Articles

Live-Wire: Eastern States Unplug National Law From Sustainable Policy – Steven Ferrey

This Article analyzes an increasing number of Eastern U.S. states’ attempts to legally manipulate land-use law precedents to frustrate and now block the recent federal infrastructure laws. The federal circuit courts and state supreme courts have upheld these states’ reserved legal power to block federal infrastructure or climate change policies. The stakes are large: This blockage impacts the interstate electric power grid, the most important technology in the United States, as well as what President Biden deemed his most important legislative achievements.

Patient Lock-In: How SEPs Shape Access to Health Data – Brian Scarpelli and Priya Nair

The integration of standardized technologies into healthcare technology and medical devices has revolutionized the delivery of care, enabling real-time data exchange, seamless interoperability, and improved patient outcomes. From wireless connectivity protocols, like Wi-Fi and Bluetooth Low  Energy, to data exchange frameworks, such as FHIR and HL7, standards have become the backbone of modern healthcare systems. However, the adoption of standardized technologies comes with significant challenges, particularly in the realm of standard-essential patents (“SEPs”). These patents, which become “essential” if the technologies they read on are included in the standard, can create artificially inflated market power that can disrupt competition, stifle innovation, and escalate costs for medical device manufacturers and healthcare providers. The stakes are especially high in healthcare, where delays or inefficiencies in deploying critical devices can directly impact patient care.

Rethinking Public Safety – Deborah Ramirez and Malcolm R. Clarke

To date, the prevailing model of public safety takes the form of a police-centric community policing model where police officers are first to engage with the community on issues such as aiding the homeless, responding to nonviolent mental health situations, stopping traffic, treating youth unemployment, addressing substance use disorder incidents and other societal service activities. As a result, this model encourages and increases civilian contact with armed police officers, which can ultimately result in violent responses and even shootings during nonviolent situations. A history of police violence against nonviolent offenders underscores the depth of the crisis. In May 2020, police officer Derek Chauvin responded to a call over a phony $20 bill.

Although such an offense is a minor, nonviolent one, George Floyd was murdered by Officer Chauvin, who restrained Floyd by kneeling on his neck for over nine minutes. A few years earlier, in Staten Island, Eric Garner was killed by Officer Pantaleo when Officer Pantaleo used an illegal chokehold on Garner that ended his life for allegedly selling untaxed cigarettes. Incident after incident has demonstrated that there is a pressing need to rethink public safety.

This Article argues that we need to rethink public safety by (1) narrowing the scope of police responses to only violent crimes, on-going crimes, and serious felonies, and (2) creating a team of Civilian Unarmed Public Safety Responders (“CUPSR”) to respond to all other nonviolent crimes.

Trademark Law as an Accessory to Language Death – Zaneta M. Robinson

Trade and service marks play a significant role in the exchange of goods or services on a large scale. Trademarks, like ordinary language, communicate important messages to consumers and garner what is often referred to as goodwill. Goodwill is a “value that reflects the basic human propensity to continue doing business with a seller who has offered goods and services that the customer likes and has found adequate to fulfill her needs.” How a word is used or perceived (or not) may enhance a consumer’s ability to readily determine whether a product or service emanates from a single source, even if the consumer has no idea who or what entity provides the products or services.

The Lanham Act seeks to protect dual interests by protecting consumers from confusion and mark owners from unfair competition. As a part of the “broader law of unfair competition,” it forbids the “passing off” of one’s goods or services as the goods or services of another.

This Article considers whether the U.S. Doctrine of Foreign Equivalents further harms persons who often have less political or social power—those whose first or primary language is not English. The question is whether a propensity towards English language preferences is so interwoven into our interpretation of the Lanham Act that the Doctrine covertly contributes to the death of languages that are no longer thriving.

Student Notes

What Comes Next for Wetlands? Building a Freshwater Wetland Protection Statute for a Post-Sackett World – Joseph Badami

In Sackett v. EPA, the United States Supreme Court departed from precedent and adopted a relatively narrow interpretation of the geographical scope of the Clean Water Act. As a result, the Court effectively eliminated the federal government’s ability to regulate and protect a vast number of the country’s freshwater wetlands. To fill this regulatory gap, individual states must now seek to enact their own statutes to protect freshwater wetland ecosystems from unmitigated degradation and destruction. To that end, states should consider adopting a model freshwater wetland protection law that draws upon the strengths of existing state-level programs and seeks to balance environmental interests with the interests of private property owners. Existing state-level programs, such as that created under New Jersey’s Freshwater Wetland Protection Act, should serve as a framework upon which this model freshwater wetland statute is based.

A Wise Move: Expediting the Inevitable by Embracing Managed Retreat in New Jersey – Jesse Papineau

Sea level rise—one of the most consequential effects of climate change—will have an outsized impact on New Jersey. Increased flooding will permanently alter the state by causing devastating damage that leaves many homes uninhabitable, precipitating a need to relocate residents before that happens. Due to its voluntary nature, the state’s current property acquisition program can only do so much to respond to this looming crisis. Accordingly, New Jersey should use eminent domain in a fair and equitable manner to compel homeowners to move before disaster strikes. Given its distinct coastal geography, environmentally progressive policies, and effective, established buyout scheme, the Garden State is an ideal place to enact a groundbreaking buyout program backed by eminent domain that can be used to proactively protect residents from the impending threat presented by rising sea levels.

Bad Ink: Touching Up the FDA’s Regulation of Tattoo Ink – Lauryn K. Kearney

Once confined to the peripheries of American society and stigmatized as the mark of sailors and jailbirds, today, tattoos are embedded in the stratum of popular culture. Formerly practitioners of a niche art form, tattoo artists have found fame on reality television shows, reflecting the art form’s integration into the mainstream. Tattoos are on display by A-List actors, runway models, Grammy-winning musicians, Olympic athletes, and even politicians on the floor of Congress. Given the prevalence of famous tattoos, the number of “inked” Americans is unsurprisingly high. While on the rise since the 1970s, the last fifteen to twenty years saw a more sudden uptick in the number of Americans opting to go under the tattoo needle. From 2012 to 2019 alone, the number of Americans with tattoos rose by about nine percent, and projections for the global tattoo market are expected to nearly double between the years 2023 and 2030.

As with other permanent decisions involving needles, there are considerations one might take into account when opting to get a tattoo. Some might prioritize an artist’s distinctive style, fees, or reputation, while others may first inquire into the artist’s or studio’s safety practices or any applicable licensing requirements. But there is another question that those considering a tattoo may want to ask: What is in tattoo ink?

Part I of this Note examines the health risks associated with the ingredients and contaminants found in tattoo inks presently on the U.S. market. Part II assesses the powers of the FDA to regulate cosmetics and the implications of this authority for the safety of tattoo ink. Part III takes a look at the European Union’s proactive approach to tattoo ink regulation. Part IV compares the FDA’s authority to regulate cosmetics with the Environmental Protection Agency’s authority to regulate chemicals under the Toxic Substances Control Act and discusses the regulatory overhaul of the Act by way of the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Part V provides recommendations for reforming the U.S. cosmetic regulatory framework.

New Jersey’s Constitutional Negative Right to Shelter – Brett G. Weise

“The point is to make it uncomfortable enough for them in our city so they will want to move on down the road.” – Lily Morgan, Grants Pass City Council President.

Lily Morgan, here referring to the unhoused in her city, is anything but a lone crusader. After her city’s anti-camping ordinance was upheld against a Cruel and Unusual Punishment Clause challenge in Johnson v. City of Grants Pass, the U.S. Supreme Court cleared the way for cities nationwide to deprive the civility and dignity of our country’s most vulnerable citizens—our unhoused neighbors. Public officials are responding accordingly, effectively banishing homeless communities into exile. This comes at a time when states are grappling with a homelessness crisis.

New Jersey is no exception. But New Jersey is not without recourse. The seminal decision of the New Jersey Supreme Court in Southern Burlington County NAACP v. Mount Laurel Township provides an analytical framework by which shelter should be recognized as a negative right under the state constitution—protecting individuals against government punishment for simply being unsheltered.

This Note will argue that the New Jersey Constitution provides for a negative right to shelter, implicit within its text. Recognition of a negative right to shelter would ensure that the government be restrained from exacting any civil or criminal punishment for the status of being homeless unless and until the government provides adequate shelter. Fundamental guarantees of substantive due process and equal protection compel this outcome.

This Note will review the Mount Laurel decision and its progeny, articulate its constitutional principles, and apply them to unsheltered homelessness. Fifty years of case law proves that extending the Mount Laurel doctrine to unsheltered homelessness is not a radical proposal but the natural result of the doctrine’s reasoning.

Addressing homelessness is fundamentally a public policy issue. No court can issue a decision that will build the millions of homes necessary to exit the affordable housing crisis. But, this Note will explain why, even with inadequate funding and enforcement, a negative right to shelter alone will provide significant protection for New Jersey’s homeless population. A negative right to shelter is not a departure from the strictures of the Mount Laurel doctrine—on the contrary, it is entirely within the spirit of the law.