Articles

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

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 the aftermath of the Iraq War. In March 2009, I traveled to Erbil, the capital of Iraqi Kurdistan, and consulted with the Kurdish regional parliament‘s constitutional drafting committee as they finalized their new constitution.1 As a professor of comparative constitutional and international law, this was a rewarding experience to say the least. [keep reading]

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

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 people—through voice, animation, and natural language—are increasingly commonplace, showing up in our cars, computers, phones, and homes. A rich literature in communications and psychology suggests that we are hardwired to react to such technology as though a person were actually present. Social interfaces accordingly capture our attention, improve interactivity, and can free up our hands for other tasks.

At the same time, technologies that imitate people have the potential to implicate long-standing privacy values. One of the well-documented effects on users of interfaces and devices that emulate people is the sensation of being observed and evaluated. Their presence can alter our attitude, behavior, and physiological state. Widespread adoption of such technology may accordingly lessen opportunities for solitude and chill curiosity and self-development. These effects are all the more dangerous in that they cannot be addressed through traditional privacy protections such as encryption or anonymization. At the same time, the unique properties of social technology also present an opportunity to improve privacy, particularly online. [keep reading]

Gross Disunity

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 claiming age discrimination under the Age Discrimination in Employment Act (ADEA) would face the same requirements as a plaintiff claiming race or sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). More recently, the Court has moved away from this ideal of uniformity. And last summer, in Gross v. FBL Financial Services, the Court completely rejected that ideal. [keep reading]

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

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, would require dozens of additional arms embargoes, including embargoes on much of Africa. The Article then provides case studies of the current supply of arms to the dictatorship in Zimbabwe and to the warlords in the eastern Democratic Republic of the Congo (DRC). The Article argues that the ATT would do nothing to remediate the conditions that have allowed so many arms to be acquired by human rights violators. The ATT would have no more effective force than the embargoes that are already imposed by the U.N. Security Council; therefore U.N. member states, including China, which violate current Security Council embargoes, could just as well violate ATT embargoes. Accordingly, the ATT is a distraction, and human rights activists should instead examine alternative methods of addressing the problem of arms in the hands of human rights violators.
At the end of this Article, there is an abstract in Spanish, and a detailed summary of the Article in French. [keep reading]

Choice in Birth: Preserving Access to VBAC

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 reproductive rights advocates have used autonomy and liberty arguments in attempts to stake out space for women to determine their reproductive lives. During periods of victory in the courts of justice and public opinion, women have experienced fewer barriers to accessing abortion and have benefited from a richer, more nuanced understanding of the conditions required for truly unconstrained decision-making about reproductive and sexual health. During periods of backlash and retrenchment, women have suffered burdensome restrictions on access to critical services, as the concept of reproductive autonomy has been whittled away by legislators, judges, and prosecutors. Throughout these ups and downs, the debate has unfolded with abortion at the center of the struggle for reproductive freedom. [keep reading]

Comments

Pennsylvania‟s Taxpayer Relief Act: Big Gamble Pays Off for Some, But Most Lose Their Shirt

By Jaime S. Bumbarger. 114 Penn. St. L. Rev. 1003

There is perhaps no greater debate in America than the one surrounding taxes, whether it is at the national, state, or local level. While taxes serve the important purpose of funding government programs, they also bear quite a burden on taxpayers. For example, property taxes account for the majority of revenue for local governments across the country. Pennsylvania is no different. In 2000, property taxes accounted for nearly $10 billion of revenue in Pennsylvania, which was 30 percent of total local government revenues and 70 percent of all local government tax revenues. [keep reading]

A Test of Democracy: Ethiopia’s Mass Media and Freedom of Information Proclamation

By Tracy J. Ross. 114 Penn St. L. Rev. 1047

David Ben-Gurion once said, “The test of democracy is freedom of criticism.” Freedom of criticism has long been recognized as an essential, inalienable human right; a right that is thought to transcend political and geographical borders and applies regardless of culture, language, and national origin. In Ethiopia, as democracy begins to grow despite a history of corruption and totalitarianism, freedom of expression has proven to be an unsteady notion. In fact, while Ethiopia gains respect in other aspects of the international political scene, the government struggles to justify its draconian control over the media. [keep reading]

Moving Beyond Monkeys: The Expansion and Relocation of the Religious Curriculum Debate

By Anna M. Sewell. 114 Penn St. L. Rev. 1067

The sinful nature of humankind is not a danger often discussed in American government textbooks. In fact, such reflections are typically reserved for the pulpit. Nonetheless, at Calvary Chapel Christian School (“CCCS”), high school students are exposed to this language in their government book, they encounter Bible verses in their physics book, and they use an American history textbook which claims “progressives had a faulty view of the nature of man.” As a routine administrative matter, the high school submitted the courses that use these texts to the University of California (“UC”) for acceptance as college preparatory courses under the University‟s pre-college curricula policy for undergraduate admissions, called the “a-g” subject requirements because each letter represents one of the seven required high school subjects. [keep reading]

Individuals and Inheritance Taxes: A Praxeological Examination of Pennsylvania’s Inheritance Tax

By Timothy J. Witt. 114 Penn St. L. Rev. 1105

Much has been written regarding the economic effects of the federal estate tax, but relatively little has been published about state inheritance taxes and their economic consequences. Additionally, what has beenwritten has not been addressed primarily to a legal audience. The legal literature discussing the Pennsylvania inheritance tax, one of the eleven effective state inheritance or estate taxes found across the country, is no exception to this observation; beyond practice guides, few legal resources have discussed the tax, and virtually none have substantively and systematically examined its economic effects. [keep reading]

Articles

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

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 of academic legal discourse.  Case law is, after all, the object about which doctrine is based, built, and extended.  But the interpretation of constitutional text through case law comes with costs—it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) public.   On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position.  For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials . . . [keep reading]

Black Like Me:  The Free Speech Jurisprudence of Clarence Thomas

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 in his First Amendment opinions.  While there have been some notable exceptions, it can be argued that Clarence Thomas is the most pronounced free speech absolutist on the Supreme Court since Hugo Black, who famously (if somewhat apocryphally) believed that “no law means no law” when it comes to the First Amendment  . . . [keep reading]

Imagining Judges that Apply Law:  How They Might Do It

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 judges to apply rather than to make law.
______American obsession with judicial lawmaking has its price: indifference to judicial law applying.  If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts.  Our failure leads American legal scholars to question whether applying law to facts is a necessary feature of civil procedure at all.
______German civil justice does have a method for routinely applying law to facts.  It is called, in German, the “Relationstechnik,” that is, in English, literally “relationship technique.”  This article introduces it to American lawyers and judges and shows how it helps make German civil justice effective . . . [keep reading]

Justifying Religious Freedom:  The Western Tradition

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 every man to exercise it as these may dictate.  This right is in its nature an unalienable right.”   The First Amendment contains a separate clause addressing the free exercise and nonestablishment of religion, thus distinguishing religious freedom from freedoms of speech, press, assembly, and petition.   The question is, why?  Why does the First Amendment single out religion for special protection in our constitutional system?  Why is religion treated differently than other beliefs and activities?  What, if anything, about religion merits unique constitutional rules?  [keep reading]

Comments

Is Hate Speech Becoming the New Blasphemy?  Lessons from an American Constitutional Dialectic

By Justin Kirk Houser.  114 Penn St. L. Rev. 571.

On May 10, 1836, as they were going about their daily business in New Castle County, Delaware, numerous citizens were shocked and alarmed to hear Thomas Jefferson Chandler exclaim in a loud voice, “The Virgin Mary was a whore, and Jesus Christ was a bastard!”   The moral outrage of the community was directed at Chandler, and he was arrested.   Following conviction in county court, he appealed his case to the Delaware Court of General Sessions.   The court affirmed Chandler’s conviction, and upheld the constitutionality of the crime of blasphemy.   The court found that one who attacked the doctrines of Christianity “struck at the foundation of . . . civil society,” because “the religion of the people of Delaware is christian.”   The court opined that the people had a right to enjoy their chosen religion “without interruption or disturbance,” for which “they may claim the protection of law guarantied [sic] to them by the constitution itself.”  [keep reading]

Mr. Pink  Never Leaves a Tip:  How Current Tip Credit and Tip Pool Guidelines Leave Employees at the Mercy of Employers

By Neil Patrick McConnell.  114 Penn St. L. Rev. 621.

At every restaurant there is the familiar sound of after-meal chatter, everyone at the table giving their closing thoughts as to what the cooks did correctly or the criticisms from the dining companion who has watched too many episodes of Bravo’s “Top Chef.”  The bill arrives, and then glances are made to see if the waiter is within earshot.  The critical question is spoken:  “How much should we tip?” [keep reading]

Puppy Lemon Laws:  Think Twice before Buying that Doggy in the Window

By Stephanie K. Savino.  114 Penn St. L. Rev. 643.

Consider the following hypothetical:  a couple’s children beg their parents to “just take a look” at the puppies in the local pet store.  After the couple gives in and enters the store, the entire family instantly falls in love with the soulful-eyed puppy behind the window.  The salesclerk at the pet store offers a reasonable price to the couple.  In addition, the salesclerk claims that the puppy was purely bred and that the puppy has a clean bill of health.   Soon after, the family leaves the pet store, eager to bond with its new addition . . . [keep reading]

Balancing Police Action Against an Underdeveloped Fundamental Right:  Is There a Right to Travel Freely on Public Fora?

By Andrew M. Schnitzel.  114 Penn St. L. Rev. 667.

Violent crime fueled by drug profits is not a new problem for our nation’s inner cities.  Police struggle to adapt their tactics to changing street conditions while still safeguarding the constitutional rights of citizens they have sworn to protect.  The summer of 2008 marked a tipping point for the Metropolitan Police Department (“MPD”) of Washington, D.C.  Drive-by shootings ravaged the neighborhood of Trinidad,  and the MPD responded with an innovative program designed to curb the violence.   The following hypothetical illustrates the basic facts of the program along with a collateral restriction of civil liberties that generated intense controversy . . . [keep reading]

Special Dedication

Remarks Given on October 24, 2009, at the 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 [read the remarks].

Articles

Intention, Torture, and the Concept of State Crime

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 the intent requirement as applied to states. First, state intent should be understood objectively with reference to the apparent reasons for state action. The subjective motivation of particular state actors is not directly relevant. While we focus on subjective intent in the context of individual crime because of its relation to culpability and blameworthiness, in the context of state crime we should be concerned with preserving the legitimacy of political authority, and the conditions for legitimacy turn on the apparent reasons rather than subjective motivations behind state action . . . [keep reading]

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

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 Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below the Supreme Court level, just as judges commonly do for state court, other federal court, and other nations’ court appointments? This Article answers “no.” [keep reading]

Analytical Jurisprudence and the Concept of Commercial Law

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 their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems.  Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state.  This article aims to use legal positivism to conceptualize a transnational commercial law order.  Prevailing positivist accounts at least implicitly condition legal order on state sovereignty.  This article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law.  The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order.  There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order . . . [keep reading]

The Assault on Judicial Independence and the Uniquely Delaware Response

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 . . . though they can never stop the movements of the majority, they do succeed in checking and directing them.” Tocqueville’s writings resonated greatly at the time, as many states moved towards the popular election of judges in the name of Jacksonian Democracy.  Sadly, more than 170 years after they were first spoken, Tocqueville’s words remain relevant and of vital importance as federal and state courts face increasingly virulent assaults on their constitutionally-guaranteed independence . . . [keep reading]

Comments

Freedom from the Press: Why the Federal Propaganda Prohibition Act of 2005 is a Good Idea

By Stas Getmanenko.  114 Penn St. L. Rev. 251.

This Comment reviews First Amendment freedom of the press through the prism of technological change brought about in the last decade.  When the First Amendment  secured fundamental human liberties in 1791, its main purpose was to oppose tyranny.   The passage of the First Amendment was a logical extension and the culmination of the pilgrims’ escape from state-sponsored persecution.  At that time, the First Amendment amounted to the triumph of liberal thought which granted people their long-sought freedoms.   This Comment argues that some two hundred years after the passage of the Bill of Rights, new-age informational tactics exploit the text of the First Amendment contrary to its intent.  Thus, the situation amounts to nothing less than tyranny against which the Amendment was intended to protect . . . [keep reading]

Stormans and the Pharmacists:  Where Have All the Conscientious Rx Gone?

By Jason R. Mau.  114 Penn St. L. Rev. 293.

The “right of conscience” is a term that is likely to elicit strong feelings in any context.  Use that same phrase with the word “pharmacist” and these strong feelings will most likely be heightened, because they involve issues of reproduction and First Amendment rights, both evoking passionate views.   Recently, the increasing amount of stories reporting pharmacists’ refusal to sell over-the-counter emergency contraceptives has fueled the public debate between those who believe in a right of conscience and those who believe in a right of access to contraceptives.  This public debate over emergency contraceptives and pharmacists’ right of conscience has led many state legislatures to enact or amend previously existing legislation to outline each state’s position on the subject . . . [keep reading]

Compelling Choice: Forcibly Medicating Death Row Inmates to Determine Whether They Wish to Pursue Collateral Relief

By Dominic Rupprecht.  114 Penn St. L. Rev. 333.

It is unclear exactly how many of the 3,228 inmates on death row are mentally incompetent. A BBC report placed the number at approximately 10%. Some clinical studies have found as many as 40% or even 70% of surveyed inmates are psychotic. Whether the actual number of death row inmates suffering from mental illness is 10% or 70%, mentally ill inmates represent a considerable portion of the death row population and pose unique challenges for the criminal justice system.

In July 2008, the Pennsylvania Supreme Court ruled that two of these mentally ill death row inmates, Thavirak Sam and Herbert Watson, could be forcibly medicated to render them competent to determine whether they wished to pursue collateral relief under Pennsylvania’s Post Conviction Relief Act (PCRA). This appears to be the first time a court of last resort has resolved the issue raised by Sam and Watson . . . [keep reading]

Damned If You Don’t . . . Damned if You Do?  Creating Effective, Constitutionally Permissible University Sexual Harassment Policies

By Alexis Snyder.  114 Penn St. L. Rev. 367.

In the past two decades, the tension between the First Amendment’s free speech guarantee  and harassment policies has been the subject of much commentary.  This tension is particularly strong in the university setting.   On the one hand, universities are seen as beacons of free thought and the exchange of ideas.  On the other hand, universities have a duty to protect their students from harassment, which could interfere with a student’s right to participate fully in the learning environment.In fact, courts have indicated that a university can be legally liable for student-on-student sexual harassment under Title IX if the university knows about the harassment and fails to take any action . . . [keep reading]

Introduction

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.” This term, the U.S. Supreme Court granted certiorari to three arbitration cases.  It has rendered two opinions already that signify the Court’s continuing support for and approval of arbitration. In Vaden v. Discover Bank, the Court resolved a circuit split by endorsing the “look through”  approach “to determine whether federal-question jurisdiction exists over the underlying petition.” This approach favors  the recourse to arbitration and its regulation by federal law. In 14 Penn Plaza v. Pyett, the Court confirmed the subject-matter arbitrability of discrimination claims that are submitted to arbitration by the parties in a provision of the collective bargaining agreement (CBA). It thereby reduced the precedential significance of Alexander v. Gardner-Denver to its “narrow holding.”  When the arbitration agreement clearly provides for the arbitrability of statutory rights, all such rights are arbitrable under federal law.  Accordingly, the Court aligned both forms of workplace arbitration, unionized and nonunionized, to the arbitrability holdings in Mitsubishi, Rodriguez, and Gilmer  . . . [keep reading]

Dedication:  Vratislav Pechota

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 eventually died from the effects of its insults to the human personality. He gained refuge at Columbia University School of Law through the good offices of the Parker School then its International Arbitration Center and the tutelage of Hans Smit. His voluminous work on arbitration is unparalleled in breadth and intricacy. Vrat made a monumental contribution to the study of arbitration. His spirit prevails; it could not be extinguished by communist dictators or dispelled by death.

For an extensive account of his life and work, see Vratislav Pechota Curriculum Vitae, 15 Am. Rev. Int’l Arb. (2004).

Contractual Modifications of the Arbitral Process

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 decision.

The next step was to enforce the agreement to arbitrate. The courts were not enthusiastic about enforcing a substitute for their exclusive prerogative. The legislature had to push it, one might say, down their throats.

And then the Supreme Court went even further and ruled that, if the arbitration agreement so provided, the arbitrators were the ones to determine whether the dispute was arbitrable . . .  [keep reading]

Ascertaining the Parties’ Intentions in Arbitral Design

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 body of law is driven by the same notions of party autonomy that underlie the law of arbitration generally. That parties may agree to forego access to national courts in favor of arbitration is an initial manifestation of that attitude. By logical extension, the parties also enjoy extraordinary latitude in determining the features that “their” eventual arbitration should display . . . [keep reading]

Private Ordering and International Commercial Arbitration

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 state-run courts.” A series of studies by Lisa Bernstein illustrates a paradigm case of private ordering – trade associations that use industry arbitrators (private judges) to adjudicate disputes, with the arbitrators’ awards typically enforced by the threat of extralegal sanctions such as expulsion from the association.  In the trade associations studied by Bernstein, the merchants opted out of the public court system and instead chose to have their disputes resolved by private judges applying industry trade rules . . . [keep reading]

Empirical Research on Consumer Arbitration:  What the Data Reveals

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 points of data the National Arbitration Foundation (“NAF”) collected about its California arbitrations.

Unfortunately, Public Citizen’s analysis of the NAF data does not support its conclusions primarily because its conclusions cannot be extended beyond the set of cases the data contains, i.e., collection cases filed by creditors, including credit card companies, against consumers with outstanding balances on their accounts. Rather than attempt to draw conclusions based solely on this data, Public Citizen instead extrapolates its conclusions to all consumer arbitration cases even though collections cases are unique.  Public Citizen ultimately concludes that binding, mandatory arbitration is bad for consumers in all situations based on a data set comprised of practically all – upwards of 99.9% – collections cases . . . [keep reading]

How Congress Can Make a More Equitable Federal Arbitration Act

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 fact that predispute arbitration agreements are now widely used for consumer contracts and many employment agreements . . . [keep reading]

Personal Autonomy and Vacatur After Hall Street

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 courts can through public ordering . . . [keep reading]

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

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 may participate in arbitration proceedings . . . [keep reading]

State Interests and Arbitration: The Russian Model

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 by a complex system of national laws and international treaties.” . . . [keep reading]

Consumer Arbitration in the Evolving Canadian Landscape

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 arbitration unenforceable, preserving consumers’ access to courts and, perhaps more significantly, access to class actions. In so doing, these jurisdictions stand in stark contrast to the Supreme Court of Canada, which recently extended its pro-arbitration posture from the commercial to the consumer law realm by enforcing an arbitration clause in an online consumer contract, thereby putting an end to the consumer’s attempt to file a class action against the vendor . . . [keep reading]

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

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 Civilization of Arbitration.” International commercial arbitration has had a globalizing impact on the law.  Through centrally legislated and decentralized reforms, it has achieved a new transnational legal framework and common vision that bring with them characteristics of civilization. Below the surface, however, currents flow in contradictory directions.  One area of vigorous debate concerns the proper role and scope for mandatory public law, not only in arbitral proceedings, but as a factor to be considered (or ignored) at the point of judicial intervention, whether seeking to enforce an arbitration agreement, in annulment proceedings, or at the stage of recognition and enforcement of an award . . . [keep reading]

The Civilization of Investment Arbitration

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 international commercial arbitration runs into both techniques borrowed from U.S.-style no-holds-barred litigation and the staid and measured practice common before international tribunals such as the International Court of Justice; where public international law principles vie for supremacy with municipal law and the lex mercatoria; where common law emphasis on case law meets civil law emphasis on treaty (code) provisions . . . [keep reading]

Denial of Benefits and Article 17 of the Energy Charter Treaty

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 years – and contains, besides the provisions on trade and transit in the energy sector, modern provisions  regarding protection of investments and dispute resolution settlement. Part III of the ECT, on the investment promotion and protection, recalls the substantive protection offered by modern bilateral and multilateral investment/trade agreements. This article examines the so-called “denial of benefits” clause under Article 17 of the ECT . . . [keep reading]

Agreements to Arbitrate and the Predictability of Procedures

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 mostly use international arbitration.   Many of these businesses may have encountered few disputes because of the way their commercial activities are conducted, and others may be able to resolve incipient disputes through negotiation, perhaps involving further commercial arrangements between the parties . . . [ keep reading]

Restating the U.S. Law of International Commercial Arbitration

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 of this Essay presented a Preliminary Draft of a chapter of the Restatement (the “Draft”) at an invitational meeting in New York. The Draft addresses Recognition and Enforcement of Arbitral Awards. This brief Essay provides some  reflections of the Reporters from the process of producing and presenting the Draft . . . [ keep reading]

Judicial Approbation in Building the Civilization of Arbitration

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 economies eventually gave it a wider, more universal vocation.  A world law of arbitration emerged and developed.  Not only was it global in application, but its content was modern and sophisticated.  States, admittedly to varying degrees,  had come to the realization that their participation and that of their nationals in the world marketplace should only be undertaken with the adjudicatory guarantees of arbitration . . . [ keep reading]

Book Review of:  L. Margaret Moses, The Principles and Practice of International Commercial Arbitration (Cambridge Univ. Press 2008)

By Jack J. Coe, Jr., 113 Penn St. L. Rev. 1369.

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 economies eventually gave it a wider, more universal vocation.  A world law of arbitration emerged and developed.  Not only was it global in application, but its content was modern and sophisticated.  States, admittedly to varying degrees,  had come to the realization that their participation and that of their nationals in the world marketplace should only be undertaken with the adjudicatory guarantees of arbitration . . . [ keep reading]

Articles:

From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems

By Larry Catá Backer.  113 Penn St. L. Rev. 671.

Academic and policy engagements with constitutions and constitutionalism have largely been built around unstated frameworks within which legitimated activity can take place. The essay suggests both the disorientation of much of the discussion and proposes an ideological framework that captures the assumptions about which constitutionalist discourse has evolved. Constitutionalism at one time could be said to involve the study of the peculiarities of the unique domestic constitutional framework through which government was constituted and power institutionalized. No longer. This essay examines the current discourse of constitutionalism . . . [keep reading]

John Leland and James Madison: Religious Influence on the Ratification of the Constitution and on the Proposal of the Bill of Rights

By Mark S. Scarberry.  113 Penn St. L. Rev. 733.

Leland’s self-written Epitaph: “Here lies the body of John Leland, who labored 67 years to promote piety and vindicate the civil and religious rights of all men.”  “He played a substantial part in molding [an] American tradition that is full of meaning to all of us today—the separation of church and state in the United States. . . . Much of Leland’s sixty-seven year career as a Baptist evangelist was expended in fighting to remove [religious] disabilities—not only for Baptists but for persons of all faiths, Christian and non-Christian, and even for those who held no recognized religious faith. . . . [H]e was as courageous and resourceful a champion of the rights of conscience as America has produced . . . [keep reading]

The Ethics of Mining for Metadata Outside of Formal Discovery

By Elizabeth W. King.  113 Penn St. L. Rev. 801.

One of the most familiar ethical issues in the practice of law is the conflict between advocating on behalf of a client and maintaining standards of professional ethics.  As technology in the practice of law increases, lawyers are facing a greater number of ethical challenges.  This paper explores the particular ethical dilemma that is created when, outside of formal discovery, an attorney inadvertently, unknowingly, or unintentionally sends metadata hidden behind an electronic document to another attorney . . . [keep reading]

Playing the Proof Game: Intelligent Design and the Law

By Frank S. Ravitch.  113 Penn St. L. Rev. 841.

Intelligent design advocates argue that excluding intelligent design from educational and scientific environments discriminates in favor of methodological naturalism and against other approaches for understanding natural phenomena. These arguments are flawed both legally and philosophically. In order to succeed ID advocates need to demonstrate that ID is science and that public school classes and scientific institutions are public fora for speech . . .  [keep reading]

Comments:

Plurality Rule: Concurring Opinions and a Divided Supreme Court

By Linas E. Ledebur. 113 Penn St. L. Rev. 899.

Justices become binding precedent? What about one signed by three Justices? Can you go so far as to say an opinion signed onto by only a single Justice can be binding precedent? The answer is yes, and many opinions signed onto by less than a majority of the Court are consistently cited by lower courts as precedent. The reasons for this occurrence can be directly attributed to the use of concurring opinions, which has led to a mass of plurality opinions issued by the Court . . . [keep reading]

Praising the Enemy: Could the United States Criminalize the Glorification of Terror Under an Act Similar to the United Kingdom’s Terrorism Act 2006?

By Michael C. Shaughnessy. 113 Penn St. L. Rev. 923.

At 8:50 in the morning on July 7, in a subway car packed with morning commuters on their way to work in a major metropolitan city, a suicide bomber detonates the explosives concealed in his backpack. Across town on another subway car, commuters observe a young man fiddling with his backpack seconds before it explodes, ripping the car to shreds. An instant later, a third explosion rocks yet another subway train, stranding maimed and panicked passengers in between stations. Within two minutes, nearly forty people taking the morning trip to work have been killed and another 600 have been injured . . . [keep reading]

Articles:

The Outrageous God:  Emotional Distress, Tort Liability, and the Limits of Religious Advocacy

By Jeffrey Shulman.  113 Penn St. L. Rev. 381.

When Matthew Snyder died fighting for his country, his memory was celebrated, and his loss mourned.  The Westboro Baptist Church conducted a celebration of a different kind by picketing near Matthew’s funeral service.   The church held signs that read, “You are going tohell,” “God hates you,” “Thank God for dead soldiers,” and “Semper fi fags.” . . . [keep reading]

Reviving the Forgotten American Dream

By Geoffrey D. Korff.  113 Penn St. L. Rev. 417.

It is difficult to talk about wealth inequality in public forums without at some point being labeled a socialist or some form of extreme leftist.  The discussion, however, continues to be had by capitalists and socialists alike. My ideology is the former, but I will admit to some misgivings about how our present capitalist system is functioning . . . [keep reading]

Risky Business: Popular Images and Reality of Capital Markets Handling Risk—From the Tulip Craze to the Decade of Greed

By Christian C. Day.  113 Penn St. L. Rev. 461.

Speculators are often portrayed in popular culture as predatory businesspeople. Sometimes they are seen as fools. But, the portraits are often ill-informed. This article studies speculation found in Tulip Mania and the South Sea Bubble. The article then focuses on speculation in debt from the American Revolution. The Gilded Age and railroad building are surveyed. The article concludes with the Decade of Greed, the 1980s, as envisioned in film. While popular portraits are entertaining, the historic and economic reality is much
different. Speculators play an important role providing capital and liquidity, risk taking, and rationing of resources critical for market economies . . . [keep reading]

Arbitrating Wrongful Death Claims for Nursing Home Patients: What is Wrong with this Picture and How to Make it “More” Right

By Suzanne M. Scheller.  113 Penn St. L. Rev. 527.

Consider the following example: an elderly patient with advanced Alzheimer’s disease dies after being beaten and raped while in an assisted living facility. The beneficiaries bring a wrongful death claim against the owner of the facility. The facility then seeks to compel arbitration of the claim based on the arbitration clause in the patient’s admissions contract
. . .  [keep reading]

Comments:

National Interest Electric Transmission Corridors: Will State Regulators Remain Relevant?

By Erich W. Struble. 113 Penn St. L. Rev. 575.

Electric transmission lines transport much needed energy to homes and businesses across the United States. Electric utilities traditionally provided electric transmission service in a market regulated primarily by state authorities.  An important part of such state regulation included approving or disapproving utilities’ applications to site new electric transmission infrastructure.  New transmission lines are needed, for example, to accommodate increased generation capacity meant to satisfy consumer demand or to replace antiquated equipment . . . [keep reading]

The Purse’s Pardon: How an Amendment to H.R. 3093 Challenges Executive Power

By Erin R. Kawa. 113 Penn St. L. Rev. 599.

The system of governance in the United States is a dynamic one. Power is divided between the federal and state governments, and then further divided between the three branches of the Federal Government itself. At the most basic level within the Federal Government, the Legislature creates the law, the Executive enforces the law, and the
Judiciary interprets the law. Each has its own roles and responsibilities within that framework, but each is nonetheless interdependent. Nearly any action of one branch implicates the roles and responsibilities of all branches. This Comment will analyze a specific instance of one branch’s action that implicates the roles of all: a suspect provision of an appropriations bill passed by the legislature that may affect the roles and duties of not only the legislature itself, but also the judiciary, and, most importantly, the executive as well . . . [keep reading]

Falling Through the Cracks: How the 20/40 Rule Discriminates Against Women Seeking Social Security Disability Insurance Benefits and What Congress Can Do About It

By Sarah E. Hoffman. 113 Penn St. L. Rev. 621.

The Social Security Administration (“SSA”) determines eligibility for Social Security Disability Insurance (“SSDI”) benefits on the basis of both the disability and the work history of the applicant.  The 20/40 rule is a tool used by the SSA to evaluate whether an applicant’s work history is sufficient to award benefits.  The rule provides that “[a]n individual shall be insured for disability insurance benefits in any month if . . . he [or she] had not less than 20 quarters of coverage during the 40-quarter period which ends with the quarter in which such month occurred. . . .”  Because the 20/40 rule requires recent and substantial work activity, it may discriminate against women, who leave their jobs much more frequently than men to care for their children. . . [keep reading]

Justice for Dusty: Implementing Mandatory Minimum Sentences for Animal Abusers

By Kirsten E. Brimer. 113 Penn St. L. Rev. 649.

In July 2001, Michael Welch beat Dusty to death over a period of two hours. Taking breaks only to consume more alcohol, Welch continued to bludgeon his victim with a sledgehammer and a baseball bat until his neighbor, hearing cries of pain, called the police.  Although Welch was charged and the case went to trial, he received a mere three
years of probation. . . [keep reading]

Articles:

A Dearth of Remedies

By Elizabeth D. De Armond.  113 Penn St. L. Rev 1.

Federal privacy statutes purport to solidify norms for the privacy of our personal information, whether financial, medical, or other.  Given the importance of privacy norms and the tradition of rights and remedies for privacy at the state level, states should seek to push their capacities to use laws, whether common or enacted, to protect their citizens to the very limits they can.  Enforcement of social privacy norms, as embodied in laws state or federal, is necessary to protect personality and dignity.  States can resume their traditional roles as protectors of their citizens by responding to increased threats to privacy through adapting common law torts or by enacting legislation; where these instruments provide enforcement through private causes of action, those protected by the instruments can vindicate their rights.  More importantly, such remedies can deter violations to begin with, the ultimate aim of any privacy provision . . . [keep reading]

After the Gold Rush-Part II:  Hamdi, the Jury Trial, and Our Degraded Public Sphere

By Daniel R. Williams.  113 Penn St. L. Rev 55.

Daniel R. Williams expands on his previous article After the Gold Rush Part I.

Long ago, in a bygone era of barbarism, cruelty, and darkness, before an Enlightenment era ushered in a human-rights consciousness, before the great revolutions created space for republican government to form and then flourish, there was the “spectacle of the scaffold.” Punishment through horrific torture inflicted in the public square heralded sovereignty through “spectacle not of measure, but of imbalance and excess.” The public square became the forum for the sovereign, “through the body of the criminal,” to reactivate its power: the scaffold in the public square “made the body of the condemned man the place where the vengeance of the sovereign was applied, the anchoring point for a manifestation of power, an opportunity of affirming the dissymetry [sic] of forces.”  The public sphere was where sovereignty announced itself . . . [keep reading]

Nihilism with a Happy Ending?  The Interstate Commerce Commission and the Emergence of the Post-Enlightenment Paradigm

By Mark F. Kightlinger.  113 Penn St. L. Rev 113.

This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC)-the first federal administrative agency-in an effort to identify the intellectual roots of the modern administrative state.  The Article argues that the Court’s effort to explain and justify the function of the newborn ICC shows the traces of a post-Enlightenment crisis in the field of moral philosophy-i.e., the growing conviction that it is no longer possible for reasonable people to agree on what constitutes a true, objective, universally valid standard of reasonable or just conduct.  From this essentially nihilistic starting point, the Court helped to fashion a new post-Enlightenment paradigm under which the function of an administrative bureaucracy such as the ICC is to impose order on a market consisting of individuals pursuing their non-rational interests and preferences in the absence of an objective, shared moral framework . . . [keep reading]

Securities Fraud, Recidivism, and Deterrence

By Jayne W. Barnard.  113 Penn St. L. Rev 189.

Legal scholars have expended considerable energy on the study of high-level securities fraud violators-Ken Lay, Bernie Ebbers, Dennis Kozlowski, etc.  There has been little attention, however, to the perpetrators of “retail” securities fraud-the con artists who sell bogus stock over the Internet, orchestrate elaborate pump-and-dump schemes, and create a never-ending array of purportedly “risk free” investment opportunities.

In this article, Professor Barnard examines this group of offenders, focusing particularly on those who recidivate-often moving from state to state and scheme to scheme, with little interruption from the law enforcement community . . . [keep reading]

Comments:

An Investment to Die For:  From Life Insurance to Death Bonds, the Evolution and Legality of the Life Settlement Industry

By Kelly J. Bozanic.  113 Penn St. L. Rev 229.

Profiting from death may strike one as morally offensive, but the life settlement industry has created just such an opportunity.  A life settlement is a transaction wherein an insured assigns the ownership interest (contract rights to the death benefit) of a life insurance policy to an investor for cash consideration.  In other words, it is the sale of an economic interest in the death of the insured.  As such, the industry has created a secondary market for what was once thought to be an illiquid asset: life insurance.  While current market volatility makes an investment in death attractive, the life settlement industry is not without pitfalls.  This Comment explores the evolution and legality of the industry as well as considerations for an individual contemplating a life settlement transaction . . . [keep reading]

Ambiguity in the Air:  Why Judicial Interpretation of Insurance Policy Terms Should Force Insurance Companies to Pay for Global Warming Litigation

By Travis S. Hunter.  113 Penn St. L. Rev 267.

As the United States begins to confront global warming and global climate change, the question remains as to how these regulations will affect society. Presumably, corporations producing greenhouse gases will be sued for breaching carbon emissions statutes set by the EPA, and presumably, someone will have to pay for the significant costs involved with such global warming litigation.

This paper will explore the ambiguity in a D&O pollution exclusion and examine why the insurance companies should foot the costs of global warming litigation in the future  . . . [keep reading]

Overturning Matula:  How the Third Circuit Court of Appeals Will Impact Other Courts’ Decisions on the Availability of § 1983 as a Remedy for IDEA Violations

By Sara Tussey.  113 Penn St. L. Rev 297.

Over the last twenty years, the United States courts of appeals, including the Third Circuit Court of Appeals, have struggled with the question of whether to award compensatory and punitive damages in IDEA cases. In 1995, the Third Circuit held, in W.B. v. Matula, that § 1983 can be used by parents and children seeking monetary damages for statutory violations of the IDEA.  In the years following Matula, the United States courts of appeals were split evenly on this issue.  In 2007, the Third Circuit revisited the Matula decision in A.W. v. Jersey City Public Schools.  The court reversed its earlier holding and decided that § 1983 cannot be used in conjunction with the IDEA.  The Third Circuit was the first federal court of appeals to explicitly overturn an earlier holding on the availability of § 1983 as a remedy for IDEA violations. This Comment will discuss the impact the Third Circuit has had on the availability of § 1983 remedies for IDEA violations . . . [keep reading]

“No Saggy Pants”:  A Review of the First Amendment Issues Presented by the State’s Regulation of Fashion in Public Streets

By Angelica M. Sinopole.  113 Penn St. L. Rev 329.

In an effort to restrain a popular fashion – saggy pants – and to remedy the problems allegedly associated with that fashion, cities across the nation are passing so-called “anti-sag ordinances.”  Critics have protested the bans on saggy pants, including the proposed ordinance in Atlanta, claiming that these laws violate the wearer’s First Amendment rights to freedom of speech and expression.  This Comment sets out the First Amendment legal framework as it relates to anti-sag ordinances, particularly Atlanta’s proposed law, and considers the potential First Amendment issues faced by challengers of the ordinances . . . [keep reading]

Articles:

History, Transparency, and the Establishment Clause: A Proposal for Reform

By Lisa Shaw Roy.  112 Penn St. L. Rev. 683.

When the U.S. Supreme Court began to write about the historical roots of religious freedom, it was inevitable that scholarly attention would be captured. History is a grand subject in which we all have a very real stake. “[T]hat which, in the opinions of the Supreme Court, is believed to be true about the past” actually lives in the present—it forms a narrative that shapes doctrine, determines outcomes, and affects lives . . . [keep reading]

Using Mandates and Incentives to Promote Sustainable Construction and Green Building Projects in the Private Sector: A Call for More State Land Use Policy Initiatives

By Carl J. Circo.  112 Penn St. L. Rev. 731.

Green building technology has arrived. Green, or high performance, building practices primarily involve the design, construction, and operation of buildings and other facilities in ways that preserve natural resources and protect the environment for generations to come. Policy, technical, and legal journals convincingly argue the merits of both sustainable development in general and specific sustainable building standards . . . [keep reading]

The Beat Should Not Go On: Resisting Early Calls for Further Extensions of Copyright Duration

By Arlen W. Langvardt.  112 Penn St. L. Rev. 783.

The campaign began even earlier than I thought it would. No, not the 2008 presidential campaign, although that one began far too early as well. Instead, I mean the campaign for yet another extension of copyright duration. Mark Helprin, an accomplished novelist, short-story writer, essayist, and political commentator, fired an opening salvo in this campaign with a 2007 op-ed, A Great Idea Lives Forever. Shouldn’t Its Copyright? . . . [keep reading]

How to Block Cartel Formation and Price Fixing: Using Extraterritorial Application of the Antitrust Laws as a Deterrence Mechanism

By John M. Connor and Darren Bush.  112 Penn St. L. Rev. 813.

In an age of increasing international commerce, it should come as no surprise that international cartels are on the upswing.  As competition becomes international in scope, so do the competitive pressures on businesses. One method of potentially eliminating the effects of competition upon business (providing products at cost and thereby diminishing profit) is to unite with one’s competition, turning one’s competitor into a friend and one’s customer into an enemy.  [keep reading]

Comments:

Splitting the Ninth Circuit: An Administrative Necessity or Environmental Gerrymandering?

By Frank Tamulonis III.  112 Penn St. L. Rev. 859.

The debate to divide the Ninth Circuit Court of Appeals (the “Ninth Circuit” or the “Circuit”) is not a new one. Indeed, the debate has raged for decades. Nonetheless, the Ninth Circuit split debate continues and is just as heated today as at any point in history. Split proponents and opponents alike vehemently defend their positions, well aware that such a split could substantially change the judicial atmosphere in the western United States . . . [keep reading]

Kourkounakis v. Della Russo:  Should a Trial Judge Be Permitted to Independently Google an Expert Witness to Determine Credibility?

By  Katrina Hall.  112 Penn St. L. Rev. 885.

While justice is contemporarily depicted by a blindfolded goddess carrying scales and holding a sword, earlier versions of this image portray the woman without a blindfold, which was added only within the last four hundred years.  The blindfold represents a safeguard against “information that could bias or corrupt her.”  The scales signify evenhandedness; while the sword represents an uncompromising character . . . [keep reading]

The Key to Unlocking the Partial Lockout:  A Discussion of the NLRB’s Decisions in Midwest Generation and Bunting Bearings

By  C. Quincy Ewell. 112 Penn St. L. Rev. 907.

Collective bargaining consists of negotiations between an employer and a group of employees, who are usually represented by a labor union, in an effort to determine the conditions of employment.  Collective bargaining is governed by the National Labor Relations Act (NLRA or the Act), which sets forth guidelines permitting and proscribing certain activity . . . [keep reading]