Emory Law Journal

Volume 65Issue 3

Revenge Pornography and First Amendment Exceptions

Andrew Koppelman | 65 Emory L.J. 661 (2016)

People are marvelously inventive in devising new ways to hurt each other. Some of these new ways involve speech. The Supreme Court has recently declared that speech is protected by the First Amendment unless it is a type of communication that has traditionally been unprotected. If this is the law, then harms will accumulate and the law will be helpless to remedy them. Revenge pornography prohibitions raise a serious free speech problem. They suppress truthful information, and they do so in order to prevent audiences from being persuaded, by that information, to form a viewpoint with which government disagrees: specifically, that this woman is a despicable whore because she allowed this picture to be taken. The harm that this speech causes is, however, so severe that an exception to ordinary free speech principles is justified.

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Energy Partisanship

Hari M. Osofsky, Jacqueline Peel | 65 Emory L.J. 695 (2016)

Whether the topic is the Paris Agreement on climate change, greenhouse gas emissions from power plants, the Keystone XL pipeline, hydraulic fracturing, offshore drilling, or renewable energy, much of the U.S. policy dialogue about energy and climate change is deeply partisan. This Article provides a novel analysis of how to make progress on energy and climate change issues by translating this emerging psychological research into a framework for action. It proposes two interconnected strategies— substantive and structural—for moving past imbedded partisanship and political dysfunction. Substantively, the Article argues for refocusing regulatory efforts on areas where a greater degree of consensus may be possible, such as economic development and disaster resilience. Structurally, it proposes a shift to arenas that are less gridlocked by energy partisanship than the legislative branch of the federal government, such as other branches of the federal government, state and local levels, and corporate and private sector actors. By drawing on case studies and empirical data, including interviews with key stakeholders, the Article illustrates possibilities for progress under this framework.

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Amidst the Walking Dead: Judicial and Nonjudicial Approaches for Eradicating Zombie Mortgages

Andrea Clark | 65 Emory L.J. 795 (2016)

The collapse of the residential housing market in 2007 brought with it a wave of foreclosures. Subprime borrowers, who were once elated by loans they secured from lenders, suddenly found themselves strangled by the predatory terms of their newfound loans and ultimately became unable to pay their outstanding loan balance. This Comment analyzes the different circumstances under which lenders can foster the creation of zombie mortgages. Particularly, this Comment focuses on stalled and incomplete residential foreclosure sales and failures to execute deeds of sale, tactics which serve to maintain legal liability of the mortgaged property on a borrower. Notwithstanding a lender’s right to foreclose on residential property to satisfy the obligations that it is owed under a promissory note, this Comment argues that strategic delays in completing a foreclosure sale entitle state courts and legislatures to either (1) force a lender to complete a sale or (2) divest a lender from both its right to foreclose and its security interest.

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OPA or NOPA? Restoring Cooperative Federalism in Oil Pollution Enforcement

Jennifer Lamb | 65 Emory L.J. 841 (2016)

Catastrophic oil spills are some of the most visible and devastating contemporary environmental disasters. Unfortunately, a loophole in the Clean Water Act has significant potential to limit the United States’s ability to prosecute those who spill oil. This Comment argues that the application of statutory preclusion to Oil Pollution Act cases is contrary to the original intent of the Congress in drafting the statutory preclusion provision of the Clean Water Act and subsequent Oil Pollution Act amendments. Further, applying statutory preclusion to oil pollution cases undermines effective enforcement. This Comment proposes that the Environmental Protection Agency (EPA) should take a leadership role by arguing that its interpretation of the statutory preclusion provision in its regulations should be entitled to deference under Chevron v. National Resource Defense Council. Providing Chevron deference to the EPA’s prosecutorial determinations will resolve a three-way split among the federal circuits. A uniform rule will also facilitate effective relationships under cooperative federalism for the benefit of the environment.

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Resurrecting the Public Voice: The Expansion of Standing in Patent Litigation

Roderick Blevins | 65 Emory L.J. 893 (2016)

The Federal Circuit’s dismissal of Consumer Watchdog’s appeal in 2014 illustrates a systemic shortcoming of standing in patent law. More specifically, the current implementation of the federal standing doctrine in patent litigation prevents public interest organizations from litigating the validity of patents. This shortcoming appears in spite of the fact that the patent system exists as a public endorsement of a private right in exchange for a purported social contribution on the part of the inventor and her invention. Instead of constructing an ill-fated legislative solution, this Comment suggests that the shortcoming may be overcome through action at the Patent Office. More specifically, the Patent Office, in promulgating rules relating to its internal operation, may establish a committee to recognize certain public interest organizations for membership in a special program. That program would offer those select organizations—chosen on the basis of meritorious criteria and for a limited term—the opportunity to submit themselves to monetary penalty upon losing an inter partes reexamination. The monetary loss then constitutes an injury in fact, the baseline requirement for appeal from administrative action.

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