Emory Law Journal

Volume 60Issue 6

Entity and Identity

Usha Rodrigues | 60 Emory L.J. 1257 (2010)

The function, indeed the very existence, of nonprofit corporations is undertheorized. Recent literature suggests that only preferential tax treatment adequately accounts for the persistence of the nonprofit form. This explanation is incomplete. Drawing on psychology’s social identity theory, this Article posits that the nonprofit form can create a special “warm-glow” identity that cannot be replicated by the for-profit form. For example, a local nonprofit food cooperative sells more than the free-range eggs or organic strawberries that Whole Foods and other for-profits market so effectively. The co-op offers community participation and an investment in local farms, a distinctive ethos that is incompatible with the profit motive. Ascribing a special meaning to the nonprofit form allows us to view afresh a variety of issues regarding the appropriate legal treatment of nonprofits.

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A Sea Change off the Coast of Maine: Common Pool Resources as Cultural Property

Pammela Quinn Saunders | 60 Emory L.J. 1323 (2010)

In groundbreaking and award-winning research, social scientists have documented the power of small groups to manage common pool resources (CPRs). That research concludes that collective or communal ownership of CPRs may be optimal in certain circumstances. While group- and community-level rights have also sometimes been conceived in property law terms, these accounts have not focused on whether and how to protect existing groups whose successful management of CPRs has been documented. The idea that such a movement might occur, and what form it should take, is ripe for consideration and evaluation. In this Article, I use an initiative currently being advanced by a community of Maine lobstermen to create and illustrate a model that might be broadly used for the recognition of group-level property rights in communities, or other groups, that are the de facto stewards of CPRs.

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Superhuman in the Octagon, Imperfect in the Courtroom: Assessing the Culpability of Martial Artists Who Kill During Street Fights

Stephen Michael Ian Kunen | 60 Emory L.J. 1389 (2010)

This Comment offers a new way for subjective characteristics to influence the criminal law of self-defense. Specifically, this Comment proposes a higher standard of self-defense for martial artists who kill their opponents outside competition settings, by denying the martial artists, as a matter of law, the ability to claim two distinct partial defenses: imperfect self-defense and provocation. For a martial artist, a proportional use of force should rarely require killing the aggressor because martial artists possess special fighting skills that are designed to subdue opponents without killing them. Courts should allow juries to judge a martial artist’s culpability for homicidal violence by considering his skills according to what this Comment introduces as the “martial sufficiency test.”

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Inappropriate Forum or Inappropriate Law? A Choice-of-Law Solution to the Jurisdictional Standoff Between the United States and Latin America

Jena A. Sold | 60 Emory L.J. 1437 (2010)

Numerous substantive and procedural advantages make the U.S. court system a uniquely attractive forum to plaintiffs worldwide. As a result, U.S. courts increasingly rely on forum non conveniens (FNC), a common law doctrine permitting a court to dismiss a case to another more convenient forum that is also available for the litigation. When the foreign plaintiffs hail from Latin America, however, their home forums are often unavailable following an FNC dismissal due to the Latin American courts’ interpretation of their own preemptive system of jurisdiction. To make this clear and prevent U.S. courts from dismissing for FNC, numerous Latin American countries recently have enacted “blocking statutes,” explicating that a Latin American court cannot exercise jurisdiction over a case dismissed abroad under the FNC doctrine. Many U.S. courts refuse to accept the outcome this legislation seems to dictate and, through incorrect FNC analysis, continue to dismiss these cases to Latin America, where they will not be heard.

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