Commentaries Archive

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.

Summer 2021

PREDATORY LOANS SECURED BY INTERESTS IN REAL ESTATE (EQUITABLE MORTGAGES): A DISCUSSION OF ZAMAN V. FELTON

Mahlon L. Fast, J.S.C., Ret.

This article discusses the features that distinguish an equitable mortgage from a bona fide mortgage or a sale and lease-back transaction. Like a bona fide mortgage or sale and lease-back, an equitable mortgage—which frequently includes a deed, whether to be held in escrow pending a default, or recorded prior to default—includes the conveyance or grant of an interest in real property together with the concurrent intent that the grantor has the right to re-purchase that interest. The significant difference is that when the terms of a bona fide mortgage loan has been defaulted by a borrower, the default permits the lender-mortgagee (or an assignee of the mortgagee) to foreclose the interest included in the mortgage. The end result of that foreclosure is to foreclose, or “cut off,” the mortgagor’s right of redemption, i.e., the right to redeem, or re-purchase, the interest given to secure repayment. But in an “equitable mortgage,” the predatory lender attempts to avoid the procedural requirements, costs, and time required to foreclose a mortgage by already having a deed. The attempted avoidance of the requirement to foreclose is a sine qua non of an equitable mortgage and distinguishes it from a bona fide mortgage. That avoidance results in “clogging the equity of redemption;” i.e., no foreclosure proceeding is required on the failure of the grantor to exercise the right of redemption – the lender already has legal title to the interest in real estate, and the right to redeem, or re-purchase, the property has been “clogged.” Furthermore, if the transaction had been formulated as a true mortgage loan, and if there were a sale by a Sheriff (or other officer) following a foreclosure, any surplus funds (after satisfaction of the liens of judgment creditors and other encumbrancers) would be payable to, or for the benefit of, the grantor/mortgagor. But, if the equity of redemption has been clogged, there is no sale and no possibility of any surplus funds (the excess of the value of the security over the balance due on the mortgage) benefitting the grantor/mortgagor.

When Artificial Intelligence Invents: Recalculating the Patent Act for AI-Generated Inventions

Justin Dersh

On April 22, 2020, the U.S. Patent and Trademark Office (“USPTO”) upheld a patent examiner’s rejection of a patent application listing an artificial intelligence (“AI”) neural network named “DABUS” as its sole inventor. The USPTO reasoned that conception of an invention could be performed only by a natural person. The finding was based on the plain language of the Patent Act and the Manual of Patent Examining Procedure, as well as Federal Circuit precedent describing conception as a “formation of the mind of the inventor” and a “mental act.” The ruling, though consistent with current law, undoubtedly presents questions about how patent law should address AI-inventions in the future. Unsurprisingly, as AI has become more ubiquitous and advanced, there has been an uptick in AI-related patent application filings at the USPTO. Between 2002 and 2018, the annual number of AI patent applications increased by more than 100%. In response to this surge, the USPTO initiated a “request for comments” in 2019 on AI-inventions from both industry and the general public. The survey posed twelve questions about how certain areas of patent law for AI-inventions should be addressed including inventorship and ownership, non-obviousness, written description and enablement, prior art, and subject matter eligibility. This commentary will explore inventorship and ownership, prior art, infringement liability, and non-obviousness issues. It will analyze how well the current law can address them and posit ideas on how they should be resolved by the Patent Act in the future.

In order to determine how patent law should address “AI-inventions” going forward, it is imperative to first explicitly define that term. The USPTO has suggested that AI-inventions may refer both to inventions that utilize AI, as well as inventions that are generated by AI. These conceptions, however, are vastly different and require independent analysis. This commentary will primarily consider only those inventions that were developed or generated by AI.

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.

Summer 2019

Suicide Encouragement: A Homicide Offense Based on the Doctrine of Undue Influence

Anthony G. LoBrace

This Comment will address suicide encouragement as a distinct homicide offense and propose a doctrinal framework for establishing causation based on the doctrine of undue influence in inheritance law. It also argues that causing suicide statutes, which proscribe causing another’s suicide through force, duress, deception, or coercion, are best fitted for prosecuting suicide encouragement cases like Carter.

On War and Drugs: Prosecuting High Level Fentanyl Traffickers Under Federal and State Chemical Weapons Statutes

Sean Campbell

The United States is currently facing a public health emergency: the opioid epidemic. Synthetic opioids—primarily illicitly manufactured fentanyl (“IMF”) and its analogues—were involved in nearly 30,000 drug overdose deaths in 2017. Fentanyl and its analogues are so potent that, in addition to causing widespread death among direct users, these substances have injured law enforcement and first responders in the line of duty and have previously been deployed in settings that have yielded mass casualties in the context of chemical warfare. Given these details, this commentary presents a theory for how traffickers of IMF and its analogues could be prosecuted not only under the Controlled Substances Act—the federal law typically applied to such circumstances—but also under state and federal laws regulating chemical weapons.

Spring 2019

Reforming the Already Reformed

Ariel K. Zunger

One of the most important and complex issues facing the criminal justice system is the decision of whether or not to allow a defendant to be released via pretrial bail. On one hand, the defendants deemed dangerous and those with a higher risk of not appearing in court have more reason to be detained pretrial while low level criminals with minor offenses may not necessarily need to be detained. Ultimately, society is harmed and the criminal justice system is hindered when defendants are incorrectly released pretrial. Alternatively, when there are defendants detained when no risk is present, there are not only serious moral and public policy implications, but also constitutional ones. This is why a court’s ability to correctly and accurately make decisions to release or detain defendants is not only important, but vital.

Disclosing Under the Influencer: How the FTC Fails to Guide Advertisers and Protect Consumers in Social Media “Influencer” Marketing

Craig Ganter

“The regulatory scheme envisioned in the [Federal Trade Commission] Act for the slower-paced antitrust problem was not ideally suited for the faster moving advertising field, in which speed in enforcement might become of the essence.” – Ira M. Millstein.

The argument adopted by Millstein—that the Federal Trade Commission is ill-suited to assume a regulatory role in the fast-developing advertising field—deserves particular focus in today’s social media-driven world. As the role of advertisers adapts to a world of rapid technological growth, Federal Trade Commission regulations regarding advertisements fail to keep up.

Data Scraping and the Computer Fraud and Abuse Act: An Analysis of When Unwanted Digital Access Should Implicate an “Anti-Hacking” Statute

Brent W. McDonough

In 2017, hackers obtained the names, birth dates, Social Security numbers, and addresses of 143 million Americans during the Equifax data breach. In 2013, every Yahoo account was hacked. As more personal data is stored on Internet-connected devices, more personal data will be accessed in harmful, unexpected and unwanted ways. While enhancing cybersecurity measures is an important step towards protection, total digital security will never be possible, so there must be sufficient legal remedies in place as well.

Fall 2019

Disciplining the “Disruptive” Student Heckler

Justin W. Aimonetti

The recent rise of state statutes and policies that discipline disruptive student protestors raises a host of important, yet largely unaddressed, constitutional questions. This Commentary seeks to identify the constitutional issues raised by such disciplinary systems, in addition to making three principal contentions. First, this Commentary argues that any state disciplinary policy that subjects disruptive student protestors to punishment must not be unconstitutionally overbroad. Second, and by contrast, state disciplinary statutes or policies must specify what is prohibited and what is allowed to avoid chilling the expression of constitutionally protected speech. Third, this Commentary normatively contends that a carefully crafted disciplinary sanction regime may encourage civic activism as students will feel more comfortable expressing their views when they know which conduct is clearly permitted and which is subject to discipline. Speakers may also find confidence in voicing their perspectives to an audience subject to a disciplinary regime which punishes overly disruptive speech and behavior. In short, a disciplinary sanction regime, accompanied by defined terminology, may further the significant government interest in promoting a sort of marketplace, where students are exposed to a variety of different ideas, and where contrarian points of view are freely expressed on campus.

A Comparative View on the Restrictions of Free Speech in the United States and Europe

Anne R. Colrick

The freedom of speech is the right to express opinions and ideas without the fear of punishment and censorship. However, while this may be an essential right there are certain forms of speech that are restricted in the United States and Europe. Within the U.S., the freedom of expression is protected through the First Amendment and a stronger emphasis is placed on maintaining the freedom of expression by implementing a more categorical approach to regulating free speech, specifically categorizing and restricting speech that is deemed to be unprotected. In contrast, through Article 10 of the European Convention on Human Rights (“ECHR”), Europe employs a broader approach to restricting speech, balancing the value of the speech against its societal costs so that only the collective view of accepted speech is protected. This commentary explores the distinction between these two standards and analyses their benefits in protecting free speech as well as their possible detriments in chilling it. Part I examines the more categorical approach that the U.S. implements in restricting free speech, focusing on three main forms of unprotected speech: those that incite imminent danger, true threats, and fighting words. Part II explores Europe’s more broad approach to protecting free speech and how it focuses on enforcing what is societally acceptable. Part III analyses the benefits and detriments of both standards, deducing which standard allows for the most discourse that would enable a better cultivation of valuable speech.