LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
RUTGERS SCHOOL OF LAW - NEWARK
Vol. 6, No. 1: Feb 03, 2011

JOHN LEUBSDORF, EDITOR
Associate Dean for Faculty and Research Professor of Law and Judge Frederick B. Lacey Scholar, Rutgers Law School - Newark
jleubsdorf@kinoy.rutgers.edu

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Table of Contents

A Fair Punishment for Humbert Humbert: Strict Liability and Affirmative Defenses

Vera Bergelson, Rutgers Law School - Newark

Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain Their Relationships Post-Adoption

Randi Mandelbaum, Rutgers School of Law - Newark

Introduction, 'After We Die: The Life and Times of the Human Cadaver'

Norman L. Cantor, Rutgers University School of Law

Health Reform and De Facto Federalism in China

Christina S. Ho, Rutgers School of Law - Newark

A Closer Look: A Symposium Among Legal Historians and Law Librarians to Uncover the Spanish Roots of the Louisiana Civil Law

Vicenç Feliú, University of the District of Columbia - David A. Clarke School of Law
Dennis Kim-Prieto, Rutgers, The State University of New Jersey - School of Law-Newark
Teresa M. Miguel, Lillian Goldman Law Library, Yale Law School

How Law Student Information Literacy (LSIL) Standards Address Deficits Identified by the MacCrate Report and the Carnegie Report, and What They Mean for Legal Research Education & Training

Dennis Kim-Prieto, Rutgers, The State University of New Jersey - School of Law-Newark

A Free Labor Approach to Human Trafficking

James Gray Pope, Rutgers Law School - Newark

Overcoming Gridlock: Campbell after a Quarter-Century and Bureaucratically Rational Gap-Filling in Mass Justice Adjudication in the Social Security Administration's Disability Programs

Jon C. Dubin, Rutgers University School of Law


LEGAL SCHOLARSHIP NETWORK: LEGAL STUDIES RESEARCH PAPER SERIES
RUTGERS SCHOOL OF LAW - NEWARK

"A Fair Punishment for Humbert Humbert: Strict Liability and Affirmative Defenses"


New Criminal Law Review, Vol. 14, No. 1, Winter 2011
Rutgers School of Law-Newark Research Paper No. 083

VERA BERGELSON, Rutgers Law School - Newark
Email: vera_bergelson@yahoo.com

In this article, I focused on the intersection of strict liability offenses and affirmative defenses. I sought to explore and evaluate a peculiar discrepancy: all states, as well as the Model Penal Code, deny to a defendant charged with a strict liability offense the defense of mistake, yet at the same time, allow most other affirmative defenses. Is this discrepancy warranted? Consider the following scenarios in which Humbert Humbert is charged with the statutory rape of Lolita:

If Humbert Humbert tried to argue that he had acted under a mistaken belief that Lolita was above the age of consent, he most likely would not prevail. He would not prevail even if he made all possible efforts to find out Lolita's true age (e.g., checked Lolita's birth certificate and received a signed sworn affidavit from Lolita’' mother) or if he fell prey to Lolita's own deception.

The outcome, however, would be different if Humbert Humbert could prove that his misperception of Lolita’s age was a result of insanity. In that case, Humbert Humbert would have a valid defense. He would also have a defense if he could show that he had had sex with Lolita under duress. Say, Clare Quilty, engrossed in the production of his pornographic movie, threatened to beat up Humbert Humbert unless he and Lolita performed a sexual act in front of his camera.

Obviously, the defenses of mistake, insanity, and duress, albeit belonging to the same family of excuses, differ in many important respects. To see whether certain formative differences may account for the different treatment of these defenses, I examine various excuses on the scales of cognitive-volitional, external-internal, and permanent-temporary. In the end, I conclude that, from the moral perspective, there is: (i) no difference between a permanent and temporary impairment;
(ii) a marginal difference in favor of external limitation compared to internal;
(iii) a meaningful difference in favor of cognitive impairment compared to volitional. Effectively, this conclusion means that a person who commits a strict liability offense pursuant to a reasonable mistake deserves punishment even less than a person who commits the same crime under duress.

I further explore the discrepancy between the treatment of the defense of mistake and other excuses in cases of strict liability from the perspectives of efficiency and other public policies. I conclude that this discrepancy is unwarranted, unfair, and arguably, unconstitutional. Accordingly, I advocate for a revision of the current law and adoption of an across-the-board rule that would make the defense of a reasonable mistake available in any criminal prosecution.

"Delicate Balances: Assessing the Needs and Rights of Siblings in Foster Care to Maintain Their Relationships Post-Adoption"


New Mexico Law Review, Vol. 41, No. 1, 2011
Rutgers School of Law-Newark Research Paper No. 084

RANDI MANDELBAUM, Rutgers School of Law - Newark
Email: rmandelbaum@kinoy.rutgers.edu

Over the last two decades, social science research has demonstrated the critical nature of sibling relationships, and, most recently, the importance of sibling relationships for foster children. Unfortunately, although our legal system has begun to respond to our growing awareness of these essential connections, e.g., many states, as well as Congress, have enacted statutes that protect sibling relationships to some degree, few have established laws to protect the relationship in the post-adoption context, leaving approximately 60% of children adopted from foster care every year, who are separated from their siblings, without the right to maintain their relationships with one another.

Research also shows that permanency for foster children, enshrined in the law and accomplished through adoption, is critical. Yet, closed adoption statutes, enacted at a time when the majority of adoptions were private and of infants, as well as the rights of parents to make decisions concerning the upbringing of their children, result in a situation where to achieve permanency, many children must lose their right to maintain their sibling connections, as courts are not permitted to order contact between siblings post-adoption. In addition, policymakers are reluctant to impose post-adoption obligations for fear that doing so will discourage persons families from seeking to become foster and adoptive families.

After reviewing statutes and case law from all fifty states, examining the social science research, and discussing open adoptions, this article proposes a template of reforms to our child welfare and adoption laws, and addresses some of the concerns, which may be raised by these contemplated changes. The proposed statutory provisions presume that the relationship between siblings in the foster care system will be maintained and permits courts to order post-adoption sibling contact, where it can be shown that there are existing connections between the children and it is in all of the children’s best interest.

I argue that the rights of the adoptive parents may be overcome here because there is something different about the parent-child relationship when the child is adopted out of a state-run foster care system, as compared to a private adoption, typically of a baby. Given this uniqueness, there is reason to question whether a strict reliance on parental rights is appropriate. In short, when a child is adopted from foster care, the State has been actively involved in the creation of the adopting parent–adopted child relationship, and, thus, has a parens patriae obligation to ensure that it is in line with the child’s best interest. This presence of the state, along with the children's strong interest in maintaining their relationships with one another, diminishes the adopting parents' expectations as to complete autonomy and alters the balancing, which always occurs between the rights of parents and the interests of the children and the state. We would never permit the State to sanction an adoptive relationship that did not agree to meet a child's medical or developmental needs. Why then would we accept a situation where an adoptive parent was refusing to maintain a sibling connection, when such a relationship has been documented as being emotionally, and even psychologically, important to the child's well-being?

By proposing statutory reforms to our adoption laws, this article attempts to further the dialogue concerning the rights of siblings in foster care to maintain their relationship when one or more of the children are adopted. While recently there has been some scholarly attention paid to the needs and rights of siblings in foster care and the sibling relationship more generally, little of it has been in the legal arena, and none of it has exclusively focused on the interests of siblings in the foster care system post-adoption. Moreover, no one has addressed the Fostering Connections to Success and Increasing Adoptions Act of 2008, and explored what these federal mandates might mean for the rights of siblings, both prior to and after the point of adoption.

"Introduction, 'After We Die: The Life and Times of the Human Cadaver'"


AFTER WE DIE: THE LIFE AND TIMES OF THE HUMAN CADAVER, Introduction, Washington, D.C., Georgetown University Press, 2010
Rutgers School of Law-Newark Research Paper No. 085

NORMAN L. CANTOR, Rutgers University School of Law
Email: ncantor@andromeda.rutgers.edu

This new book presents more than you thought you wanted to know about the handling of human remains. After We Die (AWD) not only chronicles a cadaver's physical state during various forms of disposal, it also discusses a cadaver's legal and moral status.

AWD details who controls the fate of human remains and the applicable legal bounds. Control of a cadaver is explored with regard not only to mode and place of disposition of remains, but also to use of cadaveric body parts in education, research, tissue transplant, and procreation. AWD ascribes enforceable rights to the insentient cadaver, not just to survivors reacting to what is happening to a corpse. One such right is to have a decedent's prior choices upheld; AWD urges advance planning toward enhancing the impact of a life via productive cadaver roles in medical education, research, and tissue transplant. AWD also discusses proposals for increasing cadaveric organ supplies, including a presumed consent regime.

As to moral standing of cadavers, AWD analyzes the quasi-human status attributed to remains and the protections therefore accorded to cadavers. The book reflects on the limits that post-mortem human dignity poses on disposal choices by either a decedent or an agent entitled to make final dispositions. Is it intrinsically disrespectful to exploit human remains in public educational displays, in artistic settings, or for utilitarian purposes as in furniture or clothes?

This posting to SSRN provides the Introduction to AWD.

"Health Reform and De Facto Federalism in China"


China: An International Journal, Vol. 8, No. 1, pp. 33-62, March 2010
Rutgers School of Law-Newark Research Paper No. 086

CHRISTINA S. HO, Rutgers School of Law - Newark
Email: cho@kinoy.rutgers.edu

Understanding China as a de facto federal system can generate explanations and recommendations concerning the path of China's health reform. The first section reviews how de facto federalism drove the historical development of the problems plaguing China's health system. The next section shows how certain features of the current reform plan, namely, the plan's ambivalence between government and market approaches and its lack of strong centralization, can be explained by de facto federalism. The third section uses the hypothesis of de facto federalism to generate two courses of action - one cautionary; the other, aspirational - that could be considered for the future. The consequences for the health sector of under-articulated federalism are clarified and point to the need for discursive reasoned elaboration, as opposed to political bargaining alone, in federalism.

"A Closer Look: A Symposium Among Legal Historians and Law Librarians to Uncover the Spanish Roots of the Louisiana Civil Law"


Rutgers School of Law-Newark Research Paper No. 087

VICENÇ FELIÚ, University of the District of Columbia - David A. Clarke School of Law
Email: vfeliu@udc.edu
DENNIS KIM-PRIETO, Rutgers, The State University of New Jersey - School of Law-Newark
Email: dprieto@kinoy.rutgers.edu
TERESA M. MIGUEL, Lillian Goldman Law Library, Yale Law School
Email: teresa.miguel@yale.edu

The debate regarding whether the origin of Louisiana civil law is based in the Spanish or in the French legal tradition has been ongoing since that state's incorporation into the United States as a result of the Louisiana Purchase. Distinguished legal scholars have argued in favor of one tradition being dominant over the other, and each has been staunch in support of that view. This article proposes and demonstrates that the Spanish, not French, civil law had an enormous influence on the creation and evolution of Louisiana civil law, and that this legacy resonates today.

The article begins with a brief historical account of the formation of Louisiana from territory to statehood. It then closely examines the contributions of Louis Casimir Elisabeth Moreau Lislet, the architect of the Digest of 1808 and the Code of 1825. Original Spanish documents and resources that were the foundation of the Digest of 1808 are analyzed and used to demonstrate how these Spanish civil law sources had a profound impact on Moreau Lislet and on the creation of Louisiana civil law. Finally the continuing evolution of Louisiana civil law and the now-famous Batiza-Pascal debate on the origins of the Louisiana civil law are carefully examined.

"How Law Student Information Literacy (LSIL) Standards Address Deficits Identified by the MacCrate Report and the Carnegie Report, and What They Mean for Legal Research Education & Training"


Rutgers School of Law-Newark Research Paper No. 088

DENNIS KIM-PRIETO, Rutgers, The State University of New Jersey - School of Law-Newark
Email: dprieto@kinoy.rutgers.edu

Legal Research Education has been slow to adopt Information Literacy (IL) as a framework, despite recognized demonstrations of the utility this framework presents to be when applied to library instruction and assessment. This article defines Law Student Information Literacy (LSIL), analyzes how LSIL Standards address existing and identified deficits in the current state of legal research education, and offers a copy of the current LSIL Standards.

"A Free Labor Approach to Human Trafficking"


University of Pennsylvania Law Review, Vol. 158, pp. 1849-1875, 2010
Rutgers School of Law-Newark Research Paper No. 089

JAMES GRAY POPE, Rutgers Law School - Newark
Email: jpope@kinoy.rutgers.edu

In theory, an unwanted thing or condition can be eradicated by the negative means of attacking it directly or the positive means of nurturing a nemesis, or a combination of the two. In the field of pest control, for example, a given pest can be attacked directly with pesticides, or a nemesis species can be introduced into the environment. In the latter case, the nemesis species does the work of extermination either by attacking the pest or by outcompeting it for food and other resources. Direct attack is the predominant legal approach to human trafficking (which is defined to include not only cross-border trafficking, but also the harboring or maintenance of a person in a condition of slavery or involuntary servitude). The United Nations Protocol, for example, calls on member states to criminalize "trafficking in persons" and to provide protection and assistance to victims of that practice. There is, however, another possibility: nurturing the free labor system as a nemesis to trafficking. This approach operates by guaranteeing to workers a set of rights sufficient to achieve either economic independence or, failing that, the power below to give employers the incentive above to provide jobs that rise above servitude. It relies primarily on workers -- not government enforcement -- to achieve and sustain labor freedom. This free labor approach, which finds support in the law of "involuntary servitude" under the United States Constitution, appears to provide an indispensable and cost-effective way to eliminate instances of trafficking that elude criminal prosecution. The article discusses the possible application of this approach to slavery and involuntary servitude, cross-border trafficking, and sex trafficking.

"Overcoming Gridlock: Campbell after a Quarter-Century and Bureaucratically Rational Gap-Filling in Mass Justice Adjudication in the Social Security Administration's Disability Programs"


Administrative Law Review, Vol. 62, p. 937, 2010
Rutgers School of Law-Newark Research Paper No. 090

JON C. DUBIN, Rutgers University School of Law
Email: JDUBIN@KINOY.RUTGERS.EDU

The Social Security Administration's (SSA) disability benefit programs utilize the largest adjudicative system in the western world. Yale Law Professor Jerry Mashaw's two comprehensive studies of the SSA's processes have yielded a theory of bureaucratic rationality to advance accuracy, consistency and baseline fairness through hierarchical adherence to centrally formulated rules in "mass justice" SSA adjudication. The SSA promulgated its "grid" regulations in furtherance of Mashaw's thesis to systematize the process of determining disability claimants' abilities to make adjustments to other work. In 1983, the Supreme Court sustained the grid in Heckler v. Campbell in an opinion administrative law scholars have identified as one of the most influential in administrative law. While elucidating the principles supporting agencies' authority to resolve some factual issues in advance of case-by-case adjudication through rulemaking and rigid decisional rules notwithstanding the statutory requirement of individualized decisionmaking, the Campbell Court relied in part on the presence of gaps in the grid - exceptions requiring more flexible and individualized adjudicative treatment. This includes a common exception for claimants with non-exertional limitations.

However, the agency's ad hoc, adjudicative methodology where grid exceptions are present has undermined the consistency and bureaucratic rationality the grid system was intended to ensure, sanctioned discriminatory and disadvantaged treatment of claimants with non-exertional impairments and limitations, and deeply divided the circuits. Courts and agency adjudicators differ within and among themselves on such fundamental questions as: (1) what is the proper methodology for using the grid's administratively noticed occupational and job bases as a framework or guide on work adjustment questions in grid exception cases and whether such methodology is applicable when additional vocational or labor market evidence is procured; and (2) under what circumstances may adjudicators deny a claim without additional vocational or labor market evidence by presuming or taking administrative notice of the lack of sufficient diminution or erosion of the grid's job bases due to the presence of considerations not factored into the grid's promulgation such as non-exertional limitations.

The article develops approaches for resolving both of these major grid "gap" issues. On the first issue, it argues that the courts should compel the agency to utilize non-promulgated interpretive guidance on the proper use of the grid's adjudicative framework in work adjustment assessments. This entails interpreting that guidance to mandate use of the grid's occupational and job base numbers, and not ad hoc, adjudicative gestalt, as the proper measure of the "significant" quantum of performable jobs below which a claimant is deemed unable to make a sufficient work adjustment in grid exception cases. In turn, this would ensure greater fairness, consistency and non-discriminatory treatment of similarly situated claimants and give proper effect to statutory vocational factors. On the second issue, it advocates that the Court compel compliance with settled official notice/administrative notice doctrine to ensure procedural fairness and prevent standardless intuitive decisionmaking. At a minimum, this requires constraining adjudicators from taking unrebuttable administrative notice that the grid's job bases have not been significantly eroded by the presence of non-trivial, non-exertional limitations in making work adjustment assessments.

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