Emory Law Journal

Volume 64Issue 3

The Nature of Family, the Family of Nature: The Surprising Liberal Defense of the Traditional Family in the Enlightenment

John Witte, Jr. | 64 Emory L.J. 591 (2015)

This Article shows that many Enlightenment liberals defended traditional family values and warned against the dangers of sexual libertinism and marital breakdown. While they rejected many traditional teachings in their construction of modern liberalism, Enlightenment liberals held firmly to classical and Christian teachings that exclusive and enduring monogamous marriages are the best way to ensure paternal certainty and joint parental investment in children who are born vulnerable and dependent on their parents’ mutual care. Stable marital households, furthermore, are the best way to ensure that men and women are treated with equal dignity and respect, and that husbands and wives, and parents and children, provide each other with mutual support, protection, and edification throughout their lifetimes. The positive law of the state must not only support the marital family but also outlaw polygamy, fornication, adultery, and “light divorce” that violate the other spouse’s natural rights as well as desertion, abuse, neglect, and disinheritance that violate their children’s natural rights to support, protection, and education from their parents.

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Data Nationalism

Anupam Chander & Uyên P. Lê | 64 Emory L.J. 677 (2015)

A BRICS Internet, the Euro Cloud, the Iranian “Halal” Internet: Governments across the world eager to increase control over the World Wide Web are tearing it apart. Iran seeks to develop an Internet free of Western influences or domestic dissent. The Australian government places restrictions on health data leaving the country. Russia requires personal information to be stored domestically. Vietnam insists on a local copy of all Vietnamese data. The last century’s nontariff barriers to goods have reappeared as firewalls blocking international services. Legitimate global anxieties over surveillance and security are justifying governmental measures that break apart the World Wide Web, without enhancing either privacy or security. The issue is critical to the future of international trade and development, and even to the ongoing struggle between democracy and totalitarianism. The theory of this Article expands the conversation about international Internet regulation from efforts to prevent data from flowing in to a country through censorship, to include efforts to prevent data from flowing out through data localization. A simple formula helps demonstrate what is stake: censorship + data localization = total control.

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Rebalancing Copyright Exhaustion

Guy A. Rub | 64 Emory L.J. 741 (2015)

In 2013, in Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court wrote another chapter in the ongoing story of copyright exhaustion. This ruling is part of a vibrant discourse and a series of recent decisions in high-profile cases, domestically and internationally, regarding the scope of copyright exhaustion and, more broadly, the ability of copyright owners to control the distribution of their work along the chain of commerce. Unfortunately, this discussion rarely explores the modern justifications for copyright exhaustion, which makes it notoriously incoherent and confusing. This Article suggests that copyright exhaustion serves an important social function of reducing information costs. Without it, buyers will need to inefficiently waste resources inquiring whether they will be able to resell copyrighted work. Because resale rights are typically socially desirable, the law should usually provide those rights to buyers. Copyright exhaustion also has costs. The main costs are the reduction in the incentives to create and a regressive distributive effect that are the result of the limitations that copyright exhaustion places on certain price discrimination practices. The balance between these benefits and costs should dictate the scope of copyright exhaustion.

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