Emory Law Journal

Volume 60Issue 4

All Things in Proportion? American Rights Review and the Problem of Balancing

Jud Mathews & Alec Stone Sweet | 60 Emory L.J. 797 (2010)

This Article describes and evaluates the evolution of rights doctrine in the United States, focusing on the problem of balancing. In the current Supreme Court, deep conflict over whether, when, and how courts balance rights is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice.

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Local Energy

Garrick B. Pursley & Hannah J. Wiseman | 60 Emory L.J. 877 (2010)

At a point in the future that is no longer remote, renewable energy will be a necessity. The construction of large renewable energy farms is central to a transition away from fossil fuels, but distributed renewable energy technologies—wind turbines in backyards and solar panels on roofs—are immediately essential as well. Widespread deployment of distributed renewable technologies requires rapid innovation led by renewable energy pioneers—individuals who act as market leaders and prove to their neighbors that these new energy devices are safe and worthy of use. This Article assesses the relative institutional capacities of different levels of government to determine which will best ensure that land-energy rules enable a drive toward distributed renewable energy and concludes that the powers of municipal governments must be unleashed.

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Unwrapping Escheat: Unclaimed Property Laws and Gift Cards

Sean M. Diamond | 60 Emory L.J. 971 (2010)

In the wake of the economic crisis, state budgets have been devastated by substantial decreases in revenue. A traditional source for raising revenue is increased taxes, but raising taxes carries a political stigma legislators prefer to avoid. Instead of (or in addition to) raising taxes, states often seek alternative sources of revenue through their unclaimed property laws. Unclaimed property laws incorporate the doctrine of escheat, which entitles a state to take custody of property that has remained unclaimed by its owner for a designated period of time. In the past twenty years, states have expanded their escheat laws and increased collection efforts to capture more unclaimed property as an alternative source of revenue. An example of this trend are states’ attempts to capture the remaining value on gift cards, which independently are often small amounts but, in the aggregate, constitute a substantial sum ripe for the taking.

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Engendering Fairness in Domestic Violence Arrests: Improving Police Accountability Through the Equal Protection Clause

Niji Jain | 60 Emory L.J. 1011 (2010)

When police decline to respond to reported violations of restraining orders, victims of gender-based violence and their children suffer tragic consequences. Congress enacted 42 U.S.C. § 1983 to remedy problems of this sort by lifting the shield of immunity when a state actor violates an individual’s constitutional rights. A credible threat of liability for police officers is imperative to encourage police to act in a way that protects individuals from harm. However, the Supreme Court has substantially limited the possible § 1983-based causes of action a victim of gender-based violence can bring against a police officer. The only remaining avenue for liability is an equal protection claim. However, equal protection challenges have met such consistent rejection in the lower federal courts that many scholars believe they are not a tenable strategy for police accountability.

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