Emory Law Scholarly Commons
Not a member yet
2100 research outputs found
Sort by
Tort Liability for Failure to Age Gate: A Promising Regulatory Response to Digital Public Health Hazards
No full textTort liability for failure to “age gate” is a promising legal response to the public health hazards of AI, social media, sports gambling, and other digital spaces. Tort liability for failure to “age gate” hinges liability for harms to minors on an app’s failure to take reasonable steps to prevent minors from gaining access or otherwise to apply appropriate governance rules, such as privacy-protective default settings or ensuring genuine parental consent. While no one legal response is a panacea, tort liability for failure to age gate carries several distinctive advantages that make it a particularly promising option at this stage of an evolving regulatory challenge. These advantages include avoiding section 230 preemption, mitigating First Amendment barriers, ensuring fit with existing tort doctrine, assessing technical viability, and minimizing harms to innovation. The relative insulation of the tort system from industry manipulation as compared to legislative processes, and consistency with the need to balance prevention with access in regulating addictive technologies are added bonuses
Playing Politics: Social Media, Censorship, and Speech Gamification
No full textForty percent of Americans self-censor their speech online. While staggering, the hidden phenomenon beneath this figure reveals a more dystopic outlook for the future of free speech. The powerful predictive technologies driving social media platforms, which the Supreme Court dubbed “the most important spaces for the exchange of views,” control the terms of modern speech and the scope of political discourse. The Supreme Court’s laissez-faire posture toward online speech moderation has only empowered digital dominion over modern expression and citizenship to the detriment of free speech principles.
As such, the primary threat to free speech today is not the state but Big Tech intermediaries. Tech giants like Meta, this Article’s focal case study, not only regulate political expression and identity but also reshape them in line with ever-changing interests. Through facially neutral speech policies, enforced by content moderation regimes steered by private—instead of liberty—interests, Meta digital platforms: (1) gamify speech by reducing expression into a system of conditioned patterns and scorable outcomes; (2) reward conformist speech and punish dissident speech within a controlled platform of shifting private political interests; (3) suppress the visibility of speech and accounts of dissident users and elevate the visibility of speech and accounts of obedient users; and (4) exact hidden infractions on online expression and identity, which blur into First Amendment harms in traditional public forums.
In one year, Meta enacted moderation policies that categorically suppressed “political content” then shifted to a “more speech” standard announced on January 7, 2025. The reform reveals private opportunism and the perils it poses to modern speech and citizenship. While legal scholars examine the regulatory tension between the state and digital platforms, scarce attention is paid to the bound subjects in between: the people. This Article sounds that alarm and centers harms suffered by individuals, crafting original theory and analysis interrogating how Meta’s gamification of modern expression exacts unseen and enduring infractions on speech, citizenship, and identity
Eléonore Raoul: Early Years as Women\u27s Suffrage Advocate and Law Student (1916-1920)
No full texthttps://scholarlycommons.law.emory.edu/er_images/1008/thumbnail.jp
Eléonore Raoul: Early Years as Women\u27s Suffrage Advocate and Law Student (1916-1920)
No full texthttps://scholarlycommons.law.emory.edu/er_images/1007/thumbnail.jp
Eléonore Raoul: Early Years as Women\u27s Suffrage Advocate and Law Student (1916-1920)
No full texthttps://scholarlycommons.law.emory.edu/er_images/1000/thumbnail.jp
Delivery of Substitute Goods in Unified International and European Sales Law
Full text linkThe U.N. Convention on Contracts for the International Sale of Goods (CISG) stipulates that the seller can cure a lack of conformity by supplying a replacement. On the other hand, the buyer can only demand a replacement delivery if the lack of conformity constitutes a fundamental breach of contract. In contrast, according to the European Sales Law Directive, the consumer may, at his choice, require the seller to repair the goods or to replace them “in the first place”. This article traces the developments that have led to these different regulatory approaches
Accommodating Disabilities During Arrests: Toward a Model Law to Improve Police Response to Mental Health Crisis
Full text linkPolicing people with mental illness (PWMI) presents a persistent global challenge. Although PWMI do not have a greater propensity for violence, they are disproportionately killed during police encounters. Using Australia as a case study, this Comment argues that use-of-force laws are inadequate in these situations because they defer excessively to officer discretion—failing to account for how officers often escalate encounters with PWMI by neglecting appropriate crisis-response tactics or by misperceiving PWMI behavior as violent, even when that behavior reflects mental health symptoms rather than actual threats. Current legal standards often excuse such perceptions, but properly trained officers should be expected to recognize and respond to these encounters differently.
While progressive reforms, such as co-responder models and enhanced officer training, have been adopted in some jurisdictions, they have proven insufficient in the absence of enforceable legal duties. In federal systems like Australia and the United States, reform is further complicated by the challenge of standardizing crisis-response practices across jurisdictions.
This Comment proposes that disability law—specifically, the legal duty to provide reasonable accommodations—offers a promising and enforceable framework to address these accountability gaps and incentivize improved police training and crisis response practices. Through an analysis of the Australian and U.S. legal systems, and an assessment of international disability law, this Comment argues for the development of an international model framework. To address the systemic misinterpretation of PWMI behavior by law enforcement, it further recommends that courts evaluate the reasonableness of accommodations during on-the-street arrests from the perspective of a reasonably trained officer in de-escalation and mental health response
Dancing Around the Double-Edged Sword: Understanding the Role of the Funding Agreement in Texas Two-Step Dismissals
No full textSince 1984, Chapter 11 has emerged as a forum of choice for mass tortfeasors to satisfy their liabilities. More recently, businesses have employed a state law maneuver known as the “Texas Two-Step,” whereby the “old debtor” parent company creates a “new debtor” subsidiary that assumes responsibility for all outstanding tort claims and subsequently files for Chapter 11 relief. The parent company or its healthy affiliates provide a funding agreement to backstop creditor repayment and the costs of the case but otherwise stay on the sidelines.
Section 1112(b) of the United States Bankruptcy Code determines whether Texas Two-Step debtors may enter bankruptcy. Section 1112(b) allows courts to dismiss filings “for cause”—a standard that courts almost unanimously agree imposes a good faith requirement on debtors. Specifically, the Third Circuit requires a debtor to be in “financial distress” to meet the good faith threshold. However, in light of recent two-step filings, this abstract line-drawing tool, which centers heavily on the funding agreement inherent in the two-step structure, ultimately may undermine creditor recoveries.
The Code demands that Chapter 11 preserve and maximize value for creditors. To best fulfill this purpose, every court would benefit from a more holistic good faith review that explicitly evaluates implications for claimants. This Comment proposes three additional criteria for courts to incorporate into their good faith analyses: (1) unequal treatment of future claimants; (2) availability of parent and affiliate assets to tort claimants; and (3) estimated compensation in the tort system and other claim aggregation processes. Under each criterion, this Comment provides appropriate factors that account for the unique realities of the two-step debtor with the goal of encouraging bankruptcy courts to more carefully balance both debtor and creditor interests before dismissing cases under § 1112(b)
Precautionary Measures and the Risk of Escalation in the Use of Nuclear Weapons
No full textThe use of nuclear weapons presents an unparalleled risk of escalation, a reality that has become increasingly pressing due to recent geopolitical developments, particularly Russia’s revised nuclear doctrine and its ongoing conflict with Ukraine. While the legal frameworks governing armed conflict, particularly International Humanitarian Law (IHL), do not traditionally require an analysis of escalation risk before an attack, this article argues that the extreme and immediate consequences of nuclear escalation necessitate its inclusion within the precautionary measures framework.
This article first examines the concept of nuclear escalation, identifying both intended and unintended risks associated with nuclear strikes. While nuclear deterrence strategies have historically relied on the threat of catastrophic retaliation to prevent conflict, the unpredictable nature of modern conflicts, the erosion of diplomatic channels, and the strategic ambiguity surrounding nuclear doctrine heighten the likelihood of miscalculation. Given these dynamics, the use of even a single tactical nuclear weapon risks triggering a chain reaction of retaliatory strikes, leading to uncontrolled escalation.
This article then explores existing legal requirements under IHL, focusing on the principles of proportionality and precautions in attack. The principle of proportionality mandates that the expected incidental harm to civilians must not be excessive in relation to the anticipated military advantage. However, this analysis is often constrained by uncertainties in predicting both the effectiveness of a nuclear strike and its collateral consequences. Additionally, the obligation to take feasible precautions in attack requires commanders to minimize civilian harm, but applying this principle to nuclear weapons—given their indiscriminate and long-lasting effects—raises significant challenges.
Building on these legal principles, this article argues that the risk of nuclear escalation should be integrated into the precautionary measures analysis. While escalation is not traditionally considered in legal targeting decisions for conventional weapons, the unique nature of nuclear weapons—where a single use could immediately trigger a large-scale conflict—demands a different approach. This article contends that escalation is neither a remote nor hypothetical consequence in nuclear conflict, but a foreseeable and likely outcome that should be factored into legal assessments.
To support this argument, this article examines historical cases, wargaming exercises, and existing risk analysis frameworks to demonstrate that nuclear escalation is a near certainty under specific conditions. It further discusses how States can incorporate escalation risk into decision-making by ensuring that military legal advisors play a critical role in evaluating nuclear strikes. Since military legal teams are trained to assess proportionality and precautionary measures, they can serve as a necessary safeguard against decisions that might otherwise fail to account for the risk of uncontrolled nuclear conflict.
Ultimately, this article calls for a shift in legal and policy frameworks to recognize nuclear escalation as a critical factor in precautionary measures. It argues that, as a matter of both law and policy, States should integrate escalation risk into their IHL compliance mechanisms to prevent catastrophic global consequences. By doing so, decision-makers can contribute to a more robust and responsible approach to nuclear strategy, ensuring that the principles of humanitarian law are upheld even in the face of nuclear threats