Founded in 1927, Temple Law Review is a student-edited, quarterly journal dedicated to providing a forum for the expression of new legal thought and scholarly commentary on important developments, trends, and issues in the law. 

Kevin Trainer

Justice Scalia was right. Five years ago, in Comcast Corp. v. Behrend, the Supreme Court held that the trial court improperly certified a class of cable subscribers. The opinion, authored by Justice Scalia, found that the economic model used to measure damages resulting from alleged antitrust violations could not accurately compute damages on a class-wide basis. “For all we know,” Justice Scalia concluded for the five-justice majority, subscribers to Comcast cable services could have been injured by any number of antitrust violations. “[C]able subscribers in Gloucester County,” Justice Scalia supposed, “may have been overcharged because of petitioners’ alleged elimination of satellite competition.” He continued, “subscribers in Camden County may have paid elevated prices because of petitioners’ increased bargaining power vis-à-vis content providers,” while subscribers in Montgomery County “may have paid rates produced by the combined effects of multiple forms of alleged antitrust harm.” According to Justice Scalia, and the four Justices who joined him, “[t]he permutations involving four theories of liability and 2 million subscribers located in 16 counties are nearly endless.”

Emily Litka

Today, fights over domain name ownership are common. Amy Schumer, FIFA, Goldenvoice (the organizer of the Coachella Music Festival), and Equifax, to name just a few, are recent filers of domain name complaints. These complaints generally allege a “cybersquatting” claim. Cybersquatting occurs when an individual or entity knowingly registers a domain name consisting of a well-known name with the intent of ransoming it to its rightful owner or with the intent to divert business away from the name holder. For example, People for the Ethical Treatment of Animals (PETA), an animal rights organization, brought suit against an individual who registered because this domain name confused internet users by diverting them to his site, one that espoused a conflicting philosophy, People Eating Tasty Animals.

Sonya C. Bishop

The behavioral health crisis looms, but popular culture teaches us that technology can heal all woes. Americans retain unfettered access to technologies that “solve” nonexistent problems. Terrified by the possibility of out-of-focus photos of your gerbil? Fear no more! Buy a smartphone app designed to take the perfect pet photo. Worried about putting one too many crystals of salt on your baked potato? Your new Bluetooth-enabled salt dispenser will measure out the precise amount. Though enchanting and readily available, most would agree that pet photo apps and Bluetooth salt dispensers do not serve necessary functions in our lives. The National Institute of Health has yet to declare a blurry cat photo crisis. The United States has, however, recognized a serious public health emergency around the availability of adequate behavioral health care for low-income people.

Dustin B. Benham

Excessive litigation confidentiality and disproportionate discovery are symbiotic problems. Indeed, when a litigant uses discovery to obtain damaging information about an opposing party, the party will often pay money to avoid public disclosure through a confidentiality agreement. As a result, litigants have significant financial incentives to seek damaging information through discovery, whether it is connected to the case or not. Nevertheless, policy makers largely approach discovery proportionality and confidentiality as unrelated problems. Take, for example, the recent proportionality amendment to Rule 26 limiting the scope of discovery, or “sunshine” statutes aimed at reducing litigation confidentiality for the sake of public safety. The reforms ignore one another and the tangled incentives that connect both problems.This Article is the first to address the confidentiality-discovery incentive relationship in the post-proportionality-amendment era. It contends that making private confidentiality agreements illegal, at both the pretrial and settlement stages, would reduce incentives to seek low-merits-value discovery.

Stephen A. Plass

The Supreme Court has crafted unprecedented rules to govern contracts to arbitrate under the Federal Arbitration Act (FAA). Although Congress in enacting the FAA prescribed a rule of contract enforcement, it preserved state law defenses to enforcement, state regulation of contract formation, and interpretation issues that did not frustrate the enforcement mandate. This Article shows how the Court has created separate federal rules of formation, interpretation, and defense under the enforcement umbrella. It argues that because states have statutorily embraced the FAA’s enforcement mandate, there is no need for separate federal rules of formation, interpretation, or defense. This Article also demonstrates that the new federal rules for arbitration contracts fail to accomplish their legal mandate of guaranteeing substantive remedies in the arbitral forum. This failure occurs in many cases because of the merger of commercial contract precedents with disharmonious labor arbitration precedents. Using the Court’s rules for vacatur of arbitration awards, and its rules governing labor contract enforcement, this Article provides concrete examples of lost substantive rights attributable to arbitration contract enforcement. To avoid substantive waivers, this Article proposes an interpretive model drawing from Title VII’s disparate impact jurisprudence that prevents substantive waivers, and defers to state laws that are practically consistent with the FAA’s prescription of enforcement.

Lizzy Wingfield

A domestic violence (DV) survivor may, after weighing her options, choose not to leave her abuser or not to report the abuser’s violence toward her child for a number of reasons. One fear is that leaving an abuser or taking another preventative action, such as reporting the abuse, may lead the abuser to retaliate. So-called failure to protect laws harshly punish survivors who choose to stay with or do not report their abusers, even when their decisions are based on a rational safety calculus. When a DV survivor is placed on a child abuse registry for failure to protect their child, the survivor faces multiple collateral consequences, ranging from being denied employment to being unable to accompany her child on school trips. This Comment proposes legislative reform in Pennsylvania: give survivors an affirmative defense to placement on the registry.

Brandon Matsnev

After a near legal battle between the FBI and Apple over gaining access to a criminal suspect’s iPhone, it is clear that the converging issues of law enforcement, compelled computer code, and free speech are bound to come up again. If these issues clash in federal litigation, a court should resolve them through the doctrine of constitutional avoidance, whereby a court steers clear of adjudicating a constitutional matter when a plausible statutory interpretation exists. The All Writs Act provides the statutory escape hatch for purposes of the constitutional avoidance doctrine. Where law enforcement seeks to force a technology company to draft code to circumvent encryption, a court should rule in favor of the technology company by interpreting the All Writs Act in a way that forbids this. Doing so will prevent judicial entanglement in a national debate that should be resolved legislatively. Ultimately, Congress should enact a new federal statutory regime that will balance privacy concerns on the one hand with national security and criminal justice concerns on the other.

Rita Burns

Homeowners often are victims of predatory lending, and many do not understand the terms of the mortgages into which they enter. The Truth in Lending Act (TILA) attempts to protect consumers from this predatory behavior and primarily requires lenders to make certain disclosures to borrowers. TILA claims asserting violations in the disclosure process are common, however, Pennsylvania courts do not allow for TILA counterclaims in mortgage foreclosure actions. This Comment will compare the rationale behind barring TILA counterclaims with the scope of the Deficiency Judgment Act, which allows lenders to bring actions for deficiency judgments in mortgage foreclosure actions. This Comment will ultimately argue that an inequitable result arises from relying on an in rem distinction to bar a legal remedy for borrowers in residential mortgage foreclosures while sidestepping that same distinction to ensure relief for lenders. This leads to the conclusion that Pennsylvania courts should allow for TILA counterclaims in residential mortgage foreclosure actions.

David A. Nagdeman

The question of state standing against the federal government effectively arose with the growth of public law and the expansion of federal administrative agencies. The prevailing presumption has been against recognizing states’ standing to sue the federal government, either on the basis of federal supremacy or on the basis of the political question doctrine. Yet over the past century, a theory of state standing against the federal government has evolved around the nebulous doctrine of injuries to states’ “quasi-sovereign” interests.

This Comment sorts through three predominant arguments of legal scholars on this issue: a common law theory, a theory based on the doctrine of parens patriae, and a theory of constitutionally derived sovereignty interests. This will lead to a proposed interpretation that maintains legal consistency and precedent while basing the judiciary’s Article III jurisdiction over state suits on sovereignty interests implicit in the Constitution. This Comment will limit justiciable quasi-sovereign interests to a state’s sovereign interest in its territorial and jurisdictional integrity. This interpretation provides a narrow enough reading of Massachusetts to stymie a vast expansion of state recourse to the federal courts to litigate policy differences with the federal administration, yet it still allows states the necessary opportunity to protect their interests in territorial integrity. As a foil upon which to apply this legal theory, this Comment turns to the Court’s most recent encounter with the question, resulting in a split decision over the Fifth Circuit’s holding in Texas v. United States.

Richard J. Lechette

The Pennsylvania Constitution contains an amendment known as the Uniformity of Taxation Clause (Uniformity Clause). It requires all taxes enacted in Pennsylvania to be uniform within the class—the group of people or things with common characteristics—being taxed. In 2016, the Philadelphia City Council enacted the Sugar-Sweetened Beverage Tax (Soda Tax). The Soda Tax imposes a 1.5-cent tax per fluid ounce of sugar-sweetened beverage, to be paid by the distributors of these beverages.

This Comment argues that in view of both constitutional and common law, Philadelphia’s Soda Tax violates the Uniformity Clause of the Pennsylvania Constitution. It violates this provision because the tax applies an unequal burden on the taxpayers who distribute sugary beverages at varying market values. An argument is presented for an alternative system of taxation that provides a framework to render the Soda Tax constitutional.