Current Commentaries

Summer 2022

“LET’S TALK ABOUT IT”: NEW JERSEY NEEDS TO CODIFY ITS TEMPORARILY RELAXED LICENSURE REQUIREMENTS FOR TELEMENTAL HEALTH PROVIDERS

Taylor Lodise

Although COVID-19 ignited awareness of the importance of mental health care, the serious harms and dangers posed by mental illness have existed long before COVID-19 arrived and will continue to exist long after. Access to adequate mental health care is therefore essential, not just during public health emergencies, but always. This commentary proposes a state licensure codification, based on temporary COVID-19 laws, that would permanently expand access to virtual mental health care for New Jersey residents through licensure exceptions for certain providers. Adoption of such by the New Jersey legislature is not only timely, but necessary to combat mental illness as well as various barriers to mental health treatment, such as cost and physical inaccessibility.

Part II of this commentary summarizes telehealth regulations at the federal and state levels, focusing on New Jersey law and explaining why a change in state law is suitable to fix the current inadequacies of licensure regulations. Part III discusses how increased access to virtual mental health care would help to combat the issues of mental illness and inadequate access to treatment. Part IV provides a legislative vehicle for such expanded access for New Jersey residents.

PREVENTING WRONGFUL CONVICTIONS: WHY STATE LEGISLATURES MUST TAKE THE LEAD IN REGULATING THE ADMISSIBILITY OF FAULTY FORENSIC EVIDENCE

Michael Lynch

The advent of DNA evidence ushered in a new era of criminal justice. With its unique ability to match a piece of biological matter to an individual source, DNA provided prosecutors with evidence of unparalleled weight in proving guilt. But DNA evidence also emerged as an unparalleled tool in asserting the innocence of a previously convicted defendant.

The exonerations of the past thirty years—particularly those based on DNA evidence—exposed traditional forensic evidence, previously thought of as infallible, as flawed and prone to causing wrongful convictions. Specifically, the Innocence Project has identified 111 instances of faulty forensic evidence contributing to a wrongful conviction. The National Registry of Wrongful Convictions identifies 735 cases as of August 5, 2022.

This commentary addresses a proposed bill in California designed to target faulty forensic evidence. First, it provides an overview of (1) documented issues with the validity of common types of forensic evidence, (2) efforts by other states to tighten the admissibility of forensic evidence or provide more liberal grounds for post-conviction relief, and (3) the questionable analysis courts have conducted in response to challenges of the admissibility of forensic evidence. This commentary concludes that state legislators must take the lead in reforming the standards for the admission and use of forensic evidence in criminal proceedings because the courts have abdicated their gatekeeping responsibility.


Spring 2022

WHAT THE HECK WERE THEY THINKING? IT’S TIME FOR THE COURT TO ABANDON THE HECK DOCTRINE

Gregory Getrajdman

Prisoner litigation is often chaotic. The Supreme Court could have quelled the disorder, but instead fueled the fire by constructing additional blockades between state prisoners and the federal courts. Now, a state prisoner challenging the constitutionality of their conviction or confinement is unable to proceed with a § 1983 claim for monetary damages if a verdict in their favor would suggest the invalidity of the underlying conviction or sentence. In that event, unless the underlying conviction or sentence is invalidated or reversed on appeal, district courts must dismiss the suit. This judicial creation—the Heck doctrine—is a preclusion rule that runs directly counter to Congress’ intent in enacting § 1983.

§ 1983 exists to ensure that victims of constitutional violations committed by the state are able to obtain federal redress; the Heck doctrine does the opposite. Instead, it severely restricts state prisoners’ access to the federal courts and causes tremendous confusion for lower courts around the nation. As these problems persist nearly three decades later, it is time for the Supreme Court to overrule Heck and preserve the true meaning of § 1983.

EJUSTICE: ACCESSING THE LAW IN AN ELECTRONIC WORLD

Argjenta Kaba

Two citizens, one statute, but two very distinct interactions with the law. Citizen B could have been any Georgia citizen who also solely relied on free, publicly accessible legal material but was limited just to the statutes themselves, and not any of the annotations. Juxtaposed with Citizen A, whose economic freedom permits them an upper hand to access a more lucrative and advantageous side to the exact same law. Does this discrepancy accord with American democratic values? Especially considering that “to exercise their rights to participate in our democracy, citizens must have reasonable access to all legal material.”

This commentary will address the accessibility of legal annotations, the accessibility of legal materials beyond annotations, and how the state of New Jersey approaches providing access to such materials. A decision like Public.Resource.Org, alongside the adoption of the Uniform Electronic Legal Material Act , could update the current New Jersey accessibility scheme to provide the public with the requisite access to legal resources.


Winter 2022

WHEN STARE DECISIS IS ON YOUR SIDE, BUT CHIEF JUSTICE ROBERTS IS NOT: JUNE MEDICAL V. RUSSO’S PLURALITY OPINION AND ITS FUTURE EFFECT ON ABORTION JURISPRUDENCE

Cristina Stewart

In 1992, the Supreme Court decided the seminal abortion rights case, Planned Parenthood of Southeastern Pennsylvania v. Casey. The Court’s plurality opinion in Casey reaffirmed the essential holding in Roe. However, the Court explained that a State may express its interest in the life of the fetus through the imposition of certain regulations. Most notably, the Court articulated the undue burden standard: if a state regulation has the purpose or effect of placing a substantial obstacle in a woman’s path to obtain an abortion of a non-viable fetus, the regulation is unconstitutional.

The next time this standard was meaningfully challenged was in Whole Woman’s Health, where the Texas legislation, HB2, would effectively shut down all but seven abortion providers for the entire state of Texas. The Court held that the ramifications of this requirement would put a substantial obstacle in the way of women seeking abortions, and would thus constitute as an undue burden. The burdens that would be experienced by women were weighed against the little benefits the provisions actually provided to women, and therefore, the regulation was unconstitutional.

Despite this ruling, in 2019 the Supreme Court granted cert in June Medical Services v. Russo. The regulations at issue, Act 620, in June Medical were almost identical challenges to those of HB2. The similarities of the regulations left pro-choice advocates confused and concerned. With the then 5-4 conservative majority of the Court, including those who dissented in Whole Woman’s Health, the benefit and burden analysis set forth only three years previously appeared to be in jeopardy.

Ultimately, in a 5-4 decision, the Court held that Act 620 was unconstitutional, and it did not satisfy the undue burden test for the same reasons articulated in Whole Woman’s Health. The surprising swing vote was in fact, Chief Justice Roberts who penned a concurring opinion agreeing with the holding.

However, what was first heralded as a win for pro-choice advocates, was fleeting as careful examination of the effects of Chief Justice Roberts’ concurrence began. In this Commentary, I will discuss what Chief Justice Roberts’ concurrence means for the undue burden test, the concept of stare decisis and its impact upon the validity of the Supreme Court as an institution. Lastly, I will discuss how this concurrence is currently, and will only continue, to create confusion within the circuit and lower courts, further jeopardizing abortion rights in the US.


Fall 2021

EXHAUSTION OF SECTION 504 AND ADA CLAIMS
UNDER THE IDEA: RESOLVING THE CONFUSION

Perry A. Zirkel

The history of the sister statutes of Section 504 of the Rehabilitation Act (“§ 504”) and the Americans with Disabilities Act (“ADA”) and their relationship to the Individuals with Disabilities Education Act (“IDEA”) has been convoluted, culminating in particular confusion in applying the long-standing exhaustion doctrine, which requires completion of the available administrative process before going to court. For many years, this issue, particularly the application of the IDEA’s exhaustion provision for § 504/ADA and other non-IDEA claims, has accounted for a significant segment of the burgeoning litigation in special education. Adding to the significance of this provision, the relatively recent Supreme Court decision in Fry v. Napoleon Community Schools interpreted it as requiring exhaustion of any non-IDEA claims that hinge on the denial of a free appropriate public education (“FAPE”) under the IDEA.

The purpose of this Article is to identify the successive major intersections in the roadmap history of § 504/ADA and the IDEA that culminate in a clarifying pair of recommendations for applying the IDEA’s exhaustion provision to claims under § 504 or the IDEA. The first part of the Article provides a foundational overview of the respective contours of § 504, the ADA, and the IDEA. The second part traces the aforementioned major intersections in relation to litigation in the P–12 school context. The final part sets forth the two overall recommendations for judicial application of the IDEA’s exhaustion provision to § 504 and ADA claims in this context. These recommendations target interpretive problems that arose before and continue after Fry, and thus neither depend on nor address the contours of the Supreme Court’s ruling.


A NEW START DOWN AN OLD ROAD TOWARD SUBSTANTIVE VOTER EQUALITY FOR PEOPLE WITH DISABILITIES

Tyler Creighton

This article proceeds in three parts. Part I summarize the history of voting with a disability and outlines the main federal statutes related to voting rights for individuals with disabilities. Part II explains how federal courts initially narrowed the guarantee of the ADA and the Rehab Act to mere technical equality in a way that denied equal dignity and treatment when voting with a disability. It then analyzes a more recent line of cases that backs away from this early case law to expand the reach of the ADA and Rehab Act to also ensure substantive equality and a fuller, more robust right to vote with a disability. Part III then speculates about broader adherence to a mandate of substantive equality throughout the federal judiciary.