Emory Law Journal

Volume 65Issue 5

Financial Reform’s Internationalism

David Zaring | 65 Emory L.J. 1255 (2016)

Financial reform has rebalanced the power of international engagement, reducing the role of the President and his diplomats, and increasing that of Congress and independent agencies. In so doing, the reforms have readjusted a balance that many believe was skewed by the government’s response to the financial crisis. The international policy of financial reform has doctrinal implications as well: Congress has supplemented traditional international law with an endorsement of international regulatory cooperation. Because of this supplementation, the things that customary international law used to do—in particular enabling international cooperation and creating innovation in human rights—are now being done by financial regulators wielding the power of informal agreements. The privileging of regulatory cooperation, and the entry into human rights through financial regulation, is evidenced by the so-called Conflict Minerals and Resource Extraction Rules that Congress has directed the Securities and Exchange Commission to promulgate.

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Secret Jurisdiction

Irina D. Manta, Cassandra Burke Robertson | 65 Emory L.J. 1313 (2016)

So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The Executive Branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on the list, or the process used to put them there. We argue that a traditional procedural due process analysis is insufficient to protect individual rights when national security requires that much of the information relevant to that analysis be kept secret. To counter this deficit, we suggest that courts should incorporate elements of substantive due process by applying a unified due process standard that requires a higher evidentiary burden—and real evidence of national security benefits—before the government may curtail significant individual liberties.

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“Enough and as Good” in the Intellectual Commons: A Lockean Theory of Copyright and the Merger Doctrine

Alexander D. Northover | 65 Emory L.J. 1363 (2016)

In the tradition of Locke’s contextualist interpreters, this Comment examines Locke’s philosophy and its context with the aim of describing a theory of Lockean copyright that is compatible with the basic tenets of American copyright law. Because the Lockean copyright theory offered here accounts for both procedural and consequential goods, it has stronger prescriptive power than the current utilitarian model and can do more work. Also, because Lockean duties lend well to bright-line rulemaking, applying Lockean thinking to legal analysis can streamline litigation. As an example of Locke’s cash value to copyright law, this Comment expounds upon his thoughts on the natural law duties of property owners and the state’s role in mitigating transaction costs of private ownership to assign burdens of proof at trial. This framework is utilized to outline a potential solution to the circuit split over whether the merger doctrine should apply during the copyrightability stage or the infringement stage of a copyright infringement lawsuit.

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A Reformation Remedy for Educators Professional Liability Insurance Policies

Caroline Wood | 65 Emory L.J. 1411 (2016)

Third-party liability insurance held by public school districts, including educators professional liability insurance and general commercial liability insurance, occupies a unique economic and political role. Nevertheless, the application of traditional insurance doctrine to school districts has received little attention, either from advocates for changes to the law of liability insurance or from those analyzing trends in tort liability in the public education context. This Comment will propose a reformation remedy that acknowledges the public interest in ensuring compensation for injuries sustained by children as a result of misconduct in the course of education. A reformation remedy would clarify the body of law that has grown around school district misrepresentations by allowing courts to avoid the strained application of alternative legal theories. It would allow insurers to recover their actual losses while also providing coverage for the vulnerable plaintiffs of educational misconduct. Finally, it would ensure a more efficient liability insurance market for school districts by improving the accuracy of pricing for individual school districts and cost spreading across districts with wide disparities in resources.

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