A (Nude) Picture is Worth a Thousand Words—But How Many Dollars?: Using Copyright as a Metric for Harm in “Revenge Porn” Cases

45 Rutgers L. Rec. 170 (2018) | WestLaw | LexisNexis | PDF

So-called “Revenge Porn”—pornography published without the subject’s permission—is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life.
Leveraging that analysis, I argue that the dollar sums in statutory damages under the Copyright Act provide a better mode of measuring than abstract dignitary and reputational harms more conventionally associated with “revenge porn.” I also argue that, because of the structure of the Federal Sentencing Guidelines (and likely many state analogs), using economic harm to describe harm is likely to result in those harms becoming higher on the list of agency enforcement priorities.

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Why California Got It Right: Assessing Psychopaths Before Release

45 Rutgers L. Rec. 145 (2018) | WestLaw | LexisNexis | PDF

Psychologist Robert Hare (“Hare”) first released the Psychopathy Checklist Revised (“PCL-R”) in 1991 and it has consistently demonstrated success in predicting recidivism. California is the only state that requires an individual sentenced to life with the possibility of parole to receive a certain score on the PCL-R before release. Some have questioned the efficacy of this assessment and its place in the criminal justice system. Nevertheless, research confirms the PCL-R is a reliable predictor of recidivism and thus other states, including New Jersey, should adopt the same requirement that California enforces.
In this note, Section II will clarify what psychopathy is and address the misconceptions that exist regarding its definition. Section III will describe what the PCL-R is in detail, including its history and motives. Then, Section IV will delve into where the PCL-R meets the legal system. Section V will describe the process that is currently implemented in California in terms of the administration of the PCL-R. Next, Section VI will raise a number of the criticisms voiced by those in the legal field as well as by psychologists. Finally, Section VII is devoted to addressing the potential modifications, with those criticisms in mind, that will make further PCL-R application viable. Such modifications will allow for utilization of this assessment as originally intended.

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Should Emergency Good Deeds Go Unpunished? An Analysis of the Good Samaritan Statutes of the United States

45 Rutgers L. Rec. 105 (2018) | WestLaw | LexisNexis | PDF

It is a well settled common law rule that ordinarily, “in the absence of some special relationship, no legal duty rests on a member of the general public to render services in the preservation of the person or property of another even if the means with which to do so are at hand.” We may have a moral obligation to help our fellow citizens, especially when we can to do with little effort and risk to ourselves, but in general, we have no legal obligation to do so. As commentators have noted, “[w]hile providing no general duty to aid, the Restatement of Torts. . . allows a person who voluntarily comes to the rescue of another to be held liable for any negligence in doing so.” Thus, the safest course of conduct for citizens who come across emergency situations is to walk on by, rather than risk potential civil liability for rendering assistance that is later found to have been negligent. Good Samaritan statutes seek to “encourage people [with no duty] to aid others in need by granting statutory immunity” from negligent acts or omissions to rescuers who provide assistance to their fellow citizens in emergency situations.

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Protecting the Victims of Fraudulent Joinder: How Congress and Federal Judges Can Help

45 Rutgers L. Rec. 89 (2018) | WestLaw | LexisNexis | PDF

One of the most famous judges of the last century, Judge Learned Hand, observed, “I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.” The innocent victims of fraudulent joinder know this well. They are often small local businesses such as retailers, pharmacies, auto repair shops, or even individuals including store managers and salespeople.

“Fraudulent joinder” is a stepchild of our somewhat unusual mix of constitutional law, statutory provisions, and case law setting the jurisdiction of federal courts. The Framers’ apprehension regarding the potential for state court bias in favor of local interests led them to establish neutral federal courts. They viewed the availability of the federal courts to decide cases involving citizens of different states as critical to promoting public confidence that such claims would be decided promptly, efficiently, and impartially.

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Drowning in Data: How the Federal Rules Are Staying Afloat in a Flood of Information

45 Rutgers L. Rec. 65 (2017) | WestLaw | LexisNexis | PDF
As technology continues to permeate our everyday lives, the amount of data we generate increases—and rapidly. Consistent with Moore’s Law, in 2013, 90% of all the world’s data was created within the previous two years alone. Technological advances have not only changed the way we work and interact, but also how we litigate. The rise of “big data” and the commensurate rise of “big discovery” have drastically altered the quantity and types of information produced throughout the discovery phase in litigation. While increased access to information by parties involved in litigation can generally be seen as a positive development, it has also created opportunities for abuse.

Perhaps the most common, or at least the most obvious, scenario for what may be termed “eDiscovery abuse” arises when there is a large discrepancy in the quantity of information controlled between opposing parties in litigation. When one party possesses substantially more information than the other, there is little or no downside to making broad and burdensome discovery requests. Shrewd litigants can use carefully timed and tailored discovery techniques as a tool to exact larger (or pay smaller) settlements than they might have otherwise been able to obtain.

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In the Eyes of the Law Student: Determining Reading Patterns with Eye-Tracking Technology

45 Rutgers L. Rec. 39 (2017) | WestLaw | LexisNexis | PDF
First-semester law students spend over twenty hours per week reading legal cases in their casebooks for their law school classes. By the time students have completed their first year of law school, they have spent upwards of six hundred thirty hours reading cases in casebooks. And upon graduation, graduates have slogged through over 1,550 hours of reading cases in casebooks. Does the human brain develop strategies to make this repetitive task easier and what might that mean for readers and writers of cases? Although researchers have looked into the reading skills of legal readers through an empirical lens since the late 1980s, almost all of their studies have focused on the critical reading and rhetorical skills legal readers use to comprehend text, and the data collection has been achieved through self-reported information from the legal readers themselves. This article attempts a different approach – to look at the differences between novice legal readers and experienced legal readers through independent empirical evidence.
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Standing on Edge: The Lack of Standing Requirements in the USPTO Inter Partes Review Raises a Constitutional Issue

45 Rutgers L. Rec. 13 (2017) | WestLaw | LexisNexis | PDF

In 2012, the American Invents Act created a process called inter partes review (“IPR”), an administrative proceeding to challenge the validity of an issued patent. This new proceeding allows anyone to challenge the validity of a patent, regardless of the challenger’s relation to the patent or patent holder. Inter partes review represented a powerful alternative to challenging a patent in Article III court, a proceeding that normally requires the patent challenger to show standing. In recent years, inter partes review has become a hot button issue due to its use as a stock manipulation tool by hedge funds.

Inter partes review is unconstitutional because it is an improper delegation of judicial power, in that it confers the ability to decide on an issue already adjudicated by an administrative agency and removes this authority from the constitutional protection provided by an Article III court proceeding. The call for review comes not from the administrative agency itself, but instead is instituted by a third party. Administrative adjudications of this type are allowable only when the parties are afforded the regular constitutional protections that would be available in an Article III court. These constitutional protections are not present in inter partes review proceedings because the relaxed standing requirement allows challenges in an adversarial proceeding from a seemingly limitless group of people. View the entire article –>

Civil Litigation in the Age of President Donald J. Trump Welcome to the New World of Commerce America and Liability America and Liability Suppression

45 Rutgers L. Rec. 1 (2017) | WestLaw | LexisNexis | PDF

The HARD RIGHT now controls two branches of government. After President Trump fills the empty judicial appointments, including the Supreme Court, the Hard Right will control all three branches of the US government. The Hard Right has a plan that disenfranchises individuals from access to the courts to seek redress for consumer, environmental, civil rights, discrimination, and mass tort claims like voter suppression, which heaved President Trump over the 2016 goal line. This article previews the plan that the Hard Right seeks to execute. They seek to introduce legislation, roll back executive orders (by the former President and governors) which inevitably favors the legacy institutions and solvent parties who are the targets of these claims, and able to litigate endlessly without financial pain. The Hard Rights seeks to do this by perusing their plan through a legislative campaign in Congress, orders by the Executive Branch statutes from state legislative houses, and from governors. “Times, they are a changing”. The Hard Right seeks to flex its newly found legislative and executive muscle to suppress litigation. It seeks to impose liability on tort plaintiffs, victims of employment and gender discrimination, and consumer class actions litigants, among others. At the hands of the trial bar, The Hard Right seek to shift power to the hands of legacy institutions (and their brethren) who want to oust personal injury claims, class actions, consumer driven litigation, and other claims from the civil courts.

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Harmed by a Data Breach: Consumers May Find It Easier to Prove Standing Under Seventh Circuit Decision

44 Rutgers L. Rec. 192 (2017) | WestLaw | LexisNexis | PDF

Information is transmitted with increasing frequency in the United States. More than seventy-four percent of the people in the United States are capable of using the internet, allowing many people to share content over the web. However, as more and more information is shared, this widespread sharing is subject to certain risks and vulnerabilities. Technological advancements make the transmission of information easier for normal users while also making the theft of such information much easier as well. Data breaches have become a common occurrence in the United States, with an average of 100 successful cyber-attacks occurring each week. More and more companies have been affected by data breaches and the people whose data that were supposedly safeguarded by these companies have been consequently affected. Major companies including Target and Sony were subject to such breaches, making them spend millions of dollars in harm prevention. These incidents of data breach gave rise to multiple class action suits against major corporations. Although consumers sued the companies claiming damages and negligence, these claims were dismissed by the court due to the lack of standing. Article III, Section 2 of the Constitution limits federal jurisdiction to lawsuits that present an actual case or controversy. Furthermore, in Clapper v. Amnesty International, the Supreme Court held that plaintiffs had to prove they are at imminent risk of suffering from a concrete injury. Other circuits, like the Third, followed the holding and dismissed cases that were unable to prove imminent risk. The Seventh Circuit, however, held that class action plaintiffs have standing when they are able to prove an objectively reasonable likelihood that such harm will occur.

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On The Necessity of Preserving Access to State Courts and Civil Justice: Rediscovering Federalism & Debunking “Fraudulent” Joinder

44 Rutgers L. Rec. 160 (2017) | WestLaw | LexisNexis | PDF

With nothing less than the survival of the civil justice system hanging in the balance, tort reformers and tort law defenders have been locked in a conflict that spans the last four decades. Courts and legislatures at every level (federal, state, and local) are besieged by those who seek to limit or eliminate tort liability, limit or eliminate accountability for personal injury, and limit or eliminate the capacity of those wronged by misconduct of every type to have access to courts, juries, and justice. Defenders of the civil justice system, a loosely coalesced amalgam of consumer groups, attorneys, and academics, devote themselves to protecting that same system.
Those seeking the spoils of the tort reform wars (caps on punitive damages and non-economic loss, elimination of the capacity to pursue class actions at the state level, limitations on the use of evidence, elimination of strict liability, joint and several liability, and much, much more) would not only disagree with the above assessment, they would be offended. Tort reformers see theirs as a mission of essential change, reform, a quest for modernization of an outdated system that misallocates resources, suppresses innovation, weakens the U.S. economy and the U.S. position in international commerce, destroys jobs, and unduly privileges a very small number of consumers and their lawyers.

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