Emory Law Journal

Volume 66Issue 5

The Deserving Poor, the Undeserving Poor, and Class-Based Affirmative Action

Khiara M. Bridges | 66 Emory L.J. 1049 (2017)

This Article proposes that class-based affirmative action enjoys widespread support from people across the political spectrum because it is imagined to benefit the “deserving poor.” Class-based affirmative action enjoys bipartisan political popularity because it is imagined to benefit these respectable poor people—folks who are deserving of a “leg up” in the admissions competition and deserving of programs designed to assist them. Alarm bells should ring because, throughout history, the categories of the deserving and undeserving poor have been racialized—and, frequently, racist. Indeed, if history is a teacher, then class-based affirmative action will lose its popularity if poor racial minorities are (or are imagined to be) class-based affirmative action’s primary beneficiaries. The Article argues that if class-based affirmative action functions to assist people of color in disproportionate numbers, it will be reimagined to be a program that assists the undeserving poor, and its political tenability will suffer.

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Inside the Arbitrator’s Mind

Susan D. Franck, Anne van Aaken, James Freda, Chris Guthrie, & Jeffrey J. Rachlinski | 66 Emory L.J. 1115 (2017)

Arbitrators are to global dispute resolution what judges are to domestic dispute resolution. Despite this, arbitral decisionmaking is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions rather than fully deliberative ones. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never demonstrably worse than, national judges. There may be reasons to prefer judges to international arbitrators, but the quality of judgment and decisionmaking, is not one of them. Thus, normative debates about global dispute resolution should focus not on decisionmaker identity or title but rather on structural safeguards and legal protections to enhance quality rule of law based decisionmaking.

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The Threat of Expulsion as Unacceptable Coercion: Title IX, Due Process, and Coerced Confessions

Casey McGowan | 66 Emory L.J. 1175 (2017)

The nation’s recent focus on the prevalence of sexual assault has rightfully prompted colleges and universities to take a second look at their sexual assault policies. Bringing justice to those who have committed sexual assault is worthy. However, one concern is that the pendulum has swung too far to the left. Schools have instituted stricter policies without considering the due process rights of the accused. Problematically, the statements made by the accused, under limited due process safeguards, can be used in criminal proceedings. This Comment pays particular attention to the lack of safeguards present in the college disciplinary process for adjudicating sexual misconduct. This Comment argues that it is unconstitutional to admit in a state criminal proceeding statements that were made by students accused of sexual assault in a college disciplinary hearing. Specifically, it posits that such statements can be considered coerced confessions in violation of due process.

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Why Judicial Estoppel Should Be a Court’s Last Resort for Undisclosed Lawsuits from Bankruptcy

Caryn Wang | 66 Emory L.J. 1209 (2017)

This Comment analyzes application of judicial estoppel to a lawsuit that a consumer debtor failed to disclose in a prior bankruptcy case, arguing that non-bankruptcy courts should not apply the judicial estoppel doctrine to undisclosed lawsuits from bankruptcy. Application of judicial estoppel in this context is both inequitable and contrary to provisions of the Bankruptcy Code. Instead, defendants who seek to assert judicial estoppel against an undisclosed lawsuit must first petition the bankruptcy court to reopen the debtor’s bankruptcy case to request relief from the automatic stay. The bankruptcy court may then appoint a trustee who can either abandon the claim or pursue the claim for the creditors. This Comment concludes that judicial estoppel should not and may not be applied to undisclosed lawsuits from bankruptcy until the bankruptcy court grants relief from the automatic stay.

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