Emory Law Scholarly Commons
Not a member yet
2100 research outputs found
Sort by
The SAFE Vehicles Rule: How the Trump Administration\u27s Course Change on Vehicle Emissions Reflects a Larger Policy Shift Away from Environmentally Friendly Regulations
Get PDFIn his first two years as President, Donald J. Trump has focused on a systematic dismantling of the American regulatory framework, with environmental regulations coming under particularly fierce attack. This Essay reviews the President\u27s recent withdrawal and replacement of fuel emissions regulations, and how this decision represents a more general adoption by the Trump Administration of the antiquated notion that economic prosperity and environmental regulation cannot exist harmoniously in modern society
The Materiality of the Incentive Compensation Ban in Higher Education
Get PDFFor many for-profit colleges, most of their gross tuition is made up of students paying with some type of Title IV aid. For Heritage College, a private for-profit college working under Weston Education, Inc., roughly 97% of their students received Title IV aid. Remaining eligible to accept federal funds has become an integral piece of these for-profit colleges business models. Two main theories have been recognized by the courts for FCA liability when evaluating ICB claims: promissory fraud and the implied false certification theory (IFCT). This Paper will cover the courts\u27 analysis of these two legal theories and the key points that have created differing outcomes. The courts\u27 precedent points heavily to the determination that the ICB does not rise to a level of materiality under either of these theories
Privatization of Public Education: Balancing the Students and the Bottom Line
Get PDFA nonprofit raises money to finance its mission. A for-profit has a mission in order to make money.\u27 These two structures seem theoretically incompatible, but the deal between the public Purdue University and for-profit Kaplan University is testing this theory by creating a new entity, Purdue University Global. Purdue University Global, also called Purdue Global, operates as an online education arm of Purdue University. This deal is being called the first of its kind and has the potential to set a new precedent in higher education
The Uses of IP Misuse
Get PDFThe equitable doctrine of misuse emerged as a tool to police intellectual property owners¿ overzealous contracting and enforcement behavior. First in patent law and then in copyright, courts developed the misuse doctrine to scrutinize practices that expanded intellectual property rights in socially disadvantageous ways. In recent years, patent misuse doctrine has essentially gone the way of antitrust¿narrowing its focus to a thin sliver of anticompetitive harms. Copyright misuse doctrine, however, has remained attentive to broader intellectual property policy concerns. Courts have, for example, responded to misuse arguments where a copyright owner¿s licensing or enforcement behavior threatens to deter innovative activity or socially valuable speech. Although trade secret owners engage in similar practices, courts have not developed an analogous trade secret misuse doctrine. This Article takes the first close look at the justifications for introducing a trade secret misuse doctrine¿and considers how copyright misuse provides a template for reform
National Personal Jurisdiction
Get PDFPersonal jurisdiction has always constrained plaintiffs¿ access to courts, and recent Supreme Court decisions impose even more severe limits. These limitations are magnified by the standard understanding that the relevant forum for purposes of the personal jurisdiction calculus is the state. This Article explores the possibility of expanding the use of national personal jurisdiction. First, it argues that there is no Fifth Amendment Due Process Clause barrier to national personal jurisdiction. Second, it argues that Congress has the power to introduce national personal jurisdiction as to all claims brought in the federal courts, but that Congress lacks authority to introduce national personal jurisdiction as to any claims brought in the state courts. However, Congress could open the federal courthouse doors wider to claims where national personal jurisdiction is deemed appropriate. Third, this Article considers what steps Congress can use to implement national personal jurisdiction
A Fresh Look : Title VII\u27s New Promise for LGBT Discrimination Protection Post-Hively
Get PDFIn 2017, the United States Court of Appeals for the Seventh Circuit, in Hively v. Ivy Tech Community College, became the first U.S. circuit court to hold that Title VII prohibits employers from discriminating against individuals in employment on the basis of sexual orientation. Given that many federal antidiscrimination statutes are interpreted in line with Title VII, the Hively decision may extend sexual orientation discrimination protections to a variety of areas. However, since the Supreme Court¿s decision in Burwell v. Hobby Lobby now allows private businesses to seek religious exemptions under RFRA, it is possible that private businesses might seek to avoid complying with Title VII¿s sex discrimination prohibition on the basis of religious objection. This Comment examines the relationship between Title VII and RFRA and argues that expanding the Hively court¿s interpretation of Title VII is the most promising method for protecting against sexual orientation discrimination nationwide
Consumer Bankruptcy Panel— Tuition Clawback: Whose Money Is It, and What Is It Worth?
Get PDFThe Consumer Panel considered the newest arguments, decisions, and theories on tuition clawback. Discussion ranged from the definition of reasonably equivalent value to the use of 529 plans as a shield against clawback attempts. Though the questions raised in the context of tuition clawback have generally evaded answer, the Consumer Panel elucidated many of the murky decisions and definitions surrounding the topic
Rushing to Regulate: Rethinking the RBI\u27s Directives on Peer-to-Peer Regulations in India
Get PDFAlmost half of India still does not have a bank account, leaving millions of Indians unable to access traditional sources of credit. For these unbanked Indians, peer-to-peer (P2P) lending platforms have become an important alternative credit source. A recent boom in P2P platforms caused the Reserve Bank of India (RBI) to create a regulatory framework for the P2P sector. This Comment seeks to address some of the issues concerning regulating an unconventional industry that provides a crucial service. First, it is argued that the RBI fundamentally mischaracterizes both the services P2P\u27s provide, and how P2P\u27s provide these services. The Comment then discusses challenges P2P regulation poses for the RBI, arguing that the RBI\u27s framework both over- and underregulates P2P platforms. Finally, this Comment recommends India adopt U.S. P2P regulations, allowing for an exemption-based approach to lending. Given that alternative credit is much needed in India, this comment hopes to better tailor current regulations, in order to avoid a total regulatory overhaul
State Standing for Nationwide Injunctions against the Federal Government
Get PDFRecent years have seen a substantial increase of cases in which states seek, and indeed obtain, nationwide injunctions against the federal government. These cases implicate two complicated questions: first, when a state has standing to sue the federal government, and second, when a nationwide injunction is a proper form of relief. For their part, scholars have mostly addressed these questions separately. In this Essay, I analyze the two questions together. Along the way, I identify drawbacks and benefits of nationwide injunctions, as well as settings where nationwide injunctions may be desirable and undesirable. I present arguments that, although I do not definitively resolve, Article III standing doctrine imposes some limits on the availability of nationwide injunctions. Assuming that to be true, I then argue that, with one possible exception— the setting where only states would have standing to pursue a claim in the first place— states ought to have no greater standing to pursue nationwide injunctions than do private actors
The Fallacy of Defensive Protection for Traditional Knowledge
Get PDFProponents of databases as defensive protection posit that having sources of traditional knowledge easily accessible to, and searchable by, examiners during the prosecution process should minimize the grant of patents covering traditional knowledge, and avoid the problems such erroneously granted patents may produce. Some countries, such as India, which support an international sui generis positive protection instrument, also support the use of traditional knowledge databases, as the two approaches are not mutually exclusive. India\u27s CSIR, which created and maintains the TKDL, asserts that the database has thwarted the grant of scores of patents in IP offices across the globe, although commentators have cast considerable doubt on the veracity of several of the ICSIR\u27s claims.
Such defensive protection sounds like a win-win scenario for both patent offices, which do not wish to grant bad patents, and traditional knowledge-holding communities, who do not want to have to challenge bad patents once they have issued. As noted by an EPO official: We take this seriously. Countries with rich traditional and holistic knowledge often have to spend lots of money on opposition procedures. The database could prevent that by helping the EPO to grant properly scoped patents. But is the protection real or illusory? What protection is a defensive traditional knowledge database actually providing to the knowledge it contains? At least eight countries have begun employing such databases (and others are considering such a move), which promise possible benefits, but also latent dangers and unintended consequences for the indigenous peoples and local communities who hold traditional knowledge within their borders.
This Essay aims to address these questions and illuminate subtle, yet important concerns involved with initiatives that embrace defensive protection for traditional knowledge without concomitant positive protection.
Part II of the Essay briefly describes and deconstructs the mechanisms of defensive protection as exemplified by the Indian TKDL. It then explores the risks of relying on such databases in isolation as protection mechanisms for traditional knowledge in Part III. Part IV describes a superior approach of integrating positive legal protection with databases, illustrated in South Africa\u27s planned indigenous knowledge protection framework. The Essay concludes that databases can be helpful in bringing traditional knowledge to light, but that providing true protection for that knowledge is a different matter