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?

View the entire article –>

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.

View the entire article –>

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.

View the entire article –>

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.

View the entire article –>

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.

View the entire article –>

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.”

View the entire article –>

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.

View the entire article –>

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.

View the entire article –>