The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means

42 Rutgers L. Rec. 109 (2015) | WestLaw | LexisNexis | PDF

In Burwell v. Hobby Lobby Stores, Inc., the United States Supreme Court held that the Religious Freedom Restoration Act of 1993 (RFRA) does not require closely-held corporations’ employer-sponsored medical plans to provide forms of contraception that shareholders of such corporations object to on religious grounds. The question now raised is how the President, Congress, and the departments of Health and Human Services (HHS), Treasury and Labor, ought to respond to the Hobby Lobby decision.

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IP Piracy & Developing Nations: A Recipe for Terrorism Funding

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

When terrorists struck the United States on September 11, 2011, no one thought that intellectual property (IP) piracy funded the attack. Even with the 2014 Sony hack by North Korea, many people thought intellectual property (IP) piracy at that level was not possible. On the surface, intellectual property (IP) piracy and terrorism appear to be two distant topics. However, these topics are closely connected, as terrorist groups, especially those in developing nations, thrive on IP piracy allowing for the successful funding of terrorist opportunities. Terrorist groups gravitate towards IP piracy for funding because detection of IP piracy is easily evaded and developing nations do not thoroughly understand it. As a result, IP piracy presents a distinct global dilemma.

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My Body Is a Sacred “Garment” – Does the First Amendment Creative Expression Protection Shield Clothing Designers Who Work Naked?

42 Rutgers L. Rec. 82 (2015) | WestLaw | LexisNexis | PDF

A Warner Brothers employee, Ms. Lyle, sued the writers of the TV program, Friends, for sexual harassment because the writers used sexually explicit coarse and vulgar language during their script writing sessions for the show. In the Supreme Court of California’s majority opinion regarding the suit, Lyle v. Warner Brothers Television Productions, the majority held, among other things, that the plaintiff’s sexual harassment claims were not supported by the facts because the discussions of the Friends writers were not “aimed at Lyle or other female employees” or “severe or pervasive” enough to constitute sexual harassment.

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Taking on Patent Trolls: The Noerr-Pennington Doctrine’s Extension to Pre-Lawsuit Demand Letters and its Sham Litigation Exception

42 Rutgers L. Rec. 229 (2015) | WestLaw | LexisNexis | PDF

While patentees have “the right to exclude others from making, using, offering for sale, or selling [their] invention[s],” there is no obligation to manufacture or commercialize it. One of the most famous patents for a bacterium that was capable of breaking down crude oil in order to treat oil spills was never produced, despite its immense potential usefulness and an appeal to the U.S. Supreme Court to get the patent approved. There are a number of reasons why a patentee may never end up commercializing his or her invention. For instance, “a nonmanufacturing patentee may lack the expertise or resources to produce a patented product, prefer to commit itself to further innovation, or otherwise have legitimate reasons for its behavior.” Chakrabarty, the inventor of the renowned oil-eating bacterium, likely never put his famous invention to public use because of the unknown environmental consequences of dumping the bacteria into water supplies. However, a patentee may not commercialize his product for nefarious reasons, such as using patents “as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent.”

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#FiredforFacebook: The Case for Greater Management Discretion in Discipline or Discharge for Social Media Activity

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

With the turn of the century, people in the United States and abroad experienced a rapid evolution in the way information was disseminated. Facebook, a social networking service, was launched in 2004. Facebook’s founders set their website apart from preceding social media sites, in part, by creating the “Facebook status:” “an update feature which allows users to discuss their thoughts, whereabouts, or important information with their friends” as well as the “like” feature, which Facebook defines as, “an easy way to let someone know that you enjoy [something], without leaving a comment.” Similar to a comment, the fact that you “liked” it is noted beneath the post.

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Missing the Mark: Why the CRA and NMTC have Failed to Develop the Inner City

41 Rutgers L. Rec. 177 (2014) | WestLaw | LexisNexis | PDF

On January 19, 2012, the Dwight neighborhood, a majority African-American part of New Haven, Connecticut, convened to discuss the construction of a fueling station on an empty lot in their neighborhood. The meeting had been called by the prospective landlord at the behest of the City of New Haven. The fueling station would be operated by a large northeastern corporation: Stop and Shop. An objective observer not equipped with more details would fairly assume that the meeting would be fraught with opposition and accusations that a large corporation was taking advantage of a politically weak community. This, however, is a story about a community taking the initiative and controlling its own development.

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Quantity vs. Quality: The Misdirected War on Immigration and the Sweeping Effects of the Tier III Terrorist Organization

41 Rutgers L. Rec. 167 (2014) | WestLaw | LexisNexis | PDF

Present day terrorism has created an unprecedented amount of unique challenges to international peace and security. Many overzealous governments have taken a quantity over quality approach in passing counterterrorism laws, leaving their countries lost in a web of misdirected policies. National counterterrorism objectives have had an exceptional impact on the immigration policies of the United States, particularly following the terrorist attacks of September 11th. The 9/11 Commission Report concluded that several of the hijackers could have been potentially excluded or removed were it not for a number of deficiencies in the immigration system. Immigration reform was imperative, but the slew of legislative responses to September 11th was unprecedented and excessive. One of the more notorious pieces of legislation resulting from September 11th was the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, more commonly known as the Patriot Act. Not only did the Patriot Act infringe on Americans’ fundamental liberties, but it also imposed excessive immigration reform. This paper intends to explore the multitude of shortcomings with the Patriot Act’s creation of the Tier III terrorist organization, a provision that has wasted copious amounts of time and resources by investigating individuals that pose no threat to the United States. Time and resources better spent enforcing laws denying relief to individuals that actually pose a threat to the United States.

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Overcoming Barriers to Delivering An Effective Legal Education: Repairing A Flawed Instructional Model

41 Rutgers L. Rec. 154 (2014) | WestLaw | LexisNexis | PDF

As the destructive effects of the Great Recession on the American economy slowly abate, economic problems continue to roil law schools. Perhaps the clearest manifestation that the law school business model is at a crossroads is the significant decline in overall student applications and enrollment. Among the more sobering figures is a 36% reduction in the size of the entering class of 2013 as compared with that of 2010, according to data from the Law School Admissions Council. In 2014 there were 65,119 applicants to law school, 14% lower than the prior year. The 350 largest U.S. law firms grew by 1.7% in 2011 and 1.1% in 2012, relatively low rates compared with the past 20 years. In addition, around 40% percent of those firms shrank the size of their staff in 2013 as compared to the prior year.

In a market where the supply for legal services well exceeds demand, law firms are seeking competitive advantages through mergers that tend to reduce staff and are seeking other ways to lower costs and operate more efficiently. Increased competition and a progressive shift of control in the power over strategic litigation decisions from outside firms to general counsel have been hallmarks of the post-recessionary environment, leading a Georgetown University study to conclude that the legal industry can expect to see more “sluggish demand growth, persistent challenges of low productivity, ongoing client pushback on rate increases, and a continuing struggle to maintain discipline on expenses.”

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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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