by James Huffman

Abstract
____For over two centuries the United States Supreme Court has embraced a presumption of constitutionality that places the burden of proof on those challenging the constitutionality of governmental actions. Usually, the presumption is stated as a given, but when explained it is most often said to be founded in republicanism and due respect for the co-equal branches of government. Thus, the presumption constitutes a deference to the constitutional interpretations of the elected branches of government. This majoritarian view of the Constitution’s foundational principle is counter to the dominant view of the Constitution’s founders. They designed a government constituted of numerous constraints on the democratic excesses experienced during the period of the Articles of Confederation. Among those constitutional constraints is a Supreme Court with responsibility to safeguard liberty by assuring constitutional compliance by state governments and the other two branches of the national government.
____Because the presumption requires that the government show only a rational basis for its actions, the Supreme Court has abandoned its deference to executive and legislative interpretations of the Constitution when confronted with what a majority of the justices consider to be particularly important rights claims, first in First Amendment cases and later where other rights are found to be fundamental or particular groups of people are affected. While this selective abandonment of the presumption of constitutionality reflects an acknowledgement of the libertarian foundations of the Constitution, the presumption remains the default, resulting in variable scrutiny of constitutional claims depending on the rights asserted and the individuals asserting those rights. This levels of scrutiny-hierarchy of rights and peoples approach requires courts to independently assess the importance of government actions relative to individual rights claims, thereby intruding on the policymaking role of the legislative and executive branches while creating a hierarchy of rights and peoples. Because the Court has continued to presume the constitutionality of laws said to be adjusting the benefits and burdens of economic life, economic liberty claims are seldom successful. The overarching contention of this Article is that the Constitution allows for no hierarchy of rights or peoples and therefore requires a default presumption of unconstitutionality. The courts should strictly scrutinize every constitutional rights claim.

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by Gerald S. Dickinson

Abstract
      The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in a failure by scholars and jurists to articulate the historical origins of and theoretical rationales for federalization doctrine. Constitutional theory ought not only to produce doctrine, but to validate the application of existing doctrine—or interpretive practices—as well. This Article explores this constitutional lacuna by studying several historical developments of pre-Republic state courts, state constitutions, and state laws to trace the theoretical origins of federalization. Further, it sets forth a justificatory theory of federalization doctrine by arguing that the doctrine emanates from the founding generation’s practices of consulting and borrowing the pre-Republic states’ judicial opinions, constitutions, and statutes to draft and interpret the federal Constitution and its Bill of Rights. These practices of consultation and borrowing should be recognized as the theoretical antecedent for the practical application of the Supreme Court’s modern-day doctrine of federalization. The Article concludes by discussing Chief Justice John Roberts’ special application of the theory of federalization doctrine in the Court’s Moore v. Harper landmark ruling discarding of the independent state legislature doctrine.

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by George A. Nation III

Abstract
___ Standard hospital admissions contracts (“HACs”) often contain provisions that are shockingly unfair, but are easily overlooked or misunderstood by patients. Hospitals rely on the common law of contracts, especially the doctrine of freedom of contract, to claim that these provisions should be enforced. Many courts have accepted the freedom of contract argument and enforced some or all of these provisions. This Article suggests that courts are in error to enforce these harsh provisions against patients.
      This Article focuses on four harsh provisions commonly found in HACs. First is the payment provision which is opaque, misleading, and designed to allow hospitals to price gouge self-pay patients by charging an exorbitant price. Second is the pernicious pre-dispute binding arbitration clause, which provides that patients waive their constitutional right to sue in court when they have been the victim of medical negligence. Third is the independent contractor provision that requires patients to acknowledge that the doctors treating the patient are independent contractors and thus prevents the patient from suing the hospital in the event of medical professional negligence. The fourth is the overly broad assignment of benefits provision that requires patients to assign not just health insurance benefits, but all other insurance benefits that may cover the patient’s losses related to an accident, including medical expenses and the proceeds of any claim the patient may have against any person that caused the patient’s injuries. This provision allows hospitals to exploit patients who have been the victim of an accident by charging, even for insured patients, the hospital’s exorbitant list price for the care provided. Moreover, because the hospital uses this provision to take a grossly excessive fee, there is less money available to reimburse the patient for other losses resulting from the accident.
    The gross unfairness of these provisions, the latent dangers they create for patients, and standardized nature of HACs provide more than enough justification for courts to use existing common law doctrines to refuse enforcement of these harsh provisions. In particular, common law contract requirements of mutual assent and capacity to contract, as well as doctrines concerning contracts of adhesion and unconscionable contracts can and should be used to limit or eliminate the enforceability of these provisions.

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by Mireille Rebeiz

Abstract
___ In October 2022, Lebanon and Israel signed a Maritime Border Agreement brokered by the United States of America. Lebanon does not recognize Israeli statehood, and the two States have been at war since 1948. This Article seeks to examine the following legal question: Does the signing of the Maritime Border Agreement imply Lebanese recognition of Israeli statehood? In response, this Article begins with a brief examination of the history of the territorial and border disputes between Lebanon and Israel (discussed in Section I), then proceeds to analyze the definition of statehood and the two theories of statehood recognition. International law does not provide a precise definition of statehood and does not dictate a process for statehood recognition. As such, it is hard to interpret implicit ambiguous acts of statehood recognition (discussed in Section II). Despite this lacuna in international law, this Article argues that Lebanon’s Maritime Border Agreement with Israel implies statehood recognition.

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by Andrew W. Torrance & Bill Tomlinson

Abstract
____In this Essay, we analyze the arguments in favor of, and against, viewing the use of copyrighted works in training sets for AI as fair use. We call this form of fair use “fair training.” We identify both strong and spurious arguments on both sides of this debate. In addition, we attempt to take a broader perspective, weighing the societal costs (e.g., replacement of certain forms of human employment) and benefits (e.g., the possibility of novel AI-based approaches to global issues such as environmental disruption) of allowing AI to make easy use of copyrighted works as training sets to facilitate the development, improvement, adoption, and diffusion of AI. Finally, we suggest that the debate over AI and copyrighted works may be a tempest in a teapot when placed in the wider context of massive societal challenges such as poverty, inequality, climate change, and loss of biodiversity, to which AI may be part of the solution.

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by Raymond H. Brescia

Abstract
___ In The Paradox of Democracy: Free Speech, Open Media, and Perilous Persuasion, authors Zac Gershberg and Sean Illing argue that democracies contain the capacity for their own destruction because they promote open communication but such communication can be manipulated by authoritarian forces. They argue further that with contemporary communications technologies the descent into fascism is even more likely. The authors argue that in order to confront these threats, democratic nations must increase media literacy within the citizenry and strengthen local journalism. Given the grave nature of the threats the authors have exposed, these solutions do not appear up to the task of defending democracy. Indeed, a deeper analysis of The Paradox of Democracy suggests that it is not just the solutions, but the analysis itself, that leaves some stones unturned, glossed over, or completely ignored. Although the work is a useful complement to other works addressing the present threats to democracy, like some of those other works, it, too, fails to provide a complete picture of these threats or offer viable options for resisting them. When read together, however, a more complete picture of not just the threats, but also the tactics and strategies necessary to oppose them, comes into view.

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by Daniel Z. Epstein

Abstract
____William Novak’s New Democracy: The Creation of the Modern American State reveals how the current administrative state evolved to control economic activity through an incremental rejection of state-based common law and police powers in favor of centralized public regulation. This review identifies the business case for the administrative state and presents the first academic treatment of pro-regulation testimony from business interests during congressional consideration of the Interstate Commerce Act. In so doing, this review shows how the concept of industry is as much a legal concept as it is an economic one. This review argues that the nature of regulatory jurisdiction being tied to the concept of industry has implications for current regulatory entrepreneurship scholarship, which examines the ways regulation can be both a barrier as well as a subsidy to business. By explicating the legal significance of industrial jurisdiction, this review identifies the significance of industry and jurisdiction as typologies of interest in the study and adjudication of administrative law.

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by Natasha Rappazzo

Abstract
____After the Supreme Court eliminated the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, states began to broadly criminalize abortion. Abortion is criminalized and restricted even in situations that constitute an emergency medical condition under the Emergency Medical Treatment and Labor Act (“EMTALA”). State abortion bans with limited medical exceptions conflict with EMTALA’s protections for emergency screening and stabilization. Legal challenges to the scope of EMTALA show a growing divide and uncertainty on emergency abortion care in the United States. This Comment will discuss why physicians cannot confidently provide quality and competent abortion care without the statutory protections afforded within EMTALA. This Comment argues that the vague and medically inaccurate language in state abortion bans must be preempted by EMTALA. Ensuring physicians are obligated to follow EMTALA’s guidelines will lead to the best national public health and safety outcomes. It is within the federal government’s power and responsibility to ensure state restrictions on emergency abortion care do not interfere with national protections for emergency department screening and stabilization.

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by Joseph H. O’Donnell

Abstract
____Pennsylvania law provides several methods to protect or dispose of a criminal record. Methods to protect a criminal record from public view include expungement, limited access, clean slate limited access, and pardon. Expungement is a relatively limited right in Pennsylvania, but individuals do have a right to expungement upon receipt of a governor’s pardon. This right was created by case law. However, not every state follows this model. The recently enacted Clean Slate Limited Access Act created automated sealing for certain offenses, including cases where the Governor issued a pardon. This created a system of double protection for criminal records pardoned by the Governor. This Comment outlines the approach taken in Pennsylvania toward protecting or limiting criminal record information. It further discusses this approach in light of precedent and current statutory law. Finally, this Comment argues that, with the passage of the Clean Slate Act, automatic expungement after receiving a governor’s pardon is no longer the best approach. Instead, Pennsylvania courts should apply the same interest-balancing approach to petitions for expungement after a pardon that courts apply to all other petitions for expungement.

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by Samuel Roos

Abstract
____In the summer of 2022, the U.S. Supreme Court decided New York Rifle & Pistol Association v. Bruen, outlining a new test for the constitutionality of statutes regulating firearm possession. The result has been chaos. In less than a year, U.S.C. § 922(n) and § 922(g)(8), which criminalize possession by specific people involved in the criminal justice system, have been held unconstitutional. Challenges to other federal firearm regulations are flooding the courts.
      Notably, § 922(g)(1), which criminalizes possession of a firearm by any person with a felony in their criminal history, has been vigorously challenged. Few courts have yet agreed with these challengers, relying in large part on specific dicta from District of Columbia v. Heller to reject them. That dicta held out certain “longstanding prohibitions” on firearm possession from the scrutiny applied to other gun regulations. However, the dicta is uncited and Bruen did nothing to explain the authority justifying the holdouts. As firearm regulations continue to fall under Bruen’s scythe, questions around § 922(g)(1) will continue to swirl until the law is changed to something more certain. Already, the Third Circuit has held the statute unconstitutional as applied to one defendant, and the District Court for the Northern District of Illinois has held the statute facially unconstitutional.
      So how to fill the gap currently band-aided over by Heller’s dicta? Two primary schools of thought are considered herein. One says that the founding fathers desired to disarm “unvirtuous” people, and that all felons are rightly disarmed because they lack virtue, as evinced by their felonious past. The other says that the authors of our constitution believed in disarming “dangerous” people, and that statutes such as § 922(g)(1) should be construed by that standard. This Comment analyzes both potential standards and finds that the “dangerous” standard is better supported by history as well as being the more practical and logical choice.

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by Alissa Rubin Gomez

Abstract
____This Symposium asks us to contemplate women’s role in the judiciary. Female judges are vital to a well-functioning third branch of government given the long-documented link between diversity and judicial legitimacy. Beyond appearances, however, the Article explores the reasons why so many empirical studies have shown that judges do not decide cases differently on account of their gender. This Article describes how women must act like men to gain acceptance into the male-dominated judicial sphere and then are expected to apply precedent that has been overwhelmingly decided by men. In other words, the decisions of female (and feminist) judges are largely the same as those of their male counterparts because of systemic pressures on female judges to conform to the unstated male norm under the guise of neutrality and the rule of law. These observations are not new. But in the wake of Dobbs v. Jackson Women’s Health Organization—the case that erased the constitutional right to abortion with little concern for the appearance of judicial neutrality or stare decisis—this Article asks whether feminists should stop playing by the rules.

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by Shruti Rana 

Abstract
____Women’s advancement in the judiciary of the United States has been slow and uneven, and has long lagged behind other nations. Parity in representation remains distant, and the gains to date vulnerable to changes in administrations and fluctuating levels of state commitment to gender equality, with the recent global backlash to gender equality and international norms and institutions providing a critical example of this fragility. In this light, this Article argues that gender parity in the judiciary should not be viewed as merely a laudable goal. Rather, representation and parity should be viewed as fundamental state legal obligations under international law as well as critical mechanisms for achieving gender equality. This Article further situates the debates over gender equality and parity in the judiciary of the United States within the broader context of the global backlash to gender equality and global norms and institutions, shedding additional light on the ways that this backlash is playing out on American shores. 
____In doing so, it re-conceives the attacks on gender equality in the judiciary in the United States and globally as both a reaction to and indicator of the foundational significance and strength of the legal obligations to achieve gender parity in national and international judiciaries. It also explores the role and impact of women judges in strengthening global law and institutions, and the roles they can play achieving transformative change by analyzing the impact of the decisions and decisionmakers in a unique quasi-judicial forum involving the United Nations Commission on the Status of Women. Ultimately, in re-framing debates over representation and parity and grounding them in legal obligations, this Article aims to contribute to the literature and strategies for achieving meaningful representation in the judiciary and gender equality in the United States and globally.

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by Rachel Cahill-O’Callaghan & Pauline Roberts 

Abstract
____The UK has not achieved the judicial diversity of other common law jurisdictions. Whilst there is some success in the lower courts, few women judges have ever sat on the UK Supreme Court bench. It has long been argued that diversity enhances decision making, and the presence of women judges enhances the decision-making process. But this can only occur if women are appointed to the bench and supported to participate fully. Drawing on the theoretical framework developed by Sandra Fredman and the UK equality legislation, this Article explores how the structures and processes of the Supreme Court limit substantive equality on the bench. Analysis of the processes of appointments to the UK Supreme Court highlights the structural barriers to effective participation of women. Substantial procedural changes will be required if equality is ever to be achieved on the UK Supreme Court bench.

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by Victor C. Romero

Abstract
____The United States is in the midst of a political and cultural war around race and demography that goes to the heart of America’s self-definition as a nation of immigrants. Heeding Eric Yamamoto’s four-part prescription for interracial cooperation via the conceptual, the performative, the material, and the reflexive, this Essay draws from the author’s own experience as an Asian- American volunteer attempting to serve and lead a traditionally African-American civil rights organization in a predominantly white, rural town in Pennsylvania. Three lessons emerge from this experience. When volunteering, it is important to answer the call to serve even when in doubt; lead by serving and listening to others; and respect the coalition and trust the process.

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by Robert E. Rains

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by Cassidy Eckrote

Abstract
____The sexual exploitation of children is a growing problem in the United States. Fifty years ago, parents feared their child getting kidnapped or approached by a predator in the park. Parents today fear their child being preyed upon through the internet. As technology continues to advance, child predators satisfy their depraved desires without ever stepping foot near their victim.
____In response to the danger of the sexual exploitation of children, the federal government enacted the child enticement statute, codified at 18 U.S.C. § 2422(b). The statute criminalizes the enticement of a minor to engage in sexual activity. Because the federal code does not define “sexual activity” for purposes of § 2422(b), courts are left to decipher whether the predator must entice the minor to engage in physical contact. Three circuits have definitively spoken on this issue. The Seventh Circuit held that sexual activity requires physical contact. The Fourth and Eleventh Circuits have both held that physical contact is not required to implicate § 2422(b).
____This Comment demonstrates through methods of statutory interpretation, legislative history, and congressional intent that § 2422(b) does not require physical contact. This Comment proposes that the Supreme Court grant certiorari and hold that § 2422(b) does not require interpersonal physical contact.

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by Lauren Hand

Abstract
____Under the Fair Labor Standards Act (“FLSA”), individuals who qualify as employees are entitled to the federal minimum wage. Because the statute itself gives little guidance about who meets the FLSA definition of an employee, courts generally determine employee status by applying the economic reality test, which assesses the economic circumstances of the relationship and tends toward broad inclusivity. The Supreme Court, however, created a caveat in 1947 in Walling v. Portland Terminal, holding that trainees might be uniquely excluded from FLSA employee status and its attending benefits.
____The trainee exception, as it has since become known, has expanded in the last 76 years. In that time, the exception has been extrapolated to a growing cohort that scarcely existed at the time of Walling: interns. As the intern population has grown, so have the number of tests attempting to determine the employee status of interns under the FLSA. A few have gained traction, and one has risen to the top: the primary beneficiary test.
____This Comment reviews the trajectory of internships as engines of opportunity in the last several decades and the circuit split over the proper test for determining interns’ employee status. Ultimately, this Comment recommends that the Supreme Court take up the issue again and reject the primary beneficiary test. Instead, the Court should adopt a test backed by the tenets of Walling, the aspirations of the FLSA, and the realities of the modern-day intern economy: an objective, employer-focused cost-benefit approach.

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by Colleen Marron

Abstract
____Males may exhibit their bare chests on outdoor public property their entire lives. In many locations, this fundamental right to bodily autonomy afforded to men is denied to women. This Comment examines the Equal Protection Clause of the Fourteenth Amendment in conjunction with the fundamental right to bodily autonomy and focuses on the regulations forbidding female breast exposure. The assumption that female breasts require coverage due to their provocative nature normalizes and entrenches problematic issues, particularly the objectification of women, into law. The fundamental right to bodily autonomy requires protection over arbitrary and capricious social norms. This Comment stresses courts must establish the correct strict scrutiny standard of review to analyze female toplessness bans.

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by Anthony Moffa

Abstract
____A few years ago, before the onset of a global pandemic, I noticed that my preferred Portland, ME coffee shop—Tandem Coffee Roasters—implemented a new policy. Upon ordering a beverage, the barista asked if I brought my own mug. They informed me that, if had I not, I could purchase a paper, disposable vessel from the shop for twenty-five cents. Some might (understandably) ask, “Does coffee not come in a cup anymore?” The shop implemented what this paper dubs a “private environmental nudge,” a subset of policies that define private environmental governance (PEG)—the actions taken by nongovernmental entities to achieve traditional governmental ends regarding environmental protection. This subset of PEG, pioneered by small businesses, relies on insights from behavioral economics, particularly Richard Thaler and Cass Sunstein’s famous theory of “nudges.” In my coffee example, the economics for the business are identical to the more common nominal discount for bringing a reusable cup; the only difference is in choice architecture. This paper includes a brief empirical case study of this emblematic example. It fills two gaps in the PEG literature with respect to small businesses and behaviorally informed policies. It further provides a typology of private environmental nudges, describing four archetypes, which will inform and guide future studies.

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by Nino C. Monea

Abstract
____Contempt power has been with us for as long as we’ve had courts in this country. Through summary contempt proceedings, judges may imprison any person they deem insufficiently respectful to the authority of the court—with significantly less due process than a person would be entitled to under any other criminal offense. In theory, this is necessary to maintain order in the court. But in practice, summary contempt power is serially and seriously abused. Judges use incarceration to deal with piddling offenses or for no real reason at all. This Article argues that the concept of allowing judges nearly unbridled discretion to jail people for rudeness is outdated and should be reformed.

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by Lindsay I. McCarl

Abstract
____International and domestic laws and regulations, and in particular those addressing environmental protections related to the world’s oceans, have no clear application to unmanned maritime vehicles (UMVs). Instead, legal scholars have attempted to fit UMVs into current legal schemes in a piecemeal manner that UMVs practically and realistically cannot comply with. UMVs are inherently different than their manned counterparts and therefore require a unique legal framework separate and apart from manned vessels. Without its own legal scheme, the United States Navy and other organizations will not be able to realize the full potential of UMVs—not only for their military operational advantages but their significant environmental advantages as well. Thus, the United States should carefully construct a new legal regime for UMVs. By leading the way for the international community, the United States can effectively ensure proper legal recognition and widespread deployment of UMVs on both a domestic and international scale while also upholding strong environmental protection policies.

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by Mae Quinn

Abstract
____Evidence rules are written by and for adults. As a result, they largely lack the vantage point of youth and are rooted in arm’s-length assumptions about the lives and legal interests of young people. Moreover, because children have been mostly treated as evidentiary afterthoughts, they have been patched into the justice system and its procedures in a piecemeal fashion. Yet, to date, there has been no comprehensive scholarly critique of evidence principles and practices for failing to meaningfully account for youth. And the evidentiary intersection of youth and race has been almost entirely overlooked in legal scholarship. This Article, in part drawing from a range of contemporary examples including the Derek Chauvin trial, begins to provide such analysis. It suggests that evidence law and practice are not only steeped in gender and race bias but unduly adult-centric—and childist—in their orientation. Further, it recommends a more humanist reconception of court proceedings to account for all individuals as whole persons with strengths, weaknesses, vulnerabilities, and complexities in the here and now—regardless of their age or stage in life.

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by Michael L. Smith

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by Abigail Britton

Abstract
____Since the passage of the Fair Labor Standards Act (“FLSA”) in 1938, courts have grappled with how to interpret which activities an employee performs for their employer should be considered “work.” The FLSA requires employers pay a minimum wage, pay overtime, and keep records of their employees’ time. However, to calculate these wages based on hours worked, the employer must know what constitutes “work.” Over the 80 years since its enactment, federal courts have adopted rules to determine what counts as work. One doctrine courts apply is the de minimis doctrine.
____Under the de minimis doctrine, employers do not need to compensate their employees for insignificant and insubstantial amounts of time. Federal courts have determined that some small amounts of work are too trivial for the employer to be required to track. Over time, the de minimis doctrine not only prevented employee plaintiffs from prevailing in claims brought under the FLSA but also permeated state wage and hour laws. Individual states are allowed to establish and regulate their own wage and hour laws in addition to the FLSA. Some states have adopted the de minimis doctrine and applied it to their own labor code. Other states have explicitly rejected the de minimis doctrine as applied to their respective state wage and hour laws.
____This Comment explores the reasoning behind these states’ decisions and implores other states to consider following suit. The de minimis doctrine is inconsistent with the purpose of wage and hour laws and is no longer relevant due to current advances in technology. This Comment also explores the recent changes in the American workplace due to COVID-19 and how they demonstrate that the de minimis doctrine is no longer consistent with the current marketplace.

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by Lauren Stahl

Abstract
____Under the Fair Labor Standards Act (“FLSA”), employers risk receiving wage and hour violations if they fail to compensate employees for all “hours worked” or fail to adhere to minimum wage and overtime requirements. The de minimis doctrine provides an exception to this general rule and excuses employers from compensating employees for insignificant amounts of time spent on otherwise compensable off-the-clock work activities. Examples of de minimis off-the-clock work activities include waiting for a computer to load or waiting to log onto a computer network. These activities are considered de minimis because they take only a minute or less, and under the doctrine, employees cannot receive compensation for such trivial amounts of time under the FLSA. Employers must also comply with state wage orders and labor codes, which may provide higher protections than the FLSA. Because of the differences in worker protections, the de minimis doctrine’s application will differ from an off-theclock claim brought under the FLSA versus state wage and hour laws. In July 2021, Pennsylvania became the second state—after California—to refuse to apply the de minimis doctrine in state wage and hour claims. Pennsylvania should not eliminate the de minimis exception under state wage and hour law because (1) the doctrine has utility and roots in Pennsylvania law; (2) other jurisdictions have favorably cited to the doctrine in the realm of wage and employment disputes; and (3) the doctrine helps to create a barrier from unlimited disputes arising against employers.

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by Alexa Potts

Abstract
____Title IX is a federal law prohibiting sex-based discrimination in any education program or activity that receives federal funding. Congress initially passed Title IX out of concern for sex-based equality in academia. However, Title IX has had significant impacts on athletics, resulting in increased athletic opportunities for females.
____To be Title IX compliant, institutions must provide equality in athletic participation for both sexes. The Office of Civil Rights provided a three-part test to measure equality in athletic participation. Institutions must satisfy at least one of the three prongs to meet Title IX requirements as they pertain to equality in athletic participation. The first prong states that institutions are Title IX compliant when they provide collegiate athletic opportunities to male and female students in numbers substantially proportionate to their respective academic enrollments. The second prong states that institutions are compliant if they show a history and continuing practice of program expansion in response to the interests and abilities of women. The third prong states that institutions are compliant when they demonstrate that the present program effectively accommodates the interests and abilities of women.
____This Comment analyzes how institutions can use an NCAA rifle team to achieve Title IX compliance. Applying the three-part test, institutions can maintain a women’s rifle team to achieve Title IX compliance. However, rifle is the only coeducational sport in the NCAA. Creating female rifle teams is paradoxical: Institutions intentionally segregate the lone NCAA sport that allows both sexes to compete as equals. In this scenario, discrimination against men results from a federal law prohibiting sex-based discrimination. This Comment proposes a fourth prong to the three-part test for equality in athletic participation that would require institutions with coeducational teams to use such teams to achieve substantial proportionality, thereby minimizing gender discrimination as an unintended consequence of Title IX compliance.

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by Rosemary Queenan 

Abstract
____Assistive technology devices are crucial to the educational development of children who suffer from hearing loss. For some hearing-impaired children, access to hearing aids is vital to their ability to acquire language, develop speech, and socialize. Yet many hard of hearing children are unable to acquire hearing aids because most insurance policies do not cover them. Access to assistive technology devices for hard of hearing individuals has been the subject of long-standing controversy.
____The law recognizes the benefits of assistive technology devices and includes them within the scope of services school districts may be required to provide in order to ensure that children with disabilities have a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA). However, the Supreme Court’s FAPE standard requires only that school districts provide special education services that are “reasonably calculated to enable a child to make progress in light of the child’s circumstances.” As a result, school districts often deny requests for assistive technology, even if there is medical evidence that such services would benefit the child academically and socially, if the child is making “progress,” which is often measured by “passing grades and advancement from year to year.” This narrow interpretation of progress fails to account for the unique benefit evolving technology can have on the development of a child with a disability and the detrimental impact caused by an inability to acquire access. Additionally, children who are unable to acquire assistive technology from their school district are often left with no other options for financial support because government and private insurance funding for certain devices, such as hearing aids, is limited. Many scholars have noted the implications of the Supreme Court’s standard, including that it remains “unpredictable” and lacks clarity as to how to define “substantive appropriateness,” but the scholarship has not addressed the impact the standard has on children who do not have access to hearing aids. This Article analyzes the issues related to access to assistive technology by focusing on children with hearing loss as an illustration of the inequities caused by the limited scope of the law, the substantial cost of hearing aids, and the significant social and academic developmental cost to children who are unable to afford the technology they need. To address the legal and financial barriers to access, the FAPE standard should be interpreted to recognize the unique benefit of quickly evolving and much-needed assistive technology for children with hearing loss, and states should take steps to mandate government-based and private insurance coverage.

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by Matthew Adam Bruckner and Christopher J. Ryan, Jr.

Abstract
____This Article looks at consumer complaints about student loan lenders and servicers from the Consumer Financial Protection Bureau’s (CFPB’s) consumer complaint database. Using a novel dataset drawn from 30,678 complaints filed against 212 student loan companies, we analyze consumers’ subjective views about whether traditional or fintech student loan lenders and servicers provide a better customer experience. Overall, we find that consumers initiate far fewer complaints against fintech lenders than traditional lenders. But we find that fintech lenders are 28 times more likely than traditional lenders to receive complaints for making confusing or misleading advertisements. Our data also show that complaints against fintech lenders or servicers have not risen in parallel with greater loan volume by those firms. By comparison, traditional lenders and servicers have received rising numbers of complaints. We consider various reasons for this difference, including whether this means fintech student loan companies are providing a better consumer experience.

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by Matthew J. Ahn

Abstract
____The lodestar has been the dominant calculation method for fee-shifting awards for nearly 40 years. But the lodestar has numerous persistent issues: it leads to extra litigation and judicial effort, it results in highly variable fee awards, and it incentivizes plaintiffs’ attorneys to bill extravagantly and reject settlement. This Article argues that these issues with the lodestar, along with many others, result from a mismatch between the lodestar and the purpose of the underlying fee-shifting statutes, which is to encourage attorneys to bring suits that would not normally be economically viable. Encouraging attorneys to do so requires the fee awards to be predictable. This Article concludes that predictability is impossible within the lodestar, which allows an attorney to set the base calculation and asks a judge to use percentage cuts to arrive at a just result. This Article therefore proposes adopting a framework for fee awards that resembles the Federal Sentencing Guidelines, using an automatic calculation to set a fee range that the judge can work within or, in an unusual case, from which the judge can deviate upward or downward. This framework will address each of the lodestar’s persistent concerns and provide the predictability that will encourage the cases these fee-shifting statutes intend to encourage.

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by Danielle M. Shelton

Abstract
____The #MeToo movement has brought the voices of victims of sexual assault into the public’s eye and, in turn, into the legal system. As its name suggests, the movement’s strength lies in numbers—it is, after all, hard to ignore the collective voices of a group of considerable size and visibility. This Article argues that another group of victims—namely, victims who have mental disabilities—also are desperately in need of their own movement to raise public awareness and bring about reform. However, because of their cognitive and communication impairments, this group of victims is unlikely to effectuate reform itself. Instead, these victims rely on the criminal justice system to effectuate change on their behalf. Their needs are great: More vulnerable to crime, this group is victimized at a rate at least four times greater than the general population. Yet crimes against this group rarely are referred for prosecution, let alone successfully prosecuted. Instead, this group faces myriad barriers to participation throughout the criminal justice process, starting from the time at which they attempt to report a crime. Designed to meet the needs and capabilities of typically functioning victims, the system does little to meet the cognitive and communication needs of those with mental disabilities. This Article proposes that the criminal justice system take ownership of this problem by providing much-needed accommodations to victims with mental disabilities.

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by Zachary Stendig

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by Aranda Stathers

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by Oliver Krawczyk

Abstract
____The National Firearms Act of 1934 (NFA) is the strictest federal gun control law currently in effect. It criminalizes the mere possession and transfer of specifically enumerated categories of firearms deemed to be especially dangerous and unusual, such as machine guns and silencers. Commensurate with this viewpoint, the NFA imposes on violators harsh felony penalties, from lengthy prison sentences to six-figure fines. However, the NFA permits lawful civilian ownership of these firearms under a taxation and registration scheme administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
____In its 2008 District of Columbia v. Heller decision, the United States Supreme Court clarified what “arms” the Second Amendment protects—those that are “in common use” and those “typically possessed by law-abiding citizens for lawful purposes,” but not those that are “dangerous and unusual.” Under this formulation, NFA restrictions received an incidental presumption of constitutionality.
____That was then, this is now. In the intervening years since Heller, NFA firearms have exploded in popularity, amounting to millions of lawfully registered examples in civilian hands. As the NFA registry grows year after year, the federal government enjoys ever-increasing tax revenues. Consequently, registry expansion offers a lucrative and effective means of implementing gun control measures—ATF reclassification of existing non-NFA firearms and accessories as falling under the NFA can compel registrations or preclude ownership of controversial items altogether.
____This Comment argues that the NFA’s modern expansionary trend is on a collision course with the Heller mandate. After Heller, the only constitutional NFA registry is a small one, reserved for the truly dangerous and unusual. By focusing on modern developments in three NFA categories—short-barreled rifles, silencers, and machine guns—this Comment contends that some NFA prohibitions are already constitutionally unsound and absent judicial intervention, Congress should remove them from the NFA altogether.

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by Timothy Gernand

Abstract
____When Apple announced it would combat the growth of child sexual abuse material (CSAM) on its platform by scanning all its users’ devices without their consent, many of its loyal customers felt betrayed. With tech companies such as Google and Facebook arranging their business models around selling their customers’ personal information, Apple customers saw the company’s focus on privacy as a refreshing alternative. However, as Apple itself privately acknowledged, this emphasis on privacy had led to it becoming a haven for CSAM. Despite the reputational damage it would incur with its customers,  Apple resolved to confront CSAM on its platform in an unprecedented manner. Until Apple’s announcement, no major tech company had resolved to install a hashing algorithm directly onto its devices to search for CSAM.
____Apple’s move places itself in the middle of a legal firestorm with the protections of the Fourth Amendment squaring off against the public demand to eradicate CSAM and protect the nation’s children from abuse. In deciding CSAM cases, courts have often focused on the application of the private search doctrine. Tech companies implementing anti-CSAM hashing protocols have sometimes run afoul of this doctrine and other aspects of Fourth Amendment jurisprudence.
____This Comment argues that Apple’s move not only complies with the constitutional standards expressed by circuit courts but exceeds those standards. In addition, a strong public policy justification exists for Apple’s initiative. Congress has repeatedly expressed its intent to combat CSAM and protect children from sexual abuse, and by complying with this congressional intent, Apple aligns with public policy. Finally, this Comment recommends that the U.S. Supreme Court resolve the circuit split regarding Fourth Amendment-implicated CSAM cases by adopting a new rule.

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by Natalie Alexander

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by Tiffany R. Wright, Ciarra N. Carr, and Jade W.P. Gasek

Abstract
____Over the course of seven months in 1871, Congress did something extraordinary for the time: It listened to Black people. At hearings in Washington, D.C. and throughout the former Confederate states, Black women and men—who just six years earlier were enslaved and barred from testifying in Southern courts—appeared before Congress to tell their stories. The stories were heartbreaking. After experiencing the joy of Emancipation and the initial hope of Reconstruction, they had been subjected to unspeakable horror at the hands of white terrorists. They had been raped and sexually humiliated. Their children and spouses murdered. They had been savagely beaten and forced to seek refuge in swamps. The terrorists were often state actors or respected members of society who claimed to engage in savagery for self-defense and community protection. And state courts were unable or unwilling to prosecute the crimes.
____Congress listened and did something else extraordinary. For the first time in American history, Congress interposed federal courts between the states and their citizens as guardians of federal constitutional rights. Through the Ku Klux Klan Act of 1871, which includes what is now codified as 42 U.S.C. § 1983, Congress rejected the proposition that the federal government had no power to intercede when state officials violated the federal constitution. Section 1983 provides a federal remedy for constitutional violations committed by state actors. The text is plain: Any state actor who violates the federal constitutional or statutory rights of any U.S. citizen “shall be liable to the party injured in an action at law.” But the Supreme Court of the United States has refused to enforce the statute as written. The Court instead invented the doctrine of qualified immunity that shields state actors from liability under Section 1983 unless victims can identify prior precedent where a state actor violated federal rights in a nearly identical manner.
____With the U.S. Supreme Court’s blessing, federal courts have granted qualified immunity to state officials who violate federal rights in increasingly depraved and unreasonable ways. This Article demonstrates that the Supreme Court is permitting the very evil that Section 1983 was designed to end. This Article does so by reviewing the painful narratives of the courageous Black people who testified before Congress in 1871. The Ku Klux Klan Hearings were the United States’ closest attempt at truth and reconciliation in the aftermath of slavery and the terror that followed. The testimony is replete with examples of a particular form of violence—assaults committed by state actors that local governments were unable or unwilling to remedy—which Congress specifically sought to rectify through Section 1983. And it is this precise form of violence that the Supreme Court of the United States permits through its expansive application of qualified immunity.

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by Gary S. Gildin

Abstract
____Qualified immunity not only absolves public officials from accountability for the damages caused when they deprive a citizen of their constitutional rights; by virtue of companion doctrines shielding governmental entities from liability, conferral of immunity leaves the victim to bear the loss. Therefore, it is essential that the contours of immunity be carefully calibrated to align with its intended purposes.
____The United States Supreme Court has continuously expanded immunity to protect the exercise of discretion where, albeit acting in violation of constitutional norms, the official could have reasonably believed their conduct was constitutional. This Article exposes the implicit assumptions as to the operation of the brain that underpin the evolution of the Court’s immunity jurisprudence. It then explains how the Court’s suppositions are refuted by recent findings in the field of neuroscience and proposes reforms that would harmonize immunity with the true workings of the minds of government officials.

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by Maame Nyakoa Boateng

Abstract
____This Comment compares the major anti-money laundering (“AML”) laws in the United States and Iran. This Comment argues that even though the United States is advanced in its compliance approach, without a partnership with countries that are more vulnerable to money laundering attacks, its AML efforts could prove counter-productive because of the inter-connectedness of our world today. Accordingly, this Comment proposes a global partnership between countries with effective AML legislation and countries with less effective AML legislation to combat this complex crime.

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by Alec Johnson

Abstract
____The theft of Native American cultural items has been ongoing since Europeans began to colonize the Americas. As a result, millions of Native American artifacts are now located outside the borders of the United States. Native American tribes have long sought international repatriation—the return of these cultural objects to their tribal owners. Unfortunately, many countries have been unsupportive of repatriation attempts and Native Americans seeking the return of their cultural items face nearly insurmountable barriers in foreign courts. The U.S. government has a moral imperative to assist Native American tribes in these repatriation efforts.
____The debate over repatriation is defined by two competing philosophies: cultural nationalism and cultural internationalism. Cultural nationalism views cultural property as having a national characteristic and favors repatriation. Cultural internationalism is wary of repatriation, and views cultural property as part of a common human culture, regardless of the country of origin. Over the past 40 years, the tide has turned away from cultural internationalism, and various mechanisms for repatriation have been implemented. These mechanisms include international treaties, potential domestic legislation, and mutually beneficial repatriation agreements (“MBRAs”).
____While these mechanisms have strengths and weaknesses, this Comment argues that MBRAs are the best available mechanism to facilitate repatriation of Native American cultural items. This Comment further advocates for the U.S. government to assist Native American tribes in negotiating MBRAs with foreign nations and institutions in possession of Native American cultural items.

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by Andrea Prisco

Abstract
____Dramatic changes in the agricultural industry over the last century have led to the rise of concentrated animal feeding operations– industrial facilities that raise a large number of animals in confined spaces. Animals raised in these facilities suffer from poor quality of life and abuse. For humans, these facilities have had adverse effects on the environment and public health, but they are also associated with high productivity and low food costs. This Comment analyzes the effects of concentrated animal feeding operations on animal well-being, the environment, and public health.
____This Comment also analyzes current federal legislation that helps combat the negative effects of concentrated animal feeding operations. It recommends more comprehensive federal legislation to recognize that the negative effects of concentrated animal feeding operations are interrelated and to protect animals from abuse.

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by Sharon Bassan

Abstract
____Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance.
____Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who tested positive for COVID-19. DTAs collect the most sensitive types of information, such as health-related and location or proximity information, which violates the right to privacy and the right to be free of surveillance. This sensitive information is normally legally protected. But in emergencies there are no legal restrictions limiting the collection of such data. The common privacy-law approach supports DTA implementation under the condition that the technology preserves the privacy of users. But this Article suggests that the privacy approach focuses on micro considerations and under-addresses the implications of DTA-based policy.
____Instead, this Article suggests rethinking DTA implementation during COVID-19 through the doctrine of proportionality. Often used by European Union courts in areas where decisions entail meaningful implications to individual rights, the doctrine offers a clear and workable normative evaluation of tradeoffs in a more nuanced, explicable, and transparent way. Highlighting macro considerations, the doctrine of proportionality suggests that 1) DTA-based policy is less proportionate compared to traditional contact-tracing methods; 2) policies created while relying on smartphones are inequitable and biased; and 3) the sharing of sensitive personal information with private companies will have irreversible social surveillance implications. Additionally, the proportionality method not only provides a flexible methodological tool to evaluate government decisions in times of emergency but also offers an opportunity to examine how governments achieve and justify the acceptance and assimilation of new technological policy measures, which may take societies in new directions.
____Part I establishes the framework of governance during COVID-19, the use of emergency powers, and the conflict between the public interest and individual rights. Part II explores the value of using the doctrine of proportionality as a method for policymaking during emergencies. Part III applies the doctrine of proportionality to the case study of DTA-based policy, exploring the parameters of its suitability, necessity, and proportionality stricto sensu. Proportionality stricto sensu assesses the desirability and relative proportionality of three policies that have been used to promote the public interest in different ways: a general shelter- at-home policy, a traditional-contact-tracing policy, and a DTA-based policy. Part IV discusses the policy implications of using a DTA-based policy.

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by William A. Drennan

Abstract
____During the Middle Ages, the wealthy often requested burial in mass graves with their fellow mortals, as a sign of humility. But since the rise of the cult of the individual during the Renaissance, individual burial plots have been an expression of prestige, wealth, and social status for some. For example, Leona Helmsley, real estate baroness and “Queen of Mean,” dedicated $3 million upon her death for the care and maintenance of her 1300 square foot, $1.4 million mausoleum. Respectful disposition of the body is a hallmark of civilization and a common law requirement of estate administration, but an extravagant burial is a personal choice which can impose significant costs on future generations.
____A tax deduction for discretionary spending is a government subsidy which shifts part of that cost to other taxpayers. The current federal estate tax deduction for funeral expenses, combined with accommodating laws for administering decedents’ estates, allow the rich to shift 40 percent of the entire cost of big-money burials to other taxpayers. These deductible big-money burials can monopolize substantial, valuable real estate and significantly contribute to environmental pollution. An analysis of current case law reveals that estate and trust law doctrines generally fail to recognize the potential dual character of burial expenses and fail to curb excesses.
____This Article asserts that funeral expenses, including burial and related costs, can have a dual character. On the one hand, to the extent of the reasonable cost of a respectful burial, a federal estate tax deduction is appropriate because a decent disposition is mandated by law and social norms—those expenses are not voluntary. In contrast, this Article asserts that excessive funeral and burial expenses are a voluntary transfer of personal wealth at death, and those expenses should not be deductible. Other taxpayers should not have to subsidize land-hoarding, environmentally-damaging burials of the wealthy.

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by Cecilia A. Silver

Abstract
____Law school pedagogy is a relic. Nearly 150 years after Christopher Langdell pioneered the case method, the typical doctrinal course remains predominantly a verbal domain, featuring lectures, Socratic dialogue, and final exams. But the visual disconnect between legal education and legal practice does students a disservice. Under the proliferating influence of laptops, iPads, smartphones, and Zoom, students now read, work, and study electronically more than they ever have before. So instead of business as usual, it’s time to embrace “visualization”—using multimedia to enhance, or even supplant, the near-exclusive reliance on language—to build a more vibrant and inclusive learning environment.
____Law schools should emulate museums. Having long understood the need to appeal to a diverse audience to convey an educational message, museums are old hands at leveraging the power of multimedia to teach visitors in an enjoyable, entertaining, equitable way.
____This Article calls for professors to take cues from museums to curate students’ classroom experiences. By integrating five high-impact, low-friction strategies borrowed from the museum world, we can upgrade our classroom presentations and remove the barriers to entry long associated with hidebound, text-based law.

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by Anna-Marie Tabor

Abstract
____American workers have left billions of dollars in 401(k) accounts that they may never be able to find. The problem affects low-wage workers the most, aggravating income-based retirement inequality. Workers who are laid off or change jobs often leave their 401(k) savings in a former employer’s plan. As time passes, communication breaks down between departed employees and their plans, and changes to the employer, plan provider, or individual accounts may prevent the worker from finding the account. Once participants and plans have lost contact with each other, many plans force transfer balances under $5000 into Individual Retirement Accounts, without the knowledge of the absent account owners.
____Whether a retirement product can endure for the years necessary to provide retirement support—what this article calls the product’s “durability”—depends upon (1) whether the product retains its value and (2) whether the owner will, as a practical matter, retain access to that value over time. This Article argues that there is an urgent need to enhance the practical durability of 401(k) accounts, and advocates for the consolidation of plan and individual account information into an accessible Retirement Savings Lost & Found database. A database that utilizes and leverages information already existing across government agencies will empower workers and retirees to locate their lost accounts, building a stronger and more equitable retirement system for the future.

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by Amy C. Gaudion

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by Peter G. Glenn

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by Robert E. Rains

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by Claudia J. Bernstein

Abstract
____Administrative agencies frequently promulgate rules that have dramatic effects on peoples’ lives. Deferred Action for Childhood Arrivals (“DACA”) is one such example. DACA grants certain unlawful immigrants a temporary reprieve from deportation, as well as ancillary benefits such as work permits. In 2017, the Department of Homeland Security (“DHS”) sought to rescind DACA on the basis that the program violates the Immigration and Nationality Act.
____This Comment analyzes the recent Supreme Court decision about DACA’s rescission in Department of Homeland Security v. Regents of University of California. In rejecting DHS’s attempt to rescind DACA, the Court strengthened agency accountability in several important ways. The Court reaffirmed that the Administrative Procedure Act’s (“APA”) discretion exemption is extremely narrow. It also arguably created a way for courts to fault agencies for failing to consider nonreviewable discretionary policies. Additionally, the Court strengthened the post hoc justification doctrine.
____This Comment also argues that Regents foreclosed agencies from relying on statutory abnegation—that is, disclaiming legal authority previously claimed—to rescind a policy. This deregulatory strategy is problematic because agencies that use it often attempt to circumvent traditional administrative law procedures. By repudiating statutory abnegation, the Supreme Court took another step to ensure that agencies remain accountable to the people whom their policies affect.
____More broadly, the Court’s decision in Regents is part of a line of recent administrative law cases in which the Court has increased agency accountability. In several of these cases, the Court found that the APA’s discretion exemption does not apply to an agency action, even where the agency had good cause to believe it should. The Court also recently took steps to curtail the Auer deference doctrine. Read together, these cases establish that agencies must “turn square corners” when promulgating policies, or else risk being reversed in court.

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by Eric Kocsis

Abstract
____For nearly as long as there have been photographs and videos, people have been editing and manipulating them to make them appear to be something they are not. Usually edited or manipulated photographs are relatively easy to detect, but those days are numbered. Technology has no morality; as it advances, so do the ways it can be misused. The lack of morality is no clearer than with deepfake technology.
____People create deepfakes by inputting data sets, most often pictures or videos into a computer. A series of neural networks attempt to mimic the original data set until they are nearly indistinguishable. The result is an ability to create pictures and videos entirely from data points.
____There are many positive uses for deepfakes, such as in education, entertainment, and business, but the potential for misuse is high. People can create pornographic images of others and make it appear as if they are performing sexual acts on video that they had not. Deepfakes such as these often target women and celebrities. People also use deepfakes to target politicians, which has deeper implications for democracy and the electoral process.
____Unfortunately, the legal system is currently unequipped to handle the problems that deepfakes are causing. In response, many lawmakers and policy experts are calling for legislation to protect people from these dangers. These proposals range from technological preventative measures to legal remedies. Many people are calling for criminal liability for those engaging in malicious deepfake activities, but there has been reluctance towards enacting a civil remedy. Malicious deepfakes overwhelmingly are nonconsensual porn that target women. Currently the law in most jurisdictions offers little to no legal recourse for those who are targeted. Therefore, it is necessary that the federal government include a private right of action in any proposed deepfake legislation.

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By Robert McAvoy

Abstract
____Employees have been frustrated by the restrictiveness of noncompete agreements and confused about their enforceability for decades. The added complication of choice-of-law provisions in employment contracts with noncompetes creates a sea of unpredictability for both employees and employers.
____Each state applies its own policy to noncompete agreements. While every state treats noncompetes differently than typical contract provisions, a broad spectrum exists between the states that are friendly and those that are hostile to the enforcement of noncompetes. Employees and employers often fail to understand whether their noncompete is enforceable under the jurisdiction chosen by the contract, and courts override choice-of-law provisions in connection with noncompetes in an unpredictable manner.
____This lack of clarity has caused employers and employees to disregard state law, with noncompete agreements occurring at a steady amount in all states, regardless of a state’s relative stance on them. A federal policy on noncompetes would alleviate this uncertainty for both parties, protect employees from unfair or unenforceable noncompetes, and maintain employers’ legitimate business interests in a reasonable noncompete.
____This Comment will examine the prospects of both federal legislation and a Federal Trade Commission (FTC) rule. Federal legislation is the most effective means to address the aforementioned issues and preempt state noncompete law. In the alternative, an FTC rule, although possible with a motivated FTC, faces a number of challenges for both rulemaking and preemption of state laws.
____Although the FTC likely has the authority to create a beneficial noncompete rule and preempt state law, Congress should be the entity to regulate noncompetes because federal legislation is more likely than an FTC rule to survive legal challenges.

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by Steven J. Mulroy

Abstract
____The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not share interests with the voters who supported them; and that only state legislatures, and not Electoral College nominees, had standing to sue under the Electors Clause (a relatively untested area). Moreover, many courts confused standing doctrine with the merits. All this threatens to create dangerous precedent which would improperly prevent full consideration of the merits of future meritorious voting rights and election suits.
____Getting standing right is particularly important in election cases. Election challenges like these will recur regularly. Because elections ensure democratic health, and because the political process is often not incentivized to fix electoral problems, judicial intervention is particularly necessary. In addition, election cases raise unique standing challenges, because the asserted harms are often diffused. And they present timing problems: sue too far in advance, and courts will reject the alleged harms as speculative; sue later, and courts may decline relief under the Supreme Court’s “Purcell doctrine” cautioning against disrupting electoral rules on the eve of an election. This Article synthesizes the lessons to be derived from the 2020 election cases regarding election case standing, critiques where the courts’ analysis seems incorrect, and proposes general standing rules for voters, candidates, campaigns, Electors, and elected officials.

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by Evelyn Mary Aswad

Abstract
____One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on a fundamental misunderstanding about the scope of freedom of expression protections under U.N. standards.
____This Article addresses that pervasive misunderstanding by engaging in a detailed comparison of key doctrines underlying both bodies of law. The Article provides the first in-depth comparison of U.S. and U.N. standards on freedom of expression since the U.N. human rights machinery adopted pivotal interpretations of this human right a decade ago. The Article finds that both standards provide a principled and disciplined approach to speech restrictions by creating a presumption in favor of speech, prohibiting unduly vague and overbroad speech restrictions, mandating that only narrowly tailored burdens on speech be authorized, and requiring that any restrictions serve important public interest objectives.
____While this Article does not argue that the two bodies of law completely converge, it does maintain that the key doctrines they share should inform—and perhaps transform—the ongoing debate about what standards social media companies should use in curating content on their platforms. U.N. standards are more protective of speech than is generally understood to be the case and provide a framework that can be translated to the context of private sector content moderation.

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by Melissa L. Breger

Abstract
____Despite decades of attempts to eradicate the industry, child sex trafficking continues to flourish. Arguably, there is debate about whether adults willingly choose sex work, yet there are no arguments supporting the notion that children make any such choice. When children are bought and sold for sexual purposes, it is child sex trafficking.
____Academic legal research has focused comprehensively on the identification of child victims and the prosecution of child traffickers, yet there has not been as salient a focus on reducing the market of buyers of trafficked children. It is the reduction of demand where theories of re-norming and social norms could be applied to the issue of child sex trafficking. By vitiating the notion that buying children for sex is in any way acceptable, the demand for child trafficking will diminish.
____The Nordic model has had moderate success in stemming sex buyer demand, and I borrow from it to propose further minimizing the demand for children. The Nordic model sets forth an approach by which the buyers of sex are specifically penalized, while those who are themselves purchased are not punished.
____This Article is the next segment in a more comprehensive series about applying social norms theories to decrease negative behavior. Other segments have explored decreasing intimate partner violence, reforming a toxic sports culture, minimizing a rape culture, and discouraging corporal punishment against children. This Article will specifically analyze social norms as they apply to child sex trafficking.

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by Nancy M. Modesitt

Abstract
____Under the Trump Administration, the Occupational Safety and Health Administration (“OSHA”), failed to protect workers from COVID-19, which has led to deadly workplace outbreaks of the virus. OSHA’s failures began when it refused to produce legally-binding rules, known as emergency temporary standards, that would mandate the most basic step of requiring masks in the workplace to protect workers from the risks of infection on the job. In addition, while OSHA did produce non-binding guidance for employers, that guidance was unclear and fundamentally deficient in failing to require masks in all workplaces and failing to require recordkeeping that would identify potential outbreaks in workplaces in their early stages. OSHA also refused to use its enforcement authority in a way that would encourage employers to use risk-mitigation strategies in the workplace. Rather than increasing inspections to send a signal that employers need to protect workers from COVID-19, OSHA conducted fewer inspections during the pandemic than it had in previous years. Essentially, OSHA has provided a playbook of what not to do in a pandemic. This Article exposes the details of OSHA’s failed response to COVID-19, outlines actions that would be effective in protecting workers during a pandemic, and recommends structural, legislative changes that would enable OSHA to better respond to pandemics in the future.

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by Katherine C. Pearson

Abstract
____In her world of research on elder care, Dickinson Law Professor Katherine C. Person has a growing concern about concentration of power in the related markets of housing, long-term care, and health care for seniors. The trend impacts price, quality, choice, and access to care for struggling U.S. families and therefore she chose to review an important new book, Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age, in which Senator Amy Klobuchar advocates for a new age of “pro-competition” policies.

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by Megan Riesmeyer

Abstract
____The last few years have led the United States to a national recognition of race and racism that has not been seen in this country for nearly 50 years. Law schools, as part of higher educational institutions around the country, are recognizing not only their potential contribution to the racist society in which we live, but, importantly, the role they can play in addressing and overcoming such racism and its effects. The Color of Law, A Forgotten History of How Our Government Segregated America provides an important framework for understanding and action to become problem-solvers and teach problem-solving.

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by Claire Murtha

Abstract
____Child abuse is a pervasive problem in the United States. Often, the abused child’s word is the only evidence to prove the abuse in court. For this reason, the child’s testimony is critical. Testifying can pose a challenge for the abused child who must face her abuser in the courtroom, especially if that abuser personally questions her.
____The United States Supreme Court has recognized the legitimate and strong interest the state has in protecting the psychological and physical well-being of children. When a child will face significant trauma and cannot reasonably communicate in the courtroom, the child can be questioned outside the presence of the defendant through alternative contemporaneous methods such as closed-circuit television (“CCTV”). Using closed-circuit television implicates the right to confrontation, which guarantees the opportunity for a defendant to confront his accuser. Despite this guarantee, the court may limit the face-to-face exposure for the child’s protection when the child would face a significant level of trauma. Many states have codified the use of closed-circuit television in CCTV statutes. A court may also sua-sponte impose limits on a self-represented defendant’s ability to personally question child witnesses. Such limits instead require standby counsel to conduct the questioning, which courts have held does not violate the right to self-representation.
____This Comment explores the permissible limitations of the right to confrontation and self-representation. Particularly, it looks at the Pennsylvania Supreme Court decision Commonwealth v. Tighe and argues the court misclassified the above-mentioned rights. Based on the Fourth Circuit decision in Fields v. Murray, the Pennsylvania Supreme Court should have classified these rights as distinct which would require different levels of necessity to limit. This Comment ultimately proposes a prohibition against personal cross-examination by pro se defendants and the passing of a pro se provision to the CCTV statute.

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by Megan Rulli

Abstract
____The consumption of oil pervades everyday life in America. The network of pipelines transporting oil from field to consumer is largely invisible. Until a major news event bursts pipelines onto headlines, this indispensable and invisible system fuels the country without fanfare. At the same time, concern over global climate change has made new large-scale projects for fossil fuel extraction and consumption highly controversial. The Keystone XL (“KXL”) pipeline was originally designed to transport crude oil extracted from oil sands in Canada to the Gulf of Mexico for international export. After more than a decade of false starts, the project currently sits dormant.
____This Comment uses the battle over the KXL to illustrate the federal framework of interstate oil pipeline regulation in the United States. It examines the preliminary regulatory hoops required for construction and the energy policies gatekeeping key permits. At the heart of the KXL controversy is the United States Army Corps of Engineers’ (“Corps”) permitting program under Section 404 of the Clean Water Act. This Comment critically examines whether the regulatory path of the KXL was appropriate. The KXL sought to fast-track construction by using the Corps’ Nationwide Permit 12, but legal challenges to that permit halted the KXL’s construction.
____This Comment ultimately recommends that the Corps and the fossil fuel industry stop relying on Nationwide Permit 12 for large-scale pipeline projects. Pipelines longer than 250 miles should instead be individually permitted. Individual permitting would trigger review under the National Environmental Policy Act (“NEPA”), the bedrock environmental law that examines direct and indirect environmental impacts of major federal actions. Comprehensive NEPA review would promote transparency through public input and give the federal government an important foothold in combatting climate change.

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by Miranda Sasinovic

Abstract
____As part of their traditional state police powers, states determine the eligibility requirements for their driver’s licenses. Standard eligibility requirements include proof of age, residency, identity, and knowledge. In the 1990s, some states amended their vehicle codes to require proof of lawful status, effectively barring undocumented immigrants from obtaining driver’s licenses.
____In response to inconsistent issuance and verification standards, Congress passed the REAL ID Act of 2005. The Act prohibits federal agencies from accepting state driver’s licenses for official purposes unless states comply with minimum issuance and verification standards. These standards include requirements to verify Social Security numbers and lawful status. However, the REAL ID Act also allows states to continue issuing non-compliant driver’s licenses if those licenses have a design that distinguishes them from compliant ones.
____Currently, Pennsylvania requires an applicant to provide her Social Security number and proof of lawful status to obtain a driver’s license. This Comment recommends that Pennsylvania should amend its vehicle code to offer alternatives to its Social Security number and lawful status requirements. Doing so would allow undocumented immigrants to apply for driver’s licenses, leading to benefits in public safety, community relationships, and increases in the Commonwealth’s revenue.

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by Mitch Snyder

Abstract
____Cyberattacks against U.S. targets are becoming increasingly common. To effectively combat these attacks, law enforcement officers need the tools to respond to and prevent cyberattacks before they can occur.
In recent years, hackers have launched cyberattacks against infrastructural targets such as power grids, oil and gas distribution computer systems, and telecommunications networks. Cyberattacks have also targeted U.S. government websites, including the U.S. Department of Transportation and the U.S. Department of Treasury. Recently, a cyberattack against SolarWinds, a Texas-based I.T. company, compromised the computer and network systems of federal, state, and local governments; critical infrastructure entities; and other private sector organizations.
____To put law enforcement in the most effective position to combat acts of cyberterrorism, courts should adopt a broad approach when applying the Public Safety Exception to Miranda. This approach gives law enforcement the necessary tools to successfully respond to and prevent acts of Cyberterrorism while respecting the principles at the heart of the Public Safety Exception.
____This Comment outlines the existing Public Safety Exception precedent, discusses its application to traditional acts of terrorism, and advocates for the adoption of a broad approach when applying the Public Safety Exception to acts of cyberterrorism.

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