Emory Law Scholarly Commons
Not a member yet
2100 research outputs found
Sort by
The Third Message of Islam?
Get PDFProfessor Abdullahi Ahmed An-Na’im makes a spirited call for reformation of the Shari’a human rights, democracy, and constitutional compliance. He does so not as the problem of any metaphysical framework, or everydayness of the “fatigue of the Sharia,” but as accentuating a moral duty of non-humiliation itself as a human right to live with dignity as the core of Islam and all other religions. He crafts Islamic traditions of dialogue in a world that increasingly only knows the demagogic soliloquies of power. An-Na’im follows the “moderate revolutionary” Ustadh Mohamad Taha, who offered the Second Message of Islam, espousing the Mecca school over the Medina school in, at the least, ameliorating practices of discrimination against women and non-coreligionists. But An-Na’im is best understood as offering a Third Message, showing how the traditions of pious interpretation can be further deployed creatively in making religious thought and practices compliant with the ideas of democracy, contemporary pious interpretation, and classical liberal constitutionalism. His favorite strategy for this is “dialogue,” defying the world of power and propaganda relentlessly pursuing monologues. Indeed, “dialogue” glides into accommodation, mediation, and institutionalization. However, it never embraces theocratic state formations. This Essay generally explores: (1) the multifaceted aspects of spiritual and reformist legacies of An-Na’im; (2) the role of theopolitics in promoting cross-cultural dialogue concerning Shari’a, constitutional secularism, and human rights (non-hegemonic human rights thought and practice); (3) the role of “civic reason;” and, very briefly, (4) the tasks ahead
Antidiscrimination and Tax Exemption
Get PDFThe Supreme Court held, in Bob Jones University v. United States, that violations of fundamental public policy— including race discrimination in education—disqualify an entity for tax exemption. The holding of the case was broad, and its results cohered with the ideals of progressive society: the government ought not to subsidize discrimination, particularly of marginalized groups. But almost four decades later, the decision has never realized its antidiscriminatory potential. The Internal Revenue Service (IRS) has limited implementation to the narrowest facts of the case. The scholarly literature has not formulated a systematic account of how to enforce the Bob Jones regime, in light of the expansion of antidiscrimination protections and the Court’s reasoning that is deeply rooted in common-law charity. At the same time, tax-exempt entities engage in a smattering of discriminatory activities, often with impunity.
This Article argues for extending Bob Jones enforcement to antidiscrimination on the basis of all protected traits. It first shows, through an examination of IRS written determinations, the inadequate scope of implementation: the agency has limited denials of tax exemption to racially discriminatory schools. Second, it contends that the goals of antidiscrimination and common-law charity coincide. Both aim to ameliorate inequality by facilitating the entry of marginalized populations into the labor market. This affinity further justifies the Court’s holding that tax exemption requires conformity to the requirements of charity and established public policy. Third, the Article offers implementation strategies to minimize backlash, and paves a path toward an administrative model of antidiscrimination enforcement. As the Biden Administration continues to implement Bostock in its efforts to strengthen the federal antidiscrimination regime, Bob Jones could serve as a potent mechanism of advancing civil-rights enforcement
The Ideal Debtor and the Traditional American Household
Get PDFLaws that award governmental benefits reflect an archetype of the type of person deemed worthy of governmental assistance and generally favor and reward people who have specific personal attributes or who engage in activities deemed socially desirable. Just as the Bankruptcy Code favors the “Ideal Debtor,” state and federal laws favor and subsidize Americans who live in a “traditional household.” Historically, this household consisted of husbands who earned income in the paid labor market and wives who stayed home to provide unpaid care for their husbands and minor children. Households that deviated from that norm rarely received the full range of benefits and often were excluded from receiving the financial subsidies traditional households receive. Changes in social mores, the legalization of same-sex marriages, bans on gender discrimination in employment markets, and widening economic inequality have made it more likely that households will consist of a multi-generational family, single parents, unmarried partners, childless married couples, and married parents who both earn income in the paid labor market.
Despite a shrinking number of traditional households, U.S. laws continue to subsidize the narrow profile of families who are most likely to live in a traditional household: white, rich, college graduates. Even if public policy historically justified providing subsidies for traditional households, ongoing subsidies for personal choices (to marry, have children and live in an independent household) can no longer be justified and, in addition, exacerbate existing income and wealth disparities
I Can Still Hear You Saying You Would Never Break the Chain: How Higher Education Admissions Policies Put Law Firms at Risk of Losing Corporate Clients
Get PDFExposure to Family Violence in Hague Child Abduction Cases
Get PDFThe Hague Convention on the Civil Aspects of International Child Abduction requires signatory countries to hold prompt hearings for the return of wrongfully removed children back to their habitual residence. There are five defenses to return provided in the Convention. For taking parents escaping domestic violence with their children, the most typical defense offered to defeat a return petition is “grave risk of harm.” Courts vacillate on whether exposure to family violence amounts to a grave risk to a child. Further, some courts require consideration of “ameliorative measures” in an effort to repatriate children to abusive households, instead of denying a return. However, the body of social science literature studying the effects of exposure to family violence underscores the profound harm to children who are witness to family abuse and belies any safety measures concocted to return them to the situs of harm. Accordingly, the Convention and its implementing legislation should be amended to include language which contemplates the damage to a child exposed to family violence and courts should not be mandated to devise methods to return them to the abusive environment
Beliefs, Information, and Institutions: Public Perception of Climate Change Information Provided by Government versus the Market
Get PDFDespite scientific consensus over the threat posed by climate change, governmental actions remain modest or stalled, often because of profound societal polarization: more liberal individuals tend to accept climate change as real, anthropogenic, and as posing a substantial (if not existential) threat, while more conservative individuals tend to doubt such assertions. The standard explanation for this phenomenon is that liberals tend to believe government-provided information—as information about climate change tends to be—while conservatives tend to doubt it. Commentators suggest that market-generated climate change information would more likely sway conservatives.
But this assertion lacks any empirical support. This Article explores this theory by investigating the link between institutional source of information and personal beliefs using a survey-based experiment. While varying the institutional source generates statistically significant effects, the direction of these effects goes against commentators’ assumptions. Market-generated climate risk information is associated with less perceived credibility of the information, a lower level of trust in the informational source, and a lower confidence in the belief in climate change existence and its human attribution. The first two of these effects predominate amongst conservatives, while the latter effect is confined to liberals. These effects suggest that market-generated climate risk information will not have the desired impact of persuading conservatives but may perversely damage the confidence of liberals—whose views more closely track the predictions of climate scientists in the first place. The results raise questions about the need to move beyond governmental institutions to effectively convey climate science information and about the use of corporate environmental, social, and governance disclosure as a means to sway public opinion
Rational Actors, Class Action Waivers, and the Emergence of Mass Individual Arbitration Demands
Get PDFPart I of this Article gives a brief overview of the FAA, including the four understandings that underlay the Court’s jurisprudence for six decades, and the radical transformation wrought by the Court’s rejection of those understandings in the past four decades. Part II discusses how the transformation of the FAA led plaintiff and defense counsel, as rational actors, to adopt positions that ultimately led to the focus on class action waivers. Part III analyzes the Court’s decisions from 2013 to the present and draws at least some tentative conclusions about where things stand a decade after Professor Wasserman raised these issues. It concludes by discussing how the emergence of mass individual arbitration claims is causing businesses to rethink their four-decade effort to force individual plaintiffs into arbitration
