Emory Law Journal

Volume 59Issue 5
Colloquium Celebrating the 25th Anniversary of Feminism and Legal Theory Project
Article

A View from the Cradle: Tort Law and the Private Regulation of Assisted Reproduction

Michele Goodwin | 59 Emory L.J. 1039 (2010)

This Article proposes a paradigm shift. It analyzes the viability of tort law to address the private and costly harms resulting from negligent application of ART. These harms include the intentional and negligent conception of children with significant disabilities. This Article articulates the need for a nuanced approach to tort law in the realm of child-parent conflict—an approach that shifts the social and economic burdens of infant and child harms to parents because they are best situated to avoid the risks of harm. This Article addresses a gap in socio-legal scholarship to unpack when, how, and why tort liability should apply to ART cases. It also anticipates the expanded application of tort theories in traditional intra-familial contexts.

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Colloquium

Foreword

Nicole Phillis | 59 Emory L.J. 1101 (2010)

The Emory Law Journal is happy to celebrate the 25th anniversary of the Feminism and Legal Theory Project (FLTP). Inspired by the “F-factor”—so aptly coined by Professor Nancy Dowd—the Emory Law Journal honors the FLTP. We thank the scholars who have contributed to the colloquium featured in this issue, as well as the Feminism and Legal Theory Project for providing a forum for feminist legal scholarship for over twenty-five years.

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Familial Norms and Normality

Clare Huntington | 59 Emory L.J. 1103 (2010)

Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is an under-recognized aspect of the family-state relationship.

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States of Being: Response Piece

Martha Fineman | 59 Emory L.J. 1171 (2010)

Professor Huntington’s exploration of the potentially positive role for emotion and social norms in rethinking the place of the state in family regulation is an important contribution to the field. However, in order to accomplish the ambitious tasks she sets out for herself, I suggest that she should give more attention to clarifying the meaning of key concepts. Elaboration of certain assertions and terms would strengthen her observations and arguments, making both more persuasive. In the following Parts, I raise some key issues and questions regarding the concepts and terms that warrant further development and articulation.

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The Emotional State and Localized Norms: Reply Piece

Clare Huntington | 59 Emory L.J. 1183 (2010)

I am grateful to Professor Fineman for her probing and engaged response to my Article. I will take this opportunity to make explicit some of the implicit assumptions of the Article that Professor Fineman identifies as worthy of elaboration.

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The “F” Factor: Fineman as Method and Substance

Nancy E. Dowd | 59 Emory L.J. 1191 (2010)

Review of Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, edited by Martha Albertson Fineman, Jack E. Jackson, and Adam P. Romero (2009). Martha Fineman’s latest volume continues her long tradition of challenging, unraveling, and moving forward the dialogue of equality and justice. In this latest volume to emerge from the Feminism and Legal Theory Project (FLTP), Fineman, together with her co-editors, Jack Jackson and Adam Romero, has gathered an extraordinary group of scholars who explore the intersections, differences, and synergies between feminist and queer legal theory.

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Essays

Beauty in the Dark of Night: The Pleasures of Form in Criminal Law

Martha Grace Duncan | 59 Emory L.J. 1203 (2010)

I neither defend nor prosecute defendants. I am a law professor, and my contact with flesh-and-blood criminals extends only so far as visiting prisons and interviewing convicts for research purposes. Some of the prisoners I’ve interviewed have become my friends; others, my long-term correspondents, through the process of my learning and writing about them. Mostly, though, I work not with criminals but with criminal law—a field I adore. You could say, following Max Weber, that I live for as well as off my chosen field.

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A Few Words About Women in the Discourse of Criminal Law Upon Reading Martha Grace Duncan’s Essay, Beauty in the Dark of Night

Nancy Cook | 59 Emory L.J. 1245 (2010)

The harsh realities of crime, victimization, trial, and imprisonment—all laden with pain and violence—are discussed in opinions laced with antiquated poetic language, beautiful imagery, and soft sounds. Professor Duncan herself constructs similarly unlikely literary pairings in her writing about criminal law texts, interweaving the languages of story and witness into the academic discourse of a law journal essay.

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Comments

Protecting Preachers from Prejudice: Methods for Improving Analysis of the Ministerial Exception to Title VII

Benton C. Martin | 59 Emory L.J. 1297 (2010)

Instead of the current approach, which defers to religious organizations, this Comment argues that any right to church autonomy should be balanced against the government’s interest in enforcing anti-discrimination laws. The need for an appropriate balancing test is confirmed by recent lower court opinions that have struggled to justify a deferential approach in the face of employment decisions by religious institutions that violate federal law and lack any religious justification. After arguing for a more sound constitutional approach, this Comment ultimately proposes an amendment to Title VII that would protect ministers from non-religious discrimination while shielding religious organizations from intrusion on religious expression.

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Jurisdictional, Procedural, and Economic Considerations for Non-Party Electronic Discovery

Thomas A. Cooper | 59 Emory L.J. 1339 (2010)

Despite the 2006 amendments targeted to accommodate electronic discovery, the Federal Rules of Civil Procedure do not recognize the unique differences between electronic discovery and the discovery of traditional media. One particularly troubling area is the discovery of electronically stored information that is proprietary to a non-party. The Federal Rules provide only for the production of electronically stored information in the “possession, custody, or control” of both parties and non-parties. This Comment explores the application of this standard to electronic networks existing between a party and a non-party. It questions the expansive scope of discovery of data retrievable from such networks and recommends an alternative to protect the interests of non-parties in the discovery process.

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