Registration Open for Symposium 2011 – Redefining Borders: Comprehensive Immigration Reform in the United States

Registration for the 2011 Symposium is open. On March 4th, 2011, The Rutgers Law Record and The Immigrant Rights Collective will host a day long symposium on comprehensive immigration reform. Professors and practitioners will congregate at Rutgers School of Law – Newark to discuss the various issues that are raised by the current immigration system in the United States. The day will be broken up into four separate panels that will focus on Business and Employment Immigration, Family Immigration, Detention and Enforcement, and Asylum. Each panel will have multiple speakers who will be speaking on specific issues that have been raised in that area of immigration law and potential solutions to these problems. Admission to the event is free and lunch will be served. For more information, e-mail The Rutgers Law Record at lawrecord@lawrecord.com. Continue reading

The Patient Protection and Affordable Care Act of 2010: Rulemaking in the Shadow of Incentive-Based Regulation

38 Rutgers L. Rec. 141 (2011) | WestLaw | LexisNexis | PDF
The federal courts are unevenly divided in their treatment of the initial constitutional challenges to the Patient Protection and Affordable Care Act of 2010 (“Affordable Care Act”). Two district judges have ruled that the individual mandate provision of the law exceeds Congress’s constitutional authority and one has struck down the law in its entirety. Many more district judges have used the Twombly and Iqbal-emboldened Federal Rule of Civil Procedure 12(b)(6) to turn away similar challenges across the country. Although the question is years from final resolution, it appears that the 111th Congress internalized U.S. Supreme Court decisions limiting its power under the Commerce Clause, anticipating constitutional challenges to the individual mandate to purchase health insurance, Medicaid expansion and insurance exchange regimes and structuring the law to survive those challenges.

View the entire article –>

The Person Having Ordinary Skill In The Arts In Assessing Obviousness Standard In The United States and Taiwan After KSR – Implications For Taiwan Patent Law And Practice

38 Rutgers L. Rec. 18 (2011) | WestLaw | LexisNexis | PDF
The Person Having Ordinary Skill in the Arts (PHOSITA) is a critical standard in determining whether an invention satisfies the “obviousness” and “inventive step” requirements of the U.S. and Taiwan respectively. The concept of the PHOSITA first originated from the 1850 Supreme Court ruling in Hotchkiss v. Greenwood and later was codified into the U.S. Patent Act of 1952. Often a recipient of U.S. patent jurisprudence, Taiwan has incorporated the PHOSITA concept in its 1979 Patent Act amendment. However, in practice, the application of the PHOSITA has been largely ignored in both the U.S. and Taiwan. Not only was the PHOSITA concept largely ignored in Taiwan, in practice the satisfaction of the “inventive step” requirement could be obtained simply on a showing of “unexpected efficacy.” In this regard, Taiwan has relied on the Taiwan Intellectual Property Office (TIPO) Invention Patent Examination Guideline (2009) to support the abdication of the “inventive step” requirement.

View the entire article –>

Placing Myself On The No-Fly List

In March 2010, the Transportation Security Administration (‘TSA’) began rolling out its Advanced Imaging Technology (‘AIT’). The AIT, also known as the Full Body Scanner, penetrates clothing with a burst of radiation which provides an image of the passenger’s naked body along with any guns, weapons or items secreted on the passenger. The TSA stated the new scanning devices were to “ensure travel remains safe and secure.” In late 2010, the TSA announced it was implementing new pat-down procedures. These new ”enhanced” pat-downs were put in place in order to “keep the traveling public safe.” The AIT and enhanced pat-downs permit what some have described as a sexual assault on today’s airline passenger. When a passenger is selected for enhanced screening, they have two choices: be viewed naked or be groped. Continue reading

Appellate Activism: Using The Appellate Division’s Original Jurisdiction To Reduce The Time And Money Spent On Family Matters In New Jersey

38 Rutgers L. Rec. 133 (2011) | WestLaw | LexisNexis | PDF
Although precedent suggests that New Jersey’s appellate judges must be cautious when encroaching into areas best left to the expertise of the family court, there are often times on appeal when a sufficient factual record exists for the Appellate Division to decide any lingering questions without the need for a further remand. The objective of this article is to show that by invoking its original jurisdiction authority, the Appellate Division can reduce the time and resources spent on family-related litigation. Indeed, the appellate court should not hesitate to invoke original jurisdiction when deciding contentious family matters that have been the subject of prolonged litigation. Part I of this article discusses the financial and emotional burden that litigation places on families, while Part II addresses the basis of the Appellate Division’s original jurisdiction authority and the benefits of its use. Part III analyzes recent family cases where the Appellate Division used its original jurisdiction power, providing practitioners with concrete examples of when the authority can be properly invoked to bring about a timely end to litigation. Finally, Part IV assesses how to prevent the appellate court from overreaching into areas best left to the Family Part.

View the entire article –>

Empowering the Sentencing Commission: A Different Resolution to the Cocaine Sentencing Drama

38 Rutgers L. Rec. 74 (2011) | WestLaw | LexisNexis | PDF
Cocaine sentencing policy has been the source of vociferous debate for more than twenty
years. Under the traditional sentencing scheme, criminal defendants convicted of crack cocaine offenses (who were usually black) were disproportionately sentenced to longer prison terms than defendants convicted of powder cocaine offenses (who were usually not). Despite decades of criticisms toward this disparity, Congress did not change the sentencing law until August 2010. On the other hand, the United States Sentencing Commission was an unlikely hero that affirmatively acted to reduce the disparity between crack and powder cocaine sentences. That role is largely underappreciated. Based on the Commission’s 2007 retroactive amendment that reduced the sentencing guideline ranges for crack convictions, Congress should recognize the value of the Commission and grant it additional power.

View the entire article –>

Rutgers Law Record Launches the Rutgers Law Record Blog

As part of our ongoing process to increase discussion and encourage debate on legal issues that effect our society, the Rutgers Law Record is proud to present the Rutgers Law Record Blog.  This space is open to professors, practitioners, and students to share their thoughts about ongoing legal topics. While this space is moderated to maintain the quality and decorum of the discussion, it is open to anyone who wishes to contribute, react to, or comment on these important topics.

Our goal is to use the internet to provide timely and thoughtful analysis of legal issues in our society. We also believe that meaningful discussion, analysis and commentary can occur in shorter pieces as well as longer articles. Entries should be between 1 and 10 single-spaced pages. While these entries do not need extensive citation, any assertion must be supported by a reliable source in the form of a footnote. A submission will be reviewed by the editorial board of the Rutgers Law Record and will not be rejected until it has been reviewed by at least three members of the editorial board. The individual members will review the article for clarity, grammar, citation form, citation strength. and the strength of the argument. For more information, or to submit an entry, please contact the Law Record at lawrecord@lawrecord.com.

China’s Approaches To Intellectual Property Infringement On The Internet

38 Rutgers L. Rec. 1 (2011) | WestLaw | LexisNexis | PDF
The state of intellectual property infringement jurisprudence on the Internet is rapidly changing. Neither the courts nor rights holders who have relied on the legacy frameworks yet understand how to address the new market or technological landscape that the Internet is painting around them.  Search engines, auction sites, and social networks are each examples of an Online Service Provider (“OSP”). These OSP’s form the core of OSP’s with which the law in each country must contend.  These OSP’s are of central importance because they are the loci of a great amount of infringement in both copyright and trademark in international trade.  The issue is complicated because communities of people not affiliated with the OSP are often the main contributors of the infringing content.  In light of recent cases in Asia, where courts have applied different methodologies and thus reached different conclusions, it is crucial to understand to what degree OSP’s are liable for infringing content on their sites.

View the entire article –>

Welcome to the Rutgers Law Record

Welcome to the Rutgers Law Record! Thank you for coming to our website and taking the time to view some of our content. The Rutgers Law Record uses the internet to present a new and fresh take on legal scholarship. Through our various types of content, we hope to create a healthy and robust dialogue on the important legal issues that our society is facing.

The Rutgers Law Record is the online journal of Rutgers School of Law – Newark. It is the first and only general interest student journal to be published solely on the internet. Due to our unique publishing format, we are capable of providing timely and efficient coverage of the most pressing legal issues. Through our forum, the legal community may discuss and debate developments in the legal system and propose solutions to the problems that our society faces.

The Rutgers Law Record provides three different types of content. First, we publish articles similar to those that you would find in a standard law review. These “feature” articles focus on a particular area that was decided by the Law Record staff. In addition, the Rutgers Law Record publishes shorter articles on recent developments in our society. These articles may be on any topic and, although we will consider longer articles, do not need to be more than 15 single-spaced pages. Finally, the Rutgers Law Record publishes “blogs” on any current issue. These “blogs” may be as short or as long as necessary to present an issue and suggest a possible solution.

In the interest of providing a forum for debate and discussion, the Rutgers Law Record accepts responses and reactions to any of the content that we publish. These responses may be any of the formats used by the Rutgers Law Record.

For more information on the Rutgers Law Record, please contact us at lawrecord@lawrecord.com