Volume 116, Issue 4
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Articles
Metaphors, Models, and Meaning in Contract Law
By Jeffrey M. Lipshaw. 116 Penn St. L. Rev. 987.
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? This article is an attempt to bridge the gap, combining insights from academic theory and real-world law practice. My claim is that the law as discipline has developed its own powerful but self-contained conceptual framework—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law, something that is largely the creation of private parties and not the state, requires dealing with legal truth not just as a coherent body of normative doctrine, but also correspondent in some way to the parties’ actual self-legislation. In other words, the exercise of understanding the law relating to transactions is not wholly descriptive—”to what did the parties agree”? Nor is it wholly normative—“what should be done when the parties dispute the nature or terms of their agreement after the fact?” Much of the difficulty of the first-year contract law enterprise lies in this conflation of the law’s usual after-the-fact normative focus (as, say, in tort or criminal law) with an inquiry into what private law the parties actually meant to create before the fact.
I propose escaping the epistemic trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas as objects, and the transaction lifecycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional lifecycle, and to consider the perspectives of the participants in or observers of that process. In particular, I consider the models and metaphors that shape the conceptual frames from within which those participants and observers perceive, make use of, and derive meaning from what end up as contracts, which are best thought of as the objective manifestations of inter-subjective agreements.
Pay Transparency
By Gowri Ramachandran. 116 Penn St. L. Rev. 1043
Pay discrimination, like many forms of discrimination, is a particularly stubborn problem. In many instances, just as with other forms of discrimination, it is unrealistic to allocate all the blame and burden on a single actor, whether it be an employer or employee. Thus, the traditional civil rights regime in which an individual actor is held liable for the discrimination does a poor job of dealing with this problem. I propose an intervention—pay transparency—that would help prevent, root out, and correct the discrimination in the first place, instead of relying on after the fact blame and liability.
Pay transparency—the ability for employees to find out what other employees in their workplace make—is rare outside of public employment, and cultural norms against talking about one’s income may make the concept anxiety-producing to some readers. Yet, unlike many other approaches to reducing seemingly “blameless” discrimination, such as targeting unconscious discrimination, or potentially counterproductive debiasing efforts, incentivizing pay transparency can fit very comfortably within our legal framework. By turning pay transparency into an affirmative defense to pay discrimination claims, this preventive measure can be woven neatly into our current approach to civil rights enforcement and notions of individual responsibility.
Overinterpreting Law
By Robert F. Blomquist. 116 Penn St. L. Rev. 1081
Overinterpretation has attracted considerable attention in other fields, such as literary studies, science, and rhetoric, but it is under-theorized in law. This Article attempts to initiate a theory of legal overinterpretation by examining the rhetorical nature of excess, the sociological dimensions of roles in team performances, and citation to legal and non-legal sources that have discussed overinterpretation. The Article concludes by positing illustrative categories of potential legal overinterpretation, and providing an examination of ways to minimize legal overinterpretation through a judicious, pragmatic balance between abstract considerations and concrete considerations in law.
Changing the Model Law School: Rethinking U.S. Legal Education in (Most) Schools
By Nancy B. Rapoport. 116 Penn St. L. Rev. 1119
This essay argues that discussions of educational reform in U.S. law schools have suffered from a fundamental misconception: that the education provided in all of the American Bar Association-accredited schools is roughly the same. A better description of the educational opportunities provided by ABA-accredited law schools would group the schools into three rough clusters: the “elite” law schools, the modal (most frequently occurring) law schools, and the precarious law schools. Because the elite law schools do not need much “reforming,” the better focus of reform would concentrate on the modal and precarious schools; however, both elite and modal law schools could benefit from some changes to help law students move from understanding the theoretical underpinnings of law to understanding how to translate those underpinnings into practice. “Practice” itself is a complex concept, requiring both an understanding of the law and an understanding of how to relate well to others. Because law students may not understand how to relate well to those with different backgrounds from their own, law schools should do more to explain how one’s perspective is both limiting and mutable. Too many law schools suggest that students can “see” different perspectives by, essentially, merely thinking harder. The essay concludes with some suggestions regarding possible reforms of U.S. legal education, focusing primarily on the modal law schools.
Comments
Right to Exclude or Forced to Include? Creating a Better Balancing Test for Sexual Orientation Discrimination Cases
By Sara A. Gelsinger. 116 Penn St. L. Rev. 1155
Beginning at a young age, individuals start choosing to exclude others. Toddlers decide who will be their snack-time seatmates. Children choose whom to exclude from their playground dodge ball team. College fraternities and sororities induct only chosen classmates into their organizations. Businesses pick their preferred employees from stacks of applications.
The ability to include or exclude individuals is often taken for granted as an individual’s or organization’s assumed right. But what happens when an organization refuses to admit a member because she is female? Or because he is Latino? Or because she identifies as a lesbian? Does eradicating discrimination trump one’s choice of association?
In Roberts v. United States Jaycees, the Supreme Court stated that one’s “freedom of association . . . plainly presupposes a freedom not to associate.” However, the Court also recognized that “[i]nfringements on that right may be justified by regulations adopted to serve compelling state interests. . . . Discrimination based on archaic and overbroad assumptions . . . deprives persons of their individual dignity and denies society the benefits of wide participation in political, economic and cultural life.”
A modern-day civil rights battle rages between groups asserting their constitutional right of expressive association and states attempting to eliminate discrimination by enacting non-discrimination statutes. This Comment will argue that the Supreme Court has failed to recognize that eradicating sexual orientation-based discrimination is a compelling state interest. It will also suggest a proposal for balancing an organization’s right of freedom of association with a state’s interest in eradicating discrimination through non-discrimination statutes.
Where Presumption Overshoots: The Foundation and Effects of Pennsylvania Department of Transportation v. Clayton
By Alan C. Green. 116 Penn St. L. Rev. 1181
At the core of a just and well-ordered society lies a dedicated assurance of the right to due process of law. Due process is “intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.” However, as Justice Frankfurter famously declared, “‘Due process’ is, perhaps, the least frozen concept of our law—the least confined to history and the most absorptive of powerful social standards of a progressive society.”
The principle of due process creates a tension between the authority of the legislature and that of the courts. On the one hand, due process “is a restraint on the legislative . . . powers of government and cannot be construed as to leave congress free to make any ‘due process of law,’ by its mere will.” On the other hand, “it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree.”
Since the era of Lochner v. New York, perhaps no due process doctrine illuminates this tension greater than the irrebuttable presumption doctrine (“IPD”). Developed in the early 1970s, the doctrine states:
It is forbidden by the Due Process Clause to [deprive an individual of life, liberty, or property] on the basis of a permanent and irrebuttable presumption . . . when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination.”
In practice, IPD invalidates state action that purports to speak in terms of determinate criteria, but does not allow for the admission or consideration of evidence plainly relevant to those criteria.
Empathy for the Devil: How Prisoners Got a New Property Right
By Marianne Sawicki. 116 Penn St. L. Rev. 1209
The United States Court of Appeals for the Third Circuit opened a “can of worms” when it declared “a new property right” for prisoners in Rodney Burns v. Pennsylvania Department of Corrections. The court held that assessing a charge against the funds in an inmate account impairs a cognizable property interest even before the actual deduction. Constitutional due-process protections attach to this newly recognized “right to security.” The Burns worms are bait for the hooks on two lines of inquiry. First, against a tide of judicial deference toward prison administrators, how did the Third Circuit reach this surprising result? Second, in its wake, what changes in prison disciplinary procedures should occur?
An analysis of the Burns decision will establish that the court adopted an empathetic stance toward the prisoner-appellant because it relied on an analogy to something familiar: the relation between a debtor and a judgment creditor. The court declined to demonize the prisoner rhetorically, as commonly happens when a prisoner files a complaint about prison conditions. Empathy plays an unavoidable, if often unrecognized, role in human decision making. But empathy generates bias in legal decisions only where the court, unaware of empathy’s function, allows it to work in a one-sided manner. A jurisprudence of empathy actively compensates for unfamiliarity with the perspectives and conditions of any party, especially one whose circumstances differ socially from those of judges. The Burns decision sheds light on other decisions where courts have rejected prisoners’ assertions of constitutional claims.
Before analyzing Burns, this Comment provides background with a survey of the landmark cases that define due process rights for prisoners. Although “[t]here is no iron curtain drawn between the Constitution and the prisons of this country,” incarceration brings limitations to constitutional rights. Those limits, imposed by the United States Supreme Court, bind state courts as well. Pennsylvania precedents provide part of the legal background for Burns because state law governs administrative procedures and regulations that affect prisoners in state correctional institutions. While the judicial rulings and administrative law of the Commonwealth of Pennsylvania do not bind other states, there is no reason to doubt that they are comparable to those of other states. The Third Circuit’s holding in Burns is binding precedent for federal courts within that circuit, and it may be persuasive elsewhere because it addresses “an issue of first impression across the courts of appeals.”
Redefining Searches Incident to Arrest: Gant’s Effect on Chimel
By Jackie L. Starbuck. 116 Penn St. L. Rev. 1253.
One of the Supreme Court’s “most important responsibilities is to offer clear guidance to lower courts,” especially in matters of constitutional law. For decades, the Supreme Court has held that warrantless search or seizure is “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” One such exception is a search incident to a lawful arrest. When an officer makes an arrest, the officer may search the arrestee’s person and the area within the arrestee’s immediate control. The Supreme Court established two rationales behind the search incident to arrest in Chimel v. California: (1) the police may remove any weapons the arrestee may use to resist arrest or to escape; and (2) the police may search for and seize any evidence to prevent its concealment or destruction.
Defining the area within the arrestee’s immediate control has proven troublesome, especially in the context of arresting a vehicle occupant. With respect to vehicle search, the Court in New York v. Belton handled this issue by creating a bright-line rule that an officer making a lawful arrest of the occupant of a vehicle may search the passenger compartment of the vehicle and all containers therein. Although the Court’s rule appeared to be applicable only in the vehicle context, lower courts expanded the rule to searches incident to arrest outside of the vehicle context, and the Supreme Court did nothing to curb or encourage that expansion. The Court recently limited the Belton rule in Arizona v. Gant, where the Court held that police may search a vehicle incident to an arrest of the vehicle’s occupant only when the arrestee is “unsecured and within reaching distance of the passenger compartment” at the time of the search.
In the short time since Gant was decided, lower courts have split on whether the new rule announced in Gant applies to searches incident to arrest outside of the vehicle context. The Third Circuit has applied the Gant rationale to a bag held by the arrestee at the time of arrest and dropped when the police placed him under arrest. Noting that courts have used vehicle cases to justify searches in non-vehicle contexts for years, the court used Gant to justify a search of the bag because the bag was accessible to the arrestee. The District Court for the District of Nebraska also would have expanded Gant, but the Eighth Circuit Court of Appeals invalidated the court’s reasoning and limited Gant to vehicular searches incident to arrest. Again, the Supreme Court has remained silent on the issue of whether Gant is applicable outside of the vehicle context.