Emory Law Journal

Volume 64Issue 4

The Fracking Revolution: Shale Gas as a Case Study in Innovation Policy

John M. Golden & Hannah J. Wiseman | 64 Emory L.J. 955 (2015)

The early twenty-first century has witnessed a boom in oil and natural gas production that promises to turn the United States into a new form of petrostate. This boom raises various questions that scholars have begun to explore, including questions of risk governance, federalism, and export policy. Relatively neglected, however, have been questions of why the technological revolution behind the boom occurred and what this revolution teaches about innovation theory and policy. The boom in U.S. shale gas production reflected long-gestating infrastructure developments, a convergence of technological advances, government-sponsored research and development, the presence or absence of intellectual property rights, rights in tangible assets such as land and minerals, and tax and regulatory relief. Consequently, the story behind the boom reaches far beyond the risk-taking and persistence of George Mitchell, whose independent production company achieved pioneering success with hydraulic fracturing (fracking) in Texas’ Barnett Shale. Indeed, the broader story demonstrates how a blend of distinct policy levers, reasonably adjusted over time, can combine to foster a diverse innovation ecosystem that provides a robust platform for game-changing innovation.

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Lobbying in the Shadows: Religious Interest Groups in the Legislative Process

Zoë Robinson | 64 Emory L.J. 1041 (2015)

The advent of the new religious institutionalism has brought the relationship between religion and the state to the fore once again. Yet, for all the talk of the appropriateness of religion–state interactions, scholars have yet to examine how it functions. This Article analyzes the critical, yet usually invisible, role of “religious interest groups”—lobby groups representing religious institutions or individuals—in shaping federal legislation. In recent years, religious interest groups have come to dominate political discourse. Groups such as Priests for Life, Friends Committee on National Legislation, Women’s Christian Temperance Union, and American Jewish Congress have entered the political fray to lobby for legislative change that is reflective of specific religious values. These religious interest groups collectively spend over $350 million every year attempting to entrench religious values into the law. These groups have become the primary mechanism for religious involvement in federal politics, but, surprisingly, the place and role of these groups has yet to be examined by legal scholars. This Article shows that the key features of religious interest groups reflect significant tensions within the emerging project of religious institutionalism.

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“The Twain Shall Meet”: A Real Property Approach to Article 9 Perfection

Patrick H. Hill | 64 Emory L.J. 1103 (2015)

In an era of boundless access to information, a group of rogue citizens is waging an antigovernment war of attrition. Trading firearms for securities documents, the Sovereign Citizens are wreaking havoc on a system designed to foster justice for all. By manipulating the infirm process of securing credit, these domestic terrorists threaten to topple the American legal and economic systems. Article 9 of the Uniform Commercial Code facilitates the creation of security interests in personal property. The American Law Institute and the National Conference of Commissioners of Uniform State Laws on occasion revisit and amend the Uniform Commercial Code to ensure its continued effectiveness. The drafters must turn their attention to the infirmities of Article 9 of the Uniform Commercial Code. While Article 9 allows creditors to perfect their interests in personal property with ease, its prescribed methods have proven vulnerable to abuse. This Comment argues that the drafters should borrow from real property traditions to lend validity to the process of perfecting an interest in personal property.

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Combating Hindsight Reconstruction in Patent Prosecution

Ashley Allman Bolt | 64 Emory L.J. 1137 (2015)

The common saying “hindsight is 20–20” rings true in many different areas; in patent law specifically, hindsight bias has the potential to affect a patent examiner’s determination of whether an invention is “obvious” under 35 U.S.C. § 103. The examiner may permissibly rely upon a combination of prior art references to find that a claim would have been obvious to a person having ordinary skill in the art. However, the examiner may not use “that which only the inventor taught . . . against its teacher.” Structural flaws within the examination process place pressure upon examiners to reject claims upon first examination, regardless of the content of those claims. This Comment proposes a framework that focuses on the question of whether an examiner has impermissibly relied upon hindsight to combine references in determining obviousness. This framework provides an avenue for discussion between the patent examiner and the prosecuting attorney and provides substance to be considered by decisionmakers on appeal.

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In Combination: Using Hybrid Rights to Expand Religious Liberty

Ryan S. Rummage | 64 Emory L.J. 1175 (2015)

The First Amendment to the United States Constitution protects, among other things, the right to the free exercise of religion. In 1990, the Supreme Court held, in Employment Division v. Smith, that valid and neutral laws of general applicability do not violate the Free Exercise Clause. While this decision has reduced the amount of religious liberty protection available to claimants, the decision did leave a silver lining for religious liberty claimants in the form of hybrid rights, which involve the combination of a free exercise claim with another constitutionally protected claim. Because the Supreme Court in Smith did not adequately address hybrid rights, the question remains: when can a combination of protected rights provide religious liberty to a claimant? Three different hybrid rights approaches have emerged: treating Smith as dicta, allowing independent claims, and allowing colorable claims. This Comment argues that the first two approaches completely foreclose the possibility of hybrid rights protection, while the colorable claim approach provides the proper avenue for religious claimants. Then, this Comment makes two arguments for the expansion of hybrid rights.

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