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.”
[keep reading]

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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2012-13 Senior Penn Statim Editors Announcement

We are pleased to announce that Sebastian Watt and Steve Anderson have been selected to serve as the 2012-2013 Senior Penn Statim Editors.

Penn State Law Review is pleased to announce the members of the 2012-2013 Editorial Board:

Volume 117 Comment Publication

Please join us in congratulating the following associate editors, whose comments have been selected for publication in Volume 117 of the Penn State Law Review:

• Jessica Barlow, Student Challenges to Academic Decisions:  The Need for the Judiciary to Look Beyond Simple Deference

• Tara Franklin, Done with Distracted Driving:  Implications of Pennsylvania’s Ban on Text-Based Communication While Driving under the State Constitution

• Sarah Ann Hyser, Two Steps Forward, One Step Back:  How Federal Courts Are Taking the “Fair” Out of the Fair Sentencing Act of 2010

• Raman Singh, A Holey Cause:  Sharia as a Cultural Defense

• Sebastian C. Watt, Abolishing the Shelter of Ambiguity:  A New Framework For Treasury Regulation Deference Clarifying Chevron and Brand X

• Geoffrey E. Weyl, Quibbling with Quill:  Are States Powerless in Enforcing Sales and Use Tax-related Obligations on Out-of-State Retailers

All Penn State Law Review associate editors participate in a strenuous comment writing program beginning their Middler year, and must produce a comment of publishable quality.  A comment is a student-written periodical material, written in a style similar to law review articles.

Advocacy of Death Eligible Offenders
Stephanie Jirard

Penn State Law Review hosted a Scholarly Dialogue on January 30, 2012 featuring Professor Stephanie Jirard as she presented her work, “Advocacy of Death Eligible Offenders.” Professor Jirard is a former Navy Judge Advocate General, Trial Attorney at the U.S. Department of Justice in the Civil Division, and an Assistant U.S. Attorney and an Assistant Federal Public Defender, both in the District of Massachusetts. Relying on her personal experiences as a public defender of death-penalty clients, Professor Jirard discussed the difficulties and importance of advocating for death eligible offenders. Alan C. Green, Executive Articles Editor of the Penn State Law Review, dialogued with Professor Jirard, followed by a public question and answer period. [watch video]

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.

keep reading.

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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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).

keep reading.

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.”

* * *

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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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.

keep reading.