Reducing the National Debt: Why the Federal Reserve Bank Should Refuse Receipt of $4.26 Trillion in Bond Interest and Principal Payments from the U.S. Treasury and Government Sponsored Enterprises (GSEs)

44 Rutgers L. Rec. 118 (2017) | WestLaw | LexisNexis | PDF

The national debt of the United States stands at $19.7 trillion. Prospects are poor for federal tax revenues reaching a point where this debt can ever be repaid or successfully managed. Because of extended wars and the financial crisis of 2008, extraordinary measures were taken to fund governmental entities, inject liquidity into the economy, and drive down interest rates to stimulate the economy. The semi-independent Federal Reserve Bank (“the Fed”), operating as the central bank of the United States, purchased approximately $4.26 trillion of United States Treasury bonds and government sponsored enterprises (GSEs) obligations to help in this effort in what is known as “quantitative easing.” These securities were purchased in the private or secondary marketplace through primary dealers. The Fed did not pay for these Large Scale Asset Purchases (LSAPs) with paper money, but instead credited each bond seller’s bank “using newly created electronic funds.” The banks then added those funds to the bond sellers’ accounts, and these sellers elected to spend those funds or leave them in the bank. If the funds stayed in the banks, then the banks could increase lending, purchase more assets or build up reserves on deposit at the Fed.

More broadly, the Fed’s securities’ purchases increased the total amount of reserves that the banking system keeps at the Fed. The Federal Reserve Act provided for these indirect purchases of U.S. Treasury securities to implement monetary policy. However, the extent of these purchases after 2008 was unprecedented. The Fed’s balance sheet has exponentially expanded, leaving the Fed the owner of a ladder of bonds of differing maturities at no cost. To date, the Federal Reserve has been returning interest it earns on these securities to the Department of Treasury, thus allowing the federal government to earn interest on its own deficit generating bonds. Also, as payment of principal on these bonds becomes due, the Federal Reserve has up until now taken this money and rolled it over into more treasury obligations. At a future date, this practice will stop, and the Fed will either sell these bonds back to private parties to drain excess liquidity from the economy or force the U.S Treasury to repay the principal on these bonds to the Fed.

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A New Calculus for the Measure of Mercy: Does the New Jersey Bail Reform Affect the Immigration Court Bond Hearings?

44 Rutgers L. Rec. 106 (2017) | WestLaw | LexisNexis | PDF

The short answer is no, the New Jersey Bail Reform will not directly affect how the immigration courts determine immigration bonds. However, while the state criminal system is wholly distinct from the federal immigration system, there are increasing intersections of state law having unintended consequences in immigration proceedings. Under the Supremacy Clause of the US Constitution, federal law is the “Supreme Law of the Land,” and states have no authority to regulate immigration enforcement. That said, there are a number of similar rationales between the new state bail reform and the existing bond determination criteria in the immigration court. This article outlines those similarities as well as the differences between the two. It is also important to note from a practical point of view that New Jersey bail reform has no impact on immigration detainers. An immigration detainer is the process by which Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security (DHS) may detain a non-citizen without a warrant, but only if ICE has “reason to believe” that the non-citizen “is likely to escape before a warrant can be obtained for his arrest.”

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Romeo and Juliet: Tragedy in the Information Age

44 Rutgers L. Rec. 73 (2017) | WestLaw | LexisNexis | PDF

Today’s youngest generation, known colloquially as “Generation Z,” has never known a life without technology. While demographers might disagree on when this generation actually began, marketers and trend forecasters characterize this group as those who were born during the fifteen year span from 1996 through 2011. Since the first generation of iPhones hit the market in 2007, “Generation Z is the first generation to be raised in the era of smartphones,” and many from this generation “do not remember a time before social media.” If Generation Y has been described as being “constantly plugged into technology,” then the next generation, where the average age for cell phone usage is six years old, is only more comfortable in the digital world. The newer generations of smartphones have the capability to take, send, and receive photographs, and open up a new realm of dangers for unwary users. Given that these devices are taken for granted, does Generation Z actually appreciate the risks associated with their picture taking and information sharing? The unfortunate answer is very little, if at all.

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The Emperor’s New Law Library: The Decline and Fall of Academic Law Libraries or a New Chapter?

44 Rutgers L. Rec. 46 (2016) | WestLaw | LexisNexis | PDF

This polemical Essay explores the mutating nature of academic law libraries and the roles of their librarians and directors. It addresses several representative arguments debating the viability of academic law libraries, and, in the end, concludes that they will survive, albeit in diminished form and status. Law libraries will continue to provide an impressive array of vital services, including formal Legal Research instruction, establishing Legal Research Clinics and other clinical support, and even generating a revenue stream via grantsmanship and vibrant connection to the alumni and donor bases. It is possible to create models of sustainability for academic law libraries if innovation is permitted to prevail. While libraries and librarians, then, will survive (if not thrive), the prognosis for academic Law Library Directors as we now know them is somewhat more dire. Economic crises and changing law school administration can lead to significant erosion of law library directors’ authority and status. The Author argues that this is a dangerous development, but it may well represent the fate of academic law libraries Much is contingent upon the ABA, which is also subject to market forces akin to those shaping law schools. Ultimately, in this opinion piece predicated upon her extensive experience in law libraries, the Author proposes a new form of consistent ABA oversight of law libraries in conjunction with the AALL (American Association of Law Libraries) leadership serving in an ombudsman capacity, so that academic law libraries might yet evolve in a manner commensurate with their potential to advance legal education.

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Don’t Let Them Fool Ya: Examining the SEC’s Rules on Crowdfunding and Their Effect on Small Business Growth

44 Rutgers L. Rec. 21 (2016) | WestLaw | LexisNexis | PDF

Over the past decade Crowdfunding has become increasingly popular within the U.S. Crowdfunding originally was used as a way for performing artists to raise funds for their projects. Most recently, it has been used to fund projects outside of the entertainment industry. Businesses and local governments have been using this method to raise capital. Crowdfunding websites such as Indiegogo, Kickstarter, and Crowdfunder have made it easier for individuals, particularly entrepreneurs, to access capital.

The JOBS Act amended the Securities Act of 1933, and mandated that the Securities and Exchange Commission (“SEC”) promulgate rules that govern the eligibility and use of Crowdfunding. The SEC in 2011 and 2012 released proposed rules that would govern the Crowdfunding exemption, which eases regulation for small businesses. Critics have said that the JOBS Act and the SEC rules are both too liberal and too restrictive.

This note will discuss the SEC rules that are set to go into effect in May of 2016, and their potential effects on small business growth and investor protection. In particular, this note will highlight the potential conflict that will arise between the goal of the JOBS Act and the implementation of the SEC rules governing crowdfunding. This article will suggest that the SEC rules will only hinder the growth of small businesses instead of helping them raise capital.

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The Benefits of Alternative Dispute Resolution for International Commercial and Intellectual Property Disputes

44 Rutgers L. Rec. 1 (2016) | WestLaw | LexisNexis | PDF

As global commerce continues to expand, the volume of cross-border disputes regarding commercial and intellectual property disputes has increased substantially. Contract, business and intellectual property disputes are protected by laws which might vary from region to region. The question naturally arises as to the proper forum to handle international litigation between parties located in different countries and across cultural divides. Alternative Dispute Resolution (“ADR”) allows interested parties to explore options, beyond traditional judicial intervention, to handle global commercial and intellectual property disputes.

This article provides an overview of the benefits of ADR to international intellectual property and commercial disputes, and argues that ADR and the support of world intellectual property organizations offers a proper medium to address the unique substantive and procedural issues of international litigation.

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

43 Rutgers L. Rec. 215 (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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