Emory Law Scholarly Commons

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resourc…

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentato…

This Article presents a novel theory that courts undermine the purpose of the Americans with Disabilities Act (ADA) by implicitly embracing environment-frames that disfavor disability protections. Courts employ environment-frames at two stages of judicial analysis under the Act: the disability eligibility and remedy stages. In determining whether a plaintiff is in the statutorily protected class,…

Companies that have manufactured, processed, or sold per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” face mounting financial pressure as the number of claims against them skyrocket. With billions of dollars already allocated to settlements and new lawsuits continuously filed, liable corporations may utilize the Texas Two-Step to minimize financial risk. The maneuv…

Insurers have traditionally been denied “party in interest” status under the Bankruptcy Code due to the longstanding insurance neutrality doctrine. The insurance neutrality doctrine prevents insurers from challenging a chapter 11 bankruptcy plan as a section 1109(b) “party in interest” if the plan does not increase the insurance company’s liability from pre-bankruptcy levels. If none of their rig…

Women are winning more student loan bankruptcy cases than men, a notable reversal that challenges what we know about gender and legal outcomes. Drawing on hand-coded data from over 1,300 adversary proceedings spanning 2007 to 2023, this Article documents a sharp post-2022 shift. Women now succeed in 89% of cases compared to 82% for men. The puzzle is that financial metrics cannot explain this gap…

Over the last several years, Merchant Cash Advances (“MCAs”) have risen in prominence as a form of short-term financing for distressed small businesses. MCA transactions are distinct from most small-business lending because they are not structured as loans at all. Rather, in exchange for a lump sum of cash, the merchant purports to sell to the funder an unidentified percentage of its future recei…

This article proceeds as follows. Because it is first necessary to recount some of the history of the Little Rock school cases, Part I discusses the origins and early steps in the long-running litigation. Part II considers the period from 1982 until 2004 when Richard Arnold was a member of the appellate panel assigned to the school cases. This part identifies three critical points of the Eighth C…

Unfortunately, the HIV-AIDS epidemic is still out of control. According to federal esti­mates, another American becomes infected with HIV every thirteen minutes; consequently, eight people in the United States will contract HIV during the course of this program. Many individuals have been prosecuted and convicted for exposing others to HIV and in rare circum­stances for actually transmitting HIV …

This Article reviews and analyses scholarship at the intersection of anthropology and law. The first half of the Article provides context for understanding the boundaries, animating concerns, and tensions that have characterised the anthropology of law as an area of interdisciplinary inquiry. We focus especially on the subdiscipline’s Anglo-American history and show how a promising early period o…

Lack of access to evidence-based care for drug addiction is an urgent problem amid a decades-long overdose crisis that kills tens of thousands of Americans a year. Opioid addiction is the primary driver of overdoses today, and medicines exist to treat such addiction that can dramatically improve quality of life while reducing the risk of deadly overdose by more than half. Yet fewer than one in fo…

The discussions in this Article proceed as follows. Part I briefly introduces several areas of contemporary debate for which this inquiry is relevant. In Part II, I examine previous scholarly evaluations of the doctrine of precedent in the formative period. I provide an alternative explanation for the adoption by American courts of rhetoric favoring stare decisis, one that links the rhetoric used…

For decades, advocates of tort reform have argued that expansive products liability stifles economic activity by imposing excessive and unpredictable liability costs on businesses. Although politicians aspiring to create jobs, attract businesses, and improve the economy have relied on this argument to enact hundreds of reforms, it has largely gone empirically untested. No longer. Using the most c…

For over a century and with increasing frequency, major controversies have erupted between large distributors of copyrighted works (song publishers, movie studios, record labels, book publishers, etc.) and makers of new technologies for experiencing those works (player piano manufacturers, VCR manufacturers, the creators of file sharing software, Google Books, etc.). Usually, the copyright owners…

This article describes the origins, design, and implications of a new study exploring female-perpetrated statutory rape against ado­lescent boys in the United States. In contrast to both legal frame­works, which typically regard statutory rape as a male-on-female phenomenon, and existing literature from the fields of psychology and psychiatry derived from clinical samples and sex offender reg­ist…

This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive ex­pected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it …

Forming a coalition on a multi-judge panel involves an inherent trade-off between coalition maximization and ideological outcome optimization. Much scholarship is premised on assumptions about how judges make that trade-off; these assumptions have consequences for how we view and measure judicial decision-making. Specifying these assumptions, formally modeling their effects, and basing measures o…

The law increasingly treats copyright as if it were any other form of property, and numerous writers decry this trend. In particular, scholars who express solicitude for the public domain fear that the "propertization" of copyright threatens an inevitable accretion of pri­vate rights in information at the expense of the public domain. This Ar­ticle questions this conventional view, arguing that t…

Author ORCID Identifier 0000-0001-9690-0326 Document Type Article Publication Date 2026 Keywords Climate change, Legal duty, Climate adaptation, Takings, Retreat, Relocation, Government duties Abstract In the face of climate-driven disasters, government officials and individuals alike must decide whether to invest in climate-exposed areas or retreat. This Article analyzes emerging legal and polic…

Author ORCID Identifier 0000-0002-4989-7133 Document Type Article Publication Date 2000 Keywords Precedential value, Judicial power, Article III, Originalism Abstract A recent decision by a panel of the Court of Appeals for the Eighth Circuit enlivened the controversy over court rules that prevent citation to unpublished opinions when it held that the Circuit's non-citation rule violates Article …