Commentaries

BRINGING DARK MONEY TO LIGHT: POLITICAL NONPROFIT DISCLOSURE STATUTES IN DELAWARE AND NEW JERSEY
Rachel Moseson

Since the Supreme Court’s 2010 decision in Citizens United v. FEC, untraceable, unreported, and unlimited ‘dark money’ spending in politics has expanded exponentially. Independent 501(c)(4) social welfare organizations increasingly serve as the vehicles through which disclosure-conscious donors choose to make their political contributions. Federal disclosure requirements are hyperspecific, and allow almost all 501(c)(4) donors to avoid public disclosure through careful planning. Recently, however, some states have passed legislation requiring disclosure of the identities of all previously-anonymous donors when they make contributions over low threshold amounts during election periods. One of the most comprehensive, the Delaware Election Disclosure Act, was challenged and upheld as constitutional in Delaware Strong Families v. Attorney General of Delaware in 2016, and was recently denied certiorari by the Supreme Court. New Jersey’s current Pay-to-Play campaign finance legislation entirely exempts nonprofit groups, despite independent special interest spending increasing substantially in each major state election since Citizens United. This Commentary advocates for a change in policy in New Jersey, and focuses on new legislation that has been introduced to require increased disclosure by special interest groups.

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 69 | Fall 2016 | Issue 1


ARTICLES


Paula A. Franzese, Abbott Gorin, & David J. Guzik

The implied warranty of habitability is an implicit promise that every residential landlord makes to provide tenants with premises suitable for basic human dwelling. Tenants can assert breach of the warranty affirmatively, in a suit against a landlord for providing substandard housing, but most often they assert the breach defensively in the context of a landlord’s eviction proceeding against the tenant for non-payment of rent. Still, national data suggests that, notwithstanding its placement in the firmament of modern landlord-tenant law, few tenants actually assert breach of the implied warranty of habitability, whether affirmatively or defensively. Even in housing markets fraught with substandard rental dwellings, the warranty is underutilized. This Article endeavors to examine that lapse in the context of nonpayment of rent proceedings initiated by landlords in Essex County, New Jersey. Significantly, of the more than forty-thousand eviction proceedings brought there in 2014, only eighty tenants asserted breach of the implied warranty of habitability as a defense.


Do Federal Courts Have Constitutional Authority to 
Adjudicate Criminal Insider-Trading Cases?

Hervé Gouraige

Nullum crimen sine lege. This Latin expression captures a bedrock principle of Western legal thought: No crime (not malum per se) without law. In this context, law for the federal government of the United States has meant a properly enacted congressional bill or joint resolution (except for a proposed constitutional amendment), signed by the President, defining the elements of criminal conduct with sufficient precision that it provides notice of what is prohibited to a person of ordinary intelligence. The increasingly vigorous federal criminal enforcement of insider trading runs counter to these fundamental principles. As currently enforced by federal courts, insider trading is a crime not defined by nor mentioned in any federal criminal statute. Its modern development originated from enforcement of an administrative agency regulation that does not define insider trading, and the regulation’s interstices have been broadened and deepened by the agency and federal judges announcing criminal insider-trading rules case-by-case-that is, enforcing federal criminal common law.


Better than Bankruptcy?

Andrew B. Dawson

According to many in the bankruptcy field, small business debtors are increasingly turning to state debtor-creditors laws as an alternative to federal bankruptcy relief. One particularly popular state law is the assignment for the benefit of creditors. The conventional wisdom is that these procedures provide a state law alternative to liquidate a business.

This article reports the results of an originalempirical study that challenges this conventional wisdom. Gathering data from every assignment for the benefit of creditors in a major metropolitanareaover a three-yearperiod, this study shows that debtors and their secured creditors are using these procedures not just to liquidate a business but also to sell the business as a going concern, free and clear of interests. These going concern sales, particularly when sold to insiders of the debtor, are actuallymore like corporatereorganizationthan liquidation.

These findings raise important questions about the role of these state law alternatives and the way they interact with the federal bankruptcy laws. These questions, in turn, may help inform debates about reforming the bankruptcy laws, particularly as applied to small business debtors.


Genevieve B. Tung & Ruth Anne Robbins

This Article explores the representational shortcomings of American currency-meaning paper bills only, not coins-and the legal and administrative framework that has enabled those shortcomings to persist. From the beginning, the manner for designing federal paper money has been characterized by arbitrary and arguably autocratic decision-making and resistance to open processes that consider the creativity and insights of the public. Until now, the portraiture and imagery featured on American currency has consistently asserted and reified the singular importance of one type of American: white, male politicians and statesmen, largely from the executive branch. We review the history of Treasury’s role in the design of currency-and coinage- and compare it with that of other agencies tasked with choosing the people and events worthy of commemoration. Ultimately, we suggest an alternative process for currency design to help the Treasury Department live up to its own ideals.


Robert C. Denicola

A professor in France claims to have written a million books using his computer software platform. Many of the sports and financial news stories available on the Internet are written by computers. Computers also draw, paint, and compose music. Is their output copyrightable? Copyright law requires an identifiable human author because authors own copyrights and computers do not possess the personhood necessary to own property. The Copyright Office and some courts and commentators go further, requiring for copyright not only an identifiable human author, but also human authorship of the protected work. They demand, in other words, that the copyrightable expression in a work emanate from a human being. If a person uses a computer to assist in the manipulation of expression created by the user, the result is copyrightable. If a user’s interaction with a computer prompts it to generate its own expression, the result is excluded from copyright. This is a tenuous and ultimately counter-productive distinction. It denies the incentive of copyright to an increasingly large group of works that are indistinguishable in substance and value from works created by human beings. The copyright statute does not define “author”and the constitutional interpretation of that concept is sufficiently broad to include a human being who instigates the creation of a work. A computer user who initiates the creation of computer-generated expression should be recognized as the author and copyright owner of the resulting work. A number of foreign countries have already taken this step. The United States should join them.


NOTES


Michael A. Cedrone

This Note argues that the Supreme Court should revisit the Forty- Eight-Hour Rule in light of numerous advancements in technology over the past twenty-five years which reduce the time necessary to complete the administrative steps that are incident to an arrest. This issue has largely gone un-argued. In fact, the academic literature that does reference the Forty-Eight-Hour Rule simply discusses abuses of the Rule to gather additional information and conduct extended investigations. However, this Note will focus on how technology has accelerated the booking process and reduced the time needed to complete the administrative steps incident to a warrantless arrest.


 An Apple a Day Doesn’t Keep Doctor Miles Away: 
The Second Circuit’s Misuse of the Per Se Rule in United States v. Apple

Stephen J. Marietta

This Note will analyze that Second Circuit decision, United States v. Apple, in light of the larger history of antitrust law and prevailing economic thought. This Note will then use that examination to conclude that the Second Circuit erred in using the per se rule to analyze Apple’s conduct. Rather, the Second Circuit should have used a broad-based rule-of-reason analysis that accounted for the Supreme Court’s decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc. and the e- book market at the time of Apple’s conduct. Ultimately, because the Second Circuit failed to consider the effect of Amazon’s monopoly power, Amazon’s potential for predatory pricing, and pro-competitive justifications for vertical contracting,the Second Circuit misread Leegin and missed its mark to add to the growing RPM odyssey in antitrust law.


Mandatory Victim Restitution Act: A Replacement for Victims’ 
Intentional Tort Claims for Violent Crimes in New Jersey

Adam Ortlieb

This Note will explore whether incorporating a mandatory restitution scheme, like the federal scheme under the MVRA, could replace a victim’s need in New Jersey to pursue intentional tort claims against a defendant to recover financial damages associated with the crime. Part I will look at the history of restitution and the enactment of the 1VIVRA and analyze the language of the MVRA, including what damages are included in the restitution order. Part II will survey the current restitution scheme in New Jersey and analyze the current tort system in New Jersey, focusing on the damages victims can recover for the torts of battery and intentional infliction of emotional distress. Part III will compare the similarities of the 1VIVRA and the intentional tort system in New Jersey, and conclude that a mandatory restitution scheme, like the MVRA, can replace the need for victims to pursue intentional tort claims arising out of violent crimes. Finally, Part IV will discuss the problems that surround a mandatory restitution scheme and address why these problems do not change the need for a mandatory restitution scheme in New Jersey.

FORTHCOMING ISSUE

Volume 70, Issue 1 is on the way!

LATEST NEWS

Attention Camden Alumni!

The Camden campus is gathering updated contact information from alumni. To update your contact information, click here and click on “Alumni Contact Information Update.” Update your contact and work information to 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!