Emory Law Journal

Volume 65Issue 4

Wealth Inequality and Family Business

Benjamin Means | 65 Emory L.J. 937 (2016)

Despite their economic significance, little has been done to investigate whether family businesses contribute to wealth inequality. This Article offers the first legal, and one of the only academic, treatments of the topic and shows that family businesses play a double role. On the one hand, family businesses reinforce existing disparities in wealth and opportunity. Heirs, after all, stand to benefit from the hard work of previous generations. On the other hand, family businesses can be a powerful antidote to inequality, disrupting entrenched class hierarchies and creating opportunities for individuals, families, and ethnic communities. This Article concludes that whether family businesses produce net social costs or benefits depends crucially on two principal factors. First, to the extent there is a lack of public investment in social mobility, family businesses can increase the distribution of wealth by providing needed investments in human capital. Second, to the extent the rewards of capitalism are not widely shared, family businesses can offer a source of opportunity for family members, employees, and the communities in which family businesses operate.

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Patent Anticipation and Obviousness as Possession

Timothy R. Holbrook | 65 Emory L.J. 987 (2016)

The concept of possession in property law operates to allocate property rights among competing claimants by awarding the property to the first to take possession. Possession in this context requires an act that communicates to third parties that someone has exercised dominion over the item. Patent law operates in similar ways. The doctrines of novelty and non-obviousness ask, in essence, whether the public was already in possession of the invention prior to the inventor. If so, then the patent application should be rejected. This possession-based view of novelty and non-obviousness offers important insights and prescriptions. As to novelty, the possession framework suggests that the current requirement that the prior art disclose the invention as arranged in the claim is unwarranted. It also suggests that the current doctrine of inherency is wrong. With respect to obviousness, the possession-based approach may be emerging through the Supreme Court’s reinvigoration of the “obvious to try” standard. The possession-based framework also highlights the inconsistent treatment of obviousness as possession in other contexts.

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Freedom of Conscience in War Time: World War I and the Limits of Civil Liberties

Laura M. Weinrib | 65 Emory L.J. 1051 (2016)

This Article examines the relationship between expressive freedom and freedom of conscience as the modern First Amendment took shape. It focuses on efforts by the American Union Against Militarism and National Civil Liberties Bureau—the organizational precursors to the ACLU—to secure exemptions from military service for conscientious objectors whose opposition to American involvement in the First World War stemmed from socialist or radical labor convictions rather than religious scruples. Although such men asserted secular, ethical objections to war, advocates strained to expand the First Amendment’s Free Exercise Clause to encompass them. Concurrently, they sought to import a generalized theory of freedom of conscience into constitutional constructions of freedom of speech and press, within and outside the courts. The conception of liberty of conscience that they advanced, which they linked to an “Anglo-Saxon tradition” of individual rights, clashed with progressive understandings of democratic citizenship and failed to gain broad- based traction.

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