Donald T. Hornstein *
As the outstanding contributions to this symposium demonstrate, the on-the-ground connections between water and energy are pervasive, multidimensional, and sobering. And, at the legal nexus between water and energy, the symposium’s contributors generally hint at some mix of land-use controls, common-law liability, or regulation to help mediate the challenges. Yet precisely because the challenges are so sobering, perhaps an even broader range of social institutions and solutions ought to be considered. In this essay, I offer some observations of the role that insurance may play at the energy-water nexus.
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* Aubrey L. Brooks Professor of Law, University of North Carolina School of Law. Even though my experience with insurance and weather comes partly from my role as an appointed public member of the North Carolina Wind Pool, a $400 million insurance facility, the views expressed in this essay do not in any way reflect the views of the Wind Pool or even my own views when operating as a member of the Wind Pool’s Board of Directors.
Andrea West Wortzel *
Energy and water are integrally linked. Water is necessary to produce and deliver energy,[1] both for cooling and for pollution control. For certain energy sources, such as natural gas and coal, water is needed in the extraction process. Energy powers water treatment processes and pumps for transporting water to end users. Energy is also needed to treat water after it has been used and to return it to the stream or to another user.
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* Of Counsel; Environmental & Natural Resources Practice Group, Troutman Sanders LLP; Coordinator, Mission H2O; J.D., 1996, University of Richmond School of Law; B.A., 1991, The College of William and Mary. Mission H2O is a stakeholder group focused on regulatory and legislative developments impacting water supply in Virginia.
[1]. See Energy and Industry, Nat’l Geographic, http://environment.nationalgeogra phic.com/environment/freshwater/energy-and-industry/ (last visited Feb. 18, 2014); Energy-Water Nexus Overview, Sandia Nat’l Lab., http://www.sandia.gov/energy-water/nex us_overview.htm (last visited Feb. 18, 2014).
Lauren Maxey
In May 2012, Roanoke Athletic Club in Virginia revoked a family club membership from two dads and their two-year-old son Oliver, after discovering that the two dads were gay and that they did not qualify for club membership. William Trinkle, Juan Granados, and Oliver applied for membership at the athletic club so that they could enjoy the summer by the pool as a family. Trinkle purchased a family membership and club officials approved his application, but soon after the family started using the facilities, the operations director contacted the couple. The director revoked their membership because they did not qualify under the club’s definition of a family. Thus, Trinkle, Granados, and Oliver were denied a family membership simply because of Trinkle’s and Granados’ sexual orientations. In addition, Oliver was denied the access available to children of heterosexual couples. Although the athletic club later changed its definition of a family to allow families like Trinkle, Granados, and Oliver to gain membership, this event highlights one of the many problems gay dads face in Virginia as a result of the current state of Virginia law regarding legal parentage.
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Leah Stiegler *
“No beaches have been closed due to ethanol spills!”[1] An ethanol advocacy group near the United States Capitol shouted these words in 2010. Proponents of ethanol parade an environmentally benign image that plays up ethanol as a “clean fuel” that could never harm water resources, unlike well-publicized oil spills, such as the Exxon Valdez incident.[2] But this is not the case.
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* J.D. Candidate, 2015, University of Richmond School of Law; B.A. and B.S., 2012, Virginia Polytechnic Institute & State University. I am grateful to have this opportunity to publish and would like to thank the entire University of Richmond Law Review staff and editorial board for their work to make it possible. A special thank you to Jonathan Tan and Christopher Bascom for providing guidance and edits throughout my writing process. Finally, I would like to thank my friends, family, and especially my mother, Janet Stiegler, for her inspiration and encouragement to improve my writing.
[1]. Erica Gies, As Ethanol Booms, Critics Warn of Environmental Effect, N.Y. Times (June 24, 2010), http://www.nytimes.com/2010/06/25/business/energy-environment/25iht-r bogeth.html?pagewanted=all&_r=0.
[2]. See id.
Thomas K. Clancy*
What is the purpose of the Fourth Amendment? How should rules – legal principles – be crafted to implement that purpose? This article addresses those questions. Nothing is more fundamental to the development of Fourth Amendment principles than the answers to those questions. Given the wide applicability of the Fourth Amendment to the countless intrusions by the government in daily life, how the Fourth Amendment is to be construed is itself of fundamental concern to all Americans. It is the foundation upon which other freedoms rest.
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*Director, National Center for Justice and the Rule of Law and Research Professor, University of Mississippi School of Law. J.D., Vermont Law School; B.A., University of Notre Dame. The development of this article benefited significantly from a workshop with Professors Christopher Green, Matthew Hall, and Jack Nowlin.
Charles R. Korsmo*
The events of May 6, 2010 took high-frequency trading from the edges of public consciousness to being front page news. American stock markets had opened that morning to unsettling rumblings from Europe. The previous day had seen violent protests in Greece against proposed austerity measures designed to avert a default on Greek government debt. The ongoing riots seemed likely to scupper a proposed European Union bailout of Greece, potentially touching off a chain-reaction debt crisis with disastrous consequences for the entire euro zone. Given these inauspicious augurs, it is hardly surprising that investor sentiment was somewhat jumpy and decidedly gloomy for much of the day. Over the course of the morning, prices slid in increasingly volatile trading. By 1:00 p.m., the Standard & Poor’s 500 (“S&P 500”), a well-known index of stock prices for 500 top American companies, had fallen by about 1%—a significant drop, to be sure, but not yet particularly alarming.
Around 1:00 p.m., the dollar value of the Euro started to decline precipitously, and the sell-off in the broader market began to accelerate. The volatility of stock prices increased sharply, triggering automatic slowdowns in trading for numerous stocks traded on the New York Stock Exchange (“NYSE”). By 2:00 p.m., the S&P 500 had fallen a total of 2.9% for the day. Such a large drop is unusual, and undoubtedly cause for consternation, but was nowhere near as severe as the multiple 5%+ daily swings seen at the height of the 2008 financial crisis. Few would have guessed that the stage was now set for the most extraordinary hour in the history of the American stock market.
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*Assistant Professor, Case Western Reserve University School of Law. J.D., Yale Law School.
Viva R. Moffat*
In passing the Copyright Act in 1976, Congress provided that “pictorial, graphic, and sculptural works” were to be protected, but at the same time made clear that works of industrial design, as opposed to works of applied art, were not to be protected by copyright law. Put simply, “useful articles” are not copyrightable. This is so because useful things belong in the patent realm, if they are to receive protection at all. Seemingly straightforward, this distinction—between applied art and industrial design, between copyright law and patent law—has long perplexed policymakers, courts, and academics.
While the law and the language, as shall be seen, can be jargon-filled and obscure, at issue is a straightforward and real-world concern: whether and to what extent items like bicycle racks, smartphones, belt buckles, mannequins, and all manner of everyday products ought to be protected by some kind of exclusive right. Put another way, the question is whether copyright provides the proper form of protection for items of industrial design.
This article concludes emphatically that, while some kind of protection—that is, some kind of restriction on copying, be it design patent, trade dress, or a sui generis form of protection—may be appropriate, copyright law is not the right approach. More specifically, “not copyright” for industrial design is sufficiently important that a bright-line rule excluding industrial design from copyright, in contrast to the nuanced standards currently employed, should be adopted.
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*Associate Professor, University of Denver Sturm College of Law.
Jennifer O’Hare*
Following the financial crisis, the synthetic collateralized debt obligation (“CDO”)—a complex derivative that received little mainstream attention prior to the housing meltdown—became big news. Journalists wrote numerous articles explaining how synthetic CDOs spread the contagion of toxic assets throughout the financial system, nearly bringing down the global economy. Government hearings exposed the ugly conflicts of interest inherent in the structuring of synthetic CDOs, as big investment banks created, sold, and invested in synthetic CDOs and often bet against their clients. Some of the world’s largest financial institutions, who faced bankruptcy when their investments lost value, bitterly complained that these synthetic CDOs had been “designed to fail” so that the investment banks could profit at their expense. Greedy investment banks were seen as the problem, not the synthetic CDOs themselves.
As a result, the Securities and Exchange Commission (“SEC”) sued several of the highest profile investment banks for fraud, and some investors in synthetic CDOs brought their own private actions for fraud against the investment banks. Calls for increased regulation of synthetic CDOs resulted in legislation prohibiting investment banks from engaging in certain conflicts of interest in the sale of synthetic CDOs.
This article shows that focusing primarily on the misconduct by investment banks or on the corresponding harm suffered by investors has caused regulators to miss the real issue: the sale of the synthetic CDO. Outrage over the extraordinary greed and sometimes outrageous misconduct by investment banks in the sale of synthetic CDOs is understandable. However, it was not the bad behavior of the investment banks that furthered the financial crisis; it was the use of the synthetic CDO itself. Because the regulators focused on the wrong problem, the dangers caused by synthetic CDOs still exist and must be addressed through additional regulation.
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*Professor of Law, Villanova University School of Law. J.D., 1990, The George Washington Law School; B.S.E., 1986, The Wharton School of the University of Pennsylvania.
Lawrence Ponoroff*
The oxymoronically titled Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA” or “2005 amendments”) has received considerable attention since its passage, and considerably less than all of it is positive. By even a neutral account, the bill is clumsily drafted, unnecessarily prolix, internally inconsistent, and annealed in a cauldron of special interest pressures. The legislative history is scant and what does exist is less than altogether clear or helpful. Together, these factors have frequently rendered the traditional judicial function in application of the law; namely, ascertaining (or at least beginning by ascertaining) congressional intent, an exercise in futility. To say the least, it is difficult to discern that which, in all likelihood, does not and has never existed in a uniform or coherent fashion.
Nonetheless, since enactment of BAPCPA, courts have labored gamely to make sense of its provisions, which, in any number of instances, are inscrutably obscure, and seem to lack any inherently clear reason. Thoughtful commentators have undertaken to offer useful insight and analysis to help guide that effort. Overall, however, these efforts have fallen, and will continue to fall, short in relation to any number of provisions of BAPCPA. This is because they entail a stoic and estimable, but ultimately vain, attempt to interpret statutory text that is, in some instances, impenetrably vague or simply incomplete, or, in other instances, confounds essential bankruptcy policy. A coherent and intelligible expression of legislative intent that might have shed some light in the process is nowhere to be found. Although the competition is unquestionably stiff, in perhaps no substantive area of the field have these observations been truer than in the efforts to deconstruct and rationally apply the changes BAPCPA wrought on an area of commercial law and practice that was already embroiled in confusion and controversy; namely, sellers’ right of reclamation.
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*Samuel F. Fegtly Chair in Commercial Law, The University of Arizona James E. Rogers College of Law.
Ashley Peterson*
More than forty-three million adult Americans are cigarette smokers. Cigarette smoking accounts for 400,000 deaths annually—more than AIDS, alcohol, cocaine, heroin, homicide, suicide, motor vehicle crashes, and fires combined—making cigarettes the leading preventable cause of death in the United States. Tomorrow, approximately 4,000 children under the age of eighteen will experiment with cigarettes for the first time and another 1,500 will become regular smokers. Of those that smoke regularly, about half will eventually die from tobacco use. Tobacco-related illnesses in the United States alone cost approximately $193 billion each year in lost productivity and health care expenditures. These sobering statistics have encouraged public health officials and lawmakers to take drastic action designed to encourage smokers to quit and to prevent young adults from ever lighting up. The Family Smoking Prevention and Tobacco Control Act (“FSPTCA” or “the Act”) and its implementing regulations promote the government’s anti-smoking agenda—at the expense of tobacco companies’ constitutionally protected free speech.
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*J.D. Candidate 2014, University of Richmond School of Law; M.T., 2006, B.A., 2005, University of Virginia.
