PENNumbra first began publishing case notes in May 2012. Case notes are written by current editors of the University of Pennsylvania Law Review.

"The Devil Take the Hindmost": Copyright's Freedom from Constitutional Constraints after Golan v. Holder
by Jessica W. Rice

In Golan v. Holder, the Supreme Court upheld section 514 of the Uruguay Round Agreements Act against constitutional challenges under both the Copyright Clause and the First Amendment. Golan is the most recent (and the most drastic) example in a line of copyright decisions that display an alarming trend in the Court’s jurisprudence—a willingness to prolong copyright protection with no ostensible regard for the goals of or constraints imposed by the Copyright Clause. Although Golan raised a number of complicated issues—including both the need for harmonization between the domestic laws of the United States and its international legal obligations, and the inherent tension between the First Amendment and the Copyright Clause—the Court made no real attempt to address them. Instead, the Court gave Congress virtual carte blanche to dispense copyright grants, even when doing so plunders millions of works from the public domain. The result not only places at risk the livelihood of thousands of artists and educators, but might also threaten the very existence of the American public domain.

Private Enforcement of Spending Conditions After Douglas
by Katherine Moran Meeks

Congress cannot compel the states to implement its regulatory agenda, but it may purchase their compliance through the exercise of its spending power. Today, the federal government achieves many of its signature policy goals, including the provision of Medicaid benefits to the poor, disabled, and elderly, in cooperation with the states. These joint spending programs promote federalism values, but they also place important federal initiatives at the mercy of state budgetary pressures. When the economy falters and state revenues decline, entitlement programs like Medicaid become a perennial target for cuts. In Douglas v. Independent Living Center of Southern California, Inc., a case from the 2011 term, the Supreme Court considered whether hospitals and other private parties have an implied right of action under the Supremacy Clause to challenge the sufficiency of state payments under a cooperative spending program. In this Case Note, the author explores the background, history, and resolution of the Douglas litigation in the Supreme Court. She argues that the Court was right to suggest that private enforcement of the Medicaid statute sits uncomfortably within the system of agency oversight prescribed by Congress. But that is not to say that a Supremacy Clause action should never be available in the spending context. Though some scholars have likened joint spending programs to contracts between the state and federal governments, an analogy that might suggest a limited role for private parties in enforcing their terms, the author rejects that view and explores some cases in which a Supremacy Clause action would be appropriate.

“Knock, Listen, then Break the Door Down”?
The Police-Created Exigency Doctrine After Kentucky v. King
by Rachel Levick

The exigent circumstances exception to the Fourth Amendment warrant requirement has long bedeviled law enforcement officials and judges alike, presenting challenges both in its doctrinal boundaries and practical application. In Kentucky v. King, the Supreme Court confronted the difficult question of whether, and to what extent, police may rely on exigent circumstances of their own creation in conducting a warrantless search. Rejecting the "welter of tests" developed by lower courts, the Court determined that the exigent circumstances rule permits a warrantless entry where "the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment." Is the Court's decision laudable for adopting a clear, bright-line rule to protect Fourth Amendment rights while guiding law enforcement in preventing the destruction of evidence? Or is the King rule nothing more than a tool with which the police may "knock, listen, then break the door down," as Justice Ginsburg argued in her dissent? This Note evaluates the Court's holding and its decision-making process, weighs the various tests the Court considered and rejected, and delves into the risks posed and benefits enjoyed by the King rule in an effort to predict how the decision will shape the future of Fourth Amendment doctrine.

A Throwback to Less Enlightened Practices: J. McIntyre Machinery, Ltd. v. Nicastro
by Zach Vosseler

After two decades of dormancy, the sleeping giant of personal jurisdiction has finally awakened with the Supreme Court's opinion in J. McIntyre Machinery, Ltd. v. Nicastro. However, as in its two most recent personal jurisdiction opinions, the Court was less than univocal. This Note attempts to understand the reasoning behind J. McIntyre; to determine the status of the second prong of the Court's (in)famous two-part test for personal jurisdiction; to analyze J. McIntyre's effect on personal jurisdiction jurisprudence in the immediate future; and, ultimately, to question whether J. McIntyre, too, represents a "throwback to . . . less enlightened practices."

Reevaluating Galaviz v. Berg: An Analysis of Forum-Selection Provisions in Unilaterally Adopted Corporate Bylaws as Requirements Contracts
by Bonnie White

In the wake of a passing comment and footnote in In re Revlon, Inc. Shareholders Litigation, Delaware practitioners have grappled with the enforceability of forum-selection provisions adopted in corporate charters and bylaws. After the Delaware Chancery Court decided In re Revlon in 2010, most practitioners concluded that such a provision would be enforceable under Delaware corporate law. However in 2011, in Galaviz v. Berg—a case of first impression— the Northern District of California rejected the contention in In re Revlon that forum-selection provisions adopted by Delaware corporations should be contractually enforceable. The court in Galaviz instead held that a forum-selection provision contained in a bylaw unilaterally adopted by a board of directors was not binding on shareholders under federal procedural law governing forum-selection provisions. Still, given the uncertainty regarding the enforceability of forum-selection provisions in other jurisdictions, many practitioners continue to advise companies to adopt these provisions "just in case."

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