More Inheritable Rights for Digital Assets

41 Rutgers L. Rec. 131 (2014) | WestLaw | LexisNexis | PDF

Death, as uncomfortable of a subject as it is for some, is a guaranteed component of human existence. Orson Welles coined the phrase “We’re born alone, we live alone, we die alone. Only through our love and friendship can we create the illusion for the moment that we’re not alone.” Creating this illusion of not being alone is manifested when heirlooms and property are passed onto loved ones and close friends when we die. The varieties of possessions that get passed on are as diverse as the reasons they are given. For some, an artifact may be left behind as a way to remember one’s heritage or possibly a possession is given to symbolize the love that existed between two people. There is no denying the psychological and emotional attachment that is affixed with objects that hold memories of loved ones who have passed on before us.

Within this frame work, lawyers use legal tools of wills, trusts and estate laws to carry out grantors or inheritors desire on how to bestow certain possessions. However, within all the complexities of bestowing property, lawyers are now increasingly being confronted with how to pass on digital assets.

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Habeas Disharmony: The Dissents in Trevino v. Thaler and McQuiggin v. Perkins

41 Rutgers L. Rec. 116 (2014) | WestLaw | LexisNexis | PDF

In the wake of the big 2011-term cases, such as Martinez v. Ryan, Maples v. Thomas, and the double punch of Lafler v. Cooper and Missouri v. Frye, the Supreme Court’s 2012-term habeas cases cannot help but seem a little anemic, especially given the sheer number of blockbuster cases in areas of somewhat broader appeal. Two of the term’s more-notable habeas cases were, at first blush, quite modest in scope. Trevino v. Thaler was a slight gloss on Martinez v. Ryan, and McQuiggin v. Perkins added AEDPA’s one-year statutory limitations period to the list of considerations that may be relaxed in the face of an actual-innocence claim.

Much has been written about Trevino and McQuiggin in the mainstream media, and the scope of both will undoubtedly soon be a topic of discussion in legal periodicals. In this short article, I will add to the discussion by analyzing an odd feature of both cases: the vehement dissents. Despite being cases of arguably minor impact, neither was unanimous — far from it —and both drew strong-worded responses. Trevino contained two, and McQuiggin brought a barnstormer by Scalia that was joined—mostly, as we will see below—by the conservative wing of the Court.

In this piece I argue that the dissents in both cases signal more than a disagreement over statutory interpretation and proper outcomes. Rather, as Andrew Cohen of the Atlantic suggested in his discussion of Alleyne v. United States, the Court appears to be engaging in a coded discussion with itself, contemplating the future role to be played by the federal courts in addressing habeas corpus petitions—a role complicated by evolving ideas of innocence, exoneration, and redemption colliding with principles of federalism and finality. Trevino and McQuiggin, while minor, might provide a fascinating glimpse into where the Supreme Court finds itself as of 2013 and 2014.

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Why Should I Become an Associate at a Large Law Firm? And if I Do, Then What Should I Expect and How Do I Succeed?

41 Rutgers L. Rec. 65 (2014) | WestLaw | LexisNexis | PDF

Despite horrific accounts about working in “Big Law” from former partners and associates, every year top law students from all over the country accept junior associate positions at large law firms. This article discusses whether someone considering working for a large law firm should do so and what they should expect when they work at a large law firm.

This article provides a first-hand look at the advantages of working at a large law firm, what to expect, how to succeed, and how to make partner. This article also provides practical, tangible advice for junior attorneys starting out at large law firms about how to approach work assignments, work-life balance, billable requirements, how to bill, pro bono, and how to deal with clients, colleagues, and opposing counsel. Much of the advice in the article, which I have given throughout the years to many law students and junior associates, also applies to any junior attorney starting his/her practice at any organization, including a small firm, medium-sized firm, a corporation (as in-house counsel), or a governmental entity (such as the state attorney’s office). The advice is also useful to summer associates and law students who intern or extern.

This article concludes that working at a large law firm is not right for everybody, but it is right for some people. It can be a tremendous building block in your career, and you can be happy after making the decision to work at a large law firm. Succeeding at a large law firm takes a tremendous amount of commitment, perseverance, and hard work.

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The Ground Game: How Land-Use Ordinances Have Become the New Battleground for Natural Gas Extraction in the Marcellus Shale

41 Rutgers L. Rec. 42 (2014) | WestLaw | LexisNexis | PDF

The use of zoning ordinances to exclude natural gas extraction presents many questions from a social perspective. It raises questions about basic property rights, the relationships between citizens and various levels of government, and how the benefits and burdens of the extraction affect the community, just to name a few. Again, the purpose of this note is not to weigh these social values and costs, but rather to look at how these laws fit within the traditional context of land use regulations and what differentiates them from a traditional land use case. This note will look at the differences in state regulations, how the municipalities have chosen to regulate industry use, and how courts in both New York and Pennsylvania have resolved these disputes. Finally, it will discuss implications for the future applications of land use controls as a means to exclude gas drilling both in the Marcellus and other gas-producing regions.

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Dealing with the Problem of Unpaid Interns and Nonprofit/Profit-Neutral Newsmagazines: A Legal Argument that Balances the Rights of America’s Hardworking Interns with the Needs of America’s Hardworking News Gatherers

41 Rutgers L. Rec. 1 (2014) | WestLaw | LexisNexis | PDF

This article addresses a topic that the published literature on the legal problems of unpaid internships has yet to fully deal with. The people of the United States have long relied on nonprofit and profit-neutral newsmagazines for both opinion journalism and traditional journalism. And as the newsmagazine industry continues to face economic challenges due to the effect that the Internet is having on the way Americans consume news products, one can expect newsmagazines that never make a profit to only increase in population. Consequently, the continued vitality of such publications is a matter of public concern. The proliferation of unpaid intern workers, however, is also a matter of grave public concern. Most of the time, unpaid intern workers are operating under agreements to labor that violate both principles of social justice and the Fair Labor Standards Act of 1938. These interns are being exploited by their employers, who should be paying the interns the minimum wage. And yet, litigation to correct this injustice, and force employers to pay interns the minimum wage, may have an unfortunate side-effect. If nonprofit and profit-neutral newsmagazines had to pay their interns, who are volunteering their services for the good of the ideological and intellectual mission of the newsmagazine, then that cost could bring those newsmagazines just one step closer to going out of business. Fortunately, federal law in this area provides us with a pathway whereby interns who are working at companies that seriously plan to make a profit can be paid the minimum wage, while interns who are volunteering their services to nonprofit and profit-neutral newsmagazines can continue to do so without violating the law. The detailed description of this legal pathway is the main purpose of this article.

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A Dog in the Fight – U.S. v. Hargrove and Why Americans Should Care about Sentencing Guidelines in Animal Cruelty Cases

40 Rutgers L. Rec. 249 (2013) | WestLaw | LexisNexis | PDF

On December 10, 2007, Michael Vick pleaded guilty to 1 count of violating the Animal Fighting Venture Prohibition for “knowingly sponsoring and exhibiting an animal in an animal fighting venture.” In April 2007, federal, state and local authorities began the “The Bad Newz Kennels dogfighting investigation,” which revealed a systematic and pervasive dogfighting operation. Led by Vick and several other individuals (commonly referred to as the “Bad Newz Kennel” business enterprise), the dogfighting operation resulted in the deaths of 6 to 8 dogs. After they refused to fight, some of the dogs were hanged or drowned.

Additionally, more than 50 American Pit Bull Terriers rescued from the Bad Newz Kennels displayed signs of injuries. Law enforcement officials also found evidence that Vick and others tortured some of the dogs during the Bad Newz Kennels operation. Ultimately, Vick was charged with numerous violations of 7 U.S.C. § 2156(a)(1), and after pleading guilty was sentenced to 23 months imprisonment.

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Justiciability of a Non-Merit Condition Precedent to Arbitration

40 Rutgers L. Rec. 216 (2013) | WestLaw | LexisNexis | PDF

On January 17, 2012, the United States Court of Appeals for the District of Columbia Circuit vacated an arbitration tribunal’s award of damages to BG Group in the amount of $185,285,485.85.  BG Group responded by filing a petition for a writ of certiorari (Petition) and claimed, among other things, that the D.C. Circuit violated Supreme Court precedent and joined the Eleventh Circuit in a troubling split with the First, Sixth, Seventh, and Eighth Circuits.  There is an underlying dispute between BG Group and Argentina that is based upon preconditions to arbitration in a bilateral investment treaty between the United Kingdom and Argentina (Treaty).  The D.C. Circuit held that it was for a court—not an arbitrator—to decide whether BG Group violated the Treaty’s condition that an investor file suit in an Argentine court and wait eighteen months prior to arbitration.  The Petition asks the Supreme Court to consider its argument that an arbitrator—not a court—has the authority to decide whether BG Group satisfied the eighteen-month condition precedent to arbitration. This Article argues that the D.C. Circuit was correct to hold that it is for the court to decide whether BG Group satisfied the eighteen-month precondition. Part I explains the facts underlying the dispute between BG Group and Argentina. The first section also articulates the importance of international arbitration for foreign investments and the potential impact on international arbitration if the Supreme Court either denies the Petition or upholds the D.C. Circuit’s opinion. Part II discusses the history of the Federal Arbitration Act in Supreme Court opinions related to the D.C. Circuit decision. Part III addresses the Petition’s claim that there is a circuit split and finds that no such split exists through an assessment of those appellate decisions.

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Trouble at Home

40 Rutgers L. Rec. 188 (2013) | WestLaw | LexisNexis | PDF

In her Jacob Prize award-winning book, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy (2009), Professor Jeannie Suk mounts a sustained argument to the effect that under the guise of protecting women, coercive state power has infiltrated the hitherto sacrosanct domain of the home. Unfortunately, Professor Suk makes a number of errors in her book. She misreports cases, misrepresents statutes, and misinterprets law. The purpose of this paper is to address and analyze these errors in the area of domestic violence.

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Regulating Student Cyberbullying

40 Rutgers L. Rec. 153 (2013) | WestLaw | LexisNexis | PDF

Cyberbullying is at the forefront of the public conscience. Americans read about it, blog
about it, and mourn about it. It is bad for the cyberbullies and those being victimized; it is bad for
the families and friends of the bully and the victim; and it is bad for K-12 schools, that as of now are
left with little to no recourse against cyberbullies. Until the Supreme Court of the United States
hears a student cyberbullying case and differentiates cyberbullying from forms of protected
expression, as it did with traditional bullying and hate speech, cyberbullied students will remain
defenseless. Thus, cyberbullying is a problem that prompts an important question: to what extent
does the constitutional framework allow schools to address cyberbullying through censorship?

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Seventh Circuit Court of Appeals in Sunbeam Products, Inc. v. Chicago American Mfg., LLC Sets a New Course for Trademark License Rejection in Bankruptcy

40 Rutgers L. Rec. 118 (2013) | WestLaw | LexisNexis | PDF

On July 9, 2012, the Seventh Circuit Court of Appeals concluded that Chicago American Manufacturing, LLC possessed a continuing right to use trademarks owned by Lakewood Engineering and Manufacturing Co., a Chapter 7 debtor. The ruling created a circuit split with the Fourth Circuit, which ruled in Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc. that when an intellectual property licensing agreement is rejected in bankruptcy, the licensee loses the ability to use any licensed trademarks. This Comment argues that the Seventh Circuit’s approach better accomplishes the goals of bankruptcy law by preventing parties from abusing the contract rejection power of §365 of the Bankruptcy Code as a de facto avoidance power. The Seventh Circuit approach thus preserves the state-law contract rights of debtors and creditors, as intended by Congress and recommended by bankruptcy scholars.

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