Volume 67, Spring 2015, Issue 2

Volume 67, Spring 2015, Issue 2

Articles

A SCANDALOUS PERVERSION OF TRUST: MODERN LESSONS FROM THE EARLY HISTORY OF CONGRESSIONAL INSIDER TRADING

Michael A. Perino

The Stop Trading on Congressional Knowledge Act of 2012 (the “STOCK Act”) affirms that members of Congress are not exempt from insider trading prohibitions. Legal scholars, however, continue to debate whether the legislation was necessary. Leveraging recent scholarship on fiduciary political theory, some commentators contend that because members owe fiduciary-like duties to citizens, to their fellow members, and to Congress as an institution, existing insider trading theories already prohibited them from using material nonpublic information for personal gain. These arguments, while plausible, are incomplete. They rely on broad conceptions of legislators as fiduciaries, but provide scant evidence that members violate institutional norms when capitalizing on confidential information, a crucial step for fitting their trading into existing legal doctrines.

This Article fills that gap. Like other scholarship on governmental fiduciaries, it examines the foundational norms in Congress, focusing specifically on an episode not previously discussed in the literature. In 1778, Samuel Chase, a member of the Second Continental Congress, used his knowledge of plans to purchase supplies for the Continental Army to reap a substantial profit by cornering the market for flour in his home state. This Article documents the reaction to the Chase scandal and demonstrates that from the earliest days of the institution congressmen expected that members would not attempt to use confidential information for financial gain. Alexander Hamilton and other critics universally concluded that Chase had committed a “scandalous perversion of [his] trust.” This episode and other evidence compiled here strongly suggest that the STOCK Act was unnecessary to hold members of Congress liable for insider trading.

THE SOCIAL ORIGINS OF THE PERSONALITY TORTS

Samantha Barbas

Each of the three case studies in this Article focuses on a particular “personality” tort that was developed in this era in response to threats to reputation and public image posed by commercial institutions that were seen as beyond the reach of informal social controls. Part I begins by explaining the historical backdrop—the industrialization, urbanization, and population growth that transformed American life in the late nineteenth century. Part II describes the largely unknown origins of the tort of intentional infliction of emotional distress in a series of lawsuits brought over insults to passengers by railroad employees. Part III explores the growth and transformation of libel law in response to attacks on reputation by the new, sensationalistic mass-market press. Part IV discusses the origin of the tort of invasion of privacy in turn of the century cases where newspapers and advertisers publicly misrepresented and shamed people by using their photographs in ads without consent.

Notes

NEW JERSEY’S ATTACK ON MIXED-STATUS FAMILIES: THE UNCONSTITUTIONALITY OF NEW JERSEY’S IMMIGRANT ELIGIBILITY REQUIREMENTS FOR FOSTER PARENTS

Amy L. Travis

This Note argues that New Jersey’s immigration status requirements for foster parents are unconstitutional and part of a broad yet insidious attack on the rights of citizen children in mixed-status families. Part I provides a brief history of the development of child protective services in the United States and an overview of how the system is administered today. Part II avers that New Jersey’s immigrant eligibility requirement for foster parents violates the Supremacy Clause and Equal Protection Clause of the United States Constitution, along with Article I, paragraph 1 of the New Jersey Constitution. Finally, Part III contextualizes New Jersey’s regulation and demonstrates that it is part of a broader trend towards the erosion of rights for citizen children in mixed-status families.

LEGAL LOOPHOLE: HOW LGBTQ NONDISCRIMINATION LAWS LEAVE OUT THE PARTNERS OF TRANSGENDER PEOPLE

Elizabeth K. Ehret

This Note seeks to attain the aforementioned goals by finding a remedy within current existing laws for Cisgender Partners who are discriminated against by their employers because of their partner’s transgender status, and suggests improvements to current laws that will help provide a direct right of action to these victims of discrimination. Part II outlines and defines the language that will be used throughout the Note. Part III outlines sexual orientation and gender identity or expression nondiscrimination laws in the United States. It begins by outlining state and local nondiscrimination laws that provide protection against discrimination on the basis of sexual orientation, gender identity, and/or gender expression. Then it moves to an assessment of the protections provided for transgender people in federal nondiscrimination laws. Part IV introduces the legal loophole that prevents Cisgender Partners of transgender people, who experience employment discrimination because they are in a relationship with a transgender person, from being provided with any legal protections from said discrimination under current nondiscrimination laws. It explores how existing case law that extends race discrimination bans to individuals who are discriminated against because they are in an interracial relationship could be applied to Cisgender Partners. It then looks to the possibility of providing nondiscrimination coverage to Cisgender Partners under the “perceived sexual orientation” component included explicitly or implicitly in bans on discrimination based on sexual orientation. Finally, Part V of this Note suggests alterations to sexual orientation and gender identity or expression nondiscrimination laws that, going forward, could provide adequate protections for individuals discriminated against because of their partner’s gender identity.

REGIONALISM, FEDERALISM, AND THE PARADOX OF LOCAL DEMOCRACY: RECLAIMING STATE POWER IN PURSUIT OF REGIONAL EQUITY

Jason Moreira

Part I of this Note reviews the doctrines and ideologies that shape the modern state-local relationship, including jurisdictional theory and the ways in which federal state-local jurisprudence facilitates the evasion of the social contract. Part II conducts a targeted inquiry into the racial and socioeconomic contours of this evasion through an analysis of three landmark Supreme Court cases. Part III surveys the dominant regionalist responses to unfettered local power, and argues that the barriers to regional reform are fundamentally political, not institutional, in nature. Part IV articulates the need to utilize existing political machinery to achieve regionalist goals, and argues that progressive state legislation, coupled with an innovative use of existing geographic statistical tools, provides the best means for pursuing regional equity from the perspectives of simplicity, efficacy, and political viability. A short conclusion follows.

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