Emory Law Journal

ELJ OnlineVolume 68
Essays

Hall v. Hall: A Lose-Lose Case for Appellate Jurisdiction

Bryan Lammon | 68 Emory L.J. Online 1001 (2018)

In Hall v. Hall, the Supreme Court held that the resolution of a single action consolidated with other actions is a “final decision”—and thus immediately appealable—regardless of whether the other actions remain pending. But in deciding Hall, the Court had no good options. Like so many of its other decisions on appellate jurisdiction, the Court had to choose between a straightforward but pragmatically unsound rule (the option it ultimately took) or a pragmatic rule that would add to the confusion that already exists in matters of appellate jurisdiction. Hall was thus a classic lose-lose scenario. But Hall also illustrates the path forward: rulemaking. The federal courts alone cannot resolve the many issues that vex federal appellate jurisdiction. The Rules Committee must step in to reform this area of law.

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Title VII and the #MeToo Movement

Rebecca Hanner White | 68 Emory L.J. Online 1014 (2018)

The #MeToo movement has drawn unprecedented attention to sexual harassment in the workplace. But there is a disconnect between sexual harassment as popularly understood and sexual harassment as prohibited by Title VII. This Essay identifies those areas where the law and the public understanding of it most starkly diverge. Additionally, as this Essay describes, those who are retaliated against for making claims of sexual harassment often fare poorly after stepping forward; many complaints concern conduct that has not yet reached the requisite level of severity or pervasiveness, and thus are found unprotected. This Essay identifies where the #MeToo movement, to the extent it reflects societal understanding of what the law should be, may impact judges’ and juries’ application of governing legal standards. The law often evolves in response to changing social norms, and the #MeToo movement, in ways this Essay describes, has the opportunity to effect this evolution in the law’s approach to on-the-job sexual harassment.

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Why Appeals Courts Rarely Reverse Lower Courts: An Experimental Study to Explore Affirmation Bias

Barry C. Edwards | 68 Emory L.J. Online 1035 (2019)

One of the most striking features of appellate courts in the United States is also one of the least understood: Appellate courts rarely reverse lower court decisions. The data reviewed in this Article indicate that roughly 90% of appellate court decisions affirm lower court rulings. Why do appeals courts so often affirm? Do trial court judges rarely make reversible errors or do appellate courts suffer from “affirmation bias” and fail to correct enough errors? These fundamental questions cannot be answered empirically, so I conducted a decision-making experiment with law students and political science majors. The results indicate that random variation in who prevailed in the lower court significantly influences who wins on appeal. Affirmation bias may inflate appellate court affirmation rates by as much as 7%. Further research is needed, but these results suggest that appellate courts fail to correct many trial court errors due to affirmation bias.

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The Supreme Court's Landmark Decision in New Prime Inc. v. Oliveira: A Panoptic View of America's Civil Justice System and Arbitration

Imre S. Szalai | 68 Emory L.J. Online 1059 (2019)

The Supreme Court’s decision in New Prime Inc. v. Oliveira unveils a panoptic, sweeping view of the past, present, and future role of arbitration in America’s civil justice system. Looking back, New Prime stands apart as representing the first decision in decades where the Supreme Court has ruled in favor of workers and rejected an expansive interpretation of the Federal Arbitration Act (FAA). One can also understand the decision in the context of the current sociopolitical environment. In the wake of the #MeToo movement, the Trump presidency, and the contentious confirmation hearings of Justice Brett Kavanaugh, there has been a backlash against the widespread use of forced arbitration. Looking to the future, New Prime suggests a new approach for courts to interpret the FAA, and the case raises larger questions about the scope of the FAA, access to justice, federalism, and the future role of arbitration in America.

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History Repeats Itself: Some New Faces Behind Sex Trafficking Are More Familiar Than You Think

Mary Graw Leary | 68 Emory L.J. Online 1083 (2019)

Society is rightly outraged to see America’s dark history of slavery repeat itself in the form of human trafficking. However, society should be equally concerned about the new face of those who support human trafficking: components of mainstream corporate America. A review of the relevant history of antebellum slavery reveals that one reason why antebellum slavery continued as long as it did was because of the support it received from economic interests that benefited directly and indirectly from the exploitation. Sadly, that reality is once again apparent today as human trafficking thrives in the world in part because it is profitable to the traffickers and others. It is so profitable that legitimate businesses that benefit from it—or from the structures that allow it to thrive—are willing to tolerate it and actively thwart efforts to end human trafficking. This Essay examines these historical parallels and advocates that human trafficking cannot be defeated until such entities are willing to place human beings above profits.

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