Emory Law Scholarly Commons
Not a member yet
2100 research outputs found
Sort by
Criminalizing Property Rights: How Crime-Free Housing Ordinances Violate the Fifth Amendment
Get PDFCrime-free housing ordinances allow municipalities to force private landlords to evict tenants who have committed crimes or allowed a guest who has committed a crime into their home, regardless of the tenant’s knowledge. These ordinances have proliferated throughout the country since the turn of the century and pose interesting questions about landlord and tenant rights under the Constitution. This Comment explores a new strategy for landlords and tenants attempting to confront these ordinances—challenging them under the Fifth Amendment. The Supreme Court has recognized two types of takings that are due just compensation under the Fifth Amendment: possessory and regulatory takings. This Comment argues that compulsory evictions, as mandated by crime-free housing ordinances, qualify as possessory and regulatory takings for tenants, but not for landlords. While the landlord’s property rights have only been circumscribed because he or she has to find a new tenant and has lost the revenue from the original tenant, the tenant loses all of his or her property rights in the tenant’s leasehold estate after eviction under a crime-free housing ordinance. Additionally, government actors may engage in physical invasions to effectuate the eviction and “total taking” of the property. The taking is for the public purpose of reducing and preventing crimes, and the tenant is owed just compensation under the Takings Clause. Compulsory evictions under crime-free housing ordinances are unconstitutional without just compensation under the Fifth Amendment
Cross-Border E-Discovery: Production of ESI from Chinese Entities
Get PDFThis Essay proposes a new approach to E-Discovery disputes in U.S.-China litigation. More specifically, it proposes a guide on best steps to take to resolve E-Discovery disputes in U.S. courts involving Chinese entities in general and Chinese banking and financial entities in particular. This Essay asserts that U.S. litigants should be required to attempt exchange of documents via the Hague Evidence Convention first. Additionally, the Aerospatiale Test should be expanded to include the Restatement Third International Comity Balancing Test. Using these steps and sources of law, U.S. courts will be able to resolve these discovery disputes much more efficiently and with greater satisfaction by all parties
Constitutional Crises Compared: Impeachment, Brexit, and Executive Accountability
Get PDFThe United States and the United Kingdom share a common legal history and a number of fundamental constitutional values. Some of these fundamental values may occasionally come into conflict. For example, in 2019, both the United States and the United Kingdom experienced considerable legal and political upheaval as debates over the scope of executive power and the accountability of the executive branch came to the fore. In the United States, these debates culminated in the impeachment of President Donald Trump for abuse of power and obstruction of Congress. In the United Kingdom, the furor focused on Prime Minister Boris Johnson’s approach to Brexit and his attempt to prorogue Parliament. The impeachment drama and the Brexit saga were so severe that each was frequently referred to as a “constitutional crisis” in the popular press and public discourse. These parallel constitutional crises and the litigation they generated afford a valuable opportunity to analyze each country’s commitment to democratic accountability of the executive from a comparative perspective. The results of such an analysis may well pose a challenge to commonly held assumptions about American exceptionalism in matters of liberty and democracy. Indeed, throughout the impeachment crisis, it was frequently asserted that “Presidents are not kings”—seemingly suggesting that it is obvious that the executive department is subject to greater legal constraint under a presidential system like the United States than under a constitutional monarchy like the United Kingdom. But a deeper examination of U.S. and U.K. constitutional law paints a different picture. Through an analysis of the constitutional crises of impeachment and Brexit, this Article argues that executive authority is in fact significantly more accountable to democratic control under the British model of government than under its American counterpart. While the American experience reveals that extreme claims of executive power have largely gone unchallenged and unchecked by the other branches of government, the British sequence of events testifies to an enduring constitutional commitment to popular and parliamentary sovereignty. The Article concludes by arguing that a key lesson to be drawn from these constitutional crises is that the British system may actually do more to honor the commitment to “a government of laws and not of men” that has long been said to be central to the American constitutional order
Should We Be Merciful to the Merciless—Mercy in Sentencing
Get PDFThe aim of this Article is to present a normative argument for mercy as a legitimate consideration in judicial proceedings, defining it as a distinct and independent element not encompassed by normal concerns of justice, retribution and individuation of sentencing. The Article addresses two meanings of mercy in the judicial context, both of which have—in the view of the author—a rightful part in the process of judgment and sentencing. These are “mercy” in the weak sense, i.e., a deliberative state of mind which accompanies the judicial proceedings (“Lesser Mercy”), and “mercy” in the strong sense, i.e., the judicial prerogative of taking into account, under appropriate circumstances, mercy towards the defendant once convicted, as a deviation from strict retribution (“Greater Mercy”). The Article presents the different approaches one may find in academic literature pertaining to the validity of considering mercy in court, and the relationship between justice and mercy. The Article begins with the basic moral intuition as to the merit of mercy. From this point of departure, the Article deals with the various criticisms raised against the legitimacy of considering mercy in the judicial context. In the normative analysis, the Article points to the need of formal justice to accommodate the particularistic circumstances of every incident. Although some have argued that this function should be met by equity, the Article argues that mercy is better suited because rational-analytical considerations may prove insufficient in this context. The Article also argues that the judge’s prerogative to determine under which circumstances to employ mercy towards the defendant does not contradict the responsibility and duty of the judge to impartiality. On the contrary, mercy lives harmoniously with and epitomizes the social values that every judge should represent
The Religious Conversion of Corporate Social Responsibility
Get PDFThis Article debunks the analogy often drawn between principles of corporate social responsibility (CSR) and claims for corporate religious exemption. In the wake of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., which held that for-profit businesses are eligible for religious exemptions from general laws, a rising tide of scholars and advocates has argued that the two programs are symmetrical and mutually supportive.
Looking to the intellectual history of CSR, we demonstrate sharp conflicts—rather than congruence—between the analytical underpinnings of CSR and religious exemptions for corporations. Whereas CSR enlists law-abiding corporations to advance public objectives, these religious exemptions oppose state laws in the personal interest of shareholders. Our analysis uncovers a fundamental mismatch between the political and economic orders imagined by CSR and corporate religious exemptions. Corporate social responsibility posits a distinctly democratic political economy with the state leading its corporate allies in pursuit of societal goals. Proponents of corporate religious exemptions subvert this tradition: corporations defend private liberty from the threat of the public. This vision of the state and the corporation in law, politics, and the economy proves anathema to the project of corporate social responsibility
Subordination and Separation of Powers
Get PDFThis Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized benefits at the expense of marginalized groups. It illustrates this skewed distribution through novel case studies tracing harm to Native peoples to the use of appropriations to empower Congress, harm to residents of Puerto Rico to the use of executive conditions to empower the President, and disparate coronavirus harms to Black communities to the use of nonentrenchment to empower the future and disempower the “dead hand” of the past.
The Article’s descriptive insight that separation-of-powers tools can and do entail subordination motivates its call for the incorporation of antisubordination into both institutional and doctrinal separation-of-powers analysis. The antisubordination movement’s rights-focused approach has stagnated. The separation of powers offers a desirable, upstream means through which to pursue the goal of antisubordination by shifting attention beyond the courts and toward other political actors. Moreover, considering antisubordination in separation-of-powers analysis has historical precedent, is consistent with the aspiration for “neutral principles,” and advances already established separation-of-powers values such as liberty and accountability.
Incorporating antisubordination alters institutional analysis, doctrinal analysis, and the agenda of separation-of-powers theory. The subordination question (“who pays?”) should be as familiar to institutional analysis of separation-of-powers questions as is the legal-process question (“who decides?”). This question might be used to interrogate particular separation-of-powers tools, categories of such tools, or overarching doctrinal and conceptual approaches. Antisubordination should also change doctrinal analysis, where courts should at the very least include antisubordination among the structural values they consider in resolving ambiguities, weighing interpretive tools, and conceptualizing constitutional questions. In this context, antisubordination’s greatest impact may be as a counterweight to courts’ use of historical gloss. Finally, antisubordination requires a new, creative agenda for separation-of-powers theory that focuses not on evaluating existing arrangements or the relative power of the branches, but instead on developing alternative arrangements that maintain the balance of power without imposing skewed costs. The Article illustrates these interventions with novel prescriptions for ongoing legal controversies about the debt ceiling, foreign affairs, legislative standing, and government shutdowns
Asylum Seekers: The Search for Basic Human Right to Healthcare in Industrial Countries
Get PDFAn important right afforded to all persons as part of their international human rights includes the right to access healthcare. Asylum seekers, however, are a population that struggles to enjoy a designated right due to countries having varying interpretations of what it means to provide healthcare services. When seeking asylum, many asylees believe that going to developed, industrial countries is the best route for achieving safety, educational opportunities, and a higher standard of living. However, when it comes to providing access to healthcare for asylum seekers specifically, countries such as the United States, Japan, Germany, and Switzerland do not fully adhere to international human right agreements. Issues among the countries can be credited to their different forms of government, their take on asylum policies and procedures, and having their own distinctive domestic problems when it comes to the treatment of asylum seekers. A proposed agreement must be made to encourage nations to shift current policies and procedures to push towards awareness and providing information, satisfactory health services, avoiding discriminatory acts, and respecting the basic standards of human decency
The Sovereign Citizen Movement: A Comparative Analysis with Similar Foreign Movements and Takeaways for the United States Judicial System
Get PDFThe Moorish Sovereign Citizens Movement began as an offshoot of the overarching Sovereign Citizens Movement in the United States in the 1990s by former followers of the Washitaw Nation and Moorish Science Temple of America. The Moorish Sovereign Citizens Movement follows an anti-government ideology, based in the idea the current American government is illegitimate and has been operating under false pretenses since as early as the 19th century. Though disagreement among the members of the movement regarding what spurred this covert change from a legitimate to an illegitimate government exists, examples of the different catalysts include the U.S. abandonment of the gold standard in the 1930s and the Reconstruction Era of the 1860s and 1870s following the U.S. Civil War. Members of the movement live scattered across the United States and do not follow a single ideology or teaching, but they all engage in similar tactics of disruption—levying false liens against government officials they deem have wronged them, filing countless motions to flood the system, and employing a nonsensical legal language of their own in court appearances and filings. This comment engages in an overview of this movement in the United States and subsequently compares it to parallel movements in Canada and Ireland, specifically by looking to their cases involving individuals with similar ideologies and tactics. Finally, it discusses takeaways from non-U.S. movements for potential application in the U.S. setting
How the Black Lives Matter Movement Enhanced Corporate Governance in 2020
Get PDFThe year 2020 brought the United States’ ongoing issues of racial injustice and police brutality to the forefront. With the deaths of Breonna Taylor, Ahmaud Arbery, George Floyd, and countless other people of color, the Black Lives Matter movement has focused on uprooting and dismantling systemic racism in the United States. During what may be “the largest movement in U.S. history,” individuals and organizations are asking themselves what actions they can take to combat systemic racism in the country. Many corporations have chosen to speak out and use their platform to raise awareness of the issues of racism in the United States. Others have chosen to remain silent. The ones who have chosen to use their voices have done so in ways such as posting statements on social media or their websites. Raising awareness by posting statements only goes so far. Tangible actions to address systemic racism must follow. This Comment argues that corporations should implement anti-racism strategies into practice after making anti-racism statements during the Black Lives Matter movement. Additionally, the U.S. Securities and Exchange Commission (“SEC”) should amend its rules to require more diversity and inclusion efforts when corporate executives nominate board members. While helping to progress society, companies should consider diversity and inclusion efforts because they will see a positive outcome for themselves. In the end, it is a win-win situation. Not only does diversity help businesses internally, but it helps externally as well with investors and markets. Studies have shown that companies with ethnically diverse boards are 70% more likely to capture new markets than those with less diverse boards. The companies with diverse boards generate 38% more in annual revenue from innovative products and services. Hopefully, with internal corporate changes and external SEC changes, a shift will occur where more people of color are involved in the corporate world