Law Commons^™

Corporate Response To The War In Ukraine: Stakeholder Governance Or Stakeholder Pressure?, Anete Pajuste, Anna Toniolo

Emory Corporate Governance and Accountability Review

This Article empirically investigates the corporate response to the Russian invasion of Ukraine in the framework of the stakeholder capitalism debate. Some describe corporate leaders’ decision to withdraw from Russia as an example of stakeholder governance, maintaining that they placed social responsibility over profits. Others question the authenticity of corporate support for Ukraine and argue that companies left Russia mainly driven by operational and reputational concerns.

Against this backdrop, we conduct an empirical study of reactions to the outbreak of the war from companies in the S&P500 and STOXX600 indices. We explore whether managers effectively decided mostly on ethical and …

Opening Remarks, Danielle Kerker Goldstein, Mary Anne Bobinski, Samantha Harrell

Randolph W. Thrower Symposium

No abstract provided.

Sweet Old-Fashioned Notions: Legal Engagement With Anthropological Scholarship, Deepa Das Acevedo

Faculty Articles

The study of law, we are told often and generally with approval, has become a potluck to which everyone is invited. Over there stand the historians bearing their retrospectively informed insights; across from them are the experimental psychologists hoisting their pleasingly social-scientific brew; in the corner lurk philosophers chatting calmly over some first principles. The center of the room is quite naturally taken up by the economists, laughing exuberantly over their spread of nifty models, intimidating formulae, and soothing predictions. In the midst of this lively affair, circulating among the invitees like a dutiful host, rejecting nothing, sampling everything, and …

Coase And Accommodation: A Reply, Frederick Mark Gedicks

Emory Law Journal

Many years ago, when I was a fresh-faced appointments candidate hoping to teach constitutional law, my dean at USC recommended some reading to ease me into the scholarly flow. One suggestion—which I took—was The Constitution, the Courts, and Human Rights.[1] I never imagined its author would become a mentor, colleague, and friend.

Several years into my first appointment at a law school in the rural South, I received a note from Michael (whom I had not yet met) telling me that, in a recent speech, he’d quoted something I’d published—a small but characteristically generous gesture that meant everything to …

Retiring Social Security’S (Non)Payment At Death After Eight Decades, Alberto B. Lopez

Emory Law Journal Online

Section 202 of the Social Security Act, which originated in the 1939 Amendments to the 1935 Social Security Act, authorizes monthly benefits payments to an eligible person until the month prior to the month of death. Under this rule, an individual who dies on November 30th at 11:59 pm is not eligible to receive a check for benefits accrued during November because the individual failed to survive one additional minute; eligibility for payment ended on October 31st. After a beneficiary’s death, the Social Security Administration (“SSA”) either prevents deposit of a check for month-of-death benefits or mandates …

Unlimited Medical Liability?, Jessica L. Roberts, Leah R. Fowler, Paul S. Appelbaum

Emory Law Journal Online

No abstract provided.

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Faculty Articles

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

The Sec’S Climate Disclosure Rule: Critiquing The Critics, George S. Georgiev

Faculty Articles

Climate change is an existential phenomenon, which entails a wide variety of physical risks as well as sizeable but underappreciated economic risks. In March 2022, the U.S. Securities and Exchange Commission (SEC) moved to address some of the information gaps related to the effects of climate change on firms by proposing a rule that requires public companies to report detailed and standardized information about important climate-related matters for the benefit of investors and markets. Though the rule proposal was welcomed by many market participants, it was also met with a level of opposition that was unusual in both its intensity …

Protecting State Constitutional Rights From Unconstitutional Conditions, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for …

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

The Corrosive Effect Of Inevitable Discovery On The Fourth Amendment, Tonja Jacobi, Elliot Louthen

Faculty Articles

The Supreme Court has only once, almost four decades ago, addressed the doctrine of inevitable discovery, when it established the exception in Nix v. Williams. Inevitable discovery encapsulates the notion of no harm, no foul—if law enforcement would have discovered unlawfully obtained evidence regardless of a constitutional violation, then the resulting evidence need not be excluded. Nix laid out two simple dictates: the eponymous requirement of inevitability and a corresponding evidentiary burden requiring the prosecution to prove by a preponderance of the evidence that law enforcement inevitably would have discovered the evidence without the violation. Such analysis requires counterfactual …

"With All The Majesty Of The Law": Systemic Racism, Punitive Sentiment, And Equal Protection, Darren L. Hutchinson

Faculty Articles

United States criminal justice policies have played a central role in the subjugation of persons of color. Under slavery, criminal law explicitly provided a means to ensure White dominion over Blacks and require Black submission to White authority. During Reconstruction, anticrime policies served to maintain White supremacy and re-enslave Blacks, both through explicit discrimination and facially neutral policies. Similar practices maintained racial hierarchy with respect to White, Latinx, and Asian-American populations in the western United States. While most state action no longer explicitly discriminates on the basis of race, anticrime policy remains a powerful instrument of racial subordination. Indeed, social …

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …

Beliefs, Information, And Institutions: Public Perception Of Climate Change Information Provided By Government Versus The Market, Cherie Metcalf, Jonathan R. Nash

Faculty Articles

Despite scientific consensus over the threat posed by climate change, governmental actions remain modest or stalled, often because of profound societal polarization: more liberal individuals tend to accept climate change as real, anthropogenic, and as posing a substantial (if not existential) threat, while more conservative individuals tend to doubt such assertions. The standard explanation for this phenomenon is that liberals tend to believe government-provided information—as information about climate change tends to be—while conservatives tend to doubt it. Commentators suggest that market-generated climate change information would more likely sway conservatives.

But this assertion lacks any empirical support. This Article explores this …

Foreword, Margaret F. Sport

Emory International Law Review

No abstract provided.

Viral Sovereignty, Vaccine Diplomacy, And Vaccine Nationalism: The Institutions Of Global Vaccine Access, Sam F. Halabi, Ana Santos Rutschman

Emory International Law Review

The COVID-19 pandemic has triggered a global vaccine race. Distributive questions about which countries will receive scarce doses and under which conditions pervade international law and diplomacy. This Article is the first to describe the phenomena that have driven the development of international vaccine-sharing mechanisms, identify the international organizational forces that explain the phenomena, and explain how international organizations may facilitate international cooperation before, during, and after global crises.

This Article explores the longstanding dissociation between global public health imperatives and nationalist responses to pandemics within the frameworks of “vaccine nationalism,” “viral sovereignty,” and “vaccine diplomacy.” The Article then considers …

Extrajudicial Killings In Bangladesh: Exploring The Phenomenon Of Human Rights Violations As A Means Of Maintaing Power, M. Ehteshamul Bari

Emory International Law Review

When the South Asian nation of Bangladesh emerged as an independent nation on December 16, 1971, the founding fathers sought to establish a liberal democracy that would uphold the rule of law and the fundamental human rights of individuals. To this end, they incorporated extensive guarantees, including safeguarding the enforcement of an impressive eighteen fundamental rights, in the Constitution of Bangladesh of 1972. However, this Article will demonstrate that after almost fifty years of independence, the promise of a liberal democracy has remained elusive in Bangladesh due to the frequent violation of human rights through extrajudicial killings as a convenient …

The New Slot Machine: An International Perspective On Why The United States Should Learn To Stop Loving The Loot Box, Ajay Harish

Emory International Law Review

Games of chance are woven into the fabric of human culture. Rapid shifts in technology have resulted in the creation of the loot box, a new video game monetization scheme formed from the dregs of slot machines and trading cards. While extremely lucrative, the existence of loot boxes allows game companies to expose children to wager-like behavior, potentially creating a new generation of problem gamblers. The United States is both financially and culturally tied to video games as an industry and has been slow in its regulation of loot boxes. Given the problematic nature of loot boxes, existing regulations in …

Bivens And Ward---Constitutional Remedies In The United States And Canada, Madeline Prince

Emory International Law Review

Despite the killing of an unarmed fifteen-year-old boy by a federal border patrol agent, the U.S. Supreme Court in Hernandez v. Mesa refused to allow a Bivens cause of action to proceed and left an egregious violation of constitutional rights unremedied. The U.S. Supreme Court’s rulings in Ziglar v. Abbasi and Hernandez v. Mesa further limited the Bivens cause of action in such a way that makes successfully suing federal officials for constitutional violations practically impossible. The Supreme Court frequently denies Bivens claims due to the purported availability of alternative remedies. However, the Court’s recent jurisprudence makes clear that these …

Non-Income Tax Legislation Across Latin America: An Effective Policy To Raise Revenues?, Nicolás José Muñiz Arias

Emory International Law Review

In the past decades, there has been a proliferation of non-income levies throughout Latin America designed to stimulate collections. Tax administrators favor them for being easier to enforce as compared to traditional taxes on net income, as well as harder to evade.

To make sense of the rather dysfunctional conglomeration of levies, this Article proposes a classification into three broad categories: (1) taxes on revenues; (2) alternative levies on income and assets, whether on a gross or net basis, along with taxes on net equity; and finally (3) transactional-type levies such as stamp taxes, export duties, remittance taxes, and registration …

Secularism, Religion, And The State In A Time Of Global Crisis: Theoretical Reflections On The Work Of Abdullahi An-Na'im, Rohit Chopra

Emory International Law Review

This Essay presents a primarily theoretical examination of critical aspects of Abdullahi An-Na’im’s body of work. Drawing on my earlier work, the essay describes the current historical moment as one of “crisis globalization,” a normative condition characterized by the rise of authoritarianism and erosion of democracy across the globe, a backlash against religious and other kinds of minorities, as well as by a general sense of existential uncertainty stemming from the impact of climate change, terrorism, and our vulnerability to pandemics like Covid-19. I argue that An-Na’im’s work speaks especially powerfully to several aspects of this new condition. An-Na’im’s theorization …

Natural Law And Universal Human Rights, David F. Forte

Emory International Law Review

Abdullahi An-Na‘im has set his life’s quest on attempting to find a way that Muslim society can be attuned to the moral commands of the Universal Declaration of Human Rights, a Western creation. At present, the Shari‘a and the Declaration are in obvious tension, if not conflict, in areas such as freedom of religion and the rights of women. An-Na‘im finds that the Shari‘a is a creation of man derived in history from an interpretation of Islamic sources. Muslims today can legitimately develop their own interpretation relying on the root sources of Islam, but only so long as those sources …

Caliphs, Jinns, And Sufi Shrines: The Protection Of Cultural Heritage And Cultural Rights Under Islamic Law, Eleni Polymenopoulou

Emory International Law Review

This Article examines the position of the Islamic legal tradition on arts and cultural heritage, including its pitfalls, and argues that a better understanding of Muslim state practice is needed to enhance the protection of cultural rights in the Muslim world. This can further facilitate collaboration between Muslim states and inter-governmental bodies working in the field of culture; implement better accountability mechanisms under international criminal law, as well as; to contribute to the fight against terrorism. In addition, the author submits that Islamic law is not necessarily an appropriate platform to enhance cultural rights and cultural heritage in the Muslim …

Autobiographical Reflections, Abdullahi An-Naim

Emory International Law Review

As a way of concluding this festschrift issue of the Emory International Law Review, I have been invited to contribute an autobiographical essay reflecting on my academic and professional career.

Three Countries, One Problem: How The United States, United Kingdom, And France Handle Sexual Assaults In Higher Education, Annia Rochester

Emory International Law Review

Thirty-five percent of women worldwide will face physical or sexual violence. Female students within the United States, United Kingdom, and France are especially vulnerable to sexual assault and harassment due to a lack of protection from their governments. Failing to address the issue of sexual assault in higher education risks disrupting the education of student victims who are disproportionately women. Despite France and the United Kingdom signing the Istanbul Convention and the United States’ implementation of Title IX, these three nations have not done enough to prevent sexual misconduct among university-age students. All three nations have varying campus cultures and …

Huawei Strikes Back: Challenging National Security Decisions Before Investment Arbitral Tribunals, Ming Du

Emory International Law Review

No abstract provided.

No-Fault Vaccine Injury Compensation Systems Adopted Pursuant To The Covid-19 Public Health Emergency Response, Sam Halabi, Katherine Ginsbach, Katie Gottschalk, John Monahan, Judith Murungi

Emory International Law Review

No-fault vaccine injury compensation systems have developed over the course of the twentieth century, mostly in the richest countries in the world. Acknowledging that severe reactions to vaccines are rare, but can result in serious and sometimes complex injury, these systems provide financial and social support for those suffering these rare side effects. During the COVID-19 pandemic, and the rapid development and deployment of vaccines using novel technologies, these systems have proliferated not only among wealthy countries, where in their modern form they originated and spread, but also low- and middle-income ones. Adopting varying approaches to funding, eligibility, administration, process, …

Stifling Innovation: How Global Data Protection Regulation Trends Inhibit The Growth Of Healthcare Research And Start-Ups, Ryan Preston

Emory International Law Review

No abstract provided.

Antitrust And High Tech: A Tale Of Two Mergers, Babette Boliek

Emory Law Journal

Between 2016 and 2019, two proposed mergers captured much of the attention and resources of the Antitrust Division of the Department of Justice (DOJ). The first was the vertical merger of AT&T Inc. and Time Warner Inc.—a merger of a communications, media, and content distribution company (AT&T) with a content provider (Time Warner). The second was the horizontal merger of Sprint and T-Mobile—a merger of two mobile telephone companies. In general, vertical mergers are reviewed with greater leniency than horizontal mergers because the latter, by definition, eliminate a competitor in the relevant marketplace, which is not a concern with the …