Rutgers Law Record

Out of Iraq: The U.S. Legal Regime Governing Iraqi Refugee Resettlement

PDF version available: 34 Rutgers L. Rec. 46

By Jennifer Rikoski and Jonathan Finer^*

1.  Introduction

  Since the U.S. invasion of Iraq in March 2003, an estimated 2 million Iraqis have fled to Syria, Jordan, Egypt, Turkey, and other neighboring countries, and another 2.7 million are “internally displaced,”¹ meaning uprooted from their homes, but still within Iraq. Many fled not during the invasion, but later, because of the sectarian violence that erupted across the country after the bombing of the Al-Askari mosque in Samarra in February 2006,² leading to the Middle East’s gravest humanitarian crisis since the Palestinian diaspora of 1948.

Fall online symposium announcement

    This coming fall, the Rutgers Law Record will publish an online symposium titled 'Emerging Issues in Criminal Jurisprudence.'

Call For Papers: Emerging Issues in Criminal Jurisprudence.

This coming Fall 2009, the Rutgers Law Record will publish an online symposium entitled 'Emerging Issues in Criminal Jurisprudence.'

As an introduction to this online symposium, the Law Record has published a new essay by distinguished Professor George C. Thomas III of Rutgers School of Law - Newark. Professor Thomas, widely acknowledged as one of the top scholars in his field, is the author or co-author of four books and more than 60 articles on criminal law and criminal procedure.  This article, which can be found below, discusses the evolution of the doctrine of consent searches both under the United States Constitution and through New Jersey's courts. Professor Thomas's article on consent searches constitutes the first installment of our Emerging Issues in Criminal Jurisprudence symposium.

This Fall 2009 the Law Record will publish its second installment of 'Emerging Issues in Criminal Jurisprudence.' This second installment of the Law Record's online symposium will include a student article entitled "Batson Revisited: Discriminatory Venue Transfer and the Scope of Supreme Court Precedent."  This article examines a recent decision by the 10th Circuit rejecting the argument that Batson v. Kentucky stands for the general proposition that the Equal Protection Clause applies to all stages of a criminal proceeding, including venue transfer.

We are currently soliciting articles for this issue. Please note our requirements on our page entitled "Submissions." Our deadline for this issue is September 15.

 

Principle of Proportionality in the Context of Operation Cast Lead: Institutional Perspectives

PDF version available here.

By Amichai Cohen^*

I. Introduction

The round of fighting between Israel and Hamas that began at the end of 2008, officially known in Israel as "Operation Cast Lead," raises several questions regarding the applicability and contents of International Humanitarian Law ("IHL").¹ This article will deal with only one such question: the issue of proportionality in IHL. I begin by outlining the major claims that have arisen with regards to legality of the use of force, by both Israel and Hamas, emanating from the requirements of proportionality. The second part of this paper will delineate the existing debate as to the correct interpretation of the proportionality norm in IHL. In the third part, I will suggest the appropriate requirements of proportionality in modern armed conflicts.

The Right to Food in Gaza: Israel’s Obligations Under International Law

PDF version available here.

By Randle C. DeFalco^*

I. Introduction

            On December 27, 2008 Israel launched a series of airstrikes against targets in the Gaza strip,¹ marking the beginning of Operation Cast Lead (OCL),² a 22-day military campaign against Hamas.³ Israel officially launched OCL in “defense of its citizens, who have been and continue to be deliberately attacked by the Hamas terrorist organization.”⁴ Although Israel pledged⁵ to abide by the International Humanitarian Law (IHL) requirements of “distinction”⁶ and “proportionality,”⁷ OCL inflicted major destruction on Gaza.⁸ By the time Israel and Hamas independently announced unilateral ceasefires on January 18, 2009,⁹ approximately 1,440 people had been killed and another 5,380 injured.¹⁰

            OCL took place at a time when basic goods and food stores in Gaza were already in short supply due to Israel’s blockade of the territory; in place since June 2007.¹¹ There is no clear end to this blockade in sight. Rockets continue to be fired into Israel despite Hamas’ public condemnation¹² and Israel has conditioned any border concessions on the release of captured Israeli Defense Force (IDF) solder Gilad Shalit.¹³ Israel does claim however, that at all times, sufficient humanitarian aid is allowed into Gaza and that any restrictions are the result of security concerns that the blocked aid will benefit Hamas;¹⁴ especially so-called “dual-use”¹⁵ items. Critics of Israel’s border policies espouse a contrary view, asserting that vital supplies are being arbitrarily denied entry into Gaza.¹⁶ Some human rights groups have even accused Israel of using the blockade to collectively punish Gaza’s residents.¹⁷

            This paper examines Israel’s border policies in light of the impact on civilian food access in Gaza. In doing so, both human rights and humanitarian law will be discussed in turn, as each confers certain rights on individuals and duties on States vis-à-vis access to food. Furthermore, in light of the unclear nature of the conflict in Gaza (international or non-international) and disputes over whether Israel legally “occupies” Gaza, Israel’s food-related duties internationally, domestically and as an occupying power will be examined where appropriate.

THE PALESTINE DECLARATION TO THE INTERNATIONAL CRIMINAL COURT: THE STATEHOOD ISSUE

PDF version available here.

John Quigley^*

1     In the wake of Israel’s military incursion into Gaza from December 2008 to January 2009, the Palestinian National Authority filed in the International Criminal Court (ICC) a declaration accepting the jurisdiction of the ICC in the territory of Palestine. The Declaration, submitted on the letterhead of the Palestinian National Authority, Ministry of Justice, Office of Minister, reads:

Declaration recognizing the Jurisdiction of the International Criminal Court

In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.

As a consequence, the Government of Palestine will cooperate with the Court without delay or exception, in conformity with Chapter IX of the Statute.

This declaration, made for an indeterminate duration, will enter into force upon its signature.

Material supplementary to and supporting this declaration will be provided shortly in a separate communication.

Signed in The Hague, the Netherlands, 21 January 2009.

For the Government of Palestine

Minister of Justice s/Ali Khashan¹

The Development of Global Labor Rights – Does New Jersey’s Conscientious Employee Protection Act Export Substantive Employment Rights to Workers in the Third World?

PDF version available here.

By Alexandra Vernoia*^

I. Introduction

    Labor rights in the U.S. developed over the course of many years in a matrix of legislative enactments, common law protections, and the collective action of employees.¹ The laborers “most likely to organize were autonomous workers who had substantial independence in the workplace.”² In most third world countries, collective employee action is either prohibited or is not effective.³ Workers are forced to labor in onerous and unsafe conditions for long hours and minimal wages.⁴

    Companies headquartered in the United States export jobs to developing nations. The purpose is to obtain the benefits of an inexpensive labor force, while avoiding the obligations imposed by federal, state, and local statutes and regulations. In doing so, U.S. companies obtain the work product of their third world “employees” without being encumbered by legal responsibilities to those employees imposed by statutes aimed at protecting the American workforce.

    In order to receive any form of protection against employers who exploit this labor force, foreign employees must find new ways to bring actions against their employers in U.S. courts. In New Jersey, a series of state court decisions suggest that foreign employees might have legal recourse in New Jersey state courts by bringing a cause of action under New Jersey’s Conscientious Employee Protection Act (“CEPA”).

Time Off For Military Families: An Emerging Case Study in a Time of War . . . And The Tipping Point for Future Laws Supporting Work-Life Balance?

PDF version available here

Marcy Karin*

*Legislative Counsel, Workplace Flexibility 2010; Adjunct Professor of Law, Federal Legislation and Administrative Clinic, Georgetown University Law Center.  In August 2009, Marcy will be an Associate Clinical Professor of Law and the Director of a new Work-Life Policy Unit of the Civil Justice Clinic at Arizona State University Sandra Day O’Connor College of Law.  Many thanks to Paula Shapiro, Shelley MacDermid Wadsworth, Michael Teter, Mike McGinley, Katie Corrigan, Sharon Masling, Liz Watson, Chai Feldblum, and the staff of the Rutgers Law Record for their invaluable feedback and support.

            The War on Terror has had a significant toll on enlisted members, reservists, their families, and their employers.¹ As of early 2008, close to 1.7 million troops have served in Iraq since September 2001.² Over 600,000 members of the Guard and Reserve, who are usually a part of the civilian workforce, have been called up to serve; 133,000 of whom have served more than one tour of duty.³ These numbers reflect an almost tripled reliance on the Guard and Reserve when compared to Desert Storm,⁴ solidifying their place as a critical component of our Nation’s strategy in fighting this war and meeting the military’s operational needs.⁵

            This war has also solidified the military’s embrace of the concept of recruiting a soldier and retaining a family,⁶ the majority of whose members are employed in the civilian workforce.⁷ This increased reliance on civilians – as well as the greater number of families with members being deployed – is significantly affecting our Nation and its workplaces.⁸

            One recent movement to ease some of the impact of the war at home and at work is a nationwide push to obtain guarantees for job-protected time off to address the day-to-day realities and other effects of war. The law has long provided job-protected time off for reasons related to military service.⁹ However, all levels of government have seen calls to expand employment protections to ease the transition back into the civilian workforce or to care for those leaving for or returning home from service.

            In January of 2008, an important change to the status quo in this area came when Congress amended the federal Family and Medical Leave Act (“FMLA”) to include two new provisions for military families.¹⁰ These new provisions provide time off for a “qualifying exigency” related to a covered servicemember on active duty or call to active duty status and for “caregiving” of a covered servicemember with a serious injury or illness.¹¹ An examination of the FMLA’s new provisions and its legislative history illustrates the needs Congress was trying to address. It also provides insight into whether additional support for the work-life balance needs of our Nation’s military, including their families and the companies that employ them, as well as the work-life balance needs of other members of society can be expected in the future.

            In addition to providing certain employees with job-protected time off, these new provisions have the potential to act as a powerful catalyst for future changes, particularly with the change in government personnel that has taken place since the law was enacted. In his best-selling book, Malcolm Gladwell posits that “[a]ll epidemics have Tipping Points”, and “[i]deas[,] products[,] messages and behaviors spread just like viruses do.”¹² He defines “The Tipping Point” as “the moment of critical mass, the threshold, the boiling point.”¹³ This country has seen a number of calls for the government to get involved in addressing the work-life balance needs of society. After explaining the law’s provisions and legislative history, this piece explores whether the new FMLA provisions have helped the work-life movement reach its Tipping Point. Do they represent a paradigm shift in the way legislators (and society) think about work-life policy, unifying a confluence of other events and activities to change the way people think about the role of law and policy in supporting work-life balance? Are they an incremental step in a larger movement whose time is approaching, but has not yet arrived? Or are they simply a one-off policy response to a particular population’s needs during a time of war?

ADA Amendments Act of 2008: New Hope for Individuals with Disabilities

PDF version available here

Lauren Siber*

* 2009 candidate for J.D. at Rutgers School of Law – Newark.

I. Introduction

The Americans with Disabilities Act¹ (ADA) was intended “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”² Based on the Rehabilitation Act of 1973 (Rehabilitation Act),³ the ADA promised to fix many of the loopholes found in the Rehabilitation Act, and to provide more protection to individuals with disabilities. Although the definition of disability under the ADA was borrowed from the Rehabilitation Act, many individuals protected under the Rehabilitation Act were not covered under the ADA. The Supreme Court frustrated the intent of Congress in several major cases, by restricting the scope of the ADA and implementing new standards to be covered. These new standards greatly protected employers and did not afford much protection to disabled individuals. To remedy this, the House of Representatives and the Senate passed the ADA Amendments Act of 2008 (Amendments Act) by an overwhelming majority.⁴ This bill was signed by President Bush on Sep 25, 2008 and went into effect on January 1, 2009.⁵

This article will focus on how the Supreme Court went beyond the scope of its granted power by ignoring the congressional intent of the ADA, specifically in the employment sector. It will provide an in-depth analysis of Sutton v. United Air Lines, Albertson’s, Inc. v. Kirkingburg, Murphy v. United Parcel Service, Toyota Motor Manufacturing. v. Williams and US Airways, Inc. v. Barnett, showing how the Court interpreted the ADA in a manner that failed to follow the intent of Congress. This paper will also discuss the Amendments Act, specifically its goals, how it differs from the ADA, who it will protect, and its effect on employers nationwide.

Employer-Employee Arbitration Agreements and New Jersey’s Clearly Written Provision

PDF version available here

Matt Tranzano*

    *May 2009 candidate for J.D. at Rutgers School of Law – Newark. The author has ten years of experience working with human resources, employee benefits, and employment law and can be contacted at matt_tronzano@msn.com.

One of the first documents a new employee often signs is a binding arbitration agreement. Many employees sign the document without understanding, or even reading, the agreement. Typically, the employee then forgets about the agreement until an adverse employment action forces them to pursue litigation against their employer (or former employer). At that time, they are instructed either by their attorney, the employer, or the court that their dispute must be heard in binding arbitration. Is the agreement really enforceable? Should a judge or a jury hear their dispute?

Those questions, as with other questions regarding binding arbitration in the employment context, are viewed differently by various state courts. This article will explore the development of employment-related arbitration in the judicial system, and analyze current trends and limitations of arbitration in both the private and non-union workforces. In addition, the article provides a look into New Jersey’s “clearly written” provision, which is a higher standard than seen in many other states.