Juris Winter 2017

Winter 2017

THE DUQUESNE LAW SCHOOL MAGAZINE

How the Media Has Changed Post-9/11

Contents

Letter from the Editor Since its 1967 introduction, Juris magazine has been a fundamental outlet for law students to explore their passions and interest in the law without the constraints of formal legal writing. The publication has given students the ability to investigate current issues impacting the world, instead of esoteric and erudite legal conflicts.

Journalism allows students to address topics that concern the public. Yet the field is currently in a state of flux. The numerous existential risks that threaten humanity need to be told. Society has stretched the definition of journalism to a point where readers need to question every article read. Yellow journalism is abundant. On the internet, we are assailed with news, real and false, and as a result of the numbers and varying biases, we distrust many sources and zealously follow the outlets that share our beliefs.

There are many fingers being pointed at the numerous causes. Our 24-hour news cycle, for example, has moved from dissecting sound bites to vivisecting live news. Computers, smartphones, and the internet have given us the ability to be in tune with everything going on in the world while we live our private lives. We choose our social circles on social media, and the algorithm feeds us the information to which we subscribe and nothing else. Tribalism and nationalism are on the rise in countries across the globe. Citizens are losing the ability to see eye to eye. We have become victims of our own naivetĂŠ.

News should not be divisive. News should be informative. News should be an objective look at how the law defines and defends constitutional rights, like the Second Amendment. News should keep the public abreast of deceitful and harmful practices perpetrated by large corporations that hold people’s lives in their hands. News should convey both sides of the arguments when we are faced with tough decisions like raising the minimum wage. News should investigate what is trending in popular culture, like intellectual property disputes in the fashion world.

Since its 1967 introduction, Juris has been a reliable legal news source. The staff writers and executive board perform their duties with unparalleled integrity and due diligence, investigating how issues impact the law and how the law impacts issues. Duquesne students, alumni, and family have been faithful readers of Juris magazine and blog. We don’t want to let our readers down. Thanks for reading. We hope you enjoy the Winter 2017 issue.

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.

JURIS MAGAZINE

|

WINTER 2017

Contents

INSIDE

2

4

11

15

7

JURIS Staff 2016-2017 Editor-in-Chief: P. Michael Jones

Table of Contents How the Media Has Changed Post-9/11: An Emphasis on Terrorism. . . . . . . . . . . . . . . . . . . 2 Brexit Stage Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Tecato Gusano: The Insatiable Worm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Hidden Costs: Potential Effects of the Fight for Fifteen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The Second: An Amendment Under Siege?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Lights, Camera, Fashion! Or a Legal Cause of Action?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Modern Lawyering: Challenges in an Era of Exponential Change. . . . . . . . . . . . . . . . . . . . . 22

Executive Editors: Ian Grecco Kyle Fiesler Associate Editor: Julie Williams Web Editor: Nicole Prieto Staff Writers: Joseph Baublitz Kady Enright Melissa Sarnicke Cover Designer: Cameron Mitchell

Life or Debt: Should Pharmaceutical Companies Have the Right to Hike Prices of Life-Saving Medications?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Connect with Juris: @JurisDuqLaw JurisMagazine

JurisMagazine.com

Juris Magazine – The Duquesne Law School Magazine 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.

jurisduqlaw@gmail.com

Contents

How the Media Has Changed Post-9/11: An Emphasis on Terrorism

By Ian Grecco, Executive Editor

Americans will never forget the terrorist attacks of September 11, 2001, nor will the media. The attacks were unparalleled to any event Americans had ever witnessed. News writers could not adequately describe the copious American emotions after the attacks, but many writers described the state of many Americans as numb. Americans lived in a state of uncertainty as they watched the overflowing media coverage of the aftermath of the attacks. Due to these unfathomable attacks, Americans grappled with the question: Why? Without an answer, Americans watched endless reporters and commentators attempt to explain the complex idea of terrorism. After the attacks, Americans became more interested in, as well as cognizant of, extremist groups in foreign countries. The media outlets began to give great attention to terrorism and corruption.

From that point on, the media would never be the same. Daily, Americans tuned in to their preferred news station to learn about any new developments about national security, ultimately driving news ratings and viewership to new heights. The American demand for real-time coverage and on-the-scene reporting had begun. This demand has not slowed since that fateful day.

At the time of the September 11 attacks, television was the leading media vehicle for news for Americans.1 However, many people learned about the attacks by a telephone call from a relative or a friend, prompting people to turn on their televisions to learn more.2 Due to this process, many Americans were minutes, if not hours, apart from other Americans in learning about the attacks. This time disparity will likely never be greater in any future attack.

Americans had never experienced a more devastating and spiteful terroristic attack. Pictures, videos, and live accounts of the attacks caused trauma for many of the families and friends who knew the victims in the World Trade Center.3 Due to the great loss of American lives, Americans became uncertain about

the continued safety of the country. As a result, Americans wanted immediate warning of any future attack. Americans grew to favor easily digested material. As the internet took over as Americans’ preferred choice for news, media outlets focused on appealing images to catch consumers’ eyes.4 Americans became obsessed with obtaining the latest updates regarding responsibility for the attacks and the government’s response. In fact, Google credits the attacks for causing the company to modify Google News to sort searches based upon more timely results.5 Google realized the large number of searches pertaining to the attacks and placed links to large-scale media outlets, like CNN, on its Google News’ front page.6 Media outlets began to realize the consumer demand for accessibility to real-time news.

After the attacks, President George W. Bush declared a “War on Terror,” resulting in the wars in Afghanistan and Iraq.7 The media captivated viewers to watch any new developments, specifically US armed forces movements compared to enemy movements. As months passed, media ratings continued to be favorable. However, Americans began to question the accuracy of the media’s information after a major miscalculation.

In 2003, a critical event caused distrust of the media’s information. The Bush administration, along with top intelligence officials, miscalculated Iraq’s nuclear capabilities.8 The director of the Central Intelligence Agency, George Tenet, informed President Bush that Iraq topped Tenet’s list of countries that may help al-Qaida, the extremist group purported to be responsible for the 9/11 attacks, obtain a nuclear bomb.9 Ultimately, top intelligence officials’ estimates were flawed. U.S. intelligence and the Bush administration overestimated al-Qaida’s capability to obtain a weapon of mass destruction (WMD), likely due to the fear of another large-scale terroristic attack.10 Intelligence analysts cherry-picked information from unsupported (Continued on page 3)

2

JURIS MAGAZINE

|

WINTER 2017

Contents

How the Media has Changed Post-9/11 (Continued from page 2) sources described as having low credibility and reliability.11 The intelligence estimates severely lacked information from credible human sources in Iraq, known as an absence of human intelligence.12 President Bush ultimately decided to invade Iraq, inevitably leading to thousands of American lives being lost to a nonexistent threat. Soldiers never recovered any significant evidence of Iraq having possessed WMDs.13 The intelligence failure caused many Americans to distrust the accuracy of news coverage. In 2004, despite this distrust, most media outlets still emphasized Iraq’s dangerous proclivity, likely in an attempt to back its unsupported belief of WMDs in Iraq. Surprisingly, about half of Americans still believed that Iraq possessed WMDs.14 The media continued focusing its coverage on foreign powers and extremist groups. In fact, by 2005, news stations covered foreign policy at a nearly 102-percent increase from 2001.15 Even throughout the war in Iraq, by 2006, around 41 percent of Americans still believed Iraq possessed WMDs. After the terrorist attacks of 9/11 and the WMD miscalculation, viewers who were skeptical of the media’s accuracy demanded more on-the-ground journalism. These viewers wanted real-time reporting to validate news reports.

Social media outlets revolutionized news coverage by providing real-life accounts of persons at the news topic’s location.16 Americans no longer wanted famous news anchors detailing foreign events. Rather, Americans wanted and trusted realtime accounts from ordinary people. Thus, social media news emerged by providing an outlet for all Americans to post videos and pictures of major events.17 Twitter emerged as the powerhouse social media outlet for real-time news from everywhere in the world. Twitter users could share first-hand accounts of crimes, significant events, or a meaningless story. Daily, users effortlessly scroll through hundreds of tweets from users they follow. Fatefully, Twitter has emerged as a tool for radical groups to recruit new members.18 In an effort to minimize this effect, Twitter employees began sifting through tweets to identify accounts linked to extremist groups, predominately the Islamic State (ISIS). Once Twitter employees find tweets promoting extremist groups, they suspend accounts for further review. As of February 2016, Twitter suspended 125,000 accounts after less than a full year of employees’ efforts of monitoring accounts.19 Despite Twitter’s efforts to minimize use by ISIS recruiters, Twitter’s ease of accessibility to all users will likely still provide opportunities for extremist groups to recruit members. Twitter’s paradox in acknowledging freedom of 1

Steve Myers, How America’s News Habits Have Changed in 10 years, Poynter, http://www.poynter.org/2011/how-americas-news-habits-havechanged-in-10-years-since-911/145525 2 Id. 3 Pythia Peay, The Traumas of 9/11 and its Effects on the American Psyche – An interview with Psychohistorian Charles B. Strozier, Psychology Today, https://www.psychologytoday.com/blog/america-thecouch/201509/the-traumas-911-and-its-effects-the-american-psyche 4 Myers, supra note 1.

5 Id. 6 Id. 7 Matthew Green, How 9/11 Changed America: Four Major Impacts (with Lesson Plan), KQED News, https://ww2.kqed.org/lowdown/2014/09/10/13years-later-four-major-lasting-impacts-of-911 8 David C. Gompert et al., The Iraq War: Bush’s Biggest Blunder, Newsweek, http://www.newsweek.com/iraq-war-bushs-biggest-blunder-294411 9 Id. 10 Id. 11 Id.

After the terrorist attacks of 9/11 and the WMD miscalculation, viewers who were skeptical of the media’s accuracy demanded more on-the-ground journalism.

expression, guaranteed by the First Amendment, and a proactive approach to halting prohibited behaviors, will continue to be a gray area.20 Nonetheless, terroristic acts, along with people’s fears of future attacks, will continue to influence how the media disseminate news to satisfy Americans’ demand for immediate information. This fear of terrorism will continue to cause media outlets to devote significant coverage to extremist groups.

How these outlets disseminate news will depend upon how Americans want to consume news. In the future, especially in the event of the next major act of terrorism, Americans’ desire for particular methods for news dissemination and information sources will likely change. At best, we know that the American fear of terrorism remains as strong as ever. Foreign policy will likely change drastically with President-elect Donald Trump set to enter office in January. The media will continue reporting about these new foreign policies because, after all, the media is a business, and will succumb to the American demand for information. Terrorism, a term that many Americans had never heard before the 9/11 attacks, and the American fear of the ideas it encompasses, have driven the media to report real-time and on-the-scene coverage of all major events. One act of terrorism could change the media as we know it today.

Ian Grecco is an executive editor of Juris as well as a staff member for Duquesne Law Review, where he has written about the constitutionality of the Iran nuclear deal. He has a bachelor’s degree in intelligence studies and interests in national security and government issues. Grecco serves as an extern for Pennsylvania Supreme Court Justice David Wecht, a member of Duquesne Law’s Urban Development Practicum, and a volunteer high school wrestling coach.

12 Id. 13 Stephan Lewandowsky, Media Failure on Iraq War Repeated in Climate Change Coverage, The Guardian, https://www.theguardian. com/environment/climate-consensus-97-per-cent/2013/dec/06/ media-failure-iraq-war-climate-change 14 Douglas M. McLeod, Derelict of Duty: The American News Media, Terrorism, and the War in Iraq, 93 Marq. L. Rev. 113, 135–36 (2009).

15 Shawn Paul Wood, How Has the Media Changed Since 9/11?, PRNewser, http://www.adweek.com/prnewser/how-has-the-mediachanged-since-911/99997 16 Mary Kate Cary, The Media Would Cover 9/11 Differently Today, U.S. News, http://www.usnews.com/opinion/articles/2011/09/16/themedia-would-cover-911-differently-today 17 Id. 18 Mike Isaac, Twitter Steps Up Efforts to Thwart Terrorists’ Tweets, The New York Times, http://www.nytimes.com/2016/02/06/ technology/twitter-account-suspensions-terrorism.html?_r=0 19 Id. 20 Id.

3

Contents

Brexit Stage Right

By Kady Enright, Staff Writer

On June 23, 2016, the United Kingdom (UK) held a referendum in which 52 percent of the voting citizens voted to leave the European Union (EU).1 The decision to depart from the EU has aptly been referred to across the world as “Brexit.”

Article 50 of the Treaty on the European Union provides the means for any member state to withdraw from the EU.2 Article 50 was ratified as part of the Treaty of Lisbon and came into effect in 2009.3 Before that, and until now, no member state has ever tried to leave the European Union. So, the UK and the EU are in uncharted territory moving forward with the withdrawal, and the effects of Brexit on the world are largely unclear.

In order to understand the potential legal ramifications of Brexit, it is important to understand the purpose and role of the EU. The EU is a kind of supranational organization—meaning each member state gives up part of its sovereignty when it joins.4 In other words, the member states must abide by the laws of the Union. Legislation in the EU can come in the form of directives and regulations.5 Regulations are acts that, once passed, become immediately applicable to all citizens of all member states.6 Directives are legal acts that must be adopted by the government of each member state and integrated into its national law.7 The EU is referred to as a “single market” because membership in the union comes with the freedom of movement of goods, workers, capital, and services.8 These freedoms allow for easy travel and trade throughout Europe.

4

JURIS MAGAZINE

|

WINTER 2017

By voting to leave the EU, Britain has essentially decided to remove itself from that single market—the implications of which could be extensive. What prompted Britain to leave? A propaganda-filled campaign from the “Leave” camp urged UK citizens to “Take back control of our country.”9 The so-called “Leavers” insisted that the regulations from the EU are unnecessarily costly to Britain, and the benefit of membership does not outweigh those costs.10Additionally, the Leave campaign focused on Britain’s ability to negotiate its own trade deals and deal with immigration in its own way if it were to exit the EU.11 The Leave camp bears a striking resemblance to the Trump campaign in the United States. Each took advantage of the rise in nationalism resulting from derision regarding undocumented immigrants and refugees, coupled with a rise in disenfranchisement from the “establishment.”12 Theresa May, prime minister of the United Kingdom, has since committed to reducing net migration to below 100,000 per year.13 Also like the election of Donald Trump, the Leave campaign was not expected to prevail. However—unlike the results of the US election—there is still some doubt surrounding whether Britain will actually withdraw from the EU. The High Court recently ruled that Britain’s new prime minister could not initiate the Article 50 negotiations with the EU without a vote of Parliament on the matter.14 The government (Continued on page 5)

Contents

Brexit Stage Right (Continued from page 4)

has appealed the decision to the Supreme Court, which was set to hear the case on December 5, 2016. Should the Supreme Court uphold the High Court’s decision, Parliament will have the opportunity to vote on whether to move forward with exit negotiations. As of now, Theresa May has indicated that she wishes to begin those negotiations in March 2017.15 Article 50 provides that any member state that wishes to leave the EU must provide notice to the European Council of its intention to leave, and from there, it has two years to negotiate a deal that details its future relationship with the Union.16 If negotiations are not complete at the end of two years, the treaties of the EU will no longer apply to the member state, unless the European Council unanimously decides to extend the negotiation period.17 If the Supreme Court does adopt the High Court’s findings, rendering the governments’ appeal unsuccessful, as mentioned above, there is a possibility that British Members of Parliament (MPs) could decide not to move forward with Brexit at all. The High Court opined that unless the language of a referendum explicitly states that the result shall be binding, the outcome is merely advisory to MPs; the language of this referendum was not explicit in this way.18 The case was essentially decided on the basis that the government cannot use executive powers to overturn an act of Parliament.19 UK membership in the EU is guaranteed by the 1972 EU Communities Act, which means it can only be repealed by a primary act of Parliament.20 Conversely, the Supreme Court could decide that the government has the executive authority to trigger negotiations, in which case there would be no need for Parliament to vote.

However, even if an act of Parliament were necessary, political pressure caused by the result of the mandate could very well lead MPs to vote for Brexit. Alternatively, many MPs of various parties (SNP, Liberal Democrats, Labour, and Conservatives) in favor of staying could refuse to pass the required legislation.21 As Edmund Burke elucidated in 1774, “Your representative owes you,

not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”22 MPs could also force a general election, before the one scheduled for 2020, and if a party campaigning on a “Remain” platform wins—it could be considered a reversal of the referendum result.23 Obviously, there are a plethora of unknowns about implementing Brexit, and, if it comes to pass, there are equally as many unknowns about the impact it will have on the world. As stated previously, the EU is a single market, and as such, the flow of goods and people throughout is unrestricted. So, if the UK leaves, what happens to British workers throughout Europe? Will they need additional documentation? Will it be provided? What about other Europeans living in the UK? This will likely be one of the main concerns of negotiations between the EU and UK. Unfortunately, the Leavers’ stance on immigration may cause difficulty in coming to an agreement on that issue.

The UK is a major trading partner with most member states of the EU, and, therefore, there is incentive to come to an amicable resolution regarding Britain’s withdrawal from the Union—but economic advantage does not always succeed.

Article 50 requires that the agreement be passed by a qualified majority of the European Parliament—so, only time will tell whether the other member states will acquiesce to the UK’s exit deal.24 One of the biggest challenges posed by Brexit is the unravelling of UK and EU law. After an agreement is reached, or two years after the notification of the European Council, EU regulations and treaties will no longer apply to Britain. However, that will leave Britain with the decision of whether to enact new British law, modify existing law, or allow the EU laws to fall to the side. Similarly, Britain must determine whether to keep, repeal, or modify the EU directives implemented into law. This would be a daunting task for any government. The decisions Britain makes in those areas will likely have a global impact.

(Continued on page 6)

One of the biggest challenges posed

by Brexit is the unravelling of UK and EU law. After an agreement is reached, or two years after the notification of the European Council, EU regulations and treaties will no longer apply to Britain.

5

Contents

Brexit Stage Right (Continued from page 5)

The uncertainty caused by Brexit could cause instability, evidenced by the drop in value of the pound and rising inflation in Britain, which will certainly affect American businesses and the US economy.

As Churchill proclaimed in 1944, the United States and Britain have always had a “special relationship.”25 So the decisions Britain makes in the coming years regarding Brexit will undoubtedly impact the US. First of all, Britain has helped the US by advocating the advancement of US foreign policy objectives within the EU.26 If the UK is no longer part of the EU, the US loses this advantage. Next, the US and Britain have the world’s largest foreign direct investment partnership and are each other’s top trading partners.27 The uncertainty caused by Brexit could cause instability, evidenced by the drop in value of the pound and rising inflation in Britain, which will certainly affect American businesses and the US economy.

1 Alex Hunt and Brian Wheeler, Brexit: All you need to know about the UK leaving the EU, BBC News (November 10, 2016), http:// www.bbc.com/news/uk-politics-32810887.

2 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/01 3 Dr. Kirk Junker, Professor of Law University of Cologne, “Should Americans Care Whether the UK is an EU Member?” September 7, 2016 Duquesne University School of Law.

Kady Enright, a 2018 J.D. candidate, is a staff writer for Juris and the Juris blog. She participated in Duquesne’s European study abroad program in Cologne, Germany, this summer, after which she interned in Berlin. She hopes to return to Europe after graduation and pursue a career involving international law.

16 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/01 17 Id. 18 Brexit Court Ruling: Your Questions Answered, BBC News (November 4, 2016), http://www.bbc.com/news/ uk-politics-37864983 19 Id. 20 Id.

4 Id.

21 Id.

5 Id. 7 Id.

22 http://www.independent.co.uk/news/uk/politics/brexit-can-stillbe-blocked-say-constitutional-lawyers-eu-referendum-notbinding-a7107526.html

8 Policy Area: The Four Freedoms, European Policy Centre (2016), http://www.europeanpolicy.org/en/european-policies/singlemarket.html

23 Brexit Court Ruling: Your Questions Answered, BBC News (November 4, 2016), http://www.bbc.com/news/ uk-politics-37864983.

9 Leave.eu, Leading the UK Out of the EU, Leave.eu (2016), http:// leave.eu/en/our-campaign

24 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/01

10 Id.

25 Dr. Kirk Junker, Professor of Law University of Cologne, “Should Americans Care Whether the UK is an EU Member?” September 7, 2016 Duquesne University School of Law.

6 Id.

11 Id. 12 Alex Hunt and Brian Wheeler, Brexit: All you need to know about the UK leaving the EU, BBC News (November 10, 2016), http:// www.bbc.com/news/uk-politics-32810887 13 Id.

26 Armstrong Williams, America to Feel Economic, Political and Security Effects of Brexit, The Washington Times (July 3, 2016), http://www.washingtontimes.com/news/2016/jul/3/brexits-useffects-economic-political.

14 Brexit Court Ruling: Your Questions Answered, BBC News (November 4, 2016), http://www.bbc.com/news/ uk-politics-37864983

27 Dr. Kirk Junker, Professor of Law University of Cologne, “Should Americans Care Whether the UK is an EU Member?” September 7, 2016 Duquesne University School of Law.

15 Id.

6

As Brexit is an unprecedented manifestation of dissatisfaction with the EU, there are still a great deals of “ifs” surrounding the questionably legal unilateral vote. All that can be known for sure is that the implementation of Brexit will have widespread effects for years to come.

JURIS MAGAZINE

|

WINTER 2017

Contents

Tecato Gusano: The Insatiable Worm

By P. Michael Jones, Editor-in-Chief

Addiction exists whether we are aware of it or not, malignant or benign. Many of the malignant addictions, those that take the lives of loved ones and attempt to unravel society’s thread, transform the addict from a law-abiding citizen to a law offender. Yet, the established laws across the nation and within Pennsylvania attempt to punish the addict for the symptoms stemming from their illness, instead of the pursuit of rehabilitation.

Between 2000 and 2014, the number of hospital visits in Pennsylvania from overdoses on pain medication and heroin increased 225 percent and 162 percent, respectively.1 Today, onethird of the prison population is incarcerated for drug-related offenses, and each year we unquestionably find more drug criminals behind bars than violent crime perpetrators.2 Once free, the drug offender recidivism rate in Pennsylvania after three years is 57.3 percent, while the national recidivism rate for drug offenders within the same time period is nearly 20 points higher at 76.9 percent.3 4 This statistic proves that addiction is rarely treated, and instead punished. The United States and Pennsylvania must look at themselves in the mirror and ask what they are doing by eschewing addiction treatment, and consequently clogging up the prisons with nonviolent criminals and creating career criminals from the mentally ill.

Opiates and analgesics fuel some of the strongest addictions that are destroying our homes, towns, cities, and country. Opioid addiction is here, and everyone has been touched by the rampant plague destroying American lives.

The numbers should infuriate you: more than 259 million prescriptions for painkillers a year.5; 78 overdose deaths every day from opioid abuse.6; 27,315 babies born with newborn drug withdrawal syndrome from opiate abusing parents in 2013.7 People are acutely aware of the initial ease of obtaining prescription narcotics like oxycodone and hydrocodone.

Pharmaceutical companies, like OxyContin manufacturer Purdue, have made misleading claims to market their drugs.8 OxyContin had been marketed as slow-release with the effects lasting up to 12 hours. In fact, clinical tests proved that the pain relief lasted only a few hours and the chronic pain would return with a wicked bout of nausea. Doctors were told to prescribe stronger doses to fix that problem. This is how the opiate epidemic began, by feeding a wildfire with more kindling.

Doctors handed out 76 million opioid prescriptions in 1991.9 As drug manufacturers pushed doctors to prescribe the drug more often to help with chronic pain, more patients noticed that they could receive “heroin in pill form.”10 With over 259 million prescriptions for opioids every year, enough for each American adult to have a bottle of pills, we have just now reached fever pitch.11

(Continued on page 8)

7

Contents

Tecato Gusano: The Insatiable Worm (Continued from page 7)

For those suffering from chronic pain, many of whom are not working due to disability, the price of treatment becomes too expensive. After patients find themselves hooked on the expensive drugs, like OxyContin, many transition to injecting heroin for the lower cost and more intense high. Once a loved one is addicted to heroin, it is likely we may never get them back.

Here is how opioids kill12: Once introduced into the blood stream, the drug will reach the brain. In the brain, the opiate will be converted into morphine, which consequently binds to opioid receptors. These binds are so strong that the opioid receptors can be locked for hours. Receptors act as switches in the brain when morphine attaches. Some receptors switch on pleasure circuits—the same circuits triggered by eating or sex. Other receptors are switches for pain. Opioids will latch onto these receptors, and never let go. This is how an opioid will make a user feel less pain. Many of the neurons in our brain have opiate receptors including the neurons that help control our breathing.

Take too much heroin or too many pills, and the user will suffer from respiratory failure. Within moments of losing the ability to breathe, fingers and lips will turn blue; in minutes, the person will become unconscious and die from oxygen starvation.

Fortunately, a drug exists that can temporarily reverse the effects of an opioid overdose. Naloxone, commonly known as the brand name Narcan, which comes in many forms, including a nasal spray and auto-injector, finds the receptors that are overpowered by the converted opioid, pushes the overdoseinducing drug out of the way, and binds with the receptor.13 The user goes into withdrawal almost immediately. While he or she must still go to the hospital to be prepared for when the antidote wears off, for the moment, the user will not overdose.

Naloxone has saved more than 10,000 people from overdosing nationwide.14 Many police officers and firefighters have been equipped with naloxone and have found it to be the most important tool in their arsenal. The White House insists the overdose reversal drug “should be in the patrol cars of every law enforcement professional across the nation.”15 Paramedics and EMTs are commonly the first responders, but in most states they are unauthorized to administer naloxone.16 In response to the crisis, there has been a wave of legislation permitting the various types of first responders to use the antidote; 13 states have legislation giving these heroes the authority to save more lives.17 But many communities, especially the impoverished ones, may have limited access to these first responders, leaving many opiate users at risk of death.

Those who don’t die from an overdose will more than likely be imprisoned for drug violations. There were 1.56 million arrests in the U.S. for drug-related charges in 2014.18 “Of the 2.3 million inmates crowding our nation’s prisons, [1.95 million] were substance-involved; 1.5 million met the medical criteria for substance abuse or addiction.”19 Illicit drugs are not the only culprits either; alcohol was involved in the crimes of more than half of American inmates.20 Once these addicts are confined, treatment is rarely made available. Of the estimated $74 billion spent nationally on corrections in 2005, only $632 million went to prevention and treatment programs.21 While many prisons have effective

8

JURIS MAGAZINE

|

WINTER 2017

The cost to house an inmate ranges from $14,603 to $60,076 per year, with an average of $31,286.23. But, as previously noted, the recidivism rate for drug offenders across the nation is nearly 80 percent.

treatment programs, such as the federal Bureau of Prisons Residential Drug Abuse Program (RDAP), there are many states that have failed to implement similar programs, and the states that have programs include many shortcomings. Only 11 percent of inmates afflicted by addiction receive treatment any given year.22 The cost to house an inmate ranges from $14,603 to $60,076 per year, with an average of $31,286.23 But, as previously noted, the recidivism rate for drug offenders across the nation is nearly 80 percent. This leaves many prisoners precariously sailing between Scylla and Charybdis, left to die as an addict or finish life as a prisoner. And, it leaves taxpayers paying into a system with a rehabilitation success rate of 20 percent.

Instead of treatment, the revolving door to prisons feeds the fire by punishing substance abusers for their “crimes of addiction.”24 There are two schools of thought on how to run the criminal justice system, the retributivism model and the rehabilitative model.25 The retributivism model, which our current criminal justice system follows, views punishment as a moral good, or an “intrinsically worthy response to the previous transgressions of the individual.”26 An offender’s choice to commit an offense brings the ensuing proportional counterbalance of suffering for that choice. One can compare this to Newton’s Third Law of Motion: For every action, there is an equal and opposite reaction.

This model may work on violent crimes, but the use of similar punishment where crimes of addiction are involved has failed.

Violent crimes have clear victims, whereas crimes of addiction (Continued on page 9)

Contents

Tecato Gusano: The Insatiable Worm (Continued from page 8)

that do not include violence, like drug possession, public intoxication, and most driving under the influence arrests, lack a victim of the transgression.27 Is it necessary for two classes of offenders to receive the same remedy for vastly different maladies?

The rehabilitative model, contrastingly, seeks to reform the offender by looking at the underlying external factors, like socioeconomic placement, medical records, and mental health, to determine why a given offender committed a crime.28 The rehabilitative model seeks to reform the individual by putting an end to “habits of vice,” and in turn, preserve the common good.

States have begun to implement a system of drug courts within their jurisdictions. These courts, totaling more than 3,000 evenly split between adult and juvenile tracks, target criminal defendants who have committed non-violent crimes of addiction.29 To participate, defendants must plead guilty, waive their right to trial, and join strict rehabilitation programs.30 Judges are given greater discretion, and instead of delivering a punishment, they work with public defenders and treatment experts to determine the best possible program for the offender.31 In the first states that implemented drug courts, Florida, Oklahoma, and New Jersey, recidivism rates have dropped to single digits and the cost per prisoner has dropped as well.32 By diverting substance abusers from prisons and into treatment programs, the crime rates and savings would be enormous. One study found that by diverting 10 percent of eligible offenders to “community-based treatment programs, the criminal justice system would save $4.8 billion compared to the current practices. Diverting 40 percent of eligible offenders would save $12.9 billion.”33 The rehabilitative model effectively treats offending addicts, but we are still years away from largescale implementations of the novel approach.

Why must we wait for an addict to break the law to receive treatment? A better way to lower crime rates, recidivism rates, and costs is to not have criminals in the first place. Atop the solutions is unloading the criminal code of many of its statutes.

Less criminal statutes on the books will ensure less criminals.

Douglas Husak, Rutgers University philosophy professor, takes a nonconformist view and argues that many drug laws are counterproductive because the “deterrent effect for drug offenses is minimal.”34 Comparing our current state of drug use to Prohibition-era liquor laws, we can see that laws prohibiting the use of a particular vice only create criminal behavior.

Pernicious Prohibition-era laws born from the 18th Amendment were fertile ground for bootlegging and speakeasies to grow, the very behavior the law sought to abolish. By repealing Prohibition laws, states and the federal government were finally able to begin to control how liquor was to be manufactured, sold, and transported. There is an argument for the decriminalization of deleterious drugs as well.

A second and less radical solution would be to give substance abusers and addicts a chance to clean themselves up prior to breaking the law. Rehabs and treatment centers do exist, but the cost of use has been a reason for their failures. “People with addictions have found that treatment facilities are full and insurance companies won’t cover the costs.”35 The Affordable

Care Act (ACA) was enacted to insure 47 million Americans, many of whom could not affordably attain any insurance because of pre-existing conditions. In 2014, the ACA included substance abuse disorders as one of the “10 elements of essential health benefits,” essentially mandating that insurance plans must make treatment programs for substance abuse and mental health issues an essential benefit.36 In addition to not being barred for having a pre-existing condition, the parity rule requires health insurers to provide comparable coverage for mental health and substance abuse issues as for general medical and surgical coverage.37 Expanding on the Mental Health Parity and Addiction Equity Act of 2008 and incorporating it into the healthcare market place for Medicaid and CHIP, the rule requires states to disclose information on “substance use disorder benefits upon request,” and “disclose the reason for any denial of reimbursement or payment for services with respect to substance use disorder benefits.”38 As with any legislation, latent and unresolved issues exist that undermine the entirety of the solution. One shortcoming results from the fact that those insured prior to the ACA will not be grandfathered into substance abuse and mental health programs. The most notable and largest obstacle limiting the extent of coverage comes from the legislation failing to repeal an archaic law that “prohibits treatment facilities with more than 16 beds from billing Medicaid for treatment provided to lowincome patients.”39 Due to the wave of mainstreaming of mental health with primary patient care, where there were 340 patient beds for every 100,000 individuals in the 1960s, there are now 17 beds for every 100,000 people.40 There was never large availability of beds in treatment centers to begin with, and the ACA has only created a greater shortage. The result is many addicts are being turned away. In California, for example, only 10 percent of the available beds are in facilities that meet the anachronistic restriction, and the “vast majority” of treatment facilities in Colorado exceed the 16-bed limit.41 The nation would be best served by implementing prevention and treatment programs that fit into our current system. In Pennsylvania, Governor Tom Wolf called a special session of the legislature to “outline legislative goals that would help tackle the public health crisis [of substance abuse and addiction].”42 In the 11th hour before the legislative session for the year concluded, Governor Wolf signed five bills into law.43 Together the bills: restrict the number of opioid pills a physician may prescribe to minors, including limiting the number of pills to seven days’ worth; create a “safe opioid prescribing curriculum” for medical schools; establish a more scrupulous monitoring system; restrict prescriptions for opioid analgesics from hospital emergency departments and urgent care facilities to quantities that last no more than seven days; and create a number of safe drop-off places for unwanted and unused prescription pain medications.44 These are all just the beginning steps in addressing the symptoms of the problem, but they are necessary steps to help those in need right now. We have a long way to go. We (Continued on page 10) 9

Contents

Tecato Gusano: The Insatiable Worm (Continued from page 9)

must stop treating crimes of addiction the same way we treat violent crimes. We must stop being ashamed of the underlying mental health problems associated with addiction. We must stop self-medicating. But to do this, the law must allow addicts and substance abusers to receive treatment, and we must reform the system that treats them like violent criminals.

1

2

3

Hospitalizations for Overdose of Pain Medication and Heroin, Pennsylvania Health Care Cost Containment Council, January 26, 2016, http://www.phc4.org/reports/researchbriefs/overdoses/012616/ docs/researchbrief_overdose2000-2014.pdf Jonathan Rothwell, Drug offenders in American prisons: The Critical Distinction Between Stock and Flow, The Brookings Institute, November 25, 2015, https://www.brookings.edu/blog/social-mobilitymemos/2015/11/25/drug-offenders-in-american-prisons-the-criticaldistinction-between-stock-and-flow/#.VlX9rcs06CM.twitter Bell, Bucklen, Nakamura, Tomkiel, Russell, Orth, Recidivism Report 2013, Pennsylvania Department of Corrections, 21, February 8, 2013, https://www.prisonlegalnews.org/media/publications/pa_doc_ recidivism_report_2013.pdf

4 Recidivism, National Institute of Justice-Office of Justice Programs, June 17, 2014, http://www.nij.gov/topics/corrections/recidivism/pages/ welcome.aspx 5

Opioid Painkiller Prescribing, Centers for Disease Control and Prevention, July 2014, http://www.cdc.gov/vitalsigns/opioidprescribing

6 Understanding the Epidemic, Centers for Disease Control and Prevention, June 21, 2016, https://www.cdc.gov/drugoverdose/ epidemic

21 Id. 22 Id. 23 Chris Henrichson, Ruth Delaney, The Price of Prisons: What Incarceration Costs Taxpayers, Vera Institute of Justice, January 2012, http://archive.vera.org/sites/default/files/resources/downloads/ price-of-prisons-updated-version-021914.pdf 24 Adam Lamparello, NOTE & COMMENT: Reaching Across Legal Boundaries: How Mediation Can Help the Criminal Law in Adjudicating ‘Crimes of Addiction,’ 16 Ohio St. J. on Disp. Resol. 335 25 Id. 26 Id. at 337 27 Id. at 347 28 Id. at 360 29 Drug Courts U.S. Department of Justice, Office of Justice Programs, May 2016, https://www.ncjrs.gov/pdffiles1/nij/238527.pdf 30 Supra, Lamparello at 362 31 Id. 32 Id.

Duff Wilson, Obama signs into law opioid addiction bill to protect newborns, Reuters, July 22, 2016, http://www.reuters.com/article/ us-health-congress-opioids-obama-idUSKCN1022KW

33 Newswise, Replacing Prison Terms With Drug Abuse Treatment Could Save Billions In Criminal Justice Costs, RTI International, January 9, 2013, http://www.newswise.com/articles/study-replacingprison-terms-with-drug-abuse-treatment-could-save-billions-incriminal-justice-costs

8 Harriet Ryan, Lisa Giron, Scott Glover, You Want a Description of Hell?

OxyContin’s 12-Hour Problem, The LA Times, May 5, 2016, http://www. latimes.com/projects/oxycontin-part1

34 Gary Gutting and Douglas Husak, Why Punish Drug Users At All? New York Times-Opinionator, November 25, 2015, http://opinionator. blogs.nytimes.com/2015/11/24/why-punish-drug-users-at-all/?_r=1

9 Carrie Arnold, The Fight for the Overdose Drug, The Atlantic, December 29, 2014, http://www.theatlantic.com/health/ archive/2014/12/the-fight-for-the-overdose-drug/383467 10 Id.

35 Anne Gearan, Hillary Clinton’s $10 billion plan for treating drug addiction, The Washington Post, September 2, 2015, https://www. washingtonpost.com/news/post-politics/wp/2015/09/02/hillaryclintons-10-billion-plan-for-treating-drug-addiction

11 Opioid Painkiller Prescribing, Centers for Disease Control and Prevention, July 2014, http://www.cdc.gov/vitalsigns/opioidprescribing

36 Office of National Drug Control Policy, Substance Abuse and the Affordable Care Act, The White House, https://www.whitehouse.gov/ ondcp/healthcare

12 Supra, Arnold

37 Michael Dahr, How Obamacare is Changing Addiction Treatment Coverage, The Huffington Post, March 4, 2014, http://www. huffingtonpost.com/2014/03/04/obamacare-addiction-treatmentcoverage-aca_n_4896388.html

7

13 Id. 14 Id. 15 National Drug Control Strategy-2014 National Drug Control PolicyExecutive Office of The President of The United States, 1, https:// www.whitehouse.gov/sites/default/files/ndcs_2014.pdf 16 David C.S., Southwell J.K., Niehaus V.R., Walley A.Y., Dailey M.W., Emergency medical services naloxone access: a national systematic legal review, The Network for Public Health Law-Southeastern Region, Carrboro, NC, October 21, 2014, https://www.ncbi.nlm.nih.gov/ pubmed/25308142 17 Id. 18 Drug War Statistics, Drug Policy Alliance, http://www.drugpolicy.org/ drug-war-statistics 19 Behind Bars: Substance Abuse and America’s Prison Population, The National Center on Addiction and Substance Abuse, February 2010, http://www.centeronaddiction.org/addiction-research/reports/ substance-abuse-prison-system-2010 20 Id.

10

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.

JURIS MAGAZINE

38 Press Release, CMS finalizes mental health and substance use disorder parity rule for Medicaid and CHIP, Centers for Medicare and Medicaid Services, March 29, 2016, https://www.cms.gov/Newsroom/ MediaReleaseDatabase/Press-releases/2016-Press-releasesitems/2016-03-29.html 39 Advanced Recovery Systems, What the Affordable Care Act Means to the Treatment Industry, Updated 2016, https://www. advancedrecoverysystems.com/affordable-care-act 40 D.J. Jaffe, The Real Mental Health Crisis In America, Ripon Forum, Winter 2014, 6, http://mentalillnesspolicy.org/hr3717/ripon.oped.pdf 41 Id. 42 Governor Tom Wolf, Governor Wolf Signs Bills to Battle Heroin and Opioid Crisis, PA.Gov, November 2, 2016, https://www.governor.pa.gov/ governor-wolf-signs-bills-to-battle-heroin-and-opioid-crisis 43 Id. 44 Id.

|

WINTER 2017

Contents

Hidden Costs: Potential Effects of the Fight for Fifteen

By Joseph Baublitz, Staff Writer

“The Fight for $15” is a campaign popularized by Senator Bernie Sanders,1 and later adopted by former Democratic Presidential Nominee Hilary Clinton,2 which calls for a $15-perhour federal minimum wage for all employees. The call is for a “living wage,”3 a wage designed to enable American workers to live comfortably. It would improve the quality of life of many employees; however, the proposal would increase the current federal minimum wage of $7.25 by 107 percent.4 The United States has never experienced such a dramatic hike in the minimum wage. Unfortunately, the unprecedented increase of the federal minimum wage to $15 per hour would likely hurt the very people it purports to help.

approach $30,000.9 This increase would double an individual’s wage, making it a “living wage.” Additionally, proponents claim that an increase in the minimum wage will increase productivity and decrease turnover.10 Sadly, the issue is not that simple. Last year, over 50 percent of all workers in America earned less than $30,000.11 Bringing the minimum wage to that level across the country could have devastating effects. A blanket increase of the federal minimum wage this drastic could cause businesses to move operations, 12 push industries into automation, 13 and force companies to cut their workforces,14 which will only work to increase unemployment, not improve quality of life.

The Issue

A Brief History

As of 2013, about 3.3 million workers have wages equal to or less than the federal minimum wage, about 4.3 percent of the hourly workforce.5 Half of these workers are above the age of 25.6 If a minimum-wage employee works 40 hours a week for 52 weeks, his wage would be $15,080.7 In 2015, the poverty threshold for an individual under the age of 65 was $12,331.8 Therefore, millions of American workers are living around the poverty line.

The contingent endorsing a $15-per-hour federal minimum wage want to give these workers, along with the millions who are making between $7.25 and $15 per hour, a wage that would

President Franklin D. Roosevelt, while legislating the New Deal, first established the federal minimum wage in 1938 by enacting the Fair Labor Standards Act.15 The $0.25 standard was designed to protect workers and improve their working conditions, a promise made during his 1936 presidential campaign.16 President Roosevelt felt that companies were exploiting workers during the Great Depression, and the legislation was his response. The last increase in the minimum wage occurred in 2009, and increased the minimum wage from $5.85 to $7.25 per hour.17 States have reacted to minimum-wage (Continued on page 12) 11

Contents

Hidden Costs: Potential Effects of the Fight for Fifteen (Continued from page 11)

changes through their own legislation. Today, 29 states and Washington, D.C., have a minimum wage greater than the federal remuneration rate, 14 are on par with the federal minimum wage, two states have minimum wage lower than the federal level, and five have no required minimum wage.18

A National Effect As paraphrased by Sir Isaac Newton’s Third Law of Motion, every action has an equal and opposite reaction; businesses will react accordingly to a federal minimum wage increase as drastic as this one. According to famed economist Robert Coase, companies exist “because they can reduce or eliminate the ‘transaction cost’ of going to the market by doing things in-house.”19 Essentially, companies exist because they are a more efficient way to make money than a single entrepreneur. The reaction by these businesses would be to find more efficient ways to make money or become more frugal. A blanket increase across the country would force industries to act.

A Business Decision “The exodus has begun.”

– Sung Won Sohn, economist and former director at Forever 21.20 A number of cities have enacted legislation that increases the minimum wage to $15 per hour. Los Angeles, New York City, San Francisco, Seattle, and Washington, D.C., all have statutes incrementally increasing the minimum wage in their cities to eventually reach $15.21 People look to these cities as evidence—if they can do it, what is stopping the federal government from enacting a $15 minimum wage? New York City and San Francisco have the highest cost of living in the United States, while the other cities are among the highest as well.22 Moreover, the incomes for these metropolitan areas are among the highest.

San Francisco, New York City, and Washington, D.C., have the highest median household incomes in the entire country,23 and all of these cities are included in the top 10 richest in America.24 A person living in these cities would need a salary of $75,000 to live comfortably. 25 Comparing these cities to the rural areas of the country would be unreasonable, as the median household income for the country is only $53,482.26 Businesses may simply move to local areas that do not have these laws, taking the jobs out of the city. For example, businesses in Washington, D.C., may move operations to Virginia, 27 which has a state minimum wage equal to the federal $7.25.28 In Los Angeles, many companies in the garment industry have begun to move operations out of the city. 29 Economist and a former director at Forever 21, Sung Won Sohn, believes that an exodus has begun in the city. She claims that “[t]he garment industry is gradually shrinking and that trend will likely continue”

entirely because the increase in the minimum wage has driven up the cost of textile production. 30 As a result of the increase in the minimum wage, higher prices are passed off to customers who find the costs too burdensome. 31 Proponents of the $15-per-hour minimum wage say that it is only “greed, not survival” that pushes companies to move operations out of the city.32 American Apparel tries not to be like the others. In the late 1990s, companies in the garment industry were moving out of the city, but American Apparel stayed, paying its workers more than the required minimum wage.33 Unfortunately, the current legislation has forced the company to think otherwise as it is contemplating moving operations outside the city limits to Vernon, Calif.34 Manufacturing jobs are in danger, also. With an increase in the minimum wage, manufacturers are faced with the decision of whether to move operations overseas. In conjunction with manufacturing is shipping, and, in a world of Amazon drones and FedEx, it has become “pretty simple to ship goods around these days, anywhere on the container shipping network faces much the same costs.” 35 An increase in the minimum wage would lead manufacturers to move operations overseas because shipping costs would be less than the increase in labor costs.36 A number of advocates for the $15 minimum wage vilify businesses for moving operations overseas, but moving outside the country is understandable when the minimum wage would be the highest in the world where businesses are already subject to the third-highest corporate tax rate.37 When manufacturers leave, blue-collar manufacturing jobs would leave also, driving up unemployment. Every action has an equal and opposite reaction.

An Employment Squeeze “[I]t will mean wiping out thousands of entry-level opportunities for people without many other options.”

– Ed Rensi, former president and CEO of McDonald’s USA. 38

Fast food and similar enterprises are also within the center of this debate. Hundreds of workers from this industry went on strike in November 2015, which was the catalyst of the national call for a $15 per hour federal minimum wage. The industry has already seen an 11 percent drop in employment in the past decade. 39 Fast food prices are very elastic. A study has shown that increasing prices by 10 percent will decrease sales by 9 percent.40 If a $15-per-hour minimum wage were enacted, fast food restaurants would have to increase prices by 38 percent.41 Consequently, profits and sales would decrease by 77 percent and 36 percent, respectively.42 This wage was designed to improve the lives of the staff in this type of industry, but the hours worked for fast food employees would decrease by

As of 2013, about 3.3 million workers have wages equal to or less than the federal minimum wage, about 4.3 percent of the hourly workforce.

(Continued on page 13) 12

JURIS MAGAZINE

|

WINTER 2017

Contents

Hidden Costs: Potential Effects of the Fight for Fifteen (Continued from page 12)

36 percent.43 This result will push restaurants to act, shutting the door on many entry-level positions as companies try to protect their profits.44 Proponents of an increased minimum wage claim that productivity will increase while turnover will decrease.45 This argument was prevalent when President Obama wanted to bring the minimum wage up to $10.10.46 There is little doubt that workers making double their current wage will work harder and stay at their jobs longer. However, there will be fewer people who have jobs, as previously noted. Seattle has seen its sharpest decline in employment since the recession after the $15 minimum wage legislation was enacted, a decrease of 11,000 employees.47 The world’s largest fast food chain, McDonald’s, employing 760,00048 people domestically, has recorded lower earnings for the past two years.49 As a result, the company has simplified its menu. With the threat of an increase in wages along with its lower earnings, it rationally follows that the company will shrink the workforce.50 Ed Rensi, former president and CEO of McDonald’s USA, believes that increasing the minimum wage to this extent will kill thousands of jobs within the company.

He claims “it will mean wiping out thousands of entry-level opportunities for people without many other options.”51 To avoid increasing prices, McDonald’s will need to shrink the workforce and implement more automation.52

A Push for Automation Opponents of the “Fight for $15” claim that these types of restaurants will see rapid innovations as a result of the push for a higher minimum wage. 53 Payroll is one of the greatest expenses in any industry. To curb the cost of labor, businesses have been making a push toward automation. Uber, for example, wants to take the cost of labor largely out of its business model.54 Introducing self-driving vehicles, the company wants to make “the cost of taking an Uber anywhere cheaper than owning a vehicle.”55 Additionally, 5.3 million manufacturing jobs, or 35 percent of all manufacturing workers, earn wages less than

$15 per hour.56 Manufacturers will certainly move toward more automation or move operations, as previously noted.

Additionally, fast food restaurants can utilize automation to curb rising labor costs. These restaurants have seen a rise in “kiosk and tablet-based ordering,” which “could be used to replace cashiers and the part of the wait staffs’ job that involves taking orders and bringing checks.”57 Staffing in this industry may be cut in half due to automation.58 Contrary to popular belief, these owners are not making millions of dollars. Ninety percent of McDonald’s are independently owned franchises where the owners are making only 6 cents on each dollar of sales after accounting for “food, staff costs, rent, and other expenses.”59 Automation would be an efficient way to maintain this slim profit.

There is hope, however, as these innovations may actually help create jobs. A number of economists believe that with automation comes job creation.60 This is predicated on the fact that innovations will decrease prices and give consumers more spending money for other services.61 Sadly, this is unlikely to happen under a $15 minimum wage because the increase in wages will likely displace any money saved from automating.

Nonetheless, certain jobs will become easier with innovations and increased productivity.62 These jobs, unfortunately, are in “medicine, education, and professional services,” none of which typically pay the minimum wage. 63 The employees who this proposition purports to help will not be served by innovations.

The Conclusion Those who engage in the “Fight for $15” are optimists; they tend to believe that government regulation can help improve the lives of underprivileged individuals. This is a noble stance.

However, this type of well-intended, but economically cursory, regulation may cause more harm to these individuals than it would help them. Increasing the federal minimum wage would likely drive businesses out of the country, push industries into automation, and force companies to cut their workforces.

Therefore, a $15-per-hour minimum wage will only work to increase unemployment, not improve the quality of life of those in need.

Instead of using government regulations, an alternative solution could be to remove them. As previously mentioned, the corporate tax rate in America is the third-highest in the world.

Making the United States a more desirable market by cutting taxes and removing the healthcare burdens on small businesses will bring more jobs. Foreign companies will bring operations to America, and small businesses will have a better chance at survival. With more jobs comes more competition, in addition to a lower unemployment rate. Competition brings higher pay and benefits to obtain the best talent, to gain a competitive advantage. The money saved from a decrease in taxes and removal of other government regulations could be used to pay for better employees, giving them a living wage.

Joseph Baublitz is a J.D./M.B.A. dual-degree candidate at Duquesne University School of Law and Donahue Graduate School of Business. Possessing a B.S. in Business Management, Baublitz plans to utilize his business and legal degrees for a career in corporate law.

(Continued on page 14) 13

Contents

Hidden Costs: Potential Effects of the Fight for Fifteen (Continued from page 13)

1 A Living Wage, Bernie 2016, n.d., https://berniesanders.com/issues/aliving-wage/.

2 Lydia DePillis, Hillary Clinton Endorses Fight for a $15 Minimum Wage, The Washington Post, June 7, 2015, https://www.washingtonpost.com/ news/wonk/wp/2015/06/07/hillary-clinton-sounds-populist-note-at-fastfood-workers-convention/.

3 A Living Wage, Bernie 2016, n.d., https://berniesanders.com/issues/aliving-wage/.

4 29 U.S.C.A. § 206 (West 2016).

5 Simone Pathe, Undisputed Facts About the Minimum Wage, PBS, January 1, 2015, http://www.pbs.org/newshour/making-sense/undisputed-factsminimum-wage/.

6 Id. 7 David Cooper, The Minimum Wage Used To Be Enough To Keep Workers Out Of Poverty—It’s Not Anymore, Economic Policy Institute, December 4, 2013, http://www.epi.org/publication/minimum-wage-workers-povertyanymore-raising/.

8 Data, Census, 2015, http://www.census.gov/data/tables/time-series/demo/ income-poverty/historical-poverty-thresholds.html.

9 Ed Rensi, The Ugly Truth About A $15 Minimum Wage, Forbes, April 25, 2016, http://www.forbes.com/sites/realspin/2016/04/25/mcdonaldsminimum-wage-reality/?utm_channel=Opinion#5b78218458bb.

10 Jeanne Sahadi, Raising Minimum Wage Would Ease Poverty but Cost Some Jobs, CNN Money, February 18, 2014, http://money.cnn. com/2014/02/18/news/economy/minimum-wage-cbo/index.html.

11 Wage Statistics for 2014, Social Security Online, November 18, 2016, https://www.ssa.gov/cgi-bin/netcomp.cgi?year=2014.

12 Tim Worstall, $15 Minimum Wage Threatens 5.3 Million US Manufacturing Jobs, Forbes (September 2, 2015), http://www.forbes.com/sites/ timworstall/2015/09/02/15-minimum-wage-threatens-5-3-million-usmanufacturing-jobs/#6741cd452f85.

13 Id. 14 James Sherk, Higher Fast-Food Wages: Higher Fast-Food Prices, Heritage, September 4, 2014, http://www.heritage.org/research/ reports/2014/09/higher-fast-food-wages-higher-fast-food-prices.

15 Jonathan Grossman, Fair Labor Standards Act of 1938: Maximum Struggle for a Minimum Wage,” United States Department of Labor, n.d, https://www.dol.gov/general/aboutdol/history/flsa1938.

16 Id. 17 29 U.S.C.A. § 206.

18 Minimum Wage Laws in the States, United States Department of Labor, n.d., https://www.dol.gov/whd/minwage/america.htm.

19 The Economics of Companies, The Economist, September 5, 2013, http:// www.economist.com/news/leaders/21584985-anyone-who-cares-aboutcapitalism-and-economics-should-mourn-death-ronald-coase-man.

20 Shan Li & Natalie Kitroeff, California Minimum Wage Hike Hits L.A. Apparel Industry: ‘The Exodus Has Begun,’ Los Angeles Times, April 15, 2016, http://www.latimes.com/business/la-fi-garment-manufacturing-la20160416-story.html.

21 Victor Luckerson, Here’s Every City in America Getting a $15 Minimum Wage, Time, July 23, 2015, http://time.com/3969977/minimum-wage/.

22 Cost of Living in United States, Numbeo, n.d, https://www.numbeo.com/ cost-of-living/country_result.jsp?country=United+States.

23 Income, Census, n.d., http://www.census.gov/topics/income-poverty/ income.html.

24 Erika Rawes, The 10 riches cities in America, USA Today, January 25, 2015, http://www.usatoday.com/story/money/personalfinance/2015/01/25/ cheat-sheet-10-richest-cities/21394881/.

25 Id. 26 Median Household Income, Census, n.d., http://www.census.gov/ search-results.ml?q=median+household+income&page= 1&stateGeo=none&searchtype=web&cssp=Typeahead.

27 Harry Holzer, A $15-hour Minimum Wage Could Harm America’s Poorest Workers, Brookings, July 30, 2015, https://www.brookings.edu/opinions/a15-hour-minimum-wage-could-harm-americas-poorest-workers/.

28 Minimum Wage Laws in the States, United States Department of Labor, n.d., https://www.dol.gov/whd/minwage/america.htm.

29 Shan Li & Natalie Kitroeff, California Minimum Wage Hike Hits L.A. Apparel Industry: ‘The Exodus Has Begun,’ Los Angeles Times, April 15, 2016, http://www.latimes.com/business/la-fi-garment-manufacturing-la20160416-story.html.

30 Id. 14

JURIS MAGAZINE

|

WINTER 2017

31 Id. 32 Id. 33 Id. 34 Id. 35 Tim Worstall, $15 Minimum Wage Threatens 5.3 Million US Manufacturing Jobs, Forbes (September 2, 2015), http://www.forbes.com/sites/ timworstall/2015/09/02/15-minimum-wage-threatens-5-3-million-usmanufacturing-jobs/#6741cd452f85.

36 Id. 37 Kyle Pomerleau & Emily Potosky, Corporate Income Tax Rates around the World, 2016, Tax Foundation, August 18, 2016, http://taxfoundation.org/ article/corporate-income-tax-rates-around-world-2016.

38 Ed Rensi, The Ugly Truth About A $15 Minimum Wage, Forbes, April 25, 2016, http://www.forbes.com/sites/realspin/2016/04/25/mcdonaldsminimum-wage-reality/?utm_channel=Opinion#5b78218458bb.

39 Id. 40 James Sherk, Higher Fast-Food Wages: Higher Fast-Food Prices, Heritage, September 4, 2014, http://www.heritage.org/research/ reports/2014/09/higher-fast-food-wages-higher-fast-food-prices.

41 Id. 42 Id. 43 Id. 44 Id. 45 Jeanne Sahadi, Raising Minimum Wage Would Ease Poverty But Cost Some Jobs, CNN Money, February 18, 2014, http://money.cnn. com/2014/02/18/news/economy/minimum-wage-cbo/index.html.

46 Id. 47 Stacy French, American Enterprise Institute’s Analysis of Minimum Wage Hikes in Seattle, The Club for Growth, February 24, 2016, http://www. clubforgrowth.org/club-in-the-news/american-enterprise-institutesanalysis-of-seattles-minimum-wage-hike/.

48 Lawrence Lewitinn, What would a $15/hour wage mean for McDonald’s?

Yahoo! Finance, August 29, 2013, http://finance.yahoo.com/blogs/talkingnumbers/15-hour-wage-mean-mcdonald-170436977.html.

49 McDonald’s Corp. (MCD), Yahoo! Finance, n.d., http://finance.yahoo.com/ quote/MCD/financials?p=MCD. 50 Ed Rensi, The Ugly Truth About A $15 Minimum Wage, Forbes, April 25, 2016, http://www.forbes.com/sites/realspin/2016/04/25/mcdonaldsminimum-wage-reality/?utm_channel=Opinion#5b78218458bb.

51 Id. 52 Id. 53 Lydia DePillis, Minimum-wage Offensive Could Speed Arrival of Robotpowered Restaurants, The Washington Post, August 16, 2015, https://www. washingtonpost.com/business/capitalbusiness/minimum-wage-offensivecould-speed-arrival-of-robot-powered-restaurants/2015/08/16/35f284ea3f6f-11e5-8d45-d815146f81fa_story.html.

54 Mike Jones, All Eyes On Pittsburgh, Juris Magazine, October 1, 2016, http://jurismagazine.com/all-eyes-on-pittsburgh/.

55 Id. 56 Tim Worstall, $15 Minimum Wage Threatens 5.3 Million US Manufacturing Jobs, Forbes, September 2, 2015, http://www.forbes.com/sites/ timworstall/2015/09/02/15-minimum-wage-threatens-5-3-million-usmanufacturing-jobs/#6741cd452f85.

57 Lydia DePillis, Minimum-wage Offensive Could Speed Arrival of Robotpowered Restaurants, The Washington Post, August 16, 2015, https://www. washingtonpost.com/business/capitalbusiness/minimum-wage-offensivecould-speed-arrival-of-robot-powered-restaurants/2015/08/16/35f284ea3f6f-11e5-8d45-d815146f81fa_story.html.

58 Id. 59 Ed Rensi, The Ugly Truth About A $15 Minimum Wage, Forbes, April 25, 2016, http://www.forbes.com/sites/realspin/2016/04/25/mcdonaldsminimum-wage-reality/?utm_channel=Opinion#5b78218458bb.

60 Katie Allen, Technology Has Created More Jobs Than It Has Destroyed, Says 140 years of Data, The Guardian, August 18, 2015, https://www. theguardian.com/business/2015/aug/17/technology-created-more-jobsthan-destroyed-140-years-data-census.

61 Id. 62 Id. 63 Id.

Contents

The Second:

An Amendment Under Siege?

By Kyle Fiesler, Executive Editor

This past election season has been filled with many memorable moments and statements. But one of the most puzzling, in particular, was President-elect Donald Trump’s statement, “The Second Amendment is under absolute siege.”1 Maybe it is the irony of using “siege” and our constitutional right to possess arms together that makes the statement so impactful.

But besides claiming that if Hillary Clinton won the 2016 election, then “we will have a Second Amendment which will be a very small replica of what it is right now,”2 President-elect Trump did not elaborate on how or why the Second Amendment is under siege.

Trump’s statements originated from questions regarding potential Supreme Court candidates. When Antonin Scalia died on Feb. 13, 2016,3 he left a massive, gaping hole in American jurisprudence. To many, Justice Scalia had become a cornerstone of conservative thought through his legal work and fiery opinions as a Supreme Court Justice. Justice Scalia took strong positions on abortion, homosexual marriage, and the Second Amendment, so his death offered an opportunity for a potential sea-change in our nation’s legal stance on these issues. And, before his death, Justice Scalia made huge waves in Second Amendment law with his landslide opinion in the 2008 decision of District of Columbia v. Heller.4 In Heller, the Supreme Court considered whether a District of Columbia law prohibiting the possession of usable handguns in the home violated the Second Amendment. The law made it a crime to carry an unregistered firearm, and prohibited the registration of any handgun within the District of Columbia.5 Unrelated to the prohibition, the law further provided that no person could carry a handgun without a license, which, if one’s application was accepted by the chief of police, were available for a one-year period.6 Finally, the law also required that legally owned firearms (other than handguns), such as registered long guns, had to be disassembled or trigger-locked unless they were located at a place of business or were being used for legal

recreational purposes.7 This law, in essence, precluded an individual from owning a handgun or a functioning firearm in public unless it fell under the listed exceptions above, or the firearm was at home.

Justice Scalia, writing for the majority, “upended the table” on the District’s law and held it unconstitutional to ban handgun possession or to require that firearms at home be rendered inoperable.8 Looking to the history of the Constitution and the purpose of the Second Amendment, Justice Scalia interpreted the amendment as protecting an individual’s right to possess a firearm, unconnected with military (or militia) service, and to use that weapon for traditional, lawful purposes,­particularly self-defense.9 However, this, like many other rights, is a qualified right and some restrictions on the right to possess firearms have been upheld.10 Two years after Heller, the Supreme Court decided McDonald v. City of Chicago.11 The case dealt with laws in Chicago and Oak Park, a suburb of Chicago, that effectively banned possession of handguns by their citizens, much like the laws in the District of Columbia had in Heller.12 However, the city and its suburb argued that their laws were constitutional because the Second Amendment didn’t apply to the states.13 Originally, the Bill of Rights, including the Second Amendment, only applied to the federal government.14 But constitutional amendments, such as the Fourteenth Amendment, adopted after the conclusion of the Civil War, drastically altered the federal system. Specifically, the Court noted that § 1 of the Fourteenth Amendment contained two clauses: one that “provide[d], among other things, that a State may not abridge ‘the privileges or immunities of citizens of the United States,’” known as the Privileges and Immunities Clause, and another that prohibited a state from depriving “any person of life, liberty, or property, without due process of law,” known as the Due Process Clause.15 (Continued on page 16) 15

Contents

The Second: An Amendment Under Siege?

(Continued from page 15)

The Slaughter-House cases, 83 U.S. 36 (1872),16 held that fundamental rights predating the creation of the federal government, which “the States were created to establish and secure,” were not protected by the Privileges and Immunities Clause.17 As such, the Court in McDonald proceeded under the theory that if the Second Amendment would be applied to the states, it would be through the Due Process Clause of the Fourteenth Amendment.18 The McDonald Court pointed out that by the late 19th century, prior Courts had begun a process of selectively incorporating rights contained in the first eight amendments.19 To be incorporated by the Due Process Clause, the Court had to determine “whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice.”20 And, relying on the Court’s previous discussion of this matter in Heller two years prior, the right to bear arms for selfdefense was recognized as a basic, fundamental right, “deeply rooted in this Nation’s history and traditions.”21 Thus, the Court held that the states were beholden to the Second Amendment by virtue of the Fourteenth Amendment’s Due Process Clause.22 This was the ground for Trump’s statement regarding the Second Amendment during this past election. Heller secured the right to bear arms for self-defense purposes on the federal level, and McDonald applied that right to the states. Essentially, the fear that another party could appoint a justice that would overrule or further limit the rights recognized in Heller and McDonald was the driving force behind these statements.

1

Trump: Second Amendment Is Under Siege, Bloomberg Politics, (Oct. 19, 2016) http://www.bloomberg.com/politics/videos/2016-10-20/ trump-second-amendment-is-under-siege

2

Id.

3

Robert Barnes, Supreme Court Justice Antonin Scalia dies at 79, The Washington Post, (Feb. 13, 2016) https://www.washingtonpost.com/ politics/supreme-court-justice-antonin-scalia-dies-at-79/2016/02/13/ effe8184-a62f-11e3-a5fa-55f0c77bf39c_story.html

4 District of Columbia v. Heller, 554 U.S. 570 (2008) 5 Id. at 574-575.

19 McDonald, 561 U.S. at 763-764.

9 Id. at 630 (stating that the District’s requirement that firearms at home be rendered inoperable prevents the use of weapons “for the core lawful purpose of self-defense and is hence unconstitutional”).

10 Id. at 625-627 (explaining the historical precedence for prohibiting weapons not commonly possessed by law-abiding citizens for lawful purposes, as well as prohibiting certain classes of individuals, e.g., the mentally ill and prior felons, from possessing firearms).

11 McDonald v. City of Chicago, 561 U.S. 742 (2010).

12 Id. at 750.

13 Id. 14 Id. at 754 citing Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833) (rejecting the notion that the first eight amendments limit the States, and holding that they only apply to the Federal Government).

15 Id. (parentheticals added).

JURIS MAGAZINE

16 These were consolidated cases that dealt with whether certain rights were protected by the Privileges and Immunities Clause of the Fourteenth Amendment. The Slaughter-House cases ultimately interpreted the Privileges and Immunities Clause narrowly, only protecting those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” 83 U.S. at 79. Because the Second Amendment, as well as the other amendments found in the Bill of Rights were not created by the Federal government, but actually existed before it, they were not binding on the States through the Privileges and Immunities Clause.

Id. at 76.

18 McDonald, 561 U.S. at 758-759.

Id.

8 Id. at 635-636.

16

Kyle Fiesler, a 2017 J.D. candidate, is executive editor of Juris. He has written previously on constitutional law and criminal justice issues. Currently, he interns with the Allegheny County Office of the Public Defender. Upon completing his degree, Fiesler plans to pursue a career as a criminal defense attorney in Pennsylvania.

17 Slaughter-House, 83 U.S. at 76.

6 Id. at 575.

7

This article cannot do justice to the complexity of the issue faced by the United States regarding the Second Amendment. In the last few years, our country has become increasingly aware of issues involving firearms through events such as the shooting of Michael Brown, and subsequent disputes and fatalities between black people and police officers,23 armed individuals occupying the Malheur National Wildlife Refuge building in Oregon,24 and controversial statements regarding dangerous immigrants25 to name but a few. All of these incidents have stoked the fires of the debate regarding the Second Amendment and what it means for the nation to permit individuals to continue possessing firearms. With the results of the election, Trump is on his way to the White House, and it is probably safe to assume that the Second Amendment will remain as it is for some time. However, although it cannot be said that these events will alter the current state of gun-control law established by Heller and McDonald, it is certainly true that the Second Amendment will be “absolutely under siege” if our country continues down the divisive and violent path it has traveled these past few years.

|

WINTER 2017

20 Id. at 764 citing Duncan v. Louisiana, 391 U.S. 145 (1968).

21 Id. at 767 citing Washington v. Glucksburg, 521 U.S. 702, 721 (1997).

22 Id. at 791. And, as a result, the Chicago statute and its suburban counterpart were invalid since they denied the right to bear arms.

23 Michael Brown’s Shooting and Its Immediate Aftermath in Ferguson, The New York Times, (Aug. 25, 2014) http://www.nytimes.com/ interactive/2014/08/12/us/13police-shooting-of-black-teenagermichael-brown.html#/#time348_10366; Christine Hauser, Missouri Man is Shot Dead by Officer During Break-in After Black Lives Matter Dispute, The New York Times, (July 11, 2016) http://www.nytimes. com/2016/07/12/us/missouri-man-is-shot-dead-by-officer-duringbreak-in.html 24 Holly Yan and Joe Sutton, Armed Protesters Refuse to Leave Federal Building, CNN News, (Jan. 4, 2016) http://www.cnn.com/2016/01/04/ us/oregon-wildlife-refuge-protest 25 Julianne Hing, Immigrants Aren’t Just Drug Dealers and Rapists Anymore—Now They’re Murderers, Too, The Nation, (July 22, 2016) https://www.thenation.com/article/trump-warns-of-immigrants-oncemerely-drug-dealers-and-rapists-now-also-murderers

Contents

Lights, Camera, Fashion!

Image Source: http://kyleneverywear.com/ how-to-dress-for-the-holidays-in-florida/

Or a Legal Cause of Action?

By Melissa Sarnicke, Staff Writer

As one of the most luxurious fashion footwear brands, Aquazzura is known for its contemporary footwear designs that combine European luxury and tradition, impeccable craftsmanship, and comfort for the modern woman.1 Stepping into the fashion world in 2011, Columbian designer Edgardo Osorio launched Aquazzura, his Florence-based luxury footwear brand, when he was just 25 years old.2 Osorio’s fashionable, yet wearable, footwear designs flourished, and his iconic designs are frequently flaunted by celebrities. Aquazzura’s shoe designs are often featured in popular high-fashion magazines such as Elle, Vogue, and Harper’s Bazaar, and according to Elle magazine, “Edgardo Osorio hit the footwear scene with Aquazzura and quickly joined rank with the biggest players in the shoe game.”3 The designer has won numerous awards for his footwear designs, including the Footwear News’ “Best Designer in 2015” award, the “Vivian Infatino Emerging Talent Award” in 2013, and Elle Spain’s “Best Accessories Designer of the Year” in 2014.4 This year, Osorio accepted the Fashion Footwear Association

of New York “Designer of the Year” award, along with the Marie Claire, Prix De La Mode award for “Designer of the Year.”5 Sold throughout the United States and worldwide under the AQUAZZURA trademark, the footwear designs have achieved substantial prominence in the shoe industry and are now “instantly recognized by consumers throughout the United States as having emanated from Aquazzura.”6 Aquazzura has been particularly successful for its distinctive design of the “Sexy Thing,” which is the brand’s “signature shoe that has made it a household name in the fashion industry.”7 Additionally, Aquazzura’s “Wild Thing” and “Christy” shoe designs have gained widespread consumer recognition. However, due to Aquazzura’s worldwide success and popularity, other shoe designers have manufactured and marketed shoes that mirror Aquazzura’s designs. In fact, low-end designers have produced knock-offs that are confusingly similar to consumers, causing buyers to falsely believe that the knock-offs are associated with Aquazzura. Because the production of knock-offs is “trending” in (Continued on page 18)

Image sources: Aquazzura Italia S.R.L. v. Steve Madden Limited, 1:16-CV-04905 and http://www.thefashionlaw.com/home/aquazzura-sues-steve-madden-over-predatory-copies 17

Contents

Lights, Camera, Fashion!

(Continued from page 17)

the fashion world right now, especially for footwear, Aquazzura took legal action this past summer against two footwear designers—Steve Madden and Ivanka Trump—in an attempt to stop these competitors from copying its distinctive designs, to eliminate consumer confusion, and to prevent any harm to its reputation in the shoe industry.

Earlier this year, designer Steve Madden manufactured and sold three shoe designs that were virtually identical to Aquazzura’s “Sexy Thing,” “Wild Thing,” and “Christy.” In June 2016, Aquazzura discovered Madden’s copied designs and filed a lawsuit against him. According to the complaint, Madden’s predatory business model depends on copying Aquazzura’s designs, and Madden’s “Sassy” pump, “Sharlit” pump, and “Lecrew” ballet flat are indistinguishable from Aquazzura’s footwear designs.8 In particular, the complaint states, “Defendant has copied nearly every detail of the Plaintiff’s well-known and popular ‘Wild Thing’ shoe, from the shape and silhouette to the fringe covering the toes, to the tassel on the heel. The defendant even offered its infringing shoe in a nearly identical color palette.”9 Although the two brands’ shoes are sold at different price points (Aquazzura’s for over $600 and Madden’s for around $100), Aquazzura asserted that it was harmed and continues to be harmed by Madden’s deliberate copying of its three shoe designs, especially because Madden’s infringing products are available through the same channels of trade.10 According to The Fashion Law, a leading source for the business of fashion and fashion law, Aquazzura’s original designs and Madden’s infringing footwear are both available in the same department stores, shoe boutiques, department store websites, and e-commerce sites.11 The Fashion Law noted, “Defendant’s Steve Madden boutique is located merely one mile from Plaintiff’s Aquazzura boutique in Manhattan.”12 In its complaint, Aquazzura alleged trade dress infringement, unfair competition, deceptive trade practices, and design patent infringement.13 Trade dress protection is a form of trademark protection that “extends to the overall commercial image of a product and indicates the source of the product and distinguishes it from those others.”14 As for its claim of trade dress infringement, Aquazzura asserted that its footwear designs were used in commerce, were not functional, and had acquired secondary meaning in the marketplace, and that Madden’s manufacture, distribution, sale, and promotion of its infringing shoes was likely to cause consumer confusion.15 Aquazzura emphasized that Madden’s actions constituted willful trade dress infringement and unfair competition in violation of Section 43 of the Lanham Act, 15 U.S.C. § 1125(a).16 The luxury shoe designer claimed, “Defendant’s flagrant copying of multiple of Plaintiff’s well-known designs is likely to cause consumers to falsely believe that Defendant’s products come from or otherwise are associated with Plaintiff and to harm Plaintiff and the substantial goodwill it has developed in its proprietary designs and trade dress.”17 The complaint further asserts, “Such consumer confusion and harm to Plaintiff will continue as long as Defendant persists in using infringing trade dress for its own goods.”18

Additionally, as to Aquazzura’s claim of deceptive trade practices, the luxury footwear brand asserted that Madden knowingly used the Aquazzura trade dresses to “deceive the public as to the source or sponsorship of [Madden’s] services, and as a result the public will be damaged.”19 Aquazzura claims that Madden’s acts of infringement were conducted in bad faith, as an “attempt to improperly siphon away Plaintiff’s customers and potential customers.”20 Furthermore, Aquazzura owned a valid and subsisting design patent (the “’359 Patent”) for its “Christy” ballet flat, and claimed that Madden’s manufacture, promotion, and sale of his version of Aquazzura’s shoe constituted design patent infringement.21 Madden’s “Lecrew” ballet flat, like Aquazzura’s “Christy,” was a black, pointed ballet flat with laces that tie around the wearer’s ankle, and an ordinary observer would find Madden’s shoe to be substantially similar to Aquazzura’s. Aquazzura asserted that Madden’s acts constituted a violation of Section 271 of the Patent Act, 35 U.S.C. § 271.22 Aquazzura’s chief executive officer, Jean-Michel Vigneau, said in a statement, “Aquazzura is a young company that puts our heart and soul into our designs. We have brought this suit to protect the integrity of our designs, our hard work, and to avoid consumers from being deceived. If a company is allowed to use designs that they did not create which consumers recognize as Aquazzura, then the original designs are compromised. We are confident that the law will not allow the type of copying that we have seen here.”23 Aquazzura asked the court to grant it preliminary and injunctive relief and an array of damages, consisting of “those that Aquazzura has sustained or will sustain by reason of Defendant’s acts of trade dress infringement and unfair competition” along with all gains, profits, property, and advantages resulting from Madden’s unlawful acts.24 Aquazzura and Madden will likely settle outside of court by the end of this year.

However, Madden’s actions were no surprise, for this was not the first time that the designer had knocked-off Aquazzura’s footwear. In fact, Madden has developed a reputation for stealing

Image source: Aquazzura Italia S.R.L. v. Steve Madden Limited, 1:16-CV-04905

(Continued on page 19) 18

JURIS MAGAZINE

|

WINTER 2017

Contents

Lights, Camera, Fashion!

(Continued from page 18)

Balenciaga’s “Lego Shoe” (left) and Madden’s copy (right) Image Source: http://www.thefashionlaw.com/home/balenciaga-and-stevemadden-settle-suit

designs of other high-end shoe creators.25 In 2014, Madden sold a knock-off version of Aquazzura’s “Belgravia Flat” shoe, titled the “Daayna,” and the designs were strikingly similar.26 Both designs featured a pointed ballet-flat style shoe with laceup-ankle straps and a zipper on the heel. Additionally, Madden produced a copy of Aquazzura’s “Belgravia Pump” just last year, and once again, the designs were visually indistinguishable.27 Aquazzura’s “Belgravia Pump” and Steve Madden’s “Kaitlynn Pump” both featured crisscross ankle straps with laces, and both designs contained a pointed toe and a zipper on the heel of the pump.

Not only did Steve Madden infringe upon Aquazzura’s designs, but Madden has also been involved a variety of lawsuits in the past for stealing shoe designs from other renowned high-fashion designers, including Balenciaga, Alexander McQueen, and Stella McCartney.28 For example, in 2009, Madden reproduced an identical version Balenciaga’s famous “Lego Shoe” from its Fall 2007 collection after Beyoncé wore the design to the American Music Awards in 2007.29 The shoes were substantially similar, for they both contained identical colorful straps, buckles, appliques, and studs. According to Balenciaga’s lawyers, Madden “intentionally copied” its $4,175 high heel and retailed his version of the shoe for approximately $100.30 The parties settled in 2009 for an undisclosed amount.31 The Fashion Law pointed out that when Madden spoke about this intentional copying of the “Lego Shoe,” he stated, “It was silly. They did a multicolored shoe and we did it. It was stupid.”32 As mentioned by The Fashion Law, “Madden, himself, is notoriously unfazed by such lawsuits.”33 Because Madden has

Image Source: http://www.thefashionlaw.com/home/aquazzura-filestrademark-suit-against-ivanka-trump-and-licensee

deliberately copied the designs of well-known designers and has sold his replicas for a fraction of the price, it is probable that he will continue do so in the future. In 2013, Madden spoke to The New York Times about the lawsuits for which he has been involved, expressing, “I am not embarrassed by [the lawsuits] whatsoever. I mean, George Harrison was sued for ‘My Sweet Lord,’ right? And John Lennon was sued over ‘Come Together.’”34 Not only has Steve Madden infringed upon the designs of many high-end footwear designers, but Ivanka Trump, and her licensee, Mark Fisher, have done so as well. Like Madden, Trump and Fisher were sued by Aquazzura this past June for trade dress infringement, unfair competition, and deceptive trade practices for copying its most distinctive, best-selling shoe design—the “Wild Thing” shoe.35 According to the complaint, “Defendants have copied nearly every detail of Plaintiff’s wellknown and coveted ‘Wild Thing’ shoe, from the shape and silhouette to the fringe covering the toes, to the tassel on the heel… . A visual comparison of the Defendant’s infringing shoe shows that it is virtually an exact copy of Aquazzura’s ‘Wild Thing.’”36 Trump’s “Hettie Sandal” imitated each element of the “Wild Thing’s” trade dress, and was sold for $145, as opposed to Aquazzura’s price of over $700.37 According to The Fashion Law, “The trade dress at issue consists of the overall appearance and particular combination of elements of the ‘Wild Thing’ shoe that make it distinctive, those individual elements consisting of the overall shape of the shoe, including the angle and slope of the sole of the shoe, the stiletto heel combined with an open toe, the distinctive fringed vamp (the band covering the toe) and the ankle-wrap closure made

Not only did Steve Madden infringe upon Aquazzura’s designs, but Madden has also been involved a variety of lawsuits in the past for stealing shoe designs from other renowned high-fashion designers, including Balenciaga, Alexander McQueen, and Stella McCartney.

(Continued on page 20) 19

Contents

Lights, Camera, Fashion!

(Continued from page 19)

Charlotte Russe Fringed Two-Piece Dress Sandals ($32.99) Image source: http://intheircloset.com/aquazzura-wild-thing-fringed-lace-up-suede-sandals

of tasseled string.”38 Aquazzura claimed that Defendant’s use of Plaintiff’s trade dress would mislead consumers into believing that the infringing shoe was approved, sponsored, or endorsed

by Aquazzura, or that the two companies were connected in some way.39 Furthermore, the “Hettie Sandal” was designed with the intent to create post-sale confusion as to the source of the Defendant’s shoes, “creating an imitation of Plaintiff’s ‘Wild Thing’ shoe that cannot be distinguished post-sale.”40 Because it believed Trump’s copied design would cause harm to its brand, Aquazzura sought preliminary and permanent injunctive relief, along with attorneys’ fees and an accounting of the Defendants’ profits that flowed from the usage of the infringing trade dress.41 The chief financial officer for Marc Fisher, Matthew Burris, responded to the filing of the lawsuit, and stated, “This is a baseless lawsuit aimed at generating publicity. The shoe in question is representative of a trending fashion style, is not subject to intellectual property law protection, and there are similar styles made by several other brands.”42 In August 2016, the Defendants filed their answer to the lawsuit, and Trump’s legal team asserted that the “Hettie Sandal” did not violate the laws of trade dress, nor did it generate unfair competition or unfair trade practices.43 Moreover, Trump and Fisher filed a counterclaim, requesting the court to rule that Aquazzura’s “Wild Thing” shoe should not be entitled to trademark protection.44 As quoted by The Fashion Law, Trump’s team claimed that

Aquazzura “Christy Flats” (left) and Ivanka Trump’s “Tropica Flats” (right) Image Source: http://www.thefashionlaw.com/home/aquazzura-filestrademark-suit-against-ivanka-trump-and-licensee

Aquazzura’s “Wild Thing” design “lacked secondary meaning and does not function as an indicator of source,” and thus, trademark law does not protect the “Wild Thing” design.45 In November 2016, Aquazzura expanded the suit, adding a design patent infringement claim in regard to its “Christy” flat—another design which Trump and Fisher copied. Trump and Fisher’s “Tropica” style was virtually identical to Aquazzura’s “Christy” design. Aquazzura’s design patent protects its “Christy” design, and The Fashion Law has predicted that it will be an easy win for Aquazzura.46 Because Aquazzura’s designs are distinctive and the brand has a prominent reputation in the fashion industry, Aquazzura polices its trade dresses to ensure that other designers are not producing knock-offs that lead to consumer confusion and harm to its brand. Steve Madden and Ivanka Trump were two designers that Aquazzura was able to sue for stealing and selling its designs and for causing source confusion to buyers.

Despite Aquazzura’s attempts to police its trade dresses, various other low-end companies have produced even cheaper knockoffs of Aquazzura’s unique shoe designs, and these knock-offs are often of lesser quality. These companies include Charlotte Russe, Express, and River Island, along with numerous others. In particular, they have manufactured and sold their inexpensive versions of Aquazzura’s $700+ “Wild Thing” shoe.47 The designs are visually similar to, if not the same as, Aquazzura’s “Wild Thing” high-heel, for they contain identical tassels, laces that tie around the ankle, fringe, and are even sold in the same colors.

Aquazzura has not filed lawsuits against these companies.

Although Aquazzura has not taken legal action against Charlotte Russe, Express, and River Island, the luxury brand has likely been harmed by their copies—its brand is being diluted, making its products less desirable. Edgardo Osorio, founder of Aquazzura, explained that he relies on his classic shoe styles to be worn season after season, and knock-offs of his timeless shoe styles cause harm to his brand.48 He expressed his concern when it comes to copyists stealing his classic designs, stating, “As a young designer, you become well known for a silhouette.”49 He continued by emphasizing that his classic designs “are the way the designer makes money, because they don’t go on sale. When (Continued on page 21)

20

JURIS MAGAZINE

|

WINTER 2017

Contents

Lights, Camera, Fashion!

(Continued from page 20)

they start copying my classic styles, it’s a problem.”50 Founder and director of the Fashion Law Institute at Fordham Law School, Susan Scafidi, stated in The Copycat Economy that the loss of sales because of knock-off designs is “notoriously difficult to quantify”; however, she is persuaded, “it really impacts the bottom line.”51 Moreover, Julie Zerbo, editor-in-chief of The Fashion Law, indicated, “Customers will be tempted towards the lower-cost items, especially if it is a trendy piece that they just want to wear for a season or two.”52 However, the ones who are keeping these copyists in business are the customers, and according to Scafidi, “Consumers need to understand that there is a harm that they do when they choose the cheap knockoff… [Fashion companies] need to recover the cost of paying designers to design.”53 Ultimately, in a world where fashion designs are constantly being copied, it is difficult for designers to prevent others from

1

World of Aquazzura, Aquazzura, http://www.aquazzura.com/en/ world-of-aquazzura/about.html

2

Id.

3

Aquazzura Italia S.R.L. v. Steve Madden Limited, 1:16-CV-04905

replicating their work. Because the fashion industry is dominated by “fast fashion”—the idea that fashion trends rapidly change from season to season—designers struggle to safeguard their unique designs from being knocked-off, and they have very little time to do so. However, trademark and trade dress protection can help designers stop these copyists. Aquazzura was able to use its trade dress protection to stop Madden and Trump from “walking all over” its fabulous and fashionable shoe designs.

As for consumers, they have a responsibility to refrain from buying these knock-offs, for they harm the true designer and his distinctive designs.

Melissa Sarnicke, a 2018 J.D. candidate, is a staff writer for Juris. She has a passion for fashion and love for law. Last summer, Sarnicke completed a summer intensive course in fashion law at the Fashion Law Institute at Fordham Law School in Manhattan. She plans to pursue a career in fashion law, intellectual property law, or corporate law.

29 Julie Zerbo, Balenciaga and Steve Madden Settle Suit, The Fashion Law (October 24, 2011), http://www.thefashionlaw.com/home/ balenciaga-and-steve-madden-settle-suit

5 Id.

30 The 10 Most Infamous Lawsuits in High-Heeled History, Racked (April 24, 2013, 1:30 PM), http://www.racked. com/2013/4/24/7675101/the-10-most-infamous-footwear-lawsuitsin-highheeled-history

6 Aquazzura Italia S.R.L., supra note 2, at 1, 2

31 Id.

7

32 Id.

4 World of Aquazzura, supra note 1

Id. at 2.

8 Id.

33 Zerbo, supra note 11.

9 Id. at 3.

34 Id.

10 Julie Zerbo, Aquazzura Sues Steve Madden Over “Predatory” Copies, The Fashion Law (June 24, 2016), http://www.thefashionlaw. com/home/aquazzura-sues-steve-madden-over-predatory-copies

35 Julie Zerbo, Aquazzura Files Trademark Suit Against Ivanka Trump Over “Exact Copy,” The Fashion Law (June 4, 2016), http:// www.thefashionlaw.com/home/aquazzura-adds-design-patentinfringement-claim-to-trump-lawsuit

11 Id. 12 Id. 13 Aquazzura Italia S.R.L., supra note 2, at 1.

14 Zerbo, supra note 10.

15 Aquazzura Italia S.R.L., supra note 2, at 14, 15.

16 Id. 17 Id. at 4.

18 Id. 19 Id. at 19.

20 Id. at 4.

21 Id. at 19.

22 Id. at 20.

23 Katie Berrington, Aquazzura Heads Back to Court, Vogue (June 20, 2016), http://www.vogue.co.uk/article/aquazzura-suessteve-madden-shoe-designs 24 Zerbo, supra note 11.

25 Kristine Solomon, Steve Madden Is Being Sued (Again) for Copycat Shoe Designs, YAHOO! (June 28, 2016), https://www.yahoo.com/ style/steve-madden-is-being-sued-again-for-copycat-120942629. html

36 Aquazzura Italia S.R.L. v. Trump Et. Al., 1:16-CV-04782 37 Zerbo, supra note 40.

38 Id. 39 Aquazzura Italia S.R.L., supra note 41 at 10.

40 Id. 41 Zerbo, supra note 40.

42 Id. 43 Id. 44 Id. 45 Id. 46 Id. 47 Irina, Real vs. Steal: Aquazzura Wild Thing Fringed Sandals, In Their Closet (June 21, 2016), http://intheircloset.com/aquazzura-wildthing-fringed-lace-up-suede-sandals 48 Helena Pike, The Copycat Economy, Business of Fashion (March 14, 2016), https://www.businessoffashion.com/articles/intelligence/ fashions-copycat-economy 49 Id. 50 Id.

26 Aquazzura Italia S.R.L., supra note 2, at 3.

51 Id.

27 Id.

52 Id.

28 Zerbo, supra note 11.

53 Id.

21

Contents

Modern Lawyering:

Challenges in an Era of Exponential Change

By Nicole Prieto, Web Editor

“The witness in this case is a computer,” defense lawyer Ken Haber said. “You can’t cross-examine a computer. The Constitution demands, and justice requires, we be permitted to find out what the computer is doing to come up with its answer.”1 Thus reported the Pittsburgh Post-Gazette on Michael Robinson’s homicide case in August—and his attorneys’ demand for the source code of a computer program making it “5.7 billion times more likely” that DNA recovered from the crime scene was his.2 From e-discovery rules to the intellectual property implications of 3D printing, technology has dramatically changed the face of law schools and the legal profession in the last two decades. How we evaluate evidence, conduct research, comport ourselves online, or compete in the marketplace seem to be at the mercy of endless innovation. There is, for instance, a high chance you are reading this article from a tablet or laptop, rather than in a hard copy floating around a law library.

This article makes no prediction about what will or should happen in the future—read Richard Susskind’s Tomorrow’s Lawyers: An Introduction to Your Future for that3—but briefly surveys the legal issues and practical challenges we are contending with today in an era of adaptation.

In Practice One of the biggest game-changers in the legal industry is the availability of tools that threaten to usurp lawyers’ traditional roles altogether. Not becoming obsolete means figuring out where to best reinvest human resources rather than fight against a rising tide, and some transactional services have been first on the innovation chopping block.

LegalSifter is one company that makes use of artificial intelligence to, literally, sift through contracts and “organize data more efficiently”4—what Susskind would refer to as facilitating an “automated workflow” in legal work or a commoditization of the law.5 In September 2016, Lawrenceville-based LegalSifter Inc. received $2.75 million in funding from Pittsburgh investors to help its transition “from a startup to a growth company.”

According to CEO Kevin Miller, the money would go into the company’s business and software development.6 By making use of natural language and learning algorithms, the company’s ContractSifter Service does data migration (Continued on page 23)

22

JURIS MAGAZINE

|

WINTER 2017

Contents

Modern Lawyering (Continued from page 22)

Legalese does not espouse that it can take the place of actual legal advice, but the goal behind its software is to disrupt “the $80B corporate contracts industry” with “a domain-specific-language for legal agreements and regulations.”

“with speed, efficiency, and quality . . . to extract the terms and conditions that [a client] need[s], all under the guidance of living, breathing humans.”7 The company’s technology also solves the problem of having “overworked” humans during the contract negotiation process who could overlook vital document components.8 It is perhaps a good thing LegalSifter makes a point of assuring would-be users that its algorithms are not simply left to their own devices. If Facebook’s August 2016 fake news fiasco is any indication—when it transitioned from having people to an algorithm moderate its Trending topics section9—AI is not quite prepared to handle unpredictable human nuance without some help. (Coming out of election season, the problem of stymying advertisements for fake news sites is one that Facebook is still trying to master.10) That being said, AI’s imperfections have not stopped the far more aggressive presentation of sites like Legalese.com.

In its tongue-in-cheek manifesto, Legalese declares that it looks to achieve, among other things, “what Intuit has done for accounting” in the legal field by bypassing the “high-margin, lowvolume, manually operated, jealously proprietary law firm” with a new industry it dubs computational legal.11 Legalese does not espouse that it can take the place of actual legal advice,12 but the goal behind its software is to disrupt “the $80B corporate contracts industry” with “a domain-specificlanguage for legal agreements and regulations.”13 Legalese is open-source, meaning that users may modify it to suit their needs.14 This is assuming, of course, that they can then sit and work through an entirely different problem: coding jargon.15 On the subject of outsourcing and human-guided supervision, lawyer Kevin F. Brady gives warning to practitioners interested in allocating complex e-discovery work to others.

While outside services might be able to produce legally enforceable documents without even involving an attorney, the realm of litigation does not necessarily promise as much leeway.

Brady reports on the malpractice case J-M Manufacturing Co. v. McDermott Will & Emery, where a law firm repeatedly “breached its fiduciary duty by producing privileged documents to adverse parties, failing to supervise attorneys, and failing to supervise the vendors hired to perform the review and production of J-M’s documents.”16 The firm described itself as being “knowledgeable in the area of e-discovery.”17 Yet, it botched withholding privileged material to the government not once but twice, even after involving contract attorneys the second time around.18 Brady gives a stern reminder that technological complexity goes hand in hand with increased risk

of malpractice, and it remains attorneys’ non-delegable duty to properly oversee what their vendors and subordinates are doing.19

In Court Protecting innovation or privacy and meeting law enforcement needs are not concepts known to get along. In the past year, perhaps the most awkward dance was between Apple Inc. and the FBI when the latter demanded assistance in breaking into an encrypted iPhone.20 The phone, access to which was barred by a simple passcode, belonged to one of the San Bernardino shooters; asserting the interests of its consumers’ privacy, Apple refused to provide any assistance while invoking the First and Fifth Amendments.21 The Bureau’s public fracas with the tech giant was not the only headline grabber of the year, however. On a more local level, Michael Robinson’s case, mentioned above, also illustrates the issue of balancing business interests and seeking justice.

Robinson was charged with killing Lawrence Short and Tyrone Coleman in 2013, and the prosecution used “a bandanna found near the crime scene,” in tandem with the program TrueAllele, to implicate him in the shootings.22 The problem was that the Allegheny County Medical Examiner’s office could not make a conclusive finding on whether the DNA on the bandanna was Robinson’s “[d]ue to the complexity of the mixture.”23 As noted by Paula Reed Ward in the Pittsburgh Post-Gazette: [TrueAllele is] the only computer software system of its kind that interprets DNA evidence using a statistical model.

It can single out individuals in a complex DNA mixture by determining how much more probable a match is versus mere coincidence. Complex mixtures can involve multiple people, as well as degraded or small DNA samples.24 In Robinson’s case, there is a major tension between maintaining trade secrets inherent in the program’s source code and determining whether the program was actually correct in identifying his DNA.25 According to University of Melbourne statistical genetics professor David Balding, “it is ‘absolutely inconceivable’ that there aren’t errors” in the code and that it is a matter of “how many . . . are inconsequential.”26 In early August 2016, the ABA Journal reported that a Louisiana judge authorized a search warrant that permitted a “look-see” at a former deputy’s home computers.27 The goal: to determine whether he was the blogger behind statements on ExposeDAT accusing “the sheriff’s office of improprieties.”28 (Continued on page 24) 23

Contents

Modern Lawyering (Continued from page 23)

ExposeDAT’s articles took aim at local public figures.29 An insurance agent stated that an ExposeDAT blogger “wrongly accused him of earning broker fees from the sheriff’s office even as the sheriff’s wife earned a six-figure paycheck managing the agent’s insurance office.”30 The former deputy, Wayne Anderson, denied involvement31; the search conducted on his and his wife’s home also included cellphones.32 In an unsurprising move, Louisiana’s First Circuit Court of Appeal found the warrant, and the judge’s refusal to quash it, to be unconstitutional.33 The court determined the insurance agent, Tony Alford, to be a public figure and thus not protected by a criminal statute.34 (Alford serves as the Terrebonne Levee and Conservation District’s president.35) The confiscated devices were returned in a case that ultimately saw no criminal charges filed.36 It is not a new discussion that protections against defamation could not foresee the challenges involved with modern publishing platforms that may involve anonymous parties or parties with fictitious names. When personal devices bypass printing presses as publishing tools, the matter goes beyond exercising one’s First Amendment rights. It also implicates how far law enforcement can reach into one’s home to access those devices—and the execution of the Louisiana search warrant on a defamation claim may have uncomfortably treaded into Big Brother territory.

Out of the Classroom The widespread assumption is that millennials and our younger counterparts are digital natives, and our experiences with technology will be intuitive in practice. Whether this is really true is a complex discussion on its own.37 It does go without saying that we are coming into the field armed with very different foundational experiences in areas as basic as legal research.38 (I can attest that Ctrl+F and the Legal Information Institute were mainstays of my 1L Civil Procedure experience.39) And we are employing different tools moving forward than our predecessors did in prior decades.

At the ABA Annual Meeting in August 2016, about 100 law students at roundtables were presented with Microsoft Surface 24

JURIS MAGAZINE

|

WINTER 2017

tablets, which allowed them to provide input on “documents and tabs linked between devices.”40 They had the opportunity to go beyond real-time communication in a single group. Instead—in the vein of a Google Doc with liberal editing privileges—they could provide feedback to several groups on subjects, including “caucuses, committees, and diversity initiatives.”41 One goal of the exercise was to prepare participants for exclusively online student meetings in the future that would enable them to work together remotely.42 Social media remains a touchy area for many students regardless of their professional fields of interest, invoking the need for the occasional “gut check” to ensure that nothing particularly embarrassing is posted for the world to see.43 But it also opens the door to connecting with future employers in a way that traditional networking or sit-down interviews may be unable to achieve by themselves. Graduate Ariel Davis-Burn, for instance, received a message about a case on Facebook from a local attorney she and her wife had met at a law school dinner.44 The attorney knew that Davis-Burn was knowledgeable in the areas the case concerned: Several messages, an assignment, and a summer position later, and she eventually found herself with a full-year job.45 Looking toward graduation, The National Jurist’s most lucrative practice areas for law students to consider had made its list for a simple reason: “[T]he fastest growing practice areas tend to provide the highest pay.”46 In complex litigation, e-discovery has taken the spotlight with vast quantities of digital information and messages that “needed to be archived and produced,” entailing work in tandem with IT departments.47 Growth in “tech hubs such as New York, D.C., Boston, Chicago, the San Francisco Bay Area and Southern California” has resulted in a high demand for specialized attorneys across the intellectual property spectrum.48 Evolving industry needs in healthcare—such as record digitization and biotechnology— have widened the door for students looking to work in health law.49 Many law students can attest to being flooded by emails on careers and professional development. Publications like the Student Lawyer’s spring 2016 “Tech Issue” dole out advice on leveraging our comfort with online platforms and coming in with a basic degree of technical competency.50 Or they recommend the best digital tools to make studying and legal writing less of a hassle.51 Books are devoted to the subject of taking advantage of major social media sites to find jobs and maximize the likelihood of getting hired,52 or to foretelling what we should expect our profession to look like in the not-so-distant future.53 Whether we all come out of a law school dressed to the nines with evidence of our technological competency is anyone’s guess. But it is a hard case to make that we are graduating without an overwhelming understanding of its significance.

In Conclusion As lawyers and future lawyers, we should not be deterred by imagined anxieties of computers and robots signaling the dawn of human expendability in the vein of The Matrix or R.U.R. The way we interact with technology today is more akin to (Continued on page 25)

Contents

Modern Lawyering (Continued from page 24) humanity’s relationship with the boxy robots of the 2014 movie Interstellar or the operating systems in 2013’s Her (if on a far less sophisticated level).

For the legal field, innovation is a moving target, and we are all keeping pace with an unsurprising number of bumps and bruises. At this point, wherever the future takes us, all we can do is keep moving forward.

1

Paula Reed Ward, Legal question: How do you cross-examine a computer?, Pittsburgh Post-Gazette, Aug. 29, 2016, http://www.postgazette.com/news/science/2016/08/29/Legal-question-how-do-youcross-examine-a-computer/stories/201608280021.

2 Id. 3 Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press 2013).

4 Patty Tascarella, LegalSifter completes $2.75M seed round, Pittsburgh Business Times, Sept. 27, 2016, http://www.bizjournals. com/pittsburgh/news/2016/09/27/legalsifter-completes-2-75m-seedround.html?ana=e_me_set4&s=newsletter&ed=2016-09-28&u=qe1wj UG3ikkaKn3gv0BYfQ055f7a2d&t=1475086000&j=75929592.

5 Susskind, supra note 3, at 26.

6 Tascarella, supra note 4.

7 LegalSifter, https://www.legalsifter.com/uses.html (last visited Nov. 15, 2016).

8 Id. 9 Saqib Shah, Facebook’s Trending Blunders Illustrate the Need for Human Fact-Checkers, Digital Trends, Aug. 30, 2016, http://www. digitaltrends.com/social-media/facebook-trending-fake-newsblunders/.

10 Nick Wingfield, Mike Isaac, and Katie Benner, Google and Facebook Take Aim at Fake News Sites, The New York Times, Nov. 14, 2016, http://www.nytimes.com/2016/11/15/technology/google-will-banwebsites-that-host-fake-news-from-using-its-ad-service.html?_r=0.

11 Legalese, https://legalese.com/ (last visited Nov. 16, 2016).

12 Legalese, https://legalese.com/v1.0/page/future (last visited Nov. 16, 2016).

13 Supra note 11.

14 Open-Source Software, Black’s Law Dictionary (10th ed. 2014), available at Westlaw.

15 See AL Interview: Software is Eating Law—Legalese.com, Artificial Lawyer (July 29, 2016), https://artificiallawyer.com/2016/07/29/ al-interview-software-is-eating-law-legalese-com/.

16 Kevin F. Brady, Technology in the Practice of Law, The Bencher, Nov./Dec. 2016, at 22.

17 Id. 18 Id. 19 Id. 20 Kevin Neumar, Presidential Candidates and Data Security: How the FBI’s Demands on Apple Will Shape the Upcoming Election, Juris Magazine, Summer 2016, at 18, http://issuu.com/jurismagazine/docs/ du-juris_summer_2016-final/1?e=1.

21 Id. 22 Paula Reed Ward, Court to decide defense request for secret DNA computer source code, Pittsburgh Post-Gazette, Oct. 10, 2015, http://www.post-gazette.com/local/city/2015/10/10/Court-todecide-defense-request-for-secret-DNA-computer-source-code/ stories/201510100063.

23 Id. 24 Id. 25 Reed Ward, supra note 1.

26 Id.

Nicole Prieto, a 2018 J.D. candidate, serves as the web editor for Juris. She is also active in Duquesne Law Review, the Black Law Student Association, and the Duquesne Intellectual Property Association, in addition to writing and copy editing for The Duquesne Duke. Prieto graduated from the University of Arizona with degrees in English and molecular and cellular biology.

27 Debra Cassens Weiss, Judge allows ‘look-see’ at computers seized in blogging defamation probe, ABA Journal, Aug. 8, 2016, http://www. abajournal.com/news/article/judge_allows_look_see_at_computers_ seized_in_blogging_defamation_probe/?utm_source=maestro&utm_ medium=email&utm_campaign=weekly_email.

28 Id. 29 Bridget Mire, Appeals court declares ExposeDAT search warrant unconstitutional, HoumaToday.com, Aug. 25, 2016, http://www. houmatoday.com/news/20160825/appeals-court-declaresexposedat-search-warrant-unconstitutional.

30 Id. 31 Id. 32 Mire, supra note 29.

33 Id. 34 Id. 35 Id.; see also Terrebonne Levee & Conservation District, http://www. tlcd.org/board.aspx (last visited Nov. 16, 2016).

36 John DeSantis, ExposeDat case is now officially closed, The Times, Aug. 31, 2016, http://www.houmatimes.com/news/exposedatcase-is-now-officially-closed/article_de6d7c20-6ed9-11e6-a867bb8089537906.html.

37 See Megan O’Neil, Confronting the Myth of the ‘Digital Native,’ The Chronicle of Higher Education, Apr. 21, 2014, http://www.chronicle. com/article/Confronting-the-Myth-of-the/145949/.

38 See Eliot Wren, How Gen Y and Gen Z are Changing the Future of Legal Research and Technology, Legal Solutions Blog (Oct. 11, 2016), http://blog.legalsolutions.thomsonreuters.com/legal-research/howgen-y-and-gen-z-are-changing-the-future-of-legal-research-andtechnology/.

39 Legal Information Institute [LII]: Federal Rules of Civil Procedure, https://www.law.cornell.edu/rules/frcp (last visited Nov. 16, 2016).

40 Lynae Tucker, 3 Things You Missed if You Weren’t at Annual, Student Lawyer, Sept./Oct. 2016, at 20.

41 Id. 42 Id. 43 O’Neil, supra note 37.

44 Erik Badia and Lynae Tucker, How 5 Students Rocked Their Networking Skills, Student Lawyer, Sept./Oct. 2016, at 16, 18.

45 Id. 46 Katie Thisdell, Most Lucrative Practice Areas, The National Jurist, 2016, at 22, 22-23.

47 Id. 48 Id. at 24.

49 Id. at 25.

50 Matthew L. Kreitzer, Leverage Your Tech Skills Into a Legal Job, Student Lawyer, Mar./Apr./May 2016, at 11.

51 Alexander Stern, 10 Apps and Tools for Every Student Lawyer, Student Lawyer, Mar./Apr./May 2016, at 34.

52 See Amanda C. Ellis, The 6Ps of the Big 3 for Job-Seeking JDs (Something Different Publishing, Inc. 2010).

53 See Susskind, supra note 3.

25

Contents

Life or Debt

Should Pharmaceutical Companies Have the Right to Hike Prices of Life-Saving Medications?

By Julie Williams, Associate Editor

Witnessing a loved one experience an allergic reaction, no matter how severe, is scary for us all. However, thanks to modern medicine and technology, comfort is often close by—typically in the form of an EpiPen. This past summer though, the highly criticized decision by Mylan to astronomically increase the price of this life-saving medication brought into question our comforts.

Consumers and lawmakers alike were outraged by the price hike, and the company continues to face severe backlash and criticism. To make matters worse, high-deductible insurance plans force those in need to pay for much of the medication out of pocket. Together, these pharmaceutical price hikes, such as the one imposed on Mylan’s EpiPen, and high-deductible insurance plans, often create a crisis for the families in need of highly necessary medications. What can be done to fix this clearly flawed system? Many of our lawmakers are pursuing an answer to this exact question.

The EpiPen is used to combat allergic reactions. With a simple and quick stab to the thigh, the EpiPen dispenses epinephrine, which is a drug that reduces swelling, closing of airways, and other symptoms of severe allergic reactions to bee stings, peanuts, or other allergens. Doctors advise patients suffering from severe allergens to carry two EpiPens with them at all times, in case an extra dose is needed for an exceptionally severe reaction.1 Many parents buy multiple EpiPens for use in the home, cars, and schools, and replace them annually, depending on the date of expiration.2 Mylan acquired the EpiPen in 2007, although the product itself has been around for decades.3 At that time, pharmacies paid less than $100 for a two-pen set, but that wholesale price has been steadily rising.4 In 2009, a pharmacy could pay $103.50 for a set; however; by July 2013, the price was up to $264.50.5 By May of 2015, that had risen approximately 75 percent to $461.6 This price would continue to skyrocket for the next year, until it reached an all-time high of over $600.

(Continued on page 27)

26

JURIS MAGAZINE

|

WINTER 2017

Contents

Life or Debt (Continued from page 26)

Mylan began business in 1961 in West Virginia.7 Since that time, it has continued to evolve into a Fortune 500 company and one of the leaders in America’s healthcare industry. On its website, Mylan Inc. appears to take great pride and places a strong emphasis on its values: innovation, integrity, reliability, service, and teamwork.8 As for integrity, Mylan states: Doing what’s right is sacred to us. We behave responsibly, even when nobody’s looking. We set high standards from which we never back down.

This uncompromising ethical stance helps to keep our products pure, our workers safe and the environment clean.9 Further, in regards to service, the website states: We understand that “it’s not about us”—it’s about helping others—and we believe there’s no situation we can’t handle. We would do whatever it takes, work ’round the clock, cross any river and spare no effort—all to meet someone’s need. We wrap our high quality products in high quality service.10 While Mylan may have aspired to these values at one time, it cannot be said that the company has maintained its integrity, nor continued its mission or service.

As previously stated, in 2009, consumers could purchase a two-pack for just over $100.11 By this past September, that price had skyrocketed to $608.12 Is this unjustified decision to dramatically increase the product’s price one of integrity? Does it appear to be a decision made for the purpose of service, or helping others? Typically, in a capitalist society, a company would be applauded for the ability to increase revenue through the use of such pricing power; however, when it comes to life-saving drugs, these significant increases are interpreted as profiteering off of a person’s life-or-death need.13

Typically, in a capitalist society, a company would be applauded for the ability to increase revenue through the use of such pricing power; however, when it comes to life-saving drugs, these significant increases are interpreted as profiteering off of a person’s life-or-death need.

In September, when Mylan Inc. CEO Heather Bresch defended the six-fold price increase, she accepted no fault.14 None. Not only were Mylan’s actions—and Bresch’s comments on those actions—unethical, but also appalling. The House Committee on Oversight and Government Reform’s hearing featured a continuous train of critics who rebuked Bresch for raising the price of the life-or-death product, especially because Mylan Inc. has more than 90 percent of the market share.15 Members of the committee also attacked EpiPen’s significance to Mylan’s business and the extravagant growth of Bresch’s and other top company executives’ compensation.

The product generates approximately 10 percent of Mylan’s revenue, and Mylan had five executives in five years who earned a combined total of nearly $300 million in compensation.16 In response, Bresch claimed that her $18 million pay in 2015 was “in the middle” of compensation packages in the bio-pharmacy industry.17 However, a Wall Street Journal analysis published

Rising EpiPen Costs: $608 $600 $461

$500 $400 $264.50

$300 $200 $100 $0

less than $100

$103.50

2007

2009

2013

2015

2016 (Continued on page 28) 27

Contents

Life or Debt (Continued from page 27) in September found that Mylan actually ranks second among U.S. drug makers when it comes to executive compensation.18 Additionally, Bresch admitted that the EpiPen had become Mylan’s first $1 billion device.19 Bresch argued that the blame should lay with the shifting health insurance landscape.20 She stated that patients are paying higher out of pocket costs and that “the system wasn’t intended to have people pay the full wholesale acquisition cost, and that’s what’s happening at an alarming rate.”21 And simply lowering that wholesale acquisition cost would not assure that the savings would be passed on to consumers by insurers, drug benefit managers, and other players in the convoluted American healthcare industry.22 Bresch further asserted that Mylan made its pricing changes after learning of the challenges that some consumers, especially those with high insurance deductibles, were having difficulty acquiring the drug.23 24 While the new trend of high-deductible insurance plans does not help the situation (further discussed below), it certainly does not explain the numbers generated by Mylan. EpiPen consumers must choose between purchasing this potentially life-saving product or other necessities. Parents and doctors alike are seeking alternatives.

Most concerning are the reports of parents keeping expired doses of the medication, or requesting that doctors fill empty syringes with epinephrine.

The EpiPen scandal is noticeably comparable to Turing Pharmaceutical’s increase in the price of Daraprim from nearly $15 to $750.25 Those dollar amounts reflect the cost for a single pill. Daraprim is a drug used by some AIDS and transplant patients.26 When the 5,000 percent price increase appeared, all were disgusted. And rightfully so. Currently, Daraprim costs $375 for many patients.27 While Turing Pharmaceuticals hails this as a 50 percent price reduction, doctors and lawmakers remain livid—the drug still costs 2,500 percent more than before the hike.28 Most disturbingly, many customers of Daraprim outside of the United States only have to pay $1 or $2 for the pill.29 Comparable to Mylan, Turing claims to have a mission of service to patients in need of its medicines. On its website, Turing Pharmaceuticals makes the following claim: “Turing aims to ensure that every patient should have access to its medicines.

Since its foundation, Turing has put in place programs to assist and support those people who may have difficulty affording their medicines.”30 By charging $750 for a pill that could cost as low as $1, Turing is actually going in the complete opposite direction. To the decision-makers for both Turing and Mylan, it is evident that service and integrity are ranked below profit and greed.

As stated above, Mylan’s CEO defended the company’s actions, arguing as a defense, changes in the economy and insurance. While these defenses do not, in any way, justify the actions, there is some merit to them. Although the EpiPen story is shocking, it does seem to fit a pattern. Prescription drug prices are rising across the board.31 And for various reasons, many medicines are more expensive in the United States than in any other country.32 As an example of this, in France, EpiPens are sold by a different company, and the product only costs $85 for a set.33

The EpiPen scandal is noticeably comparable to Turing Pharmaceutical’s increase in the price of Daraprim from nearly $15 to $750.

As shown above, the price of EpiPens has been increasing for a few years now; however, consumers are only now noticing.34 One reason for this may have been that until the most recent hike, they have been gradual and many insurance plans may have been picking up most of the additional costs.35 Increasingly though, people are moving onto highdeductible insurance plans, which may force them to pay full price for items such as the EpiPen.36 Currently, almost a quarter of American workers are on high-deductible health plans, up from just 4 percent in 2006.37 Meanwhile, deductibles38 have doubled in the past five (5) years.39 In an attempt to defend itself, Mylan provided $100 coupons, but many deductibles highly exceeded that.40 In fact, the average deductible for an individual worker is currently in the range of $1,300 (or the equivalent of four EpiPens).41 This trend in insurance is an entirely different issue that deserves an in-depth investigation and analysis.

However, the point is simple: While high-deductible plans may factor into the rising cost of prescription drugs, it does not provide anywhere close to a full explanation for the actions of Mylan.

(Continued on page 29) 28

JURIS MAGAZINE

|

WINTER 2017

Contents

Life or Debt (Continued from page 28) There should never be an excessive, unjustified profit on essentials—especially life-or-death drugs. While what Mylan, Turing, and other pharmaceutical companies have done may not be illegal, it is certainly unethical and immoral. Like many companies, Mylan claims to value its integrity and service to others. Yet, as it goes, actions speak louder than words. While factors such as inflation and the new trend in insurance may call for a minor increase in price, there is simply no excuse for forcing patients to question whether or not they can afford life-saving drugs. The question becomes, though, what can be done to prevent such improprieties from happening in the future. Do we value profits over life?

UPDATE: Since the initial break in this story, some significant developments have arisen. First, a generic EpiPen will be on the market in late 2016 or even before that estimated

date. Second, there have been discussions of a $465 million settlement with the government for overcharging Medicaid for the drug. Third, Mylan experienced a third-quarter loss of about $119 million. And finally, committee members have notified the FTC in a request that the Commission review Mylan’s action for the possibility of violations of antitrust and securities laws. This story is likely to expand in the following years.42 Julie Ann Williams, a 2017 J.D. candidate, is a native of Ohio who completed her undergraduate degree at Washington & Jefferson College. In addition to writing for Juris, Williams is a student articles editor for the Duquesne University Business Law Journal. She also is a member of the Corporate Law Society and the Labor and Employment Law Society, and serves as a School of Law student ambassador.

1

Tara Parker-Pope, et. al., EpiPen Price Rise Sparks Concern for Allergy Sufferers, The New York Times (Aug. 22, 2016), http://well. blogs.nytimes.com/2016/08/22/epipen-price-rise-sparks-concernfor-allergy-sufferers/?_r=0.

24 It is essential to note that, outside of the House’s inquiry, several states have also launched investigations into the company’s contracting practices with school districts and public health programs for potential fraud.

2

Id.

3

Id.

25 Daniel Kozarich, Mylan’s EpiPen Pricing Crossed Ethical Boundaries, Fortune.com (Sept. 27, 2016), http://fortune.com/2016/09/27/mylanepipen-heather-bresch/.

4 Id. 5

Tara Parker-Pope, et. al., EpiPen Price Rise Sparks Concern for Allergy Sufferers, The New York Times (Aug. 22, 2016), http://well. blogs.nytimes.com/2016/08/22/epipen-price-rise-sparks-concernfor-allergy-sufferers/?_r=0.

26 Heather Long, Here’s What Happened to AIDS Drug that Spiked 5,000%, CNN (Aug. 25, 2016), http://money.cnn.com/2016/08/25/ news/economy/daraprim-aids-drug-high-price/.

27 Id.

6 Id.

28 Id.

7 http://www.mylan.com/en/company/about-us

29 Id.

8 Id.

30 https://www.turingpharma.com/about/company/

9 Id. 10 Id.

31 Olga Khazan, Have You Ever Tried to Buy an EpiPen?, The Atlantic (Aug. 24, 2016), http://www.theatlantic.com/health/archive/2016/08/ epi-pens/497126/.

11 Daniel Kozarich, Mylan’s EpiPen Pricing Crossed Ethical Boundaries, FORTUNE.COM (Sept. 27, 2016), http://fortune.com/2016/09/27/ mylan-epipen-heather-bresch/.

33 Id.

12 Id.

34 Id.

13 Id.

35 Id.

14 Id.

36 Olga Khazan, Have You Ever Tried to Buy an EpiPen?, The Atlantic (Aug. 24, 2016), http://www.theatlantic.com/health/archive/2016/08/ epi-pens/497126/.

15 Sy Mukherjee, Mylan’s CEO Tells Congress the EpiPen Price Hike was ‘Fair,’ Fortune.com (Sept. 21, 2016), http://fortune. com/2016/09/21/mylan-ceo-epipen-price-hike/.

16 Id. 17 Id. 18 Mark Maremont, EpiPen Maker Dispenses Outsized Pay, The Wall Street Journal (Sept. 13, 2015), http://www.wsj.com/articles/epipenmaker-dispenses-outsize-pay-1473786288.

19 Sy Mukherjee, Mylan’s CEO Tells Congress the EpiPen Price Hike was ‘Fair,’ Fortune.com (Sept. 21, 2016), http://fortune. com/2016/09/21/mylan-ceo-epipen-price-hike/.

20 Id. 21 Id. 22 Sy Mukherjee, Mylan’s CEO Tells Congress the EpiPen Price Hike was ‘Fair,’ Fortune.com (Sept. 21, 2016), http://fortune. com/2016/09/21/mylan-ceo-epipen-price-hike/.

23 Id.

32 Id.

37 Id. 38 A deductible is the amount that a consumer pays out of pocket before the insurance kicks in.

39 Olga Khazan, Have You Ever Tried to Buy an EpiPen?, THE ATLANTIC (Aug. 24, 2016), http://www.theatlantic.com/health/ archive/2016/08/epi-pens/497126/.

40 Id. 41 Id. 42 See, Lawrenz Fares, Senators Ask FTC to Review EpiPen Manufacturer, Jurist (Nov. 8 2016), http://www.jurist.org/ paperchase/2016/11/senators-ask-ftc-to-review-epipenmanufacturer.php; and, Anne Steele, et. al., Mylan Posts Loss, Hurt

by Lower EpiPen Volumes, Charge Related to Settlement, The Wall Street Journal (Nov. 9 2016), http://www.wsj.com/articles/ mylan-posts-loss-hurt-by-lower-epipen-volumes-charge-related-tosettlement-1478729265.

29

Student Magazine JurisMagazine.com