Volume 116, Issue 2

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 interest. Data mining has captured the imagination as a tool which can potentially close the intelligence gap constantly deepening between governments and their targets. Data mining initiatives are popping up everywhere. The reaction to the data mining of personal information by governmental entities came to life in a flurry of reports, discussions, and academic papers. The general notion in these sources is that of fear and even awe. As this discourse unfolds, something is still missing. An important methodological step must be part of every one of these inquires mentioned abovethe adequate consideration of alternatives. This article is devoted to bringing this step to the attention of academics and policymakers.

The article begins by explaining the term “data mining,” its unique traits, and the roles of humans and machines. It then maps out, with a very broad brush, the various concerns raised by these practices. Thereafter, it introduces four central alternative strategies to achieve the governmental objectives of security and law enforcement without engaging in extensive data mining and an additional strategy which applies some data mining while striving to minimize several concerns. The article sharpens the distinctions between the central alternatives to promote a full understanding of their advantages and shortcomings. Finally, the article briefly demonstrates how an analysis that takes alternative measures into account can be carried out in two contexts. First, it addresses a legal perspective, while considering the detriments of data mining and other alternatives as overreaching “searches.” Second, it tests the political process set in motion when contemplating these measures. This final analysis leads to an interesting conclusiondata mining (as opposed to other options) might indeed be disfavored by the public, but mandates the least scrutiny by courts. In addition, the majority’s aversion from the use of data mining might result from the fact that data mining refrains from shifting risk and costs to weaker groups. This is yet one of the ways the methodology of examining alternatives can illuminate our understanding of data mining and its effects.

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Convictions Based on Lies: Defining Due Process Protection

By Anne Bowen Poulin. 116 Penn St. L. Rev. 331

The corrupting impact of false testimony on the justice system is profound and corrosive. The Supreme Court has long-since held that the due process clause protects against convictions based on testimony that the prosecutor knew or should have known was false.

Despite this precedent, courts have undermined that constitutional protection by imposing demanding requirements of prosecution knowledge, narrowing the definition of false testimony, and holding defendants to an inappropriate standard of materiality. As a result, the law does not provide adequate protection from conviction based on lies.

Courts must reinvigorate this area of the law. To provide appropriate protection, the requirements a defendant must meet to receive relief based on the use of false testimony must be clarified in the following ways. First, the prosecution should be deemed to have knowledge of the falsity not only if an individual prosecutor had actual knowledge, but also if the prosecution did not meet its duty to discover that the testimony was false or if the prosecution had knowledge of contrary information possessed by other government actors and therefore imputed to the prosecution. Second, the false testimony need not rise to the level of perjury. Third, the courts should apply the more lenient standard of materiality defined for false testimony cases by asking how the revelation that the witness had testified falsely would have influenced the jury in the initial trial rather than asking what would have occurred had the witness simply given truthful testimony.

In addition, the courts should revisit the law that applies when a defendant discovers that the prosecution unknowingly presented false testimony. If the falsity was material, the courts should conclude that the conviction violates due process despite the lack of prosecution knowledge. Even if the courts do not extend due process protection to the unknowing use of false testimony, they should grant the defendant a new trial more readily than with other types of newly discovered evidence. The corrupting impact of false testimony calls for at least this level of protection.

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Government Prediction Markets: Why, Who, and How

By Tom W. Bell. 116 Penn St. L. Rev. 403

This paper describes how prediction markets can make governments smarter, cheaper, and more responsive to changing conditions. A prediction market resembles a stock exchange where traders buy and sell not shares of companies, but claims about various future events. Academic and commercial use of prediction markets indicates that they offer a useful tool for encouraging, collecting, and quantifying widely scattered expertise. Government administrators have begun experimenting with prediction markets, too. Many questions remain, however, about the proper way to implement government prediction markets. This paper opens with a brief survey of the costs and benefits of government prediction markets. It then turns to ironing out the statutory and regulatory wrinkles occasioned by government prediction markets in general, and by federal executive prediction markets in particular. The paper begins by asking who should run government prediction markets and who should trade on them. The short answers: Government agencies should outsource the provision of prediction markets and let employees and outside contractors trade on them. The paper then turns to mitigating the legal risks raised by government prediction markets—especially those offering cash or other valuable consideration—and advocates such prophylactics as hosting spot transactions in negotiable conditional notes, offering traders seed funding, and contractually mandating a minimum level of trading. The paper concludes by describing a three-step plan for putting prediction markets to work for the United States government and, through it, the People.

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Improving the Culture of Ethical Behavior in the Financial Sector: Time to Expressly Provide for Private Enforcement Against Aiders and Abettors of Securities Fraud

By Mark Klock. 116 Penn St. L. Rev. 437

Financial markets do not function well when fraud is pervasive. It has been well documented that financial fraud has increased following changes in securities law that occurred in the 1990’s. Also around September of 2009, the investigations into the SEC examinations of Bernard Madoff Investment Securities, LLC were completed and released to the public. The simple facts reveal an alarming level of incompetence and lack of financial literacy on the part of the guardians of the integrity of our financial markets. I suggest two important tools for addressing these problems. One is to supplement enforcement of anti-fraud rules with more private attorney generals by expressly creating a private right of action for aiding and abetting violations of securities laws. This will foster a stronger culture of integrity and ethical conduct in the auditing profession. An additional tool is to increase financial literacy in our law schools which supply the regulators of our markets.

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Comments

Roll Sushi, Roll: Defining “Sushi Grade” for the Consumer and the Sushi Bar

By Brandt T. Bowman. 116 Penn St. L. Rev. 495

Behind the glass partition of the sushi counter, a young sushi chef meticulously slices a fresh piece of Bluefin tuna, carefully molds it around a ball of vinegared rice, and artfully arranges it for service. The young chef exercises ancient precision, but such a display is neither for the swanky hipster at the table across the room nor for the self-indulgent businessman seated at the bar. Instead, the young chef exhibits such craftsmanship with honor because his ancestors have taught him to; he is the modern-day samurai.

The honor ends at the sushi counter however; globalization and capitalism have diluted the ancient art in exchange for mass production and profit margin. This departure from tradition does more than diminish sushi’s cultural significance: it creates new risks when ancient techniques are honored no longer and requires regulation where capitalists abused sushi demand.

A 28-year-old male from New York recently told his story about the violent illness he suffered a day after consuming an upscale sushi meal. The investment banker believed the cause of his illness was the raw fish, but, nevertheless, he declared his intention to return to the restaurant because “[i]t was so good.” Health risks have been shown on a larger scale as well. In 2008, the New York Times published an article wherein the writers tested sushi from 20 Manhattan stores. The tests’ findings were astounding: “A regular diet of six pieces of sushi a week would exceed the levels [of mercury] considered acceptable by the Environmental Protection Agency.” The tests included an even more alarming aspect: the owners of the sushi stores did not know that the fish posed a risk to consumers. One owner said: “I’m startled by this. Anything that might endanger any customer of ours, we’d be inclined to take off the menu immediately and get to the bottom of it.”

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This Comment addresses the need for a uniform, governmentally enforced definition of “sushi grade” to reduce consumers’ misunderstanding of the faux grading and curb health risks associated with the consumption of raw fish. Ultimately, this Comment will propose a working definition of “sushi grade” through a synthesis of federal regulations and optional code provisions.

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Guardianships on Life-Support: How In re D.L.H. Impacts Surrogate Decision Making in Pennsylvania

By Jonathan L. DeWald. 116 Penn St. L. Rev. 525

At 2:47 A.M., Nancy’s breathing stopped. Joe reached his hand to Nancy’s face and pulled her eyelids closed. Uncle George looked back into the room and saw the end had come. He walked down to the nursing station and said, “I think it’s over.”
Although the final moments of Nancy Cruzan’s life were calm, the prior seven years represented a difficult struggle for her husband, parents, and close friends.

An unfortunate car accident left Nancy Cruzan in a persistent vegetative state. Nancy’s parents requested that her feeding tube be removed after it became apparent that her condition would not improve; however, the hospital refused to comply with their request without first receiving court authorization. Ultimately, Nancy Cruzan’s feeding tube was removed but not before the United States Supreme Court issued a landmark decision regarding the authority of surrogate decision makers in matters involving life-sustaining treatment.

Now, assume that the parents of the incapacitated individual, acting as co-guardians, want to refuse medical treatment; yet, instead of being able to reference the statements made by the ward prior to his or her incompetency to support their decision, no such statements exist because the ward has been incompetent since birth. Such facts recently confronted the Pennsylvania Supreme Court in In re D.L.H.

David L. Hockenberry (David) suffered from profound mental retardation since birth and had limited capacities of expression. He resided in the Ebensburg Center, one of six centers operated by Pennsylvania’s Office of Mental Retardation, for over forty-five years. In 2002, the Orphans’ Court appointed his parents, Myrl and Vada Hockenberry, as joint plenary guardians of the person and plenary guardians of the estate for David.

On December 21, 2007, David swallowed a hairpin and grew ill with aspiration pneumonia. The Ebensburg Center transferred David to Memorial Hospital in Johnstown, Pennsylvania, for treatment, and the hospital placed David on a mechanical ventilator. David’s parents attempted to refuse the ventilator treatment, but the hospital asserted that the parents, as plenary guardians of the person, did not have authority to refuse such treatment.

David’s parents filed a petition with the Orphans’ Court to be appointed as David’s health care agents. The Orphans’ Court denied David’s parents’ petition. The Superior Court affirmed the Orphans’ Court’s decision, and the parents appealed to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court upheld the decision using a plain language interpretation of the state’s Health Care Agents and Representatives Act (the Act).

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Help Me Help You: An Answer to the Circuit Split Over the Delegation of Post-Sentence Judicial Authority to Probation Officers

By David Kelch. 116 Penn St. L. Rev. 553

Our criminal system routinely deals with such matters as the life and death and intertwined fates of criminals and their victims. Other than lawyers, judges, and the defendants and victims themselves, there is perhaps no one more intimate with the application of criminal justice than the probation officer. These “eyes and ears of the court” are given considerable responsibility in two phases of the criminal justice process. First, they are utilized between conviction and sentencing to conduct a pre-sentence investigation that, almost exclusively, is relied on by the court to determine the appropriate sentence for the defendant. Next, the probation officer is responsible, among other things, for “aid[ing] [the] probationer . . . to bring about improvements in his conduct and condition.” Other than the judges and juries, is there anyone so bound up with the fate of defendants than the probation officer?

Currently, a split among the circuit courts of appeals exists regarding the appropriate degree of delegable “judicial authority” to a probation officer during the post-sentence time-period. Probation officers could be given limitless discretion to modify the offender’s sentence in light of changing circumstances. Conversely, officers could be given no authority to modify, change, or adapt the sentence, leaving no option but to apply for court-ordered modification. Of course, as this Comment proposes, the proper amount of authority that should be delegated lies between these extremes.

This issue has grown and will continue to grow in importance to the courts because the correctional population is getting significantly larger. Between 1980 and 2007, the total estimated correctional population increased by 297%, from 1,840,400 to 7,300,000, most of which were on probation or parole. In light of the increasing number of probationers and the already overworked judiciary, probation officers should be given the greatest permissible flexibility to respond to the needs of the offender and the needs of the community for which the officer serves. Moreover, for probation officers to fulfill their duty to facilitate the offender’s post-incarceration sentence, they must know and understand the parameters of their authority. It is important, therefore, that courts be clear and unambiguous when they delegate authority to probation officers. This clarity will enable probation officers to satisfy the needs of the probationer and the safety needs of the community.

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Disclosure of Free Cash Flow Projections in a Merger or Tender Offer

By Jacob M. Mattinson. 116 Penn St. L. Rev. 577.

In what is unlikely to be the last in a long line of hotly debated cases, spanning at least the last decade, the Delaware Court of Chancery recently held that management’s free cash flow projections are not material. By way of illustration, Company A, the acquiring corporation, is interested in acquiring Company T, the target corporation. The acquiring corporation negotiates with the target corporation and the companies agree to a first-step tender offer for all of the target corporation’s shares, followed by a second-step merger. The target corporation chooses to disclose certain information to its shareholders, in anticipation of a shareholder vote on the merger, so that the shareholders can decide how to vote and whether to tender their shares. The target corporation’s shareholders have an important decision to make: whether to accept the consideration offered in the tender offer in exchange for tendering their shares or to decline to tender their shares and either later accept the merger consideration as part of the proposed second-step merger or seek appraisal rights after the consummation of the merger. For the target corporation’s shareholders, certain information they wish for the target corporation to disclose as they make their decision is material and thus required to be disclosed. Other information is simply helpful and thus not required to be disclosed.

This Comment will address the issue of what disclosures Delaware law requires a company to make to its shareholders in a merger proxy or consensual tender offer situation and whether a target company’s internal free cash flow projections rise to the level of materiality. Chancellor Chandler of the Delaware Court of Chancery recently concluded that projected free cash flow estimates are not material and disclosure of a target company’s projected free cash flows are not necessary. Additionally, Chancellor Chandler offered to sign an order certifying an interlocutory appeal to the Delaware Supreme Court on the issue of whether free cash flows are material and should always be disclosed as a per se rule. The plaintiff in that case, however, decided not to pursue the interlocutory appeal.

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Volume 116, Issue 1

Articles

Don’t Panic! Defending Cowardly Interventions During and After a Financial Crisis

By Brett McDonnell. 115 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 paper explores three quite different approaches to regulating in the face of severe uncertainty: the libertarianism of Friedrich Hayek, the conservatism of Michael Oakeshott, and the liberalism of John Maynard Keynes. Each man thought deeply about the problem of how uncertainty affects human affairs, but each came to different conclusions about how to address such uncertainty. The paper outlines the core, immensely useful insights of each theorist. The paper then outlines the even more useful and persuasive critiques that each launches at the other two. From this collision of viewpoints, the paper outlines a hybrid general approach to regulating the financial system which it (rather tongue-in-cheek) labels “cowardly interventions.” This approach accepts the basic insight of Keynes that unregulated financial markets will be deeply unstable, causing periodic destructive depressions. Thus, fairly strong regulation of finance is needed. But following the insights of Hayek and Oakeshott, I argue that new regulations should be cowardly. We should as much as possible heed the wisdom embedded in markets and existing institutions. We should identify as best we can the biggest problems that current markets pose, and address those problems with new rules that are measured, limited, market-friendly, and subject to evaluation and pruning.

This framework supports a three-part response to the crisis. First, the New Deal structure for regulating banks should be extended to the shadow banking system which was at the heart of the crisis. (What is “shadow banking”? Read the paper.) In that structure, the government acts as a lender of last resort to forestall panics while using resolution authority and prudential regulation to replicate much of the discipline of an unregulated market. Second, more specific limited rules should address glaring problems in the mortgage securitization chain. Third, regulatory agencies should be prodded to constantly re-evaluate existing regulation in light of new circumstances. Using this framework, this paper gives a guarded defense of the Dodd-Frank Act. All three elements of a proper response are there in the Act. There are major concerns, however. Most importantly, the Dodd-Frank Act does not do enough to address the largely unregulated shadow banking system. The Act should also have begun the process of eliminating Fannie Mae and Freddie Mac. Even legislation without these weaknesses would not end financial crises forever. However, if the many regulations implementing the Dodd-Frank Act are largely done well, they may postpone the next big crisis for a decade or two, as well as make the next crisis shorter and less severe when it does occur. The Dodd-Frank Act is imperfect even by the standards of a philosophy which emphasizes inevitable imperfection, but on balance it does pretty well under the circumstances.

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KABOOM! The Explosion of Qui Tam False Claims Under the Health Reform Law

By Beverly Cohen. 116 Penn St. L. Rev. 77

Since its inception in 1863, the federal False Claims Act (the “Act”) has included provisions whereby citizens can assist in the detection and enforcement of frauds against the government. To increase fraud recoveries, the Act authorizes private citizens (“relators”) to sue on behalf of the government (“qui tam” lawsuits) when they detect a fraud that is not already the subject of a federal enforcement action.

Periodically, Congress has adjusted the Act’s qui tam provisions in order to balance its dual goals of creating, on the one hand, sufficient incentives for private parties to detect and pursue frauds, but to discourage, on the other hand, qui tam actions where the federal government already has the ability to discover and prosecute the fraud on its own. Over the years, Congress aimed to attain the “golden mean”—an equitable balance between encouraging private fraud detection that increases federal fraud recoveries but discouraging “parasitic” qui tam actions where the relator merely asserts fraud claims that have already been made public.

The most recent adjustments to the qui tam provisions of the Act occurred with the enactment of health reform, the Patient Protection and Affordable Care Act. Amidst a national recession that ballooned the ranks of the uninsured and reports of rampant health care frauds that were robbing millions of dollars from federal health care programs, Congress sought to expand incentives for private citizens to detect and report health care frauds.

However, by eliminating the two predominant statutory limitations to qui tam jurisdiction, the PPACA has enormously broadened the ability of relators to commence qui tam lawsuits under the Act. First, the PPACA revised the Act’s “public disclosure” provisions to dramatically increase the sources of public information that relators may utilize as bases for their qui tam actions. And second, the PPACA revised the Act’s “original source” rule to eliminate the “direct knowledge” requirement, formerly the most stringent requirement that relators needed to satisfy to maintain their suits. Thus, the PPACA’s reforms signal a new age of extremely broad qui tam authority.

This Article will examine these recent amendments to the qui tam provisions of the False Claims Act, focusing on the enormous expansion of relators’ ability to commence qui tam actions, and changes to the qui tam bar that are likely to result.

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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 on April 20, 2010, some 41 miles off the Louisiana coast. The accident occurred during the drilling of an exploratory well by the Deepwater Horizon, a mobile offshore drilling unit (MODU) under lease to BP (formerly British Petroleum) and owned by Transocean. The well-head blowout resulted in 11 dead, 17 injured, and oil spewing from the seabed 5,000 ft. below at an estimated rate of 25,000-30,000 barrels per day.

The Deepwater Horizon is technically described as “a massive floating, dynamically positioned drilling rig” capable of operating in waters 8,000 ft. deep. In maritime law, such a rig qualifies as a vessel; yet, as a MODU, the rig also qualifies as an offshore facility that may attract higher liability limits under the Oil Pollution Act of 1990 (OPA). Under these provisions the double designation as vessel and/or MODU potentially raises the liability limits to as much as $75 million. The operator and principal developer of this well is BP, which owns a 65% interest. Various attempts at stemming the initial flow of oil failed. The oil spread on the surface and in the depths over a very wide area, killing marine life and water birds, entering estuaries, and polluting shores. The National Oceanic and Atmospheric Administration closed commercial and recreational fishing in a very wide area of the Gulf, and the federal government declared a moratorium on exploratory drilling for six months, thus idling about 33 drilling operations in progress. Meantime, BP, after meeting with President Obama, agreed to establish a $20 billion compensation fund, which would be independently administered by a nongovernmental agency led by Kenneth Feinberg. BP carried very little or no third party liability insurance and reportedly operated on a self-insured basis. Given the minimal insurance, questions arise as to whether BP’s pockets are deep enough to meet its overall liabilities which, in addition to the compensation fund already discussed, may include $21 billion further in civil fines under the Clean Water Act (CWA). The compensation fund, after an initial $5 billion deposit in 2010, would receive quarterly installments of $1.25 billion until the full amount is reached in mid-2013. The fund would pay for damage to natural resources, state and local response costs, and individual economic losses (whether in the form of civil judgments or settlements with the fund), but it will not be used to cover any fines and penalties incurred by BP. The right of individuals to seek compensation through the courts instead of the Fund remains open.

The flow of oil was finally arrested on July 15, 2010, 87 days after the blowout. By then more than 200 million gallons of oil had poured into the Gulf, which was nearly 20 times more than the Exxon Valdez emptied into Prince William Sound (11 million gallons) and 60 million gallons more than the Ixtoc I disaster in the Bay of Campeche (140 million gallons). The environmental, economic, and social impacts of the spill are staggering, and long-term effects will be unknown for much time to come.

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State Damage Caps and Separation of Powers

By Jeffrey A. Parness. 116 Penn St. L. Rev. 145

In 2010, the Illinois Supreme Court invalidated certain statutory caps on noneconomic damages in medical cases because they “unduly” infringed “upon the inherent power of the judiciary” theretofore recognized (albeit in judicial dictum). Such judicial authority originated within the separation of powers clause of the Illinois Constitution. The caps were deemed to “encroach” on the judiciary’s “sphere of authority” because they impeded “the courts in the performance of their function.”

Elsewhere, American state statutory damage caps have also been challenged on state constitutional separation of powers grounds. These challenges included setting where the caps operate for nonmedical cases and where the limits extend beyond noneconomic damages.

Are there core separation of powers principles guiding all American state statutory damage caps? If so, do they apply similarly to all types of cases and all forms of damage caps? With or without such core principles, are there other doctrines that better speak to damage caps when conflicts arise between the legislative and judicial branches?

This paper first explores the Illinois precedents on damage caps and separation of powers. It then explores other state precedents, finding they usually involve state constitutional allocations of procedural lawmaking powers. It also finds that caps on “statutory causes of action” or during “special proceedings” are often treated differently, as are caps on punitive damages. The paper then posits that separation of powers analyses should usually be replaced in damage cap cases with judicial rulemaking analyses. It finds no core principles involving separation of powers provisions that implicate damage caps. Interstate differences in constitutional allocations of procedural rulemaking authority (and, at times, justiciable matters) should be recognized more often in damage cap settings. These observations have implications beyond damage caps. Other civil litigation issues prompt tensions between the judicial and legislative branches, such as evidence privileges. Here, too, separation of powers analyses should generally not be employed, and often should be replaced by judicial rulemaking analyses.

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Comments

Hey! Universities! Leave Them Kids Alone!: Christian Legal Society v. Martinez and Conditioning Equal Access to a University’s Student-Organization Forum

By David Brown. 116 Penn St. L. Rev. 163

Imagine the following scenario: You are a student at the unimaginatively-named Public University. You and a handful of other students form a student organization on campus called “Students for World Peace” with the purpose of advocating world peace. Your organization applies for official recognition to take advantage of the benefits provided by the school’s registered student organization program: use of classrooms to hold meetings; access to the email system and bulletin boards; the ability to request modest funds; and the opportunity to dialog with other student groups. You willingly comply with the university’s regulations, including the university’s nondiscrimination policy. Citing its nondiscrimination policy, the university imposes an “accept-all-comers” policy, requiring student groups to accept any student for membership or leadership regardless of the student’s beliefs. Your organization is granted official recognition.

After a successful inaugural year, your organization holds elections for the following academic year. To your dismay, a large handful of students who oppose world peace have joined the group and are now running for office. Unfortunately, because the university’s accept-all-comers policy prohibits your group from adopting a selective membership policy, these peace-haters take over the organization. The newly elected board’s first order of business is to change the organization’s mission to impede world peace, believing that disharmony is good for society and that world peace is unattainable.

While some members of the United States Supreme Court think that such a “hostile takeover” of a student organization is unlikely, the Court recently held in Christian Legal Society v. Martinez (“CLS”) that a university may condition official recognition of a student organization on the requirement that the organization accept all students who wish to participate regardless of status or beliefs. As the scenario above suggests, however, if the group is not permitted to engage in selective membership, the Court’s holding may have a significant impact on the ability of a student group to communicate its mission and effectuate its goals. CLS is the latest Supreme Court case to consider university students’ First Amendment rights in connection with a public university’s ability to condition access to a student-group forum. Many universities create student-group forums to promote speech and debate on campus. Often, universities will impose restrictions on student groups who wish to participate in the forum.

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Standing Alone?: The Michigan Supreme Court, the Lansing Decision, and the Liberalization of the Standing Doctrine

By Kenneth Charette. 116 Penn St. L. Rev. 199

Standing refers to a litigant’s ability to bring a specific cause of action before a court. A litigant’s failure to demonstrate the necessary requirements of standing to sue will result in a dismissal of his or her claim. Standing is a judicially created doctrine designed to limit the jurisdictional reach of courts. The basic premise behind the standing doctrine is that courts should only have the power to adjudicate certain types of claims. Article III of the United States Constitution limits the power of Federal Courts to deciding only “case” or “controversy.” This doctrine generally is justified on the basis of maintaining the separation of powers between the various branches of government. While state governments are not necessarily bound by the requirements of Article III, all state courts have recognized the need for some form of a standing doctrine.

This Comment will address the ways in which a recent Michigan Supreme Court case dramatically altered the requirements for standing to sue in Michigan. The Michigan Supreme Court recently handed down its opinion in Lansing Schools Educational Association v. Lansing Board of Education. In Lansing, students allegedly assaulted four high school teachers. An applicable state statute required the expulsion of any student who assaults a teacher. However, the school board, in its discretion, chose only to suspend the students, as opposed to rigidly adhering to the statutory requirements. The teachers union, on behalf of the four teachers, filed suit seeking a writ of mandamus to compel the local school board to expel the students. The trial court and the appellate division dismissed the suit on the ground that the teacher union lacked standing to sue for the enforcement of the statute under the applicable test. The Michigan Supreme Court reversed and chose to abandon the federal test for standing on the grounds that it departed too dramatically from Michigan’s historical precedents and because the Michigan Constitution lacks an explicit “case” or “controversy” requirement. The court held that a plaintiff in Michigan now has standing to sue if either 1) he has a specific legal cause of action; or 2) a trial court, in its discretion, believes a litigant should have standing.

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Fruit of the Vine: Understanding the Need to Establish Wineries’ Rights Under the Right to Farm Law

By Katherine Pohl. 116 Penn St. L. Rev. 223

In the age of the Slow Food Movement, Americans are increasingly embracing a farm-to-table philosophy. People are generating an awareness of where their food comes from and are becoming active participants in the growing process. This philosophical shift opens the door to new opportunities. Particularly, it creates a new market for traditional farmers struggling to stay in business. As a result, more and more farmers are seeking creative ways to diversify their family farms and align their production to suit this new market, offering products that entice American families back to the family farm. For example, one Maryland cow farmer is considering opening a winery on his land to stabilize his annual revenue and bring people to his farm.

A winery is a perfect example of an agricultural operation that provides diversification and stability to farm incomes while bringing people to share in the bounty of the land. Because wineries create an idyllic expression of vitality and beauty, and often marry the pastoral, agrarian lifestyle with notes of luxury, they provide the perfect forum to view the full-circle process from vine-to-bottle, exposing generations far removed from the labors of the land to a newfound understanding of experiencing and tasting the notes of the soil and the expression of the sun.

Unfortunately, these innovative solutions, such as wineries, are often not met with open arms by surrounding communities or local municipalities and face severe legal impediments to their upstart and expansion. Because wineries and other new forms of agritourism do not fall within the traditional ambit of a “farm” or an “agricultural use,” legal questions arise as to whether these activities are “agricultural” and thereby protected from local regulations under the state’s Right to Farm law (RTF), or other agricultural legislation. In a recent case, Terry v. Sperry, the Ohio Court of Appeals addressed this very issue.

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A Second Sitting: Assessing the Constitutionality and Desirability of Allowing Retired Supreme Court Justices to Fill Recusal-Based Vacancies on the Bench

By Rebekah Saidman-Krauss. 116 Penn St. L. Rev. 253.

“Could we not have a provision in the law for some mechanism that retired Supreme Court [J]ustices could be asked to sit on the Court when there is a recusal,” wondered former Supreme Court Justice John Paul Stevens. This question spurred Vermont Senator Patrick Leahy to draft legislation that would create such a mechanism. If enacted, Leahy’s proposed legislation would enable the active Justices on the Court to select, by a majority vote, retired Justices to return to the Bench to fill recusal-based vacancies.

Judicial recusal describes a judge’s sua sponte withdrawal from a case, whereas disqualification refers to judicial removal that is required by statute or prompted by a party’s motion. These technical distinctions notwithstanding, recusal and disqualification are governed by the same federal standard and are often used interchangeably.

Historically, Supreme Court Justices have been disinclined to recuse themselves, even when a litigant has moved for a Justice’s disqualification. Common law doctrines such as the “duty to sit” and the “rule of necessity” effectively create recusal loopholes, allowing judges to refrain from recusal in situations that would otherwise warrant such action. Prior to 1974, Supreme Court Justices frequently invoked these common law doctrines in support of their refusal to recuse.

In 1974, Congress amended 28 U.S.C. § 455 to curb widespread judicial reliance on these common law doctrines. Despite Congress’s attempt to create a standard wherein judges would “err on the side of recusal,” certain Justices have failed to comply. The Supreme Court, in particular, has indicated that its “unique nature justifies a less demanding recusal standard” than that which governs all other federal judges.

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Volume 115, Issue 4, Spring 2011

Articles

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 future grows, and that state constitutional law continues to take its rightful place alongside the federal charter in the continued debate over constitutional jurisprudence in the United States.

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Path Dependence and the External Constraints on Independent State Constitutionalism

By Lawrence Friedman. 115 Penn St. L. Rev. 783

The promise of “the New Judicial Federalism”—of the independent interpretation by state courts of state constitutional corollaries to the federal Bill of Rights—has gone largely unfulfilled. In terms of doctrinal development, the project of independent state constitutionalism, launched in earnest decades ago with the publication of United States Supreme Court Justice William Brennan’s call to arms in the pages of the Harvard Law Review, is today more an aspiration than a practice. State courts often do not engage in the difficult task of trying to establish doctrinal tests that do not flow from federal precedent. Still, this does not mean that state courts cannot make valuable contributions to constitutional discourse—to the ongoing discussion among judges, advocates, commentators and citizens about constitutional meaning. Despite the constraints on the ability of these courts to innovate doctrinally, independent state constitutional interpretation in individual rights cases remains normatively desirable. That said, we must temper our expectations about what state courts actually may be able to accomplish.

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In the first part of this article, I outline Gardner’s and Long’s theories. I address why those theories do not fully explain the failure of state courts to engage in constitutional doctrinal development—or, perhaps more accurately, that they do not explain why state courts seem content to allow the U.S. Supreme Court to create the doctrine that governs shared textual commitments to individual rights and liberties, like the protections of free expression, privacy, due process of law and equal treatment before the law. I turn in Parts II and III to an explanation for inconsistent independent state constitutionalism that reflects the circumstances of state constitutional rights litigation. I suggest that the lack of independent constitutional analysis does not represent a failure of interest on the part of state courts, or a failure of methodology, character, or culture, but rather is simply the consequence of strong path dependence—that is, of a demonstrable and perhaps inevitable reliance upon federal constitutional doctrinal paths. My effort here is descriptive, to explain both how state constitutionalism is often path dependent, and why the conditions under which state courts operate promote path dependence. In Part IV, I argue that even a constrained independent state constitutionalism has enduring normative value in respect to constitutional discourse about individual rights and liberties, and therefore represents an effort worth the support of academics and lawyers alike.

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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 what I see as some core issues pertaining to the interpretation of state constitutions, which I have organized in terms of three questions: “whether,” “when,” and “how.”
By “whether,” I refer to the question of whether state constitutions should be given independent legal significance at all. The issue arises when a state constitutional provision concerning individual rights finds a parallel in the federal constitution. Some contend that recognizing the independent significance of state constitutions is not worth the trouble and that, in fact, state constitutions are not even “constitutional.” I think those who take such positions offer some interesting and provocative perspectives. But I suggest that, in the real world, they do not undermine the essential legitimacy of state constitutionalism.

By “when,” I refer to the timing of state constitutional interpretation in relation to the interpretation of parallel provisions of the federal Constitution. There are several different approaches. Some take the position—known as the “primacy” position—that courts always should begin constitutional analysis with state constitutions and proceed to federal constitutional analysis only if a state constitution does not provide an answer to the issue at hand. Others take the opposite view—known as the “interstitial” view—that courts should begin with the federal Constitution and reach state constitutional provisions only if the federal Constitution fails to afford complete relief. Still others take a sort of middle position, arguing that engaging in state constitutional analysis depends on a weighing of a variety of factors. I am, for reasons that I will explain, firmly of the primacy perspective.

By “how,” I refer to questions of interpretive method or theory. This, of course, is a subject that has received an astonishing amount of attention from legal scholars over the past 50 years, at least with respect to the federal Constitution. It is difficult to find a general law review that does not sport at least one article that struggles with “the counter-majoritarian difficulty” and the legitimacy of federal judicial review. Little attention has been paid to state constitutional interpretive method or theory, however. That is unfortunate. The legitimacy concerns that have prompted the outpouring of scholarship about federal judicial review over the last half-century are, although somewhat different in nature, no less important in the case of state judicial review. Judges, lawyers, and scholars should pay more attention to state constitutional method or theory.

As for the specifics of how I think state constitutional method should work, I offer no grand unified theory. Principally, that is because, in my view, no grand unified theory exists that is completely satisfactory. None eliminates judgment from the interpretive process. That does not mean that interpretation is a free-for-all. Some principles of state constitutional interpretation can serve to address legitimacy concerns and will be useful in the vast majority of cases.
In brief, I suggest that the proper method of interpretation of state constitutions depends on the nature of the provision involved. Interpretation of more recently adopted and specific provisions—which are often accompanied by a well-developed historical record—should closely hew to the wording as understood by those who adopted them. Older, more open-ended provisions, in contrast—those often unaccompanied by a well-developed historical record (if any record at all)—require a more dynamic approach to interpretation, one that searches for a more general principle that may be applied to modern circumstances.

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Redressing Deprivations of Rights Secured by State Constitutions Outside the Shadow of the Supreme Court’s Constitutional Remedies Jurisprudence

By Gary S. Gildin. 115 Penn St. L. Rev. 877

The legal system’s willingness to award a viable remedy to persons harmed by the government’s invasion of individual liberty is a vital component of any regime of constitutional protection. English common law, international human rights instruments, and the seminal decision of the United States Supreme Court establishing the power of judicial review concur that victims of official misconduct must have recourse to effective relief if limits on governmental power are to be meaningful. It is essential that money damages to compensate the citizen for injuries suffered as a result of a constitutional violation be available. For a person harmed by unconstitutional action that is not likely to recur to that individual—such as police misconduct—injunctive relief may be meaningless, if even procurable. Particularly if the successful plaintiff may not recover attorney’s fees, absent a damage remedy, victims of governmental wrongdoing will have neither the incentive nor the means to file a civil action to redress the deprivation of their constitutional rights. As a consequence, government officials may freely ignore constitutional constraints without formal legal consequence.

Despite the critical importance of remedies to the litigant and to the overall efficacy of a constitution in restraining the misuse of governmental authority, judicial prescription of when and from whom damages are recoverable historically emerges as a second-generation development. In the initial era of constitutionalism, courts are fully occupied by the process of defining the substantive scope of constitutional rights. Only after marshalling a sufficient jurisprudence of rights do courts tackle the appropriate remedy for losses caused by violation of those rights.

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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 subnational level significantly affects the political choices available to constitutive units within a larger system and to the system overall. So far, the emerging literature largely has focused on the structural aspects of constitutional design, including such features as whether to have a Parliament or a legislature, whether to have a bicameral or a unicameral legislature, and so forth. Although the political space reserved for subnational constitutions also extends to substantive issues, the nascent comparative literature on this subject suggests that constitutive units do not always develop the substantive authority that their constitutions afford them. Rather, commentators observe that “subnational units in federal systems more often underutilize their constitution-making competency than they overutilize it.” Some commentators further argue that because of agency costs, subnational constitutional rights may tend to be judicially under-protected or only weakly entrenched in the sense of being subject to easy amendment, reversal by popular referendum, or dilution through legislative backlash.

The United States federal system well illustrates the potential of subnational constitutions—the constitutions of the fifty states—to encourage a poly-vocal approach to substantive issues involving rights and obligations. To take an important example, the federal Constitution is silent on many questions of socio-economic concern. However, almost every state constitution in the United States explicitly addresses important public goods such as education, income assistance, and housing support, and some state courts have tried to enforce these provisions in the face of legislative indifference or recalcitrance. Other state courts, however, treat socio-economic constitutional provisions as nonjusticiable and so underutilize the authority that the state constitution sets out. Inherent in U.S.-style federalism and a vision of states as “laboratories of experimentation” is an understanding that state constitutions will differ both from the national Constitution and from each other, and also that state courts will take different approaches in interpreting state documents. However, a serious question is presented if state courts decline to enforce the rights that their subnational constitutions include. This Article explores the subnational constitutional underutilization phenomenon in the context of U.S. judicial enforcement of state constitutional socio-economic rights.

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Judicial Federalism and the Challenges of State Constitutional Contestation

By Robert A. Schapiro. 115 Penn St. L. Rev. 983

Scholars of federalism emphasize the importance of states and state constitutions as alternative sources of power in the United States. Authority does not simply flow from Washington, D.C. Rather, power is spread throughout multiple layers of governance. This proliferation of nodes of authority offers a variety of benefits. For example, if the national government does not adequately address a problem, the states can provide the necessary protection for their citizens. Thus, if federal law does not safeguard personal sexual liberty, grant equality rights to same-sex couples, or guarantee medical care, the states can step in and fill these gaps. These state endeavors may encourage the federal government to act, either by offering best practices or by highlighting the shortcomings of federal efforts. States can lead by example.

In addition, states can directly contest federal practices. Rather than supplementing federal efforts or substituting for federal inaction, states may actively oppose national policy. The means of opposition may be political, as states serve as rallying points for resistance to national programs. On at least one notable occasion, the Civil War, the opposition has taken military form. Recently, however, states have designated the federal courts as the forums of choice. States have brought suit against the national government, claiming that it has violated federal law.

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This paper considers the role of states in bringing their disputes with the federal government into court. I wish to examine when it is appropriate for states to subject the national government to judicial supervision. In particular, I will focus on those instances where it appears that the state’s participation is necessary to make a dispute justiciable. States may become involved in litigation with the federal government for a variety of reasons, such as offering litigation support or bringing public attention to the matter. Here, though, I am interested in those situations where the state’s participation is essential to opening the courthouse doors, taking a dispute that otherwise would remain—at least for the moment—outside of judicial cognizance and endowing it with a magic key to the courtroom.

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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, meanwhile, have noted the ways that state court rulings can provide greater protection for rights than at the federal level. I call attention to another way that state interests are advanced in the federal system and with increasing frequency: through state constitutional amendment processes. I also analyze the conditions under which processes can be effective in comparison with traditional mechanisms of state influence. In a number of cases, constitutional amendment processes are serving a role that can be played just as effectively by traditional mechanisms of state influence, and there is no reason why amendment processes are any more effective than these mechanisms. But in other instances, state constitutional amendment processes are more effective than alternative mechanisms or are effectively supplementing these other mechanisms.

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What State Constitutional Law Can Tell Us About the Federal Constitution

By Joseph Blocher. 115 Penn St. L. Rev. 1035

Courts and scholars have long sought to illuminate the relationship between state and federal constitutional law. Yet their attention, like the relationship itself, has largely been one-sided: State courts have consistently adopted federal constitutional law as their own, and scholars have attempted to illuminate why this is, and why it should or should not be so. By contrast, federal courts tend not to look to state constitutional law, even for persuasive authority. Nor have scholars argued at any length that federal courts can or should look to state constitutional law for guidance in answering the many constitutional questions common to the federal and state systems.

This short Article attempts to turn the focus around, by asking what state constitutional law can tell us about the federal constitution. The thesis explored here is that federal constitutional doctrine can and sometimes should do more to draw on state constitutional law, particularly when that law addresses—as it often does—analogous language or problems with which the federal courts have little experience. The Article calls this idea “reverse incorporation” for lack of a better phrase, but “federal constitutional borrowing of state constitutional law” would probably be more accurate, if a bit clunkier. In any event, the phrase is not meant to invoke the “reverse” incorporation associated with Bolling v. Sharpe, but to denote a wide range of “uses”: from looking to state doctrine as persuasive authority in federal cases to using it to define federal law.

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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 New Federalism. For state constitutionalists, international human rights law provides a legitimating source for articulating state constitutional principles not captured in federal constitutional law. For human rights advocates, state courts provide an alternative and possibly friendlier forum for some of these kinds of claims. With the prominent success of some of these international and comparative arguments, state court decisions applying international human rights law have become the subject of systematic study and coordinated advocacy efforts.

The space for independent state action to implement international human rights law may have been limited somewhat by the Supreme Court’s 2008 decision in Medellín v. Texas. That opinion contains language suggesting that non-self-executing treaties, including ratified human rights treaties, do not even have the status of domestic law absent implementing legislation. Under this view of the non-self-execution doctrine, states are under no obligation to respect or enforce even ratified treaty law until it is implemented through federal legislation. Despite the outpouring of scholarship suggesting that the Court’s language should not be interpreted this broadly, this view of the non-self-execution doctrine is becoming the law on the ground, at least in state courts.

My purpose here is to determine what effect this reading of Medellín would have on the future of international state constitutionalism. To do so, I study the conditions under which state jurists have engaged with the international human rights treaties the United States has signed or ratified, in order to consider whether and how these interactions will be affected by this new understanding of the status of treaty law. I begin in Part II by briefly reviewing the different paths through which human rights treaty law could be raised in state court cases. I then turn in Part III to surveying the activity on the ground. I examine the state cases that cite these treaties in order to identify when and how state courts engage substantively with these instruments. This in turn provides insight into possible advocacy strategies for increasing state court consideration of treaty norms. Finally, in Part IV, I consider these findings to assess how the Medellín decision will impact the international prospects of state constitutionalism. I conclude that because state courts have been more receptive to arguments based on treaty instruments as non-binding, persuasive authority, even the broadest reading of Medellín will not end this type of human rights advocacy.

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Change that Matters: An Essay on State Constitutional Development

By Daniel B. Rodriguez. 115 Penn St. L. Rev. 1073

A sharp focus on state constitutional change brings into relief many related matters of state constitutionalism—how should we think about state constitutional development in a world in which state constitutions are frequently amended or revised? What political struggles take place on a battleground in which formal change may be the ultimate prize? How effectively do courts enforce procedural rules which purport to regulate processes of change? What light do positive theories of state politics, judicial behavior, and constitutional design shed on our normative perspectives on state constitutionalism in either a first or a second-best world? These are, of course, interrelated issues. And the emerging (and converging) fields of state constitutional law and American constitutional development promise to help us better negotiate these issues.

What we learn from modern scholarly perspectives on American constitutional development is essentially this: the relationship between law and politics is unavoidable and essential to understanding the dynamics of constitutionalism and constitutional change. Therefore, whatever focal point we have in mind in our consideration of state constitutional matters, we must attend to the ubiquitous considerations of both law and politics. In this symposium essay, I consider how this advised focus on law and politics—or what I call constitutional law/politics in high fidelity—illuminates the complex matter of state constitutional change.

While the relevance of this inquiry is not unique to state constitutions and constitutionalism, some special characteristics of state law and politics in the American constitutional system make this a topic of compelling importance. First, state constitutions are famously more malleable than is the U.S. Constitution; hence the circumstances in which change takes place—through formal means, to say nothing about informal means—are much more common in the state constitutional context. Second, and relatedly, the dynamics of social movements and direct political action are magnified given the real possibilities of implementing constitutional change. Third, elected state judges ignore powerful political pressures at their peril. They need to be—and likely are in reality—more closely attuned to the connection between legal judgments and political ramifications. Fourth, the availability of direct constitutional change through the initiative system in many states obviously amplifies the persistent political considerations in the law. Fifth, and finally, politics at the sub-national level implicate more conspicuously democratic values and circumstances.

Framed around the argument that state constitutional change is simultaneously about both law and politics, my essay has two distinct objectives. The first, and more ambitious of the two objectives, is to explain how and why theories of state constitutional development flounder unless they are conspicuously attentive to considerations of politics and political strategy and the positive political theory of legal decision-making. My second objective is to reinforce this abstract argument with a specific doctrinal example, the distinction in state constitutional law between revisions and amendments. While this distinction implicates key constitutional values, judicial interpretations have been incoherent and vexing. That courts have lurched toward and away from particular lodestars in implementing this distinction suggests the difficulties of undertaking state constitutional interpretation without due account of the peculiar dynamics of state constitutional politics.

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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, and submits it to the voters for their approval. In those states that allow the initiative process, a group of voters sign a petition containing the proposed constitutional language and, if they obtain enough signatures, the state government submits the amendment to all of the voters for their approval. Second, the states can hold a constitutional convention to consider revisions of the constitution on either a limited or plenary basis.

Which method is better? In my forty years of researching Illinois constitutional issues and observing other states, I have learned that there are advantages and disadvantages to each method. Sometimes I recommend the first choice, serial amendments, and sometimes I recommend the second choice, a convention.

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Teaching and Researching Comparative Subnational Constitutional Law

By Robert F. Williams. 115 Penn St. L. Rev. 1109

I had the opportunity to teach “Comparative Subnational Constitutional Law” as a five-week seminar in Graz, Austria in May-June of 2009. I admit that I have not yet sought to develop, or even apply, any of the theories being debated in comparative constitutional law circles. Professor Vicki Jackson has suggested four goals of comparative constitutional study: 1) developing a better intellectual understanding of other systems; 2) enhancing the capacity for self-reflection on one’s own system; 3) developing a normative understanding of best practices; and 4) responding to domestic questions that are comparative in nature. All of these seem to apply equally to comparative subnational constitutional law. Believing that there were enough materials now in English (my only language) to put together a set of readings for such a seminar, I gathered up a number of the publications that I have listed in the bibliography at the end of this article. I made these materials available to the students who had registered to take this course in English and found that most of the Austrian law students, like most American law students in the prior generation, were basically unaware of the, albeit relatively limited, legal importance and potential of the subnational constitutions in their country.

In fact, in Austria the constitutions of the Länder have not been considered very important, nor is the subnational constitutional space allotted by the Austrian Constitution particularly substantial. In other words, the Austrian Constitution is more “complete” than many other federal constitutions, in that it specifies a number of the structural elements of the component unit governments within the national constitution itself. Consequently, the subnational constitutional space is not very extensive. Still, however, the Länder constitutions in Austria have important (potential or possible) legal and political roles, and I thought it would be important to begin with an introduction to those matters. Rather than comparisons with the state constitutions in the United States, I concluded that a comparative class might be more meaningful if we started with the subnational constitutions of the host country. Discussing the potential of subnational constitutions can be very interesting, as I have discovered in Austria, South Africa, Brazil, Mexico and Argentina. Analyzing at least some of the preliminary questions quoted below in the context of the subnational constitutions of the host country can lay an effective groundwork or baseline for a selective consideration on some or all of these questions vis-à-vis the subnational constitutions in other countries.

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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 institutions and processes for the country’s constituent units as well, thus furnishing the constitutional architecture for the entire federal system. This is the case in Belgium and Canada, for example. But in most federal systems, the federal constitution is an “incomplete” framework document in that it does not prescribe all constitutional processes and arrangements. Rather, it leaves “space” in the federal system’s constitutional architecture to be filled by the constitutions of its sub-national units, even while it sets parameters within which those units are permitted to act. However, those federal systems that recognize a place for sub-national constitutions differ markedly in the extent to which the federal constitution is incomplete, that is, in the amount of space that they allocate to constituent units to define their own goals and establish their own governmental institutions and processes. In previous research, I have focused on the range of discretion (“constitutional space”) available to constituent units in designing their constitutional arrangements and on how the boundaries of that space are policed. In this article, I extend the inquiry into sub-national constitutional space to consider what factors influence the scope of sub-national constitutional space in various federal systems, why sub-national units have occupied or failed to occupy the constitutional space available to them, and what consequences sub-national constitutionalism has had on horizontal and vertical relations within federal systems.

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Models of Subnational Constitutionalism

By Jonathan L. Marshfield. 115 Penn St. L. Rev. 1151

In 1977, a group of Nigerian constitution makers asked an astute question. Following a gruesome civil war, Nigeria began the task of crafting a federal constitutional democracy. Although the constitutional delegates agreed on a decentralization of political power, they nevertheless asked a separate question: should the Nigeria states be permitted to adopt their own constitutions? The proceedings from the 1977 Constituent Assembly show that the delegates gave careful consideration to that question as a distinct institutional choice. They decided that although Nigeria was committed to a federal arrangement, the states should not be permitted to adopt their own constitutions. State constitutionalism, they concluded, had proven too “divisive” during Nigeria’s prior constitutional regime, and it “was inimical to the unity of the country.”

The Nigerian experience begs a deeper question that theorists have largely neglected. Although scholars and constitution-makers have developed various theories regarding the utilities of federalism, they have not separately considered how subnational constitutions can uniquely serve (or undermine) those same purposes. Nor have they searched for any independent purposes that subnational constitutionalism may serve. In short, theorists have largely failed to consider the independent normative justifications for introducing subnational constitutionalism into federal systems. As the Nigerian experience illustrates, that theoretical question is not without serious practical consequences.

This Article takes up that important but neglected question. The goal is to move towards a systematization and critical analysis of possible justifications for introducing subnational constitutionalism into federal systems. The Article first offers a description of subnational constitutionalism that is derived from rational-choice theories of political institutions and a survey of the world’s federal systems. It concludes that subnational constitutionalism is best described as a series of rules (both formal and informal) that protect and define the authority of subnational units within a federal system to exercise some degree of independence in structuring and/or limiting the political power reserved to them by the federation. Building upon that working description, the Article argues that there are at least three coherent justifications for subnational constitutionalism. First, it can deepen a federal system’s ability to accommodate multiple political communities within a single constitutional regime. Second, it can uniquely contribute to federalism’s liberty-protecting, check-and-balances function. Third, the Article argues that scholars have largely overlooked the possibility that subnational constitutionalism can improve the deliberative quality of democracy within subnational units and the federal system as a whole.

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Volume 115, Issue 3

Articles

An Analysis of an Order to Compel Arbitration: To Dismiss or Stay?

By Richard A. Bales & Melanie A. Goff. 115 Penn St. L. Rev. 539.

In recent years, arbitration has become an increasingly used form of alternative dispute resolution employed to adjudicate matters between disputing parties outside of a traditional courtroom setting. In arbitration, parties who have contracted to arbitrate submit their disputes to a neutral decision-maker rather than subjecting their claims to judicial resolution. Arbitration is often favored over traditional litigation for many reasons, including the less formal atmosphere, the possibility of avoiding delay, lower expense, and relieving congested dockets in courts.

Although there is a strong public policy favoring arbitration and enforcement of agreements to arbitrate, sometimes a party to a purported arbitration agreement believes the agreement does not cover a particular dispute, or that there was no agreement to arbitrate at all. That party may sue in court for relief on the underlying dispute. The other party, if it prefers to arbitrate rather than litigate, typically will file a motion to stay or dismiss the court action pending arbitration, and courts favor resolving the issue with deference toward the public policy of enforcing arbitration, often construing arbitration provisions generously. The Federal Arbitration Act (FAA) governs arbitration agreements concerning potential disputes grounded in interstate or foreign commerce. Section 3 of the FAA directs a court to stay the litigation proceedings if it determines that the parties have agreed to arbitrate a claim brought before it and that the issue is in fact arbitrable.

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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. City of Chicago, holding that the Second Amendment’s right to bear arms is incorporated against the States by the Fourteenth Amendment’s Due Process Clause. Despite a valiant effort by the plaintiffs and various amici, the Court declined to adopt the Fourteenth Amendment’s Privileges or Immunities Clause as a vehicle for incorporation, and steadfastly refused to take the case as an opportunity to overturn its century-and-a-half old Slaughter-House decision.

McDonald represents the latest attempt to “right the wrong” perpetuated in the much-reviled Slaughter-House decision that restricted the Privileges or Immunities Clause as a source for both enumerated and unenumerated rights. Almost since its inception, the Slaughter-House decision has received constant criticism for cabining the rights protected by the Privileges or Immunities Clause to those rights that are incidents of “national citizenship,” including the right to become a citizen of any state, the right to protection on the high seas and foreign lands, the right to use navigable waters, to travel to the seat of and to petition national government, and the right to visit subtreasuries. Although almost universally recognized as an incorrect interpretation of the Privileges or Immunities Clause, and despite the reams of paper and oceans of ink dedicated to its abolition, Slaughter-House lives on.

And this might not be such a bad thing. Although there is a strong temptation, from an academic point of view at least, to make right the constitutional order by correcting the Slaughter-House Court’s misinterpretation of the Privileges or Immunities Clause, there is a large question regarding just what good such a result would do. Much of the work that the Privileges or Immunities Clause was supposedly designed to accomplish, such as the incorporation of the Bill of Rights against the States, has already been done through a different vehicle of the Fourteenth Amendment, the Due Process Clause. Additionally, Slaughter-House rejected the use of the Privileges or Immunities Clause to protect unenumerated rights; substantive due process jurisprudence has filled that gap as well. Thus, there is a serious question as to what work a revitalized Privileges or Immunities Clause would have to do.

The real force animating the discussion over privileges or immunities revival has to do with unenumerated rights.

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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 that affects real people and one that can be addressed by judges and practitioners in the area. Second, help them find a way to solve it. Granted, this flies in the face of the conventional wisdom that law review articles should be laborious expositions of exhaustive research into esoteric points, grandiosely displayed, and targeted solely for other academics in a display reminiscent of peacocks flashing their plumage at the zoo. But as I am neither peacock nor traditional academic, my advice stands, and I seek to follow it here.

Indeed, if I am any animal, I am an old criminal law warhorse who cares deeply that the system do its vital work in the way the Constitution intended. The problem addressed in this article strikes at these concerns. It was first brought to my attention when a member of a Committee I chair to draft and revise the Pennsylvania Criminal Jury Instructions complained that the current Pennsylvania instruction on the liability of a conspirator for substantive crimes committed by a co-conspirator (something we all know as the Pinkerton charge) was wrong or, minimally, incomplete. The Committee had to conclude, however, that since that instruction accurately reflects the teachings of the Pennsylvania Supreme Court on the matter, no change could be made. A change, however, should be made once the courts of Pennsylvania and virtually every other place where a Pinkerton charge is used realize what a serious constitutional problem the Pinkerton doctrine presents.

As always, a simple, concrete example will help frame the issue. Moe and Larry agree to burglarize Curly’s house to steal his baseball card collection. They agree to meet at the front of Curly’s house at 9 P.M. (when they know Curly is not home) and plan to force in the back door to gain entry. When Moe gets there at 9 P.M., he does not see Larry. A moment later, Larry walks out of the front door of Curly’s house, explaining that on his way there, he stopped and stole a ladder from a hardware store. He used the ladder to climb in through an open window on the second floor in the back of the house. Moe tells Larry to go back in the house to search for the baseball cards while he stays out front as a look-out in case police come. Larry finds the card collection and climbs out the back window and down the ladder. By the time he reaches the back yard, Shemp, a neighbor, runs over, yells and tries to grab him. Larry runs by Shemp, giving him a hard push as he goes by. Shemp falls, striking his head against a garden gnome, suffering a serious concussion.

Larry is guilty of conspiracy to commit burglary, burglary, the intentional theft of the ladder and the reckless infliction of serious bodily harm on Shemp (aggravated assault). Moe is clearly guilty of the first two offenses, but is he guilty of the last two as he had neither direct knowledge of nor direct involvement in the acts of Larry that constituted those substantive crimes?

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The Distinctiveness of Property and Heritage

By Derek Fincham. 115 Penn St. L. Rev. 641

This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations—rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations.

This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second, by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions.

A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims—specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.

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Comments

Can You Hear Me? Will the Diminishing Scope of ERISA’s Anti-Retaliation Provision Drown the Cries of Whistleblowers?

By Malena Kinsman. 115 Penn St. L. Rev. 685

In 1974, Congress enacted the Employee Retirement Income Security Act (ERISA) to protect the retirement benefits of America’s working men and women. ERISA imposes fiduciary responsibilities upon the administrators of employee retirement plans and establishes disclosure guidelines so employees receive information about the funding and vesting provisions of their plans. These guidelines safeguard benefits and ensure employees enjoy a financially secure retirement.

To protect the retirement rights of employees, Congress made it unlawful for an employer to interfere or discriminate against an employee for exercising the rights guaranteed under ERISA. Nevertheless, the mishandling of employee retirement plans remains and employees are frequently denied benefits to which they are entitled. Therefore, to detect unlawful employer behavior and provide effective enforcement of ERISA, Congress made it unlawful for employers to take adverse employment actions against employees who have “given information or [have] testified or [are] about to testify in any inquiry or proceeding relating to [ERISA].” This provision, also known as ERISA’s whistleblower provision, protects employees engaged in legal proceedings; however, it is unclear whether this provision extends protection to employees who voice internal workplace complaints to employers.

Currently, there is a deeply divided split among the circuit courts of appeals as to whether ERISA’s whistleblower provision extends protection to internal workplace complaints. On March 7, 2011, the Supreme Court of the United States denied a petition for writ of certiorari to determine the exact scope of ERISA’s whistleblower provision. With the Supreme Court’s recent denial of certiorari, the scope of ERISA’s whistleblower provision will continue to be a current and developing issue of contention among the circuit courts.

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Distracted Driving: How Technological Advancements Impede Highway Safety

By Amy L. Brueckner. 115 Penn St. L. Rev. 709

Traffic safety has long been a concern of the United States’ legal system. In 1966, the passage of the Highway Safety Act and the National Traffic and Motor Vehicle Safety Act empowered the federal government with the authority to “set and regulate motor vehicle and highway standards.” Subsequent improvements in automotive design resulted in a decline of vehicle-related deaths. Despite these promising consequences, not all safety requirements were readily embraced.

One of the most controversial requirements involved safety restraint systems, namely seatbelts. Although vehicles came equipped with seatbelts, drivers and passengers retained the discretion to buckle up or not. Misconceptions about the benefits of seatbelts thwarted the federal government’s efforts to encourage seatbelt use. Eventually, the National Highway Traffic Safety Association proposed that automotive manufacturers equip every vehicle with “an automatic restraint system.” State legislatures followed suit and began enacting mandatory seatbelt-use laws. Today, every state, except New Hampshire, has a law requiring all vehicle occupants to wear a seatbelt.

Although seatbelt-use laws proved to be one victory in the promotion of highway safety, new hurdles have emerged. Recently, distracted driving has become a pressing safety concern, especially as it relates to the use of cell phones. In fact, text messaging while driving has been deemed the modern-day form of drunk driving. The manifestation of the dangers posed by cell phone use while driving has ignited a vehement response by federal and state legislatures. Much like the passage of seatbelt use laws, opposition to laws prohibiting cell phone use while driving exists, and the best methods for enforcement remain an ongoing obstacle.

The purpose of this Comment is to examine the evolution of distracted driving, its ramifications upon society, and solutions to ameliorate this pressing problem. Distracted driving is a broad concept encompassing various acts. However, this Comment focuses mainly on the use of cell phones, including the act of text messaging, to analyze the distracted driving problem.

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Beanballs and Baseball: Private Remedies vs. Criminal Sanctions for Violence in Baseball

By Kelli Amanda Metzger Knerr. 115 Penn St. L. Rev. 727

On August 10, 2009, the tension between the Boston Red Sox and the Detroit Tigers began to escalate when a pitch hit Detroit Tigers’ first baseman Miguel Cabrera while he was at bat in the top of the fourth inning. The beanballs continued later in the game when Boston’s third baseman Kevin Youkilis was hit by a pitch in the bottom of the fourth inning and Detroit’s Brandon Inge was hit in the top of the eighth inning.

When the two teams met the next night, the discord boiled over. A pitch once again hit Cabrera, this time in the top of the first inning. In the bottom of the first inning, Tigers’ pitcher Rick Porcello threw an inside pitch to the Red Sox’ first baseman Victor Martinez. After nearly being hit by the pitch, Martinez “took a few menacing steps toward the mound before returning to the batter’s box,” allowing the already tense situation to further intensify.

The friction between the two teams reached its breaking point when Boston’s Youkilis stepped into the batter’s box to lead off the bottom of the second inning. Youkilis was hit in the back with the very first pitch thrown by Porcello. Youkilis immediately dropped his bat and threw his helmet at Porcello as he charged the mound. The two became entangled, eventually falling to the ground. Simultaneously, both benches cleared. At the end of the brawl, Youkilis returned to Boston’s bench and subsequently was ejected from the game. Following a discussion of the events that transpired, the umpires decided to also eject Porcello for his role in the fight. After reviewing the facts, Major League Baseball (MLB) suspended both Youkilis and Porcello for five games and fined both players.

This Comment will focus on beanballs and fights that occur as a result of beanballs in professional baseball. It will examine the punishment of major league and minor league baseball players—at the hands of both the Commissioner of MLB and the criminal justice system.

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6+5 = Discrimination? Why FIFA’s Proposed Quota Rule Doesn’t Add Up

By David D’Orlando. 115 Penn St. L. Rev. 749.

In May, 2008, at the 58th Congress in Sydney, Australia, FIFA’s governing members passed a resolution on the proposed “6+5 Rule.” One hundred fifty-five out of the two hundred possible votes were cast in favor of adopting the rule. However, despite this overwhelming support, few of FIFA’s European delegates expect the rule to be employed without a fight. Why would a rule with seemingly so much support within FIFA have any trouble being implemented? The answer is that the proposed rule has the potential of crumbling in the face of European Union (EU) law.

The proposed 6+5 Rule would require that at the start of every European professional soccer match, six of the players filling the eleven starting roster spots must be eligible to play for the national team of the particular club team’s parent nation, and a maximum of five players may be non-eligible, foreign players. For example, a team like Manchester United, based in Manchester, England, and playing in the English Premier League, would need to start every game in European competitions with six players who are either British-nationals or eligible to play for the English national soccer team. The remaining five players in the starting line-up could then be nationals of any country. The situation would be identical for club teams in other European nations. The key is that the majority of players in the starting line-up, six out of the possible eleven starters for each side, must be of the same national origin as their team’s host nation, or they must have been deemed eligible to play for the host country’s national soccer team.

FIFA’s president, Joseph S. Blatter, is championing the new rule in the hope that it will take full effect by the 2012-13 season. Blatter asserts that the purpose for the proposed 6+5 Rule is to “encourage the development of young players, protect national teams and maintain competitiveness and the unpredictability of results.”

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Articles

Standing in Monsanto Co. v. Geertson Seed Farms: Using Economic Injury as a Basis for Standing When Environmental Harm is Difficult to Prove

By Bradford Mank. 115 Penn St. L. Rev. 307.

To file suit in federal courts, Article III of the U.S. Constitution requires that a plaintiff must demonstrate “standing” by establishing that the defendant’s actions have caused him an actual or imminent injury, and not merely a speculative or hypothetical injury that might occur someday.  Many of the Supreme Court’s important standing cases have involved environmental disputes.  Most recently, in 2010, the Court again addressed standing in an environmental dispute, Monsanto Co. v. Geertson Seed Farms.

In Monsanto, the Court did not announce a new standing doctrine.  Nevertheless, the Court recognized that an environmental plaintiff may sue without proof of actual environmental harm if it can demonstrate that he or she may suffer economic losses from testing and mitigation measures related to a threatened harm.

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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 terms and conditions of employment. In doing so, both leagues’ club-owners and players associations will bargain over the rules governing player eligibility, including their age/education requirements.

Sports leagues’ age/education requirements have long been a source of contention. Until recently, most leagues imposed their age/education requirements outside the scope of collective bargaining. However, after three courts found unilaterally implemented age/education requirements to violate Section 1 of the Sherman Act, the NFL and NBA shifted their age/education requirements into the realm of collective bargaining.

Whether these new, collectively bargained age/education requirements likewise violate the law is unclear. In the 2004 case Clarett v. Nat’l Football League, the Second Circuit Court of Appeals held that collectively bargained age/education requirements are exempt from antitrust scrutiny under the non-statutory labor exemption, but may be subject to review under labor law’s duty of fair representation. By contrast, in other circuits, sports leagues’ collectively bargained age/education requirements may still violate Section 1 of the Sherman Act if they primarily affect parties outside the scope of the collective bargaining relationship.

This article addresses both the antitrust and labor law risks of sports leagues’ collectively bargained age/education requirements.

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The Certification of Unsettled Questions of State Law to State High Courts: The Third Circuit’s Experience

By Gregory L. Acquaviva. 115 Penn St. L. Rev. 377.

The facts of Holmes v. Kimco Realty Corp. are straightforward. On January 20, 2005, Walter Holmes drove to a shopping center in Maple Shade, New Jersey to shop at Lowe’s Home Center (“Lowe’s”). Lowe’s, like the other businesses in the shopping center, was in a stand-alone building but was some distance from the other businesses in the shopping center. Holmes, accordingly, parked in the area of the parking lot closest to Lowe’s, an area that included shopping cart corrals reading, in part, “[t]hank you for shopping at Lowe’s.” While returning to his vehicle, Holmes fell on ice in the parking lot. He sued Lowe’s for negligent maintenance of the parking lot. Although the complaint was initially filed in New Jersey Superior Court, the defendants removed the case to the United States District Court for the District of New Jersey, based on diversity jurisdiction.

Lowe’s then informed Holmes that it was a tenant of the shopping center, not the owner of the shopping center or parking lot where he fell. In fact, four years prior to Holmes’s accident, Lowe’s entered into a lease agreement with Price Legacy Corporation (“Price”), pursuant to which Price, as landlord, was required to maintain common areas, including the parking lot, by, among other things, providing for snow removal, and was required to carry “commercial general liability insurance . . . upon all [c]ommon [a]reas.” Holmes attempted to amend his complaint to include Price, as well as another entity suspected of owning the parking lot, Kimco Realty Corporation. But, because the statute of limitations had expired, the District Court granted summary judgment in favor of the potentially liable landlords. The District Court also granted summary judgment in favor of Lowe’s, predicting that the Supreme Court of New Jersey would not extend liability for injuries occurring in common areas to a commercial tenant in a multi-tenant shopping center.

On appeal, the United States Court of Appeals for the Third Circuit was presented with one issue: “whether the State of New Jersey would impose a common law duty on a tenant in a multi-tenant shopping center to maintain the parking lot owned by the landlord.”

This Article explores the United States Court of Appeals for the Third Circuit’s discretionary use of state certification procedures to obtain authoritative determinations of unsettled questions of state law by state high courts. Specifically, this Article focuses on the willingness of the high courts in New Jersey, Pennsylvania, and Delaware—the three states comprising the Third Circuit—to exercise their discretion and grant the Third Circuit’s petitions for certification.

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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 States economy. For example, most business news stories involve large, publicly traded companies. However, the number of small businesses vastly overshadows the number of large businesses. In addition, small businesses’ contribution to the United States economy is overshadowed by media reports of ethical conflicts and potentially unlawful conduct at larger businesses. According to the Small Business Administration Office of Advocacy, in 2006 there were an estimated “29.6 million businesses in the United States. Small firms with fewer than 500 employees represent[ed] 99.9 percent of those businesses” and 73.3 percent of US businesses had no employees. As of 2006, only 18,000 firms qualified under Small Business Administration criteria as large firms.

This Article proposes that legislators and regulators should learn from the experience of how Sarbanes-Oxley affected small businesses—those that are publicly traded and those that are not—and devise financial regulatory reforms with those experiences in mind. It does not assert that Sarbanes-Oxley and consequent business practice changes unfairly and adversely affected small businesses, although the reforms’ costs clearly are proportionately higher for small businesses and are easier to quantify than the benefits. Indeed, this Article proposes a cost/benefit analysis to examine: (1) the Dodd-Frank Act’s effect on small businesses expressly required to comply with the reforms; and (2) the act’s impact on small businesses affected by changes in business practices and advisors, because whether intended or unintended, legislated or trickled down, the benefits of regulation exist. Further, that cost-benefit analysis ideally should occur either before the implementation of regulations or, at the latest, in the early stages of implementation.

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Comments

I Want a Piece of That! How the Current Joint Inventorship Laws Deal with Minor Contributions to Inventions

By Christopher McDavid. 115 Penn St. L. Rev. 449

After observing a new invention, have you ever muttered to yourself, “Why didn’t I think of that?” Before criticizing your own lack of individual creativity, you should keep in mind that the invention was likely conceived through the collaborative work efforts of many inventors assigned to a research and development (R&D) team. R&D teams drive large companies, a fact which indicates, in part, the tremendous value of collaboration on the path to innovation. Depending upon a company’s business goals, an invention’s commercial value, and the potential for a competitive advantage, among other factors, a company may protect its R&D investments by seeking patents on the innovations of its inventors from the U.S. Patent and Trademark Office (PTO). Inevitably, not all individual contributions to the joint development of an invention will be equal in quality or quantity. The disparity in contributions is especially troublesome when determining who must be designated as an inventor of a particular invention, a determination with lasting implications on many parties.

An application for a patent must be filed at the PTO in the name of the inventor or joint inventors of the invention. This requirement supports the commonsense notion that only the actual inventor(s) of an invention are entitled to a patent.

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Clean & Green: Tidying Up the Farm Tax Subsidy

By Joshua Wilkins. 115 Penn St. L. Rev. 473

Agriculture is one of our most important industries, and it is under constant threat. Agricultural operations have been experiencing reduced profits, increased costs associated with working capital, and the expense of complying with ever-increasing environmental regulations. Combined with the developmental pressures accompanying population increases and urban sprawl, the economic conditions for agriculture have made it far less desirable for many farmers to continue operations. As a result, the federal and state governments have enacted several different programs to “save” agriculture.

One such program addresses the property tax burden borne by agricultural operations. Due to increased property demand from urban sprawl, the value of farmlands in many places has dramatically increased. One result of the appreciation in agricultural land value is that the associated property taxes have risen. For many operators, this cost may contribute significantly to unprofitability of the business. One of the primary methods to offset this burden is through providing some form of differential assessment, which lowers the property tax obligation for eligible landowners. Pennsylvania accomplishes this with a program commonly referred to as Clean and Green. Clean and Green provides for lower assessments by valuing eligible agricultural and other lands at their use value, rather than at their fair market value.

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Olé, Olé, Olé, Oh No!: Bullfighting in the United States and Reconciling Constitutional Rights with Animal Cruelty Statutes

By Angela N. Velez. 115 Penn St. L. Rev. 497

Consider scenario one. A dog lies on the cold, hard floor of a dark room. He has not eaten for days. A door suddenly opens, providing a glimmer of light. Before the dog can get too excited, a stranger pulls the dog from his chainlink cage and drags him to a wooden arena to face his opponent: another dog. Given the dogs’ selective breeding and forced exercise regimens, the dogs were undoubtedly bred and raised to fight. After months of training in isolation, the dogs are clearly aroused by each other’s presence. The fight begins. The dogs are encouraged to battle and are expected to put on a bloody show for the spectators. The battle ends only when one dog cannot continue; sadly, however, many dogs do not die during the fight. Rather, they succumb to their injuries or die at the hands of losing, disappointed, and angered owners.

Now, consider scenario two. A rooster sits in a tiny wire crate. A stranger forces the rooster from the crate and prepares him for combat. His once full-feathered body is now almost bare, each feather plucked plume by plume, so that his opponent has fewer feathers to grab during the fight. Razor-edged spurs are attached to the rooster’s small feet to maximize his ability to cause injury to his rival rooster. The rooster, like the dog, was bred for aggression and trained to fight. “The birds are teased into a fighting humor while held in the hand, and viciously pluck at each other’s heads; now they are dropped on the ground with a quick movement, and at the order of the referee[,] they are at it.” A gory battle ensues between the two birds, as each uses its metal spurs to tear skin, puncture eyes, and break bones. The goal of the fight is not the birds’ deaths, but death is frequently the result. Many roosters die from injuries that are inflicted by their opponents’ spurs.

Finally, consider scenario three. A bull grazes on an open ranch where he has lived since his birth. A stranger hurries the bull from the field and prods him into a narrow crate to be transported by truck to the plaza de toros, or bullring. The stranger then lures the bull from the crate into a dark holding pen where he waits until he is called to the bullring. The bullpen door is opened, and the bull charges into the ring. He is both agitated from his confinement and relieved by his release into the spacious arena. Suddenly, a man on horseback thrusts a sharp pic into the base of the bull’s neck and then quickly removes it. Another man on horseback attacks the bull with a second pic. The bull is now on alert that he must fight. This fight is not at the ranch where he once fought other bulls over territory, or even over a mate. This fight has higher stakes for the bull: he must fight man for his life. The bull’s neck, already weakened by the pics, is lowered as he attacks a third man and prepares to gore him. The man then shoves ornamented wooden barbs, or banderillas, between the shoulders of the bull. The exhausted bull must fight the pain and weakness of his muscles to continue the battle. However, the banderillas and the bull’s own exhaustion force his head to remain low; the bull’s final adversary, yet another man known as the matador, is thus able to reach over the bull’s horns and thrust his sword between the bull’s shoulders. The bull, bloody and weak from the series of attacks he has endured, falls to the ground and dies.

Although the players may change, the game remains the same. In each scenario, the animal’s natural aggression is amplified because the animal is forced to fight and defend itself at the hands of human interveners.

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The Breaking Point: Examining the Potential Liability of Maple Baseball Bat Manufacturers for Injuries Caused by Broken Maple Baseball Bats

By Matthew A. Westover. 115 Penn St. L. Rev. 517

Both participating in and watching sporting events involves some risk of injury. The shelves of law libraries are filled with cases involving injuries sustained by players, coaches, and spectators at baseball games, hockey games, golf outings, and numerous other recreational events. Some of these injuries are attributable to new technology designed to increase player performance.

Participants in athletic competitions are constantly looking to gain a competitive advantage over their opposition. In order to gain this competitive edge, players have resorted to such things as performance enhancing drugs and stealing signs and plays from opposing teams. One of the most effective ways, however, players seek to gain a competitive edge is through improvements in player equipment. Equipment manufacturers have responded by creating new technologies designed to increase player performance. These equipment manufacturers, however, owe a duty of care to both participants and non-participants not to substantially increase the dangers which are inherent in the sport.

Many of these equipment manufacturers produce equipment specifically designed for amateur and professional baseball players. Although Major League Baseball (“MLB”) has never permitted the use of high performance aluminum alloy baseball bats, baseball bat manufacturers have nonetheless tried to improve the design of wood bats. The quest to improve the design of wood bats has led to the production of maple baseball bats. Maple bats were initially created to give players an alternative to wood bats made from ash, which was the traditional wood of choice for nearly every professional baseball player. Maple baseball bats quickly became popular, and popularity soared in 2001, when Barry Bonds broke MLB’s single-season home run record using a maple bat.

As more players make the switch to maple bats, it appears as though there is a visible increase in the number of broken bats. It is nearly impossible to determine if more bats are actually breaking because The Elias Sports Bureau, the official statistics keeper of MLB, does not keep track of such a statistic. However, it is likely that people are noticing an increase in the number of bats that break violently into two or more pieces. As a result, players, coaches, sportswriters, and other media personalities have called for the prohibition of maple bats, before a player, coach, or fan is seriously injured or even killed.

Presently, MLB and other professional and amateur leagues continue to permit the use of maple bats. Consequently, players continue to use maple bats, and the bats continue to break violently, creating an increased risk of injury to players, coaches, and spectators of the game.

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Articles

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, and a third case has caused a puzzle. Twombly and Iqbal appear to virtually all observers as rejecting the Conley standard that the “short and plain statement” required of a complainant is satisfied “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief,” and instead requiring enough factual specificity to make the plaintiff’s allegations plausible. The Court itself seems to agree with the observation that it was rejecting the Conley standard. The puzzle comes from Erickson v. Pardus, in which the Court approved the adequacy of a bare bones pleading with virtually no factual specificity that was much closer to the Conley than to the Twombly standard. [keep reading]

Assessing the Merits of Network Neutrality Obligations at Low, Medium and High Network Layers

By Rob Frieden. 115 Penn St. L. Rev. 49

The United States Federal Communications Commission (“FCC”) has issued a Notice of Proposed Rulemaking (“NPRM”) that would codify rules aiming to preserve a free and open Internet for consumers. The NPRM concentrates on the relationship between end users and Internet Service Providers (“ISPs”), but also solicited comments on whether the Commission should apply one or more Internet openness principles as obligations on providers of content, applications, and services. Extending network neutrality obligations “over the top” of ISP traffic transmission links to and from content providers would apply an ill-advised and jurisdictionally suspect regulatory model. While the FCC’s public interest mandate may support some consumer protection regulatory safeguards against anticompetitive and discriminatory conduct of facilities-based ISPs, the Commission has no legal basis to regulate content providers and meddle with the robustly competitive marketplace for content and services.

The FCC’s initiative responds to concerns about the behavior of ISPs in their capacity as first and last mile providers of Internet access and as intermediaries between consumers and sources of content, applications, and services. Empirical and anecdotal evidence prompted the FCC to consider the need for enforceable rules to ensure that ISPs do not engage in anticompetitive behavior masquerading as legitimate network management, or otherwise reduce the spillover benefits accruing from Internet access. However, no such evidence points to any dysfunction in the marketplace for content, applications, and services available via the Internet.
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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 at least general ideological harmony: the conservative leaning Justice Jackson and his clerk William Rehnquist, the liberal Justice Rutledge and his clerk John Paul Stevens, and, in a second generation choice, Rehnquist’s own conservative clerk, John Roberts. One pairing, that of Chief Justice Vinson and his clerk Byron White, departs from that pattern, with athletic prowess arguably its strongest common bond, a semi-professional baseball player hiring a star football player. It is easy, perhaps too easy, to assign Breyer’s clerkship with Arthur Goldberg to the top of the first category, two clearly liberal Justices whose paths crossed in the Court’s 1964 Term and whose jurisprudence would naturally reflect their shared perspective. The reality is both more complicated and more interesting.

The commonalities shared by Goldberg and Breyer are easily identified. Both grew up, a generation apart, in urban Jewish families; both achieved early and remarkable academic success; both spent some time working in other branches of government, Goldberg in the Kennedy cabinet and Breyer as counsel to the Senate Judiciary Committee; and both brought to the Court a decidedly liberal approach to issues of individual rights, an adventurous openness to the relevance of foreign law, a nuanced approached to the Establishment Clause, and a willingness to consider opposing views with civility. Yet there are equally identifiable points of divergence in their judicial conduct. Where Goldberg, the decisive fifth vote for the Warren Court majority and a lifelong advocate of its decisions, was candid about his judicial agenda and his commitment to an activist bent in pursuing it, Breyer has both described and demonstrated a quite different sense of the judicial role, one that prefers to take each case on its own merits with an eye to empirical data and pragmatic consequences. And where Goldberg’s vote during his brief tenure on the Court was resolutely predictable, Breyer has retained over his more than fifteen terms the capacity to surprise. Although he has written warmly of his clerkship year with Goldberg, Breyer’s opinions reflect not the direct influence of a mentor but rather the indirect and subtle ways in which one Justice may influence the future judicial performance of another.
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Crime and Punishment: Teen Sexting in Context

By Julia Halloran McLaughlin. 115 Penn St. L. Rev. 135

In 2009, teen sexting dominated news headlines. A Pennsylvania prosecutor made history when he arrested and charged a group of eighteen teens with sex abuse of a minor, a felony charge carrying a prison term and the further penalty of registering as a sex offender. In Ohio, eight teens were caught trading nude photos on their cell phones and were charged with possession and distribution of child pornography. Tragically, in July 2008, an Ohio eighteen-year-old committed suicide following the dissemination by her former boyfriend of nude photos she had shared with him while dating. A similar revenge sexting episode occurred in Orlando, when an eighteen year-old man sent a nude photo of his former girlfriend, aged seventeen, to seventy people.

Most recently, on February 24, 2010, a Wisconsin teen was sentenced to fifteen years in prison after he pleaded no contest to two felony charges of sexual abuse of a child. Anthony Stancl admittedly used Facebook to pose as a girl and convinced more than thirty of his New Berlin High School male classmates to send him naked pictures of themselves. He then used the photos to “blackmail at least seven boys, ages 15 to 17, into performing sex acts.”
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Comments

Slamming the Door in the Consumer’s Face: Courts’ Inadequate Enforcement of TILA Disclosure Violations and the False Hope of a Foreclosure Defense

By Michael Sabet. 115 Penn St. L. Rev. 183

Do you remember not remembering the word foreclosure? The late 1990s to early 2000s was certainly a wonderful time to be a homeowner. Everyone and their neighbor seemed flush, and few envisioned the debilitating darkness at the end of the tunnel.

Since late 2005, the residential real estate market has been progressively deteriorating. Homeowners in some areas have watched the value of their homes drop to less than half of what they paid only five years ago. Meanwhile, the clock has struck midnight on all those adjustable rate mortgages that had two-to-five-year teaser rates. And the mortgage brokers who manufactured all those dreams of homeownership are of no help—most are either out of business or unwilling to refinance without proof of significant cash reserves. All of this has come together to create one of the worst home foreclosure crises in U.S. history.

The economic and social costs associated with home foreclosures are numerous. Widespread foreclosures tend to have a devastating effect on home values, which in turn negatively impacts the national economy as a whole. On a more individual level, a home foreclosure is an involuntary removal of a person’s shelter, and can equate to homelessness for an entire family. The Truth-In-Lending Act (“TILA” or “the Act”) has proven to be one way that federal law addresses the incidence of home foreclosures.
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The Employee Free Choice Act’s Interest Arbitration Provision: In Whose Best Interest?

By Bryan M. O’Keefe. 115 Penn St. L. Rev. 211

The subject of robust labor law reform usually generates little interest with lawmakers. Before 2008, only once in the last 30 years has major labor law reform captured the attention of Congress. Yet, in 2009, labor law returned to the congressional forefront with the Employee Free Choice Act (EFCA). Generally, the proposed legislation made it easier for unions to organize workers, imposes first contracts with employers through mandatory interest arbitration, and increases penalties for employers that violate labor organizing laws.

The bill is strongly supported by organized labor and opposed in equal measure by employers. Both labor and management have aggressively lobbied Congress on the issue. In announcing his initial opposition to the bill in the spring of 2009, Senator Arlen Specter said that EFCA was the “most heavily lobbied issue I can recall.”

Despite the importance of this legislation to both labor and management, some EFCA provisions have received scant attention. A section of the bill that practically eliminates secret ballot elections and allows unions to organize with the “card check” method has attracted considerable debate. Much less has been written about arguably the most important aspect of the legislation—a provision that would mandate binding government interest arbitration in private sector first contracts when the parties cannot reach a traditional negotiated settlement. Few scholars have explored how this arbitration would work in practice and whether this type of arbitration is desirable as an alternative to the present system.
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Implied Causes of Action Under § 1396r: Why Grammer Reminds Nursing Home Residents to Actively Participate in Their Own Care

By Edward J. Cyran. 115 Penn St. L. Rev. 253

They made the mistake of thinking of a personality as some sort of
possession, like a suit of clothes, which a person wears. But apart
from a personality what is there? Some bones and flesh. A
collection of legal statistics, perhaps, but surely no person. The
bones and flesh and legal statistics are the garments worn by the
personality, not the other way around.

For centuries, society has been searching for the most economic and
effective way to care for its elderly. Satisfactory and widespread elder
care has remained a constant challenge for society, from the time of
poorhouses to today’s modern nursing homes. At the center of the
situation are a growing number of elderly and an unacceptable quality of
care, particularly in nursing homes. The population of adults aged sixtyfive
and older is expected to almost double by 2030, and even though
many of the nation’s baby boomers will maintain sufficient health to be
independent in the coming years, their sheer numbers will inevitably
exacerbate the health care problems present in our nation. That is not to
say that an effective and comprehensive health care system for the
elderly is infeasible. On the contrary, a successful system of long-term
care is quite possible; however, it requires, among other things, the active
participation of older persons in their own care. Such “collaborative care”
emphasizes patient self-management through education and
treatment planning in contrast to the traditional provider-patient
relationship, which tends to emphasize only provider responsibility for a
patient’s health. While collaborative care may be the preferable model
for the earliest stages of elderly care, the more incapacitated a patient
becomes by illness and old age, the more difficult it becomes for a
patient to self-manage. Nevertheless, a dependent resident may
actively participate in her own care by communicating the quality of her
care to her family and attorney. Such active patient participation among
nursing home residents, whether by the dependent patient herself or
another trusted coordinator, is integral to a successful elder care
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Son of Blagojevich: A Look at the Constitutionality of Illinois’ New “Son Of Sam” Law

By Matthew N. Stewart. 115 Penn St. L. Rev. 289

“I’ve got this thing and it’s . . . golden. And I’m just not giving it up for . . . nothing. I’m not going to do it. And I can always use it.” As Rod Blagojevich spoke these words, in reference to President-elect Barack Obama’s vacant Senate seat, he had little idea that federal agents would soon use these recorded conversations to bring a fitting end to his corrupt reign as Illinois governor. Blagojevich was under investigation for an alleged string of crimes that began before he was elected governor in 2002 and culminated in a nineteen-count indictment against him in December 2008. The charges included 16 felonies, ranging from racketeering conspiracy to attempted extortion.

On January 29, 2009, less than two months after his arrest, the Illinois legislature showed its immediate disapproval of Blagojevich’s actions by impeaching him and removing him from office by a senate vote of 59-0. Other state and federal officials were just as condemning in their appraisals of Blagojevich. One United States Attorney declared that “[t]he conduct would make Lincoln roll over in his grave.” Illinois General Assembly Senator Dale Righter described Blagojevich as a “devious, cynical, crass and corrupt politician.” No matter what words were used to describe the situation, the theme was the same: Blagojevich’s actions were abhorrent and caused seemingly irreparable damage to how the public perceived the Illinois government. Replacement Governor Patrick Quinn summed up the situation well when he acknowledged that “[i]n this moment, our hearts are hurt. And it’s very important to know that we have a duty, a mission to restore the faith of the people of Illinois in the integrity of their government.”
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Symposium

Introduction

By Justin Houser and Nancy Welsh. 114 Penn St. L. Rev. 1143

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 Law Review is pleased to present this symposium issue, Reflections on Iqbal:  Discerning Its Rule, Grappling with Its Implications.  This issue preserves, in written form, the lively debate concerning the various dimensions of Ashcroft v. Iqbal, which were articulated at the symposium held at Penn State University, The Dickinson School of Law, on March 26, 2010. [keep reading]

Agenda

114 Penn St. L. Rev. 1147

[view agenda]

Iqbal and the Role of Courts

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

For decades, lawyers’ bilateral negotiations, rather than trials, have resolved a majority of the civil actions filed in courts in the U.S.   Increasingly, lawyers and clients now conduct these negotiations within court-encouraged or court-mandated mediation.   Some commentators decry these developments,  while others argue that the drafters of the Federal Rules of Civil Procedure always intended to provide disputants with the tools needed to investigate and then resolve their own disputes.   From the latter perspective, a self-sufficient and democratic people (and the legal profession that has developed to serve them ) should be expected to take the initiative to identify alleged harms, communicate with each other, listen to each other’s perspective, review necessary information, and ultimately attempt to reach customized solutions before turning to expensive and intrusive public resources—i.e., judges and juries—for decisions enforceable by the state. [keep reading]

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

By Ray Worthy Campbell. 114 Penn St. L. Rev. 1191

Consider these scenarios:

While a commercial jet is in flight, both engines catch fire. Lacking propulsion, the plane crashes. All aboard are killed.

A consumer brings home a new appliance. When it is first plugged in and operated, it explodes. The consumer is seriously injured.

A fire breaks out in a crowded nightclub. Between the fire, the smoke and the ensuing panic, dozens of patrons die.

Prior to Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the plaintiff’s path in each of these scenarios was clear: name every possibly culpable defendant and let discovery sort them out. Under the liberal pleading rules of Conley v. Gibson, so long as the defendant had fair notice of what the claim was about, and so long as the defendant’s connection to the harmful event was not too attenuated, litigation could proceed. [keep reading]

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 is being spilled on a subject, in this case the game is worth the candle. Civil pleading rules play a central role in the rule of law in any legal system. Determining who is allowed to invoke the machinery of the civil justice system, and under what circumstance they may do so, lies at the core of how a system of law defines itself. The papers in this symposium outline how Iqbal has the potential to change the very purposes of the system of civil justice and give some glimpse into why such a change has come about. [keep reading]

Pleading and Access to Civil Procedure: Historical and Comparative Reflections on Iqbal, A Day in Court and a Decision According to Law

By James R. Maxeiner. 114 Penn. St. L. Rev. 1257

Abstract

The Maryland Declaration of Rights proclaims “That every freeman, for any injury done to him in his person, or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.” America’s litigation lawyers know that these fine words do not describe the reality of our system of civil justice. Last year the American College of Trial Lawyers pronounced our system a “captive to cost, delay and gamesmanship” and “in serious need of repair.” The Iqbal decision is an attempt to deal with one of many failings of our system.

Globalization challenges America to construct a system of civil justice that works. Foreign parties find litigating here a “nightmare.” So, too, do our own people, but they do not know alternatives. The Report of the American College of Trial Lawyers reminds us that our foreign friends know alternatives that work well; no wonder that they are disappointed here.

This article is based on a forthcoming book that examines from beginning to end, a lawsuit in three countries: the United States, Germany and Korea. The book shows ways that one foreign legal system minimizes costs and delay and promotes decisions according to justice and right. The draft chapters of the book are available online at http://ssrn.com/author=825054.

This article puts pleading in historical and comparative perspectives. It shows how past and present systems of American pleading have failed while the German system succeeds.
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Iqbal and Constitutional Torts

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 the performance of their duties. I have previously argued that those competing interests are best accommodated by holding supervisory government officials liable for the constitutional misdeeds of their subordinates so long as the supervisors themselves were personally culpable—that is, at least negligent—and so long as their negligence caused the deprivation of constitutional rights. Although this question has generated some controversy in academic circles, lower court decisions prior to Ashcroft v. Iqbal generally acknowledged the concept of supervisory accountability, though differing on the appropriate standard of liability. [keep reading]

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

By Mark R. Brown. 114 Penn St. L. Rev. 1317

In Ashcroft v. Iqbal, the Court held that a district court decision denying defendants’ motion to dismiss “turned on an issue of law and rejected the defense of qualified immunity,” and was therefore immediately appealable under the collateral order doctrine that has been applied to purely legal questions tied into denials of qualified immunity. The Supreme Court in Iqbal rejected the plaintiff’s contention that “a qualified immunity appeal based solely on the complaint’s failure to state a claim” —rather than on the “ultimate” qualified immunity issue of whether the acts allegedly committed by the defendants constituted a violation of clearly established law—“is not a proper subject of interlocutory jurisdiction.” “[A]ppellate jurisdiction is not so strictly confined,” the Court concluded. [keep reading]

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) that a complaint plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” In Ashcroft v. Iqbal, the Court made clear that the Twombly pleading standard extended to civil actions seeking redress for deprivation of constitutional rights in particular, and universally to all Complaints filed in federal court. Commentators have debated whether after Iqbal, victims of constitutional wrongdoing will be able to survive a 12(b)(6) motion to dismiss where the government and its officials exclusively harbor knowledge of the facts that animated the deprivation. Where constitutionality turns on the government’s motive or justification for its actions, how can the plaintiff assert factual allegations sufficient to “nudge [his] claims across the line from conceivable to plausible?” [keep reading]

Iqbal, Bivens, and the Role of Judge-Made Law in Constitutional Litigation

By James E. Pfander. 114 Penn St. L. Rev. 1387

Widely noted for the pleading revolution it furthers at the district court level, the Supreme Court’s decision in Ashcroft v. Iqbal also makes important changes in the way federal appellate courts will resolve the qualified immunity issues that arise in the course of Bivens litigation. In brief, Iqbal confirms that qualified immunity—something that the Court regarded as self-evidently an affirmative defense only a generation ago—will be treated as a matter on which the plaintiff bears the burden of relatively specific pleading. This secures the government officer’s right to invoke qualified immunity by way of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. What’s more, Iqbal adopts a broad interpretation of the collateral order doctrine that will allow the government to seek immediate appellate review of virtually any rejected qualified immunity defense at the pleading stage. While the Court had previously applied the collateral order doctrine to orders rejecting claims of qualified immunity, the Iqbal decision extends the doctrine to fact-bound determinations about the sufficiency of allegations of fact that might be regarded as dubious candidates for interlocutory review.
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Iqbal and Race

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 gender, in promulgating policy; to simply know that minorities and women will be adversely affected by the law does not deny these groups equal protection under the law. This Essay interrogates this doctrine by taking a closer look at Iqbal and Feeney, the thirty-year-old precedent the majority cited as the source of its antidiscrimination standard. Because Feeney was cited in neither of the lower court opinions, its reappearance in Iqbal signals the Court’s reluctance to intervene in matters (even tangentially) related to national security even if the government’s allocation of burdens and benefits perpetuates societal racial and gender privileges. [keep reading]

Implausible Realities: Iqbal’s Entrenchment of Majority Group Skepticism Towards Discrimination Claims

By Ramzi Kassem. 114 Penn St. L. Rev. 1443

In Ashcroft v. Iqbal, handed down on May 18, 2009, the U.S. Supreme Court held that Javaid Iqbal failed to plead sufficient facts to support the allegation that he had been arbitrarily and unconstitutionally classified by the federal government as a person “of high interest” and detained in a maximum security facility after September 11th, 2001 because of his race, religion, and national origin. In affirming dismissal of the complaint, the Court noted that the facts alleged did not “‘nudge[] [the plaintiffs’] claims’ of invidious discrimination ‘across the line from conceivable to plausible.’” Iqbal ostensibly extended to intent-based civil claims the Supreme Court’s earlier decision in Bell Atlantic Corporation v. Twombly, mandating that pleadings in antitrust cases must allege enough facts to plausibly “sho[w] that the pleader is entitled to relief” under Rule 8(a)(2) of the Federal Rules of Civil Procedure. [keep reading]

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 and celebrated event. Such cultures associate a name’s meaning to the qualities and characteristics shared by the child named. By extension, one might assume that one who is named Iqbal will enjoy great prosperity and riches. The legal and human journey for a man named Javaid Iqbal proved to be quite different.

Javaid Iqbal is a native and citizen of Pakistan and a Muslim. After moving to the United States, Iqbal worked as a cable television installer on Long Island. Iqbal was one among hundreds of men apprehended and detained by the United States Department of Justice in the weeks that followed the September 11, 2001 attacks. Iqbal was held in a federal prison in Brooklyn, New York called the Metropolitan Detention Center (MDC), for more than one year. In January 2002, Iqbal was transferred to the maximum security section of the jail known as the Administrative Maximum Special Housing Unit (ADMAX SHU). Following his deportation to Pakistan, Iqbal filed a federal lawsuit in the District Court for the Eastern District of New York against several federal government officials, including the former Attorney General John Ashcroft and the former head of Federal Bureau for Investigations Robert S. Mueller III, claiming that they were responsible for the abuses he suffered while at MDC. While at MDC, Iqbal alleged that he suffered the following abuses “numerous instances of excessive force and verbal abuse, unlawful strip and body cavity-searches, the denial of medical treatment, the denial of adequate nutrition, extended detention in solitary confinement, the denial of adequate exercise, and deliberate interference with [his] rights to counsel and to exercise of [his] sincere religious beliefs,” among other things. Iqbal alleged that he was singled out for mistreatment based on race, religion and national origin and also “subjected to a pattern and practice of cruel, inhuman, and degrading treatment in violation of the United States Constitution, federal statutory law, and customary international law.”
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Closing Keynote

Pleading, for the Future: Conversations After Iqbal

By Lee H. Rosenthal. 114 Penn St. L. Rev. 1537

One of the themes at this Symposium has been the remarkable volume and intensity of the response to the Supreme Court’s decision in Ashcroft v. Iqbal. Some of the papers presented at this Symposium present the view that Bell Atlantic Corp. v. Twombly, as applied in Iqbal, drastically altered the interpretation and application of the iconic words of Rule 8(a). But that understanding is far from monolithic, in the bench, the bar, or the academy. Some judges, lawyers, and scholars question the extent to which the pleading standards have changed, pointing out that Twombly and Iqbal are but the latest in a series of cases interpreting Rule 8; reminding us that many of the basic premises of Twombly and Iqbal—such as requiring more than a recitation of the elements of the claim and not assuming the truth of conclusory allegations in analyzing a motion to dismiss—have been commonly applied in courts for years; and reminding us that Twombly denied imposing a heightened or fact pleading standard and that Iqbal stated that it was applying the Twombly standard. The common-law process has continued; a body of appellate court cases has emerged interpreting Twombly and Iqbal. And since Iqbal, bills have been introduced in Congress to address the pleading standard in the federal courts.
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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]