Current Commentaries

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.