Trump and Caribbean Xenophobia: The United States and The Dominican Republic

46 Rutgers L. Rec. 103 (2019) | WestLaw | LexisNexis | PDF

This article compares and contrasts the cases of immigrant narratives within the United States and the Dominican Republic; as well as the socioeconomic changes that have sparked a backlash among populations ostensibly aggrieved due to globalization and immigrants showing up in their communities. The political leadership in both countries supports their constituents’ grievances against immigrants, who fear the loss of their historical privilege as the demographics in their country are at an alleged tipping point. This article highlights the policies, legislation, and discourses that have targeted immigrants and their children, and discusses the cross-pollination of ideas among xenophobic political movements across the Global North.

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The Whistleblower Protection Statute: Its Impact on Chief Compliance Officers

46 Rutgers L. Rec. 73 (2019) | WestLaw | LexisNexis | PDF

The Supreme Court of the United States (“Supreme Court”) in Digital Realty Trust Inc. v. Somers and the Court of Appeals of New York in Sullivan v. Harnisch decided on a fundamental issue important to both chief compliance officers (“CCO”) and shareholders.
In Sullivan and Digital Realty Trust Inc. the courts held that the Dodd-Frank Act’s prohibition on employer retaliation against whistleblowers only extends to individuals who have reported the violations of securities laws directly to the Securities and Exchange Commission (“SEC”). The decision by both courts was troubling. These holdings would prove detrimental to CCO’s should they report any compliance concerns to management and to shareholders seeking company transparency.
This note will explore the critical question of whether public investment advisers and other entities should be given the unequivocal power to terminate the few employees who are charged with the statutorily mandated role of securing ethical and legal compliance. In Section II, I will explore the inception of the SEC and the relevant legislation and historical occurrences that gave rise to this issue. I will also discuss, in Section III, the imperative role CCO’s play in their respective industry as well as in the financial sector. In Sections IV, I will provide a summary of the importance of creating and maintaining a culture of compliance and briefly discuss the Dodd-Frank Act and the Sarbanes-Oxley Act’s whistleblower protection statutes. In Sections V, VI, and VII, I will examine the rulings in Sullivan v. Harnisch and Digital Realty Trust Inc. v. Somers and their impact on the compliance and financial industries. In Section VIII, I will argue that the rulings in Sullivan and Digital Realty Trust Inc. were in error. In addition to answering the question of whether entities should be given the unequivocal power to terminate CCO’s, in Section IX, I will propose a solution which would limit an entity’s incentive to terminate CCO’s for unjust reasons through the use of the 8-K disclosure form.

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Patent Pools and Cumulative Innovation

46 Rutgers L. Rec. 40 (2018) | WestLaw | LexisNexis | PDF

The movement about open access to scientific knowledge has inspired many important discussions among policy makers. Under the backdrop of this movement is an increasing realization that the trajectory of innovation for modern technologies is cumulative as new innovations rely on taking advantage of what came before. Institutional theories have identified two essential requirements for cumulative innovation: disclosure and access. In 1962, Kenneth Arrow first recognized that the patent marketplace is an important venue where exchanges of innovative ideas occur. However, because of high transaction costs in patent licensing, access to patented knowledge is often impeded. Previous literatures have largely focused on modifications to patent law doctrines, such as patent scope or infringement remedy, to promote cumulative innovation. This article instead argues that a patent pool, a different type of institution for innovation, can spur cumulative innovation by facilitating access to patented knowledge. The article explains that a patent pool reduces transaction costs of patent licensing by aggregating related patents and centralizing licensing negotiations. Moreover, because creating a patent pool as a common knowledge space requires collaboration among patent owners, the success of a patent pool often depends on whether patent owners can overcome collaborative failures. The collective action theory, which identifies appropriation and provision as two essential issues for collaboration, provides the basic framework for the design of patent pools. This article will then offer three main design suggestions: (1) appropriation limitation is not necessary for the long-term sustainability of a patent pool; (2) in order to induce patent owners to join a patent pool, a patent pool should establish mechanisms that fairly allocate licensing revenue and reduce transaction costs of licensing; and (3) grant-back provisions are desirable to prevent a patent pool from becoming obsolescent.

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Was Allergan’s Patent-Housing Agreement In Exchange For Sovereign Immunity a “Sham to Subvert the Existing Intellectual Property System?”

46 Rutgers L. Rec. 31 (2018) | WestLaw | LexisNexis | PDF

Allergan plc (“Allergan”) holds several patents for its prescription dry-eye medication Restasis. In 2015, Allergan sued Mylan Pharmaceuticals Inc., Teva Pharmaceuticals USA Inc., and Akorn Inc., (the “Generic Manufacturers”), for patent infringement following their filings of abbreviated new drug applications (“ANDAs”) for generic versions of the branded drug. The Generic Manufacturers then petitioned for inter partes review (“IPR”) of those patents to the United States Patent and Trademark Office (“USPTO”). The Generic Manufacturers were seeking to invalidate the Restasis patents through the USPTO’s Patent Trial and Appeal Board (“PTAB”), which would open the door for generic versions of the drug. When a branded pharmaceutical drug is protected by a patent, the patent owner has exclusive rights to that drug, thereby preventing competitors from producing generics to compete with it. Therefore, the price of the branded drug remains high, and the pharmaceutical company effectively has a market monopoly on that drug. However, pharmaceutical companies are finding it difficult to maintain sales and profits amidst efforts to drive down drug prices through the fast-track, less expensive legal IPR process of attacks on drug patents.
This note will first discuss the old and new bail systems in New Jersey and explain why there was reform. The second section provides an overview of the deportation process for undocumented immigrants subjected to immigration detainers under both President Obama’s and President Trump’s enforcement policies. The last section is an analysis of how bail reform and President Trump’s immigration policies affects the criminal justice system within the context of undocumented immigrants.

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How New Jersey’s Bail Reform and President Trump’s Immigration Policies May Affect Undocumented Immigrants

46 Rutgers L. Rec. 1 (2018) | WestLaw | LexisNexis | PDF

In January 2017, bail reform went into effect in New Jersey, turning the system from a resource-based assessment to a risk-based assessment. Indigent defendants, who previously could not post bail for minor crimes committed in the state, are no longer detained just because they cannot afford to pay. However, also in January 2017, President Donald Trump’s strict policies against undocumented immigrants went into effect. Since then, the priority to remove people from the country has increased and thus the number of immigration arrests has also increased. Formerly, undocumented immigrants who could not post bail and were convicted of crimes would serve their sentence before the removal process was started. But now, individuals who are released under the reformed bail policy are being picked up by immigration officials and possibly removed from the country before their criminal cases are resolved. This will result in some victims failing to get justice, which is ironic because the president has also created a special office for victims of crimes committed by undocumented immigrants. This issue also puts some undocumented immigrants at a strange, unique advantage over American citizens who have no choice but to face their criminal charges and face the punishment that comes with their conviction.

This note will first discuss the old and new bail systems in New Jersey and explain why there was reform. The second section provides an overview of the deportation process for undocumented immigrants subjected to immigration detainers under both President Obama’s and President Trump’s enforcement policies. The last section is an analysis of how bail reform and President Trump’s immigration policies affects the criminal justice system within the context of undocumented immigrants.

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Women and Wills: An Empirical Analysis of the Married Women’s Property Act and its Remarkable Resonance Today

45 Rutgers L. Rec. 216 (2018) | WestLaw | LexisNexis | PDF

By 1900, the state of Missouri had a quarter century’s worth of experience with its version of the Married Women’s Property Act, passed in 1875 to reverse the common law and decree that personal property acquired by a married woman was her own to control. In 1889, the statute was amended to grant a married woman similar rights over her real property. While the new statute did not affect any property a wife had acquired before its passage, it specifically provided that the husband had no right to any property she obtained after the law went into effect. However, a married woman in Missouri was still constrained in other ways. She could not serve as executrix or administratrix of an estate, and if she had been appointed as such, her letters were revoked as soon as her marriage was suggested to the probate court. Although Missouri allowed women to write their wills, the will of a single woman who later married was automatically revoked under the theory that marriage repealed a woman’s ability to execute her own will. Overall, the ability for a woman to change these laws was limited: no woman, married or single, could be Governor or any other executive officer, state legislator, juror or judge of a circuit court in Missouri. Furthermore, women could not vote in the state until the 1919 presidential election.

My research investigates whether these restrictions on women are reflected in the probate files for the year 1900 in the city of St. Louis. I chose that city in part because it was the fourth largest city in the United States at that time, and in part because its probate files are available online. I examine all 805 probate files for the year to examine issues such as:

1. What assets did married women have in 1900? What about single women? To whom did they leave their property?
2. Did women have their own businesses as reflected in the probate files? Did women provide the bonds for administrators or executors? Would I find professional women in the probate files — doctors, lawyers, notaries – or mainly clerical workers?
3. Did married men name their wives as executrix, or fathers their daughters rather than their sons, especially if they had real property that would require management for two years or more while the estate went through probate? Probate administration of real property was not a passive role: the files reflect the work done in collecting rents; hiring roofers, plumbers, and painters; and in one case, finishing work on buildings on four properties including supervising the installation of electricity and an elevator.
4. St. Louis was a pioneer in establishing public education. Even so, many of its citizens, especially women, could not read or write. Would that be an obstacle to appointing someone to administer an estate or to execute her will?
5. Did the probate code accurately reflect the average married person’s wishes, or did these testators have other ideas?

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To Kill A Lawyer-Hero: Atticus Finch In The Law School Classroom

45 Rutgers L. Rec. 191 (2018) | WestLaw | LexisNexis | PDF

This article addresses the well-known lawyer character from Harper Lee’s novel and subsequent film, To Kill a Mockingbird. For years, legal scholars have rhapsodized about Atticus Finch as the ultimate “lawyer-hero” and role model for aspiring attorneys, with little dissent. When Lee’s literary executor published an early draft version of the novel entitled Go Set a Watchman in 2015, many readers were shocked to encounter an Atticus Finch who was an apologist for segregation and the leader of a White Citizens Council chapter. This article reflects on evolving views of Finch as lawyer-hero, examining how he plays in the contemporary law school classroom. This article argues that, regardless of Go Set a Watchman, law professors should be teaching Atticus Finch critically given the unacknowledged white privilege embedded in To Kill a Mockingbird. Yet how can we critique Finch and still nurture students’ interest in and admiration of social justice lawyering, embodied for some in the mythic lawyer-hero? This article proposes techniques to dismantle the heroic construct surrounding Atticus Finch, shifting the focus from fictional images of the socially-engaged lawyer to students’ own professional aspirations.

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A (Nude) Picture is Worth a Thousand Words—But How Many Dollars?: Using Copyright as a Metric for Harm in “Revenge Porn” Cases

45 Rutgers L. Rec. 170 (2018) | WestLaw | LexisNexis | PDF

So-called “Revenge Porn”—pornography published without the subject’s permission—is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life.
Leveraging that analysis, I argue that the dollar sums in statutory damages under the Copyright Act provide a better mode of measuring than abstract dignitary and reputational harms more conventionally associated with “revenge porn.” I also argue that, because of the structure of the Federal Sentencing Guidelines (and likely many state analogs), using economic harm to describe harm is likely to result in those harms becoming higher on the list of agency enforcement priorities.

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Why California Got It Right: Assessing Psychopaths Before Release

45 Rutgers L. Rec. 145 (2018) | WestLaw | LexisNexis | PDF

Psychologist Robert Hare (“Hare”) first released the Psychopathy Checklist Revised (“PCL-R”) in 1991 and it has consistently demonstrated success in predicting recidivism. California is the only state that requires an individual sentenced to life with the possibility of parole to receive a certain score on the PCL-R before release. Some have questioned the efficacy of this assessment and its place in the criminal justice system. Nevertheless, research confirms the PCL-R is a reliable predictor of recidivism and thus other states, including New Jersey, should adopt the same requirement that California enforces.
In this note, Section II will clarify what psychopathy is and address the misconceptions that exist regarding its definition. Section III will describe what the PCL-R is in detail, including its history and motives. Then, Section IV will delve into where the PCL-R meets the legal system. Section V will describe the process that is currently implemented in California in terms of the administration of the PCL-R. Next, Section VI will raise a number of the criticisms voiced by those in the legal field as well as by psychologists. Finally, Section VII is devoted to addressing the potential modifications, with those criticisms in mind, that will make further PCL-R application viable. Such modifications will allow for utilization of this assessment as originally intended.

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Should Emergency Good Deeds Go Unpunished? An Analysis of the Good Samaritan Statutes of the United States

45 Rutgers L. Rec. 105 (2018) | WestLaw | LexisNexis | PDF

It is a well settled common law rule that ordinarily, “in the absence of some special relationship, no legal duty rests on a member of the general public to render services in the preservation of the person or property of another even if the means with which to do so are at hand.” We may have a moral obligation to help our fellow citizens, especially when we can to do with little effort and risk to ourselves, but in general, we have no legal obligation to do so. As commentators have noted, “[w]hile providing no general duty to aid, the Restatement of Torts. . . allows a person who voluntarily comes to the rescue of another to be held liable for any negligence in doing so.” Thus, the safest course of conduct for citizens who come across emergency situations is to walk on by, rather than risk potential civil liability for rendering assistance that is later found to have been negligent. Good Samaritan statutes seek to “encourage people [with no duty] to aid others in need by granting statutory immunity” from negligent acts or omissions to rescuers who provide assistance to their fellow citizens in emergency situations.

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