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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Keeping the Arms in Touch: Taking Political Accountability Seriously in the Eleventh Amendment Arm-of-the-State Doctrine

Jameson B. Bilsborrow | 64 Emory L.J. 819 (2015)

The Eleventh Amendment to the United States Constitution embodies the principle of state sovereign immunity, long held to bar suits by private litigants in federal courts or under federal law who seek redress for rights violations at the hands of state governments. But states themselves are not the only prospective defendants shielded by this form of sovereign immunity. As a subset of Eleventh Amendment jurisprudence, the arm-of-the-state doctrine allows government entities closely situated to their respective state governments to partake of the state’s Eleventh Amendment sovereign immunity. Unfortunately, this doctrine, both in theory and in application, has been fraught with inconsistency and incoherence since the Supreme Court introduced it in 1977. As a solution, this Comment argues that, rather than the rationales previously offered by the Court, a political accountability rationale ought to guide the arm-of-the-state inquiry. This rationale has been present in the Court’s sovereign immunity jurisprudence generally but has yet to be substantially incorporated in the arm-of-the-state context.

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From Sea to Shining Sea: A New Approach to Interpreting the Foreign Trade Antitrust Improvements Act

Gerard F. Bifulco | 64 Emory L.J. 869 (2015)

The Foreign Trade Antitrust Improvements Act (FTAIA) was passed in 1982 to govern the application of the Sherman Act to antitrust violations that occurred abroad. While the statute received little attention in its early years, public and private plaintiffs have recently begun to collect large fines and penalties under its jurisdiction. As the number of parties subject to these judgments has continued to grow, the increasing focus on the FTAIA has caused uneven development of the statute: while certain aspects of the FTAIA were defined and refined by judicial interpretation, other language in the statute remained underdeveloped. This Comment proposes a new interpretation of the “direct, substantial, and reasonably foreseeable effect” requirement of the FTAIA. This new interpretation provides courts with the means to interpret a section of the FTAIA by balancing previous judicial attempts at deciphering the statute with the intent of the members of Congress who drafted it.

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Blurred Lines: Sexual Orientation and Gender Nonconformity in Title VII

Burton F. Peebles | 64 Emory L.J. 911 (2015)

Title VII’s prohibition of discrimination on the basis of sex is read broadly to include gender nonconformity. Although social scientists have documented the historic link between the homosocial performance of sexual orientation and the achievement of hegemonic masculinity within the modern workplace, courts continue to struggle with the task of defining the scope of protected gender nonconforming conduct. As many within the lesbian, gay, bisexual, and transgender community continue to demand equal access, recognition, and employment opportunity, only twenty-one states provide statutory protections for LGBT persons or their allies, and courts utilize a number of judicial limits in an attempt to readily distinguish claims based on “sex” and those based on “sexual orientation.” However well-intended, such tools frustrate the legislative goals underlying Title VII and negate social science that suggests a new, fluid conceptualization of gender normativity is in order—one capable of recognizing sexual orientation’s unique role in achieving and reinforcing gender. This Comment proposes the use of an expansive interpretation of sex and what constitutes discrimination based on sex and discourages the imposition of court-crafted limits to the scope of conduct capable of classification as gender nonconforming.

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