Articles

Governmental Data Mining and its Alternatives By Tal Z. Zarsky. 116 Penn St. L. Rev. 285. Governments face new and serious risks when striving to protect their citizens. Of the various information technology tools discussed in the political and legal sphere, data mining applications for the analysis of personal information have probably generated the greatest [...]

The Great Spill in the Gulf . . . and a Sea of Pure Economic Loss: Reflections on the Boundaries of Civil Liability By Vernon Valentine Palmer. 116 Penn St. L. Rev. 105. What has been called the greatest oil spill in history, and certainly the largest in United States history, began with an explosion [...]

Don’t Panic! Defending Cowardly Interventions During and After a Financial Crisis By Brett McDonnell. 116 Penn St. L. Rev. 1. How should we regulate the U.S. financial system after the financial crisis when we face the task with a radically inadequate understanding of what went wrong and what effect proposed regulations will likely have? This [...]

Explaining Sub-national Constitutional Space By G. Alan Tarr. 115 Penn St. L. Rev. 1133. Every federal system is structured by a federal constitution that divides power, establishes central institutions, prescribes the rules for resolving disputes, safeguards rights, and provides a procedure for its own alteration. In some federal systems, the federal constitution prescribes the political [...]

Constitutional Revision: Are Seriatim Amendments or Constitutional Conventions the Better Way to Amend a State Constitution? By Ann M. Lousin. 115 Penn St. L. Rev. 1099. The fifty American states may amend their constitutions in two ways. First, the states can submit individual amendments to the voters. Usually, the legislature drafts each amendment, adopts it, [...]

Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism After Medellin By Johanna Kalb. 115 Penn St. L. Rev. 1051. Subnational implementation of human rights law has been the subject of increasing interest among scholars and litigators in recent years, building on the call for independent state constitutionalism and the rise of [...]

State Constitutional Amendment Processes and the Safeguards of American Federalism By John Dinan. 115 Penn St. L. Rev. 1007. Federalism scholars have studied the range of ways that state interests are advanced in the American federalism system, including through intergovernmental lobbying, federal lawsuits, state statutes, and state non-participation in federal programs. State constitutional law scholars, [...]

State Courts and Constitutional Socio-Economic Rights: Exploring the Underutilization Thesis By Helen Hershkoff and Stephen Loffredo. 115 Penn St. L. Rev. 923. Comparative constitutional scholars are beginning to recognize the importance of subnational constitutions for law-making and governance. In particular, commentators emphasize that a polity’s decision to assign some aspects of constitutional practice to the [...]

Some Thoughts About State Constitutional Interpretation By Jack L. Landau. 115 Penn St. L. Rev. 837. I have been asked to offer my thoughts about state constitutional interpretation. That is a generous invitation; “state constitutional interpretation” covers a lot of ground. To avoid my response from becoming unmanageably long, I have decided to focus on [...]

Introduction: State Constitutionalism in the 21st Century By Gary S. Gildin and Jamison E. Colburn. 115 Penn St. L. Rev. 779. State constitutional law is a vibrant, albeit still underappreciated, area of legal study. With this Symposium, we hope that the contours of this field have been expanded, the debate over its use, application, and [...]

The Pinkerton Problem By Bruce A. Antkowiak. 115 Penn St. L. Rev. 607. In the unlikely event that any junior faculty member should ever ask me for advice about how to write a law review article, I would give them this highly non-academic bit of counsel. First, find a real problem in the law, one [...]

Be Careful What You Wish For: Why McDonald v. City of Chicago’s Rejection of the Privileges or Immunities Clause May Not Be Such a Bad Thing for Rights By Jeffrey D. Jackson. 115 Penn St. L. Rev. 561. On June 28, 2010, the United States Supreme Court handed down its much-anticipated decision in McDonald v. [...]

Collectively Bargained Age/Education Requirements: A Source of Antitrust Risk for Sports Club-Owners or Labor Risk for Players Unions? By Marc Edelman and Joseph A. Wacker. 115 Penn St. L. Rev. 341. With both the NFL and NBA collective bargaining agreements expiring in 2011, America’s two premier winter sports leagues will soon need to renegotiate their [...]

Financial Regulatory Reform Post-Financial Crisis: Unintended Consequences for Small Businesses By Regina F. Burch. 115 Penn St. L. Rev. 409. Although a visit to a small business—from the local, fast order food shop to the dry cleaner and gas station—is an integral part of everyday living, small businesses play an underappreciated role in the United [...]

The Legacy of a Supreme Court Clerkship: Stephen Breyer and Arthur Goldberg By Laura Krugman Ray. 115 Penn St. L. Rev. 83. Stephen Breyer, who clerked for Arthur Goldberg, is the fourth of five Supreme Court Justices who began their legal careers as clerks to earlier Justices. Not surprisingly, these pairs tend to be in [...]

Conley as a Special Case of Twombly and Iqbal: Exploring the Intersection of Evidence and Procedure and the Nature of Rules By Ronald J. Allen and Alan E. Guy. 115 Penn St. L. Rev. 1. A pair of Supreme Court cases interpreting the Federal Rules of Civil Procedure pleading requirements has caused quite a storm, [...]

Business as Usual: Immigration and the National Security Exception By Shoba Sivaprasad Wadhia. 114 Penn St. L. Rev. 1485. For many, the name Iqbal identifies a famous Pakistani poet and philosopher. In Arabic, the name Iqbal means one who is fortunate or wealthy. In several cultures, the naming of a child is a sacred act [...]

Interrogating Iqbal: Intent, Inertia, and (a lack of) Imagination By Victor C. Romero. 114 Penn St. L. Rev. 1419. Abstract In Ashcroft v. Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held liable for discriminatory conduct when they purposefully rely on a forbidden characteristic, such as race or [...]

The Supreme Court’s Legislative Agenda to Free Government from Accountability for Constitutional Deprivations By © Gary S. Gildin. 114 Penn St. L. Rev. 1333. In Bell Atlantic Corp. v. Twombly, the Supreme Court adopted a new standard of factual particularity a plaintiff must meet to satisfy the requirement of Federal Rule of Civil Procedure 8(a)(2) [...]

Iqbal and Supervisory Immunity By Kit Kinports. 114 Penn St. L. Rev. 1291. In determining the reach of constitutional tort liability, the Supreme Court has traditionally balanced the goals of deterring constitutional misconduct and compensating those whose rights have been violated against the governmental interest in ensuring that public officials are not unduly inhibited in [...]

Why Heightened Pleading—Why Now? By Jeffrey J. Rachlinski. 114 Penn St. L. Rev. 1247. As Professor Ray Campbell stated in his remarks at this symposium, Ashcroft v. Iqbal may be the Supreme Court case that launched a thousand law review articles. Although a statement like that is usually meant to imply that too much ink [...]

I Could Have Been a Contender:  Summary Jury Trial As A Means to Overcome Iqbal’s Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution By Nancy A. Welsh. 114 Penn St. L. Rev. 1149. INTRODUCTION For decades, lawyers’ bilateral negotiations, rather than trials, have resolved a majority of the civil actions filed in [...]

114 Penn St. L. Rev. 1143. Introduction One of the goals of the 2009-2010 Editorial Board of Penn State Law Review has been fostering a culture in which the law review serves as the catalyst for scholarly discussion among all the stakeholders in the legal community—academics, practitioners, jurists, and students.  In that spirit, Penn State [...]