Current Commentaries

Spring 2021

Reviving CAT When It’s Gone to the Dogs: A New Look at the Convention Against Torture After Matter of A-B-

Sabah Abbasi

In light of recent legal and policy developments that have destabilized settled asylum law in general and diminished relief for gender-based claims in particular, this commentary examines the evolution of refugee law for gender-based claims. As United States caselaw currently stands, administrative and judicial interpretations threaten to bar applicants with gender-based claims from meeting their burdens to demonstrate eligibility for statutory relief. In exploring the evolution of this caselaw, this commentary argues that where more historically reliable forms of relief may fail, withholding of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture” or CAT”) can and should fill the gap and provide protection—despite its limitations—for survivors of domestic and gender-based violence seeking to enter the United States.

Keeping Criminal Encounters Confidential: Preventing Collateral Consequences for Young Adults

Gisselly Perez-Astwood

Generally, states consider an individual an adult on his or her eighteenth birthday. This seemingly innocuous birthday signifies a transition from the protections afforded to minors in the juvenile justice system to the harsh criminal justice system. As a result, very often, young adults who break the law fail to consider the starkly different treatment they will encounter in the criminal justice system. Nonetheless, the repercussions of their encounter with the criminal justice system are everlasting. Young adults, like juveniles, may be unable to consider the impact of what they will in hindsight consider to be very stupid mistakes. And young adults, like juveniles, may be able to learn from their mistakes and rehabilitate themselves. Because of this, it is vital that the criminal proceedings and records of young adults be kept confidential to enable them to fully rehabilitate and re integrate into society.

A Losing Proposition: How the New Jersey Legislature’s Prohibition on In-State Collegiate Betting Ensures That You, the Sportsbooks, and the International Sports Betting Market All Lose

Andrew C. Smedberg

The sports gambling market is one of the most rapidly growing markets in the United States. As legal sportsbooks continue to launch their online platforms, build state-of-the-art sportsbook locations throughout the country, and expand their customer base, more and more bets continue to be placed not only in the state of New Jersey, but also in all states where sports gambling has been legalized. Sportsbooks offer bets of all kinds, on any sport you can imagine, and in several different forms. One would think that if the New Jersey sportsbooks offer bets as outlandish as the Gatorade color poured on the winning coach of the Super Bowl, then they would certainly, at the bare minimum, offer bets on Rutgers Football and Seton Hall Basketball. Surprisingly, this is not so. With the large variety of bets that may be placed in the State of New Jersey comes one type of bet that you are not allowed to make, and that is a bet on any collegiate event taking place within the state, or any out-of-state collegiate event involving a New Jersey state school. In addition to this prohibition being very poor public policy, it is an unconstitutional burden on interstate commerce and affects the sports gambling market on a global scale.

SASPA: The Key to Handling Sexual Assault on Campus in New Jersey

Kelly L. McNaughton

On-campus sexual assault is a crisis affecting men and women all over the country. Under Title IX of the Civil Rights Act, all public institutions are “legally required to respond to and remedy hostile educational environments and the failure to do so is a violation that means a school could risk losing its federal funding.” Title IX proceedings, however, can potentially lead to inefficient decision-making, and the remedies may vary dramatically, leaving survivors retraumatized and unsure of what to expect. In 2018, the Secretary of Education, Betsy DeVos, published drafts of regulations that would give institutions greater leeway in deciding how to implement Title IX. Therefore, it is likely that there will always be issues with the implementation of Title IX, as the law has become increasingly more affected by politics. So, while it remains a choice for victims at public universities, Title IX may not always be the best choice for victims.

Fall 2020

Unsettling the Law of Insurance Settlements: Sections 24 and 27 of the Restatement of the Law Liability Insurance

Kim V. Marrkand, Martha J. Koster, Joel S. Nolette

Under most general liability insurance policies, an insurance company has a duty to defend the insured against any suit where there is a potential for coverage; the commitment to defend is described in the policy as a “right and duty” of the insurer. At the same time, the investigation and settlement of suits are left to the judgment of the insurer, which “may” undertake these efforts “at [its] discretion.” From the obligation to defend where there is a potential for coverage, a complex body of law has emerged whereby insureds seek to impose liability upon insurers for failing to settle an underlying case where liability and damages are reasonably clear, and the insured faces an excess verdict.

 

Governance by Web Updates: The Commonwealth Of Pennsylvania’s Regulation By Website Guidance in Response to COVID-19 and Other Transparency Concerns

Kevin M. Levy

The world is a much different place than it was just a few months ago due to the omnipresence of the novel coronavirus known as COVID-19. Businesses have opened, closed, reopened, and reclosed. In the Commonwealth of Pennsylvania, residents and businesses have urgently looked to government officials for guidance and hope. And while Commonwealth officials have performed steadfastly in combatting the scourge of COVID-19, their practice of governing by multiple overlapping government orders, guidance, other sorts of regulatory actions, and even quasi- or non-binding recommendations has been confusing, delayed, contradictory, or otherwise insufficient at times. This Commentary discusses the lightning speed at which policy has been developed in Pennsylvania to combat COVID-19, the lack of recourse to which Pennsylvania constituents have been entitled during the ongoing pandemic, and the issues raised by continuous, constant, and silent implied changes to Pennsylvania COVID-19 compliance requirements.

Summer 2020

Staving Off a Supreme Court Smackdown: Anticipating and Avoiding an Ex Post Facto Challenge to FOSTA

Julie A. Minicozzi

Before April of 2018, in mere moments a person could log onto the internet and find a bevy of advertisements for underage, sex-trafficked girls, and then point, click, and purchase a fifteen-year-old girl for cyber-sex acts, or for in-person sex acts. Sex trafficking does not happen only on the dark web. It does not happen only in a foreign country. Sex trafficking happens daily right here in the United States. And, prior to April of 2018, ordering sex online was as easy as ordering anything else online. Law enforcement could not effectively prosecute the overwhelming number of bad actors advertising online and, therefore, could not effectively help ensnared and exploited victims. In a letter to Congress, the National Association of Attorneys General requested an amendment to a statute that blocked such prosecutions by affording broad immunity to internet service providers: the Communications Decency Act (“CDA”) § 230.

Spring 2020

Establishing a Sovereign Vote: Unshackling the Electorate by Redistricting Through Independent Commissions

Lucas Katzenmeier

For much of our nation’s history, the power to draw congressional districts has rested exclusively with the states’ legislators, and in a majority of states, the legislature retains that authority. When dividing the state into congressional districts, map makers are bound by strict equal population requirements.

Winter 2020

Permissioned Blockchains & Smart Contracts: The Smarter Way to Protect Intellectual Property

Katarina Gonzalez

Blockchain is the new buzzword of not just the technology industry, but seemingly the entire world. Most people associate blockchain with cryptocurrencies such as Bitcoin and Ethereum. The uses of blockchain technology go far beyond the cryptocurrency world and can benefit many different industries. This Commentary examines how permissioned blockchain and smart contracts benefit the intellectual property (“IP”) industry. The use of smart contracts would increase IP holders, and potential buyers or licensees, establish and enforce IP agreements, and track licensing agreements for IP deals.

Abatement Ab Initio in New Jersey and the Evolving Legal Landscape

Jason Kornmehl

What is the effect of a criminal defendant’s death while an appeal challenging a conviction is pending?  At one point, both federal and state courts provided a fairly uniform answer: death pending appeal required that the judgment of conviction be vacated and the indictment dismissed.  In other words, courts generally treated the defendant “as if he or she had never been charged.”  Because the defendant’s death discontinued all proceedings ab initio (from the beginning), this common law doctrine came to be known as abatement ab initio.