Notes

The Environmental Protection Agency’s (EPA) recent settlement of environmental
cleanup claims against Asarco, the highest such settlement in history, highlights the
incongruity between the tools at the Agency’s disposal to recover cleanup costs and
its actual behavior in pursuing such claims. The Comprehensive Environmental
Response, Compensation, and Liability Act of 1990 (CERCLA) provides statutory
authority that should allow EPA to force polluters to fully bear the burden of
cleaning up pollution. However, despite EPA’s relative success against solvent
responsible parties, EPA appears to be less aggressive in pursuing CERCLA
claims against insolvent polluters, even though the Bankruptcy Code provides additional
tools to give EPA an advantage relative to creditors. This Note explains the
statutory advantages that EPA has under CERCLA and the Bankruptcy Code, and
then explores how EPA fails to behave like a rational economic actor in pursuing
its CERCLA claims. I conclude by positing political factors and budget shortfalls
as two potential explanations of EPA’s behavior.

For the great majority of its history, the written description requirement was an
often-ignored relic of the patent statute. As technology advanced, the written
description requirement developed teeth as a means for invalidating patent claims
during litigation. Written description doctrine reached its peak in Ariad
Pharmaceuticals, Inc. v. Eli Lilly & Co., when the Federal Circuit created a significant
setback for groundbreaking innovation. Ariad demonstrated that the written
description doctrine lacked sufficient recognition of the fundamental policies and
purposes of the patent system and that this could have serious consequences for
innovation. This Note attempts to rectify the written description doctrine by
reorienting the doctrine in innovation policy. To do so, I first apply an alternative
version of the “prospect theory” of patents to conventional patent policy. Based on
this policy calculus, I then devise a reformed hypothetical innovation test that looks
outside of the “four corners” of the patent and considers the larger impact that the
written description has on the patent system. Without such doctrinal reform, the
written description doctrine of Ariad and its legacy risks undermining the incentives
that motivate inventors to undertake cutting-edge technology.

Humans have a complicated relationship with animals. Animals are at the same
time companions, food, subjects of research, and competitors for resources. Determining
how we should treat them in these different contexts—setting the standards
that capture our concern for their welfare—is difficult. Our contemporary scientific
understanding of animal behavior and physiology should ultimately inform our
standards for animal welfare. However, what science cannot determine is how
much concern we should have in the first place.

This Note focuses on those laws that aim to set humane standards for the treatment
and care of animals. When legislatures place the burden of setting those standards
on administrative agencies, courts should ensure that the meaning of “humane”
relied upon by an agency reflects more than science alone. Through examining a
recent opinion of the Supreme Court of New Jersey, this Note argues that such
standards must incorporate the social value that we place on mitigating animal pain
and suffering and provides examples of how such value should be measured. Furthermore,
judicial review of agency action can be conducted in a manner that both
respects the institutional role of the court and ensures that agencies have actually
made tough ethical decisions.

In July 2010, Nasser Al-Aulaqi, the father of suspected terrorist leader and U.S. citizen Anwar Al-Aulaqi, filed a lawsuit alleging that his son had been placed on a targeted killing “hit list” by the U.S. government. In dismissing the suit, Judge John D. Bates pointed out an extraordinary aspect of the current law of counterterrorism: Prior judicial consideration is required under the FISA Amendments Act of 2008 to target suspected terrorists like Anwar Al-Aulaqi abroad for surveillance, but it is unnecessary under U.S. law to seek judicial authorization to target such individuals for assassination. This apparent antilogy in the law creates a “surveil or kill” dilemma for the government. On the one hand, current law burdens the President’s ability to engage in foreign intelligence surveillance of suspected threats; on the other, it incentivizes aggressive counterterrorism interventions like the CIA’s drone strike program. Indeed, the U.S. government ultimately killed Al-Aulaqi, along with another U.S. citizen suspected of aiding al Qaeda in the Arabian Peninsula, without ever receiving judicial approval or making public any formal charges against them.

In this Note, I explore the constitutionality of the current legal regime established by the FISA Amendments Act of 2008. Specifically, I argue that the statute’s protections for U.S. citizens abroad, while a laudable extension of civil liberties, constitute an unconstitutional infringement of the President’s inherent authority to engage in warrantless foreign intelligence surveillance overseas. By imposing statutory limitations on the President’s power in this context that go beyond the baseline requirements of the Constitution, Congress has encroached upon inherent executive authority and therefore has violated a formal understanding of separation of powers.

This Note explores the regulatory role of tax policy in New York City and argues
that the City’s power to tax independently should be increased. Currently, New
York City must seek permission from the New York State Legislature to impose
new taxes or change the structure of existing taxes. This restriction is justified primarily
by the revenue-raising function of tax policy—an analysis that ignores the
important role tax policy plays in creating effective regulatory regimes. The first
Part of this Note sorts out the tangled relationship between fiscal policy tools such
as taxation, regulation, user fees, and spending, and suggests factors relevant to
determining which tool is most appropriate to use in a given situation. The Note
next discusses New York State’s scheme for distributing authority over taxation and
regulation, and provides an overview of local government law. The concluding Part
of this Note argues that New York City should be given more independent taxing
authority and directly addresses arguments against the granting of greater municipal
taxing power.

In the decade since passage of the No Child Left Behind Act, American education
policy has been federalized and politicized to an unprecedented degree.
Widespread substantive and ideological criticism of the Act has left the future of the
legislation—and of federal education policy itself—in doubt. The Obama
Administration has called for an overhaul of No Child Left Behind, which has
engendered criticism as an unfunded federal mandate on the states. But the
Administration’s implementation of Race to the Top, a controversial education
reform competition among the states, has exacerbated concern about federal
encroachment upon state policy making autonomy.
In this Note, I explore both the troubling federalism implications of recent federal
education initiatives and the equally compelling policy considerations demanding
continued federal leadership. I conclude that globalization and entrenched interstate
inequality, among other forces, necessitate a continued, albeit more prudent,
role for the federal government in reforming K–12 education.

This Note seeks to describe the legal system of the World Trade Organization
(WTO) by analyzing the extent to which countries that are members of the WTO
can contract out of WTO obligations. The current literature on the WTO provides
two primary models through which we can understand the WTO’s legal regime: a
constitutional model and a contractual model. The constitutional model sees the
WTO as a legal system that cannot be easily varied by individual WTO members
because WTO commitments are made to all members. Alternatively, the contractual
model describes WTO obligations as easily variable by subsets of members, since
WTO commitments are made only on a bilateral (country-to-country) basis. This
Note addresses that debate by looking at the ability of WTO members to contract
out of WTO obligations through bilateral and regional trade agreements, whereby
two or more members define the trade rules governing their relationship outside of
the WTO legal regime. WTO law governing regional trade agreements reveals that,
on the one hand, member states cannot contract out of all WTO obligations; certain
core obligations cannot be varied. However, there remains significant scope for
contracting out through regional trade agreements on most subjects. Therefore,
both the constitutional and contractual models are insufficient and do not accurately
describe the nature of WTO obligations.

Litigants’ briefs in the myriad cases arising from the Deepwater Horizon explosion
raise questions about the extent to which the Oil Pollution Act’s two savings clauses
preserve additional remedies, such as punitive damages. A large number of comprehensive
federal frameworks include savings clauses that anticipate supplementing
the statute with additional federal or state law. When these clauses are
ambiguous, the statute and precedent may not suffice to resolve the ambiguity. This
Note explores how economic policy, specifically optimal deterrence theory, may be
used to resolve whether the Oil Pollution Act’s ambiguous maritime savings clause
preserves or precludes maritime punitive damages. Optimal deterrence theory bolsters
the Supreme Court’s recent repeated affirmances of using maritime punitive
damages to supplement federal statutes, providing a firmer justification for the
argument that two lower courts wrongly held that the Act precludes the maritime
damages for oil spill injuries. Having resolved the ambiguity caused by the interaction
between maritime punitive damages and the Oil Pollution Act with optimal
deterrence theory, I conclude by proposing a framework that courts could use to
determine when and how to award maritime punitive damages for oil spill injuries
in particular cases, integrating the common law remedy with the statutory scheme.

In Riegel v. Medtronic, Inc., the Supreme Court held that because the FDA
imposes device-specific requirements on the most sophisticated medical devices, tort
claims that would impose different or additional requirements on such devices are
preempted. The Court created an exception to this preemption rule for claims that
parallel federal requirements. However, it failed to define precisely what constitutes
a parallel claim. Lower courts have split on whether claims based on violations of
non–device specific, industry-wide federal regulations survive preemption. Several
courts, including the Eighth Circuit, and at least one scholarly article, have concluded
such claims are expressly and/or impliedly preempted. However, the Fifth
and Seventh Circuits, and a handful of district courts, have taken a more liberal
approach, holding that these claims should survive preemption. This Note explores
the split and argues that the liberal approach is preferable for doctrinal and public policy
reasons.

In this Note I argue that the Federal Election Campaign Act’s $5000 limitation on
individual contributions to political committees should be removed. I advance two
main arguments. First, in light of recent campaign finance decisions, the limitation
appears to be unconstitutional as it imposes a limit on First Amendment rights
without being tailored to the government’s interest in preventing quid pro quo corruption.
Second, eliminating the contribution limitation will have previously unrecognized
normative benefits. Smaller PACs representing a variety of viewpoints will
be more able to compete with established corporate and union PACs, and the
volume of accountable political speech may increase as more money is channeled
through PACs to candidates’ hands.