Emory Law Scholarly Commons
Not a member yet
2100 research outputs found
Sort by
Third-Party Bankruptcy Releases and the Separation of Powers: A Stern Look
Get PDFIn the last few years, bankruptcy scholars and professionals have criticized mass tort debtors’ use of chapter 11 bankruptcy as a litigation forum. One such criticism concerns mass tort debtors’ use of third-party releases: provisions in chapter 11 reorganization plans that enjoin creditors’ claims against non-debtor third parties. If a bankruptcy court approves such releases, creditors lose claims against the released third parties, which often include the debtor’s directors, insurers, or employees.
Third-party releases have troubled many. Critics and courts have said that third-party releases violate (1) the Bankruptcy Code, (2) bankruptcy policy, (3) the constitutional right to due process, and (4) the separation of powers. All four of these issues hold water, but the separation of powers especially warrants addressing because of its prophylactic nature—implemented correctly, the separation of powers mitigates the other three concerns. The separation of powers problem is that bankruptcy courts exceed their Article I authority by approving releases that alter only non-debtors’ legal rights, a job typically reserved for Article III courts.
The Supreme Court guided bankruptcy courts on the separation of powers in the seminal case Stern v. Marshall. Yet bankruptcy courts still lack a uniform separation of powers approach for third-party releases. This Comment proposes a framework to help bankruptcy courts gauge the constitutionality of third-party releases. Bankruptcy courts should analyze each proposed release individually using the “public rights exception” from Stern, presuming the releases unconstitutional until the debtor proves otherwise. Doing so will protect constitutional sanctity, serve bankruptcy policy, and mitigate due process risks
Environmental War, Climate Security, and the Russia-Ukraine Crisis
Get PDFThis Article addresses the Russia-Ukraine conflict’s broad implications for energy security, climate security, and environment protections during wartime. I assert that in the short-term the Russian-Ukraine war is poised to hinder much-needed international climate progress. It will stymie international decarbonization efforts and cause greater uncertainty in other climate-destabilized parts of the world, such as the Arctic. While Russia has become a pariah in the eyes of the United States and other Western nations, it has forged new partnerships and capitalized on new, lucrative energy markets outside the West and Global South. But in the long term, the global renewable energy transition will accelerate as nations realize the economic and national security risk when relying upon Russia and similarly unreliable petrostates. National security is energy security.
In Part II, I describe and analyze Russia’s brazen attacks on the Ukraine environment and built infrastructure, applying these actions to environmental protections embedded within international humanitarian law (IHL) and the law of armed conflict. My analysis focuses on Russia’s wholesale disregard of IHL, as evidenced by its callous and indiscriminate attacks on Ukrainian civilians, energy infrastructure, dams, and Europe’s largest nuclear power plant.
In Part III, I analyze the Russia-Ukraine conflict through the lens of energy security and environmental security. In Part IV, I address the war’s broader implications for long-term climate progress and climate security. This includes a discussion of the normative implications for Arctic security, a part of the world warming two to three times the pace of the rest of the world. The Arctic is also home to Russian militarization efforts, acting as a litmus test for Russia’s geopolitical ambitions.
Throughout the Article, I look ahead to the post-conflict geopolitical order. While there is no current end in sight to hostilities, I offer recommendations for the U.S. and the rest of the world to make post-conflict climate progress and help guide long-term decarbonization efforts. I conclude on a cautiously optimistic note, arguing that the Russia-Ukraine crisis provides a generational opportunity to accelerate international decarbonization and climate efforts
Rethinking \u3cem\u3eEisner v. Macomber\u3c/em\u3e, and the Future of Structural Tax Reform
Get PDFIn June 2023, the Supreme Court granted the petition for a writ of certiorari in Moore v. United States, ostensibly a challenge to an obscure provision of the 2017 tax legislation. Moore’s real target is the constitutionality of federal wealth and accrual taxation, which policymakers have proposed to combat record inequality and raise revenue for social-welfare reform. At the center of the doctrinal dispute in Moore is a century-old case, Eisner v. Macomber, on which the Moore petitioners and other commentators have relied to argue that Congress has no power to tax wealth or unrealized gains—e.g., appreciation in unsold stocks. Most scholars agree that Macomber limited Congress’s taxing power to realized income, and they argue that subsequent cases have abrogated Macomber. However, the Supreme Court has never overruled—in fact, went out of its way not to overrule—Macomber, and some contend that it remains good law.
This Article reconceptualizes Macomber and analyzes its doctrinal implications for structural tax reform. In contrast to the prevailing scholarly views, it argues that Macomber is best read as a case turning on the absence of income rather than realization. Through careful analysis of the majority opinion and its doctrinal background, including constitutional challenges to the Civil War income tax, the Article articulates five interpretive models of Macomber. By examining little-read cases on the taxation of lease improvements and corporate reorganizations from the 1920s to the 1940s, the Article shows that Macomber’s doctrinal progeny eliminated three of those models, left undisturbed another, and reaffirmed the income-centric model. Under the income-centric model, Macomber poses no serious barrier to federal wealth or accretion taxation. In fact, it suggests avenues to designing a constitutional wealth tax that might otherwise fail judicial scrutiny. This firmer ground for a broad conception of the federal taxing power allows Congress to enact structural tax reform to vindicate our democracy’s commitment to egalitarianism and distributive justice
Animating a Statutory Right: Access to Counsel for Noncitizens in Reasonable Fear Review
Get PDFWhen a noncitizen in an expedited removal proceeding has a colorable claim to delay their deportation for fear of torture in their home country, a special review process occurs. Certain noncitizens face an especially stringent procedure—the reasonable fear review hearing, where a noncitizen must navigate a complex legal argument before an immigration judge to show that they meet specific statutory and regulatory criteria for relief from or delay of deportation. Congress has specified that noncitizens are entitled to access counsel at this reasonable fear review hearing; yet, all too often, the hearing takes place without attorneys present who were already retained or were willing to represent that noncitizen. In nearly half of all federal circuit courts, this absence of counsel before the immigration judge is of no legal significance. This Comment urges the view endorsed by the other half of federal circuits: noncitizens in reasonable fear review hearings are statutorily guaranteed the right to access counsel, and that statutory right is effectively denied when pro se noncitizens are required to prove prejudice from their lack of representation.
While other scholars have argued for the presumption of prejudice when access to counsel is denied in other immigration proceedings, this Comment breaks new ground by extending that presumption to the reasonable fear review hearing noncitizens face in expedited removal with a felony conviction or a reinstated removal order. Presuming prejudice in this context ensures that all noncitizens have the reasonable opportunity to access counsel for reasonable fear review hearings, animating Congress’s statutory mandate. This Comment proposes a uniquely administrable safeguard, borrowed from well-settled criminal law: immigration judges should be required to obtain a knowing and voluntary waiver of representation when a noncitizen appears unrepresented. Presuming prejudice upon review where (1) the noncitizen was not represented by counsel and (2) no valid waiver was obtained will impress upon immigration judges the seriousness of the right at issue with only minimal changes to current procedure and even a likely increase in judicial efficiency. Ultimately, this Comment provides additional support for the waiver requirement by exploring the real-world circumstances and consequences of denying access to counsel in a reasonable fear review hearing, the last chance for relief for noncitizens fearing torture upon return to their home country
The Procedure of Democratic Erosion
Get PDFIn recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the target of such power-consolidating reforms, though they are not the only such target. Depending on their nature, such reforms are variously characterized as eroding democracy or being illiberal. But while they may be substantively undemocratic or illiberal, these reforms tend to be procedurally lawful. That is, they do not subvert the constitution outright but work within the existing constitutional framework, with reformers either formally changing the constitution or seeking new interpretations.
Why would leaders pursuing undemocratic reform follow lawful procedures? One conjecture for why power-seeking leaders choose this path is to boost support for the reforms among domestic audiences, who may care about the legal pedigree of reform. Yet there has been little or no empirical research on whether the reform method actually affects how domestic audiences respond to them.
We address this question through a survey experiment conducted on a representative sample of over 4,000 U.S. respondents in late 2020. The experiment presented subjects with questions relating to two proposals that arguably consolidate power: (i) President Donald Trump’s suggestion to stay in office for a third term and (ii) a longstanding proposal—now commonly associated with President Joe Biden—to impose term limits on the Supreme Court. In gauging support for these proposals, we randomly divided respondents into seven treatment groups, with each evaluating a different reform method on a continuum of constitutional lawfulness: ranging from constitutional amendment, to threatening judges, to simply ignoring the law.
We find that while partisan policy preferences are, unsurprisingly, the main predictor of proposal support, procedural tactics also affect support in particular cases. Perhaps surprisingly, only supporters of the leader pursuing the reform are significantly concerned with how it is implemented. For example, only Trump supporters distinguish his pursuing more lawful methods (a third term via constitutional amendment or by judicial reinterpretation) from less constitutionally lawful means; the Biden proposal for Court term limits shows similar effects. Thus, to the extent that certain procedures are followed to persuade domestic audiences, those pursuing undemocratic reform may expect to increase support somewhat among their own base but not among the opposition
We are the AI Problem
Get PDFThis Essay describes what we call “the Black Nazi Problem,” a shorthand for the sometimes-jarring text and images produced by AI, from the incongruous—such as female Indian popes—to the outrageous—such as depicting minorities as their own historical oppressors, including Black Nazis. These images were the result of overzealous efforts by AI developers to correct for a lack of diverse representation in the training data used to create Generative AI models. The overrepresentation of white, fully-abled, Western men in images of high status categories, and the invisibility of women, people of color, and the disabled, except in low status categories, and the almost complete absence of realistic, non-sexualized images of women, plagues all text-to-image AI models. We argue that both the striking lack of diverse representation in the training data and the sometimes clumsy overcompensation for that bias lay bare social problems, rather than technological ones. The problem is not with AI technology as such—the problem is us: AI training data reflects an accumulation of historical biases and our current inequalities as well. There are four important elements about the creation process of AI that explain the Black-Nazi problem and expose broader problems about society: our history, the structure of society, our sometimes contradictory aspirations, and the aggregating process of AI image production. Understanding those aspects of the AI creation process reveals that AI’s foibles are a symptom of our ongoing struggle with the ramifications of past inequality and the difficulty of balancing inherently conflicting goals, such as aspirational diversity and historical accuracy. We draw out cultural, technological, policy, and legal implications of this problem. Altogether, the Black Nazi Problem gives us a window into other intractable socio-technical problems we need to confront in AI
The Digitalization of Litigation
Get PDFThe development of digital tools that enhance communications, security and decision making have caught the attention of international development agencies, national governments, civil society organizations, and the private sector. The United Nations Development Programme (UNDP) has highlighted the importance of digital tools as a means “to improve justice sector efficiency, transparency and access to justice[,]” while the European Commission has aligned them with “a new push for European democracy in line with the political priority of a Europe fit for the digital age[.]” With these observations in mind, this article focuses on the unique advantages and challenges presented by the ongoing efforts of digitalization as they pertain to litigation. I provide examples drawn from different jurisdictions, policies, strategies, and success stories regarding this important phenomenon
Reforming Community Advocacy Letters to Counteract the Unfair Advantages for Typical White-Collar Defendants
Get PDFMost criminal cases end in conviction by jury or guilty plea, making the sentence—for many defendants—the most critical part of their case. Sentencing allows defendants to humanize themselves, make legal arguments based on the Sentencing Guidelines, and advocate for leniency from the sentencing judge. One tactic white-collar defendants use for mitigation is asking their community to send advocacy letters to the judge that humanize them, contextualize their offense, and highlight their good works. White-collar defendants often have social connections with privileged, well-connected people that put them at an advantage over differently situated criminal defendants in seeking and receiving community advocacy letters. In addition, there is potential for implicit judicial bias because white-collar defendants relate to the demographic and educational backgrounds of sentencing judges more than other defendants do.
Judges should require community advocacy letters to be received and summarized exclusively by the United States Probation Office as part of a defendant’s presentence report. In doing this, judges can supplement the work of participatory defense groups to lift non-white-collar defendants up to the sentencing strategy of the typical white-collar defendant. This Comment proposes to capture the value of community advocacy letters, level the playing field, and achieve judicial economy by channeling letters through Probation for aggregation and summarization in presentence reports