Digital Commons Network^™

Crisis Pricing, John F. Duffy, Richard M. Hynes

Emory Law Journal

Extraordinary times beget extraordinary measures. Multiple national emergencies during the past quarter century have generated a pitched debate as to whether, and to what extent, a crisis justifies deviations from fundamental legal rules. That debate has often focused on constitutional law and has produced sharply divergent views. Some theorists advocate a “business-as-usual” approach, eschewing emergency deviations, but societies rarely hold that course. More pragmatic scholars would permit some emergency measures but also defend fundamental social structures that have great value even during emergencies.

Emergencies, however, pose challenges not only to constitutional rules but to law generally, including the basic structures …

Safety Whistleblowing, Benjamin L. Cavataro

Emory Law Journal

When companies fail to do the right thing, critical safety-law violations often go unchecked. Using previously unstudied records, this Article provides the first critique of a core component of the federal consumer product safety whistleblower regime created by Congress in 2008.

This Article reveals why and how the current law—which provides protections only to employee-whistleblowers who are retaliated against—has failed to protect consumers from death and injury. First, documents obtained via the Freedom of Information Act provide evidence suggesting that the current program fails on its own terms. Very few workers have filed complaints; the number of successful complaints is …

Farewell, Feres: Does The Camp Lejeune Justice Act Overturn The Feres Doctrine?, Megan E. Rohn

Emory Law Journal

In 1950, the Supreme Court held in Feres v. United States that soldiers cannot sue the government for injuries incurred “incident to service.” This holding set a precedent for denying suits by injured soldiers and their families, and the precedent became known as the Feres Doctrine. Over time, the Feres Doctrine has been expanded and abused to universally dismiss lawsuits by soldiers for negligence, medical malpractice, sexual assault, and intentional torts including sexual assault. Because the original decision did not adequately define “incident to service,” the Feres doctrine has been applied differently in different judicial circuits, causing confusion and drawing …

The New Constitutional Challenge To Qui Tam, Emily Mitchell

Emory Law Journal

Following the June 2023 Supreme Court decision in United States ex rel. Polansky v. Executive Health Resources, Inc., the ability of qui tam relators to litigate False Claims Act actions faces renewed challenges on multiple constitutional grounds. Specifically, in his Polansky dissent, Justice Thomas raises a novel Article I concern that Congress does not have the authority to partially assign the government’s litigation claim to relators, thus leaving them without standing to sue. Defendants in False Claims Act cases have already begun raising Thomas’s constitutional arguments in federal courts. What is heralded as the government’s most effective tool to …

Defying Goldilocks: Why The Flsa Collective Action Notice Standard Set Forth In Lusardi Is “Just Right”, Maguire Tausch

Emory Law Journal

Since the 1980s, federal district courts have applied a lenient standard under § 216 of the Fair Labor Standards Act of 1938 (FLSA), allowing plaintiffs to more easily notify “similarly situated” coworkers of an employer’s potential minimum wage and overtime violations. But recent circuit court decisions have contested this lenient standard. And today, three approaches exist for sending notice to “similarly situated” coworkers hoping to form an FLSA collective action: one lenient, one strict, and one attempting to chart a middle ground. Challenges to the lenient standard threaten workers’ abilities to vindicate their rights and uphold their inherit dignity, eroding …

Rethinking Misdemeanor Incompetence, Susan A. Mcmahon

Emory Law Journal

The competence to stand trial system is a “slow-moving tsunami” that has grown exponentially in recent years, capturing far more people than jurisdictions have the capacity to handle. As a result, individuals who are incompetent become trapped in pretrial competence purgatory, often detained in jail for months or even years. The harms of this system can be tragic. Competence detainees have died by suicide, starvation, and beatings. They are placed in solitary confinement, experience neglect and abuse, and deteriorate mentally and physically while confined. Often, these individuals are accused of misdemeanors. Often, they go through the competence process only to …

Pitching For Reform: Cangrejeros' Push To Level The Legal Playing Field By Challenging Baseball's Antitrust Exemption, Justin P. Chaljub

Fordham Journal of Corporate & Financial Law

For over one-hundred years, professional baseball has enjoyed an antitrust exemption unique among American major sports leagues, stemming from Supreme Court decisions in Federal Baseball and its progeny. This exemption has significantly influenced the evolution and structure of Major League Baseball (MLB). Despite extensive criticism and challenges for judicial and legislative reform, the exemption persists today.

However, new efforts have emerged to comprehensively disrupt this framework. In 2023, Nostalgic Partners was brought and structured to reach the U.S. Supreme Court. Plaintiffs anticipated they would lose at the lower court levels and garnered widespread support for the Court to grant a …

The Federal Reserve’S Fight Against Covid-19: A Study Of The Corporate Bond Intervention, Noah Seilgson

Fordham Journal of Corporate & Financial Law

In response to the COVID-19 pandemic, the Federal Reserve (Fed) embarked on an unprecedented mission to stabilize the U.S. economy as businesses shut down. One emergency Fed facility, the Secondary Market Corporate Credit Facility (SMCCF), was used to purchase corporate bonds and corporate bond exchange-traded funds (ETFs) in the secondary market. This extraordinary measure, which injected liquidity into the corporate bond market, aimed to mitigate economic fallout for large companies. Purchasing corporate bonds marked a departure from previous Federal Reserve interventions, but the statutory authority was the same as had been used in past crises: Section 13(3) of the Federal …

Company Districts, C.J. Suglia

Fordham Journal of Corporate & Financial Law

Special districts that are owned or controlled by private entities and act almost uniformly like a company town can be dubbed a “company district.” These special districts, similar to historical company towns, have autonomy over the districts, control the local government, and only have to answer to the state government. Historical company towns like Pullman, Illinois and Hershey, Pennsylvania had almost canonical command over the land within their boundaries. Company districts operate their business similar to a company town—in a city that the private entity controls, but do not have employees living on-site. Company districts benefit by being immune to …

Gilead: Municipal Liability For Punitive Damages Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

The 1968 Fair Housing Act (“FHA”) has always been understood to apply to local governments, which have proved to be among the most frequent and significant violators of this law, especially in their opposition to housing of particular value to racial minorities and persons with disabilities. Yet not until the Second Circuit’s decision last year in Gilead Community Services, Inc. v. Town of Cromwell did an appellate court approve an FHA-based punitive-damage award against a municipality. Before Gilead, district courts had generally blocked such awards, applying § 1983’s immunities to protect local governments and their officials from the FHA’s …

How Grand Jury Secrecy And Bias Protects And Perpetuates Police-Suspect Impunity, Ilana M. Friedman

Law Faculty Scholarly Articles

This Article proceeds in four parts. Part I introduces the theoretical frameworks for various questions involving police-suspect grand juries, including the structure and function of contemporary grand juries, the law surrounding examinations into an officer’s use of force, modern prosecutorial influences, findings from social psychologists on the impacts of diversity on jury decision-making practices, and how police-suspect grand juries implicate unique political pressures.

Part II presents a description of original methods of data collection. To investigate this setting, forty-seven in-depth, semi-structured interviews with twenty-one respondents in five field sites around the country was conducted. Respondents included civilians and legal

professionals …

Confronting The Duty To Capitalize In Veil-Piercing, Douglas C. Michael

Law Faculty Scholarly Articles

In corporate law, the doctrine of “piercing the corporate veil” allows courts to hold shareholders personally liable for corporate obligations. The doctrine—which now also applies to entities other than corporations—has been widely criticized as imprecise and unworkable. I respond to that criticism in the area of veil-piercing law which remains most intractable—the case of the tort victim who remains unsatisfied after exhausting corporate assets. Although most commentators have eschewed talk of any duty owed by the business owner to vest the business with sufficient assets, I argue that courts and legislatures should recognize—confront—such a duty. I look to negligence law …

Deceptive Exploitation: Deepfakes, The Rights Of Publicity And Privacy, And Trademark Law, Michael D. Murray

Law Faculty Scholarly Articles

This article addresses the application of right of publicity, right of privacy, and trademark law to the problem of deepfakes. It will explore the routine and not so routine ways that personality and persona attributes are exploited in traditional privacy contexts and publicity contexts. It will also examine the use of First Amendment defenses in legal actions traditionally associated with the exploitation of celebrities, sports figures, and other persons under state law theories of name-image-likeness exploitation, as well as and federal trademark law theories of false endorsement and false designation of origin.

Part I provides an introduction and background to …

History, Tradition, And Voter Registration, Joshua A. Douglas

Law Faculty Scholarly Articles

History and tradition are dominating the Supreme Court, which has invoked history and tradition to curtail some rights, such as abortion, while using it to elevate other rights, such as the right to bear arms. Might history and tradition also cause the Court to strike down new restrictions on the right to vote, even if doing so would cut against the current Court’s narrow protection of voting rights? Disputes over voter registration restrictions will pose that very question. Many states have recently implemented onerous rules on voter registration, especially targeting third-party voter registration organizations. Congress is also debating the SAVE …

Gender Disparity In Social Security, Kathryn L. Moore

Law Faculty Scholarly Articles

Facially neutral, the U.S. Social Security system structurally discriminates against women because it prefers those who successfully fulfill the traditional male breadwinner role rather than the traditional female caregiving role. Overall, women receive lower worker benefits, are much more likely to claim spouse and surviving spouse benefits, and are more dependent on Social Security for their retirement benefits than are men.

This Article assesses Social Security’s disparate treatment of women and how Social Security might be reformed to enhance benefits for women. It begins by providing a broad overview of Social Security benefits. It then discusses how women and couples …

The Migration Of Abolition Theory, Matthew Boaz

Law Faculty Scholarly Articles

This Article considers whether and how theories of abolition developed by criminal law scholars are transferrable to the realm of immigration enforcement. A key question is how abolitionist principles might be employed in support of critiques of the United States’ immigration regulatory regime in the same way that these principles have been deployed in denouncing racialized policing and an injurious, industrialized prison system.

This Article makes two contributions: First, it identifies and illuminates a methodology adopted by critical and decarceral criminal law scholars: (i) denouncing the harms of a structural system, (ii) identifying the normative justification(s) for this system, and …

John Roberts’ Supreme Court: The Triumph Of Partisanship And Ideology Over Precedent, David Schultz, Jacob Bourgault

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

Space For The Departed: Burial, Land Scarcity, And Bone-Ash Apartments In China, Xinyi Wu

Pitzer Senior Theses

The rise of bone ash apartments in China reflects a layered response to urban land scarcity, shifting funeral policies, and real estate speculation. As the state mandates cremation and restricts private cemetery development, traditional burial customs are increasingly reshaped by spatial limitations, economic pressures, and political regulation.

For some families, bone ash apartments function as modern ancestral halls—domestic spaces for remembrance and ritual continuity. For others, they represent a pragmatic investment strategy, offering long-term storage of ashes within assets that retain market value.

This thesis examines how urban planning, state funeral policy, real estate dynamics, and the disintegration of neighborhood …

From Mallory To Morality: The Compatibility Of Registration-Jurisdiction Laws With The Dormant Commerce Clause, Matthew J. O'Hara

Buffalo Law Review

In June 2023, the Supreme Court handed down its decision in Mallory v. Norfolk Southern Railway Co., a case that threatened to cause the largest shift in personal jurisdiction law since Daimler AG and Bristol-Myers Squibb. While the Court upheld Pennsylvania’s registration jurisdiction law under the Due Process Clause and International Shoe’s “fair play and substantial justice” standard, Justice Alito’s concurrence opined that the law may violate the Dormant Commerce Clause (DCC). This Comment argues that registration-jurisdiction laws, which permit States to assert general personal jurisdiction over out-of-state businesses merely because they have registered to do business in the State, …

The State[S] Of Confession Law In A Post-Miranda World, Eve B. Primus

Journal of Criminal Law and Criminology

Police interrogators often use lies, threats, subterfuge, and psychological pressure to coerce vulnerable suspects to speak. These tactics produce false confessions, contribute to racial injustice, and undermine the legitimacy of the criminal process. Despite a documented need for better regulation, theU.S. Supreme Court has watered down constitutional protections in the interrogation room, signaling its intent to delegate most regulation of police interrogation practices to the states. Reformers and scholars must think about how best to push states to fill the void left by the absence of federal oversight.

This Article catalogues four different state approaches to regulating confession law: procedural …

Crimes Without Law: Administrative Crimes And The Nondelegation Doctrine, Nicolas Elliott-Smith

Journal of Criminal Law and Criminology

The future of the nondelegation doctrine is clouded with uncertainty. Despite the Supreme Court’s insistence that the nondelegation doctrine is an axiom of constitutional law, the doctrine remains an illusory constraint on Congress. Indeed, almost a century has passed since the Court invalidated a congressional delegation under the nondelegation doctrine. But several Justices appear eager—or at least willing—to revive the nondelegation doctrine.

This Comment charts an originalist path forward. It primarily argues that the original meaning of legislative power restrains Congress from delegating legislative authority to write criminal law. The constitutional enactors believed that core private rights—to life, liberty, and …

Towards A Federalism(S) Framework Of Punishment, Sheldon A. Evans

Journal of Criminal Law and Criminology

Federalism and its impact on criminal punishment is foundational to understanding the failures of mass incarceration. Scholars studying the negotiation of power between the federal and state governments have highlighted the increase of cooperative agreements that allow these levels of government to accomplish mutually beneficial outcomes for their overlapping constituencies. In the context of criminal punishment, however, such cooperation has devolved into a race to the bottom in a bipartisan push to punish. Consequently, the modern cooperative era of federalism has facilitated mass incarceration in many respects as a policy vehicle to accomplish a national tough-on-crime agenda.

This Article argues …

The Unknowns Of The Knowledge Requirement: Revisiting The Deliberate Indifference Standard In Prisoner Healthcare, Malina J. Simard-Halm

Journal of Criminal Law and Criminology

In the 1976 decision Estelle v. Gamble, the Supreme Court held that “deliberate indifference” to significant health needs of prisoners violated the Eighth Amendment. The standard’s knowledge requirement, however, ensured that prisoners were not guaranteed healthcare under the constitutional standard; rather, the constitutionality of healthcare in prisons would be tethered to the mental state of prison officials. This Article seeks to demonstrate that correctional standards of healthcare occupy an incoherent space in constitutional law. By analyzing the legal standard and the application of the knowledge requirement, this Article exposes the theoretical inconsistency and inadequacy of the deliberate indifference standard—and …

Probation Without A Home: How Probation Maintains Barriers To Successful Completion While Homeless, Olivia K. Babin

Journal of Criminal Law and Criminology

Following the Supreme Court’s decision in Grants Pass v. Johnson, national attention is being brought to discussions about the criminalization of homelessness and the experiences of homeless people in the criminal legal system. Community supervision (probation and parole) is an oft-forgotten portion of the criminal justice system, despite there being nearly triple the number of people on parole or probation than the number of people incarcerated in the United States. Probation specifically is seen as an alternative to incarceration. Some view it as a more humane punishment than incarceration; others believe probation is far too lenient and sentenced too often. …

Institutional Structures Of Penal Inequality, Alexandra Natapoff

Journal of Criminal Law and Criminology

The U.S. penal apparatus is a bundle of wildly divergent practices. Police in some cities use more force than others. Prosecutors in some jurisdictions file charges automatically while others screen carefully. Public defenders in some counties lack zeal while others provide high quality representation. Offices that share the same name and perform the same basic legal functions—“police,” “prosecutor,” “public defender,” “criminal court”—actually operate according to highly disparate legal, professional, and normative standards. These differences give rise to a stratified criminal process in which a minority of defendants and cases are handled lawfully with attention and care, while a much larger …

Islamic Finance, Commercial Law, And Economic Justice: Apocalyptic Challenges To The Global Order, Ali Rod Khadem

Emory International Law Review

This Article engages with the heated debates about the Islamic finance industry, which range from praise as an ethical model of ESG principles to sharp criticism as a vehicle for financing terrorism. Offering a novel lens, this Article examines several case studies of Islamic thinkers and movements that have disrupted global politics, exploring how they deploy apocalyptic ideology to promote vastly different visions of future economic orders. Some of these case studies reinterpret key concepts from Islamic commercial law—like unjust enrichment, limited liability partnerships, insurance, almsgiving, and inheritance—while others call for a return to abandoned practices, such as slavery, discriminatory …

Accommodating Disabilities During Arrests: Toward A Model Law To Improve Police Response To Mental Health Crisis, Michael Harel

Emory International Law Review

Policing people with mental illness (PWMI) presents a persistent global challenge. Although PWMI do not have a greater propensity for violence, they are disproportionately killed during police encounters. Using Australia as a case study, this Comment argues that use-of-force laws are inadequate in these situations because they defer excessively to officer discretion—failing to account for how officers often escalate encounters with PWMI by neglecting appropriate crisis-response tactics or by misperceiving PWMI behavior as violent, even when that behavior reflects mental health symptoms rather than actual threats. Current legal standards often excuse such perceptions, but properly trained officers should be expected …

Crimes Of The Past, Present, And Future: Considering The Global Problem Of Microplastic Pollution And The Potential For Success Within The Public Trust Doctrine, Rose Heppner

Emory International Law Review

Microplastic pollution is a global and transboundary issue—one that international states have failed to properly address through regulatory bodies, multilateral treaties, and nonbinding conventions. Despite efforts by the international community to reduce plastic pollution, the problem has been exacerbated exponentially year over year by an ever-expanding plastic industry. The U.N. Intergovernmental Negotiating Committee on Plastic Pollution is currently leading discussions for the most promising solution: a binding treaty targeting the full lifecycle of plastic. Unfortunately, pro-plastic industry groups and lobbyists have been granted a seat at the table, and negotiations have yet to produce a final treaty draft.

Although legislation …

Hidden In Plain Sight: Plyler V. Doe Under Siege, Dana Kit

Student Works

No abstract provided.

The Advertising Pipeline: Priming Today’S Youth To Be Tomorrow’S Heavy Rollers, Alison Opdyke

Student Works

No abstract provided.