Emory Law Journal

Volume 67Issue 5

Protecting States in the New World of Energy Federalism

Daniel A. Lyons | 67 Emory L.J. 921 (2018)

In a trilogy of recent cases, the Supreme Court has launched a quiet revolution in energy federalism. With little fanfare, it has abandoned its decades-long effort to divide electricity regulation into mutually exclusive spheres of federal and state authority. Instead it has embraced a more sophisticated concurrent jurisdiction model—against the wishes of Justice Scalia, who opposed this transformation in his final published dissent. This Article explores the ramifications of this revolution, particularly for state energy regulators. The shift to concurrent jurisdiction is long overdue. The historic model of the local vertically integrated utility has long been replaced by regional, complex, innovative electricity markets. Concurrent jurisdiction allows regulators to adapt more nimbly to changing market dynamics, unrestrained by the outdated formalism of the old dual federalism model.

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Medical Malpractice as Workers’ Comp: Overcoming State Constitutional Barriers to Tort Reform

Alexander Volokh | 67 Emory L.J. 975 (2018)

This Article discusses the intersection of torts, administrative law, and constitutional law—a surprisingly understudied area, given its importance for modern-day tort reform efforts. In several states, based on perceptions of a medical malpractice liability and insurance crisis, reformers have sought to abolish tort liability for medical malpractice—replacing it with an administrative compensation system not based on negligence and roughly similar to workers’ compensation. Surprisingly, it turns out that workers’-comp-like administrative systems, though more radical than damages caps and similar reforms, seem to have a better chance of being held constitutional—in part because of their similarities with workers’ comp, which also abolished certain tort actions and replaced them with a non-negligence-based administrative system, and which has been universally held to be constitutional. This Article analyzes the constitutionality of this sort of administrative compensation system under the Florida, Alabama, and Georgia constitutions, focusing on jury trial rights, access-to-courts rights, and due process/equal protection.

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The SEC’s Forgotten Power of Exemption: How the SEC Can Receive Deference in Favor of Internal Whistleblowers Even When the Text Is Clear

Lesley Chen | 67 Emory L.J. 1043 (2018)

In 2008, the United States suffered its worst financial crisis since the Great Depression. This crisis was precipitated by corporate fraud committed by some of the largest Wall Street firms. Congress responded by passing the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) to improve accountability and transparency in the financial system. Recognizing the importance of whistleblowers in exposing corporate fraud, Congress included an anti-retaliation provision in Dodd-Frank, which was designed to protect whistleblowers from retaliation after coming forward with evidence of corporate wrongdoings. This Comment surveys existing case law to highlight how the SEC may still extend Dodd-Frank anti-retaliation protection to internal whistleblowers while conforming to Chevron and the recent Supreme Court ruling. The SEC can accomplish this by exempting internal whistleblowers from disclosing to the SEC. Ultimately, this Comment argues that the SEC can advance Dodd-Frank’s goals of expanding whistleblower protections by exercising its forgotten general exemptive authority to protect internal whistleblowers, even if Dodd-Frank’s text clearly requires disclosure to the SEC.

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Let’s Not Throw out the Baby with the Bathwater: A Uniform Approach to the Domestic Relations Exception

Karla Doe | 67 Emory L.J. 1077 (2018)

This Comment offers a new approach to the domestic relations exception. It proposes a three-step analysis that properly accounts for the exception’s underlying values: federalism and access to courts, as well as the value that has kept the exception alive to this day—stare decisis. Should federal courts adopt this Comment’s approach, a uniform application of the domestic relations exception emerges, and from there, a proper scope will develop. Although the exact contours of the exception’s limits will always be difficult to delineate given the highly factual nature of family law inquiries, this Comment’s proposed analysis offers a significant step toward establishing the consistency concerning the domestic relations exception.

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