Emory Law Journal

Volume 64Issue 1

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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