Catholic University Law Review
[SJR: 0.177] [H-I: 6] [2 followers] Follow
Open Access journal
ISSN (Print) 0008-8390
Published by Catholic University of America [2 journals]
- How Many #Followers Do You Have?: Evaluating the Rise of Social Media and
Issues Concerning In Re CTLI’s Determination that Social Media Accounts
are Property of the Estate
Authors: Patricia A. Leeson
Abstract: With the rise of social media use, legal disputes have surfaced with litigants looking to the courts to determine issues of ownership and legal authority. As a matter of first impression, a U.S. Bankruptcy Court in Texas held that a Twitter and Facebook social media account were to be regarded as property of the estate pursuant to Section 541 of the Bankruptcy Code. The court analogized the social media accounts to subscriber lists because they provide valuable access to customers. Although the court addressed the question of whether social media applications are to be regarded as property in bankruptcy proceedings, it did not address the issue of whether additional legal protection should be afforded to social media and the data it generates. This lack of guidance is particularly problematic because courts will likely struggle with the implication of assigning legal rights to social media accounts that are now to be regarded as property interests.This Note reviews a recent case decided by a U.S. Bankruptcy Court in Texas, In re CTLI, in which the court recognized a Twitter and Facebook social media account as property of a bankruptcy estate. Furthermore, this Note examines the court’s classification of social media accounts as customer lists and explores the possible application of existing legal principles involving trade secrets to social media accounts by reviewing how courts have classified customer lists as trade secrets. After considering the legal impact social media could have on trade secret law, this Note identifies three legal issues that courts now face now that social media accounts are property interests: ownership, consumer privacy, and trade secret protection.
PubDate: Thu, 23 Mar 2017 18:27:54 PDT
- Developing Exposure-based Preconception Tort Liability: A Scientific
Challenge to Traditional Tort Concepts
Authors: Nicholas P. Putz
Abstract: With all of the recent advances in science and technology, humans are being exposed to many new and complex substances for the first time. Such exposure has led to an array of medical complications, ranging from cancer to physical deformity. However, simultaneous advances in other areas of science and technology are, for the first time, beginning to provide humans with the tools to pinpoint the causes of disease. Unfortunately, a sufficient causal diagnosis in the medical field does not directly translate to an actionable harm in the U.S. legal system. In particular, injuries that may have resulted from prior generational exposure or injury are especially problematic. Legal recovery for these injuries often runs directly into doctrinal tort concepts that have been cemented in the U.S. legal system for centuries. Through the lens of preconception tort liability, this Comment attempts to reconcile archaic legal concepts with burgeoning medical and technological advances and contends that a coexistence between the two is possible.The Comment begins with an analysis of seminal preconception tort cases, and in particular, focuses on common roadblocks facing plaintiffs. Next, the Comment identifies medical and scientific advances that may prove useful in addressing these very shortcomings. Drawing on a variety of scientific, medical, and legal sources, the author seeks to provide a workable formula by which courts can begin to recognize tort actions spanning across generations, without having to sacrifice a commitment to hardened legal concepts like foreseeability and causation.
PubDate: Thu, 23 Mar 2017 18:27:49 PDT
- The Private Search Doctrine and the Evolution of Fourth Amendment
Authors: Adam A. Bereston
Abstract: The advent of new technology has presented courts with unique challenges when analyzing searches and seizures under the Fourth Amendment. Out of necessity, the application of the Fourth Amendment has evolved to address privacy issues stemming from modern technology that could not have been anticipated by the Amendment’s drafters. As part of this evolution, the Supreme Court devised the “private search” doctrine, which upholds the constitutionality of warrantless police searches of items that were previously searched by a private party, so long as the police search does not exceed the scope of the private-party search. However, courts have struggled to uniformly apply the private search doctrine to technology because of the sheer volume of information that many technological devices can store and the fundamental differences between these devises and ordinary physical items. As a result, a circuit split has emerged that produces different results depending on how the scope of the initial private party search is defined.This Comment begins by introducing the Fourth Amendment as informed by its history and meaning at common law. It then traces the development of the Court’s Fourth Amendment doctrine from an approach that focused primarily on an individual’s property rights to one that is more concerned with an individual’s personal rights. This Comment then briefly examines the privacy rights that are protected under the Fourth Amendment and the challenges that modern technology presents for those rights. Next, this Comment introduces the private search doctrine, examines how it applies to searches of physical items, and reviews the analysis used by courts to identify whether a police search violated the Fourth Amendment. Furthermore, this Comment describes the circuit split that exists between the Fifth and Seventh Circuits, which adopt the broad view, and the Sixth and Eleventh Circuits, which adopt the narrow view, and the different results that are produced by each approach. Next, it discusses a problem that arises when the private party acts under direction of a government agent to conduct a subsequent search. Finally, this Comment argues that, should the Supreme Court be faced with resolving this circuit split, it should adopt the broad view because it is more in line with the underlying principles of the private search doctrine and the Fourth Amendment.
PubDate: Thu, 23 Mar 2017 18:27:44 PDT
- Obergefell’s Impact on Functional Families
Authors: Raymond C. O'Brien
Abstract: More than forty percent of children born in America are born to unmarried parents and only half of all cohabitating adults in America are currently married. While many children are born to single parents, others are part of the two-person unmarried cohabiting functional family paradigm. What is the status of these children?This article examines the changing paradigm of parental status, specifically vis-à-vis homosexual couples with children, and the rights of the non-biological parent after separation. This article examines the changes in law in regards to unmarried parents leading up to the Uniform Parentage Act. It describes the equitable remedies that became available over the past two decades to unmarried parents and how the Supreme Court’s decision in Obergefell will likely create an important paradigm shift in how courts deal with such cases in the future now that marriage is available to same-sex parents.
PubDate: Thu, 23 Mar 2017 18:27:38 PDT
- The Lost Due Process Doctrines
Authors: Paul J. Larkin Jr.
Abstract: Due process jurisprudence has long been dominated by discussion of its procedural requirements and substantive limitations. Through the lens of the Constitution’s Due Process Clause, however, the Supreme Court has also considered the geographic reach and substantive exercise of legal authority, the delegation of law making to private parties, the incorporation doctrine, and the issues of fundamental fairness. These doctrines have existed for some time, but the Supreme Court has never explained how they fit into its “procedural vs. substantive” dichotomy. This article examines these Lost Due Process Doctrines and poses the question of whether they should suffer the same fate as other precedents that are no longer considered “good law,” or if they can be reconciled with the underlying principles of the Magna Carta and continue to inform the Court’s ever-developing interpretation of constitutional law.
PubDate: Thu, 23 Mar 2017 18:27:31 PDT
- Rape on the Washington Southern: The Tragic Case of Hines v.
Authors: Michael I. Krauss
Abstract: In 1919, Ms. Julia May Garret, a young Virginian woman, was brutally raped by two different men as she was walking home after the Washington Southern Railway failed to stop at her designated station. What followed was a legal battle that created precedent still discussed in American casebooks today. Although most case law recognizes that the criminal acts of third parties severs liability because such conduct is considered unforeseeable, Hines v. Garrett held that the harm Ms. Garrett suffered was within the risk created by the railroad’s negligence, and as a common carrier, the railroad owed her a duty to protect against that risk if she did not voluntarily disembark.This article dives into the historical backdrop of this pivotal Virginian case by providing details on Ms. Garrett’s daily commute, the assaults, the police investigation, the lawsuit, both the trial and appeal, and the Virginia Supreme Court’s ultimate decision. Further, this article provides insight into the aftermath of this case and how the parties’ lives proceeded at its conclusion.Julia May Garrett's story, it turns out, is more than a story of proximate cause. It is in many ways a story about Virginia.
PubDate: Thu, 23 Mar 2017 18:27:25 PDT
PubDate: Thu, 23 Mar 2017 18:27:08 PDT
- The Potential Effect of the Department of Labor’s New Fiduciary Rule on
Broker-Dealers and the Middle Income Retirement Investors Who Rely on Them
Authors: Nadia Yoon
Abstract: On April 6, 2016, the U.S. Department of Labor issued a final rule aimed at increasing the reach of the definition of fiduciary status under the Employee Retirement Income Security Act of 1974 (ERISA). This rule closed a loophole that had allowed broker-dealers to avoid becoming investment advisers under ERISA, allowing them to provide bad advice to their retirement clients without disclosing material conflicts of interest. This note begins by laying out the fiduciary rules and standards under ERISA and the U.S. Securities and Exchange Commission’s oversight regime before the final rule. It then lays out the relevant details of the rule and its Best Interest Contract Exemption. Next, it analyzes how the rule has changed the fiduciary standards for broker-dealers. Finally, it concludes by exploring the potential impact the final rule may have for middle-income investors and some criticisms the Department of Labor received during the rule’s open comment period.
PubDate: Tue, 17 Jan 2017 19:10:16 PST
- Personal Jurisdiction in Hatch-Waxman Cases
Authors: Michael Marusak
Abstract: The Hatch-Waxman Act drastically altered the way pioneer and generic pharmaceutical manufacturers litigate patent infringement disputes, allowing generic manufacturers to submit an abbreviated new drug application (ANDA) to the FDA, which states that it intends make a chemical equivalent of a patent owner’s drug. When the ANDA is accompanied by a Paragraph IV certification, representing that the generic intends to market the drug before the patent’s expiration because it believes the patent is invalid or will not be infringed by the generic’s drug, the ANDA submission itself creates an “artificial” act of infringement. With the Supreme Court’s recent tightening of general personal jurisdiction, many pioneers seeking to litigate these “artificial” infringement claims relied on a theory of specific personal jurisdiction to bring suits against defendants in their chosen forums. Consequently, it is important that courts hearing these cases clearly understand how they must apply the prongs of the specific jurisdiction “minimum contacts” analysis. However, in the decades following the Supreme Court’s decision in Helicopteros, which introduced the so-called “nexus” test – the requirement that courts must determine whether the litigation “arises from or relates to” the defendant’s contacts with a forum – the Supreme Court has provided frustrating little guidance for interpreting this requirement, leaving it up to lower courts to decide their preferred approach. This lack of guidance is particularly problematic in Paragraph IV cases, because the litigation is “artificial,” arising almost out of thin air when the generic submits an ANDA. Thus, a defendant’s contacts with a forum in these cases are, by nature, much more tenuous than a typical defendant’s contacts in a typical infringement suit.This Comment reviews a recent case decided by the Federal Circuit, Acorda Therapeutics, Inc. v. Mylan Pharmaceuticals, Inc., in which the Federal Circuit considered the “nexus” requirement within the context of a Paragraph IV case, but failed to provide the type of clarity that Paragraph IV cases desperately need. Furthermore, this Comment argues that the public policy considerations behind the Hatch-Waxman Act support a permissive interpretation of the Helicopteros “nexus” requirement in Paragraph IV cases, and urges the Federal Circuit to adopt the “sliding scale” test favored in other circuits for these types of suits in the future.
PubDate: Tue, 17 Jan 2017 19:10:12 PST
- A-R-C-G- Is Not the Solution For Domestic Violence Victims
Authors: Lizbeth Chow
Abstract: For over fifteen years, U.S. immigration authorities and courts have grappled with the idea of domestic violence as a basis for asylum. But in 2014, the Board of Immigration Appeals (BIA) issued a decision indicating that victims of domestic violence may qualify for asylum. This Comment assesses the BIA’s decision and concludes that it is ultimately ineffective. This Comment further suggests that the only practical solution is for Congress to intervene. This Comment first provides a brief historical overview of asylum law to help elucidate the purpose of asylum law. It also provides an in-depth review of the elements needed to establish a successful asylum claim and surveys how previous domestic violence-based claims have fared. Next, this Comment examines and appraises various existing proposals for addressing the issue of domestic violence-based asylum. Finally, this Comment proposes two possible changes to the refugee definition that would more adequately address the issue of domestic violence-based asylum. This Comment also anticipatorily rebuts the argument that granting asylum to domestic violence victims, as a matter of law, would lead to a drastic increase in this type of asylum application. This Comment concludes that the decision in In re A-R-C-G- does not provide an adequate solution for domestic violence victims seeking asylum. Moreover, it is time for the United States to amend its refugee definition to explicitly extend protection (via asylum) to domestic violence victims.
PubDate: Tue, 17 Jan 2017 19:10:08 PST
- Tears in Heaven: Religiously and Culturally Sensitive Laws for Preventing
the Next Pandemic
Authors: Eloisa C. Rodriguez-Dod et al.
Abstract: This Article argues that laws created to curtail the spread of deadly contagious diseases need to be drafted and implemented in ways that maximize acceptance of an affected communities’ cultural and religious beliefs. When laws are put in place that are inconsistent with community mores, the overall goal of stopping an epidemic is threatened. Communities often distrust government and other relief organizations who mandate rules and regulations that impinge their religious and cultural beliefs; thus, these regulations geared at helping communities can paradoxically undermine the goal of preventing the spread of infectious disease.This Article focuses on the need for public health officials to accommodate the religious and cultural practices of communities impacted by serious health epidemics when developing effective emergency procedures. The authors explores the role of governmental authorities in preventing the spread of contagious diseases during public health emergencies by reviewing constitutional, state, and international laws and regulations that may apply during infectious disease threats. It also addresses how religious and cultural practices should be accommodated in light of the West Africa Ebola crisis and the Sin Nombre outbreak in the United States. It describes survivors’ legal rights regarding human remains and the importance of religious and cultural death rituals. Further, this Article sets forth a proposal, taking into account ethical and policy considerations, and ultimately proposes an interdisciplinary and proactive approach to development of laws and regulations to create a system that is adaptable, acceptable to the community, and scientifically sound.
PubDate: Tue, 17 Jan 2017 19:10:04 PST
- Poverty, the Great Unequalizer: Improving the Delivery System for Civil
Authors: Latonia Haney Keith
Abstract: When individuals in the United States face civil justice issues, they are not entitled to legal counsel and therefore must secure paid counsel, proceed pro se or qualify for free legal assistance. As a result of the economic downturn, the number of Americans who are unable to afford legal counsel is now at an all-time high. In response to this ever-widening justice gap, the public interest community has launched multiple initiatives to supplement the underfunded legal aid system. Though valiant, this article argues that this approach has unfortunately created a complex, fragmented and overlapping delivery system for legal aid. This article first provides an understanding of the current civil legal landscape, especially as it impacts low-income and modest-means Americans. This article then examines the many initiatives developed as a means of closing the justice gap and whether such initiatives have helped or harmed underserved populations. Finally, this article proposes three specific reforms – the development of a comprehensive triage mechanism, the infusion of business process improvement within legal aid organizations and the creation of legal information exchange organizations – all of which, if implemented, will make great strides toward streamlining the delivery system for civil legal aid.
PubDate: Tue, 17 Jan 2017 19:10:00 PST
- Siting Technology, Land-Use Energized
Authors: Steven Ferrey
Abstract: Jurisdiction for the siting of electric power plants is vested in the fifty states, four territories, and thousands of local governments. Further complicating this scheme is federal government’s exclusive authority over certain transactions originating from these facilities. Against this backdrop of often divergent and conflicting laws, this article compiles a multijurisdictional review of the jurisdictional issues surrounding the regulation of electric power. Employing multiple state by state surveys, this paper compares electric power siting laws, the interactions between federal, state, and municipal authorities, and the mechanics of regulatory structures across the United States.
PubDate: Tue, 17 Jan 2017 19:09:56 PST
PubDate: Tue, 17 Jan 2017 19:09:44 PST