Law Commons^™

If A Social Media Platform Was An Intersection, Should Contract Law Or Free Speech Have The Right-Of-Way With Respect To User Content?, Jason R. Hildebrand

Journal of Business & Technology Law

No abstract provided.

Grandma Got Arrested: Police, Excessive Force, And People With Dementia, Rashmi Goel

Sturm College of Law: Faculty Scholarship

Recent events have shone a light on the particular vulnerability of people with dementia to police violence. Police are arresting people with dementia and using excessive force to do it—drawing their firearms, deploying tasers, and breaking bones.

To date, little attention has been paid to the burgeoning number of people with dementia, one of society’s most vulnerable populations, and their experiences with the criminal justice system. This Article examines how dementia leads people to engage in activity that appears criminal (shoplifting (forgetting to pay), and trespass (wandering), for instance) and the disproportionate response of police. In several cases where people …

Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes

Loyola University Chicago Law Journal

In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and explain how leading Supreme Court justices have engaged in originalist constructionism, we employ the interpretation-construction distinction as well as two additional analytical concepts recently discussed by leading legal scholars: Sam Bray’s recovery of “the mischief rule” and Jack Balkin’s textual typology of principles, standards, and …

The Death And Resurrection Of Establishment Doctrine, Gerard V. Bradley

Duquesne Law Review

Lead Article

The biggest news of the Supreme Court's 2021-22 term was the Court's "abandonment" of Lemon v. Kurtzman as the default test for Establishment Clause jurisprudence. For a full half-century, Lemon v. Kurtzman defined what our constitutional separation of church and state meant. But now the Court has definitively laid it to rest. The important question of church-state relations stands at a strategic fork in the road that the Court has not faced since 1962, and perhaps not since 1947. Justice Gorsuch complained that Lemon demonstrably failed as law. That it was a judicial tool that flopped by every …

Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn

Duquesne Law Review

During the 2021-2022 Term, the United States Supreme Court issued several groundbreaking opinions that fundamentally changed the interpretation of the Constitution in a number of areas, including freedom of religion under both the Free Exercise Clause and the Establishment Clause; reproductive freedom and the Right to Privacy; and justiciability, administrative law and the Separation of Powers. The Court also granted certiorari in another case that may have an enormous impact on our representative democracy and the right to vote in federal elections.

A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone

Duquesne Law Review

In Kennedy v. Bremerton School District,¹ the Roberts Court continued its move to carve out larger spaces for religious practice and expression in public spheres.² But in so doing it left lower courts and school districts with many more questions than answers concerning what the Establishment Clause means and what it requires of them. Can school districts still protect students from religious coercion by teachers, classmates, and others? Are entanglements between church and state or the appearance of endorsement no longer problematic?³ Should the individual history and tradition of schools and communities influence decision making on …

Analysis Of Carson V. Makin, Wilson Huhn

Duquesne Law Review

Many school districts in the State of Maine lack high schools, so the children in those districts must attend another school selected by their parents.¹ In 1873 the State of Maine enacted a tuition assistance program, called "town tuitioning," that offers a stipend to participating schools to partially defray the cost of educating children from districts that lack a high school.² In 1981 the State of Maine enacted a law that categorically excludes "sectarian schools" from participating in the tuition assistance program.³ The Maine Department of Education defines a "sectarian school" as a school that is both …

Let The Right Ones In: The Supreme Court's Changing Approach To Justiciability, Richard L. Heppner Jr.

Duquesne Law Review

In last term's blockbuster case Dobbs v. Jackson Women's Health Organization, one of the considerations Justice Alito cited for overturning Roe and Casey was that they "have led to the distortion of many important but unrelated legal doctrines."¹ Alito asserted that abortion jurisprudence has, among other things, "ignored the Court's third-party standing doctrine."² Whether that is a fair description of the case law is debatable. But it raises the question of whether the newly ascendant conservative majority might likewise distort standing doctrine, and other justiciability doctrines, in order to decide particular, controversial issues.

Applying Bentham's Theory Of Fallacies To Chief Justice Robert's Reasoning In West Virginia V. Epa, Dana Neacsu

Duquesne Law Review

There are two issues in West Virginia v. EPA.¹ One regards justiciability, and the other delegation. Article III of the Federal Constitution limits justiciability to controversies, to disputes involving an injured party whose harm the judiciary believes it can remedy. The Constitution is silent on delegation.

This Essay summarizes the Court's decision in West Virginia v. EPA.² It also analyzes Chief Justice Roberts' reasoning and addresses the case's flaws from two perspectives. It references the Court's decision connecting it to the so-called New Deal Cases,³ because in both Panama Refining Co. v. Ryan,^{4 …}

Talk Should Be Cheap: The Supreme Court Has Spoken On Compelled Fees, But Universities Are Not Listening, Falco Anthony Muscante Ii

Duquesne Law Review

Taking money from a person to support political and ideological projects with which that person disagrees is, in the words of Thomas Jefferson, "sinful and tyrannical." Public universities are meddling with sin and tyranny by compelling some students to pay mandatory student activity fees in support of political and ideological activities with which those students disagree. This Article provides separate legal and historical backgrounds for both public union dues and fees and the more-recent public university student activity fees to ultimately propose a constitutional system congruent with Janus v. AFSCME, Council 31, and its impact on Board of Regents …

Rule 4(K)(2) And The Online Marketplace: An Efficient And Constitutional Route To Personal Jurisdiction Over Foreign Merchants Of Counterfeits, Taylor J. Pollier

Duquesne Law Review

The online marketplace has exploded as an efficient way for U.S. consumers to get the goods they need and want delivered directly to their doors. At the same time, the prevalence of counterfeit goods offered for sale on those marketplaces has grown. Companies in the United States that own the intellectual property rights to products being counterfeited online often use various methods to stop the infringement before court intervention is necessary. Ultimately, however, those companies may need to sue the infringing party to enforce their rights. Without the 1993 addition of Federal Rule of Civil Procedure 4(k)(2), that would not …

Table Of Contents, Volume 61, Number 2, Summer 2023 [And Other Preliminary Pages]

Duquesne Law Review

No abstract provided.

"We Don't Know What We Want": The Tug Between Rights And Public Health Online, Jonathan Zittrain

Duquesne Law Review

Twitter and Facebook boast billions of subscribers, many of whom are real people. The companies are also roundly hated, particularly by tech experts-at least those who follow them for something other than their stock performance.¹ Objections to platforms' behavior are commonly expressed as amazement that they could be so obviously and consistently wrong in failing to police awful content their users post. There is also amazement about unobjectionable posts and comments from users that they take down.² That, in turn, has led to pressure for regulatory initiatives to push the companies into doing what they so clearly ought …

The Tug Between Private And Public Power Online, Evelyn Douek

Duquesne Law Review

Professor Zittrain's article describes, in his characteristically vivid and engaging way, one of the most consequential tugs of war of the internet age: the battle over the rules for what can and cannot be said online. The legal centerpiece of Zittrain's story is the Skokie case from the late 1970s, which held that Nazis had a First Amendment right to march in a Chicago suburb with a large population of Holocaust survivors.¹ Zittrain calls the case "a near-perfect encapsulation of mainstream late twentieth century characterization of the right to free speech in America."² And he's right-there is perhaps …

Platform Governance's Legitimate Dilemmas, Alicia Solow-Niederman

Duquesne Law Review

How can we govern if "we don't know what we want?"¹ In characteristically engaging and thought-provoking fashion, Jonathan Zittrain's Essay interrogates our ongoing struggle to answer this thorny question.² As Professor Zittrain exposes, governing social media firms like Twitter and Facebook is no easy feat.³ Part of the challenge is defining the problem itself: it's hard to diagnose what, exactly, "is so 'obviously' wrong" with social media today.⁴ Naturally, without a consensus on what is wrong, it is difficult, if not impossible, to make it right.

Whose Ledger Is Really Red? Confidential Arbitration Killed The Black Widow, Daniel Charles Smolsky

Duquesne Law Review

After filing a complaint against the Walt Disney Company in July 2021, Scarlett Johansson ensured that she would follow through with litigation to protect other Hollywood talent. Despite that assurance, Johansson settled her suit with Disney only sixty-three days after filing her complaint. This Article explores what Johansson's shockingly swift settlement reveals about not only the entertainment industry, but the majority of modern employment disputes. Did Disney abuse its power and intentionally sacrifice box-office profits at Johansson's expense, or did Johansson leverage her public influence to compel an unwarranted settlement? Whose ledger is really red and perhaps more importantly why …

The Pricelessness Of Life Vs. Profiting From Illness: A Call For Change To The Pricing Model For Lifesaving Drugs In The United States, Aubri L. Swank

Duquesne Law Review

Pharmaceutical drug prices in the United States are at the highest costs yet seen, and it looks like these prices are still continuing to climb. While people in the United States are struggling to pay for necessary medications, the prices of those same medications are drastically lower in other countries.

This Article directly analyzes the issue of pharmaceutical pricing in the United States through two specific lifesaving drugs, insulin and epinephrine. Both drugs are prescriptions required to keep some people alive, and both are related to manufacturing companies with questionable, overwhelming control of the markets. While there has been recent …

Running A Red Light: How Pennsylvania Rushed To Its Destination And Failed To Define "Exigent Circumstances" In Commonwealth V. Alexander, Josephine L. Mlakar

Duquesne Law Review

The United States Supreme Court and the Pennsylvania Supreme Court both recognize an "automobile exception" to the warrant requirement pursuant to their respective constitutions. In 2014, the Pennsylvania Supreme Court adopted the federal automobile exception. Under the federal automobile exception, police can search a vehicle without a warrant where probable cause exists. In 2020, the Pennsylvania Supreme Court overruled its 2014 decision, and announced its official departure from federal standard. Now, police can search a vehicle without a warrant only upon a showing of both probable cause and exigent circumstances.

Adding an exigency component to the warrantless search requirement is …

Increasing Representation: Expanding Intersectional Claims In Employment Discrimination, Anna Maria Sicenica

Duquesne Law Review

The trend of globalization has only continued to bring workers from different races, religions, and countries to the United States. Moreover, in a country where women continue to become a larger part of the workforce every year, and as the age of retirement continues to grow, there will inevitably be more women who will face discrimination on multiple grounds: specifically, for their age and sex. Thus, it is no wonder that "intersectional claimants," or claimants that belong to least two or more protected classes under the law, now make up the majority of the workforce.

However, despite the fact that …

Power Shift: The Return Of The Uniting For Peace Resolution, Michael P. Scharf

Faculty Publications

In 2022, the United States dusted off the 1950 Uniting for Peace Resolution in order to obtain General Assembly condemnation of the Russian invasion of Ukraine. This was the first time in three decades that the Security Council and General Assembly had utilized the Uniting for Peace mechanism – a process designed to end-run a Security Council veto. Together with the General Assembly’s creation of the international investigative mechanism for Syria in 2016 over Russia’s objection, the use of the Uniting for Peace process to condemn Russia’s aggression represented a shift in power away from the Security Council and to …

An Overlooked Argument For A Single-Payer Healthcare System: Eliminating Misalignment Among Payment Models, Jessica Mantel

Annals of Health Law and Life Sciences

No abstract provided.

Table Of Contents

Marquette Sports Law Review

No abstract provided.

Did The Superbowl Ad Curse Heighten Defined Contribution Plan Fiduciary Duties?: Deciphering The Legal And Ethical Landscape Of Cryptocurrency Options In 401(K)S, Lauren K. Valastro

Sturm College of Law: Faculty Scholarship

Regulating cryptocurrency’s place in America’s most popular retirement savings vehicle generates thorny legal, ethical, and social justice dilemmas. Too little regulation could hurt those at highest risk of underfunded retirement. Too much could exacerbate existing racial, ethnic, and gender inequities.

Though recent regulatory efforts suggest 401(k) administrators violate their fiduciary duty of care by offering cryptocurrency investment options to plan participants, the established fiduciary regime protects 401(k) plan participants from cryptocurrency risk while respecting their savings preferences. Yet, the current framework falls short of ethically and equitably serving all plan participants, particularly members of underserved communities — a problem largely …

Ok, Zoomer: Teaching Legal Research To Gen Z, Olivia R. Smith Schlinck

Library Staff Articles

Generation Z has entered law school. With each new generation comes new education preferences. While research on Gen Z in the legal academy has grown over the past few years, to date none deal explicitly with teaching legal research to Gen Z. This article connects Gen Z’s childhood and resulting peer personality to 10 tangible pedagogical changes for teaching legal research to Gen Z.

The Role Of The Aba’S “Summits” In Facilitating Global Networks And International Cross-Border Legal Practice, Laurel Terry

Faculty Scholarly Works

This Article was written for a Symposium honoring recently-retired Professor Bob Lutz. It describes fourteen gatherings that were organized by either the ABA Section of International Law’s Transnational Legal Practice Committee or by the predecessor entities to the ABA Standing Committee on International Trade in Legal Services. Professor Lutz was a driving force behind these gatherings, which were held between 2004 and 2014, and were referred to by the organizers as “Summits.” This Article examines the impact of these Summits and explains why they played a critical role in helping establish global legal profession networks among U.S. legal profession stakeholders …

Creditors Not Precluded From Recovering Debtors’ Commercial Tort Litigation Recovery Through Security Interest, Dana Aprigliano

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) provides valuable protections for secured creditors. A secured creditor of a chapter 7 debtor is entitled to distribution of any debtor property (or its value) in which they have an interest before any other creditors are paid. Even if the debtor has filed under chapter 11 or 13, a secured creditor is still entitled to receipt of their collateral or its value.

Under Article 9 of the Uniform Commercial Code (“UCC”), commercial tort claims and their proceeds may collateralize secured liens. Hence, creditors believing they are secured by a …

A Majority Of Courts Reject The Application Of The Rules For Disallowance Of Claims Under Section 502(D) To Administrative Expense Claims, Mairead Cooney

Bankruptcy Research Library

(Excerpt)

Since the adoption of title 11 of the United States Code (the “Bankruptcy Code”), courts have struggled with the application of administrative expense claims. Administrative expenses include the actual costs and expenses of preserving the estate after the commencement of a bankruptcy case. Allowance of an administrative expense claim is governed by section 503 of the Bankruptcy Code. A question arises, however, whether the rules of governing the allowance of claims, under section 502, also applies to administrative expense claims.

Under section 502(d), a court may “disallow any claim of any entity from which property is recoverable . . …

Personal Injury Tort Claims As Core Proceedings In Bankruptcy Courts—Broad, Narrow, And Intermediate Approaches, Brigid Lynn

Bankruptcy Research Library

(Excerpt)

Under 28 U.S.C. § 157(b)(1), “bankruptcy judges may hear and determine all cases under title 11 and all core proceedings arising under title 11.” Core proceedings are those concerning the administration of an estate and the confirmation of plans, among others listed in the statute. However, not considered core proceedings are those regarding “the liquidation or estimation of contingent or unliquidated personal injury tort . . . claims against the estate for purposes of distribution in a case under title 11.” Personal injury tort claims are instead reserved for the district court in which the bankruptcy case is pending …

A Transfer Made In Connection With A Securities Contract May Not Be Avoided Under Section 546(E) Of The Bankruptcy Code, Dennis Mossberg

Bankruptcy Research Library

(Excerpt)

Under title 11 of the United States Code (the “Bankruptcy Code”), a bankruptcy trustee has the power to avoid, or claw back, certain transfers of property made before a bankruptcy filing. A trustee may avoid transfers such as those that are preferential under section 547 and fraudulent transfers under section 548. Section 546(e) of the Bankruptcy Code generally provides that a transfer made by, to, or for the benefit of a commodity broker, stockbroker, financial institution, or securities clearing agency in connection with a securities contract cannot be avoided. In 2018, the Supreme Court clarified the scope of the …

A Decedent’S Estate Is Barred From Filing Bankruptcy, Howard Poon

Bankruptcy Research Library

(Excerpt)

A “person” that “resides or has a domicile, a place of business, or property in the United States, or a municipality” is generally eligible to be a debtor in a bankruptcy case under title 11 of the United States Code (the “Bankruptcy Code”). The definition of a “person” under the Bankruptcy Code includes “individual, partnership, and corporation.” Courts, however, have interpreted the definition of “person” broadly to include groups not explicitly mentioned in the statute. Consequently, a decedent’s estate, which is not expressly identified as a person under the Bankruptcy Code, may nevertheless argue that it is eligible to …