Emory Law Journal

Volume 64Issue 1
Articles

Urban Decay, Austerity, and the Rule of Law

Brent T. White, Simone M. Sepe, Saura Masconale | 64 Emory L.J. 1 (2014)

Detroit has failed and its infrastructure is crumbling. But Detroit is not an isolated case. It is a paradigmatic example of increasing urban decay across the United States. While commentators have warned that the declining state of the country’s infrastructure threatens U.S. prosperity, there is a bigger issue at stake. Decaying urban environments jeopardize the rule of law, undermining the very foundation of the social contract. This Article shows that the strength of the rule of law in a given country can be predicted by that government’s ability (or inability) to provide public services—particularly, a livable urban environment. When urban decay sets in, individuals are led to believe that the government and thus citizens as a collective have abandoned their commitments to following the basic rules governing the social contract. This, in turn, reduces incentives of individuals to engage in lawful behavior. As a result, the rule of law is, like the city itself, left in shambles. In support of this theoretical account, we provide empirical evidence that urban decay weakens the rule of law.

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An Information Theory of Copyright Law

Jeanne C. Fromer | 64 Emory L.J. 71 (2014)

The dominant American theory of copyright law is utilitarian, in offering the incentive of limited copyright protection to creators to generate material that is valuable to society. Less settled is the question of the sorts of works that copyright law seeks to encourage: Ever more copyrightable creations? Only some that are artistically worthy? What makes a work valuable to society? This Article seeks to answer important aspects of these questions by examining them through the lens of information theory, a branch of applied mathematics that quantifies information and suggests optimal ways to transmit it. Using these concepts, this Article proposes that what makes expressive works valuable to society is that they make a contribution in at least one of two principal ways: by using that expression to communicate knowledge—be it systematic, factual, or cultural—and by conveying expression that is enjoyable in and of itself. Information theory sheds light on how copyright law can spur these valuable works.

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Comments

The Post-Koontz Landscape: Koontz’s Shortcomings and How to Move Forward

Kristin N. Ward | 64 Emory L.J. 129 (2014)

This Comment analyzes the Supreme Court’s opinion in Koontz v. St. Johns River Water Management District, and critiques the Court’s language regarding environmental protection and local government regulation. In sum, the Koontz opinion reveals that the Court is unsympathetic to environmental protection at the local level, and is suspicious of local government’s ability to make reasoned land-use decisions without extorting unfair value from property owners. The Court’s doubtful attitude regarding the validity of wetlands protection and local government regulation are unsupported by the relevant scholarship. Next, this Comment argues that applying the formulaic takings test prescribed in Koontz has the negative effect of reducing procedural flexibility for local land-use decision-makers. Acknowledging Koontz as the new reality for local governments, local officials will need to adapt to the changes imposed by expanding the Nollan-Dolan test to permit denials, and address the confusion caused by issues the Court left open in the opinion. This Comment recommends a new “negotiated permitting”procedure as a strategy to limit potentially expanded takings liability under Koontz.

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Induced Nuisance: Holding Patent Owners Liable for GMO Cross-Contamination

Sabrina Wilson | 64 Emory L.J. 169 (2014)

The landscape of modern organic farming changed drastically with the introduction of genetically modified organisms (GMOs). Today’s organic farmer must be constantly vigilant of the threat of GMO cross-contamination. Genetic drift and cross-contamination from GM crops will render organic crops unmarketable, resulting in economically damaged organic programs. Current regulatory systems are unable to protect against the risk of GMO contamination, relegating the judicial system to address the resulting damage. However, many organic farmers who find their crops contaminated are reluctant to seek redress for fear of possible patent infringement suits by the GMO patent owner (typically Monsanto). This is understandable considering that Monsanto continues to find support in the courts when enforcing its patent rights in GMOs. The unique nature of self-replicating GMOs has spurred many legal questions that lie at the intersection of patent owner and organic farming rights. This Comment explores the recourse currently available to the organic farmer harmed by GMO cross-contamination and argues for a new theory of liability: induced nuisance.

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Dismissing Derivative Actions in the Federal Courts for Failure to Allege Demand Futility: Choosing a Standard of Appellate Review—Abuse of Discretion or De Novo?

Andrew S. Hirsch | 64 Emory L.J. 201 (2014)

In the federal court system, when the district courts dismiss shareholders’ derivative actions for failure to allege demand futility, the circuit courts have historically reviewed these dismissals for abuse of discretion. This started to change when the Supreme Court of Delaware converted from deferential to plenary review in 2000. Thereafter, many circuit courts expressed doubt about their historical standard of review. This Comment assembles all the information and analyses necessary for the reader to fully understand the issue and concludes that the courts should preserve the deferential standard. As an intermediate step to this conclusion, this Comment argues that Rule 23.1 of the Federal Rules of Civil Procedure itself—not Rule 12(b)(6) or any other rule—is the proper procedural vehicle for dismissing a case when a plaintiff fails to allege demand futility—the demand futility dismissal. After selecting the vehicle of dismissal, this Comment then turns to the task of assigning a standard of review. To do so, it employs the multifactor test that the Supreme Court handed down in Pierce v. Underwood.

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