Selling Diversity Short

40 Rutgers L. Rec. 68 (2012) | WestLaw | LexisNexis | PDF
“Nancy Leong’s forthcoming article in the Harvard Law Review, Racial Capitalism, has received much attention even in advance of its publication. The article was posted to the popular site for academic and scholarly work, the Social Science Research Network (“SSRN”), on February 21, 2012, which coincidentally was the same day that the Supreme Court granted certiorari in Fisher v. Texas. Leong’s article has since received nearly 2,500 views. Nancy Leong has, to say the least, hit on a hot button issue with Racial Capitalism, which has become the focus of only more acute attention since the discourse on race has hit a fever pitch in anticipation of the Court’s ruling later this term in the Fisher case. It is this furor of interest over whether this newfound “diversity” interest attacked by Leong and scrutinized by the Court offers anything substantively different than past remedial uses of race and, perhaps even more important, whether that difference is beneficial that motivates this response. Leong answers both of these questions in the negative. I respectfully disagree.”

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Non-custodial Parents’ Rights to Their Children’s College Records

40 Rutgers L. Rec. 48 (2012) | WestLaw | LexisNexis | PDF
“In the song “Gold Digger,” Kanye West laments, “18 years, 18 years [a]nd on her 18th birthday he found out it wasn’t his.” This represents the perception in American society that a parent’s legal obligation to support their child ends when the child reachesthe age of majority. New Jersey has defined majority to be, “every person 18 or more years of age shall in all other matters and for all other purposes be deemed to be an adult…” Pennsylvania defines majority as “either eighteen years of age or when the child graduates from high school, whichever comes later.” Most other states, after the passage of the twenty-sixth amendment to the U.S. Constitution, lowered the age of majority from 21 to 18 as well.

Since in most states the age of majority is 18, for parents who remain married throughout their children’s college years, for the most part, there is no legal requirement to contribute to the college expenses of their children. However, people who divorce may end up having to pay a portion of their child’s college expenses, even though college students are typically past the age of majority. If a divorced parent is required to contribute to their child’s college cost, should they be able to know what courses the student took and what grades they received? This is the question the court was faced with in Van Brunt v. Van Brunt.”

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Do Police Learn from Lawsuit Data?

40 Rutgers L. Rec. 30 (2012) | WestLaw | LexisNexis | PDF
“A compelling new theory argues that lawsuit data collection has a deterrent effect on police misconduct. If this theory is correct, why has the number of police misconduct cases still increased over time? Does the trend continue if police departments consistently gather lawsuit data? A § 1983 dataset, which is introduced in this paper, provides an answer. This dataset shows that lawsuit data collection does not correlate with better deterrence of § 1983 cases. The dataset therefore indicates that police departments may not learn from lawsuit data.”

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A Non-Intent Based Challenge to Exclusionary Zoning: Why RLUIPA Can Help One Religious Community When Constitutional Challenges Fail

40 Rutgers L. Rec. 1 (2012) | WestLaw | LexisNexis | PDF
“Does a religious community have a remedy when a municipality’s intent-neutral zoning ordinance acts to completely exclude that group from living within its borders by prohibiting the only type of housing the religious group will use? That the zoning ordinance acts to discriminate against this group, excluding them from living within the municipality’s border by excluding their housing, there can be little question. However, where the zoning ordinance is neutral on its face, and no intent to either interfere with the community’s free exercise of religion, or intent to discriminate against them in violation of the Fourteenth Amendment equal protection clause is evidenced, courts will only apply rational basis review to a facial challenge of the ordinance in order to determine if the zoning ordinance is arbitrary and capricious. Application of rational basis usually means that where a religious group cannot prove that the municipality’s intent to discriminate against that group was a motivating factor in the decision to zone as it did, the possibility of constitutional challenge is foreclosed, and the group is left without remedy because the rational basis test favors the power of municipalities to zone as they see fit. ”

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Neuroscience, Brain Damage, and the Criminal Defendant: Who Does It Help and Where in the Criminal Proceeding Is It Most Relevant?

39 Rutgers L. Rec. 161 (2012) | WestLaw | LexisNexis | PDF
“The state attorney in a capital case will emphasize words such as ‘inherent evil,’ psychopath,’ ‘predator,’ and ‘abuse is no excuse,’ while deeming irrelevant alternative explanations of human behavior other than free will. The prosecutor will not acknowledge that human behavior is deterministic in nature and based on biopsychosocial interactions within one’s life . . . [f]requently in capital cases [and other cases] there will be a significant history of neuropathology/dysfunction (cognitive impairment) that needs to be examined by a forensic mental health professional . . . What should counsel do with this evidence?

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Special Education for a Special Population: Why Federal Special Education Law Must Be Reformed for Autistic Children

39 Rutgers L. Rec. 128 (2012) | WestLaw | LexisNexis | PDF
With a growth rate of 1,148%, Autism is presently the world’s fastest growing developmental disability. According to the Centers for Disease Control and Prevention (“CDC”), approximately in 100 children in the United States are affected by an autism spectrum disorder (“ASD”). Of the approximately 4 million children born each year, an estimated 36,500 will be diagnosed with autism. The prevalence is greater among boys, with 1 in 70 affected by some form of a disorder on the spectrum.

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Mandate or Myth: Is there a ‘Heightened Standard’ for Redevelopment Area Designations, and if so, From Where Does it Come?

39 Rutgers L. Rec. 116 (2012) | WestLaw | LexisNexis | PDF
In 2012, New Jersey’s Local Redevelopment and Housing Law (LRHL) governing the use of eminent domain for redevelopment will turn twenty years old. In its first ten years, LRHL enabled virtually unchecked exercises of local government authority to declare “areas in need of redevelopment.” In the last ten years, however, a combination of factors—ranging from pushback against overzealous condemnations to doubts about the effectiveness of redevelopment—has led the judiciary to more strictly interpret the statute and its constitutional foundations. Ultimately, municipal use of the LRHL has become less unfettered. Generally speaking, this has been appropriate both legally and policy-wise.

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Don’t Blame Crawford or Bryant: the Confrontation Clause Mess is All Davis‘s Fault

39 Rutgers L. Rec. 104 (2012) | WestLaw | LexisNexis | PDF
In Michigan v. Bryant, a gunshot victim provided responding officers with the identity of the man who shot him as he lay dying in a parking lot. In determining whether the subsequent use of the deceased declarant’s statement at trial violated the Confrontation Clause, the Bryant Court applied the “testimonial versus nontestimonial” analysis established in the Court’s previous decision, Crawford v. Washington. Holding that testimonial hearsay included statements detailing past events, while nontestimonial statements involved the resolution of an “ongoing emergency,” the Bryant Court applied a multi-factor, “totality of the circumstances” analysis in finding that the deceased declarant’s identification had been directed at an ongoing emergency. As such, the hearsay statement was nontestimonial and, accordingly, outside the protection of the Confrontation Clause. Continue reading

An Analysis of the Constitutionality of Arizona’s Ethic Studies Law

39 Rutgers L. Rec. 86 (2012) | WestLaw | LexisNexis | PDF
On May 2011, the Arizona legislature passed a law that has placed significant restrictions on K-12 ethnic studies programs. The law prohibits any public school district or charter school from conducting classes that, inter alia, are designed primarily for a specific ethnic group. School districts or charter schools that violate the law can lose up to ten percent of their state funding. Former Arizona state superintendent of public instruction Tom Horne championed the passage of this legislation after an incident involving a state department of education official at a Tucson public school. As discussed in Section I of this paper, present superintendent John Huppenthal found that the Mexican American Studies (“MAS”) program violated the state’s ethnic studies law. A state administrative law judge affirmed Huppenthal’s determination, authorizing the state’s power to withhold ten percent of its funding to the Tucson Unified School District (“TUSD”) until the MAS program came into compliance with state law.4 Students and teachers are challenging the constitutionality of the statute in federal district court and seek the issuance of a preliminary injunction.

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Employer Not Vicariously Liable for Employee’s Assault, Says the New Jersey Supreme Court

In Davis v. Devereux Foundation, — A.3d —, 2012 WL 638002 (N.J. Feb. 29, 2012), the Supreme Court of New Jersey declined to hold liable Defendant Devereux Foundation – a national non-profit foundation providing services for persons with emotional, developmental and educational disabilities – notwithstanding that one of its employees, Charlene McClain, poured boiling water on one of its residents, Plaintiff Roland Davis.

The Court reached this holding on two grounds. First, it decided that institutions caring for the developmentally disabled are not bound by a “non-delegable duty” to protect their residents from the harm caused by an employee’s intentional acts. Second, it determined that the employee in this case did not act within the scope of her employment when she assaulted the Plaintiff and, therefore, the Defendant was not vicariously liable under the doctrine of respondeat superior.

This article primarily focuses on the second, broader holding affecting all New Jersey employers, discussing the pertinent facts and procedural history, majority opinion and dissent, and takeaway for employers. Continue reading