Emory Law Journal

Volume 69Issue 1

Administrative Law in an Era of Partisan Volatility

Michael A. Livermore & Daniel Richardson | 69 Emory L.J. 1 (2019)

Contemporary politics is characterized by a polarized national discourse, weak party organizations, volatile control of government, and an increasingly assertive executive. These political dynamics interact with a system of administrative law inherited from different political times that is ill-suited to addressing the risks of the current moment, which include threats to administrative values such as efficiency, impartiality, and expertise; to democratic values such as accountability, transparency, and participation; and, most generally, to the ability of the law to benefit social well-being through sound policymaking. In recent years, some legal scholars have become attuned to the interaction between administration and these features of the political environment. Unfortunately, administrative law itself has been slow to catch up, with potentially dangerous consequences for the stable functioning of the U.S. administrative state. Drawing from the political science literature that examines the interacting features of organized politics that generate stable party systems, we examine how prior administrative law regimes have responded to political transformations in the past. With this research in view, we find that administrative law as it stands today, which emerged during an earlier party system, is ill-suited to meet the challenges of modern politics. Time will tell whether courts will shape doctrine to better align administrative law with the needs of the times.

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The Costs of Changing Our Minds

Nita A. Farahany | 69 Emory L.J. 75 (2019)

The neuroscience revolution poses profound challenges to the doctrine of avoidable consequences in tort law and exposes deep theoretical riddles about the right to our own mental experiences and memories. To address this profound question, this Article begins with a deceptively simple principle of tort law: A victim of tortious wrongdoing by another is held responsible for mitigating her own physical injuries. This Article addresses whether that same doctrine should require a tort victim to likewise mitigate her emotional injuries. The answer to that question is of great and increasing importance because it goes to the heart of how society should address dramatic advances in neuroscience that enable us to change our own minds. This Article proposes a revolutionary way to understand both the answer to this question and to bring daylight to many puzzling doctrines in law—through the right to cognitive liberty. Through an introduction to the groundbreaking concept of cognitive liberty, the confusion plaguing the doctrine of avoidable consequences in tort law for emotional distress injuries is solved and new insights are developed with respect to other doctrines in law. These implications are as far-ranging as the deliberative privilege afforded to judges to the forced competency of prisoners. It quickly becomes apparent that cognitive liberty is the interest upon which many of our most cherished freedoms are secured.

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State Constitutions as a Check on the New Governors: Using State Free Speech Clauses to Protect Social Media Users from Arbitrary Political Censorship by Social Media Platforms

Elijah O'Kelley | 69 Emory L.J. 111 (2019)

Social media platforms like Facebook are increasingly the arbiters of what political viewpoints get the light of day. As more people become active on social media, including using it as a primary news source, and as political speech increasingly moves onto these platforms, they will continue amassing the power to control news narratives, the size of speakers’ bullhorns, and the ideas that get discussed. Moreover, these platforms will likely face increasing external pressures to silence certain viewpoints deemed objectionable or offensive, whatever those views may be. The United States Constitution provides no check on this power. As private actors, social media platforms can ban whatever speech they want, and for whatever reason, subject only to market pressures. Simply, the First Amendment, based on its text and longstanding precedent, does not apply. There may be another way to safeguard speech online, however. This Comment proposes looking to a different source of law, one all too often overlooked in litigation and scholarship: state constitutions. Nearly all state constitutions have free speech clauses that are textually different from the First Amendment in ways suggesting state action requirements can be softened or even jettisoned. Moreover, a handful of states have interpreted their free speech clauses as being broader than the First Amendment and applying to certain private actors—an approach with express approval by a unanimous United States Supreme Court. This case law provides reasoning applicable to a new and modern dilemma: the gravitation of political speech to social media platforms.

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Uncontainable Threat: The Nation’s Coal Ash Ponds

Keaston Hall | 69 Emory L.J. 163 (2019)

Coal ash ponds pose a significant threat to the environment and human health. Coal ash is a byproduct of the electricity production process, and it contains carcinogens like boron, arsenic, lithium, and mercury. Typically, utility companies store coal ash in ponds located near rivers and lakes. If coal ash is stored in ponds that lack an adequate liner, the coal ash can seep into the groundwater and travel to nearby surface waters, which may serve as a drinking water source for neighboring communities. The EPA has admitted that the majority of America’s coal ash ponds are unlined and prone to leaks. Moreover, there have been several instances where coal ash ponds have failed and discharged millions of gallons of coal ash into surrounding surface waters. In an effort to protect citizens’ health and the environment, plaintiffs have utilized the Clean Water Act to hold utilities liable when they discharge coal ash pollutants to surface waters via hydrologically connected groundwater. Nevertheless, the Fourth Circuit in Sierra Club v. Virginia Electric and Power Co. determined that coal ash ponds were not point sources under the CWA, and this decision will likely prevent future plaintiffs from bringing claims against utilities under the Act. The holding in Sierra Club will also limit future plaintiffs’ ability to hold polluters liable for unpermitted discharges from other types of “containers,” which will increase the possibility of an environmental disaster. As a result, the Supreme Court must step in and reverse the Fourth Circuit’s decision. More specifically, the Supreme Court must hold that coal ash ponds are point sources under the CWA. To reach this decision, the Supreme Court must first look to the purpose of the CWA, which was designed “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Then, the Supreme Court must look to the language of the Act, specifically the CWA’s definition of the term “point source.” Lastly, the Supreme Court must look to other cases involving “containers” as they indicate that “natural processes” may be part of a point source discharge if the polluter “initially collected” the pollutants.

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