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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David A. Nagdeman, J.D. Candidate, Temple University Beasley School of Law, 2019.

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 Lechette, J.D. Candidate, Temple University Beasley School of Law, 2018.

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, J.D. Candidate, Temple University Beasley School of Law, 2018.

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.

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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.

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Merritt Baer

The reflexive nature of the argument that the criminality of an act can reside in the definition of it—an argument that this Article terms “reflexive violence”—creates a self-reinforcing regime. This Article demonstrates that the creation of reflexive violence as a justification, and the use of it as a logical device in theories of criminality, is both typical of cyberlaw and dangerous for the future of the First Amendment.

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Jonathan Talisman

This Article—a response to Harry L. Gutman’s The Saga of Unfulfilled Business Income Tax Reform—attempts to help advance the tax reform cause and ensure that we explore and exhaust all tax reform options. In so doing, the Article briefly explains the differences among the various consumption tax options and then addresses several of the more significant questions that policymakers must weigh in deciding whether to adopt a consumption tax reform approach and which approach to choose.

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Martin A. Sullivan

This Article—a response to Harry L. Gutman’s The Saga of Unfulfilled Business Income Tax Reform—argues that three questions must be answered for the value-added tax (VAT) to garner public support from Congress. The Article answers these questions and ultimately concludes that, as Congress searches through tax reform options it has thus far chosen to ignore, it will eventually realize that Gutman’s or a similar plan is the logical choice.

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Paul Oosterhuis

This Article—a response to Harry L. Gutman’s The Saga of Unfulfilled Business Income Tax Reform—argues that enacting a VAT lies beyond the tax reform that will likely happen in 2017 or 2018. It urges policymakers like Gutman to seriously consider the consumption tax alternatives that they currently reject, including variants of the House Republicans’ A Better Way proposal, that could be second-best solutions.