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Volume 7 - Drexel Law Review Online - Winter 2015

Drexel Law Review Online

FOREWORD

As editors of the seventh volume of the Drexel Law Review, we have the distinct honor and great privilege of briefly serving as stewards of a journal that has accomplished much in a short time. In our roles, we have had the advantage of a tangible closeness to the journal’s mission from its very beginnings. In his foreword to the inaugural issue of Drexel Law Review, Honorable Anthony J. Scirica asserted that “[n]ew technology has forever altered the communication of legal developments and ideas.”1 Law reviews across the country have begun to expand their virtual presences by publishing online companion journals. With Drexel Law Review Online, we too hope to embrace the opportunities provided by an additional online presence to further support our members’ participation in scholarly legal discourse.


1Hon. Anthony J. Scirica, Foreword, 1 DREXEL L. REV. 1, 1–2 (2009).

 

MAN OVERBOARD: THE MISSING THEORY OF LIABILITY FOR CRUISE SHIP OWNERS

The current admiralty law regime insulates ship owners from vicarious liability for an onboard physician’s negligence toward passengers. Strict application of this rule in the cruise ship context produces inequitable outcomes and creates different theories of tort liability for different populations aboard the vessel; liability is imputed to the ship owner for negligence in treating crewmembers but not when treating passengers. Courts addressing this issue cite two justifications for maintaining the antiquated rule: the ship owner’s lack of control over the physician-passenger relationship and the ship owner’s lack of expertise to evaluate or supervise the physician’s work. Consistent with agency law principles of vicarious liability, both justifications are grounded in the concept of control. However, in light of current maritime realities in the law and the industry, the rule requires reconsideration. There are a number of deliberate mechanisms in place to prevent passengers from bringing claims against cruise ship enterprises. The law should not be an additional barrier to insulate a massive international industry at the expense of individual consumers. The Supreme Court has previously modified maritime doctrines when they are no longer justifiable and should do so here. In 2010 Congress passed a statute addressing the cruise ship industry because it recognized the danger inherent in the excursion, the consumers’ ignorance of the danger, and the degree to which passengers rely on the ship owner. Congress has shown that it can correct the perpetuation of inequities and should do so here. The issue of vicarious liability for cruise ship owners is ripe for evaluation. A number of courts have recognized the deficiencies in the current regime and attempted to reconcile the rule with contemporary realities. However, because admiralty jurisprudence places a premium on consistency and uniformity, most attempts at change are met with resistance. Thus, action by the Supreme Court or Congress is necessary to achieve a comprehensive change that reconfigures the current rule, which promotes inequitable outcomes and conflicts with other fields of law. Judicial pushback in the lower courts and relevant federal legislation suggest the issue is ripe for the Supreme Court’s input.

DOLLARS FOR COLLARS: CIVIL ASSET FORFEITURE AND THE BREAKDOWN OF CONSTITUTIONAL RIGHTS

Civil asset forfeiture is a tool used by local government and police officers to fight against crime and drug use by targeting the offenders’ economic incentives. Ironically though, this tool spawned new financial incentives for law enforcement. The current federal and local regulations, which implement the Civil Asset Forfeiture Reform Act, take advantage of individuals by limiting their rights in proceedings and treating their property as guilty until proven innocent. Some families and individuals who fall victim to these forfeiture laws are losing their homes, money, and assets without ever being charged with a crime. This Note argues that these laws create an inherent conflict of interest, and thus inappropriately over-incentivize police officers and governments to profit from individuals because of the economic gain involved with seizing assets. Officers are more likely to pursue drug users but not dealers because police can confiscate the users’ petty cash to be used to subsidize police budgets and salaries; meanwhile, the dealer’s drugs have to be destroyed. “Policing for profit” puts vulnerable individuals at risk to be victimized by the system, as they are often unable to challenge or meet the procedural requirements of a forfeiture proceeding. Although civil asset forfeiture laws have been scrutinized and reformed at the federal level, this Note illustrates that further reform is necessary to align the practices with constitutional standards and ideals.