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

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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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Patent Pools and Cumulative Innovation

46 Rutgers L. Rec. 40 (2018) | WestLaw | LexisNexis | PDF

The movement about open access to scientific knowledge has inspired many important discussions among policy makers. Under the backdrop of this movement is an increasing realization that the trajectory of innovation for modern technologies is cumulative as new innovations rely on taking advantage of what came before. Institutional theories have identified two essential requirements for cumulative innovation: disclosure and access. In 1962, Kenneth Arrow first recognized that the patent marketplace is an important venue where exchanges of innovative ideas occur. However, because of high transaction costs in patent licensing, access to patented knowledge is often impeded. Previous literatures have largely focused on modifications to patent law doctrines, such as patent scope or infringement remedy, to promote cumulative innovation. This article instead argues that a patent pool, a different type of institution for innovation, can spur cumulative innovation by facilitating access to patented knowledge. The article explains that a patent pool reduces transaction costs of patent licensing by aggregating related patents and centralizing licensing negotiations. Moreover, because creating a patent pool as a common knowledge space requires collaboration among patent owners, the success of a patent pool often depends on whether patent owners can overcome collaborative failures. The collective action theory, which identifies appropriation and provision as two essential issues for collaboration, provides the basic framework for the design of patent pools. This article will then offer three main design suggestions: (1) appropriation limitation is not necessary for the long-term sustainability of a patent pool; (2) in order to induce patent owners to join a patent pool, a patent pool should establish mechanisms that fairly allocate licensing revenue and reduce transaction costs of licensing; and (3) grant-back provisions are desirable to prevent a patent pool from becoming obsolescent.

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Was Allergan’s Patent-Housing Agreement In Exchange For Sovereign Immunity a “Sham to Subvert the Existing Intellectual Property System?”

46 Rutgers L. Rec. 31 (2018) | WestLaw | LexisNexis | PDF

Allergan plc (“Allergan”) holds several patents for its prescription dry-eye medication Restasis. In 2015, Allergan sued Mylan Pharmaceuticals Inc., Teva Pharmaceuticals USA Inc., and Akorn Inc., (the “Generic Manufacturers”), for patent infringement following their filings of abbreviated new drug applications (“ANDAs”) for generic versions of the branded drug. The Generic Manufacturers then petitioned for inter partes review (“IPR”) of those patents to the United States Patent and Trademark Office (“USPTO”). The Generic Manufacturers were seeking to invalidate the Restasis patents through the USPTO’s Patent Trial and Appeal Board (“PTAB”), which would open the door for generic versions of the drug. When a branded pharmaceutical drug is protected by a patent, the patent owner has exclusive rights to that drug, thereby preventing competitors from producing generics to compete with it. Therefore, the price of the branded drug remains high, and the pharmaceutical company effectively has a market monopoly on that drug. However, pharmaceutical companies are finding it difficult to maintain sales and profits amidst efforts to drive down drug prices through the fast-track, less expensive legal IPR process of attacks on drug patents.
This note will first discuss the old and new bail systems in New Jersey and explain why there was reform. The second section provides an overview of the deportation process for undocumented immigrants subjected to immigration detainers under both President Obama’s and President Trump’s enforcement policies. The last section is an analysis of how bail reform and President Trump’s immigration policies affects the criminal justice system within the context of undocumented immigrants.

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