Volume 70, Issue 1


Volume 71| Fall 2018 | Issue 1


A New Guard at the Courthouse Door: Corporate Personal Jurisdiction in Complex Litigation After the Supreme Court’s Decision Quartet

David W. Ichel

In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state’s exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court’s decision quartet recasts the International Shoe continuum of corporate contacts for which it would be “reasonable” for the state to exercise jurisdiction based on “traditional notions of fair play and substantial justice” into a more rigid bright-line dichotomy between “general” and “specific” jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of the suit’s connection to the state, the company must be essentially “at home” in the jurisdiction, generally requiring that the company be incorporated or have its principal place of business there. Otherwise, the court must have “specific” jurisdiction, in which the claims of each plaintiff must “arise out of or relate to” the company’s contacts with the state. Justice Sotomayor issued concurring and dissenting opinions warning that the Court’s new approach could seriously curtail nationwide class action and mass tort litigation involving corporate wrongdoing, particularly in cases involving foreign country corporations, multiple corporate defendants, and smaller claimants.

Given the critical importance of personal jurisdiction as a gatekeeper for access to our courts, this Article analyzes the changes to International Shoe introduced by the decision quartet as applied to class actions, mass actions, and other large-scale litigation. It concludes that the Supreme Court’s decision quartet will reduce forum shopping, that there should continue to be meaningful access to the courts for nationwide or multi-state aggregate litigation, and that other options, such as state-wide- only suits brought in states in which plaintiffs are injured, together with nationwide federal Multidistrict Litigation (“MDL”) centralization and federal/state court coordination, will also still be available and will often present a better alternative given choice-of-law and other challenges with nationwide and multi-state actions. However, this Article also addresses the very real threats that some courts may too narrowly apply the decision quartet’s new tests or apply the tests so as to insulate foreign country companies from jurisdiction. To address these threats, more flexible approaches are proposed for deserving cases with respect to both the decision quartet’s “at home” requirement for general jurisdiction and the quartet’s “arising out of or related to” requirement for specific jurisdiction. It is also proposed that for nationwide or multistate class actions, courts should apply a presumption that considers only the claims of the named plaintiffs for the specific jurisdiction claim- connectedness requirement, rather than the claims of each absent class member, which is similar to how federal diversity jurisdiction is already tested only for the named plaintiffs in class actions, although defendants should be permitted to rebut the presumption by showing that the forum state bears insufficient connection to absent class members to satisfy the reasonableness requirement for the assertion of specific jurisdiction on a class-wide basis. Finally, addressing a troublesome topic concerning which the Supreme Court appears closely divided, it is proposed that a foreign company’s systematic “fifty-state” sales targeting be treated as a “purposeful” jurisdictional contact with any state where substantial injury is caused to the plaintiff by the targeting.

Right to Life: Interest Convergence Policing

Mitchell F. Crusto

In the United States, police officers fatally shoot over one thousand people every year. A surprising few of these incidents are fully investigated. In fact, very few police officers are criminally prosecuted for, and are rarely found guilty of, homicide resulting from the unjustified use of lethal force. This Article contends that the lack of criminal prosecutions results mainly from leading United States Supreme Court decisions that establish the criminal liability standard for police use of lethal force. Ultimately, this standard discourages a full investigation of such incidents. While unintended, this produces negative consequences, including injustice for the victims and their families, danger and fear for future victims, and increased danger to police officers.

Using empiricism and normative principles, this Article seeks to re-direct the doctrinal approach for assessing the legality of police use of lethal force in non-custodial situations. Through a case study, it analyzes how some police officers used lethal force in an unjustified manner and initially got away with homicide. It posits that a constitutional right to life principle requires the lowering of the criminal liability standard for assessing police shootings. And it proposes federal legislation mandating the investigation and, where appropriate, the prosecution of all incidents of police officers’ use of lethal force.

Hobby Lobby’s Conflated Corporate Tax Exemption and its Impact on I.R.C § 501(C)(3)

Kenya J.H. Smith

Can you imagine Koch Industries and Cargill enjoying Internal Revenue Code (“IRC”) section 501(c)(3)1 tax-exempt status similar to the Southern Baptist Convention and the Catholic Church? That could very well be a future consequence of the Hobby Lobby decision, particularly in light of current tax policy trends. The passage of the “Tax Cuts and Jobs Act” (“TCJA”) has fostered a renewed debate over the goals of current tax reform efforts and the priorities American tax policy generally advance. In many ways, the TCJA also represents an extension of the policies underpinning Burwell v. Hobby Lobby Stores, Inc.

Validation and Verification Vignettes: More Results from an Empirical Study of Consumer Understanding of Debt Collection Validation Notices

Jeff Sovern, Kate E. Walton & Nathan Frishberg

The Federal Fair Debt Collection Practices Act obliges debt collectors to provide certain notices to consumers from whom they are attempting to collect debts. This Article is our second to report findings from the first academic study of consumer understanding of one of those notices, commonly called the validation notice. We showed consumers different versions of collection letters and then asked questions to measure their understanding of the notices.

This Article explores some issues not discussed in our first Article. For example, in this Article, we examine what consumers thought collectors would have to do in response to a request for validation. We found a gulf between what many of our respondents expect when requesting verification of a debt and what some courts say collectors must provide.

We also attempted to determine whether consumers found the validation notice salient. Most respondents did not find the notice salient enough to mention when asked an open-ended question about the contents of the two-page collection letter they saw.

Because some collectors sell disputed debts to other collectors after consumers dispute a debt, we also wondered whether consumers would repeatedly dispute debts. We found that significantly fewer respondents said they would dispute a debt with a second collector when they had already disputed it once, though most said they would dispute the debt a second time. That finding suggests that some consumers will surrender some rights simply because they grow tired of asserting them.

We also report here findings building upon our earlier Article, which raised serious questions about consumer understanding of a commonly-used form of validation notice. This Article reports that a fifth of the respondents who said they would write a letter if told they needed to do so to dispute a debt they did not owe failed to realize that the letter they saw said that the collector would have to verify the debt if they wrote twenty-five days after receipt of the collector’s demand for payment—even though the demand letter had been approved by the Seventh Circuit. On the positive side, we found that seeing a validation notice made a difference on some questions, though not on others. After discussing these and other findings, the Article offers some recommendations to lawmakers for addressing the problems revealed in our study.

Still Living After Fifty Years: A Census of Judicial Review Under the Pennsylvania Constitution of 1968

Seth F. Kreimer

The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The year dramatized the contrast between the United States Supreme Court’s continued reluctance to engage with the problem of partisan gerrymandering and the Pennsylvania Supreme Court’s deployment of its independent authority under the Pennsylvania Constitution to dispatch the flamboyantly gerrymandered map of Pennsylvania’s congressional districts. It occasioned the first time that members of the Pennsylvania Legislature moved for the wholesale impeachment of a majority of the Pennsylvania Supreme Court over the exercise of its power of judicial review under the state constitution.

The year 2018 saw, as well, the retirement of Justice Anthony Kennedy and the appointment of Justice Brett Kavanaugh, portending a shift in the trajectory of the constitutional sensibility of the working majority of the United States Supreme Court. The inflection of federal constitutional law that accompanied the appointments of Chief Justice Warren Burger and Justices Harry Blackmun, Lewis Powell, William Rehnquist, and John Paul Stevens between 1969 and 1975 generated a surge of interest in independent state constitutional protection of individual rights abandoned or slighted in federal jurisprudence that became known as the “New Judicial Federalism.” We can expect renewed interest in independent state constitutional interpretation in the coming decade.

The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes—so far as I can determine—the first such comprehensive exploration.

This Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968, and of Pennsylvania’s practice of independent judicial review. It then presents a census of the cases in which the Pennsylvania Supreme Court has deployed independent state constitutional review under the Constitution of 1968. The core of the census was a review of the 1586 reported Pennsylvania Supreme Court cases in the fifty years since the adoption of the 1968 Constitution referring to claims of unconstitutionality under the Pennsylvania Constitution. This Article analyzes the 373 identified cases in which the supreme court has vindicated distinctive Pennsylvania constitutional rights.


The Revival of a Twenty-Year Circuit Split Featuring a Medical Residency Program Twist: An Analysis of Doe v. Mercy Catholic Medical Center & the Applicability of Title IX Remedies 

Nicole Dlugosz

“It” occurs all the time—everywhere and every day. Sexual harassment, a present-day monstrosity involving skin-crawling and stomach-turning details and sequences of events, has evolved into a pervasive, yet normalized form of sex discrimination. From the current President, to Hollywood executives, to workplace co-workers and bosses, vulgar behavior constituting sexual harassment has been directed overwhelmingly towards women, but also at men. For the better part of history, sexual harassment has been casually swept under the rug because of our society’s complicit nature and desire to “cocoon[] the perpetrator and incubate[] the degradation and violation of women.” But, the complacent approach adopted by many Americans was dealt a devastating blow by what has become known as #MeToo, a revolutionizing movement that started on social media.

This Note will explore Title IX and determine the viability of its application to cases of sexual harassment and sex-based discrimination in federally funded medical residency programs. Part I offers a succinct summation of the purposes of Title VII and Title IX, as well as an analysis of the judiciary’s role in creating extensive litigation rights under Title IX. Part II provides a comprehensive overview of Mercy Catholic Medical Center, starting with the case’s egregious facts and the district court’s handling of the case, and concluding with the Third Circuit’s unprecedented holding. Part III critically evaluates both the Title VII-Title IX preemption issue and Title IX’s statutory construction and language, as well as expresses why the Third Circuit correctly reasoned that (1) Title VII does not preempt Title IX and that (2) Title IX’s coverage over education programs reaches federally funded medical residency programs. Part IV concludes by examining the effects of the Third Circuit’s unprecedented opinion, and ultimately argues for the resolution of this circuit split as a means of affording all victims, throughout the country, the ability to pursue Title IX suits.

Individually-Focused Deterrence: A Proposed Incentives-Based Non-Prosecution Strategy for Second Chances and its Constitutional Hurdles 

Kevin M. Levy

Rather than reinforcing the classic provisions of Focused Deterrence, which revolve around intense supervision and surveillance of selected individual—or group—subjects of prosecution, this Note seeks to re-center the discussion on alternative non-prosecution strategies that aim to reintegrate potential and past offenders through incentive-based programs. Further, this Note points to the societal success of other anti-recidivist programs, akin to general probation programs, that buttress the case for Focused Deterrence.

P(l)aying to Win: Loot Boxes, Microtransaction Monetization, and a Proposal for Self-Regulation in the Video Game Industry

Kishan Mistry

As the video game industry continues to grow, game developers have implemented monetization mechanics that generate recurring revenue streams. A recent and popular model is the microtransaction, a system that allows players to purchase in- game assets and additional gaming content with real world currency to enhance or complement the base game. While this model has enjoyed success within the mobile and free-to-play gaming market, its widespread use in the console video game market—particularly through loot box mechanics—has been controversial, primarily because it imposes seemingly limitless additional costs to players, who have already paid for the base game, and has effects similar to casino-style gambling. This note discusses the issues with the microtransactions model generally, and the loot box mechanic specifically, as a means of generating recurring revenue streams. Specifically, it assesses the countervailing concerns of both consumers and game developers and proposes a solution for self-regulation within the industry as an alternative to government regulation or judicial action.