Study

This fall-only seminar is designed to introduce students who have limited familiarity with international law to principles involved in the use of force during periods of putative peace.  It will explore, for example, what circumstances constitute an “act of war” in a variety of situations, to include cyberspace.  The structure of classes may vary, and students may be divided into sections, discussion groups, and panels. The course may include guest speakers (in-person or via Zoom).

The course will analyze when and how force may be used in self-defense and will survey topics such as humanitarian intervention, hostage rescue, air defense identification zones, freedom of navigation operations, use of force in the cyber domain, and the legal aspects of international counter-piracy and counterterrorism operations (including drone strikes).  Efforts to limit the use of force in outer space as well as the implications of nuclear weapons and the emergence of autonomous (to include generative AI) weaponry will be explored.

Case studies and current news events will be examined in conjunction with the covered issues.  For example, an article that examines, “through the lens of the Russia-Ukraine conflict…whether and, if so, when a State's military aid or assistance that contributes to another State's use of force constitutes a separate and distinct use of force under international law” will be discussed.

In addition, students will get an overview of the practical issues associated with the use of force, to include the weaponry, planning, and military techniques involved.

There will be no class on Tuesday, September 26.  However, there will be a class on Sunday, November 5th from 3:30 p.m. to 6 p.m. during which we will watch the movie, Eye-in-the-Sky about a drone strike, and have a discussion about it.

This course obviously addresses the use of force in international law.  Accordingly, class instruction will inevitably include written, oral, and visual depictions of physical force and violence—and occasionally extreme representations of the same.

While enrolled in Law 242 Social Justice Lawyering, with prior professor approval, students may submit a 30-page research paper and earn an additional one credit for the course. This paper is in addition to all the other course requirements, including the written assignments, but may be related to your case study presentation.

The paper may be used to satisfy the upper level writing requirement, the LLM writing requirement, and/or the JD/LLM writing requirement. You must email Professor Gordon or McCoy by the end of the Registration Period and after enrolling in 242 Social Justice Lawyering if you would like to seek this additional credit; there are very limited spots, which will be awarded on a first-come, first-served basis.

The course will survey the legal issues raised by cyber-related crime. The bulk of the course will be organized around two overarching themes: (1) substantive criminal law (i.e., the scope, structure, and limitations of the criminal laws that reach cyber-related crime); and (2) criminal procedure (i.e., the scope, structure, and limitations of the privacy laws and constitutional principles that regulate law enforcement investigations of cyber-related crime).  Along the way, we will also consider topics that frequently arise in cyber-related investigations and prosecutions, such as:  jurisdictional issues (e.g., federal/state dynamics and international cooperation in collecting evidence); national security considerations (e.g., state-sponsored intrusions and IP theft, terrorists’ use of the internet, government surveillance); and encryption.  We will make regular use of contemporary case studies, including several drawn from my own experience in the national security arena. 

This course will provide an introduction to the dynamic and evolving field of cyber law and policy.  The course will be team-taught by multiple instructors with expertise in various government and industry sectors. The goal is to introduce students to the legal and policy frameworks that guide lawyers and decision-makers in a world of rapid technological change, with a primary emphasis on cybersecurity and privacy. We will discuss today’s threat landscape and approaches to data breaches, cybercrime by state and non-state actors, and cyberwarfare. We will also consider the legal and policy issues surrounding the collection and use of personal data, with a focus on both domestic and international data privacy protections. Other topics will also be explored, such as the impact of emerging technologies and markets (e.g., machine learning, digital currencies, platform media) and the ethical responsibilities of lawyers. Real-world case studies will be employed to allow students to weigh in on some of the most pressing issues of our time.   This course is introductory in nature and no technical background is necessary.

Note: Students who have taken Law 609, Readings in Cyber Law with Stansbury, may not take Law 316, Intro to Cyber Law. 

This survey course examines the legal and policy issues governing water quality and resource allocation in the United States. Students will be introduced to both the Prior Appropriation systems of the western United States and the Reasonable Use systems dominating the eastern states. We will study key laws that affect water quality and quantity, including the Clean Water Act, the Safe Drinking Water Act, the National Environmental Policy Act, the Endangered Species Act, and others.  Students will also explore emerging issues in water policy, including the regulation of "forever chemicals," protection of wetlands, and mitigation of and adaptation to climate change, among other policy issues.  Throughout the course, students will study how environmental justice relates to water resource management.

Introduction to Legal Theory: Modes of Legal Argument is a 3-credit seminar with enrollment capped at 12, and a final paper that can be used to satisfy the Substantial Research and Writing Project. 

The course will be organized around a set of essential questions, all vital to the ways we argue about the law. The major schools of legal and constitutional interpretation will be explored.  For example, we will discuss formalism and textualism, purposivism, originalism, process theory, economic analysis, realism and legal pluralism. Each of these theories has an answer to the question, what is the right way to interpret a legal text?  Beyond the text, what modes, or forms of argument are permissible, or mandatory, within our legal tradition?   But each of those inquiries depends on deeper questions. Where does law come from? What, if anything, makes it legitimate? It will also deal with some concrete examples in which those modes of legal argument are tested and deployed:  Does the law create the market economy, or is there a pre-existing template for market economies that frames and limit the interpretation of the laws that govern those markets?  The public/private distinction is central to a liberal society: do we have a consistent or principled way of interpreting those boundaries? How should our understanding of law be affected by the fact that we live in a democratic country, a free-market country, a country with a written constitution? We will consider and approach these questions by way of major schools of legal thought, testing the theoretical approaches against  concrete  problems the legal system has had to address, and the shapes these problems take today. 

Requirements:  The class requirements include regular Sakai postings on the readings.  Those who are using the paper to satisfy the Substantial Research and Writing Paper will write a 25-30 page final paper on an approved topic, going through the normal process of first draft, conference and revision.  Those who are not will write a 15 page final paper, either on an approved topic of your choice or on one assigned by the instructor.    No prior exposure to legal theory, philosophy or political theory is required.

In a workshop led by a faculty member, students will produce an original analytic paper of substantial length (ordinarily at least 30 pages). Papers must involve significant and thorough independent research, be well-written, and provide appropriate sourcing. Participants are free to choose any topic that may be addressed seriously in an article-length piece and that may be written during one semester. Papers produced in the workshop are expected to satisfy the JD or LLM substantial research and writing project requirement.

In the workshop, participants will learn about the conventional features of academic legal writing, conduct research into and hone their topics, write and give each other feedback on first and second drafts, and complete a final draft of their paper. The faculty member leading the workshop will also provide feedback and will, as appropriate to each participant's paper topic, facilitate introductions to other faculty who may be of assistance.

Under Law School Rule 3-1 as approved in May 2022, this course will conform to a 3.5 median unless special circumstances merit exceeding that median, but it will not be subject to distributional bands outside the 3.5 median because grading is not based on a uniform metric.

Attendance is required at the first class meeting and students should come prepared with ideas for possible paper topics. Those wishing to drop the course must do so within one day following the first class.

International LLM students must be pre-certified to enroll. Interested students should check with the Office of International Studies before enrolling.

Bail practices define who is held in jail in the United States.  Most people held in jails are awaiting trial, and in turn, most of those people cannot afford to pay a cash bond to secure their release.  This seminar will examine the unique system of pretrial detention in the United States, from historical, legal, social, and policy perspectives. We will read leading Supreme Court cases, recent civil rights challenges and judicial rulings regarding bail practices, bail reform legislation, and empirical literature regarding the impacts of pretrial decisions and supervision on people's lives and social outcomes. Students will write short reaction papers regarding each of week's reading, and may also choose to write a more substantial research paper if they wish to earn a second credit. 

While enrolled in LAW 512 Bail Practice, students who plan significant research projects on related topics may register for LAW 512W in order to satisfy the JD Substantial Research and Writing Project.

This course is intended as an introduction to experimental research, legal theory, and caselaw on jury decision making.  Although the topic overlaps considerably with areas of basic decision making--e.g., the heuristics and biases literature--the focus will be mostly on applied research looking at the decisions of real (or simulated) jurors.

Lawyers, scholars, business executives, and ordinary people have consistently asked a fundamental question: what is the role of the corporation in society? One way of answering this question is to look to corporate law and consider corporate purpose and its accompanying debates. Yet another way of answering this question involves debates around corporate personhood, especially as they arise in the context of corporate constitutional rights. At bottom, we are continually confronted with the same questions: What rights does the corporation have? How should government regulate the corporation and the power it wields? What is the role of the corporation in American democracy specifically? What does it mean for corporations to engage in social and political activism? Should they do so at all? This course will explore these questions from both a public law and private law perspective, including the ways in which corporate governance can respond to some of these questions. In doing so, this course will bridge a gap between constitutional law and corporate law by focusing on where the doctrines intersect. Students will analyze case law, scholarly literature, and selected popular and practitioner-focused readings in this space.

Throughout this course, there are two overarching questions that we will consider: (1) What should corporate decisionmakers be mindful of when it comes to corporate social and political activity, including the assertion of corporate constitutional rights? and (2) What does the assertion of corporate constitutional rights mean for American democracy and its survival?

The course will be taught as a two-hour weekly seminar, focused on class discussion of assigned readings. Students will complete five three-page response papers and one final fifteen page paper. For an additional credit, students may also fulfill their SRWP requirement with this seminar with my permission and receive an additional credit that counts as an independent study on a credit/no-credit basis.

This course critically assesses the field of human rights advocacy, its institutions, strategies, and key actors. It explores how domestic, regional, and global human rights agendas are set using international law frameworks; the ethical and accountability dilemmas that arise in human rights advocacy; and human rights advocacy concerning a range of actors, including governments, international institutions, and private actors. It addresses the role of human rights in social movements, including in addressing systemic racism, as well as the development of transnational human rights networks. It also considers issues such as how to resolve purported hierarchies and conflicts between internationally-guaranteed rights, efforts to decolonize the practice of human rights, and the ways in which populist and other forces also invoke human rights to further particular agendas. Drawing on case studies within the United States and abroad, it will examine core human rights advocacy tactics, such as fact-finding, litigation, standard-setting, indicators, and reporting, and consider the role of new technologies in human rights advocacy. In examining the global normative framework for human rights, this course focuses on how local, regional, and international struggles draw on, and adapt, the norms and tactics of human rights to achieve their objectives. Evaluation will be based on class participation and a final paper.

This class is a pre-requisite or corequisite for Law 437 International Human Rights Clinic.

While enrolled in Law 543 State Constitutional Law and Localism, students who plan significant research projects on related topics may register for a second credit in order to satisfy the JD Writing Requirement. *LAW 543W must be added no later than 7th week of class.*

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 two-credit colloquium is designed to engage students on questions concerning the enforcement of civil rights (broadly defined) in America. Whereas most law school classes focus on the substance of such rights, this class will examine how civil rights are conceived and enforced – by individual rights-holders, by movement lawyers, or by governments. The colloquium will feature workshop-style presentations of works by scholars working in diverse fields, including civil rights, legal history, federal courts, and state and local government; as well as presentations by advocates involved in the work of civil rights enforcement. Students will be expected to engage with the speaker and with each other in discussion. Faculty interested in these topics also will be invited to attend and participate in the discussions.

Students have two options for completing the requirements of the course:  1) short (5-10 page) papers in response to at least six of the works presented, due in advance of the presentation; or 2) a longer research paper (roughly 30 pages) dealing with a topic of their choice related to the themes of the class.  Students who take the latter option could use the colloquium to satisfy the upper-level writing requirement. Contributions to class discussions will also be a component of the course grade.

China’s development without a western-style rule of law raises numerous questions. Does law matter in China? If yes, how does it work? What roles has law played in China’s economic, social and political development? This seminar covers both law on the books and law in action, emphasizes change and development in understanding law and governance, and takes China as a comparative case study to deepen our understanding of the fundamental nature of legal institutions. This seminar also features guest speakers from Yale, Princeton, Harvard, and other institutions. 

Evaluation: class participation: 30%, students should read assigned readings in advance and be prepared to be on call every week; paper(s): 70%. Students can choose to write five response papers (four pages each) or a research paper (20 pages minimum). Students should submit their research paper proposal by Sept. 23, which explains their research question, methods and plan. Finalized paper is due on December 16. The instructor keeps the discretion of approving or not approving a research paper proposal. Research papers are also qualified to satisfy JD students’ writing requirements (30 pages minimum), if they so choose. 

This course identifies and explores aspects of the American legal system that have effects – both negative and positive – on the ability of people and society to prevent the onset of financial anxiety and economic insecurity.   Set in the context of the COVID-19 pandemic but with analogues in laws that were enacted and implemented in other contexts,  the class will explore the meaning of financial anxiety and economic insecurity and discuss why they matter.  The class will then explore various laws. and their implementation by federal and state agencies, as relevant to financial anxiety and economic insecurity.   Subjects that bear upon financial anxiety that will be explored through the prism of law include housing finance, student loan finance, personal information security and climate security. The legislative response to the COVID-19 pandemic, in particular the CARES Act, will be analyzed in relation to how laws regarding financial anxiety and economic insecurity have been crafted by Congress in the last decade as a response to crises such as the financial and foreclosure crisis of 2008,   With these comparative laws and financial contexts, the class will engage in discussions about the extent to which the American legal system is equipped to handle the challenges of dealing with financial anxiety in the context of the COVID-19 pandemic.  We will discuss financial anxiety in the larger context of consumer debt, agency and regulatory action, and legislative responsiveness as well as differential impacts related to debt, race and gender. The readings will come from law and non-law sources. The class will discuss issues relevant to the legal system and the study of business law and finance generally, including the use of data to illuminate legal problems, the role of lawyers and business actors, and the nature of modern policymaking.

Due to substantive overlap in material, students may not concurrently enroll in Law 288: Consumer Bankruptcy & Debt and Law 586: Current Debates in Bankruptcy Law. However, if you've taken one of the courses in a previous semester and wish to take the other, that will be permitted. Students may not enroll in both Law 288: Consumer Bankruptcy & Debt and Law 555: Law and Financial Anxiety without instructor permission. 

Recent Supreme Court decisions have ushered in a new era of Second Amendment theory, litigation, and politics. Current events keep issues of firearms, gun violence, gun safety, and self-defense constantly in the news. This seminar will explore the Second Amendment and other aspects of federal and state firearms law. Students will be introduced to the historical and public policy materials surrounding the Second Amendment, the regulatory environment concerning firearms, and the political and legal issues pertaining to firearm rights-enforcement and policy design. Evaluation for the seminar will be based on in-class participation and a choice between six short reaction papers or one thirty-page paper.

This course will address the past, present and future of space law – from its origins five decades ago, to the current era of explosive growth in spacefaring, to potential future human settlements on Mars and other planets.  How well does current space law govern this expanding arena, and what kinds of new governance regimes are needed?  The Outer Space Treaty (OST) was signed in 1967 when space exploration was just beginning and focused on the Cold War rivalry between the US and USSR.  Today, 114 states are parties to the OST (with smaller numbers having signed its related accords on registration, liability, and other topics), and space activities are booming.  Missions to the Moon have now been undertaken by the US, Russia, EU, China, India, and Israel, and missions to Mars by the US, EU, China, and the UAE.  The US and Japan have each excavated materials from asteroids and brought samples back to Earth.  In 2022, the US and EU launched DART, the first ever asteroid deflection test. Thousands of satellites are now orbiting the Earth, with many more to be added soon – for scientific, navigation, weather, military, intelligence, communications and commercial uses – including many operated by private actors such as SpaceX/Starlink and Amazon/Blue Origin.  Non-state actors are developing their own terms for space rules.  New space law is being developed, such as the Artemis Accords (2020; signed by 29 countries as of 2023), and the US statute on space resource ownership (2015).  States and private actors are mulling plans to settle human communities on the Moon and Mars.  Is the OST still adequate?  What new approaches are needed?

We will investigate what current laws say about these efforts, and what will or should be the legal rules and norms for future missions and settlements off the Earth.  Among the challenges for space law today are:  reducing dangerous space debris in Earth orbit, and environmental impacts of launches; defining property rights to space resources, and liability for harm, thus motivating investment while avoiding resource depletion and ensuring equitable access; managing international space relations, space-based energy systems, climate engineering, and avoiding war in space; defending against large asteroid collisions and space weather; protecting against harmful contamination of the Earth and of other planets; considering whether to terraform other planets; and charting the legal rules for potential human settlements on the Moon, Mars, or other off-Earth locations (including laws for accidents, crimes, health, environment, marriage, divorce, citizenship, etc.).  Envisioning and debating future space law off-Earth may also offer a useful lens for reforming laws on Earth today.  And we will discuss who should decide these laws – e.g., each government that sends settlers, or each private company, or an international agreement, or the settlers themselves in their new home.  

Students will write short and medium length papers (no exam).  Enrollment limited to 16 (grad/prof students outside the Law School may enroll if ‘space’ allows).  No prerequisites. 

Corruption is one of the major factors inhibiting economic development and undermining governmental legitimacy.  Developed governments generally enforce rules prohibiting domestic corruption, but have historically been less concerned with (and even encouraging of) foreign government corruption.  The United States passage of the Foreign Corrupt Practices Act in 1977, which prohibits covered entities from bribing foreign officials, represents a major shift in this policy.  In the last fifteen years, most other major economies and economic institutions (the IMF, the World Bank) have followed suit, although enforcement has been inconsistent.  This seminar will examine the origins and evolution of this effort to regulate firms' relationships with foreign government officials.  The seminar explores the history, economics, and policy behind anti-corruption efforts and the major challenges ahead.  The seminar will engage academic articles that address the economic effects of corruption, the politics of anti-corruption enforcement, the variation in current anti-bribery agreements (the UN Convention Against Corruption and the OECD Anti-Bribery Convention), and influence of these rules on foreign investment and trade.  The seminar is designed to be very participatory, with students leading discussion. 

Students will be evaluated on a series of critique papers, leading a class discussion, and class participation. If students wish to write a paper on a topic related to the course materials, they may request the opportunity to complete an additional  two credit independent study.  A final paper cannot replace the critique papers.

NOTE: An additional 2 credits are available for students who wish to write a longer paper in order to satisfy the JD or JD/LLM Upper-Level Writing Requirement. Students wishing to take this option should enroll in Law 558W Foreign Anti-Bribery Writing Credit. These credits will count towards the Independent Study Research Credit Limit (Rule 3-12) *LAW 558W MUST be added no later than 7^thweek of class.*

While enrolled in Law 558 Foreign Anti-Bribery Law, students have the option to take 2 additional credits in order to satisfy the JD or JD/LLM Writing Requirement. These credits will count towards the Independent Study Research Credit Limit (Rule 3-12). This section will meet in-person on schedule to be determined. The instructor will meet online with any student who prefers that. Students will be placed in groups of 2 or 3 students for a writing group. The instructor will meet with each writing group separately. *LAW 558W MUST be added no later than 4th week of class.*

This seminar will focus on the process of imposing sentences in criminal cases, administering punishment, and attempting rehabilitation of convicted criminals. The course will first provide background regarding the purposes of punishment and the history of mandatory sentences, presumptive sentences, and sentencing guidelines, and focus on some of these issues in more detail through the use of a expert guest lecturers and a tour of the Federal Correctional Facility in Butner, NC. Students will be expected to participate meaningfully in the lectures, guest speakers and field trip, and produce a research paper on a related topic.

The Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments) are cornerstones to what has been described as our nation’s “Second Founding.”   Although students may be familiar with discrete clauses of these amendments from a general constitutional law or federal courts class, this seminar offers a chance to study the Reconstruction Amendments in more detail, and as a unit.   We will become acquainted with the key figures, events, and primary documents that surround the drafting, ratification, interpretation and enforcement of these Amendments.   We will consult the work of luminaries such as Frederick Douglass, Elizabeth Cady Stanton and John Bingham, as well as contemporary sources like newspaper articles, congressional reports, and the Proceedings of the Black National and State Conventions.    We will also examine select secondary works by legal scholars and historians that shed light on these amendments both descriptively and theoretically.  

Students may enroll in the course for 2 or 3 credits.  Evaluation for the 2 credit course will be short reflective papers and class participation.  Evaluation for the 3 credit course will be short reflective papers, class participation, and a research paper suitable to satisfy the substantial writing requirement. 

This class explores international environmental law, one of the fastest growing fields of international cooperation. In 1972, there were only a smattering of international environmental treaties. Today, hundreds of agreements have been negotiated, covering such diverse topics as acid rain, depletion of the ozone layer, climate change, protection of biological diversity, desertification, and transboundary movements of hazardous wastes and chemicals.

This course will provide a general introduction to the basic concepts and mechanisms of international environmental law. The overarching question we will examine is: What role can law play in addressing international environmental problems? More specifically, we will ask:

• Why do states cooperate in developing international environmental norms? What factors promote or hinder cooperation?
• What legal mechanisms or approaches facilitate the development of international environmental standards?
• What role do science and expertise play in international environmental cooperation?
• What types of international environmental standards are most effective? How do we evaluate effectiveness?
• What incentives do states have to comply with international environmental standards? What disincentives?

The course will be structured in roughly two parts.  In the first part of the course, we will discuss the background, history, and political economy of international environmental law, as well as some of the main principles of international environmental law.  In the second part of the course, we will examine in detail a number of environmental treaties—from areas such as ozone protection, climate change, marine pollution, fisheries protection, and biodiversity—in an effort to understand how international environmental law works, and doesn’t.  Students will be expected to participate in class discussions and write a 20+ page research paper on a topic of their choice. 

This seminar will examine how legal advocacy shapes law and public policy at the federal level, with an evolutionary focus on the strategic use of litigation and regulation opportunities to develop various legal doctrines. It will draw upon case histories of public interest litigation, administrative law advocacy, legislative development, and popular opinion strategies. Each weekly seminar will focus on one or two legal concepts that resonate beyond health law alone but have been developed and adapted by the various tools of health care advocacy. It will trace progression from an initial foundational case to more contemporary echoes in litigation and regulation. Topics will include the commerce power and federal mandates, standing, severability, statutory interpretation, federalism, antitrust application to health care professions, judicial review of administrative practices and policies, waivers and administrative discretion, public health mandates, ERISA, information transparency, religious freedom, and the power of the purse. Our class will examine how attorneys and their allies can play either offense or defense, or even switch roles, as the stages of policy debates shift. It will include an introduction to a host of contemporary issues in health law and policy that carry broader lessons for other advocacy efforts. The seminar will provide a balanced representation of competing viewpoints while showing how respective sides can engage in various regulatory and litigation activities to advance, negate, or alter the status quo. Study of the diverse and often-shifting legal problems encountered by a single industry, particularly one as important and complex as health care, may appeal to students generally interested in public policy and in law and economics, not just health care, as well as those interested in sharpening their skills in legal advocacy through involvement in litigation and administrative rulemaking. Relatively early selection of potential paper topics is advised.

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).

Faced with myriad health, safety, environmental, security and financial risks, how should societies respond?  This course studies the regulation of a wide array of risks, such as disease, food, drugs, medical care, biotechnology, chemicals, automobiles, air travel, drinking water, air pollution, energy, climate change, finance, violence, terrorism, emerging technologies, and extreme catastrophic risks. (Students may propose to research other risks as well.)

Across these diverse contexts, the course focuses on how regulatory institutions deal with the challenges of risk assessment (technical expertise), risk perceptions (public concerns and values), priority-setting (which risks should be regulated most), risk management (including the debates over "precaution" versus benefit-cost analysis, and risk-risk tradeoffs such as countervailing harms and co-benefits), and ongoing evaluation and updating.  It examines the rules and institutions for risk regulation, including the roles of legislative, executive/administrative, and judicial functions; the challenge of fragmentation and integration; the roles of oversight bodies (such as judicial review by courts, and executive review by US OMB/OIRA and the EU RSB); and the potential for international regulatory cooperation.

The course examines these issues through a comparative approach to risk regulation in the United States, Europe, and beyond (especially those countries of interest to the students in the course each year).  It examines the divergence, convergence, and exchange of ideas across regulatory systems; the causes of these patterns; the consequences of regulatory choices; and how regulatory systems can learn to do better.

This is a research seminar, in which students discuss and debate in class, while developing their own research.  We may also have some guest speakers.  Students' responsibilities in this course include active participation in class discussions, and writing a substantial research paper.  Students’ papers may take several approaches, such as analyzing a specific risk regulation; comparing regulation across countries; analyzing proposals to improve the regulatory system; or other related topics.

This course is Law 590, cross-listed as Environ 733.01 and PubPol 891.01.  Graduate and professional students from outside the Law School should enroll via those Environ and PubPol course numbers, and may contact the Nicholas School registrar, Erika Lovelace, e.love@duke.edu, or the Sanford School registrar, Anita Lyon, anita.lyon@duke.edu, with any questions about enrollment.  (The Law School does not use “permission numbers.”)

Issues in the legal regulation of sexuality and gender identity are among the most contested in US law today. Issues which either have been litigated in US courts in recent years or are currently being litigated include the ability of same-sex couples to marry, people’s access to contraception or abortion, as well as the ability of LGBTQ persons to access health care, public accommodations, employment, and education without discrimination. This course takes an interdisciplinary approach to the investigation of the legal regulation of human sexuality and gender identity. It examines the historical and jurisprudential foundations of these legal constructs with insights developed through feminist and queer theory. These disciplines will be deployed to better understand the scope of the rights to sexual and gender equality, liberty, and autonomy available to people not only in theory, but in fact, and not only at the national level, but at the state and local levels.

The objective of the course is to introduce students to important issues concerning the theory and doctrine of statutory interpretation through exposure to cutting-edge legal scholarship. The colloquium will feature bi-weekly presentations of works-in-progress by leading scholars of statutory interpretation, legislation, and administrative law. In the week preceding each presentation, students will read and discuss foundational materials (a mix of academic commentary and case law) on topics related to the work-in-progress.

Students may opt to prepare six short (5-10 page) papers in response to each work-in-progress, which would be due in advance of the presentation and used to stimulate discussion. Alternatively, students may write one longer research paper (roughly 30 pages) dealing with a topic of their choice related to the themes of the class. Students who take the latter option may use the colloquium to satisfy the upper-level writing requirement.

“Access to justice” (sometimes denominated “A2J”) is a multidimensional concept that eludes easy definition. This course will use the term expansively, to capture the ways in which our civil legal system does or does not respond to the legal needs of ordinary people.
This course will examine the structural obstacles that impede access to civil justice as well as contemporary opportunities for reform. Access barriers can have a variety of sources. Barriers can be doctrinal (e.g., the civil right to counsel), practical (e.g., courts’ ability to accommodate non-English-speaking litigants), economic (e.g., the rise of binding arbitration), or political (e.g., limited funding for legal aid offices), and nearly all are multifactorial. Similarly, opportunities for improvement can be found in doctrine, institutional design, community engagement, and technology. Compared to a course on substantive law, our focus will be on the institutional, procedural, and practical dimensions of the access problem.

The course will be divided into roughly three components. In Part I, we will consider theories and doctrines of civil legal access. In Part II, we will consider institutional and procedural features that shape access to our civil legal system, as well as the roles of different actors and constituencies in the civil justice system, including: lawyers and the legal profession; self-represented litigants; community organizations; courts; and non-judicial government institutions. In Part III, we will consider a handful of “pressure points” in access to civil justices—that is, areas of the law where legal needs are especially significant, and where access is especially challenging. Among the areas will consider will be family law, housing law, consumer law and consumer bankruptcy, and immigration law. Solutions and opportunities for change will be discussed throughout all three parts of the course.

Students will be evaluated on the basis of class participation, four response papers and a research proposal.

This two-credit seminar will examine the extent to which the criminalization of abortion in the aftermath of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), together with 21st century surveillance, compromises or eliminates the physical, decisional, and informational privacy of women and people who can become pregnant.

We will review the history of the Supreme Court’s contraception and abortion cases and carefully read Dobbs. We will learn about the historical criminalization of abortion and pregnancy outcomes in the US and related surveillance. We will then examine current state laws criminalizing abortion, defining a fetus as a person, and creating civil liability schemes, and discuss how these laws affect privacy. We will learn about the laws that protect (and fail to protect) privacy in our modern information economy and consider the ways privacy law intersects with abortion law. In this context, we will consider both commercial surveillance and surveillance by law enforcement.  Other topics will include: the privacy implications of medication abortion and the current litigation that threatens its continued availability in the US; the extent to which providers, aiders and abettors, and women who self-manage abortion may be subject to prosecution in ban states; the increasing legal conflicts between shield states and ban states; the effects of criminalization on the privacy of the physician-patient relationship and the associated disincentives for seeking reproductive health care; the implications of laws purporting to control, limit or prohibit access to or dissemination of information about abortion in ban states; and attempts to affect or restrict individuals’ movement within and between states to obtain care.

Both privacy and abortion law are rapidly changing environments in the United States, and attention to current developments in both arenas will be part of the class. We will make every effort to address and incorporate developments as they occur. Assignments will include interactive online comments and responses about the readings, a research project and presentation on the developing law in a particular state, and a writing assignment. There is no final exam.

This course is not open to students who took Law 611.45 - Readings: Privacy in a Post-Dobbs World in Fall 2022.

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.

This course will offer an extended exploration of the earliest legal materials known to human history (beginning with the Laws of Ur-Namma) and, arguably, the ancient world’s most important legal materials for the history of law in the Western tradition—namely, the Bible. The course thus provides students with wide exposure to the history of law, indeed its very roots (at least for the Western intellectual tradition), while at the same time affording access to the long and complicated interrelationships of law and religion that are evident already in the ancient world and that continue to the present day, not least (for example) in debates over the Ten Commandments. In these ways, the course should prove helpful and informative, not only in terms of legal history and development, but also in moving toward a better understanding of at least some of the dynamics surrounding religious law and/or religious groups’ and individual adherents’ relationship(s) to law.  Students will be evaluated on class participation, including tracking and presenting on a legal topic (e.g., status, property, family, intention, homicide, etc.) across the semester, and either a series of shorter papers or a longer research paper to satisfy the SRWP.

This course will begin by exploring the historical structure of incentives in music and the changing economics of music production, including the preconditions for thinking of music as "property" and the gradual shift from patronage to a market-oriented system. It will then proceed to examine music's unusually complex and increasingly fraught relationship with copyright law. The fundamental notions of originality and illicit copying are at odds with both functional limitations and long-standing aesthetic practices in music, such as the long history of accepted borrowing. As a result, there is an unusual body of music-specific case law that features intriguing circuit splits, vigorous disputes about expert testimony and prior art, and specialized doctrinal issues. Students will gain an in-depth knowledge of these issues, and their application in prominent cases involving the songs "Blurred Lines," "Stairway to Heaven," and Katy Perry's "Dark Horse," as well as pending disputes over Lizzo's "Truth Hurts" and "Baby Shark," and then apply this knowledge in a mock trial. The course will also cover the complicated licensing schemes that attach to different uses of music, from traditional revenue streams to fresh disputes regarding royalties for new uses such as ringtones and streaming services. This portion will include a discussion of the new Music Modernization Act. Finally, the class will conclude with an in-depth examination of the ongoing debates about how both the law and business practices might adapt to the new musical forms (such as sampling and remixing) and business models (such as do-it-yourself distribution) enabled by digital technology. Throughout the semester, the course will include a special focus on current and ongoing disputes, issues, scholarship, and proposals.

The writing for this course may be used to satisfy the JD Substantial Research and Writing Project Requirement.

This course is intended to appeal to any student who seeks a judicial clerkship or aspires to be a judge, or who simply wants to learn more about how and why judges write judicial opinions. Students will consider the complexities of being on the bench, including judges' relationships with the public, with lawyers, with other judges, and with their clerks. The students will try their hands at formats and styles unique to clerking or judging, including a bench brief, an analytic paper, and an appellate-court opinion.