Volume 73, Fall 2020, Issue 1

The Opposite of Punishment: Imagining a Path to Public Redemption

Paul H. Robinson and Muhammad Sarahne

The criminal justice system traditionally performs its public functions—condemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms—through the use of negative examples: convicting and punishing violators. One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness. An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption from all collateral consequences of conviction.

This article explores how and why such a system of public redemption might be constructed, the benefits it might provide to offenders, victims, and society, and the political complications that creation of such a system might encounter.

Intentionally and Systematically Integrating Diversity Discussions and Lessons in the Law School Classroom During a Race-Conscious Era

Anna P. Hemingway

The value of classroom diversity in higher education in the United States has always been controversial. It was first identified as a compelling interest in the fractured yet landmark Regents of the University of California v. Bakke decision by Justice Powell in 1978, with no other Justice joining his opinion. In Bakke, Justice Powell concluded that the government had a significant interest in classroom diversity that justified the consideration of race in college admissions. His reasoning amounted to a defined, yet still elusive, judicial deference awarded to academic freedom. With little further elucidation, Justice Powell averred “tradition and experience lend support to the view that the contribution of diversity is substantial” and thus set the groundwork for educational diversity jurisprudence for the next four decades.

Not until Grutter v. Bollinger in 2003 did a majority of justices hold that diversity in education was a compelling interest, and even that drew a strong dissent from Justice Thomas. In Grutter, Justice O’Connor endorsed Justice Powell’s conclusion, and once again the high court deferred to the notions of academic freedom and educational autonomy, while also expounding on the benefits of having a heterogeneous student body. Substituting the term “aesthetic” for “diversity,” Justice Thomas’s dissent criticized “[t]he majority’s broad deference to . . . the law school’s judgment that racial aesthetics leads to educational benefits.” Justice Thomas, doubting the value of having an elite law school in Michigan, and thus also most certainly doubting the value of classroom diversity at the elite law school, preferred that the “Law School . . . be forced to choose between its classroom aesthetic and its exclusionary admissions system.”

The Fisher v. University of Texas majority opinion, for a third time, accepted educational diversity as a compelling interest; nevertheless, that conclusion likewise drew strong criticism. Justice Kennedy, writing for the majority, confirmed that “[c]onsiderable deference is owed to a university in defining . . . intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Justice Alito, however, determinedly continued the visible, yet somehow still persistently elusive, doubting of the value of inclusion by systematically cutting a swath through the majority’s acceptance of the University’s expanded goals of classroom diversity, interracial diversity, and the avoidance of racial isolation.

The doubt and controversy existing since Bakke must be put to rest through the integration of classroom discussions and lessons the majority arguably envisions in its opinions. This Article begins by historically tracing the Court’s valuation of the educational benefits of a diverse student body. It continues with a close examination of the Fisher II decision and a critical review of Justice Alito’s dissent. In Part III, the Article explains the reasons and methodologies for incorporating lessons on diversity in traditional law school courses. The Article provides explicit ideas for teaching racially sensitive topics; but because it questions whether everyone is equipped to handle diversity issues openly, it also makes suggestions on how to do so quietly and even silently. In Part IV, the Article assesses the continued need for diversity lessons in a failed post-racial culture by briefly reviewing recent litigation efforts attacking schools’ admissions policies. Finally, after Justice Thomas’s example of substituting the term “aesthetic” for “diversity,” this Article too suggests the Court adopt a different term for diversity—inclusion. The Article concludes that the educational benefits of diversity are not only a compelling interest in higher education, but also a crucial one, and law school teachings need to be sensitive to the lessons that are only achievable in an inclusive environment comprised of diverse members.

“A Doughnut Hole In The Doughnut’s Hole”: The Henry Schein Saga And Who Decides Arbitrability

Tamar Meshel

Consider the following ‘doughnut’-like scenario: Company A enters into a contract with company B. The contract contains an arbitration clause that refers some, but not all, claims to arbitration. When a dispute arises, company A sues company B in court. Relying on the arbitration clause, company B files a motion to stay company A’s action and to compel arbitration. This is our doughnut––a dispute that company A wishes to resolve in the courts and company B wishes to resolve in arbitration pursuant to the contract’s arbitration clause. According to the United States Federal Arbitration Act (“FAA”), which embodies a liberal federal policy favoring the enforcement of arbitration agreements, the court should grant company B’s motion and enforce the parties’ arbitration clause once it finds that “a valid arbitration agreement exists.” Granting company B’s motion would mean that an arbitrator, rather than the court, would decide the merits of the parties’ dispute.

Judicial Language in New Jersey Sexual Violence Cases

Suzanne J. Miller

When actions can be characterized in multiple ways, description creates their meaning. Judges’ language shapes an understanding of alleged actions and sets precedent, for better or worse. They are subconsciously influenced by the same factors as all members of society when assessing victim credibility in a sexual violence case. Because “lay definitions of rape are . . . often considerably narrower than legal definitions,” reliance on cultural understandings of the offense can lead to “legally irrelevant factors” influencing judicial perception. Training on gender bias and rape myths aims to mitigate cultural conditioning and prevent it from impacting outcomes.

Driving for Second Chances: A Foundation for Establishing the First DUI Expungement Law in New Jersey

Zachary S. Whelan

New Jersey’s expungement statute covers a broad range of offenses that are eligible for expungement. However, the expungement statute does not cover DUIs because DUIs are legally classified as traffic offenses, a non-expungable class of offenses. Although traffic offenses are legally less serious than criminal offenses, DUI convictions can cause social stigmatization equivalent to the level of some serious crimes. Because of this level of stigma, barriers in current and prospective employment typically result, and ex-offenders are thus, isolated from society. Even if an ex-offender has been living a rehabilitative and law-abiding life since the conviction, the ex-offender has no legitimate post-conviction remedies available to alleviate the collateral consequences. This note discusses New Jersey’s DUI and expungement laws, the issues encompassing New Jersey’s bar on expungement for DUIs, how expungement can resolve these issues, and a feasible scheme for future DUI expungement legislation in New Jersey.


Not Deaf Enough: Can You Hear Discrimination?

Nina Rodriguez

Hearing loss is a disability that affects thousands of Americans and severely inhibits one’s ability to participate in society. Although it is quite common, hearing loss is often considered an “invisible disability” because one cannot always tell that someone has hearing loss just by looking at them. Because of this, there are several misconceptions and misunderstandings surrounding hearing loss as a whole. While the enactment of the Americans with Disabilities Act (“ADA”) codified protections for many individuals with disabilities, the complexity of hearing loss meant that it was often overlooked by the courts in ways that deafness, another type of hearing disability, was not. As a result, many individuals with hearing loss fell through the cracks of the ADA’s purported protections, and stigmas surrounding the disability remained or were pushed to the surface.

This Note explores judicial jurisprudence in its analysis and interpretation of hearing loss under both the ADA and the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”). This Note seeks to compare and contrast the ways in which courts evaluated hearing loss and takes a critical look at its analysis under both versions of the statute. Further, this Note highlights and explores common stigmas surrounding hearing loss evident in these interpretations, while addressing stereotypes that stem from a greater misunderstanding of the disability as a whole. Finally, this Note serves as a point of advocacy, with a hope that a more thorough understanding of hearing loss will help courts to continue properly evaluating the disability with a more inclusive analysis under the ADAAA. As readers will see, hearing loss, whether it be mild or severe, was squarely among the disabilities that the ADA was always intended to protect.


Copyright Infringement Analysis in Music: Katy Perry a “Dark Horse” Candidate to Spark Change?

Edward M. Christian

The music industry is at a crossroad. Initial copyright infringement judgments against artists like Katy Perry and Robin Thicke threaten millions of dollars in damages, with the songs at issue sharing only very basic musical similarities or sometimes no similarities at all other than the “feel” of the song. The Second Circuit’s “Lay Listener” test and the Ninth Circuit’s “Total Concept and Feel” test have emerged as the dominating analyses used to determine the similarity between songs, but each have their flaws. I present a new test—a test I call the “Holistic Sliding Scale” test—to better provide for commonsense solutions to these cases so that artists will more confidently be able to write songs stemming from their influences without fear of erroneous lawsuits, while simultaneously being able to ensure that their original works will be adequately protected from instances of true copying.