Domestic Violence Victims: A Nuisance to Cities

Article by: Filomena Gehart

43 PEPP. L. REV. 1101 (2016)

Unless municipal nuisance ordinances change, domestic violence victims can face eviction just for calling the police.  Nuisance ordinances generally impose fines on a property owner or landlord when the police are called to respond to incidents of crime a certain number of times at the same residence.  Many nuisance ordinances also revoke a landlord’s rental license if a property is deemed a nuisance.   However, many of these nuisance ordinances do not have an exception for incidents of domestic violence and, consequently, victims are scared to call 911 or request police assistance.  This comment surveys the development of nuisance laws and ordinances, analyzes constitutional and statutory challenges to ordinances without domestic violence exceptions, and focuses on the positive social implications of adding such exceptions.

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Clarifying the Business Trust in Bankruptcy: A Proposed Restatement Test

Article by: Jared W. Speier

43 PEPP. L. REV. 1065 (2016)

When bankruptcy courts attempt to define the business trust, the “decisions are sharply, and perhaps hopelessly, divided.”  The Bankruptcy Code, which guides the determinations of bankruptcy courts, specifically lists business trusts as eligible for protection.  However, the Code does not define what a business trust is and does not list any criteria for determining when a trust is a business trust.  The lack of a concrete definition has led many courts to formulate their own definitions of business trusts.  While the courts hoped that they would eventually settle on a uniform test to tackle this issue, it has yet to occur.  Presently, courts apply varying tests, some of which propose twenty-four individual factors to consider while others adopt tax and state laws.  This confusion regarding the appropriate test leads to uncertainty on behalf of debtors, who are unsure if they will be eligible for bankruptcy protection.  This Comment proposes a restatement test that incorporates the history of the business trust as well as courts’ various previous approaches.

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Use of Facial Recognition Software for Medical Purposes: Balancing Privacy with Innovation

Article by: Seema Mohapatra

43 PEPP. L. REV. 1017 (2016)

Imagine applying for a job, and as part of your application process, your prospective employer asks for a photograph. You, as an eager candidate, comply with the request and, unbeknownst to you, the employer runs your picture through a software program that scans you for any common genetic diseases and that estimates your longevity. Alas, your face indicates that you may die young. No job for you. Although this sounds like science fiction, we may not be that far off from this scenario. In June 2014, scientists from Oxford reported that they have developed a facial recognition program that uses ordinary family photos to help diagnose rare genetic conditions.

This article discusses the heightened need for privacy when dealing with genetic conditions, an individual’s right not to know about their genetic predispositions, and the current and proposed regulatory regimes for facial recognition technology.  It also considers whether health-related legislation, such as the Health Insurance Portability and Accountability Act of 1996 (HIPPA), the Genetic Information Nondiscrimination Act (GINA), the Food, Drug, and Cosmetic Act (FDCA), or the American with Disabilities Act (ADA), provides adequate privacy protection from software that uses facial recognition to screen for diseases or health and concludes that they do not.

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Emulsified Property

Article by: Jessica A. Shoemaker

43 PEPP. L. REV. 945 (2016)

The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The general jurisdictional framework provides that federal and sometimes tribal law sets the rights and responsibilities of trust owners, while fee owners are subject to a peculiar mix of state and tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This Article, however, reveals an even more complicated issue that has thus far not been fully identified in the literature. This Article analyzes for the first time how the modern reservation is not merely a checkerboard of fee and trust parcels situated next to each other. Rather, significant numbers of reservation lands are now jointly owned by co-owners who hold undivided interests in the same property in different tenure forms. Thus, many individual tracts of land now contain a mix of trust and fee co-ownership interests in the same physical resource.

These “emulsified” properties are made up of theoretically undivided co-ownership interests; however, the fee and trust co-owners have very different rights to the same property. There is neither a single overarching set of legal rules that applies equally to all interests in emulsified properties nor any single dispute resolution tribunal through which all co-owners can reliably negotiate a fair and efficient use of the resource. This Article explores for the first time how these emulsified properties are created and analyzes the unique obstacles they create for landowners and for reservation governance. While others have argued for a refocus on tribal property regimes in order to support tribal sovereignty more generally, this emulsified property problem tips the scales and makes more robust tribal property systems, with clear tribal authority to govern all interests in emulsified properties, a critical next step.

Do Lawyers Matter? The Effect of Legal Representation in Civil Disputes

Article by: Emily S. Taylor Poppe & Jeffrey J. Rachlinski

43 PEPP. L. REV. 881 (2016)

With declining law school enrollments, rising rates of pro se litigation, increasing competition from international lawyers and other professionals, and disparaging assessments from the Supreme Court, the legal profession is under increasing attack. Recent research suggesting that legal representation does not benefit clients has further fueled an existential anxiety in the profession.  Are lawyers needed and do they matter? In this Article, we review the existing empirical research on the effect of legal representation on civil dispute outcomes. Although the pattern of results has complexities, across a wide range of substantive areas of law (housing, governmental benefits, family law, employment law, small claims, tax, bankruptcy, and torts), professional legal representation is associated with better outcomes for litigants. Only in juvenile court (and perhaps in cases involving claims to government benefits) is the benefit of representation unclear.

Putting Public Law into “Private” Sport

Article by: Dionne L. Koller

43 PEPP. L. REV. 681 (2016)

Across all levels of sport—professional, Olympic, intercollegiate, interscholastic, and youth recreational—the prevailing view is that the government should not take an active role in regulating athletics. As a result, there are relatively few federal or state statutes directed at regulating sports, and those that are aimed at sports primarily serve to support the professional sports industry. Moreover, courts show great deference to sports leagues and administrators, most often applying law in a way that insulates and empowers them. This creates a climate where leagues and administrators are permitted wide latitude to structure and conduct their respective sports as they see fit, especially with regard to athlete regulation.

With this environment in mind, this Article examines what I define as the “legal and policy response to concussions in sports,” which includes state statutes, proposed federal legislation, “bully pulpit” initiatives such as a White House summit and Congressional hearings, and substantial tort litigation. This Article explains the ways that the legal and policy response to sports concussions is consistent with the current sports law landscape and it highlights how the legal and policy response to sports concussions charts the course for a new approach to law and sports. In doing so, this Article makes two main points. First, the legal and policy response to sports concussions provides a useful vehicle for considering the underlying values that affect law and policy related to sports. These values include minimal government involvement, playing despite injury, and the view that aspects of sport are essential or fundamental. Second, the legal and policy response to concussions in sports provides an important pathway for future sports regulation, particularly of youth and amateur sports programs.