Juris Summer 2017

Summer 2017

THE DUQUESNE LAW SCHOOL MAGAZINE

Redefining The American Dream

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Letter from the Editor Ever since being asked to unpack the common themes underpinning the American Dream, I have found myself searching for a more complete answer. That answer, though, seems to be less a cogent statement and more of a feeling linked to patriotism, opportunity, and fortitude. Literary greats from Twain to Steinbeck have explored the idea. Music has attempted to conjure its inarticulable feeling—just listen to the opening glissando in Gershwin’s Rhapsody in Blue. Norman Rockwell’s art proves it is both ephemeral and eternal. Yet, though our forbearers often meditated on the meaning of that dream, our contemporaries seem to have forgotten its existence, or have, at least, given up on developing a “more perfect” American ideal.

Though none of the aforementioned interpretations overlapped, they all shared a common thread. Hope. Hope for something better—for ourselves, our posterity, our country, and our world. The American Dream does not discriminate against who can achieve it. It’s propelled by our cumulative power, illustrating that while individually we can create something, together we can create something greater.

To keep dreaming, we must renew our respect for civil discourse by discussing our values, and laws that do not protect those values. Together we must dissent when those values are dismissed. Together we must be guided by the light of our hearts, not our fears. We must question our overreliance on technology, and ask if our values match that technological trajectory. Together we must find common grounds in differing political ideologies, and fight for a shared end regardless of the differing means. We must collaborate despite our differences, not become divided further. And most importantly, we must show respect for those differences, understanding that we’re all operating from a place of hope, wanting the best for our families and country.

The American Dream is not one idea. It is three hundred million (and growing) different ideas coming together to make our union a more perfect one. We must get out of our own way, and move forward together.

In this issue, the Juris staff hopes to recalibrate and redefine that estimable, albeit quixotic, ideal. During the most contentious period in recent history, the law may be an even better medium to clarify the nebulous concept of the American Dream than Gershwin’s glissandos or Twain’s turns of phrase. What Americans hope to achieve, individually and together, deserves to be reflected in our ever-growing body of laws. The Juris staff intends to provide a clearer picture of where we’ve come, where we stand, and where we are headed, when asked about the American Dream. Thanks for reading. We hope you enjoy.

Cheers, P. Michael Jones P. Michael Jones, a 2017 J.D. candidate, is the editor-in-chief of Juris and treasurer of the Duquesne Intellectual Property Law Association. He has written at length about liquor law in the United States and Pennsylvania, and works to ensure the availability of medical marijuana for Pennsylvania residents.

He is interested in pursuing a career in policy in either field. He can be reached at jonesp1@duq.edu or jurisduqlaw@gmail.com.

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JURIS Staff Summer 2017 Editor-in-Chief: P. Michael Jones

Table of Contents Civil Dissent and the Pursuit of the American Dream. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Price of Free Thought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Big Brother & Privacy: Is Nothing Sacred?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Expanding the American Dream: The Evolution of Employment Laws in America. . . . 10 ‘Forgiveness’ Remedies and the American Dream. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The American Dream: Sponsored By... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 The Dream of the Small Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Can a Clean Environment be a Fundamental Right?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Best Blog Posts 2016-2017. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Executive Editors: Ian Grecco Kyle Fiesler Associate Editor: Julie Williams Web Editor: Nicole Prieto Staff Writers: Robert Campbell Casey Hogan Drew Rummel Kyle Steenland Natalie Tupta Cover Designer: Cameron Mitchell Cover Models: Fayezah Haji Hassan Anthony Hassey Connect with Juris: @JurisDuqLaw

JurisMagazine.com

JurisMagazine The views expressed in Juris magazine do not necessarily represent the views of Juris magazine, Juris blog, or Duquesne University School of Law. Please address any questions or concerns to the editor-in-chief, jurisduqlaw@gmail.com.

Juris Magazine – The Duquesne Law School Magazine jurisduqlaw@gmail.com

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Civil Dissent and the Pursuit of the American Dream

By Nicole Prieto, Web Editor

The past election season alone has seen a rise in resistance activity across the nation. Marches erupted after the election of President Donald Trump, with chants of “not my president” taking the streets.1 Outrage against the then-President-elect even extended to unsuccessful petitions to persuade the Electoral College to vote against him.2 In the days after the inauguration, the National Parks’ Twitter accounts became unexpected political battlefields after a temporary media blackout—giving rise to unofficial Parks’ “alt” accounts.3 One of the president’s earliest executive orders banned immigration from seven predominantly Muslim countries,4 leading to protests at John F. Kennedy International Airport and others.5 The instantaneous visibility of resistance activity and mass organization is in no small part attributable to social media, as noted by Juris staff writer Amber McGee.6 Such resistance is not new to U.S. tradition. The American people have historically employed acts of dissent to achieve various conceptions of an ideal society in which to live—and an ideal rule of law under which they may be governed. This article presents a necessarily incomplete survey of American resistance to the status quo, and its centrality to modern U.S. legal and political life.

“Dissent” vs. “Disobedience” When “civil disobedience” is invoked, Henry David Thoreau’s name is not far behind. Thoreau’s 1849 essay “Civil Disobedience” was penned after he was jailed for one night after he refused to

pay a poll tax, apparently out of opposition to slavery.7 As noted by political theorist Hannah Arendt, however, Thoreau’s case was entirely about “individual conscience and conscience’s moral obligation,” rather than “a citizen’s moral relation to the law.”8 Ironically, then, Thoreau’s action does not quite reflect the definition of “civil disobedience” understood today.

University of Washington Associate Professor Jessica L. West writes: “[A] violation of law must be open, public, nonviolent, intended to effectuate social or political change, and directed at the government. . . . [T]he act must be one ‘of conscience,’ motivated by a desire to communicate a need for social or political change.”9 Further still, Arendt draws a line “between conscientious objectors and civil disobedients,” noting how “[t] he latter are in fact organized minorities, bound together by common opinion . . . and the decision to take a stand against the government’s policies.”10 Thus, “civil disobedience”—which encompasses nonviolent violations of the law to make resistance statements—does not describe the kinds of legal resistance promulgated by organizations like the American Civil Liberties Union (ACLU).

Rather, “dissent” may be more appropriate, especially when the government is not the entity being directly opposed. For purposes of this article, then, “dissent” and “resistance” are used interchangeably, whereas “civil disobedience” is reserved for nonviolent, illegal action.

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Dissent in Modernity According to West, civil disobedience has inextricable ties to the U.S. and “what Thomas Jefferson described as a ‘spirit of resistance’ [that] catapulted the emerging Republic toward independence.”11 In the centuries since the American Revolution, the nation’s history has no dearth of acts of civil disobedience and civil dissent that resulted in substantial change in law and culture. West writes, for instance, that “[t]he abolition of slavery, women’s suffrage, union protections, and civil rights were all precipitated by extralegal actions that helped effectuate social change.”12 The movements making headlines today extend from that historic backdrop.

In what has been called the “new civil rights movement,”13 Black Lives Matter (BLM) emerged in response to the acquittal of George Zimmerman for Trayvon Martin’s death.14 After the shooting of Michael Brown in Ferguson, Missouri, the movement has drawn divided national attention to police brutality and racial discrimination.15 BLM’s site indicates that, by stating “Black Lives Matter,” it means “[w]e are talking about the ways in which Black lives are deprived of our basic human rights and dignity.”16 Whether from BLM protests from Ferguson to Baltimore, to activist Bree Newsome’s removal of the Confederate Flag from in front of the South Carolina State House,17 the movement has had a profound effect on conversations about racism, policy, and policing today.

Thousands protested across the nation in support of the Women’s March on Washington; an estimated 25,000 marched in Pittsburgh alone.18 Several messages were promulgated—from police violence to respecting women’s bodies to immigration19— and a 1,000-word statement of principles outlined the marchers’ goals.20 In its historic turnout and visibility, the march moved toward its goal to “send a bold message to our new government on their first day in office, and to the world that women’s rights are human rights.”21 Native American protests and organizations have had a long history in the U.S.,22 with the Standing Rock Sioux Tribe’s year-long protest of the Dakota Access Pipeline (DAPL) receiving notable attention.23 Referring to themselves as water protectors, they have emphasized the danger the pipeline poses to the Sioux Tribe’s sacred land and drinking water.24 “No DAPL” inspired the support of thousands of U.S. veterans, who arrived at the Oceti Sakowin camp to act as buffers between protesters

and police.25 Protesters paused and evacuated due to impending floods in February26 but later led to the Native Nations Rise rally from March 7-10.27 In the past year, North Carolina’s adoption of HB2 in 2016 drew polarizing attention to the state. Among other items, the “bathroom bill” requires people to use restrooms in accordance with the genders listed on their birth certificates, not their gender identities.28 Dissent against the bill has taken the form of corporate opposition,29 cancellation of NCAA events in the state,30 and outcry from the Human Rights Campaign.31 Where supporters have cited safety concerns for women and children,32 those in opposition have criticized its discriminatory impact on transgender people being told they cannot lawfully use the restrooms aligned with their gender identities.33

Reaction Reaction to the rise in resistance has been swift and divided. Various bills have been introduced to impose restraints on protest activity, with stated purposes spanning from dissuading riots to preventing motorist inconvenience.34 In late February, an Arizona bill criticized for equating riots to racketeering was killed in session.35 It would have “added rioting to the organized crime statutes and said an overt act isn’t needed to prove conspiracy to riot.”36 Arizona House Speaker J.D. Mesnard refused to hear the bill after the negative attention it received.37 On March 11, the ACLU held a “People Power” action event intended to galvanize its supporters to resist Trump’s policies by placing pressure on local authorities.38 The ACLU launched PeoplePower.org,39 an organizing platform that also contains information on nine proposed “‘model’ state and local law enforcement policies and rules” responding to the president’s stance on illegal immigration.40 Overall, there is little doubt about the divided state of the country.41 It may be easy to despair at poll numbers from just this November indicating uncertainty at whether Trump will unite or divide the nation further.42 It may be easy to perceive the rise in resistance as reflecting insurmountable divisions among Americans. There may, however, be a silver lining clouded by the hypervisibility of disparate issues on social media.

The presence of civil dissent today perhaps reflects the unique vitality of American democracy regardless of political climate. With respect to civil disobedience, Arendt even reflected that “the American republic is the only government having at least a chance to cope with it—not, perhaps, in accordance with the statutes, but in accordance with the spirit of its laws.”43 Expressing disagreement and seeing substantial change result has always been central to the fabric of American life, and our laws and culture have evolved in response to perceived injustices. With the uncertainty of our nation’s future ahead of us, civil dissent may be one of the most consistent traditions from our nation’s past.

Nicole Prieto is a second-year day student and serves as the web editor for Juris Magazine. She is involved with Duquesne Law Review, BLSA, and DIPLA, in addition to writing and copy editing for The Duquesne Duke. Nicole graduated from the University of Arizona in 2015 with degrees in English and molecular and cellular biology.

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1

Alexander Besant & Olga Grigoryants, Anti-Trump Protests Bring Thousands To Streets Around U.S., Huffington Post, Nov. 12, 2016, http://www.huffingtonpost.com/entry/trump-protests_ us_5827d2aae4b060adb56ece5a.

2 Daniel Brezenoff, Electoral College Petition, ElectoralCollegePetition. com, https://electoralcollegepetition.com/about/#gs.oeAmRXk; http:// pac.petitions.moveon.org/sign/let-the-electoral-college (last visited Apr. 1, 2017).

3 Wynne Davis, Rogue National Park Accounts Emerge On Twitter Amid Social Media Gag Orders, National Public Radio, Jan. 25, 2017, http:// www.npr.org/sections/alltechconsidered/2017/01/25/511664825/roguenational-park-accounts-emerge-on-twitter-amid-social-media-gagorders.

4 Lauren Said-Moorhouse, What Trump has done so far and what it all means, CNN, updated Feb. 10, 2017, http://www.cnn.com/2017/01/26/ politics/executive-orders-presidents-actions-presidential-memoranda/.

5 Emanuella Grinberg & Madison Park, 2nd day of protests over Trump’s immigration policies, Jan. 30, 2017, http://us.cnn.com/2017/01/29/politics/ us-immigration-protests/index.html.

6 Amber McGee, The New Protest, Juris Magazine, Feb. 12, 2017, http:// jurismagazine.com/the-new-protest/.

7

Henry David Thoreau, Walden and Civil Disobedience, 278 (2003); Hannah Arendt, Crises of the Republic, 59 (1972).

8 Arendt, supra.

9 Jessica L. West, Is Injustice Relevant? Narrative and Blameworthiness in Protester Trials, 86 Temp. L. Rev. 107, 109-10 (2013).

10 Arendt, supra note 7, at 57.

11 West, supra note 9, at 110.

12 Id. 13 Elizabeth Day, #BlackLivesMatter: the birth of a new civil rights movement, Guardian, July 19, 2015, https://www.theguardian.com/ world/2015/jul/19/blacklivesmatter-birth-civil-rights-movement.

14 Black Lives Matter, About the Black Lives Matter Network, BlackLivesMatter.com, http://blacklivesmatter.com/about/ (last visited Apr. 1, 2017).

15 Sara Sidner and Mallory Simon, The rise of Black Lives Matter: Trying to break the cycle of violence and silence, CNN, Dec. 28, 2015, http://www. cnn.com/2015/12/28/us/black-lives-matter-evolution/.

16 Supra note 14.

17 Supra note 13.

18 Kaitlin Zurawsky, 25,000 participate in Women’s March on Pittsburgh, send message to Washington, WTAE Pittsburgh, Jan. 21, 2017, http:// www.wtae.com/article/women-parade-through-pittsburgh-in-solidaritywith-womens-march-on-washington/8624963.

19 Anemona Hartocollis & Yamiche Alcindor, Women’s March Highlights as Huge Crowds Protest Trump: ‘We’re Not Going Away,’ NY Times, Jan. 21, 2017, https://www.nytimes.com/2017/01/21/us/womens-march.html?_r=0.

20 Karl Vick, Nation: The Other Side, Time Inc., Feb. 6, 2017, at 28.

21 Women’s March on Washington, Mission & Vision, WomensMarch.com, https://www.womensmarch.com/mission/ (last visited Apr. 1, 2017).

22 See generally Ben Railton, Standing Rock And The Forgotten History Of Native American Activism, Huffington Post, Sept. 5, 2016, http://www. huffingtonpost.com/ben-railton/standing-rock-and-the-for_b_11865978. html.

23 Standing Rock Sioux Tribe, Stand with Standing Rock: History, StandWithStandingRock.net, http://standwithstandingrock.net/history/ (last visited Apr. 1, 2017).

24 Id. 25 Reuters, Sense of Duty Draws U.S. Veterans to Dakota Pipeline Protest, Fortune, Dec. 4, 2016, http://fortune.com/2016/12/04/veterans-daplprotest/.

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26 Alan Taylor, Dakota Access Pipeline Protesters Burn Their Camp Ahead of Evacuation, Atlantic, Feb. 22, 2017, https://www.theatlantic. com/photo/2017/02/dakota-access-pipeline-protesters-burn-theircamp-ahead-of-evacuation/517506/.

27 Lauren Gambino and Associated Press, Native Americans take Dakota Access Pipeline Protest to Washington, Guardian, Mar. 10, 2017, https://www.theguardian.com/us-news/2017/mar/10/nativenations-march-washington-dakota-access-pipeline.

28 H.B. 2B, Session Law 2016-3, Gen. Assemb. (N.C. 2016).

29 Katherine Peralta, Updated list: Who has spoken for, against NC’s new LGBT law, Charlotte Observer, Mar. 31, 2016, http://www. charlotteobserver.com/news/business/article69251877.html.

30 Scott Gleeson, N.C. Sports Association urges HB2 repeal to avoid losing NCAA bids from 2018-22, USA Today, Feb. 6, 2017, http:// www.usatoday.com/story/sports/ncaab/acc/2017/02/06/northcarolina-sports-association-urges-hb2-repeal-avoid-losing-ncaabids-2018-22/97550554/.

31 Human Rights Campaign, North Carolina, HRC.org, http://www.hrc. org/local-issues/north-carolina (last visited Mar. 19, 2017). As of March 30, HRC criticized the state’s purported repeal of HB2. HRC President Chad Griffin commenting that the new law “institutes a statewide prohibition on equality by banning non-discrimination protections across North Carolina and fuels the flames of antitransgender hate.” HRC Staff, SHAMEFUL: NC Lawmakers and Governor Cooper Sell Out LGBTQ Community With Discriminatory HB2 “Repeal,” Human Rights Campaign, Mar. 30, 2017, http://www.hrc. org/blog/north-carolina-lawmakers-and-governor-cooper-sell-outlgbtq-community-hb2.

32 Keep NC Safe, Business Leaders Support HB2 & Governor McCrory, http://keepmyncsafe.com/hundreds-business-leaders-show-supporthb2-governor-mccrory/ (last visited Apr. 31, 2017).

33 Katy Steinmetz, Why LGBT Advocates Say Bathroom ‘Predators’ Argument Is a Red Herring, Time Inc., May 2, 2016, http://time. com/4314896/transgender-bathroom-bill-male-predators-argument/.

34 Christopher Ingraham, Republican lawmakers introduce bills to curb protesting in at least 18 states, Wash. Post, Feb. 24, 2017, https:// www.washingtonpost.com/news/wonk/wp/2017/02/24/republicanlawmakers-introduce-bills-to-curb-protesting-in-at-least-17-states/.

35 Associated Press, Arizona House speaker won’t hear rioting bill, Ariz. Capitol Times, Feb. 27, 2017, http://azcapitoltimes.com/ news/2017/02/27/arizona-house-speaker-wont-hear-rioting-bill/.

36 Id. 37 Id. 38 Faiz Shakir, The ACLU’s Next Endeavor: Organizing the People’s Power to Resist, ACLU, Feb. 24, 2017, https://www.aclu.org/blog/ speak-freely/aclus-next-endeavor-organizing-peoples-power-resist; Adam Gabbatt, ACLU launching People Power to resist Trump immigration policies in ‘freedom cities,’ Guardian, Mar. 9, 2017, https:// www.theguardian.com/us-news/2017/mar/09/aclu-people-powerfreedom-cities-trump-immigration-policies.

39 ACLU, People Power: ACLU is leading a new charge, PeoplePower. org, https://peoplepower.org/ (last visited Apr. 1, 2017).

40 ACLU, People Power: Freedom Cities Action Guide, PeoplePower.org, https://peoplepower.org/freedom-cities.html (last visited Apr. 1, 2017).

41 Jeremy W. Peters, Megan Thee-Brenan & Dalia Sussman, Election Exit Polls Reveal a Starkly Divided Nation, NY Times, Nov. 8, 2016, https://www.nytimes.com/2016/11/09/us/politics/election-exit-polls. html?_r=0; Niall Stanage, Trump takes reins of divided nation, Hill, Jan. 20, 2017, http://thehill.com/homenews/administration/315408trump-takes-reins-of-divided-nation.

42 Gallup, Record-High 77% of Americans Perceive Nation as Divided, Gallup.com (Nov. 21, 2016), http://www.gallup.com/poll/197828/recordhigh-americans-perceive-nation-divided.aspx (last visited Apr. 1, 2017).

43 Arendt, supra note 7, at 82.

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The Price of Free Thought

By Robert Campbell, Staff Writer

Imagine, if you will, an America that is virtually crimeless.

An America where our police force is able to precisely forecast and punish crimes prior to any overt action in furtherance of that crime actually ensuing. This dystopian future, captured in print by George Orwell in 1984 and depicted on film in Steven Spielberg’s Minority Report is no longer a mere suspension of reality, as these pieces of science fiction unquestionably bear a resemblance to today’s cross-section between law enforcement and the Internet. We have seen the insidious claws of law enforcement grasp at suspicious, yet non-criminal evidence found on the Internet, but where is the line drawn between crimeless thoughts and punishable actions? The implications of this legal doctrine in the growing web space are broad and sweeping, and only further complicated by our constantly broadcasted social media lives. While we struggle to pinpoint the exact moment when a crime occurs, we must also come to the realization that our free thought may soon be subjugated to the expense of security.

Any law student could confidently tell you that the commission of most crimes requires two general elements— mens rea, a guilty mind, and actus reus, the act itself.1 Though seemingly simple enough, this analysis quickly becomes convoluted when the accused crime lacks the typical overt action signifying its actual commencement. The Internet, though not readily apparent to the billion-plus users who access it daily,

is a mechanism in which our privacy is voluntarily relinquished and personal data is collected and stored in massive servers.

Much of this information could be valuable in helping law enforcement prevent crimes, but it remains unclear when a crime goes from inchoate thought to punishable act. Further, the point at which this information can be used to prevent crimes are questions that continue to perplex our ever-changing society.

The idea of cannibalism should shock the conscience, but is fetishizing the conspiracy to commit the heinous act a punishable offense? Gilberto Valle, the infamous “Cannibal Cop” and a former New York City Police Officer, did exactly that, and his unnerving tale provides interesting insight into the twilight zone between thought crimes and criminal actions.

Valle was convicted of conspiring with three others to kidnap, kill and eat five women, including his wife.2 Valle conspired on a fantasy-driven website, using a profile with false and conflicting information, and placed clear disclaimer that everything he spoke of on the site was fiction.3 His conviction was based on forty conversations that included shared Facebook pictures of the planned “victims,” an overly detailed blueprint of how he was planning to commission the crimes, and listed items necessary do so.4 However, Valle never acted in furtherance of the alleged conspiracy outside of the fantasy chat room—never completing (Continued on page 6) 5

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“It is increasingly challenging to identify that line [between devious thoughts and criminal actions] in the Internet age.”

his “shopping list” and never attempting to meet with his other “coconspirators.”5 More importantly, the dates of the discussed kidnappings came and went without action.6 While the Second Circuit overturned the jury’s conviction of Valle,7 the case of the Cannibal Cop has further proven that “it is increasingly challenging to identify that line [between devious thoughts and criminal actions] in the Internet age.”8 Therefore, though it may be unrealistic to believe that a clear-cut answer exists, it is necessary to attempt to identify the exact moment when online communications transform from crimeless thoughts into criminal conspiracies, thus allowing law enforcement to intervene. At the very least, it is crucial to recognize that this query needs legal navigation in a world where the Internet is only becoming more ubiquitous.

The overt act requirement attempts to safeguard mere talk from being misinterpreted as specific criminal intent.

Irreconcilably, an overt act has been understood as “any trivial or innocent act that is minimally consistent in some way with the alleged conspiracy.”9 We are then faced with two choices; either permit the simple coordination of a potential crime, however petty or far-fetched, to satisfy this threshold, thus relinquishing potential First Amendment rights, or hold that crimes can only be stopped upon commission. Our world appears to accept the former, where something as simple as advertising drugs for sale on Facebook or impulsively suggesting to burn down a pizza shop through a tweet10 leads to police intervention and conspiracy charges. The communal aspect of social media further complicates this matter—is anyone who “likes” 11or retweets these messages implicated?

Under the current interpretation of overt acts, the answer is likely affirmative, and prosecutors will only continue to push

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22 C.J.S. Criminal Law: Substantive Principles § 41. Voluntary act or actus reus requirement; overt act (2017).

United States v. Valle, 301 F.R.D. 53 (S.D.N.Y. 2014).

Id. at 59.

Id. at 59-60.

Id. Id. United States v. Valle, 807 F.3d 508 (2d. Cir. 2015).

Eugene Volokh, Second Circuit rules for accused ‘cannibal cop’, Dec. 3, 2015, https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/12/03/second-circuit-rules-for-accusedcannibal-cop/

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the envelope to broaden the law even further. Moreover, proposed legislation hoping to eliminate the overt act requirement from conspiracy to riot laws has added another wrinkle to the analysis and indicates that law enforcement is not alone in attempting to look over our shoulders at the keyboard.11 Although it is admittedly senseless to engage in the aforementioned inchoate communications, and actions similar to those of Gilbert Valle or Jessica Dooley should be condemned, there comes a point where constant police monitoring and intervention begins to mirror the Orwell-envisioned dystopian society where First Amendment rights are relinquished and Big Brother becomes ultra-absorbed in every key stroke. On the other hand, some are willing to sacrifice freedom to ensure safety, citing the potential prevention of deadly crimes, or the role the Internet could play in stopping recruitment for organizations such as the Islamic State or the Ku Klux Klan.12 Although it is a delicate balance, the overt act definition should be narrowed in order to prevent thought crime prosecution in the Internet age. No simple answer exists, though continuing precedent will hopefully find stable ground able to ensure society’s safety without ridding the world of our constitutionally guaranteed free thought and choice.

Robert Campbell, a 2017 J.D. candidate, is a staff writer for Juris as well as a team lead for Duquesne Law Review.

Robert has written extensively about the often-controversial role of police in law enforcement, and has also worked on several employment discrimination cases as an extern with the Pennsylvania Human Relations Commission. Upon graduation, Robert hopes to work in a firm and continue focusing on employment law.

9 Cramer v. United States, 325 U.S. 1, 6 (1945).

10 Conor Friedesdorf, Should Mom-and-Pops That Forgo Gay Weddings Be Destroyed?, Atlantic, April 3, 2015, http://www. theatlantic.com/politics/archive/2015/04/should-businesses-thatquietly-oppose-gay-marriage-be-destroyed/389489 (After pizza shop owners wouldn’t cater to a gay wedding, an Indiana citizen, Jessica Dooley tweeted, “Who is going to Walkerton, IN, to burn down #memoriespizza w me?”)

11 The Associated Press, Arizona House speaker won’t hear rioting bill, Ariz. Capitol Times, Feb. 27, 2017, http://azcapitoltimes.com/ news/2017/02-27/arizona-house-speaker-wont-hear-rioting-bill/ 12 See Lauren Sacharoff, Conspiracy as a Contract, U.C. Davis L. Rev. 405 (November, 2016).

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Big Brother & Privacy: Is Nothing Sacred?

By Ian Grecco, Executive Editor

If the American Dream is privacy in the form of a house and land, how are we able to maintain privacy from Big Brother1 in the current era where every bit of information is being gathered and saved? Technology is law enforcement’s fast track to data that can be used against us.

Privacy is a safeguard derived from the Fourth Amendment, which provides that a person is free from unreasonable searches and seizures. The Supreme Court has made many monumental decisions in factually unique cases that concern the Fourth Amendment. Absent these rulings, America’s system of checks and balances between the branches of government does not provide much protection for people regarding surveillance methods. Both the federal government and the state, through local law enforcement, have used technology to collect data and to investigate. This plethora of data collection continues to expand as new technology emerges. As we use these technologies for personal use and enjoyment, we diminish our true privacy from Big Brother.

The federal government has recently been scrutinized for its unethical data collection behaviors. Over three years ago, Edward Snowden provided a detailed account that exposed the National Security Agency’s (NSA) routine practice of ordering and gathering millions of phone records from Verizon.2 Snowden further informed Americans that the NSA had infiltrated servers of nine Internet platforms, including Facebook, Google, Microsoft and Yahoo, to conduct surveillance on certain communications.

This program is known as Prism.3 The program pulls data from the top servers that it targets, and gathers the data at the NSA’s database. Snowden exposed Prism’s abilities to compile all of a person’s data from Google searches, online purchases, and frequently visited websites.4 However, the Federal Intelligence Surveillance Act (FISA) of 2008 limits how the NSA can use Prism.5 Section 702 of the FISA Amendments forbids an agency from intentionally targeting: (1) any domestic person; (2) any person outside the (Continued on page 8)

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U.S. for purposes of targeting a person within the U.S.; (3) any U.S. person reasonably believed to be outside of the U.S.; and (4) any communication in which the senders and receivers are domestically located.6 The NSA’s meta-data collection through Prism was challenged in a federal court. Larry Klayman, a government watchdog activist, joined by others brought the suit claiming that the data collection of the plaintiffs’ call records is a violation of the Fourth Amendment.7 Despite the district court ruling for an injunction to halt Prism, the court of appeals reversed the injunction for lack of standing, as it would be nearly impossible to determine whether the NSA collected the plaintiffs’ metadata.8 Additionally, the burden for granting a preliminary injunction is high, and the plaintiffs did not establish a “substantial likelihood of success on the merits.”9 The case was ultimately remanded, but it is unlikely the case will make it past the limited discovery stage due to Prism’s secrecy.10 Despite Snowden’s revelation and increased opposition to these surveillance methods, Americans remain susceptible to new surveillance tactics. President Trump publicly insisted on the use of surveillance upon certain mosques and persons of Middle Eastern descent, specifically Syrians.11 Additionally, reports have linked President Trump to newly developed surveillance methods: facial recognition and biometric surveillance.12 One of President Trump’s Homeland Security transition officials, Michael Dougherty, was CEO of the Secure Identity & Biometrics Association, an association that represents facial recognition firms. One of the firms, Morpho, has developed a program that stores the identities of potential terrorists through facial recognition technology.13 Although there is no certainty that President Trump would use the program, this surveillance would be in line with his proposed national security agenda.

Data collection is not limited to the passive retrieval by the NSA. More active methods of surveillance, such as drones, have recently drawn attention by critics concerned with privacy.

Drones are highly advanced surveillance devices that can be equipped with infrared cameras, heat sensors, and live-feed cameras.14 The Federal Aviation Modernization and Reform Act of 2012 made the drone licensing process for consumers and law enforcement agencies less stringent.15 In fact, Border Patrol, the agency with the largest number of drones in the US, has developed an inter-agency co-op program to share drones,

but has failed to record the increasing use.16 In 2013, the federal government gave $1.2 million to local police departments to spend on drones.17 Additionally, USA Today reported that for nearly a decade, the Pentagon has deployed domestic drones for surveillance for non-military matters.18 Without any substantial oversight of the usage of drones, government entities will continue to use drones to gather information about Americans.

As for people’s privacy from state and local law enforcement officers, American courts historically have recognized the privacy of persons, including freedom from law enforcement searches of a person’s body and home, absent a warrant. Although we are generally safe from an officer’s physical intrusion into homes, we are not as free from state and local government’s data collection methods and surveillance techniques. We all know one of the infamous safeguards of a Miranda19 warning upon arrest: Everything you say can be used against you in court.20 Ironically, we now live in a world where law enforcement may use our stored data and statements not said in the presence of law enforcement against us in court. Recent cases about data stored on cellular phones, drones, Amazon Echos, and utility meters, have garnered significant attention from citizens and law enforcement.21 A tension is beginning to formulate between legislatures and courts as to whether they should grant or deny law enforcement the investigative power to use these new devices. As Americans continue to use new in-home devices, synonymously known as the Internet of Things,22 law enforcement may be able to gather personal data stored on these devices. The ultimate question now exists: Do we truly have an expectation of privacy from any government, federal or state?

Recent criminal cases have highlighted law enforcement’s desire to gather any and all stored information within homes of criminals. A recent investigation of a murder drew public attention when law enforcement requested information stored in an Amazon Echo.23 Even though the Echo only keeps 60 seconds of recorded data, law enforcement sought the stored information to possibly lead to more evidence of the murder.24 Due to this minimal yield, critics argue that this is a serious infringement upon a person’s Fourth Amendment rights.25 In that same case, police sought records of the accused’s water usage in the home, which was equipped with a smart meter.26 Police were able to analyze an excessive amount of water usage in the early hours (Continued on page 9)

As Americans continue to use new in-home devices, synonymously known as the Internet of Things, 23 law enforcement may be able to gather personal data stored on these devices.

The ultimate question now exists: Do we truly have an expectation of privacy from any government, federal or state?

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of the day the murder took place, possibly suggesting that the accused used water to wash blood from surfaces.27 Controversial privacy issues about law enforcement’s data collection do not exist solely within one’s home. Law enforcement has recently sought information stored on iPhones, a potential landmine for personal data. The renowned San Bernardino case,28 where law enforcement requested Apple to break the encryption of an iPhone to reveal terroristic plots, is only the tip of the iceberg for privacy problems.29 If a phone is not encrypted with a password, law enforcement, with a valid warrant, can sieve through a suspect’s personal information.30 The applications on smart phones provide more information for investigations. For instance, Google now has a Timeline feature that could allow “investigators to request detailed information about where someone has been—down to the longitude and latitude—over the course of years.”31 This could be extremely useful for law enforcement to view a specific window of a suspect’s travel, specifically, when the suspect used Google Maps.32

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3 4

5 6 7 8 9 10 11

12 13

14 15 16

17

George Orwell (1949), Nineteen Eighty-Four.

US & Canada, Edward Snowden: Leaks that exposed US spy programme, BBC News, Jan. 17, 2014, http://www.bbc.com/news/ world-us-canada-23123964.

Id. James C. DeZao, National Security Agency & the 4th Amendment, Seton Hall Law, Dec. 15, 2014, http://scholarship.shu.edu/cgi/ viewcontent.cgi?article=1763&context=student_scholarship.

Id. Id. Obama v. Klayman, 800 F.3d 559, 561 (D.C. Cir. 2015).

Id. at 563.

Id. (quoting Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891, 893 (D.C. Cir. 2010)).

Klayman, 800 F.3d at 565.

Lee Fang & Ali Winston, Trump’s Homeland Security Team Likely to Emphasize Facial Recognition and Biometric Surveillance, The Intercept, Jan. 19, 2017, https://theintercept.com/2017/01/19/ trump-dhs-surveillance/.

Id. Rawlson King, Trump adds biometrics industry veteran to transition team, Biometric Update, Nov. 28, 2016, http://www. biometricupdate.com/201611/trump-adds-biometrics-industryveteran-to-transition-team.

Electronic Frontier Foundation, Surveillance Drones, https://www. eff.org/issues/surveillance-drones.

Id. Craig Timberg & Craig Whitlock, Border-patrol drones being borrowed by other agencies more often than previously known, Washington Post, Jan. 14, 2014, https://www.washingtonpost. com/world/national-security/border-patrol-drones-beingborrowed-by-other-agencies-more-often-than-previouslyknown/2014/01/14/5f987af0-7d49-11e3-9556-4a4bf7bcbd84_ story.html?utm_term=.c0ba750ae8fa.

Conor Friedersdorf, The Rapid Rise of Federal Surveillance Drones Over America, The Atlantic, March 10, 2016, https:// www.theatlantic.com/politics/archive/2016/03/the-rapid-rise-offederal-surveillance-drones-over-america/473136/.

In conclusion, as technology continues to grow and as consumers use the technology, consumers provide law enforcement more tools for investigations. The Internet can be an extremely useful tool as life would be unimaginable without it. However, users should beware that the government collects massive amounts of data from its use, and it will only accelerate in the future. The devices we hold close to us are now law enforcement’s best tool to be used against us.

Ian Grecco, a 2017 J.D. candidate, is an executive editor of Juris as well as a staff member for Duquesne Law Review where he wrote extensively about the constitutionality of the Iran nuclear deal. His interests in national security and government stem from his B.A. in Intelligence Studies. Ian remains active in the community as a law clerk for a Pittsburgh law firm, a member of Duquesne’s Urban Development Practicum, an intern for State Representative Dan Miller, and a volunteer wrestling coach at Brockway High School.

18 Gregg Zoroya, Pentagon report justifies deployment of military spy drones over the U.S., USA Today, March 9, 2016, http://www. usatoday.com/story/news/nation/2016/03/09/pentagon-admitshas-deployed-military-spy-drones-over-us/81474702/.

19 Referring to the Supreme Court case of Miranda v. Arizona, 384 U.S. 436 (1966).

20 Miranda, 384 U.S. at 479.

21 See Elizabeth Weise, Police ask Alexa: Who dunnit?, USA Today, Dec. 27, 2016, http://www.usatoday.com/story/tech/ news/2016/12/27/amazon-alexa-echo-murder-case-bentonville-hottub-james-andrew-bates/95879532/.

22 Ian Grecco, The Internet of Things Takes Over: Are We Sacrificing Our Privacy and Security for Convenience?, Juris, Oct. 27, 2015, http://jurismagazine.com/the-internet-of-things-takes-over-are-wesacrificing-our-privacy-and-security-for-convenience/.

23 Weise, supra note 20.

24 Id. 25 Id. 26 Elliot C. McLaughlin & Keith Allen, Alexa, can you help with this murder case?, CNN, Dec. 28, 2016, http://www.cnn.com/2016/12/28/ tech/amazon-echo-alexa-bentonville-arkansas-murder-case-trnd/.

27 Id. 28 The FBI sought help from Apple to break the encrypted information stored on the suspect’s IPhone. Apple refused to help, despite subpoenas by the prosecutor. In the end, the FBI was able to break the encryption using its own techniques. Russell Brandom, Apple’s San Bernardino fight is officially over as government confirms working attack, The Verge, March 28, 2016, http://www.theverge. com/2016/3/28/11317396/apple-fbi-encryption-vacate-iphoneorder-san-bernardino.

29 Id. 30 Ellen Nakashima and Barton Gellman, As encryption spreads, U.S. grapples with clash between privacy, security, Washington Post, April 10, 2015, https://www.washingtonpost.com/world/ national-security/as-encryption-spreads-us-worries-about-accessto-data-for-investigations/2015/04/10/7c1c7518-d401-11e4-a62fee745911a4ff_story.html?utm_term=.996b5945da9d.

31 Jana Winter, How law enforcement can use Google timeline to track your every move, The Intercept_, Nov. 6, 2015, https://theintercept. com/2015/11/06/how-law-enforcement-can-use-google-timeline-totrack-your-every-move/.

32 Id.

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Expanding the American Dream: The Evolution of Employment Laws in America

By Julie Williams, Associate Editor

When many of us are asked to describe the American Dream, the answer often comes in the form of a 1950s family—a successful career, modest home, and loving family. Interestingly, though, this vision—in particular, the successful career—was not available to many American citizens. A lack of legislation enabled employers to discriminate within hiring, firing, and pay grades. While there are still classes of unprotected persons in the workforce, America has come a long way in fighting employment discrimination. This article will discuss the evolution of employment laws in the United States, and the classes of persons for which these laws provide protection.

One of the first major employment laws was enacted on the heels of the 1950s. The Equal Pay Act of 1963 (“EPA”) requires that men and women be given equal pay for equal work in the same establishment.1 It is not necessary that the jobs are

identical, but they must be substantially equal.2 It is job content, not job titles, that determine whether jobs are substantially equal. The EPA specifically requires that employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort, responsibility, and that are performed under similar working conditions within the same establishment.3 Arguably, the most significant and well-known employment law is Title VII of the Civil Rights Act, which was enacted in 1964.

This federal law prohibits employers from discriminating against employees based on sex, race, color, national origin, and religion.4 It generally applies to employers with fifteen or more employees, including federal, state, and local governments.5 Title VII has been the focus of many judicial decisions, and can be credited as being the main line of defense of employment discrimination.6 (Continued on page 11)

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While there will be challenges ahead, we must all believe that one day the American Dream will be attainable by all.

Three years after the enactment of Title VII, the Age Discrimination in Employment Act (“ADEA”) became law.7 The ADEA protects certain applicants and employees 40 years of age and older from discrimination based on age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.8 It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination. It is important to note that such discrimination can occur when the victim and the person who committed the discrimination are both over the age of 40 years old.9 In 1990, the Americans with Disabilities Act (“ADA”) became law.10 The ADA prohibits discrimination against qualified individuals with disabilities in all areas of public life, including jobs, education, transportation, and all public and private places that are open to the general public.11 In general, the employment provisions of the ADA require the following: equal opportunity in selecting, testing, and hiring qualified applicants with disabilities; job accommodation for applicants and workers with disabilities when such reasonable accommodations would not impose an undue hardship on the employer; and equal opportunity in promotion and benefits.12 The Family and Medical Leave Act of 1993 (“FMLA”) is a federal law requiring covered employers to provide employees job protection and unpaid leave for qualified medical and family reasons.13 Although this law is not necessarily addressing discrimination, it focuses on the protection of rightfully-gained employment. Eligible employees are entitled to 12 workweeks of leave in a 12-month period for: the birth of a child; for the care of an employee’s spouse, child, or parent who has a serious health condition; a serious health condition that makes the

1

U.S. Equal Employment Opportunity Commission, Facts about Equal Pay and Compensation Discrimination (2010), https://www. eeoc.gov/eeoc/publications/fs-epa.cfm.

2 Id. 3 Id. 4 U.S. Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964 (2015), https://www.eeoc.gov/laws/ statutes/titlevii.cfm.

5 Id. 6 On March 10, 2017, a majority of a split Eleventh Circuit panel affirmed the dismissal of a Title VII claim for sexual orientation discrimination. See, The National Law Review, Sexual Orientation Discrimination is Not Prohibited by Title VII, Eleventh Circuit Rules (2017), http://www.natlawreview.com/article/sexualorientation-discrimination-not-prohibited-title-vii-eleventhcircuit-rules.

employee unable to perform the essential functions of his or her job; and any qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a covered military member on active duty.14 Additionally, employees may also be entitled to 26 workweeks of leave during a 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, child, parent, or next of kin.15 Each of the employment laws discussed have been challenged numerous times, and expansive amounts of case law clarify their coverage. With each of these steps, though, we are hopefully moving toward an even better country, in terms of employment. Due to the aforementioned laws, the American Dream—or the career aspect of it—is becoming available to more citizens. We still have progress to make. In due time, we will likely see protection for the LGBTQ community and persons who have been convicted as felons. The results of the November 2016 election cause great concern that such protections will never be afforded, or worse yet, protected classes will begin to lose ground. But we must not be pessimistic. While there will be challenges ahead, we must all believe that one day the American Dream will be attainable by all.

Julie Ann Williams is a third-year law student at Duquesne University School of Law. She is a native of Ohio and completed her undergraduate degree at Washington & Jefferson College.

In addition to Juris, Julie is also a Student Articles Editor of the Duquesne University Business Law Journal, and a member of the Corporate Law Society and Labor and Employment Law Society, as well as a Student Ambassador for the School of Law.

7

United States Department of Labor, Age Discrimination (2017), https://www.dol.gov/general/topic/discrimination/agedisc.

8 Id. 9 Id. 10 United States Department of Labor, Employers’ Responsibilities (2017), https://www.dol.gov/general/topic/disability/ employersresponsibilities.

11 Id. 12 Id. 13 United States Department of Labor, Family and Medical Leave Act (2016), https://www.dol.gov/whd/fmla.

14 Id. 15 Id.

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‘Forgiveness’ Remedies and the American Dream

By Natalie Tupta, Staff Writer

The United States has been heralded as the land of endless opportunity, regardless of background. However, for those arrested, both wrongfully and rightly, the opportunity to pursue the American Dream is often severely stunted. Long after people convicted of crimes pay their debt to society by paying court fines and serving prison time, criminal records prevent them from achieving the American Dream. There are, however, a few “forgiveness” remedies under Pennsylvania law that allow people to erase criminal records of past mistakes so they can remove the obstacles to achieving the American Dream.

There are many ways criminal records prevent a person from taking advantage of opportunities to create a better life for themselves and their families.1 For example, a person may be discriminated against by a potential employer based on certain convictions being on their record.2 The person may have trouble seeking higher education opportunities, because some universities make admissions decisions about applicants based on criminal records.3 The person may also be prevented from seeking professional licensures. Licensing agencies take certain convictions into account, so, nurses and lawyers, for example, may not have certain convictions on their record if they wish to be licensed.4

Although only certain convictions may legally bear on decisions, in practice, many decision makers may be swayed from offering opportunities to individuals who have been charged with crimes, even if there was no conviction or the crimes do not bear on the decision to be made. Therefore, even individuals who have no convictions on their record wish to avoid the perception of criminal character by decision makers.

Pennsylvania offers three forgiveness remedies There are three statutory mechanisms in Pennsylvania for clearing criminal records. The first “forgiveness” remedy Pennsylvanians may seek is an expungement, which erases charges or entire cases from a person’s record where there was no conviction or guilty plea.5 The second “forgiveness” remedy is called a sealing, which provides a way to have one’s records of certain misdemeanor convictions sealed from everyone except the State Police.6 The most complex “forgiveness” remedy is a pardon, which is the appropriate remedy if a person has been convicted of or plead guilty to a felony or certain misdemeanors.7 This process takes up to four years to fully complete and involves a thorough (Continued on page 13)

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Organizations like Duquesne Law’s Civil Rights Clinic that help people take advantage of the forgiveness remedies are helping people move on from their past mistakes.

investigation by the Pennsylvania Board of Pardons (BOP) to determine if the person is deserving of a pardon.8 If the BOP recommends that the individual receive a pardon, the governor reviews the case and decides whether to grant the person a pardon.9

Challenges to taking advantage of the forgiveness remedies Although these mechanisms for clearing one’s record help some people be able to pursue the American Dream, there are still many hurdles to overcome in improving access to these remedies and ensuring the remedies’ effectiveness.

First, people do not need an attorney to seek the forgiveness remedies, but advice of counsel can be a valuable resource in navigating the complex processes of applying for these benefits. Many people may not even know these remedies exist without information from an attorney.

Second, many who are eligible for forgiveness remedies are not able to afford an attorney or the remedies themselves, because their criminal records have prevented them from pursuing economic opportunities. Essentially, these individuals are responsible for paying the Commonwealth to remove the very records that trap them in the cycle of poverty. Duquesne Law clinics and Neighborhood Legal Services are two agencies in Pittsburgh that provide free legal services to individuals seeking forgiveness remedies, but these agencies do not have the capacity to serve every person seeking to clear his or her criminal record.

Third, forgiveness remedies do not remove media coverage of criminal charges or erase records kept by private background companies. Anyone is still able to search a person’s name

1

2

3

See Patricia Laya, Branded as Untouchable by a Felony Rap, Bloomberg, 2017, https://www.Bloomberg.Com/features/2017new-unemployment/?Utm_source= nextdraft&utm_ medium=email#florida.

18 Pa. Cons. Stat. § 9125 (Lexis 1982) (allowing employers to consider applicants’ felony or misdemeanor convictions that bear on the applicants’ suitability for employment).

See e.g., West Liberty University, Requirements, http://westliberty. edu/admissions/requirements (last visited Apr. 9, 2017) (“Generally, only felonies or violent crimes committed in the five years prior to application will be considered.”).

and find news stories that reported on crimes the person was charged with committing. Additionally, there are private background check companies that gather public criminal records to create a database. When people are granted forgiveness, a court orders that state agencies destroy all records of those charges, but private companies are not required to destroy their records. Therefore, the forgiveness remedies do not completely erase criminal records from public view, so they may be an inadequate remedy in some cases.

Forgiveness remedies and criminal justice reform Advocates see the way we handle criminal records as an important part of the criminal justice reform movement.

Organizations like Duquesne Law’s Civil Rights Clinic that help people take advantage of the forgiveness remedies are helping people move on from their past mistakes. State legislatures also play a crucial role in ensuring their states offer fair forgiveness remedies, because the legislators alone have the power to establish forgiveness remedies. People with criminal records and their advocates urge elected officials to enact laws that allow Pennsylvanians who have been involved in the criminal justice system to pursue the American Dream for themselves and their families.

Natalie Tupta, a 2018 J.D. candidate, is a member of Duquesne’s Civil Rights Clinic. She holds an M.A. in English as a Second Language. Natalie is the Vice President of the Public Interest Law Association and a member of the Duquesne Law Review. She is interested in using sociolinguistic theory to advance criminal justice reform and to protect civil rights.

4 18 Pa. Cons. Stat. § 9124(c) (Lexis 1979) (explaining that occupational licensing agencies may consider any felony but only job-related misdemeanor convictions).

5 18 Pa.C.S. § 9122 (Lexis 2012).

6 18 Pa.C.S. § 9122.1 (Lexis 2016).

7 Pa. Const. Art. IV, § 9; 71 P.S. § 299 (Lexis 1995); 37 Pa. Code § 81.1 et seq.

8 71 P.S. § 299(a).

9 Id.

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The American Dream: Sponsored By…

By Kyle Steenland, Staff Writer

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The American Dream: Sponsored By… (Continued from page 14)

James Truslow Adams coined the term “American Dream” when expressing an envisioned land where “life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement.”1 Such a land possesses a foundation of strong economic freedom. Historically, individuals would seize success through entrepreneurial ventures, like family-owned businesses.2 Eventually, this business would be passed down to the next generation, to provide once more. This trend of business accompanying lineage is now fading. 3 Thriving off lax enforcement, the economic theory of scope, and millennial malaise, corporations are purchasing mom and pop stores. This article explores the new trend of quasi-oligopolies cornering various industries, and its implications on the American Dream.

Two market conditions exist that hamstring the success of small businesses: Monopolies and oligopolies.4 Monopolies are a theoretical construct in which only one company may offer products and services to the public.5 Classic monopolies consist of companies like Standard Oil and U.S. Steel, whose dominion collapsed due to antitrust legislation.6 Oligopolies exist along a similar continuum. An oligopoly is a market condition that exists when there are few sellers, and as a result they can greatly influence price and other market factors.7 Two pieces of antitrust legislation, the Sherman and Clayton Acts, regulate the creation of monopolies and oligopolies. The Sherman Act outlaws “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.”8 The Clayton Act prohibits mergers and acquisitions where the effect “may be substantially to lessen competition, or tend to create a monopoly.”9 Despite the existence of such legislation, it has not stopped corporate amalgamations from dominating nearly every industry from automobiles, where only two dozen companies have market control,10 to food products, where less than half a dozen have control.11 The beer industry provides an excellent example of how conglomerates subsume power.

An industry that, ostensibly, began anew after the repeal of prohibition, now includes more than seven thousand licensed breweries.12 However, the beer industry epitomizes the harmful effects of corporate conglomeration.13 Despite the great number of breweries, the market share of those seven thousand pale in comparison the 43.5% held by Anheuser-Busch InBev, and 25.1% held by MillerCoors.14 These malt mammoths have acquired their monstrous market control by buying-out competitors, including smaller breweries. Recently, smaller family operated breweries have surged by providing higher quality and locally sourced

products in a movement named “micro-brewing.”15 Yet with more of these local businesses than ever before, they represent just 12% of the market.16 Worse yet, many family operated breweries relinquish control to Anheuser-Busch or Miller in exchange for a handsome payday. Companies such as Goose Island, Elysian Brewing, and Revolver Brewing all began as family owned and operated breweries, but ultimately ended up lining their coffers with corporate capital.17 Nearly every industry within America today echoes this same narrative: corporations slowly subsuming competitors and families alike, until an oligopoly exists. One would believe the aforementioned antitrust legislation would hamper this phenomenon. In actuality, optimal conditions for oligopolies have grown from lax enforcement of this legislation, the rise in popularity of an economic theory, and a shift in cultural mentalities.

The United States’ antitrust laws are enforced by three methods: (1) criminal and civil actions brought by the Department of Justice’s Antitrust Division; (2) civil enforcement actions brought by the FTC; and (3) private parties bringing suit.18 The primary means of enforcement rest on the shoulders of the DOJ. Unfortunately, 2016 enforcement statistics, offering information on the number of civilians and corporations charged, as well as fines collected, illustrate that enforcement was at a ten-year low across all metrics.19 Consider the paltry $399 million in fines and penalties collected in 2016 by the Department of Justice compared to the yearly average of $1.08 billion.20 This lax enforcement opens the door for corporations to conglomerate.

Combine lax enforcement with a recent surge in the economic theory of scope and we begin to see how oligopolies have grown.21 The theory of scope states that the average total cost of production decreases as a result of increasing the number of different goods produced.22 Essentially, it is advantageous for a corporation to diversify, for the cost of production of goods gets spread among those varied goods.

The cost of production decreases, in part, because the overhead costs for common assets, like personnel and warehouse space, have already been invested.

To make matters worse, data collected since the 1970s indicates a scary cultural shift where each subsequent generation is less willing to work as hard as its predecessor and less accepting of the opportunity for overtime hours.23 Most relevantly, the study revealed that while materialism has increased greatly since the Boomer generation, work ethic has

Combine lax enforcement with a recent surge in the economic theory of scope and we begin to see how oligopolies have grown. The theory of scope states that the average total cost of production decreases as a result of increasing the number of different goods produced.

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The American Dream: Sponsored By… (Continued from page 15)

decreased at an alarming rate in Millennials.24 This shift supplies the final piece of the corporation conglomeration puzzle.

Individuals are now more willing than ever to take the corporate cash and dash into the horizon without considering the societal impact of a corporation subsuming another product.

This landscape does not comprise the land of opportunity of which Adams spoke. The opportunity to succeed through a small businesses now ceases to exist at a corporate oligopoly’s whim. Small businesses are unable to compete with the amalgams armed with vast production and distribution resources. Instead of investing in research and development, a corporation simply subsumes the company when a new idea has sparked. Why create the next great beer when you can just buy the manufacturer of the current great beer? The recipe of lax enforcement, corporate diversification, and contemporary mentalities abrades the economic possibilities of tomorrow. It is not the Dream that has changed, but the system. The power to stop this damaging trend rests in each of us, and now is the time to take action.

Small businesses are unable to compete with the amalgams armed with vast production and distribution resources. Instead of investing in research and development, a corporation simply subsumes the company when a new idea has sparked.

Kyle Steenland is a first year law student at Duquesne University School of Law. Born in New Jersey, and raised in Allentown, PA, Kyle completed his undergraduate degree at the Pennsylvania State University. Currently, Kyle interns with the Northampton County Courthouse. Upon completion of his degree, Kyle hopes to pursue a career within the criminal justice system.

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7 8 9 10

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16

The American Dream, Library of Congress, http://www.loc.gov/ teachers/classroommaterials/lessons/american-dream/students/ thedream.html (last visited April 20, 2017).

American Dream, Investopedia, http://www.investopedia.com/ terms/a/american-dream.asp (last visited April 20, 2017).

Small Business Facts and Data, Small Business and Entrepreneurship Council, http://sbecouncil.org/about-us/facts-and-data/ (last visited April 20, 2017).

Lewis Humphries, How Monopoly Antitrust Laws Affect Consumers, Investopedia, http://www.investopedia.com/financial-edge/1012/ why-monopolies-can-be-positive-for-the-consumer.aspx (last visited April 20, 2017).

Monopolistic Market, Investopedia, http://www.investopedia.com/ terms/m/monopolymarket.asp (last visited April 20, 2017).

Andrew Beattie, A History of U.S. Monopolies, Investopedia, http:// www.investopedia.com/articles/economics/08/hammer-antitrust.asp (last visited April 20, 2017).

Dictionary, “oligopoly,” http://www.dictionary.com/browse/ oligopoly?s=t (last visited April 20, 2017).

The Sherman Anti-Trust Act, 26 Stat. 209, 51 Cong. Ch. 647, 26 Stat.

209, 51 Cong. Ch. 647 The Clayton Antitrust Act, 63 P.L. 212, 38 Stat. 730, 63 Cong. Ch. 323, 63 P.L. 212, 38 Stat. 730, 63 Cong. Ch. 323 Melanie May, Who owns whom in the car industry, Linkedin, Jan. 15, 2016, https://www.linkedin.com/pulse/who-owns-car-industrymelanie-may (last visited April 20, 2017).

Chris Miles, 10 Corporations Control Almost Everything You Buy – This Chart Shows How, Information Clearing House, Nov. 4, 2013, http://www.informationclearinghouse.info/article36743.htm (last visited April 20, 2017).

Number of Breweries, Brewers Association, https://www. brewersassociation.org/statistics/number-of-breweries/ (last visited April 20, 2017).

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13 Stack Martin, A Concise History of America’s Brewing Industry, Economic History Association, July 4, 2003, https://eh.net/ encyclopedia/a-concise-history-of-americas-brewing-industry/ (last visited April 20, 2017).

14 The U.S. Beer Industry, National Beer Wholesalers’ Association, https://www.nbwa.org/resources/industry-fast-facts (last visited April 20, 2017).

15 Stack, supra note 13 16 Abby Berman Cohen, Press Release: Small and Independent Brewers Continue To Grow Double Digits, Brewers Association, March 15, 2016, https://www.brewersassociation.org/press-releases/smallindependent-brewers-continue-grow-double-digits/ (last visited April 20, 2017).

17 Dave Infante, The Great Craft Beer Sellout, Thrillist, Oct. 13, 2016, https://www.thrillist.com/drink/nation/craft-breweries-selling-out-bigbeer-companies (last visited April 20, 2017).

18 Antitrust Enforcement and the Consumer, U.S. Department of Justice, https://www.justice.gov/atr/file/800691/download (last visited April 20, 2017).

19 Criminal Enforcement Trends Charts Through Fiscal Year 2016, U.S. Department of Justice, https://www.justice.gov/atr/criminalenforcement-fine-and-jail-charts (last visited April 20, 2017).

20 Id. 21 Economies of scale and scope, The Economist, Oct. 20, 2008, http:// www.economist.com/node/12446567 (last visited April 20, 2017).

22 Id. 23 Tom Jacobs, Millennials: A Generation With Unrealistic Expectations, Pacific Standard, May 1, 2013, https://psmag.com/millennialsa-generation-with-unrealistic-expectations-70e7a94f3ed3#. mnookncdu1 (last visited April 20, 2017).

24 Id.

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The Dream of the Small Business

By Drew Rummel, Staff Writer

Everyone dreams. Children dream of becoming astronauts or firemen. As they grow, those dreams might pivot towards the luxuries of adulthood, like driving or going to an R-rated movie.

The dreams then switch back to being career oriented—this time with more wisdom. Regardless of the context of the dreams, the ultimate goal is to succeed. No one dreams of failure.

One path to success has, historically, been the development of a small business. Whether it is for personal autonomy or public innovation, small businesses are the backbone of the American Dream.1 Despite setbacks, entrepreneurship is on the rise in the United States.2 Moreover, young people are gravitating towards tech “start-ups” due to technological ubiquity and distrust of job security in traditional careers.3 The American Dream of autonomy harks back to colonial times.4 Local farms were the first small businesses; born from agrarian philosophy, farmers produced and traded to survive.5 Founding fathers, like President Jefferson, believed farmers to be “the chosen people of God.”6 With the exploitation of slave labor, these small farms became the agricultural enterprises of the 19th Century.7 Innovations in technology and industry grew rapidly after the Civil War.8 During the Second Industrial Revolution, between 1870 and 1914, electricity began its reign as the dominant energy source, mass transportation from canals, railroads, and automobiles made the growing nation smaller, and migrants flocked to cities, diminishing the agricultural complex.9 Manufacturing firms and shipping businesses grew

contemporaneously as the number of markets rose, and it became easier to reach those markets.10 Corporations inflated and, subsequently, consolidated, becoming mass-production facilities, killing competition.11 The public was concerned about these corporate behemoths, something they had never been familiar with before, leading to the rise of the Progressive Movement.12 American anti-monopolism made its way to the legislature, which enacted the Sherman Act and Clayton Act in 1890 and 1914, respectively, in hopes of “protecting the small dealer while simultaneously aiding consumers.”13 The Sherman Act was designed to restore competition, and sought to prohibit “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce . . . .”14 Practices like price fixing and market dividing are generally thought to restrain commerce. The Supreme Court would later interpret this act to make illegal only the “unreasonable restraint on interstate commerce.”15 The Clayton Act picks up where the Sherman Act fails, by prohibiting mergers and acquisitions that “may be to substantially lessen competition . . . or tend to create a monopoly.”16 Americans became ambivalent to the rise of big business over time, married to the tension between the romanticized small town businesses and the admired corporate conglomerates.17 And so the economy continued to grow by leaps and bounds in the 20th Century while corporations ate up small business owners.18 Big business brought increased employment.19 (Continued on page 18)

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The Dream of the Small Business (Continued from page 17)

In industries overtaken by large corporations, small businesses declined. For example, the idyllic farmer once ruled rural America, and now the number of farms have decreased while the size of farms has increased—a telltale sign large corporations have infiltrated the industry.20 There is hope yet for the small business. Younger entrepreneurs are opting toward startup companies, particularly dealing with technology.21 Today’s younger people have a much stronger understanding of technology because they were exposed to it at a much younger age.22 Surely, that understanding has made it a go-to for an easier “startup.”

Startups don’t require much beyond technological knowledge, an Internet connection, and, most importantly, the determination to make a difference on its own terms.23 As population grows, small businesses grow.24 Small businesses account for 54% of all sales of goods and services in the U.S.25 Of all of the jobs in existence, small business provides 55% of them.23 Moral of the story: Consider your local small business when you buy your daily needs.

Drew Rummel, a 2019 JD/MBA candidate, is a staff writer for Juris. He is also a member of the Duquesne Intellectual Property Law Association, and a student member of the Pittsburgh Intellectual Property Law Association. He has written on the legal issues behind President Trump’s immigration ban and Hillary Clinton’s email debacle. He is interested in pursing a career within corporate, intellectual property, or healthcare law.

1

Scott Shane, Why Americans Love Small Business, Entrepreneur, March 22, 2013, https://www.entrepreneur.com/article/226176.

2 Sophie Wade, Behind the Rise of Entrepreneurship, Fortune, June 12, 2014, http://fortune.com/2014/06/12/behind-the-rise-ofentrepreneurship/ 3 Diane Propsner, The Rise of Entrepreneurship Among College/ Graduate Students and Young Professionals, The Huffington Post, June 24, 2016, http://www.huffingtonpost.com/diane-propsner/therise-of-entrepreneurs_b_10658122.html 4 Mike Moffatt, The History of Small Business in the United States, ThoughtCo., March 27, 2017, https://www.thoughtco.com/history-ofsmall-business-in-the-us-1147913.

5 Id. 6 Linda Malone, Reflections on the Jeffersonian Ideal of an Agrarian Democracy and the Emergence of an Agricultural and Environmental Ethic in the 1990 Farm Bill, Stanford Environmental Law Journal, Vol. 12, No. 3, 1993.

7 Gary M. Walton & James F. Shepard, The Economic Rise of Early America, Cambridge University Press, 1979.

8 Ryan Engelman, The Second Industrial Revolution, 1870-1914, U.S. History Scene, http://ushistoryscene.com/article/second-industrialrevolution/ (last visited April 11, 2017) 9 Donald J. Smythe, The Rise of the Corporation, the Birth of Public Relations, and the Foundations of Modern Political Economy, 50 Washburn L.J. 635, 646 (2011).

10 Id. 11 Id. 12 Richard C. Schragger, The Anti-Chain Store Movement, Localist Ideology, and the Remnants of the Progressive Constitution, 19201940, 90 Iowa L. Rev. 1011, 1071 (2005) 13 Id. at 1058

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14 The Sherman Anti-Trust Act, 26 Stat. 209, 51 Cong. Ch. 647, (1890) 15 United States v. Yellow Cab Co., 332 U.S. 218, 67 S. Ct. 1560 (1947) 16 The Clayton Antitrust Act, 63 P.L. 212, 38 Stat. 730, 63 Cong. Ch. 323 (1914); 63 P.L. 212, 38 Stat. 730, 63 Cong. Ch. 323 (1914) 17 Schragger, supra 18 Christopher Conte, Small Business in U.S. History, IIP Productions, http://iipdigital.usembassy.gov/st/english/ publication/2008/08/20080814215602xjyrrep0.6187664. html#axzz4bp5l5YAC (last visited April 11, 2017).

19 Id. 20 Roberto A. Ferdman, The decline of the small American family farm in one chart, The Washington Post, Sept. 16, 2014, https://www. washingtonpost.com/news/wonk/wp/2014/09/16/the-declineof-the-small-american-family-farm-in-one-chart/?utm_term=. c3bb9b6c2af7 21 Note 3, supra.

22 Diana & James Oblinger, Is It Age or IT: First Steps Toward Understanding the Net Generation, EDUCAUSE, Oct. 24, 2012, http://judicialaffairs.tamucc.edu/assets/IsItAge.pdf.

23 Note 3, supra.

24 William Dunkelberg, Small Business Is Contributing to Economic Growth And Job Creation, Forbes, June 3, 2015, https:// www.forbes.com/sites/williamdunkelberg/2015/06/03/smallbusiness-is-contributing-more-to-economic-growth-and-jobcreation/#2fe5f12951aa 25 U.S. Small Business Administration, Small Business Trends, https:// www.sba.gov/managing-business/running-business/energyefficiency/sustainable-business-practices/small-business-trends (last visited April 11, 2017).

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Can a Clean Environment be a Fundamental Right?

By Casey Hogan, Staff Writer

If I were to walk down the street and ask passers-by “Do you believe you have a fundamental right to clean air and water?” the answer would likely be a resounding “Yes.” The logic flows easily; we need them to live, thus these things must be a fundamental right. Certainly, the inherent, God-given right to survive on Earth falls somewhere under the category of “life, liberty and the pursuit of happiness,” does it not?

In our current jurisprudential landscape, we only have roughly five “fundamental rights”: the right to marry, the right to procreate, the right to use contraceptives, the right to interstate travel, and the right to vote.1 While the path to “fundamental” varies for each of these rights, one thing remains the same: they are guaranteed to the American people by the Supreme Court by way of Equal Protection and Due Process.2 Fundamental rights— sometimes referred to as “unenumerated rights” because they are not explicitly stated anywhere in the Constitution—seem to only find definition when the state has somehow put them into jeopardy through enforcement of some law.3 The Court “finds” these rights through a process that seems to be almost purely spontaneous, and there is no one test or standard the Court will follow.4 If any pattern persists, a “fundamental right” is usually found where it has a root in tradition or history and some basis in the United States Constitution. For instance, in the line of cases leading to Roe v. Wade, the Court stitched together traditions respecting the privacy of the home and marital decisions regarding procreation and the First, Fourth, Fifth, and Ninth Amendments.5

Of particular interest in the fundamental right analysis is the Ninth Amendment,6 which reads “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”7 If taken as the Framer’s equivalent of “including, but not limited to,” this language would presumably be the open-and-shut answer to all rights we consider fundamental and inherent. There is, however, significant scholarly debate as to the true meaning of this Amendment, even to the point of suggesting it should be ignored.8 The Supreme Court has not yet considered whether American citizens have a fundamental right to a clean environment; however, the question has been addressed at the District Court level. For example, in Tanner v. Armco Steel Corp., the plaintiffs brought suit against a group of refinery and plant owners alleging personal injuries and damage to their property caused by the defendants’ polluting activities.9 Although the cause of action was essentially based in tort law, the plaintiffs alleged a myriad of constitutional claims.10 In particular, the plaintiffs argued that they have a “right to not be personally injured by the actions of the Defendants and [a] right to noninterference with their privacy and the air that they breathe, [which] are protected by the Ninth Amendment.”11 The Southern District of Texas gave this argument little credence, noting that there is no existing precedent construing the Ninth Amendment “to embrace the rights here asserted.”12 (Continued on page 20)

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Can a Clean Environment be a Fundamental Right?

(Continued from page 19)

Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.

The court highlighted the division of powers, noting that only the legislature—not the court—can enact new laws.13 And with no further discussion, the court held “[t]he Ninth Amendment through its ‘penumbra’… embodies no legally assertable right to a healthful environment.”14 This decision, while only expressly adopted in two other districts,15 appears to represent the thirty-five year consensus in American courts16 regarding the fundamental right to a clean environment.17 Despite Tanner and decisions like it, a case whose success depends almost entirely on the finding of a fundamental right to clean environment has made it past the pleadings stage in the District of Oregon.18 The plaintiffs, a group of minors and young adults, an environmentalist group, and Dr. James Hansen, climate guru and “guardian for future generations,” brought suit against the Unites States, the President,19 and several executive agencies.20 Plaintiffs assert defendants, through various actions (and inaction), have failed to prevent catastrophic climate change and in doing so, exposed the plaintiffs to the dangers of climate change and accordingly, violated their substantive due process rights.21 After declining to apply the political question doctrine and establishing standing for the plaintiffs, the court noted, “[r]esolution of this part of the motion to dismiss . . . hinges on whether plaintiffs have alleged infringement of a fundamental right.”22 The court notes that “‘new’ fundamental rights” are not “out of bounds,” and references the Obergefell decision,

1 2 3 4

5 6 7 8

9 10 11 12 13 14 20

Adam B. Wolf, Fundamentally Flawed: Tradition and Fundamental Rights, 57 U. Miami L. Rev. 101, 114-123 (2002).

Id. at 105-115.

See, e.g., Loving v. Virginia, 87 S.Ct. 1817 (1967).

See Planned Parenthood of S.E. Pa. v. Casey, 112 S.Ct. 2791, 2806 (1992) (“The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts have always exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule.”).

See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v.

Wade, 410 U.S. 113 (1973).

Roe v. Wade, 410 U.S. 113, 153-154 (1973).

U.S. Const. Amend. IX. Louis Michael Seidman, Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism, 98 Cal. L. Rev. 2129, 2151-2152 (2010).

Tanner v. Armco Steel Corp., 340 F. Supp. 532, 534 (S.D. Tex. 1972) Id. at 534.

Id. at 535.

Id. Id. Id.

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particularly Justice Kennedy’s discussion of the evolution of fundamental rights throughout American history.23 Ultimately the court, in denying defendants’ motion to dismiss, opines: “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the ‘foundation of the family,’ a stable climate system is quite literally the foundation ‘of society, without which there would be neither civilization nor progress.”24 While we may never see a judicially declared fundamental right to “a climate system capable of sustaining human life,” we must remember that interracial marriage was once considered a fantasy, and as Justice Kennedy so eloquently stated, the Framers of the Constitution “did not presume to know the extent of freedom in all its dimensions.”25 Our modern American Dream may very well encompass this fundamental right, although its practical implications could very well turn our entire system on its head. But maybe, that is precisely what is required.

Casey E. Hogan is a third year law student at Duquesne University School of Law. Casey is a native of West Virginia and completed her undergraduate degree at West Virginia University.

In addition to Juris, Casey is also the president of the Energy and Mineral Law Society and treasurer of the Environmental Law Society.

15 See Barnett v. Carberry, 2010 U.S. Dist. LEXIS 146295 (D. Conn.

2010) and Gasper v. Louisiana Stadium & Exposition Dist., 418 F. Supp. 716 (E.D. La. 1976).

16 Not the case internationally; See David R. Boyd, The Constitutional Right to a Healthy Environment, Environment Magazine (March 21, 2017), http://www.environmentmagazine.org/Archives/Back%20 Issues/2012/July-August%202012/constitutional-rights-full.html.

17 See Concerned Citizens of Nebraska v. United States Nuclear Regulatory Commission, 970 F.3d 421, 426-427 (8th Cir. 1992) (holding that the Ninth Amendment does not embody a fundamental, unenumerated right to environment free of any nonnatural radiation).

18 Juliana v. United States, No. 6:15-cv-01517-TC, 2016 WL 6661146, at *1 (D. Or. 2016).

19 On February 9, 2017, plaintiffs substituted Donald J. Trump for Barack Obama. Pls.’ Substitution of Parties Pursuant to Federal Rule of Civil Procedure, Rule 25(d), Feb. 9, 2017, No. 6:15-cv-01517-TC 20 Juliana, 2016 WL 6661146, at *1 21 Id. 22 Id. at *14.

23 Id. at *15.

24 Id. (citations omitted).

25 Obergefell v. Hodges, 123 S.Ct. 2584, 2598 (2015).

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