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.

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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.

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Are Fannie Mae and Freddie Mac State Actors? State Action, Due Process, and Nonjudicial Foreclosure

William E. Eye | 65 Emory L.J. 107 (2015)

This Comment considers whether the federal conservatorship of Fannie Mae and Freddie Mac transformed these entities into state actors subject to constitutional constraints. In particular, it analyzes whether Fannie Mae and Freddie Mac must provide homeowners with due process—namely notice and an opportunity to be heard—when they initiate nonjudicial foreclosures. Application of the state action tests from Lebron and Brentwood Academy most persuasively suggest that nonjudicial foreclosures initiated by Fannie Mae and Freddie Mac must satisfy due process requirements. Ultimately, this Comment concludes that Fannie Mae and Freddie Mac are state actors under the entwinement test. However, because courts are reluctant to find state action where the government regulates the secondary mortgage market, it remains unlikely that Fannie Mae and Freddie Mac will be required to provide notice and an opportunity to be heard to homeowners facing nonjudicial foreclosure.

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Changing the Rule Changes the Game: A Rule 68 Offer for Complete Relief Should Never Moot an Individual’s Claim

David Marc Rothenberg | 65 Emory L.J. 155 (2015)

Although Rule 68 was designed to facilitate settlements, defendants have attempted to use Rule 68 offers to moot individuals’ claims. These defendants argue that by offering their understanding of complete relief to a plaintiff, the claim should be mooted. In the past four decades, a circuit split has arisen over whether Rule 68 offers can moot claims and whether judgment should be entered for the plaintiff or the defendant. This Comment advocates for the adoption of the Ninth Circuit’s holding in Diaz v. First American Home Buyers Protection Corp.—referred to in this Comment as the Diaz approach—which states that a Rule 68 offer never moots an individual’s claim. This Comment explores relevant historical jurisprudence that has led to the various legal theories involving mootness in Rule 68 offers. Ultimately, this Comment concludes that by applying the Diaz approach to Rule 68 offers, courts will return Rule 68 to its intended goal: incentivizing settlements without burdening the courts.

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