Volume 115, Issue 3
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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.
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.
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?
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.
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.
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.
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.
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.”