Application- Reader Bias: Assessing State Agency Bias in the Context of Cannabis Law

48 Rutgers L. Rec. 166 (2021) | WestLaw | LexisNexis | PDF
New Jersey cannabis law is dynamic. In the weeks leading up to this note’s publication, the June 2019 RFA was released from its stay and DOH was permitted to resume scoring applications and New Jersey legalized the cannabis for adult use. Thus, this note serves as a road map for licensing ATCs under the new adult use legislation in New Jersey, or for other states that have yet to enact a comprehensive medical cannabis program. Part I of this note will introduce necessary background information that is germane to understanding the legal treatment of cannabis in New Jersey. More specifically, Part I will track New Jersey’s Medical Marijuana Program (“MMP”) progression, beginning with the January 2010 enactment of the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) and concluding with the June 2019 RFA. Part II will examine the three ATC licensing processes states employ when the state restricts the amount of available licenses. Part III will analogize and distinguish case law examining the ATC license process in New Jersey, Colorado and Arkansas with caselaw examining college admissions decisions. Part IV will present potential solutions to New Jersey’s ATC licensing process, drawing guidance from Missouri. .
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The Integrity of Elections in the United States: Protecting Voters from Suppression, Technology, and Pandemics


48 Rutgers L. Rec. 142 (2021) | WestLaw | LexisNexis | PDF
Notwithstanding the United States’ challenges in protecting its voters, both domestic and foreign governments have found success in making voting accessible to all voters through blockchain voting. Blockchain voting is an online voting system that utilizes blockchain to protect data. State governments have used blockchain technology to facilitate voting for persons who would not otherwise have been able to vote. Foreign governments have begun integrating blockchain voting into their system of governance. However, insecurities still hang over our legislators as to whether blockchain voting can be trusted. This Article proposes that the U.S. should pass new laws that adopt blockchain voting. Specifically, the U.S. should, subject to certain rules, allow both federal and state governments to allow online voting through blockchain voting on platforms that are reputable, stable, and tested.
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Burgers, Chops, & Vegetable Crops: Constitutional Rights and the “War” on Plant-Based “Meat”


48 Rutgers L. Rec. 119 (2021) | WestLaw | LexisNexis | PDF

Plant-based “meats” are products that mimic the texture, flavor, and appearance of meat that comes from live animals. Tofurky uses terms like “chorizo,” “hot dogs,” and “ham” to describe its products. All of their products unambiguously indicate that they are plant-based, meatless, vegetarian, or vegan. This note will analyze the constitutionality of Act 501, and substantially similar laws that may threaten the constitutionally protected rights of Freedom of Speech and Due Process guaranteed under the First and Fourteenth Amendments. It will also analyze the possible implication of the Dormant Commerce Clause.

This article is comprised of four parts. Part I will focus on the new perceived “threat” and emergence of plant-based products and its place in the agriculture and consumer market. Part II will discuss the plaintiff’s First Amendment claim and the prayer for relief that allegedly protects freedom of speech and expression, which extends to the good faith labeling of food products. Part III will cover the Fourteenth Amendment Due Process violation the plaintiffs assert in their complaint and memorandum in support of plaintiff’s motion for preliminary injunction. The Due Process Clause of the Fourteenth Amendment prohibits against vague statutes. This note will also discuss what constitutes a vaguely written statute, including an assessment of whether or not the plaintiff could prevail on their motion for a preliminary injunction on that claim and additionally, whether or not a court would find the statute unconstitutional. Part IV will cover the public policy implications of upholding Act 501, and substantially similar laws in the United States, and reasons for possibly allowing environmentally friendly companies like Tofurky to promote, advertise and sell their products to the general public.

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Asymmetric Fees Awards in Civil Rights Litigation: A Critical Reevaluation


48 Rutgers L. Rec. 77 (2021) | WestLaw | LexisNexis | PDF

This article posits that the prevailing approach to attorneys’ fees — under which awards for defendants are appropriate only in extraordinary or extreme circumstances — rests upon increasingly archaic assumptions concerning legal practice and the significance of fee awards in encouraging private citizens to seek vindication of civil rights violations in a judicial forum. The fee recovery is not as important as it arguably once was in inducing competent plaintiffs’ counsels to undertake legal representation in civil rights disputes, which casts doubt on the principal public policy rationale for fee-shifting statutes themselves. For example, plaintiffs are now better able to maintain complex or prolonged litigation as a result of changes in ethics rules that enable attorneys to undertake matters on credit or through litigation funding. Additionally, technological advances in discovery and other essential legal processes increasingly allow firms with limited resources to operate more efficiently, thereby significantly neutralizing any resource advantages large defense firms may possess. The prevailing judicial orientation toward fee-shifting also disregards the influence of powerful societal trends, which have heightened sensitivity to the existence and harm of discriminatory practices and provide a powerful independent incentive for counsel to undertake representation in civil rights matters.

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Giving Working Parents the Opportunity to be the MVP of an IEP Team


48 Rutgers L. Rec. 58 (2020) | WestLaw | LexisNexis | PDF

On August 8, 2019, the United States Department of Labor (“DOL”) issued three opinion letters, which are official, written opinions composed by the Wage and Hour Division of the DOL, that interpret “how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter.” Two of the letters released in August 2019 addressed compliance issues related to the Fair Labor Standards Act (“FLSA”), and the third letter addressed a compliance issue related to the Family and Medical Leave Act (“FMLA”). FMLA2019-2-A, the letter regarding compliance with the FMLA, responded to an employee’s request for an opinion on “whether an employee may take leave under the Family and Medical Leave Act (FMLA) to attend a Committee on Special Education (CSE) meeting to discuss the Individualized Education Program (IEP) of the employee’s son or daughter.” Based on the facts presented by the requesting employee, the Wage and Hour Division concluded that attendance at such meetings is indeed a qualifying reason to take intermittent leave under the FMLA.

This paper analyzes the conclusion presented in the above-detailed opinion letter and explores why a parent should undoubtedly be able to take leave under the FMLA to attend meetings concerning their child’s educational and special medical needs. Further, this paper seeks to explore why a parent’s attendance at such meetings constitutes essential care for a family member with a serious health condition within the meaning of the FMLA. Finally, this paper seeks to explain the implications of FMLA2019-2-A on employers. Although DOL opinion letters are not binding, it is essential for employers to treat this opinion as if it were in order to promote the well-being of employees with children who are entitled to special education services in public schools.

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Moral Imitation: Can An Algorithm Really Be Ethical?


48 Rutgers L. Rec. 47 (2020) | WestLaw | LexisNexis | PDF

Introduction of algorithms in the realm of public administration bears the risk of reducing moral dilemmas to epistemic probabilities. This paper explores the interlinkages between attribution of moral agency on algorithms and algorithmic injustice. While challenging some of the fundamental assumptions underlying ethical machines, I argue that the moral algorithm claim is inherently flawed and has particularly severe consequences when applied to algorithms making fateful decisions regarding an individual’s life. I contend that free will, consciousness and moral intentionality are sine qua non for any moral agent. A well-known objection to the Turing Test is cited for the proposition that, while an algorithm may imitate morality, an algorithm cannot be ethical unless it understands the moral choices it is making. I raise a methodological objection regarding transposing moral intuitions on algorithms through global surveys. I cite the ‘consciousness thesis’ for the principle that without consciousness there cannot be moral responsibility. Moral justifications form the bedrock of legal defenses. In the absence of moral agency and the algorithm’s inability to be held morally responsible, any attempt by the firms developing and/or deploying the algorithm to escape accountability is untenable. I highlight the grave cost of masking algorithmic injustices with ethical justifications and argue for strict liability for any firm deploying algorithms in the public policy realm.

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Awarding A Plaintiff A Defendant’s Profits In Trademark Infringement Actions: Why Courts Should Universally Apply The Bright-Line Rule Requiring Willful Infringement


48 Rutgers L. Rec. 25 (2020) | WestLaw | LexisNexis | PDF

This note seeks to analyze the issue of whether, under Section 35(a) of the Lanham Act, willful infringement should be a prerequisite for an award of an infringer’s profits for a violation of Section 43 of the Lanham Act, 15 USC § 1125. This note argues in favor of the bright-line rule requiring that a plaintiff prove willful infringement as a prerequisite for a court to grant the remedy of infringer’s profits in instances of trademark infringement arguing a likelihood of confusion. In doing so, this note will consider the legislative intent behind the Act, analysis of relevant precedential case law, and the effective outcome of such a decision. For the purposes of this note, “trademark infringement” is synonymous with a likelihood of confusion action.

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Transparency Blind Spot: A Response to Transparency Deserts


48 Rutgers L. Rec. 1 (2020) | WestLaw | LexisNexis | PDF

We have read with interest Christina Koningisor’s publication, Transparency Deserts. While there is much to be lauded in the work – all access advocates would like to see more scholarship and publicity about the importance of transparency and accountability – we are disheartened by the article’s failure to recognize the extant vibrant body of scholarship and activism in state freedom of information law. We, moreover, find this omission characteristic of a broader ignorance in legal academia of the sweat and toil of legal scholars, scholar-practitioners, and interdisciplinary academics who analyze and advocate for state transparency laws. This blind spot particularly manifests, unfortunately, among those at elite (typically coastal) law schools, who generally contribute vitally to the literature of the undoubtedly important federal transparency regime.

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The Opioid Dragon of Johnson & Johnson is Slayed. All Hail the Killing of the Not Guilty.


47 Rutgers L. Rec. 305 (2019) | WestLaw | LexisNexis | PDF

The recent Johnson & Johnson case decided in Oklahoma is one where the courts decided that the solution to societies’ frustration over the opioid crisis was to give society what they wanted: a bad guy to blame and then hang.The court picked Johnson & Johnson, railroaded the company with questionable legal analysis and then made sure at the end of the trail the bad guy would be hung to the cheers of the crowds.This paper looks at the consequences of allowing the legal system to forego its duty and side with the mob simply to be a hero. This paper will examine how the courts mislead the mob and why they did it, and why by allegedly solving this crisis, they may have created an even bigger problem.

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Behavior to Benefit Others on the Basis of Relation and Belonging: Is Partiality Towards Relatives Opposed to Universalism and Equality? A Conceptual Analysis of Normative Terms


47 Rutgers L. Rec. 255 (2019) | WestLaw | LexisNexis | PDF

This article deals with the question of moral justification to show preference towards those individuals with whom an agent shares a relationship or who belong to the same group as the agent, on the basis of that very relationship or belonging — advantaging those individuals above other people who are strangers, i.e. not sharing a relationship with or belonging to the same group as the agent. The article clarifies basic concepts which apply to the issue and the question of the interaction between partiality, universalism and equality. However, the article will not deal with the moral basis for showing preference towards relatives, which we will examine at another time. To exemplify these concepts, this article will use a series of hypothetical situations devised by the authors.

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