Emory Law Journal

Volume 65Issue 1

Rape On and Off Campus

Deborah Tuerkheimer | 65 Emory L.J. 1 (2015)

The need for institutional reform to address the problem of sexual assault, particularly on college campuses, is widely acknowledged. In the midst of increasing moves on campus to codify affirmative consent standards (“yes means yes”), rape law remains mired in an archaic view of consent as rather beside the point. This Article recasts the significance of law’s preoccupation with force by introducing a taxonomy of cases in which force and non-consent tend to diverge. The no-force/no-consent cases raise a question critical to ongoing reform efforts: does the absence of consent make sex rape? Outside of law, this inquiry has for the most part been resolved; what remains is to reconcile competing interpretations of consent’s meaning. In stark contrast, the criminal justice system’s treatment of nonstranger rape reflects a doctrine woefully out of step with modern conceptions of sex. Sexual agency provides the theoretical underpinning needed to close this gap.

Read More »

Unearthing the Lost History of Seminole Rock

Sanne Knudsen and Amy Wildermuth | 65 Emory L.J. 47 (2015)

Recently, members of the Supreme Court have signaled a willingness to reconsider, and perhaps jettison, Seminole Rock. Seminole Rock has been widely accepted but surprisingly disconnected from any analysis of its origins and justifications. This Article—the first historical explication of Seminole Rock deference—argues that Seminole Rock cannot support the theoretical weight that subsequent courts and evolving administrative law doctrines have complacently put upon it. Seminole Rock was the product of its time—the 1940s, an era of war-time price controls and a new age of administrative law. Later cases wrongly divorced Seminole Rock from that context. This Article documents the untethering of Seminole Rock. It shows how, in the 1960s and 1970s, alongside an expanding administrative state, the doctrine transformed into a more mechanical and highly deferential form of agency deference. In doing so, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.

Read More »