Commentaries

NEW JERSEY INSURANCE PRODUCER LIABILITY: ATTEMPTING TO DEFINE THE “SPECIAL RELATIONSHIP” THEORY OF LIABILITY
Jason S. Kanterman

Author and Rutgers University Law Review Alumnus Jason S. Kanterman, Esq. examines the general concepts of the special relationship theory of insurance producer liability and the lack of clarity in the application of the theory in a Commentary written in Spring, 2016. Specifically, Mr. Kanterman notes that New Jersey lacks established precedent identifying facts or occurrences triggering liability, while other courts have. Looking at several cases, Mr. Kanterman concludes that “the existence of an affirmative, extraordinary undertaking appears to be the heart of establishing a viable special relationship claim” in New Jersey. “What remains unclear is what facts will lead New Jersey courts to conclude that a special relationship exists.”

WHERE ARE THE 2007–08 FINANCIAL CRISIS PROSECUTIONS? A RESPONSE TO JUDGE RAKOFF
Joshua J. Smith

Judge Rakoff is correct to attribute a portion of the lack of prosecutions to the Justice Department’s shift in focus to counterterrorism and pursuing cases that would yield “easier” convictions. However, his suggestions that an embarrassment about the government’s role in the financial crisis or a focus on corporate reform contributed to the lack of prosecutions is misplaced. This Commentary will proceed in four parts, each evaluating the merits of Judge Rakoff’s identified factors contributing to the lack of executive prosecutions related to the mortgage fraud scandal.

THEIR BLOOD, THEIR SWEAT, WHOSE PROBLEM?: INSURANCE COVERAGE IMPLICATIONS OF THE NFL CONCUSSION LITIGATION
Melissa Farber

This Commentary explores the insurance implications of the ongoing NFL concussion litigation. Part I describes the procedural history of the concussion lawsuits, the settlement reached between the NFL and over 4500 former players, and obstacles that stand in the way for players that chose to opt-out of the settlement class and reserve the right to pursue individual claims against the NFL. Part II examines the pending coverage litigation regarding insurers’ obligations to defend and/or indemnify the NFL for settlement expenses and the ongoing underlying concussion claims. Specifically, it highlights how dispositive choice of law determinations will be to the outcome of the litigation, as jurisdictions apply competing theories of policy interpretation, including when coverage is triggered, the duty to defend, and other policy exclusions.

DOES THE DRAFT RESTATEMENT OF THE LAW OF LIABILITY INSURANCE WRONGLY ELEVATE PROOF AND OVERVALUE LEGAL UNCERTAINTY? YES, GIVEN THE FORESEEABLE RISK INSURERS MAY MORE OFTEN DECLINE THE DUTY TO DEFEND AS A RESULT
Joseph Lavitt

This Commentary focuses on the proposed Restatement of the
Law of Liability Insurance 2016, Tentative Draft No. 1,
sections 4, 13, 18, 19, 21, and associated materials

A PLEA FOR CONSTITUTIONAL BALANCE
Stephen M. Feldman

We live in the age of Democracy, Inc. Political advertisements package candidates in twenty second sound bites. Corporations and billionaires wield herculean political power. Although citizens still vote—at least once in a while—corporate muscle largely steers elections and government policy to increase profits. Income inequality, consequently, has skyrocketed.

Volume 68 | Summer 2016 | Issue 5


ARTICLES


THE IMMIGRATION HOTEL

Virgil Wiebe

For over fifteen years, I have used the image of a hotel with each floor representing different immigration statuses as a way to introduce students to the confounding immigration system we have in the United States. The analogy has served me well, and I wish to share it with others. The analogy works at several levels. Law students have survived their first year of law school by the time they get to clinical work or the doctrinal immigration law course, and many parallels with property law make some intuitive sense. The tiered nature of the analogy suggests hierarchy, inclusion and exclusion, issues of safety and protection, and benefits and limits of hospitality. In this hotel we find both legalized luxury and legalized squalor, often on the same floor. The analogy allows for discussions of conceptions of social justice and inequality. Many of the same arguments and emotions stirred by property disputes (e.g., zoning, trespass and eviction, means of acquisition) arise in immigration debates. When I started this Article, I saw the property law analogy as a useful pedagogical tool. By the time I finished it, I came to see that immigration law and property law often have been two interlocking pieces of a system of racialized and gendered exclusion and oppression. The system has come under attack and undergone change, but equal justice for many remains beyond reach.


UNIQUELY UNHELPFUL: THE U VISA’S DISPARATE TREATMENT OF IMMIGRANT VICTIMS OF DOMESTIC VIOLENCE

Rachel Gonzalez Settlage

Immigrants in the United States without permanent lawful status are particularly vulnerable to domestic violence, and once in a domestic violence relationship, face unique and substantial obstacles to obtaining protection. U.S. immigration laws often exacerbate abusive situations in which battered immigrants may find themselves. In recognition of this, Congress created several forms of immigration relief for battered immigrants. However, these forms of relief were not created equally, as the two stories below demonstrate. For some battered immigrants, obtaining protection and lawful status is out of reach.


DEBT WITHOUT RELIEF: AN EMPIRICAL STUDY OF UNDOCUMENTED IMMIGRANTS

Chrystin Ondersma

Can undocumented debtors benefit from bankruptcy relief? If so, would they consider pursuing bankruptcy relief? This Article seeks to answer these questions through an empirical study designed to explain why so few undocumented debtors appear in the bankruptcy system, as well as to tell the broader story of undocumented debtors’ experiences with debt in our economy. Specifically, the empirical study covers a broad array of questions, including what types of debts undocumented immigrants incur, experiences of undocumented immigrants with debts over the past three years, and undocumented immigrants’ experiences with the bankruptcy system. As this Article will show, these questions are all tightly interknit: Income shortfalls can make borrowing a necessity for this group, but borrowing is often accompanied by feelings of shame and trepidation.And although the ambivalence around borrowing is overcome by necessity-such that the vast majority of study participants had borrowed-shame and fear prevented study participants from seeking bankruptcy relief.


NOTE


THE CAMPUS SEXUAL VIOLENCE ELIMINATION ACT: IS IT ENOUGH TO COMBAT SEXUAL ASSAULT ON CAMPUS?

Lauren Van Driesen

American colleges and universities are in a state of crisis. Sexual violence, an issue that once lingered in the background of college life, has come to the forefront of culture and politics, shining a light on the often shocking way in which colleges and universities deal with sexual assault cases. Indeed, as of June 2015, there were 124 higher education institutions under investigation by the Department of Education for having sexual assault policies that potentially violate Title IX of the Education Amendments of 1972.

The way in which colleges and universities respond to these complaints is not the only problem: rates of sexual assault continue to increase, placing college students at significant risk. According to a 2007 study, roughly one in five women experiences sexual assault in some form as an undergraduate student. This high rate of sexual assault plaguing college campuses has prompted students and activists to fight for victims’ rights and seek policies that will protect students from what has become an imminent harm. The White House has also been active in advocating for victims’ rights and created the White House Task Force to Protect Students from Sexual Assault in January 2014. In addition to circulating high-profile public service announcements featuring well-known celebrities, the Task Force has created an online resource, NotAlone.gov, to inform students of their rights under Title IX and provide easy access to required security disclosures and Title IX resolutions.

FORTHCOMING ISSUE

Volume 70, Issue 1 is on the way!

LATEST NEWS

The Law Review will be hosting the 28th Annual State Constitutional Law Lecture at Rutgers Law School, Camden, on Wednesday, Feb. 22, 2017, at 4:00 PM. Please follow the link below for more details. http://www.rutgerslawreview.com/2179-17973-pcard-lowrez-1/

Attention Camden Alumni—The Camden campus is looking to gather updated contact information from Alumni. Update Your Contact Information! Visit http://www.rutgersuniversitylaw review.com/. Under the “About” tab, select “Alumni.” Click “Alumni Contact Information Update.” From there, you can update your contact and work information with us to help stay better connected to the Law Review!

Additionally, If you are still in contact with Rutgers Law Journal alumni, please have them contact our Business Editor at rulralumni@gmail.com so we can add them to our alumni database.

Follow Us!