Emory Law Journal

Volume 60Issue 1

Impersonal Jurisdiction

Allan Erbsen | 60 Emory L.J. 1 (2010)

Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation. Courts and commentators recognize the issue’s importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent. This Article seeks to reorient the discussion by developing a framework for thinking about why and how the Constitution regulates personal jurisdiction. It concludes that principles animating the emerging field of horizontal federalism—the constitutional relationship between states—should guide jurisdictional rules and instigate sweeping reevaluation of modern jurisprudence. In particular, the Article questions two pillars of the Supreme Court’s jurisprudence. More generally, the Article creates a framework for thinking about personal jurisdiction that ties the subject into analogous debates about ostensibly distinct areas of constitutional law and provides a foundation for testing competing normative critiques of modern doctrine.

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A Lack of Resolution

David Zaring | 60 Emory L.J. 97 (2010)

The failure to resolve—that is, impose a quick death penalty on—enormous financial intermediaries such as Lehman Brothers and AIG damaged the ability of the government to respond to the financial crisis. But expanding resolution authority to cover new systemically significant institutions—which is one of the lynchpins of financial regulatory reform—poses a problem of legitimacy with constitutional implications, as resolution authority is usually exercised with almost no predeprivation process and little postdeprivation compensation. At the same time, banking regulators have failed, every time they have been given more resolution authority, to exercise that authority when it is needed. This Article reassesses resolution authority. It proposes (1) domestic solutions to protect against government overreach and (2) an international context to deal with the problem of underreach.

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Nineteenth-Century Principles for Twenty-First-Century Pleading

Adam McDonell Moline | 60 Emory L.J. 159 (2010)

Two recent Supreme Court decisions, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, upended the standards of pleading under the Federal Rules. In both cases, the plaintiffs had filed complaints so unsubstantiated that the Court concluded they could have no other purpose than to abuse the discovery process against the defendants. Rather than subject the defendants to these unfair burdens, the Court struck language from a fifty-year-old precedent, Conley v. Gibson, that would have allowed the suits to proceed. The Court’s solution created three new problems. Lower court judges found little guidance in its new, amorphous “plausibility” standard. Critics argued that Twombly and Iqbal would lock the gates to the federal courts. Even the decisions’ supporters bristled at the Court’s cavalier treatment of precedent. This Comment solves all three of these problems.

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Wake Up Fannie, I Think I Got Something to Say to You: Financing Community Land Trust Homebuyers Without Stripping Affordability Provisions

Sarah Ilene Stein | 60 Emory L.J. 209 (2010)

Individual homeownership, the backdrop of the American Dream, is often cited as a panacea of economic and social stability. However, the recent foreclosure crisis and related economic collapse exposed vulnerabilities in the developed system of homeownership and mortgage financing—vulnerabilities so deep that they have left whole neighborhoods abandoned, and shaken economic stability across every income bracket. As a result, some analysts have begun to seriously question the virtues of—and sometimes to blame—policies that incentivize homeownership for people who traditionally cannot afford it. This Comment presents an existing model of affordable homeownership that has weathered the housing collapse with astounding resilience: the Community Land Trust (CLT). The proposed changes suggest that these provisions survive foreclosure, lending stability to the CLT model and acknowledging the demonstrated resilience of CLT borrowers in the recent housing collapse.

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