Justiciability of a Non-Merit Condition Precedent to Arbitration

40 Rutgers L. Rec. 216 (2013) | WestLaw | LexisNexis | PDF

On January 17, 2012, the United States Court of Appeals for the District of Columbia Circuit vacated an arbitration tribunal’s award of damages to BG Group in the amount of $185,285,485.85.  BG Group responded by filing a petition for a writ of certiorari (Petition) and claimed, among other things, that the D.C. Circuit violated Supreme Court precedent and joined the Eleventh Circuit in a troubling split with the First, Sixth, Seventh, and Eighth Circuits.  There is an underlying dispute between BG Group and Argentina that is based upon preconditions to arbitration in a bilateral investment treaty between the United Kingdom and Argentina (Treaty).  The D.C. Circuit held that it was for a court—not an arbitrator—to decide whether BG Group violated the Treaty’s condition that an investor file suit in an Argentine court and wait eighteen months prior to arbitration.  The Petition asks the Supreme Court to consider its argument that an arbitrator—not a court—has the authority to decide whether BG Group satisfied the eighteen-month condition precedent to arbitration. This Article argues that the D.C. Circuit was correct to hold that it is for the court to decide whether BG Group satisfied the eighteen-month precondition. Part I explains the facts underlying the dispute between BG Group and Argentina. The first section also articulates the importance of international arbitration for foreign investments and the potential impact on international arbitration if the Supreme Court either denies the Petition or upholds the D.C. Circuit’s opinion. Part II discusses the history of the Federal Arbitration Act in Supreme Court opinions related to the D.C. Circuit decision. Part III addresses the Petition’s claim that there is a circuit split and finds that no such split exists through an assessment of those appellate decisions.

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Trouble at Home

40 Rutgers L. Rec. 188 (2013) | WestLaw | LexisNexis | PDF

In her Jacob Prize award-winning book, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy (2009), Professor Jeannie Suk mounts a sustained argument to the effect that under the guise of protecting women, coercive state power has infiltrated the hitherto sacrosanct domain of the home. Unfortunately, Professor Suk makes a number of errors in her book. She misreports cases, misrepresents statutes, and misinterprets law. The purpose of this paper is to address and analyze these errors in the area of domestic violence.

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Regulating Student Cyberbullying

40 Rutgers L. Rec. 153 (2013) | WestLaw | LexisNexis | PDF

Cyberbullying is at the forefront of the public conscience. Americans read about it, blog
about it, and mourn about it. It is bad for the cyberbullies and those being victimized; it is bad for
the families and friends of the bully and the victim; and it is bad for K-12 schools, that as of now are
left with little to no recourse against cyberbullies. Until the Supreme Court of the United States
hears a student cyberbullying case and differentiates cyberbullying from forms of protected
expression, as it did with traditional bullying and hate speech, cyberbullied students will remain
defenseless. Thus, cyberbullying is a problem that prompts an important question: to what extent
does the constitutional framework allow schools to address cyberbullying through censorship?

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Law Schools: Violating Ethical Obligations and the Model Rules of Professional Conduct – The Very Subjects They Teach

40 Rutgers L. Rec. 131 (2013) | WestLaw | LexisNexis | PDF

The significant downturn in the United States economy has not only affected the ability for law school graduates to find jobs, it has caused significant problems for law schools as well. Law schools rely on their reputations and statistics to entice prospective students to apply to their schools and many applicants rely heavily on this information when choosing which school to attend. As a result, the spotlight has been put on law schools that have publicly reassured potential students that they will be able to find jobs, even during these turbulent economic times, by posting employment percentage rates for students after graduation. Given the decline in legal jobs, some students have begun to take action against their law schools that posted employment percentage rates that did not accurately reflect graduates with law-related employment. Skewing employment statistics has been considered by many to constitute false advertising, which is not only illegal, but also violates the ethical laws that lawyers must adhere to and goes against what is taught in essential law school courses. As a result, the question remains: how can law schools expect students to make ethical decisions as lawyers when school administrators are violating the very laws they teach?

Law schools throughout the country become accredited after the American Bar Association (the “ABA”) recognizes that these schools have met certain standards. Beginning in 1952, the United States Department of Education approved the ABA to act as the national agency responsible for accrediting law schools and ensuring that all accredited law schools adhere to its rules and procedures.1] Although some law schools are not accredited by the ABA, most states only allow graduates from ABA-accredited law schools to sit for their bar exams. In fact, twenty states require that students attend ABA-accredited law schools before they can sit for the bar in that state. The states that do not require this usually accept bar admission from another state or have additional requirements that can make the application process more difficult.

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Seventh Circuit Court of Appeals in Sunbeam Products, Inc. v. Chicago American Mfg., LLC Sets a New Course for Trademark License Rejection in Bankruptcy

40 Rutgers L. Rec. 118 (2013) | WestLaw | LexisNexis | PDF

On July 9, 2012, the Seventh Circuit Court of Appeals concluded that Chicago American Manufacturing, LLC possessed a continuing right to use trademarks owned by Lakewood Engineering and Manufacturing Co., a Chapter 7 debtor. The ruling created a circuit split with the Fourth Circuit, which ruled in Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc. that when an intellectual property licensing agreement is rejected in bankruptcy, the licensee loses the ability to use any licensed trademarks. This Comment argues that the Seventh Circuit’s approach better accomplishes the goals of bankruptcy law by preventing parties from abusing the contract rejection power of §365 of the Bankruptcy Code as a de facto avoidance power. The Seventh Circuit approach thus preserves the state-law contract rights of debtors and creditors, as intended by Congress and recommended by bankruptcy scholars.

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Private Actions Against Proprietary Schools

40 Rutgers L. Rec. 81 (2012) | WestLaw | LexisNexis | PDF
Post-secondary education and the student loans associated with it have become hot topics recently. There has been increasing political and media attention focusing on the rising cost of education as well as the low employment numbers among graduates. There has also been, and will continue to be, media punditry and political soap boxing about whether we should modify the bankruptcy statute to permit a greater number of people to discharge their student loans. Proprietary schools operate within this mix and it is this author’s opinion that they deserve a closer look. This article will focus on the potential harm caused to students by proprietary schools and some of the remedies available to those students.

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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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