The Rutgers Law Record

52 Rutgers L. Rec. 1 (2024) | WestLaw | LexisNexis | PDF

I. INTRODUCTION

After the 2020 presidential election, then-President Donald Trump engaged in a monthslong legal and social media campaign to undermine the legitimacy of the election.[1] On January 6, 2021, thousands of armed rioters attacked the U.S. Capitol in a failed attempt to stop Congress’s certification of the 2020 presidential election.[2] In the fallout of the attack, Donald Trump was impeached by the House of Representatives for incitement of insurrection.[3] At the same time, political and legal commentators began speculating whether the Disqualification Clause of Section 3 of the Fourteenth Amendment would bar Donald Trump from seeking office again.[4] Donald Trump was eventually acquitted by the Senate[5] but the cloud of disqualification under Section 3 of the Fourteenth Amendment lingered after he left office.[6]

This would have been historically unprecedented. Beyond the initial flurry of litigation in the wake of the Civil War, the Disqualification Clause in Section 3 had only been used once since the end of Reconstruction to remove someone from federal office.[7] Previously derided as a “forgotten”[8] and “vestigial”[9] part of the Constitution, Section 3 received new life in the aftermath of January 6. Section 3 has been used as the foundation for lawsuits against officials in six states[10] and was explicitly cited by a court to justify removal from office of a county commissioner in New Mexico.[11] The clause’s timeliness and relevance only grew since mid-2023 when two law professors, William Blaude and Michael Paulsen, alleged that the clause, by operation of law, automatically disqualified Donald Trump from seeking the presidency again.[12] Others disagree.[13]

In late 2023, the threat of disqualification was realized when Donald Trump was disqualified from the Colorado presidential primary under Section 3 of the Fourteenth Amendment by the Colorado Supreme Court, acting under a Colorado state law that allowed voters to petition the secretary of state to keep constitutionally ineligible candidates off of the ballot.[14] The Supreme Court reversed that decision on March 4, 2024, holding that the States could not exercise discretionary judgment on the constitutional qualifications of presidential candidates.[15] But the Court then went further, broadening their ruling and holding that Section 3 is inoperative against would-be federal officeholders unless specifically given life by Congress.[16] And while the Court was unanimous in its holding that the States are powerless to enforce Section 3, the Court’s disembowelment of that Section, reasoning that Section 5 enforcement legislation was “critical” to Section 3’s application, produced a much more controversial 5-4 result.[17]

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[1] H.R. Rep. No. 117-663, at 210-14 (2022).

[2] Id. at 76-77.

[3] H.R. Res. 24, 117th Cong. (2021).

[4] See Deepak Gupta & Brian Beutler, Opinion, Impeachment Isn’t the Only Option Against Trump, N.Y. Times (Jan. 12, 2021), https://www.nytimes.com/2021/01/12/opinion/Trump-impeachment-disqualification.html; see also Noah Feldman, Opinion, Trump’s 2024 Hopes Just Crashed Into the 14th Amendment, Bloomberg (Jan. 11, 2021, 3:06 PM), https://www.bloomberg.com/view/articles/2021-01-11/trump-2024-president-may-be-ineligible-after-u-s-capitol-riot; see also Lyle Denniston, Is 14th Amendment Sec. 3 a Dead Letter?, Lyle Denniston L. News (Jan. 10, 2021), https://lyldenlawnews.com/2021/01/10/is-14th-amendment-sec-3-a-dead-letter/

[5] 167 Cong. Rec. S733 (daily ed. Feb. 13, 2021).

[6] Roger Parloff, After the Cawthorn Ruling, Can Trump Be Saved From Section 3 of the 14th Amendment?, Lawfare (June 7, 2022, 1:32 PM), https://www.lawfaremedia.org/article/after-cawthorn-ruling-can-trump-be-saved-section-3-14th-amendment.

[7] Marcy Kahn, Ass’n of the Bar of the City of New York, Report by the Task Force on the Rule of Law on Section 3 of the Fourteenth Amendment to the United States Constitution – The Disqualification Clause 3 (2022) [hereinafter NYC Bar Report].

[8] Mark A. Graber, Teaching the Forgotten Fourteenth Amendment and the Constitution of Memory, 62 St. Louis U. L.J. 639, 639-40 (2018).

[9] Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 87 (2021).

[10] NYC Bar Report, supra Note 8, at 4-13.

[11] See New Mexico ex rel. White v. Griffin, No. D-101-CV-2022-00473, 2022 N.M. Dist. LEXIS 1, *67-69 (N.M. Dist. Ct. Sept. 6, 2022).

[12] See Isaac Chotiner, The Constitutional Case for Barring Trump from the Presidency, New Yorker (Aug. 23, 2023), https://www.newyorker.com/news/q-and-a/the-constitutional-case-for-barring-trump-from-the-presidency; see also Matt Ford, The Conservative Legal Roadmap to Disqualify Trump from Office, New Republic (Aug. 13, 2023), https://newrepublic.com/article/174977/baude-paulsen-trump-14th-amendment.

[13] Josh Blackman & Seth B. Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. (2024).

[14] Anderson v. Griswold, 2023 CO 63, ¶ 257, 543 P.3d 283 (Colo. 2023), rev’d sub nom Trump v. Anderson, 601 U.S. 100 (2024) (per curiam).

[15] Trump v. Anderson, 601 U.S. 100, 114-15 (2024) (per curiam).

[16] Id. at 104-06.

[17] Id. at 117-18 (Barrett, J., concurring); see also, id. at 121 (Sotomayor, S., Kagan, E., and Jackson, JJ., concurring).

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51 Rutgers L. Rec. 187 (2024) | WestLaw | LexisNexis | PDF

I. INTRODUCTION

“A COPYRIGHT WILL PROTECT YOU FROM PIRATES. And make you a fortune. If you have a PLAY, SKETCH, PHOTO, ACT, SONG or BOOK that is worth anything, you should copyright it. Don’t take chances when you can secure our services at small cost . . . .”¹ This is an excerpt from an advertisement in 1906 by Columbia Copyright & Patent Co. Inc.² Economic principles of wealth maximization³, risk aversion⁴, and cost-benefit analysis⁵ emanate from this advertisement urging creators to seek copyright protection. 

Copyright protects original works of creative expression.⁶ Copyright owners have the exclusive right to reproduce, publicly perform, or display the copyrighted work, create derivative works from the copyrighted work, and distribute copies of the copyrighted work.⁷ Edwin C. Hettinger reports that most copyrights are owned by institutions including corporations.⁸ Without copyright protection, many companies are threatened by competitors who copy the companies’ creative works at low cost and sell the copies at reduced prices.⁹ 

Economic principles underlie the legal protection of copyright and corporations’ strategic plans for innovation. More than a century after Columbia Copyright & Patent Company’s advertisement in 1906, with the advent of novel technologies, analysis in law and economics remains vital in the evaluation of copyright policies for public welfare and corporate initiatives for innovation. 

This article first analyzes concepts of law and economics in the welfare justification of copyright (I). This article then applies this examination to critique the United States Supreme Court’s adjudication of a corporation’s initiative to provide the public with copyrighted audiovisual content through innovative technology (II). 

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¹ Advertisement for Columbia Copyright & Patent Company from The New York Clipper, Nov. 3, 1906, Library of Congress, United States of America, https://www.loc.gov/exhibits/bobhope/vaude.html#obj036 (last visited Mar. 29, 2024). 

² Id. 

³ Richard A. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUDS. 103, 119 (1979). 

⁴ 8.1 Risk Aversion and the Allocation of Risk, HARV. UNIV., https://cyber.harvard.edu/bridge/LawEconomics/risk.htm (last visited Mar. 29, 2024). 

⁵ PWC, UNDERSTANDING THE COSTS AND BENEFITS OF INTRODUCING A ‘FAIR USE’ EXCEPTION 14-15 (2016). 

⁶ Edwin C. Hettinger, Justifying Intellectual Property, 18 PHIL. & PUB. AFF. 31, 32 (1989). 

⁷ Id. at 34. 

⁸ See id. at 46. 

⁹ Id. at 47; see also Audio and Video First Sale Doctrine: Hearings on H.R. 1027, H.R. 1029, and S. 32 Before the Subcomm. of Cts., C.L. & the Admin. of Just. of the H. Comm. on the Judiciary, 98th Cong. 720 (1985) (referencing section titled “Tough to Get Compensation,” discussing movie-producing corporations’ difficulty in obtaining compensation in the face of individuals and entities who copy movies on cassettes at low cost). 

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51 Rutgers L. Rec. 137 (2024) | WestLaw | LexisNexis | PDF

I. INTRODUCTION

The COVID-19 pandemic brought the world to a standstill, infecting millions, and causing widespread economic and social disruption. The pandemic not only highlighted the importance of robust public health systems and emergency preparedness, but also brought to light the increasing threat of biological weapons. The potential for malevolent actors to use biological agents as weapons of mass destruction has been a concern for decades, but the COVID-19 pandemic has shown how devastating such an attack could be. Biological weapons involve the distribution of pathogens or poisons that can cause harm or death to living beings, including humans, animals, and plants.¹ Biological weapons are extremely dangerous and can spread easily from person to person. If used intentionally, they could have catastrophic consequences, including global spread of diseases beyond national borders, food shortages, environmental disasters, economic devastation, and widespread panic and mistrust. The aftermath of such an event would not only result in loss of lives but also impact the entire global population with far-reaching effects. There is a fifty-one-year-old international treaty that established the prevention of biological weapon usage. “In 1972, a historic attempt to create the world’s first international legal regime banning the development and possession of an entire class of weapons of mass destruction culminated in the drafting of the Biological Weapons Convention (BWC).”² The BWC “reflects a comprehensive repudiation of the development, production, and stockpiling of biological weaponry.”³ Despite its symbolic importance as a norm creating treaty, the absence of verification and enforcement provisions has rendered it “merely a paper agreement that could easily be circumvented.”⁴ 

The BWC is the cornerstone of the biological weapons disarmament regime, but the treaty is having difficulty keeping up with changing threats due to its decision-making process and geopolitics. Fundamentally flawed, the BWC is “crippled by key compromises made by the great powers in pursuit of various self-interested security objectives in the context of the Cold War.”⁵ In November 2022, over two years after the widescale emergence of COVID-19, the international community met to review the BWC for the ninth time. In early 2022, the prospects for strengthening the BWC were the best they had been in years as China, Russia, and the United States had articulated individual plans that reflected enough common ground to craft a workable compromise.⁶ This cautious optimism around the BWC’s improvement prospects were spoiled by Russia’s invasion of Ukraine in February of 2022. The illegal aggression of Russia undermined the rules-based international order that the BWC is intertwined with. As part of the invasion, Russia also deliberately fabricated allegations levied against Ukraine, the United States, and other partners⁷ which “stigmatizes and politicizes biosafety, biosecurity, and cooperative public health and life sciences research to the detriment of not just Ukraine, but global health security overall.”⁸ Efforts to misrepresent or undermine legitimate biosafety and biosecurity research and capacity building weaken the BWC and undermine international cooperation for peaceful purposes. 

Russia failed to garner support for its allegations in UN Security Council meetings in March and May of 2022 and then in June, Russia invoked Article V of the BWC to force the treaty’s 184 member states to hold a special consultation meeting. While Russia stood largely alone⁹ in the November 2022 UN Security Council meeting it forced, this process highlighted how legitimate processes in treaties and governmental bodies can be turned towards illegitimate ends.¹⁰ The BWC’s durable framework, may be sunsetting soon after its 50th anniversary as it attempts to stay on top of a changing global landscape that includes rapidly evolving capabilities and new actors in the life sciences, as well as disinformation.¹¹ The BWC is based on good faith implementation by state parties as there are no external monitoring measures or oversight of any kind. Compliance is based not on oversight, but the international legal principle of reciprocity and the threat of withdrawal from the Convention. International cooperation, solely based on good faith is likely a fleeting dream. The bad faith hijacking of the legitimate procedures outlined in the BWC by Russia in 2022, suggests that a true, binding cooperation pillar for the BWC may be needed. The concept of a cooperation pillar was first introduced in Article III of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT).¹² The NPT pillar was based on the concept of “atoms for peace,” which anticipated that nuclear technology would be crucial for energy production and a cooperative pillar could provide incentives for States that lacked such technology to join the NPT.¹³ The actions of Russia also call into question the legitimacy of international law and the legitimacy of international order, a foundational principle for the BWC and other international treaties which keep the world safe and secure. Arguments for legal reform to improve the BWC are not new, but in a world with eroding international law legitimacy and norms of good faith disappearing, there is a need to reevaluate the legal landscape of the BWC which has laid dormant for over a decade. 

The 9th Review Conference, which ended in late 2022, was far from perfect, but it provided “a glimmer of hope in an overall bleak international security environment.”¹⁴ This note calls for an amendment to the Biological Weapons Convention that leverages a cooperation pillar to ensure compliance with the treaty while subsequently enhancing the legitimacy of international law, building upon a slim inertia for positive change. Part I of this paper analyzes the historical context to the creation of the Biological Weapons Convention and the legislative features that frames its current structure. Part II investigates the scope of international law and legitimacy, historically and in the current climate. Section I of Part II analyzes the components of international legitimacy. Next the subpart will define the framework of analysis of international law legitimacy. Section II of Part II investigates the current conflicts of international legitimacy and international law. The final section of Part II will subsequently suggest the principles which can make international law more legitimate. Part III of the note will discuss international institutions and their role in instilling a cooperation pillar for the BWC. The final section of this note, Part IV, will suggest recommendations that will improve the BWC and make it more adaptable to the evolving threats both in the international law and relations space, but also in the rapidly changing landscape of biological threats. 

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¹ Biological Weapons Convention, U.N. OFF. FOR DISARMAMENT AFFS., https://www.un.org/disarmament/biological-weapons/ (last visited Mar. 2, 2024).  

² Jack M. Beard, The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention, 101 AM. J. INT’L L. 271, 271 (2007).  

³ Michael P. Scharf, Clear and Present Danger: Enforcing the International Ban on Biological and Chemical Weapons Through Sanctions, Use of Force, and Criminalization, 20 MICH. J. INT’L L. 477, 482 (1999).

⁴ See Susan Wright, Prospects for Biological Disarmament in the 1990s, 2 TRANSNAT’L. L. & CONTEMP. PROBS. 453, 454 (1992); see also Nicholas A. Sims, The Diplomacy of Biological Disarmament: Vicissitudes of a Treaty in Force 1975-85, 84 AM. J. INT’L L. 984 (1988) (Sims concludes, “Those who took the British initiative of 1968 [which included strong provisions for verification and complaint investigation] and watered it down into the Convention of 1972 gave the world biological disarmament on the cheap: a disarmament regime of minimal machinery which would cost next to nothing to sustain. It is now painfully evident that these short-term savings have been outweighed by the long-term costs of a regime lacking the means to sustain its credibility in the face of suspicious events which cannot be resolved one way or the other.”).  

⁵ Beard, supra note 2, at 271.  

⁶ Gregory D. Koblentz & Filippa Lentzos, A Plan B to Strengthen Biosafety and Biosecurity, THINKGLOBALHEALTH (Nov. 15, 2022), https://www.thinkglobalhealth.org/article/plan-b-strengthen-biosafety-and-biosecurity?utm_medium=social_owned&utm_source=tw_tgh.  

⁷ Russia made spurious allegations that the United States and other NATO members are violating the treaty by developing biological weapons in Ukraine.

⁸ Ryan Houser et al., Understanding Biosafety and Biosecurity in Ukraine, 21 HEALTH SECURITY 70, 80 (2023).

⁹ Only China supported Russia’s formal accusation that the United States was noncompliant with the BWC.

¹⁰ Yong-Bee Lim et al., Preparing for Twenty-First-Century Bioweapons, ISSUES SCI. & TECH. (Dec. 8, 2022); https://issues.org/bioweapons-biological-weapons-convention-bwc-ngos/.  

¹¹ Id.

¹² James Revill & María Garzón Maceda, Options for Article of the Biological Weapons Convention, U.N. INST. FOR DISARMAMENT RSCH. (Feb. 3, 2022), https://unidir.org/publication/options-article-x-biological-weapons-convention/.

¹³ Id.

¹⁴ Una Jakob, The 9th Review Conference of the Biological Weapons Convention, PRIF BLOG (Feb. 7, 2023), https://blog.prif.org/2023/02/07/the-9th-review-conference-of-the-biological-weapons-convention/ (citing UN Secretary-General Antonio Guterres).  

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51 Rutgers L. Rec. 102 (2023) | WestLaw | LexisNexis | PDF

I. INTRODUCTION

The 2023 U.S. Supreme Court decision Students for Fair Admissions v. Harvard¹ has been described as a “landmark”² decision with respect to affirmative action. The Court held that race-based admissions policies at two U.S. universities violated the Equal Protection Clause of the Fourteenth Amendment.³

At first glance, it may appear that Students has nothing to do with taxation. But closer examination reveals that Students is directly relevant to the U.S. nationality-based tax system.

This article: (II) situates the U.S. nationality-based tax system in the context of Fourteenth Amendment Equal Protection; and then (III) explains the relevance of Students for the U.S. nationality-based tax system.

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¹ Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023).

² The Editorial Board, A Landmark for Racial Equality at the Supreme Court, Wall St. J. (June 29, 2023), https://www.wsj.com/articles/harvard-unc-students-for-fair-admissions-supreme-court-affirmative-action-john-roberts-clarence-thomas-racial-preferences-f8c998f6.

³ Students for Fair Admissions, Inc., 600 U.S. at 220; see also U.S. Const. amend. XIV, § 1.

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51 Rutgers L. Rec. 50 (2023) | WestLaw | LexisNexis | PDF

I. INTRODUCTION 

The epidemic of drunk driving has reared its monstrous head across the nation’s highways for years._¹ Approximately thirty-two people die in drunk-driving crashes every day in the United States alone, amounting to the loss of a human life “every 45 minutes.”² Not only has drunk-driving had deleterious effects on the safety of those on our roadways, but it has been felt in the pockets of our government, costing the United States approximately “$44 billion [dollars] annually.”³ States have responded to this growing crisis through legislation in a number of ways, spanning from the mandatory placement of ignition interlock device in the vehicles of DUI offenders to a conditional release from custody pending completion of a rehabilitation program.⁴ 

However, the families of deceased victims are often left to pick up the pieces on their own, usually with little assistance from state entities. For those who were dependent on the victim, such as young children, civil recourse is typically limited to wrongful death actions, funds obtained from a state Victim’s Compensation Fund, or through court-ordered restitution to be paid by the convicted DUI offender. While no form of civil recovery can ever fully replace the loss of the victim, each of these forms of compensation carry with them a suite of issues for the families of DUI victims that generally render them unable to even come close to partial compensation. 

This Note will proceed in four parts. Part I of this Note will discuss the history of one piece of legislation challenging the current state of victim’s compensation for fatal drunk driving collisions, known as “Bentley’s Law,”⁵ will lay out the requirements of bringing a successful claim under the law, and will explain how it differs from current forms of compensation. Next, Part II will briefly discuss the current state of victim compensation available for children of DUI victims in the states that have yet to adopt Bentley’s Law. With this background, Part III will compare the shortcomings of these current avenues of compensation with the existing statutory requirements of Bentley’s Law and will discuss how Bentley’s Law will aid victims in ways other methods of victim compensation do not. Finally, due to the novelty of the law, Part IV will discuss questions raised on aspects of Bentley’s Law and will examine how the legislation will be utilized in the judicial system. 

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¹ The Drunk Driving Epidemic, ROBERT J. DEBRY & ASSOCS., https://robertdebry.com/drunk-driving-epidemic/ (last visited Jan. 15, 2023).

² Drunk Driving, NHSTA, https://www.nhtsa.gov/risky-driving/drunk-driving (last visited Jan. 15, 2023).  

³ Id.

⁴ See State Ignition Interlock Laws, NAT’L CONF. STATE LEGIS. (Sept. 24, 2021), https://www.ncsl.org/transportation/state-ignition-interlock-laws (“As of 2021, thirty states and the District of Columbia have implemented laws “requiring all offenders, including first-time offenders, to install an IID.”); see also ALA. CODE § 32-5A-191(k) (2022) (requiring any person convicted of driving while under the influence to “complete a DUI or substance abuse court referral program”); ARIZ. REV. STAT. ANN. § 28-1381(j) (2022) (allowing “all but one day” of a DUI offender’s sentence to be suspended if the offender agrees to participate in and successfully completes a “court ordered alcohol or other drug screening, education or treatment program”).  

⁵ In the first district to have adopted Bentley’s Law, the Tennessee legislature has amended the law to be formally known as the “Ethan’s, Hailey’s and Bentley’s Law” to honor the children of Missouri couple Cordell Shawn Michael Williams and Lacey Williams as well as “fallen Chattanooga Police Office Nicholas Galinger[,]” all three of whom were victims of drunk driving collisions. Tennessee Governor Bill Lee Signs Ethan’s, Hailey’s and Bentley’s Law, MOTHERS AGAINST DRUNK DRIVING (July 7, 2022), https://madd.org/press-release/tennessee-governor-bill-lee-signs-ethans-haileys-and-bentleys-law. Because of its wide recognition in the media as “Bentley’s Law,” it will be addressed as such in this Note. 

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