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Table Of Contents, Volume 22, Number 2, Winter 1984

Duquesne Law Review

No abstract provided.

Title Page - Volume 22 (1983-1984)

Duquesne Law Review

No abstract provided.

The Performance Exemption Under Section 110(5): Time For A Change, Julie Alexa Strauss

Duquesne Law Review

Performance of a copyrighted work may subject the performer to an infringement action if a license is not obtained for the performance. Not all performances of copyrighted material require the obtaining of a license, however. The Copyright Act of 1976 has set forth exceptions and limitations to the licensure requirement in order to satisfy the dual tension which is inherently present in copyright law: encouraging and rewarding an author's creative labor, and promoting broad public availability of the artist's works. This comment traces the historical development of the meaning and application of "performance" under the copyright acts, placing special emphasis …

Table Of Contents, Volume 22, Number 3, Spring 1984

Duquesne Law Review

No abstract provided.

The Implied Warranty Of Habitability And The "Non-Merchant" Landlord, Jane P. Mallor

Duquesne Law Review

This article examines the issue of whether the implied warranty of habitability should be imposed on non-merchant landlords. The author explores the rationales which supported the creation of the warranty, examines the content of the warranty and discusses the reasons for the requirement of merchant status in product liability law. Finally, the author concludes that the policies of the implied warranty of habitability would most readily be served by its application to non-merchant landlords in a contract context and in a tort context predicated upon a negligence standard.

A Background To Variance Problems Under A Uniform Commercial Code: Toward A Contextual Approach, John L. Gedid

Duquesne Law Review

Traditional analysis of the variance problem in contract formation prior to the adoption of the Uniform Commercial Code denied the complexity of the issue and embraced mechanical and simplistic approaches of the mirror image and last shot doctrines. This article focuses on these pre-Code approaches and solutions to variance and identifies incorrect premises and assumptions underlying these analyses. From this basis, the author advances a "modern" approach to understanding and resolving variance problems which recognizes the complexity of the issue in the context of the goals of the agreement process and the substantive policies of the Code.

A Clash Of Cases: Jury Death Qualification And The Fair Cross-Section Requirement, Joel Stephen Sansone

Duquesne Law Review

Witherspoon v. Illinois and Taylor v. Louisiana have delineated the impact of the death qualification process on jury selection in America. The author examines the dilemma that arises in trying to construe these two Supreme Court cases consistently, and reviews Grigsby v. Mabry, the only decision to directly confront the apparent inconsistency of Witherspoon and Taylor. The author concludes that the death qualification process adversely affects the impartiality of a jury otherwise drawn from a fair cross-section of the community.

Civil Rights - Civil Rights Act Of 1964 - Title Vii - Sex Discrimination - Employee Pension Plans, John M. Giunta

Duquesne Law Review

The United States Supreme Court has held that an employer cannot offer a privately run pension annuity plan which at retirement pays women a smaller monthly annuity than men, where women and men contribute equally to the plan.

Arizona Governing Committee For Tax Deferred Annuity & Deferred Compensation Plans v. Norris, 103 S. Ct. 3492 (1983).

Establishing A Balance Of Power: The Petroleum Marketing Practices Act And The Franchisor As Landlord, Janet A. Sheehan

Duquesne Law Review

The Petroleum Marketing Practices Act was enacted to strike a new and ostensibly fairer balance of power between franchised retail gasoline distributors and their patron oil companies. The author examines the rights of the parties to a gasoline distributorship franchise in the circumstance where the franchisor, who is also- the landlord, wishes not to renew the agreement at its expiration date. The statutory language, legislative history and case law are examined to determine whether the Act has accomplished the task of placing the franchisee in a viable bargaining position. The commentator suggests that a more liberal reading of the Act …

Constitutional Law - Fourteenth Amendment - Right To Abortion - Regulatory Framework - Standard Of Review, David B. Torrey

Duquesne Law Review

The United State Supreme Court has held that the state may not, in its regulation of abortion, deviate from accepted medical practice, and that all pre-viability abortion regulation shall be subject to strict scrutiny under the compelling state interest standard of substantive due process analysis.

City of Akron v. Akron Center for Reproductive Health, Inc., 103 S. Ct. 2481 (1983).

Title Page - Volume 22 (1983-1984)

Duquesne Law Review

No abstract provided.

Table Of Contents, Volume 22, Number 4, Summer 1984

Duquesne Law Review

No abstract provided.

Workmen's Compensation - Statute Of Limitations - Timeliness Of Claims Or Appeals, John A. Mccreary Jr.

Duquesne Law Review

The West Virginia Supreme Court of Appeals has held that all time limitations under the West Virginia Workmen's Compensation Act are procedural and not jurisdictional, thus allowing consideration of otherwise untimely claims upon a showing of justifiable reason for delay.

Bailey v. State Workmen's Compensation Commissioner, 296 S.E.2d 901 (W. Va. 1982).

Pennsylvania Civil Procedure - Pleadings - Amending Complaint After Running Of Statute Of Limitations, Cynthia E. Kernick

Duquesne Law Review

The Pennsylvania Supreme Court has held that a broad allegation of negligence in the original complaint is sufficient to sustain an amendment containing a more specific allegation of negligence made after the statute of limitations has expired.

Connor v. Allegheny General Hospital, ___ Pa. ___ , 461 A.2d 600 (1983).

Sales Tax And Use Tax: Historical Developments And Differing Features, Herman C. Mccloud

Duquesne Law Review

This article examines the historical development of state sales and use taxes and the erosion of interstate commerce immunities initially enjoyed by out-of-state sellers. While use taxes were enacted to "compliment" sales taxes so as to encompass purchases from outside the state, the author highlights several features where use tax application differs from sales tax yet cannot be imposed on any greater tax base than the sales tax. Since sales and use taxes face an ever evolving scenario of business transaction, the examination includes recent developments in the area.

Incest: The Need To Develop A Response To Intrafamily Sexual Abuse, Ruth E. Felker

Duquesne Law Review

Incest is a complex phenomenon. The author briefly acquaints the reader with research regarding the incestuous family by attempting to describe the dynamics of the relationship and by indentifying some common characteristics of the participants. The author notes the difficulties inherent in this task and encourages further research in this sensitive area. The author then overviews and summarizes the variety of statutes in the United States which are utilized when responding to the incestuous family, as well as noting current reforms in this legislation. The author concluded with a report of innovations in the response to incestuous families and suggests …

Wrongful Death Damages In Pennsylvania: A Suggestion For Expanded Recovery, Kathleen Gavigan

Duquesne Law Review

Wrongful death damages in Pennsylvania are limited to pecuniary losses only. The author examines the history of this rule and the reasons why it is outdated. The author suggests that Pennsylvania law should be changed to conform with that of the majority of states to include compensation for emotional losses such as loss of companionship and society.

Labor Law - Union's Duty Of Fair Representation - Apportionment Of Damages Between An Employer And A Union In A Hybrid Section 301 Suit, George E. Kunst Jr.

Duquesne Law Review

The Supreme Court of the United States has held that a union may be liable to a discharged employee for a portion of his lost wages when the union breaches its duty of fair representation.

Bowen v. United States Postal Service, 103 S. Ct. 588 (1983).

Historic Preservation Cases In Pennsylvania: A Survey And Analysis, Marnie M. Crouch

Duquesne Law Review

Historic preservation activity in Pennsylvania is impressive and expanding. This comment examines nine reported Pennsylvania historic preservation cases arising under state and federal laws. Historic district ordinances and the effects of listing in the National Register of Historic Places are discussed, among other topics, in relation to themes such as the demolition of irreplaceable historic resources and the linkage between preservation of historically and architecturally significant buildings with community revitalization. The status of historic preservation law in Pennsylvania is evaluated through an examination of these nine cases and the themes they illustrate.

State Income Taxation Of Multijurisdictional Corporations: An Historical Perspective, Garet H. Danvers

Duquesne Law Review

The author discusses the evolution of state income taxation for a multijurisdictional unitary business beginning with the early property tax cases, and reviews how this concept has been refined over the years. Next, the formulary apportionment of unitary business income is analyzed with particular emphasis placed on the sometimes distortive results. Finally, the United States Supreme Court's recent decision in Container Corporation of America is evaluated, with a view towards the future implications for state income tax practitioners.

Constitutional Law - Tenth Amendment - Commerce Clause - Application Of Adea To State And Local Governments, Mary M. O'Day

Duquesne Law Review

The Supreme Court of the United States has held that the extension of the Age Discrimination in Employment Act to state and local governments was a valid exercise of Congress' powers under the commerce clause and was not precluded by virtue of tenth amendment constraints.

Equal Employment Opportunity Commission v. Wyoming, 103 S. Ct. 1054 (1983).

International Law - Federal Jurisdiction - Arising Under Clause - Foreign Sovereign Immunities Act Of 1976, Joseph S. Bielecki

Duquesne Law Review

The Supreme Court of the United States has held that in cases where a foreign plaintiff brings suit against a foreign sovereign under the Foreign Sovereign Immunities Act of 1976 federal courts may constitutionally exercise jurisidiction [sic] under article III of the United States Constitution.

Verlinden B. V. v. Central Bank of Nigeria, 103 S. Ct. 1962 (1983).

Constitutional Law - Eighth Amendment - Cruel And Unusual Punishment - Criminal Law - Proportionality Review In Non-Capital Sentencing, Russell K. Broman

Duquesne Law Review

The United States Supreme Court has held that a sentence of life imprisonment without parole imposed in accordance with a state recidivist statute on a defendant after his seventh non-violent felony conviction constitutes cruel and unusual punishment.

Solem v. Helm, 103 S. Ct. 3001 (1983).

Labor Law - Eeoc Conciliation Agreement - Arbitration - Judicial Review, John V. Pecori

Duquesne Law Review

The Supreme Court of the United States has held that an employer who breaches its collective bargaining agreement because of compliance with an Equal Employment Opportunity Commission conciliation agreement will not be shielded from liability by that agreement.

W.R. Grace & Co. v. Local 759, International Union of Rubber Workers, 103 S. Ct. 2177 (1983).

Tort Law - Liability Of Commercial Vendor Of Alcohol - Duty Derived From Violation Of Criminal Statute, Madelyn A. Reilly

Duquesne Law Review

The North Carolina Court of Appeals, absent a state civil damages act, has found commercial vendor liability by deriving duty from the violation of a criminal statute.

Hutchens v. Hankins, 303 S.E.2d 584 (N.C. Ct. App.), review denied, 309 N.C. 191, 305 S.E.2d 734 (1983).

Constitutional Law - Fourth Amendment - Search And Seizure - Probable Cause, Megan E. Harmon

Duquesne Law Review

The United States Supreme Court has held that a search warrant based on information from an anonymous informant can withstand a constitutional challenge when viewed by a "totality of the circumstances" approach.

Illinois v. Gates, 103 S. Ct. 2317 (1983).

Insurance Law - Wrongful Conduct Of Insured - Innocent Con-Insured, Robert M. Danenberg

Duquesne Law Review

The Pennsylvania Supreme Court has held that the wrongful conduct of one co-trustee in setting fire to a building constituting part of the corpus of a family trust cannot fairly be imputed to other co-trustees so as to deny them recovery of their share of insurance proceeds.

Giacobetti v. Insurance Placement Facility of Pennsylvania, ___ Pa. ___, 457 A.2d 853 (1983).

Tort Law - Product Liability - Manufacturer's Duty To Provide Necessary Safety Equipment - Effect Of Purchaser's Request That Safety Equipment Be Removed, William A. Behare

Duquesne Law Review

The United States Court of Appeals for the Third Circuit has held that under Pennsylvania law where a knowledgeable purchaser of equipment instructs the manufacturer to remove a standard safety device prior to the equipment's delivery the manufacturer is liable for injuries resulting from the lack of the safety device even where the equipment was used by an experienced operator.

Hammond v. International Harvester, 691 F.2d 646 (3d Cir. 1982).

Book Review, Mark D. Yochum

Duquesne Law Review

CORPORATE INTERNAL AFFAIRS. By Marc I. Steinberg. Westport, Connecticut: Quorum Books, 1983. Pp. vii, 294.

Title Page And Masthead - Volume 22, 1983-1984

Duquesne Law Review

No abstract provided.