Rutgers Journal of Law & Public Policy

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Diprospero v. Penn (2005): Justifying the Curent Interpretation of the "Verbal Threshold."

by Michael Schwartz[1]
November 17, 2012
A. Introduction
Over the past 40 years, insurance premiums in New Jersey have on average been among the highest in the nation, leading to tense debate over cost-containment strategies within the State’s Legislature and Judiciary.  Although various auto insurance statutes have been enacted since this time, the Court’s interpretation of the statutory language has been inconsistent and at times contradictory. This uncertainty has caused numerous insurance providers to flee the State altogether, leading to a less competitive insurance market which in turn is causing premiums to continue to skyrocket.
First, this commentary will discuss the evolution of the State’s auto insurance policy in light of the 1998 Automobile Insurance Cost Reduction Act (AICRA) and the cases before and after the statute’s enactment.  Second, by focusing on the judicial interpretation in Diprospero v. Penn  and insurance statistics of out-of-state schemes comparable to New Jersey’s system, it will be demonstrated that AICRA was properly interpreted to not include a “serious life impact” requirement for plaintiffs’ ability to pierce the verbal tort threshold.  Finally, this commentary will offer a simple recommendation that may lead to more consistent statutory interpretations.

Waiving Goodbye To The Freedom Of Information: Government Confidentiality Waivers In FOIA Exemption 4

by Adam Wilson[1]
October 21, 2012
Patrick Henry once said, “The liberties of the people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”[2] Presumably embracing a sentiment similar to Henry’s, Congress enacted the Freedom of Information Act (FOIA).[3]  The FOIA’s purpose was to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”[4]  Under the FOIA, citizens may make requests to the government for information.
However, recognizing that some information must be withheld from the public, the FOIA has a list of nine exemptions that allow the government to withhold information under certain circumstances.[5]  Exemption 4 covers information which constitutes trade secrets or confidential financial information.  The Ninth Circuit has created a circuit split over what constitutes a waiver of confidentiality[6] under Exemption 4, and thus requires the government to disclose information even if it qualifies for the exemption. [7]

Jurisdictional Tug of War and the Class Action Fairness Act: How Plaintiffs Attempt to Avoid Federal Court and How Courts Let Them

by Mark Natale[1]
October 10, 2012
On February 18, 2005, President Bush signed the Class Action Fairness Act (“CAFA”) into law.[2]  He described the legislation as “a critical step toward ending the lawsuit culture in our country” and lauded that the law will “ease the needless burden of litigation on every American worker, business, and family..”[3]  Congressional findings on the law describe its intention in similar fashion, stating that over the previous ten years, there were “abuses of the class action device that have harmed class members with legitimate claims and defendants that have acted responsibly, adversely affected interstate commerce, and undermined public respect for our judicial system.”[4]  Since its passage, attorneys have attempted to keep their claims out of CAFA’s jurisdiction, namely by breaking up claims into smaller actions.  These attempts have spawned debate among federal circuit courts on when to allow actions to remain within state jurisdiction, and when to aggregate claims for federal jurisdiction.

Third Party Financing of Commercial Litigation and the Common Interest Doctrine

by Jeremy Reich[1]
September 25, 2012
Litigation is a relatively recession proof business and is, therefore, an attractive asset class to investors.[2]  As a result, third party investment in litigation has become a lucrative business.[3]  While third party litigation financing is a recent phenomenon,[4] the emergence of investors who finance commercial claims brought by companies against other companies, is an even newer phenomenon.[5]  Third party litigation financing can yield significant rewards for both investors and businesses alike, as long as certain practical and ethical roadblocks are properly navigated.

How Courts are Undermining the American with Disabilities Act’s Private Enforcement Provision

By: Alexander Brown[1]
September 13, 2012
The expression “professional plaintiff” has long been a dirty word in the legal lexicon.[2]  To some, the term describes “rapacious jackals whose declared well-being camouflages their unwholesome appetite for corporate dollars.”[3]  To others, the term describes “misunderstood . . . battle-tested ‘private attorney general[s]’ who shoulder the burden of enforcing regulatory violations for the good of society.”[4]  Despite these dual characteristics, in many statutes, such as the Americans with Disabilities Act (“ADA”), Congress has empowered private citizens to sue people who violate federal law.[5]  Under Title III of the ADA, this means that private individuals can sue the owners of public accommodations who discriminate against disabled individuals.  Discrimination can come in the form of a building lacking a wheelchair ramp, to a department store having aisles that are too narrow to fit someone using a walker.  Despite this grant of power, federal district courts use constitutional standing tests to limit litigious ADA plaintiffs from gaining access to courts.

Commuter Rail Cellphone Service Disruption Creates a New Wrinkle in the Free Speech Debate

By Christopher Setz-Kelly[1]
August 25, 2012
The Bay Area Rapid Transit (BART), a San Francisco-area commuter rail governmental agency created by the State of California, shut down cellular communications, including internet access on “smart phones” for over three hours on August 11, 2011 in several of their stations.[2]  The disruption was made, anticipating a demonstration to protest the shooting of a homeless man by a BART police officer on July 3, 2011.[3]  Protestors had previously gathered at a BART station in response to the shooting on July 13th, causing a temporary stoppage of service.[4]  Although the July protest was disruptive, with one man jumping on top of a stopped train, there were no reports of violence.[5]  The cellphone antenas within the stations are owned by BART, but are leased to wireless service providers including AT&T, Sprint, and Verizon.[6]  BART retains the ability to shut down service by powering down the antennas, and it did so in this instance without the prior authorization of the wireless providers.[7]

Depository Institutions, Corporate Personhood, and the Federal Reserve: Striking a Balance in the Battle Between Public Good and Corporate Power

By: Candace A. Lerario[*]
August 16, 2012

The notion that corporations are treated as persons under the confines of the Constitution is rooted in the beginnings of the nation.  Within the past decades, however, corporations viewed as citizens akin to human beings has generated a great deal of political and social scrutiny.  Many opponents regard the corporate entity as a massive engine of wealth that drowns out the voice of citizens; proponents argue that excessive governmental interference in the corporation encroaches upon constitutionally-recognized property rights, and therefore, individual rights.  While the debate often cuts across political party lines in popular opinion, a number of Supreme Court justices have formed strong views on the corporate personhood issue that do not necessarily follow a political bias.

Opposition Despite Control: Shutting Down the Streets and the Stigma of Dissent

By: Jared Berkowitz

April 2012

Revolution is in the air: from Tunisia to Egypt, Libya to Syria; from the streets of lower Manhattan to the hills of Berkeley, making Amory Starr, Luis Fernandez and Christian Scholl’s work, Shutting Down the Streets: Political Violence and Social Control in the Global Era all the more relevant. The authors explore the concept of social control as a preemptive measure undertaken by governments to subvert protest and deter dissent. To support their argument, the authors track the “Alterglobalization” Movement and their efforts protesting various world trade and economic summits around the globe.

Increasing Military Readiness and Recognizing Honorable Service: Why Congress Should Allow Access to TRICARE Reserve Select Health Insurance for Gray Area Retired Military Reservists

By: Samuel Waltzer1

January 2012

This note examines a gap in military health insurance availability for retired military reservists who have not yet attained age 60 ("gray area reservists") and proposes a solution to fix this problem. The solution essentially entails expanding the current health insurance program for actively drilling military reservists to cover gray area reservists. Actively drilling military reservists are eligible for military health insurance through the military health insurance program, TRICARE. Active duty military members enjoy a form of TRICARE coverage called TRICARE Prime,2 while drilling reservists who are not eligible for federal civilian health insurance are eligible to sign up for TRICARE Reserve Select (TRS).3 TRS, created in 2005,4 provides comprehensive health insurance coverage with a low catastrophic cap, at a highly affordable monthly premium.5 This rate is currently subsidized by the federal government so that reservists only have to pay monthly premiums in the amount of 28% of the value of the coverage,6 whereas with a civilian health insurance plan the reservist would pay the market rate of 100% of the value of the coverage.

Book review for Current Issues in Constitutional Litigation by Sarah E. Ricks and Evelyn M. Tenenbaum

By Stephen Tucker and Rachel Feuerhammer

Professors Ricks co-wrote Current Issues in Constitutional Litigation with the overriding goal of providing attorneys-in-training with practical knowledge and skills to prepare them for practice. She wanted to create the sort of practical guide she wished she had to prepare herself for her legal career.  With that in mind, the text avoids a bare recitation of theory, but rather focuses on the skills practicing lawyers need. This is not to say that the text lacks a thorough doctrinal foundation: it provides the necessary background on the historical, political, and social context of constitutional litigation to provide the reader with context as to how the law has evolved.