Current Issue


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.

Volume 7 Number 1 - Spring 2015

Articles

WHEN ETHICAL WORLDS COLLIDE: TEACHING NOVICE LEGAL WRITERS TO BALANCE THE DUTIES OF ZEALOUS ADVOCACY AND CANDOR TO THE TRIBUNAL

This article examines one of the most important ethical tensions that arise in legal writing—zealous advocacy versus candor to the tribunal— and explores how to educate, sensitize, and train young lawyers so that they may effectively navigate the boundaries of this conflict. Although this tension is manifested in a myriad of choices legal writers make, ethical issues arising in the context of written documents are generally not discussed in law school. Consequently, a law student may graduate with no appreciation for the complexities of ethical issues that arise in legal writing and without the tools to address those issues. To understand the dilemma confronting novice lawyers, this article analyzes the tension between the duties of zealous advocacy and candor; explores the judiciary’s inconsistent response to attorneys’ fulfillment of these duties and its impatience with a perceived lack of candor; examines the education presently provided to law students; and suggests various pedagogical and practice-based techniques that will heighten the novice legal writer’s awareness of and ability to embrace these dual ethical duties. This article concludes that legal education, specifically legal research and writing courses, must alert students to the ethical issues manifested in legal advocacy documents and provide students with the tools to draft ethical and effective legal arguments.

WRONG WAY: WHY LABELING YOUNG DRIVERS PRESENTS A MISGUIDED APPROACH IN THE IMPROVEMENT OF GRADUATED DRIVER’S LICENSE PROGRAMS

Graduated Driver’s License programs—licensing processes whereby new drivers are granted driving privileges in progressively less restrictive stages—have proven very effective in curtailing motor vehicle accidents involving young drivers. However, identifying teen drivers subject to the restrictions of Graduated License Laws has been a constant hurdle in law enforcement’s efforts. Without being able to identify such drivers with relative ease, the ultimate life-saving potential of these laws becomes hindered and law enforcement officers are forced to identify vehicles in other ways that may border on profiling. To address this situation, New Jersey has become the first state in the country to require young drivers subject to the laws to display a highly visible driver identification decal on their vehicles. Yet, such decals have raised concerns beyond what these laws initially anticipated and have caused waves of protest and noncompliance over fears of teen targeting, predatory attacks, and increased profiling. This Note analyzes the law’s implementation and suggests ways it may be improved to address these issues while emphasizing the importance of including the public’s mode of risk assessment in the regulatory process. This Note also seeks to inform other states of ways to improve their Graduated Driver’s License programs to avoid the same dilemmas and legislative pitfalls that have plagued the enactment of this law in New Jersey.

HOW ’BOUT THEM APPLES?: THE POWER OF STORIES OF AGREEMENT IN CONSUMER CONTRACTS

Contract scholars continue to grapple, perhaps today more than ever, with the challenge posed by proliferating standard terms in consumer contracts. None, however, has sufficiently explored the role of narratives of agreement in furthering inequity or exacerbating existing disparities in power. This Article reveals the ways that stories of agreement themselves can be a form of power to be leveraged by firms at the expense of consumers—especially in connection with procedural contract terms. In addition, this Article shows how the stories told by courts reveal shared norms of fairness that purport to enable the possibility of agreement. The Article thereby identifies an aspirational approach to contract that, by its own terms, seeks to further an ideal of agreement involving knowledge and deliberation. This approach is particularly manifest in courts’ insistence upon notice of terms as a baseline for enforcement. In addition, the doctrine of the duty to read, as a response to the possibility of misunderstanding the meaning of signs, makes salient the inherent function of contract law in establishing conventions of agreement and thus allocating power. This Article argues that we cannot assess proposed interventions in the area of consumer contracting unless we consider the aspirational narrative of agreement underlying contract doctrine, as well as the substantive way and the context of power in which this narrative operates. Thus, we must also examine the ways in which stories of agreement can be leveraged by powerful parties in conversation with courts to subvert this aspiration in practice. The Article thereby lends further support for the presumptive unenforceability of predispute-arbitration, forum selection, and unilateral-modification provisions in certain consumer contexts. More broadly, it highlights contract as the site at which the definitions of freedom and agency continue to be negotiated in America today.

TESTAMENTARY CONDITIONS IN RESTRAINT OF THE MARRIAGE OF HOMOSEXUAL DONEES

Courts generally enforce conditions on inheritance; however, conditions restricting the conjugal choices of donees are sometimes held unenforceable on public policy grounds. These policies have not yet been applied to testamentary conditions in restraint of the marriage of homosexual donees. Today, attitudes toward homosexuality are changing. At the same time, the use of incentive trusts and other conditional testamentary gifts is on the rise. Given the political trend in many jurisdictions toward treating homosexual relationships like heterosexual relationships, the resulting backlash against homosexuality, and the recent increase in the use of incentive trusts and other conditional testamentary gifts, testamentary gifts conditioned on the conjugal choices of homosexual donees are likely to become more common. There is reason to believe that, in certain circumstances, courts would not consider a donee’s sexual orientation relevant to such conditions’ enforceability, even with respect to conditions restricting the donee’s marriage to a person of a particular sex. This Note argues that courts should consider a donee’s sexual orientation in determining whether a condition in restraint of the donee’s marriage is enforceable or void as against public policy.

THE “NOT SO SUPREME” COURT: STATE LAW DICTATES SUPREME COURT DECISION IN CHAIDEZ

In the landmark case of Padilla v. Kentucky, the U.S. Supreme Court held that a criminal defense counsel must inform a noncitizen criminal defendant of the deportation consequences of a guilty plea. The decision was based on long-standing principles governing effective assistance of counsel and the fact that immigration law has been intimately tied to the criminal process for nearly one hundred years. Then in Chaidez v. United States, the U.S. Supreme Court held that the Padilla decision would not be applied retroactively to cases that were finalized before Padilla. The Court reasoned that Padilla was a new law that changed the law in many lower courts. This article argues that the Supreme Court erred in its ruling in Chaidez. First, Padilla was not new law but old law applied to a new factual context. Secondly, the U.S. Supreme Court incorrectly allowed state law to dictate their decision. The Padilla decision should apply retroactively and provide relief for thousands of defendants who were denied due process. However, because of the error in Chaidez, defendants like Roselva Chaidez—whose case was finalized one week before the Padilla decision— were denied the benefit of the Padilla decision and ultimately faced deportation.

WHEN THE CONSEQUENCES ARE LIFE AND DEATH: PRETRIAL DETENTION FOR DOMESTIC VIOLENCE OFFENDERS

Domestic violence continues to be a critical societal issue that requires immediate attention, affecting one in three women in her lifetime. The main domestic abuse interventions in place—mandatory arrest policies, no-drop prosecution policies, and mandatory medical reporting—are salutary in their overall effects, but leave a gap in protection after the defendant is arrested and before he or she is prosecuted. During this time, the defendant may be free to pursue his or her victim. This Note proposes an underconsidered intervention: pretrial detention or denial of bail for serious domestic violence offenders. Research indicates that the risk of violence is greatest when the abused individual is attempting to leave an abusive partner, which is likely to occur during the gap left by mandatory arrest and mandatory prosecution policies. Offenders have also been shown likely to violate protective orders. Bail reform could address this lethal break in protection. Several states have policies that contemplate pretrial detention for domestic violence offenders. This Note will propose legislation that provides a model for pretrial detention statutes for domestic violence offenders nationwide. Pretrial detention hearings should also be made mandatory in domestic violence cases that meet a certain number of risk factors for severe violence.