Notes

Despite extensive statutory law and regulations governing drinking water quality in the United States, water-contamination crises have been a regular feature of the American news cycle in recent years, perhaps most notably in Flint, Michigan, but also in a disturbing number of localities across the United States, including the upstate New York town of Hoosick Falls. This Note uses the water-contamination crisis in Hoosick Falls as a case study to analyze why these apparent regulatory failings continue to persist. This case study reveals how scientific uncertainty, resource constraints, and the socio-political dynamics of public regulation in the drinking-water context limit public ex ante regulatory mechanisms’ power to deter drinking-water contamination and to rebalance the equities disrupted when drinking-water pollution occurs. In Hoosick, private tort litigation has the potential to be a powerful vehicle for addressing such regulatory shortcomings, but its ability to do so will turn on whether courts are willing to be more flexible in their conceptions of legally cognizable harm. I argue that such flexible conceptions are justified and would serve a crucial dual purpose—bolstering pollution deterrence and providing a forum in which social costs not accounted for during the regulatory, industrial, and political processes that drive public-resource governance may, finally, be accounted for.

This Note discusses one method to permanently delegitimize Article 98 agreements: exercising International Criminal Court (ICC) jurisdiction over Americans to prosecute them for alleged crimes committed in Afghanistan (“the Situation in Afghanistan”). Since their inception, Article 98 agreements have threatened the ICC’s mission by limiting states parties’ ability to assist the ICC in exercising jurisdiction over Americans. This Note considers potential proceedings against an American in the Situation in Afghanistan as a case study to demonstrate how, in practice, Article 98 agreements undermine the ICC’s anti-impunity mission. First, this Note describes the principles and procedures followed by the ICC. Second, this Note discusses the United States’ legal justifications for Article 98 agreements and responds to these justifications with the most prevalent critiques of Article 98 agreements. Although the legal bases for the agreements under Article 98(2) of the Rome Statute are controversial, this Note assumes that the agreements are legally valid as originally intended by the parties. However, this Note also assumes that Article 98 agreements are never binding on the ICC and thus cannot prevent the ICC from exercising its territorial jurisdiction. Finally, this Note explores the allegations against Americans in the Situation in Afghanistan and considers how Article 98 agreements are likely to hamper the ICC’s proceedings. This Note concludes that the Situation in Afghanistan is an opportunity to demonstrate the need to permanently delegitimize Article 98 agreements, and that it can serve as a catalyst for change, even if Americans are not prosecuted.

There is a circuit split as to whether a decedent’s statements can be entered into evidence under the exclusion from hearsay provided for party-opponent statements under Federal Rule of Evidence 801(d)(2)(A). The courts disagree as to the best characterization of decedents’ statements—whether they should be understood as privity-based admissions that, while admissible under the common law, are no longer admissible under the Federal Rules of Evidence, or if the decedent should be considered a party to the litigation, in which case the statements are admissible under Rule 801(d)(2)(A). This Note first discusses the circuit split by explaining the concept of privity-based admissions, conducting a statutory interpretation of the Federal Rules to determine if the enactment of the rules abrogated the common law admissibility of privity-based admissions, and analyzing whether it is appropriate for a decedent to be considered a party to the litigation. The Note then discusses policy reasons for a rule favoring exclusion—namely, the concerns about perjury and ensuring equitable treatment of the estate that gave rise to states’ Dead Man’s acts, and the fact that there may be other rules under which to admit the evidence. The Note concludes that a rule favoring admissibility is preferable because the claims would not be in front of the court but for the decedent, and a rule favoring admissibility will lead to more consistent outcomes.

Over the past two years, China’s treatment of labor advocates was full of conflicting norms: Though the Party remained hostile toward labor organizing directed at domestic employers, certain conditions caused state officials to hesitate in violently cracking down on labor organizing directed at Western companies. Against this backdrop, groups like the Walmart Chinese Workers’ Association (WCWA) were leading successful campaigns to fight worker exploitation through organizing and legal remedies. In order to fund litigation against Walmart, the WCWA received litigation funding from nonprofit groups like the Hong Kong-based China Labour Bulletin (CLB). However, in January 2017, China passed a new Foreign Non-Governmental Organization Law (FNGO), which requires both foreign and Hong Kong nonprofits, like CLB, to register and submit themselves to greater government control in order to continue working in China. As a result, labor nonprofits like CLB are no longer able to fund litigation for groups like the WCWA. This Note proposes one way that Chinese labor organizations and NGOs could address the funding issues caused by the FNGO Law. Part I will discuss the state-controlled All-China Federation of Trade Unions (ACFTU), explain the role it plays in the larger Communist Party agenda, and discuss the conditions in China that have created an opportunity for labor groups like the WCWA to form. Part II will discuss how the WCWA had been using strategic litigation prior to the FNGO Law, as well as how the FNGO Law affected the WCWA’s use of strategic litigation. Finally, Part III will suggest third-party litigation funding as a potential solution to this problem.

In the wake of the September 11th attacks, Congress passed the Authorization for Use of Military Force (2001 AUMF), which authorized the President to use military force against the responsible parties, namely al-Qaida and the Taliban. However, with al-Qaida now diminished, the 2001 AUMF, due to its explicit 9/11 focus, cannot continue to credibly provide the legal foundation for U.S. counterterrorism strategy against threats posed by new terror organizations. As other legal options fail either to restrain unilateral executive branch action or to legitimize the use of force, enacting a new counterterrorism-focused authorization for use of military force (AUMF) is the best method for enabling, while still controlling, the necessary use of military force against terrorist groups. Part I of this Note will examine the ways in which the 2001 AUMF, the President’s Article II powers, and non-military options are alone each insufficient to effectively address new terror threats. Part II will demonstrate why a new statutory AUMF is the best path forward by analyzing the strengths of the 2001 AUMF in both enabling and constraining the use of force. Part III will outline a prospective counterterrorism-specific AUMF, designed to offer the executive branch sufficient flexibility to meet new terrorist threats early, but, through statutory restrictions and increased congressional oversight, also provide clear and improved limitations on the unilateral presidential use of force.

In response to revelations about the pervasiveness of workplace sexual misconduct, legislators have proposed a variety of regulatory solutions. Among those responses are proposals to require companies to disclose information related to the settlement of sexual misconduct allegations made by employees. This proposal merits special attention because it conceivably compels speech, making it vulnerable to a First Amendment challenge. While such a claim appears surprising, recent developments in First Amendment law have taken the idea from laughable to plausible. This Note situates the proposals in light of recent First Amendment challenges to compelled disclosure regimes, using the proposals as a lens to examine how courts have addressed such challenges. The analysis demonstrates the need for greater clarity in the treatment of information-forcing regulations. A suggested approach is for courts to explicitly recognize regulatory exceptions to compelled speech claims when the compelled speech is only incidental to the broader purpose of the regulation.

The doctrine of exhaustion of administrative remedies says that a person challenging an agency decision must first pursue the agency’s available remedies before seeking judicial review. It was created by courts in order to promote an efficient justice system and autonomous administrative state. Congress has since written exhaustion requirements into many statutes to ensure and guide its application. Consequently, a court interpreting one of these statutory versions must first decide whether it is a jurisdictional rule or not. The fallout from this decision is the topic of this Note. By definition, jurisdictional rules are rigid: Courts may not create exceptions to them, parties may not waive or forfeit them, and they will loom over the proceedings from start to finish. Faced with a jurisdictional exhaustion requirement, courts have had to choose between diluting the concept of jurisdiction and allowing injustice. In this Note, I look for a way out of this tradeoff. I argue that statutory exhaustion requirements are neither jurisdictional nor non-jurisdictional rules, but rather mandatory rules with a particular set of effects on courts and parties. Courts, for example, may not apply equitable exceptions to statutory exhaustion requirements, but agencies may waive or forfeit them. I define this “mandatory” exhaustion by looking to case law, jurisdiction theory, constitutional structure, and the purposes of exhaustion. I also develop an exception for constitutional claims that arise outside of an agency’s proceedings. This exception helps avoid the threat to separation of powers that requiring exhaustion for such claims would create. As a result, if courts used mandatory exhaustion then they would be empowered to avoid injustice without creating a conceptual mess. Commentators have suggested that exhaustion requirements might be mandatory in nature, and the Second Circuit has treated them as such. But neither has provided much guidance on what that means. I try to fill in that gap by developing a descriptive and normative case for categorizing them as mandatory rules.

What happens when a presidential administration fails or refuses to properly administer our nation’s environmental laws? Thanks to the design of our federal environmental statutes, American citizens are armed with a valuable legal tool to hold the Environmental Protection Agency (EPA) accountable: the citizen suit. Environmental citizen suits allow private citizens to sue the EPA to require it to carry out its statutory duties, and can be a valuable mechanism in the face of a presidential administration unsympathetic to environmental protection. Because citizen suit provisions allow citizens to sue the EPA Administrator for failing to perform an action or duty that is nondiscretionary under the statute, the permissibility of lawsuits frequently turns on judicial interpretation of the term “nondiscretionary duty.” There is currently a split across the federal courts as to how to construe this term. In fact, the case law on this topic has become somewhat muddled, with disparities arising among district courts and few courts of appeal ruling conclusively on the issue. Some courts have narrowed the term, thereby limiting opportunities for citizen suits. A primary disagreement is whether the presence of the word “shall” in a statutory provision is sufficient to impose a nondiscretionary duty or whether more is required. Some courts have determined that a duty is discretionary unless the provision also includes a “date-certain” deadline, requiring the Administrator to perform the prescribed action by a specific date that appears within that part of the statute. Other courts have resisted adopting a bright-line rule requiring a date-certain deadline before imposing a nondiscretionary duty on the Administrator. The Supreme Court has not spoken on this date-certain deadline rule. This Note will explore how courts have interpreted the term nondiscretionary duty in environmental citizen suit provisions. This Note argues that the federal judiciary as a whole should abandon the date-certain deadline rule and side with courts that construe nondiscretionary duty more broadly. This reading can be supported legally, and will ensure that citizens are able to sue to compel EPA action even when a presidential administration fails to carry out important environmental laws and regulations.

Congress enacted the Computer Fraud and Abuse Act (CFAA) to impose criminal penalties for a variety of computer misuse offenses. One provision, 18 U.S.C. §1030(a)(5)(A), criminalizes hacking and the use of malicious software (“malware”) by making it a crime to transmit code (i.e., malware) with “intent to cause damage.” Today, § 1030(a)(5)(A) fails to adequately police the black market for malware. The United States Department of Justice has recently used the statute to combat these markets by prosecuting hackers who sold malware. This Note argues that § 1030(a)(5)(A) is ill suited to combat the sale of malware for two reasons. First, certain types of malware do not fit under the CFAA’s definition of “damage.” Second, selling malware does not necessarily satisfy the statute’s “intent” element. Ultimately, the black market for malware needs to be policed, and Congress must amend the CFAA’s outdated elements to deal with the dangers of malware attacks on our increasingly connected society.

A number of animal “sanctuaries” and “rescue centers” operate across the United States and, in spite of their sympathetic names that attract visitors and donors, in fact neglect their animals and commit egregious violations of the Animal Welfare Act (AWA). Since United States Department of Agriculture (USDA) enforcement of the AWA is extremely weak, third parties have begun certifying and accrediting different facilities of captive animal care. This Note addresses the work of such third-party accreditors and argues that, while they can indeed play a valuable role in regulating wildlife sanctuaries and educating the public, they can only achieve these goals effectively through a more detailed and comprehensive accreditation framework. Part I gives relevant background on the AWA and identifies how its ambiguities and enforcement deficit create informational and regulatory gaps in which third-party accreditors can take meaningful action. Part II analyzes the accreditors themselves, revealing the limited extent of their coverage, the ideological rifts that divide them, and important contrasts in their processes and standards for accreditation. Part III turns to potential solutions for addressing this fractured landscape. It proposes a tiered and detailed accreditation system that more effectively communicates relevant information to prospective visitors and donors. It also evaluates and critiques several alternative solutions.