Current Issue

Volume 74 | Spring 2022 | Issue 3


ARTICLES


Reflections on Judicial Independence after Twenty-One Years on the Supreme Court of New Jersey

The Honorable Jaynee LaVecchia

Now, as we all know, Chief Justice Vanderbilt was the architect of the modern judiciary in New Jersey. His vision and leadership led to the 1947 state constitution’s refashioning of the judicial branch of government and, specifically, the modern supreme court as we now know it. The new judiciary was designed to be more efficient and, importantly, independent. The first chief justice set the judiciary down that path with new court rules, and his early decision in Winberry v. Salisbury, which, with its progeny, advanced those goals.

Then, the second chief justice—Joseph Weintraub, for whom this Lecture is named—made a point of ensuring that independence and integrity became hallmarks of the judicial branch in practice. He recognized that the two go hand in hand, and he was keenly aware of the importance of the public’s perception of the judiciary as independent and free of extraneous and improper influences.

Making a Name for Themselves

Cori Alonso-Yoder

The United States finds itself at a moment of reckoning with the past. Despite historical progress, Black Americans, women, immigrants, and LGBTQ communities continue to face pervasive societal injustices. Social media and popular calls for reform have only amplified these voices. From #TimesUp to #SayTheirNames, communities are joining together to demand legal reforms for generations of systemic abuse. Through new technologies, today’s movements for change can organize for reforms in a way never before seen. Though the platforms are new, the problems are not. Racism, sexism, transphobia, homophobia, and xenophobia all continue to pervade U.S. society.

An area of law that touches on each of these struggles for social change has received little scholarly attention. It is the law of name change. This article tracks how name change law has served as a vehicle for liberation. Women, African Americans, immigrants, and LGBTQ individuals have all turned to the law of name change to assert their individual rights. Yet, as the legal name change process moved away from informal practice and toward judicial regulation, the opportunity for governmental intervention has often served to neutralize the emancipatory effect of the common law of name changes. Today, the common law of name change is still good law but is undermined by a judicial process that reflects systemic biases against oppressed groups. By exploring the law and its history, the article argues for a name change system that promotes a more robust application of common law while deemphasizing the gatekeeping role played by judges. In so doing, it also illustrates the case for understanding the American law of name change as a uniquely progressive legal doctrine in the movement for civil rights and liberation.

“My name was Isabella; but when I left the house of bondage, I left everything behind. I wa’n’t goin’ to keep nothin’ of Egypt on me, an’ so I went to the Lord an’ asked him to give me a new name.” Sojourner Truth

How COVID-19 Has Infected the Totality of Life (Including Law)

David M. Frankford

The COVID-19 pandemic, stemming from the SARS-CoV-2 virus, has shown, as if proof were necessary, that a pandemic is an inseparably biological and social phenomenon that combines interacting elements of nature, including evolution, as well as political, social, and economic forces. As such, the COVID-19 pandemic has affected every sphere of human existence.

In this Article, I analyze the more important elements of this seamless web by breaking it down into a number of categories: the virus itself (and some linked phenomena) and the political, economic, and social instability that it has caused everywhere. This instability ranges from effects on forms of primary association like the family to those on forms of secondary association including education, the economy, state legitimacy, social solidarity and law in the United States and, to some extent, in other nations, and health care delivery and public health in the United States.

Pre-pandemic society in the United States was becoming increasingly fractured and polarized. In this ecology, a virus as smart and nimble as SARS-CoV-2 worked its will, seeping into everything because it fed on and exacerbated every crack and crevice; and these impacts are not linear but recursive, feeding into and amplifying one another. Instability in primary association partially feeds off of and into economic instability. Likewise, economic instability is concurrently a consequence and a cause of growing political instability. In turn, both forms partially derive from and cause the growing delegitimization of social solidarity and, in particular, the collective enterprise of public health. The latter is one reason that the United States’ capacity to respond to this pandemic and any on the horizon has been reduced. The most vulnerable among us have suffered the greatest hardship, but our society as a whole has been diminished.

I Dissent: Justice Ginsburg’s Profound Dissents

Orit Gan

Dissenting opinions are important and can contribute to legal as well as political and social changes. To analyze the power of dissenting opinions this Article coins the terms “soft dissent” and “profound dissent.” The former is defined as a concrete disagreement with the majority on the application or interpretation of the law. It is a limited and narrow difference of opinion leading to a different result. The latter is much more than that. It challenges the very basis of the majority’s opinion. It offers not only a different conclusion, but an ideological alternative to the majority’s opinion. Soft dissent and profound dissent lie on opposite ends of the spectrum of dissent; there are thus dissents that fall in between the two. This Article offers a taxonomy of this sliding scale of dissents in terms of their profoundness.

In order to illustrate this taxonomy of dissents, this Article analyzes Justice Ginsburg’s dissenting opinions. Justice Ginsburg was known as a fierce dissenter and would sometimes read her dissenting opinions from the bench while wearing special dissent collars. The analysis in this Article seeks to demonstrate the ways in which Justice Ginsburg’s dissents have been deeply influential. Her profound dissents offer an alternative world view to that of the majority. They challenge the core of the majority’s opinion and thoroughly explain why it is deeply wrong, why its basis is erroneous, why its reasoning is flawed, and why its conclusion is mistaken. In other words, Justice Ginsburg’s profound dissents not only reach different conclusions than the majority, but indeed create an alternative reasoning, and are based on an alternative perception of society and the law.

Cooking the Books: The Art of Judicial Gamesmanship

Justin C. Van Orsdol

The fan­fare surrounding Supreme Court reform has reached a new peak, especially after the recent appointments of Justices Gorsuch, Kavanagh, and Barrett, alarming opinions related to voting rights, and the Court’s recent shadow docket activities surrounding immigration and reproductive rights. While the Presidential Commission on the Supreme Court of the United States toiled away at meaningless platitudes and empty fixes, an equal—if not more—troubling problem brews below in the United States Court of Appeals: judicial gamesmanship.

This Article explores some of the more elusive gamesmanship tactics the federal circuit courts use to manipulate case outcomes, including en banc gatekeeping, panel assignments, and publication decisions. These tactics, while uncommon, create cause for concern because they utilize ambiguous local rules to cement the majoritarian judicial ideology (both liberal and conservative) of each respective circuit, all while bypassing traditional merit-based arguments on the issues that come before them.

To remedy these tactics, action must be taken. This Article proposes that these issues can be alleviated by removing or limiting the ability of circuit courts to establish local rules and instead establishing nationwide internal operating procedures. Alternatively, or conjunctively, it proposes that there is no longer a need for dedicated geographical circuit courts and that we should consider instituting President Taft’s “flying squadron” approach. Last, this Article argues that increased supervision and exposure, like the Civil Justice Reform Act, is needed to prevent future manipulative techniques from sprouting.

­­The Price of Fundamental Rights: Criminal Convictions, Expungement Fees, and Constitutional Concerns

Cassie Chambers Armstrong

The consequences of a criminal conviction last far beyond the sentence itself. A person may experience numerous challenges after a conviction, including difficulties finding housing, employment, and economic stability. A person may also forfeit certain fundamental rights, such as the right to vote.

Expungement offers one way for individuals to remove the ongoing impacts of a conviction by erasing public records of it. Many states have passed legislation increasing access to expungement in recent years, in recognition of its importance as a tool in criminal justice system reform. Yet, in many states, individuals must pay hefty fees to access the expungement process, making the restoration of a person’s fundamental rights contingent upon his or her income. This article uses an access-to-justice framework to argue that this system—in which wealthier individuals have the ability to regain fundamental rights while poorer individuals do not—may run afoul of the Equal Protection and Due Process Clauses of the United States Constitution.

Stated Culpability Requirements

Scott England

It is difficult to overstate the Model Penal Code’s importance for American criminal law. Since its publication by the American Law Institute in 1962, the Model Penal Code (“MPC” or “the Code”) has had an outsized impact on legislatures, courts, and legal scholarship. Indeed, more than thirty states have enacted criminal codes influenced by the MPC. American courts have cited the Code and its commentary as persuasive authority thousands of times, and commentators have likewise spilled much ink discussing the MPC’s meaning and significance. For good reason, George Fletcher once described the Code as “the central document of American criminal justice.”

The Code has influenced American criminal law most significantly through its culpability provisions. The Code’s central culpability provision, section 2.02, establishes four culpability levels to be used in defining criminal offenses: purpose, knowledge, recklessness, and negligence. Importantly, section 2.02(1) generally requires culpability for “each material element of the offense.” As a result, the Code generally demands, at a minimum, that criminal offenses impose culpability requirements that correspond to their objective elements. Additionally, the MPC often requires that a defendant act with a particular purpose, such as taking another’s property “with purpose to deprive him thereof” in order to commit theft. If an offense imposes such a “specific” or “ulterior” intent requirement, culpability is still required for each objective element.

STUDENT NOTES


Wayne Browne

The Supreme Court’s decision in Obergefell v. Hodges represented a momentous victory for gay and lesbian couples. After years of litigation in state and federal court, the fundamental right to marriage was recognized in the context of same-sex relationships. If history is any indication, however, the fight for marriage equality is not over. In the past, landmark Supreme Court decisions that have furthered social movements in areas of divisive constitutional law have encountered heavy resistance by those content with the status quo.

This resistance often occurs when state or local governments (or even individual citizens) refuse to implement newly recognized constitutional rights. Relatedly, resistance has also taken the form of legal challenges seeking to destabilize or overrule a particular constitutional precedent.

This Note addresses the possibility that Obergefell will be subject to the latter kind of resistance—a constitutional challenge at the Supreme Court. As this Note will show, if such a challenge is not certain, it is at least possible. That reality leads to the primary focus of this Note. If a constitutional challenge to Obergefell ever reaches the Supreme Court, how should the case be decided? Relying on the stare decisis factors identified in Planned Parenthood of Southeastern Pennsylvania v. Casey—as well as other background considerations that are nearly impossible to ignore—this Note concludes that Obergefell’s extension of a constitutional marriage right to same-sex couples should continue as good law.

Female Genital Mutilation Asylum Claims in the Aftermath of Matter of A-B-

Faith Tan

On June 11, 2018, then Attorney General Jeff Sessions issued Matter of A-B-, a precedential decision overruling the 2014 decision Matter of A-R-C-G-, which had held that victims of non-state violence, including domestic violence and gang violence, were entitled to asylum in the United States. Sessions asserted that these claims were not protected by the Immigration and Nationality Act (“INA”) because they did not involve government persecution, calling into question decades of U.S. asylum case law. Although much of the decision, including the most damaging parts, was dicta (and therefore nonbinding), Matter of A-B- immediately sparked outrage and panic. Asylum seekers, their lawyers, and women’s rights and immigration advocates were concerned about its potential for far-reaching and long-lasting consequences, particularly for women and girls fleeing female genital mutilation (“FGM”). To their relief, Sessions’s decision was vacated in June 2021. Yet there remains a lack of procedural safeguards, and the potential for another damaging decision like Matter of A-B- continues to be a looming concern. This Note highlights the need for such protections, including limiting the attorney general’s referral authority power and amending the INA. Matter of A-B- no longer poses an immediate threat to FGM asylum seekers, but the decision’s ability to create the threat that women and girls would be stranded in countries where they would be mutilated indicates an urgent need for stronger asylum protections specific to FGM survivors.

Interpreting Justicia para Todes: The Need for a Bilingual Justice System in the United States

Catherine M. Schu

The United States’ rich history has created a country with countless distinct cultures and value systems. As a result of this, though, the United States faces unique challenges in ensuring equal justice for all. Though the United States has processes in place so that non-English speakers can access the court system in their native language, this Note will argue that the current protections are simply not enough and that the United States must mobilize to create a fully bilingual English-Spanish justice system. Part I will provide data on language use and resources in the United States. Part II will analyze the complexities and shortfalls of relying on interpretation to engage with speakers of other languages in the justice system. Part II will also demonstrate the oftentimes dire consequences of such an adherence to interpretation as a valid means of putting non-English speakers on equal footing with English speakers. Part III will demonstrate that such an admittedly herculean goal is not actually out of reach; other countries have made strides to evolve the linguistic capacity of their courts and, even in the United States, such a change is already occurring in some places.

Why Settle for Less? A Pragmatic Proposal to Adapt Enforcement of UDAP Statutes to Address Debt Buyers’ Systemic Abuses of the Court System

Cyan Perry

At this moment, millions of people across the United States owe money to  companies they have neither heard of nor conducted business with. These companies, known as “debt buyers,” purchase portfolios of delinquent consumer debts from primary creditors for a miniscule fraction of their face value. These debts are usually sold “as is,” so that the original creditor is insulated from liability. Debt buyers then use the legal system to convert their paltry initial investment into a legally enforceable order against a consumer, which allows total recovery of the original debt, plus accrued interest.

While it is possible to argue to the contrary, this Note will presume that the fundamental practice of debt buying, when performed properly, is both socially and economically desirable. This position is shared by both the Federal Trade Commission and Consumer Financial Protection Bureau. But any potential socioeconomic benefit that the industry might achieve largely depends on whether the court system functions properly for the millions of Americans who find themselves cast as defendants in debt buyer collection suits each year. Unfortunately, debt buyers have little intrinsic economic motivation to play fair.