Emory Law Journal

Volume 63Issue 4

The Campaign Finance Safeguards of Federalism

Garrick B. Pursley | 63 Emory L.J. 781 (2014)

This Article provides the first systematic account of the relationship between campaign finance and federalism. Federalism—a fundamental characteristic of the constitutional structure—depends for its stability on political mechanisms. States and their advocates and representatives in Congress, federal agencies, political parties, intergovernmental lobbying groups, and other political forums work together to check federal interference with state governments. Entire normative theories of federalism depend on the assumption that this system of political safeguards is working effectively in the background. But the federalism and constitutional theory literatures lack a rigorous account of the effects of dramatic political change on pro-federalism political dynamics. Building that account is particularly timely now. Political safeguards work only if states retain significant political influence. But, as recent elections vividly demonstrate, Citizens United has created a new class of political operators—of which Super PACs are emblematic—whose potential political influence may be limitless.

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The Right to Include

Daniel B. Kelly | 63 Emory L.J. 857 (2014)

Recent scholarship has created renewed interest in the “right to exclude.” Many contend that, because owners have a right to exclude, private property has a tendency to promote individualism and exclusion. But, as I will argue, property can promote sociability and inclusion by providing owners with various ways of including others. Owners can assert their “right to include” by waiving exclusion rights, dividing existing rights by contracts or property forms, and creating new co-ownership arrangements. Inclusion is socially beneficial insofar as it enables sharing and exchange, facilitates financing and risk-spreading, and promotes specialization.

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“Am I My Brother's Keeper?”: Reforming Criminal Hazing Laws Based on Assumption of Care

Brandon W. Chamberlin | 63 Emory L.J. 925 (2014)

One hundred years ago, two states had criminal laws addressing collegiate hazing. Today, hazing is a crime in thirty-nine states. However, this flood of legislation has failed to stem the tide of hazing injuries and deaths. The current criminal law approach to hazing has failed because the claimed benefits of specialized hazing laws are illusory. Moreover, the rare cases in which hazing laws provide a benefit over general criminal statutes are the very cases in which the hazing laws are most vulnerable to legal challenge. The current approach also fails on policy grounds. A pure enforcement approach that does not engage with students’ values and beliefs about hazing may have the unintended effect of entrenching pro-hazing norms. The creation of sweeping criminal liability also increases the danger of hazing by driving it further underground.

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By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage

Andrew C. Stevens | 63 Emory L.J. 979 (2014)

State recognition of same-sex marriage has presented significant new challenges to the law of religious freedom under the First Amendment. For example, all states license religious officials to solemnize civil marriage, a ceremony required for a valid marriage in all states. Could a state that has recognized same-sex marriage require its licensed religious officials to administer their licenses in such a way as not to discriminate against same-sex couples? Or would such a law violate the free exercise rights of that licensed religious official? Or, conversely, is the very practice of state licensing of religious officials to solemnize and enact civil marriage an impermissible establishment of religion in violation of the Establishment Clause?

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