Emory Law Journal

Volume 64Issue 3

Keeping the Arms in Touch: Taking Political Accountability Seriously in the Eleventh Amendment Arm-of-the-State Doctrine

Jameson B. Bilsborrow | 64 Emory L.J. 819 (2015)

The Eleventh Amendment to the United States Constitution embodies the principle of state sovereign immunity, long held to bar suits by private litigants in federal courts or under federal law who seek redress for rights violations at the hands of state governments. But states themselves are not the only prospective defendants shielded by this form of sovereign immunity. As a subset of Eleventh Amendment jurisprudence, the arm-of-the-state doctrine allows government entities closely situated to their respective state governments to partake of the state’s Eleventh Amendment sovereign immunity. Unfortunately, this doctrine, both in theory and in application, has been fraught with inconsistency and incoherence since the Supreme Court introduced it in 1977. As a solution, this Comment argues that, rather than the rationales previously offered by the Court, a political accountability rationale ought to guide the arm-of-the-state inquiry. This rationale has been present in the Court’s sovereign immunity jurisprudence generally but has yet to be substantially incorporated in the arm-of-the-state context.

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From Sea to Shining Sea: A New Approach to Interpreting the Foreign Trade Antitrust Improvements Act

Gerard F. Bifulco | 64 Emory L.J. 869 (2015)

The Foreign Trade Antitrust Improvements Act (FTAIA) was passed in 1982 to govern the application of the Sherman Act to antitrust violations that occurred abroad. While the statute received little attention in its early years, public and private plaintiffs have recently begun to collect large fines and penalties under its jurisdiction. As the number of parties subject to these judgments has continued to grow, the increasing focus on the FTAIA has caused uneven development of the statute: while certain aspects of the FTAIA were defined and refined by judicial interpretation, other language in the statute remained underdeveloped. This Comment proposes a new interpretation of the “direct, substantial, and reasonably foreseeable effect” requirement of the FTAIA. This new interpretation provides courts with the means to interpret a section of the FTAIA by balancing previous judicial attempts at deciphering the statute with the intent of the members of Congress who drafted it.

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Blurred Lines: Sexual Orientation and Gender Nonconformity in Title VII

Burton F. Peebles | 64 Emory L.J. 911 (2015)

Title VII’s prohibition of discrimination on the basis of sex is read broadly to include gender nonconformity. Although social scientists have documented the historic link between the homosocial performance of sexual orientation and the achievement of hegemonic masculinity within the modern workplace, courts continue to struggle with the task of defining the scope of protected gender nonconforming conduct. As many within the lesbian, gay, bisexual, and transgender community continue to demand equal access, recognition, and employment opportunity, only twenty-one states provide statutory protections for LGBT persons or their allies, and courts utilize a number of judicial limits in an attempt to readily distinguish claims based on “sex” and those based on “sexual orientation.” However well-intended, such tools frustrate the legislative goals underlying Title VII and negate social science that suggests a new, fluid conceptualization of gender normativity is in order—one capable of recognizing sexual orientation’s unique role in achieving and reinforcing gender. This Comment proposes the use of an expansive interpretation of sex and what constitutes discrimination based on sex and discourages the imposition of court-crafted limits to the scope of conduct capable of classification as gender nonconforming.

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