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.

Summer 2020

Staving Off a Supreme Court Smackdown: Anticipating and Avoiding an Ex Post Fact 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.

Winter 2020

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.

Fall 2019

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

Anne 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, which implements a more categorical approach to protecting free speech, specifically categorizing and restricting speech that incites imminent danger, true threats, and fighting words. 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.