Current Commentaries

Spring 2022


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.


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


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


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.


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


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.