Volume 65, Fall 2012, Issue 1

Volume 65, Fall 2012, Issue 1

Articles

BREAKING THE GOLDEN RULE: JUDICIAL REVIEW OF FEDERAL WATER PROJECT PLANNING
Oliver A. Houck

The U.S. Army Corps of Engineers is one of the oldest institutions of the federal government, and its dams, levees, and waterways have changed the American landscape. It is also a conflicted organization, responding both to the President and to the Congress, and struggles between them over Corps direction date back to the age of Jackson. The economic and political stakes in these endeavors are huge. So are their impacts, which have eliminated towns, prime farmland, native reservations, wildlife species, and entire ecosystems. The law behind Corps projects is scanty and the discretion virtually unbridled, but for a single rule: the benefits, “to whomsoever they may accrue,” are to exceed the costs. As modest as this requirement may appear, it has become water resource development’s Golden Rule. And a field of conflict.

UTSA PREEMPTION AND THE PUBLIC DOMAIN: HOW COURTS HAVE OVERLOOKED PATENT PREEMPTION OF STATE LAW CLAIMS ALLEGING EMPLOYEE WRONGDOING
Charles Tait Graves and Elizabeth Tippett

This Article explores a blind spot in trade secret cases involving disputes between employers and departing employees—specifically, cases that take the minority position on Uniform Trade Secrets Act (“UTSA”) preemption of alternative state law tort claims and thereby permit litigants to proceed with claims based on information that is said to be something less than a trade secret but still protectable. In most states, courts apply the UTSA to preempt these inconsistent or duplicative tort claims. But a review of nationwide cases taking the minority position indicates that such courts do not consider whether the technical information at issue in many such disputes falls within the public domain, such that the alternative state law tort claim would conflict with—and therefore should be preempted by—the federal patent laws.

WHAT CONFLICTS CAN BE WAIVED? A UNIFIED UNDERSTANDING OF COMPETENCE AND CONSENT
Kevin H. Michels

Attorneys are frequently asked to represent more than one client in the same or related matters. The request can arise in nearly every practice setting, from criminal defense, to civil litigation, to complex transactions. Regardless of the setting, attorneys face the same challenge in deciding whether the conflict of interest posed by the joint representation can be waived by the clients. Under the Model Rules of Professional Conduct, the conflict of interest can be waived if (1) the clients provide knowing, informed consent to the joint representation, and (2) the attorney’s representation of the multiple clients will be competent and diligent (these latter elements are referred to collectively as “competent” or “competence”). In assessing whether the joint representation will be competent, however, the attorney encounters the enigma that has bedeviled practitioners, courts, and commentators since the adoption of the Model Rules. A joint representation hampered by a conflict of interest materially limits the services that the attorney can perform for one client because of her competing duties to the other client. Thus, the challenge: how can we know which joint representations are competent (and therefore “consentable”) when nearly all suffer from material limits on the services that counsel can undertake for the clients?

LEARNING FROM THE LEADER: THE EUROPEAN UNION’S RENEWABLE ENERGY MANDATES AS A BLUEPRINT FOR AMERICAN ENVIRONMENTAL FEDERALISM
Suriya Evans-Pritchard Jayanti

As the United States steps more fully into the twenty-first century, it is undoubtedly at the forefront of international energy and environmental debates. This is first because, well-deserved criticisms notwithstanding, it ranks among the more environmentally progressive nations, but more so because the United States has, until recently, been the greatest polluter and remains by far the largest consumer of petroleum. It is accordingly impossible to have a meaningful discussion about climate change, or any other pressing international environmental issue or subissue, without discussing and involving America. And it is in light of its two-sided preeminence—i.e., as both a leading cause of the global climate problem and an audible (if reticent) voice for addressing that problem—that the United States’ apparent inability to enact comprehensive climate change legislation, including renewable energy measures, reveals itself to be alarming and potentially catastrophic.

THE 2011 CHIEF JUSTICE JOSEPH WEINTRAUB LECTURE
The Honorable Garrett Brown

Good evening everybody, it’s a great honor to be asked to deliver the Twenty-Ninth Annual Chief Justice Joseph Weintraub Lecture here at Rutgers Law School. When I accepted this assignment, I reviewed the list of prior speakers and the topics that they addressed. It reads like a who’s who of the bench and bar of this state over the last two decades. Indeed, half a dozen of them were my colleagues on the district and circuit courts. I’m both pleased and humbled to now be included among them, and I thank Dean Farmer and President Walker for making this event possible.

Notes

CURBING CORRUPTION OR CAMPAIGN CONTRIBUTIONS? THE AMBIGUOUS PROSECUTION OF “IMPLICIT” QUID PRO QUOS UNDER THE FEDERAL FUNDS BRIBERY STATUTE
Lauren Garcia

For years, federal courts in almost every jurisdiction have struggled to define the crime of bribery under various statutes and in varying contexts. However, defining bribery in the political campaign contribution context has proven to be particularly troublesome, as it requires the careful judicial balancing of two correspondingly fundamental American interests. On one hand, the FBI and federal prosecutors alike have an interest in rooting out public corruption amongst federal, state, and local officials to ensure the public’s trust and confidence in the United States government. On the other hand, American election campaigns and political platforms have historically been privately funded; public officials have an interest in soliciting contributions in order to represent and serve their constituents.

CAMPAIGN FINANCE REFORM AND DISCLOSURE: STEPPING-UP IRS ENFORCEMENT AS A REMEDIAL MEASURE TO PARTISAN DEADLOCK IN CONGRESS AND THE FEC
Douglas Oosterhouse

The influence of corporate money in elections has been a contentious issue since the advent of corporate rights in the late nineteenth century, and the issue remains unresolved in spite of over one hundred years of debate. The primary concern is that the concentration of wealth in the hands of a few corporations undermines the political process when this money is used to influence elections. In 2010, the Supreme Court held in Citizens United v. Federal Election Commission that political speech could not be limited based on the speaker’s corporate identity, and as such, any limits on corporate spending for this purpose were unconstitutional. The Court upheld disclosure requirements in order to balance concerns that unlimited corporate political spending creates the appearance of corruption, and thus undermines voter confidence.

REASON TO FRET: HOW THE LACEY ACT LEFT THE MUSIC INDUSTRY SINGING THE BLUES
Meredith Pryce

On June 18, 2008, Congress passed the Food, Conservation, and Energy Act, also known as the 2008 U.S. Farm Bill (“Farm Bill”), into law. It was an agricultural bill primarily geared toward the continuation of the United States policy of agricultural subsidy, but it also included other policies intended to affect nutrition, conservation, and energy. One of these policies included in the Farm Bill was an amendment to the Lacey Act of 1900 (“Lacey Act”), a law aimed at protecting endangered animal species. The amendment included in the Farm Bill expanded the Lacey Act’s environmental protections, beyond its already established protection of animal species, to include biological plant species.

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