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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Disorder In the Court!

For those who have occasion to practice in or to observe the Courts in other states, it has, until recently, been impossible to conclude other than that the New Jersey Courts, whatever flaws may exist, are among the best in the nation. Similarly, the New Jersey Supreme Court has been regarded as one of the best of the states’ highest Courts in the nation.1 Continue reading

Updated Speakers List for Redefining Borders: Comprehensive Immigration Reform in the United States

The Rutgers Law Record and the Rutgers Immigrant Rights Collective are proud to announce the current lineup of speakers for upcoming symposium, Redefining Borders: Comprehensive Immigration Reform in the United States. The event will take place on March 4th at Rutgers School of Law – Newark. Admission is FREE, breakfast will be served at 8:30 and lunch will be provided.   Continue reading

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.

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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.

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