Emory Law Journal

Volume 67Issue 4

The Offshore Tax Enforcement Dragnet

Shu-Yi Oei | 67 Emory L.J. 655 (2018)

This Article critiques the United States’ offshore tax enforcement initiatives, such as the Foreign Account Tax Compliant Act and the Internal Revenue Service’s offshore voluntary disclosure programs. It argues that the United States has been overly focused on two policy priorities in designing enforcement at the expense of competing considerations: First, the United States has attempted to equalize enforcement against taxpayers with solely domestic holdings and those with harder-to-detect offshore holdings by imposing harsher reporting requirements and penalties on the latter. But in doing so, it has failed to appropriately distinguish among differently situated taxpayers with offshore holdings. Second, the United States has focused on revenue and enforcement, paying less attention to the significant compliance costs and potential social harms that its initiatives create.

Read More »

Persona–Character Copyrights and Merger’s Role in the Evolution of Entertainment

Sydney Altman | 67 Emory L.J. 735 (2018)

This Comment defines what qualifies as a character and what makes the character eligible or ineligible for copyright protection. This Comment proposes placing characters on a spectrum, from those that are granted full copyright protection to those that are denied legal security. When the line is not clear regarding whether a character is an original expression or is a persona of the actor, this Comment suggests utilizing the merger doctrine as a personal affirmative defense to eliminate a studio’s inflexible copyright control and to release the character into the actor’s shared control.

Read More »

Enforcing an Unenforceable Law: The National Bioengineered Food Disclosure Standard

Mary Christine Brady | 67 Emory L.J. 771 (2018)

Congress hastily crafted the National Bioengineered Food Disclosure Standard (“GE labeling law” or Act), which it passed in July of 2016, to preempt various state laws that were cropping up around the country seeking to label genetically engineered ingredients (GEs). This Comment anticipates that the Act will face free speech challenges that may find the GE labeling law unconstitutional, especially following recent trends in First Amendment jurisprudence that have been increasingly applying stricter scrutiny upon constitutional review. Due to inconsistent applications of the two governing tests that review compelled commercial speech—the Central Hudson and Zauderer standards, respectively—this Comment suggests that the Supreme Court, in the context of the GE labeling law, determine the appropriate scrutiny level that courts should apply when reviewing First Amendment cases involving compelled commercial speech. This Comment finds that the GE labeling law will not likely withstand scrutiny under Central Hudson, but should survive less stringent review under Zauderer.

Read More »

Stepping Back to Move Forward: Expanding Personal Jurisdiction by Reviving Old Practices

Matthew P. Demartini | 67 Emory L.J. 809 (2018)

This Comment analyzes personal jurisdiction through the lens of Bristol-Myers Squibb v. Superior Court. Courts have, for years, been split on the degree of relatedness required between the claim and the defendant’s contacts with a forum when analyzing specific jurisdiction. While the Supreme Court recently intervened in an attempt to clarify the issue and articulate a single test for relatedness, this Comment argues that the Court’s entire personal jurisdiction framework is flawed. The main problem is an overemphasis on the defendant’s contact with the forum. The result of this emphasis is that courts rarely, if ever, consider fairness as a dispositive factor in the analysis. And when courts try to expand the scope of jurisdiction under this contact-focused approach, the resulting opinions can be confusing or otherwise flawed.

Read More »

Restoring Public Confidence in the Criminal Justice System: Policing Prosecutions When Prosecutors Prosecute Police

Caleb J. Robertson | 67 Emory L.J. 853 (2018)

Recent high-profile cases of police violence that have ended with non-indictments of the involved officers have increased public scrutiny of criminal justice systems’ approach to police-suspects. This Comment focuses on the assertion made by many that local prosecutors cannot fairly prosecute their law enforcement counterparts because of unfair bias. This Comment puts to the side the issue of whether such bias actually exists and instead focuses on the perception that these biases exist, arguing that systemic changes are needed to address the appearance of injustice they cause. The perception of bias degrades the appearance of justice to the public and police alike, endangering the legitimacy of the legal system; for that reason, we ought to presumptively disqualify local prosecutors from handling cases involving police-suspects. Instead, an independent special prosecutor, an outsider appointed by the state attorney general, or a civilian review board should handle such cases.

Read More »

Irrational Science Breeds Irrational Law

Caleb Small | 67 Emory L.J. 889 (2018)

Current jurisprudence regarding the subject matter eligibility requirement for patents relies upon outdated assumptions in both philosophy of science and the scientific endeavor itself. In relying upon these assumptions, the Supreme Court, especially in its recent decisions covering biotechnology and computer software, has given the arguably more technocratic lower federal court judges a confusing and unworkable test. Scholars have proposed new approaches on subject matter eligibility, urging courts to revisit and revitalize other areas of the patentability analysis: utility and the written description requirement. While these arguments adeptly characterize some solutions to the current predicament, they do so without utilizing the full armament available to them. This Comment proposes that by instead viewing the problems with modern jurisprudence as a misunderstanding in the realm of philosophy of science, the lens provided by Thomas Kuhn in The Structure of Scientific Revolutions clarifies such arguments against the Supreme Court’s “inventive step” analysis.

Read More »