Volume 71, Issue 2


Facilitating the Compliance Function

Jennifer M. Pacella

In the current regulatory era in which we live, compliance is as important as ever. Practitioners, the legal academy, the government, and many organizations of all industries and sizes have responded with insights as to how to best achieve effective compliance while navigating the complex array of regulations incumbent on entities of all types. Regardless of the applicable industry, whether financial, information technology, environmental, healthcare, corporate, or non-profit, the field of compliance is comprised of certain overriding themes that are conducive to facilitating the compliance function. Some of these overriding themes may include the drafting and implementation of effective compliance programs, the development of good corporate governance practices, a responsive management team, and the dissemination of compliance practices throughout the organization. This symposium piece will focus on one running theme that was highlighted during a panel on the intersection of compliance and risk management at the third annual Rutgers Law School Corporate Compliance Institute: the facilitation of the compliance function through a whistleblower’s early detection and reporting of red flags.

Involuntary Civil Commitment: A Solution to the Opioid Crisis?

Candice T. Player

The United States is in the grip of a deadly opioid crisis, fueled by prescription opioids and the appearance of fentanyl in the drug supply. Despite the anguish that people with drug addictions experience, most people who are addicted to drugs do not seek treatment voluntarily. To that end, families are urging legislators to expand access to involuntary civil commitment, as a tool to combat the opioid crisis. While courts have broad authority to confine people with substance use disorders, and doing so might be associated with positive outcomes, including reductions in drug use, using civil commitment to force people with substance use disorders into treatment despite their objections presents an ethical dilemma. States have the parens patraie authority to care for people who are unable to care for themselves, but in their current form, most civil commitment statutes reach people with substance use disorders who are competent to make treatment decisions. There is a place for civil commitment, but without a judicial determination of incompetence, using civil commitment to confine drug users is a dangerous exercise of the parens patriae power.

Buried Alive: The Reboot of the Equal Rights Amendment

Gerard N. Magliocca

In 2017, Nevada ratified the proposed Equal Rights Amendment (“ERA”) to the Constitution. This vote occurred thirty-five years after the expiration of the deadline set by Congress for three-fourths of the state legislatures to ratify the ERA. Nevertheless, the Nevada Legislature maintained that its action was not symbolic. The state argued that Congress could waive the expired deadline and declare the ERA the Twenty-Eighth Amendment whenever three-quarters of the states (thirty-eight) ratify. Drawing on Nevada’s action and on the momentum for women’s rights created by the #MeToo movement, Illinois ratified the ERA in 2018.

Postmortem Defamation in a Society without Truth for the Living

Reid Kress Weisbord

Defamation law limits the private action for reputational injury to plaintiffs who are alive at the time of a disparagement. In a novel reform proposal, Professor Don Herzog argues that we should extend defamation liability to disparaging statements about dead people. This Essay evaluates Herzog’s theory of postmortem reputational harm by focusing mainly on two counterarguments not addressed in his proposal: The first is that, since the election of President Trump, the modern political discourse has become so detached from the truth and callous about death that it is difficult to envision a moral obligation to protect postmortem reputational interests. The second distinguishes the consequentialist doctrine of testamentary intent from Herzog’s moral theory of postmortem defamation. This Review Essay concludes that, while society should indeed strive to recognize a moral obligation to protect decedents against reputational harm, we cannot do so without first restoring our commitments to truth-telling and respecting the solemnity of death.

The Innovation of Crime: Defining Criminal Culpability in the Digital Age

Amanda A. Navarro

In 2016, the Supreme Judicial Court of Massachusetts set seemingly novel precedent in Commonwealth v. Carter by finding Michelle Carter guilty of involuntary manslaughter. Michelle Carter was a teenager and thousands of miles away from her boyfriend at the time of his suicide. In fact, the two only met a handful of times in person. Nevertheless, Michelle Carter was convicted of homicide for her boyfriend’s death due to the wanton and reckless conduct executed through text messages. In response, critics and legal scholars denounced the ruling as a judicial overstep that raises policy and First Amendment concerns. This Note argues that while the ruling may have ignited public and legal outcry, the Court correctly applied the criminal elements of homicide to a case greatly influenced by technology. Additionally, this Note encourages other courts to take a similar approach to criminality that is primarily conducted through telecommunications. As evident from Commonwealth v. Carter, the judicial system should incorporate society’s growing dependence on technology into the analysis of criminal culpability.

What’s the Problem?: Why Increased Regulation for Mutual Funds Might Hurt Both Private Firms and Individual Investors

James Clancy

Investors looking to invest in private companies (at the time of this writing) such as SpaceX, WeWork, and AirBnB are normally out of luck. That is, unless they invest in specific vehicles such as the Fidelity Investments Contrafund, which purchases shares in all three of those companies. This Note will argue that federal securities law should not interfere in the mutual fund industry and should maintain the current level of regulation regarding mutual fund investment in private companies. Investing in private companies may come with some risk, but investors can take advantage of diversification to reduce that risk. Some scholars have called for restrictions on mutual funds’ abilities to invest in private companies, citing concerns such as inaccurate valuations, liquidity issues, and a lack of investor awareness. In addition to arguing that these issues are largely overblown, this Note contends that private companies, mutual funds, and even the investors themselves benefit more from the status quo level of regulation. There might be some truth to the argument that investors would not invest in funds that buy shares of private companies if investors knew that these funds were investing in private companies, but the percentage of holdings that make up private company investments within mutual funds is infinitesimal when compared to overall holdings.

Stormy Waters for the Internet’s Safe Harbor: The Future of Section 230

Emily Lagg

There is currently a legal loophole for interactive computer services like Google and Facebook that protects them from liability for content posted by others.The Communications Decency Act of 1996 provides this immunity under Section 230 (The Safe Harbor Provision). Though the law has been a stalwart of protection for Internet companies across a range of situations for decades, mounting political, public, and judicial pressure, compounded with the gap between the law’s intended and actual outcomes, should lead tech giants to be wary of a sea change in liability. This paper examines how Internet giants and lawmakers can work together to provide a peaceable solution that best serves the interest of all parties, including the public.


No responses yet

Leave a Reply

Your email address will not be published. Required fields are marked *

Latest Comments
No comments to show.