The Common Law

11 posts

Penetrating FDA Regulation: Justifications for FDA Oversight of Sex “Toys” as Medical Devices

By Tyler Henry

Sex devices, commonly referred to as “toys,” have grown in popularity over the past decade and somehow evaded regulations from consumer protection agencies. The Consumer Product Safety Commission (CPSC) has no specific regulatory standards for sex devices, regulating them as “novelty toys.” And the Food and Drug Administration (FDA) unnecessarily limits its oversight by only regulating “therapeutic” sex devices. These shortcomings create significant regulatory gaps, exposing consumers to harm, leading to thousands of emergency room visits annually. This Comment argues that FDA jurisdiction over sex devices as “medical devices” is appropriate and necessary to protect consumer health, especially for women and LGBTQ+ communities who are more likely to experience harm from sex devices.

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Nonprofit Law’s Antidiscrimination Loophole: Applying a Renewed Private Benefit Standard to Name, Image, and Likeness Collectives

The Common Law Volume 58, Issue 2

By Kristen Popham

America’s rapidly expanding and politically influential nonprofit sector is under increased scrutiny, and nonprofit law has yet to provide answers to critics’ burning questions. If the nonprofit sector is born of a democratic commitment to pluralism and community linkages, what do we make of its contributions to plutocracy? If the federal government’s subsidization of the nonprofit sector reflects political choices about who and what serves the community benefit, should the sector include groups that actively undermine principles of civil rights? Should institutions be able to exploit the nonprofit legal form to exact discrimination? As the nation undergoes a rethinking of the government’s role in enforcing public and private norms, answers to these questions will prove critical.

This Comment aims to move the law one step forward in answering these questions by proposing modifications to the private benefit standard through the case study of nonprofit Name, Image, and Likeness (NIL) collectives. The Supreme Court’s landmark ruling in NCAA v. Alston both facilitated student compensation in collegiate athletics and prompted the growth of over 200 organizations pooling fan and alumni funds for school-specific athletes. These NIL collectives represent a black market for college athletic labor facilitated by weaknesses in nonprofit law. Offering a safe-haven free from the demands of federal antidiscrimination law, the nonprofit sector allows NIL collectives to amass great wealth for a small, disproportionately male subset of private individuals. In addressing this sector, the IRS has missed an opportunity to articulate a more reaching community benefit analysis of nonprofit organizations that reintegrates public policy doctrine principles into nonprofit law. This Comment posits that the IRS should seize the opportunity created by this emerging form of inequality to clarify important elements of the community benefit doctrine and reinvigorate the application of antidiscrimination principles in nonprofit legal enforcement.

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Caregivers as a Class: Considering Antidiscrimination Protections for Caregivers

The Common Law Volume 58, Issue 2

By Sonia Marton

Unpaid caregiving is an enormous element of life for millions of Americans. But caregivers too often suffer discrimination in the paid workplace due to the real or perceived demands of their care work outside of it. Despite this inequality, employment antidiscrimination statutes do not protect caregivers explicitly. Instead, caregivers must demonstrate a connection to at least one expressly protected class to access antidiscrimination protection, usually by linking discrimination based on caregiving (unprotected) with discrimination based on sex (protected). As a result, equal employment opportunity (EEO) laws implicitly and explicitly reinforce the connection between being a woman in the workplace and being a caregiver outside of it. This state of affairs is both a driver and a manifestation of sex inequality because unpaid caregivers in this country are mostly women. This Comment offers a critical feminist analysis of how, why, and what could be done about it.

Specifically, this Comment advocates for explicit protections for caregivers as a class to help disentangle sex from caregiving and thereby help address sex inequality in the United States. Part I discusses the landscape of federal EEO laws and how it is insufficient for caregivers. Part II dives into the avenues that caregivers currently most often use to gain protection under the law. Part III showcases how broad and explicit protection for caregivers as caregivers can be successful.

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The City of (Big) Brotherly Love: Examining the Federal and State Constitutional Implications of Real-Time Crime Center Surveillance in Philadelphia

The Common Law Volume 58, Issue 2

By Mary Gianna Hill

The rise of Real-Time Crime Centers (RTCCs) in the United States, including their implementation in Pennsylvania, marks a significant development in law enforcement surveillance. These centers employ advanced technologies to conduct real-time monitoring of the public. While the primary aim of RTCCs is to enhance public safety, they also raise critical concerns about privacy rights and constitutional protections. Specifically, the use of pervasive surveillance technology by the Philadelphia Police Department (PPD) through its RTCC challenges the boundaries of the Fourth Amendment of the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution.

This Comment explores the constitutional implications of RTCC surveillance, arguing that the PPD’s use of this technology constitutes a search under both the Fourth Amendment and the Pennsylvania Constitution. By analyzing U.S. Supreme Court decisions on surveillance, as well as relevant Pennsylvania court rulings, this Comment advocates for enhanced judicial scrutiny of RTCCs, noting that while Pennsylvania’s Article I, Section 8 does not categorically exceed the protections of the Fourth Amendment, it offers particularly persuasive safeguards when it comes to real-time surveillance. The conclusion underscores the need for a balanced approach that respects both public safety and individual privacy in the digital age.

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Aberration of Accountability: Situating the Alien Tort Statute Against Corporate Human Rights Abuses

The Common Law Volume 58, Issue 1

By Sabriyya Pate

The Alien Tort Statute (ATS), one of the United States’ oldest laws, provides all federal district courts with general jurisdiction to hear cases brought by non–United States citizens. As written, the ATS empowers non– United States citizens—including victims of torture, kidnapping, forced labor, and child slavery—to sue American individuals and corporations for the customary international law torts committed against them. Over the past two decades, however, the Supreme Court has cabined the ATS such that it is unworkable for the non–United States citizens it was designed to empower. Instead, the Court has contorted the ATS to grant itself greater power over foreign policy and global governance. Meanwhile, amidst our increasingly globalized economy, human rights abuses committed by American multinational corporations (MNCs) against non–United States citizens remain widespread. A revival of a robust interpretation of the ATS would preclude American MNCs from evading the United States judicial system when they commit human rights abuses abroad.

This Comment argues that unraveling the doctrinal fallacies saturating ATS jurisprudence is the first step toward reform. Contextualizing the recent settlement achieved in Doe v. ExxonMobil, this Comment argues that ATS doctrine has become a web of contortions that must be rectified before the Court further usurps foreign policymaking authority. It concludes by outlining a path for legislative action on the issue of human rights abuses committed against non–United States citizens by American corporate actors.

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High-Frequency Litigation: Framing the Narrative of ADA Actions

The Common Law Volume 58, Issue 1

By Amanda McBain

A sharp rise in the filing of Americans with Disabilities Act (ADA) Title III actions between 2013 and 2021 has furthered the “for-profit” lore surrounding arguments against the standing of serial litigants. Critics have construed the mere propensity of ADA litigants to settle their lawsuits as the basis for a disingenuous narrative: serial litigants, often referred to as “testers,” are litigating spurious claims with the sole intent of financial gain.

In Acheson Hotels, LLC v. Laufer, the parties presented the Supreme Court with the question of whether an ADA “tester” has standing under Title III to bring an action against a hotel for its website’s lack of sufficient accessibility information, even if the tester never intended to become a guest. Stemming from a review of claims asserted in the amicus briefs filed in Acheson Hotels and Justice Thomas’ concurring opinion, this Comment analyzes and responds to the narrative that serial litigation is a “for-profit” industry propelled by fee-shifting statutes or settlements and dependent on “boilerplate allegations” that lack a proper injury-in-fact. Through an empirical analysis of complaints and the role of settlements in ADA actions, this Comment provides an answer to the myth surrounding serial litigation and assesses the proper intent of its litigants.

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One Size Does Not Fit All: Reforming the Federal Sentencing Guidelines’ Terrorism Enhancement

The Common Law Volume 58, Issue 1

By Anaximander Mars

Following the 1993 bombing of the World Trade Center, Congress directed the U.S. Sentencing Commission to amend its Sentencing Guidelines to prescribe a steeper penalty for acts that involve or intend to promote international terrorism. The result is the terrorism sentencing enhancement, which automatically sets a floor of 210 to 262 months when calculating the recommended sentence for defendants before other adjustments. But this one-size-fits-all penalty, while appropriate for the worst offenders intending mass murder, sweeps too broadly and recommends severe sentences for any defendants accused of antigovernment conduct. Prosecutors request the terrorism enhancement not only for terrorists intending mass murder or bodily harm, but also for unruly protestors intending small-scale property damage and civil disobedience. This Comment proposes reforming the enhancement by implementing a tiered system that recommends sentencing adjustments for anti-government criminal conduct according to the offense type and the degree of intended or actual violence and property damage.

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Searching for Judges Who Hear: Analyzing the Effects of Colorado’s Abolition of Qualified Immunity on Civil Rights Litigation

The Common Law Volume 57, Issue 1

By Colin Cowperthwaite

“Section 1983 was born out of the failures of state courts. Over a hundred years later, [Colorado’s Enhance Law Enforcement Integrity Act (ELEIA)] was born out of the failures of federal courts to protect individuals from civil rights violations committed by local law enforcement. By removing qualified immunity as a defense, ELEIA challenged federal courts’ continued relevance in addressing police violence in Colorado. But as this Comment shows, Colorado’s federal district court remains an active scene for litigating against officers who violate constitutional rights. While there are many possible explanations for this result, ELEIA should not be taken as a failure. On the contrary, eighty-two claims that might otherwise have gone unheard in federal courts now can be heard in state courts. For victims of police violence, ELEIA provides a meaningful source of “ears to hear” their appeals for accountability, remedy, and justice.”

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State Constitutions and Systemic Gaps in Music Education Access

The Common Law Volume 57, Issue 1

By Corey Whitt

“The proliferation of music education in schools throughout the United States is an apparent success. However, its application is not evenly spread across the country. Students living in poverty are most often those who are left unable to enjoy its advantages. Further, the disparities increase along racial lines. The reality is that low-income students of color are more likely to forgo a music education than their affluent, white peers.

As demonstrated in cases leading into the twenty-first century, state courts can play a role in bridging the socio-economic divide of music education access. Where state courts chose to define the minimum quality of education prescribed by their state constitutions, music experiences were acknowledged. A modern, successful advocacy strategy, however, will likely deviate from litigation in favor of ballot measure proposals to secure a music education for all students given the inherent risk of establishing harmful legal precedent. Through the patchwork of state ballot measures, the American electorate can promote meaningful music education experiences for all students—not only the wealthy, white children.”

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Access to Justice in “Lawyerless” Housing Courts: A Discussion of Potential Systemic and Judicial Reforms

The Common Law Volume 57, Issue 1

By Gabe Siegel

“Housing courts—and lawyerless courts more broadly—are broken. Only one side has access to lawyers. And given the institutional expertise, strategic knowledge, and unfair use of procedure that housing court lawyers bring, only one side has genuine access to justice. By changing the ways in which judges interact with pro se and represented litigants, reform can provide access to justice to all parties in housing court. Judicial reforms would decrease delay, elicit more facts, inject due process and procedural fairness into proceedings, and minimize bias. The most important of these reforms is active judging, including procedural reform, evidentiary reform, and easier access to hearings. As the effects of the active reforms taken by Alaska District Court Judge Washington indicate, the reforms are simple to implement and quickly make a tangible impact. More broadly, reforms would benefit pro se litigants and the judicial system as a whole: it is ‘more effective to train one judge on how to assist a self-represented litigant than to teach hundreds of [litigants] how to be lawyers.’ It is an ‘essential democratic goal’ that the court system work fairly for all. Reforming judging in lawyerless housing courts helps it do just that.”

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The International Legal ‘Regime’ Against Child Marriage: A Haphazard Patchwork

The Common Law Volume 57, Issue 1

By Linny Kit Tong Ng

“The existing international legal architecture designed to address child marriage is markedly deficient, representing a haphazard patchwork of provisions with varying degrees of relevance strewn throughout numerous international and regional conventions. This framework fails to articulate a cohesive strategy for the eradication of child marriage; the language used is frequently ambiguous, resulting in standards that offer little specific or useful guidance for implementation, and lack enforcement mechanisms. These deficiencies have precluded the establishment of a robust and enforceable global norm against child marriage. Regional African instruments have demonstrated that linguistic precision in themselves does not guarantee compliance, as enforcement often falters due to exceptions carved out by the law for customary and religious unions, a lack of political will, or resources.

Combating child marriage requires a comprehensive and nuanced approach that extends beyond international agreements to include local collaboration. To avoid the pitfalls of paternalism and cultural imperialism, sufficient time and effort must be invested in identifying the appropriate standards to be enshrined in a hypothetical, dedicated anti-child marriage convention. Additionally, states must reconsider conventional approaches of imposing sanctions and dispensing incentives. This Comment advocates for a deeper exploration of reversible rewards as a novel strategy to enhance compliance with anti-child marriage measures.

Given its intersection with private law and human rights, child marriage presents an exceptionally intricate challenge. Efforts to eradicate the practice are further complicated by its widespread occurrence, the influences of globalization, sociocultural mores, religious beliefs, and economic conditions. Addressing the issue effectively calls for not just legal interventions, but also a commitment to education and cultural engagement that empowers children, families, and entire communities. Such transformational efforts are gradual and are part of broader societal movements that address gender equality and environmental sustainability. Consequently, while the elimination of child marriage is a global imperative, it is a goal that must be pursued with careful deliberation and respect for the complex tapestry of societal dynamics.”

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