Spotlight

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. 

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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.

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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.

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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.

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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.

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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.

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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.

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Spenser Karr

States face many choices when negotiating trade agreements. The substantive considerations in trade agreements are numerous and can range from the large-scale considerations like the scope of the agreement to more minute details such as which sectors of industry will receive favorable tariff treatment and how favorable that treatment will be. However, states traditionally have put off some choices until the future. When treaties cover international investment, they almost always save for later the selection of arbitrators who will oversee disputes. The decision to choose arbitrators only after a dispute has occurred is supported by tradition and logic. The specific nature of a conflict cannot be known until that conflict has arisen. In recent years, however, multiple parties have expressed concern about the potential for conflicts and bias that are allegedly perpetuated by this system and, accordingly, have argued for change.

A leaked draft of the Regional Comprehensive Economic Program (RCEP), a Southeast Asian trade treaty created by states whose population represents nearly half the global total and who combine to make up nearly forty percent of the global trade market, adopted one proposed change. The RCEP has rejected tradition and boldly embraced one idea from reformers: creating a preselected list of potential arbitrators who will oversee all future trade disputes. This Comment contends that this idea will undermine the purposes of the international investment regime and weaken one of its main pillars of support: investor-state dispute settlement (ISDS). By diverging from tradition, the RCEP member states are weakening a treaty that otherwise shows great potential to transform trade relations in the region.

essay
Stephen M. Feldman

In The Invention of Low-Value Speech, Genevieve Lakier criticizes recent free expression developments from a powerful historical perspective. The crux of Lakier’s article is her challenge to the historical underpinning of United States v. Stevens and the entire two-level theory of free speech. This Essay describes the lacuna in Lakier’s historical analysis of the post-1937 Court’s free expression transition and argues that the history she misses matters to our current understanding of free expression.

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Leslie E. Minora

This Comment aims to provide a roadmap of the key steps a U.S. court would take if it were to analyze the domestic application of the right to be forgotten, a law which allows citizens of the European Union to petition search engines to remove reputation-damaging links. The Comment recommends that a U.S. court should not enforce Europe’s right to be forgotten, if and when a court faces this decision.

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A. Mayer Kohn

This Note examines the impact of Tincher v. Omega Flex on evidentiary issues in Pennsylvania defective design products liability litigation, specifically the admission of industry standards and practices evidence to prove or defend against strict liability claims.