Emory Law Journal

Volume 64Issue 5

The Contingent Fourth Amendment

Michael J. Zydney Mannheimer | 64 Emory L.J. 1229 (2015)

In the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment encompasses the common-law restrictions on searches and seizures that existed in 1791 when the Amendment was adopted. Yet, in case after case, the Court has encountered indeterminacy in the common law circa 1791. At times, the Court confronts this indeterminacy by concluding that, in the absence of a clear common-law rule, the Fourth Amendment does not govern the issue. At other times, in the face of indeterminacy, the Court falls back upon general Fourth Amendment principles. And on occasion the Court pretends that the indeterminacy does not exist. The reason for the absence of clear common-law search and seizure rules in 1791 is that the common law differed in important respects among the new American States. More importantly, the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as the price of ratification, recognized that the common law differed by State. This Article introduces a view of the Fourth Amendment—the contingent Fourth Amendment—that courts and commentators have overlooked. It asserts that we ought to conceive of our rights against unreasonable searches and seizures by federal officials as being largely contingent on state law.

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Severability as Conditionality

Eric S. Fish | 64 Emory L.J. 1293 (2015)

The Supreme Court currently operates under the premise that if it finds one part of a law unconstitutional, it can strike down other parts as well. But it is not clear where the Court finds this power to declare laws inseverable. And that lack of clarity has created a doctrinal muddle wherein the Court applies several inconsistent tests. Three such theories are implicit in the current judicial doctrine and academic debate about severability: (1) that it is an equitable remedial power, akin to the power to issue a civil injunction; (2) that it is a variant of intentionalist statutory interpretation, wherein courts strike down further provisions of a partially unconstitutional law so as to preserve the legislators’ hypothetical intentions; and (3) that it is a judicial contract remedy applied to legislative deals. This Article explores these three theories, teasing out their respective logics and showing that they are implausibly broad and inconsistent with Article III of the Constitution. This Article then develops and defends a fourth, narrower theory: that a court can declare a statute inseverable only where the legislature has made one part of the statute conditional on the continued validity of another.

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Cold Piazza: Judicial Construction of the Chapter 7 “For Cause” Provision

Wes Pickard | 64 Emory L.J. 1361 (2015)

This Comment analyzes a recent decision by the U.S. Court of Appeals for the Eleventh Circuit focusing on the role of an implied good faith inquiry in the “for cause” provision in Chapter 7 of the Bankruptcy Code. The decision in Piazza v. Nueterra Healthcare (In re Piazza) contributes to a purported circuit split on whether the “for cause” provision should be the locus for an implied good faith inquiry or whether such an inquiry should be left to other parts of the Code. This Comment argues that the circuit split on the implied good faith inquiry is an illusion. All circuit courts that have examined the issue would likely consider the same behaviors to be grounds for dismissal for bad faith in a future case. The more critical issue for debtors and creditors in bankruptcy is discord among the courts of appeals with regard to the implied good faith test. This Comment argues that multifactor tests like the one endorsed in Piazza are counteractive to the goal of the implied good faith inquiry, namely deterring abuse of the bankruptcy system.

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The Key to Being a Good Referee: The Call the Ninth Circuit Missed When Evaluating False Endorsement Claims

Kimberly Rubin | 64 Emory L.J. 1389 (2015)

Society is consumed with celebrities, and celebrity identity has pervasive power. Two bodies of law are turned to when there is unauthorized exploitation of a celebrity’s likeness or persona. One, Section 43(a) of the Lanham Act, is a federal trademark statute, and the other is the common law right of publicity. Congress designed Section 43(a) to protect consumers from mistakenly believing that a celebrity endorsed a particular product, while the right of publicity centers on the celebrity’s economic interest in his or her own identity. The interests that both the Lanham Act and the right of publicity are designed to protect must be balanced with the First Amendment interest in free speech. The Ninth Circuit recently decided two cases dealing with this balance. The two cases had very similar fact patterns, but the Ninth Circuit used different tests to analyze the claims, leading to opposite holdings. This Comment advances the novel argument that the Ninth Circuit and other courts should use a new test, combining the transformative use test and a modified likelihood of confusion test when evaluating Section 43(a) Lanham Act claims.

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Closing the Gap: Protecting Predictive Neuroscience Information from Health Insurance Discrimination

Joyce J. Shin | 64 Emory L.J. 1433 (2015)

Recent neuroscience advances have made it possible to predict illnesses, such as Alzheimer’s disease, before the onset of any symptoms. This capability is similar to the use of genetic information to predict illness, which began to emerge roughly twenty-five years ago. While predictive information is incredibly useful, the benefits come with a heavy cost. Predictive information can easily be used as a basis for unfair discrimination by health insurance companies, a problem exacerbated by the fact that predictive information is far from perfect. Congress acknowledged and addressed this concern when it preemptively passed the Genetic Information Nondiscrimination Act to prohibit unfair health insurance discrimination on the basis of genetic information. Congress further reinforced and expanded the protections afforded to predictive genetic information with the passage of the Affordable Care Act. This Comment argues that there is a gap in protection for predictive neuroscience information in the large-group and self-insured health insurance markets. In order to close the gap, this Comment proposes the addition of a health-status-related factor in the Affordable Care Act for predictive neuroscience information.

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