Commentaries Archive - Rutgers University Law Review

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 Gunter

“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.