Emory Law Journal

Volume 68Issue 3

Legitimizing Character Evidence

Justin Sevier | 68 Emory L.J. 441 (2019)

Modern consensus among legal commentators is that character evidence—when used to show that an individual behaved in accordance with her predisposition to commit some act—is an illegitimate form of fact-finding proof. This consensus is codified in the Federal Rules of Evidence, which forbids the use of most “propensity evidence” at trial. Defenders of the ban suggest, without empirical proof, that jurors would overvalue the probative worth of propensity evidence and that the public would balk at such evidence as a matter of legal procedure. Using insights from social psychology, this Article reports the results of three original experiments, which examine the conditions under which the public might legitimize verdicts that rely on propensity evidence. These experiments, which surveyed over 1,200 participants, suggest that propensity evidence is a legitimate form of trial proof and that jurors are more competent to evaluate such evidence than policymakers believe.

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National Personal Jurisdiction

Jonathan Remy Nash | 68 Emory L.J. 509 (2019)

Personal jurisdiction has always constrained plaintiffs’ access to courts, and recent Supreme Court decisions impose even more severe limits. These limitations are magnified by the standard understanding that the relevant forum for purposes of the personal jurisdiction calculus is the state. This Article explores the possibility of expanding the use of national personal jurisdiction. First, it argues that there is no Fifth Amendment Due Process Clause barrier to national personal jurisdiction. Second, it argues that Congress has the power to introduce national personal jurisdiction as to all claims brought in the federal courts, but that Congress lacks authority to introduce national personal jurisdiction as to any claims brought in the state courts. However, Congress could open the federal courthouse doors wider to claims where national personal jurisdiction is deemed appropriate. Third, this Article considers what steps Congress can use to implement national personal jurisdiction.

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The Problems with Alleging Federal Government Conspiracies Under 42 U.S.C. § 1985(3)

Allen Page | 68 Emory L.J. 563 (2019)

To properly allege a conspiracy under § 1985(3)—the less-familiar cousin to § 1983—a litigant must overcome many barriers. Many of these come from the statute itself. But in Ziglar v. Abbasi, a case concerning the post-9/11 detention of Muslim and Arab men, the Supreme Court added two more barriers—each ostensibly linked to proving the conspiracy element—that do not actually derive from the statute: the intracorporate conspiracy doctrine and qualified immunity. This Comment explains why neither of these doctrines should limit plaintiffs— claims in the manner applied by the Court. The intracorporate conspiracy doctrine should be abandoned completely. And qualified immunity should not apply to the conspiracy element. Instead, it should only apply to elements affecting the plaintiff’s rights.

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NFL Takes a Page from the Big Tobacco Playbook: Assumption of Risk in the CTE Crisis

Mikayla Paolini | 68 Emory L.J. 605 (2019)

As research connecting CTE to football grows, the NFL faces litigation concerning its role in preventing or raising awareness of this issue. In response, the League has taken a page from the tobacco industry playbook by employing the same strategies used during decades of litigation surrounding the health consequences of smoking cigarettes. Accordingly, this Comment explores the utility of using Big Tobacco as a predictive template for future NFL/CTE litigation by unpacking the historical parallels and distinctions between these two industry giants, especially as pertains to an assumption of risk defense. Ultimately, this comparative analysis informs litigation strategy by outlining the unique pressures and structures faced by NFL plaintiffs such that they should overcome an assumption of risk defense. While their circumstances are fundamentally different, NFL athletes face the same institutional complicity and orchestrated denial as did tobacco users, only this time, all of America has a Sunday ticket.

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Process Is Due: The World Health Organization Prequalification of Medicines

Connor Fuchs | 68 Emory L.J. 641 (2019)

Billions of people still lack access to essential medicines. This problem disproportionately affects people in low-income countries. The World Health Organization’s Prequalification of Medicines Programme plays a critical role—particularly in low- and middle-income countries—in ensuring that drugs used in the treatment of priority health conditions, such as HIV and tuberculosis, meet minimum quality standards. However, the Prequalification Programme faces two glaring shortfalls. First, manufacturers whose drugs are denied prequalification are unable to challenge such a decision, raising international due process concerns. Second, nearly all of the prequalified drugs have been produced in middle- and high-income countries, rather than the low-income countries most in need. This Comment proposes that the WHO address these concerns by creating an independent review panel before which manufacturers may challenge adverse decisions, as well as an additional approval pathway available to manufacturers in low-income countries, aimed at facilitating production in these countries.

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