Duke Law Journal

A bimonthly law journal edited by a student board. A third of each issue consists of student notes dealing with current legal developments, and the remaining content is devoted to articles and comments by professors and practitioners. Generally one issue

Articles from Vol. 62, No. 3, December

Artful Good Faith: An Essay on Law, Custom, and Intermediaries in Art Markets
ABSTRACT This Essay explores relationships between custom and law in the United States in the context of markets for art objects. The Essay argues that these relationships are dynamic, not static, and that law can prompt evolution in customary practice...
Custom and the Rule of Law in the Administration of the Income Tax
ABSTRACT From the early years of the federal income tax to the present, the Internal Revenue Service (IRS) has engaged in what might be termed "customary deviations" from the dictates of the Internal Revenue Code, always in a taxpayer-favorable...
Custom, Contract, and Kidney Exchange
ABSTRACT In this Essay, we examine a case in which the organizational and logistical demands of a novel form of organ exchange (the nonsimultaneous, extended, altruistic donor (NEAD) chain) do not map cleanly onto standard cultural schemas for either...
Custom, Normative Practice, and the Law
ABSTRACT Legally binding custom is conventionally analyzed in terms of two independent elements: regularities of behavior (usus) and convictions of actors engaging in the behavior that it is legally required (opinio juris). This additive conception...
Distinguishing the "Truly National" from the "Truly Local": Customary Allocation, Commercial Activity, and Collective Action
We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what...
International Adjudication and Custom Breaking by Domestic Courts
ABSTRACT This Essay identifies a fundamental but overlooked tension between international adjudication and the evolution of customary international law (CIL). According to the traditional understanding, the evolution of CIL requires one or more...
Norms and Law: Putting the Horse before the Cart
ABSTRACT Law and society scholars have long been fascinated with the interplay of formal legal and informal extralegal procedures. Unfortunately, the fascination has been accompanied by imprecision, and scholars have conceptually conflated two very...
Order without Judges: Customary Adjudication
ABSTRACT Scholarship on custom and law has largely focused on the creation and enforcement of informal rules, demonstrating and in some cases endorsing the existence of "order without law." But creating and enforcing rules are only two of the three...
The Custom-to-Failure Cycle
ABSTRACT In areas of complexity, people often rely on heuristics--by which we broadly mean simplifications of reality that allow people to make decisions in spite of their limited ability to process information. When this reliance becomes routine...
Tradition as Past and Present in Substantive Due Process Analysis
ABSTRACT Tradition is often understood as an inheritance from the past that has no connection to the present. Justices of the U.S. Supreme Court on both ends of the ideological spectrum work from this understanding, particularly in analyzing cases...