Emory Law Journal

Volume 65Issue 4
Articles

Wealth Inequality and Family Business

Benjamin Means | 65 Emory L.J. 937 (2016)

Despite their economic significance, little has been done to investigate whether family businesses contribute to wealth inequality. This Article offers the first legal, and one of the only academic, treatments of the topic and shows that family businesses play a double role. On the one hand, family businesses reinforce existing disparities in wealth and opportunity. Heirs, after all, stand to benefit from the hard work of previous generations. On the other hand, family businesses can be a powerful antidote to inequality, disrupting entrenched class hierarchies and creating opportunities for individuals, families, and ethnic communities. This Article concludes that whether family businesses produce net social costs or benefits depends crucially on two principal factors. First, to the extent there is a lack of public investment in social mobility, family businesses can increase the distribution of wealth by providing needed investments in human capital. Second, to the extent the rewards of capitalism are not widely shared, family businesses can offer a source of opportunity for family members, employees, and the communities in which family businesses operate.

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Patent Anticipation and Obviousness as Possession

Timothy R. Holbrook | 65 Emory L.J. 987 (2016)

The concept of possession in property law operates to allocate property rights among competing claimants by awarding the property to the first to take possession. Possession in this context requires an act that communicates to third parties that someone has exercised dominion over the item. Patent law operates in similar ways. The doctrines of novelty and non-obviousness ask, in essence, whether the public was already in possession of the invention prior to the inventor. If so, then the patent application should be rejected. This possession-based view of novelty and non-obviousness offers important insights and prescriptions. As to novelty, the possession framework suggests that the current requirement that the prior art disclose the invention as arranged in the claim is unwarranted. It also suggests that the current doctrine of inherency is wrong. With respect to obviousness, the possession-based approach may be emerging through the Supreme Court’s reinvigoration of the “obvious to try” standard. The possession-based framework also highlights the inconsistent treatment of obviousness as possession in other contexts.

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Freedom of Conscience in War Time: World War I and the Limits of Civil Liberties

Laura M. Weinrib | 65 Emory L.J. 1051 (2016)

This Article examines the relationship between expressive freedom and freedom of conscience as the modern First Amendment took shape. It focuses on efforts by the American Union Against Militarism and National Civil Liberties Bureau—the organizational precursors to the ACLU—to secure exemptions from military service for conscientious objectors whose opposition to American involvement in the First World War stemmed from socialist or radical labor convictions rather than religious scruples. Although such men asserted secular, ethical objections to war, advocates strained to expand the First Amendment’s Free Exercise Clause to encompass them. Concurrently, they sought to import a generalized theory of freedom of conscience into constitutional constructions of freedom of speech and press, within and outside the courts. The conception of liberty of conscience that they advanced, which they linked to an “Anglo-Saxon tradition” of individual rights, clashed with progressive understandings of democratic citizenship and failed to gain broad- based traction.

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Comments

How Will I Know? An Auditing Privilege and Health Care Compliance

Caitlin Pardue | 65 Emory L.J. 1139 (2016)

The current complexities of the False Claims Act and the Affordable Care Act have impacted the rise of government enforcement of fraud and abuse laws within health care entities. Yet this rise in enforcement does not adequately address efforts focused on preventing unintentional violations from occurring. This Comment analyzes the peer review privilege established in the Patient Safety Quality Improvement Act of 2005 (PSQIA), which established a privilege for data collected to improve patient safety, and suggests that a compliance audit privilege fulfills a similar goal. Although there are several differences between patient safety data and compliance audit data, this Comment argues that such differences should not preclude Congress from enacting a compliance audit privilege because compliance and patient safety have compelling similarities. The PSQIA and compliance audits both aim to improve quality and compliance through proactive efforts collecting data, performing ongoing root cause analyses, and encouraging a culture of openness within a health care entity.

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Reconciling Contractualized Procedure in Litigation and Arbitration: A Textual and Policy-Based Approach

Logan S. Kotler | 65 Emory L.J. 1177 (2016)

This Comment examines the prospect of procedural contracts by comparing the text and policies of the Federal Arbitration Act (FAA) and the Federal Rules of Civil Procedure (Federal Rules). As the existing body of literature addressing the normative desirability and plausibility of contractualized procedure grows, this Comment seeks to add textual and policy-based reasons against uncritically redesigning litigation in arbitration’s image. Private contracts already govern in the private dispute-resolution arena, particularly in arbitration. This Comment views freedom of contract along a spectrum, where on one end there are non-negotiable mandates set forth for the public to follow, and freely negotiable terms, such as arbitration agreements under the FAA, toward the other end. This Comment comports with existing scholarship in that it views procedure as negotiable to some extent. However, based on its analyses of the text and policies behind the FAA and the Federal Rules, this Comment ultimately concludes that parties should have less procedural modification freedom in litigation than in arbitration.

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Cry, No Recovery!: Narrowing Judicial Interpretation of CERCLA’s Double Recovery Provision

Allison Murphy | 65 Emory L.J. 1217 (2016)

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was enacted to ensure the cleanup of thousands of hazardous waste sites throughout the United States. The Act also purports to provide parties who must assume the astronomical costs of cleanup with a federal right to contribution or recovery from responsible parties. The language of the Act clearly prohibits plaintiffs from recovering the same costs under both CERCLA and another comparable state or federal law. This Comment argues that CERCLA’s double recovery provision should be narrowly interpreted to create economic incentives for parties to shoulder the burdens of hazardous site cleanup. Plaintiffs should be allowed to recover from collateral sources as well as other responsible parties. Because every federal court has prohibited collateral source recovery, this Comment also proposes that courts should not place undue weight on the plaintiff’s economic benefit from site remediation in double recovery cases.

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