Emory Law Journal

ELJ OnlineVolume 64

Conditionality as Opposed to Inseverability

A Response to Eric S. Fish, Severability as Conditionality, 64 Emory L.J. 1293 (2015)

Tom Campbell | 64 Emory L.J. Online 2099 (2015)

Eric Fish has given us a most engaging defense of a proposal to allow severability of statutes in almost all cases. In comparison with the current Supreme Court standard, Fish argues that he does not have courts engage in the difficult task of interpreting congressional intent. Instead, he would allow severability as the default, with only very limited exceptions where the legislative branch has indicated inseverability. Of course, the best way to prevent judges from acting as legislators is to prevent them from treating something that was not passed by the legislature as law. The only way to do that, with one hundred percent certainty, is to follow a rule of inseverability, which I advocated in my article, Severability of Statutes, to which Mr. Fish offers some critical attention. So, if the “main benefit” truly is to constrain judges, inseverability wins over severability every time. With inseverability, the court voids a statute, and Congress gets to legislate anew.

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Data Nationalism and Its Discontents

A Response to Anupam Chander & Uyê P. Lê, Data Nationalism, 64 Emory L.J. 677 (2015)

Christopher Kuner | 64 Emory L.J. Online 2089 (2015)

Data localization or data nationalism, which terms I will use synonymously here, has received growing attention. Numerous commentators (including myself) have raised questions about efforts at the national or regional level to regulate the flow of data across borders or to create incentives to localize data processing and storage. This is the topic of the important new article Data Nationalism by Anupam Chander and Uyê P. Lê published in the Emory Law Journal. Chander and Lê provide a thoughtful and useful analysis of regulatory initiatives that promote data nationalism. They have cast their net widely to include examples from around the world (including citation of materials in languages such as Russian and Vietnamese). The Article’s careful consideration of numerous data localization initiatives, the motivations behind them, and their social, economic, and legal implications fills an important need in the literature on Internet regulation. In this short piece I will both respond to the Article and comment on some important overarching issues that it raises.

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Intentional Discrimination that Produces Economic Inequality: Taking Piketty and Hsu One Step Further

A Response to Shi-Ling Hsu, The Rise and Rise of the One Percent: Considering Legal Causes of Wealth Inequality, 64 Emory L.J. Online 2043 (2015)

Michael J. Zimmer | 64 Emory L.J. Online 2085 (2015)

Thomas Piketty in Capital in the Twenty-First Century,  citing to a vast array of data, demonstrates that over the long haul capital grows more rapidly than income or the economy generally—his formula is r > g. When I read Piketty’s book, I thought he had presented a tremendously important new way to discuss and decide public policy questions.  Shi-Ling Hsu in The Rise and Rise of the One Percent: Considering Legal Causes of Wealth Inequality, accepts Piketty’s data that capital grows faster than the economy, but he also criticizes and develops Piketty’s thesis. Hsu’s main criticism is that Piketty fails to understand the role law plays in distributing wealth and in protecting the growth of capital.  I want to take the question of economic inequality a step beyond where Piketty and Hsu have gone. The study of law for its effect on increasing economic inequality can allow us insights into why some social groups have been, and continue to be, economically disadvantaged. A brief look shows how long-standing laws and legal policies have helped keep members of minority groups economically unequal.

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Thomas Piketty and Inequality: Legal Causes and Tax Solutions

A Response to Shi-Ling Hsu, The Rise and Rise of the One Percent: Considering Legal Causes of Wealth Inequality, 64 Emory L.J. Online 2043 (2015)

Paul L. Caron | 64 Emory L.J. Online 2073 (2015)

Since publication of an English edition in March 2014, Capital in the Twenty-First Century has spawned heated debates in newspapers, magazines, and blogs, which soon will continue in academic journals and law reviews.  Shi-Ling Hsu is one of the first out of the gate with The Rise and Rise of the One Percent: Considering Legal Causes of Wealth Inequality. Hsu’s essay is a significant contribution to what is certain to be an energetic debate over the implications of Piketty’s work. I offer here two modest reactions to Hsu’s essay: (1) recent inequality research has shifted the focus of high-end wealth concentration from the Top 1% to the Top 0.1% (and even the Top 0.01%), with important implications for the work of both Piketty and Hsu, including (2) the inquiry into whether policymakers should intervene before the fact to reshape the distribution of the benefits and burdens of economic activity (Hsu’s approach) or instead redistribute wealth after the fact (Piketty’s approach).

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“All Good Things Flow . . . ”: Rule of Law, Public Goods, and the Divided American Metropolis

A Response to Brent T. White, Simone M. Sepe & Saura Masconale, Urban Decay, Austerity, and the Rule of Law, 64 Emory L.J. 1 (2014)

James J. Kelly, Jr. | 64 Emory L.J. Online 2017 (2014)

This essay is a review of and a response to Urban Decay, Austerity, and Rule of Law, an article written by Brent White, Simone Sepe, and Saura Masconale. Building upon an intuitively compelling social contract theory insight, the article sets out the theoretical and empirical cases for the authors’ contention that sustained investment in highly visible, essential local public goods provides crucial support for rule of law. In this invited response, Professor Kelly welcomes the article’s introduction of the rule of law paradigm to domestic urban policy, finds fault with its selection of public goods that purportedly influence rule of law, and contends that the UDT has far greater potential than the poor support it can offer the authors’ flawed policy proposal. By conceptualizing the domestic urban policy goal as rule of law rather than order, the authors open measurements of success to go beyond crime rates and majoritarian perceptions of personal safety.

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