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Vol 39. No. 1 Fall 2014



Domestic Tranquility:  The Goals of Home Protection 

Burke Bindbeutel ......................................................................... 1

This Article proposes an explanation for the special place of the home by surveying the development of privacy jurisprudence and grounding that development in our political tradition.  Our earliest conception of rights began with a kind of home protection.  But then there was a crucial shift into the abstract realm of privacy.  Legal home protection has evolved beyond a ceasefire between state and citizen.  Where before it was enough to stay the government’s intrusion into the home, there is today a recognition of the value of the intimate association of free individuals and the trust in government which arises from the respect shown that intimate association.



Whither Notice Pleading?:  Pleading Practice in the Days Before Twombly

Jason A. Cantone, Joe S. Cecil & Dhairya Jani......................... 23

Most scholars mark the end of notice pleading in federal civil cases at the time of the Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly or, at the latest, at the Court’s 2009 decision in Ashcroft v. Iqbal.  Scholars have noted occasional departures from the notice pleading standard in more complex civil cases, but notice pleading has been thought to remain the prevalent practice in simple negligence cases.  This Article examines two sets of complaints filed in federal district courts in 2006 in cases alleging injuries from simple automobile accidents.  We find that notice pleading practice, as indicated by Form 11 in the Appendix of Forms that accompany the Federal Rules of Civil Procedure, had already been abandoned in these routine cases before Twombly in favor of narrative pleading that provides a fuller expression of the factual context of the claim.  If pleading practice did not follow the notice pleading standard before Twombly in simple negligence cases that had the benefit of specific Form 11 guidance, it is doubtful that attorneys adhered to notice pleading practice in other more complex federal civil cases.  In this regard, our findings also raise doubts about the utility of Form 11.  In discussing our findings, we also briefly explore the psychology of pleading and whether the emergence of narrative pleading was an unintended consequence of a series of amendments to the Federal Rules of Civil Procedure starting in the mid-1980s and intended to allow more effective judicial management of litigation. While the Twombly/Iqbal plausibility standard certainly presents a higher standard than notice pleading, the trend is clear: pleading additional facts beyond the requirements of notice pleading predated Twombly or Iqbal and lower courts had already started to abandon the notice pleading standard.



State ex rel. Proctor v. Messina and Ex Parte Communications Under the HIPAA Privacy Rule: The “Judicial Proceedings” Split

Daniel J. Sheffner ...................................................................... 71

In State ex rel. Proctor v. Messina, the Supreme Court of Missouri held that the HIPAA Privacy Rule does not authorize court orders permitting defense counsel to enter into informal ex parte communications with a plaintiff’s treating, non-party health care provider, absent the plaintiff’s authorization.  In overruling the trial court’s order allowing such ex parte communications, the 2010 decision comports with the majority of state courts that prohibit such informal discovery techniques.  Notably, however, the Missouri court did not rest its holding on any state substantive rule expressly prohibiting ex parte communications, but on the court’s interpretation of the HIPAA Privacy Rule.  The Proctor court is the only tribunal that has held that the HIPAA Privacy Rule, as opposed to state substantive law, does not authorize such communications, pitting itself against many sister state courts that have interpreted the HIPAA confidentiality regulations to the contrary.





Anticipatory Repudiation:  A Clear Barrier to Communication

Garth E. Flygare........................................................................ 85

This Comment explores anticipatory repudiation under the U.C.C. in order to address the inherent disincentive to communicate among the parties to a contract when uncertainty of performance occurs.  This Comment presents a brief history of anticipatory repudiation, the framework of the doctrine in the U.C.C., and previously recognized instances of anticipatory repudiation.  This Comment argues that the current framework discourages open, honest communication among the parties to a contract in contradiction to the requirements of good faith and fair dealing necessary in any agreement. 

This Comment reviews some of the previous recommendations for changes to this section of the U.C.C. and attempts to provide potential solutions to overcome the barriers to communication found here, by compelling certain communications in specific situations.  The value in reviewing and addressing the problems found in anticipatory repudiation are further explored in this Comment from a marketing standpoint.  This Comment argues that the effects of anticipatory repudiation may devalue relational assets when concepts from exchange orientation are taken into consideration, and relationship marketing suffers from these inherent barriers to communication.



Protecting a Dream: Analyzing the Level of Review Applicable to DACA Recipients in Equal Protection Cases

Tania P. Linares Garcia........................................................... 105

Faced with congressional inaction regarding comprehensive immigration reform, the Obama administration, through the Department of Homeland Security (DHS), implemented the Deferred Action for Childhood Arrivals (DACA) program in an effort to give young undocumented noncitizens the opportunity to contribute their skills and education to the American community by granting them deferred prosecutorial action and work authorization for a renewable term of two years.  To date, DHS has granted DACA relief to over 521,825 young immigrants who would not otherwise be able to legally work in the United States. 

Although DACA recipients enjoy federal work authorization, states have adopted policies that restrict the benefits they receive from their employment authorization and bar them from pursuing certain professions.  These policies treat DACA recipients differently from other noncitizens with temporary work permits.  Yet, it is still unclear what level of review courts should apply to Equal Protection challenges arising from these policies because, although the DACA program effectively deems recipients lawfully present, it grants them no immigration status. 

This Comment argues that DACA recipients, like other lawfully present noncitizens, are entitled to heightened scrutiny in Equal Protection claims.  First, this Comment will provide a general overview of judicial interpretation of the Equal Protection Clause.  It will also explain the three major categories of noncitizens under current immigration law.  Next, this Comment will examine judicial decisions in Equal Protection challenges regarding various categories of noncitizens.  Lastly, this Comment will analyze why DACA recipients are entitled to heightened scrutiny under the Equal Protection Clause.





Texters Beware: Analyzing the Court’s Decision in Kubert v. Best, 75 A.3d 1214 (N.J. Super. Ct. App. Div. 2013)

Blair P. Keltner........................................................................ 125

Texting while driving creates a grave risk for those who use the roadways.  Forty-one states and the District of Columbia ban text messaging for all drivers.  Although public policy mandates a reduction in texting while driving, arguably this is a duty that should fall on drivers.  However, New Jersey does not stop there. In Kubert v. Best, the Superior Court of New Jersey, Appellate Division, considered whether seventeen-year-old Shannon Colonna was liable when the person she was texting lost control of his car and severely injured a motorcyclist and his passenger. Although Colonna was not found liable, the court held “that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.”

This Note examines Kubert in regard to the new duty imposed upon remote texters not to text the driver of a motor vehicle and argues it was unnecessary for the court to formulate such a duty.  The duty to avoid texting while driving should fall solely on the driver because remote texters have no knowledge of the circumstances of the recipient of a text message.  This Note argues that the duty created will rarely, if ever, be met, and the court did little more than create a useless duty of care.  



All Prisoners are Equal, but Some Prisoners are More Equal Than Others: An Inmate’s Right To Sex Reassignment Surgery After Kosilek v. Spencer, 889 F. Supp. 2d 190 (D. Mass. 2012)

Julia Kaye Wykoff .................................................................... 143

In a system where all prisoners are equal, some prisoners are more equal than others.  Despite the progression of the LGBT community, one very overlooked group is transgender prisoners.  This Note explores a transgender prisoner’s rights to sex reassignment surgery. In 2012, a federal district judge held for the first time that a DOC prisoner must receive sex reassignment surgery.  In a ten-year battle, Michelle Kosilek presented evidence that his Gender Identity Disorder was so severe that the only way to medically treat the condition was to have a sex reassignment surgery.  This case presented new, unprecedented law regarding the medical rights of transgender prisoners.  In examining Kosilek’s claim under the Eighth Amendment’s ban on cruel and unusual punishment, medical principles related specifically to transgender prisoners were presented to the court.  This case is currently up on an appeal, and as a divisive issue, it could potentially end up in front of the United States Supreme Court.  This Note examines the narrow holding of Kosilek, considers the role of public policy in Kosilek’s claim, and hypothesizes about the future of transgender prisoner litigation.