Emory Law Journal

ELJ OnlineVolume 65
Essays

Fixing the Federal Judicial Selection Process

Carl Tobias | 65 Emory L.J. Online 2051 (2016)

Federal court selection is eviscerated. Across five years in Barack Obama's presidency, the judiciary confronted some eighty-five vacancies because Republicans never agreed to prompt Senate consideration. Over 2015, the GOP cooperated little, approving the fewest jurists since Dwight Eisenhower was President. However, selection might worsen. This year is a presidential election year, a period in which confirmations traditionally slow to a halt, and a predicament that controversy regarding Justice Antonin Scalia's High Court vacancy exacerbates. At the next inauguration, the bench may experience 100 unfilled circuit and trial level positions. These concerns demonstrate that the broken appointments system requires permanent improvement. This survey evaluates confirmations during President Obama's tenure, detecting that Republicans have plumbed new depths for obstruction. Because this recalcitrance undermines judicial selection, the delivery of justice and respect for the coequal branches of government, the analysis proffers multiple long-term solutions, notably a bipartisan judiciary, which could enhance the process.

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Truthiness and the Marble Palace

Chad M. Oldfather, Todd C. Peppers | 65 Emory L.J. Online 2001 (2016)

Tucked inside the title page of David Lat’s Supreme Ambitions, just after a note giving credit for the cover design and before the copyright notice, sits a standard disclaimer of the sort that appears in all novels: ”This is a work of fiction. Names, characters, places, and events either are the products of the author’s imagination or are used fictitiously. Any resemblance to actual persons, living or dead, events or locales is entirely coincidental.” These may be the most truly fictional words in the entire book. Supreme Ambitions' observations about judging, clerking, prestige and the culture of elite law schools likewise reflect core truths, albeit via storylines and characters that are often exaggerated almost to the point of caricature. The result is a strong form of what Stephen Colbert calls ”truthiness.”

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A New Threat to the Viability of Campaign Contribution Limits

Brent Ferguson | 65 Emory L.J. Online 2020 (2016)

In July, the Wisconsin Supreme Court held that it violates the First Amendment to prevent political candidates from coordinating with outside spending groups like Super PACs if the groups' ads do not expressly advocate the election or defeat of a candidate. The decision is erroneous under federal precedent and fundamentally misunderstands the Supreme Court's holdings distinguishing between independent spending and spending coordinated with a candidate. Wisconsin's regulatory scheme will be largely inoperable for the time being: Contribution limits will be fairly meaningless, at least for sophisticated actors who seek to circumvent them. And the logic of the decision leads to the conclusion that candidates have the constitutional right to set up campaign accounts that may accept unlimited contributions, so long as that money is not used for express advocacy.

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Responses

The Case in Favor of Civil Justice Reform

A Response to 2015 Pound Symposium: The "War" on the U.S. Civil Justice System

Victor E. Schwartz, Cary Silverman | 65 Emory L.J. Online 2065 (2016)

In October 2015, Emory University School of Law hosted a provocatively titled symposium "The 'War' on the U.S. Civil Justice System." The program was co-sponsored by the Pound Civil Justice Institute, a "think tank" founded and controlled by leaders of the plaintiff' bar that advocates for expansions in liability through presenting legal education seminars and publishing papers. The introduction to the symposium edition waxes nostalgic for the civil justice system of "[a] half-century ago," which was "a much-admired, well-organized process for resolving disputes, generally in public, before juries and independent judges." As this Essay will show, at that time, the nation was in the midst of the most rapid expansion of liability exposure in its history. Civil justice reform is an effort, not to turn back the clock, but to achieve balance in areas where courts went too far in relaxing requirements for both imposing liability and awarding damages.

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Dynamic Regulation to Curtail Excessive Corporate Risk-TakingA Response to Professor Schwarcz

A Response to Steven L. Schwarcz, Excessive Corporate Risk-Taking and the Decline of Personal Blame, 65 Emory L.J. 2 (2015)

Wulf A. Kaal | 65 Emory L.J. Online 2061 (2016)

In his article Excessive Corporate Risk-Taking and the Decline of Personal Blame, Professor Schwarcz succinctly identifies the shortcomings of the existing regulatory infrastructure in the context of risk-taking, and he evaluates the adequacy of firm-level liability. While Professor Schwarcz's main points are of course well taken, and he certainly makes a tremendous contribution to the literature on excessive risk-taking by executives, a key assumption underlying most of the proposals Professor Schwarcz analyzes is that rules could and should be optimally tailored to address a perceived regulatory problem. In an environment of exponentially increasing disruptive innovation, such assumptions may not be justified. In fact, the assumption that stable and optimal rules are a necessary and adequate remedy in many ways supports and perpetuates excessive risk-taking by executives, financial crises, and financial regulatory cycles. A key role for scholarship in this context could be the evaluation of supplemental governance mechanisms that help the main regulatory framework adapt to constantly changing market environments, disruptive (financial) innovation, and the regulatory environment.

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The Vulnerable Subject of Rape Law: Rethinking Agency and Consent

A Response to Deborah Tuerkheimer, Rape On and Off Campus, 65 Emory L.J. 1 (2015)

Stu Marvel | 65 Emory L.J. Online 2035 (2016)

Tuerkheimer's article for the Emory Law Journal, Rape On and Off Campus, extends her earlier work on sexual agency, consent, and the inadequate nature of U.S. rape law to examine the disconnect between widely acknowledged cultural norms around sex, and the stubborn recalcitrance of rape laws to social reform. This response applies some of the insights of vulnerability theory to Tuerkheimer's piece with the goal of extending these important conversations into new analytical fields. The theory provides a useful vantage upon the systemic and historical patterns of inequality that lead to violence against women, as well as the legal and social means for redress. By tracking questions of consent, criminality, and sexual agency through a vulnerability lens, we may move away from the "vulnerable victim" model to engage a more robust understanding of resilience and institutional responsibility.

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