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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.

Personally identifiable information (PII) is one of the most central concepts in
information privacy regulation. The scope of privacy laws typically turns on
whether PII is involved. The basic assumption behind the applicable laws is that if
PII is not involved, then there can be no privacy harm. At the same time, there is no
uniform definition of PII in information privacy law. Moreover, computer science
has shown that in many circumstances non-PII can be linked to individuals, and
that de-identified data can be re-identified. PII and non-PII are thus not immutable
categories, and there is a risk that information deemed non-PII at one time can be
transformed into PII at a later juncture. Due to the malleable nature of what constitutes
PII, some commentators have even suggested that PII be abandoned as the
mechanism by which to define the boundaries of privacy law.
In this Article, we argue that although the current approaches to PII are flawed, the
concept of PII should not be abandoned. We develop a new approach called “PII
2.0,” which accounts for PII’s malleability. Based upon a standard rather than a
rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information
that relates to either an “identified” or “identifiable” individual, and it establishes
different requirements for each category. To illustrate this theory, we use the
example of regulating behavioral marketing to adults and children. We show how
existing approaches to PII impede the effective regulation of behavioral marketing,
and how PII 2.0 would resolve these problems.

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.

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 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.

Federal law is enforced through a combination of public and private efforts. Commentary
on the choice between public and private enforcement has generated a
remarkably stable set of arguments about the strengths and weaknesses of each
type. But the conventional wisdom tells only part of the story, as it ignores variations
within the category of public enforcement. Many federal statutes authorize
civil enforcement by both a federal agency and the states. State enforcement is different
from federal enforcement in several important respects, representing a unique
model of public enforcement. The authority to enforce federal law is also a unique
form of state power. As I show, enforcement authority can serve as a potent means
of state influence by enabling states to adjust the intensity of enforcement and to
press their own interpretations of federal law. To date, enforcement has been
neglected in the federalism literature, which tends to equate state power with state
regulation. But enforcement authority may exist outside of regulatory authority,
allowing states to operate even in areas where state law is preempted or state regulators
have chosen not to act. And enforcement empowers a distinct breed of state
representatives—elected, generalist attorneys general. Just as state attorneys general
differ from federal agencies as agents of enforcement, they differ from state agencies
as agents of federal-state interaction. Moreover, attorneys general in most states
are independent from the state legislature and governor, and may represent different
constituencies. Enforcement authority therefore opens up new outlets for
state-centered policy, empowering actors whose interests and incentives distinguish
them from the state institutions that dominate other channels of federal-state
dialogue.

This Article explores the procedural concerns that arise when regulatory agencies mimic class actions by collecting big monetary judgments on behalf of victims. Over the past decade, agencies have collected over $10 billion to compensate people hurt by massive frauds, false advertising, and defective drugs, using proceeds from penalties levied against regulatory violators. Today, the Securities and Exchange Commission regularly seeks awards against large public companies and distributes the money to injured investors through “Fair Funds.” The Federal Trade Commission similarly seeks restitution against parties profiting from unfair trade practices and distributes awards to consumers. Even the U.S. Postal Service distributes the ill-gotten profits of scam artists to victims of mail fraud. However, unlike private lawsuits, agencies afford few safeguards for the victims they compensate. Agencies lack adequate procedures to hear victims’ claims, identify conflicts between different parties, or coordinate with other kinds of lawsuits. I argue that agencies should continue to play a role—albeit a limited one—in compensating victims for widespread harm. However, when agencies compensate victims, they should adopt rules similar to those that exist in private litigation to resolve differences between victims, improve judicial review, and coordinate with private lawsuits. I propose three solutions to give victims more voice in their own redress, while preserving an agency’s flexibility to enforce the law: (1) that agencies involve representative stakeholders in settlement discussions through negotiated rulemaking; (2) that courts subject agency decisions to hard look review; and (3) that courts and agencies coordinate overlapping settlements before a single federal judge.

Hundreds of millions of consumer and employment contracts include arbitration clauses, class arbitration waivers, and other terms that modify the rules of litigation. These provisions ride the wake of the Supreme Court’s expansive interpretation of the Federal Arbitration Act (FAA). For decades, scholars have criticized the Court’s arbitration jurisprudence for distorting Congress’s intent and tilting the scales of justice in favor of powerful corporations. This Article claims that the Court’s reading of the FAA suffers from a deeper, more fundamental flaw: It has transformed the statute into a private delegation of legislative power. The nondelegation doctrine forbids Congress from allowing private actors to make law unless they do so through a process that internalizes the wishes of affected parties or that is subject to meaningful state oversight. The FAA as construed by the Court violates this rule. First, companies have invoked the statute to create a parallel system of civil procedure for consumer and employment cases. This river of privately made law not only washes away Congress’s procedural rulemaking efforts but dilutes the potency of substantive rights. Second, although businesses ostensibly impose these rules through the mechanism of contracting—a process normally rooted in mutual consent—the Court’s arbitration case law deviates from traditional contract principles. It funnels consumers and employees into arbitration even when they truthfully claim that they did not agree to arbitrate. Third, despite the fact that the FAA as enacted mandates robust judicial review of privately made procedural rules, the Court has all but abolished this safeguard. This Article concludes that the Court should recognize that the FAA as interpreted raises grave private delegation issues and should thus limit the statute.

Deregulation has played both the hero and the villain in recent years. This Article evaluates the impact of deregulation on what may be the single most economically important regulatory regime: the income tax. In order to accomplish this goal, it applies the concepts of fiscal arbitrage and compliance spirals to three deregulatory tax reforms. Compliance spirals describe an enforcement dynamic in which the regulator encourages compliance through a system of rewards for cooperation and punishment for noncooperation. Fiscal arbitrage describes policy measures that exploit cognitive biases and other anomalies to deliver political benefits by using minimal political capital. The combination of these two concepts creates a tool for tax authorities to evaluate deregulatory tax provisions for likely costs and benefits. On balance, this Article finds that tax deregulation is likely to be harmful.

In the wake of the fall of Lehman Brothers and the surrounding financial instability, Congress passed the Emergency Economic Stabilization Act of 2008, giving the Treasury Department unprecedented power to intervene directly in the financial markets and the economy at large. Though the original intention of the bill was for Treasury to purchase “toxic” assets from financial institutions in order to bring immediate relief to the financial sector, the Treasury Department instead purchased equity from such institutions and became the largest shareholder of corporations like Citigroup, A.I.G., and Bank of America. As a shareholder, the government possessed great informal influence over corporate policy—influence that it did not hesitate to exercise. This influence, paired with the lack of judicial review in the bailout bill, created a new kind of political risk for investors uncertain of whether the government would use its shareholder position to advance its own political goals. This Note analyzes and evaluates this political risk created by government control and explains why neither administrative law nor corporate law constrained the government as shareholder in the financial crisis following Lehman’s failure. Given that the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act fails to address what the government should do in the event of a future financial crisis, this Note suggests a clearer outline for the government’s role in corporate management when it acts as a shareholder and argues for judicialreview to provide procedural protections to shareholders, thereby reducing political risk.