2024-03-29T05:23:58Z
http://scholarship.law.duke.edu/do/oai/
oai:scholarship.law.duke.edu:faculty_scholarship-1628
2010-09-16T21:27:22Z
publication:etd
publication:readership_test
publication:student_works
publication:faculty_scholarship
Recognition and Enforcement of Foreign Intellectual Property Judgments: Analysis and Guidelines for a New International Convention
Oestreicher, Yoav
Thesis
2004-01-01T08:00:00Z
Law
S.J.D. dissertation, submitted April 2004
Yoav Oestreicher, Recognition and Enforcement of Foreign Intellectual Property Judgments: Analysis and Guidelines for a New International Convention (2004) (S.J.D. thesis, Duke University School of Law)
https://scholarship.law.duke.edu/faculty_scholarship/700
oai:scholarship.law.duke.edu:etd-1000
2019-12-13T17:04:58Z
publication:etd
publication:readership_test
publication:student_works
Interregional Recognition and Enforcement of Civil and Commercial Judgments: Lessons for China from US and EU Laws
Huang, Jie
2010-06-16T07:00:00Z
2010-08-06T07:00:00Z
Dissertation - Open Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Ralf Michaels
Paul D. Carrington
Paul H. Haagen
udicial assistance, judgement recognition, interregional law
Judicial assistance
China
European Union countries
Civil Procedure
Law
<p>Judgment recognition and enforcement (JRE) between US sister states, between EU member states, and between Mainland China, Hong Kong, and Macao, are in the category of “interregional JRE.” This Dissertation is a comparative study and focuses on what lessons China can draw from the US and the EU to develop a Multilateral JRE Arrangement between Mainland China, Hong Kong, and Macao.</p>
https://scholarship.law.duke.edu/etd/1
oai:scholarship.law.duke.edu:etd-1001
2018-12-05T16:23:35Z
publication:etd
publication:readership_test
publication:student_works
Terrorism: A Question of Law and Justice
Al. Nafisah, Abdulrhman Hassan
1980-01-01T08:00:00Z
2018-10-08T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
George C. Christie
Horace B. Robertson, Jr.
Terrorism--Law and legislation
Terrorism (International law)
Criminal Law
International Law
Law
<p>No abstract available.</p>
https://scholarship.law.duke.edu/etd/2
oai:scholarship.law.duke.edu:etd-1002
2018-12-05T16:30:55Z
publication:etd
publication:readership_test
publication:student_works
Multinational Companies and Kuwait National Policy
Al-Shammari, Tamah S.
1980-06-01T07:00:00Z
2018-10-08T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Kazimierz Grzybowski
James D. Cox
International business enterprises--Law and legislation
Kuwait
Commercial Law
Law
<p>No abstract available.</p>
https://scholarship.law.duke.edu/etd/3
oai:scholarship.law.duke.edu:etd-1003
2018-12-07T17:21:49Z
publication:etd
publication:readership_test
publication:student_works
International Economic Integration and Mechanisms for International Dispute Settlement: The Case for a Permanent Tribunal for the Central American Common Market
Niehaus-Bonilla, Walter
1993-04-01T08:00:00Z
2018-10-09T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Herbert Bernstein
International economic integration
International Trade Law
Law
<p>No abstract available.</p>
https://scholarship.law.duke.edu/etd/4
oai:scholarship.law.duke.edu:etd-1004
2018-12-07T17:54:50Z
publication:etd
publication:readership_test
publication:student_works
Perspectives of Foreign Bank Supervision: The U.S. Supervisory Regimes and Other Models
Wang, Xiaqiu
1994-05-01T07:00:00Z
2018-10-10T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Foreign banks and banking--Law and legislation
Banks and banking
Banking and Finance Law
Comparative and Foreign Law
Law
https://scholarship.law.duke.edu/etd/5
oai:scholarship.law.duke.edu:etd-1005
2018-12-05T16:59:08Z
publication:etd
publication:readership_test
publication:student_works
Financial Liberalization and Internationalization: The Korean Experience
Ko, Dong Won
1996-05-01T07:00:00Z
2018-10-10T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Lawrence G. Baxter
James D. Cox
Raj K. Bhala
Banking law
Korea (South)
Banking and Finance Law
Law
<p>For the past two decades, there have been rapid and fundamental changes in the worldwide banking and financial industries through financial and technological innovations. These significant changes have increased the pressure on all countries to liberalize their financial markets. In Korea, as the country’s economy expanded and the financial environment changed rapidly, the financial system has experienced a substantial transformation in line with moves to enhance the competitiveness and efficiency of the financial industry. As part of those reforms, financial liberalization and internationalization have been implemented since the early 1980s.</p>
<p>During the periods of economic development in the 1960s and 1970s, Korean financial institutions were heavily regulated. Major commercial banks were nationalized, and banking institutions had no autonomy in their management. Interest rates were also heavily controlled, and the Government subjugated the central bank. Direct monetary control methods were preferred in order to control money supply, and banks were forced to deal with “policy loans” under the direction of the Government.</p>
<p>The tight financial restrictions have cause many adverse effects. To rectify these problems and at the same time to further develop the financial industry, financial liberalization and internationalization have been pursued. Major commercial banks were privatized, and entry barriers for financial institutions were significantly lowered to promote competition in the financial industry. Managerial autonomy of banks was substantially restored. Interest rate deregulation has also been sought, and the scope of business of financial institutions has been expanded. Foreign exchange controls have been relaxed to a considerable degree, and capital markets have been gradually internationalized. Furthermore, various measures to open financial markets have been undertaken, along with the financial liberalization and internationalization. In the early 1990s, the Korean Government launched a financial reform plan to restructure the financial industry and to implement drastic measures for liberalizing and internationalizing the financial markets in a more systematic way.</p>
<p>The thesis not only analyzes and evaluates the financial liberalization and internationalization in Korea, but also describes the Korean financial system. The thesis concludes by making some recommendations for the future desirable direction of financial liberalization and internalization in Korea. First, this thesis strongly argues that the independence of the Korean central bank should be secured a soon as possible because the independence of the central bank is a crucial element for pursuing the financial liberalization and internationalization. Second, this thesis recommends that the Korean Government should adopt a universal banking system as the optimal model of the future Korean banking system, because universal banking helps improve bank competitiveness through the diversification of business. Finally, this thesis urges the Korean Government to adopt a risk-adjusted premium system, rather than a flat rate premium scheme, in implementing the bank deposit insurance system, because the flat rate system causes “moral hazard” problems.</p>
https://scholarship.law.duke.edu/etd/6
oai:scholarship.law.duke.edu:etd-1006
2018-12-07T17:39:43Z
publication:etd
publication:readership_test
publication:student_works
The Constitutional Protection of Social Rights in Israel and the United States
Ortal, Avraham
1998-03-16T08:00:00Z
2018-10-12T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
[Laura Underkuffler]
Civil rights
Civil Rights and Discrimination
Comparative and Foreign Law
Law
https://scholarship.law.duke.edu/etd/7
oai:scholarship.law.duke.edu:etd-1007
2018-12-05T17:02:07Z
publication:etd
publication:readership_test
publication:student_works
Intellectual Property Protection: The Public-Private Cooperative Organization
Ahviphan, Pakvipa
2001-07-01T07:00:00Z
2018-10-12T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
David L. Lange
H. Jefferson Powell
John M. Conley
Intellectual property (International law)
Thailand
United States
Comparative and Foreign Law
Intellectual Property Law
Law
https://scholarship.law.duke.edu/etd/8
oai:scholarship.law.duke.edu:etd-1008
2018-12-07T17:51:41Z
publication:etd
publication:readership_test
publication:student_works
The Panoramic Theory: A Corporate Opportunity Doctrine for Anglo-New Zealand Law - Building on U.S. Insights
Scott, Struan
2001-05-01T07:00:00Z
2018-10-23T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Deborah DeMott
Corporation law
Trusts and trustees
Business Organizations Law
Law
<p>No abstract available.</p>
https://scholarship.law.duke.edu/etd/9
oai:scholarship.law.duke.edu:etd-1009
2018-12-05T16:42:10Z
publication:etd
publication:readership_test
publication:student_works
A Comparative Analysis of Canadian and American Law Relating to the Preservation of the Confidentiality of Settlement and Mediation Discussions
Forsythe, Gail H.
2001-11-01T08:00:00Z
2018-10-23T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Professor Vidmar
Professor Metzloff
Mediation
Dispute Resolution
Dispute Resolution and Arbitration
Law
<p>No abstract available.</p>
https://scholarship.law.duke.edu/etd/10
oai:scholarship.law.duke.edu:etd-1010
2018-12-07T17:47:27Z
publication:etd
publication:readership_test
publication:student_works
Corruption: Its Treatment Under International Law
Posadas, Alejandro
2003-03-04T08:00:00Z
2018-10-24T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Michael Byers
Political corruption
International economic relations--Corrupt practices
International Trade Law
Law
https://scholarship.law.duke.edu/etd/11
oai:scholarship.law.duke.edu:etd-1012
2018-12-05T16:39:26Z
publication:etd
publication:readership_test
publication:student_works
Balancing Commitment and Flexibility at the WTO: Proposals for a New Safeguard Mechanism
Chamratrithirong, Jaratrus
2008-01-01T08:00:00Z
2018-11-01T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Joost Pauwelyn
World Trade Organization
Risk management--Law and legislation
Contracts
Law
<p>This dissertation examines a central problem in any institution at domestic, regional, and international levels: the relation between commitment and flexibility. Specifically, how does one achieve an optimal balance between the two that would make the commitment credible, and at the same time flexible enough to allow parties to translate that commitment into practices? At the international level, the question concern how to best formulate the commitment in a way that would serve the need for legal security and stability, and at the same time flexible enough to be effectively binding on states that are diverse politically, economically, and socially. Intended as a thought experiment to propose a conceptual framework for a possible institutional response, this dissertation (1) selects concepts and theories of the safeguard mechanism as the foundation for an alternative and (2) uses the tension between commitment and flexibility in the World Trade Organization (WTO) as an example of the problem and how the proposed conceptual framework could be worked out. The dissertation proposed for a new WTO “universal safeguard mechanism,” alternatively through “the safeguard plus,” “the single safeguard,” and “the super safeguard” approaches. The results arrived at in the course of this work show that the proposed mechanisms help address tensions between commitment and flexibility.</p>
https://scholarship.law.duke.edu/etd/13
oai:scholarship.law.duke.edu:etd-1013
2018-12-07T19:28:56Z
publication:etd
publication:readership_test
publication:student_works
European Research Infrastructure Consortiums: Privately Ordered and Publicly Funded Research Commons for Data
Ritch, Heather J
2011-01-01T08:00:00Z
2018-12-07T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Reichman
Law and legislation Databases
Law
https://scholarship.law.duke.edu/etd/14
oai:scholarship.law.duke.edu:etd-1014
2018-12-07T19:57:11Z
publication:etd
publication:readership_test
publication:student_works
Cumulative Creativity : From the Oral-Formulaic Tradition to Digital Remix
Frosio, Giancarlo F
2012-12-01T08:00:00Z
2018-12-07T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Reichman
Intellectual Property
Law and Legislation Digital Media
Intellectual Property Law
Law
https://scholarship.law.duke.edu/etd/15
oai:scholarship.law.duke.edu:etd-1015
2018-12-07T20:11:06Z
publication:etd
publication:readership_test
publication:student_works
Scandinavian Private Law: Nationalism, Realism, and Instrumentalist in Private Law
Goksor, Rasmus
2014-01-01T08:00:00Z
2018-12-07T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Ralf Michaels
Francesca Bignami
Ulf Bernitz
Civil law
Civil Law
Law
<p>This study focuses on Scandinavian private law to provide a deepened understanding of the European integration of the Scandinavian states. Since the creation of the EU and its predecessors, these states have shown resistance to deepened European integration. Remarkably, in private law, resistance has been assigned primarily to Scandinavian features separate from the Scandinavian states. I examine private law and, in particular, what role the Scandinavian identity in private law has had for the reception of EU private law harmonization in the region.</p>
<p>Private law exists in society and the study borrows from political science and identity theory to explain the formation and the success of the Scandinavian identity in private law. At the same time, private law has historically carried far-reaching autonomy relative to the state in the region. Private law theory has sought to maintain such autonomy and provides a way to approach broader questions on the content of Scandinavian private law and the changing role of private law in a post-national world.</p>
<p>I examine private law scholarship, statutes, and case law over the past two centuries and place them into their socio-political context. The material provides a narrative of the changing nature by which Scandinavian legal actors have understood private law and its relation to the state and the meaning of the Scandinavian identity.</p>
<p> In the context of EU private law harmonization, very few legal writers have challenged the historic state-centralism of private law that existed in the nation states. Instead, they have debated whether the EU should act more or less like a state. In a post-national Europe, however, the role of the state is changing and so is its relationship to private law. Scandinavian private law emerges particular because it has existed beyond the state and raises novel questions for how to deal with conflicting rules and systems of law within the EU. The dissertation highlights the important role of the legal community and its interplay with society for creating private law.</p>
https://scholarship.law.duke.edu/etd/16
oai:scholarship.law.duke.edu:etd-1016
2018-12-07T20:26:07Z
publication:etd
publication:readership_test
publication:student_works
A Social Psychological Perspective on the Decision-Making Processes of Trial Judges in Taiwan
Chin, Mong-Hwa
2014-12-08T08:00:00Z
2018-12-07T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Neil Vidmar
Administration of Criminal Law
Judicial process
Administrative Law
Judges
Law
<p>This thesis explores Taiwanese trial judges’ decision-making processes and their perceptions of the reforms to the criminal justice system. It integrates an interview-based qualitative survey and a body of knowledge in the field of social psychology to identify, analyze and provide possible solutions to these problems. It focuses on five different aspects of the system: the judges’ power to actively gather evidence; the confusion of identity between judges and prosecutors; the deliberation process among judges and issues regarding the incorporation of lay participation; issues related to consensual procedures; and the sentencing decision-making process.</p>
https://scholarship.law.duke.edu/etd/18
oai:scholarship.law.duke.edu:etd-1017
2019-01-29T17:02:18Z
publication:etd
publication:readership_test
publication:student_works
A Theory of Ethical Copyright
Sun, Haochen
2014-06-20T07:00:00Z
2019-01-29T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Jedediah Purdy
James Boyle
Laura Underkuffler
Copyright, Fair use
Copyright Fair use
Intellectual Property Law
Law
<p>This dissertation puts forth a theory of ethical copyright. It considers the possibility of creating two new ethical functions of copyright law. These new functions would empower copyright law to protect the user’s collective right to make fair use of copyrighted materials and enforce the copyright holder’s responsibilities. Both proposals not only evince the cardinal importance of the public interest, but also open up new avenues of protecting and enhancing the public interest.</p>
<p>Chapter One of the dissertation examines the ethical crisis looming large in copyright law and practice. Chapter Two considers the first new ethical function of copyright law by proposing that fair use should be redefined as a collective user right. Chapter Three discusses the second new ethical function of copyright law that will require the law to enforce copyright holders’ responsibilities. Chapter Four further explores how the ethical copyright theory can further promote the protection of the public interest, by embodying pluralistic values in copyright law and offering new approaches for dealing with the conflict of values in copyright law.</p>
https://scholarship.law.duke.edu/etd/17
oai:scholarship.law.duke.edu:etd-1018
2019-01-30T14:19:07Z
publication:etd
publication:readership_test
publication:student_works
Constitutionalizing Religion and Religious Freedom: A Comparative Study of Indonesia, Malaysia, and Sri Lanka
Shah, Dian Abdul Hamed
2014-10-07T07:00:00Z
2019-01-30T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Donald L. Horowitz
Laurence R. Helfer
Ralf Michaels
Freedom of religion
Constitutional law
Constitutional Law
Law
<p>This dissertation examines how and when constitutions may support or undermine the protection of religious freedom in Indonesia, Malaysia, and Sri Lanka. The constitutional arrangements on state-religion relations and religious freedom vary across all three countries under study, but so does the degree of religious freedom violations. For example, in Indonesia and Sri Lanka, there have been violent incidents of societal abuses of religious freedom resulting in deaths, serious physical injuries, and property destruction. Such incidents are uncommon in Malaysia. By contrast, state-enforced restrictions on religion and religious freedom have been more prominent in Indonesia and Malaysia than in Sri Lanka. In all three countries, however, there are instances in which particular constitutional provisions have been invoked to justify, directly or indirectly, violations of religious freedom, especially where minorities are implicated. For instance, in Indonesia, a law that criminalizes ‘deviant’ religious practices and interpretation was justified to advance the values of the <em>Pancasila’s</em> principle of the belief in the one and only God; in Malaysia, there is a growing body of case laws that approve the notion that the constitutional establishment of Islam as the state religion trumps the exercise of religious freedom.</p>
<p>Cases like these illustrate that there has been a divergence from the spirit, purpose, and original understandings behind the constitutional arrangements adopted in all three countries. What explains these trends and the malleability of constitutional provisions guaranteeing the right to religious freedom? This dissertation offers two main arguments. First, the existence of strong political institutions – namely, the judiciary and the executive – that are independent, impartial, and committed to the rule of law is central to the protection of religious rights. The second argument centers on the role of electoral politics. This dissertation shall demonstrate that the lack of political incentives for the protection minorities, exacerbated as it were by the political manipulation of religion, may shape how ruling governments and political parties respond to religious freedom violations.</p>
https://scholarship.law.duke.edu/etd/19
oai:scholarship.law.duke.edu:etd-1019
2019-09-24T17:23:28Z
publication:etd
publication:readership_test
publication:student_works
Joint Criminal/Civil Actions as an Alternative to Criminal Restitution Orders: A Constitutional and Procedural Analysis
Lin, Huei Huang
1987-01-01T08:00:00Z
2019-02-20T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Sara Beale
Constitutional Law, Civil Actions
Legal status
laws
etc Victims of crimes
Civil Rights and Discrimination
Law
https://scholarship.law.duke.edu/etd/20
oai:scholarship.law.duke.edu:etd-1020
2019-10-01T15:58:46Z
publication:etd
publication:readership_test
publication:student_works
A Textbook Problem: Providing Open Educational Resources as Public Goods
Rens, Andrew
2017-01-01T08:00:00Z
2019-02-20T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
James Boyle
Copyright, Educational resources, Open educational resources
Fair use
Copyright
Education Law
Intellectual Property Law
Law
https://scholarship.law.duke.edu/etd/22
oai:scholarship.law.duke.edu:etd-1021
2019-02-20T18:45:39Z
publication:etd
publication:readership_test
publication:student_works
Market Discipline in the Post‐Crisis Banking System: A Proposed Collaborative Approach and Its Theoretical Application in China
Tsang, Cheng-Yun
2015-04-23T07:00:00Z
2019-02-20T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Lawrence G. Baxter
James D. Cox
Steven L. Schwarcz
Banking, Market discipline
Banks and banking--Law and legislation
Banking and Finance Law
Law
<p>This dissertation focuses on an urgent need to rethink the role of market discipline in the regulating of the contemporary banking ecosystem, in the light of the implications of the Global Financial Crisis and the recent developments in global financial reforms. It proposes a new regulatory approach, the “Collaborative Market Discipline”, developed upon a review of the current literature on banking regulation, and the revisiting of complexity theory and New Governance scholarship. This novel approach aims to help policymakers harness the disciplinary power of financial markets through a theoretical framework, and a collaborative regulator‐industry process of standards‐setting. It is then applied to the Chinese banking system, arguably the world’s greatest potential source of financial instability. It is hoped that the policy recommendations that emerge from the theoretical application of the proposed regulatory approach can help inform the ongoing financial reforms in China.</p>
<p>This dissertation contributes to the literature in the following respects: First, it fills a gap in the literature by offering the first post‐Crisis, systematic review of market discipline theory. Second, it proposes an innovative, operable regulatory approach to help policymakers vitalize market discipline through enhancing regulator‐industry collaboration. Third, it presents a re‐visitation of the market nature of the contemporary financial ecosystem through the interdisciplinary lens of mainstream market hypotheses and complexity theory. Fourth, relying on the principles of New Governance scholarship, it makes out a case to posit the urgent need for the better balancing of the powers that govern the modern financial ecosystem. Fifth, it offers an overarching review of the post‐Crisis evolution of the Chinese banking system and its regulatory landscape. Sixth, it conducts an in‐depth investigation of the Chinese shadow‐banking system through a logically consistent analytical framework. Lastly, it advocates that market discipline must be the pivot in the addressing of the primary regulatory challenges in China, and that adoption of the proposed Collaborative Market Discipline will serve as the operational framework of that pivot.</p>
https://scholarship.law.duke.edu/etd/21
oai:scholarship.law.duke.edu:etd-1022
2019-09-30T14:36:46Z
publication:etd
publication:readership_test
publication:student_works
Banking Regulation in the Gulf Cooperation Council and Malaysia: A Model for Harmonizing Islamic Banking Law
Alasiry, Salman M.
2017-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Lawrence G. Baxter
James D. Cox
Steven l. Schwarcz
Banking law
Banking law (Islamic law)
Malaysia
Middle East--Persian Gulf Region
Banking and Finance Law
Law
<p>Islamic banking has come of age in the last three decades. It is a banking system derived from the established norms of Islamic Law, the Shariah. Its core doctrine is promoting socio-economic justice and morality by constraining unfair transactions involving riba (largely defined as interest) and/or gharar (excessive/speculative uncertainty). Many Islamic jurists and economists have relentlessly advocated for the superiority of Islamic banking and its ability to serve the common weal if carried out in good spirit.</p>
<p>In lamenting the moral depravity of the conventional "mainstream" banking system, promoters of Islamic banking often describe interest as a cancer plaguing the global economy. Paradoxically, the cure envisioned by Islamic banks has taken the form of interestlike Islamic alternatives; thereby curing cancer with another form of cancer. The same economic effects of interest-based loans can be replicated using ostensibly Islamic modes of financing.</p>
<p>Despite its phenomenal growth, Islamic banking has been beset by a host of problems, primarily the lack of a harmonized regulatory framework. The vitality of legal harmonization is a recurrent theme in the literature on Islamic banking. This dissertation sets out to explore this theme, examine the progress in putting it into practice, identify the obstacles it faces, and propose a policy prescription for reform. To that end, it sheds light on the banking systems of the GCC countries (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates) and Malaysia, with particular reference to the regulatory framework of Islamic banking. These jurisdictions host the global hubs and key stakeholders of Islamic banking, rendering them its main global representatives.</p>
<p>The regulatory divergence across these jurisdictions has prompted Islamic banks to establish standard-setting organizations in the interest of aligning the industry's policies and practices. The standards have been useful on economic, but not on religious/ ethical grounds. That is, although they have assisted in reducing transaction costs-a result that could be achieved with little modification to conventional banking standards-they have fallen short of bringing Islamic banks closer to their moral ideals. More important than aligning policies is putting them at the service of their raison d'etre.</p>
<p>This study contends that the existing standardization trend is doomed to failure, as it 1s based on Islamizing conventional banking standards and demanding demonstrably impractical religious/ ethical standards. It finds it perplexing that harmonization is even a concern at this stage when there is not a single authentic Islamic bank testifying to the viability of Islamic banking in its purest form, and serving as a moral exemplar for other banks to emulate. Accordingly, adopting a more fact-based approach, the study puts forth three possible models that can form the nucleus for a harmonized and authentic Islamic banking regime.</p>
https://scholarship.law.duke.edu/etd/24
oai:scholarship.law.duke.edu:etd-1023
2019-09-30T16:58:59Z
publication:etd
publication:readership_test
publication:student_works
Global-Peripheral Music: New Lessons for Reconciling Economic Development With Copyright Law and Practice
Santos Rutschman, Ana
2016-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Copyright
Economic development
Developing countries
Intellectual Property Law
Law
https://scholarship.law.duke.edu/etd/23
oai:scholarship.law.duke.edu:etd-1024
2019-09-30T15:25:12Z
publication:etd
publication:readership_test
publication:student_works
Circling the Behavior of Terrorist Supporters: A Comparative Study of the US and Israel
Itay-Horev, Shimrit
2016-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Criminal liability
Terrorism--Finance
United States
Israel
Criminal Law
Law
<p>This thesis examines the criminal liability of supporters of terrorism in the United States and Israel, examining the current situation, analyzing the problematic issues, and suggesting possible solutions. This thesis argues that supporters should not be seen as one uniform group but rather their culpability should be analyzed according to their specific actions and state of mind. Such a distinction between supporters would ease the burden on investigators, prosecutors, the judicial system and potential suspects. It will also ensure proper due process for supporters while effectively curtailing the risk of additional terrorist attacks.</p>
https://scholarship.law.duke.edu/etd/25
oai:scholarship.law.duke.edu:etd-1025
2019-09-30T16:16:00Z
publication:etd
publication:readership_test
publication:student_works
A Capability Approach to the Patent System
Carbone, Julia
2016-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Patent laws and legislation
Intellectual Property Law
Law
<p>The patent system, in its current incarnation, is over 200 years old. Despite, or perhaps because of, its long history, the patent system has never been firmly grounded in political or moral theory. Over time, scholars and courts have attempted to justify the patent system on utilitarian grounds. These justifications, however, seldom match the actual attributes of patent law, are based on empirical conjecture more than fact, and ultimately fail to account for the diversity of stakeholders engaged in innovation.</p>
<p>The goal of this thesis is to ground patent law, and the patent system more broadly, within a political theory that can accommodate its complexity and conflicts: the capability approach to justice. In order to keep this discussion within reasonable bounds, I limit myself to a discussion of the patent system in relation to the life sciences. Despite this limitation, the theory I sketch out likely has implications for the patent system generally. It provides a guide to determining why, when, how, for whom and what types of rights ought to be granted over the use and dissemination of those forms of knowledge concretized in the goods and services in health care. In other words, this thesis asks what would the patent system in the life sciences with its multiple, conflicting interests and features-look like in a society governed by a capabilities-based approach to justice?</p>
<p>Consistent with capability theory, the patent system can only be justified insofar as it promotes human flourishing, measured through a set of capabilities · I deploy wide reflective equilibrium as a deliberative and iterative approach to theory building. In so doing, I triangulate three case studies covering significantly different subject matter (the development of AZT and treatment of HIV/AIDS, the patenting of genes and genetic diagnostic test, and use of traditional knowledge as it relates to the life sciences in India, Brazil and the United States), background theories, and the principles that underlie the capability approach to justice. Through the analysis, I identify key capabilities on which the patent system consistently acts and the conditions that any patent system ought to work to secure in order to promote human flourishing as well as the mechanisms to secure these conditions.</p>
<p>The result is not only a workable approach to the analysis of patent systems with a great degree of convergence on the essential elements that any patent system must possess, which can then be tailored to suit the needs of a given country. Notably, to promote human flourishing over the long term, the patent system - and relevant institutions - must help ensure that knowledge is produced and shared in a way that places humans at the center, fosters collaboration and trust, gives voice to all stakeholders equally, places priority on respect of sovereignty over harmonization, is transparent and accessible, and supports the public infrastructure necessary to support innovation and sharing.</p>
https://scholarship.law.duke.edu/etd/26
oai:scholarship.law.duke.edu:etd-1026
2019-09-30T16:46:14Z
publication:etd
publication:readership_test
publication:student_works
An Overview of the Policy and Legislation Governing Foreign Direct Investment, Transfer of Technology and Intellectual Property, Protection of the Republic of China (Taiwan): With Special Reference to the Impact of International Law and Agreements, Codes of Conduct, and the U.S. Trade Remedy Laws
Chen, Chin-Hsien
1987-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Foreign Investments--Law and legislation
American Investments--Law and legislation
Intellectual property
Technology transfer--Law and legislation
Taiwan
United States
Intellectual Property Law
International Law
Law
https://scholarship.law.duke.edu/etd/27
oai:scholarship.law.duke.edu:etd-1028
2019-09-30T17:14:53Z
publication:etd
publication:readership_test
publication:student_works
The Constitutional Problem of Subversive Advocacy in the United States and Greece: A Comparison of the Legal Guarantees of the Freedom of Political Speech in Times of Internal Crisis
Tassopoulos, Ioannis
1989-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Freedom of speech
Subversive activities--Law and legislation
Greece
United States
First Amendment
Law
<p>This dissertation studies the problem of subversive advocacy in the American and Greek legal order. The interpretations of the First Amendment secured much broader protection of the free speech values in the United States than in Greece. Applying the sedition laws, Greek courts proved to be very deferential to legislative restrictions of free speech. The dissertation focuses on the parameters that account for those judicial attitudes.</p>
<p>In Greece, subversive advocacy was related to the crises that affected the country in the twentieth century. These crises were so profound that were not contained within the constitutional institutions of the time. As a result the courts could not function, in Greece, as a forum for a peaceful resolution of controversies, striking the right balance between authority and dissent, as they did in the United States. Moreover, theories of social contract and the influence of the liberal ideas made the American constitutional tradition favorably disposed to the values of free speech. By contrast, the Greek tradition was dominated by the juristic conception of the state. Finally, the open character of the American legal system, the teleological interpretation of the Constitution and the Common Law tradition, that emphasizes the actual circumstances of the case at bar, intensifying the contact of American constitutional law with social reality, contributed also to the effective protection of free speech by the American courts. Although the Greek system of judicial review is, technically, similar to the American one, Greece is a Civil Law country, where judges enjoy less power than in the United States. A formal style of analysis and the strong hold of legalism made it difficult for the Greek judiciary to develop a theory of free speech and guidelines for determining when radical political speech is constitutionally protected and when not.</p>
<p>The comparative treatment of subversive advocacy in the United States and Greece indicated the importance of jurisprudence and constitutional theory for the development of free speech law in the two countries.</p>
https://scholarship.law.duke.edu/etd/29
oai:scholarship.law.duke.edu:etd-1027
2019-09-30T17:18:19Z
publication:etd
publication:readership_test
publication:student_works
World Banking Revolution: The Legal Perspective
Yang, Way-Wen
1999-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Banking law
Banks and banking
Banking and Finance Law
Law
<p>The world banking industry has been revolutionized over the last two decades. Its activities have been globalized, creating a truly worldwide market for bank services and deposits. Banking systems and banking markets, both domestic and international, have been undergoing a series of profound changes. Many new financial instruments and techniques have been developed, and existing ones have been modified; new financial markets have been established, and those in existence have been adjusted to meet new demands and new circumstances. Meanwhile, with the growing competition between all types of financial intermediaries, traditional demarcations, both functional and geographic, have faded. The main driving forces of these worldwide changes are innovations in new information technologies, increasing interdependence in the world economy, and the internationalization of finance and the consequent competition in banking and financial services. Against this background, changes in banking legislation and regulation have sometimes encouraged these trends and sometimes adapted to them. In effect, structural changes in world banking markets have led regulators to reconsider traditional approaches to supervision and regulation and to develop new more flexible approaches to bank regulation.</p>
<p>This dissertation explores the major legal aspects of the revolutionary changes in the world banking industry. This dissertation has four broad purposes. The first is to examine in great detail banking regulatory changes ( deregulation and reregulation) taken in two representative countries, the United States and Taiwan, and to identify the economic forces responsible for those changes. The nature of the developments in these markets and relationships between them are scrutinized, as is the impact of the world banking revolution. The second purpose of this dissertation is to explore the implications for regulatory policy of the persistent regulatory changes in these banking markets. Of particular concern are 1) whether these regulatory changes are making these banking systems more compatible with today's global financial marketplace; and 2) whether the regulatory changes are making them more susceptible to a financial crisis. The third purpose is to determine whether changes in these banking systems need to be made, and if so, what · those changes should be. The fourth is to argue for new and appropriate regulatory responses -- harmonization and self-regulation -- to the challenges that will be presented by the economic forces in banking regulation into the Twenty-First Century.</p>
https://scholarship.law.duke.edu/etd/28
oai:scholarship.law.duke.edu:etd-1030
2019-10-02T15:38:36Z
publication:etd
publication:readership_test
publication:student_works
The Prosecution and Punishment of Atrocity Crimes in Perspective: A Comparative Study
Shnaiderman, Nir
2015-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
International criminal law
Crimes against humanity--Law and legislation
Criminal Law
Law
<p>In responding to Atrocity Crimes (generally to War Crimes, Crimes against Humanity, Genocide, Crimes against Peace, Crimes against the Jewish People, and also to some grave forms of the more controversial crimes of Torture and Terrorism) through criminal prosecutions, states and international organizations have routinely departed from the substantive, procedural and evidentiary law applicable in the prosecution of "regular crimes." Typical subjects of such departures have included standards governing subject-matter jurisdiction, hearsay, coerced confessions, attorney-client relations, exparte communications, access to exonerating evidence, ex-post-facto criminalization and victims' rights to attend and influence the trial. Because such departures are a function of identifiable features inherent to Atrocity Crimes, the systematic alteration of legal standards in Atrocity Crime prosecutions is inevitable. The selection of criminal prosecutions as the vehicle to pursue alleged atrocity perpetrators and the departures from legal standards render disadvantages lo all actors involved in the process; namely to the accused, the victims, the prosecuting authorities and the broader national and international constituencies as well; disadvantage to the last include long intervals between the alleged perpetration of atrocities and the conclusion of trials, inaccurate evidentiary findings and consequent expansion of preexisting social gaps.</p>
<p>Those disadvantages will, assuming any plausible policy preferences within a standard range of values, he found, in a range of cases, to outweigh the benefits gained by prosecution and undermine its appropriateness. in identifiable others, though, the potential benefits from such prosecutions, such as the establishment of an accurate historic record, the promotion of obedience to international law standards, the emphasis on the gravity of atrocities and the sense of closure crime-victims could feel would prevail and render the prosecution desirable. The atrocity case studies of the Major Nazi War Criminals, the Krupp Corporation, Adolph Eichmann and Khalid Sheikh Mohammad, and the comparator "regular" cases of Bernard Madoff, Jeffrey Skilling, Lynne Stewart, and the Holy Land Foundation (the last two bearing remote and indirect relation to atrocities) preliminarilv suggest that the incidence of atrocity crime prosecutions should be reduced to something more nearly approaching an optimal level (criteria for which this paper identifies} and reliance upon alternative measures, applicable under the international humanitarian law or the law of human rights, expanded. Such alternative measures include, depending 011 the circumstances and the preferred policy, one or more of the following: Targeted Killings, Indefinite Detentions or Truth and Reconciliation Commissions. In some cases (such as Mohammed et al.), one (or more) of the three is, or would have been, preferable over a flawed prosecution as it can achieve some or all of the goals the last intended to obtain without engaging in Cl/1 enduring process that bluntly deviates from traditional legal standards; in other cases (such as the Major Nazi War Criminals and Krupp) the flawed prosecutions were still desirable only because no alternative legal measure was available at the time. In Eichmann, though, the prosecution was significantly more appropriate regardless of whether other measures existed. In other instances, however, criteria set by this paper suggests, the prosecution of atrocity crimes might be so flawed that it should not be pursued whet her other alternatives are available or not.</p>
https://scholarship.law.duke.edu/etd/31
oai:scholarship.law.duke.edu:etd-1029
2019-09-30T18:01:33Z
publication:etd
publication:readership_test
publication:student_works
Beyond Area-Based Ocean Management
Recio Blanco, Xiao
2015-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
International environmental law
Marine resources conservation--Law and legislation
Environmental Law
Law
<p>The law of ocean management has developed rapidly in the last sixty years. Nations have expanded the body of laws that govern the management of ocean resources, with hundreds of new statutes giving rise to new fields of legal scholarship.</p>
<p>Despite their efforts, regulators have been unable to ensure the sustainable management of ocean resources. For example, regulatory decisions aimed at reducing the number of large fishing vessels have ended up subsidizing an increase in the number of small fishing boats. Laws enacted for the protection of the marine environment have failed to avoid an unprecedented environmental crisis: at the present time, about 85% of global fisheries are either fully exploited or overexploited, and approximately 3000 marine species are threatened with extinction.</p>
<p>A main cause of regulatory failure is that our knowledge of the ocean environment is still limited. Like players in a game of Battleship, regulators make decisions that affect the oceans based on very little information. This dissertation addresses the problems associated with developing effective legal responses in the face of incomplete information. The predicament, while contributing to the complexity of the law of ocean management, also makes it a fascinating area of study open to regulatory innovation.</p>
<p>Two complementary ideas underpin this dissertation: first, that some ocean management practices proposed by other social and natural sciences can be implemented by updating existing legal instruments. Second, it is the role of legal scholarship to incorporate concepts developed by other sciences –such as the need for Ecosystem-Based Marine Management or the importance of stakeholder participation and to transform those concepts into legal principles. Increases in information provided by the sciences, e.g., marine biology or public policy, are essential to avoid future regulatory failures.</p>
<p>This dissertation builds on the dialogue between ocean management law and other ocean studies by focusing on the development and implementation of area-based management. Area-based management theory argues that managing maritime areas in ways that prioritizes uses –including conservation- can ensure that management decisions are sensitive to ecological values and conservation principles. Area-based management’s main focus is to increase the level of information on the oceans and the variety of human uses, and it seeks to balance ecological and economic objectives. This theory has strong support from a broad range of stakeholders, from scholars and NGOs to government agencies and associations of users.</p>
<p>However, despite its advantages area-based ocean management has several limitations. It is a rather new concept, so there is not a unitary definition of the term. Experience with its implementation shows a variety of approaches, with different outcomes, and as a consequence, it is still unclear how area-based management can confront some of the most pressing problems of contemporary ocean resources management. This dissertation addresses the issue by selecting three specific challenges of ocean resources stewardship and proposing legal avenues to convert the theory of area-based management into regulation aimed at solving those problems.</p>
<p>The first article analyzes the problem of non-compliance that affects most fisheries regulations. Although most nations have already introduced sustainable management in their fisheries regulations, most fishers do not identify themselves with those principles and this leads to non-compliance. Using Latin America’s artisanal fisheries as a case study, this section proposes an alternative legal instrument for managing fishing resources that combines area-based management rules, the distribution of property rights, and the implementation of self-regulation measures.</p>
<p>The second article addresses the mismatch between national and ecological boundaries in marine areas, and proposes an international legal instrument for managing ocean resources in international boundary. The analysis identifies the shortcomings area-based management faces to ensure uniform and consistent regulation across boundaries, and suggests the use of Joint Development Agreements (JDAs) to create legally-binding area-based rules for managing marine boundary areas. As a legal instrument, JDAs have been overlooked by most advocates of area-based management, notwithstanding its success in integrating transboundary regulations and enforceable rules for interconnected marine spaces.</p>
<p>The final article acknowledges the challenge of incorporating adaptive management into ocean regulation. It explores the role of area-based management as a legal means to promote technological research and development, providing legal certainty to users while ensuring effective marine life protection. It acknowledges the potential of ocean renewable energy to increase access to electricity in developing countries and proposes the adoption of area-based management policy to streamline research and deployment.</p>
https://scholarship.law.duke.edu/etd/30
oai:scholarship.law.duke.edu:etd-1031
2019-10-02T15:37:43Z
publication:etd
publication:readership_test
publication:student_works
Brazil's Copyright Law Revision: Tropicália 3.0?
Paranaguá, Pedro
2014-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Copyright
Brazil
Intellectual Property Law
Law
https://scholarship.law.duke.edu/etd/32
oai:scholarship.law.duke.edu:etd-1032
2019-10-02T15:36:59Z
publication:etd
publication:readership_test
publication:student_works
From the Digital Library of Babel to Microscopes for the Mind: Overcoming the Legal Obstacles to Mass Digitization Projects
Osterman, Avraham
2013-01-01T08:00:00Z
2019-09-30T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Copyright and digital preservation
Digital media--Law and legislation
Intellectual Property Law
Law
https://scholarship.law.duke.edu/etd/33
oai:scholarship.law.duke.edu:etd-1033
2019-10-02T14:32:06Z
publication:etd
publication:readership_test
publication:student_works
Labor Conflicts and the Role of Lockouts From a Comparative Perspective: A Legal Study of American and German Approaches
Lange, Torsten Joachim
1985-01-01T08:00:00Z
2019-10-02T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Labor disputes
Strikes and lockouts--Law and legislation
United States
Germany (West)
Labor and Employment Law
Law
<p>The subject of lockouts does not seem to present a major issue in contemporary American labor relations. In the Federal Republic of Germany. The permissibility of lockouts has been, during the last two decades, and continues to be a major topic of discussion in the area of labor-management relations. This observation inspired a search for some answers about the role and effects of lockouts in both countries. It was hoped that these answers would explain the seemingly contrasting legal development on the law of lockouts in the United States and Germany.</p>
<p>The study begins with a brief review of the distinctive features of the American and German industrial relations systems for a better understanding of bargaining structures and processes. Since lockouts must be assessed in the broader contest of interest conflicts, the study proceeds with an examination of the historical development and the importance of organized labor conflicts and lockouts in collective bargaining. After analyzing the nature, purpose and various types of lockouts in addition to certain procedural requirements related to the use of lockouts, the study investigates the effects of lockouts on employers, employees, unions, the public and the economy at large. A major part of the research concentrates on the American and German approaches to developing and enforcing the law of lockouts.</p>
<p>The study concludes that in the United States, lockouts are rare because other, more effective employer measures are used to counter strike activity. In Germany, on the other hand, the lockout has become, for the employer, the functional counterpart of organized strike activity and an instrument of practical necessity, especially in major interest conflicts.</p>
<p>The contrasting postwar development in the law of lockouts is reflected by the different use of this employer measure in American and German labor conflicts. Moreover, structural differences in the two industrial relations systems as well as different attitudes and approaches of the bargaining parties further explain the contrasting development in both countries.</p>
https://scholarship.law.duke.edu/etd/34
oai:scholarship.law.duke.edu:etd-1036
2019-10-02T15:27:14Z
publication:etd
publication:readership_test
publication:student_works
Mergers and Acquisitions: Motives, Effects and Policy Implications
Lee, Min-Kyo
1990-01-01T08:00:00Z
2019-10-02T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Consolidation and merger of corporations
United States
Business Organizations Law
Commercial Law
Law
<p>The emergence of large corporations and the separation of ownership from control early in this century resulted in professional managers possessing and wielding the vast discretionary power. Managerial control survived the depression of the 1930s and faced few challenges until 1970s because of the dominance of the U.S. economy in a world devastated by the Second World War. With a growing economy and a booming stock market, managers of large public corporations succeeded in achieving their goal - the maximization of "corporate wealth"- with impunity. They increased their own utility by refusing to exploit opportunities to create value for their shareholders through high dividends of increased leverage. They often undertook many value-decreasing acquisitions - particularly conglomerate acquisitions - that were more often than not effortlessly financed from retained earnings.</p>
<p>The control of large public corporations by autonomous managers with broad discretion is breaking down. That is the clear implication of the unprecedented wave of bust-up takeovers, defensive restructurings and LBOs in the 1980s. This new wave of merger and acquisition activity - fundamentally disaggregative in nature - is driven by the existence of wide disparity between asset values and stock prices. As a result of rapid changes in macroeconomic environment in the 1970s and the early 1980s, the conflict of interests between corporate managers and shareholders became more and more evident/ Indeed, the new development of dissaggregative takeovers can be viewed as a market response to problem caused by the lack of effective control over corporate managers.</p>
<p>One distinct characteristics of the contemporary takeover market is the active participation of financial institutions - pension plans, insurance companies, and mutual funds - which together now own more than 40 percent of all corporate equity. This new concentration of ownership has reversed the dispersion of stock ownership that was crucial to the preservation of managerial power and has helped financial institutions exercise effective control over companies in which they invest.</p>
https://scholarship.law.duke.edu/etd/37
oai:scholarship.law.duke.edu:etd-1035
2019-10-02T14:59:54Z
publication:etd
publication:readership_test
publication:student_works
Corporate and Company Law Trends in the United States and the European Community: Freedom of Incorporation From the "Foreign" Perspective
Piršl, Krešimir
1993-01-01T08:00:00Z
2019-10-02T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Corporation law
Europe--European Economic Community countries
United States
Europe
Business Organizations Law
Commercial Law
Law
https://scholarship.law.duke.edu/etd/36
oai:scholarship.law.duke.edu:etd-1034
2019-10-02T15:15:38Z
publication:etd
publication:readership_test
publication:student_works
The Gulf Cooperation Council Stock Markets: Regulation, Problems and Integration: A Thesis
Al-Sheaibi, Mohammed Abdulrahman
1993-01-01T08:00:00Z
2019-10-02T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Stock exchanges--Law and legislation
Middle East--Persian Gulf Region
Middle East--Persian Gulf States
Banking and Finance Law
Commercial Law
Law
Securities Law
https://scholarship.law.duke.edu/etd/35
oai:scholarship.law.duke.edu:etd-1039
2020-02-18T15:52:25Z
publication:etd
publication:readership_test
publication:student_works
Interdisciplinary Approaches to Constitutional Reasoning
Chia, Wen-Yu
2015-01-01T08:00:00Z
2019-10-03T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Constitutional law
Construction Law
Law
https://scholarship.law.duke.edu/etd/40
oai:scholarship.law.duke.edu:etd-1038
2019-10-03T18:52:18Z
publication:etd
publication:readership_test
publication:student_works
The Entrepreneurial Activity Across Diverse Regulatory Regimes: Promotion, Obstruction and Unintended Consequences of Business Startups' Regulations
Albanyan, Anas S.
2016-01-01T08:00:00Z
2019-10-03T07:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Entrepreneurship
Business enterprises--Law and legislation
Business Organizations Law
Commercial Law
Law
<p>This comparative study examines the relationship between entrepreneurship and institutions in five countries. The term "entrepreneurship" refers to the creation of a new business, and "institution" refers to a set of rules governing the entrepreneurial game. Five institutions were examined in this study: regulation of entry, securities regulations, startup governance and private ordering, taxes and public support, and liquidation mechanisms. These institutions were examined across the United States, Canada, Germany, Japan, and Saudi Arabia.</p>
<p>This dissertation finds that law and informal rules do impact entrepreneurship, and that this impact is not always positive. In certain areas, extensive regulation of, say, securities, can be associated with heightened entrepreneurial activity. This dissertation finds that countries characterized by relatively strict securities regulation in terms of capital formation for startups have higher entrepreneurial activity than countries with securities regulations that arc friendly to startups. With regard to other institutions, such as regulation of entry, too much regulation can deter entrepreneurial activity. This dissertation finds that countries that arc characterized by a liberal regulation of entry regime, such as the United States and Canada, have relatively high new business rates, and countries that are characterized by a strict regulation of entry regime, such as Germany and Saudi Arabia, have large informal economics. This study further finds that countries that have more attractive venture-backed exits offer more flexible laws governing these exits.</p>
<p>Regulations inherently involve delays in timing of the activities governed by such rules, and as a result, risks and costs increase. Also, rigid rules limit startup participants' ability to engage in private ordering, which is the main mechanism by which participants can address risk. While in this context, enabling rules are desirable, they are not silver bullets. Many other factors must be in place so that these enabling rules generate the expected benefits. These other factors include a rich legal community and a high-quality legal system, in addition to cultural factors that make it possible to share control with outsiders. Nonetheless, even in situations where enabling rules are overall desirable, there arc grounds for having mandatory rules, such as when the private ordering generates negative externalities ( e.g., non-compete provisions).</p>
<p>Finally, governments should be very careful when financially supporting the entrepreneurial market because a poorly structured public financial support program can have a negative impact on entrepreneurial activity. While several forms of public financial support are possible, the best model is indirect financing upside leverage. In sum, institutions matter for entrepreneurial activity.</p>
https://scholarship.law.duke.edu/etd/39
oai:scholarship.law.duke.edu:etd-1040
2019-11-18T20:53:40Z
publication:etd
publication:readership_test
publication:student_works
Alternative Approaches to the Consideration of Surveillance of Relationship
Lin, Jiin-Fang
1989-01-01T08:00:00Z
2019-11-18T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Sara Sun Beale
Robert Mosteller
Searches and seizures
Electronic surveillance--Law and legislation
Video surveillance--Law and legislation
Law
https://scholarship.law.duke.edu/etd/41
oai:scholarship.law.duke.edu:etd-1041
2019-12-13T15:50:46Z
publication:etd
publication:readership_test
publication:student_works
China's Approach to International Law as a Rising World Power: An Internal Dynamics Perspective
Jiang, Chaoyi
2019-01-01T08:00:00Z
2019-12-13T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Curtis A. Bradley
China
International law
International Law
Law
<p>This thesis studies China’s evolving approach to international law in the process of its rise to a world power. It does so from the perspective of China’s internal political and legal dynamics, an essential but often sidelined factor that determines a rising China’s aspirations and goals in its relations with the international community, rather than from the external perspective of international relations. The thesis shows that, not only do these internal dynamics have a substantial effect on China’s evolving approach to international law, they have also, in turn, been themselves affected by international law and institutions.</p>
https://scholarship.law.duke.edu/etd/42
oai:scholarship.law.duke.edu:etd-1042
2021-12-03T19:46:26Z
publication:etd
publication:readership_test
publication:student_works
Crime, Judicial Discretion and Reconciliation: A Place for Christian Theology in Criminal Sentencing
Blazs, Kevin Anthony
2019-01-01T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Jack Knight
H. Jefferson Powell
Douglas Campbell
Judges
Law and Christianity
Judicial process
Sentences (Criminal procedure)
Judges
Law
<p>There is no religious test for holding office. A judge takes the bench with a personal worldview and resulting morality in place. That worldview is grounded in some understanding of the ultimate nature of reality which is essentially religious. Can a Christian jurist align his or her sentencing decisions with the redemptive purposes of God, through the exercise of discretion within existing Florida law, and do so exercising authority in good faith and transparency to the community? After considering the core content of Christian theology and the parameters of existing criminal law and procedure, the answer is “yes” under limited circumstances.</p>
<p>Because the law is unsettled in each application, given that it is either indeterminate, subject to competing precedent, or open to the prioritization of legal factors to be weighed, discretion will be exercised and choices will be made by the jurist in every case. The very act of judging will require the consideration of extralegal norms that are religious in nature. This practice is inevitable and thus occurring, is legally permissible, and potentially helpful. For the Christian jurist, having received divine forgiveness is at the core of personal identity, emanates from a specific worldview, and results in corresponding moral norms. That specific worldview and morality, including the imperative to forgive as one has been forgiven, will, may, and should be operative.</p>
<p>Recognizing that the state’s primary interest may not be the reconciliation of the offender to the victim and broader community through forgiveness, current Florida law still allows the Court to properly posture itself to exercise legal analogs to forgiveness, reconciliation, and non-remembrance through the process of plea allocution, the withhold of adjudication, probation, restitution and expungement. It is in the interest of the democratic state to ensure broad participation in the political process and thereby reduce marginalization, polarization, and community fragmentation. While the state’s primary purpose may not be the facilitation of reconciliation and restoration through the criminal justice process, discretion can be exercised by the court in an effort to maximize restorative options under current law and avoid creating unnecessary impediments to the offender seeking personal restoration through a reconciled relationship with God, the Christian community, crime victims and all fellow citizens.</p>
https://scholarship.law.duke.edu/etd/43
oai:scholarship.law.duke.edu:faculty_scholarship-6685
2022-04-28T14:25:28Z
publication:etd
publication:readership_test
publication:student_works
publication:faculty_scholarship
Institutional Choice and Targeted Killing: A Comparative Perspective
Gil, Elad D.
Article
2020-01-01T08:00:00Z
Targeted killing (International law)
Targeted killing
War (International law)
Tulane Law Review
94
4
711
767
Law
<p>For over a decade, the use of targeted killing has been one of the most controversial issues in counterterrorism policy and law. One longstanding debate over this tactic concerns the allocation of decision-making and oversight authority among the branches of government. As attempts to settle this debate through textual and historical sources yield indeterminant answers, scholars tend to examine them through a functionalist prism, asking what institutional structures best serve the interests of national security while ensuring adequate accountability and preventing unnecessary force.</p>
<p>This article, retaining that functionalist framing of that issue, will approach the question through a comparative law analysis. Three of the countries most heavily engaged in global counterterrorism—the U.S., the U.K., and Israel—have adopted substantially different approaches for regulating counterterrorism targeting, each according a primary supervisory role to a different governmental actor: the Executive in the U.S., Parliament in the U.K., and the Judiciary in Israel. This article describes, compares, and critically analyzes these approaches. Drawing on comparative institutional analysis theory, it then examines the findings and reaches three main conclusions. First, that in light of the judiciary’s unique structural perspective and expertise, some judicial involvement in developing the legal standard that guides and constrains government action is desirable. Second, that suboptimal decision-making and illegality due to executive bias are more likely to occur where the executive is accountable only to its own internal oversight mechanisms. And third, that in both presidential and parliamentarian systems, legislators do not have and are unlikely to have any sort of meaningful influence on executive behavior in this domain. The article concludes by suggesting a few possible institutional reforms.</p>
<p>This article is submitted in partial fulfillment of the requirements for the degree of Doctor of Juridical Science (S.J.D.), Duke University School of Law, 2019.</p>
https://scholarship.law.duke.edu/faculty_scholarship/3989
oai:scholarship.law.duke.edu:faculty_scholarship-6687
2020-02-12T18:54:58Z
publication:etd
publication:readership_test
publication:student_works
publication:faculty_scholarship
publication:working_papers
The Margin of Appreciation as a Foreign Relations Law Doctrine
Gil, Elad D.
Working Paper
2020-01-01T08:00:00Z
Law
<p>This article is submitted in partial fulfillment of the requirements for the degree of Doctor of Juridical Science (S.J.D.), Duke University School of Law, 2019</p>
Elad D. Gil, The Margin of Appreciation as a Foreign Relations Law Doctrine (forthcoming 2020)
https://scholarship.law.duke.edu/faculty_scholarship/3987
oai:scholarship.law.duke.edu:faculty_scholarship-6686
2020-02-12T19:39:26Z
publication:etd
publication:readership_test
publication:student_works
publication:faculty_scholarship
Totemic Functionalism in Foreign Affairs Law
Gil, Elad D.
Article
2019-01-01T08:00:00Z
Diplomatic relations--Law and legislation
Harvard National Security Journal
10
316
376
Law
<p>In many Western democracies, and particularly in the United States, foreign affairs are primarily an executive enterprise. The travel ban, the exit from the Irannuclear deal, and the airstrikes against the Bashar al-Assad regime in Syria are just a few recent illustrations of unilateral assertions of presidential power. A large part of the justification for treating foreign affairs differently than other areas of public policy, in which political and judicial checks on the executive are more robust, is functional. Owing to the executive’s relative institutional advantages over the legislature and the judiciary—in expertise, knowledge, speed, unitary structure, and democratic accountability—courts afford the President considerable deference in cases relating to foreign affairs. But there is something deeply flawed in the way judges apply functionalist reasoning in this context. Instead of using functionalism for what it is—a contextual and adaptable paradigm for ascertaining whether and how much deference is desired in order to make the challenged policy or act work best—judges frequently simply rely on the executive’s special competence to apply a de facto presumption of near-total deference. I term this practice “totemic functionalism.”</p>
<p>This Article traces the conceptual underpinnings of totemic functionalism and critically analyzes its pervasive effect in foreign affairs law. Using three case studies and other recent examples, it then shows how totemic functionalism undermines the system of checks and balances, first between the organs of government and then, indirectly, inside the executive branch. As a result, while judicial deference in foreign affairs is often excused with the assertion that other non-judicial checks provide adequate substitute, I show that the near-total deference arising from totemic functionalism insulates the President from any sort of accountability.</p>
<p>This article is submitted in partial fulfillment of the requirements for the degree of Doctor of Juridical Science (S.J.D.), Duke University School of Law, 2019.</p>
https://scholarship.law.duke.edu/faculty_scholarship/3988
oai:scholarship.law.duke.edu:etd-1043
2020-02-18T16:12:36Z
publication:etd
publication:readership_test
publication:student_works
Adaptive Regulatory Impact Assessment: Beyond the Foresight-Hindsight Divide
Ribeiro, Daniel Lima
2018-01-01T08:00:00Z
2020-02-18T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Jonathan B. Wiener
Matthew D. Adler
Edward Balleisen
impact assessment, regulatory impact assessment, adaptive policies, cost-benefit analysis, retrospective review, ex post RIA
Administrative law
Economic impact analysis
Cost effectiveness
Law
<p>Impact Assessment (IA) has evolved to become a multidisciplinary tool aimed at increasing political accountability and promoting better policy decisions. Among other IA tools, Regulatory Impact Assessment (RIA) has gained prominence with its strategic and broad scope (covering agency regulations and all kinds of significant impacts) and structured method. Growing consensus on evidence-based policies as a requirement of good governance and the Better Regulation agenda have also helped propel the diffusion of RIA. A recent trend in RIA systems has been the adoption of an ex post RIA counterpart to the traditional ex ante RIA. In other words, RIA has started to look back. This dissertation examines this recent evolutionary step of IA and argues that while adopting the ex post complement is a step in the right direction, it is ultimately a step that falls short of truly fulfilling RIA normative goals. The foresighthindsight divide between ex ante and ex post RIA exposes the system to the risk of missing the correct timing for policy adjustments, therefore failing to avoid unwanted welfare losses. Also, policy learning is limited. To overcome these problems, the dissertation proposes the idea of Adaptive Regulatory Impact Assessment (ARIA). The dissertation examines the benefits of ARIA, the limitations on ARIA posed by the fragmentation of IA tools, and the literature on the quality of ex ante and ex post RIA. Furthermore, it provides an overview of the techniques and tools that can make ARIA both feasible and promising.</p>
https://scholarship.law.duke.edu/etd/44
oai:scholarship.law.duke.edu:etd-1044
2020-11-12T14:16:20Z
publication:etd
publication:readership_test
publication:student_works
Post-Crisis Financialization Through Product Innovation: Assessing Complexity, Growth & Design In Exchange Traded Funds
Clements, Ryan
2020-01-01T08:00:00Z
Dissertation - Open Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Lawrence G. Baxter
James D. Cox
Elisabeth D. de Fontenay
Exchange traded funds
Financial risk management
Banking and Finance Law
Finance and Financial Management
Law
Securities Law
<p>This dissertation examines emerging risks and regulatory concerns in exchange traded funds (ETFs). It makes four core arguments through four published or accepted (and forthcoming) law review articles, alongside two published blog posts, all of which were written and previously submitted to the SJD Committee during the author’s dissertation research period. These articles are organized herein as dissertation chapters together with a contextual introduction and a summary conclusion which frames the dissertation within the scholarly literature on economic “financialization,” and emerging challenges associated with the growth of large interconnected asset managers.</p>
<p>The four core arguments in this dissertation are as follows. First, ETFs are operationally reliant on the discretionary behaviors of independent financial market intermediaries with instabilities that resemble prior financial products including auction rate securities, portfolio insurance and money market mutual funds. Second, there is growing support that index products (including ETFs, other exchange traded products, and index mutual funds) are contributing to market inefficiency and the formation of collective investor behaviors. Third, ETFs, and their sponsors, are creating deep and complex interconnections between numerous market participants and service providers, down to retail and institutional investors, affecting corporate behaviors and decision making. These connections generate new direct and indirect systemic risk transmission pathways, with unique factors not found in other managed asset products. Fourth, ETFs are incredibly difficult, and in some cases impossible, to accurately compare side-by-side. Product and performance comparisons would be materially improved with standardized website formats and layouts, uniform calculation methodologies, the imposition of an ETF naming convention, standards for sustainable investment products, and a systematized and structured electronic reporting system of key variables to a centrally-hosted data repository.</p>
<p>The dissertation provides extensive support, and a diverse variety of applied case studies, in favor of each of the four core arguments. It also includes a unique (and timely) contextual analysis of the events of March 2020 and the resulting impact on ETFs due to the coronavirus pandemic - including the historically unprecedented intervention in the credit ETF market by the Federal Reserve. Given these four core emerging risks and regulatory concerns, the dissertation provides three recommendations. First, greater regulatory scrutiny and safeguards for giant interconnected asset managers. Second, enhanced controls over credit ETF origination, liquidity transformation, and “cash-like” tradeable investment products. Third, additional investor-focused disclosure reforms to ease ETF product comparisons.</p>
https://scholarship.law.duke.edu/etd/45
oai:scholarship.law.duke.edu:etd-1045
2021-04-19T13:32:50Z
publication:etd
publication:readership_test
publication:student_works
From Freedom of Speech to Information Capability
Huang, Tao
2021-01-01T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Joseph Blocher
Ralf Michaels
Jack Knight
Freedom of speech
Capabilities approach (Social sciences)
Freedom of information
First Amendment
Law
<p>The existing theories of free speech shared flaws in three aspects: they cannot deal with the challenges of the Internet, they account poorly for non-democratic countries, and the perspective of formal right or liberty has shortcomings. With of goal of overcoming the weaknesses of existing theories, this dissertation proposes a new theory which reformulates the freedom of speech as information capability. On the one hand, the new theory will use information, instead of speech or expression, as the central concept; on the other hand, capability will be argued to be more appropriate than right in epitomizing the underlying functions and values of information in the contemporary world. The methodology was borrowed from the capability approach (CA), initially proposed by Amartya Sen and Martha Nussbaum and then developed by other theorists. By applying the capability approach in the free speech field, I endeavor to demonstrate how and what elements of the approach can enrich and reshape our understanding of the freedom of speech, and how the existing theories can thus be reformulated to better cope with the three challenges that I identified.</p>
<p>As I will argue in chapter three, the exact reason for protecting the information capability is that it serves two important functions: instrumental and constitutive. On the one hand, information capability is instrumental for all the other central human capabilities, either through direct promotion or through the facilitation by the public action. On the other, information capability is constitutive for the formation of the capabilities (values) themselves, through the exercise of the public reason.</p>
<p>The information capability includes four parts, as will be elaborated in chapter four: right of control over one’s information (information privacy), right to know (freedom of information), right of access to platforms, and the behavioral rules that governing the public debate. I will divide the conditions of realizing the information capability into two stages: basic and ideal. This four-part/two-stage framework will help guide the decisionmakers—be it judge, government official, or legislator—in making rules and resolving disputes. I provide a sketchy description in chapter five of some of the practical implications of my proposed theory and doctrine. Four cases will be selected for analysis: the EU’s right to be forgotten, the information disclosure laws of China, the blocking of social media platforms, and the Indian hate speech case. They correspond to the four parts of my doctrinal framework. To be sure, those thoughts will be unavoidably preliminary and tentative, since the practical implications will display themselves more fully through discussions and practices in the future.</p>
https://scholarship.law.duke.edu/etd/47
oai:scholarship.law.duke.edu:etd-1046
2021-04-16T20:59:56Z
publication:etd
publication:readership_test
publication:student_works
Beyond Conviction: The Principles and Politics of Criminal Justice in Dealing with Human Rights Violations; A Theoretical and Contextual Inquiry
Haile, Dadimos
2006-01-01T08:00:00Z
Dissertation - Closed Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Madeline Morris
Donald Horowitz
David Gray
Human rights
International Criminal Law
Transitional justice
Human Rights Law
International Humanitarian Law
International Law
Law
https://scholarship.law.duke.edu/etd/46
oai:scholarship.law.duke.edu:etd-1047
2021-09-13T16:26:05Z
publication:etd
publication:readership_test
publication:student_works
Gender-Blind: International Human Rights on Abortion Through Irish Eyes
Ryan, Christine A.
2021-01-01T08:00:00Z
Dissertation - Open Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Human rights
Women's rights
Reproductive rights
Abortion--Law and legislation
Human Rights Law
International Law
Law
Law and Gender
https://scholarship.law.duke.edu/etd/48
oai:scholarship.law.duke.edu:etd-1048
2022-12-19T14:48:51Z
publication:etd
publication:readership_test
publication:student_works
Adaptive Regulation in India- Groundwater, Electric Vehicles, and Health Data
Karthik, Rupanjali
2022-01-01T08:00:00Z
2022-12-16T08:00:00Z
Dissertation - Open Access
Doctor of Juridical Science (S.J.D.)
Duke University School of Law
Ryke Longest
Jonathan B. Wiener
Lori S. Bennear
Environmental policy
India
Environmental Law
Law
https://scholarship.law.duke.edu/etd/49