Special Relationship Bystander Test: A Rational Alternative to the Closely Related Requirement of Negligent Infliction of Emotional Distress for Bystanders

39 Rutgers L. Rec. 28 (2012) | WestLaw | LexisNexis | PDF
An engaged couple was crossing Washington Street in downtown Indianapolis, Indiana, en route to the county clerk’s office to apply for a marriage license. The bride-to-be noticed a tractor-trailer bearing down on her and her fiancé. Realizing that the truck was not going to stop, the woman grabbed her fiancé’s hand in attempt to pull him out of the truck’s path. The effort failed. The woman, who was not physically harmed, could only watch as the wheels of the truck ran over her would-be husband, killing him instantly. As a result of having witnessed the entire scene, the woman suffered severe emotional trauma. The trauma resulted in medical expenses, and to aid in payment she brought a claim against the driver for Negligent Infliction of Emotional Distress (“NIED”). The defendant moved for summary judgment, and the court held in his favor reasoning that the woman did not satisfy the relationship requirement for such claims of NIED.

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Ready, Aim, Fire: Employing Open Records Acts As Another Weapon Against Public Law School Clinics

39 Rutgers L. Rec. 16 (2012) | WestLaw | LexisNexis | PDF
“Information is the oxygen of democracy.” Indeed, transparency in government is the essence of any democratic system – without it, corruption is free to thrive in secrecy. Therefore, it is essential to provide the citizenry with freedom of information as it allows one to not only properly scrutinize his or her government’s actions, but to participate in an “informed debate of those actions.” The legal demand for readily available information through open records and freedom of information acts is an evolutionary product of the “bureaucratic complexities of the early twentieth century.” During this time, government entities began to implement increasingly intensive systems of record-keeping. However, as government transactions grew more personal in nature, the public demanded an increased level of transparency and record access. Once modern technology allowed for government entities to efficiently comply with information requests, both the United States federal government and all fifty state governments enacted information access and open record legislation. In 1966, the federal government passed the Freedom of Information Act (“FOIA”), which “provides a right of access to the public of government records.” Although many states modeled their public record laws after FOIA, no state laws are completely identical and thus may be subject to various interpretations by different courts.

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Registration Open for Fall Symposium 2011 – No Child Left Behind, Ten Years Later

Registration for the Fall 2011 Symposium is open. On November 10th, 2011, from 6:00 p.m. to 8:30 p.m., The Rutgers Law Record, BarBri and The Rutgers Institute for Professional Education will host a symposium on the No Child Left Behind Act. Professors, Education law experts, and practitioners will congregate at Rutgers School of Law – Newark to discuss the effect of the No Child Left behind Act upon public education law, policy and practice, focusing on emergent legal and policy issues. Continue reading

Getting to the Core: Rewriting the No Child Left Behind Act for the 21st Century

39 Rutgers L. Rec. 1 (2011) | WestLaw | LexisNexis | PDF
Any consideration of the next generation of law-based education reform must address the dual goals of insuring public accountability for all schools to educate all students, as well as insuring every child’s individual opportunity to learn meaningful content. The impending re-authorizations of the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act (IDEA) present the opportunity to reassess the role of these laws in the improvement of meaningful opportunity to learn for all students. The current version of the ESEA, as revised by the No Child Left Behind Act (NCLB), has had considerable impact in improving the education of many students, yet it has also raised many concerns and much controversy about both educational and assessment practices; as well as the proper role of federal laws. A major benefit of NCLB has been the attention focused on improving the performance of at-risk subgroups of students. On the other hand, it has caused controversy within the civil rights community as well as widespread scholarly debate within both the legal and social science communities. The education and assessment of students with disabilities (SWD) and other special subgroups of students, particularly low-income and minority students, also presents an enormous challenge to future educational improvement. Tests generated under the NCLB system provide glaring evidence that there is still much room for improvement in the effective education of all students to high standards to prepare them for higher education and the workplace.

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The Case of Casey Anthony: Defending the American Jury System

On July 5, 2011, after only eleven hours of deliberation and no request to review evidence, a twelve-person jury found twenty-five year old Casey Anthony not guilty of murdering her two year old daughter, Caylee.1 The two-year old had been missing since June of 2008, however, the authorities were not notified until thirty-one days later at which point Casey began to weave a web of lies about her daughter’s whereabouts. In December of 2008, Caylee’s skeletal remains were found in the woods near her family’s home and Casey was indicted for Caylee’s murder soon after.2 The story quickly grabbed the media’s attention but it was not until the trial that the American people became captivated by the possibility that a young mother like Casey could murder such a beautiful little girl like Caylee.3 Had Casey been convicted, she would have faced the death penalty.4 Continue reading

Multiple Defendant Cases: When the Death Penalty is Imposed on the Less Culpable Offender

38 Rutgers L. Rec. 119 (2011) | WestLaw | LexisNexis | PDF
When more than one person is involved in a crime resulting in death, in most jurisdictions the felony murder doctrine operates to render everyone equally responsible for murder. Lay people often find it surprising, and somewhat disturbing, that the “lookout” is exposed to the same range of penalties, generally including life sentences, as the person who actually pulled the trigger. The stakes are even higher in jurisdictions with the death penalty. The Supreme Court has limited application of capital punishment in the felony murder context to “major participants” in the felony who displayed at least “reckless indifference to the value of human life.” Nonetheless, the triggerman may well receive a life sentence, or even a term of years, while another participant is sentenced to death. Indeed, the person against whom the evidence is the strongest has the greatest incentive to agree to enter a guilty plea and testify against his accomplices in exchange for a prosecutor’s promise not to seek a death sentence. The facts of cases as described in court opinions at times suggest that accomplices who testify minimize their own role so as to enable the prosecution to secure a death sentence against another participant. Accordingly, defendants may be executed based on unreliable accomplice testimony while the more culpable participant in the events leading to the victim’s death receives a lesser penalty. Interviews with jurors who deliberated on cases involving accomplices confirm the difficulties of sorting out the relative culpability of various participants. This Essay suggests that multiple defendant capital cases pose particular challenges for fair and even-handed application of capital punishment that warrant more careful scrutiny than they have so far received.

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“Using Persons” and the Justification of Punishment

38 Rutgers L. Rec. 112 (2011) | WestLaw | LexisNexis | PDF
The short essay that follows has a very modest ambition. I want to explain why I have difficulty understanding a common motif in discussions of the moral status of criminal punishment. The goal is to stimulate other, more acute scholars to dispel the confusion and clarify the concept that is giving me such trouble.

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Vernor v. Autodesk: An Erosion of First Sale Rights

38 Rutgers L. Rec. 213 (2011) | WestLaw | LexisNexis | PDF
The first-sale doctrine is a long-standing exception to the exclusive right to distribution granted under copyright law. It provides that a copyright holder, after the initial sale of a copy of a work, has no right to control any downstream sales, rentals, or lending of that same copy. The courts universally agree that works which are licensed by the copyright holder, due to the lack of initial sale, are not subject to the first sale doctrine. The recent Vernor v. Autodesk decision by the United States Court of Appeals for the Ninth Circuit examined the first sale doctrine, focusing on software licenses and their effects on downstream sales. The selling of software which was purchased from the original buyer and then subsequently sold on eBay was considered to be copyright infringement. The court considered the transfer of the software license, and in doing so very clearly delimited the defining features of what creates a license as opposed to a sale. The court, however, in laying out a very simply-followed cook-book-style recipe to avoid a first-sale, drastically shifts the rights of downstream consumers back to copyright holders, severely damaging a century’s worth of rights balancing which promotes restraints on alienation and the demise of secondary media markets. This paper begins with an overview of the relevant copyright law and introduces the Autodesk case. Following this is a discussion of the effects of the court’s decision on first-sale rights and the suggestion for Congressional intervention to help ameliorate the problems that will inevitably stem from this ruling.

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Clearing and Trade Execution Requirements for OTC Derivatives Swaps Under the Frank- Dodd Wall Street Reform and Consumer Protection Act

38 Rutgers L. Rec. 227 (2011) | WestLaw | LexisNexis | PDF
This article examines Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the “Wall Street Transparency and Accountability Act of 2010” (the “Act”). The Act provides a comprehensive regulatory framework for swap transactions that designates the Commodities Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) as the primary regulators of the over-the-counter (OTC) derivatives swap market. The Act provides a very broad definition of swaps to include most OTC derivatives transactions, and it grants the CFTC regulatory jurisdiction over them with the exception of security-based swaps to which the SEC is granted regulatory jurisdiction. Continue reading

New Governance and the Role of Public and Private Monitoring of Labor Conditions: Sweatshops and China Social Compliance for Textile and Apparel Industry/CSC9000T

38 Rutgers L. Rec. 49 (2011) | WestLaw | LexisNexis | PDF
Effective regulation has three essential components. First, the law must develop standards; second, there must be sufficient monitoring of compliance to detect non-compliance; and third, there must be some form of motivation to avoid non-compliance. The growth in international trade has created significant challenges for all three of these stages. This paper will focus upon the monitoring stage and analyze emerging regulatory vehicles used to detect non-compliance. The traditional regulatory model involves a law, state inspectors and legal sanctions for non-compliance. One of the largest challenges for the state is how to adequately monitor compliance. Countries like the United States and China have literally tens of millions of workplaces. It is impossible for the state to monitor the activities in every workplace without the support of non-state actors.

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