Emory Law Scholarly Commons
Not a member yet
2100 research outputs found
Sort by
Eléonore Raoul: Early Years as Women\u27s Suffrage Advocate and Law Student (1916-1920)
No full texthttps://scholarlycommons.law.emory.edu/er_images/1012/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/1004/thumbnail.jp
Genetic Property Rhetoric and the Public Domain
Full text linkAmong the many themes that illuminate Jorge Contreras’s The Genome Defense, this Essay focuses on property. It considers the rhetorical role played by property in convincing both courts and the public that patenting genetic data was legally and ethically objectionable. This Essay begins by locating property—and public property—as a major theme in the dialogue surrounding the Myriad litigation. It then situates this rhetorical move in the context of property-talk generally, highlighting the distinctiveness of leveraging public rather than private ownership as a means of accessing moral intuitions. Finally, this Essay reflects on what the use of public property rhetoric in Myriad can tell us about how we talk and think about ownership, both public and private, and how that rhetoric can contribute to a more nuanced understanding of the institution of property
Eléonore Raoul: Early Years as Women\u27s Suffrage Advocate and Law Student (1916-1920)
No full texthttps://scholarlycommons.law.emory.edu/er_images/1010/thumbnail.jp
The Inevitability of Adaptability – Comparative Contributions to Understanding Originalism
Full text linkWhat can comparative law teach us about originalism as a constitutional interpretation method? After synthesizing existing comparative analyses, this article seeks to redefine comparative law’s role in understanding originalism. When defining originalism strictly to require adherence to fixed original meaning, originalism is not used by courts anywhere in the world. Instead, courts use history purposively to understand the intent behind constitutional text as one of many methods of interpretation. Comparative works suggest historical constitutional interpretation has a complex relationship with rights, politics and culture.
Comparative law can provide not only descriptive understandings of originalism but also interrogate its mandate that present-day judges adhere to fixed historical definitions of constitutional provisions. This article challenges originalism’s normative mandates by proposing principles about the movement of law between and within legal systems gleaned from comparative law. Two proposed principles are: (1) the “interpretive valve principle” that legal systems need mechanisms to adapt to societal changes, and that legal systems will generally work around artificial barriers to interpretive valves; and (2) the “legal transplant principle” that legal transplants always change from their origin system to the receiving system. Islamic law’s development throughout the Islamic diaspora, Europe’s reception of Roman law, and post-colonial common law systems’ integration of English law highlight these fundamental tenets.
This article applies these principles to equitable originalism, a strict originalist philosophy fixing the meaning of “equity” in Article III to English chancery courts’ equitable powers in the 1780s, and limiting federal judges’ equitable powers to that fixed meaning. Equitable originalism is an artificial barrier to equity, which is an interpretive valve in the U.S. legal system. This dispositive freezing of equity is seen in no other former British colony, and stymies development of equity’s inherent corrective function. Equitable originalism will likely face limited success as a sustainable constitutional interpretation method because it is anomalous to the way law moves and develops
Carceral Firms in Disguise: Prison Labor, Human Rights, and the Public-Private Divide
Full text linkThe prohibition of forced labor is a globally recognized principle. International laws such as the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights explicitly ban all forms of slavery, including forced labor, with an exception for forced labor behind bars. Further, ILO asserts that forced prison labor must be conducted solely under the control of public authorities, explicitly excluding private entities from involvement. ILO’s prohibition against private use of prison labor is based on two main concerns: abuse of power over inmates and unfair competition between inmates and free workers. In a case on the constitutionality of private prisons, the Israeli High Court of Justice also adopted the same stance as the ILO and ruled against private prisons.
By using Taiwan’s public prison system as an illustration, this Article reveals the tendency of both public and private sectors to abuse the power over inmates and gain a competitive advantage through their cheap labor. If we seek to address these issues, we must reframe labor as a voluntary opportunity for inmates and protect them as free workers. These changes shift our focus toward prohibiting forced and cheap labor of inmates and protecting them from exploitation. This Article concludes by asserting that if we abandon the public-private divide in prison labor, curb the state’s unchecked power to exploit inmates, and apply consistent standards to both public and private prisons, we can effectively prevent power abuses, mitigate unfair competition, and advance inmates’ rehabilitation
Determining the Content and Meaning of Foreign Law: The Approach of the New Third Restatement of Conflict of Laws
Full text linkLegislatures and Localized Resentencing
Full text linkRecent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.
While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has the authority both to decide whether to participate in the program and to select individual cases for review. Through original interviews and review of publicly available data, we highlight how this practice is working in California and Washington. We observe that when local prosecutors exercise their discretion under the new statute, they necessarily produce uneven results around the state, as some counties embrace resentencing practices, some use their power sparingly, and others leave it untouched. This local variation is fully consistent with the legislative design.
In effect, these statutes grant to local officials certain powers previously associated with parole boards, but the practices are not synonymous with parole. The statutory design also opens up a gridlocked political process; this grant of authority empowers the state’s most change-oriented prosecutors to act while more cautious prosecutors wait and see. This flexible and localized approach in the resentencing arena comports with the dominant model of criminal law enforcement in the United States. In contrast to our European counterparts, we have long eschewed mandatory prosecution models and unified prosecutorial services in favor of letting local prosecutors decide what is best for their communities— subject only to constitutional rules and discipline at the ballot box