The Wrongheadedess of the POMS Pooled Trust Rules and an Unfortunate but Recently Noted Chinese Parallel

43 Rutgers L. Rec. 117 (2016) | WestLaw | LexisNexis | PDF

Supplemental needs trusts of the pooled trust variety have offered important dignity-enhancing protections for individuals with disabilities for several decades. A pooled trust, properly structured according to Congressional requirements, allows the wealth of an individual with disabilities to be overseen by an independent third party trustee, supplementing without displacing means-tested government programs like Medicaid and Supplemental Security Income. Beginning in 2012, the Social Security Administration imposed new burdensome requirements on pooled trusts through its informal POMS manual. Those new requirements have intentionally or unintentionally eliminated as a practical matter the availability of pooled trusts in many states. This unfortunate result can be paralleled with recent observations about the shortcomings of supplemental needs trust legislation and regulations in the People’s Republic of China.

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In The Shadow Of The Supremacy Clause: How A “Logical-Contradiction” Test Can Resolve The Debate Over Legislative History In FIFRA Preemption

43 Rutgers L. Rec. 184 (2016) | WestLaw | LexisNexis | PDF

In this Essay, I argue that the existing approach to preemption (especially in the environmental context) is flawed because it invites the kind of statutory interpretation that relies heavily on the use of legislative history. Of course, legislative history is not always an improper tool of interpretation. But when it is used, for example, to glean congressional intent to preempt state law, the costs to sound interpretation and institutional credibility are too high. To counter that risk, I propose that the Court replace its current preemption analysis for Professor Caleb Nelson’s more versatile “logical contradiction” test (which in any event is more textually faithful to the Supremacy Clause). Relevant to my thesis, Professor Nelson’s approach would stymie the use of legislative history in preemption cases, and would motivate courts to engage in a fair, textual examination of the federal and state laws that are at odds with each other.

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Halliburton v. Erica John P. Fund, Inc., Fraud-on- the-Market Presumption of Reliance Established; What Now?

43 Rutgers L. Rec. 148 (2016) | WestLaw | LexisNexis | PDF

About 25 years ago, the Supreme Court, through its endorsement of the fraud-on-the-market (FOTM) theory in Basic, Inc. v. Levinson, paved the way for modern securities-fraud litigation as we know it. That establishment, which effectively represents the principal way through which shareholders can sue companies for securities fraud, however, was on the brink of destruction in the recent Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II) case. Despite years of mounting and, seemingly, never-ending criticism, academic, popular, and otherwise, to the underpinnings of Basic’s FOTM theory, the Halliburton II Court adhered to its precedent. Criticism of FOTM should now be a moot point. Given the historical background of the securities laws, and the current tension between the increase in both the federal enforcement of those laws and corporate compliance efforts, the Supreme Court’s decision should not have been surprising.

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Stand Out From the Crowd: Making Your Voice Heard in an Era of “Notice and Spam”

43 Rutgers L. Rec. 133 (2016) | WestLaw | LexisNexis | PDF

E-commenting, or commenting on administrative rules and notices on-line, has transformed the federal notice-and-comment practice. With a click of a button, citizens can easily share their thoughts on a proposed rule or notice. While the goal of increasing the opportunity for public participation is a worthy one, expanded public commenting has turned the notice-and-comment process into a “rulemaking arms race.” Agencies are now inundated with voluminous comments as public interest groups encourage members to submit boilerplate comments.

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On Ronald Coase as Political Economist and Ethicist

43 Rutgers L. Rec. 117 (2016) | WestLaw | LexisNexis | PDF

The present paper is devoted to a critical examination of two of the publications of Ronald Coase (1960, 1974). But, before I begin my criticism, I should like to put into some sort of context the tremendous contribution to our discipline made by this man.

So far, since the Nobel Prize in economics was inaugurated in 1969, almost four score winners have been thus anointed. Needless to say, Coase is amongst that number. Thus, if this were all there were to his acknowledged contribution, his reputation would be secure, and, presumably, for all time, or, for at least as long as there are people who appreciate economics.

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NLRB v. Noel Canning Exposes Judicial Incapacity: “Junior Varsity Politicians” Foul the President’s Textual Appointment Discretion

43 Rutgers L. Rec. 60 (2016) | WestLaw | LexisNexis | PDF

This Article is offered in tribute to civil rights legends Leon Higginbotham, Spottswood Robinson, and David Rabinovitz whose judicial recess appointments were invalidated by National Labor Relations Board v. Noel Canning. It also honors President Lyndon Johnson, who made the bold decision within just six weeks of inheriting the Oval Office, to force racial and religious integration of the federal judiciary by signing the recess commissions. The appointments, made in January 1964 during an eight day intercession recess of the 88th Senate, were President Johnson’s initial salvo in a hard-fought battle that resulted in historic advances in both civil rights and economic justice. The recess appointments were the earliest manifestation of LBJ’s political will and unparalleled political skill that would soon force the Civil Rights Act, the Voting Rights Act, the Economic Opportunity Act, Head Start, Medicare, and Medicaid. President Johnson’s January 1964 integration of the three district courts signaled the coming appointment of Thurgood Marshall first as U.S. Solicitor General, and then as the first African-American on the U.S. Supreme Court.

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NJ’s Involuntary Outpatient Commitment Law Poses Civil Liberties Issues for People with Mental Illness

43 Rutgers L. Rec. 33 (2016) | WestLaw | LexisNexis | PDF

New Jersey’s Involuntary Outpatient Commitment Law, enacted in 2009, grants New Jersey judges the authority to mandate mental health treatment for potentially dangerous people. In 2014, Governor Christie dedicated an additional $4.5 million to expand the program into all twenty-one counties. Previously, only six of the state’s counties – Burlington, Essex, Hudson, Ocean, Warren and Union – had offered the controversial program, which assigns patients to intensive case management to ensure that they have housing, are seeking employment, and are receiving necessary treatment. Patients who fail to comply and are deemed by their treatment team to be a danger to themselves, to property, or to others “in the foreseeable future” can be ordered by a judge to be committed into a psychiatric hospital until they are stable.

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When the Going Gets Tough, the Tough Get Going: The Case of Gang Recruits Seeking Asylum in the United States

43 Rutgers L. Rec. 1 (2015) | WestLaw | LexisNexis | PDF

More than 57,000 unaccompanied minors have crossed the United States border since January 2014. At risk youth flee gang violence in their home country. They come to the United States hoping that the government will consider resistance to joining gangs as grounds for asylum, and allow them to stay. For example, seventeen-year-old Ken is an undocumented immigrant from Honduras who has lived in the United States for two years but has recently been issued an order of deportation.

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“Yes, Rasta,” and the Tenuous Line Between Infringement and Fair Use

42 Rutgers L. Rec. 300 (2015) | WestLaw | LexisNexis | PDF

The copyright suit brought by French photographer Patrick Cariou against famous “appropriation artist” Richard Prince has concluded with a denial for certiorari, and a denial of clarity for those of us still uncertain about what makes for an adequate “fair use” defense. Several years into the litigation, and the public has yet to tire of this strange narrative leading to what could have been a significant moment in the history of the “fair use” doctrine. In the art world, “fair use” is an infamous affirmative defense to a claim of copyright infringement. The defense has been raised with varying degrees of success in cases with similar facts. The overwhelming majority of fair use defenses have been raised in California and New York, arguably the cultural and artistic epicenters of the east and west coasts of the United States.

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The Italian Welfare State in A Time of Crisis: A Focus on Italian Health Care Illustrating Differences and Similarities between Italy and the U.S.

42 Rutgers L. Rec. 277 (2015) | WestLaw | LexisNexis | PDF

After World War II, many European countries have tried to put into effect their own constitutions and as a result, their own welfare states. They invested and spent a significant amount of their national economic resources to guarantee social rights to all citizens, health care, retirement plans, and education. In order to guarantee the aforementioned rights, politicians decided to take on a huge amount of debt, regardless of the fact that sooner or later it would be difficult to control. On the other side of the world, the U.S. fears socialist programs. However, this did not exempt the U.S. from having one of the largest public debts in the world.
This article not only tries to explore the Italian welfare state by focusing attention on the Italian health care system, but also proposes interesting discussion points from a comparative perspective. On one side, Italy represents a classic socialist country. On the other, the U.S. is very capitalistic. The 2008 economic crisis imposed the need to reflect on the sustainability of the welfare state and its future development.

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