Lolly Gasaway Faculty-Student Writing Award
2022 Gasaway Award Winner
The Law of Energy Exports by Alexandra Klass and Shantal Pai was published in volume 109 of the California Law Review in 2021.
From the abstract:
The fossil fuel industry has filed an increasing number of dormant Commerce Clause lawsuits against coastal states and cities that have rejected proposals for new coal and oil export facilities in their jurisdictions. These lawsuits are creating a wholly new “law of energy exports” that to date has been underexplored in the academic literature, even as it garners frequent newspaper headlines. This Article is the first comprehensive analysis of this evolving body of law. It evaluates the lawsuits and legal arguments surrounding energy exports and situates them in the context of rapid changes in domestic and international energy resource development and use. It then evaluates the implications of this growing body of law more broadly. Resolution of these lawsuits will affect the ability of states and cities to enact policies that affect a broad range of interstate markets for energy-related goods, such as coal, oil, natural gas, and renewable energy. The law of energy exports will also impact legal doctrines that apply to international trade and the power of the executive branch to shape judicial resolution of dormant Foreign Commerce Clause disputes.
This Article concludes that with regard to the energy export cases themselves, existing dormant Commerce Clause doctrine supports the authority of state and local governments to reject new fossil fuel export facilities within their jurisdictions if such actions are implemented to protect public health and the environment, and not for economic protectionist reasons. Moreover, the energy export cases could potentially establish a new jurisprudence with a more limited role for the dormant Commerce Clause to act as a barrier to nondiscriminatory state and local policies that affect interstate energy markets. Such a development would place more focus on Congress rather than on the courts or the executive branch, to resolve energy-related disputes between states.
The Law of Energy Exports by Alexandra Klass and Shantal Pai
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Alexandra Klass
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Shantal Pai
2022 Gasaway Award Honorable Mention
Deepfake Privacy: Attitudes and Regulation by Matthew Kugler and Carly Pace was published in volume 116 of the Northwestern University Law Review in 2021.
From the abstract:
Using only a series of images of a person’s face and publicly available software, it is now possible to insert the person’s likeness into a video and show them saying or doing almost anything. This “deepfake” technology has permitted an explosion of political satire and, especially, fake pornography. Several states have already passed laws regulating deepfakes, and more are poised to do so. This Article presents three novel empirical studies that assess public attitudes toward this new technology. In our main study, a representative sample of the U.S. adult population perceived nonconsensually created pornographic deepfake videos as extremely harmful and overwhelmingly wanted to impose criminal sanctions on those creating them. Labeling pornographic deepfakes as fictional did not mitigate the videos’ perceived wrongfulness. In contrast, participants considered nonpornographic deepfakes substantially less wrongful when they were labeled as fictional or did not depict inherently defamatory conduct (such as illegal drug use). A follow-up study showed that people sought to impose both civil and criminal liability on deepfake creation. A second follow-up showed that people judge the creation and dissemination of deepfake pornography to be as harmful as the dissemination of traditional nonconsensual pornography—otherwise known as revenge pornography—and to be slightly more morally blameworthy.
Based on the types of harms perceived in these studies, we argue that prohibitions on deepfake pornographic videos should receive the same treatment under the First Amendment as prohibitions on traditional nonconsensual pornography rather than being dealt with under the less-protective law of defamation. In contrast, nonpornographic deepfakes can likely only be dealt with via defamation law. Still, there may be reason to allow for enhanced penalties or other regulations based on the greater harm people perceive from a defamatory deepfake than a defamatory written story.