The SEC’s Climate Disclosure Rule: Critiquing the Critics

50 Rutgers L. Rec. 101 (2022) | WestLaw | LexisNexis | PDF

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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Re-interpreting and Amending the Wire Act and the Unlawful Gambling Enforcement Act to Address Modern Forms of Online Gambling

50 Rutgers L. Rec. 74 (2022) | WestLaw | LexisNexis | PDF

INTRODUCTION

Two current laws that address gambling activities are the Wire Act1 and the Unlawful Internet Gambling Enforcement Act2 (UIGEA). Both Acts are similar in that their history, application, and current overall strength are somewhat dim. For over a year now, the video streaming platform Twitch.com has developed a close relationship with online casino gambling sites. There is a large amount of business done between high earning Twitch streamers and online casino gambling sites.3 Many of these online casino sites are located offshore because the types of gaming practices they are engaged in are illegal in the U.S. However, they are still managing to make money from U.S. residents. Because of technological advancements, such as cryptocurrencies and virtual private networks (VPNs), these online practices have not been heavily regulated as of this point. The need to address these practices to protect U.S. residents, especially young people, is evident. This note will first provide background on two current laws that regulate gambling. Next, it will provide background on gambling and how gambling works on Twitch. Then, it will explain re-interpreting the Wire Act, followed by an analysis of amending the Wire Act and the UIGEA.


1 Transmission of Wagering Information Act, 18 U.S.C. § 1084 (1961).

2 31 U.S.C. §§5361-5367 (2006).

3 Nicolas Perez, On Twitch, Online Casino Streamers Promote Gambling to Their Audience While Taking on Little Risk, PASTE MAGAZINE (Dec. 21, 2020), https://www.pastemagazine.com/games/twitch/twitch-online-casino- streamers/.

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Section 230 in 2022: The Increasing Responsibility of Online Platform Hosts to Address Human Trafficking and Child Exploitation

50 Rutgers L. Rec. 31 (2022) | WestLaw | LexisNexis | PDF

Abstract

In 1996, before the widespread public use of the internet, Congress recognized the need to regulate improper content online while also encouraging the growth of the then-nascent industry. From these competing values emerged Section 230 of the Communications Decency Act. Now there is an increasing movement in Congress and among the judiciary to strike a different balance. Section 230 has been interpreted to protect entities that host platforms online from liability for the harms that are perpetrated on and allegedly facilitated by their platforms. Among those harms are human trafficking and child exploitation. Wrongdoers are known to use interactive platforms to identify, connect with, and exploit victims. Recent cases show that some courts are no longer inclined to allow Section 230 to fully shield platform hosts from liability. These cases have begun to shift responsibility onto hosts, suggesting that they have some obligation to protect their users from these harms. Section 230 has also been the subject of high-profile political discussion, with demonstrated bipartisan interest in legislative change. This article provides an overview of Section 230 as it stands today, and reviews the cases and legislative proposals that together demonstrate that the law’s broad liability shield is already shrinking and may undergo dramatic change in the near future. We discuss the implications this has for entities operating online and conclude that while Section 230 still protects them in some instances as it relates to trafficking and child exploitation material, this may soon change and should spur proactive efforts to implement appropriate safeguards.

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Writing a Blank Check: Revisiting the Second Circuit’s Pleading Standards of Securities Exchange Act Section 20(a) in the Rise of SPAC Litigation

50 Rutgers L. Rec. 1 (2022) | WestLaw | LexisNexis | PDF

A board of directors of a promising music streaming corporation has decided they want to raise capital publicly quickly and without the regulatory nets of an initial public offering. Instead, the corporation acquires a publicly traded shell company and becomes listed on – secondary markets, including Nasdaq. This process is known as acquiring or merging with a Special Purpose Acquisition Company (SPAC).2 In doing so, investors continue pouring millions of dollars into the corporation with high hopes of positive returns.3 However, it turns out that the corporate officers have not been entirely honest about the music corporations’ stability and success; they misrepresented financial results by falsifying its number of subscribers to the streaming market. Outraged, the investors decide to file suit against the corporation in the State of New York alleging, among other violations, that the corporate officers are responsible for securities fraud. Will these corporate officers be held liable for their misrepresentations? The answer: it depends.

This scenario is based on a SPAC litigation in one of the district courts in the Second Circuit, and is one of many that may determine the future of secondary liability in business combination cases.4 Section 20(a) of Securities Exchange Act of 1934 provides that a person, typically a corporate officer or director, who “controls” another person who is found liable for securities fraud, is jointly and severally liable, “unless the controlling person acted in good faith and did not directly or indirectly induce” the violation.5 When analyzing Section 20(a) cases, courts across the justice system implement one of two differing tests: the majority’s “potential control” test or the minority’s “culpable participant” test. Specifically, within the Second Circuit, courts utilize varying interpretations of the minority’s culpable participant test, but most importantly, they apply differing pleading standards that may affect the liability of a corporate officer.6

The difference between the pleading standards of the culpable participant test within the Second Circuit, while minor, have varying degrees of clarification. Some district courts in the Second Circuit require pleading facts that support an individualized inference of the control person’s scienter, whereas others have reasoned that such allegations require a pleading with particularized facts about the control person’s actions.7 For instance, in this scenario with the music streaming corporation, one district court could find the fact that a corporate officer’s discussion of false financial profitability is proof of scienter, but another district court may determine that such fact alone is insufficient to determine a “controlling person’s” conscious misbehavior to satisfy the scienter requirement.8 In essence, the competing standards of pleading could determine a corporate officer’s freedom or imprisonment, depending on which court he or she sits in.

The pleading standards between the majority and minority tests disrupted uniformity not only across all Circuits, but explicitly, the Second Circuit’s contradicting pleading standards resulted in inconsistent liability standards within itself as the Second Circuit battles its own precedent. Again, some district courts within the Second Circuit require pleading facts that support an individualized inference of the control person’s scienter, but others reasoned that such allegations require a pleading with particularized facts about the control person’s actions instead.9 Additionally, a minority of district courts in the Second Circuit removed the “culpable participation” prong entirely from the pleading standard requirements, leaning towards the majority’s potential control test instead.10 Thus, courts wrestled the idea of what level of control is required for a corporate officer to be found in violation of Section 20(a).11

This Note will analyze the evolution of the tug-of-war between district courts in the Second Circuit that inconsistently apply the varying pleading standards and competing tests to suggest the most effective standard. To illustrate the implications of the varying tests, this note will also address the potential influence of the Second Circuit’s inconsistent rulings to secondary liability exposure under Section 20(a) of the Exchange Act relating to SPAC litigation. First, Part I describes the overall history of secondary liability, including the clarifications sought by courts and the SEC to define what constitutes “control” under Section 20(a).

Next, Part II seeks to uncover the elements of a Section 20(a) claim by providing the distinction in Section 20(a) competing analyses between the test most circuit courts use, the potential control test, against that which a minority uses, the culpable participant test. Furthermore, this part reveals the competing pleading standards faced by the Second Circuit in Section 20(a) allegations. Specifically, this section demonstrates how differing liability can result when some district courts in the Second Circuit continue to require scienter as a pleading requirement element of a culpable participant, and others continue to allow plaintiffs to produce scienter only when the defendant is attempting to show a good faith defense.

Then, Part III delves into the unprecedented rise of SPACs together with the increase in SPAC litigation and legal debates surrounding regulation. This section reflects on how the Second Circuit’s split on Section 20(a) will affect the outcome of pending SPAC litigation, using examples to demonstrate varying outcomes based on the competing pleading standards.

Lastly, Part IV concludes the Second Circuit’s need for uniformity for the sake of Section 20(a) claims, especially in the face of SPAC litigation, by formally adopting the potential control test. However, if the Second Circuit continues to follow the minority test of a culpable participant test, then this section argues how a pleading standard rejecting the heightened form of scienter would align most with the intent of Section 20(a) and the majority of circuit courts.


2 Note that a SPAC/de-SPAC process includes a more complex procedure before a final merger. “SPACs exist before a deal; many are actively searching for companies they wish to acquire. When a SPAC identifies a potential match, they’ll begin the acquisition process . . . [then,] the SPAC undertakes the due diligence to verify that the company is presenting itself accurately; there are also target valuation considerations from the NASDAQ and NYSE. The de-SPAC transition process officially begins once the formal merger is announced. Once a merger agreement is signed, the deal is announced publicly and investors are notified.” After such processes, the business files an S-4 statement with the SEC to trigger the next phases of the de-SPAC transition for the newly created entity. Craig Clay, What is a De-SPAC Transaction? DONNELLY FIN. SOLUTIONS (May 3, 2021), https://www.dfinsolutions.com/knowledge-hub/thought-leadership/knowledge-resources/what-de-spac-transaction.

3 Not all SPAC investors seek positive returns; rather, investors seek “a variety of return and risk profiles and timelines” that they may benefit from a SPAC/de-SPAC transaction. Max H. Bazerman & Paresh Patel, SPACS: What You Need to Know, HARV. BUS. REV. (July-Aug. 2021), https://hbr.org/2021/07/spacs-what-you-need-to- know.

4 See In re Akazoo S.A. Securities Litigation, No. 20-cv-1900, Dkt. No. 15 (E.D.N.Y. 2020).

5 Section 20(a) describes joint and several liability as well as the good faith defense of a “control” person. “Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable (including to the Commission in any action brought under paragraph (1) or (3) of section 78u(d) of this title), unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.” 15 U.S.C. § 78t(a) (1934).

6 In re Tronox, Inc., 2010 U.S. Dist. LEXIS 67664 *63 (S.D.N.Y. 2010); Special Situations Fund III QP, L.P. v. Deloitte Touche Tohmatsu CPA, Ltd., 33 F. Supp. 3d 401, 437 (S.D.N.Y. 2014).

7 Id.

8 In Re Tronox, Inc., supra note 6 at 63; Special Situations Fund III QP, L.P., supra note 6 at 437.

9 In Re Tronox, Inc., supra note 6 at 63; Special Situations Fund III QP, L.P., supra note 6 at 437.

10 In Re Tronox, Inc., supra note 6 at 63; Special Situations Fund III QP, L.P., supra note 6 at 437.

11 See Laura Greco, The Buck Stops Where?: Defining Controlling Person Liability, 73 S. CAL. L. REV. 169, 171-72 (1999) (“By looking at the legislative history of [Section 15 and Section 20(a)], it becomes clear that Congress intentionally omitted fixed criteria for defining a “controlling person.” It was thought that by keeping the concept of control flexible, the statute would be applicable to a variety of situations both seen and unforeseen. Absent a bright line rule, however, the courts have been forced to wade through a sea of uncertainty to uncover who qualifies as acontrolling person”.)

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What Happened When DOGS Tasted Lemon: Australian Reflections on the Contemporary Relevance of Chief Justice Burger’s Opinion in Lemon v. Kurtzman

49 Rutgers L. Rec. 155 (2022) | WestLaw | LexisNexis | PDF

Professor Josh Blackman, of the South Texas College of Law, recently wrote that Chief Justice Warren Burger “may be the least influential member of the Burger Court. In modern-day discussions about constitutional law, he barely registers. Justice Blackmun wrote Roe. Justice Powell wrote the Bakke concurrence. Justice Rehnquist led the federalism revolution. Justice Stevens led the Court’s liberal wing for decades.”[1]

What about Lemon v. Kurtzman!?[2] Controversy swirls around the Court’s treatment of the establishment clause and its three-prong test for determining the constitutionality of government assistance for religion in that case;[3] yet the fact of dissention alone must surely cement Lemon’s place as among the most significant of the Court’s pronouncements. But more than that, the “Lemon test” has endured for fifty years as a core component of First Amendment jurisprudence.[4] Together, the controversy and the ongoing importance of the test give Lemon, and so Chief Justice Burger, a lasting place in the American pantheon of constitutional jurisprudence.

Many others have written about Lemon and its attendant controversy as part of its fiftieth anniversary in 2021.[5]This article will not add to that literature. Instead, while the days of Chief Justice Burger’s Lemon legacy in American law may be numbered,[6] here I show how it nonetheless retains some relevance not only to contemporary US establishment clause jurisprudence—most recently in Espinoza v. Montana Department of Revenue[7] and in the pending Supreme Court decision in Carson v. Makin[8]—but also, and much more importantly, beyond American borders in what might seem a most unexpected way. It forms an important component of the interpretation given by the High Court of Australia (the Australian equivalent to the Supreme Court of the United States) to the establishment clause found in the Australian Constitution. For that reason, Chief Justice Burger, and Lemon, has an odd yet enduring Australian legacy found in the High Court’s decision in Attorney-General (Vic); Ex Rel Black v Commonwealth.[9]

I pause here to make three preliminary points. First, to explain the title of this article. While I say more about it in Part IV, Attorney-General (Vic); Ex Rel Black v Commonwealth involved a challenge brought by an advocacy group known as the Australian Council for the Defence of Government Schools, or, as it more commonly known by its acronym, ‘DOGS’.[10] That acronym has been used ever since as the name of the case. Today, one need only mention the DOGS Case and it will be immediately understood by any Australian lawyer to be a reference to Attorney-General (Vic); Ex Rel Black v Commonwealth; indeed, the case is so-called even in formal judicial and academic documents.[11] Hence, the title, and the question I address in this article: What happened when DOGS tasted Lemon? I am of course referring to Australian DOGS! Second, in 2021, Lemon and DOGS both marked important anniversaries: the former its fiftieth, the latter its fortieth; yet, notwithstanding the passage of time, in an area of law that moves quickly, both remain important statements of the law concerning establishment in their respective jurisdictions. Third, Chief Justice Burger’s three-prong test in Lemon inextricably links the American and the Australian constitutions, not simply comparatively, but in a substantive way, giving that jurist an enduring legacy, not only within the United States, but also beyond its borders, and for the constitution of another nation.

Those preliminary points made, I want to do four things in this article. First, to provide the briefest of refreshers to Lemon and its significance in American Constitutional jurisprudence. Second, to compare the religion clauses found in the two constitutions. Third, to examine the High Court’s decision in DOGS. Fourth, to offer concluding reflections on the Australian legacy of Lemon, and, perhaps surprisingly, the American legacy of DOGS


[1] Josh Blackman, Will Chief Justice Burger’s Official Biography Ever Arrive?The Volokh Conspiracy (August 31, 2021) https://reason.com/volokh/2021/08/31/will-chief-justice-burgers-official-biography-ever-arrive/?.

[2] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[3] See, e.g., William E. Thro & Charles J. Russo, Lemon v. Kurtzman: Reflections on a Constitutional CatastropheCanopy Forum (November 1, 2021) https://canopyforum.org/2021/11/01/lemon-v-kurtzman-reflections-on-a-constitutional-catastrophe/.

[4] See Robert S. Alley, The Constitution & Religion: Leading Supreme Court Cases on Church and State, 82-96 (1999); Herbert M. Kritzer & Mark J. Richards, Jurisprudential Regimes and Supreme Court Decisionmaking: The Lemon Regime and Establishment Clause Cases, 37(4) Law & Soc. Rev. 827 (2003).

[5] See, e.g., Thro & Russosupra note 3.

[6] See Justice Gorsuch’s sustained criticism in a concurring opinion in Shurtleff v. Boston, 596 U. S. ___ (2022). It is widely expected that the Court will adopt that criticism explicitly so as to overturn Lemon in its pending decision in Kennedy v. Bremerton School District, No. 21-418.

[7] Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020).

[8] Carson v. Makin, No. 20–1088, now pending before the Supreme Court of the United States. See alsoThe Supreme Court Seems Ready to Poke a Hole in the Church-State WallThe Economist (December 11, 2021), https://www.economist.com/united-states/2021/12/09/the-supreme-court-seems-ready-to-poke-a-hole-in-the-church-state-wall.

[9] Attorney-General (Vic); Ex Rel Black v. Commonwealth (hereinafter “DOGS Case”) (1981) 146 C.L.R.https://staging.hcourt.gov.au/assets/publications/judgments/1981/022–ATTORNEY-GENERAL_(VICT.);_EX_REL._BLACK_v._THE_COMMONWEALTH–(1981)_146_CLR_559.html 559 (Austl.).

[10] Id. at 575.

[11] On the name of the Australian Council for the Defense of Government Schools (DOGS) and the High Court decision, see Press Release 746, DOGS: Australian Council for the Defense of Government Schools Promoting Public Education, Freedom of Religion is Protected by Section 116: Read Murphy’s Dissenting Judgement DOGS Case 1981See also Paul Babie, National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update, 45(3) Fed. L. Rev. 351 (2017).

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3-D Printed Firearms: How We Got Here, The Ever-Changing Threat, and How We Might Prepare for the Future

49 Rutgers L. Rec. 136 (2022) | WestLaw | LexisNexis | PDF

The advent and increasing affordability of 3-D printers has brought with it new problems as well. Commercially available printers allow users to print almost anything they can think of as long as they have a design file for it. Most users use these tools to print fairly innocuous items, ranging from prototypes or models to tools, toys, and jewelry. However, the 3-D printer has also brought with it the ability for users to print unregistered and untraceable firearms from the privacy of their own homes. This problem first materialized in 2012 with Defense Distributed, an open-source company that creates digital schematics for firearms that can be downloaded and used to print those firearms by anyone with a proper 3-D printer. Defense Distributed uploaded various computer aided design (CAD) files, including the plans for a single shot pistol, The Liberator. The United States government was quick to step in and force the company to take down the CAD files while they decided if distribution of the design constituted a violation of the International Traffic in Arms Regulations (ITAR). A change in administration resulted in the government settling with Defense Distributed out of court. The Department of State issued the company a license allowing them to again distribute the plans online and announced that 3-D gun blueprints would no longer fall under the purview of ITAR. Defense Distributed’s victory was short lived as various states brought lawsuits against the company, seeking to stop the dissemination of the CAD files online. While these lawsuits are ongoing, a temporary injunction remains in place that still prohibits the publishing of the gun blueprints. More recently, Defense Distributed decided to sell a CNC milling machine that is very similar to a 3-D printer. This device uses CAD files as a guide to mill aluminum into metal firearm frames and parts, allowing owners to make untraceable firearms in their homes. While these machines do not “print” an entire weapon they still present a potential threat to public safety. The most pressing threat posed by unregulated firearms is the proliferation of at-home ghost gun kits. While the Department of Justice is on the verge of closing significant federal regulatory loopholes that have helped allow this rise in ghost guns, the surge is indicative of more problems to come. This note will describe all of the relevant background behind the 3-D printing of firearms and the evolving legal landscape. This note will then proceed to discuss the current proliferation of ghost gun kits since the beginning of the COVID-19 pandemic within the larger context of untraceable firearms. This note will also consider the existing major firearm regulatory schemes and if any of them could be used to regulate 3-D firearms in the future. Furthermore, this note addresses various constitutional hurdles that lawmakers face in attempting to regulate 3-D printed guns, the 3-D printers, or the 3-D blueprints. Lastly, this note will discuss potential solutions to the 3-D gun regulation problem and how they might be implemented sooner rather than later.

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Lawyers, Funds, & Money: The Legality of Third-Party Litigation Funding in the United States

49 Rutgers L. Rec. 118 (2022) | WestLaw | LexisNexis | PDF

Imagine there is a plaintiff with a meritorious claim, but, because of the high costs of litigation, he cannot afford to bring or maintain it. Though there is a market for such claims and feasible fee arrangements are available, his claim is nonetheless rejected because of the litigation costs, the high risk of losing, and/or the unlikelihood of settlement. The claim, regardless of its merits, is over before it begins. There is now, however, one more option available to such plaintiffs: third-party litigation funding.

Increasingly, third-parties—investors with no legal interests in cases—are funding lawsuits, bearing most or all of the cost and risk of litigation.[1] In exchange for financing a lawsuit, an investor will receive a large percentage of an award or settlement.[2] Third-party litigation funding’s proponents believe it empowers claimants to bring meritorious claims against defendants, providing them the otherwise unobtainable sling and rocks needed to challenge corporate goliaths.[3] Its opponents—chief among them the U.S. Chamber Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce—believe it encourages and enables claimants to bring frivolous and abusive claims and have, accordingly, attempted to frustrate these funding arrangements.[4]

In 2009, the U.S. Chamber Institute, recognizing that “third-party funding governed in the United States by a patchwork of relatively weak laws, cases, rules, and regulations,” issued a seminal report on third-party litigation funding, predicting that it would cause substantial litigation abuse and that, under the doctrines of champerty and maintenance, it must be prohibited.[5]

American courts, despite the Institute’s arguments, have largely upheld these arrangements on public policy grounds, concluding, like Australian and English courts before them, that, whatever the potential for abuse, third-party litigation funding allows low-resourced claimants greater access to justice.[6] The U.S. Chamber Institute thus re-focused its attention on the issue of disclosure, arguing that financing agreements must be disclosed to defendants.[7] In the twelve years since the Report’s publication, American courts have grappled with the Institute’s arguments and have, by and large, rejected them, permitting third-party litigation funding and placing materials relating to these financing agreements beyond the scope of discovery.[8]

Part I of this Note provides a general overview of third-party litigation funding, from its modern origins in Australia and England to the litigation market as currently constituted in the United States. It concludes with a discussion of the U.S. Chamber Institute’s 2009 Report, putting it in the political context of the tort-reform movement.

Part II reviews court opinions over the last decade that have considered the issue of whether the doctrines of champerty and maintenance necessarily bar third-party litigation funding in the United States, issues that were unlitigated when the Chamber Institute published its 2009 Report. 

Part III reviews court opinions over the last decade concerning third-party litigation funding in the discovery context. In particular, whether financing agreements are generally “relevant” within the meaning of Federal Rule of Civil Procedure 26(a) as well as whether these agreements are protected under attorney-client privilege or the work-product doctrine.

Finally, Part IV briefly considers other developments regarding the disclosure of third-party litigation financing agreements. In particular, an Institute-sponsored proposal to add an additional fifth prong to Rule 26(a) to the Rules of Civil Procedure, which would require parties to disclose financing agreements to opposing parties “without awaiting a discovery request.”[9]


[1] Victoria A. Shannon, Harmonizing Third-Party Litigation Funding, 36 Cardozo L. Rev. 861, 863 (2015).

[2] Id.

[3] See Joseph J. Stroble & Laura Welikson, Third-Party Litigation Funding: A Review of Recent Industry Developments87 Def. Couns. J. 1, 2 (2020).

[4] See generally John Beisner et al., U.S. Chamber Inst. For Legal Reform, Selling More Lawsuits, Buying More Trouble: Third-Party Litigation Funding a Decade Later (2020) [hereinafter Chamber Report II].

[5] John Beisner et al., U.S. Chamber Inst. For Legal Reform, Selling Lawsuits, Buying Trouble: Third-Party Litigation Funding in the United States (2009) [hereinafter Chamber Report I].

[6] See Stroble & Welikson, supra note 4, at 7.

[7] Chamber Report II, supra note 5, at 26.A

[8] See Stroble & Welikson, supra note 4, at 10–15.

[9] Fed. R. Civ. P. 26(a).

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Racial Barriers to Equal Protection: United States v. Madero

49 Rutgers L. Rec. 102 (2022) | WestLaw | LexisNexis | PDF

For most Americans, United States citizenship guarantees all the rights and privileges provided by the federal constitution. For the 3 million American citizens who reside in Puerto Rico, a population greater than 20 states,[1] the constitution does not provide for representation in Congress nor participation in federal elections.[2] Facing dire needs resulting from hurricanes, earthquakes, and fiscal crises, these American citizens seek the assistance of the judicial branch which has historically ignored their constitutional claims. The relationship between Puerto Rico and the U.S. federal government underscores most of its challenges. The U.S. Supreme Court and U.S. Congress continue to promote a political relationship that contradicts fundamental constitutional principles such as Equal Protection guaranteed by the Fifth and Fourteenth Amendments.[3] With the century-old “Insular Cases” which define the constitutional contours between the island and the federal government, the court continues to ignore that 98 percent of Americans living in the territories are racial minorities.[4] United States v. Vaello Madero[5] exemplifies the colonial relationship that will test whether the Supreme Court will ignore its constitutional duty to extend the Equal Protection Clause[6] to the American citizens of Puerto Rico via a heightened scrutiny analysis, or, in the alternative, continue to hold that Congress acting under its plenary power pursuant to the Territorial Clause,[7] may treat Puerto Rico differently than the states.[8] Under proper review, Puerto Rico’s population, reflecting a suspect class via ethnicity and race, mandates the court’s application of strict scrutiny in lieu of the rational basis test.[9]


[1] The Population of Puerto Rico Exceeds the Populations of 20 States, Puerto Rico Report (last updated June 25, 2020), https://www.puertoricoreport.com/population-puerto-rico-exceeds-populations-21-states/#.YfsHrGBOlhB.

[2] Aaron Steckelberg & Chiqui Esteban, More than 4 Million Americans Don’t Have Anyone to Vote for Them in Congress, Washington Post (Sep. 28, 2017), https://www.washingtonpost.com/graphics/2017/national/fair-representation/.

[3] “Equal Protection”, Legal Information Institute (last visited Feb. 9, 2022), https://www.law.cornell.edu/wex/equal_protection#:~:text=Equal%20Protection%20refers%20to%20the,in%20similar%20conditions%20and%20circumstances.

[4] Hunter Schwarz, John Oliver on Why U.S. Territories Don’t Have Full Voting Rights, Washington Post (Mar. 9, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/03/09/john-oliver-on-why-u-s-territories-dont-have-full-voting-rights/; see also note 14 infrafor a discussion of the Insular Cases.

[5] United States v. Vaello Madero, 956 F.3d 12 (1st Cir. 2020). Note that some sources use “Vaello Madero” or “Vaello-Madero” inconsistently or interchangeably. The editors have used the spelling “Vaello Madero” throughout the article for clarity.

[6] James Madison, one of the most influential framers of the U.S. Constitution and author of the Federalist Papers, focused on the concept of equal protection and the dangers of majoritarian attacks against minorities. See James S. Liebman & Brandon L. Garett, Madisonian Equal Protection, 104 Colum. L. Rev. 837 (2004) (“James Madison greatest works of constitutional theory-his writings leading up to the Convention, his speeches there, and Nos. 10 and 51 of The Federalist, following the Convention-focus on the problem of equal protection. His overarching concern-what he called the most ’dreadful class of evils’ besetting the new nation under the Articles of Confederation, more dreadful even than the weak national government-was the “factious spirit” in the states which chronically drove stable and interested majorities to enact ’unjust’ measures benefiting themselves while systematically neglecting or harming weaker groups and the public good. In a more modern tongue, the most serious problem the new constitution had to solve was discrimination against persistently disfavored groups through state action lacking a sufficient relationship to legitimate state ends”). Id. at 843. The Federalist Papers also place the constitutional duty on judges who are “likewise the best authorities to entrust with the role of enforcing external protections of the few (minorities) from the many (majorities), because they are the least likely to try to aggrandize the kind of power in the few (the government) that most threatens the many (the people).” Id. at 926. “Madison’s writings in the constitutional period contain three references to ’injustices‘ or ‘oppression’ based on the victims’ personal status. The first two-crucially, given the nation’s subsequent history, are to factions defined by race. The third is to government preferences among practitioners of different occupations. Id. at 867.

[7] The Territorial Clause and its reach were held to be temporary in nature as early as 1787. “And a legislative power “without limitation” is A REPUGNANCY TO CONSTITUTIONAL GOVERNMENT which was expressly avoided by the Framers. There is no form of Federal governance of any kind authorized under the Property Clause, nor is there any form of Federal governance authorized under its progenitor, the Resolution of October 10, 1780. Federal territorial governance of a particular sort is authorized but ONLY under the Northwest Ordinance of July 13, 1787. And by this ordinance, the role of Congress in Federal territorial governance is both temporary and indirect. See Bill Howell, Federal Power over Public Lands: A Critical Analysis of Congressional Research Service Report RL30126, American Lands Council (Oct. 1, 2019), https://www.congress.gov/116/meeting/house/110088/documents/HHRG-116-II13-20191017-SD043.pdf.

[8] Califano v. Gautier Torres, 435 U.S. 1, 3 n.4 (1978) (per curiam) (“Congress has the power to treat Puerto Rico differently, and that every federal program does not have to be extended to it”). 

[9] Classification on which to base disparate treatment of particular groups of people, should be scrutinized to determine if it violates equal protection. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 271-272 (1979). Depending on the classification at issue, courts apply different levels of review. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-441 (1985). Because Puerto Rico is overwhelmingly populated by a minority group, the court should thus apply strict scrutiny, which provides that “Certain suspect classifications—race, alienage and national origin—require what the Court calls strict scrutiny, which entails both a compelling governmental interest and narrow tailoring.” Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F. 3d 1, 8-9 (1st Cir. 2012) (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); see also Cleburne, 473 U.S. at 439-41 (suspect classifications are often “deemed to reflect prejudice and antipathy, a view that those in the burdened class are not as worthy or deserving as others,” and because “such discrimination is unlikely to be soon rectified by legislative means”); Washington v. Davis, 426 U.S. 229, 239 (1976) (noting that a “central purpose” of equal protection “is the prevention of official conduct discriminating on the basis of race”). 

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ACA on Life Support: The Affordable Care Act, Medicaid Expansion, and Reckoning with Sebelius During the COVID-19 Pandemic

49 Rutgers L. Rec. 81 (2021) | WestLaw | LexisNexis | PDF

In an effort to address the cost of healthcare and the number of uninsured people in the United States, Congress passed the Patient Protection and Affordable Care Act, commonly called the “Affordable Care Act,” “ACA,” or “Obamacare,” in 2010. Signed into law by President Barack Obama, the Act required states to expand Medicaid coverage to various segments of the population not previously covered by the program, or states may lose all of their federal Medicaid funding. Additionally, a provision known as the “individual mandate” required those uninsured by the government or their employer to either pay a small penalty to the Internal Revenue Service or purchase private insurance. In 2012, a group of 26 states and other parties sued Health and Human Services Secretary, Kathleen Sebelius, and related parties regarding the constitutionality of the statute. In a 5-4 decision, the U.S. Supreme Court in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), found the individual mandate constitutional under Congress’s power to tax but found the Medicaid expansion provision to be unconstitutionally coercive under Congress’s spending power.

This note will seek to further contextualize Justice Ginsburg’s dissent, which argued the Medicaid expansion provision should not have been struck down by the majority, as the states are merely expecting Medicaid funds from Congress, but they are not at all entitled to them if they do not meet the criteria set by Congress, in the present moment. This note will explore the COVID-19 pandemic and the role that the states and the federal government ought to play in ensuring the general welfare of the nation is protected, primarily by either expanding Medicaid or otherwise ensuring free healthcare in response to the greatest economic and health crisis in over a century. To achieve this, the note will revisit the ACA and the Supreme Court’s spending clause analysis given the changing dimensions of the healthcare debate, with employer-sponsored insurance enrollment declining (along with overall employment) and government insurance and subsidies for COVID-19 testing dominating the market, and analyze, through a policy-oriented lens, whether states ought to take the lead in closing the so-called “coverage gap,” or whether Congress should have the power to expand insurance in a cooperative federalism model, especially in a deadly pandemic emergency which was not at all contemplated by the Court in Sebelius.

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The Future of LGBTQ+ Equality After Obergefell and Bostock

49 Rutgers L. Rec. 60 (2021) | WestLaw | LexisNexis | PDF

The Supreme Court’s decisions in Obergefell v. Hodges and Bostock v. Clayton County are justly regarded as landmark decisions in American jurisprudence and, more importantly, significant milestones in the history of lesbian, gay, bisexual, transgender, and queer (“LGBTQ+”) Americans. However, these important decisions are not the end of the movement for LGBTQ+ equality, and many more obstacles remain for the LGBTQ+ community. 

This article will begin with an overview of the legal history of sexual orientation and gender identity in the United States; the recognition of and enactment of constitutional and civil rights by courts and legislatures; and the discrimination performed by each. The next part is an overview of the future of sexual orientation and gender identity law, including the Equality Act and other legal issues. 

The thesis of this article is to state the urgent need for passage of the Equality Act and the introduction and passage of other legal devices that will relieve the undue burdens still faced by ordinary LGBTQ+ Americans after the Supreme Court’s decisions in Obergefell v. Hodges and Bostock v. Clayton County.

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