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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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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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