Category: Notes

Space Torts: Applying Nuisance and Negligence to Orbital Debris – Note by Luke Punnakanta

From Volume 86, Number 1 (November 2012)
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In 2011 and 2012 alone, a defunct NASA satellite, a defunct German satellite, and a defunct Russian space probe all crashed to Earth. While falling space junk gained more media attention, space debris that remains in orbit is even more dangerous. Manmade space junk is polluting the orbits around the Earth, causing damage to satellites and other spacecraft, and threatening future space activities. And the space debris problem is getting worse. For example, in 2007, millions of new pieces of space debris were likely added to the already significant body of debris when China intentionally destroyed a defunct weather satellite.

Allocating liability for damage caused by space debris is also problematic. International treaties regarding space liability are ambiguous and underdeveloped. Only one claim has ever been brought under an international space liability treaty, and it was eventually settled, eliminating the opportunity to test the treaty’s effectiveness. And even if a clear set of laws existed, the liable party that created the debris is often unidentifiable due to the limited ability to track space debris.

New technology may help solve this identity issue. A new tracking system for space debris, Space Fence, may be able to track smaller debris and help determine who created it. With the possibility of fewer identity issues hindering space debris damage claims from arising, space-liability law should be further developed.

 

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Running Afoul of the Non-Refoulment Principle: The [Mis]interpretation and [Mis]application of the Particularly Serious Crime Exception – Postscript (Note) by David Delgado

From Volume 86, Number 1 (November 2012)
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Envision living with the constant fear of being tortured or killed for no other reason than having a different political opinion than those in power. While that may be difficult to imagine for those who live in the United States, unfortunately, many around the world must live with that fear or flee from their homes. That fear has mobilized an estimated 11,000 to 15,000 refugees to flee from Syria. The mass exodus followed Syrian President Bashar al-Assad’s siege of the western city of Homs, which is “the heart of an 11-month uprising against his rule.” In those early months of violence, only around 7000 Syrian refugees had registered with the United Nations High Commissioner for Refugees (“UNHCR”). However, given the persistent violence and the recent allegations that President al-Assad has used chemical weapons on or near civilian populations, it is unsurprising that current UNHCR projections estimate that there are over two million Syrian refugees. And according to the UNHCR, if current trends persist, there may be well over three million Syrian refugees by the end of 2013.

 

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LEEDing in the Wrong Direction: Addressing Concerns with Today’s Green Building Policy – Note by Kaleb Keller

From Volume 85, Number 5 (July 2012)
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There is a movement afoot in this country to “go green,” and part of this movement is in green building. Green building is summarized as “the practice of increasing the efficiency of buildings and their use of energy, water and materials, and reducing building impacts on human health and the environment through better siting, design, construction, operation, maintenance and removal.” So, why are we seeing a move to “go green” in building? According to a 2009 study commissioned by the U.S. Department of Energy (“DOE”), in 2006, buildings in the United States accounted for 39 percent of primary energy consumption, 72 percent of all electricity consumed, and, in 2005, over 10 percent of total water used domestically. Buildings in the United States accounted for more energy use than the entire U.S. transportation sector in 2006 and produce more greenhouse gases than “any other country in the world except China.” Any large-scale attempt to reduce U.S. energy consumption must therefore involve greening building practices.

 

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The State of Treasury Regulatory Authority After Mayo Foundation: Arguing for an Intentionalist Approach at Chevron Step One – Note by Joana Que

From Volume 85, Number 5 (July 2012)
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On January 11th, 2011, the Supreme Court unanimously held in Mayo Foundation for Medical Education and Research v. United States that all agency regulations, including Treasury regulations, should be afforded the standard of deference set out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, a case that prescribed how courts should review agency regulations. Before Mayo, Chevron did not have very much influence in the tax world–Chevron had been cited in only a few Supreme Court tax cases, and the Tax Court continued to cite pre-Chevron authority when evaluating whether to defer to the Treasury’s construction of the Internal Revenue Code (“Tax Code”). Thus, the Mayo decision superseded a line of tax cases, including National Muffler Dealers Ass’n v. United States, which had established a less deferential, tax-specific standard of review.

 

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Espionage 2.0: Protecting Human Intelligence Sources in the Digital Age – Note by Kimberley A. Church

From Volume 85, Number 4 (May 2012)
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On November 28, 2010, the international whistleblower website WikiLeaks and five major newspapers began simultaneously publishing confidential diplomatic cables from 270 U.S. embassies around the world. The cables were originally obtained by WikiLeaks, which also posted the cables on its own website. Over 100,000 of the cables in WikiLeaks’ possession are classified, with 15,000 classified as “secret,” meaning their release could reasonably be expected to cause serious damage to the national security.

The cables can allegedly be traced back to a single source: Bradley Manning, a former U.S. Army intelligence analyst. Since the leak, the Pentagon has announced new measures to protect against similar breaches. Even with secure technology, however, so long as there are government secrets there will always be the risk of leaks–whether inadvertently, purposefully with good intentions, or purposefully with intent to harm the United States. Moreover, in the digital age, governments face a new threat: opportunities to publish leaked classified information have multiplied, as evidenced by so-called “internet drop-boxes,” which can post thousands of secret documents in only a matter of seconds for all the world to see. Never before has there been such a powerful tool for undermining government secrecy.

 

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Who Owns Your Skin: Intellectual Property Law and Norms Among Tattoo Artists – Note by Matthew Beasley

From Volume 85, Number 4 (May 2012)
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Tattoos are part of mainstream culture in the United States. This is especially true among younger generations. While 23 percent of Americans have at least one tattoo, 32 percent of “Generation Xers” have at least one, and 38 percent of millennials have at least one. 19 percent of millennials have at least two. Movie stars and sports stars now commonly have several tattoos. Chart-topping pop star Lady Gaga announced the title of her most recent album by tattooing it on her body and flashing the tattoo at Los Angeles International Airport. Eighteen-year-old Disney starlet Demi Lovato thanked her fans for their support by tattooing “Stay Strong” on her wrist. In 2005, the cable television channel TLC began broadcasting the reality TV show Miami Ink, which followed the events of a tattoo shop in Miami Beach, Florida. Miami Ink’s success led to spinoffs in Los Angeles, London, and Rio de Janeiro. Along with, and indeed aided by, the success of the reality TV shows, the modern U.S. tattoo industry is a multi-billion dollar industry.

 

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Isn’t This Where We Came in?: An Examination of the Turbulent History and Divergent Economics Underlying Section 36(b) of the Investment Company Act of 1940 and a Proposal to Finally Put the Law to Use – Note by John Baumann

From Volume 85, Number 3 (March 2012)
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It is easier to invest in the stock market now than it has ever been. With the proliferation of the Internet, online investing websites have nearly obliterated the need for stockbrokers and have given individuals the ability to invest in whatever they choose — for around seven dollars per trade, a person can own a share of almost any publicly traded company. While this is certainly a step forward for the world of investing, it does not come without risk. Relying solely on personal research and investing knowledge can lead to an undiversified portfolio and a lot of uncompensated risk. Investors learned this the hard way when the market began to fall in 2007. As a result, many young investors have become shell-shocked and wary of investing in the stock market. According to the Investment Company Institute, in 2005, 48 percent of people under age thirty-five said they were “willing to take substantial or above-average risks in their portfolios”–that number at the start of 2011 had fallen to 34 percent.
 
It is not necessary, however, to rely solely on one’s own investing prowess when trying to navigate the stock market. Trained professionals offer their services in many forms–almost always for a price. Mutual funds represent one of the most significant ways in which trained professionals are involved with the investment decisions of others. “A mutual fund is a pool of assets, consisting primarily of [a] portfolio [of] securities, and belonging to the individual investors holding shares in the fund.” In 2009, 43 percent of all households in the United States owned mutual funds, with an estimated total of 51,200,000 households invested in mutual funds. The total amount of assets in mutual funds in 2009 was over eleven trillion dollars. Clearly, many people rely on the abilities of mutual fund managers to guide their investment decisions. By purchasing shares in mutual funds, people can own shares of portfolios that are as diversified as they desire without having to pick investments on their own.

 

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Arizona’s S.B. 1070 and Federal Preemption of State and Local Immigration Laws: A Case for a More Cooperative and Streamlined Approach to Judicial Review of Subnational Immigration Laws – Note by Jennifer R. Phillips

From Volume 85, Number 3 (March 2012)
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 Early in the morning of July 15, 2010, protestors began to assemble outside the Sandra Day O’Connor U.S. Courthouse on the sun-baked streets of downtown Phoenix. Nearly 400 individuals gathered, armed with megaphones, sunscreen, and a firm sense of resolve, to demonstrate their support or, more likely, opposition to Arizona’s immigration law known as S.B. 1070.
 
Senate Bill 1070, the Support Our Law Enforcement and Safe Neighborhoods Act, was signed into law by Arizona Governor Janice Brewer on April 23, 2010. The newly-enacted law, which added provisions to the Arizona law concerning the employment, law enforcement, and documentation of immigrants, has been labeled by pundits as “the nation’s toughest bill on illegal immigration.” The demonstration on July 15, one of dozens to occur throughout the nation that summer, was fueled by the first day of preliminary injunction hearings held by U.S. District Court Judge Susan Bolton, who was presiding over the seven lawsuits challenging S.B. 1070.
 

 

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