On July 5, 2011, after only eleven hours of deliberation and no request to review evidence, a twelve-person jury found twenty-five year old Casey Anthony not guilty of murdering her two year old daughter, Caylee.1 The two-year old had been missing since June of 2008, however, the authorities were not notified until thirty-one days later at which point Casey began to weave a web of lies about her daughter’s whereabouts. In December of 2008, Caylee’s skeletal remains were found in the woods near her family’s home and Casey was indicted for Caylee’s murder soon after.2 The story quickly grabbed the media’s attention but it was not until the trial that the American people became captivated by the possibility that a young mother like Casey could murder such a beautiful little girl like Caylee.3 Had Casey been convicted, she would have faced the death penalty.4 Continue reading
Multiple Defendant Cases: When the Death Penalty is Imposed on the Less Culpable Offender
38 Rutgers L. Rec. 119 (2011) | WestLaw | LexisNexis | PDF
When more than one person is involved in a crime resulting in death, in most jurisdictions the felony murder doctrine operates to render everyone equally responsible for murder. Lay people often find it surprising, and somewhat disturbing, that the “lookout” is exposed to the same range of penalties, generally including life sentences, as the person who actually pulled the trigger. The stakes are even higher in jurisdictions with the death penalty. The Supreme Court has limited application of capital punishment in the felony murder context to “major participants” in the felony who displayed at least “reckless indifference to the value of human life.” Nonetheless, the triggerman may well receive a life sentence, or even a term of years, while another participant is sentenced to death. Indeed, the person against whom the evidence is the strongest has the greatest incentive to agree to enter a guilty plea and testify against his accomplices in exchange for a prosecutor’s promise not to seek a death sentence. The facts of cases as described in court opinions at times suggest that accomplices who testify minimize their own role so as to enable the prosecution to secure a death sentence against another participant. Accordingly, defendants may be executed based on unreliable accomplice testimony while the more culpable participant in the events leading to the victim’s death receives a lesser penalty. Interviews with jurors who deliberated on cases involving accomplices confirm the difficulties of sorting out the relative culpability of various participants. This Essay suggests that multiple defendant capital cases pose particular challenges for fair and even-handed application of capital punishment that warrant more careful scrutiny than they have so far received.
“Using Persons” and the Justification of Punishment
38 Rutgers L. Rec. 112 (2011) | WestLaw | LexisNexis | PDF
The short essay that follows has a very modest ambition. I want to explain why I have difficulty understanding a common motif in discussions of the moral status of criminal punishment. The goal is to stimulate other, more acute scholars to dispel the confusion and clarify the concept that is giving me such trouble.
Vernor v. Autodesk: An Erosion of First Sale Rights
38 Rutgers L. Rec. 213 (2011) | WestLaw | LexisNexis | PDF
The first-sale doctrine is a long-standing exception to the exclusive right to distribution granted under copyright law. It provides that a copyright holder, after the initial sale of a copy of a work, has no right to control any downstream sales, rentals, or lending of that same copy. The courts universally agree that works which are licensed by the copyright holder, due to the lack of initial sale, are not subject to the first sale doctrine. The recent Vernor v. Autodesk decision by the United States Court of Appeals for the Ninth Circuit examined the first sale doctrine, focusing on software licenses and their effects on downstream sales. The selling of software which was purchased from the original buyer and then subsequently sold on eBay was considered to be copyright infringement. The court considered the transfer of the software license, and in doing so very clearly delimited the defining features of what creates a license as opposed to a sale. The court, however, in laying out a very simply-followed cook-book-style recipe to avoid a first-sale, drastically shifts the rights of downstream consumers back to copyright holders, severely damaging a century’s worth of rights balancing which promotes restraints on alienation and the demise of secondary media markets. This paper begins with an overview of the relevant copyright law and introduces the Autodesk case. Following this is a discussion of the effects of the court’s decision on first-sale rights and the suggestion for Congressional intervention to help ameliorate the problems that will inevitably stem from this ruling.
Clearing and Trade Execution Requirements for OTC Derivatives Swaps Under the Frank- Dodd Wall Street Reform and Consumer Protection Act
38 Rutgers L. Rec. 227 (2011) | WestLaw | LexisNexis | PDF
This article examines Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the “Wall Street Transparency and Accountability Act of 2010” (the “Act”). The Act provides a comprehensive regulatory framework for swap transactions that designates the Commodities Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC) as the primary regulators of the over-the-counter (OTC) derivatives swap market. The Act provides a very broad definition of swaps to include most OTC derivatives transactions, and it grants the CFTC regulatory jurisdiction over them with the exception of security-based swaps to which the SEC is granted regulatory jurisdiction. Continue reading
New Governance and the Role of Public and Private Monitoring of Labor Conditions: Sweatshops and China Social Compliance for Textile and Apparel Industry/CSC9000T
38 Rutgers L. Rec. 49 (2011) | WestLaw | LexisNexis | PDF
Effective regulation has three essential components. First, the law must develop standards; second, there must be sufficient monitoring of compliance to detect non-compliance; and third, there must be some form of motivation to avoid non-compliance. The growth in international trade has created significant challenges for all three of these stages. This paper will focus upon the monitoring stage and analyze emerging regulatory vehicles used to detect non-compliance. The traditional regulatory model involves a law, state inspectors and legal sanctions for non-compliance. One of the largest challenges for the state is how to adequately monitor compliance. Countries like the United States and China have literally tens of millions of workplaces. It is impossible for the state to monitor the activities in every workplace without the support of non-state actors.
Remediation of Unfair Labor Practices and the EFCA: Justifications, Criticisms, and Alternatives
38 Rutgers L. Rec. 197 (2011) | WestLaw | LexisNexis | PDF
There is widespread agreement that labor relations in America are in drastic need of reform. The National Labor Relations Board has a record backlog of cases, election disputes are taking unacceptably long to resolve, and unfair labor practices abound throughout the election and recognition process. The proposed Employee Free Choice Act is meant to address many of these systemic problems. This paper critically evaluates the remedial provisions of the Act, and suggests alternatives to improve the efficacy and political viability of labor law reform.
Defining Intellectual Disability: Fetal Alcohol Spectrum Disorders and Capital Punishment
38 Rutgers L. Rec. 97 (2011) | WestLaw | LexisNexis | PDF
The Center for Disease Control and Prevention estimates that, for every 1,000 live births in the United States, there are between 0.2 and 1.5 cases of a preventable mental disorder, Fetal Alcohol Syndrome (FAS). However, FAS only represents a small number of patients who fit within a category of debilitating mental conditions known collectively as the Fetal Alcohol Spectrum Disorders (FASD). Scientists estimate that there are at least three times as many cases of FASD as cases of FAS, but the incidence of FASD is difficult to quantify and likely to be greatly underestimated due to a lack of awareness, problems reporting the disorder, and difficulties in diagnosing the disorder.
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.
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.