Emory Law Journal

Volume 60Issue 2
The 2010 Randolph W. Thrower Symposium, The New New Deal: From De-Regulation to Re-Regulation
Thrower Symposium Articles

The Vulnerable Subject and the Responsive State

Martha Albertson Fineman | 60 Emory L.J. 251 (2010)

Equal protection law under the United States Constitution requires that in order to be treated equally, individuals must be treated the same. This sameness-of-treatment version of equality ignores contexts, as well as differences in circumstances and abilities on the part of those whose treatment is compared. Most perplexing is the way in which the equal protection doctrine ignores existing inequalities of circumstances and presumes an equivalence of position and possibilities. Such a narrow approach to equality cannot be employed to combat the growing inequality in wealth, position, and power that we have experienced in the United States over the past few decades.

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Overcoming Fragmentation in Disability and Health Law

Ani B. Satz | 60 Emory L.J. 277 (2010)

Legal structures respond to human need by defining situations in which specific rights or entitlements attach. Legal protections usually depend on whether an individual is operating within a particular time period, physical space, or other context. The assumption underlying this targeted approach to state response is that the law must make distinctions between individuals that both determine eligibility for legal protections and possible remedies. In litigation, this approach may be perceived as necessary to promote fairness amongst adversarial parties. Targeted approaches may also facilitate desired judicial outcomes, by expanding, contracting, or reframing liability. Laws structuring social welfare programs or other access to material resources may target certain populations to control public expenditures. This Article explores the previously underappreciated problem of legal fragmentation for individuals who are disabled or seriously ill. I examine such fragmentation at the macro- and micro-levels.

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Federalization of the Mosquito: Structural Innovation in the New Deal Administrative State

Polly J. Price | 60 Emory L.J. 325 (2010)

Malaria was a significant problem in the southern United States during the early decades of the twentieth century. Part of President Franklin D. Roosevelt’s New Deal focused on economic development of the South, with improvement of public health in that region as an integral part. This Article is a case study of increased federal public health efforts during the New Deal and World War II eras, which replaced some traditionally state and local areas of control as well as private philanthropic efforts.

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Law and the Social Control of American Capitalism

William J. Novak | 60 Emory L.J. 377 (2010)

This Essay is part of a larger, ongoing investigation of the role of law in the creation of a modern American state from 1877 to 1932. That project charts the decline of an early nineteenth-century world of local, common law self-government (what I called in a previous work a “well-regulated society”) and the rise of a distinctly modern administrative regulatory state in the United States. This new legal-political regime was rooted in three interlinked developments: the centralization of public power; the individualization of private right; and the constitutionalization of the rule of law. Beginning soon after the Civil War, nineteenth-century common law understandings of the public obligations of associative communities in a confederated republic were increasingly replaced by a new emphasis on the constitutional rights of individual citizens in a nation-state—a nation-state insistently expanding its general police and regulatory authority.

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The Most Important (and Best) Supreme Court Opinions and Justices

Frank B. Cross & James F. Spriggs II | 60 Emory L.J. 407 (2010)

Identifying the most important cases decided by the Supreme Court is more than an interesting parlor game; the process illuminates the function of the law. The Court issues scores of opinions annually, some of which go on to assume great importance in future years, while many others languish in desuetude. Some opinions may appear to be important (e.g., they are commonly found in constitutional law casebooks), when in fact they have little real impact on the nation’s law. This Article embarks upon the project of identifying which Supreme Court opinions have proved the most legally significant and exploring why. We employ an analysis of citations to opinions. Other legal authors have used citation studies to assess the importance or value of opinions or judges. We build upon these existing analyses with more sophisticated measures and a focus on what makes Supreme Court opinions more or less important in the law.

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The Difficulties with the Subpart F System of International Taxation: How the Schering-Plough Decision Indicates That the Status Quo Is Unclear and Unwise

Daniel Soleimani | 60 Emory L.J. 503 (2010)

Complicated subpart F rules govern the taxation of transactions between a U.S. parent company and its foreign subsidiaries. The difficulty with interpreting the subpart F rules and applying them to complex derivative transactions has been the subject of extensive tax literature. Few of the proposed solutions have been simple enough to implement quickly and efficiently without wholesale changes to the subpart F system. This Comment focuses on the inconsistent tax treatment of economically equivalent transactions that currently exists under subpart F and the incentives that this system creates for U.S. companies to engage in expensive tax-planning strategies to avoid subpart F taxation. These tax-planning strategies—used to achieve an economically identical result—cost both the government and U.S. companies unnecessary money.

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When News Doesn’t Want to Be Free: Rethinking “Hot News” to Help Counter Free Riding on Newspaper Content Online

Amy E. Jensen | 60 Emory L.J. 537 (2010)

This Comment first explores how copyright law fails to protect content creators from a number of online uses of their content. It argues that where copyright law falls short, the almost-century-old doctrine of “hot news” misappropriation can help content creators address certain types of unfair competition. A federal statute codifying this doctrine would ultimately offer the most protection for content creators. This Comment argues, however, that such a statute must be limited in scope, and thus its utility would be likewise limited. Ultimately, if news gatherers wish to survive, they must adapt to the needs of consumers and challenge the prevailing idea that those who collect the news and disseminate it online require no compensation for their work.

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