Reset Search & Filters
16 Drexel L. Rev. 685
Anil Kalhan
In November 2023 the Drexel Law Review organized and convened a wide-ranging, two-day symposium, Knowledge at Risk: Democratic Erosion and the Contemporary Assault on Education and Expertise, that addressed a number of key questions. How should we conceptualize the relationship between the recent attacks on education, knowledge, and academic expertise, on the one hand, and growing concerns about the erosion of democracy, on the other?
Education Law, Human Rights
16 Drexel L. Rev. 713
Emily M.S. Houh
Since 2021, legislators and school board members in Ohio have continuously introduced, proposed, or adopted a barrage of measures aimed at restricting what can be taught in K-12 and higher education institutions.
Education Law, Legislative Reform, Administrative Law
16 Drexel L. Rev. 751
Antonio L. Ingram II
Legislators in Texas mounted an assault on multiracial democracy when they attacked public higher education throughout the Lone Star State in the 87th legislative session with the introduction of Senate Bills 16, 17 and 18. Together, these bills arguably constituted a tripartite at- tack on the foundation of public higher education in Texas, seeking to curtail certain discussions of race, gender, and sexuality in university classrooms, ban diversity, equity, and inclusion offices and policies, and possibly punish professors who taught accurate racial history or engaged in diversity, equity, and inclusion-based policies.
Administrative Law, Education Law, Human Rights
16 Drexel L. Rev. 787
Morenike Fajana, Katrina Feldkamp, Allison Scharfstein
The right to access information and freely express oneself is among the cornerstones of our democracy and Black political power. The racial justice uprisings of 2020 saw an expansion of Black political participation and power, as millions of Black Americans and allies protested police murders, advocated for equitable healthcare and economic policies, and demanded more inclusive curricula in schools and universities.
Civil Rights, Education Law, Human Rights
16 Drexel L. Rev. 837
Dheepa Sundaram
This Article outlines the rising threat to academic freedom from Hindutva (Hindu nationalist) organizations in the United States. The Article explores how the Hindu nationalist playbook in the United States works, the legal strategies they use to target scholars with whom they disagree, how they leverage social justice mechanisms for redress of grievances, and the broader endgame of these tactics.
Civil Rights, Education Law, Human Rights
16 Drexel L. Rev. 555
Peri Buch
Our cultural consciousness is enamored by shipwrecks and cultural heritage submerged at the bottom of the sea. Submerged cultural heritage is not just fascinating, it encompasses incredibly important narratives of the past that inform our present. Not only does the Titanic remain in the depths of the ocean, so do warcraft and slave ships, ancient trade vessels, and harbors.
Environmental, Legislative Reform, Admiralty Law
16 Drexel L. Rev. 507
Brooks M. Chupp
According to the Voting Rights Act, states must not racially discriminate when they draw legislative districts. Federal trial courts frequently issue preliminary injunctions to prevent states from drawing districts at the eleventh hour to shield themselves from anti-discrimination laws.
Voting Rights, Discrimination, Federal Courts
16 Drexel L. Rev. 603
AJ Dejewski
Most United States jurisdictions do not allow a plaintiff to recover for negligent infliction of emotional distress as a bystander unless they witness the event firsthand and the plaintiff has a close familial relationship with the victim. However, a bystander will not always witness their loved one get injured directly.
State Courts, Tort Liability, Tort Reform
16 Drexel L. Rev. 643
Kevin Ricard
Climate change has been an issue on the global stage for more than 40 years, and regulatory action has evolved as the consequences of climate change become closer to reality. While governmental action during that period has resulted in great reductions in pollution, some nations are beginning to see devastating impacts of climate change. For some island nations, entire cultures will be wiped out within the next few generations.
Environmental, Legislative Reform, Regulation
16 Drexel L. Rev. 299
Timothy Sandefur
Most state constitutions include provisions forbidding the state or local governments from subsidizing private entities with public resources. These provisions were fashioned in the nineteenth century in the wake of financial disasters brought on by government investment in businesses such as railroads.
Constitutional, State Courts, Tax
16 Drexel L. Rev. 359
Michael P. Harvey-Broughton II
The Socratic method—known to many first-year law students as “cold calling”—plays a significant role in the modern law school experience. The method is intertwined with the academic foundations of American legal education, and proponents champion its ability to teach students how to “think like a lawyer.” However, this comes at a cost.
Education Law, Legal Education Reform, Legal History
16 Drexel L. Rev. 403
Ayushi Kokroo
In 2000, Congress enacted the Trafficking Victims Protections Act. Since then, all fifty states have enacted anti-trafficking legislation to assist in the fight to eradicate the highly dangerous, clandestine crime of human trafficking. While the media portrays human trafficking in a certain light, these depictions actually make it more difficult for the general public, law enforcement, and victims themselves to identify human trafficking.
Labor Law, Human Rights, Legislative Reform
16 Drexel L. Rev. 459
Corrie Mitchell
Poverty has long been known to negatively impact student educational outcomes, notably leading to lower math and literacy scores, graduation rates, and cognitive and physical development. While tackling educational deficiencies has primarily fallen under the purview of the states, the federal government could play an important role in addressing the nationwide educational disparities linked to poverty status. Title I, Part A of the Every Student Succeeds Act exists to address these inequalities, though it is largely ineffective as written.
Education Law, Legislative Reform, Financial Crisis
16 Drexel L. Rev. 1
Joseph G.S. Greenlee
The Supreme Court elucidated in New York State Rifle & Pistol Association v. Bruen that a modern firearm regulation is constitutional only if the government proves that it is consistent with the nation’s historical tradition of firearm regulation. Lower courts are now exploring the historical tradition of firearm regulation to determine who can be barred from possessing firearms. The Third Circuit Court of Appeals became the first federal circuit court to address the issue post-Bruen, when a three-judge panel decided Range v. Attorney General United States. In Range, Bryan Range challenged a federal law that forever banned him from possessing fire-arms based on a nonviolent misdemeanor conviction in 1995.
Constitutional, Firearms Law, Legal History, Regulation
16 Drexel L. Rev. 83
Ryan Houser
Unlike weather events such as major snowstorms or hurricanes, which are the commonly thought of disasters within the parameters of the Stafford Act, infectious diseases, by their nature, share similar disastrous impacts that extend far beyond a small geographic segment of the country. While delegating disaster response to local governments worked for many weather disasters, the COVID-19 pandemic has highlighted the threats to our nation that exceed the capabilities of local and state governments. Similarly, the pandemic has highlighted how public health emergencies can exceed the scope of existing disaster legislation, limiting the effectiveness of the national response, and necessitating a rethinking of the legislative emergency and disaster response in the United States.
COVID-19, Legislative Reform, Public Health
16 Drexel L. Rev. 137
Nell Cormack
Dust from roads is likely not a pressing concern for many Americans living in urban areas with paved roads, but for rural communities in Pennsylvania, dust suppression for unpaved roads and the chemicals used for this process create serious health and environmental issues of imminent concern. One cheap or sometimes free method of dust suppression used in these communities is to spread produced water—wastewater from the oil and gas industry—on unpaved roads. Despite a moratorium on this practice after studies revealed the toxic nature of produced water, including its radioactivity, a loophole in Pennsylvania’s regulations allows the practice to continue.
Environmental, Land Use Law, Regulation
16 Drexel L. Rev. 187
Nicholas J. Lee
Americans often take for granted the ability to travel freely throughout the United States. Nonetheless, the ability to travel freely enables Americans to move throughout the United States without government or private interference, including interferences that cause a chilling effect on the ability. Considered a basic right in the United States, the ability to travel freely is a foundational political liberty that serves numerous important purposes.
Constitutional, Privacy, Regulation
16 Drexel L. Rev. 249
Liam Pagán
Political debate in the United States has entered a dangerous era beyond mere hyper-partisanship. Often, “political commentary” presented by some of the most watched conservative news networks is not political commentary at all, but vilification of political targets. This vilification often results in stochastic terrorism—a phenomenon that occurs when speakers with large audiences engage in frequent rhetorical attacks against political opposition, eventually inciting an ideologically aligned individual to take unpredictable, often violent action.
Constitutional, First Amendment, Jurisprudence, Rhetoric
15 Drexel L. Rev. 757
Clare Stark
Neurotechnology is often recognized as “the field of devices and procedures used to access, monitor, investigate, assess, manipulate, and/or emulate the structure and function of the neural systems of animals or human beings.” Neurotechnology can help people with paralysis to move and feel, deaf people to hear, and blind people to partially see. Neurotechnology also has the potential to treat many diseases of the nervous system, neurological diseases, and mental illnesses, which represent a high cost in terms of health care expenditures. According to the Organisation for Economic Co-operation and Development (OECD), mental health illnesses drive economic costs of more than 4% of gross domestic product (GDP).
International Law, Public Health, Technology
15 Drexel L. Rev. 769
Robert I. Field
It is almost impossible to go through a day without leaving digital traces through activities ranging from web searches to social media postings to use of smart phone apps. These traces permit providers of web-based services to amass large amounts of personal information that can be used to discern a user’s interests, attitudes, preferences, behaviors, and other characteristics. In recent years, the companies that provide these services have begun to collect new kinds of especially sensitive biometric information, first reflecting genetic makeup and more recently reflecting neurotechnology measures of brain activity.
Technology, Health Law, Privacy
15 Drexel L. Rev. 821
Robert I. Field, Barry Furrow, David R. Hoffman, Kevin Lownds, and Hilary Pearsall
Private equity investment in health care has increased dramatically over the past several years, reaching 1,171 transactions worth a total of $105.3 billion in 2020. However, this growing investment strategy comes with its disadvantages. Private equity acquisitions follow a different business model than traditional for-profit ownership in health care. As a result, investors claim that they inject needed funds into financially struggling facilities, while critics see a grab for shortterm profits that often strips facilities of resources, compromises quality care delivery and leaves many of them bankrupt.
Health Law, Elder Law, Regulation
15 Drexel L. Rev. 893
Marta Sosa Navarro and Salvador Dura-Bernal
The relationship between technology and the law is traditionally known to be complex—especially when it comes to neurotechnology. Neurotechnology is the science and technology that can read and modify the brain, which is the organ responsible for our thoughts, perceptions, agency, and identity. Therefore, it is unquestionable that the regulator faces an unprecedented challenge to mitigate negative impacts of neurotechnology. The rapid development of neurotechnology and the readiness of the market to implement the techniques developed in the medical arena into direct-to-consumer devices calls for a global reflection on the risks that the non-medical use of neurotechnology may pose for human rights.
Technology, Health Law, Human Rights
15 Drexel L. Rev. 557
Bradford J. Kelley and Lance Casimir
After decades of conflict overseas, military service members are returning home as survivors of tragic injuries from war due to incredible advances in battlefield medicine and combat casualty care. Meanwhile, veterans from past wars and conflicts are also experiencing service-related health issues along with the natural effects of aging. Regardless of whether they served in the Vietnam War or the Iraq War, many veterans increasingly need long-term medical care and support. Oftentimes, family members nobly and selflessly take on these caregiving responsibilities.
Employment Law, Legislative Reform, Disability Law
15 Drexel L. Rev. 621
Kelly Hanna
In 1970, the Commonwealth of Pennsylvania ratified an amendment in Article I, Section 27 of its state constitution. Coined the “Environmental Rights Amendment,” Section 27 outlined two public rights for Pennsylvania citizens: the individual right to clean air, pure water, and the preservation of environmental values, and the right to ownership of public natural resources conserved and maintained by the Commonwealth for the benefit of the public and future. For decades, the state courts hindered Section 27’s applicability by making it dependent on the state legislature. The tide changed in 2013, when the Supreme Court of Pennsylvania decided Robinson Township v. Commonwealth.
Environmental, Tort Liability, State Courts
15 Drexel L. Rev. 667
Sarah Milicia
In 1966, the Supreme Court issued its famous opinion in Miranda v. Arizona. The decision was considered a triumph for criminal suspects at the time.
Criminal Law, Criminal Procedure, Circuit Split
15 Drexel L. Rev. 709
Madison Morton
Domestic violence is a pervasive, nationwide problem, one that worsened during the COVID-19 pandemic, which trapped victims and abusers in the same home and often prevented victims from seeking legal relief.
Domestic Violence, Family Law, Legislative Reform
15 Drexel L. Rev. 271
B. Summer Chandler
Uncertainty surrounds many issues that exist at the intersection of bankruptcy law and intellectual property law.
Intellectual Property, Statutory Interpretation, Business Law
15 Drexel L. Rev. 327
Stephen McLoughlin
Should schools be required to keep the gender identity of transgender students private from their parents? Because federal law does not address this question, school districts get caught in the middle of two arguments.
Constitutional, Education Law, LGBT Law, Privacy
15 Drexel L. Rev. 399
Lindsey Gellar
Racial inequity is a common theme in the United States, and America’s pastime is no exception. Black representation in professional baseball has been on the decline for decades since its peak of nearly 20%.
Labor Law, Legislative Reform, Racial Inequality, Employment Law
15 Drexel L. Rev. 453
Emily Palladinetti
Fashion is art—except in the United States. Classified as purely useful articles, fashion designs have been constrained in their ability to receive copyright protection under the current regime.
Fashion Law, International Law, Copyright Law
15 Drexel L. Rev. 509
Erica Witter
In Philadelphia, there is a significant gap in African American homeownership that has contributed to many of the problems that African American residents face today.
Discrimination, Property Law, Racial Inequality, Social Justice
15 Drexel L. Rev. 1
Nicholas Evan Hakun
Ever since the attorney-client privilege was expanded to sometimes include experts, courts and litigants have struggled with drawing the line between protected communications and discoverable information.
Federal Courts, Civil Procedure, Professional Responsibility and Ethics
15 Drexel L. Rev. 47
Xiaoyang Zhang
A multilateral partnership and a product of the Cold War, COCOM has long been superseded by the successor body, the Wassenaar Arrangement, supposedly to be a non-ideological alternative endeavoring to prompt its member nations to pursue cases of export control for conventional arms and dual-use items.
Administrative Law, Foreign Law, International Law, Technology
15 Drexel L. Rev. 121
Annette DeSipio
Environmental, Social, Governance (ESG) funds are investment vehicles that invest in companies that promote one or all three of these goals.
Business Law, ERISA, Employment Law
15 Drexel L. Rev. 183
Hilary Pearsall
Across the country, Medicaid-eligible individuals face widespread challenges in accessing appropriate long-term care, but LGBTQ+ elders face unique barriers to care and are especially vulnerable to discrimination, making this issue particularly pressing.
Health Law, LGBT Law, Public Health
15 Drexel L. Rev. 227
Kayla Rubin
Decades of psychological research provide strong evidence that children are different from adults. Nowhere are these differences more apparent than in the interrogation room.
Children and the Law, Criminal Law, Criminal Procedure
14 Drexel L. Rev. 787
David S. Cohen, Kelcie Ouillette & Jessica Tyrrell
Nearly fifty years after the Supreme Court recognized abortion as a constitutional right in the United States, the fate of Roe v. Wade hangs in the balance.
Federal Courts, Constitutional, Reproductive Rights, Social Justice
14 Drexel L. Rev. 819
Rebecca S. Feinberg
At the beginning of the COVID-19 pandemic, in an effort to allocate medical resources towards the anticipated influx of patients infected with the novel virus, many non-essential healthcare services were temporarily paused.
Reproductive Rights, COVID-19, Health Law
14 Drexel L. Rev. 859
Courtney G. Joslin
This Article, written for a symposium at Drexel University Thomas R. Kline School of Law, highlights how the COVID-19 pandemic underscores the urgent need to reform outdated parentage laws.
Family Law, LGBT Law, COVID-19
14 Drexel L. Rev. 883
Indra Wood Lusero
A century ago, medicine, in collaboration with the law, redefined birth as a medical event.
Health Law, Public Health, Legislative Reform, Reproductive Rights
14 Drexel L. Rev. 543
Mark Strasser
The United States Supreme Court has long had difficulty explicating what the Religion Clauses require, permit, and prohibit.
Constitutional, First Amendment, Federal Courts
14 Drexel L. Rev. 591
Caroline Leuer
Multi-level marketing (MLM) is a large industry in the United States made up of independent salespeople that sell both products and the opportunity to join the business
Business Law, Legislative Reform, Regulation
14 Drexel L. Rev. 641
Sarah Polacek
Philadelphia has the highest rate of child removal of any major city in the United States.
Children and the Law, Family Law, State Courts
14 Drexel L. Rev. 685
Nicole Scott
Children and adolescents experiencing gender dysphoria often feel extreme distress associated with feelings of gender incongruence between their internal gender identity and their gender assigned at birth.
Children and the Law, LGBT Law, Social Justice, Constitutional
14 Drexel L. Rev. 745
Lewis Sorokin
Music, like all art, is a form of creative expression. It is often referred to as “a universal language” for its seemingly inherent ability to appeal to people across cultures and divisions in society.
Copyright Law, Administrative Law, Intellectual Property
14 Drexel L. Rev. 261
Shannon J. Murphy
Congress created the Immigration and Nationality Act to provide uniformity and equality to our nation’s immigration system.
Immigration, Federal Courts, Appellate Practice
14 Drexel L. Rev. 297
Christopher Ogolla
Death is unique in the human race in the sense that once someone dies, unlike in many other species, humans still have attachment and respect for the dead.
Remedies, Tort Reform, Tort Liability
14 Drexel L. Rev. 495
Marcus Schlundt Bodien
Videoconferencing arguably became one of the most useful but pervasive features of the pandemic. Given how pleased institutions are with recent productivity, statistics show use of these platforms is unlikely to disappear or even substantially diminish once the public health landscape fully recovers.
COVID-19, Privacy, Constitutional
14 Drexel L. Rev. 405
Brielle Autumn Brown
Casting a ballot should be easy, but voter suppression continues to be an obstacle for many Black voters.
COVID-19, Election Law, Legislative Reform, Racial Inequality, Voting Rights
14 Drexel L. Rev. 451
Emily R. Larrabee
Since the immediate aftermath of the American Civil War, the United States has been plagued with its violent consequences.
Legislative Reform, Racial Inequality, Social Justice
14 Drexel L. Rev. 1
Nino C. Monea
In 1776, only two states offered constitutional protections against imprisoning people for debt. Today, forty-one states do.
Constitutional, Financial Crisis, Remedies
14 Drexel L. Rev. 69
David Nows
When a public charity solicits a specific number of donations within a state, it is usually required to register in that state and make public disclosures that allow government officials to confirm that the public charity is legitimate.
Regulation, Legislative Reform, State Courts, Business and Nonprofit Organizations
14 Drexel L. Rev. 123
DiAsia Dozier
Millions of protestors across the world have marched and rallied to denounce the police violence that led to the murders of George Floyd and Breonna Taylor.
Evidence, Criminal Law, Discrimination, Legislative Reform, Racial Inequality
14 Drexel L. Rev. 165
Marisa S. Fein
In 2015, the Supreme Court officially recognized same-sex marriage across all fifty states.
Constitutional, Discrimination, Family Law, Gender Inequality, LGBT Law
14 Drexel L. Rev. 207
Kevin C. Gilligan
The Direct-to-Consumer (DTC) genetic testing market is a massive biotechnology industry.
Regulation, Technology, Remedies
13 Drexel L. Rev. 829
Emily Zimmerman
On October 2, 2020, individuals gathered on Zoom for the annual, but first-ever virtual, Drexel Law Review Symposium. The title of the symposium was Impactful Interactions: Autism Spectrum Disorder and the Legal System.
Disability Law, Legislative Reform, Technology
13 Drexel L. Rev. 841
Colleen M. Berryessa
This Article acts as a toolkit for members of the judiciary on defendants with Autism Spectrum Disorder (ASD), and specifically looks to equip judges with knowledge, evidence, and resources on recognizing and understanding symptoms of ASD in order to better identify and evaluate diagnosed defendants and their offending behavior.
Disability Law, Technology, Criminal Law
13 Drexel L. Rev. 869
DeVan L. Hankerson & Lydia X. Z. Brown
Disabled students have long faced the impact of systemic and structural ableism in education, from early learning through postsecondary education.
Disability Law, Education Law, Technology, Civil Rights
13 Drexel L. Rev. 909
Dianah Msipa
In 2017, the Constitutional Division of the High Court of Lesotho delivered a landmark judgment in Moshoeshoe v. Director of Public Prosecutions.
Disability Law, Criminal Law, Criminal Procedure
13 Drexel L. Rev. 945
Victoria M. Rodríguez-Roldán
In 1999, New York State began implementing Assisted Outpatient Treatment (AOT), which allowed for court-ordered outpatient mental health treatment. Despite the initial benevolent intent of this project, negative racial disparities pervade New York’s AOT program, with Black and Hispanic people being disproportionately subjected to its court orders.
Disability Law, Racial Inequality
13 Drexel L. Rev. 961
Lindsay Shea & Robert I. Field
The Medicaid program, a federal-state partnership administered by each state with oversight and funding contributions by the federal government, covers more people—including almost 40% of all children—than any other health insurance program in the United States.
Disability Law, Health Law, Regulation
13 Drexel L. Rev. 987
Matthew S. Smith and Michael Ashley Stein
Section 615(m) of the Individuals with Disabilities Education Act (IDEA) permits states to transfer the rights accorded parents to adult students with disabilities.
Disability Law, Health Law, Regulation, Education Law
13 Drexel L. Rev. 581
Jeffrey R. Baker and Allyson McKinney Timm
In 2017, the Trump Administration imposed its policy of zero-tolerance immigration enforcement on the southern border. This policy resulted in the forcible separation of families and the prolonged detention of children in harsh conditions without due process or adequate resources. The Trump Administration unleashed these policies to deter people from immigrating and seeking asylum, consistent with President Trump’s racist campaign rhetoric. This Article analyzes and critiques these policies based on international human rights law.
Constitutional, Human Rights, Immigration, Legislative Reform
13 Drexel L. Rev. 663
Peter D. DeChiara
Mechanics’ lien laws give those who supply labor or material to the construction of a building a lien against the building if they are left unpaid. Historians have often described these statutes, which had spread throughout the United States by the mid-nineteenth century, as an early form of labor legislation. This Article shows how, in Pennsylvania at least, that description is simply wrong.
Labor Law, Legislative Reform
13 Drexel L. Rev. 707
Sarah Fishel
The juvenile legal system has been built upon the idea that youthful offenders are capable of change. This assumption is probably best exemplified by the line of cases surrounding the malleability of youth and the inappropriate nature of mandatory long-term punishments (i.e., the death penalty and life in prison without the possibility of parole) that do not acknowledge the potential for rehabilitation. Thus, juveniles are provided resources and presumptions not afforded to individuals in the adult system. Youthful offenders who operate under the assumption that they will die young, however, may be over the age of eighteen and thus not eligible for these benefits. As such, judges should use their discretion to consider anticipated early death during sentencing for all youthful offenders.
Children and the Law, Criminal Law, Law and Psychology, Punishment Theory, Social Justice
13 Drexel L. Rev. 747
Kaley Gordon
This Note explores notable, recent examples of women who were either charged with the failure to protect their children from abuse, or with murder for failing to prevent the deaths of their children. Many scholars, practitioners, and law students have proposed solutions to this issue with varying degrees of success. This Note aggregates and explores some of those solutions, and argues for greater use of prosecutorial discretion in charging these women as a necessary piece of the puzzle.
Children and the Law, Family Law, Legislative Reform, Remedies
13 Drexel L. Rev. 787
Shane Morris
The First Amendment right to freedom of speech is that of a two-sided coin, as the right to speech goes hand in hand with the right to receive speech. Where an author’s book is banned from a school library, the reader’s right to freedom of speech is censored with it, interfering with the ability of school libraries to serve as the “marketplace of ideas” in education.
Constitutional, First Amendment
13 Drexel L. Rev. 321
Robert I. Field, Ethan Dombroski, Mary Kate McDevitt & Whitney A. Petrie
The development of genetic science and its clinical applications bring new ethical concerns over privacy along with practical concerns over the use and interpretation of genetic information. While genetic databases are helping clinicians to understand and treat a growing number of serious genetic conditions, they present risks of unauthorized disclosures of highly personal information. Their use in clinical care also raises practical concerns in the interpretation of ambiguous findings, the handling of unanticipated incidental findings, and the communication to patients of risks and uncertainties.
Health Law, Public Health, Regulation, Technology
13 Drexel L. Rev. 377
Jerry W. Markham
Securities and Exchange Commission Regulation Best Interest (RBI) sought to mitigate or remove conflicts of interest on the part of broker-dealers that receive transaction-based commissions. As this Article demonstrates, RBI will effectively force broker-dealers to abandon such compensation arrangements in favor of fixed-fee arrangements. This will reduce investment choices, limit access to personalized professional investment advice and adversely affect the quality of services.
Corporate Law, Transactional Law, Regulation
13 Drexel L. Rev. 449
Kelley Bregenzer
Fame and photography: the two go hand in hand. Celebrities and the press, more specifically, paparazzi, have always maintained a mutually beneficial—if often unpleasant—relationship. But the rise of social media has given celebrities more control over their image and dented the once prosperous paparazzi industry. Celebrities often share images of themselves taken by the paparazzi on their own social media accounts without licensing the photos from the photographers—who have long been recognized as the rightful authors of a photograph under federal copyright law. In the last few years, paparazzi photographers have begun to file copyright infringement claims against celebrities, fashion designers, and public relations firms for sharing unlicensed images on social media. Most of these cases have settled out of court, but celebrities, backed by the public, are starting to fight back.
Copyright Law, Fashion Law, Intellectual Property, Statutory Interpretation, Trademark Law
13 Drexel L. Rev. 489
Justine Fuga
Tobacco, lead paint, prescription opioids, and electronic cigarettes (e-cigarettes), once revered as innovative products, are now regarded as public nuisances. These public health epidemics share a similar history that has time and again repeated itself. In a sentence, the industry markets products with unanticipated long-term safety risks, combats or discredits emerging evidence of harm associated with the product, evades liability in personal injury or products liability lawsuits, and finally accepts responsibility when government officials file public nuisance lawsuits. While public nuisance lawsuits successfully respond to public nuisance products, this last resort, resource-intensive, backward-looking intervention fails public health. History does not have to repeat itself again. This Note proposes a technology assessment solution to break the epidemic cycle of public nuisance products at the first phase: revive the Office of Technology Assessment in the United States Patent and Trademark Office to proactively, cost-effectively, and preventively monitor long-term safety risks of consumer products.
Health Law, Patent Law, Property Law, Regulation, Trademark Law
13 Drexel L. Rev. 533
Reece M. McGovern
Laws designed to address the consequences of crime scarcely acknowledge children whose parents are incarcerated. For instance, legislation providing rights and benefits to victims of crime defines victims in a way that excludes offenders’ children. The absence of government aid to children with incarcerated parents demonstrates a massive oversight affecting millions of our most vulnerable citizens each year.
The impact of parental incarceration is well-documented and devastating. Children who lose even one parent to incarceration miss out on critical emotional and mental support, face financial instability, are negatively socialized toward and distrust authority figures, and are at risk of entering an intergenerational cycle wherein they and their children are more likely to be poor and engage in criminal behavior.
Children and the Law, Criminal Law, Legislative Reform, Social Justice, State Courts
13 Drexel L. Rev. 1
Thomas P. Hogan
One of the largest issues currently facing law enforcement in the United States is police officers shooting civilians and the subsequent criminal investigations of the officers involved. This Article uses primary source material regarding such shootings, analysis of current prosecution models and case statistics, psychological studies, and application of relevant laws and ethical rules to suggest an entirely new model for investigating officer-involved shootings.
Criminal Law, Criminal Procedure
13 Drexel L. Rev. 87
Timothy Lockwood Kelly
From the times of Blackstone, Austine, and Holmes, through each of the three Restatements of Torts, and up to present day there has been a jurisprudential evolution of the concept of duty. This article frames this history using the Palsgraf debate between Justice Cardozo and Judge Andrews as a touchstone for analysis. Although past Restatements endorsed the “relational” view of duty associated with Cardozo (which can be traced back to Blackstone), the recent Restatement (Third) of Torts endorses a non-relational, “social” view of duty associated with Andrews (which can be traced back to Austin and Holmes).
Jurisprudence, Legal History, Tort Liability
13 Drexel L. Rev. 143
Nadijah Campbell
The employment process can be difficult for Black people because they are often the subject of racial discrimination because of their hair. This note discusses avenues to protect Black individuals from racial discrimination in employment contexts with regard to their hair in the workplace.This Note analyzes avenues to protect Black people from racial discrimination based on their hair in the workplace. Although Title VII and Section 1981 are meant to provide this protection, courts have become more restrictive as to what constitutes race, ultimately creating a standard that race is akin to biology or only those traits that cannot be changed or altered. This immutability standard is based on America’s racist past and directly contradicts case law that says Title VII is meant to protect characteristics based on stereotypes that are commonly associated with certain protected classes.
Discrimination, Employment Law, Racial Inequality
13 Drexel L. Rev. 191
Amy Lyon
Generally speaking, if a murder takes place in Oklahoma, the district attorney’s office can prosecute the perpetrator, and the state court can, upon conviction, select among a wide range of sentences to bring justice to the victim. But if a murder takes place within Indian Country in Oklahoma, a tribal prosecutor has a different set of options. In the event that both the victim and alleged perpetrator are Natives, the prosecutor can charge the perpetrator in tribal court, where he or she will face a maximum of three years imprisonment for the alleged crime. In the alternative, the prosecutor can refer such a case to the U.S. Attorney’s Office in hopes that federal prosecutors have the resources and motivation to intervene and pursue a longer sentence.
Civil Rights, Criminal Law, Tribal Justice
13 Drexel L. Rev. 233
Alyssa Mallgrave
The opioid epidemic continues to take hundreds of lives each day. Therefore, it is imperative that federal officials pursue the most effective means of preventing further fatalities. However, charging drug users with homicide serves only to exacerbate the problem.
Criminal Law, Illegal Drug Policy
13 Drexel L. Rev. 277
Whitney A. Petrie
This Note will explain why education funding lawsuits throughout the commonwealth’s history have thus far not been successful in achieving more equitable access to education for Pennsylvania’s students. This Note suggests that, as a starting point, Pennsylvania must recognize education as a fundamental right. The legislature must also make a change in the way the state’s schools are funded, and it should not wait on the courts to force them into action.
Civil Rights, Education Law, State Courts
12 Drexel L. Review 691
Erin C. Carroll
As we struggle to promote democratic debate and surface truth in our chaotic networked public sphere, we are understandably drawn to familiar frames and tools. These include the source of the marketplace of ideas theory—the First Amendment—as well the institutional press, once a key gatekeeper of that marketplace. Yet, both the institutional press and the First Amendment have limitations that hamper their ability to spark transformative change. Instead, this Article proposes that we look to journalism.
Journalism is not the press or a journalist. Rather, it is a method and a practice—an evolving system for gathering, curating, and conveying information. Among its aims are accuracy and truth, the checking of power, and the creation of spaces for criticism and compromise.
Seeding and propagating journalism could have numerous benefits. It could help to provide some of the norms desperately needed for our new information environment. It might inject democratic values into an information ecology that is driven by profit-seeking. It could create friction where speed and scale now reign. Finally, it could help reinvigorate and even repopulate an institutional press in desperate need of reinforcement.
Constitutional, First Amendment
12 Drexel Law Review 723
Stephen M. Feldman
This Essay argues that formalism is not formal. Formalism cannot deliver on its own claim to political neutrality, to deciding pursuant to pure law. Law and politics always intertwine in Supreme Court decision making. Thus, political considerations have infused not only the legal profession’s widespread commitment to formalism but also, and perhaps more important, the Roberts Court’s First-Amendment decisions. A focus on the recent gerrymandering decision, Rucho v. Common Cause, demonstrates how formalism influences free-speech cases without being determinative. In the conclusion, the Essay argues that court-packing might be the only viable progressive response to the conservative bloc’s free-speech decisions undermining democracy.
Political Theory, Constitutional, Jurisprudence, First Amendment
12 Drexel Law Review 765
G. Michael Parsons
In this Article, I evaluate online-platform disclosure laws under a thicker conception of the marketplace of ideas using the attentional-choice theory of competition. Contrary to the outcome in McManus, I conclude that platform disclosure laws are fully consistent with (and even supportive of) robust competition in the marketplace of ideas.
Technology, Constitutional, First Amendment
12 Drexel L. Review 465
Michael D. Cicchini
This Article identifies and explains several prosecutorial and judicial abuses of the preliminary hearing, including denying defendants their constitutional right to counsel, using multiple levels of uncorroborated hearsay to win bind-over, preventing the defense from effectively cross-examining the state’s witnesses and calling its own witnesses, and even using the preliminary hearing as prosecutorial weapon to tack-on additional felony counts without probable cause.
Criminal Law, Criminal Procedure
12 Drexel Law Review 521
Hayley R. Stillwell
The Constitution has not been amended for nearly three decades. During this time, the line in the sand between political parties has morphed into an impenetrable wall that neither side can or is willing to breach. This begs the question whether the constitutional amendment process in Article V is presently functional.
Constitutional, Civil Rights, Legislative Reform
12 Drexel Law Review 561
Nicole E. Crossey
This Note argues that the Advisory Committee on Evidence Rules should amend the hearsay rules to provide that, because machine translation poses an increased risk of error and the Confrontation Clause’s purpose is to establish that evidence is reliable, machine translators should not be allowed to speak for non-English-speaking defendants and defendants should be entitled to confront this machine translator testimony.
Criminal Procedure, Constitutional, Evidence
12 Drexel Law Review 597
Joseph Goldstein
This Note explains how recent DNA testing laws place innocent and guilty into the same category, proposes an amendment to current expungement law that would ensure complete expungement for all eligible, and considers how we can resuscitate once again the idea that an accused is innocent until proven guilty.
Legislative Reform, Criminal Law, Evidence, Forensics
12 Drexel Law Review 651
Caitlin B. Mininger
This Note examines some of the ways #MeToo can inform sexual harassment law and attempts to apply a critical race feminist lens to these continuing questions.
Employment Law, Sexual Misconduct, Social Justice
12 Drexel L. Review 227
Jaime Alison Lee
This Article suggests two new ways of conceptualizing what constitutes “meaningful feedback.” The first is that for feedback to be meaningful, it must be accompanied by metacognitive reflection. The second is that feedback takes on meaning when prefaced by the deconstruction and abstraction, or “naming,” of legal thinking processes. Both insights emerge only upon a holistic examination of metacognitive theory and practice as they have developed across disparate sectors of the legal curriculum.
Legal Education Reform, Pedagogy, Law and Psychology
12 Drexel Law Review 287
Benjamin Sundholm
This Article develops a strategy for improving physician-patient relationships. I suggest that enhancing physicians’ interpersonal skills can improve physician-patient rapport and mitigate the negative consequences resulting from placing too much weight on simplistic metrics. The strategy provided here is not a panacea for the broader problems posed by overemphasizing certain metrics. But, this Article can inform a larger project aimed at becoming wiser about how data and metrics are used in all aspects of medicine and health care.
Health Law, Patient Safety, Public Health
12 Drexel Law Review 331
Meagan Kelly
This Note proposes a legislative approach to an assault weapons ban that would consider the prevalence of semi-automatic AR-15 rifles in mass shootings as well as the mechanics of the rifle that make it particularly lethal. There is a time and place for weapons of certain qualities. Our gun laws must reflect a respect for the distinction between modern warfare and an orderly civilian society.
Regulation, Legislative Reform, Constitutional, Firearms Law
12 Drexel Law Review 377
Kirsten R. Lewis
Abused women are waiting this very moment in the U.S., not knowing if they have a reasonable likelihood of succeeding in their asylum claims. This Note argues that it is time for such uncertainty to be lifted, rather than waiting on the courts to do something further. The American legal system has already spoken, recognizing domestically abused women, and even abused immigrant women, as deserving special recognition and protection under the law. The policy of asylum law specifically must catch up to this standard, to recognize female victims of domestic violence as a particular social group.
Refugee and Asylum Law, Human Rights, Immigration, Domestic Relations
12 Drexel Law Review 417
Rebecca S. Swaintek
Instead of standard ICE detention, mentally ill migrants should be detained in the least restrictive setting decided on a case-by-case basis, as modeled by the placement of Unaccompanied Alien Children. There, a team of staff members can work toward a variety of goals, including restoration of competency and the collection of documents necessary to the individuals’ removal proceedings to both care for the migrant and assist the already overburdened immigration courts. We must do better to protect the least among us, including this vulnerable group, and the first step in doing so is to secure their safety and wellbeing throughout the immigration process.
Immigration, Disability Law, Law and Psychology
12 Drexel L. Review 1
Robert A. Bohrer
This Article proposes an approach to accelerated access and drug prices that would generate much needed information for doctors, patients, the government, and private insurers. The new form of conditional approval proposed here would be similar to the parallel track program developed by the FDA in the 1990s, during the HIV crisis.
Health Law, Patient Safety, Public Health
12 Drexel Law Review 47
Deborah J. Cantrell
This Article explores the problematic consequences of that oversubscription to hot, reflexive emotions. First, it is not clear empirically that hot emotions produce more social change or faster social change. Next, it is normatively fraught to base social change on anger. A constitutive feature of anger is its “payback wish.” As political philosopher Martha Nussbaum has articulated, anger’s payback wish means that change happens by one side denigrating the other rather than all sides finding a way to improve everyone’s lot. Dignity is better enhanced when all sides rise. The Article concludes that the better way forward for social movement activists and lawyers is to frame the motivating and sustaining emotion for their work as “fierce love.”
Political Theory, Social Justice, Law and Emotions
12 Drexel Law Review 93
Anthony P. Beltrami
The nullity rule lacks any true foundation, and it prioritizes adherence to technicalities over the adjudication of cases on the merits. There is no sense in promoting rigidity for the sake of rigidity. This Note details why and how the nullity rule must be eliminated. It sheds light on a gap in our system of justice that perhaps goes unnoticed by many, but that devastates those whom it affects.
Civil Procedure, State Courts, Trusts and Estates
12 Drexel Law Review 129
William F. Henderson
This Note examines the world of due process issues surrounding Philadelphia’s use of probation detainers. To that end, this Note will review the history and rise of probation in the United States and the Commonwealth of Pennsylvania, examine contemporary probation law, and analyze the problem of detainers being used in a way that erodes the due process rights of people on probation.
Criminal Procedure, Constitutional, Criminal Law
12 Drexel Law Review 171
Leigha Santoro
After providing an analysis of how all types of intellectual property—copyright, patent, trademark, and trade secret—can encompass flavor as a protectable item, this Note concludes that trademark law is the avenue companies will most likely pursue to obtain protection for their products’ flavors. Current trademark laws should be viewed more broadly to encompass the non-traditional mark of flavor.
Trademark Law, Intellectual Property
11 Drexel Law Review 825
Rachel Lopez
The aim of the Symposium was to gather leading transitional justice scholars and practitioners from around the world together to discuss the most pressing issues in the field, with a focus on more intentionally connecting theory and practice.
Transitional Justice
11 Drexel Law Review 835
Richard L. Goldstone
In the aftermath of war, violent upheaval, and repression, domestic justice systems are unable to address the large-scale violations of criminal law and human rights law that might have been perpetrated. In many cases those crimes have been overlooked and relegated to footnotes in some history books.
Transitional Justice
11 Drexel Law Review 859
Radhika Hettiarachchi
This paper presents a practitioner’s perspective, critically engaging with the experiences and lessons learned through the implementation of the Herstories Project and the Community Memorialisation Project, to examine some of the conceptual and practical questions that I continue to grapple with in the field of memorialization in Sri Lanka.
Transitional Justice
11 Drexel Law Review 903
David Mandel-Anthony
Three important trends in the global system of accountability for atrocity crimes are reshaping the architecture of global justice by increasing the available fora and avenues to achieve accountability for atrocity crimes. One is a redesign of international fact-finding and investigative mechanisms mandating those bodies to collect evidence for potential use in national judicial systems. A second is the increasing establishment of specialized, national investigative and prosecutorial units facilitating the exercise of foreign jurisdiction over atrocity crimes. The final trend is a growing milieu of sophisticated, non-governmental actors and organizations seeking criminal justice and accountability for atrocity crimes. These three developments interact with and shape each other, leading to increased possibilities for justice and an expansion of accountability norms.
Transitional Justice
11 Drexel Law Review 969
Nikhil Narayan
This Article examines the intersectionality of transitional justice and international criminal justice. In particular, the Article evaluates the impact of criminal justice and accountability mechanisms to address serious international crimes in post-conflict transitions on the broader transformative goals of strengthening the rule of law, restoring public confidence in the criminal justice system, fostering reconciliation, and, thereby, achieving sustainable peace.
Transitional Justice
11 Drexel Law Review 467
Tara Smith
This Article argues that a firm distinction between speech and ac-tion is critical to the preservation of freedom of speech. The line be-tween the two has blurred in recent years in disputes over such things as cake bakers’ artistic freedom to refuse certain clients, disruptions of speakers on college campuses, whether campaign finance restrictions limit spending or speaking, and social media companies’ status as platforms or publishers. For the legal system to resolve such conflicts correctly and to uphold the proper boundaries of individuals’ freedom, a firm grasp of the respective referents of “speech” and “action” is imperative.
Constitutional, Civil Rights, First Amendment
11 Drexel Law Review 539
Michael J. O'Connor
Both the SEC and private cryptocurrency attorneys assume that if a crypto token—for example, a bitcoin—is a security when issued, then it is a security when traded on exchanges like Coinbase, Gemini, and Circle. Based on that assumption, the SEC regularly threatens exchanges with enforcement for unlicensed trading. While the literature increasingly examines cryptocurrency’s appropriate regulatory treatment, this baseline assumption has gone unquestioned. This Article suggests that assumption is incorrect. A fundamental difference separates a token when issued by a developer from a token when traded on an exchange: an issuer promises further development and price appreciation, while the exchange promises neither. Unlike stocks and bonds, crypto tokens fall under a different category in the securities laws, regulating “investment contracts.” To be an “investment contract,” a commodity like a crypto token must be accompanied by this extra promise for further development or price appreciation. For that reason, when traded on exchanges, tokens are no longer securities.
Contract Law, Transactional Law, Technology
11 Drexel Law Review 597
Brian Bozzo
The United Nations Office for Outer Space Affairs defines “space law” as the international body of law governing space-related activities, comprising “international agreements, treaties, conventions, and United Nations General Assembly resolutions as well as [the] rules and regulations of international organizations.”[1] The concept has developed beyond its origins as an academic theory, prematurely enshrined in the provisions of a treaty intended to address the geopolitical concerns presented by the Cold War. Space law, however, has yet to evolve into a well-defined regulatory scheme required to protect the modern economic interests of private space companies in the United States.
[1].Space Law, United Nations Off. Outer Space Aff., http://www.unoosa.org/oosa/en/ourwork/spacelaw/index.html (last visited Apr. 16, 2019).
International Law, Legislative Reform
11 Drexel Law Review 651
Fanta Freeman
This Note will explore the history and current state of black women in society and in the criminal justice system, as well as the current state of voir dire as it relates to juror bias. Ultimately, this Note proposes changes to voir dire that could expose the discrete but salient implicit biases of jurors adversely impacting black female defendants
Criminal Procedure, Discrimination, Racial Inequality, Gender Inequality
11 Drexel Law Review 705
Sydney Melillo
This Note argues that Justice Kennedy’s articulation of the recent Sixth Amendment exception to Rule 606(b) should be extended to gender animus that may motivate an individual juror’s finding of guilt. The recent widespread public recognition of gender-motivated assault and harassment begs the question, can a jury deliberation room contaminated with bias be squared with the Sixth Amendment guarantee for an impartial trial?
Gender Inequality, Discrimination, Evidence, Constitutional
11 Drexel Law Review 745
Christopher Mullen
This Note argues that websites should fall within the ADA’s definition of “place of public accommodation” and thus be subject to Title III ADA regulations. Currently the circuit courts are split in their understandings of whether a website falls within Title III’s regulations, and Congress has remained silent on the issue. This Note will provide background to the passage of the ADA, discuss the ongoing circuit split, explain the role of the U.S. Department of Justice in effecting this necessary change, propose and analyze an appropriate solution, and elaborate on what implementation of successful web accessibility standards would look like.
Disability Law, Civil Rights, Technology, Statutory Interpretation
11 Drexel Law Review 783
Phillip Sylvester
This Note will address the impact of North Carolina’s exclusionary domestic violence statute, which prohibits same-sex couples from accessing the same resources available to opposite-sex victims of domestic violence and forces same-sex couples to seek aid under a “household member” application.
Civil Rights, Family Law, LGBT Law
11 Drexel Law Review 1
Seth C. Oranburg
This Article argues for unbundling employment benefits so workers in the gig economy can obtain a more optimal mix of benefits and wages. This Article also provides a framework for a more flexible system of employee benefits. It thus makes three contributions. First, this Article demonstrates how a rigid requirement of employment benefits can harm workers. Second, it shows how labor law should incorporate advances in economic theory that it has heretofore generally ignored. Third, this Article presents a flexible framework to solve the refractory problem of rigid worker categorization.
Labor Law, Employment Law, Technology
11 Drexel Law Review 61
Dr. Waseem Ahmad Qureshi
Recently, the United States has used force against non-state actors residing in host states in cases where the host state is either unwilling or unable to constrain illicit terrorist activities launched from its territory, using the “unwilling or unable” test guidelines. Even more controversially, the United States targeted the Syrian state in the Shayrat missile attack. Though the unwilling or unable test has some theoretical support among legal theorists, the legality of this test in international law is contentious, which has led to a lack of state practice. Accordingly, there is a lack of guidance in international law on the application of the unwilling or unable test, which could turn out to be costly, because unilateral action by one state against another without U.N. Security Council authorization or a legal use of force in international law can have dire consequences.
This Article aims to critically analyze the application of the unwilling or unable test by the United States to the case of Syria, and assess why the justification that the United States provided for its military intervention on Syrian territory has not been universally accepted. It will also discuss barriers to the acceptance of this standard, especially in the way that it has been interpreted by the United States in the particular case of Syria. This Article argues that the theoretical test is inapplicable in the Syrian case, because the prerequisites set by the test itself are not met. Moreover, the Article will argue that the test lowers the threshold for using force set by the U.N. Charter.
International Law
11 Drexel Law Review 101
Clara Hochleitner
This Article focuses on one special feature of this “new generation” of controlling shareholders, namely the “founder-specific” nature of their shares, which is usually expressed in a conversion feature in the certificate of incorporation. In general, this “conversion feature”—as understood in this Article—stipulates that the super voting power is lost upon certain kinds of transfers. This Article demonstrates that the non-transferability of super voting power has positive as well as negative effects and proposes a corporate governance solution to mitigate these disadvantages. In doing so, the Article takes a broad comparative perspective, looking not only at jurisdictions that have traditionally employed dual-class structures but also at jurisdictions that are currently revisiting their dual-class policy and at jurisdictions with other compelling approaches toward restrictions on the transferability of shares.
Corporate Law, Technology
11 Drexel Law Review 149
Jason G. Dykstra
This Article proposes designing a required, upper-division legal writing class that incorporates the skills most needed by new attorneys entering the practice of law. The data shows that most new lawyers are destined for private practice, whether with small firms or as solo practitioners, and most likely, this private practice will include civil litigation. Since most civil litigation resolves by settlement or dispositive motion, new lawyers will focus primarily on pretrial civil litigation. Given this reality, the Article proposes requiring an upper-division legal research and writing course designed to introduce practice-style legal research and writing. This course would serve as an analogue to introduce the pretrial civil litigation skills most needed by new attorneys.
Legal Education Reform, Pedagogy, Practical Guidance and Strategy, Legal Writing, Legal Research
11 Drexel Law Review 215
Louis J. Capozzi III
This Article offers an analytical framework to evaluate the legitimacy of pendent personal jurisdiction. First, it examines the doctrine’s history and evolution, ultimately criticizing the federal courts for expanding their own jurisdiction without articulating a valid legal warrant. Second, it considers the potential sources of authority for federal courts to wield pendent personal jurisdiction, concluding that all current federal court assertions of pendent personal jurisdiction depend on state long-arm statutes, as limited by the Fourteenth Amendment. In the process, this Article seeks to clarify how the federal courts issue service of process and exercise personal jurisdiction.
This Article then assesses whether pendent personal jurisdiction passes muster under the Court’s personal jurisdiction cases. The Court’s decision in Bristol-Myers, justified by interstate federalism principles, casts doubt on pendent personal jurisdiction because it forbids a court from adjudicating claims unconnected to the forum it sits in. Pendent personal jurisdiction often allows courts to breach that rule. Therefore, this Article argues that both pendent party and pendent claim personal jurisdiction are forbidden. This Article also provides broader insights into personal jurisdiction’s relatedness element and interstate federalism’s role in limiting the adjudicative reach of the nation’s courts within a system of multiple sovereigns.
Civil Procedure, State Courts, Federal Courts, Federalism
11 Drexel Law Review 297
Jenna C. Ferraro
The Fourth Amendment is arguably one of the most important amendments in the U.S. Constitution. It protects citizens from unreasonable searches and seizures in areas that most would consider private, such as the home. The Supreme Court has ruled on numerous cases regarding Fourth Amendment protections over the years, and the Court has explained the Fourth Amendment analysis and how it should be applied by the lower courts. This Note specifically explores how the Fourth Amendment analysis has been applied in the Second Circuit when it comes to apartment buildings. New York is a state that is within the Second Circuit, and apartment buildings and other types of multi-unit dwellings are extremely common there. When examining whether someone has a reasonable expectation of privacy in the common areas of his or her apartment building, the Second Circuit has applied what this Note refers to as the “exclusive control” test. This Note argues that through the use and application of this test, the Second Circuit will likely create a disparity in terms of how Fourth Amendment rights are distributed based on where a person can afford to live. This Note explains that those who can afford to reside in more luxurious and expensive apartment buildings could have a higher expectation of privacy because of the amenities and security measures these abodes offer. This is clearly an unfair result, as the Fourth Amendment should apply equally to all and no one should be able to buy his or her way to privacy. Because of the unequal distribution of Fourth Amendment rights based on income likely to result from the current test that the Second Circuit applies, this Note proposes expanding the Katz “reasonable expectation of privacy test,” as well as expanding the curtilage doctrine so that it extends to common areas of multi-unit dwellings. These solutions would ensure that all are afforded the privacy they deserve, regardless of where they can afford to live.
Criminal Procedure, Civil Rights, Privacy, Constitutional
11 Drexel Law Review 337
Denisse F. García
In the United States, fashion designs are not protectible under any of the traditional forms of intellectual property—namely patents, copyrights, or trademarks. Fashion designs are creative works of art and as such are worthy of the same protection as musical recordings, films, books, software programs, or paintings. However, because Congress has consistently neglected addressing the piracy problem in the fashion industry, fast-fashion brands and retailers have been rampantly copying fashion designs almost without consequence. This unethical behavior hurts emerging designers and smaller brands the most. This is why the legal system should stop turning a blind eye and provide designers with a solution that allows for the protection of their designs without interfering with the unique pace of the fashion industry’s creative process.
Fashion Law, Intellectual Property, Patent Law, Trademark Law, Copyright Law
11 Drexel Law Review 383
John Lang
The search for sunken treasure is a quest as old as time. That search, however, has led to animosity between neighbors, disputes between countries, and intercontinental naval battles. With the proliferation of undersea technology, what was once thought to be lost at sea is coming ever closer to the surface. Unfortunately, this new technology has only exacerbated existing disputes. The current state of international law, embodied in the United Nations Convention on the Law of the Sea (UNCLOS), inadequately solves treasure disputes over goods salvaged in international waters. Accordingly, UNCLOS must be amended to include a committee specifically designated and authorized to settle salvage disputes between member nations, states, and salvage companies. The United Nations, the United Nations Educational, Scientific and Cultural Organization, and the Institut de Droit International have attempted to remedy the disputes through resolutions. None of the resolutions have created a committee, and none of the resolutions have successfully solved the salvage disputes. Salvage disputes involve issues of maritime law, finders law, salvage law, and international law; therefore, they can only be solved when looked at through the historical lens in which they exist. This Note examines the history of maritime law and the development of salvage jurisprudence. It suggests a multi-factor framework that a salvage dispute committee can use to properly determine who owns what is found on the bottom of the sea.
Admiralty Law, International Law
11 Drexel Law Review 421
Daniel P. Rosner
On October 26, 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), an immunity statute that broadly shields gun manufacturers, distributors, and dealers from civil lawsuits arising out of gun violence injuries. PLCAA was passed with overwhelming support in Congress after decades of litigation against the gun industry. After tracking that history of litigation, this Note criticizes Congress’s reasons for passing PLCAA and argues for a broader interpretation of the negligent entrustment exception. In particular, courts should construe the negligent entrustment exception broadly to allow investigation of claims against gun dealers who allegedly store and transfer guns in ways that enable criminals to obtain access to them. In the same vein, PLCAA should not provide wholesale immunity to manufacturers who continually purvey weapons to these corrupt gun dealers solely because they do not directly transfer guns to consumers. The implications of this reading of negligent entrustment would concededly impact the gun industry in momentous ways. However, acceptance of this view would not open a Pandora’s box of litigation, unconstitutionally violate Second Amendment rights, or disturb the gun industry’s qualified immunity. Rather, imposing a duty on the gun industry to monitor the distribution of firearms merely reflects the risk of distributing lethal instrumentalities to unscrupulous commercial actors and dangerous individuals.
Constitutional, Legislative Reform
10 Drexel L. Review 741
Andrew J. Greer
This Note argues evidentiary deception
during interrogations impermissibly elicits false confessions from
children and should be replaced with less coercive tactics able to withstand
constitutional scrutiny and effectively match the true criminal
to the crime.
10 Drexel L. Review 779
Genna Garofalo
This Note
presents the potential pitfalls of current legislation aimed at preventing
the proliferation of revenge porn and suggests specific provisions
that can be added to existing nonconsensual pornography laws or used
as a basis for states that have not yet enacted such laws.
10 Drexel L. Review 813
Michelle Streifthau-Livizos
This Note highlights the unpopular argument that it should
not fall on the shoulders of landlords to fix low-income housing issues,
but instead the government needs to look at the bigger picture.
10 Drexel L. Review 567
Dr. Donald F. Tibbs
These essays serve as a powerful reminder
to those who uncritically consider racial policing as
happenstance, accidental, or the product of a few rogue police
officers. Together, they offer us a panoramic view of the intersections
between law, race, social movements, and the science
infiltrating our deep critiques of how “the way things are” is
simply more of the way they have always been. In the end, their analyses compellingly link the multiple forms of state violence—
domestic and imperialist—with sexual violence, focusing
our attention on how race and policing is a process, learned
and instituted. In the end, we all can agree that with attention,
intention, and effort, racialized policing can be and needs to be
reversed if American really truly wants to become great.
10 Drexel L. Review 573
andré douglas pond cummings
This article proposes a radical restructuring of United States
law enforcement policies, procedures, and applications in order
to address this critical challenge. After comparing some of the
nation’s most innovative police reform efforts, this article will
provide policymakers, legislators, officers, leaders, judges, and
lawyers the most effective reform efforts and best thinking that
have been implemented to date in connection with saving the
lives of residents who face danger from those trained to protect
and serve them. This article may serve as a signal to a potential
sea change in failed police practices that have endured for decades
in the United States.
10 Drexel L. Review 631
Tryon P. Woods
This Article’s position regarding implicit bias theory is that
implicit bias theory does indeed describe a consequential reality.
This author has no quarrel with the cognitive science referenced
in the various studies, and I know that the unconscious
racism to which it refers is endemic to our society. The problem,
however, is that implicit bias theory bears an implicit bias
of its own that leaves it fatally compromised in charting the way
forward to social transformation. Implicit bias theory misrecognizes
the nature of racism and thus underestimates the scale
of the breach to be crossed through anti-racist agitation. In particular,
implicit bias theory displaces the singular position of black people under racial regime. For this reason, this Article
suggests that implicit bias theory is particularly inept in dealing
with the racist violence of the law. There is an onto-epistemic
structure—the basis of our understanding of existence and
knowledge—more fundamental than the dynamics revealed in
cognitive science. In other words, scientific inquiry into the nature
of racism is itself in fee to the prevailing anti-black image
of humanity.
10 Drexel L. Review 673
P. Khalil Saucier
This Article explores the ways in which antiblackness haunts nationwide
breed-specific legislation of today. Dogs have long featured
as a constitutive element in the antiblack dynamics of police power.
Central to slave patrols of the past, dogs remain essential to current
law enforcement practices. The blackening of breed-specific legislation
in legal and political discourse is a critical, subtle, and sophisticated
way in which white Americana enacts its humanity and continues to
regulate blackness. In bringing together historical and legal material,
this Article explores how breed-specific legislation intervenes to define
the boundaries of blackness. In other words, this Article investigates
how breed-specific legislation helps make blackness legible and familiar
in an era defined by shifts in racial identity. Ultimately, this Article
is concerned with how racial slavery lives on in modern times and
how breed-specific legislation is part of a long unbroken sequence of
antiblack violence, punishment, and surveillance.
10 Drexel L. Review 695
Stephanie Singer
In 2016 the Supreme Court held in
Montgomery v. Louisiana that Miller’s holding was retroactive
and that juvenile lifers whose sentences were final before Miller were
entitled either to a resentencing or to immediate parole eligibility.
Miller affected more juvenile lifers in Pennsylvania than any other
state, with nearly 500 individuals in need of resentencing. Pennsylvania
is currently grappling with how to conduct these resentencings,
particularly considering that sentencing laws passed after
Miller do not apply to these individuals. There are numerous, significant
issues associated with conducting a retrospective Miller analysis
that put juvenile lifers at a severe disadvantage, particularly because they entered prison without the hope of release. Consequently,
juvenile lifers in Pennsylvania should—after serving their current
mandatory minimums—automatically be eligible for parole. This solution
addresses the unfairness that juvenile lifers are likely to face at
resentencing without compromising public safety, promotes efficient
use of resources, and remains consistent with the rehabilitative purpose
of the juvenile justice system.
10 Drexel L. Review 307
Jack Millman
Government subsidies for higher education suffer from serious design
defects that contribute to seemingly contradictory problems: (1)
too few individuals earn college degrees because the United States underinvests
in prospective students, and (2) too many students enroll
in bad schools that leave them and society worse off than before they
enrolled. Why would students overinvest in bad schools while they
underinvest in education generally?
10 Drexel L. Review 389
Rye Murphy
In 1966, the Supreme Court promulgated a new procedural rule
for class actions in federal court. Amended Rule 23 was a considerably
different mechanism than its predecessor. It was more inviting of
class action litigation but also incorporated new mechanisms for protecting
class members. This was not an unreasonable trade-off, and
one can imagine a group of rule-makers—elite academics, federal
judges, prestigious attorneys—peaceably striving to write a rule that
could balance individual class members’ interests with the interests
of the class as a whole. But this is not what happened. The Rule 23 of
today is an accord between two rival sects of mid-century legal
thinking.
10 Drexel L. Review 445
Tyler B. Burns
This Note argues that the Ninth Circuit’s approach in VMG
Salsoul should be adopted and the de minimis exception should be applied
to copyright infringement cases involving sound sampling. Additionally,
in light of the VMG Salsoul decision, this Note revisits the
Sixth Circuit’s opinion in Bridgeport and the subsequent commentary. It provides a new perspective on the Sixth Circuit’s analysis, unpacks
Judge Silverman’s dissent, and discusses the underlying policy
need to adopt the Ninth Circuit’s decision in VMG Salsoul.
10 Drexel L. Review 497
Brendan McCloskey
American Samoa is the only inhabited U.S. territory that does not
have birthright American citizenship. Having birthright American
citizenship is an important privilege because it bestows upon individuals
the full protections of the U.S. Constitution, as well as many
other benefits to which U.S. citizens are entitled. Despite the fact that
American Samoa has been part of the United States for approximately
118 years, and the fact that American citizenship is granted automatically
at birth in every other inhabited U.S. territory, American Samoans
are designated the inferior quasi-status of U.S. National.
10 Drexel L. Review 535
Erica Pauline Spiro
This Note argues that the statutory prohibition
on the use of HIV-positive organs needs to be lifted so that
medical experimentation and innovation can proceed. If and when
medical experimentation demonstrates acceptable patient survival
durations, it may be possible to increase the available pool of organs
for donation through lifting the ban on HIV-positive organs.
10 Drexel L. Review 1
Richard C. Boldt
The allocation of treatment resources in the behavioral health system in the United States has shifted dramatically over the past fifty years.
10 Drexel L. Review 69
Vanita Saleema Snow
This article seeks to reignite the conversation about discriminatory
policing and how racially biased policing results in law enforcement
disproportionately seizing African Americans’ property suspected of
being related to illegal activity. But, it also attempts to situate issues
of protest movements as a vehicle to move the Supreme Court to
change discriminatory standards under forfeiture statutes.
10 Drexel L. Review 127
Gabrielle Goldstein
This
Article identifies and describes the development of four areas of
regulatory oversight: (1) human subjects research, (2) animal
research, (3) scientific integrity and misconduct, and (4) financial
conflicts of interest. Each is an example of management-based
regulation: regulated entities have flexibility in designing policies and
programs that meet generalized regulatory requirements.
10 Drexel L. Review 183
Sonia Weil
This Article explores the harms the industrialized agricultural industry creates and the legal protections the industry enjoys in environmental law, animal cruelty law, labor law, anti-terrorism law, and through heightened protections in trespass and libel law.
10 Drexel L. Review 239
Ryan J. Silver
It is imperative that the United States shift to a multi-party
system, and that states enact laws to adopt single transferable vote/
instant runoff voting systems. These voting systems allow voters the
opportunity to rank candidates, with their vote automatically going to
the candidate who stands the best chance of winning. Only then will
the United States have a truly representative democracy, increased
voter turnout, and guaranteed fundamental rights for voters.
10 Drexel L. Review 277
Brittany Stepp
In addition to implementing pending legislation, Congress should look
to the European Union (EU) laws and adopt additional safeguards.
Similar to the EU, it is essential that the FDA be granted authority to
reevaluate and update permissible ingredients on a rolling basis.
9 Drexel L. Review 261
Anil Kalhan
This Article introduces a collection of articles presented as part of the Drexel University Law Review symposium on the twentieth anniversary of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Symposium Introduction
9 Drexel L. Review 269
Frank Sharry
This Article reflects upon the political contestation that led to the enactment of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, contextualizing the anti-immigration backlash and debates.
Revisiting 1996 Immigration laws
9 Drexel L. Review 297
Jennifer M. Chacón
This Article analyzes three distinct but interrelated effects of the 1996 laws: (1) the over-criminalization of migrant communities at the federal level; (2) the normalization of immigration enforcement as a part of the standard sub-federal policing agenda; and (3) the rising tide of highly vulnerable liminal legal statuses as a response to powerful economic and political pressures.
Revisiting 1996 Immigration laws
9 Drexel L. Review 323
Rebecca Sharpless
The U.S. Supreme Court lacks a jurisprudence for when courts should defer to immigration agency interpretations of civil removal statutes that involve criminal law terms or otherwise require analysis of criminal law. This Article represents a first step toward such a jurisprudence, arguing for an expansive principle of nondeference in cases involving ambiguity in the scope of crime-based removal statutes.
Revisiting 1996 Immigration laws
9 Drexel L. Review 353
Claire R. Thomas and Ernie Collette
By comparing public benefits access for categories of immigrants, such as survivors of domestic violence, trafficking, and those who obtained asylum protection, this Article will advocate for reforms at the federal, state, and local level to increase access to food security for vulnerable groups.
Revisiting 1996 Immigration laws
9 Drexel L. Review 393
Jill E. Family
This Article explores the lack of relief from removal in immigration law and shows how its stingy availability sheds light on other, broader problems afflicting immigration law.
Revisiting 1996 Immigration laws
9 Drexel L. Review 421
Michelle Anne Paznokas
This Note suggests the Special Immigrant Juvenile Status process be amended by working toward two long-term goals: (1) creating a nation-wide “best interest” standard based largely on current U.S. family law statutes and the United Nation’s Convention on the Rights of the Child, and (2) creating a standard SIJS order that all state court judges must complete when deciding SIJS matters.
Revisiting 1996 Immigration laws
9 Drexel L. Review Online 1
Jessica Kitain
This Note presents the existing regulatory framework protecting data privacy, reviews the role of regulatory agencies, and ultimately exposes the gap between the protection of certain types of sensitive data and the lack of protection for all other data collected from the body through wearable devices. The solution to fill the gap lies in using the privacy principles of notice, choice, and consent in the United States’ self-regulating system.
Privacy, Technology
9 Drexel L. Review Online 31
Steven J. Maguire
This Note addresses the duty of acceptance of felony guilty pleas and examines whether the majority trend in the circuit courts of allowing magistrates to perform such a duty should be permitted under the Federal Magistrates Act. this Note argues that acceptance of felony guilty pleas by magistrates is not authorized under the Federal Magistrates Act and undermines the fundamental protections afforded to criminal defendants.
Constitutional, Criminal Law, Federal Courts
9 Drexel L. Review Online 61
Benjamin L. McCready
This Note considers the environmental costs and economic benefits of fracking and examines the trends in legislation and litigation regarding municipal fracking bans. Using this background, this Note asks whether state statutes preempting local fracking bans make sense in the context of prevailing environmental preemption theories.
Environmental, Land Use Law
9 Drexel Law Review 1
Charles L. Becker, Shanin Specter, and Thomas R. Kline
This Article reviews a deal between insiders and certain law firms that resulted in an unauthorized distribution from the settlement fund to resolve objections over the size of the Vioxx common benefit fund. The Article argues that common benefit fees should be distributed according to the well-accepted lodestar approach, rather than an ad hoc “point” system created by self-interested parties, and that common benefit money should not be distributed through unauthorized deals.
Practical Guidance and Strategy
9 Drexel Law Review 43
Mary Margaret Giannini
This Article contends that dignity should function as a substantive right whereby it has the power to identify a broad spectrum of treatment for victims to ensure they are not dishonored in the criminal justice process.
Legal Theory, Constitutional
9 Drexel Law Review 101
Stephanie Pisko
This Article explores religious institutions’ exemption from Title VII liability for religious discrimination. Religious institutions are allowed to fire and hire employees based on religious preference.
Employment Law, Discrimination
9 Drexel Law Review 129
Alexandra Buckingham
This Note advocates for the admission of cultural extrinsic evidence to both create ambiguity and resolve ambiguity. The notion of culture advocated for in this Note embraces dismantling the concept’s vagueness into more concrete constituents of social relations.
Contract Theory, Legal Theory
9 Drexel Law Review 161
Lisa Bollinger Gehman
The use of certification marks requires collaborative involvement from every stakeholder, from workers and consumers, to manufacturers and retailers. This Note proposes an achievable solution to a problem that has long faced our society.
Trademark Law, Transnational Law, Labor Law
9 Drexel Law Review 193
Emily Hart
Using CMS’s Proposed Rule, Reform of Requirements for Long-Term Care Facilities (“Proposed Rule”), this Note analyzes the Proposed Rule and comments to show how CMS can advance its growing commitment to person-centered care through new metrics for the Nursing Home Compare website.
Elder Law, Regulation
9 Drexel Law Review 227
Trevor R. Larkin
This Note analyzes how the statutory definition of “refugee” must be amended and new regulations must be promulgated in order to extend protection beyond domestic violence claims.
Refugee and Asylum Law, Legislative Reform
8 Drexel L. Review 261
Judge Nancy Gertner
For decades, the mantra for Republicans and Democrats alike had been “tough on crime.” If the sentence for a given drug offense was five years, and yet the problem of drug distribution and use persisted, the response was to increase the penalty to ten years, then fifteen, even life. It was never: Should we imprison at all? Is there any efficacy to imprisonment beyond a few years to deter crime? Is there a category of offenders for which imprisonment and more imprisonment should not be the only response?
Symposium Introduction
8 Drexel L. Review 269
Patrick T. Gillen
This Article considers a critically important but unresolved question presented in cases where a party requests and receives preliminary injunctive relief against governmental defendants. The question is this: if a party secures preliminary relief that bars the government from enforcing a given law while the parties litigate, and the challengers of the law do not ultimately prevail on the merits, what consequence, if any, does that preliminary relief have on liability for penalties triggered by noncompliance with the preliminary injunction while it was in effect?
Jurisprudence
8 Drexel L. Review 317
Robert J. Kane and Anne-Marie O’Brien
Historically in the United States, the police have been organized as a publicly accountable, rule of law institution. In theory, this has meant that police engage in partnership with the public to set crime prevention and public safety goals. Since the decline of industrialization in America’s urban centers, however, the police—particularly in racially isolated, structurally disadvantaged communities—have increasingly moved from a model of “liberal consent” or “democratic” policing to one that emphasizes authoritarianism and the imposition of crime control tactics. This increasingly coercive brand of policing has, in many communities, resulted in a loss of legitimacy and cooperation and caused the police to be viewed as something akin to an environmental hazard—i.e., something to be avoided.
Community Policing, Public Health
8 Drexel L. Review 339
Elana Zeide
The Family Educational Rights and Privacy Act (FERPA) sets the terms around which student privacy issues have been debated for decades. Accordingly, many of the proposed reforms work within the statute’s existing regulatory framework. This Article takes a broader perspective and contributes to the debate by demonstrating how FERPA and Fair Information Practice Principle (FIPPs)-based standards cannot provide the control, meaningful oversight, or sufficiently concrete standards sought by stakeholders.
Education Law, Technology, Privacy
8 Drexel L. Review 397
Kristin Brown Parker
With incarceration rates at an all-time high and over-criminalization rampant, there is a growing need for programs aimed at rehabilitating ex-offenders following release from prison. These programs are critical to combating the collateral consequences associated with imprisonment.
Criminal Law, Punishment Theory
8 Drexel L. Rev. 1
Joi Montiel
Children and the Law, Family Law
8 Drexel L. Rev. 53
Alec Walen, J.D., Ph.D.
National Security, Vol. 8 No. 1
8 Drexel L. Rev. 113
Michael N. Widener
Land Use Law, Regulation
8 Drexel L. Rev. 155
Joseph Fluehr
Education Law
8 Drexel L. Rev. 185
Angie Lyne Fredrickson
Environmental, International Law
8 Drexel L. Rev. 233
Jeffrey J. Masters
Health Law, Tort Liability, Regulation
8 Drexel L. Rev. Online 1
Marc D. Esterow
Criminal Law, Illegal Drug Policy
8 Drexel L. Rev. Online 41
Peter Johnsen
Environmental, Land Use Law, Regulation
8 Drexel L. Rev. Online 77
Jesse D. Proctor
Community Policing, Constitutional
7 Drexel L. Rev. 239
Hon. Mark I. Bernstein
Evidence, Federal Courts
7 Drexel L. Rev. 309
Dorothy Duffy and Marrielle B. Van Rossum
Evidence, Medical Malpractice, Tort Liability
7 Drexel L. Rev. 329
Gwen Stern, Andrew Stern, Benjamin Isser
Evidence, Civil Procedure, State Courts
7 Drexel L. Rev. 365
Timothy Stostad
Jurisprudence, Rule of Law
7 Drexel L. Rev. 401
R. George Wright
Technology, Privacy, Foreign Law
7 Drexel L. Rev. 1
Frances C. DeLaurentis
Legal Writing, Pedagogy, Professional Responsibility and Ethics
7 Drexel L. Rev. 39
Robert Uzdavines
Criminal Law, Federal Courts, Immigration
7 Drexel L. Rev. 67
Tal Kastner
Contract Theory, Rhetoric
7 Drexel L. Rev. 127
Kyle E. Gray
Legislative Reform
7 Drexel L. Rev. 163
Emalee G. Popoff
Civil Rights, Trusts and Estates
7 Drexel L. Rev. 195
Suraji R. Wagage
Criminal Law, Family Law, Legislative Reform
7 Drexel L. Rev. Online
Drexel Law Review Online Editors
7 Drexel L. Rev. Online 1
Christopher A. Bailes
Admiralty Law
7 Drexel L. Rev. Online 45
Alexandra D. Rogin
Community Policing, Property Law
6 Drexel L. Rev. 439
Merton C. Bernstein
Proposals that are eventually enacted into law share common elements:an identified need, a proposed remedy, and support from groups with enough common purpose and clout to achieve enactment.The enactment of ERISA did not fit that pattern. ERISA was enacted without any interest group support. Employers surely did not want it; insurers and others in the finance sector did not want it. No union lent early support, although the Auto Workers’ pension guarantee proposal hitch-hiked on the bill that became ERISA. Rather,all stakeholders who engaged in the legislative process did so with reluctance, and all worked to limit ERISA’s curative elements.The Kennedy and Johnson administrations did not push its passage. ERISA became law because the media—principally television network programs—publicized events and aired research that demonstrated that the complicated, private-pension hodgepodge that currently existed fell short of providing reliable retirement income to any but a relatively small group that was much better off than most to begin with.
ERISA, Legal History
6 Drexel L. Rev. 453
Teresa Ghilarducci
In just nine years, from 2011 to 2020, the number of people overage sixty-five will have increased by more than 14 million, from 41.4million to 56 million; in twenty years it will increase to 79.7 million. Between 2011 and 2030, approximately 10,000 Americans will turn sixty-five every day. For older workers near retirement who lost significant portions of their assets in the financial crisis of 2008, the subsequent increase in the equities market did not bring accounts back to target levels. An account with an expected return of 6% annually that loses 25% of its value in one year will need to achieve 41% growth in the following year to meet expected goals.
ERISA
6 Drexel L. Rev. 463
Regina T. Jefferson
I have been involved in pension law and policy for more than fifty years as a private practitioner, as a government official, as a professor, as a board member of the Pension Rights Center, and as an author of more than a dozen articles on the subject. In preparation for the Drexel Law Review Symposium, ERISA at 40: What Were They Thinking?, held on October 25, 2013, I read for the first time in many years my first pension article written in 1976, a surprisingly in-the-weeds discussion, which I called Retirement Security and Tax Equity: An Evaluation of ERISA. According to my introduction, the “article explores the problems which led to ERISA and attempts to grade Congress on its achievement.” I thought reading the article might help me recall what we were thinking in 1967 and 1968 when, as a Treasury staffer, I had a significant role in developing the blueprint for the initial Administration bill.
ERISA
6 Drexel L. Rev. 495
Steven Sass
During the Drexel Law Review Symposium, ERISA at 40: What Were They Thinking? held on October 25, 2013, I served as a moderator on the Symposium panel entitled “Setting the Stage: History Before the Ninety-Third Congress,” which addressed three problem areas in employer pension plans that ERISA covered. The Symposium participants characterized these three areas as “default risk,” “forfeiture risk,” and “agency risk.” My reflections will focus on the first two areas, which received the most attention at the Symposium.
ERISA
6 Drexel L. Rev. 503
Daniel L. Halperin
I have been involved in pension law and policy for more than fifty years as a private practitioner, as a government official, as a professor,as a board member of the Pension Rights Center, and as an author of more than a dozen articles on the subject. In preparation for the Drexel Law Review Symposium, ERISA at 40: What Were They Thinking?, held on October 25, 2013, I read for the first time in many years my first pension article written in 1976, a surprisingly in-the-weeds discussion, which I called Retirement Security and Tax Equity:An Evaluation of ERISA. According to my introduction, the “article explores the problems which led to ERISA and attempts to grade Congress on its achievement.” I thought reading the article might help me recall what we were thinking in 1967 and 1968 when, as a Treasury staffer, I had a significant role in developing the blueprint for the initial Administration bill.
ERISA
6 Drexel L. Rev. 515
Peter J. Wiedenbeck
This Reflection seeks to recover the tax shelter limitation aspect of ERISA. Part I briefly explains the origins of ERISA’s tax controls. Part II surveys ERISA’s accomplishments and limitations in suppressing pension tax shelters. Part III describes later momentous developments to which ERISA pointed the way.
ERISA, Tax, Business and Nonprofit Organizations
6 Drexel L. Rev. 539
Dana M. Muir
My takeaway—I hope a fair one—from the Symposium was that ERISA’s drafters included the fiduciary provisions primarily as a backstop to the statute’s more specific protective requirements. Symposium participants made clear that they did not see the fiduciary provisions as mere surplus.
ERISA, Contract Law, Trusts and Estates
6 Drexel L. Rev. 555
Norman P. Stein
It is easy to understand why the Department wanted to quickly issue guidance on the meaning of fiduciary, and why that guidance placed limits on the conceivable statutory scope. ERISA was a sweeping new statute, and there was no doubt considerable concern in the plan sponsor and service provider communities about what the statute’s fiduciary provisions meant and whom they affected—questions whose answers would impact the costs of maintaining a plan. The early regulations narrowed the definition of fiduciary and helped ease these concerns. But the guidance did not do this cleanly—as I will suggest below, the guidance did not end uncertainty about who is a fiduciary, but it did free the providers of some financial and administrative activities affecting employee benefit plans from the type of probing judicial review of their actions that the statute’s fiduciary standards suggested Congress intended.
ERISA, Regulation
6 Drexel L. Rev. 573
James A. Wooten
This Reflection focuses on ERISA’s regime for administering benefit claims and, in particular,the requirement that a participant or beneficiary generally may not bring a civil action to enforce her benefit rights until she has exhausted her plan’s internal review procedures (the “exhaustion requirement”). Part I explains why many observers perceive the regime for administering benefit claims to be out of step with the purposes behind ERISA’s substantive regulation of pension plans. Part II considers the debate among commentators and courts about whether federal labor law should serve as a guide for designing rules to regulate claims administration, and the panelists’ discussion of this issue. Part III discusses some evidence in ERISA’s text and legislative history that suggests that Congress rejected the idea that participants or beneficiaries should have to satisfy a prerequisite, such as the exhaustion requirement, before filing suit to enforce benefit rights.
ERISA, Regulation
6 Drexel L. Rev. 1
James M. Boland
Constitutional, Political Theory
6 Drexel L. Rev. 47
Ann C. Hodges
Business and Nonprofit Organizations, Pedagogy
6 Drexel L. Rev. 87
Stacy A. Scaldo
Reproductive Rights, Jurisprudence, Federal Courts
6 Drexel L. Rev. 133
Chelsea Biemiller
Contract Law, Family Law
6 Drexel L. Rev. 177
Jennifer L. Ceglinski
Evidence, Technology
6 Drexel L. Rev. 215
Eric Sando
Environmental, Public Health, Patient Safety
5 Drexel L. Rev. 285
Anil Kalhan
Symposium Introduction
5 Drexel L. Rev. 297
Martin S. Flaherty
Globalization and Legal Education, Legal Education Reform, Human Rights
5 Drexel L. Rev. 317
Larry Catá Backer and Bret Stancil
Globalization and Legal Education, Transnational Law
5 Drexel L. Rev. 371
Vasuki Nesiah
Globalization and Legal Education, Transnational Law
5 Drexel L. Rev. 391
Kath Hall
Globalization and Legal Education, Professional Responsibility and Ethics, Transnational Law
5 Drexel L. Rev. 407
Kerstin Carlson
Globalization and Legal Education, Legal Theory, Practical Guidance and Strategy
5 Drexel L. Rev. 423
Sarah H. Paoletti
Globalization and Legal Education, Pedagogy
5 Drexel L. Rev. 479
Holning Lau
Globalization and Legal Education, Legal Education Reform, Transnational Law
5 Drexel L. Rev. 497
Diane Penneys Edelman
Globalization and Legal Education, Legal Writing, Pedagogy
5 Drexel L. Review 1
R. George Wright
Criminal Law, Punishment Theory, Philosophy of Law
5 Drexel L. Review 49
Gary E. Sullivan and Braxton Thrash
UCC, Contract Theory, Contract Law
5 Drexel L. Review 101
Michael Kagan
Immigration, Administrative Law, Appellate Practice
5 Drexel L. Review 165
Miriam R. Albert and Jennifer A. Gundlach
Professional Responsibility and Ethics, Legal Education Reform, Pedagogy
5 Drexel L. Review 207
Christopher Dodson
Employment Law
5 Drexel L. Review 237
Jordan Fischer
Refugee and Asylum Law, National Security, Human Rights
5 Drexel L. Review 265
Rachel A.H. Horton
Health Law
4 Drexel L. Review 297
Todd A. Berger
Practical Guidance and Strategy, Rhetoric, Criminal Law
4 Drexel L. Review 319
George A. Nation III
Jurisprudence, Political Theory, Election Law
4 Drexel L. Review 399
Brent E. Newton
Federal Courts, Legal Writing
4 Drexel L. Review 417
Mark K. Osbeck
Practical Guidance and Strategy, Legal Writing, Pedagogy
4 Drexel L. Review 467
Jill M. Fraley
Legal History, Legal Theory
4 Drexel L. Review 487
Scott Bender
Privacy, Contract Law, Technology
4 Drexel L. Review 523
M. Andrew Campanelli
Civil Procedure, Federal Courts
4 Drexel L. Review 555
Amber Rose Stiles
Patent Law
4 Drexel L. Review 1
Barry R. Furrow
Symposium Introduction
4 Drexel L. Review 7
Robert I. Field
Medical Malpractice, Legal History
4 Drexel L. Review 41
Barry R. Furrow
Medical Malpractice, Tort Liability
4 Drexel L. Review 109
Marc A. Rodwin
Global Perspectives on Medical Liability and Reform, Medical Malpractice, Jurisprudence
4 Drexel L. Review 139
Brigitte Feuillet
Global Perspectives on Medical Liability and Reform, Medical Malpractice, Reproductive Rights
4 Drexel L. Review 151
Phillippe Pierre
Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 165
Dominique Thouvenin
Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 199
Angus Corbett
Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 217
Nathan Cortez
Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 243
Robert B. Leflar
Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 265
Haavi Morreim
Medical Malpractice, Patient Safety
3 Drexel L. Review 373
M. Chris Fabricant
Community Policing, Racial Inequality
3 Drexel L. Review 415
John T. Valauri
Legal Theory
3 Drexel L. Review 457
Lori A. Roberts
Legal Education Reform, Pedagogy
3 Drexel L. Review 485
Gabriel H. Teninbaum
Legal Theory, Rhetoric
3 Drexel L. Review 521
David F. Tavella and Anne Marie Tavella
Separation of Powers, Federal Courts, Contract Theory
3 Drexel L. Review 539
Jeremy Patrick
Practical Guidance and Strategy
3 Drexel L. Review 561
Nick J. Sciullo
National Security, Legal Theory, War Powers
3 Drexel L. Review 583
Stephen M. Lund
Patent Law
3 Drexel L. Review 607
Diana A. Silva
Land Use Law
3 Drexel L. Review 1
Richardson Dilworth
Symposium Introduction
3 Drexel L. Review 11
Gerald E. Frug
Business Improvement Districts, Urban Governance
3 Drexel L. Review 19
Richard Briffault
Business Improvement Districts, Urban Governance
3 Drexel L. Review 35
Nicolle Stelle Garnett
Business Improvement Districts, Urban Governance
3 Drexel L. Review 49
Richard Schragger
Business Improvement Districts, Urban Governance
3 Drexel L. Review 71
Paul Levy
Business Improvement Districts, Urban Governance
3 Drexel L. Review 71
Daniel Hoffman and Lawrence O. Houstoun, Jr.
Business Improvement Districts, Urban Governance
2 Drexel L. Review 361
Anil Kalhan
Symposium Introduction
2 Drexel L. Review 365
Marc Galanter
Foreign Law, Human Rights
2 Drexel L. Review 373
Shylashri Shankar
Foreign Law, Legal Theory
2 Drexel L. Review 427
Elisabeth Wickeri
Foreign Law, Human Rights
2 Drexel L. Review 491
Payal Shah
Foreign Law, Public Health, Reproductive Rights
2 Drexel L. Review 537
Sehla Ashai
Foreign Law, Legal Theory, Human Rights
2 Drexel L. Review 557
Arpan Banerjee
Foreign Law, Human Rights, Legislative Reform
2 Drexel L. Review 1
Keith H. Hirokawa
Legal Education Reform, Pedagogy
2 Drexel L. Review 41
Teri A. McMurtry-Chubb
Legal Writing, Racial Inequality, Legal Theory
2 Drexel L. Review 63
Amelia H. Boss
UCC, Technology, Regulation
2 Drexel L. Review 104
John Stinson
Criminal Procedure
2 Drexel L. Review 152
Blake Denton
Federal Courts, Constitutional, Separation of Powers
2 Drexel L. Review 161
Kate S. Arduini
Discrimination, Employment Law, Disability Law
2 Drexel L. Review 206
Haley J. Conard
Education Law, Constitutional, Children and the Law
2 Drexel L. Review 258
Michael diFilipo
Regulation, Financial Crisis
2 Drexel L. Review 313
John Duong
Constitutional, National Security, Technology
1 Drexel L. Review 216
Nicholas P. Terry
Health Law, Technology, HIPAA
1 Drexel L. Review 261
David A. Hyman
Health Law, Medical Malpractice, Tort Reform
1 Drexel L. Review 273
Scott Burris, Leo Beletsky, Carolyn Castagna, Colin Crowe, Jennie Maura McGlaughlin
Public Health, Illegal Drug Policy
1 Drexel L. Review 341
Wendy K. Mariner, George Annas, Wendy Parmet
Public Health, Rule of Law
1 Drexel L. Review 383
Sallie Thieme Sanford
Health Law, Patient Safety, Vicarious Liability
1 Drexel L. Review 439
Barry R. Furrow
Patient Safety, Remedies, Regulation
1 Drexel L. Review 485
John G. Culhane
Discrimination, Civil Rights
1 Drexel L. Review 512
Jennifer Bard, Thomas W. Mayo, Stacey A. Tovino
Health Law, Pedagogy
1 Drexel L. Review 573
Rachel M. Colancecco
Children and the Law, Family Law
1 Drexel L. Review 1
Hon. Anthony J. Scirica
1 Drexel L. Review 3
Annelise Riles and Takashi Uchida
Pedagogy, Legal Education Reform, Foreign Law
1 Drexel L. Review 52
Louis H. Pollak
Legal Education Reform
1 Drexel L. Review 69
Karl S. Okamoto
Pedagogy, Legal Education Reform, Transactional Law
1 Drexel L. Review 125
Carl Tobias
Amicus Curiae, Appellate Practice, Federal Courts
1 Drexel L. Review 143
Mary Mitchell
Patent Law
1 Drexel L. Review 175
Lindsay A. Wagner
Criminal Law, Punishment Theory, Sexual Misconduct