Emory Law Journal

ELJ OnlineVolume 69
Essays

Tam Through the Lens of Brunetti: THE SLANTS, FUCT

Ilhyung Lee | 69 Emory L.J. Online 2001 (2019)

In Matal v. Tam, the Supreme Court upheld a party’s constitutional right to register a racial slur as a trademark (“THE SLANTS” for a band). On First Amendment grounds, the Court struck down a provision of the Lanham Act that prohibits the registration of a mark that “disparage[s]” persons. After the decision, the Patent and Trademark Office received registration applications for marks containing other racial slurs and began approving them, except for one. For this slur, the agency suspended its decision pending the outcome in another trademark case before the Court, involving a related provision of the Act that prohibits the registration of “immoral or scandalous” matter. In Iancu v. Brunetti, a divided Court ruled that this provision also violates the Free Speech clause of the First Amendment, thus allowing registration of “FUCT” for clothing. There now appears a fundamental right to register a racial epithet as a trademark. This Essay questions the Court’s decision and reasoning and elaborates on the consequences. In addition, although the Court’s decision in Tam was unanimous, there appear in Brunetti indications of judicial pause and a belated recognition of the dangers of Tam.

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"Undue Hardship" and Uninsured Americans: How Access to Healthcare Should Impact Student-Loan Discharge in Bankruptcy

Alexander Gouzoules | 69 Emory L.J. Online 2019 (2020)

Student-loan debt has grown to unprecedented heights. Contributing to the severe burden imposed by these debts is the Bankruptcy Code’s unique presumption that they are not dischargeable. To overcome that presumption, a debtor must establish that repayment of her loans would constitute an “undue hardship.” This Essay examines the disagreement among bankruptcy courts that have interpreted the “undue hardship” standard in situations where a debtor is unable to afford health insurance—a common occurrence among the economically disadvantaged. After examining recent healthcare reforms, I argue that Congress has expressed a judgment that all Americans should obtain minimum essential healthcare. Though this goal remains unrealized, it should inform courts’ “undue hardship” analysis, and debtors who cannot obtain healthcare while repaying loans should be entitled to a bankruptcy discharge. This reform has been made even more urgent by the economic disruptions and increased healthcare costs imposed by the ongoing COVID-19 pandemic.

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The Impact of Artificial Intelligence on Forensic Accounting and Testimony--Congress Should Amend "The Daubert Rule" to Include a New Standard

Victor Nicholas A. Metallo | 69 Emory L.J. Online 2039 (2020)

This Essay attempts to address the current issues and legal implications surrounding the use of artificial intelligence by forensic accounting experts and its importance to forensic accounting research. It reviews existing law, proposes changes to the Federal Rules of Evidence for using artificial intelligence in the courtroom, and covers emerging technology a forensic accountant may encounter, such as blockchain, cryptocurrency, “smart contracts,” machine learning, and algorithmic entities. Finally, the Essay concludes that the changes to the rules should encompass standards to account for artificial intelligence reliability and argues forensic accounting experts and all forensic experts are needed even more in light of this new technology to assist the trier of fact in its deliberations.

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Faithless or Faithful Electors? An Analogy to Disobedient but Conscientious Jurors

Jeffrey Abramson | 69 Emory L.J. Online 2065 (2020)

Do delegates to the Electoral College have any discretion in how they vote for President or Vice President? Two pending cases call upon the Supreme Court to answer this question. This Essay draws a comparison between disobedient jurors and so-called “faithless” electors. Both jurors and electors make a pledge to follow their instructions. However, we do not punish jurors who violate their oaths in order to discharge their duty as they see fit. We do not even call them “faithless.” We call them conscientious. This Essay explores whether electors are another example of government actors who are bound by an oath of office and yet sometimes free to break their pledge. I conclude that there is one circumstance where it takes a faithless elector to keep faith with democracy. This circumstance is when the loser of the national vote is about to become president through the Electoral College.

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