Telling the Story: Theme and Rhetoric in Asylum Cases

46 Rutgers L. Rec. 196 (2019) | WestLaw | LexisNexis | PDF

Rhetorical strategies, themes, and interpretive framing allow the speaker to control the narrative when presenting oral testimony in asylum cases. These formal elements help structure traumatic events and memories into a coherent story that will engage the judge and enable the court to see the situation from the asylum seeker’s worldview. In the context of asylum applications, even the most deserving claimant may be unable to deliver their testimony in a coherent or compelling manner without the assistance of an effective advocate, due to the severe trauma that he or she experienced – and the trauma that he or she must once again undergo by having to retell and relive these experiences in the courtroom. It is crucial, therefore, that immigration lawyers acting in these proceedings consciously utilize these rhetorical techniques in order to facilitate the delivery by their clients of narratives that are credible, humanizing, and persuasive to the court. It is equally important that the lawyers representing the Department of Homeland Security be sensitized in this area so they are able to separate out any genuine issues of material fact and law critical to a fair analyzation of the asylum claim.

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The Government’s Power to Block on Twitter: A First Amendment Analysis

46 Rutgers L. Rec. 161 (2019) | WestLaw | LexisNexis | PDF

Today, the vast exchange of political ideas occurs on forums like Twitter and Facebook. When scrolling on social media, the public has become “entitled to believe [] that they are viewing something of a representative cross-section” between the public’s reactions and the government’s reaction to their pronouncements. A government official’s social media account is used as a means to communicate with the public, thereby creating an appearance of a public forum. Electronic communication of this nature is so popular because it is “inexpensive,” “fast,” and “reaches a wide audience.” However, this new way to communicate comes with increased constitutional responsibilities.

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Regatta Revisited: The Race for Equity in Virtual Sports

46 Rutgers L. Rec. 151 (2019) | WestLaw | LexisNexis | PDF

In today’s internet driven world, virtual sports tournaments where competitors from across the globe use exercise machines connected via cyber technology are becoming increasingly popular. These competitions, in which athletes can participate from afar, have the potential to increase inclusion for athletes with disabilities. However, many virtual athletic competitions currently fall short of the mandate that organizers accommodate and reward disabled athletes in ways comparable to nondisabled athletes. Specifically, disabled athletes are far too often not equitably categorized into competitive classifications according to their impairments and disabilities. This discriminatory practice affects notions of fairness for disabled athletes. This note is the first to shed light on the regulatory and legal aspects of virtual sport tournaments and aims to recommend policy to ensure equity in those competitions for disabled athletes. Almost thirty years have passed since Congress enacted the Americans with Disabilities Act (ADA) which recognizes that “physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society.” The Paralympic Movement is also very clear about the importance of comparable opportunities for disabled and nondisabled athletes as essential for the inclusion of the former and for reducing disability stigma. We argue that when competition and award categories are delineated across nondisabled sports, it is imperative that opportunities are mirrored for disabled athletes.

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No Harm, No Foul? How Companies Can Limit Their Liability Under Federal Consumer Protection Statutes After Spokeo

46 Rutgers L. Rec. 125 (2019) | WestLaw | LexisNexis | PDF

Numerous companies have been hit with multi-million-dollar judgments or settled with consumers based on statutory damages from consumer protection statutes alone, which can easily derail a company’s financial stability. Given that some courts have allowed these “no-harm” injuries to meet standing requirements, companies will likely turn to legal and business strategies to help reduce their liability risk under these statutes. This Note is not premised on the fact that companies should not have any liability under these statutes, but rather that the pendulum has swung too far leaving companies in an unpredictable environment where one mistake can disrupt a company’s financial stability. Section I of this Note will analyze the most recent, relevant case law on standing when the alleged harm is based on a federal statute. Section II will focus on critical portions of the most frequently cited consumer protection statutes in “no-harm” cases. In Section III, this Note will discuss the business and legal solutions companies can use to help reduce liability in the scope of consumer protection statutes given the uncertainty in the courts following Spokeo. Finally, Section IV will address some of the initiatives introduced by the Federal Communications Commission (“FCC”) and FTC as well as those supported by pro-business groups which could help companies to more easily comply with the consumer protection statutes.

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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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