Digital Commons Network^™

Bad Attempts, Andrew Jensen Kerr

Emory Law Journal Online

We assume that legal concepts are generic and indifferent to facts. But bad attempts at crime (something always unlawful) and bad attempts at art (something almost always lawful) are potentially treated very differently in many U.S. jurisdictions. Surprisingly, the bad attempt at art might be more likely to result in punishment. I draw on notions of capacity and responsibility to suggest why the amateur rapper should be excused for genuine aesthetic attempts that are perceived as threatening. In doing so, I comment on form and formalism in public law, and how principles of criminal law can help to maintain the …

A Scientific Method For International Taxation?, Luiza Leite De Queiroz

Emory International Law Review Recent Developments

Fractioning and fairly distributing parts of a whole is never quite straightforward. Whether we speak of justly portioning and dividing scrambled eggs between siblings or jurisdictional claims over the ocean space between nations, reckoning with the dilemmas of sharing is an integral part of the human experience. Acknowledging that, this essay contends that contemporary discussions on fairness in international taxation ought to be situated within this broader context. It is centrally argued that justly allocating taxing entitlements over cross-border wealth is a task contingent on the same subjective predicaments seen in the division process of any given valuable whole. The …

(Im)Mutable Race?, Deepa Das Acevedo

Faculty Articles

Courts rarely question the racial identity claims made by parties litigating employment discrimination disputes. But what if this kind of identity claim is itself at the core of a dispute? A recent cluster of “reverse passing” scandals featured individuals—Rachel Dolezal and Jessica Krug among them—who were born white, yet who were revealed to have lived as members of Black, Indigenous, or Person of Color (BIPOC) communities. These incidents suggest that courts will soon have to make determinations of racial identity as a threshold matter in disputes over employment discrimination and contract termination. More specifically, courts will have to decide whether …

The Sovereign Citizen Movement: A Comparative Analysis With Similar Foreign Movements And Takeaways For The United States Judicial System, Mellie Ligon

Emory International Law Review

The Moorish Sovereign Citizens Movement began as an offshoot of the overarching Sovereign Citizens Movement in the United States in the 1990s by former followers of the Washitaw Nation and Moorish Science Temple of America. The Moorish Sovereign Citizens Movement follows an anti-government ideology, based in the idea the current American government is illegitimate and has been operating under false pretenses since as early as the 19th century. Though disagreement among the members of the movement regarding what spurred this covert change from a legitimate to an illegitimate government exists, examples of the different catalysts include the U.S. abandonment of …

Pregnancy, Femicide, And The Indispensability Of Legalizing Abortion: A Comparison Between Argentina And Ireland, Agustina M. Buedo

Emory International Law Review

On August 9, 2018, after 16 hours of deliberation, Argentina’s senate narrowly rejected the “Interrupción Voluntaria del Embarazo” bill that would have allowed women the right to terminate their pregnancy during the first 14 weeks. Argentine law currently considers abortion a crime with the exception of two narrowly defined circumstances that are rarely applied. The legalization of abortion is vitally important to the women in Argentina who face an increased risk of femicide. Femicide rates in Latin America are among the highest in the world. Femicide can be linked specifically to pregnant women who could not get an abortion and …

A "Chinese Wall" At The Nation's Borders: Justice Stephen Field And The Chinese Exclusion Case, Polly J. Price

Faculty Articles

First, the sweeping implications of The Chinese Exclusion Case had as much to do with the Supreme Court's concerns about its relationship with both Congress and the President as it did with the Chinese as a disparaged racial group. There are other dimensions beyond race, and one of these was the Supreme Court's view of its role with respect to the other branches of government. Importantly, the Court did not decide the balance of authority between the President and Congress on matters of immigration, an omission that surely lessens its precedential value today.

Second, the Court's pronouncement in the Chinese …

Revenge Pornography And First Amendment Exceptions, Andrew Koppelman

Emory Law Journal

People are marvelously inventive in devising new ways to hurt each other. Some of these new ways involve speech. The Supreme Court has recently declared that speech is protected by the First Amendment unless it is a type of communication that has traditionally been unprotected. If this is the law, then harms will accumulate and the law will be helpless to remedy them. Revenge pornography prohibitions raise a serious free speech problem. They suppress truthful information, and they do so in order to prevent audiences from being persuaded, by that information, to form a viewpoint with which government disagrees: specifically, …

Uefa Financial Fairplay Regulations And European Union Antitrust Law Complications, Valerie Kaplan

Emory International Law Review

Financial struggles among European football clubs were far too common in the last decade. Mismanagement and overspending in the Rangers FC forced the club to go into administration and ultimately liquidate in 2012. The Rangers consistently spent more on players than the club's payroll could afford. The Union of European Football Associations observed the problem and approved Financial Fair Play Regulations (FFP) to fix these financial issues. FFP intends to introduce rationality and stabilize the financial environment of European club football. The structure of FFP makes the regulation illegal under the European Union's competition law. The predicted effect of FFP …

The Dark Heart Of Eastern Europe: Applying The British Model To Football-Related Violence And Racism, Matthew R. Watson

Emory International Law Review

In the summer of 2012, Poland and Ukraine co-hosted the 2012 UEFA European Football Championship. A week before kickoff, BBC's investigative journalism program, Panorama, aired a documentary highlighting pervasive violence, racism and anti-Semitism in the football stadiums in both these nations. Violent and racist hooliganism is not a new phenomenon in Europe, but the images and interviews were shocking as hundreds of thousands fans from all over Europe prepared to travel to Eastern Europe for Euro 2012.

Nothing Certain About Death And Taxes (And Inheritance): European Union Regulation Of Cross-Border Successions, Jennifer Bost

Emory International Law Review

On July 4, 2012, after almost fifteen years of preparatory work, the European Parliament and the Council of the European Union (Council) passed a regulation intended to simplify international inheritance cases. The Regulation addresses issues regarding appropriate jurisdiction, applicable law, recognition and enforcement of decisions, and acceptance and enforcement of authentic instruments for international inheritance (Cross-Border Succession). It also creates a European Certificate of Succession. However, the Regulation expressly does not apply to any tax issues related to inheritance.

Why Bankruptcy?, Richard Levin

Emory Bankruptcy Developments Journal

Thank you for this impressive award, impressive because of the Bankruptcy Hall of Fame luminaries who have previously received it, people who have had a lasting impact on bankruptcy law and practice: Harvey Miller, Professor Frank Kennedy, Judge William Norton, Professor Kenneth Klee, Senator Dennis DeConcini, and Professor, now Senator, Elizabeth Warren, among others. I'm honored to be in their presence, let alone in their company.

Theorizing And Tracing The Legal Dimensions Of A Control Framework: Law And The Arab-Palestinian Minority In Israel's First Three Decades (1948-1978), Ilan Saban

Emory International Law Review

This Article analyzes the main ways in which Israeli law was involved in the lives of Israel's Arab-Palestinian minority in the first thirty years of Israeli statehood'from its establishment in 1948 until the period soon after the first Land Day in 1976. This is a detailed and complex story, which requires a theoretical or analytical key to cut through the complexity and sort out the abundance of data by relevancy and importance. The potential theoretical contribution of this Article derives from the effort to develop such a theoretical or analytical key, and from an attempt to gain a deeper understanding …

"Closet Case": Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren L. Hutchinson

Faculty Articles

This Article argues that the Supreme Courts decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly dermes "sexual identity" as a clinical or biological imposition that exists apart from expression or speech. This Article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual "equality" upon the silencing of gay, lesbian, bisexual, and transgender individuals.

"Cradled On The Sea": Positive Images Of Prison And Theories Of Punishment, Martha Grace Duncan

Faculty Articles

This interdisciplinary study investigates the meanings of incarceration through an analysis of prison memoirs and novels. It argues that many prisoners and nonprisoners exhibit powerful positive associations to penal confinement. The Article draws on psychoanalysis, philosophy, and sociol­ogy to account for the various kinds of attraction that prison exerts. The Article also considers the interrelationships between the analysis of the posi­tive images and three traditional purposes of punishment: rehabilitation, deterrence, and retribution.

Farewell To The Sea Of Doubt: Jettisoning The Constitutional Sherman Act, Thomas C. Arthur

Faculty Articles

This Article proceeds as follows. Part I examines the legislative history of the Sherman Act to discover the policy choices actually made by the 1890 Congress. Part II sketches the development, operation and social costs of the conventional "constitutional" approach which now dominates section 1 adjudication. This Part demonstrates how the Supreme Court's failure to establish a workable methodology for resolving hard cases in the first Sherman Act decisions enabled it later to create the myth that the 1890 Congress made no hard policy choices. It then shows that the lack of a recognized statutory standard inevitably leads to doctrinal …