 – May 2015

Posted on May 25th, 2015

Foreword Back to the Future on Presidential Appointments Paul C. Light PDF This issue of the Duke Law Journal takes readers back in time to the constitutional origins of today’s sluggish presidential appointments process, into the present with sharp analysis of recent cases and data on how the process is working, and forward into a Continue Reading »

Volume 64, Number 7 – April 2015

Posted on April 14th, 2015

Articles Constructed Constraint and the Constitutional Text Curtis A. Bradley & Neil S. Siegel PDF In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering Continue Reading »

Volume 64, Number 6 – March 2015

Posted on March 18th, 2015

Articles The Best for Last: The Timing of U.S. Supreme Court Decisions Lee Epstein, William M. Landes, and Richard A. Posner PDF This Article investigates the hypothesis that the most important and, often, controversial and divisive cases—so called “big” cases—are disproportionately decided at the end of June. We define a “big case” in one of Continue Reading »

Volume 64, Number 5 – February 2015

Posted on February 10th, 2015

Articles The Challenge of Co-Religionist Commerce Michael A. Helfand & Barak D. Richman PDF This Article addresses the rise of "co-religionist commerce" in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, co-religionist commerce requires all Continue Reading »

Volume 64, Number 4 – January 2015

Posted on January 11th, 2015

Article Hollywood Deals: Soft Contracts for Hard Markets Jonathan M. Barnett PDF Hollywood film projects involving significant capital investments regularly proceed on the basis of unsigned “deal memos” and draft agreements with uncertain legal enforceability. These “soft contracts” constitute a hybrid instrument adapted to the transactional hazards of an environment in which neither formal contract Continue Reading »

Volume 64, Number 3 – December 2014

Posted on December 8th, 2014

Articles Evidence and Extrapolation: Mechanisms for Regulating Off-Label Uses of Drugs and Devices Ryan Abbott & Ian Ayres PDF A recurring, foundational issue for evidence-based regulation is deciding whether to extend governmental approval from an existing use with sufficient current evidence of safety and efficacy to a novel use for which such evidence is currently Continue Reading »

Volume 64, Number 2 – November 2014

Posted on November 7th, 2014

Articles The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State Eric Biber & J.B. Ruhl PDF Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the “permit power,” under which legislatures prohibit a specified Continue Reading »

Volume 64, Number 1 – October 2014

Posted on October 12th, 2014

Article Choosing Not to Choose Cass R. Sunstein PDF Choice can be an extraordinary benefit or an immense burden. In some contexts, people choose not to choose, or would do so if they were asked. In part because of limitations of “bandwidth,” and in part because of awareness of their own lack of information and Continue Reading »