Current Issue

Volume 72 | Spring 2020 | Issue 3


ARTICLES


The County Line: The Law and Politics of Ballot Positioning in New Jersey

Brett M. Pugach, Esq.

Unelected and unaccountable party bosses and political machines have for many years used the associational rights of the First Amendment to maintain complete control over New Jersey’s politics. Today, these party bosses exercise unchecked power to endorse candidates up and down the primary ballot in New Jersey. Political candidates who fail to secure the endorsement of these party bosses and
political machines have virtually no chance of winning an election. That is because New Jersey law provides advantages to machine-backed candidates that are extremely difficult for any challenger to overcome. In state primaries, party-backed candidates are given the opportunity to bracket with one another, to use the same party slogan, and to appear on the same line on the ballot. These mechanisms then combine to guarantee that each party-backed candidate always receives a favorable position on the ballot. In New Jersey, this system is often referred to as “the County Line,” and it is used by the state’s party bosses and county chairs to deprive the state’s citizens of their right to exercise a free and
fair vote.

Bhopal in the Federal Courts: How Indian Victims Failed to Get Justice in the United States

Jayanth K. Krishnan

Over thirty-five years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (“UCIL”), which had as its parent company the American-based Union Carbide Corporation
(“UCC”). Thousands were killed, with many more injured. One hundred forty-five cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were
consolidated through the multi-district litigation (“MDL”) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens opinion, which stated that the Indian courts—and not the U.S. federal judiciary—were the proper venue for hearing these claims.

Between 1986 and 1993, Judge Keenan dismissed all of the other MDL Bhopal cases he heard. Then, between 2000 and 2014 a set of distinct, non-MDL Bhopal matters appeared in front of Judge Keenan. In all of these too, he issued dismissals. Indeed, the original MDL process—coupled with the existence of internal federal courthouse rules—created a type of path dependence, allowing for all of the Bhopal-Union Carbide matters to come before Judge Keenan.

The thesis here is that following the MDL consolidation, Judge Keenan became only more deeply wedded to the position he staked out back in 1986. Subsequent, non-MDL Bhopal plaintiffs, seeking an independent assessment of their claims, found themselves tethered to the initial MDL decision from years past. The broader lesson—beyond just this case study—is that in order for deserving plaintiffs to receive a fresh review in federal court, there needs to be an alternative imagination for how to deal with later cases that, although seemingly connected, are nevertheless distinct from the earlier MDL process.

Zealous Administration: The Deportation Bureaucracy

Robert Knowles and Geoffrey Heeren

An agency’s culture shapes its lawmaking. Under certain conditions, agency culture dominates decision-making so strongly that it mutes the influence of those factors that administrative law scholars have traditionally focused on— including presidential will, judicial oversight, internal resistance, and public opinion. We call this undertheorized phenomenon “zealous administration.”

The immigration enforcement bureaucracy has vast discretion to remove unauthorized immigrants from the United States. Current immigration policies—such as indiscriminate deportation, family separation, and harsh detention—represent the most prominent example of zealous administration in the federal government. This Article focuses on that bureaucracy to plumb the causes and effects of zealous administration and to explore ways to limit it.

Strengthening Pennsylvania’s Prompt Payment Laws: Under Public and Private Construction Contracts

Amedeo Petrongolo

In September of 2018, the seasonally adjusted annual rate of public and private construction spending in the United States amounted to over $1.3 trillion. The construction industry is a leader in job opportunity, generating over seven million employment positions nationwide. The physical construction process begins with a contract between a project’s owner and a general contractor; however, larger projects will regularly involve dozens of parties. Although late payments are problematic for any industry, the unique structure of contracting and subcontracting in the construction industry tends to magnify the consequences of untimely payments. An interruption in cash flow may create tension between parties and result in serious consequences for both the project and businesses involved. Thus, the assurance of timely payments plays a major role in overall economic success.

Prisoners Are People: The Right of Death-Row Inmates to Receive Lifesaving Organ Donations

Ryan Kilkenny

Critics may argue that death row or life sentence inmates are not “worthy” of receiving an organ transplant, especially considering that “organ shortage[s] mean that not all can be treated.” As a general principle, however, all prisoners—regardless of whether they are on death row—are entitled to lifesaving healthcare, including medically necessary organ transplants. The fact that they are on death row should not diminish their viability and eligibility for organ transplantation because myriad institutional and ethical barriers could potentially give them at least as much use of a donated organ as a non-incarcerated recipient. The Eighth Amendment protects against denial of a transplant—a form of healthcare discrimination—as it constitutes “cruel and unusual punishment” to deprive any person of a medically necessary, lifesaving organ. This Note focuses on the constitutional, statutory, and ethical protections afforded to death-row inmates in need of organ transplants.

Friends, Food or Fiber: Comparing the Legal Frameworks Protecting Farmed Animals in the United States and the Republic of Ireland

Erin Gilgen

While the abolishment of factory farming and dismantling of the meat industry would be the best course of action ethically, environmentally, and for human health, many ameliorative measures could be implemented quickly to reduce animal suffering. The Republic of Ireland—although its system is itself imperfect—demonstrates the practicability of stricter animal laws and throws the failures of the American system into even starker relief.

Deadbeat, Deadbroke or Just Dead Wrong?: An Argument in Favor of a Mandated “Totality of the Circumstances” Test in the Modification of Child Support Orders for Parents Incarcerated for Crimes Against Their Children

Lauren Ruth

This Note explores the final rule published by the Office of Child Support Enforcement, which prohibits states from refusing to modify child support orders of incarcerated parents. The rule makes perfect sense for parents certain parents, who might use the abatement as an opportunity to start over. However, it should be revisited to include an allowed exception for other parents because the justifications for the rule do not apply to them, and, even if they did, those parents present additional unique and distinguishing facts requiring differentiated consideration. In these circumstances, courts should not be prohibited from denying relief to incarcerated parents. Rather, the rule should mandate that courts give consideration to all of the circumstances, including whether or not an abatement will result in more payments to the child.