ACA on Life Support: The Affordable Care Act, Medicaid Expansion, and Reckoning with Sebelius During the COVID-19 Pandemic

49 Rutgers L. Rec. 81 (2021) | WestLaw | LexisNexis | PDF

In an effort to address the cost of healthcare and the number of uninsured people in the United States, Congress passed the Patient Protection and Affordable Care Act, commonly called the “Affordable Care Act,” “ACA,” or “Obamacare,” in 2010. Signed into law by President Barack Obama, the Act required states to expand Medicaid coverage to various segments of the population not previously covered by the program, or states may lose all of their federal Medicaid funding. Additionally, a provision known as the “individual mandate” required those uninsured by the government or their employer to either pay a small penalty to the Internal Revenue Service or purchase private insurance. In 2012, a group of 26 states and other parties sued Health and Human Services Secretary, Kathleen Sebelius, and related parties regarding the constitutionality of the statute. In a 5-4 decision, the U.S. Supreme Court in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), found the individual mandate constitutional under Congress’s power to tax but found the Medicaid expansion provision to be unconstitutionally coercive under Congress’s spending power.

This note will seek to further contextualize Justice Ginsburg’s dissent, which argued the Medicaid expansion provision should not have been struck down by the majority, as the states are merely expecting Medicaid funds from Congress, but they are not at all entitled to them if they do not meet the criteria set by Congress, in the present moment. This note will explore the COVID-19 pandemic and the role that the states and the federal government ought to play in ensuring the general welfare of the nation is protected, primarily by either expanding Medicaid or otherwise ensuring free healthcare in response to the greatest economic and health crisis in over a century. To achieve this, the note will revisit the ACA and the Supreme Court’s spending clause analysis given the changing dimensions of the healthcare debate, with employer-sponsored insurance enrollment declining (along with overall employment) and government insurance and subsidies for COVID-19 testing dominating the market, and analyze, through a policy-oriented lens, whether states ought to take the lead in closing the so-called “coverage gap,” or whether Congress should have the power to expand insurance in a cooperative federalism model, especially in a deadly pandemic emergency which was not at all contemplated by the Court in Sebelius.

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The Future of LGBTQ+ Equality After Obergefell and Bostock

49 Rutgers L. Rec. 60 (2021) | WestLaw | LexisNexis | PDF

The Supreme Court’s decisions in Obergefell v. Hodges and Bostock v. Clayton County are justly regarded as landmark decisions in American jurisprudence and, more importantly, significant milestones in the history of lesbian, gay, bisexual, transgender, and queer (“LGBTQ+”) Americans. However, these important decisions are not the end of the movement for LGBTQ+ equality, and many more obstacles remain for the LGBTQ+ community. 

This article will begin with an overview of the legal history of sexual orientation and gender identity in the United States; the recognition of and enactment of constitutional and civil rights by courts and legislatures; and the discrimination performed by each. The next part is an overview of the future of sexual orientation and gender identity law, including the Equality Act and other legal issues. 

The thesis of this article is to state the urgent need for passage of the Equality Act and the introduction and passage of other legal devices that will relieve the undue burdens still faced by ordinary LGBTQ+ Americans after the Supreme Court’s decisions in Obergefell v. Hodges and Bostock v. Clayton County.

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The Nostalgia of Eternity: Interstate Compacts, Time, and Mortality

49 Rutgers L. Rec. 25 (2021) | WestLaw | LexisNexis | PDF

“Although the idea of permanence appears to be traditionally associated with legislation, law is inevitably constrained by time. Laws are doomed to face a destiny like the mythological character Kronos: they overthrow existing laws, have a period to reign, but are destined to be overthrown again by the next generation. Like Kronos, legislators often experience the ‘nostalgia of eternity,’ refusing their mortality as well as that of their rules.”

An interstate compact designed to promote uniformity in state taxation would appear to have little in common with an interstate compact designed to fight corruption in the Port of New York. Yet recent cases concerning these two very different subjects illustrate that interstate compacts can experience similar aging issues that can create an existential crisis decades after their formation. Who could have anticipated when the New York Waterfront Commission Compact was adopted in 1953 that the proliferation of containerized shipping would cause New Jersey, one of the Compact’s two parties, to attempt to withdraw from the Compact in 2018, leading to litigation over its right to do so? And who would have predicted when the Multistate Tax Compact was formed in 1967 that the adoption of an income tax apportionment formula by a non-party state would, three decades later, cause the Compact states to abandon a different apportionment formula that had been integral to the Compact from its inception, leading to multiple lawsuits challenging their authority to do so?

It should not be surprising that the passage of time can cause even the most well-reasoned and carefully written compact to become destabilized in a much different economic or legal environment than existed when it was written. When that occurs, it isn’t easy to “fix” the compact to address the problem. Interstate compacts are often considered contracts. If they were private contracts, the parties to the contract would always be free to modify it. But because interstate compacts are also statutes, modifying the compact is no easy task. First, the compact must provide a method to modify it. And then the legislature in each state would need to enact a statute that makes the change. The situation is even more complicated if the compact is a congressionally approved compact like the Waterfront Compact. Such compacts constitute federal law. Congress would usually need to approve any change to such a compact. If the compact provides no mechanism to resolve the problem, the compact may face an existential crisis – states may determine the only solution is to withdraw. This is precisely what happened with the Waterfront Compact and the Multistate Tax Compact. This Article explores the derivation, causes and – at least in the case of the Multistate Tax Compact – the resolution of such a crisis.

While it is not possible to anticipate all the circumstances that could adversely affect a compact’s continuing viability, it is possible to include certain tools in the compact that can help the states more nimbly adapt to those changed circumstances than through the vagaries of litigation. The Article will explore some of those tools.

Part II of the Article will recount a brief history of the New York Waterfront Commission Compact and the Multistate Tax Compact. Part III will describe the developments that led to the litigation that threatened each Compact’s continuing viability. Part IV will discuss the recent litigation that threatened both compacts and the deficiencies in each compact that made litigation likely. Part V will suggest some legal tools that future compact drafters might consider to reduce the likelihood of such destabilizing litigation occurring. Part VI will offer a brief conclusion.


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The Need for Uniform Exemptions in State Anti-SLAPP Statutes

49 Rutgers L. Rec. 1 (2021) | WestLaw | LexisNexis | PDF

Strategic lawsuits against public participation (SLAPPs) are baseless lawsuits that weaponize the judicial system to chill critics’ exercise of free speech on matters of significant public concern by burdening them with pointless litigation and escalating legal costs. Many states have rightly recognized the danger of SLAPP suits to citizens’ First Amendment rights of free speech and expression and have responded by passing laws, called anti-SLAPP statutes, that allow for the swift dismissal of these frivolous suits. These statutes protect citizens’ right to free speech in any type of forum on any issue of public importance by providing mechanisms for expedited dismissals of SLAPP suits for defendants and imposing mandatory penalties of attorney fees or litigation costs for plaintiffs who cannot meet the burden of proving their claims have a valid legal foundation. 

But while some state anti-SLAPP statutes are intended to protect First Amendment interests, they can paradoxically have the effect of preventing people who need to turn to the courts to vindicate legal interests from doing so. Some of the anti-SLAPP statutes’ broad definitions of protected activity may inadvertently discourage plaintiffs with meritorious claims from utilizing the courts, as the scope of protected activities appears to leave little room for plaintiffs to raise a valid complaint and lends the statute to misuse by opportunistic defendants. For example, in Hunter v. CBS Broadcasting, Inc., the defendants eluded a legitimate employment discrimination claim by exploiting the California anti-SLAPP statute’s broad requirement that protected activity must be of interest to the public. In response to Hunter’s contention that CBS had not hired him for a weatherman position because he was older and a male, CBS was able to misuse the anti-SLAPP statute to argue that a television station’s selection of weather news anchors qualified as an issue of public interest because weather reporting itself was an issue of public interest. The California appellate court accepted this interpretation of the statute to hold that CBS’ activity was protected by the First Amendment and remanded the case for the trial court to consider whether Hunter had demonstrated a reasonable probability of prevailing on the merits of his claims.

The Hunter case is not the only instance of defendants misusing anti-SLAPP motions. Indeed, one California Supreme Court decision observed that the anti-SLAPP motion would soon be used as a cure-all to circumvent legitimate cases in which the motion was never intended to apply. Thus, this note compares various state anti-SLAPP statutes to analyze how successfully they protect defendants from frivolous lawsuits and the extent to which they unwittingly prevent plaintiffs with legitimate civil claims from pursuing redress. Drawing on this analysis, the note proposes a uniform set of exemptions that seeks to protect financially insecure litigants who are most vulnerable to SLAPP suits and who do not have the resources to defend themselves from baseless claims. 


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The Right to Attentional Privacy

Introduction

48 Rutgers L. Rec. 206 (2021) | WestLaw | LexisNexis | PDF

What does a judge presiding over her court, a researcher working in an astronomical observatory[1], and a monk observing monastic silence have in common?  The answer is that they are all members of a small group of adults who go about their day without being continuously distracted by a smartphone, although admittedly on account of varied individual commitments and institutional constraints.  Unlike this unusual group, most of us spend our day in a continuous state of technology induced distraction. Claudia Roda notes, “the advent of information and communication technologies has dramatically shifted the balance between the availability of information and the ability of humans to process information.”[2]  We have migrated, albeit not seamlessly, from an age where information was scarce to an age where attention is scarce.[3]  Scarcity of attention has led to a slew of warnings from both experts and regulators about the addictive and distractive nature of technologies.[4]

Against the backdrop of this growing recognition of the importance of human attention and technology’s adverse impact on it, this paper seeks to formulate an ethical response to the challenges posed by the rise of the attention economy.  In this paper, I highlight the vital role played by attention in preserving individual autonomy.  I seek to protect this scarce human resource through a right to attentional privacy.  Privacy has been traditionally understood in informational context.  This paper’s chief contribution lies in articulation of a dual conception of right to attentional privacy, which keeps intrusive, immersive, persuasive, and addictive technologies at bay.  I begin by defining attention and then provide a brief account of previous attempts at formulating a freedom or right to attention.  I then highlight the techno-commercial practices adopted by Big Tech firms to harvest attention by configuring an individual’s choice environment through hypernudges[5] and deploying supernormal stimuli[6] to divert an individual’s attention towards artificial target of advertisements.[7].  I analyze the various forms of intrusive and addictive technologies before formulating a dual conception of positive and negative right to attentional privacy.


[1] Wayne Drash and Evelio Contreras, America’s Quietest Town where Cell Phones are Banned, CNN  (2015), https://edition.cnn.com/interactive/2015/07/us/quiet-town-american-story/Dan Levin, No Cell Signal, No Wi-Fi, No Problem. Growing Up Inside America’s ‘Quiet Zone’ N.Y. Times (Mar. 6, 2020), https://www.nytimes.com/2020/03/06/us/green-bank-west-virginia-quiet-zone.html.

[2] Claudia Roda, Introduction, in Human Attention in Digital Environments 1, 1 (Claudia Roda ed., 2011).

[3] See Michael H. Goldhaber, The Attention Economy and the Net, First Monday (Apr. 1997), https://firstmonday.org/ojs/index.php/fm/article/view/519/440/.

[4] See Bernadka Dubicka & Louise Theodosiou, Royal College of Psychiatrists, CR225: Technology Use and the Mental Health of Children and Young People (2020); Digital, Culture, Media & Sport Committee, House of Commons, Immersive and addictive technologies (2019).

[5] Karen Yeung, ‘Hypernudge’: Big Data as a mode of regulation by design, 20 (1) Information, Communication & Society 118, 122 (2017).

[6] Niko Tinbergen, The Herring Gull’s World: A Study of the Social Behavior of Birds 206-208 (Revised Ed. 1960).

[7] Yogi Hale Hendlin, I Am a Fake Loop: The Effects of Advertising-Based Artificial Selection, 12 Biosemiotics 131, 145 (2019).


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New York’s Green Light Law:

How Will The Law Stand Up Against Constitutionality Challenges?

48 Rutgers L. Rec. 191 (2021) | WestLaw | LexisNexis | PDF
On June 17, 2019, New York Governor Andrew M. Cuomo signed the “Driver’s License Access and Privacy Act” (“DPLA”), more commonly known as the “Green Light Law,” into law. The Green Light Law modifies New York’s vehicle and traffic laws by, inter alia, granting driver’s licenses and learner’s permits regardless of proof of immigration status. When New York passed the Green Light Law in 2019, it became the fifteenth United States state or territory to pass a law granting driver’s licenses and learner’s permits without considering the applicant’s immigration status.

To apply for a driver’s license or learner’s permit, applicants must fill out an application and return the application to their county department of motor vehicles office. Then the applicant must pass a written exam based on the New York State driver’s manual, which is available in a number of different languages. If the applicant applies for a learner’s permit and it is then issued, the applicant must still follow procedure by only driving with a supervising, licensed driver over the age of twenty one in the passenger seat, take a pre-licensing driving course and pass a road test in order to receive a license to drive alone.

The provisions of the law are currently being challenged in federal court by Michael Kearns, Erie County Clerk, and Frank J. Merola, Rensselaer County Clerk, with very similar arguments. This note seeks to analyze the federal challenges to the Green Light Law raised by the pending lawsuit brought by Kearns and the existing legal framework in place to resolve such challenges.
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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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