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

The Right to Confront Witnesses, but not Necessarily at Trial: Predicting a Judge-focused Remedy in Williams v. Illinois

39 Rutgers L. Rec. 75 (2012) | WestLaw | LexisNexis | PDF
In a recent New York Times op-ed piece, Stanford Law Professor Jeffrey Fisher predicted the outcome of Williams v. Illinois, a case pending in the Supreme Court of the United States. Professor Fisher has argued that “a logical application of the law produces an easy answer” in Williams. The Confrontation Clause of the United States Constitution’s Sixth Amendment requires all persons who are “witnesses against” a criminal defendant, including lab analysts whose reports are not being offered into evidence at trial, to testify in court. We should trust Professor Fisher’s analysis of Williams. After all, his argument in Crawford v. Washington was the genesis for the string of United States Supreme Court cases that give criminal defendants expanded rights under the Confrontation Clause.

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No Expertise Required: How Washington D.C. Has Erred in Expanding Its Expert Testimony Requirement

39 Rutgers L. Rec. 55 (2012) | WestLaw | LexisNexis | PDF
In 2005, Marlin Godfrey brought a diversity action in the United States District Court for the District of Columbia against Allen Iverson and his bodyguard, Jason Kane, stemming from a brawl at Eyebar, a Washington, D.C. nightclub. Godfrey alleged that Kane attacked him, causing him emotional and physical injuries, including a concussion, a ruptured eardrum, a burst blood vessel in his eye, and a torn rotator cuff. The jury found for Godfrey and entered a verdict against Kane for intentional infliction of emotional distress as well as assault and battery. The deeper pockets, however, belonged to Iverson. Godfrey was able to convince jurors that the NBA star was liable for the negligent supervision of his muscle and they awarded Godfrey $260,000, including $250,000 for pain and suffering.

Thereafter, Iverson and Kane “move[d] for judgment as a matter of law, or, alternatively for a new trial,” but the court denied their motion, prompting their appeal to the United States Court of Appeals for the District of Columbia. On appeal, Iverson and Kane argued, inter alia, “that the district court should have granted judgment as a matter of law on the negligent supervision claim because Godfrey did not introduce expert testimony to establish the standard of care Iverson owed in supervising Kane.” If the court was applying the law of any other jurisdiction, the argument would have fallen on deaf ears, however, the appellants’ argument “stem[med] from a peculiar aspect of common law negligence in the District of Columbia.”

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Padilla v. Kentucky‘s Inapplicability to Undocumented and Non-Immigrant Visitors

39 Rutgers L. Rec. 47 (2012) | WestLaw | LexisNexis | PDF
The Supreme Court’s recognition in Padilla v. Kentucky that the Sixth Amendment right to counsel requires criminal defense attorneys to advise noncitizen defendants of the possibility of deportation prior to pleading guilty promises to lift the veil of misinformation from many plea negotiations. This promise, however, means little to non-immigrant visitors and undocumented people because they lack a critical characteristic that animated the Padilla Court: the right to remain in the United States indefinitely. Therefore, Padilla’s advice mandate, this essay argues, does not apply to undocumented individuals and non-immigrants facing criminal charges, continuing to leave them subject to the perils of incorrect or incomplete advice.

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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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