“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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Remediation of Unfair Labor Practices and the EFCA: Justifications, Criticisms, and Alternatives

38 Rutgers L. Rec. 197 (2011) | WestLaw | LexisNexis | PDF
There is widespread agreement that labor relations in America are in drastic need of reform. The National Labor Relations Board has a record backlog of cases, election disputes are taking unacceptably long to resolve, and unfair labor practices abound throughout the election and recognition process. The proposed Employee Free Choice Act is meant to address many of these systemic problems. This paper critically evaluates the remedial provisions of the Act, and suggests alternatives to improve the efficacy and political viability of labor law reform.

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Defining Intellectual Disability: Fetal Alcohol Spectrum Disorders and Capital Punishment

38 Rutgers L. Rec. 97 (2011) | WestLaw | LexisNexis | PDF
The Center for Disease Control and Prevention estimates that, for every 1,000 live births in the United States, there are between 0.2 and 1.5 cases of a preventable mental disorder, Fetal Alcohol Syndrome (FAS). However, FAS only represents a small number of patients who fit within a category of debilitating mental conditions known collectively as the Fetal Alcohol Spectrum Disorders (FASD). Scientists estimate that there are at least three times as many cases of FASD as cases of FAS, but the incidence of FASD is difficult to quantify and likely to be greatly underestimated due to a lack of awareness, problems reporting the disorder, and difficulties in diagnosing the disorder.

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The Vulnerabilities of the Patient Protection and Affordable Care Act and the Tragedy of Repeal

38 Rutgers L. Rec. 153 (2011) | WestLaw | LexisNexis | PDF
The Patient Protection and Affordable Care Act, (the “ACA”) passed by Congress on March 23 2010, and signed into law by President Barack Obama on March 30, 2010, is the first major health reform legislation to be enacted since 1965 when President Lyndon Johnson signed both Medicare and Medicaid into law. Although widely acknowledged as imperfect, the ACA is the first gateway to universal health insurance to survive the increasingly difficult legislative process. Although the vast majority of its provisions have not yet taken effect, the vulnerability of the Affordable Care Act to legislative repeal is exemplary of how the extraordinary political partisanship that permeates the American legislative process can play out. While health reform itself certainly did not cause the recent November 2, 2010 electoral “drubbing,” leadership in the House of Representatives will change as a result from Democrat to Republican and have a similarly significant effect in the U.S. Senate and state houses as well. Defeating “Obamacare,” which is and has been the rallying cry of many Republicans, has moved from an administrative irritation to a real concern.

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14 Penn Plaza v. Pyett: Into The Abyss Between Judicial Process and Collectively Bargained Agreements to Arbitrate Individual Statutory Claims

38 Rutgers L. Rec. 173 (2011) | WestLaw | LexisNexis | PDF
On April 1st, 2009 a bitterly divided United States Supreme Court, by a vote of 5-4, turned the world of labor arbitration on its head. The Court’s opinion in 14 Penn Plaza v. Pyett overturned 35 years of jurisprudence, grounded in Alexander v. Gardner-Denver Co. dictum, by establishing that collectively bargained clauses expressly authorizing the arbitration of statutory claims are enforceable, either compelling arbitration or precluding the grant of an award in a judicial action. Grounding their decision, in part, on the prominent “Steelworkers Trilogy” case United Steelworkers v. Enterprise Wheel, the Court in Pyett narrowed the Gardner-Denver Court’s view on whether a union can waive a member’s right to seek judicial determination of a statutory right.

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More than the Victims: A Public Health Approach to Bullying of LGBT Youth

38 Rutgers L. Rec. 163 (2011) | WestLaw | LexisNexis | PDF
2010 might one day be known as the year that school bullying began to be taken seriously. If so, the long-overdue focus on the problem can be traced to a number of closely clustered, high-profile events that ended in tragedy for teens who were bullied because of their real or perceived sexual orientation, or, in a closely related way, for their failure to conform to rigidly policed gender norms.

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Victims Once Again? Civil Party Participation before the Extraordinary Chambers in the Courts of Cambodia

38 Rutgers L. Rec. 34 (2011) | WestLaw | LexisNexis | PDF
The Extraordinary Chambers in the Courts of Cambodia’s (ECCC) scheme for survivor participation has been hailed as groundbreaking and unprecedented, due in large part to the recognition of certain survivors as “civil parties” who were to be treated as full parties to the proceedings. Unlike the International Criminal Court (ICC) or various ad hoc international war crimes tribunals such as the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), which purposefully circumscribe the role of survivors in their proceedings, the ECCC was “designed to allow victims a more robust, substantive role in the tribunal than any predecessor institution in modern international criminal law.”

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