Law Commons^™

Table Of Contents, Volume 60, Number 1, Winter 2022 [And Other Preliminary Pages]

Duquesne Law Review

No abstract provided.

Time To Follow Florida: Why Gina's Definition Of "Genetic Information" Must Change In The Context Of Life Insurance, Kathryn Czekalski

Duquesne Law Review

Many Americans apply for a life insurance policy to protect their spouses and families in the event of an untimely death.¹ What if insurance companies required genetic tests as part of the application process? What if those results were used to exclude applicants or calculate premiums? Can an individual who has taken a commercial genetic test, such as the popular 23andMe, ² be forced to disclose the results to obtain an insurance policy? Surprisingly, genetic discrimination regarding life insurance decisions is currently legal in forty-nine of the fifty states.³ This Article argues that additional federal legislation to prohibit …

Triaging Lomax: An Urgent Proposal For Legislative Reform To Restore Judicial Protection In American Prisons, Alexis B. Thurston

Duquesne Law Review

In a 2003 study of trends in inmate litigation before and after the enactment of the Prison Litigation Reform Act ("PLRA"), Harvard Law School Professor Margo Schlanger described the PLRA's administrative exhaustion requirement as "the statute's most damaging component."¹ Almost two decades later, in June of 2020, the United States Supreme Court indirectly strengthened the administrative exhaustion requirement through its ruling in Lomax v. Ortiz-Marquez.² In Lomax, the Court found that all dismissals of inmate litigation resulting from the failure of an incarcerated plaintiff to adhere to the exhaustion requirement would count as "strikes" against the …

Foreword To The Symposium, The Death Of Eyewitness Testimony And The Rise Of Machine, Jane Campbell Moriarty, Erin Mccluan

Duquesne Law Review

Artificial intelligence, machine evidence, and complex technical evidence are replacing human-skill-based evidence in the courtroom. This may be an improvement on mistaken eyewitness identification and unreliable forensic science evidence, which are both causes of wrongful convictions. Thus, the move toward more machine- based evidence, such as DNA, biometric identification, cell service location information, neuroimaging, and other specialties may provide better evidence. But with such evidence comes different problems, including concerns about proper cross-examination and confrontation, reliability, inscrutability, human bias, constitutional concerns, and both philosophic and ethical questions.

What Machines Can Teach Us About "Confrontation", Andrea Roth

Duquesne Law Review

In this short Article, I argue that treating non-human conveyances of information-and other forms of evidence that cannot be cross-examined-as beyond the Confrontation Clause is unsatisfactory as a matter of text, history, logic, and principle. Instead, all of these clues lead to one conclusion: the right of confrontation is a right not only to physical presence of certain human witnesses to facilitate demeanor review and questioning, but to a meaningful opportunity to scrutinize the government's proof, whatever its form.⁸ That right would include out-of-court discovery of critical contextual information about the evidence, whether or not exculpatory, and a …

Ending Manner-Of-Death Testimony And Other Opinion Determinations Of Crime, Keith A. Findley, Dean A. Strang

Duquesne Law Review

In January 2011, Ellen Greenberg's fianc6 and her apartment building manager broke down her apartment door after she failed repeatedly to respond to attempts to contact her.¹ They found herd ead in a pool of blood on the kitchen floor, the victim of twenty stab wounds to her chest, torso, head, and neck, including stab wounds to the back of her head and to her body through her clothes. They found a half-eaten fruit salad on the kitchen counter along with an overturned knife block. By all appearances, Greenberg was the victim of a grisly murder, and the medical …

On-Screen V. In Person: How A Tech-Savvy World Is Impacting Jurors' Perceptions Of Witnesses, Michael T. Deer

Duquesne Law Review

When speaking to a friend or loved one via video chat, one receives the thrill of seeing that person in real time-without a faceto- face encounter. Video chatting is a popular mechanism in the twenty-first century, as the technology comes in various forms and lives at our fingertips.¹ Whether a family is video chatting with an overseas servicemember during a holiday, a person is attending an online class or work meeting, or someone is seeing his or her doctor by way of a virtual appointment, our notion of "face time" has evolved significantly.² In fact, Merriam-Webster now defines …

Mail-In Voting And The Pennsylvania Constitution, Stephen E. Friedman

Duquesne Law Review

Pennsylvania was at the center of many of the disputes that arose after the hotly contested 2020 presidential election. One of the most significant challenges was a claim that Pennsylvania's newly enacted mail-in voting law violated the state's constitution. Plaintiffs in one lawsuit asked that all mail-in ballots be discarded, which would have shifted Pennsylvania's electoral votes to Donald Trump. When this lawsuit failed, challengers unsuccessfully objected to Congress counting Pennsylvania's electoral votes. A core argument both in court and in Congress was that the Pennsylvania Constitution requires in-person voting except where it specifically provides otherwise. The claim is supported …

An Underestimated Showcase Of Student Scholarship: Law School Institutional Repositories, Dajiang Nie

Duquesne Law Review

Law schools have been using institutional repositories as a showcase for law journals and faculty scholarly achievements for a long time, but law school institutional repositories fail to collect student scholarship regularly. Aspects of law school institutional repositories make no sense when directly benefiting both students and law schools and failing to display student scholarship. This Article examines student scholarship in law school institutional repositories, analyzing its current status, advantages, and keys to success. The Article shows that law school institutional repositories underappreciate student scholarship, and the content of student repositories also lacks diversity. This approach impairs the positive impacts …

"Thank You For Your Sacrifice": Off-Label Drug Regulation Strategies After The Misuse Of Hydroxychloroquine For Covid-19, Erin Mccluan

Duquesne Law Review

In March 2020, BuzzFeed News reported that a 45-year-old patient with systemic lupus erythematosus ("SLE") was denied her long-standing hydroxychloroquine ("HCQ") prescription due to the COVID-19 pandemic.¹ Her healthcare network, Kaiser Permanente, informed her that this was necessary to "conserve[] the current supply for those who are critically ill with COVID-19."² Disturbingly, Kaiser wrote to the patient, "Thank you for the sacrifice you will be making for the sake of those that are critically ill; your sacrifice may actually save lives." ³

The patient, Dale, who asked only to be identified by her first name, told BuzzFeed News, …

Putting The "P" In Pfa: The Electronic Monitoring Of Protection From Abuse Respondents In Pennsylvania, Cameron Kehm

Duquesne Law Review

Domestic violence violently claimed Alina Sheykhet's life, despite alleged "protection" from a Protection from Abuse Order ("PFA").¹ Far from being an exception, Alina's story is yet another example among many cases that show how traditional protective order systems fail those who need protected most.² However, Alina's Law can protect PFA holders through a new remedy: the electronic monitoring of PFA respondents.³ Although Alina's Law failed to make it out of committee consideration during the 2019-2020 term,⁴ with three modifications, legislators can reintroduce Alina's Law in a passable form that would protect Pennsylvania's most vulnerable citizens.

Part …

The Inscrutability Problem: From First-Generation Forensic Science To Neuroimaging Evidence, Jane Campbell Moriarty

Duquesne Law Review

Expert testimony continues to turn away from human-based skills to embrace machine-based evidence. Technology is used to identify and locate individuals, unlock encrypted devices, and even to evaluate criminal responsibility. Perhaps this is a positive change. The shortcomings of first-generation forensic identification specialties are substantial and include the inscrutability of its subjective comparisons. As such, this newer generation of evidence may well be an improvement. Yet the inscrutability problem adopts many forms. Machine-based evidence relies on hardware, software, algorithms, statistics, and engineering to reach results-ones created and interpreted by humans subject to bias and cognitive error; results the justice system …

Technology - Revealing Or Framing The Truth? A Jurisprudential Debate, Dana Neacsu

Duquesne Law Review

Technology is so much more than a prosthetic. But how much more? And what else is it? In the legal realm, its role is not yet clear. Such a lack of elucidation becomes problematic, especially when technology has the ability to convert assumptions into facts, and it takes on a truth-making, rather than a mere truth-revealing mission. This Article argues that it is problematic to enable technology to stand in for reflective thinking, and calls attention to the fact that evidentiary rules enable technology to decide what can be proven, ergo what truth is.

Considering "Machine Testimony": The Impact Of Facial Recognition Software On Eyewitness Identifications, Valena Beety

Duquesne Law Review

Andrea Roth's seminal work in Machine Testimony and Trial by Machine presented a problem that is now upon us: addressing biased algorithms and the rampant reliance on technology by prosecutors and law enforcement.¹ That reliance, however, is no longer unquestioning. Roth's work came at a crucial moment in time, when other articles were embracing the apparent impartiality of technology and algorithms for use in the criminal legal system. Her scholarship steered us away from that blind acceptance and dove deep, not only questioning technology itself, but also how to frame those questions of technology in the courtroom.

Biometrics And An Ai Bill Of Rights, Margaret Hu

Duquesne Law Review

This Article contends that an informed discussion on an Al Bill of Rights requires grappling with biometric data collection and its integration into emerging Al systems. Biometric Al systems serve a wide range of governmental purposes, including policing, border security and immigration enforcement, and biometric cyberintelligence and biometric-enabled warfare. These systems are increasingly categorized as "high-risk" when deployed in ways that may impact fundamental constitutional rights and human rights. There is growing recognition that high-risk biometric AI systems, such as facial recognition identification, can pose unprecedented challenges to criminal procedure rights. This Article concludes that a failure to recognize these …

From Beyonce To Bohemia: Reforming Joint Copyright Ownership, William Frank Weber

Duquesne Law Review

JaQuel Knight. Reading this name, for many, will give them no feeling of recognition. The same people that do not know his name will more than likely immediately recognize this next name, Beyonce. Her name immediately conjures up iconic images, songs, and music videos. She is a global star that has released six studio solo albums, all of which have reached number one on the U.S. Billboard charts.¹ Two of Beyonce's hit songs are "Single Ladies (Put a Ring on It)" and "Formation." "Formation," with its numerous Beyonce dance routines, the solo dance of a young, hooded boy in …

Table Of Contents, Volume 60, Number 2, Summer 2022 [And Other Preliminary Pages]

Duquesne Law Review

No abstract provided.

Feres Lives: How The Military Medical Malpractice Administrative Claims Process Denies Servicemembers Adequate Compensation, Robert A. Diehl

Duquesne Law Review

For more than seventy years, active-duty members of the United States armed forces injured by the negligence of military medical practitioners have been denied redress in the federal courts for their injuries. Surviving spouses, children, and probate estates have been turned away from the courthouse. The United States Supreme Court has justified this practice in a series of cases interpreting the Federal Tort Claims Act ("FTCA"),¹ a partial waiver of the federal government's sovereign immunity to suits sounding in law. These precedents-collectively called the Feres doctrine-are a judicial invention constructed from a complex and opaque series of arguments about …