Current Issue


Volume 6 Number 1 - Fall 2013

Articles

Is Free Speech Compatible with Human Dignity, Equality, and Democratic Government: America, a Free Speech Island in a Sea of Censorship?

The American model of free speech jurisprudence is based upon the absolutist language of the First Amendment—Congress shall pass no law abridging freedom of speech. This model is unique in the Western world and glaringly contrasts with free speech models in Britain and Canada—examples of which I have labeled the European Model. This Article examines these models and the foundations and presuppositions of both, and the extent to which Canada and Britain, in applying the European Model, protect or fail to protect their citizens’ freedom of expression. Is one model moving toward totalitarianism while pretextually asserting it is standing for human dignity, equality, and democracy? This Article answers that question.

Using Experiential Education to Develop Human Resources for the Nonprofit Community: A Course Study Analysis

In this era of shrinking resources and increased pressure to produce “practice-ready” lawyers, law schools are seeking new and cost-effective ways to provide experiential education. This Article reports and analyzes the results of a survey of graduates and students from a course in Nonprofit Organizations that incorporated a community-based project designed to develop skills, enhance learning, and encourage post-graduation involvement with nonprofits. Although limited to one course, this course study, like a case study, offers valuable information. Consistent with other research on experiential education, the survey supports the conclusion that such projects, while less resource-intensive and comprehensive than clinics, offer benefits to both the students and to the community.

Deadly Dicta: Roe’s “Unwanted Motherhood,” Carhart II’s “Women’s Regret,” and the Shifting Narrative of Abortion Jurisprudence

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. Arguments focusing on the fetus as the equal or greater party of interest during any stages of pregnancy were systematically pushed aside by the Court.Whether expressly or impliedly, these criticisms focus almost exclusively on the validity of women’s regret because the Court’s reasoning could result in a change in the way we view abortion, in the stories we tell about abortion, and in who and what we think of when deciding the constitutionality of abortion regulations. Roe provided us with the trimester test, the physician-state competing rights analysis, and the extension of the right to privacy—all under the guise of “unwanted motherhood.” While Carhart II may not have changed much in terms of the fundamental right to abortion, its effects may have far greater consequences, and both the pro-life and pro-choice communities are aware of this. Despite all of the theories, tests, and holdings discussed and implemented in Roe and Carhart II, what remain within our collective conscience are the effects of unwanted motherhood and women’s regret. Under most definitions, these statements are a type of social dicta—unnecessary, memorable language that speaks directly in favor of a particular societal point of view. In light of the current debate, these social dicta are also deadly dicta: unwanted motherhood deadly in its effect on the rights of the unborn, and women’s regret deadly in its effect on unwanted motherhood. As this article will explain, social dicta have the potential to be particularly influential as they become part of the nation’s consciousness. Such dicta are usually the most quoted language by popular media outlets and non-legal sources, are often the most remembered part of the case, and are thematically opportunistic in guiding the debate and framing the narrative for use in future cases. The focus of this Article is to explore how this type of dicta drives and affects the long-term societal opinion and understanding of a stated controversy, and to note the glaring inconsistencies between the current critiques of women’s regret and the abject silence with regard to unwanted motherhood.

The Uncertain Enforceability of Prenuptial Agreements: Why the “Extreme” Approach in Pennsylvania Is the Right Approach for Review

Couples marrying in the United States are increasingly requesting prenuptial agreements. These agreements offer a substantial benefit, as they allow couples to set their own standards for property distribution at divorce. However, their enforceability remains uncertain. Prenuptial agreements were initially viewed with suspicion during a time when the state was much more involved in regulating marriage, and they remain subject to heightened standards of review in many jurisdictions. Not only are the standards heightened; they are also unclear and vary between jurisdictions, resulting in much uncertainty as to whether a particular agreement will be enforced. The justifications for heightened review are no longer warranted, given that women now occupy a societal position in which they should be viewed as equally as capable as men. To review prenuptial agreements differently from other contracts, as they are reviewed in many states, is to perpetuate stereotypes about women’s capabilities. This Note posits that Pennsylvania has adopted the best approach, as prenuptial agreements are reviewed exactly as other contracts are (with the additional requirement of financial disclosure). The Pennsylvania approach could be improved, however, by the adoption of minor procedural requirements. These include providing couples with information about their rights upon divorce before they marry, and imposing a brief waiting period, much like that required for marriage licenses, to allow couples considering a prenuptial agreement to discuss their expectations and negotiate better bargains.

Admitting Animations: Applied Psychology Research as a Call for Improved Guidance in Assessing the Prejudicial Impact of Computer-Generated Animations

Advances in recent technology have changed the evidentiary sources presented in both criminal and civil trials to include the use of full-motion, computer-generated animations. The presentation of computer-generated animations can increase juror retention, understanding, and synthesis of information, or it can act as a persuasive tool to undermine the deliberative process and to unduly influence juror decision making. In the advent of such new technology use, a balance must form between the usefulness of such evidentiary tactics and the elimination of undue influence or abuse of new technology. General foundational principles of demonstrative evidence apply to authenticate and determine the relevance of admission of such evidence. The Federal Rules of Evidence are not properly equipped to handle the implications of such new evidence and have provided little to no guidance for judges to determine admissibility. This Note discusses the analysis of the impact of computer-generated animations from the perspective of psychology. Through the application of psychological principles, this Note presents suggested guidelines for judicial determination of admissibility or inadmissibility of computer-generated animations as unduly prejudicial. Finally, this Note proposes an amendment to Federal Rule of Evidence 403 and the accompanying Advisory Committee’s Note to accommodate the advanced technology.

Placing Physicians Between Scylla and Charybdis: Chemical Disclosure Law Requiring Health Professionals to Sign Confidentiality Agreement Creates Risk of Liability for Physicians and Impedes Protection of Public Health

The Pennsylvania General Assembly enacted House Bill 1950 (Act 13) in February 2012, regulating hydraulic fracturing and the disclosure of chemicals used in the process. Part of this new legislation permits healthcare professionals to access proprietary information, otherwise subject to trade secret protection; however, Act 13 mandates that the requesting healthcare professionals first sign a private confidentiality agreement. There is an emerging debate extending across the states proposing similar legislation as to whether requiring a confidentiality agreement exposes physicians to potential liability or loss of license. On the one hand, if physicians abide by the terms of the private confidentiality agreements, they may violate their ethical code and state statutory laws protecting public health and safety, and such action may also expose them to potential common law negligence claims. On the other hand, if physicians share the information obtained under Act 13, they may be in breach of contract under the confidentiality agreement. This Note examines this dilemma and concludes that the vague language of Act 13 exposes health professionals to either breach of contract liability or potential tort liability and risk of losing their license. This Note recommends that the Pennsylvania Legislature should immediately pass an amendment clarifying the text of the statute, explaining whether physicians may share the information and with whom they can share it, taking into account the ethical obligations, common law doctrines, and public health concerns inherently intertwined with this issue. This Note also serves to guide other states considering similar chemical disclosure laws.