What a Decision on Affirmative Action Teaches About Taxation

51 Rutgers L. Rec. 102 (2023) | WestLaw | LexisNexis | PDF

I. INTRODUCTION

The 2023 U.S. Supreme Court decision Students for Fair Admissions v. Harvard1 has been described as a “landmark”2 decision with respect to affirmative action. The Court held that race-based admissions policies at two U.S. universities violated the Equal Protection Clause of the Fourteenth Amendment.3

At first glance, it may appear that Students has nothing to do with taxation. But closer examination reveals that Students is directly relevant to the U.S. nationality-based tax system.

This article: (II) situates the U.S. nationality-based tax system in the context of Fourteenth Amendment Equal Protection; and then (III) explains the relevance of Students for the U.S. nationality-based tax system.


1 Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023).

2 The Editorial Board, A Landmark for Racial Equality at the Supreme Court, Wall St. J. (June 29, 2023), https://www.wsj.com/articles/harvard-unc-students-for-fair-admissions-supreme-court-affirmative-action-john-roberts-clarence-thomas-racial-preferences-f8c998f6.

3 Students for Fair Admissions, Inc., 600 U.S. at 220; see also U.S. Const. amend. XIV, § 1.

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Unwanted Opt-in Text Messages as a Basis for Constitutional Standing

51 Rutgers L. Rec. 79 (2023) | WestLaw | LexisNexis | PDF

I. INTRODUCTION

A multi-circuit split has illuminated a new issue in constitutional law: whether receiving advertisements and promotions in the form of text messages may constitute an injury for the purposes of standing. A majority of the circuits have held that receipt of such text messages is sufficient to show injury, but the Eleventh Circuit has deviated from that pattern, holding that receipt of those text messages is insufficient to show injury.1 Because of the disparity in the circuit courts’ holdings, a fact intensive analysis should be employed.2 The main statute in question is the Telephone Consumer Protection Act (TCPA), which was intended to protect individuals against invasive telemarketing calls.3 One of the aims of the TCPA is to balance the privacy rights of consumers, while also making room for “legitimate telemarketing practices.”4 The recent circuit opinions regarding what types of communications that the TCPA covers have focused mainly on the former aim, while making little to no mention of the latter aim.5 This note suggests that the courts should give the second factor more weight when determining whether text messages constitute injury for the purposes of standing. While the importance of individual privacy rights cannot be understated, companies must be allowed some leeway in using technology to promote their goods and services, especially in situations where the consumer willingly provides a contact number, such as opt-in text messages from businesses. Furthermore, the courts should also take into consideration both the quantity of texts that the plaintiff has received and any action that the plaintiff has taken to stop the defendant from sending the text messages. If the plaintiff has voluntarily elected to receive such text messages, businesses should not be penalized for utilizing this channel of communication with consumers, especially given the aforementioned aims of the TCPA.

Part II of this note will discuss an overview of the TCPA, including its history and the plaintiff’s burden in establishing standing under the TCPA. Part III will continue the discussion with an analysis of the current difficulties in applying the TCPA to various forms of communication, as well as how various circuit courts have used the TCPA in these situations. In Part III, this note will also argue that the circuits should consider both the quantity of the texts that the plaintiff has received and the plaintiff’s own actions in receiving the initial text messages. Part IV discusses the current actions that the legislature and the FCC have taken to refine the TCPA.


1 See Salcedo v. Hanna, 936 F.3d 1162, 1173 (11th Cir. 2019).

2 Id.

3 Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2(7), 105 Stat. 2394, 2394.

4 Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2(9), 105 Stat. 2394, 2394.

5 See Cranor v. 5 Star Nutrition, L.L.C., 998 F.3d 686, 692 (5th Cir. 2021); see also Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1040 (9th Cir. 2017).

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You Drink, You Drive, You Pay: An Analysis of Victim Compensation Methods Across the United States in Light of the Increasing State Interest in Bentley’s Law

51 Rutgers L. Rec. 50 (2023) | WestLaw | LexisNexis | PDF

I. INTRODUCTION 

The epidemic of drunk driving has reared its monstrous head across the nation’s highways for years.1 Approximately thirty-two people die in drunk-driving crashes every day in the United States alone, amounting to the loss of a human life “every 45 minutes.”2 Not only has drunk-driving had deleterious effects on the safety of those on our roadways, but it has been felt in the pockets of our government, costing the United States approximately “$44 billion [dollars] annually.”3 States have responded to this growing crisis through legislation in a number of ways, spanning from the mandatory placement of ignition interlock device in the vehicles of DUI offenders to a conditional release from custody pending completion of a rehabilitation program.

However, the families of deceased victims are often left to pick up the pieces on their own, usually with little assistance from state entities. For those who were dependent on the victim, such as young children, civil recourse is typically limited to wrongful death actions, funds obtained from a state Victim’s Compensation Fund, or through court-ordered restitution to be paid by the convicted DUI offender. While no form of civil recovery can ever fully replace the loss of the victim, each of these forms of compensation carry with them a suite of issues for the families of DUI victims that generally render them unable to even come close to partial compensation. 

This Note will proceed in four parts. Part I of this Note will discuss the history of one piece of legislation challenging the current state of victim’s compensation for fatal drunk driving collisions, known as “Bentley’s Law,”5 will lay out the requirements of bringing a successful claim under the law, and will explain how it differs from current forms of compensation. Next, Part II will briefly discuss the current state of victim compensation available for children of DUI victims in the states that have yet to adopt Bentley’s Law. With this background, Part III will compare the shortcomings of these current avenues of compensation with the existing statutory requirements of Bentley’s Law and will discuss how Bentley’s Law will aid victims in ways other methods of victim compensation do not. Finally, due to the novelty of the law, Part IV will discuss questions raised on aspects of Bentley’s Law and will examine how the legislation will be utilized in the judicial system. 


1 The Drunk Driving Epidemic, ROBERT J. DEBRY & ASSOCS., https://robertdebry.com/drunk-driving-epidemic/ (last visited Jan. 15, 2023).

2 Drunk Driving, NHSTA, https://www.nhtsa.gov/risky-driving/drunk-driving (last visited Jan. 15, 2023).  

3 Id.

4 See State Ignition Interlock Laws, NAT’L CONF. STATE LEGIS. (Sept. 24, 2021), https://www.ncsl.org/transportation/state-ignition-interlock-laws (“As of 2021, thirty states and the District of Columbia have implemented laws “requiring all offenders, including first-time offenders, to install an IID.”); see also ALA. CODE § 32-5A-191(k) (2022) (requiring any person convicted of driving while under the influence to “complete a DUI or substance abuse court referral program”); ARIZ. REV. STAT. ANN. § 28-1381(j) (2022) (allowing “all but one day” of a DUI offender’s sentence to be suspended if the offender agrees to participate in and successfully completes a “court ordered alcohol or other drug screening, education or treatment program”).  

5 In the first district to have adopted Bentley’s Law, the Tennessee legislature has amended the law to be formally known as the “Ethan’s, Hailey’s and Bentley’s Law” to honor the children of Missouri couple Cordell Shawn Michael Williams and Lacey Williams as well as “fallen Chattanooga Police Office Nicholas Galinger[,]” all three of whom were victims of drunk driving collisions. Tennessee Governor Bill Lee Signs Ethan’s, Hailey’s and Bentley’s Law, MOTHERS AGAINST DRUNK DRIVING (July 7, 2022), https://madd.org/press-release/tennessee-governor-bill-lee-signs-ethans-haileys-and-bentleys-law. Because of its wide recognition in the media as “Bentley’s Law,” it will be addressed as such in this Note. 

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Case Study: Guiding Students and Employees to Recognize the Employer Risks of Employee Video Zoom while Driving

51 Rutgers L. Rec. 13 (2023) | WestLaw | LexisNexis | PDF

I. INTRODUCTION 

“Police caught an idiot driver in the middle of a Zoom video call while behind the wheel as he made his way to work yesterday.”1 That is an inflammatory statement, but many might feel the same way. “It beggars belief that a driver could think it’s safe to have a Zoom call while being in control of a car,” commented RAC road safety spokesman Simon Williams.2 Police officers spotted the car and pulled it over, finding that the driver had only a provisional license and no insurance.3 While this story led only to head-shaking, it could have been so much worse.4 The leading cause of injury and death in the workplace, according to the National Safety Council, is motor vehicle collisions.5 Employers need to have policies in place prohibiting employee participation in video Zoom6 calls while driving or employers could end up liable for the resulting crash.7 


1 Luke May, Virtual Insanity! Police Catch Idiot Driver Holding a ZOOM Video Call at the Wheel on his Way to Work, DAILY MAIL (Feb. 10, 2021), https://www.dailymail.co.uk/news/article-9244903/Driver-holds-ZOOM-video-call-driving-work.html. 

2 Id. RAC is the UK motoring organization, similar to the AAA in the United States.  

3 Id.

4 Id.

5 Frankenmuth Ins., Commercial Fleet and Delivery Drivers: 5 Tips to Prevent Distracted Driving, FMIN, (July 9, 2020), https://www.dailymail.co.uk/news/article-9244903/Driver-holds-ZOOM-video-call-driving-work.html.

6 While this article focuses on Zoom, the same applies to FaceTime, Skype, WebEx, Teams, or any similar platform. For example, on June 7, 2021, Apple announced new features for its FaceTime app to allow enhanced video calls, appearing to make it more competitive with Zoom. Press Release, Apple Inc., iOs15 brings new ways to stay connected and powerful features that help users focus, explore, and do more with on-device intelligence (June 7, 2021), available at https:/www.apple.com/newsroom/2021/06/ios-15-brings-powerful-new-features-to-stay-connected-focus-explore-and-more/ No such new features should be used while driving.  

7 See Lisa Nagele-Piazza, Employers Can Be Liable For Distracted Driving, SHRM, (Oct. 29, 2018), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/employers-can-be-liable-for-distracted-driving.aspx.  

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The Curious Incident of the Dog in the Nighttime: Interstate Compacts and Textual Silence

51 Rutgers L. Rec. 1 (2023) | WestLaw | LexisNexis | PDF

I. INTRODUCTION 

“Scotland Yard Detective Gregory: Is there any other point to which you would wish to draw my attention? 

Sherlock Holmes: To the curious incident of the dog in the night-time. 

Gregory: The dog did nothing in the night-time. 

Holmes: That was the curious incident.”

On April 18, 2023, the United States Supreme Court ended the 70-year history of the Waterfront Compact of New York Harbor because of the silence of the dog in the night-time, specifically the absence of a compact provision either authorizing or barring a member state’s unilateral withdrawal. Instead, the Court used background common law principles of contract law to affirm New Jersey’s right to unilaterally withdraw from the Compact. New York v. New Jersey, 143 S. Ct. 918 (2023).

Most judges and lawyers are not as inductively brilliant as Sherlock Holmes. Nevertheless, it should have come as no surprise that the Court would resort to background common law principles to fill in gaps in a congressionally approved compact in a dispute between member states, because it has done so at least twice before, including in a case involving the identical states.

This essay will examine how the Supreme Court has resolved disputes between member states arising under congressionally approved compacts when the compact is silent as to the controlling issue. 

Part II will review how congressionally approved compacts are treated under our federal system of government. 

Part III will examine how the Supreme Court treats statutory silence in general. 

Part IV will examine how the Supreme Court has treated silence in congressionally approved compacts in disputes between member states. 

Part V will offer a conclusion. 


1 Sir Arthur Conan Doyle, The Adventure of Silver Blaze, THE MEMOIRS OF SHERLOCK HOLMES (1894). 

2 The author has previously written about an earlier iteration of this case. Sheldon H. Laskin, The Nostalgia of Eternity: Interstate Compacts, Time, and Mortality, 49 RUTGERS L. REC. 25 (2021)

3 New Jersey v. New York, 523 U.S. 767 (1998) (common law of avulsion supports awarding New Jersey jurisdiction over filled portions of Ellis Island because Ellis Island Compact is silent as to filled land); Tarrant Regional Water District v. Herrmann, 569 U.S. 614 (2013) (common law principles support ruling that Red River Compact does not preempt Oklahoma’s water use statutes because Compact is silent on whether member state may meet its water allocation under the Compact by drawing on water located in another member state).

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Public Employee Speech and The Heckler’s Veto: Is There a Way Around It?

50 Rutgers L. Rec. 278 (2023) | WestLaw | LexisNexis | PDF

The law that governs public employee speech has engendered some serious criticism. Public employers can impose adverse employment actions (suspensions, firings, denying raises or promotions) for much speech that would be protected by the First Amendment from any action the government might take as a sovereign (fines, jail, etc.). Most conspicuously, if an employer reasonably predicts “disruption” as a result of the speech – which, in this day and age, can be caused by the simple disagreement of an intended or entirely unintended audience – it can impose an adverse employment consequence on its employee. This problem, sometimes referred to as the “heckler’s veto” because it elevates the views of opponents of the speech, lurks over the area of public employee speech.1


1 Patrick Schmidt, Heckler’s Veto, THE FIRST AMENDMENT ENCYCLOPEDIA (2009), https://www.mtsu.edu/first-amendment/article/968/heckler-s-veto.

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New Data Needed: Improving New Jersey’s Enforcement of Employee Misclassification Laws

50 Rutgers L. Rec. 248 (2023) | WestLaw | LexisNexis | PDF

Introduction

In the United States, thousands of employees in the private sector are misclassified as independent contractors.1 Employers have used misclassification to withhold workers’ benefits such as well-earned wages, benefits, and sick leave.2 This has a deleterious effect on working conditions and a cumulative effect on income inequality.3 The rise of employee misclassification has both federal and state governments scrambling to enforce employee misclassification statutes with mixed results.4 Although some states use a broader definition of what constitutes an employee to enforce employee misclassification, the number of misclassifications demonstrates effective enforcement is still an ongoing issue.5 Because of this lack of effective enforcement, employee misclassification persists in the workforce.6


1Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and State Treasuries, National Employment Law Project (October 2020), https://s27147.pcdn.co/wp-content/uploads/Independent- Contractor-Misclassification-Imposes-Huge-Costs-Indep
2 Kerri Keohane and David Schap, Employee Misclassification and Related Damages Claims, 27 J. LEGAL ECON. 63, 64 (July 2021).
3 See Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and State Treasuries NATIONAL EMPLOYMENT LAW PROJECT, https://www.nelp.org/publication/independent-contractor- misclassification-imposes-huge-costs-workers-federal-state-treasuries-update-october-2020/See Eric Posner, How Antitrust Failed Workers, BOSTON REVIEW (Nov. 23, 2021) https://bostonreview.net/articles/competition-is-not-the- cure/.
4 Rebecca Rainey and Ian Kullgren U.S. Labor Agencies Strike Deal to Share Enforcement Information, BLOOMBERG LAW (Jan. 6, 2022), https://news.bloomberglaw.com/daily-labor-report/u-s-labor-agencies-strike-deal- to-share-enforcement-information; Sean Golonka, State task force sets sights on multimillion-dollar problem of employee misclassification, The Nevada Independent (Apr. 12, 2021), https://thenevadaindependent.com/article/state-task-force-sets-sights-on-multimillion-dollar-problem-of-employ; Francoise Carre, (In)dependant Contractor Misclassification, ECONOMIC POLICY INSTITUTE (June 8, 2015), https://www.epi.org/publication/independent-contractor-misclassification/.

5 See Carre, supra at note 1.
6 See Louise Esola, N.J. calls for wider employee misclassification enforcement, BUSINESS INSURANCE, (July 11, 2019), https://www.businessinsurance.com/article/20190711/NEWS08/912329545/NJ-calls-for-wider-employee- misclassification-enforcement.

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Like Taking Candy from a Baby: How the Government Easily and Legally Steals Millions from The Children in Their Care & Why it Needs to Stop

50 Rutgers L. Rec. 222 (2023) | WestLaw | LexisNexis | PDF

1. Introduction

As of September 2020, there were approximately 400,000 children in the foster care system; 10% of these children are entitled to some form of Social Security benefits that they do not receive despite it being considered their property.1 In an investigation by The Marshall Project and NPR, it was found that a majority of the states and Washington, D.C., not only reimburse themselves using the child’s benefits but actively seek out youth in the system that may qualify for government benefits, all without letting the child or their legal representation know about these benefits.2 Each year, the foster care agencies take at least $250 million from foster children receiving Supplemental Security Insurance (SSI) and/or Old-Age, Survivors, and Disability Insurance (OASDI)—benefits that are the property of these children.3 The foster care agenciesdo this all legally under the Social Security Act as the child’s representative payee, which was upheld as not in violation of the Social Security Act Anti-Attachment Provision, in the 2003 Supreme Court case Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler.4

This note explores the Keffeler decision itself, the questions that remain following Keffeler regarding the ethics and negative social consequences in continuing to allow child welfare agencies to act as the child’s representative payee, and recent federal and state cases. Next, this note will examine the child welfare reform movement, the shift to the privatization of the state and local foster care agencies, and the devastating effects of the privatization on foster youth. Lastly, this note will consider Maryland’s recent legislation limiting the amount of money the agencies can take from a child to reimburse themselves, what other states need to do in order to do what is actually in the best interest of the child, and how life changing saving and investing the benefit payments for the foster youth after they age out of the system.


1 U.S. DEP’T OF HEALTH AND HUMAN SERVICES, THE AFCARS REPORT: PRELIMINARY FY 2020 ESTIMATES AS OF OCT. 4, 2021 – NO. 28 (2021).
2 Eli Hager & Joseph Shapiro, State Foster Care Agencies Take Millions Of Dollars Owed to Children In Their Care, NPR (Apr. 22, 2021), https://www.npr.org/2021/04/22/988806806/state-foster-care-agencies-take-millions-of- dollars-owed-to-children-in-their-ca.
3 DANIEL L. HATCHER, THE POVERTY INDUSTRY: THE EXPLOITATION OF AMERICA’S MOST VULNERABLE CITIZENS 80 (2016).
4 Washington State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371 (2003).

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Corporatizing Administrative Law In Ghana: Lessons From US and UK

50 Rutgers L. Rec. 187 (2023) | WestLaw | LexisNexis | PDF

Abstract

This paper adopts a functionalist comparative law method to put forward a corporatized administrative law theory in comparative administrative law. It examines how different administrative law systems corporatize administrative law. It looks specifically at how English and American Administrative law systems, as comparators for Ghana, address corporatisation. Ghana’s industrialization drive is the background to this study. This industrialization policy is intended to be private-sector-led. But the private sector is excluded from the policy making process in the country. Therefore, by corporatization, the paper makes a case for the formal recognition of industry in the policy making process. In hybridizing between the US and the UK, it argues for the establishment of a Public Business Tribunal, and adoption of an Administrative Procedure Act (APA) in Ghana.

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Contempt of Congress and Election Interference

50 Rutgers L. Rec. 131 (2023) | WestLaw | LexisNexis | PDF

I.INTRODUCTION

And because Elections ought to be free, the King commandeth upon great Forfeiture, that [no Man] by Force of Arms, nor by Malice, or Menacing, shall disturb any to make free Election.

– Statute of Westminster the First of 1275, 3 Edw. 3, c. 5

Contempt of Congress and Election Interference

On July 11, 1958, the United States Congress passed Joint Resolution 175, a code of ethics binding every employee of the federal government:

Any person in Government service should:

1. Put loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department.

2. Uphold the Constitution, laws, and legal regulations of the United States and of all governments therein and never be a party to their evasion.

***

9. Expose corruption wherever discovered.

10. Uphold these principles, ever conscious that public office is a public trust.1

Few things expose the weakness of a politician’s commitment to these principles of public service like the heat of a contested election. The chaos of public uproar molds his mettle. The hammer of adversity pounds his principles. The friction between competing interests tempers his tenacity. The 2020 Presidential Election of the United States was such a contest.

By January 1, 2021, the outcome of the election was clear. President-elect Joseph R. Biden defeated incumbent President Donald A. Trump. But several members of Congress resisted the proven legitimacy of the Democratic victory. They propounded the idea that the election was stolen through voter fraud—“the Great Lie.” These members shamelessly fed this conspiracy using their soapboxes and social media accounts. The hot air spewing from these members combined with the humidity of an acrimonious political environment to create a perfect storm.

On January 6, 2021, a joint session of Congress convened to certify the election in President-elect Biden’s favor. President Trump and his personal lawyer, Rudolph W. Giuliani, preached vitriolic sermons decrying the election outcome just down the street at a “Save America” rally. Their pugnacious tone created an electric field ripe for a discharge of violence. Some of the protestors attending the rally transformed into a mob and diverted to the United States Capitol. The rioters stormed the halls of Congress like a microburst. The disturbance was sudden and terrifying, temporarily suspending the certification proceedings, and in its wake, creating a deluge of controversy.

In the aftermath of the Trump Riot, Representative Zoe Lofgren (Democrat, California), Chair of the House Committee on Administration, produced a social media report documenting the efforts of fellow members to overturn the election. In her opening letter, Representative Lofgren noted that “Congress has broad and express authority under Article I to ‘punish its Members for disorderly Behaviour.’ More research on this question is warranted.” This article fulfills that warrant.2

I contend that Congress can vindicate assaults on the integrity of federal elections through contempt proceedings. I provide an extensive survey of relevant legislative history in Part II: I highlight three English contempt precedents and three American contested election precedents. I then explain how Congress can synthesize these two bodies of precedent with its current rules and procedures to hold members of the public, members of Congress, and members of the executive accountable for contemptuous interference with federal elections in Part III. Part IV concludes. Although I am fully aware of how arcane and politically impractical contempt proceedings may seem, contempt power remains an important vehicle for Congress to vindicate itself when other options are unavailing.


1 H.R. Con. Res. 175, 85th Cong. (July 11, 1958).

2 STAFF OF S. COMM. ON HOMELAND SEC. AND GOVERNMENTAL AFF. & S. COMM. ON RULES AND ADMIN., 117TH CONG., EXAMINING THE U.S. CAPITOL ATTACK: A REVIEW OF THE SECURITY, PLANNING, AND RESPONSE FAILURES TO JANUARY 6, 1 (2021); ZOE LOFGREN, SOCIAL MEDIA REVIEW: MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVES WHO VOTED TO OVERTURN THE 2020 PRESIDENTIAL ELECTION 2–3 (2021)[hereinafter, “HOUSE 2020 PRESIDENTIAL ELECTION SOCIAL MEDIA REVIEW”].

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