The Rutgers Law Record

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.⁴ 

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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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.”¹ 

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).² 

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.³ 

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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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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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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Climate change is an existential phenomenon, which entails a wide variety of physical risks as well as sizeable but underappreciated economic risks. In March 2022, the U.S. Securities and Exchange Commission (SEC) moved to address some of the information gaps related to the effects of climate change on firms by proposing a rule that requires public companies to report detailed and standardized information about important climate-related matters for the benefit of investors and markets. Though the rule proposal was welcomed by many market participants, it was also met with a level of opposition that was unusual in both its intensity and consistency. Instead of following standard practice and engaging with the specific policy judgments made by the SEC in an effort to improve the final rule through constructive notice-and-comment rulemaking, many critics chose to attack every aspect of the rule proposal and the SEC’s very decision to pursue a climate disclosure rule. The critics disputed the SEC’s statutory authority and motivations, questioned the materiality of information about the economic impacts of climate change, and advanced certain novel administrative and constitutional law theories that had gained traction in other, unrelated contexts. Unless the SEC yields to pressure and abandons the climate disclosure project, these same arguments will serve as the basis for the widely predicted litigation against the final rule.

This Article presents an original analysis of some of the principal challenges to the SEC’s climate disclosure rule and, ultimately, finds them unpersuasive. A close review of the features of the traditional disclosure regime, many of them long forgotten, and of the features of the SEC’s rule, many of them distorted by the critics, suggests that the rule is in keeping with longstanding regulatory practice. In short, the SEC has the statutory authority to act, its motivations are neither improper nor novel, materiality, when properly understood, does not present an obstacle, and theories pertaining to “major questions” and “compelled speech” are misplaced in this context.

The Article contributes to the debate on climate-related disclosure in two ways. First, it draws attention to the flawed legal and policy arguments against the SEC’s climate disclosure initiative and the distracting rhetoric that has accompanied them. And, second, it highlights the rule’s core function, which is to put in place an information-generating framework to help capital markets and capital market participants—the primary intended beneficiaries of SEC regulation—with the climate-related economic challenges that lie ahead.

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