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15 Drexel L. Rev. 1

Clarifying the Kovel Conundrum

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. The seminal case U.S. v. Kovel attempted to discern a bright-line test, but in the 50-plus years since that decision, courts remain unclear on how best to decide issues of privilege when third parties are involved. This is the Kovel conundrum.

This Article presents a new way of looking at the Kovel doctrine and untangles the conundrum from the ground up. By visualizing the foundational logic of the attorney-client privilege, analyzing courts’ divergent rationales for applying the privilege to expert witnesses, and synthesizing commentators’ proposed solutions, this Article proposes a modern solution to a longstanding issue. Then, armed with a logical framework for analyzing scenarios involving the attorney-client expert privilege, this Article proposes a solution that provides clarification on this evidentiary conundrum.

 Federal Courts, Civil Procedure, Professional Responsibility and Ethics
15 Drexel L. Rev. 47

From COCOM to Wassenaar: Is It Still Our Way Ahead?

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A multilateral partnership and a product of the Cold War, COCOM has long been superseded by the successor body, the Wassenaar Arrangement, supposedly to be a non-ideological alternative endeavoring to prompt its member nations to pursue cases of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. But similar to COCOM, the Wassenaar Arrangement has shortcomings. The Wassenaar Arrangement is merely able to provide a platform of coordination and raise awareness among its member nations of suggested benchmarks and best practices, lacking the authority to enforce compliance. Also, some other noteworthy multilateral export control regimes are currently standing side by side with the Wassenaar Arrangement, equally short of enforcement power, but perhaps having some similarities. Moreover, while the Cold War, in name, only appears to be no longer there, geopolitical tensions around the world show little signs of tapering off at present. Under such conditions, the United Nations has yet to exert an authoritative influence over all United Nations member countries in that very aspect which the Wassenaar Arrangement is concerned with. This Article argues that to ensure that export control compliance and enforcement is available and consistent across the board, conceiving a new United Nations agency at a certain point in time may be necessary. As such, having the Wassenaar Arrangement appropriately subsumed thus enables that new agency to play an exclusively United Nations-mandated, authoritative role in terms of effectuating global export control, and eventually ought to be the way ahead.

 Administrative Law, Foreign Law, International Law, Technology
15 Drexel L. Rev. 121

Note: ERISA Fiduciary Duties and ESG Funds: Creating a Worthy Retirement Future

Annette DeSipio

Environmental, Social, Governance (ESG) funds are investment vehicles that invest in companies that promote one or all three of these goals. ESG funds have been around since the early twentieth century. They gained prominence in the 1970s and have received increased attention since the late 1990s. Today, many investors are interested in ESG funds because of society’s increased focus on climate change, diversity and inclusion, companies’ compliance with regulations, and boards of directors’ composition. However, much controversy surrounds ESG funds as investment options for retirement accounts, which hold a significant portion of U.S. market assets.

Many retirement plan fiduciaries are deterred from providing ESG funds as investment options because of the strict fiduciary standards required by the Employee Retirement Income Security Act of 1974 (ERISA). Under ERISA section 404(a), fiduciaries must act solely in the interest of plan participants and for the exclusive purpose of providing benefits to participants and defraying reasonable administrative expenses (known as the “duty of loyalty”); they must select investments with care, skill, prudence, and diligence, which generally requires a prudent investment analysis (known as the “duty of prudence”); they must diversify investments to minimize risks of accordance with plan documents (known as the “duty to follow plan documents”). Opponents argue that ESG funds provide collateral benefits to third parties instead of financial benefits to plan participants, causing fiduciaries to breach the duty of loyalty. Additionally, opponents argue fiduciaries will breach the duty of prudence because ESG funds either underperform or do not consistently overperform the market. However, advocates argue that ESG funds have evolved from their original exclusionary strategy, and now utilize ESG factors to consider investment risks and returns and strengthen the traditional investment analysis.

This Note argues that Congress should amend the Financial Factors in Selecting Retirement Plan Investments Act to incorporate provisions from the Department of Labor’s proposed rule on ESG funds in retirement plans.

 Business Law, ERISA, Employment Law
15 Drexel L. Rev. 183

Note: Improving the Long-Term Care Landscape for LGBTQ+ Adults Through Home- and Community-Based Care Reform

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. In light of historical and continued discrimination against LGBTQ+ individuals across the country, home- and community-based services present a safer option for LGBTQ+ adults to receive long-term care. However, home- and community-based care is administered through Medicaid waivers that present state-specific barriers to desired care. First, not all states allow legally responsible individuals, such as spouses, to be paid caregivers for their family members. Second, states can implement waiting lists or other restrictions on waiver services that prevent eligible individuals from accessing care. Third, there are no explicit protections in place under federal Medicaid rules to protect LGBTQ+ individuals from discrimination and states have not adopted protective policies.

Establishing home- and community-based services as mandatory benefits under Medicaid would circumvent waiting lists. Allowing all family members to be paid caregivers would increase caregiver options for beneficiaries. Implementing cultural competency trainings would strengthen the caregiver workforce to better meet the needs of LGBTQ+ adults without access to family caregivers. Finally, improving data collection among Medicaid recipients with long-term care needs to gather information on gender and sexual orientation will allow Medicaid programs to better understand and serve their beneficiaries.

 Health Law, LGBT Law, Public Health
15 Drexel L. Rev. 227

Note: “Protecting the Innocent and Identifying the Guilty:” Adopting the Children’s Advocacy Center Forensic Interview Model in Police Interrogations of Juveniles

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. Juveniles are easily persuaded into waiving their Miranda rights, lack a full understanding of what their rights are and how they apply to their current situation, and are more susceptible to the coercive interrogation tactics used by police interrogators. A juvenile’s reward sensitivity, limited future orientation, and decreased decision-making capacity when under stress contributes to the increased likelihood of both true and false confessions in juvenile interrogations. Many states recognize these differences and have enacted laws meant to protect juveniles in police interrogations. Unfortunately, these minor protections are not enough. To truly protect juveniles in police interrogations, an interview model focused on obtaining information, not eliciting a confession, is required. The Children’s Advocacy Center (CAC) Forensic Interview Model, whose focus is on obtaining information, is a superior approach compared to current interrogation practices for interrogations of juveniles because it is developmentally appropriate and eliminates the subtly coercive practices inherent in current police interrogations. Adoption of the CAC Forensic Interview Model would protect juveniles from falsely confessing tocrimes they did not commit and ensure true confessions are obtained ethically and voluntarily.

 Children and the Law, Criminal Law, Criminal Procedure
14 Drexel L. Rev. 819

Fertility Care: Essential or Non-Essential? Lessons From the COVID-19 Pandemic

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. The American Society of Reproductive Medicine led the move to halt infertility care in all but the most extreme cases. This cessation of infertility care, compounded by the unknown duration of this recommendation, added to the already high level of stress and anxiety that fertility patients experience and in cases of advanced maternal age or diminished ovarian reserve potentially resulted in suboptimal clinical outcomes. There was vocal disagreement amongst infertility care providers regarding the urgency and essential nature of fertility care and how this balanced with the pandemic. Ultimately there has been a full resumption of fertility care with a new emphasis on fertility preservation. It should be the goal of all professionals in the field of infertility medicine to establish fertility care as essential within the greater field of medicine to assure the protection of their patients in times of future healthcare crisis.

 Reproductive Rights, COVID-19, Health Law
14 Drexel L. Rev. 859

COVID-19 and the Urgency of Parentage Reform

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. It uses Pennsylvania law—the home state of the Kline School of Law—to illustrate how LGBTQ families can be harmed when parentage laws fail to reflect the reality of family life and form today. While LGBTQ-parent families long have contended with laws that failed to contemplate and protect their families, the COVID-19 pandemic has heightened the challenges and stresses they face. The Article closes by describing and elaborating on one reform model—the Uniform Parentage Act of 2017—available to states to guard against these harms.

Family Law, LGBT Law, COVID-19
14 Drexel L. Rev. 883

Redefining Birth: The Legal History of Midwifery in Colorado and Forging a Path Toward Perinatal Care that Prioritizes Health and Wellness for All

Indra Wood Lusero

A century ago, medicine, in collaboration with the law, redefined birth as a medical event. This Article illustrates the resulting consequences of medicine’s coopting of birth for its own benefit, and explains what opportunities exist to correct these consequences. Although this Article uses the history of childbirth in Colorado to illustrate this issue, the Colorado experience is generally reflective of the rest of the United States. To counteract the negative effects of the medicalization of childbirth, certain core principles must be instilled in legislation aimed to protect the interests of birthing people: midwifery should be independent from medical care and pregnant people must retain the authority to make decisions about their own care. Too often, laws are overly restrictive on midwives as a result of the way medicine and the law define risk, compromising midwifery’s effectiveness, despite evidence of the midwifery model’s benefits. This Article discusses how current legislation is designed, with intersectionality in mind, to reframe the misogyny baked into the current sociopolitical landscape of health care, and the aspects of those pieces of legislation that would be beneficial to retain moving forward. Finally, this Article advocates for structural change that addresses the long-lasting and still-existing effects of racism in the medical and legal fields to create an equitable system of care for all birthing people.

 Health Law, Public Health, Legislative Reform, Reproductive Rights
14 Drexel L. Rev. 543

On Espinoza, Schools, and the Religion Clauses

Mark Strasser

The United States Supreme Court has long had difficulty explicating what the Religion Clauses require, permit, and prohibit. While members of the Court appreciate that the Clauses cannot be interpreted in such a way that one clause requires something that the other clause prohibits, the Justices have offered very different accounts of how to avoid that conflict. The difficulties in reconciling the clauses have been especially evident in the Court’s attempts to determine the kind of state aid that may be offered to parochial schools without violating constitutional guarantees.

Establishment jurisprudence and Free Exercise jurisprudence are both evolving. The Court is now willing to uphold practices under the Establishment Clause that would previously have been found to violate those guarantees and the Court is now finding that practices violate Free Exercise guarantees that previously would have been found permissible or might even have been found not to have implicated those guarantees. One of the Court’s recent forays into these areas—Espinoza v. Montana Department of Revenue—indicates just how wrongheaded the Court’s Religion Clauses jurisprudence has become.

 Constitutional, First Amendment, Federal Courts
14 Drexel L. Rev. 591

Note - Pyramid Schemes and the American Dream: The Many Problems with Multi-Level Marketing and Why New Legislation Is Needed to Constrain the Industry

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. The increasingly predatory industry has developed over years of under-regulation. Practices such as inventory loading, recruitment mandates, top-loaded compensation plans, and the tendency to recruit from particularly vulnerable groups are essential to the success of the MLM model. Each MLM is slightly different, but the foundational flaws are the same and consistently lead to the same financial losses for salespeople. To prevent more people from falling victim to these schemes, this Note proposes legislation to prohibit these practices and thus ban MLM companies. The proposed legislation is based on previous legislation from China banning MLM companies and a 2017 anti-pyramid scheme bill and aims to confront the most unethical qualities presented by MLM.

 Business Law, Legislative Reform, Regulation
14 Drexel L. Rev. 641

Note - It Takes a Village – A Small Step in Philadelphia Child Welfare Reform: Opening Philadelphia Family Court's Dependency Proceedings

Sarah Polacek

Philadelphia has the highest rate of child removal of any major city in the United States. Philadelphia also conducts its hearings in Philadelphia Family Court behind closed doors—with no access to the public or press. This closed-door practice prevents the legal community and the general public from understanding the inherent systemic flaws in the city’s child welfare system and how to best implement effective solutions so that the unnecessarily high rate of child removal is reduced, and children are only removed from their families for necessary safety reasons.

Other states and cities, including Pittsburgh, Pennsylvania, have implemented open family court systems in order to place a check on those in the courtroom responsible for determining whether a child must be removed from his or her home. These jurisdictions recognize that closed family courts can harbor complacency, diminish professional accountability, and foreclose the opportunity to bring attention to systemic failures that undoubtedly occur in child welfare systems across the United States.

Although Philadelphia’s child welfare system is both complex and underfunded, the alarming rates of child removal exacerbate the need to ensure that the number of children within the system should, in fact, be part of the system. Adopting a policy that explicitly allows the public and media to attend dependency hearings in Philadelphia, in recognition of the traditional right of access to other judicial proceedings in a free society, while still accounting for child confidentiality concerns, is one low-cost way to address child protection—a community responsibility.

 Children and the Law, Family Law, State Courts
14 Drexel L. Rev. 745

Note - Out of Tune: Recomposing the Link Between Music and Copyright

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. Within the musical practice, however, the finite constructs of the Western musical tradition set the standards of music theory and traditions of composition, which are the building blocks of this so-called universal language. Because music is so universally appreciated, the copyright system in the United States has been established under the notion that music is universally understood and, therefore, can be analyzed universally. Under the current copyright system, for example, originality is one factor required for a work to be copyrightable. According to the law, originality is binary; either a work is original or it is not. This approach is entirely incompatible with the realities of music. This Note asserts that the originality requirement for copyright protection sets an unattainable standard for musicians, demonstrated by music theory and both historical and contemporary examples. This Note further demonstrates that over-reliance on expert testimony has proven detrimental to a recent string of music copyright infringement cases involving Katy Perry, Marvin Gaye, Pharrell Williams, and other world-famous musicians. Therefore, this Note proposes that in order for copyright law to align more closely with the art it seeks to protect, the United States Copyright Office should establish a Copyright Trial and Appeal Board, wherein administrative law judges with expertise in specific art forms are tasked with determining copyrightable elements in works of authorship within their areas of expertise.

 Copyright Law, Administrative Law, Intellectual Property
14 Drexel L. Rev. 261

Interpreting the Immigration and Nationality Act in Federal Circuit Courts: How the Ninth Circuit Became a Vessel Traveling "At Some Distance From The Main Fleet"

Shannon J. Murphy

Congress created the Immigration and Nationality Act to provide uniformity and equality to our nation’s immigration system. In doing so, Congress afforded the federal circuit courts with vast authority to review and interpret the Immigration and Nationality Act. Unfortunately, the expansive power vested in the federal circuit courts has resulted in an immigration system where relief and protection are inconsistent and unequal.

The purpose of this Article is to highlight the inequities that riddle our immigration system, and to demonstrate that the current appeals process for immigration cases is no longer feasible, nor fair. Through a hypothetical case study, this Article demonstrates that an individual seeking protection in the United States is more likely to obtain relief or protection under the Immigration and Nationality Act if their application is considered under Ninth Circuit precedent, and less likely to succeed if their application is considered under Second Circuit precedent. This Article concludes by proposing a new appellate review process for our immigration system, where a single federal circuit court maintains the authority to consider any decision appealed from the Executive Office for Immigration Review, instead of the federal circuit court sitting in the same jurisdiction as the immigration court where the applicant’s case was initially heard. This proposal, which was previously introduced by the United States Senate in 2006, is now more feasible—and urgently needed—than ever before.

Immigration, Federal Courts, Appellate Practice
14 Drexel L. Rev. 297

Emotional Distress Recovery for Mishandling of Human Remains: A Fifty State Survey

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. This attachment and respect should be reflected in the law of the dead. This Article surveys cases of emotional distress recovery for negligent mishandling of human remains among the fifty states. Three things come out clearly. First, jurisdictions that allow pure emotional distress recovery have coalesced around a small range of options. Second, jurisdictions that do not allow stand-alone emotional distress recovery for mishandling of human remains rely on the familiar arguments supporting the distinction between physical and emotional injury and treating the latter as less legitimate. Third, even among the jurisdictions that allow pure emotional distress recovery, standing is a further limitation to plaintiffs’ recovery. This Article suggests abandoning Restatement (Second) of Torts section 46, in favor of Restatement (Third) of Torts section 47; incorporating the principles of evidence-based law in negligent mishandling of human remains; and the application of moral law as a way to respect the dead.

Remedies, Tort Reform, Tort Liability
14 Drexel L. Rev. 495

Note - "This Meeting is Being Recorded:" 'Zoom'-ing Away from the Third-Party Doctrine

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.As such, society faces an entirely new consideration: How and to what extent is the data collected by videoconferencing platforms protected from government access? And, what control, if any, do we as individuals retain over such data?

The third-party doctrine, which concerns itself with ownership rights of information voluntarily passed to third parties, generally diminishes an individual’s rights and expectations of privacy regarding data collected by third parties. However, the Court incepted the doctrine long before the World Wide Web was released, and modern developments to the doctrine place the expectation of digital privacy on unstable ground. Whatever the case may be, the individual—compelled to use videoconferencing platforms by academic and employment institutions—is not, in any formal sense, voluntarily conveying information to third parties in the manner traditionally understood to implicate the doctrine. Thus, the data collected by videoconferencing platforms should fall outside the scope of the third-party doctrine and should likewise require the government to obtain a warrant to access the data chronicled as a product of institutionally mandated videoconferencing platform use.

COVID-19, Privacy, Constitutional
14 Drexel L. Rev. 405

Note - Where's my Ballot?: Why Congress Should Amend House Bill H.R.1 to Include a National Mandate of Drop Boxes for Federal Elections to Help Protect the Black Vote

Brielle Autumn Brown

Casting a ballot should be easy, but voter suppression continues to be an obstacle for many Black voters. The failure during Reconstruction to address Black suffrage, together with the proliferation of Jim Crow laws, enabled states to abridge the right to vote based on race. The Fifteenth Amendment was intended to eliminate racial restrictions at the polls. Subsequently, the Voting Rights Act of 1965 was passed in a further effort to outlaw discriminatory voting practices; however, in 2013, the Supreme Court effectively gutted the federal government’s oversight of voting procedures. Afterwards, states began enacting restrictive voting measures targeting the most marginalized. COVID-19 introduced new challenges to the electoral process. Disproportionately impacted by the ravages of the pandemic, Black voters were faced with the Hobson’s choice of deciding whether to safeguard their health or assume the risk of exercising their right to vote in person. This Note calls on Congress to amend House Bill H.R.1 to include a national mandate of drop boxes for all federal elections to protect the Black vote.

COVID-19, Election Law, Legislative Reform, Racial Inequality, Voting Rights
14 Drexel L. Rev. 1

A Constitutional History of Debtors' Prisons

Nino C. Monea

In 1776, only two states offered constitutional protections against imprisoning people for debt. Today, forty-one states do. This Article traces that history. It begins by examining how debtors’ prisons operated in early America, and then divides analysis between three phases of state constitutional activity. In so doing, it looks at the arguments that won over states to protect debtors, the state constitutional conventions that enacted protections, and the failure of the federal government to address the issue. The Article concludes by noting that despite the success of adopting constitutional protections, courts have allowed debtors’ prisons to resurge in modern times.

Constitutional, Financial Crisis, Remedies
14 Drexel L. Rev. 69

Modernizing Charitable Fundraising Regulation

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. However, public charities currently face wide variance from state to state with respect to the activity thresholds that trigger charitable solicitation registration. This variance significantly increases the compliance burden placed on under-resourced public charities seeking to conduct an online fundraising campaign. In the current regulatory environment, public charities must spend precious employee time on compliance tasks, as well as valuable organizational funding on attorney and accountant fees, to remain compliant across the states.

To solve this problem, this Article argues that the states should universally adopt a set of clear and consistent charitable solicitation registration standards. Additionally, this Article argues for the adoption of a new Unified Registration Statement, which would allow public charities to register to solicit donations in all states, using one form, one payment, and one online portal. By making these simple changes to the way the states regulate public charities, our society can better encourage mission-driven founders to launch public charities that will impact the lives of those in need, without impeding an individual state’s ability to protect donors from fraudulent fundraising campaigns.

Regulation, Legislative Reform, State Courts, Business and Nonprofit Organizations
14 Drexel L. Rev. 123

Note - Recalibrating the Graham Standard Using an Evidence-Backed, Community-Based Model

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. However, Floyd and Taylor represent only two names of the countless lives lost to police killings each year. Many go unreported and forgotten, save for loved ones and activists who hope to keep their name in the public consciousness. The 2020 protests galvanized the country into reimagining policing, even prompting Congress to push for police reform. However, excessive force jurisprudence has remained relatively stagnant for the past thirty years. Now is the perfect time for the Supreme Court to modernize the excessive force doctrine by incorporating evidence of the full police encounter as well as judging officers’ conduct by their own internal standards. Ultimately, police violence should not be tolerated as a fact of life. Political will, societal rejection, and a willingness by the Supreme Court are needed to end it.

Evidence, Criminal Law, Discrimination, Legislative Reform, Racial Inequality
14 Drexel L. Rev. 165

Note - An Inequitable Means to an Equitable End: Why Current Legal Processes Available to Non-Biological, LGBTQ+ Parents Fail to Live up to Obergefell v. Hodges

Marisa S. Fein

In 2015, the Supreme Court officially recognized same-sex marriage across all fifty states. In the Court’s majority opinion, Justice Kennedy characterized marriage as including a “constellation of benefits” that the state affords to married couples. One such benefit includes the right to start a family and have that family be legally recognized. As same-sex couples necessarily must rely on nontraditional means of procreation, such as gestational surrogacy, in vitro fertilization treatments, and the use of sperm donors, one spouse often has a biological connection to the child while the other spouse does not. For these couples, parental recognition requires either undergoing arduous, expensive, and invasive legal processes to cement both spouses’ full legal parental status, or leaves the couple in a potentially precarious situation where their legal rights as parents may be challenged. This uncertainty is largely rooted in states’ marital presumptions, which decide who is granted automatic legal parenting rights when a child is born within a marital relationship. As a majority of marital presumptions reflect heteronormative assumptions surrounding family, non-biologically same-sex spouses are not afforded automatic recognition of parental rights.

This Note examines three ways in which a non-biologically related same-sex spouse may try to gain parental legal rights: second-parent adoption, stepparent adoption, and parentage judgment. Ultimately, this Note argues that, in order for state law to fully uphold the Court’s holding in Obergefell v. Hodges, states’ application of their marital presumption must not turn on whether or not the parent and child have a biological connection. States can do that by centering their marital presumption around a multi-focal framework that presumes parenthood where a person intends to bring about the birth of their child, functions as that child’s parent, and where the resulting parent-child relationship is such that it is in the best interest of the child to be legally recognized as the child of that parent.

 Constitutional, Discrimination, Family Law, Gender Inequality, LGBT Law
14 Drexel L. Rev. 207

Note - Protecting Consumers and Regulating Data: The Need for Comprehensive Federal Oversight of the Direct-to-Consumer Genetic Testing Industry

Kevin C. Gilligan

The Direct-to-Consumer (DTC) genetic testing market is a massive biotechnology industry. Millions of people take at-home genetic tests for many reasons, ranging from pure curiosity to learning about a person’s genetic predispositions for diseases. This industry is one of many great accomplishments of modern science because it sequences a person’s genome and provides useful results to that person. The cornerstone of the DTC genetic testing industry is data collection. But this is not normal data collection. This is data collection of peoples’ genomes. Genetic information is immutable information, and as such, it must be safeguarded. However, current laws largely do not regulate this industry in regard to securing and sharing genetic data. And self-regulation of an industry dealing with precious data could prove harmful to people who use this industry.

Databases get breached, and information gets stolen. But instead of having one’s credit card number stolen, a person whose data is stolen from a genetic testing database may have his or her entire genome stolen. Even worse, that data in the wrong hands can do unthinkable harm. This Note explains how this industry trades genetic data like any other commodity, and how current laws do not regulate the DTC genetic testing industry to an appropriate extent. It then argues that this industry must be regulated to protect its consumers. This Note proposes a federal law with a two-part solution. First, customers who experience harm as a result of a genetic data breach must be permitted to seek recovery for such harms, regardless of whether the DTC genetic testing industry was negligent. Second, this industry must be regulated by incentivizing appropriate security and deterring subpar security practices.

Regulation, Technology, Remedies
13 Drexel L. Rev. 829

Impactful Interactions: Autism Spectrum Disorder and the Legal System Symposium Foreword

Emily Zimmerman

The symposium—and this resulting issue of the law review—also demonstrate that collaboration is generative. The initial idea for this symposium was inspired by my on-going work with the A.J. Drexel Autism Institute, and we appreciate the contributions of Lindsay Shea and Dylan Cooper of the Institute to the symposium. The members of the Drexel Law Review and, in particular, the Executive Editor of Symposia Evan Poulgrain and Editor-in-Chief Whitney Petrie, along with Associate Editors Kenneth Grozier, Brian Loughnane, Yosef Palanker, and Alexa Tzarnas, did extraordinary work during challenging times to organize the symposium. We also appreciate the support of Kline School of Law Dean Daniel Filler and Associate Dean Deborah Gordon (the law review’s faculty advisor). Mary McGovern, Joseph Walker, and Martin Durst provided invaluable organizational and technical expertise and assistance. Many thanks are due to these and all of the other individuals who worked so hard to put this symposium together and ensure that it ran smoothly. And, of course, many thanks are owed to the panelists and moderators, along with the many people who attended the symposium.

 Disability Law, Legislative Reform, Technology
13 Drexel L. Rev. 841

Defendants With Autism Spectrum Disorder in Criminal Court: A Judges' Toolkit

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. This will allow judges to have impactful and beneficial interactions with defendants, potentially make appropriate procedural and sentencing adjustments before and during the legal process, and better ensure more positive and appropriate legal outcomes for defendants with ASD. First, this Article discusses ways in which judges can identify defendants with ASD in court by recognizing and understanding both distinctive characteristics of offending and courtroom behavior that may be exhibited in cases involving defendants with ASD. Second, recognizing the limited previous research on judges’ understanding of ASD’s legal relevance, this Article provides judges guidance on three aspects of the legal process in which ASD may be forensically significant for defendants: fitness to stand trial, negating criminal elements necessary for criminal liability, and sentencing decisions. Finally, this Article puts forth recommendations for judges in order to improve the legal process for defendants with ASD.

Disability Law, Technology, Criminal Law
13 Drexel L. Rev. 869

Technology as a Civil Right and a Move Toward Disability Justice: Ensuring Digital Access for Disabled Students in the Pandemic

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. Yet despite nearly fifty years of civil rights advocacy and legislative victories, disabled students still face routine denials of access in the classroom, inaccessible pedagogies, and exclusionary technologies. The COVID-19 pandemic has heightened and sharpened disparities in learning and digital access for disabled students of all ages, with the burden falling most heavily on disabled students further marginalized by racism, classism, and other forms of oppression. Disabled students are less likely to have reliable access to web-based technologies, while websites, software, and course tools are often inaccessible to disabled users despite their near ubiquity in the pandemic. This Article explores the opportunities created by and limitations inherent to disability rights laws as a means of bridging the increasing digital divide in education and offers starting points for charting a path forward informed by radical anti-ableism and disability justice movement work.

Disability Law, Education Law, Technology, Civil Rights
13 Drexel L. Rev. 909

Moshoeshoe v. DPP: A Missed Opportunity for Persons with Intellectual and Psychosocial Disabilities in Lesotho?

Dianah Msipa

In 2017, the Constitutional Division of the High Court of Lesotho delivered a landmark judgment in Moshoeshoe v. Director of Public Prosecutions. The court ruled that section 219 of the Criminal Procedure and Evidence Act, which effectively declared persons with intellectual and psychosocial disabilities incompetent to testify in criminal courts, was inconsistent with the right to equality before the law and the right to freedom from discrimination enshrined in the Lesotho Constitution. Consequently, the provision was declared unconstitutional. Although the court arrived at a welcome and correct decision, it missed an opportunity to address the seminal and often contentious rights to legal capacity and access to justice that are inextricably linked to testimonial competence. The court focused on the undesirable outdated and derogatory language used in section 219 to the exclusion of these rights. The court therefore missed the golden opportunity presented by Moshoeshoe to adequately address the rights to legal capacity and access to justice of persons with intellectual and psychosocial disabilities in Lesotho. Using the social model of disability as a conceptual framework, this Article examines the nexus between testimonial competence, legal capacity, and access to justice, which the court neglected to consider in its judgment.

Disability Law, Criminal Law, Criminal Procedure
13 Drexel L. Rev. 945

The Racially Disparate Impacts of Coercive Outpatient Mental Health Treatment: The Case of Assisted Outpatient Treatment in New York State

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. This Article argues that the AOT program has acted to further marginalize and discriminate against New Yorkers of color and recommends several reforms to the program.

Disability Law, Racial Inequality
13 Drexel L. Rev. 961

Medicaid Coverage for Autistic Individuals: Coverage, Gaps, and Research Needs

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. It is the primary means of coverage for specialized services needed by children with autism spectrum disorder, a range of developmental impairments including autism. This coverage is accomplished through legislation that permits the federal government to waive various statutory limits on state flexibility in benefit design. Research focusing primarily on children has found that Medicaid programs play an important role in supporting individuals on the autism spectrum in gaining and maintaining needed services and supporting their families and caregivers. However, there are important differences in the way states structure and implement their Medicaid programs that have not yet been fully cataloged. Moreover, research on enrollment and service use within the Medicaid program as these children age into adulthood is limited. Studies in this area are needed to ensure adequacy and equity in service availability and to guide states on policy and practice to meet the needs of these patients.

Disability Law, Health Law, Regulation
13 Drexel L. Rev. 987

Transfer of Parental Rights: The Impact of Section 615(M) of the Individuals with Disabilities Education Act

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. While some students, parents, and educators may seize the “transfer of rights” as an opportunity for growth and empowerment as students transition into adulthood, for many others it is a consequential crossroads for choosing between risking to close avenues for enforcing students with disabilities’ educational rights in the short term and seeking guardianship orders that may restrict myriad decision-making rights into the future. Worse, the IDEA’s transfer-of-rights requirements are frequently misstated by researchers, judges, and civil society organizations, thereby confusing rather than clarifying parents and students’ choices. This Article surveys the state-level transfer-of-rights rules and guidance that have contributed to raising the stakes of transfer-of-rights considerations. While 50 of 54 jurisdictions surveyed choose to transfer parental rights to adult students as the IDEA permits, we found that only 40% of transfer-of-rights statutes or regulations in these “transfer” jurisdictions comply with IDEA requirements. Also, only 40% of these statutes or regulations establish optional procedures for appointing educational representatives for students considered unable to give informed consent, while fewer recognize guardianship alternatives that effectively avoid parental rights transfers (36%). Only three states, Connecticut, Indiana, and Virginia, have transfer-of-rights regulations that appear to do all three. We also found that state educational agencies’ guidance documents too frequently misinform parents, students, and educators about transfer-of-rights rules (42%) or fail to mention guardianship alternatives (70%). We conclude with commonsense recommendations for how state policymakers, the U.S. Department of Education, and special education adjudicators can intervene to lower the stakes caused by many jurisdictions’ uneven transfer-of-rights rules and guidance.

Disability Law, Health Law, Regulation, Education Law
13 Drexel L. Rev. 581

Zero-Tolerance: The Trump Administration’s Human Rights Violations Against Migrants on the Southern Border

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.

This Article begins with analysis of the Trump Administration’s policies that divided families and detained children in violation of U.S. law. It proceeds to evaluate and criticize these policies under treaties ratified by the United States, conventions it has signed but not ratified, and customary international law. In the name of border enforcement, the Trump Administration’s policies violated the fundamental human rights of migrants and people seeking asylum in the United States, including the right to family life, rights of the child, and rights to be free from ill-treatment and arbitrary detention. The abrupt and often permanent separation of families, indefinite detention of children without proper care, and failure of process in these policies are all stark violations of binding international human rights law.

The Article concludes with a recognition that international institutions and legal mechanisms may not be adequate to compel the Trump Administration to respect international law, so political and electoral responses are vital to ensure that human rights remain at the heart of the American enterprise. It suggests the accord between religious ethical perspectives and human rights principles is valuable to reinforcing popular support for these norms. As the world bears witness to these cruel abuses of human rights, Americans must decide whether and how to hold the government accountable for the inherent dignity of all people within the rule of law.

Constitutional, Human Rights, Immigration, Legislative Reform
13 Drexel L. Rev. 663

The Labor Law that Wasn’t: How the Pennsylvania Supreme Court in the Nineteenth Century Denied Mechanics’ Liens to Wageworkers

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. In the nineteenth century, the Pennsylvania Supreme Court construed the state’s mechanics’ lien laws as providing protection to unpaid contractors and suppliers, but it repeatedly refused to read the legislation as giving any remedy to the unpaid wageworker.

This Article also explores why the court refused to extend mechanics’ liens to wageworkers. After considering various possible explanations, the Article concludes that class bias provides the most plausible explanation. Legal historians have noted various contexts in which class bias led nineteenth-century courts to deny recoveries to workers. The Pennsylvania Supreme Court’s construction of the state’s mechanics’ lien legislation provides another example.

The early judicial construction of mechanics’ liens is not just a matter of historical interest. Pennsylvania’s high court has recently relied on its nineteenth-century precedents in construing mechanics’ lien laws. These historical decisions thus continue to shape the law and deprive workers on building projects of a means of collecting compensation they have earned.

 Labor Law, Legislative Reform
13 Drexel L. Rev. 747

Note - Finding Favor: A Call for Compassionate Discretion in Cases of Battered Mothers Who Fail to Protect

Kaley Gordon

Domestic violence is a complex issue facing millions of families in the United States. The structure of the law (as well as the mechanics of the criminal justice system) frequently penalizes women who are also victims of domestic violence by subjecting them to criminal culpability, along with their abuser, when an abusive partner harms their children. This is because criminal culpability extends to acts of omission on the part of caretakers who observe abuse or have reason to believe that abuse is occurring. As a result, victims become perpetrators when women who experience domestic abuse fail to leave their abusers in time to save their children. Failure to intervene can even result in women being charged with murder for the deaths of their children at the hands of their abuser, even if they did not participate in the acts leading up to death. Yet, women who are experiencing domestic abuse face unique struggles that complicate their ability to leave their abusers or even recognize abuse that may become fatal before it is too late. The law is ill equipped to handle this dilemma, and women are being charged and sentenced along with their abusive partners.

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

Note - The First Amendment in School Libraries: Using Substantial Truth to Protect a Substantial Right

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. The Supreme Court’s plurality standard in Board of Education v. Pico generally prohibits content-based censorship in public schools. However, in distinguishing censorship of content from censorship of factual inaccuracy in ACLU v. Miami-Dade, the Eleventh Circuit opened a route for school boards to bypass the First Amendment when seeking to ban books with which they do not agree. This Note asserts that, to more properly implement the Pico standard as a safeguard for both the right to speech and the right to receive speech, the Court should implement the additional First Amendment doctrine of substantial truth, ensuring stronger protection against content-based censorship.

Constitutional, First Amendment
13 Drexel L. Rev. 321

Genetic Databases and the Future of Medicine: Can Law and Ethics Keep Up? Perspectives and Analysis of a Conference

Robert I. Field, Ethan Dombroski, Mary Kate McDevitt & Whitney A. Petrie

Genetic science and its clinical applications are advancing at an accelerating pace. However, they bring new ethical concerns over privacy along with practical concerns over the use and interpretation of genetic information. A conference held at Drexel University’s Thomas R. Kline School of Law in March 2020 explored the intersection of genetic science, law, and ethics to seek insights across disciplines on ways to balance scientific progress with these concerns. Experts in each of these fields focused on the distinctive benefits and risks of large genomic databases that provide powerful tools for advancing research and treatment but pose growing threats to the privacy of individuals whose genetic information they store. 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. Existing legal guidance and protections are woefully inadequate and in urgent need of updating. Within a week of this conference, COVID-19 was declared a global pandemic by the World Health Organization, and researchers began to explore genetic correlates of disease susceptibility. Should such correlates be identified, their application to treatment and prevention will raise especially sensitive privacy and practical concerns and the need for legal reforms will be become even more acute.

 Health Law, Public Health, Regulation, Technology
13 Drexel L. Rev. 377

Regulating Broker-Dealer Investment Recommendations—Laying the Groundwork for the Next Financial Crisis

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.

More significantly, RBI provides incentives for broker-dealers to hold customer funds in low return cash accounts that can be exploited through so-called “carry” trades. The financial services industry is already restructuring in order to capture the value of such trades, at the expense of retail investors. As was the case during the financial crisis of 2008, those investments will implode during a market meltdown. This will likely cause the failure of many large financial institutions, absent a massive, politically unpalatable government bailout.

RBI will also cause investors to be steered into cookie cutter accounts that will result in a dangerous concentration of investment assets, as occurred with subprime mortgages in the run up to the Financial Crisis of 2008. The liquidation of concentrated assets in a market panic will have a cascading effect that will force market prices into a downward spiral. This will wreak havoc in the financial markets. The coronavirus securities market selloff in March 2020 proved, if proof is needed, that market selloffs are inevitable. The next such event will only be accentuated by the panicked liquidation of RBI induced portfolio concentrations.

 Corporate Law, Transactional Law, Regulation
13 Drexel L. Rev. 449

Note - Modifying Co-Authorship for the Digital Age: Paparazzi Photographs as Joint Works

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.

This Note proposes a modified interpretation of joint work under the Copyright Act of 1976 that would let a photographer retain the exclusive rights to own and transfer her photography while also granting celebrities a right to use the images on social media. This modified application of co-authorship draws inspiration from the incidental use doctrine recognized in the right to publicity.

Strict interpretations of authorship traditionally implemented in copyright law do not always make sense in the digital space. Every day, millions of unlicensed images are uploaded, shared, and re-shared on social media platforms. A modified view of joint work applied to celebrity-paparazzi cases could begin to bridge the vast chasm between the realities of twenty-first century communication and the ideals of copyright protection.

 Copyright Law, Fashion Law, Intellectual Property, Statutory Interpretation, Trademark Law
13 Drexel L. Rev. 489

Note - Trading Public Nuisance for Product Safety: Reviving the Office of Technology Assessment

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. 1

Officer Involved Shooting Investigations Demystified: Slashing Through the Gordian Knot

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.

This Article argues that two fundamental changes to the standard protocol for investigating officer-involved shootings will result in more accurate, just, and efficient investigations. First, the investigations must be conducted by an entirely independent agency, separate from the agency involved in the shooting. Second, the investigation should follow a vertical prosecution model, with prosecutors involved with and directing the investigation (along with an independent agency) from the inception of the investigation. The latter issue has been completely unexplored by the academic community. The Article also describes law enforcement and police union resistance to these proposed changes in the investigative model.

In addition, the Article takes the reader into the heart of officer involved shooting investigations, using actual shootings to describe detailed procedural and tactical issues that must be addressed to improve reliability and public trust outcomes for these investigations. For instance, the simple acts of rendering immediate first aid to an injured civilian and covering up the body of a deceased civilian can have powerful impacts on community trust. Despite massive confusion, already established ethical rules govern when recordings of officer-involved shootings may be publicly released and dictate that one union-affiliated law firm cannot be allowed to represent all of the police officers involved in a shooting. A complex interplay between labor law, psychological issues, and tactical considerations provides the necessary and proper procedures for the crucial interview of police officers involved in a shooting. Many of these issues have been ignored or overlooked by scholars and working prosecutors to date. This Article suggests the optimal procedures for officer-involved shooting investigations using existing agencies and resources, but also sets forth a completely original re-imagining of officer-involved shooting investigations using a fully autonomous agency.

 Criminal Law, Criminal Procedure
13 Drexel L. Rev. 87

The Third Restatement and the Jurisprudential Evolution of Duty: Tracking the "Duty War" in Palsgraf and Beyond (with a Focus on the Influence of H.L.A. Hart)

Timothy Lockwood Kelly

This Article is about the jurisprudential evolution of the concept of duty from the times of Blackstone, Austin, and Holmes, through each of the three Restatements of Torts, and up to the present day. I frame 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). I discuss the jurisprudential history leading up to this reversal by the Restatement, as well as the reception of the third Restatement since publication. I argue that recent critiques of the third Restatement are unpersuasive, but that the third Restatement nonetheless shows little hope of resolving the duty debate. While acknowledging disputes about the third Restatement’s doctrinal merits, I focus more on Professors John Goldberg and Ben Zipursky’s yet-unscrutinized philosophical claim that H.L.A. Hart’s “internal” view of law favors their relational theory of duty and so bolsters the argument against the third Restatement’s social duty theory. I reject that novel argument, explaining that Professors Goldberg and Zipursky misunderstand Hart, whose jurisprudence is in fact no more or less hospitable to either theory of duty. This observation supports my overarching conclusion that the third Restatement, despite its merit, will not be able to convert committed relational duty theorists to the social duty theory and that the debate over duty shows no sign of stopping.

 Jurisprudence, Legal History, Tort Liability
13 Drexel L. Rev. 143

Protecting the Black Crowning Glory: Why Legislation Is Needed To Make Up for Federal Discrimination Statutes' Failure To Protect Black Hair

Nadijah Campbell

The employment process is stressful, requiring applications with multiple essays and interviews where applicants work hard to impress the employers. However, this process is even more stressful for Black people who have to worry about whether their hair will be a barrier to opportunities. 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. Since pre-enslavement times, European colonizers have singled out Black people based on their hair, making hair a clear indication of race, and therefore a hardened barrier when racism is allowed to persist. This Note suggests that courts adopt a definition of race that includes mutable characteristics like hair. This Note also advocates for state and federal legislation to make up for the lack of protection afforded by the courts.

 Discrimination, Employment Law, Racial Inequality
13 Drexel L. Rev. 191

Sovereign Injustice: Why Now Is the Time To Grant Tribal Nations True Autonomy in Criminal Prosecutions

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.

In this way, federal Indian policy creates discrepancies and injustices among Natives by stripping them of their sovereign autonomy. This Note explains how a crime between two Natives taking place on Native land stands at the crossroads of two sovereigns but is ultimately under the authority and discretion of the United States government. It then argues that Congress’s rigid sentencing restrictions on tribal nations prosecuting crimes under the Indian Civil Rights Act interferes with a tribal nation’s guaranteed right to self-determination and thus, must be eliminated under international law. In an effort to preserve this guaranteed right, this Note proposes an overdue amendment to Section 1302(b) of the Indian Civil Rights Act which restricts a tribal court’s ability to hand down a sentence greater than three years irrespective of the crime.

 Civil Rights, Criminal Law, Tribal Justice
13 Drexel L. Rev. 233

Purely Local Tragedies: How Prosecuting Drug-Induced Homicide in Federal Court Exacerbates the Overdose Crisis

Alyssa Mallgrave

The United States is in the midst of an opioid epidemic, which has resulted in resulting hundreds of thousands of overdose deaths. State and local officials are in the best position to enact lifesaving measures. The federal government, however, has largely responded to this crisis through punitive measures, including charging drug users with drug induced homicide.

When someone suffers a fatal overdose, the Controlled Substances Act allows federal prosecutors to charge the individual(s) who delivered the drugs that caused the overdose. This statute imposes a mandatory minimum of twenty years in prison. Although this statute was enacted to penalize high-level drug dealers, many people charged under it are companions of the deceased and oftentimes drug users themselves. Not only is this unjust, but it threatens to further exacerbate the overdose crisis that has devastated so many communities.

This Note argues that because many of these prosecutions arise from incidents that do not involve traditional drug deals, the Commerce Clause does not give the federal government authority to prosecute co-users who share the drugs that ultimately cause an overdose. Furthermore, by charging co-users with drug-induced homicide, federal prosecutors threaten to derail local efforts to mitigate the overdose crisis.

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

Litigating Education: The Quest To End Inequitable Funding in Pennsylvania

Whitney A. Petrie

In 2015, the Washington Post published an article that drew attention to something many Pennsylvanians were already acutely aware of: the quality of the commonwealth’s schools varies drastically from district to district. One main reason for wide funding disparities between the districts is the heavy reliance upon local property tax revenues to fund public schools.

A current lawsuit, William Penn School District v. Pennsylvania Department of Education, is challenging the legislative scheme that apportions state funding to public schools in Pennsylvania. 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. Other solutions will necessitate additional funding to be directed to the neediest populations and districts. Perhaps this is easier said than done, but the time to make effective changes has long since arrived.

 Civil Rights, Education Law, State Courts
12 Drexel L. Review 691

Promoting Journalism as Method

Erin C. Carroll

The marketplace of ideas has been a centerpiece of free speech jurisprudence for a century. According to the marketplace theory, the vigorous competition of ideas, free from government interference, is the surest path to truth. As our metaphorical marketplace has moved online, the competition has never been so heated. We should be drowning in truth. Yet, in reality, truth has perhaps never been more elusive.

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

Free-Speech Formalism Is Not Formal

Stephen M. Feldman

Legal formalism proclaims that cases can be resolved through the logical application of abstract rules or doctrines. Courts supposedly apply formal rules in an apolitical or neutral fashion. The conservative justices on the Supreme Court have increasingly adjudicated First-Amendment claims from a formalist perspective, particularly in cases focused on the democratic process. 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

Platforms, Political Advertising, and Attentional Choice

G. Michael Parsons

In Washington Post v. McManus, the Fourth Circuit invalidated a Maryland law that created disclosure-and-recordkeeping duties for online political ads. According to the court, Maryland’s law violated the First Amendment because it placed these disclosure obligations on the platforms hosting the ads rather than the political actors buying the ads. This risked “manipulating the marketplace of ideas.”

The McManus decision joins a long and unfortunate line of cases that rely upon a vague and functionally meaningless account of the “marketplace of ideas” to invalidate campaign finance regulations. These cases strike down laws for “interfering” with the marketplace of ideas without first explaining what the marketplace of ideas is or exploring how such a market might actually operate.

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

Improvident Prosecutions

Michael D. Cicchini

Litigation has been called “a machine which you go into as a pig and come out of as a sausage.” With regard to modern criminal litigation, however, this life-ruining impact is strictly one-sided: the prosecutor files criminal complaints with reckless abandon and without repercussion or personal cost, while defendants bear the life-altering consequences of the litigation and, in many cases, the resulting convictions.

But prosecuting a felony accusation is not supposed to be that easy and carefree for the government. The preliminary hearing—a pretrial evidentiary hearing to determine probable cause—was designed to serve as a buffer between the government and the citizenry, and “to prevent hasty, malicious, improvident, and oppressive prosecutions.” Unfortunately, in today’s assembly-line approach to criminal law, prosecutors and judges have developed many ways to bypass this procedural safeguard and keep the criminal justice machinery humming along.

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.

After identifying and explaining these and other abuses of the preliminary hearing by using examples from the state of Wisconsin, this Article discusses simple legislative reforms that would prevent such abuse. The Article then analyzes and revises a typical preliminary hearing statute to illustrate the ease with which these reforms could be implemented.

 Criminal Law, Criminal Procedure
12 Drexel Law Review 521

The Lesser of Two Evils: Lowering the Constitutional Amendment Bar to Avoid an Unadaptable Constitution, Encouraged Judicial Activism, and Disrupted Federalism

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.

If Article V is no longer functional, then the constitutional amendment process itself needs to be amended. Drastic as this sounds, it is the lesser of two evils. The alternative—accepting that Article V is dead and the Constitution cannot be amended—will lead to a distorted world in which the Constitution cannot be altered, “constitutional amendments” are ratified through judicial activism, and the balance of federalism is disrupted by the elimination of a crucial check on federal power.

If Article V is still functional, however, it needs to prove it. The ultimate test case to determine whether Article V is functional or a dead letter is an amendment prohibiting the denial of equal protection of the laws based on sex. Although it may seem like there is no need for such an amendment because the Supreme Court has already recognized the Constitution generally prohibits sex discrimination, this protection is still vulnerable. So, attempting to ratify this amendment will serve two important purposes: first, if successful, it will solidify for women the right of equal protection of the laws and make sex classifications the subject of heightened scrutiny; and second, it will test Article V to evaluate whether the constitutional amendment process has become a dead letter, and if so, it should also prompt a consideration of the ensuing implications.

 Constitutional, Civil Rights, Legislative Reform
12 Drexel Law Review 561

Note - Machine Translator Testimony & the Confrontation Clause: Has the Time Come for the Hearsay Rules to Escape from the Stone Age?

Nicole E. Crossey

In a digital-crazed world, new problems inevitably emerge as technology advances and the law struggles to keep pace. A potential problem lurks in the shadows for non-English-speaking people who have contact with the police: the use of machine translators that can either facilitate or impede the ability of non-English-speaking witnesses, suspects, and defendants to understand and exercise their constitutional rights. Many scholars and courts have disagreed whether a non-English-speaking defendant’s translated statements can be used against him or her without an opportunity to cross-examine the translator. Scholars and courts have also wrestled with whether machines are declarants and subject to confrontation. This Note bridges these two unsettled issues of law and focuses on a potential problem that the Federal Rules of Evidence do not address: whether machine translators that translate for non-English-speaking criminal defendants are declarants under the hearsay rules and whether the Confrontation Clause of the Sixth Amendment affords defendants the right to confront this machine-generated testimony. 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

Note - Guilty Until Proven Innocent: The Failure of DNA Evidence

Joseph Goldstein

The manner that law enforcement uses DNA evidence in the United States has solidified a feeling of a dragnet search, whereby law enforcement views the public as guilty of a crime before its commission. In this country we enjoy certain freedoms, liberties, and protections against unwanted government intrusion, and we believe—without knowing any better—that a person is innocent of a crime until proven guilty. The reality, however, suggests otherwise. This Note sheds light on the current fallacy that is the Presumption of Innocence standard in the United States. The cause for concern is multi-faceted, but this Note addresses issues such as new DNA testing regulations, the lack of uniform DNA record and sample expungement when someone is found innocent of a crime, and how the current statutes allow the innocent until proven guilty standard to go the way of the Dodo bird. 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 L. Review 227

From Socrates to Selfies: Legal Education and the Metacognitive Revolution

Jaime Alison Lee

Metacognitive thinking, a methodology for mastering intellectually challenging material, is revolutionizing legal education. Metacognition empowers people to increase their mental capabilities by discovering and correcting flaws in their thinking processes. For decades, legal educators have employed metacognitive strategies in specialized areas of the curriculum. Today, metacognition has the potential to transform legal education curriculum-wide.

Current scholarship is rich, generous, and creative in exploring how metacognition can be used to enrich specific sectors of the law curriculum. What is missing, however, is a holistic examination of how metacognitive theory and practice have developed across these different sectors, with the purpose of improving the theoretical framework and increasing its effectiveness. This Article comprehensively reviews the many facets of the metacognitive revolution, drawing parallels for the first time between experiential and non-experiential pedagogies and further relating them to recent accreditation mandates. It then addresses the likelihood that an important phase of the metacognitive revolution—the mandate to implement formative assessments with meaningful feedback—might be widely but poorly implemented, and thus cause more harm than benefit. To mitigate this problem, the 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

Elevating Physician-Patient Relationships in the Shadow of Metric Mania

Benjamin Sundholm

Today, medical and health institutions devote significant time and resources to documenting, measuring, and reporting various metrics. These metrics are used to improve various aspects of care, from efficiency and quality to safety and access. Unfortunately, too often, medical and health institutions overemphasize metrics that are easily captured but too simplistic. As a result, insufficient attention is devoted to crucial, albeit complex and difficult to measure, facets of care. Physician-patient relationships are among the primary casualties resulting from the widespread penchant for overly simplistic metrics. This Article develops a strategy for improving such 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

Note - How Can You Ban What Doesn’t Exist? Redefining the “Assault Weapon”

Meagan Kelly

The term “assault weapon” has become synonymous with one of the most contentious political debates of our time. As gun politics stands today, there remains little room for compromise and a narrative mired in heavy emotion and staunch traditional principles. But as the debate swirls and deadlocks, the United States continues to experience a trend of violence unique amongst all other developed democratic societies. Yet neither this characteristically American mass violence, nor the continuous political efforts to restrict or expand Second Amendment rights are recent phenomena. Our country has been deeply entrenched in the “assault weapon” debate for more than half of the twenty-first century, and as the natures of societal violence, warfare, and the firearms market at large change, the understanding of the term “assault weapon” does so as well. This Note examines those different understandings of an “assault weapon” and how those conflicting understandings have shaped legislation and, consequently, the resistance to legislation attempting to restrict the controversial weapon. Competing understandings of an “assault weapon” have led to a patchwork system of state-to-state assault weapon bans and a federal ban which not only lacked the political support to avoid expiration in 2004, but also had little overall effect during the decade it was in force. Mass shootings are a pervasive and continuous threat to the fabric of American society and the problem must be addressed explicitly. The right to keep and bear arms will continue to stand protected within our Constitution. But if legislators and voters alike do not recognize the necessity of balancing the interests of life and liberty against those of gun ownership, we will implicitly accept that the Second Amendment is to be protected at the expense of innocent lives. 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

Note - Abused and Confused: A Call for Asylum Law's Treatment of Domestic Violence to Catch Up With the Rest of the American Legal System

Kirsten R. Lewis

For years, domestic violence victims have fled their home countries, seeking asylum in the United States. The governments in the countries from which they ran were either unable or unwilling to control their abusers, leaving no choice but to seek refuge in America. But despite the ability of these women to prove they have been persecuted, they have still struggled to meet the threshold to qualify for asylum; it has remained uncertain whether victims of domestic abuse can fulfill the asylum requirement of demonstrating membership in a particular social group. In 2014, a decision by the Board of Immigration Appeals gave hope that finally this burden on abused victims had been lightened. A fleeing woman would still have to prove her case of persecution and need for asylum, but she would be far more likely to fulfill the particular social group requirement. However, the acting Attorney General in 2018 stepped in to reverse the headway that had been made. Despite some recovery of hope for domestic violence asylum-seekers after a federal court decision, the situation remains precarious and uncertain. 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

Note - Protecting the Least Among Us: Using the Flores Agreement as a Model for an Alternative to Detention for the Mentally Ill in ICE Custody

Rebecca S. Swaintek

Mentally ill migrants are currently being detained in cells where noose-like bedsheets hang from vents and their “mental health treatment” often consists of solitary confinement. Mentally ill adult migrants detained by ICE in the United States do not receive the care their psychological conditions require because ICE facilities are ill-equipped, under-staffed, and unable to handle their unique needs. This Note outlines the current issues faced by this vulnerable population and suggests an alternative to standard detention for mentally ill migrants subject to detention by placing them in an environment conducive to their needs with mental health professionals instead of prison guards, modeled after the shelters used for Unaccompanied Alien Children in the custody of the Office of Refugee Resettlement. Even if the calls for administrative closure of immigration cases of the mentally ill are eventually heeded, as policy moves to provide additional safeguards to this population based on the Franco decision, the reality is that many mentally ill migrants will still be detained at some point throughout their removal procedures. These individuals deserve better care and treatment during their civil detention than ICE can provide.

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

Drug Prices, Dying Patients, and the Pharmaceutical Marketplace: A New Conditional Approval Pathway for Critical Unmet Medical Needs

Robert A. Bohrer

Prescription drugs have been a major topic in the news for much of the past year. There are two issues which appear often: first, the very high prices of new drugs, particularly the "specialty" drugs developed for serious diseases; and second, the time required for FDA approval in relation to the perceived need for earlier access to new therapies for critically ill patients. Much less in the news, but lurking behind both issues, is the need for better information for physicians and patients to use in making decisions about prescribing and taking drugs, and for insurance companies and the government to use to structure their pharmaceutical benefits plans. This Article proposes an approach to accelerated access and drug prices that would generate this 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. I argue that, like parallel track, the FDA could implement the conditional approval proposed here under its existing authority, that this approach would allow critically ill patients wide access to desperately needed drugs, and would also control prices for drugs that have not demonstrated clinical benefit until sufficient information is available about their real safety and efficacy.

 Health Law, Patient Safety, Public Health
12 Drexel Law Review 93

Note - It’s Time to Nullify Pennsylvania’s Nullity Rule: Overruling Thompson v. Peck

Anthony P. Beltrami

When a plaintiff sues someone in Pennsylvania who has already died, she cannot amend her complaint to substitute the decedent’s personal representative as defendant. Her only recourse is to file an entirely new complaint against the personal representative. What if a plaintiff mistakenly sues someone who she does not know has died, and after a court denies her motion to amend her complaint, the statute of limitations for an action against the decedent’s personal representative has expired? Surprisingly, this happens more often than one might think, and the harsh but straightforward answer is that the plaintiff is out of luck. An eighty-four-year-old judge-made rule, known as the “nullity rule,” has the power to subject plaintiffs in Pennsylvania to significant hardship based on a legal fiction—that the original complaint is null and void and therefore cannot be amended. Pennsylvania needs to do away with this arbitrary rule and permit a plaintiff who commences an action against a deceased person to amend her complaint, subject to the rule of civil procedure governing amendment of pleadings. 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

Note - Probation Detainers in Philadelphia: A Due Process Dud

William F. Henderson

Cash bail has drawn significant popular attention as a target for criminal justice reformers, and for good reason: studies continue to demonstrate that negative outcomes are considerably more likely for people who are detained pre-trial. Despite possessing the presumption of innocence—at least theoretically—individuals who can’t afford bail and are detained pre-trial often lose jobs, housing, or even custody of children while awaiting adjudication. Many who are detained pre-trial will plead guilty—even if they are factually innocent, especially to low-level charges—in order to avoid spending months or longer in jail waiting for a trial.

This focus on cash bail reform is undoubtedly a worthy cause. In Philadelphia, as across the rest of the country, an important portion of the people filling the local jails are those accused of crimes who can’t afford bail. But there is also another population of people, facing similar detention and attendant consequences, whose situation has not received quite the same level of attention. The largest portion of Philadelphia’s jail population, by far, is made up of people who are held on a probation detainer. Probation detainers are a legal order that can be imposed when someone violates the terms of their probation; once lodged, an individual is jailed without the possibility of bail and held until their detainer is lifted. While these detainers are supposed to be within the sole purview of judges, in Philadelphia the reality on the ground is that individual probation officers, acting on their own, can have a probationer taken into custody and cause a detainer to be lodged against them.

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

Note - A Tasteful Expansion of the Already Full Plate of Intellectual Property

Leigha Santoro

Determining flavor is generally viewed as a subjective inquiry, and because an individual’s perception of flavor is based on characteristics specific to that individual, it is assumed that there is no general consensus as to what a particular flavor may taste like. In terms of intellectual property, even as recent as November 2018, courts have found that flavor cannot be protected because of its subjective nature. The opinion that flavor is subjective should change because of the development of taste profiles, visualized through spider diagrams. Experts can accurately identify the flavor of a product and map it onto one of these diagrams, providing an objective standard for a product’s flavor. Courts can now use these profiles to characterize flavors in a way that provides them with protection under intellectual property laws. 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

Foreword

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. The keynote speakers were two trailblazing jurists, Justice Richard Goldstone of South Africa and former Attorney General Thelma Aldana of Guatemala. The Symposium was organized around three panels that explored the diverse contexts in which transitional justice occurs, how transitioning societies memorialize past injustices, and the role that foreign courts can play in adjudicating human rights abuses.

Transitional Justice
11 Drexel Law Review 835

Transitional Justice in Practice: The Importance of Context in Confronting Legacies of Mass Abuse

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

Embracing Liminality: Grappling with the Challenges and Opportunities of Practicing Memorialization in Sri Lanka

Radhika Hettiarachchi

In this Article, I will share lessons learned from the Sri Lankan civil society experience of “practicing” memorialization before and after the institutionalization of an official transitional justice framework. This Article is not a detailed analysis of the contextual challenges of implementing a transitional justice framework in Sri Lanka, nor is it an exploration of the transitional justice mechanism, its successes and failures, or its relationship to human rights, reconciliation, peacebuilding, or governance in Sri Lanka. It is also not an exploration of the complexities and challenges of understanding the distinction between “memory initiatives” versus “memorialization” itself, which has complicated and contested meanings depending on, amongst other considerations, the purposes, motives, sequencing, processes, and ownership of those processes. Rather, 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

Hardwiring Accountability for Mass Atrocities

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

Restoring the Rule of Law in Nepal: Can Transitional Justice Deliver without Criminal Justice?

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. Looking at Nepal as a case study, the Article seeks to answer whether transitional justice can succeed in restoring the rule of law in Nepal in the absence of a meaningful criminal justice process. Through a comparative analysis of transitional justice experiences elsewhere, the Article argues that transitional justice cannot succeed in Nepal without a credible and robust criminal justice process that both delivers justice and accountability for victims of past abuses, and signals a commitment on the part of the State and political elites to the rule of law for the future.

In Nepal, transitional justice has thus far failed to move the country closer toward the rule of law and sustainable peace. The culture of impunity that was at the root of the conflict remains firmly in place and continues to act as an impediment to real progress. The political establishment has recently made overtures toward reinvigorating a thus-far unsuccessful transitional justice process that may include criminal accountability measures to address gross human rights abuses committed by both sides during the conflict. This renewed interest presents a critical opportunity to reevaluate the process to date in order to improve its chances for success moving forward.

The success of transitional justice in Nepal is critical not merely for its own future, but for its regional value as well, as a potential roadmap for neighboring countries dealing with their own post-conflict transitional justice and impunity issues. To date, South Asia has decidedly little or no “good practice” examples for combating impunity for serious international crimes or mass atrocities through meaningful accountability processes. Nepal is at a pivotal juncture in its own transitional justice journey and still has an opportunity to serve as the long-awaited “good practice” model for the region.

Finally, scholarship focusing on Asian transitions, and particularly South Asian transitions, is noticeably sparse. There is remarkably little or no in-depth scholarly literature on post-conflict justice and accountability in South Asia. While the international human rights community has documented extensively the alleged atrocities committed in various contexts in South Asia, systematic scholarly analyses of the successes and failures in addressing these crimes are less available. This Article attempts to begin filling this void.

Transitional Justice
11 Drexel Law Review 467

Just Sayin'—How the False Equivalence of Speech with Action Undermines the Freedom of Speech

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.

The Article is in two main parts. First, it presents the basic rationale for a legal system’s treating speech and action differently. It explains that the distinctive concern of the First Amendment is the protection of intellectual activity and demonstrates how the relationship of intellectual activities to the rights of others justifies their special legal status. Second, the Article considers the case for viewing speech and action as more readily intermingled, addressing arguments that, in turn, invoke harm, power, and symbolic speech. On analysis, none of these arguments, I show, vindicates the equation of speech with action.

Finally and more briefly, the Article also considers some of the underlying sources of the conflation of speech with action, sketches the proper resolutions of a few of the recent controversies generated by that conflation, and explains the damage that results from continuing confusion over the speech-action divide. Essentially, when we mis-classify, we mis-protect—we protect actions that should not be protected and we restrict speech that should not be restricted.

 Constitutional, Civil Rights, First Amendment
11 Drexel Law Review 539

Overreaching Its Mandate? Considering the SEC's Authority to Regulate Cryptocurrency Exchanges

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.

This conclusion—that exchanges are not subject to the securities laws—has profound practical implications. The crypto market is worth hundreds of billions of dollars. To avoid SEC jurisdiction, exchanges like Coinbase, Gemini, and Circle have significantly limited the tokens they will trade. If exchanges are not subject to SEC jurisdiction, then the business conducted by these exchanges could increase substantially and immediately.

Contract Law, Transactional Law, Technology
11 Drexel Law Review 597

Note - Not Because It Is Easy: Exploring National Incentives for Commercial Space Exploration Through a Geopolitical Lens

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.

Inspired by the limitless potential of a new frontier, a revolutionary commercial industry has emerged in the United States, despite the uncertain legal landscape. This industry has produced the world’s first reusable rocket, an innovative new engine domestically produced for deep space flight, and is focused on mining mineral-rich asteroids. The federal government has facilitated such accomplishments in a reduced role, and for the first time in history, the fiscal and logistical challenges that have limited our access to space may finally be resolved by the private sector. Unfortunately, the provisions of the nascent international agreements governing space exploration inhibit such progress. This administration asserts to prioritize the United States’ status as the world’s preeminent space exploring nation. Yet to fully unlock the resources awaiting us in space, this government needs to enable a transition from federally sponsored exploration to incentivized, commercial development. Additionally, the detriments of nationalism and private appropriation must be responsibly addressed both domestically and abroad.

This Note argues that such a strategy must involve a strategic extension of civil missions, a legislative overhaul to elucidate the obligations imposed by archaic treaties, and a series of regulatory revisions that eliminate barriers of entry for small entities while enhancing the safety of citizens. Furthermore, by reinventing the National Space Council, we can fortify our policies with bipartisan and international support to mitigate the risks of “space conquest.” This solution leverages the United States’ free-market economy to capitalize on the competitive advantage of space, while preserving the idealistic policy that its wonder remains “for all mankind.”

 *  J.D., 2018, Drexel University Thomas R. Kline School of Law; Member of the Pennsylvania Bar, 2018; Registered Patent Attorney at the Webb Law Firm of Pittsburgh; B.S. Mechanical Engineering, Villanova University; M.S. Mechanical Engineering, Columbia University; M.B.A., Drexel University. Many thanks to Professor Amy Montemarano and the entire membership of the Drexel Law Review for their advice and assistance throughout the writing process. I am especially grateful to my family, particularly my beautiful wife and daughter, for their steadfast support and encouragement.

[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

Note - Do I Look Like I Have an Attitude? How Stereotypes of Black Women on Television Adversely Impact Black Female Defendants Through the Implicit Bias of Jurors

Fanta Freeman

“Do you watch television? What kind of shows do you watch on a weekly basis? Do any of the shows you watch have black female characters? If so, how are the women portrayed?” It is not typical for these questions to be asked during voir dire. Yet these questions may be imperative to identify jurors who may be biased toward black female defendants as a result of their television-watching habits. Although voir dire currently focuses on excluding jurors with blatant, egregious, and explicit biases, it has yet to normalize targeting the implicit biases of jurors, especially biases acquired through television shows.

Every criminal defendant has a constitutional right to a fair and impartial jury. However, juror bias can impinge on a juror’s ability to evaluate a defendant fairly. Research shows there is a connection between stereotypes seen on television and perceptions of people in real life. There is a severe imbalance in how black women are portrayed on television, with the negative portrayals outweighing the positive. Negative stereotypes are continuously perpetuated through the media with little positive representation to counter, leaving viewers susceptible to misinformed beliefs about black women. Considering jurors are selected from the general public, the misconceptions they may have acquired from television about black women could affect their impartiality and adversely impact black female defendants in trials.Realizing the detrimental impact this could have on black female defendants begs the question: should voir dire be refined to target the implicit biases jurors may develop by watching television? Because a black female defendant faces a rare struggle due to the intersectionality of her identity and disposition—being black, female, and a defendant—she has the unique challenge of fighting racism, sexism, and other preconceptions and stereotypes attached to her identity. 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

Note - "Vegas Rule: Jury Deliberation Edition": Should the Sixth Amendment Exception for Alleged Racial Bias in Deliberations Extend to Gender?

Sydney Melillo

Federal Rule of Evidence 606(b) and its jurisprudence generally prohibit jurors from impeaching the validity of their verdicts. This general preclusion of juror testimony, derived from eighteenth-century English common law, aims to protect the public from the inherent danger of dissecting private jury deliberations, which are supposed to be “free and frank discussions.” But should the tradition favoring the secrecy of these deliberations persist if said “free and frank discussions” are tainted with racial animus? Justice Kennedy—writing for the majority in Peña-Rodriguez v. Colorado—recently answered this question in the negative, holding that the Sixth Amendment requires the Rule 606(b) prohibition make way for an inquiry into the validity of a verdict when a juror’s racial animus allegedly motivates an individual juror’s finding of guilt.

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

Note - Places of Public Accommodation: Americans with Disabilities and the Battle for Internet Accessibility

Christopher Mullen

Despite the enactment of the Civil Rights Act of 1964, today many Americans still lack equal rights. This includes the disabled community, which totals 56.7 million people. Although the passage of the Americans with Disabilities Act of 1990 was a step in the right direction for disabled Americans, many people with disabilities are left in the dark when it comes to internet accessibility. Title III of the ADA specifically provides for equal access and enjoyment of goods and services offered to the public. 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

Note - Arming America's Most Dangerous Abusers: How Domestic Violence Laws Have Failed the LGBTQIA Community

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. Beginning with the history of domestic violence laws, this Note will track the growth of domestic violence regulations and resources, up through the landmark case of Obergefell v. Hodges, which equalized access to resources for same-sex victims across most forums, but unfortunately stood as a stalling point for same-sex equality in places where the decisions of legislatures are rooted in ignorance or homophobia. By analyzing the resources generally accessible to opposite-sex domestic violence victims, this Note argues that these resources must be equally accessible to same-sex victims of domestic violence on public policy, equal protection, and public health grounds.

 Civil Rights, Family Law, LGBT Law
11 Drexel Law Review 1

Unbundling Employment: Flexible Benefits for the Gig Economy

Seth C. Oranburg

Federal labor law requires employers to give employees a rigid bundle of benefits, including the right to unionize, unemployment insurance, worker’s compensation insurance, health insurance, family medical leave, and more. These benefits are not free—benefits cost about one-third of wages—and someone must pay for them. Which of these benefits are worth their cost? This Article takes a theoretical approach to that problem and proposes a flexible benefits solution.

Labor law developed under a traditional model of work: long-term employees depended on a single employer to engage in goods-producing work. Few people work that way today. Instead, modern workers are increasingly using multiple technology platforms (such as Uber, Lyft, TaskRabbit, Amazon Flex, DoorDash, Handy, Moonlighting, FLEXABLE, PeoplePerHour, Rover, Snagajob, TaskEasy, Upwork, and many more) to provide short-term service-producing work. Labor laws are a bad fit for this “gig economy.” New legal paradigms are needed.

The rigid labor law classification of all workers as either “employees” (who get the entire bundle of benefits) or “independent contractors” (who get none) has led to many lawsuits attempting to redefine who is an “employee” in the gig economy. This issue grows larger as more than one-fifth of the workforce is now categorized as an independent contractor. Ironically, the requirement to provide a rigid bundle of benefits to employees has resulted in fewer workers receiving any benefits at all.

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

International Law and the Application of the Unwilling or Unable Test in the Syrian Conflict

Dr. Waseem Ahmad Qureshi

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

The Non-transferability of Super Voting Power: Analyzing the “Conversion Feature” in Dual-class Technology Firms

Clara Hochleitner

Snap Inc.’s IPO in 2017 is one recent example of a U.S. corporation going public in the footsteps of Alphabet and, to a certain extent, Facebook with different classes of common stock, including non-voting as well as super voting stock. Dual-class structures are very controversial, as demonstrated by the recent decision not to list dual-class companies in major stock indexes, such as the S&P 500. On the other hand, competition among stock exchanges around the world has recently led Hong Kong and Singapore to revisit their listing requirements in order to attract more innovative technology firms.

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

Beyond the “Practice Ready” Buzz: Sifting through the Disruption of the Legal Industry to Divine the Skills Needed by New Attorneys

Jason G. Dykstra

A heightened velocity of change enveloped the legal profession over the last two decades. From big law to rural practitioners, the traditional law firm model proved ripe for disruption. This disruption is fueled by several discrete changes in how legal services are provided, including technological advances that allow for the automation of many routine tasks and the disaggregation of legal services; enhanced client sophistication and cost-consciousness; global competition from offshoring routine legal services; the rise of the domestic gig economy, creating a new wave of home-shoring legal services; and competition from non-traditional legal services providers. In the face of declining revenues, rapid systemic changes, and burgeoning competition from near and far, law firms have shuttered many of the traditional mentorship opportunities for new attorneys. Firms have also curtailed many once-billable activities that formerly served as profitable training grounds for new associates at law firms.

Given this new norm, students must emerge from law school both ready for practice and prepared to immediately generate revenue, whether they ply their practice-ready skills as contract attorneys, associates, in-house counsel, or solo practitioners. 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

Relationship Problems: Pendent Personal Jurisdiction after Bristol-myers Squibb

Louis J. Capozzi III

The Supreme Court’s recent decision in Bristol-Myers Squibb Co. v. Superior Court of California provides an opportunity to reexamine pendent personal jurisdiction in the federal courts. There are two types of pendent personal jurisdiction. The first form, embraced by federal courts since 1957, is pendent claim personal jurisdiction: when a court has personal jurisdiction over a defendant as to one anchor claim, it can exercise personal jurisdiction with respect to related claims that it could not adjudicate in the anchor claim’s absence. This type is especially common where courts have personal jurisdiction over the defendant because of a statute with a nationwide service of process provision, like the Securities Exchange Act of 1934. The second type is new. After Bristol-Myers, some courts have maintained pendent party personal jurisdiction: where a court has specific personal jurisdiction over the defendant as to a particular claim by one plaintiff, it can exercise personal jurisdiction as to similar claims brought by different plaintiffs.

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

Note - Fourth Amendment for Sale: How Income and Living in a Multi-unit Dwelling Impact Your Fourth Amendment Rights

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

Note - Fashion 2.0: It’s Time for the Fashion Industry to Get Better-suited, Custom-tailored Legal Protection

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

Note - Disaster, Deceit, and Treasure: Why the UNCLOS Resolution on Possession of Salvaged Wrecks Is Doing More Harm Than Good

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

Note - In Guns We Entrust: Targeting Negligent Firearms Distribution

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

Note - Oh, the Places You’ll Go!—Prison: How False Evidence in Juvenile Interrogations Unconstitutionally Coerces False Confessions

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

Note - Sleeping with the Devil: How Revenge Porn Ruins Lives and What States Can Do to Help

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

Note - The Burden of Being a Landlord: The Truth Behind Delaware’s Source of Income Discrimination Laws

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

Foreword

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

Reforming Policing

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

The Implicit Bias of Implicit Bias Theory

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

Traces of the Slave Patrol: Notes on Breed-Specific Legislation

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

Note - A Proposed Solution to the Resentencing of Juvenile Lifers in Pennsylvania Post Montgomery

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

Paying for Failure: Subsidizing Schools, Not Education

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

Competing Ideologies at the Formation of the Federal Class Action Rule: Legal Process Versus Legal Liberalism

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

Note - And They Sayin’ It’s Because of the Internet: Applying the De Minimis Exception to Digital Sound Sampling in the Wake of VMG Salsoul, LLC v. Ciccone

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

Note - Granting Samoans American Citizenship While Protecting Samoan Land and Culture

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

Note - A Lift on the Statutory Prohibitions Against HIV-Positive Organ Donation

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

Emergency Detention and Involuntary Hospitalization: Assessing the Front End of the Civil Commitment Process

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. Most people who require mental health care, including patients who have severe mental illnesses, now receive treatment in outpatient set-tings. Inpatient care is often limited to brief stays of a week or less. Some jurisdictions have adjusted the statutes governing the initiation of involuntary hospitalization to reflect these clinical changes. These states may require some form of judicial oversight within the first hours or days of an individual’s detention, and some also seek to connect patients in distress to community-based screening mechanisms to facilitate the diversion of eligible individuals to suitable alternatives to hospitalization and the civil commitment process. Other jurisdictions, however, have not made the sort of fundamental adjustments necessary to reflect the changed role of psychiatric hospitalization. In jurisdictions that have not adjusted their procedural timelines, it is possible for statutorily mandated adjudication to be pushed well beyond the seven- to ten-day average of most psychiatric hospitalizations, thereby rendering these formal legal protections ineffective.
10 Drexel L. Review 69

From the Dark Tower: Unbridled Civil Asset Forfeiture

Vanita Saleema Snow

The Black Lives Matter movement reinforces that race dominates all aspects of the judicial system. Police officers are significantly more likely to stop African Americans than Whites. Even when a stop or arrest is unwarranted, law enforcement agencies can still profit from the property seized under the guise of forfeiture statutes. Various state and federal civil asset forfeiture statutes legitimize law enforcement seizing cash, homes, cars, and office equipment—all with nominal due process protections. Despite evidence of discriminatory police practices, the U.S. Supreme Court deems these forfeiture practices constitutional.

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.

“We shall not always plant while others reap The golden increment of bursting fruit . . . .”
10 Drexel L. Review 127

Moving Beyond the Federal Funding Hook: Management-based Regulation in Biomedical Research

Gabrielle Goldstein

After World War II, the federal government established specific sets of regulations to oversee the conduct of biomedical research. These regulations tended to take the form of management-based regulations, and were generally imposed as conditions of federal funding. 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

Big-Ag Exceptionalism: Ending the Special Protection of the Agricultural Industry

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. While other articles have explored the First Amendment implications of laws known as “ag-gag,” and other specific aspects of the harms created by factory farming, this Article serves as a comprehensive overview of the exceptional protection afforded to the industry across various areas of law. This Article joins the important discussion of the need to recognize the deficiencies in and revolutionize the industrialized production of animals in the United States. The first steps towards actualizing this revolution are removing the industry from its sphere of legal protection, using the law to hold the industry accountable for its harm, and encouraging a change in industry practices through a shift in law.
10 Drexel L. Review 239

Note - Fixing United States Elections: Increasing Voter Turnout and Ensuring Representative Democracy

Ryan J. Silver

In the United States, the Democrats and the Republicans are the dominant political parties. When Election Day comes around, voters must choose between one of these parties. Under the first-past-the-post voting system, which nearly all states use, the winner typically has the support of less than a majority of voters. This dearth in viable choices and winner-take-all voting method leaves many voters feeling dejected. They feel that their votes do not matter and that their voices are not being heard. As a result, voter turnout decreases and, consequently, democracy suffers. When this happens, the United States ceases to be a truly representative democracy, and many voters are left with their fundamental rights to vote and associate abridged. Therefore, 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

Note - You Don’t Know What’s in Your Shampoo, and Neither Does the FDA: A Call for Change

Brittany Stepp

American consumers seldom contemplate whether the ingredients in their shampoo or other personal care products are poisoning them. Most erroneously believe some government entity, such as the Food and Drug Administration (FDA), regulates the ingredients these products may contain, and thus assume they are safe. The alarming reality is that the FDA lacks the authority to regulate ingredients or issue an independent recall. To date, all modern congressional attempts to effectively regulate our exposure to toxic chemical ingredients have failed. And existing legislation, passed in 1938, does little to address modern manufacturing trends. While implementing new regulations may be unpopular in the United States’ current political climate, toxic exposure to these ingredients knows no political affiliation. And if the function of government is not at its very core to protect public welfare—then what is? Pending legislation, which has received bipartisan support, would grant the FDA authority to regulate permissible ingredients, conduct limited pre-market surveillance of ingredients, and issue an independent recall.

This analysis, however, goes beyond the need for new regulations. 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. For the first time since 1938, Congress must take action to protect American consumers from the hazardous chemical exposure that occurs during a seemingly safe part of their daily routines.
9 Drexel L. Review 261

Revisiting the 1996 Experiment in Comprehensive Immigration Severity in The Age Of Trump

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

Backlash, Big Stakes, and Bad Laws: How the Right Went for Broke and the Left Fought Back in the Fight Over the 1996 Immigration Laws

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. Further, this Article discusses some of the ways in which immigration advocates sought to respond to that backlash, sometimes controversially. Finally, the Article considers lessons to be learned for contemporary discussions over immigration reform, highlighting the changing political landscape and available paths through which advocates might successfully achieve fair and meaningful immigration reform.

 Revisiting 1996 Immigration laws
9 Drexel L. Review 297

The 1996 Immigration Laws Come of Age

Jennifer M. Chacón

Twenty-one years ago, in direct response to an attack perpetrated by Timothy McVeigh, a U.S. citizen and anti-government terrorist, Congress perversely enacted a set of punitive laws aimed not at white nationalists, but at immigrants. These 1996 laws generated three important shifts in immigration law and policy by radically expanding grounds for deportability while shrinking paths to deportation relief, creating a substantial role for sub-federal governmental entities in immigration investigation and enforcement, and rendering lawful permanent resident status more precarious. Simultaneously, Congress prompted the ad hoc creation of a host of liminal legal statuses bestowed by Executive Branch officials seeking to moderate the harsh effects of the laws. The 1996 laws significantly expanded the reach of the carceral state, particularly with respect to foreign nationals, while simultaneously kneecapping federal and state social support for immigrants. In short, the legal regime established in 1996 ushered in a new era of immigration severity and the resulting enforcement policies soon followed the path laid out in the misguided criminal enforcement policies of the wars on crime and drugs. Like the sweeping crime bills that had preceded them, the 1996 laws generated a highly racialized system of enforcement purportedly justified by crime control imperatives. Like those earlier laws, the 1996 laws have had little measurable impact on public safety, even as they have normalized vast systems of carceral control over immigrant communities. By systemically promoting a narrative that equated immigrants and crime, these laws laid the groundwork for the ultimate electoral triumph of Donald J. Trump in the presidential election of 2016.

 Revisiting 1996 Immigration laws
9 Drexel L. Review 323

Zone of Nondeference: Chevron and Deportation for a Crime

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. The zone of nondeference includes not only statutes like the aggravated felony provision that have both civil and criminal application, but all removal grounds premised on a crime. The animating principles of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. as well as the rationales behind both the ban on deference to criminal prosecutors and the criminal and immigration rules of lenity all support the conclusion that courts should not defer to agency interpretations of crime-based removal grounds.

Revisiting 1996 Immigration laws
9 Drexel L. Review 353

Barring Survivors of Domestic Violence from Food Security: The Unintended Consequences of 1996 Welfare and Immigration Reform

Claire R. Thomas and Ernie Collette

During the 1990s, Congress amended the Immigration and Nationality Act (“INA”) to create forms of immigration relief for previously neglected vulnerable groups. One such group—survivors of domestic violence—was aided through the Violence Against Women Act (“VAWA”), which amended the INA to allow abused spouses, children, and parents of U.S. citizens or lawful permanent residents to self-petition for family-based immigration benefits without the abuser’s knowledge. Both abused female and male spouses are able to receive immigration benefits under VAWA, as well as spouses in same-sex marriages.

Despite protections in immigration law for survivors of domestic violence, two other acts—the Professional Responsibility and Work Opportunity Reconciliation Act (“PWORA”) and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”)—which also passed in the 1990s fundamentally changed immigration policy and made it more difficult for members of these vulnerable groups to access public benefits.

This Article will focus on the “unintended consequences” that both of these Acts created by excluding vulnerable groups from access to the Supplemental Nutrition Assistance Program (“SNAP”). 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

The Future Relief of Immigration Law

Jill E. Family

Immigration law is in need of relief. Among the many problems affecting immigration law is the lack of respite from removal. The removal grounds—the characteristics and acts that render someone removable from the United States—are extremely broad and rigid. The only available penalty is removal. There is little proportionality in immigration law and qualifying for respite once one is determined to be removable is very difficult. 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. The current state of relief from removal helps to understand the conflicting signals of immigration law, the dysfunction of the immigration adjudication system, and the role of sovereignty in immigration law. This Article is a part of a symposium on the twentieth anniversary of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

 Revisiting 1996 Immigration laws
9 Drexel L. Review 421

More Than One Achilles’ Heel: Exploring the Weaknesses of SIJS’s Protection of Abused, Neglected, and Abandoned Immigrant Youth

Michelle Anne Paznokas

For the past few decades, undocumented children have arrived at the United States border in growing numbers. While many have been eligible for asylum and other forms of legal status, those fleeing parental violence and neglect have fallen into a gaping hole in our immigration system’s options for relief. Therefore, in 1990, Congress created “Special Immigrant Juvenile Status”—or “SIJS”—to provide a pathway to Lawful Permanent Residence for children who have been abused, abandoned, or neglected by one or both of their biological parents. While the federal government typically holds the exclusive power to rule on immigration-related matters, SIJS is unique. An SIJS applicant must first attend state court and request the judge make special “child welfare findings” to support her application. A federal agency then reviews the state court’s findings and decides whether to grant or deny the petition. Unfortunately, many state court judges, ill-informed and confused about their role in the process as well as what factors to consider when making their “best interests” determinations, are reluctant to make findings in favor of SIJS applicants. Some judges rule on the merits of the application—which is the federal government’s role—instead of limiting their considerations to what is in the child’s best interest—which is their actual role. In effect, the success of an SIJS applicant depends not on the merits of her claim, but rather on the jurisdiction she happens to land in. This produces inequitable results and derails Congress’s intent in creating the statute. This Note suggests the 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

Beware of Wearables: Protecting Privacy in a Data-collecting World

Jessica Kitain

Wearable devices collect an unprecedented amount of information from the most private facet of our lives—our bodies. As the technology grows, so too do concerns about protecting the privacy of the massive amounts of data collected. 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. Incorporating these fundamental principles will raise the privacy bar through industry standards and protect against potential onerous con-sequences in a global industry with rapidly evolving regulation.

 Privacy, Technology
9 Drexel L. Review Online 31

Note - Too Much of a Stretch: Why Acceptance of Felony Guilty Pleas by Federal Magistrates Defies the Intent of Congress and Erodes the Rights of the Accused Regardless of Consent

Steven J. Maguire

In 1968, Congress passed the Federal Magistrates Act, creating what would eventually be named the Office of United States Magistrate. This came in response to persistent calls for improvements in the operating efficiency of the federal courts. Through a series of statutory amendments and court decisions, the duties performed by magistrates since the Act’s passage have gradually expanded. In particular, courts, including the United States Supreme Court, have granted additional powers to magistrates through permissive interpretations of the statute’s “additional duties” clause. De-spite statutory language and legislative history placing significant restrictions on the duties that magistrates can perform in felony cases, courts have given approval to magistrates handling certain tasks, e.g. voir dire, in felony matters. 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. In examining the origins of the magistrate position, the Act’s legislative history, the statutory language, Supreme Court precedent, and a recent decision by the Seventh Circuit, 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

Note - Like It or Not, You’re Fracked: Why State Preemption of Municipal Bans Are Unjustified in the Fracking Context

Benjamin L. McCready

Hydraulic fracturing or “fracking,” a process of removing embedded oil or natural gas from rock, has greatly increased since the early ‘90s when horizontal drilling made previously economically inaccessible fossil fuels a profitable resource. As has been true for some time, fossil fuels mean big profits. The effects of these profits have been felt across the country—fracking is responsible for lower gas prices and drilling is taking place in regions that were previously untapped. But these profits do not come without a price—fossil fuel extraction also means big environmental concerns. While oil companies minimize or deny the environmental effects of fracking, water and air contamination, health effects, and the impending threat of climate change are all difficult concerns to ignore. Concerned about these dangers, municipalities across the country have enacted ordinances banning fracking within their borders. In response, statutes that preempt these bans, and thereby require towns to permit fracking within their borders, have emerged as a recent trend in state-level legislation.

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. This Note concludes by establishing that, while the prevailing theories tend to support state regulation of the technical aspects of fracking, these theories in no way support state preemption of local bans based on traditional land use considerations. Specifically, municipalities should be able to ban fracking when the decision is based on how it will affect the character and nature of a town. For example, a municipality that depends on tourism arising from its pristine natural resources, such as trout streams and forests, should not be compelled by a state-level law to permit an activity that could put its resources and the local economy in jeopardy.

 Environmental, Land Use Law
9 Drexel Law Review 1

How Not to Manage a Common Benefit Fund: Allocating Attorneys’ Fees in Vioxx Litigation

Charles L. Becker, Shanin Specter, and Thomas R. Kline

Kline & Specter, P.C. was significantly involved in the multidistrict Vioxx litigation and the resulting disputes concerning the allocation of common benefit fees among the plaintiffs’ counsel. Based on this experience, the authors discuss how the allocation of fees in Vioxx provides lessons in how not to manage a common benefit fund. This Article first reviews the Vioxx litigation and the basic principles of common benefit fee allocation, including the lodestar approach. This Article then discusses how the Vioxx Fee Allocation Committee abandoned the lodestar approach in favor of a “point” system through which insiders sought to award themselves a lion’s share of the common benefit fund. 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. It concludes that Multidistrict Litigation judges should closely supervise the actions of court-appointed counsel to make sure that decisions around the size and distribution of common-benefit funds are transparent, jurisprudentially sound, and fundamentally fair.

 Practical Guidance and Strategy
9 Drexel Law Review 43

The Procreative Power of Dignity: Dignity’s Evolution in the Victims’ Rights Movement

Mary Margaret Giannini

A common theme throughout victims’ rights laws is that crime victims should be treated with dignity and respect. This goal is intuitive and meets very few objections. However, defining the specific scope of a victim’s dignity rights and the role that dignity plays within victims’ rights jurisprudence remains elusive. Some courts treat dignity as merely hortatory language with no enforcement power, while others characterize dignity as a background norm to help give deeper meaning to other more specific victims’ rights. Other courts treat the statutory and state constitutional invocations of victim dignity as a substantive right, which in and of itself, allows for the identification and creation of broader victims’ rights. This Article charts how the former two approaches mirror broader legal discussions regarding how the concept of dignity undergirds constitutional rights. In the constitutional law context, dignity appropriately operates as a background value because it is not specifically codified in the Constitution: it is an unspoken value that helps give meaning and context to other specifically enumerated rights. Conversely, in many victims’ rights laws, dignity has been elevated to a spoken value through its explicit codification in state constitutions and state and federal statutes. In these instances, courts should not limit dignity to a purely background interpretive role. Rather, 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

(Un?)Lawful Religious Discrimination

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. For example, a Catholic high school may refuse to hire any non-Catholics. Or, that same high school may fire an unwed pregnant mother. But what happens when the discrimination constitutes both religious and sex discrimination?

The First Amendment prohibits courts from delving too carefully into religious institutions’ policies to determine whether the discrimination constitutes sex or religious discrimination. But there has to be some inquiry, or else it risks violating the Establishment Clause by granting preferential treatment to religious institutions. This Article explores those questions and offers some solutions for courts to evaluate these types of mixed claims.

 Employment Law, Discrimination
9 Drexel Law Review 129

Note: Considering Cultural Communities in Contract Interpretation

Alexandra Buckingham

The art of contract interpretation involves determining the meaning of an agreement. Often, courts must determine whether a particular term is reasonably susceptible to more than one meaning, and if so, they engage in the process of disambiguating the term. This process involves a subtle dance between the traditional and the modern approaches to contract interpretation: the former looking merely to the “four corners” of the contract and the latter considering extrinsic evidence to establish the intent of the parties. When encountering dissimilar cultural influences in common-law contract ambiguities, the courts apply an objective, “reasonable person” standard, which inevitably dilutes cultural variance into a westernized and often short-sighted contract interpretation. After advocating for a “modern” jurisdictional approach to contract interpretation, this Note will argue that guidelines within both the Uniform Commercial Code (UCC) and the Contracts for the International Sale of Goods (CISG) can provide a salient approach for introducing cultural evidence to tackle cultural conflicts arising during contract interpretation. 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. This method of cultural contract interpretation provides the greatest opportunity to recognize cultural conflicts within ambiguous terms and thus avoids blindly engaging in cultural compulsion.

 Contract Theory, Legal Theory
9 Drexel Law Review 161

Note - Achieving Transparency: Use of Certification Marks to Clean Up the Fashion Industry’s Supply Chains

Lisa Bollinger Gehman

Shopping malls in the United States are filled with fashion apparel and accessories, attracting millions of consumers who spend billions of dollars each year. Around the world, in third world countries like Indonesia and Bangladesh, there are millions of women and children toiling in dangerous garment factories, for twenty-five cents an hour, trying to fulfill massive orders for “America.” Retailers and manufacturers should increase their use of certification marks on the labeling of their products. The corporate action required to meet these rigorous standards of certification marks used to label products will help eradicate labor problems and create transparency in the supply chains.

The use of trademark law to help solve international human rights violations is not a topic covered extensively in scholarly writing. Child labor and sweatshops are problems that have existed for more than a hundred years. There are many articles on the causes of child labor and sweatshops, but the search for a feasible and effective solution continues. The United States is a first world country, yet because the fashion industry contracts with factories that use child labor and sweatshops, it remains one of the top violators of international labor standards.

This Note proffers an effective solution that aims at the heart of these companies: their brand, which is one of their most valuable assets, and their customers, whose perception of the brand largely determines that value. The use of certification marks—which are established and enforced by a third-party organization—on apparel to certify the conditions under which the product was made would improve the lives and communities of factory workers, and provide transparency to consumers. 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

Note - Big Brother is Watching at Country Meadows: A New Theory of Surveillance to Protect Our Elders with Dementia

Emily Hart

More than 50% of residents in nursing facilities1 have some form of dementia2 or cognitive impairment. For the past thirty years, the federal nursing home regulatory scheme has suffered from being predominantly self-regulating and self-reporting. Recommendations for reforms have focused on increased surveillance of nursing home staff and residents without addressing the need to tailor nursing home requirements or quality of care metrics to the growing population of residents with dementia. In light of the growing evidence that a “person-centered care” approach best addresses the day-to-day challenges of dementia, federal policy should blend person-centered care with the “surveillance quo.”3 Other recommendations for dementia reform have built upon the nursing home culture of surveillance. Some of these recommendations include decreasing the use of anti-psychotic medications in residents with dementia, installing video cameras (“granny cams”) in dementia units, and increasing reporting requirements and the frequency of survey visits. Meanwhile, federal policy has been slow to adopt a person-centered care approach because of the approach’s subjective nature and tension with a medicalized environment. Proponents of person-centered care dementia reform have failed to acknowledge that the approach must co-exist with the surveillance quo, at least during its initial acceptance and adoption by federally funded nursing facilities.

Although the Centers for Medicare and Medicaid Services (“CMS”) has acknowledged person-centered care in its initiatives and regulations, CMS should promote person-centered care as complementary to the surveillance quo. 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. These metrics would confirm the co-existence of person-centered care with the surveillance quo and, most importantly, disseminate information about nursing facilities’ dementia care to the public.

1 This figure includes assisted living and nursing homes. Alzheimer’s Association, Dementia Care Practice Recommendations for Assisted Living Residences and Nursing Homes 1 (2009), http://www.alz.org/national/documents/brochure_dcprphases1n2.pdf [hereinafter Alzheimer's Ass'n, Phases 1 & 2]. For purposes of this Note, two categories of nursing homes are considered: nursing homes that accept reimbursement from Medicaid (nursing facility [hereinafter “NF”]) and nursing homes that accept reimbursement from Medicare (skilled nursing facility [hereinafter “SNF”]). See generally What is the Difference Between NFs and SNFs?, Preadmission Screening and Resident Review Technical Assistance Ctr. (July 5, 2011), http://www.pasrrassist.org/resources/snf-nf/what-difference-between-nfs-and-snfs. “Most facilities are certified as both NFs and SNFs. A given facility can have both ‘NF beds’ and ‘SNF beds’; they are ‘dually certified.’” Id. If a resident qualifies for both Medicare and Medicaid, otherwise known as “a dual-eligible,” that resident “can move from the SNF portion of a facility (which provides rehabilitative care) to the NF portion of a facility (in the event that long-term care is needed).” Id.

2 “Dementia is not a specific disease. It’s an overall term that describes a wide range of symptoms.” What is Dementia?, Alzheimer’s Ass’n, http://www.alz.org/what-is-
dementia.asp (last visited Nov. 22, 2016).

3 The term “surveillance quo” is used throughout this Note to refer to the culture of surveillance of staff and residents in nursing homes. Twentieth-century philosopher Michel Foucault wrote about institutional surveillance dating back to eighteenth-century philosopher Jeffrey Bentham’s “Panopticon” design of prison. See generally Michel Foucault, Discipline and Punish (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1977) (positing that the Panopticon design, which had become popular in—among other settings—prisons, schools, and psychiatric institutions, kept a population under control through differentials of power and observation).

 Elder Law, Regulation
9 Drexel Law Review 227

Note - Sex and Gender Violence in Asylum Law: Expanding Protection Beyond Domestic Violence

Trevor R. Larkin

Individuals who seek asylum and refugee protection are forced to compress the oppression they have suffered into narrow categories of sanctuary within the modern jurisprudence. Victims of harm based on sex and gender face a near-vertical uphill battle in seeking refuge and are frequently neglected by the law. Scholars that have broached the subject frequently speak in limited terms of domestic violence faced by women. Sex and gender-based persecution, however, is not confined only to those categories of harm and victims. Recent adjudications, like Matter of A-R-C-G-, have granted shelter to certain victims of domestic violence, but leave other victims without an avenue to relief. Therefore, the statutory definition of “refugee” must be amended and new regulations must be promulgated in order to extend protection beyond domestic violence claims. Only then will the law be able to provide consistent and adequate protection to victims of the myriad forms of sex and gender-based persecution.

An impactful analysis of the problem requires an examination of the deficiencies inherent in asylum law and its “particular social group” standard. A broader approach is needed to encapsulate all noncitizens at risk for sexual violence, regardless of sex or marital status. The experiences of other nations, which have expanded asylum protection to sufferers of sex and gender violence, offer encouraging examples. Revising asylum law and policy is the next step in protecting not only married women, but all people who have faced sexual violence or violence rooted in gender.

 Refugee and Asylum Law, Legislative Reform
8 Drexel L. Review 261

Criminal Justice Reform Keynote Address

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

Preliminary Injunctive Relief Against Governmental Defendants: Trustworthy Shield or Sword of Damocles?

Patrick T. Gillen

Typically, we conceive of preliminary relief as a shield from liability for sanctions triggered by noncompliance with the law during the period when the preliminary injunctive relief was in effect. But is that true? The answer is uncertain. In one case, Edgar v. MITE Corp., Justice Stevens and Justice Marshall debated the question but the Court did not reach it. Leading academics have raised the question and noted that the Court has yet to provide an answer. The question is difficult because it implicates the separation of powers, federalism, and due process of law. The answer is vitally important to private citizens who challenge governmental action because their liberty and property are at stake—and the stakes can be very high. I argue that a preliminary injunction must serve as a defense to liability, and I address concerns raised by that conclusion.

 Jurisprudence
8 Drexel L. Review 317

Policing by Imposition: The Consequences of Aggressive Drug Policing on Prenatal Care in Structurally Disadvantaged Communities

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.

Research in community health often shows structural disadvantage to be among the strongest covariates of health behaviors, often as a result of the social isolation that accompanies severe and sustained systemic resource deprivation. Criminology and justice researchers have documented the col-lateral effects of aggressive arrest strategies (e.g., increased crime, decreased trust in police) on disadvantaged communities, perhaps due to the perceived legal marginalization that results from those strategies. This study integrates these research traditions to examine the extent to which aggressive drug enforcement was associated with decreased prenatal care utilization among pregnant women residing in communities across the District of Columbia. The study is grounded primarily in the urban ecological/sociological perspectives that anticipate the social isolation effects of neighborhood disadvantage, and assumes that as distrust for formal institutions increases, use of traditional healthcare resources should decrease. The study combined data from the Department of Health, U.S. Census Bureau, and the Metropolitan Police Department in Washington, D.C. to examine several multilevel hypotheses related to drug enforcement and prenatal health behaviors.

 Community Policing, Public Health
8 Drexel L. Review 339

Student Privacy Principles for the Age of Big Data: Moving Beyond Ferpa and Fipps

Elana Zeide

In the 2015 State of the Union Address, President Barack Obama pledged to better protect student privacy.1 There is widespread consensus that the primary federal statute addressing student privacy, the Family Educational Rights and Privacy Act (FERPA), is insufficient in light of new technological capabilities. In response, industry representatives, privacy advocates, and policymakers scrambled to put appropriate measures in place.2 State legislators proposed over 180 state laws about student information in 2015.3 On the national level, reforms include three proposed FERPA amendments, two bills directly regulating service providers receiving student information, and a voluntary Student Privacy Pledge for industry promulgated by the Future of Privacy Forum and Software & Information Industry Association (SIIA).4 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.

Despite having default provisions based on FIPPs and the primary purpose of providing individuals with individual control over their own data, FERPA actually delegates most decision-making regarding student privacy to educational institutions due to broad exceptions, unspecific requirements, and the U.S. Department of Education’s deference to schools’ contextualized decision-making. It provides minimal transparency, oversight, or direct accountability, which creates a regulatory regime based primarily on institutional, not individual, privacy management. This deference is particularly evident in the school official exception that governs the bulk of information flow from schools to outside service providers.

Stakeholders tolerated FERPA’s regime for almost forty years based on the security, confidentiality, and the limited commercial utility of paper records. Their trust in FERPA’s regulatory mechanisms depended on assumptions that no longer hold true in an era of ubiquitous data collection, permeable networks, frictionless transfer, and big data analytics. In theory, schools must approve disclosure to outside parties and, in doing so, ensure information is only shared with outside parties to serve legitimate educational interests. In practice, the automatic collection of information by digital platforms means that student data disclosures routinely occur without thoughtful oversight.

Currently-proposed FERPA amendments may improve the statute’s efficacy by providing more transparency, data governance, and security requirements, but they do not fully address critical student privacy issues. Without taking FERPA’s delegation-based model and contextual considerations into account, these reforms will not adequately address stakeholders’ concerns or achieve policymakers’ aims. In addition, laws based on FIPPs are particularly problematic in education, where compulsory attendance and institutional decision-making makes reliance upon notice and consent neither meaningful nor effective. Even in a world with perfectly-informed voluntary consent, privacy self-management models may be impractical and undermine the pedagogical goals, decentralized political authority, and broader philosophical goals of the education context. Attempting to regulate third parties through FERPA’s disclosure requirements is an exercise in futility that will impose untenable burdens on schools. Policymakers should stop trying to use a spending clause statute designed to govern educational actors as a means to regulate outside data recipients indirectly.

FERPA responded to fears that ad hoc and thoughtless disclosure of education records would unfairly foreclose future opportunities. The same concerns are at the core of today’s public debate, but we must move beyond privacy self-management and theoretical institutional oversight to adequately protect student information in an age of big data.

1. See President Barack Obama, Address Before a Joint Session of Congress on the State of the Union (Jan. 20, 2015) (transcript available at http://www.nytimes.com/2015/01/21/us/politics/​obamas-state-of-the-union-2015-address.html?_r=0) (“I urge this Congress to finally pass the legislation we need to . . . protect our children’s information.”); see also President Barack Obama, Address at the Federal Trade Commission (Jan. 12, 2015) (transcript available at http://www.whitehouse.gov/the-press-office/2015/01/12/remarks-president-federal-trade-commission); Alyson Klein, White House: Student Privacy Laws Need an Update, Educ. Week (May 1, 2014, 5:57 PM), http://blogs.edweek.org/edweek/campaign-k-12/2014/05/white_house.html?cmp=SOC-SHR-FB.

2. See Press Release, Sen. Ed Markey, Markey, Hatch Release Discussion Draft of Legislation Addressing Student Privacy (May 14, 2014), available at http://www.markey.senate.gov/news​/press-releases/markey-hatch-release-discussion-draft-of-legislation-addressing-student-privacy; Michele Molnar, Student-Data Privacy Guidelines: An Overview, Educ. Week (Apr. 14, 2014), http://www.edweek.org/ew/articles/2014/04/14/28privacypractices-side.​h33.html (collecting student privacy guidelines from the Department of Education (DOE), National School Boards Association (NSBA), and Consortium for School Networking); Student Privacy & Data Security Toolkit for School Service Providers, Software & Information Industry Association (SIIA), http://www.siia.net/Divisions/ETIN-Education-Technology-Industry-Network/Resources/Student-Privacy-Data-Security-Toolkit-for-School-Service-Providers (last visited Apr. 19, 2016); Internet Keep Safe Coal. (iKeepSafe), Digital Compliance and Student Privacy: A Roadmap for Schools 1 (2014), available at http://storage.googleapis.com/digital_compliance/DigitalCompliance​StudentPrivacy.pdf (“To protect privacy adequately, all schools should develop a comprehensive privacy program.”); see also Khaliah Barnes & Valerie Strauss, Why a “Student Privacy Bill of Rights” is Desperately Needed, Wash. Post (Mar. 6, 2014), http://www.washingtonpost.com/blogs/answer-sheet/wp/2014/03/06/why-a-student-privacy-bill-of-rights-is-desperately-needed.

3. See Data Quality Campaign, State Student Data Privacy Legislation: What Happened in 2014, and What Is Next? 1 (2014) [hereinafter State Student Data Privacy Legislation], available at http://dataqualitycampaign.org/wp-content/uploads/files/State%20Student%20Data%20Privacy%20Legislation%20Resource.pdf; see also Barnes & Strauss, supra note 2.

4. Molnar, supra note 2. Issues involving the appropriate regulatory body to impose constraints on student information flow must be addressed, but are beyond the scope of this Article.

 Education Law, Technology, Privacy
8 Drexel L. Review 397

Note - The Missing Pieces in Federal Reentry Courts: A Model for Success

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 com-batting the collateral consequences associated with imprisonment. Perhaps the most significant of those collateral consequences ex-offenders face are housing and employment. More specifically, due to ex-offenders’ criminal histories, landlords may refuse to rent spaces to ex-offenders, and employers may discriminate against them. Although there has been significant progress in the area of employment by way of “Ban the Box” legislation, which prohibits employers from requiring applicants to disclose criminal history, there is still much progress to be made.

There is a growing trend toward combating collateral consequences and assisting ex-offenders in successfully rehabilitating following release from prison through a collaboration between courts and correctional institutions. Specifically, local, state, and federal reentry courts are cropping up throughout the country with the goal of assisting ex-offenders in securing housing and employment, and addressing additional issues ex-offenders face following reentry into the community. While all of these programs are a step in the right direction toward providing necessary assistance to ex-offenders, some are more effective than others, and Philadelphia’s Federal Reentry Court has proven to be especially successful.

 Criminal Law, Punishment Theory
8 Drexel L. Rev. 1

The Inevitability of Discretion: What Proponents of Parenting Time Guidelines Can Learn From Thirty Years of Federal Sentencing Guidelines

Joi Montiel

For decades, the prevailing standard for a judge making a decision regarding parenting time has been “the best interest of the child.” That standard grants substantial discretion to the trial court judge—perhaps more discretion than in any other area of the law. Because the high degree of discretion may render inconsistent and unpredictable results, the standard has been widely criticized.

In the past half century, federal sentencing has undergone similar scrutiny. The Federal Sentencing Guidelines—“the most controversial and disliked sentencing reform initiative in U.S. history”—have substantially curtailed judicial discretion in an effort to achieve uniformity in sentencing. Several states have explored limiting judicial discretion in the area of parenting time by a mechanism appropriate for comparison to the federal sentencing guidelines—parenting time guidelines. Both involve “whole person” adjudication, and both purport to pronounce a result governing an individual’s future based on predetermined classifications and categories. This Article advocates rejection of parenting time guidelines. Instead, modest limitations on the discretion afforded by the best interest standard cannot only address the concerns of its critics but also preserve a judge’s ability to make individualized case-by-case determinations regarding a child’s best interest.

This Article makes its case by applying observations regarding the evolution of federal sentencing guidelines to the concept of parenting time guidelines. The development of the federal sentencing guidelines shows that a guidelines approach to judicial decision-making comes with significant sacrifice, likely to the guidelines’ very purpose. Federal sentencing guidelines came with a sacrifice of the purposes of punish-ment, and parenting time guidelines will come with a sacrifice to the best interest of some children. Every family situation is different, and every child deserves the careful case-by-case deliberation of a judge as to the child’s best interest.

Children and the Law, Family Law
8 Drexel L. Rev. 53

Constitutional Rights for Nonresident Aliens: a Doctrinal and Normative Argument

Alec Walen, J.D., Ph.D.

The decision in Boumediene v. Bush, 553 U.S. 723 (2008), held that nonresident aliens (NRAs) detained for years in Guantanamo have a constitutional right to bring a habeas petition to challenge their detention. But the larger issue of constitutional rights for NRAs remains unresolved. Do NRAs outside of Guantanamo have constitutional rights? If so, do they enjoy substantial protections, such as those under the Fourth and Fifth Amendments? I argue here that the doctrine remains unclear, that the text is likewise unclear, that originalist arguments should carry little force, but that the normative argument is clear. As a condition of the legitimacy of U.S. law, NRAs must enjoy a range of constitutional rights that protect them from unjust harm at the hands of the United States.

 National Security, Vol. 8 No. 1
8 Drexel L. Rev. 113

Tactical Urbanism V2: Dynamic Land Use Regulation and Partnership Tools Regenerating First Suburbs

Michael N. Widener

Land use regulation is typically viewed as passive; projects proceed when criteria established under ordinances are satisfied, but are delayed or scuttled when parameters of codes are unmet. Insufficient attention is directed by local governments to the economic ramifications of those events. How should land use regulators perform when their communities are economically deprived—or their employment opportunities have been compromised? The current employment and productivity perils of inner-ring suburbs, those often-dismissed earliest “outskirts” of metropolitan areas, begs the question whether expanding economic opportunities for community citizens should dominate conversations among zoning administrators and their municipal constituents. Too many first suburbs are in decline, their citizens dismayed or angered about their futures. This Article describes how their local land use administrations, partnering with developers and citizens, must refocus on revitalizing inner-ring neighborhoods physically to grow job opportunities, by deploying familiar and novel land use governing and related collaborative strategies. The Article addresses how those controlling planning regimes can catalyze job creation in partnership with the private sector without sacrificing land use’s primary goal to maintain communities as livable and peaceful places. Decision-makers in land use can enhance development quality by adopting and enforcing dynamic development conventions toward a new future for “tactical urbanism.”

 Land Use Law, Regulation
8 Drexel L. Rev. 155

Note - Navigating Without a Compass: Incorporating Better Parental Guidance Systems Into the Idea’s Dispute Resolution Process

Joseph Fluehr

Land use regulation is typically viewed as passive; projects proceed when criteria established under ordinances are satisfied, but are delayed or scuttled when parameters of codes are unmet. Insufficient attention is directed by local governments to the economic ramifications of those events. How should land use regulators perform when their communities are economically deprived—or their employment opportunities have been compromised? The current employment and productivity perils of inner-ring suburbs, those often-dismissed earliest “outskirts” of metropolitan areas, begs the question whether expanding economic opportunities for community citizens should dominate conversations among zoning administrators and their municipal constituents. Too many first suburbs are in decline, their citizens dismayed or angered about their futures. This Article describes how their local land use administrations, partnering with developers and citizens, must refocus on revitalizing inner-ring neighborhoods physically to grow job opportunities, by deploying familiar and novel land use governing and related collaborative strategies. The Article addresses how those controlling planning regimes can catalyze job creation in partnership with the private sector without sacrificing land use’s primary goal to maintain communities as livable and peaceful places. Decision-makers in land use can enhance development quality by adopting and enforcing dynamic development conventions toward a new future for “tactical urbanism.”

 Education Law
8 Drexel L. Rev. 185

Note - The Ice-free Arctic Is Coming: Why a Circumpolar Network of Marine Protected Areas Is Needed to Protect Arctic Fisheries From Climate Change

Angie Lyne Fredrickson

Changes in the Arctic’s climate and corresponding shifts in marine eco-systems are occurring much more quickly than climate models and scien-tists predicted. At the same time, interest in the Central Arctic Ocean for fishing, transportation, tourism, and oil and gas exploration is increasing. An increase in these activities will diminish the capacity of Arctic living marine resources, including fish, to respond to the environmental changes caused by climate change. Because the resiliency of Arctic fisheries will be diminished, and because these fisheries have economic, cultural, and ecolog-ical significance for Arctic nations, there is a need for an Arctic fisheries management framework that is adaptable enough to accommodate the con-siderable degree of uncertainty intrinsic to the rapidly changing Arctic. This Note considers whether existing international law can provide a framework that is sufficiently flexible to respond to rapid, non-linear changes, and sufficiently comprehensive to adequately protect fisheries that are made vulnerable by the direct and indirect effects of climate change. This Note introduces the unique climate change issues facing the Arctic, as well as the existing international legal framework for Arctic fisheries. This Note concludes by suggesting that a fisheries management regime that em-braces a precautionary, ecosystem-based approach through the establish-ment of a circumpolar network of Marine Protected Areas is needed to en-sure the protection of the Arctic’s present and future fisheries in light of the uncertainties that currently plague the region.

 Environmental, International Law
8 Drexel L. Rev. 233

Note - Not Exactly the Same: an Examination of How Generic Substitution Laws Inadequately Protect Consumers’ Needs if Taking Generic Drugs Results in Injuries

Jeffrey J. Masters

Every day, millions of Americans take generic prescription drugs, not thinking once about what their legal options would be should taking those drugs result in injuries. Unbeknownst to them, due to very recent developments in the law, in all but a few jurisdictions consumers are totally powerless to recover if they are hurt after taking generic drugs.

Common knowledge dictates that there is no difference between generic and brand-name drugs, and state laws even require pharmacists to fill consumers’ prescriptions with the generic versions of brand-name drugs, absent explicit directions from the physicians to the contrary. While it is true that generic and brand-name drugs are identical in terms of bioequivalence and therapeutic effect, they are not identical in one crucial, but underappreciated, regard: the possibility of recourse if taking generic drugs results in injuries and the consumers want to recover under failure to warn or design defect claims. Starting with a Supreme Court decision in 2011, case law has made it clear that in these situations, neither the generic nor the brand-name manufacturers of the drugs are liable, thus leaving consumers entirely without recourse.

This Note examines the history of the FDA and drug regulation, the federal laws and cases that make up the current regulatory landscape, and state generic substitution laws. This Note then identifies a problem that goes largely undiscussed: because recent Supreme Court decisions have made it so consumers are powerless to recover for injuries sustained after taking generic drugs, which generic substitution laws effectively forced upon them, those laws should change to reflect the needs of consumers. This Note then suggests solutions to this problem, including a call for consumers to petition their legislatures to change generic substitution laws to be more favorable to consumers, and a challenge to the constitutionality of the laws.

 Health Law, Tort Liability, Regulation
8 Drexel L. Rev. Online 1

Note - Lead Us Not Into Temptation: Stash House Stings and the Outrageous Government Conduct Defense

Marc D. Esterow

Over the past two decades, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") has helped convict hundreds of individuals by enticing them to commit fictional crimes. These operations, known as "stash house stings," involve the recruitment by undercover agents of suspects to rob a residential house containing large amounts of drugs and money. Every detail of the robbery, however, is a product of the government’s imagination—the stash house itself, the amount of drugs supposedly inside the house, the gang members guarding the house, and of course, the idea to commit the robbery. Although the ATF’s purported focus is on targeting dangerous criminals, in practice these stings often trap poor, minority, low-level offenders with no propensity to commit major drug offenses. Moreover, while the stash house stings draw close to entrapment, in most cases an entrapment defense is unavailable because courts consider willingness to commit the robbery as evidence of predisposition. In recent years, however, an alternative defense has begun to take hold. The “outrageous government conduct” defense is based upon the theory that, regardless of a defendant’s predisposition, certain law enforcement tactics are so inherently shocking that due process principles would bar the government from obtaining a conviction. The Supreme Court, despite its creation of the defense, has failed to establish a set of guidelines for lower courts to use in determining what conduct of law enforcement would be so "outrageous" as to warrant dismissal of an indictment. Accordingly, application of the defense in the lower courts has been unclear. In a series of recent cases arising out of ATF stash house sting indictments, the Ninth Circuit became the first appellate court in the country to specifically identify a set of factors to be used in evaluating a claim of outrageous government conduct. Utilizing these cases as an illustrative tool, this Note proposes an analysis of the outrageous government conduct defense based upon the Ninth Circuit’s six-factor test and suggests that the Supreme Court grant certiorari to articulate an outrageous government conduct defense guided by these factors.

 Criminal Law, Illegal Drug Policy
8 Drexel L. Rev. Online 41

Public Utility Zoning Post-Robinson Township: a Constitutional End-around or Infrastructure Imperative?

Peter Johnsen

This Note examines infrastructure concerns pertaining to oil and natural gas operations in Pennsylvania. Beginning with the General Assembly's enactment of Act 13 in 2012, this Note details the subsequent development of regulatory oversight applicable to these operations. This Note examines how these regulations apply to oil and natural gas pipelines. It provides a holistic examination of Act 13 and the comprehensive exemptions from local zoning law the Act extended to oil and gas operations. It then explains the reasons the Act's broad zoning mandates were held unconstitutional under the Environmental Rights Amendment in the Pennsylvania Supreme Court's Robinson Township v. Commonwealth decision.

This Note argues that exempting these same operations under Pennsylvania's Public Utility Code is not unconstitutional. While Act 13's exemptions operate in a similar manner, the Note explains that exempting operations on a case-by-case basis is the approach most tailored to the Court’s decision in Robinson Township.

Environmental, Land Use Law, Regulation
8 Drexel L. Rev. Online 77

Note: So When Did Public Order Start Trumping Fundamental Constitutional Rights? Rethinking the Modern Interpretation of the Right to Assemble and the Role Police Should Play in Protecting That Right

Jesse D. Proctor

The Assembly Clause of the First Amendment of the United States Constitution was created to protect what early Americans saw as a fundamental right at the heart of what it meant to be a free and democratic society. Throughout the eighteenth and nineteenth centuries, public assemblies played an integral part in American politics and society. These assemblies varied between planned and organic, controlled and chaotic. Whatever characteristics could be attributed to any particular assembly, they were all protected by the Assembly Clause, both in the eyes of law enforcement and the judiciary. Over the last century, however, the right of assembly has taken a back seat to safety concerns and a desire to maintain the status quo. The militarization of America’s local police departments throughout the country has exacerbated this phenomenon.

This Note contends that the militarization of police has created an at-mosphere that is inherently at odds with the freedoms guaranteed by the Constitution. To rectify the mistakes of the past, the Note advocates for three different approaches to the problem. First, it advocates for judicial review of the constitutionality of the current model of police-protester interaction during public assemblies and the modern judicial interpretation of the Assembly Clause. Second, it advocates for an introduction of legislation that would first cease the flow of weapons and training from the military to local police forces and then reverse this failed experiment altogether. Third, this note suggests a rethinking of how police interact with the communities they are called to serve and protect, suggesting that the community policing model best balances the need for maintaining safe communities while still protecting individual freedoms.

 Community Policing, Constitutional
7 Drexel L. Rev. 239

Jury Evaluation of Expert Testimony Under the Federal Rules

Hon. Mark I. Bernstein

In this article, I present a practical critique of the civil jury system, specifically the theory and practice. I propose to diagnose inherent problems in the expert witness Rules 702–705 of the Federal Rules of Evidence. This article will address the unintended and unanticipated consequences of the expert witness revolution brought about by the Federal Rules of Evidence.

 Evidence, Federal Courts
7 Drexel L. Rev. 309

Of Surgical Sponges and Flour Barrels, and Why Medical Experts Are Needed Even With a Res Ipsa Loquitur Instruction

Dorothy Duffy and Marrielle B. Van Rossum

Lady Justice, with her blindfold and gilded scales, is the image is evoked to illustrate the standard used in civil trials: the plaintiff must prove his or her case by a preponderance of the evidence, equating “preponderance” with a greater than 50% chance of the plaintiff’s claims being true. The legal doctrine res ipsa loquitur employs a similar metric when it comes to allowing an event that does not ordinarily occur in the absence of negligence to serve as circumstantial evidence of the plaintiff’s claim. This article describes the current application of res ipsa in Pennsylvania, focusing particularly on medical malpractice cases.

 Evidence, Medical Malpractice, Tort Liability
7 Drexel L. Rev. 329

Fishing Season Is Over: After Barrick and Amended Pennsylvania Rule of Civil Procedure 4003.5, Pennsylvania Reached the Right Decision Regarding Work Product Protections Between Attorneys and Experts

Gwen Stern, Andrew Stern, Benjamin Isser

The long-standing tension in Pennsylvania inherent in the competing policies promoting the truth-determining process and protecting attorney work product from discovery has finally reached resolution with regard to expert communications. Pennsylvania has turned back the clock to protecting the disclosure of attorney-expert communications by creating a bright-line rule prohibiting disclosure of those communications under Barrick v. Holy Spirit Hospital and the subsequent Pennsylvania Rule of Civil Procedure 4003.5. The new Pennsylvania rule is much more protective of attorney-expert communications, and aligns itself with both the recent amendments to the Federal Rules and many states, including Pennsylvania’s sister state, New Jersey. Although the expert discovery fishing expedition is now over, the rule does not create a complete bar to questioning experts about some of their interactions with attorneys for impeachment purposes. Proper cross-examination is still available even with the new protections under Barrick and Pennsylvania Rule of Civil Procedure 4003.5.

 Evidence, Civil Procedure, State Courts
7 Drexel L. Rev. 365

An Unobeyable Law Is Not a Law: Lon Fuller’s “Desiderata” Reconsidered

Timothy Stostad

In this Article, I discuss the question of Lon L. Fuller’s proper placement within the outline of legal theory, particularly the extent to which he can be viewed as defending a kind of natural law tradition. In considering this question, I advance three closely related claims about Fuller’s conception of the rule of law. First, I claim that his eight “desiderata” are formal features of a legal system, and I rebut a recent argument by Professor John Gardner, who suggests that modality, rather than formality, better describes the rule of law. Second, I claim that the formal desiderata can be viewed as both inclusion conditions by which, per Fuller, law can be identified, and as standards by which law so identified may be judged. In other words, the rule of law for Fuller is not merely a set of standards but is also part of his concept of law in that a certain threshold compliance with the rule of law is necessary for a form of social ordering to qualify as law at all. I answer Hart’s “instrumentalist” attack on Fuller, claiming that, though law may be “compatible with very great iniquity,” as Hart asserts, there are particular iniquities law tends to cabin and subdue. Finally, I argue that the eight desiderata can plausibly be subsumed under the heading of Fuller’s sixth desideratum, that law not be impossible to obey. The latter desideratum deserves pride of place because it underscores what is central to Fuller’s concept of law more generally, namely, the inherent assumption of and respect for what Professor Kristen Rundle has recently described as the dignity and responsible human agency of those subject to law. I conclude that Fuller differs from natural law theorists insofar as his formal concept of rule-of-law-compliant law is largely indifferent to the justness of law’s substantive aims but that, contra positivism, Fuller views law as a system of social ordering in which certain moral choices have already been made—choices reflected in the tendency of the desiderata to promote justice and respect for the citizen subject to law.

 Jurisprudence, Rule of Law
7 Drexel L. Rev. 401

The Right to Be Forgotten: Issuing a Voluntary Recall

R. George Wright

Europe has recognized a fundamental right to be forgotten. The contours of this right will doubtlessly evolve, but for the moment Europe recognizes a personal right to ask internet search engine owners to remove links to third party web pages that appear following searches using one’s name in the search query. The argument below will rely on a pragmatic sense of the inevitable basic problems in implementing such a right.

 Technology, Privacy, Foreign Law
7 Drexel L. Rev. 1

When Ethical Worlds Collide: Teaching Novice Legal Writers to Balance the Duties of Zealous Advocacy and Candor to the Tribunal

Frances C. DeLaurentis

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

Legal Writing, Pedagogy, Professional Responsibility and Ethics
7 Drexel L. Rev. 39

The “Not So Supreme” Court: State Law Dictates Supreme Court Decision in Chaidez

Robert Uzdavines

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

Criminal Law, Federal Courts, Immigration
7 Drexel L. Rev. 67

How ’bout Them Apples?: the Power of Stories of Agreement in Consumer Contracts

Tal Kastner

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

 Contract Theory, Rhetoric
7 Drexel L. Rev. 127

Note - Wrong Way: Why Labeling Young Drivers Presents a Misguided Approach in the Improvement of Graduated Driver’s License Programs

Kyle E. Gray

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

 Legislative Reform
7 Drexel L. Rev. 163

Note: Testamentary Conditions in Restraint of the Marriage of Homosexual Donees

Emalee G. Popoff

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

 Civil Rights, Trusts and Estates
7 Drexel L. Rev. 195

Note - When the Consequences Are Life and Death: Pretrial Detention for Domestic Violence Offenders

Suraji R. Wagage

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

 Criminal Law, Family Law, Legislative Reform
7 Drexel L. Rev. Online

Foreword

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

Note - Man Overboard: the Missing Theory of Liability for Cruise Ship Owners

Christopher A. Bailes

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

 Admiralty Law
7 Drexel L. Rev. Online 45

Note - Dollars for Collars: Civil Asset Forfeiture and the Breakdown of Constitutional Rights

Alexandra D. Rogin

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

 Community Policing, Property Law
6 Drexel L. Rev. 439

ERISA: How it came to be; What It Did; What to Do About It

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

Retirement Security Worse on ERISA’s 40th Anniversary

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

Increasing Coverage in Today's Private Retirement System

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

ERISA's Treatment of Default and Forfeiture Risk in Defined Benefit Pension Plans: Reflections from ERISA at 40: What Were They Thinking?

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

Fifty Years of Pension Law

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

Ninety-Five Percent of [Them] Will Not Be Missed: Recovering the Tax Shelter Limitation Aspect of ERISA

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

Reflections on ERISA's Fiduciary Provisions: An Integral and Integrated Part of the Statute

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

I, Fiduciary: Some Reflections on the Defintion of Fiduciary Under ERISA

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

A Reflection on ERISA Claims Administration and the Exhaustion Requirement

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

Is Free Speech Compatible with Human Dignity, Equality, and Democratic Government: America, a Free Speech Island in a Sea of Censorship?

James M. Boland

The American model of free speech jurisprudence is based upon the absolutist language of the First Amendment—Congress shall pass no law abridging freedom of speech. This model is unique in the Western world and glaringly contrasts with free speech models in Britain and Canada—examples of which I have labeled the European Model. This Article examines these models and the foundations and presuppositions of both, and the extent to which Canada and Britain, in applying the European Model, protect or fail to protect their citizens’ freedom of expression. Is one model moving toward totalitarianism while pretextually asserting it is standing for human dignity, equality, and democracy? This Article answers that question.

 Constitutional, Political Theory
6 Drexel L. Rev. 47

Using Experiential Education to Develop Human Resources for the Nonprofit Community: A Course Study Analysis

Ann C. Hodges

In this era of shrinking resources and increased pressure to produce “practice-ready” lawyers, law schools are seeking new and cost-effective ways to provide experiential education. This Article reports and analyzes the results of a survey of graduates and students from a course in Nonprofit Organizations that incorporated a community-based project designed to develop skills, enhance learning, and encourage post-graduation involvement with nonprofits. Although limited to one course, this course study, like a case study, offers valuable information. Consistent with other research on experiential education, the survey supports the conclusion that such projects, while less resource-intensive and comprehensive than clinics, offer benefits to both the students and to the community.

 Business and Nonprofit Organizations, Pedagogy
6 Drexel L. Rev. 87

Deadly Dicta: Roe’s “Unwanted Motherhood,” Carhart II’s “Women’s Regret,” and the Shifting Narrative of Abortion Jurisprudence

Stacy A. Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. Arguments focusing on the fetus as the equal or greater party of interest during any stages of pregnancy were systematically pushed aside by the Court.Whether expressly or impliedly, these criticisms focus almost exclusively on the validity of women’s regret because the Court’s reasoning could result in a change in the way we view abortion, in the stories we tell about abortion, and in who and what we think of when deciding the constitutionality of abortion regulations. Roe provided us with the trimester test, the physician-state competing rights analysis, and the extension of the right to privacy—all under the guise of “unwanted motherhood.” While Carhart II may not have changed much in terms of the fundamental right to abortion, its effects may have far greater consequences, and both the pro-life and pro-choice communities are aware of this. Despite all of the theories, tests, and holdings discussed and implemented in Roe and Carhart II, what remain within our collective conscience are the effects of unwanted motherhood and women’s regret. Under most definitions, these statements are a type of social dicta—unnecessary, memorable language that speaks directly in favor of a particular societal point of view. In light of the current debate, these social dicta are also deadly dicta: unwanted motherhood deadly in its effect on the rights of the unborn, and women’s regret deadly in its effect on unwanted motherhood. As this article will explain, social dicta have the potential to be particularly influential as they become part of the nation’s consciousness. Such dicta are usually the most quoted language by popular media outlets and non-legal sources, are often the most remembered part of the case, and are thematically opportunistic in guiding the debate and framing the narrative for use in future cases. The focus of this Article is to explore how this type of dicta drives and affects the long-term societal opinion and understanding of a stated controversy, and to note the glaring inconsistencies between the current critiques of women’s regret and the abject silence with regard to unwanted motherhood.

 Reproductive Rights, Jurisprudence, Federal Courts
6 Drexel L. Rev. 133

Note: The Uncertain Enforceability of Prenuptial Agreements: Why the “Extreme” Approach in Pennsylvania Is the Right Approach for Review

Chelsea Biemiller

Couples marrying in the United States are increasingly requesting prenuptial agreements. These agreements offer a substantial benefit, as they allow couples to set their own standards for property distribution at divorce. However, their enforceability remains uncertain. Prenuptial agreements were initially viewed with suspicion during a time when the state was much more involved in regulating marriage, and they remain subject to heightened standards of review in many jurisdictions. Not only are the standards heightened; they are also unclear and vary between jurisdictions, resulting in much uncertainty as to whether a particular agreement will be enforced. The justifications for heightened review are no longer warranted, given that women now occupy a societal position in which they should be viewed as equally as capable as men. To review prenuptial agreements differently from other contracts, as they are reviewed in many states, is to perpetuate stereotypes about women’s capabilities. This Note posits that Pennsylvania has adopted the best approach, as prenuptial agreements are reviewed exactly as other contracts are (with the additional requirement of financial disclosure). The Pennsylvania approach could be improved, however, by the adoption of minor procedural requirements. These include providing couples with information about their rights upon divorce before they marry, and imposing a brief waiting period, much like that required for marriage licenses, to allow couples considering a prenuptial agreement to discuss their expectations and negotiate better bargains.

 Contract Law, Family Law
6 Drexel L. Rev. 177

Note: Admitting Animations: Applied Psychology Research as a Call for Improved Guidance in Assessing the Prejudicial Impact of Computer-Generated Animations

Jennifer L. Ceglinski

Advances in recent technology have changed the evidentiary sources presented in both criminal and civil trials to include the use of full-motion, computer-generated animations. The presentation of computer-generated animations can increase juror retention, understanding, and synthesis of information, or it can act as a persuasive tool to undermine the deliberative process and to unduly influence juror decision making. In the advent of such new technology use, a balance must form between the usefulness of such evidentiary tactics and the elimination of undue influence or abuse of new technology. General foundational principles of demonstrative evidence apply to authenticate and determine the relevance of admission of such evidence. The Federal Rules of Evidence are not properly equipped to handle the implications of such new evidence and have provided little to no guidance for judges to determine admissibility. This Note discusses the analysis of the impact of computer-generated animations from the perspective of psychology. Through the application of psychological principles, this Note presents suggested guidelines for judicial determination of admissibility or inadmissibility of computer-generated animations as unduly prejudicial. Finally, this Note proposes an amendment to Federal Rule of Evidence 403 and the accompanying Advisory Committee’s Note to accommodate the advanced technology.

Evidence, Technology
6 Drexel L. Rev. 215

Note: Placing Physicians Between Scylla and Charybdis: Chemical Disclosure Law Requiring Health Professionals to Sign Confidentiality Agreement Creates Risk of Liability for Physicians and Impedes Protection of Public Health

Eric Sando

The Pennsylvania General Assembly enacted House Bill 1950 (Act 13) in February 2012, regulating hydraulic fracturing and the disclosure of chemicals used in the process. Part of this new legislation permits healthcare professionals to access proprietary information, otherwise subject to trade secret protection; however, Act 13 mandates that the requesting healthcare professionals first sign a private confidentiality agreement. There is an emerging debate extending across the states proposing similar legislation as to whether requiring a confidentiality agreement exposes physicians to potential liability or loss of license. On the one hand, if physicians abide by the terms of the private confidentiality agreements, they may violate their ethical code and state statutory laws protecting public health and safety, and such action may also expose them to potential common law negligence claims. On the other hand, if physicians share the information obtained under Act 13, they may be in breach of contract under the confidentiality agreement. This Note examines this dilemma and concludes that the vague language of Act 13 exposes health professionals to either breach of contract liability or potential tort liability and risk of losing their license. This Note recommends that the Pennsylvania Legislature should immediately pass an amendment clarifying the text of the statute, explaining whether physicians may share the information and with whom they can share it, taking into account the ethical obligations, common law doctrines, and public health concerns inherently intertwined with this issue. This Note also serves to guide other states considering similar chemical disclosure laws.

 Environmental, Public Health, Patient Safety
5 Drexel L. Rev. 285

Thinking Critically About International and Transnational Legal Education

Anil Kalhan

It has become a matter of recurring lament and concern — and periodically, an object of satire and derision — that Americans lack basic knowledge, awareness, or interest concerning the world beyond their borders, whether in terms of history, public affairs, culture, language, or even basic geography. Politicians, corporate leaders, scholars, and other observers across a broad spectrum routinely warn of the potential dangers this global awareness deficit poses to the well-being and security of the United States. In an increasingly interdependent world — with a growing array of economic, political, social, and environmental problems that transcend national borders — individuals cannot meaningfully function as responsible democratic citizens without both greater global knowledge and the capacities and sensibilities necessary to engage that knowledge critically and with sophistication.

 Symposium Introduction
5 Drexel L. Rev. 297

"But for Wuhan?": Do Law Schools Operating in Authoritarian Regimes Have Human Rights Obligations Keynote Address

Martin S. Flaherty

American law schools and universities are globalizing as never before. This academic form of globalization ranges from modest student and faculty exchanges with foreign counterparts to joint degree programs to full campuses abroad. International initiatives by U.S. academic institutions are numerous and only likely to grow. Yet what happens when a U.S. academy reaches out to do business with, or in, an authoritarian regime? The results to date are not encouraging. Scholarly interaction in theory promotes such mutual benefits as understanding, dialogue, and exposure to fresh ideas. Two recent, high-profile examples, however, suggest potential costs. Yale, joining with the National University of Singapore, has for the first time lent its name to a campus outside New Haven. Aside from working with a regime that poses significant human rights concerns, the Yale-NUS initiative has gone further to ban student political protests and organizations from its grounds. Along similar lines, a number of deans from self-proclaimed leading U.S. law schools recently held a "summit" meeting in China with their Chinese counterparts. They did so, however, in the midst of a most brutal crackdown on lawyers and law professors that included disappearances, detention, and torture. None of these leading deans indicated any awareness of the situation, commented on it, or took up subsequent NGO efforts to involve them in addressing the problem. These lapses suggest that U.S. law schools and universities can and should do better. International human rights law does not directly address this problem, but industry efforts at self-regulation do suggest ways forward. These include a need for institutions to (1) educate themselves about the human rights record of a host or partner regime; (2) consider alternative partners where feasible; (3) refrain from actions that contribute to human rights violations; (4) deliberately promote the rule of law and fundamental rights; and (5) constructively engage a government when it commits serious human rights abuses, especially as it affects those persecuted for exercising academic freedom or providing legal representation for unpopular causes. Whatever the precise solutions, academic leaders in the United States must at least begin by acknowledging that doing business with authoritarian regimes creates problems that can no longer be ignored.

 Globalization and Legal Education, Legal Education Reform, Human Rights
5 Drexel L. Rev. 317

Beyond Colonization–Globalization and the Establishment of Programs of U.S. Legal Education Abroad by Indigenous Institutions

Larry Catá Backer and Bret Stancil

This Article will look at globalization in the context of higher education and, in particular, higher legal education. The objective will be to think about the ways in which non-U.S.-based law schools are now offering American-style legal education to supply the U.S. legal market or produce U.S.-trained lawyers in the home-state market or for other legal markets outside the United States. Specifically, this Article will first discuss the history of higher education as a national project and more recent trends and efforts to globalize higher education. The conceptual framework is informed by cosmopolitan, imperial, or national aspirations. Starting from a definition of legal education globalization, this Article considers the history of legal education as a national and international project. It then examines recent efforts to globalize legal education as an exercise in American cosmopolitanism, internationalism, and nationalism. The Article will then critically assess arguments that, in light of certain characteristics of legal systems and legal education, globalization of legal education may implicate notions of cultural imperialism, in whatever form it takes. It then turns to an examination of one of the more interesting manifestations of globalization abroad — nationalist globalization in the form of developing American law schools outside the United States by non-U.S. educational entities — by concentrating on two examples, one from Spain and the other from China. Finally, after discussing the ways in which the globalization of American legal education may affect recipient cultures, this Article will take the reverse perspective and hypothesize on how the American legal education system may be affected by the same exportation.

 Globalization and Legal Education, Transnational Law
5 Drexel L. Rev. 371

A Flat Earth for Lawyers Without Borders? Rethinking Current Approaches to the Globalization of Legal Education

Vasuki Nesiah

A powerful assemblage of forces seems to be ensuring that the transnational colonizes the hearts and ambitions of emerging cadres of law graduates. Over the last twenty-five years, the legal academy has been shifting alongside, and in reaction to, the movement of people, capital, and goods across borders and the legal regimes that enable and regulate such movement. Thus, the structure and curricula of law schools are being revised in navigating a dizzyingly polycentric world. Yet the current trajectory seems fraught with tensions. On the one hand, the accent is on diversity; on the other, the cumulative effect seems to engender convergence and empower standardization. On the one hand, the reforms have been aimed at revitalizing legal education; on the other, educational goals seem to be downsized to the needs of legal practice. On the one hand, the focus is on responding to social needs; on the other, there seems to be a heightened disconnect from the need of marginalized populations. This Article maps the current debate on globalizing legal education, highlights its stakes, and explores how we may change the terms of the debate. It urges that a core challenge and promise of globalized legal education is to foster critical experimentation and intellectual heterodoxy so that we are better able to problematize received professional conceits and productively disorient our conceptual frontiers. To address this challenge and realize this promise, we will be aided by further research on the relationship between the current trajectory of the globalization of legal education and the structures of global governance — research that studies the political economy of current trends and maps the legal consciousness that accompanies it in order to better understand the complex and multi-directional processes through which legal knowledge gets disseminated, translated, and transformed. If we take legal education as an already-globalized terrain, then the debate is not about whether to globalize but about the direction of globalization, i.e., the multiple contested visions of global legal architecture that are at stake. Thus, globalization should not be measured by the number of transnational law school partnerships or study-away sites, but by whether the globalization of legal education has better equipped us to productively unsettle received ideas while boldly imagining alternative institutional arrangements in shaping the zeitgeist in which we teach, research, and study.

 Globalization and Legal Education, Transnational Law
5 Drexel L. Rev. 391

Educating Global Lawyers

Kath Hall

This Article considers the recent growth of global law firms. Global firms now employ thousands of lawyers, have multiple offices around the world, and generate billion-dollar profits. As a result, legal academics need to consider how to provide opportunities for students to reflect upon the realities of global legal practice. Using a discussion of the Central Asian Baku-Tbilisi-Ceyhan (BTC) pipeline case, the Article demonstrates the powerful role that global lawyers play in structuring complex legal transactions for multinational clients. It argues that, as the boundaries between clients' economic goals and their social and environmental responsibilities move closer, law students need to be prepared for the responsibilities and tensions this creates.

 Globalization and Legal Education, Professional Responsibility and Ethics, Transnational Law
5 Drexel L. Rev. 407

Found in the Translation: The Value of Teaching Law as Culture

Kerstin Carlson

Although the study of law within its larger culture is emerging, recognition of law as culture is still generally nascent within legal studies and pre-professional programs. In fact, the greater recognition of law's social and political role may have impeded a consideration of law's role as culturally specific. Yet, as law practice becomes more globalized, such awareness is an increasingly necessary element of any practitioner's toolkit. This Article explores three examples of cross-cultural blunders to demonstrate the necessity of being sensitive to law in cultural context.

 Globalization and Legal Education, Legal Theory, Practical Guidance and Strategy
5 Drexel L. Rev. 423

Finding the Pearls When the World Is Your Oyster: Case and Project Selection in Clinic Design

Sarah H. Paoletti

Clinical legal education is distinguishable from the rest of the law school curriculum and the extracurricular activities available to law students because it places students directly into the role of a lawyer engaged in real-world practice. Clinical programs are often defined by the cases and projects — the pearls at the heart of the experiential learning experience — that comprise their dockets. Finding the right cases and projects that meet a range of goals remains a perennial challenge in clinic design. In the context of international human rights clinics, the world is your oyster, and that challenge is magnified. This Article identifies a set of core lawyering competencies — skills and values — essential to successful practice in a globalized world, and argues that those competencies should drive the pedagogical goals that serve as the criteria against which to assess the value of the clinical teaching pearls. Building on prior scholarship by international human rights clinical law faculty, and analyzing case studies from the Transnational Legal Clinic at the University of Pennsylvania Law School, this Article then examines the benefits and challenges for students engaged in a range of individual and project-based human rights representations. This Article concludes with the provocative and important question: How can we prevent the risk of harm to the often unfamiliar and fragile ecosystems into which we dive in search of our teaching pearls?

 Globalization and Legal Education, Pedagogy
5 Drexel L. Rev. 479

Law, Sexuality, and Transnational Perspectives

Holning Lau

Law teachers can enrich students' experiences by incorporating transnational perspectives into their course materials and classroom discussions. This contribution to Drexel Law Review's Symposium — Building Global Professionalism: Emerging Trends in International and Transnational Legal Education — explores four ways that teachers can integrate transnational perspectives into classes on law and sexuality. First, teachers can situate U.S. law in the context of transnational norms. Second, by using foreign cultures as a foil, teachers can illuminate cultural constructs in the United States that influence the regulation of sexuality. Third, when discussing potential reform of U.S. law, classes can explore legal innovations developed in foreign jurisdictions. Fourth, classes can discuss transnational lawyering to prepare students who wish to pursue sexuality-related advocacy abroad.

 Globalization and Legal Education, Legal Education Reform, Transnational Law
5 Drexel L. Rev. 497

A Global Approach to Legal Writing and Legal Research: An Evolutionary Process

Diane Penneys Edelman

Thirty-some years ago, American law schools reserved the study of in-ternational law for upper-level students, keeping the first year of law school focused on the traditional doctrinal subjects of torts, contracts, property, civil procedure, criminal law, and, perhaps, criminal procedure and constitutional law. Similarly, legal writing and legal research, both fledgling fields, dealt primarily with instruction in customarily domestic strategies — American statutory and common law research, preparation of legal memoranda advising clients or senior attorneys about domestic law issues, and preparation of legal briefs set in real or fictional state and federal courts. A handful of law schools introduced international law concepts in legal research and legal writing courses, but generally, international law and related subjects were considered material for substantive, and not skills, courses.

Skip ahead to the present. Once following similar approaches to the first-year curriculum, law schools have begun to experiment — to offer electives to first-year students (often including international law courses), to add a greater variety of skills courses, and the like. The number of legal writing courses and legal research courses that offer assignments that deal with international law — either as applied by U.S. courts or courts abroad — has increased greatly. Moreover, legal writing and legal research professors have branched out internationally in many ways, including developing courses and programs for international students and guiding our colleagues abroad in developing their own legal research and writing programs.

This Article will focus on this evolution in legal skills teaching and its implications for the future, including the place of legal skills teaching in the broader area of globalizing legal education.

 Globalization and Legal Education, Legal Writing, Pedagogy
5 Drexel L. Review 1

Criminal Law and Sentencing: What Goes with Free Will?

R. George Wright

This Article notes that increasing numbers of scholars have argued that minimizing our collective belief in the possibility of genuine free will and moral responsibility would likely create a more humane, compassionate, enlightened, and generally progressive criminal justice and sentencing system. As it turns out, though, we must instead conclude that such optimism does not seem warranted.

 Criminal Law, Punishment Theory, Philosophy of Law
5 Drexel L. Review 49

Purchasers Lacking Privity Overcoming "The Rule" for Express Warranty Claims: Expanding Judicial Application of Common Law Theories and Liberal Interpretation of U.C.C. Section 2-318

Gary E. Sullivan and Braxton Thrash

This Article examines the states wrangling over competing versions of section 2-318 and the ever-expanding use of alternative common law theories by courts, specifically concerning the law of express warranties, with-out focusing on the already heavily commented-on question of whether privity should exist at all.

 UCC, Contract Theory, Contract Law
5 Drexel L. Review 101

Dubious Difference: Reassessing Appellate Standards of Review in Immigration Appeals

Michael Kagan

The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. These weaknesses are particularly acute in immigration appeals and help explain why the 2002 streamlining of the Board of Immigration Appeals has proven problematic for the federal courts.

 Immigration, Administrative Law, Appellate Practice
5 Drexel L. Review 165

Bridging the Gap: How Introducing Ethical Skills Exercises will Enrich Learning in First-Year Courses

Miriam R. Albert and Jennifer A. Gundlach

Law schools have begun to raise the bar beyond the baseline mandates and aspirational goals of MacCrate and Carnegie, and are looking seriously at how to implement the suggested methods of Best Practices and/or other innovative models. Facing increasing pressure to prepare law students to be ethical, competent practitioners, law schools must rise to the challenge of introducing a broad range of practical skills and ethical values across the curriculum and throughout the students' three years of law school.

 Professional Responsibility and Ethics, Legal Education Reform, Pedagogy
5 Drexel L. Review 207

Note: Authorized: The Case for Duty of Loyalty Suits Against Former Employees Under the Computer Fraud and Abuse Act

Christopher Dodson

The Computer Fraud and Abuse Act (CFAA) includes a provision for civil suits against anyone who engages in certain computer-based acts "without authorization." However, the statute leaves "authorization" conspicuously undefined.

 Employment Law
5 Drexel L. Review 237

Note: The United States and Material-Support Bar for Refugees: A Tenuous Balance Between National Security and Basic Human Rights

Jordan Fischer

Assessing the implications of the material-support bar in the refugee context, this Note focuses on the United States's deviation from its obligations in offering refugee protection under international law following the September 11th World Trade Center attacks and its continued departure from international standards in the Holder v. Humanitarian Law Project decision.

 Refugee and Asylum Law, National Security, Human Rights
5 Drexel L. Review 265

Note: Knowledge Is Power: Physician Abandonment as a Model for the Duty to Disclose Research Findings

Rachel A.H. Horton

This Note evaluates the adequacy of the legal relationships that currently exist between parties in a genetic research project. It then proposes that researchers and physicians owe a duty to disclose certain findings to research participants, using the common law tort of physician abandonment as a model for the duty to disclose.

 Health Law
4 Drexel L. Review 297

A Trial Attorney's Dilemma: How Storytelling as a Trial Strategy Can Impact a Criminal Defendant's Successful Appellate Review

Todd A. Berger

Over the past thirty years, a canon of scholarship has emerged on the use of narrative in the law. Most of the work produced in this area endorses the use of narrative, either by arguing its importance or by focusing on how best to employ narrative as a form of advocacy. The scholarship to date has not focused on how the criminal defendant's use of storytelling at trial can adversely impact appellate review when sufficiency-of-the-evidence and weight-of-the-evidence claims are raised on appeal. This Article posits that in addition to advising a criminal defendant on the potential merits of testifying at trial, the trial attorney should also inform his client of the potential adverse impact certain types of narratives will have on appeal. By demonstrating how the criminal defendant's storytelling at trial can negatively impact the defendant's appeal, this Article provides a counter-point to the ever-growing focus on the use of storytelling as an essential component of criminal-trial practice.

 Practical Guidance and Strategy, Rhetoric, Criminal Law
4 Drexel L. Review 319

We the People: The Consent of the Governed in the Twenty-First Century: The People's Unalienable Right to Make Law

George A. Nation III

The People of America love democracy. Americans do not love democracy because it is efficient; in some ways, other forms of government may respond more quickly. Americans do not love democracy because it is without problems; while a strong democracy will prevent the tyranny of the few over the many, it requires constant vigilance to protect individual rights from the tyranny of the many over the few. Americans do not love democracy because it is perfect—it is not; it is only as good as we make it. Americans love democracy because doing so is simply part of our culture; our shared love of democracy creates a bond that binds together our diverse people and our vast continent. Americans love democracy because it and it alone has the potential to provide a moral, fair, and just government. This is so because our democracy recognizes that the only legitimate source of governmental power comes from those subject to the government's exercise of power—the consent of the governed. Under our Constitution, neither the federal government nor the state governments are sovereign; nor do these governments somehow share sovereignty. In America, the People alone are sovereign; all governments (federal, state, and local) are mere agents of the People, subject always and in every case to their ultimate au-thority. As a result, democracy (popular sovereignty-majority rule) makes possible the creation of a society that fully embraces mutual respect for individual rights while allowing and encouraging just and fair collective action that benefits the overall society.

 Jurisprudence, Political Theory, Election Law
4 Drexel L. Review 399

Law Review Scholarship in the Eyes of the Twenty-First-Century Supreme Court Justices: An Empirical Analysis

Brent E. Newton

Chief Justice John Roberts recently threw fuel on the fire of the perennial debate about the practical value of American law review articles when he stated that, as a general matter, law reviews are not "particularly helpful for practitioners and judges." The Chief Justice is the most prominent among an increasing number of critics who have declared that, during recent decades, there has been a growing disconnect between law review articles written by law professors and the needs of the bench and bar in legal scholarship. Furthermore, there is convincing evidence that a substantial amount of law review scholarship today is not considered useful even by other law professors.

* download Appendix (pdf)PDF file.

 Federal Courts, Legal Writing
4 Drexel L. Review 417

What Is "Good Legal Writing" and Why Does It Matter?

Mark K. Osbeck

Law schools face increasing pressure to improve instruction in practice-oriented skills. One of the most important of these skills is legal writing. The existing literature on legal writing contains various rules and suggestions as to how legal writers can improve their writing skills. Yet it lacks an adequate theoretical account of the fundamental nature of good legal writing. As a result, legal writers are left without a solid conceptual framework to ground the individual rules and suggestions. This Article attempts to fill the theoretical void in the literature by offering a systematic analysis of what it is for a legal document to be well written. It starts by examining a foundational conceptual issue, which is what legal writers mean when they say that a legal document is well written.

 Practical Guidance and Strategy, Legal Writing, Pedagogy
4 Drexel L. Review 467

Stealth Constitutional Change and the Geography of Law

Jill M. Fraley

Bruce Ackerman's recent book, The Decline and Fall of the American Republic, is a sudden shift from his previous scholarship on constitutional moments and the ability of social movements to generate minor revolutions. By acknowledging how constitutional change did not fit into his model of deliberate, deeply debated movements, Ackerman has shifted the scholarly lens to unintentional and unanticipated structural variations. Ackerman focuses his book on the political processes and events that have fostered potentially illegitimate constitutional remodeling. He acknowledges that certain features of legal scholarship have contributed to a lack of awareness of slow, structural drift, but he does not address the question in earnest, as I do in this Essay.

 Legal History, Legal Theory
4 Drexel L. Review 487

Note: Privacy in the Cloud Frontier: Abandoning the "Take It or Leave It" Approach

Scott Bender

Imagine that you have just finished composing an e-mail, checking your favorite social networking website, and watching a streaming video online. This scenario should not stretch the imagination considering that, on average, 294 billion e-mails are sent each day, Facebook maintains an active user base of over 800 million members, and over 3 billion videos are watched each day on YouTube.

Privacy, Contract Law, Technology
4 Drexel L. Review 523

Note: You Can Pick Your Friends, but You Cannot Pick Off the Named Plaintiff of a Class Action: Mootness and Offers of Judgment Before Class Certification

M. Andrew Campanelli

Among all of the complexities of class actions, courts have consistently struggled with applying traditional principals of mootness to the named plaintiff of a proposed class action complaint and determining its corresponding effect class-wide. Courts have reached differing—and often irreconcilable—positions where (1) a named plaintiff's claim has been rendered moot before filing a motion for class certification, or (2) before the motion for certification has been decided. This ambiguity has generated a tactical mechanism for defendants, dubbed by the Court as "picking off" or "buying off" the named plaintiffs. "Picking off" is accomplished by submitting an offer of judgment to the named plaintiff under Federal Rule of Civil Procedure 68, thereby satisfying the plaintiff's claim in its entirety. This Note argues that in a proposed class action suit, a defendant's offer for complete satisfaction of a named plaintiff's claim—a Rule 68 offer—prior to certification should not render the entire claim moot if that offer was made with the intent to avoid class litigation of the issue by intentionally "picking off" the named plaintiff before the named plaintiff could reasonably file for class certification.

 Civil Procedure, Federal Courts
4 Drexel L. Review 555

Note: Hacking Through the Thicket: A Proposed Patent Pooling Solution to the Nanotechnology "Building Block" Patent Thicket Problem

Amber Rose Stiles

Over-patenting and the issuance of overly-broad nanotechnology "building block" patents by the United States Patent and Trademark Office have generated a densely enmeshed patent thicket that seems impossible to navigate. The nanotechnology "building block" patent thicket is preventing the commercialization of useful innovations. Collaborative effort to construct patent pools composed of the specific "building block" nanotechnology patents provides a feasible, promising, and practical means of untangling the complicated nanotechnology patent thicket.

 Patent Law
4 Drexel L. Review 1

Foreword

Barry R. Furrow

The reform of medical malpractice litigation has been a constant refrain in legislative and academic circles for forty-five years, starting with the 1970 "crisis" in medical liability insurance. In fact, as Rob Field has noted, calls for reform go back to the 1800s. Once lawyers began to sue on behalf of injured patients, doctors began to complain. Why? Because suits (1) target high status professionals and their own deeply felt needs to be perfect; (2) inflict pain on them not only by imposed damage costs, but also by the mere fact of naming them as defendants; and (3) present a dramatic story of injury and draw attention to bad medicine, reminding everyone how dangerous medicine can be. Nothing has changed, except that medicine is far more dangerous today in the frequency of harms caused—the consequence of modern medicine's power to treat far more health care problems with powerful and invasive tools.

 Symposium Introduction
4 Drexel L. Review 7

The Malpractice Crisis Turns 175: What Lessons Does History Hold for Reform?

Robert I. Field

The widespread perception of a medical liability crisis is anything but new. In fact, the emergence of malpractice litigation as a common feature of American jurisprudence and the sense of legal siege in the medical community date back more than 175 years to the 1830s. Several factors have been identified as possible causes. For the most part, these factors relate to changes in medicine and in society at large as America entered the Industrial Revolution. They can be grouped into three broad categories: advancing technology, greater standardization and oversight of practice, and expanded professional autonomy. Reform efforts to date have largely ignored this historical context. Perhaps such efforts would alleviate the perennial sense of crisis more effectively if they took these longstanding underlying features of American medicine into account. The first two factors have played instrumental roles in improving the quality of care, making them less than appealing targets for change. However, the third has led to a culture of entrepreneurship among physicians with no apparent clinical benefits. Therefore, the nature of professional autonomy, especially as it relates to the business structure of medical practice, may represent the most fruitful avenue for effectuating meaningful change in a perceived crisis that has persisted for almost two centuries.

 Medical Malpractice, Legal History
4 Drexel L. Review 41

The Patient Injury Epidemic: Medical Malpractice as a Curative Tool

Barry R. Furrow

The debate over medical liability is noisy, discordant, and riddled with false claims. Reform proposals have typically aimed to reduce lawyers' incentives to sue by capping noneconomic damages, reducing contingency fees, or making the case more expensive to try. Physicians and the public have been fed a drumbeat of misinformation about "frivolous" litigation, which seems to mean any lawsuit against a doctor. Patients, having progressively lost access to lawyers and to full damage recovery, are forced to consider alternative dispute resolution mechanisms that offer significantly less money in forums that can often be controlled and gamed by repeat players—insurers, hospitals, or managed care organizations. Insurers support any kind of reform, particularly damage caps that reduce their exposure to claims. Politicians use the extreme outlier cases to propagandize and overstate the need for reforms, then offer up reforms that reduce the power of the trial bar. Politicians then wave the banner of cost savings that are never convincingly established. And practitioners of popular behavioral economics toy with the merits of patient waivers of their right to sue as an "efficient" approach to claims for medical injuries.

 Medical Malpractice, Tort Liability
4 Drexel L. Review 109

French Medical Malpractice Law and Policy Through American Eyes: What it Reflects About Public and Private Aspects of American Law

Marc A. Rodwin

When examining law outside our native country, we often learn as much about our own legal and social system. This Article seeks to illuminate medical malpractice law and policy in the United States as well as in France. To this end, I analyze a major reform that France began in 2002, and situate it in relation to American law and policy.

 Global Perspectives on Medical Liability and Reform, Medical Malpractice, Jurisprudence
4 Drexel L. Review 139

The Perruche Case and French Medical Liability

Brigitte Feuillet

In this Symposium on medical liability, I think it is important to devote an Article to a case that raises questions of both liability law and ethics, and to examine how society perceives the birth of a child with disabilities. In France, the Perruche case raised these issues and ignited an extremely important debate.

 Global Perspectives on Medical Liability and Reform, Medical Malpractice, Reproductive Rights
4 Drexel L. Review 151

The Role of Insurance in Compensation for Medical Injuries since the Kouchner Act

Phillippe Pierre

In 2002, the French legislature reformed the country's medical liability law with the Kouchner Act (formally called the Act of March 4, 2002). This reform was the result of an assessment that liability law and private insurance as they then stood had been inadequate to compensate all victims with legitimate claims.

 Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 165

French Medical Malpractice Compensation since the Act of March 4, 2002: Liability Rules Combined with Indemnification Rules and Correlated with Several Kinds of Proceedings

Dominique Thouvenin

The Act of March 4, 2002 (Kouchner Act), aimed to improve the conditions for compensation of medical accidents, taking into ac-count both the interests of patients and the concerns of doctors. The reforms were made possible by advancing the idea that "the existing system was satisfactory neither for the victims, nor for health professionals." Patients wanted to receive better compensation, equal treatment, and more rapid recovery. Health professionals felt that the courts interpreted rules in ways that expanded their liability. They expressed "growing concern" at this development, fearing a dérive à l'américaine ("a drift to the United States") and the development of "defensive" medicine, a shift perceived as deleterious to patients' interests.

 Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 199

Australia: An Integrated Scheme for Regulating Liability for Medical Malpractice and Indemnity Insurance Martkest that Does Not Include the Goal of Improving the Safety and Quality of Health Care

Angus Corbett

The successful regulation of compensation for harms caused by medical malpractice is an important achievement in Australia. While this is a significant achievement, it is also crucial to identify the costs of this set of regulatory initiatives. This Article outlines the two major sets of initiatives that have successfully regulated claims for compensation associated with medical malpractice. The first set of initiatives has imposed limitations on a plaintiff's right to claim compensation and the amount of damages a successful plaintiff is entitled to recover. Developments in the common law have increased the effectiveness of these initiatives. The second set of initiatives has had the aim of creating an effective and prudentially sound market for medical indemnity insurance. The aim of this set of initiatives has been to ensure that medical professionals are able to purchase reasonably priced indemnity insurance policies.

 Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 217

A Medical Malpractice Model for Developing Countries?

Nathan Cortez

For all the angst over medical malpractice litigation in developed countries like the United States, very little has been written about it in the developing world. Developing countries account for more than 80% of the world's population, but they are often an afterthought in comparative health law literature. Noteworthy comparative compilations include either very few developing countries or none at all. For example, the iconic treatise International Medical Malpractice Law by Dieter Giesen focuses mostly on wealthy, developed countries like our own. And the more recent corpus of comparative health literature published in American law reviews focuses mainly on the usual suspects — Canada, the United Kingdom, France, Germany, Japan, and Australia.

 Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 243

Public and Private Justice: Redressing Health Care Harm in Japan

Robert B. Leflar

Japanese legal structures addressing health care-related deaths and injuries rely more on public law institutions and rules than do the common-law North American jurisdictions, where private law adjudication is predominant.

This Article explores four developments in twenty-first-century Japanese health care law. The first two are in the public law sphere: criminal prosecutions of health care personnel accused of medical errors, and a health ministry-sponsored "Model Project" to analyze medical-practice-associated deaths. The Article addresses a private law innovation: health care divisions of trial courts in several metropolitan areas. Finally, the Article introduces Japan's new no-fault program for compensating birth-related obstetrical injuries.

 Global Perspectives on Medical Liability and Reform, Medical Malpractice, Foreign Law
4 Drexel L. Review 265

Moral Hazard: The Pros and Cons of Avoiding Data Bank Reports

Haavi Morreim

Over the years, tort litigation has been the predominant mechanism for patients to seek accountability for the quality of their health care. From time to time, however, legislation has also emerged to address one or another perceived problem in health care quality — sometimes with unexpected consequences. This Article addresses one such statute and the adverse consequences it has come to exhibit.

 Medical Malpractice, Patient Safety
3 Drexel L. Review 373

War Crimes and Misdemeanors: Understanding "Zero-Tolerance" Policing as a Form of Collective Punishment and Human Rights Violation

M. Chris Fabricant

A fundamental principle of criminal law is that individuals may only be punished for offenses which they have personally committed; any punish-ment must be personal and individual. To that end, international law proscribes as collective punishment any sanction imposed on a population without regard to individual culpability for the offense that provokes the penalty. Compstat-based zero-tolerance or order-maintenance policing, the prevailing thesis in contemporary law enforcement, punishes entire com-munities for the crimes of a few. More specifically, zero-tolerance policing seeks to deter violent crime not by apprehending those relatively few perpetrators of crime, but by indiscriminate search-and-seizure operations and wholesale misdemeanor arrests for minor quality-of-life offenses in the neighborhoods where violent crimes occur, typically poor communities of color. As a form of collective punishment, such policing is contrary to international human rights law.

 Community Policing, Racial Inequality
3 Drexel L. Review 415

Dialectical Jurisprudence: Aristotle and the Concept of Law

John T. Valauri

Western law, culture, and philosophy thought that they were saying goodbye to Aristotle as they entered into modernity, only now to find the ancient philosopher standing in wait as they leave modernity and enter into post-modernity. But what use do we have for Aristotle at this time? He can perform a valuable service for us — he offers a therapy for the "bipolar disorder" in contemporary jurisprudence and philosophy. This disorder is manifested in the widespread tendency to approach and analyze philosophical topics as dueling dichotomies, incapable of resolution or reconciliation. It is all too often assumed at the outset that one is faced with a stark either/or sort of choice between alternatives, so participants in the philosophical debates arising out of this approach typically take one side of the dichotomy and see it as their task to marginalize and diminish the other side of the dichotomy.

 Legal Theory
3 Drexel L. Review 457

Assessing Ourselves: Confirming Assumptions and Improving Student Learning by Efficiently and Fearlessly Assessing Student Learning Outcomes

Lori A. Roberts

The American Bar Association (ABA) is considering new accreditation standards for law schools that would require the faculty at each law school to not only assess individual student performance, but also to assess themselves as legal educators to ensure they are meeting their institutions' goals of student learning. This type of assessment is a relatively new concept in legal education because the ABA's current accreditation standards, unlike those of other professional educational programs, are based on inputs, rather than evidence demonstrating actual student learning. The ABA's proposed accreditation standards would require a law school to identify institutional learning outcomes, offer a curriculum that affords each student the opportunity to achieve those learning outcomes, assess its students' achievement in those areas, and assess itself as an institution by measuring the effectiveness of its programs in preparing students to become entry-level legal practitioners. These proposed accreditation standards have stirred a debate among legal educators regarding the justification for assessment and a scramble to determine how to comply.

 Legal Education Reform, Pedagogy
3 Drexel L. Review 485

Who Cares?

Gabriel H. Teninbaum

What form of question is recommended by some legal commentators as an effective way to persuade a jury, while derided by others as totally ineffective? What form of question do many trial advocates utilize, but few use with knowledge of when, how, or why it is persuasive? What form of question has been established by experimental scientists to be highly persuasive in some contexts but to decrease persuasiveness in others?

It is, of course, the rhetorical question.

 Legal Theory, Rhetoric
3 Drexel L. Review 521

Advice and Consent for Federal Judges: A New Alternative Based on Contract Law

David F. Tavella and Anne Marie Tavella

It will come as no surprise that there is a serious problem regarding the number of vacancies in the United States federal courts, both in the courts of appeals and the district courts. Approximately 11% of the available judicial seats are vacant. In 2010, a position in the Court of Appeals for the Fourth Circuit was filled after remaining vacant since 1994. This causes an obvious detriment to the efficiency of the courts.

 Separation of Powers, Federal Courts, Contract Theory
3 Drexel L. Review 539

Beyond Case Reporters: Using Newspapers to Supplement the Legal-Historical Record (A Case Study of Blasphemous Libel)

Jeremy Patrick

For decades, students in American and Canadian law schools were taught a particularly narrow vision of what constituted legal research. To the students, who eventually became lawyers, scholars, and judges, legal research meant consulting cases and statutes contained in print volumes. Some particularly ambitious researchers went further afield to look at law review articles and treatises, sources which themselves often constituted nothing more than extensive doctrinal analyses of the same cases and statutes. As Robert Berring notes, "Legal researchers learned that certain sets of books were authoritative and reliable. If used correctly, such sources provided 'the' information."

 Practical Guidance and Strategy
3 Drexel L. Review 561

The Ghost in the Global War on Terror: Critical Perspectives and Dangerous Implications for National Security and the Law

Nick J. Sciullo

In this Article, I set out to discuss the dangerous implications of the Global War on Terror (GWOT) and, more generally, the attempts of the United States government to address notions of terrorism and its effect on the safety of the United States and world citizens. I am primarily concerned with engaging a poststructuralist critique of the GWOT to strengthen legal discussions of terrorism and national security policy. While many in the legal academy have focused on particular issues relating to terrorism, I will engage in a macro-level analysis of the way the legal academy conceptualizes terrorism — not how it discusses acts of terrorism. While I am concerned with the legal basis for the GWOT, I am more concerned with how our idea of terrorism affects our ability to address terrorism in our legal and political lives and how these decisions affect our national and personal security.

 National Security, Legal Theory, War Powers
3 Drexel L. Review 583

Note: Adjusting the Individual Duty of Disclosure to Meet the Reality of Corporate Participation in Patent Prosecution

Stephen M. Lund

On July 31, 2000, Exergen Corporation filed an amendment to a patent application for a thermometer with the United States Patent and Trademark Office (PTO) in an attempt to convince the patent examiner to grant a patent. In the amendment, Exergen made the argument that "[w]hat had not been generally appreciated by those skilled in the art of temperature measurement was that the superficial temporal artery . . . provides an exceptionally reliable temperature reading." On that same day, anyone reading product descriptions on Exergen's website could have found that "[t]he temporal artery area has a long history of temperature measurement, dating back to the early centuries before Christ . . . ."

 Patent Law
3 Drexel L. Review 607

Note: Land Banking as a Tool for the Economic Redevelopment of Older Industrial Cities

Diana A. Silva

Urban communities of the Northeast and Midwest, so-called older industrial cities, continue to struggle with the economic redevelopment of their downtown areas, facing the challenges of a declining urban industrial base, suburban flight of businesses and residents, and blighted and abandoned properties. The most recent shockwave for many cities has been the foreclosure crisis, in which previously stable neighborhoods have seen sharp increases in foreclosures and vacancy rates as a result of sub-prime mortgages. Policy makers have struggled to formulate innovative responses to ameliorate the current economic meltdown. Congress responded with the passage of omnibus economic stimulus legislation, including the American Reinvestment and Recovery Act of 2009 (ARRA) and the Housing and Economic Recovery Act of 2008 (HERA), which include provisions to boost economic productivity, create jobs, and forestall the continuing decline in the housing market. Some states, counties, and cities faced with the challenges of being older industrial communities have pursued an additional and unique path for economic redevelopment with marked success: land banking.

 Land Use Law
3 Drexel L. Review 1

Introduction

Richardson Dilworth

This symposium issue of the Drexel Law Review provides an in-depth examination of business improvement districts (BIDs) in Philadelphia, including case studies of each BID in the city, commentary on those case studies by law school faculty (Richard Briffault, Gerald Frug, Nicole Stelle Garnett, and Richard Schragger), and essays by three practitioners (Paul Levy, Lawrence Houstoun, and Dan Hoffman) who have worked closely in and around the world of BIDs, both in Philadelphia and elsewhere. In this introduction, I discuss the case studies and commentaries to provide a brief historical overview of the role of BIDs in Philadelphia, and I will suggest how one may see the role of BIDs in the city as part of a process of institutional evolution.

 Symposium Introduction
3 Drexel L. Review 11

The Seductions of Form

Gerald E. Frug

Philadelphia has more than a dozen business improvement districts, entities commonly called BIDs. The papers in this Symposium describe each of them in some detail. This kind of study is both valuable and unusual. Although BIDs have been subject to academic analysis in general terms, this Symposium offers the first examination that I know of the different BIDs within a single city. It thereby enables a comparative view within one legal system of what a BID is and what it does. My focus here will concentrate on one question concerning Philadelphia's BIDs: in creating these kinds of institutions, whom exactly has the legal system authorized to tap precisely what kinds of resources to do what? As I argue below, Philadelphia's BIDs offer a wide variety of answers to each of the elements in this question. These differences generate for me a puzzle — why have so many different neighborhoods adopted the same legal form to accomplish such different objectives?

 Business Improvement Districts, Urban Governance
3 Drexel L. Review 19

The Business Improvement District Comes of Age

Richard Briffault

It is difficult to say precisely when the business improvement district (BID) was born. BIDs emerged out of legal structures and concepts that date back many decades, but the specific BID form is a relatively recent development. By some accounts, the first BID in the United States was the Downtown Development District of New Orleans, which was established in 1975. Few BIDs were created before 1980, and in most places the surge in BID formation did not really get going until around 19902 — the year that Philadelphia's Center City District was first established. Although new BIDs were created on a regular basis around the country throughout the 1990s and 2000s, it is fair to say that 2010 marks the completion of two decades of what I will call the BID movement — that is, the development and spread of, and the academic and public debate about, this new structure of urban governance. The BID combines public and private, as well as city and neighborhood features, in novel and interesting ways, and it provides a useful means of maintaining and supporting the urban environment. Yet, as many critics have pointed out, the BID also raises troubling issues of urban service inequality, accountability, and the focus of urban governance. It is hard to imagine a better way to analyze the coming of age of the business improvement district than through the extraordinary collection of studies of Philadelphia's BIDs in this issue of the Drexel Law Review.

 Business Improvement Districts, Urban Governance
3 Drexel L. Review 35

The Business Improvement District Comes of Age

Nicolle Stelle Garnett

Business improvement districts (BIDs) have become a ubiquitous feature of the urban development toolkit. An important — perhaps the most important — instantiation of the trend in urban governance toward the devolution of local authority to new "sublocal," quasi-governmental institutions, BIDs play an important role in urban re-development efforts, especially efforts to revitalize downtowns and satellite center-city business districts. It would be difficult to disentangle the remarkable resurgence of Center City, Philadelphia, for example, from the rise of the Center City District, a BID that spends millions of dollars each year on a wide range of public services, including sanitation, street beautification, capital improvements, business promotion, supplementary security, and even the operation of a community court. Despite (or perhaps because of) the apparent successes of high-profile BIDs like the Center City District, BIDs remain controversial, with some commentators praising them as an ingenious way to overcome the collective action problems that prevent neighbors from voluntarily organizing to address community problems and others condemning them as dangerously anti-democratic and privatizing.

 Business Improvement Districts, Urban Governance
3 Drexel L. Review 49

Does Governance Matter? The Case of Business Improvement Districts and the Urban Resurgence

Richard Schragger

At the turn of the twenty-first century, the problem of urban economic development has elicited a kind of entrepreneurial, market-oriented response from city leaders. The driving assumption is that cities are competing with one another and with the suburbs for residents, firms, and consumers. According to many policymakers, cities can only compete with other places by creating a market-oriented environment that is responsive to both consumer and resident desires. Indeed, a central preoccupation of the turn-of-the-century city has been to provide particular consumption amenities to a highly mobile and increasingly demanding populace. In particular, cities have sought to attract individuals with high incomes and high levels of education. The argument has been repeatedly made that cities that create attractive and inviting areas in which to live, shop, eat, and recreate will win the competition for that demographic and will ultimately do better economically than cities that do not.

 Business Improvement Districts, Urban Governance
3 Drexel L. Review 71

Business Improvements in Philadelphia: A Practitioner’s Perspective

Paul Levy

With this volume, Philadelphia can reflect on twenty years of experience with business improvement districts (BIDs). When the city first authorized the Center City District (CCD) in 1990, there was nothing like it in the region. Property owners in a high-tax city, mired in a severe national recession and municipal fiscal crisis, agreed to pay even more. For the press, it was the equivalent of a "man bites dog" story, providing the CCD with more than its share of coverage during both formation and launch. At the time, a BID existed nearby in Allentown, Pennsylvania, but that was beyond the region's horizon of awareness and in a smaller setting than anyone thought comparable to Philadelphia. BIDs were still a new national phenomenon, so it was to cities like New York and Portland, Oregon that the CCD planners had to look.

 Business Improvement Districts, Urban Governance
3 Drexel L. Review 71

Business Improvement Districts as a Tool for Improving Philadelphia’s Economy

Daniel Hoffman and Lawrence O. Houstoun, Jr.

There are an estimated 1500 business improvement districts (BIDs), most of them in North America. Their fundamental purpose is to improve business profitability and property values. BIDs are unusual among economic development tools in that the private sector beneficiaries are also the entities principally responsible for planning, managing, and financing the BID. In these ways, BIDs incorporate the concepts of sharing costs, responsibilities, and the benefits of district management.

The most effective BIDs overcome problems and capitalize on economic opportunities specific to the jurisdiction in which they function. Successful BIDs are not off-the-shelf products; the management and services of one rarely fit another. BID success and popularity is largely reliant upon the BID's ability to reflect private-sector priorities and generate, or otherwise obtain, reliable and sufficient financial resources so as to be able to address these priorities.

 Business Improvement Districts, Urban Governance
2 Drexel L. Review 361

Guest Editor’s Preface

Anil Kalhan

This symposium issue of the Drexel Law Review marks the anticipated launch of a new section on Law and South Asian Studies of the Association of American Law Schools, including several contributions that were initially presented during a session of the proposed section at the AALS Annual Meeting for 2010. The proposed AALS section comes at a moment of heightened interest in the region among lawyers, policymakers, and the public at large in the United States, and is part of a rapidly growing constellation of scholarly initiatives on law in South Asia that have emerged internationally in recent years.

 Symposium Introduction
2 Drexel L. Review 365

Foreword: World of Our Cousins

Marc Galanter

Most of the people who live under some version of the common law today live in South Asia, as do a large portion (perhaps a majority) of those who live under a working constitutional democracy. Nevertheless, until very recently this part of our world was quite invisible to the American legal academy and profession. It is a pleasure to introduce this symposium, apparently the first of any mainstream American law review to focus on South Asian law. Its appearance is one of several markers that the neglect of South Asia by American law schools is being left behind.

 Foreign Law, Human Rights
2 Drexel L. Review 373

The Substance of the Constitution: Engaging with Foreign Judgements in India, Sri Lanka, and South Africa

Shylashri Shankar

The last two decades have seen an expansion of judicial power in developing and newly democratizing countries across the globe. The enhanced role for the judiciary, which some scholars have categorized as a “juristocracy,” has accompanied a dialogue or at least a tendency for judges to look beyond their national borders at other courts for assistance in resolving difficult national, legal, and political disputes. The Supreme Court of Pakistan has drawn on the rationale of India’s apex court to support public interest litigation, while India’s courts have referred to judgments from South Africa, the United States, Canada and the European Convention on Human Rights (ECHR) to argue for a right to life with dignity. Such engagement with foreign laws has provoked criticism from influential judges like Justice Antonin Scalia of the U.S. Supreme Court for eroding national sovereignty and even imposing foreign interpretations on culturally contextual national issues.

 Foreign Law, Legal Theory
2 Drexel L. Review 427

No Justice, No Peace: Conflict, Socio-Economic Rights, and the New Constitution in Nepal

Elisabeth Wickeri

One day after the signing of the November 21, 2006 Comprehensive Peace Accord (CPA) between the Nepali government and the Communist Party of Nepal (Maoist), Kathmandu’s The Himalayan Times editorial board declared, “Nepal has entered into a new era of peace, democracy and governance.” The CPA formally ended the more than ten-year conflict waged by Maoist insurgents since 1996. Over the next thirteen months, a new interim constitution was adopted, the royal family’s property was nationalized, and a republic was declared, dissolving the world’s last Hindu royal kingdom. National elections were held the following year. For hundreds of thousands of Nepalis, peace was a welcomed change. In the southern plains and hill regions, where much of the guerilla fighting had been concentrated, farmers were finally able to return to work.

 Foreign Law, Human Rights
2 Drexel L. Review 491

Uterine Prolapse and Maternal Morbidity in Nepal: A Human Rights Imperative

Payal Shah

In 2008, the Supreme Court of Nepal recognized what maternal health advocates in Nepal had known for decades: the status of reproductive health of women in Nepal is in a serious state, and it is also clear that no plan has been made to address this problem. In the present context, there are approximately six hundred thousand women suffering from the problem of uterus prolapse and it is also evident that no preventive or remedial programs focusing on problems relating to reproductive health and uterus prolapse have been initiated. The Supreme Court’s proclamation in this case, Prakash Mani Sharma v. Government of Nepal (Sharma), marked the first time that a legal body, international or national, has recognized explicitly that a high incidence of uterine prolapse may constitute a violation of human rights, including specifically women’s reproductive rights.

 Foreign Law, Public Health, Reproductive Rights
2 Drexel L. Review 537

The Jammu and Kashmir State Subjects Controversy of 2004

Sehla Ashai

In 2004, the Jammu and Kashmir Legislative Assembly passed the Jammu and Kashmir Permanent Residents Disqualification Bill (the “Disqualification Bill”), which proposed that women who married nonstate subjects could no longer claim state subject status and would thereby lose both preferential treatment in government hiring and the ability to acquire new property in the State. Various political actors decried the Disqualification Bill’s violation of Kashmiri women’s fundamental rights under the Indian Constitution, while proponents of the Disqualification Bill issued apocalyptic pronouncements about the end of constitutionally guaranteed autonomy for Jammu and Kashmir if the Disqualification Bill failed to pass. Arguments for and against the Disqualification Bill fell largely along the lines of a false and dangerous dichotomy, casting feminism and Kashmiri autonomy as inherent opposites.

 Foreign Law, Legal Theory, Human Rights
2 Drexel L. Review 557

Political Censorship and Indian Cinematographic Laws: A Functionalist-Liberal Analysis

Arpan Banerjee

India produces more motion pictures than any other country. Indian cinema is synonymous with the extravagant musicals of “Bollywood,” a portmanteau word that the Oxford English Dictionary credits the British detective novelist H.R.F. Keating with inventing. There also exists a parallel arthouse genre of Indian cinema. Internationally, the most well-known proponent of the latter school is probably the late Bengali director Satyajit Ray, whose many laurels include an honorary Oscar for Lifetime Achievement. Throughout history, these two divergent cinematic schools have shared an unfortunate common characteristic—that of rigorous state censorship.

 Foreign Law, Human Rights, Legislative Reform
2 Drexel L. Review 1

Critical Enculturation: Using Problems to Teach Law

Keith H. Hirokawa

It is easy to lose oneself in both the excitement and enormity of the challenge that has become legal education. The recent publications of Best Practices for Legal Education and Educating Lawyers have reminded us that law teachers are shouldered with a task that extends beyond bar passage, duties that are felt beyond the teacher's own knowledge, and privileges that cannot be enjoyed in isolation, with paper and pen, in the law professor's office. Law teaching practices should focus on effective learning, and so the call has been made to reassess our teaching practices.

 Legal Education Reform, Pedagogy
2 Drexel L. Review 41

Writing at the Master’s Table: Reflections on Theft, Criminality, and Otherness in the Legal Writing Profession

Teri A. McMurtry-Chubb

The alert came over the university email one Friday afternoon. There had been a rash of burglaries in the vicinity of the university where I was employed as a legal writing professor. The culprits? Two finely dressed thirty-something women, and a white male in his mid-fifties. These well-heeled bandits gained entrance into various buildings and offices through trickery and deceit. Asking for fictional persons, they were given access to offices where they stole valuables from unsuspecting occupants. Of particular interest to me was that one of the offenders was described as a nicely dressed Black woman in her early thirties. I was nicely dressed, though not yet thirty, a woman, and definitely Black. I was a suspect.

 Legal Writing, Racial Inequality, Legal Theory
2 Drexel L. Review 63

Convergence in Electronic Banking: Technological Convergence, Systems Convergence, Legal Convergence

Amelia H. Boss

Walk through a neighborhood arts and craft fair and witness the convergence of payment systems firsthand: the jeweler manually makes a carbon copy of your Visa or will take a check if it is all you have; the glass blower accepts credit and debit cards with her wireless card reader; the woodcarver submits all payment information on his portable laptop; and the t-shirt vendor lets you take home a souvenir after submitting your card information via iPhone.1 From paper to Wi-Fi, the payment mediums and the systems through which they travel are becoming increasingly interchangeable.

 UCC, Technology, Regulation
2 Drexel L. Review 104

Secret Indictments: How to Discourage Them, How to Make Them Fair

John Stinson

The United States should discourage secrecy in criminal prosecutions through both its legal doctrine and policy. While secrecy is necessary in some circumstances, as a general matter, it threatens constitutional rights and contravenes our fundamental notions of fairness in the criminal adjudication process. In light of this, Rule 6 of the Federal Rules of Criminal Procedure (FRCRP) and the prevailing common law of secret indictments in federal courts must be reformed.

 Criminal Procedure
2 Drexel L. Review 152

The Federal Judiciary Salary Crisis

Blake Denton

The federal judiciary is revered in the legal world and stands as a testament to the virtues of our system of justice. As with any institution, its reputation is a function of the professionalism, intelligence, and hard work of its past and current members. Nominees for federal judgeships go through a rigorous vetting process,1 which to date has yielded an exceptionally qualified judiciary. Unfortunately, Congress has not treated federal judges with the dignity that they deserve when it comes to salary considerations. Judicial pay has not increased commensurate with that of other federal employees, nor kept up with inflation.

 Federal Courts, Constitutional, Separation of Powers
2 Drexel L. Review 161

Note: Why the Americans With Disabilities Act Amendments Act is Destined to Fail: Lack of Protection for the "Truly" Disabled, Impracticability of Employer Compliance, and the Negative Impact it Will Have on Our Already Struggling Economy

Kate S. Arduini

On September 25, 2008, former President George W. Bush signed the Americans with Disabilities Act Amendment Act of 2008 (ADAAA), setting into motion perhaps the most extensive change to employment law in the last decade. The ADAAA, which took effect on January 1, 2009, aims to reinstitute the original congressional intent behind the Americans with Disabilities Act of 1990 (ADA), the Act that grants employment protection to the disabled, which many believe was destroyed by a sequence of Supreme Court rulings that narrowed the definition of "disabled." Notwithstanding Congress's good intentions, the ADA was unsuccessful at integrating the disabled into the American workforce, and the ADAAA is likely to be just as unsuccessful as its predecessor. This Note aims to explain and analyze the inherent failings of the ADAAA.

 Discrimination, Employment Law, Disability Law
2 Drexel L. Review 206

Note: The Constitutionality of Teacher Certification Requirements for Home-schooling Parents: Why the Original Rachel L. Decision was Valid

Haley J. Conard

In March 2008, the California Court of Appeal decided In re Rachel L., in which California's compulsory education statute was interpreted to effectively prohibit parents from home schooling their children unless they possessed state teaching certifications. Although this case concerned a troubled family with a history suggesting that compulsory public schooling might be preferable in their case, the impact of the court's decision was far greater. Over 200,000 children were then being home schooled in California, many by parents with no teaching certification. The Rachel L. decision made this method of home schooling illegal. Amidst great public backlash, the Court of Appeal reheard the case in August 2008. The court reinterpreted the statute, holding that it implicitly allowed uncertified parents to teach their children at home.

 Education Law, Constitutional, Children and the Law
2 Drexel L. Review 258

Note: Regulating Executive Compensation in the Wake of the Financial Crisis

Michael diFilipo

After it was revealed that Wall Street executives rewarded themselves with nearly twenty billion dollars in bonuses for their 2008 performances, President Obama admonished that such behavior "is the height of irresponsibility. It is shameful. And part of what we're going to need is for folks on Wall Street who are asking for help to show some restraint and show some discipline and show some sense of responsibility." Although the majority of Americans may agree with President Obama's assessment, Senator Christopher Dodd perhaps more closely reflected the public's true sentiment when he observed that "'this infuriates the American people.'"

 Regulation, Financial Crisis
2 Drexel L. Review 313

Note: The Intersection of the Fourth and Fifth Amendments in the Context of Encrypted Personal Data at the Border

John Duong

On December 17, 2006, Sebastian Boucher crossed the U.S.- Canadian border into the United States. At the border inspection point in Vermont, the interviewing border agent either thought something was suspicious or perhaps just randomly chose to send Boucher to secondary inspection. Or maybe it was just plain bad luck. Whatever the specific reason, travelers regularly get sent to more thorough secondary inspections at the border every day. But on that particular day, it was the beginning of Boucher's problems.

 Constitutional, National Security, Technology
1 Drexel L. Review 216

Personal Health Records: Directing More Costs and Risks to Consumers?

Nicholas P. Terry

This Article is principally concerned with a subset of Electronic Health Records (EHRs) known as personal health records (PHRs). As the George W. Bush Administration's national EHR project lost some of its momentum due to technical and financial barriers, interest in this more modest, atientcentric model has grown. Mark Rothstein's observation that "the private sector is racing ahead" was confirmed by the 2008 launches of Google Health and Microsoft's HealthVault, and the considerable press attention they attracted.

 Health Law, Technology, HIPAA
1 Drexel L. Review 261

What Lessons Should We Learn from the First Malpractice Crisis of the Twenty-first Century?

David A. Hyman

We have just emerged from the first malpractice crisis of the twenty-first century, and the third malpractice crisis in the past three decades. This Article highlights five lessons that scholars, policy analysts, and legislators should take away from the most recent crisis. My modest hope is that this analysis will provide a toolkit for informing the policy debate when we have our next crisis—which given the turmoil in the financial markets, may well occur sooner rather than later.

 Health Law, Medical Malpractice, Tort Reform
1 Drexel L. Review 273

Stopping an Invisible Epidemic: Legal Issues in the Provision of Naloxone to Prevent Opioid Overdose

Scott Burris, Leo Beletsky, Carolyn Castagna, Colin Crowe, Jennie Maura McGlaughlin

Early in 2008, Australian actor Heath Ledger died in his Manhattan apartment as a result of a drug overdose caused by a cocktail of prescription drugs, including powerful prescription opioids. Death by drug overdose is not particularly unusual among celebrities. Indeed, in the same week that Ledger died, actor Brad Renfro also joined fallen stars like River Phoenix, John Belushi, Mark Tuinei, Janice Joplin, and Jim Morrison in meeting a premature end by overdosing on prescription opioids, heroin, or both.

 Public Health, Illegal Drug Policy
1 Drexel L. Review 341

Pandemic Preparedness: A Return to the Rule of Law

Wendy K. Mariner, George Annas, Wendy Parmet

On January 15, 2009, US Airways flight 1549 apparently struck a flock of birds shortly after taking off from New York's LaGuardia airport and lost power in both of its engines. The pilot, Chesley Sullenberger, made a skillful emergency landing in the Hudson River, and all 150 passengers and five crew members safely evacuated the plane. The passengers calmly helped each other out onto the wings and into the plane's life rafts. Local ferries, seeing the plane coming down, sped to the site and took the passengers on board. What might have been a fatal disaster in the eighteen degree Fahrenheit temperature was in fact a fairly typical example of American's response to emergencies.

 Public Health, Rule of Law
1 Drexel L. Review 383

Candor After Kadlec: Why, Despite the Fifth Circuit's Decision, Hospitals Should Anticipate an Expanded Obligation to Disclose Risky Physician Behavior

Sallie Thieme Sanford

This Article argues that, the Fifth Circuit's decision notwithstanding, hospitals should anticipate being held to a duty of greater candor in responding to physician credentialing inquiries than would be found in the usual business context. Recognition of this obligation follows from converging trends in health law theory, institutional liability, and hospital practice. Furthermore, although Kadlec was the first case of its type, given the increased stake hospitals have in sound credentialing decisions, it is unlikely to be the last. A limited response such as Lakeview Medical's might well be the basis for liability in a case not grounded in Louisiana law, particularly if the injured patient were also a party, if the hospital could be shown to have violated a mandatory reporting duty, and if the court focused on ways in which the credentialing of physicians differs from standard employment arrangements.

 Health Law, Patient Safety, Vicarious Liability
1 Drexel L. Review 439

Patient Safety And The Fiduciary Hospital: Sharpening Judicial Remedies

Barry R. Furrow

Banks evaporate, markets shed value, and jobs float ghostlike into economic history. We no longer trust our bankers and brokers, our realtors, our mutual fund administrators, and our regulators. Can our hospitals be far behind? They offer us treatment, but also all too often deliver unexpected infections, injury as the result of errors, aggressive debt collection practices, rude behavior, and concealment of secrets about their mistakes—not a pretty picture.

 Patient Safety, Remedies, Regulation
1 Drexel L. Review 485

Marriage Equality? First, Justify Marriage (If You Can)

John G. Culhane

With recent positive developments in Connecticut, Vermont, Iowa, and New York, mixed success in California, and setbacks in Arizona and Florida, the marriage equality movement remains in the center of political, legal, and social debate in the United States. Proponents, including me, have argued that granting the right to marry to same-sex couples is compelled as a matter of simple fairness and equality, while opponents have continued to make a host of related - but unconvincing - arguments about the intrinsic meaning of marriage and how this will be lost or compromised if marriage equality takes hold. But below this turbulent surface, courts called upon to solve real problems confronting same-sex couples have expressly or impliedly recognized that a much deeper problem exists: the vast and often unexamined privileging of marriage over other forms of family and other kinds of relationships. Legal scholars, too, have questioned marriage - sometimes by focusing on the privileges that attach to it, but sometimes more broadly, by questioning the status itself. These unavoidable questions reveal that the controversy over same-sex marriage is but the most visible part of a much larger set of issues about equality and social justice.

 Discrimination, Civil Rights
1 Drexel L. Review 512

Three Ways of Looking at a Health Law and Literature Class

Jennifer Bard, Thomas W. Mayo, Stacey A. Tovino

Literature has had a long relationship with medicine through literary images of disease, literary images of physicians and other healers, works of literature by physician-writers, and the use of literature as a method of active or passive healing. Literature also has had a long relationship with the law through literary images of various legal processes, lawyers, and judges; works of literature by lawyer-writers; and the use of literature as therapy. This Part examines the development of the fields of 'literature and medicine' and 'law and literature' and places current coursework in law, literature, and medicine in its proper historical and pedagogical context.

 Health Law, Pedagogy
1 Drexel L. Review 573

Note: A Flexible Solution to a Knotty Problem: The Best Interests of the Child Standard in Relocation Disputes

Rachel M. Colancecco

In the past two decades many United States jurisdictions have adopted statutes promoting joint legal custody, shared parental responsibility, and continuing contact with both parents following separation and divorce. However, our society has become increasingly mobile, as Americans move, on average, once every seven years. Americans relocate for various reasons, but when parents move they expect to take their children with them. As a result, when one parent petitions the court to relocate, the court, in evaluating and weighing the paramount interests of the child, is forced to confront the competing interests of the relocating and nonrelocating parent. This paper focuses on the dilemma courts face when the relocating parent is the custodial parent and the parent opposing relocation is the noncustodial parent. The custodial parent seeking to relocate frequently has an interest in beginning a new life elsewhere in the United States to pursue better educational, personal, and career opportunities, whereas the noncustodial parent possesses a strong desire to maintain frequent and regular contact with his or her child.

Children and the Law, Family Law
1 Drexel L. Review 1

Foreword

Hon. Anthony J. Scirica

The founding of the Drexel Law Review marks a noteworthy moment in the institutional life of the law school, already a vibrant center for scholarly inquiry and professional development in the field of law. Like the law school’s lecture halls, faculty offices, and corridors, these pages will provide a fresh new forum for some of the intellectual pursuits that are most important to our profession—the exposition of the law and the give-and-take of academic dialogue.

1 Drexel L. Review 3

Inaugural Article: Reforming Knowledge? A Socio-Legal Critique of the Legal Education Reforms in Japan

Annelise Riles and Takashi Uchida

The founding of a new law review is an opportunity to reflect on the wider purposes of legal education. This is increasingly a comparative question as law becomes a transnational field of practice, and the American model of legal education is emulated around the world. Consider the case of Japan. In April of 2004, a new so-called “Law School” (rosukuru) system was introduced. For over a century prior to this reform, legal education had been provided at the undergraduate level on the European civil law model. As many commentators have enthusiastically noted, the primary model for the new law school system was without a doubt the American law school system.

 Pedagogy, Legal Education Reform, Foreign Law
1 Drexel L. Review 52

Why Trying to Rank Law Schools Numerically is a Non-productive Undertaking: An Article on the U.S. News & World Report 2009 List of "The Top 100 Schools"

Louis H. Pollak

The editors of the Law Review proposed that my contribution to this first issue address some aspect of legal education. I have done so in a fashion that the editors could not have anticipated and which—had I consulted them when I was turning over in my mind what subject to write about—they might have urged me to abandon in favor of some broader and deeper topic. But I did not consult the editors. I had no broad and deep issues of legal education in mind. But I realized that there was a narrow and rather shallow question that has rankled for years, and that I wanted to write a few paragraphs about. The question is whether the annual ranking of American law schools by U.S. News & World Report is a useful endeavor or a counter-productive one. I am convinced that it is the latter—that it is an incubus, bad for the health of legal education.

 Legal Education Reform
1 Drexel L. Review 69

Teaching Transactional Lawyering

Karl S. Okamoto

Over the years I have developed a habit. Whenever I meet a "deal lawyer" of some experience and the opportunity presents itself, I ask this question, "what makes a 'great' deal lawyer better than a simply 'average' one?" While my interlocutor is pondering his or her answer, I clarify my inquiry in two ways. First, I explain that I want to discount for experience. So in answering the question, I ask my interlocutor to have in mind two lawyers of roughly comparable vintage. Second, I ask him or her to keep in mind that my second question will be, whatever they identify as the critical components of this difference, are the components teachable?

Pedagogy, Legal Education Reform, Transactional Law
1 Drexel L. Review 125

Resolving Amicus Curiae Motions in the Third Circuit and Beyond

Carl Tobias

Amicus curiae briefs are deeply woven into the fabric of modern federal appellate practice. Indeed, amici curiae submit briefs in approximately ninety percent of the cases that the United States Supreme Court entertains, and the Justices deny a minuscule number of amicus requests to participate. Amicus practice is less ubiquitous in the United States Courts of Appeals. Amici seek to file comparatively few briefs, nearly all of which the appellate courts permit, while many tribunals have not developed a comprehensive jurisprudence for resolving amicus motions. Nonetheless, the United States Court of Appeals for the Seventh Circuit has articulated rather stringent criteria, which it has strictly applied to limit amicus involvement, even as the Third Circuit has formulated less restrictive standards that the court has generously enforced to facilitate amicus participation. The significance of federal appellate court amicus practice will only grow as the twelve regional circuits increasingly become the courts of last resort for their geographic areas because the Supreme Court hears so few appeals. These propositions mean that federal appellate court disposition of amicus curiae motions warrants assessment, which this Article undertakes, concluding that the appeals courts should generally follow the Supreme Court and Third Circuit approaches as illuminated by certain aspects of the Seventh Circuit treatment.

 Amicus Curiae, Appellate Practice, Federal Courts
1 Drexel L. Review 143

Note: "Genius of Art! What Achievements are Thine?" The Social Shaping of Inventiveness Requirements in Antebellum Patent Law

Mary Mitchell

Scholars have described non-obviousness as a critical element of the United States patent system. The requirement mandates that, at the time of invention, an invention must not have been obvious to a person having ordinary skill in the art. In effect, this screens routine improvements out of the patent system and rewards inventions perceived to be scientific breakthroughs.

 Patent Law
1 Drexel L. Review 175

Sex Offender Residency Restrictions: How Common Sense Places Children at Risk

Lindsay A. Wagner

Sex offender residency restrictions (SORRs) are a manifestation of the American public's retributivist attitudes and biased fears - attitudes and fears that ultimately result in ineffective policy choices. Over the last quarter century in the United States there has been a reemergence of "just deserts" as a generalized theory of policy. This retributivist policy is particularly salient in recent civil sanctions levied against sex offenders after their release from prison. Sex offenders, as a group, incite the public's fear and hatred, and politicians seeking to curry electorate favor often support increasingly harsh sanctions against these "political pariahs of our day." Most recently, in an attempt to keep communities safe, at least twentytwo states and hundreds of local municipalities have placed severe restrictions on where sex offenders may live after being released from prison. These restrictions typically exclude sex offenders from living within 1000 to 2500 feet of schools, parks, day care centers, and other areas where children congregate. However, research indicates that these fear-driven laws are ill-advised policy choices based on faulty reasoning. They aggravate recidivism risk factors, and hence may actually make communities less safe.

 Criminal Law, Punishment Theory, Sexual Misconduct