Copyright (c) 2009 Rutgers Law School (Newark) All rights reserved. http://law.bepress.com/rutgersnewarklwps Recent documents in Rutgers University (Newark) Legal Working Paper Series en-us Wed, 28 Oct 2009 14:23:31 PDT 3600 http://law.bepress.com/rutgersnewarklwps/fp/art47 http://law.bepress.com/rutgersnewarklwps/fp/art47 Wed, 24 Sep 2008 08:50:34 PDT In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime. I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s offender¡¯s circumstances that makes him less blameworthy for the crime he committed. A court may choose to treat such an offender more leniently but it should not be mandated to do so. Vera Bergelson Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art46 http://law.bepress.com/rutgersnewarklwps/fp/art46 Fri, 18 Jul 2008 08:38:15 PDT This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and voluntary. In addition, for complete justification, the perpetrator¡¯s reasons for a consensual injurious act should be subjectively benevolent and the act must produce an overall positive balance of harms and evils, including harm to the victim¡¯s welfare interests and dignity. If these requirements are not met, the defense should be only partial. Vera Bergelson Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art45 http://law.bepress.com/rutgersnewarklwps/fp/art45 Wed, 25 Jun 2008 10:15:53 PDT Historically, the gift tax has performed the admirable role of safeguarding the integrities of both the estate and income taxes. Due to taxpayers' abilities to narrow the gift tax base and ignore their filing obligations, however, fulfillment of its historical role is now in jeopardy. This analysis details how taxpayers circumvent their gift tax obligations and then sets forth reforms that Congress can readily institute to curb taxpayers' transgressions. Institution of these recommendations would enable the gift tax to continue to fulfill its historic functions. Jay A. Soled Taxation-Federal Estate and Gift http://law.bepress.com/rutgersnewarklwps/fp/art44 http://law.bepress.com/rutgersnewarklwps/fp/art44 Wed, 29 Aug 2007 08:02:06 PDT The worst national disaster in United States history also showcased the dire consequences of localism as the cultural and legal successor to de jure segregation. Long before Hurricanes Katrina and Rita devastated the Gulf Coast, New Orleans' status as an exceptional city had been lost to Americanizing trends. Its resistance to the conventional racial binary was overcome after Reconstruction; its unique densities and accommodation of the physical landscape were transformed into sprawling divisions by technology and suburbanization. From the Brown decision forward, New Orleans and the metropolitan area around it developed much like the rest of the nation. Localist tendencies combined with legal protections for local autonomy--as exemplified and supported by several key decisions of the Burger Court--to re-segregate the region. A decade before Katrina, New Orleans, like most central cities, was financially incapable of deconcentrating neighborhoods of persistent poverty and politically powerless to wrest a more equitable sharing of state fiscal resources and burdens from its neighboring parishes. Part II examines the history of New Orleans as a city central to American concepts of racialized space, from slavery to Katrina. Part III argues that localism became the jurisprudential edifice that supplanted de jure segregation there and elsewhere after Brown. Its underlying notions of economic rationalism and colorblind innocence have since been reinforced by decentalization, consumption, political fragmentation and black middle-class antipathy for integration to re-segregate metropolitan America. Part IV argues that this analytic focus on the role of "legal localism" in re-segregating America's metropolitan regions compels its own remedial principle: equitable regionalism. Under this principle of local government law reform, political coalitions may be possible in joining the interests of antipoverty, fair housing and community development advocates with their counterparts in smartgrowth, environmental preservation and antisprawl organizations. Urban neighborhoods chronically destabilized by poverty need localism's emphasis on participation through planning devices; similar devices may help to effectuate equitable regional goals. The current antimajoritarian rules have weakened both cities and a great many suburbs, suggesting ultimately that what benefits the isolated urban poor may also improve the welfare of the suburban middle class. David D. Troutt Civil Rights Land Use Planning State and Local Government Law http://law.bepress.com/rutgersnewarklwps/fp/art43 http://law.bepress.com/rutgersnewarklwps/fp/art43 Wed, 25 Apr 2007 12:09:20 PDT Historically, the gift tax has performed the admirable role of safeguarding the integrities of both the estate and income taxes. Due to taxpayers' abilities to narrow the gift tax base and ignore their filing obligations, however, fulfillment of its historical role is now in jeopardy. This analysis details how taxpayers circumvent their gift tax obligations and then sets forth reforms that Congress can readily institute to curb taxpayers' transgressions. Institution of these recommendations would enable the gift tax to continue to fulfill its historic functions. Mitchell Gans Taxation-Federal Estate and Gift http://law.bepress.com/rutgersnewarklwps/fp/art42 http://law.bepress.com/rutgersnewarklwps/fp/art42 Tue, 17 Apr 2007 10:24:08 PDT We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State's case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. "Solving the Lawyer Problem in Criminal Cases," a 9,000 word essay, describes these problems and then offers an original and radical solution. States and the federal government could create a single pool of criminal law specialists who would both defend and prosecute criminal cases, working under the supervision of district attorneys and chief public defenders and their staffs. This re definition of the role of lawyers in the criminal process would instantly create near parity between the prosecution and the defense. It would also create a more efficient process and thus could improve the representation of criminal defendants without a substantial increase in the funds currently allocated to prosecution and criminal defense. George C. Thomas III Criminal Law and Procedure Law and Society http://law.bepress.com/rutgersnewarklwps/fp/art41 http://law.bepress.com/rutgersnewarklwps/fp/art41 Tue, 17 Apr 2007 10:14:34 PDT This article addresses the problem of regulatory gaps that are created through imprecise preemption rulings. It begins with a detailed case study of how railroads were able to enter the highly regulated solid waste industry, to claim that all state oversight is preempted by a federal statute intended to deregulate railroad economics, and to obtain the economic benefits of operating in a regulatory gap. The net result of current preemption doctrine in those cases has been to strip citizens of the power to ensure that waste transfer stations are safe, and this fundamental injustice serves as a backdrop to analyzing current preemption jurisprudence. The Court's reliance on a presumption against preemption of state laws to interpret federal statutes has declined over time, and this article provides an additional explanation for the presumption's decline based upon flaws in the original formulation of the doctrine. The article also explores the Court's current use of regulatory gaps as marking the plausible limits of Congressional intent to preempt, particularly when faced with the preclusion of all tort remedies for individual victims, and argues that the Court's concern about regulatory gaps should extend to preventive measures that are also based on the states' police powers and that are the expression of collective rights of self-protection. In addition to the standard federalism concerns that animate restraints on preemption, the article builds on scholarship that suggests additional Constitutional limitations on Congress's powers to strip remedies from citizens. Finally, the article proposes to correct these trends through a revitalized presumption against preemption, whereby courts would consider whether a preemption ruling will create a regulatory gap, and in those circumstances should require a clear statement that Congress intended to strip remedies designed to prevent the underlying conduct at issue. Such a prudential rule of construction would avoid potential Constitutional issues. Carter H. Strickland Jr. Administrative Law Constitutional Law Environmental Law http://law.bepress.com/rutgersnewarklwps/fp/art40 http://law.bepress.com/rutgersnewarklwps/fp/art40 Mon, 16 Apr 2007 12:21:09 PDT The goal of this article is to rethink the relationship between the concepts of justification and wrongdoing, which play vital roles in the theory of criminal law. Reading George P. Fletcher's new book, The Grammar of Criminal Law, in the context of his earlier scholarship has led me to one major disagreement with Fletcher as well as with the traditional criminal law doctrine: for Fletcher and many others, wrongdoing and justification mutually exclude each other; for me, they do not. Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but then they have a change of heart and offer their victims a deal: if Jack rapes Jill, the criminals will let everyone go. If not, no one's life will be spared. Realizing that this is the only way to save several lives, including Jill's own, Jack reluctantly agrees. Jill, on the other hand, vehemently protests that she would rather die than be violated. When Jack attempts to overpower her, Jill fights back and seriously injures Jack. At that moment, the police arrive and take everyone into custody. It appears that both Jack and Jill have valid defenses of justification - Jack can successfully claim necessity, and Jill can successfully claim self-defense. But is it fair to say that the two are equally right or that neither of them has committed any wrongdoing?Focusing on the problem of incompatible justifications, I suggest that we should revise our understanding of justifications in general. Specifically, I argue that, in certain circumstances, justifiable conduct may be wrongful; that in a conflict between two incompatible justifications, one side may be more right than the other; and that justifications should be viewed not as a homogenous group in which each defense has equal importance but as a hierarchical structure in which the place afforded to a defense is determined by its rationale and effect on the rights of others. The top priority belongs to justifications that do not violate rights of others and, in addition, compel others to behave in a cooperative way (the public duty defenses). The intermediate priority belongs to justifications that neither violate rights of others nor create in others a duty to cooperate (the "special relationship" and autonomy defenses). Finally, the lowest priority belongs to the defense of necessity, which, by design, may involve violation of rights of innocent, unoffending individuals. Vera Bergelson Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art39 http://law.bepress.com/rutgersnewarklwps/fp/art39 Mon, 12 Feb 2007 10:52:31 PST This essay sketches the outlines of a future world in which crime has been drastically reduced. The author proposes two radical approaches to achieve this crime reduction. Some crimes, like drunk driving, can be almost completely eliminated by using technology to prevent the operation of a vehicle by a driver with a blood alcohol greater than the permissible level. Other crimes, like larceny or burglary of expensive items, can be made extremely easy to solve by requiring the installation of micro chips that will, when activated, broadcast their location to police. To the objection that it will be expensive to install the necessary technology, the answer is found in what crime costs us today. Drunk driving is estimated to cost the economy 40 billion dollars a year. The total cost of crime, much of which involves burglaries and larcenies, is estimated at 1.7 trillion dollars a year. If we could reduce that annual cost by a mere 20%, it would save the economy 350 billion dollars per year. That could pay for many sophisticated microchips and blood alcohol detectors with a lot of money left over. But do we want to live in a "Clockwork Orange" world where government prevents and deters crime by becoming more deeply embedded in our everyday life? Do we want our cars to tell us when we've had too much to drink? The last part of the essay probes these questions and provides a controversial answer. George C. Thomas III Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art38 http://law.bepress.com/rutgersnewarklwps/fp/art38 Mon, 12 Feb 2007 10:04:07 PST Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society's movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today's global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another. The article offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and tangible goods from open access or commons property to exclusive ownership regimes. The chain reaction theory of the evolution of intellectual and other property rights has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes. Forthcoming 82 Notre Dame Law Review (2007) Sabrina Safrin Intellectual Property Law International Law Law and Economics Law and Society Property-Personal and Real