Law Commons^™

Shooting To Minimize Gender Discrimination As An Unintended Consequence Of Title Ix, Alexa Potts

Dickinson Law Review (2017-Present)

Title IX is a federal law prohibiting sex-based discrimination in any education program or activity that receives federal funding. Congress initially passed Title IX out of concern for sexbased equality in academia. However, Title IX has had significant impacts on athletics, resulting in increased athletic opportunities for females. To be Title IX compliant, institutions must provide equality in athletic participation for both sexes. The Office of Civil Rights provided a three-part test to measure equality in athletic participation. Institutions must satisfy at least one of the three prongs to meet Title IX requirements as they pertain to equality in athletic …

Is The Contempt Power Obsolete?, Nino C. Monea

Dickinson Law Review (2017-Present)

Contempt power has been with us for as long as we’ve had courts in this country. Through summary contempt proceedings, judges may imprison any person they deem insufficiently respectful to the authority of the court—with significantly less due process than a person would be entitled to under any other criminal offense. In theory, this is necessary to maintain order in the court. But in practice, summary contempt power is serially and seriously abused. Judges use incarceration to deal with piddling offenses or for no real reason at all. This Article argues that the concept of allowing judges nearly unbridled discretion …

Policy’S Place In Pedestrian Infrastructure, Michael L. Smith

Dickinson Law Review (2017-Present)

Angie Schmitt’s Right of Way: Race, Class, and the Silent Epidemic of Pedestrian Deaths in America delves into the complex, multi-layered phenomenon of how traffic infrastructure and policies systematically disadvantage pedestrians and contribute to thousands of deaths and injuries each year. Despite the breadth of the problem and its often-technical aspects, Schmitt presents the problem in an engaging and approachable manner through a step-by-step analysis combining background, statistics, and anecdotes. While Right of Way tends to focus on infrastructure design, it offers much for legal scholars, lawyers, and policymakers. Schmitt addresses several policy issues at length in the book. But …

Following In California’S Footsteps?: Pennsylvania Eliminates The De Minimis Exception In State Wage And Hour Claims, Lauren E. Stahl

Dickinson Law Review (2017-Present)

Under the Fair Labor Standards Act (“FLSA”), employers risk receiving wage and hour violations if they fail to compensate employees for all “hours worked” or fail to adhere to minimum wage and overtime requirements. The de minimis doctrine provides an exception to this general rule and excuses employers from compensating employees for insignificant amounts of time spent on otherwise compensable off-the-clock work activities. Examples of de minimis off-the-clock work activities include waiting for a computer to load or waiting to log onto a computer network. These activities are considered de minimis because they take only a minute or less, and …

Childist Objections, Youthful Relevance, And Evidence Reconceived, Mae C. Quinn

Dickinson Law Review (2017-Present)

Evidence rules are written by and for adults. As a result, they largely lack the vantage point of youth and are rooted in arm’s-length assumptions about the lives and legal interests of young people. Moreover, because children have been mostly treated as evidentiary afterthoughts, they have been patched into the justice system and its procedures in a piecemeal fashion. Yet, to date, there has been no comprehensive scholarly critique of evidence principles and practices for failing to meaningfully account for youth. And the evidentiary intersection of youth and race has been almost entirely overlooked in legal scholarship. This Article, in …

Private Environmental Nudges, Anthony Moffa

Dickinson Law Review (2017-Present)

A few years ago, before the onset of a global pandemic, I noticed that my preferred Portland, ME coffee shop—Tandem Coffee Roasters—implemented a new policy. Upon ordering a beverage, the barista asked if I brought my own mug. They informed me that, if had I not, I could purchase a paper, disposable vessel from the shop for twenty-five cents. Some might (understandably) ask, “Does coffee not come in a cup anymore?” The shop implemented what this paper dubs a “private environmental nudge,” a subset of policies that define private environmental governance (PEG)—the actions taken by nongovernmental entities to achieve traditional …

Untethering Umvs From Vessels: Why The United States Should Construct A New Environmental Legal Scheme For Unmanned Maritime Vehicles, Lindsay I. Mccarl

Dickinson Law Review (2017-Present)

International and domestic laws and regulations, and in particular those addressing environmental protections related to the world’s oceans, have no clear application to unmanned maritime vehicles (UMVs). Instead, legal scholars have attempted to fit UMVs into current legal schemes in a piecemeal manner that UMVs practically and realistically cannot comply with. UMVs are inherently different than their manned counterparts and therefore require a unique legal framework separate and apart from manned vessels. Without its own legal scheme, the United States Navy and other organizations will not be able to realize the full potential of UMVs—not only for their military operational …

It’S About Time: Rejection Of The De Minimis Doctrine In State Wage And Hour Laws, Abigail Britton

Dickinson Law Review (2017-Present)

Since the passage of the Fair Labor Standards Act (“FLSA”) in 1938, courts have grappled with how to interpret which activities an employee performs for their employer should be considered “work.” The FLSA requires employers pay a minimum wage, pay overtime, and keep records of their employees’ time. However, to calculate these wages based on hours worked, the employer must know what constitutes “work.” Over the 80 years since its enactment, federal courts have adopted rules to determine what counts as work. One doctrine courts apply is the de minimis doctrine. Under the de minimis doctrine, employers do not need …

Accommodating Victims With Mental Disabilities, Danielle Shelton

Dickinson Law Review (2017-Present)

The #MeToo movement has brought the voices of victims of sexual assault into the public’s eye and, in turn, into the legal system. As its name suggests, the movement’s strength lies in numbers—it is, after all, hard to ignore the collective voices of a group of considerable size and visibility. This Article argues that another group of victims—namely, victims who have mental disabilities— also are desperately in need of their own movement to raise public awareness and bring about reform. However, because of their cognitive and communication impairments, this group of victims is unlikely to effectuate reform itself. Instead, these …

Freeze-Frames And Blanket Bans: The Unconstitutionality Of Prisons’ Denial Of Gender Confirmation Surgery To Transgender Inmates, Aranda Stathers

Dickinson Law Review (2017-Present)

It is long established that the Eighth Amendment’s prohibition against imposing cruel and unusual punishments requires prisons to adequately address their inmates’ medical needs. Inmates identifying with the LGBTQ+ community are not exempt from this constitutional mandate. Trans inmates with gender dysphoria require specific treatment, including, but not limited to, gender confirmation surgery. While courts acknowledge that prisons owe a duty to provide some transition-related care, the extent of that duty remains contested. With no guidance from Congress or the Supreme Court, the constitutionality of prisons’ denial of gender confirmation surgery is in the hands of the circuit courts, which …

Meaningless Dna: Moore’S Inadequate Protection Of Genetic Material, Natalie Alexander

Dickinson Law Review (2017-Present)

Moore v. Regents of the University of California represents the seminal case regarding the protection of genetic material. In this case, the California Supreme Court held that patients do not retain property rights in their excised genetic material; instead, informed consent laws serve as genetic material’s only protection. Many states have accepted the Moore court’s decision not to extend property rights to genetic material, and most states choose to protect genetic material through informed consent alone. Moore and informed consent do not adequately protect genetic material, creating unjust results in which “donors” of genetic material have little to no recourse …

The Magic Of Fintech? Insights For A Regulatory Agenda From Analyzing Student Loan Complaints Filed With The Cfpb, Matthew Adam Bruckner, Christopher J. Ryan

Dickinson Law Review (2017-Present)

This Article looks at consumer complaints about student loan lenders and servicers from the Consumer Financial Protection Bureau’s (CFPB’s) consumer complaint database. Using a novel dataset drawn from 30,678 complaints filed against 212 student loan companies, we analyze consumers’ subjective views about whether traditional or fintech student loan lenders and servicers provide a better customer experience. Overall, we find that consumers initiate far fewer complaints against fintech lenders than traditional lenders. But we find that fintech lenders are 28 times more likely than traditional lenders to receive complaints for making confusing or misleading advertisements. Our data also show that complaints …

How Not To Be A Federal Criminal: A Review Of Mike Chase’S How To Become A Federal Criminal And The Case For Inclusion Of His Illustrated Handbook In American Law Schools, Zachary Stendig

Dickinson Law Review (2017-Present)

No abstract provided.

Dangerous And Unusual: How An Expanding National Firearms Act Will Spell Its Own Demise, Oliver Krawczyk

Dickinson Law Review (2017-Present)

The National Firearms Act of 1934 (NFA) is the strictest federal gun control law currently in effect. It criminalizes the mere possession and transfer of specifically enumerated categories of firearms deemed to be especially dangerous and unusual, such as machine guns and silencers. Commensurate with this viewpoint, the NFA imposes on violators harsh felony penalties, from lengthy prison sentences to six-figure fines. However, the NFA permits lawful civilian ownership of these firearms under a taxation and registration scheme administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In its 2008 District of Columbia v. Heller decision, the United …

Scanning Iphones To Save Children: Apple’S On-Device Hashing Algorithm Should Survive A Fourth Amendment Challenge, Timothy Gernand

Dickinson Law Review (2017-Present)

When Apple announced it would combat the growth of child sexual abuse material (CSAM) on its platform by scanning all its users’ devices without their consent, many of its loyal customers felt betrayed. With tech companies such as Google and Facebook arranging their business models around selling their customers’ personal information, Apple customers saw the company’s focus on privacy as a refreshing alternative. However, as Apple itself privately acknowledged, this emphasis on privacy had led to it becoming a haven for CSAM. Despite the reputational damage it would incur with its customers, Apple resolved to confront CSAM on its platform …

Navigating Beyond The Lodestar: Borrowing The Federal Sentencing Guidelines To Provide Fee-Shifting Predictability, Matthew Ahn

Dickinson Law Review (2017-Present)

The lodestar has been the dominant calculation method for fee-shifting awards for nearly 40 years. But the lodestar has numerous persistent issues: it leads to extra litigation and judicial effort, it results in highly variable fee awards, and it incentivizes plaintiffs’ attorneys to bill extravagantly and reject settlement. This Article argues that these issues with the lodestar, along with many others, result from a mismatch between the lodestar and the purpose of the underlying fee-shifting statutes, which is to encourage attorneys to bring suits that would not normally be economically viable. Encouraging attorneys to do so requires the fee awards …

Truth And Reconciliation: The Ku Klux Klan Hearings Of 1871 And The Genesis Of Section 1983, Tiffany R. Wright, Ciarra N. Carr, Jade W.P. Gasek

Dickinson Law Review (2017-Present)

Over the course of seven months in 1871, Congress did something extraordinary for the time: It listened to Black people. At hearings in Washington, D.C. and throughout the former Confederate states, Black women and men—who just six years earlier were enslaved and barred from testifying in Southern courts—appeared before Congress to tell their stories. The stories were heartbreaking. After experiencing the joy of Emancipation and the initial hope of Reconstruction, they had been subjected to unspeakable horror at the hands of white terrorists. They had been raped and sexually humiliated. Their children and spouses murdered. They had been savagely beaten …

The Neuroscience Of Qualified Immunity, Gary S. Gildin

Dickinson Law Review (2017-Present)

Qualified immunity not only absolves public officials from accountability for the damages caused when they deprive a citizen of their constitutional rights; by virtue of companion doctrines shielding governmental entities from liability, conferral of immunity leaves the victim to bear the loss. Therefore, it is essential that the contours of immunity be carefully calibrated to align with its intended purposes.

The United States Supreme Court has continuously expanded immunity to protect the exercise of discretion where, albeit acting in violation of constitutional norms, the official could have reasonably believed their conduct was constitutional. This Article exposes the implicit assumptions as …

How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves

Dickinson Law Review (2017-Present)

No abstract provided.

The Rise Of Concentrated Animal Feeding Operations, Their Effects, And How We Can Stop Their Growth, Andrea Prisco

Dickinson Law Review (2017-Present)

Dramatic changes in the agricultural industry over the last century have led to the rise of concentrated animal feeding operations– industrial facilities that raise a large number of animals in confined spaces. Animals raised in these facilities suffer from poor quality of life and abuse. For humans, these facilities have had adverse effects on the environment and public health, but they are also associated with high productivity and low food costs. This Comment analyzes the effects of concentrated animal feeding operations on animal well-being, the environment, and public health. This Comment also analyzes current federal legislation that helps combat the …

Unqualified Immunity And The Betrayal Of Butz V. Economou: How The Supreme Court Quietly Granted Federal Officials Absolute Immunity For Constitutional Violations, Patrick Jaicomo, Anya Bidwell

Dickinson Law Review (2017-Present)

Qualified immunity has been the subject of well-deserved scorn in recent years as a legal mechanism that shields government officials from constitutional accountability. But its shadow has hidden another mechanism that provides an unqualified immunity from constitutional accountability. That de facto absolute immunity extends to federal officials in all but a vanishingly few contexts where claims are still permitted under the 1971 Supreme Court decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. But it was not always that way. In its 1978 decision Butz v. Economou, the Supreme Court permitted Bivens claims to proceed against …

Global Partnership Should Be The Way Forward To Combat Money Laundering, Maame Nyakoa Boateng

Dickinson Law Review (2017-Present)

This Comment compares the major anti-money laundering (“AML”) laws in the United States and Iran. This Comment argues that even though the United States is advanced in its compliance approach, without a partnership with countries that are more vulnerable to money laundering attacks, its AML efforts could prove counter-productive because of the inter-connectedness of our world today. Accordingly, this Comment proposes a global partnership between countries with effective AML legislation and countries with less effective AML legislation to combat this complex crime.

Bringing History Home: Strategies For The International Repatriation Of Native American Cultural Property, Alec Johnson

Dickinson Law Review (2017-Present)

The theft of Native American cultural items has been ongoing since Europeans began to colonize the Americas. As a result, millions of Native American artifacts are now located outside the borders of the United States. Native American tribes have long sought international repatriation—the return of these cultural objects to their tribal owners. Unfortunately, many countries have been unsupportive of repatriation attempts and Native Americans seeking the return of their cultural items face nearly insurmountable barriers in foreign courts. The U.S. government has a moral imperative to assist Native American tribes in these repatriation efforts. The debate over repatriation is defined …

Lessons From Psychology For Law Practice Management, Peter G. Glenn

Dickinson Law Review (2017-Present)

No abstract provided.

Deepfakes, Shallowfakes, And The Need For A Private Right Of Action, Eric Kocsis

Dickinson Law Review (2017-Present)

For nearly as long as there have been photographs and videos, people have been editing and manipulating them to make them appear to be something they are not. Usually edited or manipulated photographs are relatively easy to detect, but those days are numbered. Technology has no morality; as it advances, so do the ways it can be misused. The lack of morality is no clearer than with deepfake technology.

People create deepfakes by inputting data sets, most often pictures or videos into a computer. A series of neural networks attempt to mimic the original data set until they are nearly …

A Proportionality-Based Framework For Government Regulation Of Digital Tracing Apps In Times Of Emergency, Sharon Bassan

Dickinson Law Review (2017-Present)

Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance.

Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who …

Restricting Funeral Expense Deductions, William A. Drennan

Dickinson Law Review (2017-Present)

During the Middle Ages, the wealthy often requested burial in mass graves with their fellow mortals, as a sign of humility. But since the rise of the cult of the individual during the Renaissance, individual burial plots have been an expression of prestige, wealth, and social status for some. For example, Leona Helmsley, real estate baroness and “Queen of Mean,” dedicated $3 million upon her death for the care and maintenance of her 1300 square foot, $1.4 million mausoleum. Respectful disposition of the body is a hallmark of civilization and a common law requirement of estate administration, but an extravagant …

The Writing’S On The Wall: Using Multimedia Presentation Principles From The Museum World To Improve Law School Pedagogy, Cecilia A. Silver

Dickinson Law Review (2017-Present)

Law school pedagogy is a relic. Nearly 150 years after Christopher Langdell pioneered the case method, the typical doctrinal course remains predominantly a verbal domain, featuring lectures, Socratic dialogue, and final exams. But the visual disconnect between legal education and legal practice does students a disservice. Under the proliferating influence of laptops, iPads, smartphones, and Zoom, students now read, work, and study electronically more than they ever have before. So instead of business as usual, it’s time to embrace “visualization”—using multimedia to enhance, or even supplant, the near-exclusive reliance on language—to build a more vibrant and inclusive learning environment.

Law …

Retirement Lost: Enhancing The Durability Of The 401(K) Account, Anna-Marie Tabor

Dickinson Law Review (2017-Present)

American workers have left billions of dollars in 401(k) accounts that they may never be able to find. The problem affects low-wage workers the most, aggravating income-based retirement inequality. Workers who are laid off or change jobs often leave their 401(k) savings in a former employer’s plan. As time passes, communication breaks down between departed employees and their plans, and changes to the employer, plan provider, or individual accounts may prevent the worker from finding the account. Once participants and plans have lost contact with each other, many plans force transfer balances under $5000 into Individual Retirement Accounts, without the …

Book Review: This Is How They Tell Me The World Ends: The Cyberweapons Arms Race (2020) By Nicole Perlroth, Amy C. Gaudion

Dickinson Law Review (2017-Present)

No abstract provided.