Law Commons^™

Free Labor Today, James G. Pope

Rutgers Law School (Newark) Faculty Papers

During the first half of the 20th Century, the period when all of the United States’ major workers’ rights statutes were enacted, the American labor movement claimed the rights to organize and strike under the Thirteenth Amendment to the U.S Constitution. Beginning in 1909, it was the official policy of the American Federation of Labor that a worker confronted with an unconstitutional injunction had an “imperative duty” to “refuse obedience and to take whatever consequences may ensue.” At a time when union institutions were as weak as they are today, every attack on workers’ rights was met with an impassioned …

The Case Of Weak Will And Wayward Desire., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime.

I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s …

Consent To Harm, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).

Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.

One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and …

Katrina’S Window: Localism, Re-Segregation And Equitable Regionalism, David D. Troutt

Rutgers Law School (Newark) Faculty Papers

The worst national disaster in United States history also showcased the dire consequences of localism as the cultural and legal successor to de jure segregation. Long before Hurricanes Katrina and Rita devastated the Gulf Coast, New Orleans’ status as an exceptional city had been lost to Americanizing trends. Its resistance to the conventional racial binary was overcome after Reconstruction; its unique densities and accommodation of the physical landscape were transformed into sprawling divisions by technology and suburbanization. From the Brown decision forward, New Orleans and the metropolitan area around it developed much like the rest of the nation. Localist tendencies …

Rights, Wrongs, And Comparative Justifications, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

The goal of this article is to rethink the relationship between the concepts of justification and wrongdoing, which play vital roles in the theory of criminal law. Reading George P. Fletcher’s new book, The Grammar of Criminal Law, in the context of his earlier scholarship has led me to one major disagreement with Fletcher as well as with the traditional criminal law doctrine: for Fletcher and many others, wrongdoing and justification mutually exclude each other; for me, they do not.

Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but then …

Revitalizing The Presumption Against Preemption To Prevent Regulatory Gaps: A Case Study Of Judicial Tolerance Of Illegal Railroad Waste Transfer Stations, Carter H. Strickland Jr.

Rutgers Law School (Newark) Faculty Papers

This article addresses the problem of regulatory gaps that are created through imprecise preemption rulings. It begins with a detailed case study of how railroads were able to enter the highly regulated solid waste industry, to claim that all state oversight is preempted by a federal statute intended to deregulate railroad economics, and to obtain the economic benefits of operating in a regulatory gap. The net result of current preemption doctrine in those cases has been to strip citizens of the power to ensure that waste transfer stations are safe, and this fundamental injustice serves as a backdrop to analyzing …

Reforming The Gift Tax And Making It Enforceable, Mitchell Gans, Jay A. Soled

Rutgers Law School (Newark) Faculty Papers

Historically, the gift tax has performed the admirable role of safeguarding the integrities of both the estate and income taxes. Due to taxpayers’ abilities to narrow the gift tax base and ignore their filing obligations, however, fulfillment of its historical role is now in jeopardy. This analysis details how taxpayers circumvent their gift tax obligations and then sets forth reforms that Congress can readily institute to curb taxpayers’ transgressions. Institution of these recommendations would enable the gift tax to continue to fulfill its historic functions.

Reforming The Gift Tax And Making It Enforceable, Jay A. Soled

Rutgers Law School (Newark) Faculty Papers

Historically, the gift tax has performed the admirable role of safeguarding the integrities of both the estate and income taxes. Due to taxpayers’ abilities to narrow the gift tax base and ignore their filing obligations, however, fulfillment of its historical role is now in jeopardy. This analysis details how taxpayers circumvent their gift tax obligations and then sets forth reforms that Congress can readily institute to curb taxpayers’ transgressions. Institution of these recommendations would enable the gift tax to continue to fulfill its historic functions.

News Media’S Impact On Perceptions Of The Civil Justice System, Hugh M. Robert

ExpressO

With cases in the news like the McDonalds case, it has left the public with a very distorted view of the civil justice system. Information about the civil litigation system is critical because citizens report that the news media is their primary source of information about the court system, an even more important source than contact with the courts themselves. With the general public relying primarily on the news media as their source of information, it is necessary to examine what is being reported and the frequency of covering both sides to the story, the true story.

Time To Step Up: Modeling The African American Ethnivestor For Self Help Entrepreneurship In Urban America, Roger M. Groves

ExpressO

Almost $6 billion in taxes paid by the American people have been rather ubiquitously placed in the hands of a federal subsidy program for investors in low income communities. The subsidy is in the form of a tax credit. The program is entitled the New Markets Tax Credit (“NMTC”) initiative. Under the program, the tax credit is used to lure investors to provide equity capital into low income areas, urban and/or rural (i.e. a new market for equity funding). According to my companion law review article (Florida Tax Review, Spring, 2007; The Florida Tax Review was ranked 1st among tax …

Below The Surface: Comparing Legislative History Usage By The House Of Lords And The Supreme Court, James J. Brudney

ExpressO

Abstract for “Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court

In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain’s highest court has used …

Federalism And Transnational Law: The Case Of Cites Implementation In Canada, William R. Mackay

ExpressO

This paper applies ideas of transnational legal process to federal environmental governance in Canada. Part I of the paper demonstrates that successful domestic implementation of international norms follow a pattern of relations described as transnational legal process whereby international and domestic actors, both governmental and non-governmental, interact in a variety of public and private fora to make, enforce and ultimately internalize rules of international law. Legitimate policy must be used to internalize rules of international law domestically.

Environmental governance in Canada is based on an institutionalized form of collaborative federalism with deep historical and philosophical roots. This pattern of relations …

Rethinking Visitation: From A Parental To A Relational Right , Ayelet Blecher-Prigat

ExpressO

The article proposes a new understanding of the right to visitation that challenges the common understanding of the right to visitation as a parental right and as an integral component of the cluster of rights associated with parental status. Instead, it suggests that visitation be understood as an independent right based on relational values. Understanding visitation as a parental right marginalizes relational values and thwarts the development of a coherent theory of visitation. The absence of such a theory could account for the perplexity plaguing visitation issues. Detaching visitation from the cluster of rights associated with parental status and constructing …

Private Copyright: Digital Rights Management Systems And The Consumer, Victor Nicholas Knipe

ExpressO

Digital Rights Managements (DRM) systems impact the digital content and software marketplace on several levels. The issues include copyright law, contract law, privacy, antitrust, and consumer protection. This paper examines how DRM systems affect the consumer and what changes can be made to bring about a more sensible and transparent market in the United States.

Solving The Lawyer Problem In Criminal Cases, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State’s case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. “Solving the Lawyer Problem in Criminal Cases,” a 9,000 …

The Government Giveth, And The Government Taketh Away: Patents, Takings, And 28 U.S.C. § 1498, Justin Torres

ExpressO

The argument over whether patents are protected by the Fifth Amendment’s Takings Clause has largely been confined to normative grounds. To the extent that these arguments reference the 1910 Patent Act, the statute that enables patentees to recover “reasonable and entire” compensation for infringement by the government (later codified as 28 U.S.C. § 1498), they conclude that the provision adds little to the argument. And in Zoltek Corp. v. United States, the Court of Appeals for the Federal Circuit determined that the very existence of § 1498 indicates that there is no Fifth Amendment claim for patent infringement, since an …

The Price-Anderson Public Liability Action And Strict Liability, Donald E. Jose, Michael A. Garza

ExpressO

Nuclear Power and nuclear weapons plants seem to be an ultrahazardous activity for which strict liability should apply. However, unusual provisions of the Price-Anderson Act serve to shield nuclear power and nuclear weapons plants and associated activities from strict liability unless the federaq agency regulating the activity determins that a special from of strict liability can be applied.

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond

ExpressO

"Black, White, Brown, Green, and Fordice: The Flavor of Higher Education in Louisiana and Mississippi" chronicles the higher education desegregation sagas in Louisiana and Mississippi. The Article specifically compares the histories of the higher education desegregation lawsuits in the two states and their subsequent experiences and progress under Settlement Agreements. The statistical populations of many universities in both states are still largely identifiable as “white” or “black,” and so the Article will pose questions not only respecting the implementation of United States v. Fordice in both states, but also respecting the value, desirability, or possibility of the “integrative ideal” converting …

The Effects Of Domestic Legal Institutions On International Trade Flows, Yu Wang

ExpressO

The effects of institutions on international trade relations are of theoretical and practical interest. By following the research perspective that interprets institutions as the “rules of the game”, I suggest and study three domestic legal institutions---tenure system for judges, precedent law, and judicial review that supposedly have significant effects on international trade flows. My empirical tests show that both precedent law and judicial review have independent effects on bilateral trade volume while the proposed independent effect of tenured judge is unsupported. Moreover, my empirical evidences suggest that precedent law introduces its effect in a monadic fashion while judicial review (measured …

The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett

ExpressO

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this …

Antitrust Process And Vertical Deference: Judicial Review Of State Regulatory Inaction, Jim Rossi

ExpressO

Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other – especially as traditional governmental functions are privatized and as economic regulation advances beyond its traditional role to address market monitoring. This Article defends a process-based account of the state action antitrust exception against alternative interpretations, such as the substantive efficiency preemption approach recently advanced by Richard Squire, and elaborates on what such a process-based account would entail for courts addressing the role of state economic regulation as a defense in antitrust cases. It recasts the debate as focused …

Pandora's Ballot Box, Or A Proxy With Moxie? The Majority Voting Amendment To Delaware Corporate Law, John Verret

ExpressO

The Delaware General Assembly has recently adopted an amendment to the Delaware General Corporation Law which provides that where shareholders have adopted a majority voting bylaw for corporate elections over the traditional plurality scheme, a corporation may not subsequently amend its bylaws to return to plurality voting without shareholder approval. I will compare this provision to other approaches and try to explain the reasons underlying its adoption. I will also briefly summarize the evolving shareholder empowerment debate and analyze the majority voting provision in the context of that discussion. I will describe some unique and unanticipated interactions between majority voting …

School Naming Rights And The First Amendment's Perfect Storm, Joseph Blocher

ExpressO

This Article uses public school naming rights as a lens through which to examine the conflicts between the tempestuous First Amendment categories of government speech, commercial speech, and forum analysis. Courts and scholars have noted the internal conflicts within these three categories, but have not yet explored the conflicts between them. As the growth of school naming rights shows, government sponsorship arrangements collapse the artificial divisions between the categories and demand a better understanding of their interactions. This Article represents a first attempt to bring coherence to these poorly defined and increasingly important areas of First Amendment law.

Paying Eliza: Comity, Contracts, And Critical Race Theory, Or 19th Century Choice Of Law Doctrine And The Validation Of Antebellum Contracts For The Purchase And Sale Of Human Beings, Diane J. Klein

ExpressO

During the period before the Civil War, courts in non-slave-holding states were sometimes called upon to enforce contracts for the purchase and sale of human beings (or contracts whose consideration otherwise consisted of human beings), and sometimes did so, for reasons arguably having more to do with inter-state contract law than with the “peculiar institution” itself. What may be more surprising, and more difficult to understand, is that some “Union” courts went on doing so even after the Civil War ended, when substantive changes of law, together with well-established exceptions to general principles favoring out-of-state contract enforcement, made the contrary …

Judicializing Federative Power, Richard Broughton

ExpressO

The federal Constitution is ambiguous about federative power, Locke’s description of the power over war and foreign relations. On the one hand, the Constitution is plainly un-Lockean, dividing federative power between Congress and the President and contemplating that they will exercise responsibility, and sometimes competing prerogatives, in war and foreign affairs. Yet there is a rich constitutional and political history in America suggesting that the constitutional scheme is more Lockean than at first blush, even if informal and hidden in complexity. This paper responds to two distinct, but related, lines of argument that seek to limit especially the executive’s Lockean …

'Prima Paint' Pushed Compulsory Aribitration Under The 'Erie' Train, Richard L. Barnes

ExpressO

As the face of commerce changes, the law usually follows, albeit at some distance. The United States Supreme Court has recently sped the pace. In a line of cases, some old, some recent, but all feeding off of one another, the Court has held that challenges to agreements which contain arbitration provisions must go to the arbitrator first. Courts may hear formational challenges only where they challenge the arbitration provision alone. In the Supreme Court, arbitration, with its vast potential for abuse as well as for good, has found a friend.

The Court’s doctrine of choice, “severability,” raises serious concerns …

Civil Liberties Advocacy Organizations In Canada: A Survey And Critique, Jeremy Patrick

ExpressO

Civil Liberties Advocacy Organizations in Canada: A Survey and Critique.” This article explores the structure and activities of modern civil liberties groups in Canada through a comparative look with the ACLU in the United States. The thesis of the article is that the Canadian model of having fragmented and isolated groups in some provinces is not as effective as the American model of having a single, national organization with affiliates in each state.

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …