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Neurotechnology is often recognized as “the field of devices and procedures used to access, monitor, investigate, assess, manipulate, and/or emulate the structure and function of the neural systems of animals or human beings.” Neurotechnology can help people with paralysis to move and feel, deaf people to hear, and blind people to partially see. Neurotechnology also has the potential to treat many diseases of the nervous system, neurological diseases, and mental illnesses, which represent a high cost in terms of health care expenditures. According to the Organisation for Economic Co-operation and Development (OECD), mental health illnesses drive economic costs of more than 4% of gross domestic product (GDP).
Private equity investment in health care has increased dramatically over the past several years, reaching 1,171 transactions worth a total of $105.3 billion in 2020. However, this growing investment strategy comes with its disadvantages. Private equity acquisitions follow a different business model than traditional for-profit ownership in health care. As a result, investors claim that they inject needed funds into financially struggling facilities, while critics see a grab for shortterm profits that often strips facilities of resources, compromises quality care delivery and leaves many of them bankrupt.
In 1970, the Commonwealth of Pennsylvania ratified an amendment in Article I, Section 27 of its state constitution. Coined the “Environmental Rights Amendment,” Section 27 outlined two public rights for Pennsylvania citizens: the individual right to clean air, pure water, and the preservation of environmental values, and the right to ownership of public natural resources conserved and maintained by the Commonwealth for the benefit of the public and future. For decades, the state courts hindered Section 27’s applicability by making it dependent on the state legislature. The tide changed in 2013, when the Supreme Court of Pennsylvania decided Robinson Township v. Commonwealth.
In 1966, the Supreme Court issued its famous opinion in Miranda v. Arizona. The decision was considered a triumph for criminal suspects at the time.
Domestic violence is a pervasive, nationwide problem, one that worsened during the COVID-19 pandemic, which trapped victims and abusers in the same home and often prevented victims from seeking legal relief.
Uncertainty surrounds many issues that exist at the intersection of bankruptcy law and intellectual property law.
Should schools be required to keep the gender identity of transgender students private from their parents? Because federal law does not address this question, school districts get caught in the middle of two arguments.
Racial inequity is a common theme in the United States, and America’s pastime is no exception. Black representation in professional baseball has been on the decline for decades since its peak of nearly 20%.
Fashion is art—except in the United States. Classified as purely useful articles, fashion designs have been constrained in their ability to receive copyright protection under the current regime.
In Philadelphia, there is a significant gap in African American homeownership that has contributed to many of the problems that African American residents face today.
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.
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.
Environmental, Social, Governance (ESG) funds are investment vehicles that invest in companies that promote one or all three of these goals.
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.
Decades of psychological research provide strong evidence that children are different from adults. Nowhere are these differences more apparent than in the interrogation room.
Nearly fifty years after the Supreme Court recognized abortion as a constitutional right in the United States, the fate of Roe v. Wade hangs in the balance.
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.
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.
A century ago, medicine, in collaboration with the law, redefined birth as a medical event.
The United States Supreme Court has long had difficulty explicating what the Religion Clauses require, permit, and prohibit.
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
Philadelphia has the highest rate of child removal of any major city in the United States.
Children and adolescents experiencing gender dysphoria often feel extreme distress associated with feelings of gender incongruence between their internal gender identity and their gender assigned at birth.
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.
Congress created the Immigration and Nationality Act to provide uniformity and equality to our nation’s immigration system.
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.
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.
Casting a ballot should be easy, but voter suppression continues to be an obstacle for many Black voters.
Since the immediate aftermath of the American Civil War, the United States has been plagued with its violent consequences.
In 1776, only two states offered constitutional protections against imprisoning people for debt. Today, forty-one states do.
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.
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.
In 2015, the Supreme Court officially recognized same-sex marriage across all fifty states.
The Direct-to-Consumer (DTC) genetic testing market is a massive biotechnology industry.
On October 2, 2020, individuals gathered on Zoom for the annual, but first-ever virtual, Drexel Law Review Symposium. The title of the symposium was Impactful Interactions: Autism Spectrum Disorder and the Legal System.
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.
Disabled students have long faced the impact of systemic and structural ableism in education, from early learning through postsecondary education.
In 2017, the Constitutional Division of the High Court of Lesotho delivered a landmark judgment in Moshoeshoe v. Director of Public Prosecutions.
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.
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.
Section 615(m) of the Individuals with Disabilities Education Act (IDEA) permits states to transfer the rights accorded parents to adult students with disabilities.
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.
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.
The juvenile legal system has been built upon the idea that youthful offenders are capable of change. This assumption is probably best exemplified by the line of cases surrounding the malleability of youth and the inappropriate nature of mandatory long-term punishments (i.e., the death penalty and life in prison without the possibility of parole) that do not acknowledge the potential for rehabilitation. Thus, juveniles are provided resources and presumptions not afforded to individuals in the adult system. Youthful offenders who operate under the assumption that they will die young, however, may be over the age of eighteen and thus not eligible for these benefits. As such, judges should use their discretion to consider anticipated early death during sentencing for all youthful offenders.
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.
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 development of genetic science and its clinical applications bring new ethical concerns over privacy along with practical concerns over the use and interpretation of genetic information. While genetic databases are helping clinicians to understand and treat a growing number of serious genetic conditions, they present risks of unauthorized disclosures of highly personal information. Their use in clinical care also raises practical concerns in the interpretation of ambiguous findings, the handling of unanticipated incidental findings, and the communication to patients of risks and uncertainties.
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.
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.
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.
Laws designed to address the consequences of crime scarcely acknowledge children whose parents are incarcerated. For instance, legislation providing rights and benefits to victims of crime defines victims in a way that excludes offenders’ children. The absence of government aid to children with incarcerated parents demonstrates a massive oversight affecting millions of our most vulnerable citizens each year.
The impact of parental incarceration is well-documented and devastating. Children who lose even one parent to incarceration miss out on critical emotional and mental support, face financial instability, are negatively socialized toward and distrust authority figures, and are at risk of entering an intergenerational cycle wherein they and their children are more likely to be poor and engage in criminal behavior.
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.
From the times of Blackstone, Austine, and Holmes, through each of the three Restatements of Torts, and up to present day there has been a jurisprudential evolution of the concept of duty. This article frames this history using the Palsgraf debate between Justice Cardozo and Judge Andrews as a touchstone for analysis. Although past Restatements endorsed the “relational” view of duty associated with Cardozo (which can be traced back to Blackstone), the recent Restatement (Third) of Torts endorses a non-relational, “social” view of duty associated with Andrews (which can be traced back to Austin and Holmes).
The employment process can be difficult for Black people because they are often the subject of racial discrimination because of their hair. This note discusses avenues to protect Black individuals from racial discrimination in employment contexts with regard to their hair in the workplace.This Note analyzes avenues to protect Black people from racial discrimination based on their hair in the workplace. Although Title VII and Section 1981 are meant to provide this protection, courts have become more restrictive as to what constitutes race, ultimately creating a standard that race is akin to biology or only those traits that cannot be changed or altered. This immutability standard is based on America’s racist past and directly contradicts case law that says Title VII is meant to protect characteristics based on stereotypes that are commonly associated with certain protected classes.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
This Note examines some of the ways #MeToo can inform sexual harassment law and attempts to apply a critical race feminist lens to these continuing questions.
This Article suggests two new ways of conceptualizing what constitutes “meaningful feedback.” The first is that for feedback to be meaningful, it must be accompanied by metacognitive reflection. The second is that feedback takes on meaning when prefaced by the deconstruction and abstraction, or “naming,” of legal thinking processes. Both insights emerge only upon a holistic examination of metacognitive theory and practice as they have developed across disparate sectors of the legal curriculum.
This Article develops a strategy for improving physician-patient relationships. I suggest that enhancing physicians’ interpersonal skills can improve physician-patient rapport and mitigate the negative consequences resulting from placing too much weight on simplistic metrics. The strategy provided here is not a panacea for the broader problems posed by overemphasizing certain metrics. But, this Article can inform a larger project aimed at becoming wiser about how data and metrics are used in all aspects of medicine and health care.
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.
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.
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.
This Article proposes an approach to accelerated access and drug prices that would generate much needed information for doctors, patients, the government, and private insurers. The new form of conditional approval proposed here would be similar to the parallel track program developed by the FDA in the 1990s, during the HIV crisis.
This Article explores the problematic consequences of that oversubscription to hot, reflexive emotions. First, it is not clear empirically that hot emotions produce more social change or faster social change. Next, it is normatively fraught to base social change on anger. A constitutive feature of anger is its “payback wish.” As political philosopher Martha Nussbaum has articulated, anger’s payback wish means that change happens by one side denigrating the other rather than all sides finding a way to improve everyone’s lot. Dignity is better enhanced when all sides rise. The Article concludes that the better way forward for social movement activists and lawyers is to frame the motivating and sustaining emotion for their work as “fierce love.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.” 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.
.Space Law, United Nations Off. Outer Space Aff., http://www.unoosa.org/oosa/en/ourwork/spacelaw/index.html (last visited Apr. 16, 2019).
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
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?
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.
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.
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.
Recently, the United States has used force against non-state actors residing in host states in cases where the host state is either unwilling or unable to constrain illicit terrorist activities launched from its territory, using the “unwilling or unable” test guidelines. Even more controversially, the United States targeted the Syrian state in the Shayrat missile attack. Though the unwilling or unable test has some theoretical support among legal theorists, the legality of this test in international law is contentious, which has led to a lack of state practice. Accordingly, there is a lack of guidance in international law on the application of the unwilling or unable test, which could turn out to be costly, because unilateral action by one state against another without U.N. Security Council authorization or a legal use of force in international law can have dire consequences.
This Article aims to critically analyze the application of the unwilling or unable test by the United States to the case of Syria, and assess why the justification that the United States provided for its military intervention on Syrian territory has not been universally accepted. It will also discuss barriers to the acceptance of this standard, especially in the way that it has been interpreted by the United States in the particular case of Syria. This Article argues that the theoretical test is inapplicable in the Syrian case, because the prerequisites set by the test itself are not met. Moreover, the Article will argue that the test lowers the threshold for using force set by the U.N. Charter.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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?
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
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.
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.
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.
The allocation of treatment resources in the behavioral health system in the United States has shifted dramatically over the past fifty years.
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.
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.
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.
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.
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.
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.
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.
This Article analyzes three distinct but interrelated effects of the 1996 laws: (1) the over-criminalization of migrant communities at the federal level; (2) the normalization of immigration enforcement as a part of the standard sub-federal policing agenda; and (3) the rising tide of highly vulnerable liminal legal statuses as a response to powerful economic and political pressures.
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.
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.
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.
This Note suggests the Special Immigrant Juvenile Status process be amended by working toward two long-term goals: (1) creating a nation-wide “best interest” standard based largely on current U.S. family law statutes and the United Nation’s Convention on the Rights of the Child, and (2) creating a standard SIJS order that all state court judges must complete when deciding SIJS matters.
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.
This Note addresses the duty of acceptance of felony guilty pleas and examines whether the majority trend in the circuit courts of allowing magistrates to perform such a duty should be permitted under the Federal Magistrates Act. this Note argues that acceptance of felony guilty pleas by magistrates is not authorized under the Federal Magistrates Act and undermines the fundamental protections afforded to criminal defendants.
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 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.
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.
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.
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.
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.
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.
This Note analyzes how the statutory definition of “refugee” must be amended and new regulations must be promulgated in order to extend protection beyond domestic violence claims.
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?
This Article considers a critically important but unresolved question presented in cases where a party requests and receives preliminary injunctive relief against governmental defendants. The question is this: if a party secures preliminary relief that bars the government from enforcing a given law while the parties litigate, and the challengers of the law do not ultimately prevail on the merits, what consequence, if any, does that preliminary relief have on liability for penalties triggered by noncompliance with the preliminary injunction while it was in effect?
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.
The Family Educational Rights and Privacy Act (FERPA) sets the terms around which student privacy issues have been debated for decades. Accordingly, many of the proposed reforms work within the statute’s existing regulatory framework. This Article takes a broader perspective and contributes to the debate by demonstrating how FERPA and Fair Information Practice Principle (FIPPs)-based standards cannot provide the control, meaningful oversight, or sufficiently concrete standards sought by stakeholders.
With incarceration rates at an all-time high and over-criminalization rampant, there is a growing need for programs aimed at rehabilitating ex-offenders following release from prison. These programs are critical to combating the collateral consequences associated with imprisonment.