Notes

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.

With its creation of a statutory mandate to ban all “unfair methods of competition,”
Congress granted the Federal Trade Commission broad power to reach antitrust
violations, as well as conduct that violates the “spirit” of the antitrust laws and
conduct that is against public policy more broadly. The breadth of the
Commission’s use of this statutory authority has ebbed and flowed over time, and
recent indications signal that the FTC may be entering a period of expansion in
attacking new forms of anticompetitive conduct. In light of this development, a
renewed debate over the appropriate use of section 5 of the FTC Act has arisen—
how can the Commission best use its broad section 5 authority to protect against
consumer harm while avoiding the risk of deterring procompetitive conduct
through arbitrary and standardless enforcement? This Note argues that the FTC
should focus on tackling “frontier cases”—cases that meet all the legal requirements
of the Sherman Act but involve new forms of anticompetitive conduct that fall
outside traditional categories of antitrust law such that there may be little precedent
to guide the Commission’s analysis. This Note then expands the frontier rationale
beyond the selection of cases involving new forms of anticompetitive conduct, as
previously advocated, to include efforts to integrate developing models of economic
thought in order to influence the theoretical underpinnings of antitrust law and to
insert the Commission’s voice in developing the contours of evolving Sherman Act
doctrine.

Lower courts are still sorting out the consequences of the Supreme Court’s decisions
in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, which together
heralded a heightened factual pleading standard. Though many have focused on
the impact of the new standard on plaintiffs facing significant information asymmetries,
this Note focuses on the potential substantive impact on federal civil rights
claims resulting from application of the Iqbal standard. Specifically, this Note
argues that, when strict interpretations of the evidentiary standards used in claims
based on the McDonnell Douglas framework clash with a stronger factual pleading
standard, the effects can be distortive, closing out theories of discrimination for
which there was relief before Iqbal.

Reviewing potential solutions, this Note concludes that the most significant source
of the distortion is in the evidentiary standards themselves and argues that a more
practical and less rule-oriented approach can keep the civil rights laws broad in
reach while requiring a reasonable level of factual pleading.

The Supreme Court ruled in Boumediene v. Bush that detainees at Guantanamo
Bay have the right to challenge their detention in habeas corpus proceedings and
that the courts hearing these claims must have some ability to provide “conditional
release.” However, in Kiyemba v. Obama, the United States Court of Appeals for
the District of Columbia ruled that if a detainee cannot be released to his country of
origin or another country abroad, a court sitting in habeas cannot grant the
detainee release into the United States. The court based its determination on the
assumption that the plaintiffs’ request for release implicated “admission,” generally
considered within the purview of the political branches and inappropriate for judicial
review. This Note argues that “parole,” a more flexible mechanism for release
into the United States, is not limited by the admission precedents requiring extreme
deference. This Note then surveys cases in which the judiciary has granted parole as
a remedy, and argues that courts have done so primarily in cases of executive misconduct.
Thus, courts confronting requests for domestic release from executive
detention without a legal basis should consider parole as a remedy distinct from
admission—one that serves a valuable purpose in maintaining a meaningful check
on the Executive.

The recent collapse of the world financial system exposed excessive risk taking at
many of the largest financial services firms. However, when shareholders of
Citigroup sued the board of directors alleging that the board failed to adequately
monitor the firm’s risk exposure, the Delaware Chancery Court dismissed the suit
under the famous Caremark case. Caremark held that a board’s failure to monitor
will not result in liability unless there was a failure to implement a monitoring
system or a “sustained or systematic” failure to use that monitoring system. This
deferential standard is premised on an assumption that managers are risk averse
and the law should encourage risk taking. However, certain characteristics of financial
firms make such firms more prone to risk taking and more susceptible to catastrophic
losses resulting from that risk taking than other firms. In this Note, I argue
that Caremark should be reworked in cases involving managers of financial firms
in order to deter the excessive risk taking that caused such massive losses to shareholders
of these firms recently. This standard should take the form of a gross negligence
standard that allows the court to take a close look at whether management
took the necessary steps to prevent their firm from being exposed to excessive risk.

Over the last fifty years, nonunion employers have increasingly adopted formal
grievance procedures, which allow employees to challenge a company decision or
policy and appeal manager adjudications of the challenge. Employers have
adopted these procedures to minimize liability and ensure employee productivity.
But while these procedures signal that employees are treated fairly, the psychological
theory of escalation of commitment suggests that complaint-and-appeals procedures
exacerbate workplace conflict. This Note presents this unintended
consequence of formal grievance procedures and discusses its implications for
workplace dispute resolution. Part I explains the adoption of formal grievance procedures
as employer efforts to signal that employees are treated fairly. Part II
applies the psychological theory of escalation to grievance procedures, and Part III
argues that escalation undermines the purpose of formal grievance procedures and
proposes mediation as an escalation-reducing alternative.

With the rapid growth of the Internet, Congress and the United States Sentencing
Commission have expressed concern over the increasing opportunities for sex
predators to target children online. This concern has resulted in the creation of a
complex sentencing regime for such sex offenders. The provision of the Guidelines
that determines the sentence for persons convicted of attempted statutory rape
includes an enhancement for exerting undue influence over the victim. Federal
courts had struggled with whether this enhancement could be applied to those
caught in undercover law enforcement stings in which no real “victim” existed. The
Sentencing Commission intervened in 2009 to specify that the Undue Influence
Enhancement was inapplicable to such undercover operations.
This Note explores the circuit split that prompted the Commission’s clarification
and examines the appropriateness of applying the Undue Influence Enhancement
in undercover Internet stings. In particular, it analyzes the enhancement in light of
entrapment and sentencing entrapment principles and ultimately concludes that
these concerns do not compel a blanket prohibition on utilizing the enhancement in
undercover operations.