Emory Law Journal

Volume 63Issue 5
Articles

Jurisdictional Discrimination and Full Faith and Credit

Ann Woolhandler, Michael G. Collins | 63 Emory L.J. 1023 (2014)

In Hughes v. Fetter (1951), the Supreme Court ruled that state courts are ordinarily required—as a matter of the Full Faith and Credit Clause—to take jurisdiction of claims arising under sister-state law, their own wishes notwithstanding. Hughes remains a foundational case for conflict of laws and interstate relations. It is said to embody the principles that states should maximize one another's policies, and cannot discriminate against sister-state laws. Some scholars, moreover, have argued for extensions of Hughes’s nondiscrimination norm to choice of law, to public policy exceptions to applying sister-state law, and to Congress’s stripping federal courts of jurisdiction. This Article argues that Hughes was wrong. The decision is justified neither by history nor precedent under the Clause, nor by a policy maximization rationale. And its nondiscrimination norm fits poorly with states’ general ability, in the choice-of-law area, to prefer their own law over sister-state law in cases that they choose to entertain. This Article argues that states should be under a much more limited duty, grounded in a litigant’s substantive entitlement to redress, rather than a duty not to discriminate against the law of sister states. Arguments that other scholars have made for extension of Hughes’s rule of nondiscrimination against the law of other sovereigns in the choice of law, public policy, and jurisdiction-stripping settings should therefore draw little support from the doubtful result in Hughes.

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Human Rights After Kiobel: Choice of Law and the Rise of Transnational Tort Litigation

Roger P. Alford | 63 Emory L.J. 1089 (2014)

The Supreme Court in Kiobel v. Royal Dutch Petroleum Co. held that the presumption against extraterritoriality applied to the Alien Tort Statute. As such, international human rights litigation as currently practiced in the United States is dead. The demise of the ATS will signal the rise of transnational tort litigation. Virtually every complaint pleading a human rights violation could allege a traditional domestic or foreign tort violation. With transnational tort claims, there is no presumption against extraterritoriality. Instead, courts apply state or foreign tort laws based on traditional choice-of-law principles.

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Comments

The Abuse of Animals as a Method of Domestic Violence: The Need for Criminalization

Vivek Upadhya | 63 Emory L.J. 1163 (2014)

A substantial amount of research in recent decades has focused on the relationship between domestic violence and animal abuse. This research has shown that an abusive household often contains more than one victim, and that an abuser is likely to harm both his intimate partner and domestic animals in the home. The bulk of this research has focused on the degree to which these forms of abuse co-occur, the predictive utility of these statistics, and the effect that animal abuse has on a victim’s decision to leave the abusive household. Research findings in these areas have spawned a number of efforts to build upon this link to protect both humans and animals, such as including animals in protective orders, encouraging women's shelters to accommodate companion animals, requiring cross-reporting between animal welfare and domestic agencies, and educating the public as to the potential risk implicated by an animal abuser in the home.

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An Uncomfortable Threesome: Permissive Party Joinder, BitTorrent, and Pornography

Evan Hoole | 63 Emory L.J. 1211 (2014)

In recent years, media companies have struggled to combat the rampant growth of Internet piracy and the sharing of their copyrighted works. Lately, some copyright holders have taken to suing hundreds of file-sharers in a single suit. These suits were initially unsuccessful, as courts denied joinder of the file-sharers. The rise of a unique file-sharing program called BitTorrent, however, has caused some courts to give copyright holders a new opportunity to successfully file and settle these mass infringement lawsuits. A central issue in many of these suits is whether joinder of the many file-sharing users is appropriate. Disagreement among courts over this issue has centered around whether a copyright holder’s claims against a group of BitTorrent users “aris[e] out of the same transaction, occurrence, or series of transactions or occurrences,” as is required for joinder by Rule 20(a)(2) of the Federal Rules of Civil Procedure. This Comment examines the split that has occurred among courts in analyzing this joinder issue and argues that joinder is not appropriate in these suits.

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