Emory Law Journal

Articles

Vol. 63, No. 3, 2014

Disability Constitutional Law
ABSTRACTAs a result of fierce advocacy, people with disabilities have been uniquely successful in securing federal legislation protecting them from discrimination in all areas of life. The modern disability rights movement is engaged in a constant struggle...
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Terrorism and Associations
ABSTRACTThe domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti- Communist crusades of...
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Paddling Past Nicastro in the Stream of Commerce Doctrine: Interpreting Justice Breyer's Concurrence as Implicitly Inviting Lower Courts to Develop Alternative Jurisdictional Standards
ABSTRACTThe Supreme Court established the stream of commerce doctrine in its World-Wide Volkswagen Corp. v. Woodson opinion in response to the rapid emergence of complex personal jurisdiction questions in products liability cases involving nonresident...
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How Law Made Silicon Valley
ABSTRACTExplanations for the success of Silicon Valley focus on the confluence of capital and education. In this Article, I put forward a new explanation, one that better elucidates the rise of Silicon Valley as a global trader. Just as nineteenth-century...
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Sparse Patent Protection for Research Tools: Expansion of the Safe Harbor Has Changed the Rules
ABSTRACTThe protection provided by patent rights benefits society by encouraging inventors to disclose their inventions, but these same rights can be wielded against competitors through infringement suits, causing a chilling effect on later innovation....
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Vol. 62, No. 4, 2013

Theorizing Forms for Social Enterprise
Jurisdictions across the country and around the globe are enacting legislation enabling founders of social enterprises to adopt specialized forms to house their entities. These forms blend elements traditionally found in nonprofit organizational forms,...
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Making Knowledge and Making Drugs? Experimenting with University Innovation Capacity
IntroductionThe innovation process for novel medical therapies needs repair.1 The United States spends more than ever before on drug discovery without a corresponding increase in new medical therapies.2 Despite major advances in knowledge concerning...
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Facilitating Better Law Teaching-Now
INTRODUCTIONThis Essay is about solutions-real solutions that law schools can deploy right now to improve the education we provide. And it is about how to overcome obstacles to implementing those solutions right now. This is how change happens.We have...
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Sustainable Business
INTRODUCTIONIn recent years lawyers have become increasingly active in the field of social enterprise and social entrepreneurship, wherein organizations and people seek novel, revenue-generating solutions to social problems.1 This is nowhere more evident...
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The Trouble with Lawyer Regulation
ABSTRACTThe American legal profession has been a backward-looking, change-resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers' efforts to change their own practices and entrepreneurs'...
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Quantitative Legal Prediction-or-How I Learned to Stop Worrying and Start Preparing for the Data-Driven Future of the Legal Services Industry
IntroductionWelcome to law's information revolution1-revolution already in progress.2 While the 2008 financial crisis can be seen as the precipitating event, developments in legal information technology are actually a root cause of many of the long-term...
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Anything under the Sun Made by Humans: Patent Law Doctrines as Endogenous Institutions for Commercializing Innovation
ABSTRACTThis Essay outlines a comparative institutional analysis among various doctrines in patent law to show how they can have different impacts on the way inventions are commercialized. It builds on a prior body of work about the positive role that...
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Increasing Innovation through Copyright Common Sense and Better Government Policy
Innovation is crucial to the U.S. economy. But many of our laws and policies are not promoting innovation. This Essay addresses this problem.The first set of proposals focuses on copyright law. The recommendations avoid vague copyright law and suggest...
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Whose Defense Is It Anyway? Redefining the Role of the Legislative Branch in the Defense of Federal Statutes
ABSTRACTWhen the Obama Administration announced it would cease defending the Defense of Marriage Act (DOMA) in litigation, it demonstrated the increasing fluidity inherent in the Executive Branch custom of defending federal statutes. After three years...
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Drawing on Daubert: Bringing Reliability to the Forefront in the Admissibility of Eyewitness Identification Testimony
ABSTRACTEyewitness identification evidence has long been recognized for its tendency toward unreliability and its susceptibility to suggestion. At the core of eyewitness identification is the ability to recognize unfamiliar faces-a memory process that...
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Vol. 62, No. 5, 2013

The Normative and Historical Cases for Proportional Deportation
ABSTRACTIs citizenship status a legitimate basis for allocating rights in the United States?In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in...
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Remedial Consilience
ABSTRACTThis Article provides a new way of organizing and thinking about one of the most important, useful, and ubiquitous-yet misunderstood, neglected, and underdeveloped-areas in all of law: remedies. Even though remedial issues are present in every...
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Proxy Advisory Firms: A Guide for Regulatory Reform
ABSTRACTProxy advisory firms exist at the nexus of some of the most high-profile corporate law discussions-most notably, the shareholder voting process, which has recently been the subject of much scholarly and legal debate. As proxy advisory firms are...
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When the Eyes and Ears Become an Arm of the State: The Danger of Privatization through Government Funding of Insular Religious Groups
ABSTRACTThe Shomrim, Hebrew for "guards," operate as an ancillary police force in Hasidic communities. Defined by devout adherence to traditional norms, Hasidic Jews confine themselves to insular communities within America. However, like many insular...
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Vol. 62, No. 2, 2013

Predictive Policing and Reasonable Suspicion
Very soon we will be moving to a Predictive Policing model where, by studying real time crime patterns, we can anticipate where a crime is likely to occur.1INTRODUCTIONThe future of policing blinks on a computer screen in downtown Los Angeles.2 On that...
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Regulating Risk and Governance in Banks: A Contractarian Perspective
In the lead up to the 2007-2008 financial crisis, U.S. banks engaged in systemic, excessive risk taking that drove the economy to the verge of collapse. This Article makes three contributions to understanding how this pandemic of excessive bank risk...
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Accrual and Unusual? Calibrating the Statute of Limitations on Section 1983 Method-of-Execution Challenges
ABSTRACTDeath-row prisoners have long challenged the methods by which states intend to execute them. Recently, prisoners have begun to challenge revisions made by states to their execution procedures, arguing the revisions violate the Eighth Amendment...
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Recess Is Over: Granting Miranda Rights to Students Interrogated Inside School Walls
ABSTRACTWhen school officials and law enforcement question students about suspicious activities without parents or legal counsel present, students are overmatched. This power imbalance raises questions about whether students' constitutional rights are...
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Vol. 63, No. 1, 2013

Students, Security, and Race
ABSTRACTIn the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its attention to school security. For example, several states have passed or are considering passing legislation that will provide new funding to schools for...
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Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs' Briefs, Its Impact on the Law, and the Market Failure It Reflects
ABSTRACTFor a major field, employment discrimination suffers surprisingly low-quality plaintiffs' lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs' briefs omit...
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The Anti-Crowd Pleaser: Fixing the Crowdfund Act's Hidden Risks and Inadequate Remedies
ABSTRACTA new form of startup financing is poised to turn the world of early-stage financing on its head. The Crowdfund Act-part of the Jumpstart Our Business Startups Act of 2012-will permit middle-class citizens to invest online in startups for the...
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Regulation X: A New Direction for the Regulation of Mortgage Servicers
ABSTRACTMortgage servicers are responsible for handling the day-to-day processing of mortgage loans. These responsibilities include processing borrower payments, transferring funds to trustees and investors, and answering borrower inquiries. Mortgage...
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Prudential Standing, the Zone of Interests, and the New Jurisprudence of Jurisdiction
ABSTRACTThreshold limitations on the availability of judicial review are ubiquitous in the modern federal court system. While many are fact-specific and malleable, the most foundational one, jurisdiction, is not. The D.C. Circuit recently held that prudential...
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Vol. 62, No. 6, 2013

Precedent and Reliance
Among the most prevalent justifications for deference to judicial precedent is the protection of reliance interests. The theory is that when judicial pronouncements have engendered significant reliance, there should be a meaningful presumption against...
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Looking at the Monopsony in the Mirror
INTRODUCTIONAlthough still a distant second to monopoly, buyer power and monopsony are hot topics in the competition community.1 The Organisation for Economic Co-operation and Development (OECD),2 International Competition Network (ICN),3 and American...
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Long-Term Contracting the Way to Renewable Energy Investment: Lessons from Brazil Applied to the United States
AbstractFostering development of a renewable energy industry is critical to ensuring energy security and sustained economic development. The United States recently lost its status as global leader in new financial investment in renewable energy, while...
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Beyond School Finance: Refocusing Education Reform Litigation to Realize the Deferred Dream of Education Equality and Adequacy
ABSTRACTThe academic achievement gap between poor, minority students and their wealthier white peers has been one of the most troubling and persistent policy problems in the United States throughout its history. For the past forty years, education reformers...
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Vol. 63, No. 2, 2013

Privatization and Its Discontents
INTRODUCTIONThe question of what government should control exclusively and what it should delegate to private entities is as old as government itself. In ancient Greece, ownership of forests and mines rested with the government, but the government "contracted...
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Public-Private Partnerships and Termination for Convenience Clauses: Time for a Mandate
For better or worse, and for richer or poorer, the line between government and private provision of goods and services is disappearing. It was never a bright line; governments have always turned to private purveyors of goods and services to acquire many...
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Having It Both Ways: How Charter Schools Try to Obtain Funding of Public Schools and the Autonomy of Private Schools
IntroductionSince 1992, forty-two states and the District of Columbia have enacted legislation for charter schools.1 As of December 2011, there were 5,700 charter schools educating 1.9 million students.2 Charter schools are characterized as public schools...
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Prison Accountability and Performance Measures
ABSTRACTA few decades of comparative studies of public vs. private prison performance have failed to give a strong edge to either sector in terms of quality. That supposed market incentives haven't delivered spectacular results is unsurprising, since,...
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Regulating the Privatized Security Industry: The Promise of Public/private Governance
As governments around the world increasingly turn to contractors to provide government services in the sphere of military and foreign affairs, significant problems of accountability arise. Traditional public governmental mechanisms of regulation and...
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Tilted Scales of Justice? the Consequences of Third-Party Financing of American Litigation
ABSTRACTThird-party financing of commercial litigation is a relatively new phenomenon in the United States. Recently, there has been a substantial increase in the amount of money that third parties have invested in commercial lawsuits. Many new investment...
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Vol. 62, No. 3, 2013

How the Poor Got Cut out of Banking
ABSTRACTThe United States currently has two banking systems-one for the rich, one for the poor.1 It was not always this way. In the past, the U.S. government has enlisted certain banking institutions to serve the needs of the poor and offer low-cost...
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The Law of the Body
ABSTRACTThis Article posits that a "law of the body" is overdue. In the absence of clarity about the legal status of the human body, courts have constructed a collection of circumstantially defined categories for resolving the question of human body...
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The Foreign Corrupt Practices Act and Corporate Charity: Rethinking the Regulations
American companies bring U.S. innovation and capital to all corners of the globe. The U.S. corporate presence abroad is seen not only in oil rigs and factories, but also in corporate development projects and humanitarian relief efforts.When Haiti was...
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BETWEEN JUDGMENT AND LAW: FULL FAITH AND CREDIT, PUBLIC POLICY, AND STATE RECORDS[dagger]
ABSTRACTAlthough the Full Faith and Credit Clause was intended to solidify the Union by requiring states to give appropriate respect to the official acts of other states, the application of the Clause has been controversial and analytically challenging....
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Vol. 62, No. 1, 2012

Debunking Claims of Over-Federalization of Criminal Law
INTRODUCTIONVirtually all criminal law scholars bemoan the over-federalization of criminal law.1 They are joined by judges,2 bar review associations,3 and special interest groups.4 Conventional wisdom has it that our federal congressmen and senators...
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PRINCIPLES FOR PASSION KILLING: AN EVOLUTIONARY SOLUTION TO MANSLAUGHTER MITIGATION[dagger]
ABSTRACTThe law recognizes the frailty of human nature by mitigating murder to manslaughter when committed in the heat of passion or under extreme emotional disturbance. Evolutionary analysis entails the scientific study of the principles of human nature....
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The Constitutional Right Not to Kill
ABSTRACTFederal and state governments either participate in or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion, and self-defense or defense of others. In a pluralistic...
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Making Debt Pay: Examining the Use of Property Tax Delinquency as a Revenue Source
ABSTRACTIn tough economic times, everyone looks for ways to do more with less. Local governments, however, face the challenge of doing more with money they do not have. With the recent shrinking of their budgets, it is critical that governments use their...
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Vol. 61, No. 6, 2012

The Political Puzzle of the Civil Jury
ABSTRACTAt the root of many contemporary debates over the civil justice or tort system-debates over punitive damages, preemption, and tort reform more broadly-are underlying questions about the justification for the civil jury. The United States is the...
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Land Law Federalism
ABSTRACTLand exhibits a unique duality. Each parcel is at once absolutely fixed in location and inextricably linked to a complex array of interconnected systems, natural and man-made. Ecosystems spanning vast geographic areas sustain human life; interstate...
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Cruel and Unusual Punishment: Confining Juveniles with Adults after Graham and Miller
ABSTRACTThousands of juveniles are currently confined with adults in detention and correctional facilities throughout the United States. Juveniles confined in adult facilities face grave dangers to their safety and well-being, including significantly...
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Testing Our Teachers
ABSTRACTIn recent years, a number of school districts have begun drug testing their teachers, only to find that the Supreme Court's special needs exception is failing. As it has in other corners of its Fourth Amendment jurisprudence, the Court has erected...
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Vol. 61, No. 5, 2012

Territoriality and Tangibility after Transocean
ABSTRACTPatent law is generally considered the most territorial form of intellectual property. The extension of infringement to include "offers to sell" inventions opened the door to potential extraterritorial expansion of U.S. patent law. In Transocean...
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The Paradox of Political Power: Post-Racialism, Equal Protection, and Democracy
[A] reasonable jury could easily find that the City's real reason . . . was . . . a simple desire to please a politically important racial constituency.-Ricci v. DeStefano1Democracy is premised on responsiveness.-Citizens United v. FEC2INTRODUCTIONRacial...
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Governing Systemic Risk: Towards a Governance Structure for Derivatives Clearinghouses
ABSTRACTDerivatives transactions create systemic risk by threatening to spread the consequences of default throughout the financial system. Responding to the manifestations of systemic risk exhibited in the financial crisis, policy-makers have sought...
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Turning over a New Sprout: Promoting Agricultural Health by Fostering the Coexistence of Organic and Genetically Modified Crops in the Wake of Monsanto Co. V. Geertson Seed Farms and the Deregulation of Modified Alfalfa
ABSTRACTAccording to the United States Department of Agriculture (USDA), the agricultural health of the United States requires the concurrent feasibility, or coexistence, of organic crops and genetically modified crops. Both types of crops offer separate...
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Reversing the Perversion: Interpreting Erisa to Protect Employees Who Report Violations of Federal Law to Their Managers
ABSTRACTCongress enacted the Employee Retirement Income Security Act of 1974 (ERISA) to protect workers' retirement savings from mismanagement and misuse. Section 510 of ERISA makes it unlawful for any individual to interfere with a person who attempts...
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Vol. 61, No. 4, 2012

Balls and Strikes
When the editors of the Emory Law Journal invited me to open this symposium on judging, they proposed that I reflect on the present Chief Justice's widely debated statement of his conception of judging.John Roberts has been both praised and scorned for...
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Is the Roberts Court Especially Activist? a Study of Invalidating (and Upholding) Federal, State, and Local Laws
INTRODUCTIONIs the Roberts Court especially activist or, depending on your preference, especially lacking in judicial self-restraint? If we define judicial self-restraint as a reluctance to declare legislative action unconstitutional1 and confine the...
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The Several Meanings of "Politics" in Judicial Politics Studies: Why "Ideological Influence" Is Not "Partisanship"
INTRODUCTIONTalk about judicial politics is ubiquitous in the press and academia today. Discussions of this topic, unfortunately, are often vague or inconsistent about the precise meaning of politics in judging. This Essay explores several core meanings...
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The Legal Mobilization Dilemma
INTRODUCTIONPerry v. Brown, the federal lawsuit challenging Proposition 8-the California state constitutional amendment prohibiting marriage for same-sex couples-was filed in 2009.1 At that time, it presented sweeping federal constitutional claims for...
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Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law
INTRODUCTIONWithout doubt, the Supreme Court's most prominent decision so far under the leadership of Chief Justice John Roberts has been Citizens United v. FEC.1 This 5-4 decision, striking down corporate campaign spending limits against a First Amendment...
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Sonia Sotomayor and the Construction of Merit
ABSTRACTThe appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply "not that smart." For some conservative critics, her selection illustrated...
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Designing around a Patent Injunction: Developing a Comprehensive Framework for Determining When Contempt Proceedings Are Appropriate
ABSTRACTSpurred by TiVo Inc. v. Dish Network Corp., this Comment proposes a factor-based framework for determining when contempt proceedings are appropriate in a patent infringement case. Once a court determines that an accused device infringes a patent...
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Reintroducing Intent into Predatory Pricing Law
ABSTRACTPredatory pricing occupies a strange position in the antitrust laws. Normally, low prices are one of the major goals of antitrust law because they reflect competition and are generally beneficial to consumers. However, in some situations, the...
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Vol. 61, No. 3, 2012

The Destructive Ambiguity of Federal Proxy Access
ABSTRACTAfter almost seventy years of debate, on August 25, 2010, the U.S. Securities and Exchange Commission adopted a federal proxy access rule. The D.C. Circuit promptly invalidated the new rule before it ever went into effect. This Article examines...
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Crime, Punishment, and the Psychology of Self-Control
ABSTRACTCriminal law, by design, assigns culpability for intentional, volitional action. Criminal law theory and criminal law doctrine thus both place an important emphasis on an individual's ability to control his or her behavior. Mostly, the law presumes...
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Big Brother Gets a Makeover: Behavioral Targeting and the Third-Party Doctrine
ABSTRACTA staggering 239 million Americans have access to the Internet and spend, on average, sixty hours each month online, visiting some 2646 websites. What few Internet users realize is that, during the time they surf the Web, they are subjected to...
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Rebalancing Legitimacy and Sovereignty in International Investment Agreements
ABSTRACTIn investor-state arbitration, foreign investors can bring states before an arbitral tribunal and claim damages for losses incurred due to prohibited state action. This mechanism for dispute resolution is present in most international investment...
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Vol. 61, 2012

Foreword
Quam fluctus diversi, quam mare conjuncti.1David Jeremy Bederman was intellectually fearless. His boundless intellect, however, was distinguished by his compassion, imagination, rigor, humor, and the wisdom of the ages. In announcing David's death to...
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The Bederman Lecture on Law and Jurisprudence: Public Law and Custom
Law professors love puzzles. Give us a legal doctrine that does not make sense, or appears counterintuitive, or does not appear to comport with some methodological assumption, and we can spend months (if not years) plumbing its depths and producing reams...
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The Harold J. Berman Lecture: Religious Freedom-A Second-Class Right?
ABSTRACTAlthough the Bill of Rights does not establish a hierarchy among the values it seeks to protect, Supreme Court decisions over time have classified certain rights as essential to a fundamental scheme of ordered liberty. The prominent place of...
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A Man in Full
More than a decade ago, when I shared with friends and colleagues that I was leaving Washington for a faculty position at Emory, many advised me to read Tom Wolfe's A Man in Full-for its insights into the character of my newly adopted home. And I dutifully...
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CHRISTIANITY'S MIXED CONTRIBUTIONS TO CHILDREN'S RIGHTS: TRADITIONAL TEACHINGS, MODERN DOUBTS[dagger]
INTRODUCTIONThe United Nations Convention on the Rights of the Child1 (CRC) is a landmark in the modern international protection of children's rights. Adopted by the United Nations General Assembly in 1989, its fifty-four articles and two Optional Protocols...
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David Bederman, Model Law Professor
It is an honor and privilege to contribute to this Issue of the Emory Law Journal remembering my longtime friend and colleague, David Bederman. It is right that we should do so, for David was the model law professor, excelling as an advocate, scholar,...
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Teacher, Advocate, Friend: Remembering David Bederman
David Bederman was a superb teacher, a skilled advocate, and a gracious human being. The three of us saw each of these qualities firsthand when Professor Bederman invited us to work with him on a case he argued before the Supreme Court of the United...
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The Pirate Hat
A law professor at another law school told me about David Bederman before I transferred to Emory. She studied with him at the University of Virginia and wanted me to take any course he offered. She described him as "very smart."It would have taken more...
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A Mentor for the Ages
I met Professor Bederman for the first time on my very first day of law school. The story actually begins a few days earlier, when I spoke to a handful of professors and administrators about the possibility of starting a Supreme Court litigation project...
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Tribute
Two of David Bederman's recent works focus on the role and development of custom in international law-The Pirate Code1 and Custom as a Source of Law.2 Both of these works showcase David's long celebrated and admired ability to weave together multiple...
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David Bederman, Master and Commander
Deep down, Professor David Bederman identified, I am convinced, with Captain Jack Aubrey. This may surprise the reader who knew David as a slightly built, mild-mannered, gentle, and bespectacled scholar, given that Jack Aubrey (played by Russell Crowe...
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Custom as a Source of Jewish Law: Some Religious Reflections on David J. Bederman's Custom as a Source of Law
Professor David J. Bederman's seminal work, Custom as a Source of Law,1 seeks to answer several foundational questions in the fields of legal theory and formation. One of the central concerns: Can custom itself be law? That is to say, can custom alone...
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Litigator and Scholar
David Bederman must have found more than twenty-four hours in each day. Otherwise, it is difficult to explain all that he accomplished. David's achievements as a scholar are well documented. I merely summarize: a dozen books, published by the leading...
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The Classical Foundations of David Bederman
Professor David Bederman's scholarly contributions spanned many fields. Underlying his work was an immense facility with history-a judicious understanding of historical method along with breadth of knowledge, painstakingly obtained. His contributions...
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David J. Bederman: A Tribute
I met David at New York University School of Law in the fall of 1995, at the beginning of the semester when David was a visiting professor and I was to begin a year as a research fellow. A student of David's introduced us at a reception, and I thought...
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Tribute
My last encounter with my colleague, David Bederman, was typical. As he slowly made his way to his office only a week before cancer bore him away from us, I departed my office heading belatedly for class. David said, "Have a good class, Charlie," and...
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David Bederman as Mentor and Model
Others in this Issue have noted David Bederman's unsurpassed intellect as a scholar in admiralty and international law. Still others have focused on David's skill as an advocate before the Supreme Court.I instead will focus on David's central role as...
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David Bederman: Remembrances of a Friendship That Began at Covington & Burling Llp in Washington, D.C
David and I became friends when he was a summer associate at Covington & Burling LLP during the summer of 1987. As our hiring partner during this period, I was asked to maintain the liaison with David during his two years as a clerk, first with Judge...
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¡Cuba Sí!: A Tribute to Professor David Bederman and a Letter to President Obama
My chief memory of David Bederman is his tremendous intellect and interest in solving challenging international legal issues. He often argued for the just use of beaches1 and an island, Antarctica.2 His first lecture to the Emory faculty dealt with the...
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Tribute: David Bederman
There is much that can be said about the academic excellence, practical skills, and general prestige of David Bederman within the legal fraternity. His résumé records the many achievements that attended his academic studies at Princeton, the London School...
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Vol. 61, No. 2, 2012

Campaign Speech Law with a Twist: When the Government Is the Speaker, Not the Regulator
ABSTRACTAlthough government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law...
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In Defense of Individual Tax Privacy
The debate over whether tax privacy-a set of statutory rules that prohibits the federal government from publicly releasing any taxpayer's tax return- promotes individual tax compliance is as old as the income tax itself. It dates back to the Civil War...
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Monsanto Co. V. Geertson Seed Farms: Irreparable Injury to the National Environmental Policy Act?
ABSTRACTThe Supreme Court recently embarked on a path toward removing the only teeth the National Environmental Policy Act (NEPA) has-its procedural mandates. In Winter v. Natural Resources Defense Council, Inc. and, more recently, in the controversial...
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Section 5 of the Voting Rights Act and Its Place in "Post-Racial" America
ABSTRACTThe Fifteenth Amendment purported to withdraw race and color from the calculus of suffrage. Instead, it gave rise to an era of creative exclusion in which Southern states erected one barrier after another and Congress floundered in its attempts...
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