RETHINKING SECTION FIVE: DEFERENCE, DIRECT REGULATION, AND RESTORING CONGRESSIONAL AUTHORITY TO ENFORCE THE FOURTEENTH AMENDMENT
Tiffany C. Graham
The Court’s decision in City of Boerne v. Flores, undermined the scope of Congress’s regulatory authority specifically as it applies to Section 5 of the Fourteenth Amendment. This is outside the intentions of the original Framers of the Fourteenth Amendment. As a pragmatic compromise, the Court should adopt a two-tiered approach, limiting Congress’s power when abrogating state sovereign immunity but using a more relaxed standard of review when Congress regulates the states within the confines of Article I.
A BETTER ROUTE THROUGH THE SWAMP: CAUSAL COHERENCE IN DISPARATE TREATMENT DOCTRINE
Brian S. Clarke
Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. This Article seeks to establish causal coherence in disparate treatment doctrine by applying, for the first time, modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement Third of Torts: Physical and Emotional Harm. This article proposes using this cause-in-fact standard to unify disparate treatment doctrine in order to provide simplicity, certainty, and predictability for all involved.
LEARNED HAND’S TWO CONCEPTS OF (JUDICIAL) LIBERTY
The colorful and complicated views of Judge Learned Hand on the role of judges in American society conclude that an independent judiciary is both a sign and a necessary part of a free society. Through his speeches and lectures this Article demonstrates how he understood the complicated interaction between the common law, the common will, and judicial independence and how his views are very relevant to current debates about the role of judges in America today.
New Jersey Developments
THE RUTGERS CASES AND THE STATE OF THE LAW OF STATE LAW SCHOOL CLINICAL PROGRAMS
Jon C. Dubin
This Article situates the recent Sussex Commons decision in a line of New Jersey Supreme Court and other judicial decisions interpreting the significance of Rutgers and other public universities’ status in evaluating whether a clinical program should be subject to a restriction or burden on the practice of law applicable to more typical state entities. The Article analyzes cases on access to attorney’s fees, potential conflicts of interest in appearing before state administrative tribunals, and the most recent controversy over the applicability of open public records law to clinical case files. This Article concludes by drawing common threads from this line of Rutgers-generated jurisprudence and offering a framework for discerning when public law school clinical programs should be treated less like typical state actors and more like private law offices in future issues.
FROM LOUISE BROWN TO BABY M AND BEYOND: A PROPOSED FRAMEWORK FOR UNDERSTANDING SURROGACY
The Note provides background on the ethical and legal issues surrounding the debates on surrogacy. It places the legal issues of the procreative choice in the context of Due Process and Equal Protection Clause jurisprudence. Finally it proposes a new regulatory framework for surrogacy and addresses key objections.
SONGWRITER, SIDE MUSICIAN, OR SUCKER?: THE CHALLENGE OF DISTINGUISHING COMPOSERS FROM CONTRIBUTORS UNDER U.S. COPYRIGHT LAW AND THE LESSONS OF A FAMOUS BRITISH CASE
David M. Liston
The U.K.’s decision of Fisher v. Booker, awarding Procol Harem organist Matthew Fisher a forty percent share in the music copyright for the popular song “A Whiter Shade of Pale” potentially opens a Pandora’s Box of litigation by musicians who arguably had limited roles in the commercial success of the recordings they had been involved with. This Note concludes that the U.K. court’s flexible approach in their analysis of Fisher is far too subjective given the complexities of such cases. The Note further suggests that the current approach used in American copyright jurisprudence should be revised to a stricter standard as it applies to joint musical works.
DEBT COLLECTORS DISGUISED AS FACEBOOK “FRIENDS”: SOLUTIONS TO PREVENT VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT ON SOCIAL MEDIA PLATFORMS
As social media becomes more prevalent among the masses, debt collectors have begun using the information posted on such websites to harass and intimidate consumers. This Note explores the history of debt collection and the often nefarious means used in its pursuits. The Note also demonstrates how these practices clearly violate the Fair Debt Collections Practices Act (FDCPA) and asserts how such violations should be addressed including self-policing by websites, consumer education, amending the Act to include all forms of communication, and involving the Consumer Financial Bureau to rate debt collectors in their compliance with the Act.
Volume 68, Issues 4 and 5 are on their way!
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