Emory Law Journal

Volume 63Issue 3

Disability Constitutional Law

Michael E. Waterstone | 63 Emory L.J. 527 (2014)

As a result of fierce advocacy, people with disabilities have been uniquely successful in securing federal legislation protecting them from discrimination in all areas of life. The modern disability rights movement is engaged in a constant struggle to enforce these rights, both in and out of the courts. There has been little attention to directly using the Constitution to protect the rights of people with disabilities. In a recent project, I interviewed many of the key leaders of the disability rights movement, who confirmed that while they would like to devote more attention to constitutional issues, there is no current short- or long-term constitutional strategy. Rather, these lawyers take the Supreme Court's decision in City of Cleburne v. Cleburne Living Center, Inc., holding that people with disabilities are only entitled to rational basis review under the Equal Protection Clause, as a given. Their attention has turned elsewhere.

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Terrorism and Associations

Ashutosh Bhagwat | 63 Emory L.J. 581 (2014)

The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing, unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms.

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How Law Made Silicon Valley

Anupam Chander | 63 Emory L.J. 639 (2014)

Explanations for the success of Silicon Valley focus on the confluence of capital and education. In this Article, I put forward a new explanation, one that better elucidates the rise of Silicon Valley as a global trader. Just as nineteenth-century American judges altered the common law in order to subsidize industrial development, American judges and legislators altered the law at the turn of the Millennium to promote the development of Internet enterprise. Europe and Asia, by contrast, imposed strict intermediary liability regimes, inflexible intellectual property rules, and strong privacy constraints, impeding local Internet entrepreneurs. This study challenges the conventional wisdom that holds that strong intellectual property rights undergird innovation. While American law favored both commerce and speech enabled by this new medium, European and Asian jurisdictions attended more to the risks to intellectual property rights holders and, to a lesser extent, ordinary individuals. Innovations that might be celebrated in the United States could lead to imprisonment in Japan. I show how American companies leveraged their liberal home base to become global leaders in cyberspace. I argue that nations seeking to incubate their own Silicon Valley must focus on freeing speech, and so must the United States, if it hopes not to break this new industry.

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Paddling Past Nicastro in the Stream of Commerce Doctrine: Interpreting Justice Breyer’s Concurrence as Implicitly Inviting Lower Courts to Develop Alternative Jurisdictional Standards

Kaitlyn Findley | 63 Emory L.J. 695 (2014)

The Supreme Court established the stream of commerce doctrine in its World-Wide Volkswagen Corp. v. Woodson opinion in response to the rapid emergence of complex personal jurisdiction questions in products liability cases involving nonresident manufacturers whose products were sold and caused injury in U.S. forums. Although the doctrine was initially intended to clarify jurisdictional analysis in these cases, its application has been ambiguous and judicially divisive due to the Court's chronic inability to explicate the quantity and quality of contacts that the doctrine requires a nonresident defendant to establish with a forum state before that state may exercise personal jurisdiction over it.

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Sparse Patent Protection for Research Tools: Expansion of the Safe Harbor Has Changed the Rules

Robert A. Jones | 63 Emory L.J. 749 (2014)

The protection provided by patent rights benefits society by encouraging inventors to disclose their inventions, but these same rights can be wielded against competitors through infringement suits, causing a chilling effect on later innovation. In the field of pharmaceutical innovation, the Hatch–Waxman Act’s safe harbor has provided a defense against infringement, allowing generic manufacturers to quickly bring low-cost drugs to the public while trespassing minimally on the patent holder’s rights. The Act’s delicate balance of benefits and burdens has been threatened by recent judicial interpretations of the provision’s scope. The scope of the safe harbor has been expanded to the point that it reduces the value of patent protection for laboratory tools and methods, and in turn threatens the patent system’s role in encouraging innovation in these areas.

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