The explosion of environmental statutes over the past forty years, giving rise to the field of environmental law, has created a critical and evolving question in our legal system as to how this comparatively new field of law intersects with the common law of torts.  Defining the proper role of tort law in remedying environmental injuries is an important matter of public policy; the answer will determine what the tort system can and cannot achieve, inform what it should and should not achieve, and clarify which common law enforcement areas are actually voids.  This information assists the judiciary on its role in addressing alleged injuries to the environment, and guides the legislative and executive branches as to whether and when action is required to fashion a legal remedy. 

     Tort law has historically provided the principal mechanism for remedying harms to the environment.  The complexities of many modern environmental harms and the actual or perceived inadequacies of the common law, however, have led policy makers such as Congress to enact wide-ranging laws that provide legal remedies.  This Article analyzes how these laws operate in relation to the common law of torts, and provides guidelines for judges to determine whether tort law provides a remedy for an alleged environmental harm.  The Article thus seeks to answer a basic, yet largely unexplored, question in the legal system, namely the intersection of tort and environmental law.

      The Foreign Corrupt Practices Act (FCPA) criminalizes bribery of foreign government officials.  The frequency of enforcement actions and severity of fines levied against corporations under the FCPA have significantly increased in the last few years.  There is an ongoing problem, however, with the sanctions for FCPA violations:  enforcement authorities (the Department of Justice and the Securities and Exchange Commission) and contracting officials have limited themselves to fines, civil penalties, and occasional imprisonment of individual violators.  Debarment from future federal government contracts, even temporarily, is an unused sanction for FCPA violations, even though Congress provided for this punishment by statute.  Debarment offers a far more potent deterrent than fines and penalties, as multinational contractors that conduct business with the United States are much less likely to view the sanction as merely a cost of doing business.  If ridding foreign markets of corruption truly is a top priority of the United States, it seems both unfair and imprudent for federal agencies to continue awarding lucrative, multi-billion dollar contracts to firms recently prosecuted for fraudulently obtaining them overseas.

     Enforcement officials shy away from debarring entities that violate the FCPA due to the short-term inconvenience of an agency’s inability to transact business with its favorite contractor, its inability to demand favorable bids from contractors when the field of potential bidders has thinned, the resulting job loss, and the risk of overdeterring companies that might otherwise pursue lucrative opportunities in emerging markets.  This is the “too big to debar” problem—the federal government is too dependent on a particular set of large, private sector corporations for equipment and services.  In addition to the virtual immunity from debarment enjoyed by these firms when they violate the FCPA, the fines imposed for engaging in foreign corrupt practices comprise a tiny fraction of the potential revenue generated by lucrative contracts with the United States and foreign states.  When discounted by the low probability of detection, these sanctions are far too low to deter unlawful activity.

     Debarment would deter potential wrongdoers and incapacitate actual offenders.  The deterrent would induce more firms to comply with the law, which would allow the “too big to debar” problem to diminish over time.  To help illuminate these concerns and lend support to the thesis, this Article will examine the third largest FCPA-related enforcement action to date:  the BAE Systems case.  On March 1, 2010, BAE Systems paid approximately $400 million in fines for its corrupt practices abroad.  In the year that followed, however, the federal government awarded BAE contracts in excess of $6 billion.  The United States’ refusal to debar BAE because of the potential “collateral consequences” provides a case study on the benefits and drawbacks of deterring foreign corruption through suspension and debarment.  This Article concludes that the United States must begin to diversify its portfolio of federal contractors so that prosecutors may leverage the legitimate threat of suspension and debarment to more effectively deter foreign corruption.

     This Note focuses on Reducing Emissions from Deforestation and Forest Degradation (REDD), an international framework that aims to curb carbon emissions by reducing deforestation.  While international negotiators discuss the environmental benefits of REDD, which will likely be implemented in the Kyoto Protocol’s post-2012 commitment period, forest-dwelling indigenous communities worry that REDD will destroy their livelihoods.  Countries with high deforestation rates, such as Brazil and Indonesia, have already implemented a number of voluntary REDD pilot projects and are currently creating legal frameworks to address the complexities of REDD.  This Note compares the legal frameworks of Brazil and Indonesia in terms of how well they protect indigenous rights.  Ultimately, the lives of indigenous peoples will be most affected by national laws that govern the implementation of REDD.  Accordingly, this Note provides suggestions on how to build a legal framework that capitalizes on the environmental and economic benefits of REDD while protecting the rights and livelihood of indigenous peoples.

     Plaintiffs in securities fraud class actions must prove that defendants’ misconduct caused the investors’ losses.  The U.S. Supreme Court’s 2011 decision in Erica P. John Fund, Inc. v. Halliburton Co. reaffirmed that loss causation is a quintessential merits issue that must be decided at trial.  In three recent trials, juries have held defendants liable with findings of fact that are inconsistent with the Supreme Court’s doctrinal framework for securities fraud causation.  This Note examines these verdicts and encourages the courts to depart from the common law of fraud and tighten the meaning of causation.  To do this, courts must adhere to the economic theory that sustains modern class actions.  Because losing parties will invariably move for post-trial relief, courts should develop rules that incorporate conceptual clarity and well-defined mechanisms of proof.

     Despite the intensifying militarization of the United States’ borders, roughly 4,000 undocumented immigrants attempt to cross into the U.S. each day.  Increased border security has not stopped the flow; rather, it has diverted migrants’ journeys into the most perilous stretches of borderlands and coastlines.  In response, migrants increasingly rely on human smugglers to guide them across the border, even in the face of the well-known risks of injury and death.  Under section 2L1.1(b)(7) of the U.S. Sentencing Guidelines, defendants convicted of smuggling illegal immigrants are subject to a sentence enhancement for any bodily injury or death that occurs.  The Guidelines are silent as to the issue of causation, however.  As a result, circuits are split over what causal connection section 2L1.1(b)(7) requires between the defendant’s conduct and the resulting harm.  This Note discusses the continuing importance of the Guidelines in the post-Booker era, and examines the circuits’ differing interpretations of section 2L1.1(b)(7).  This Note concludes that a section 2L1.1(b)(7) enhancement is predicated on only a loose causal connection to the defendant’s overall criminal conduct.  It advocates for an amendment to the Guidelines that would require a section 2L1.1(b)(7) enhancement to be contingent on a finding that the defendant recklessly or intentionally created a serious risk of bodily harm.  Further, this Note proposes that, even before the Sentencing Commission enacts a formal amendment, judges should exercise their post-Booker sentencing discretion to require a causal connection that will best achieve the goals of retribution and deterrence.

     Federal Rule of Evidence 703 allows experts to form opinions using information that is not admitted at trial, and even on evidence that is inadmissible.  In 2000, Rule 703 was amended to emphasize that it did not serve as an exception to the other rules of evidence.  When experts rely on inadmissible evidence, the evidence can only be disclosed for the limited purpose of assisting the jury to evaluate the expert’s opinion, and only if the probative value of the evidence substantially outweighs its prejudicial effect.  This Note reviews the application of Rule 703 before and after the 2000 amendment.  It finds that disclosure of inadmissible evidence should still be expected in a substantial number of cases, but nevertheless concludes that the compromise approach struck by amended Rule 703 is largely correct.  Courts should, however, weigh the strong possibility that limiting instructions under Rule 703 will often be ineffective (and logically impossible), and reduce disclosure accordingly.

This Note also considers Rule 703’s intersection with recent changes in the U.S. Supreme Court’s Confrontation Clause jurisprudence.  It argues that, although Rule 703 allows expert reliance on inadmissible evidence, the compromises struck by Rule 703 should not be allowed to mask Confrontation Clause violations.  Expert disclosure of testimonial hearsay basis evidence should be understood as a Confrontation Clause violation.  Evaluating the expert’s testimony to see if it includes an independent opinion, as suggested in some recent opinions, does not solve the problem.  An expert can both provide an independent opinion and convey testimonial hearsay in violation of the Confrontation Clause.