Free of Charge: An Analysis of Absolute Immunity in Prosecutorial Misconduct

47 Rutgers L. Rec. 145 (2019) | WestLaw | LexisNexis | PDF

Since the 1990s, prosecutors around the country have come under fire for misusing or abusing the power of prosecutorial discretion. Recently, the public has focused on how prosecutorial misconduct may result in convicting an innocent person and therefore, contributing to wrongful conviction rates. Prosecutorial misconduct can take many forms, such as withholding evidence, purposefully delaying the trial, or not giving the defense proper time to prepare their case. However, the current procedures in place are weak and ineffective as it relates to reprimanding a prosecutor for abusing that discretion or breaking rules. Prosecutorial misconduct is defined as any conduct which violates court rules or ethical standards of a practicing attorney and does not include good-faith errors. All prosecutors across the United States have immunity for acts done within the scope of their employment. Therefore, unless a state has adopted legislation to strip prosecutors of their absolute immunity, there is generally no liability or penalty for prosecutorial misconduct. In cases where a prosecutor commits misconduct, the state is in charge of reprimanding the prosecutor. The American Bar Association (ABA) has guidelines and model rules that states can choose to adopt to hold prosecutors accountable. It is uncommon to hear of a prosecutor being sanctioned or reprimanded for any type of misconduct.

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Of Two Evils, Choose Neither. The Bifurcated Church Plan Election.

47 Rutgers L. Rec. 104 (2019) | WestLaw | LexisNexis | PDF

Millions of Americans get their healthcare through health plans that are provided by a religious employer. Nearly all of these health plans invoke “church plan” status as a means to legally exclude coverage of medically-approved procedures they deem morally-objectionable. The 2017 Supreme Court holding in Advocate Health Care Network v. Stapleton extends church plan protections to plans covering many more millions of employees of religiously-affiliated entities. However, religious employers that exclude these procedures based on church plan status risk violating state law, and can make the plan a target for costly employee lawsuits.

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The Internet of Things – The Internet of Things or of Human Objects? Mechanizing the New Social Order

47 Rutgers L. Rec. 15 (2019) | WestLaw | LexisNexis | PDF

Like the printed book, the Internet of Thing [IoT] has also changed the perception of reality and conceptions of social interaction. It has changed the levels of how information is perceived and viewed. For many people, it is the sharing of mostly personal information via social networks that extends from a personal face-to-face interaction to a global communication; a form of communication that is accessible to many in an instant and retransmitted to a global audience. With the speed and volume of transmission(s), the Internet has created a different social construction of reality and has assisted the spread of knowledge; however, it has also been the source of misinformation.

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Articulating Justice: The Continental Tradition and the Rule and Language of Law

47 Rutgers L. Rec. 1 (2019) | WestLaw | LexisNexis | PDF

The contemporary era is frequently characterized as one in which the law’s legitimacy is under assault. In the popular imagination, this assault inexorably follows from the embrace of a Continental philosophical tradition that claims that “all truths are partial.” Yet a more careful examination of several seminal Continental thinkers suggests that the Continental tradition provides the theoretical foundation for the rule of law that our pluralistic age increasingly lacks. I argue that Continental thought both legitimates American legal traditions and institutions while providing the justification for their dynamism and growth in the face of evolving notions of justice.

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Telling the Story: Theme and Rhetoric in Asylum Cases

46 Rutgers L. Rec. 196 (2019) | WestLaw | LexisNexis | PDF

Rhetorical strategies, themes, and interpretive framing allow the speaker to control the narrative when presenting oral testimony in asylum cases. These formal elements help structure traumatic events and memories into a coherent story that will engage the judge and enable the court to see the situation from the asylum seeker’s worldview. In the context of asylum applications, even the most deserving claimant may be unable to deliver their testimony in a coherent or compelling manner without the assistance of an effective advocate, due to the severe trauma that he or she experienced – and the trauma that he or she must once again undergo by having to retell and relive these experiences in the courtroom. It is crucial, therefore, that immigration lawyers acting in these proceedings consciously utilize these rhetorical techniques in order to facilitate the delivery by their clients of narratives that are credible, humanizing, and persuasive to the court. It is equally important that the lawyers representing the Department of Homeland Security be sensitized in this area so they are able to separate out any genuine issues of material fact and law critical to a fair analyzation of the asylum claim.

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The Government’s Power to Block on Twitter: A First Amendment Analysis

46 Rutgers L. Rec. 161 (2019) | WestLaw | LexisNexis | PDF

Today, the vast exchange of political ideas occurs on forums like Twitter and Facebook. When scrolling on social media, the public has become “entitled to believe [] that they are viewing something of a representative cross-section” between the public’s reactions and the government’s reaction to their pronouncements. A government official’s social media account is used as a means to communicate with the public, thereby creating an appearance of a public forum. Electronic communication of this nature is so popular because it is “inexpensive,” “fast,” and “reaches a wide audience.” However, this new way to communicate comes with increased constitutional responsibilities.

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Regatta Revisited: The Race for Equity in Virtual Sports

46 Rutgers L. Rec. 151 (2019) | WestLaw | LexisNexis | PDF

In today’s internet driven world, virtual sports tournaments where competitors from across the globe use exercise machines connected via cyber technology are becoming increasingly popular. These competitions, in which athletes can participate from afar, have the potential to increase inclusion for athletes with disabilities. However, many virtual athletic competitions currently fall short of the mandate that organizers accommodate and reward disabled athletes in ways comparable to nondisabled athletes. Specifically, disabled athletes are far too often not equitably categorized into competitive classifications according to their impairments and disabilities. This discriminatory practice affects notions of fairness for disabled athletes. This note is the first to shed light on the regulatory and legal aspects of virtual sport tournaments and aims to recommend policy to ensure equity in those competitions for disabled athletes. Almost thirty years have passed since Congress enacted the Americans with Disabilities Act (ADA) which recognizes that “physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society.” The Paralympic Movement is also very clear about the importance of comparable opportunities for disabled and nondisabled athletes as essential for the inclusion of the former and for reducing disability stigma. We argue that when competition and award categories are delineated across nondisabled sports, it is imperative that opportunities are mirrored for disabled athletes.

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No Harm, No Foul? How Companies Can Limit Their Liability Under Federal Consumer Protection Statutes After Spokeo

46 Rutgers L. Rec. 125 (2019) | WestLaw | LexisNexis | PDF

Numerous companies have been hit with multi-million-dollar judgments or settled with consumers based on statutory damages from consumer protection statutes alone, which can easily derail a company’s financial stability. Given that some courts have allowed these “no-harm” injuries to meet standing requirements, companies will likely turn to legal and business strategies to help reduce their liability risk under these statutes. This Note is not premised on the fact that companies should not have any liability under these statutes, but rather that the pendulum has swung too far leaving companies in an unpredictable environment where one mistake can disrupt a company’s financial stability. Section I of this Note will analyze the most recent, relevant case law on standing when the alleged harm is based on a federal statute. Section II will focus on critical portions of the most frequently cited consumer protection statutes in “no-harm” cases. In Section III, this Note will discuss the business and legal solutions companies can use to help reduce liability in the scope of consumer protection statutes given the uncertainty in the courts following Spokeo. Finally, Section IV will address some of the initiatives introduced by the Federal Communications Commission (“FCC”) and FTC as well as those supported by pro-business groups which could help companies to more easily comply with the consumer protection statutes.

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Trump and Caribbean Xenophobia: The United States and The Dominican Republic

46 Rutgers L. Rec. 103 (2019) | WestLaw | LexisNexis | PDF

This article compares and contrasts the cases of immigrant narratives within the United States and the Dominican Republic; as well as the socioeconomic changes that have sparked a backlash among populations ostensibly aggrieved due to globalization and immigrants showing up in their communities. The political leadership in both countries supports their constituents’ grievances against immigrants, who fear the loss of their historical privilege as the demographics in their country are at an alleged tipping point. This article highlights the policies, legislation, and discourses that have targeted immigrants and their children, and discusses the cross-pollination of ideas among xenophobic political movements across the Global North.

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The Whistleblower Protection Statute: Its Impact on Chief Compliance Officers

46 Rutgers L. Rec. 73 (2019) | WestLaw | LexisNexis | PDF

The Supreme Court of the United States (“Supreme Court”) in Digital Realty Trust Inc. v. Somers and the Court of Appeals of New York in Sullivan v. Harnisch decided on a fundamental issue important to both chief compliance officers (“CCO”) and shareholders.
In Sullivan and Digital Realty Trust Inc. the courts held that the Dodd-Frank Act’s prohibition on employer retaliation against whistleblowers only extends to individuals who have reported the violations of securities laws directly to the Securities and Exchange Commission (“SEC”). The decision by both courts was troubling. These holdings would prove detrimental to CCO’s should they report any compliance concerns to management and to shareholders seeking company transparency.
This note will explore the critical question of whether public investment advisers and other entities should be given the unequivocal power to terminate the few employees who are charged with the statutorily mandated role of securing ethical and legal compliance. In Section II, I will explore the inception of the SEC and the relevant legislation and historical occurrences that gave rise to this issue. I will also discuss, in Section III, the imperative role CCO’s play in their respective industry as well as in the financial sector. In Sections IV, I will provide a summary of the importance of creating and maintaining a culture of compliance and briefly discuss the Dodd-Frank Act and the Sarbanes-Oxley Act’s whistleblower protection statutes. In Sections V, VI, and VII, I will examine the rulings in Sullivan v. Harnisch and Digital Realty Trust Inc. v. Somers and their impact on the compliance and financial industries. In Section VIII, I will argue that the rulings in Sullivan and Digital Realty Trust Inc. were in error. In addition to answering the question of whether entities should be given the unequivocal power to terminate CCO’s, in Section IX, I will propose a solution which would limit an entity’s incentive to terminate CCO’s for unjust reasons through the use of the 8-K disclosure form.

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