Current Commentaries

Spring 2018

The Uniform Asset-Preservation Orders Act: Quieting The Alarms With Lessons From Abroad

Alexander Firsichbaum

One of the best feelings for a plaintiff’s trial attorney might be the award of a large money judgment, not only for the fee, but for the feeling that the hard work has paid off and the client has received just compensation. The celebratory mood will quickly turn sour, however, upon learning that the defendant has quietly dissipated all of its assets beyond the court’s territorial jurisdiction in anticipation of an adverse money judgment. While the attorney might be able to seek relief under a fraudulent transfer statute, this often may not bring all the money back. A prudent attorney might have sought a pre-judgment attachment order to keep known assets where they are, but an adversary with assets already located in a different state or country will be hard to beat in the world of online banking. Even the Supreme Court has acknowledged that “increasingly sophisticated foreign-haven judgment proofing strategies, coupled with technology that permits the nearly instantaneous transfer of assets abroad, suggests that defendants may succeed in avoiding meritorious claims in ways unimaginable before . . . .”

Prior Bad Acts Evidence Under New Jersey Evidence Rule 404(b): Developing the Notification Requirement as Created by State v. Rose

Corey LaBrutto and William Grapstul

Both the New Jersey Rules of Evidence (“N.J.R.E.”) and the Federal Rules of Evidence (“F.R.E.”) disallow the use of crimes, wrongs, or other bad acts, (collectively “prior bad acts evidence,”) in order to show actions in conformance with them and allow use of prior bad acts evidence for other purposes, such as motive or intent. The text of F.R.E. 404, however, requires notice to be given to defendants when a prosecutor intends to use prior bad acts evidence. The N.J.R.E. does not have similar explicit language, but the New Jersey Judiciary has read a notice requirement into the analogous state rule in order to provide fairness to defendants. This commentary explores the development of the notice requirement in New Jersey and explores what constitutes proper notification for that rule as interpreted in State v. Rose.

Fall 2017

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.

Spring 2017

A Counterproductive Constraint: How the Volcker Rule Undermines its Purpose by Discouraging Hedging

Renée Dudek

The Volcker Rule was designed to prevent banks from engaging in proprietary trading, which is investing for their own direct gain as opposed to earning commissions by trading on behalf of clients. The purpose is to insulate banks from the risks of proprietary trading. In theory, proprietary trading is distinct from hedging, a practice that reduces risk. However, there is no clear distinction between proprietary trading and hedging in practice. Classification largely depends on how a bank packages a transaction. Thus, it is unlikely that regulators could enforce the ban on proprietary trading while leaving hedging unscathed. By deterring hedging, regulators undermine the purpose of the Volcker Rule: to reduce banks’ exposure to risk. Yet, if regulators under-enforce the ban to encourage hedging, they will essentially fail to deter any proprietary trading. Banks will be able to artfully package their trading activity into compliance, with the Volcker Rule operating like a tax to be collected by bank lawyers.

Andrew G. Malik

Corporate inversions, a method by which U.S.-based companies relocate to lower-tax countries, have recently been the subject of heated debate and media coverage. President Obama criticized corporate inversions as one of the “most insidious tax loopholes out there.” The President’s desire to crack down on corporate inversions was reflected by a new set of Treasury Department regulations that make inversions much less appealing for U.S. companies. The regulations had the desired effect; a merger between Pfizer Inc. and Allergan PLC valued at over $150 billion, which would have been the largest merger in history for the pharmaceutical industry, was called off days after the regulations were announced. Allergan’s CEO criticized the Treasury regulations as “un-American” and “capricious.”

Interrogatory Practice Under the Federal Rules of Civil Procedure: What is the Basis for the Speculative and Argumentative Objections?

Corey LaBrutto and Jason Kanterman

We have all seen them: the poorly drafted interrogatory question purporting to require the adverse party to disclose every bit of information in its possession, and the subsequent responses reciting a litany of pre-drafted objections before answering the question posed. Most of those objections stem directly from provisions in the Federal Rules of Civil Procedure (“FRCP”). Two common objections however—that the interrogatory propounded is either argumentative or calls for speculation—do not find explicit support in any specific Federal Rule. This article will explore the history and foundation of those two objections and make recommendations as to their usage.

Reviewing the Port Authority of New York & New Jersey’s Whistleblower Protection Plan: Added Protections for Whistleblowers?

Sean Fulton and Jason S. Kanterman

Whistleblower litigation has become increasingly more popular in recent years, but increased litigation has made it clear that whistleblower protection is not universally shared by all members of the American working-class; legislative bodies throughout the United States have molded laws that differ widely in scope, goal, and protection offered. This creates gaps in the protections, because states often disagree on the purpose and scope of these protections. Moreover, applying whistleblower protection to Compact Clause entities—also known as bi-state entities—such as the Port Authority of New York & New Jersey (the “Port Authority”), to which individual state laws do not apply, presents quite the problem, potentially leaving Port Authority employees without sufficient protection. However, that gap in protection may be narrowing with the enactment of the Port Authority Whistleblower Protection Plan.


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