Emory Law Journal

Volume 66Issue 4

Student Surveillance, Racial Inequalities, and Implicit Racial Bias

Jason P. Nance | 66 Emory L.J. 765 (2017)

In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data released by the U.S. Department of Education after the shootings at Sandy Hook Elementary School. This Article then turns to a discussion of the role that implicit racial bias may have in school officials’ decisions to rely on intense surveillance. Finally, it proposes legislation and strategies that federal lawmakers, state lawmakers, and school officials should adopt to counteract the effect of implicit racial bias on school officials’ decisions to implement strict security measures.

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Sharenting: Children’s Privacy in the Age of Social Media

Stacey B. Steinberg | 66 Emory L.J. 839 (2017)

Through sharenting, parents now shape their children’s digital identity long before these young people open their first e-mail. The disclosures parents make online are sure to follow their children into adulthood. This Article is the first to offer an in-depth legal analysis of the conflict inherent between a parent’s right to share online and a child’s interest in privacy. It considers whether children have a legal or moral right to control their own digital footprint and discusses the unique and novel conflict at the heart of parental sharing in the digital age. The Article explores potential legal solutions to this issue and offers a set of best practices for parents to consider when sharing about children online. It concludes by providing a child-centered, public-health-based model of reform that protects a child’s interest in privacy while also recognizing a parent’s right to share online.

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Closing the Use Tax Loophole: Why Consumer Self-Assessment Is a Viable Solution

Rubinder Bal | 66 Emory L.J. 885 (2017)

With the surge in online shopping, use tax has become an increasingly elusive source of tax revenue for states. The constitutional constraints of due process and the Commerce Clause establish limits that often frustrate states’ attempts to impose tax collection obligations on remote retailers. In Quill, the Court held that a state could only impose a collection obligation on a retailer that was physically present in the taxing state. This Comment analyzes post-Quill cases that exemplify the absurdity of treating local retailers differently from remote retailers that economically exploit the same market. The Comment then considers, and ultimately rejects, four alternative mechanisms that have been proposed by scholars. The Comment concludes by proposing a novel solution, which shifts the burden of use tax collection away from remote retailers and onto the consumer, allowing states to circumvent the Commerce Clause obstacle altogether.

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Fraternizing with Franchises: A Franchise Approach to Fraternities

Cassandra Coolidge | 66 Emory L.J. 917 (2017)

Fraternities consist of a national organization and numerous local chapters located nationally, which operate similarly, hold the same values, and perform the same rituals. Fraternities are operationally and structurally similar to franchises. This Comment argues for courts to consider fraternities to be franchise arrangements and to apply franchise case law when determining the liability of national organizations. A franchise model provides a ready-made approach that considers fraternity structure and operation and finds liability when the requisite relationship and control exist. Accordingly, this Comment analyzes how fraternities are franchise arrangements and demonstrates the ready-made approach a franchise model provides by applying franchise liability to a fraternity using recent Maine cases.

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Establishing Applicable Water Quality Standards for Surface Waters on Indian Reservations

Jin Hyung Lee | 66 Emory L.J. 965 (2017)

The Clean Water Act is the foundational water law in the United States. It seeks to protect the nation’s waters through establishing programs that limit pollutant discharge into surface waters. Although all states have water quality standards for surface waters that run through their respective boundaries, most tribes lack water quality standards that are applicable for establishing effluent limitations under the Clean Water Act. This Comment proposes a solution to this regulatory gap in the Clean Water Act. It suggests the Environmental Protection Agency ought to promulgate a new rule making tribal water quality standards applicable for Clean Water Act programs even though they may not have been approved by the Agency.

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AIA Proceedings: A Prescription for Accelerating the Availability of Generic Drugs

Nora Xu | 66 Emory L.J. 1007 (2017)

The Hatch-Waxman Act of 1984 increases patient access to lower-cost generic drugs. The Hatch-Waxman framework creates an automatic stay that blocks the Food and Drug Administration (FDA) from approving a new generic drug for thirty months. The America Invents Act (AIA) of 2011 created new administrative proceedings at the U.S. Patent and Trademark Office (USPTO) that replace certain aspects of district court patent litigation. This Comment examines the relevant statutory provisions of the Hatch-Waxman Act and AIA and explores the scenarios that give rise to uncertainty about the thirty-month stay. It argues that the thirty-month stay should terminate when the Federal Circuit affirms the USPTO’s unpatentability determination and issues the formal mandate. Because neither the FDA nor courts are likely to construe the relevant statutory provisions to this effect, this Comment proposes an amendment to incorporate AIA proceedings into the Hatch-Watchman framework.

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