From the category archives:

Articles

Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach

August 8, 2010

Preferred Citation: Hon. T.S. Ellis, III and Nitin Shah, Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach, 114 Penn St. L. Rev. Penn Statim 64 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 64.pdf. Iqbal, Twombly, and What Comes Next: A Suggested Empirical Approach 114 Penn St. L. Rev. Penn Statim 64. Published August 8, [...]

Iqbal and Settlement

July 26, 2010

By Michael Moffitt . 114 Penn St. L. Rev. Penn Statim 51. Published July 26, 2010. View as PDF. Preferred Citation: Michael Moffitt, Iqbal and Settlement, 114 Penn St. L. Rev. Penn Statim 51 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 51.pdf. Iqbal and Settlement By Michael Moffitt The Supreme Court’s decision in Iqbal was good news for defendants. By increasing the scrutiny [...]

A Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure

July 9, 2010

By Angelique EagleWoman. 114 Penn St. L. Rev. Penn Statim 41. Published July 9, 2010. View as PDF. Preferred Citation: Angelique EagleWoman, A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards, 114 Penn [...]

Choice in Birth: Preserving Access to VBAC

April 19, 2010

By Elizabeth Kukura. 114 Penn St. L. Rev. 955 The reproductive rights movement has fought many uphill battles for the rights of women to decide how to use their bodies in matters of sex and reproduction. Since the earliest battles over access to contraception, control over women‘s bodies and sexuality has been contested terrain where [...]

The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators

April 19, 2010

By David B. Kopel, Paul Gallant, and Joanne D. Eisen. 114 Penn St. L. Rev. 891 Abstract: Advocates of the proposed United Nations Arms Trade Treaty (ATT) promise that it will prevent the flow of arms to human rights violators. This Article first examines the ATT and observes that the ATT, if implemented as promised, [...]

Gross Disunity

April 19, 2010

By Martin J. Katz. 114 Penn St. L. Rev. 857 The Supreme Court has done a turn-about on the value of uniformity in employment discrimination law. For many years, the Court embraced the idea that different employment discrimination statutes that use identical language should be understood to impose identical requirements. So, for example, a plaintiff [...]

People Can Be So Fake: A New Dimension to Privacy and Technology Scholarship

April 19, 2010

By M. Ryan Calo. 114 Penn St. L. Rev. 809. This article updates the traditional discussion of privacy and technology, focused since the days of Warren and Brandeis on the capacity of technology to manipulate information. It proposes a novel dimension to the impact of anthropomorphic or social design on privacy. Technologies designed to imitate [...]

The Kurdish Regional Constitution within the Framework of the Iraqi Federal Constitution: A Struggle for Sovereignty, Oil, Ethnic Identity, and the Prospects for a Reverse Supremacy Clause

April 19, 2010

By Michael J. Kelly. 114 Penn St. L. Rev. 707. The Kurds have long struggled to control their own destiny. Through centuries of cyclical oppression and autonomy, the Kurds of northern Iraq finally united and seized an opportunity to secure a firm legal status for their de facto state within a federal Iraqi state in [...]

U.N. Packing the State’s Reputation? A Response to Professor Brewster’s “Unpacking the State’s Reputation”

March 23, 2010

By Eric Engle.  114 Penn St. L. Rev. Penn Statim 34. Published March 23, 2010.  View as PDF. Preferred citation:  Eric Engle, U.N. Packing the State’s Reputation? A Response to Professor Brewster’s “Unpacking the State’s Reputation”, 114 Penn St. L. Rev. Penn Statim 34 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 34.pdf. Rachel Brewster is an [...]

Conley v. Gibson’s “No Set of Facts” Test: Neither Cancer Nor Cure

March 19, 2010

By Wendy Gerwick Couture.  114 Penn St. L. Rev. Penn Statim 19. Published March 19, 2010. View as PDF. Preferred citation:  Wendy Couture, Conley v. Gibson’s “No Set of Facts” Test:  Neither Cancer Nor Cure, 114 Penn St. L. Rev. Penn Statim 19 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 19.pdf. Abstract: In this essay, the [...]

When is Religious Speech Outrageous?: Snyder v. Phelps and the Limits of Religious Advocacy

March 11, 2010

By Jeffrey Shulman. 114 Penn St. L. Rev. Penn Statim 13. Published March 11, 2010.  View as PDF. Preferred citation:  Jeffrey Shulman, When is Religious Speech Outrageous?:  Snyder v. Phelps and the Limitations on Religious Advocacy, 114 Penn St. L. Rev. Penn Statim 13 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 13.pdf. When Is Religious Speech [...]

Law, Facts, and Power

January 20, 2010

By Elizabeth Thornburg.  114 Penn St. L. Rev. Penn Statim 1. Published January 20, 2010.  View as PDF. Preferred citation:  Elizabeth Thornburg, Law, Facts, and Power, 114 Penn St. L. Rev. Penn Statim 1 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 1.pdf. Abstract: The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways.  [...]

Qualified Immunity and Interlocutory Fact-Finding in the Courts of Appeals

December 14, 2009

By Mark R. Brown. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: Ph: 614-236-6590 Fx: 614-236-6956 mbrown@law.capital.edu Abstract: In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Court held that a district court decision denying [...]

Business as Usual

December 14, 2009

By Shoba Wadhia. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: E-mail: ssw11@psu.edu Phone: (814) 865-3823 Abstract: While the impact of the Iqbal decision on notice-pleading standard is striking, its effects on the permissiveness of [...]

Iqbal and the Supreme Court’s Legislative Agenda

December 14, 2009

By Gary Gildin. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: E-mail: gsg2@psu.edu Phone: (717) 240-5238 Abstract: After Twombly, there was debate whether by adopting a more rigorous pleading standard for Sherman Act claims, the [...]

Why Heightened Pleading–Why Now?

December 14, 2009

By Jeffrey Rachlinski. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: Phone: (607) 255-5878 Fax: (607) 255-7193 Email: jjr7@cornell.edu Abstract: The papers in this symposium highlight three basic lessons of Iqbal.  The first, and most [...]

Fixing a Broken Civil Justice System: Ideas from Abroad

December 14, 2009

By James Maxeiner. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: Phone: (410) 837-4628 Email:  jmaxeiner@ubalt.edu Abstract: Section 11 of the contemporary Pennsylvania Constitution’s Declaration of Rights promises that “All courts shall be open; and [...]

Implausible Realities

December 14, 2009

By Ramzi Kassem. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: Ph: 718-340-4558 ramzi.kassem@mail.law.cuny.edu Abstract: Iqbal’s Entrenchment of Majority Group Skepticism Towards Discrimination Claims Part of what prevents democratic governance from devolving into the tyranny [...]

Getting a Clue: Two Stage Pleading as a Solution to the Iqbal/Conley Dilemma

December 14, 2009

By Ray Campbell. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: E-mail: rwc14@psu.edu Phone: (814) 867-2235 Abstract: This article looks at how the high cost of discovery has impacted access to the courts. Surveying and [...]

Interrogating Iqbal: Intent, Inertia, and (a lack of) Imagination

December 14, 2009

By Victor C. Romero. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: E-mail: vcr1@psu.edu Phone: (814) 865-8989 Abstract: In Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held [...]

I Could Have Been A Contender: Iqbal As Deterrent to Negotiation, Mediation and Other Forms of Early, Autonomous Dispute Resolution

December 14, 2009

By Nancy Welsh. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: E-mail: nxw10@psu.edu Phone: (717) 241-3508 Abstract: Lawyers’ bilateral negotiations, rather than trials, resolve the vast majority of the civil actions filed in courts in [...]

Iqbal, Qualified Immunity, and Interlocutory Appellate Review

December 14, 2009

By James Pfander. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: Phone: (312) 503-1325 E-mail: j-pfander@law.northwestern.edu Abstract: Widely noted for the pleading revolution it furthers at the district court level, the Supreme Court’s decision in [...]

Supervisory Immunity

December 14, 2009

By Kit Kinports. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue) This author welcomes responses to this abstract and the upcoming article.  The author may be contacted at: E-mail: kxk47@psu.edu Phone: (814) 865-8907 Abstract: In determining the reach of constitutional tort liability, the courts have traditionally balanced the goals of deterring constitutional [...]

Black Like Me: The Free Speech Jurisprudence of Clarence Thomas

November 1, 2009

By Steven B. Lichtman. 114 Penn St. L. Rev. 415. As arguably the most ferocious conservative on the Supreme Court, Clarence Thomas is not usually associated with civil liberties causes, except insofar as popular myth portrays him as hostile to those causes.  Contrary to this mythology, however, Thomas has carved out a definitively speech-protective path [...]

Justifying Religious Freedom: The Western Tradition

November 1, 2009

By E. Gregory Wallace.  114 Penn St. L. Rev. 485. Religious freedom is a fundamental value in American constitutional law.  Thomas Jefferson called it “the most inalienable and sacred of all human rights.”   James Madison urged that religion “must be left to the conviction and conscience of every man; and it is the right of [...]

Remarks Given at 2009 Scholarship Luncheon and Awards Ceremony on the Dedication of a Portrait in Honor of Professor Christine H. Kellett and in Celebration of the 175th Anniversary of the Dickinson School of Law October 24, 2009

November 1, 2009

The following remarks are reprinted as the Penn State Law Review’s contribution to the 175th anniversary celebration of the Dickinson School of Law. INTRODUCTION BY GEORGE JOSEPH, ESQUIRE, ‘82 PRESIDENT OF THE GENERAL ALUMNI ASSOCIATION OF THE DICKINSON SCHOOL OF LAW Each year, the General Alumni Association of the Dickinson School of Law is proud [...]

Imagining Judges that Apply Law: How They Might Do It

November 1, 2009

By James R. Maxeiner.  114 Penn St. L. Rev. 469. ______“Judges should apply the law, not make it.”  That plea appears perennially in American politics.  American legal scholars belittle it as a simple-minded demand that is silly and misleading.  A glance beyond our shores dispels the notion that the American public is naïve to expect [...]

Blushing Our Way Past Historical Fact and Fiction: A Response to Professor Geoffrey R. Stone’s Melville B. Nimmer Memorial Lecture and Essay

November 1, 2009

By Seth Barrett Tillman.  114 Penn St. L. Rev. 391. Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted.  The precise role for legal academics in the interpretation of such charters is controverted.  Doctrine and case law as established by the courts remain the core [...]

Judges Judging Judicial Candidates: Should Currently Serving Judges Participate in Commissions to Screen and Recommend Article III Candidates Below the Supreme Court Level?

August 30, 2009

By Mary L. Clark. 114 Penn St. L. Rev. 49. In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below [...]

The Assault on Judicial Independence and the Uniquely Delaware Response

August 30, 2009

By Devera B. Scott, Esq., Keith J. Feigenbaum, Esq., Kelley M. Huff, Esq., and the Honorable Jan R. Jurden.  114 Penn St. L. Rev. 217. In the early years of the American democratic experiment, one of the foremost observers of American democracy, Alexis de Tocqueville, wrote that “the courts correct the aberrations of democracy and [...]

Intention, Torture, and the Concept of State Crime

August 30, 2009

By Aditi Bagchi.  114 Penn St. L. Rev. 1. Notwithstanding the universal prohibition against torture, and almost universal agreement that in order to qualify as torture, the act in question must be committed intentionally with an illicit purpose, the intentional element of torture remains ambiguous. I make the following claims about how we should interpret [...]

Analytical Jurisprudence and the Concept of Commercial Law

August 30, 2009

By John Linarelli.  114 Penn St. L. Rev. 119. Commercial lawyers working across borders know that globalization has changed commercial law.  To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions.  Some have argued for a transnational conception of commercial law, but [...]

Consumer Arbitration in the Evolving Canadian Landscape

August 1, 2009

By Genevieve Saumier,  113 Penn St. L. Rev. 1203. The prevalence of consumer arbitration as the dispute resolution mechanism of choice for business in North America may be at risk, at least north of the border. In the three most populous Canadian provinces, Quebec, Ontario, and British Columbia, legislators and judges have declared clauses imposing [...]

State Interests and Arbitration: The Russian Model

August 1, 2009

By William E. Butler.  113 Penn St. L. Rev. 1189. The mythology of arbitration holds that this method of settling disputes is “private,” “informal” (even when arbitration is institutionalized), “effective,” “expedient,” “neutral,” “flexible,” “confidential,” “expert,” “fair,” and “inexpensive.” This is widely believed to remain the case even though these days arbitrations are “held in place [...]

The Relevance of the Interests of Third Parties in Arbitration: Taking a Closer Look at the Elephant in the Room

August 1, 2009

By Stavros Brekoulakis.  113 Penn St. L. Rev. 1165. This paper examines the interests of third parties in arbitration and discusses their relevance to proceedings between parties bound by an arbitration agreement.  The consensual nature of arbitration lies at the heart of this discussion: only those persons that have clearly consented to an arbitration agreement [...]

Personal Autonomy and Vacatur After Hall Street

August 1, 2009

By Richard C. Reuben.  113 Penn St. L. Rev. 1103. The Alternative Dispute Resolution movement of the last quarter of a century has been built on the pillar of party autonomy.  Indeed, the very predicate of the movement is that parties can do a better job of resolving their disputes through private ordering than public [...]

How Congress Can Make a More Equitable Federal Arbitration Act

August 1, 2009

By Richard A. Bales and Sue Irion.  113 Penn St. L. Rev. 1081. When the Federal Arbitration Act (FAA) was enacted in 1925, it was meant to strengthen commercial associations’ internal arbitrations.  In the years since its passage, the type and number of arbitrations have increased exponentially. In part, this increase is due to the [...]

Restating the U.S. Law of International Commercial Arbitration

August 1, 2009

By George A. Bermann,  Jack J. Coe, Jr., Christopher R. Drahozal, and Catherine A. Rogers,  113 Penn St. L. Rev. 1333. In December 2007, the American Law Institute (”ALI”) approved the development of a new Restatement, Third, of the U.S. Law of International Commercial Arbitration (the “Restatement”). On February 23, 2009, the Restaters and authors [...]

Agreements to Arbitrate and the Predictability of Procedures

August 1, 2009

By Lawrence W. Newman,  113 Penn St. L. Rev. 1323. In spite of manifold expressions of enthusiasm for it, international arbitration is not universally accepted as a means of resolution of international commercial and investment disputes. According to a recent survey, there are as many businesses that mostly use transnational litigation as there are that [...]

Empirical Research on Consumer Arbitration: What the Data Reveals

August 1, 2009

By Sarah R. Cole and Kristen M. Blankley.  113 Penn St. L. Rev. 1051. In 2007, Public Citizen, a “national, non-profit public interest organization,”  issued a report entitled “The Arbitration Trap: How Credit Card Companies Ensnare Consumers,” concluding that the arbitration process routinely exploits consumers.  Public Citizen drew this sweeping conclusion after analyzing approximately 34,000 [...]

Denial of Benefits and Article 17 of the Energy Charter Treaty

August 1, 2009

By Loukas Mistelis and  Crina Mihaela Baltag,  113 Penn St. L. Rev. 1301. The Energy Charter Treaty (the “ECT” or the “Treaty”) is a distinctive multilateral treaty confined to the energy sector. The ECT was negotiated in a relatively short period of time – given the importance and scope of the Treaty, less than three [...]

The Civilization of Investment Arbitration

August 1, 2009

By Andrea Bjorklund,  113 Penn St. L. Rev. 1269. In 1993 Samuel Huntington wrote about a looming clash of civilizations – what he predicted would be a cataclysmic showdown between civilizations characterized by different religions, history, languages, and traditions.  Investment arbitration can also be viewed as a clash (albeit non-violent) of civilizations.  It is where [...]

Arbitration, Civilization and Public Policy: Seeking Counterpoise between Arbitral Autonomy and the Public Policy Defense in View of Foreign Mandatory Public Law

August 1, 2009

By Christopher S. Gibson,  113 Penn St. L. Rev. 1227. Below the surface of the sea there are strong currents, whose direction is uncertain and whose effect may turn and tack those who float above. And so it is with international arbitration, as we set out to address the theme of this symposium, “Building the [...]

Book Review of: L. Margaret Moses, The Principles and Practice of International Commercial Arbitration

August 1, 2009

By Jack J. Coe, Jr., 113 Penn St. L. Rev. 1369. Among International Commercial Arbitration (“ICA”) specialists, the suggestion that recent years have been eventful would likely pass without objection. In the Anglo-American context alone there have occurred important decisions, legislative proposals to limit arbitration, and the launching of an American Law Institute Restatement on [...]

Private Ordering and International Commercial Arbitration

August 1, 2009

By Christopher R. Drahozal.  113 Penn St. L. Rev. 1031. The literature on private ordering examines how parties use extralegal means – most commonly reputational sanctions – to enforce contracts. As described by Barak D. Richman, private ordering “compares the efficiencies of private (extralegal) contract enforcement with the more traditional use of public law and [...]

Contractual Modifications of the Arbitral Process

August 1, 2009

By Hans Smit.  113 Penn St. L. Rev. 995. In the beginning, arbitration was straight forward. Once a dispute had arisen, the parties agreed to submit it for resolution to a third party. The courts stayed out of the process. They did not even enforce the agreement to arbitrate. But they did enforce the arbitrator’s [...]

Building the Civilization of Arbitration, Dedication: Vratislav Pechota

August 1, 2009

113 Penn St. L. Rev. 993. The symposium issue on arbitration is dedicated to the work and memory of Vratislav Pechota. “Vrat” was a dedicated scholar and humanitarian. He loved his wife and family, caring devotedly for his first spouse during a long illness. As a younger man, he suffered the oppression of totalitarianism and [...]

Judicial Approbation in Building the Civilization of Arbitration

August 1, 2009

By Thomas Carbonneau, 113 Penn St. L. Rev. 1343. The contemporary law of arbitration originated in North America and Europe.  Among like-minded States with conflicting legal traditions,  arbitration represented a means of transcending the diversity of legal systems. It had the additional advantages of neutrality and enforceability. Arbitration’s regional success and the globalization of national [...]

Building the Civilization of Arbitration: Introduction

August 1, 2009

By Thomas Carbonneau.  113 Penn St. L. Rev. 983. This is a time of affirmation and trepidation for the law of arbitration. Last term, the U.S. Supreme Court decided Hall Street Associates, LLC v. Mattel, Inc.,  holding that contract freedom in arbitration was not absolute and that the grounds in FAA § 10 were “exclusive.” [...]

Ascertaining the Parties’ Intentions in Arbitral Design

August 1, 2009

By George A. Bermann.  113 Penn St. L. Rev. 1013. Supreme Court case law teaches us that the federal interest in arbitration does not consist of enforcing agreements to arbitrate according to some sort of abstract or ideal arbitral model, but rather according to the particular arbitral model upon which the parties had agreed.   This [...]