Articles:
A Dearth of Remedies
By Elizabeth D. De Armond. 113 Penn St. L. Rev 1.
Federal privacy statutes purport to solidify norms for the privacy of our personal information, whether financial, medical, or other. Given the importance of privacy norms and the tradition of rights and remedies for privacy at the state level, states should seek to push their capacities to use laws, whether common or enacted, to protect their citizens to the very limits they can. Enforcement of social privacy norms, as embodied in laws state or federal, is necessary to protect personality and dignity. States can resume their traditional roles as protectors of their citizens by responding to increased threats to privacy through adapting common law torts or by enacting legislation; where these instruments provide enforcement through private causes of action, those protected by the instruments can vindicate their rights. More importantly, such remedies can deter violations to begin with, the ultimate aim of any privacy provision . . . [keep reading]
After the Gold Rush-Part II: Hamdi, the Jury Trial, and Our Degraded Public Sphere
By Daniel R. Williams. 113 Penn St. L. Rev 55.
Daniel R. Williams expands on his previous article After the Gold Rush Part I.
Long ago, in a bygone era of barbarism, cruelty, and darkness, before an Enlightenment era ushered in a human-rights consciousness, before the great revolutions created space for republican government to form and then flourish, there was the “spectacle of the scaffold.” Punishment through horrific torture inflicted in the public square heralded sovereignty through “spectacle not of measure, but of imbalance and excess.” The public square became the forum for the sovereign, “through the body of the criminal,” to reactivate its power: the scaffold in the public square “made the body of the condemned man the place where the vengeance of the sovereign was applied, the anchoring point for a manifestation of power, an opportunity of affirming the dissymetry [sic] of forces.” The public sphere was where sovereignty announced itself . . . [keep reading]
Nihilism with a Happy Ending? The Interstate Commerce Commission and the Emergence of the Post-Enlightenment Paradigm
By Mark F. Kightlinger. 113 Penn St. L. Rev 113.
This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC)-the first federal administrative agency-in an effort to identify the intellectual roots of the modern administrative state. The Article argues that the Court’s effort to explain and justify the function of the newborn ICC shows the traces of a post-Enlightenment crisis in the field of moral philosophy-i.e., the growing conviction that it is no longer possible for reasonable people to agree on what constitutes a true, objective, universally valid standard of reasonable or just conduct. From this essentially nihilistic starting point, the Court helped to fashion a new post-Enlightenment paradigm under which the function of an administrative bureaucracy such as the ICC is to impose order on a market consisting of individuals pursuing their non-rational interests and preferences in the absence of an objective, shared moral framework . . . [keep reading]
Securities Fraud, Recidivism, and Deterrence
By Jayne W. Barnard. 113 Penn St. L. Rev 189.
Legal scholars have expended considerable energy on the study of high-level securities fraud violators-Ken Lay, Bernie Ebbers, Dennis Kozlowski, etc. There has been little attention, however, to the perpetrators of “retail” securities fraud-the con artists who sell bogus stock over the Internet, orchestrate elaborate pump-and-dump schemes, and create a never-ending array of purportedly “risk free” investment opportunities.
In this article, Professor Barnard examines this group of offenders, focusing particularly on those who recidivate-often moving from state to state and scheme to scheme, with little interruption from the law enforcement community . . . [keep reading]
Comments:
An Investment to Die For: From Life Insurance to Death Bonds, the Evolution and Legality of the Life Settlement Industry
By Kelly J. Bozanic. 113 Penn St. L. Rev 229.
Profiting from death may strike one as morally offensive, but the life settlement industry has created just such an opportunity. A life settlement is a transaction wherein an insured assigns the ownership interest (contract rights to the death benefit) of a life insurance policy to an investor for cash consideration. In other words, it is the sale of an economic interest in the death of the insured. As such, the industry has created a secondary market for what was once thought to be an illiquid asset: life insurance. While current market volatility makes an investment in death attractive, the life settlement industry is not without pitfalls. This Comment explores the evolution and legality of the industry as well as considerations for an individual contemplating a life settlement transaction . . . [keep reading]
Ambiguity in the Air: Why Judicial Interpretation of Insurance Policy Terms Should Force Insurance Companies to Pay for Global Warming Litigation
By Travis S. Hunter. 113 Penn St. L. Rev 267.
As the United States begins to confront global warming and global climate change, the question remains as to how these regulations will affect society. Presumably, corporations producing greenhouse gases will be sued for breaching carbon emissions statutes set by the EPA, and presumably, someone will have to pay for the significant costs involved with such global warming litigation.
This paper will explore the ambiguity in a D&O pollution exclusion and examine why the insurance companies should foot the costs of global warming litigation in the future . . . [keep reading]
Overturning Matula: How the Third Circuit Court of Appeals Will Impact Other Courts’ Decisions on the Availability of § 1983 as a Remedy for IDEA Violations
By Sara Tussey. 113 Penn St. L. Rev 297.
Over the last twenty years, the United States courts of appeals, including the Third Circuit Court of Appeals, have struggled with the question of whether to award compensatory and punitive damages in IDEA cases. In 1995, the Third Circuit held, in W.B. v. Matula, that § 1983 can be used by parents and children seeking monetary damages for statutory violations of the IDEA. In the years following Matula, the United States courts of appeals were split evenly on this issue. In 2007, the Third Circuit revisited the Matula decision in A.W. v. Jersey City Public Schools. The court reversed its earlier holding and decided that § 1983 cannot be used in conjunction with the IDEA. The Third Circuit was the first federal court of appeals to explicitly overturn an earlier holding on the availability of § 1983 as a remedy for IDEA violations. This Comment will discuss the impact the Third Circuit has had on the availability of § 1983 remedies for IDEA violations . . . [keep reading]
“No Saggy Pants”: A Review of the First Amendment Issues Presented by the State’s Regulation of Fashion in Public Streets
By Angelica M. Sinopole. 113 Penn St. L. Rev 329.
In an effort to restrain a popular fashion – saggy pants – and to remedy the problems allegedly associated with that fashion, cities across the nation are passing so-called “anti-sag ordinances.” Critics have protested the bans on saggy pants, including the proposed ordinance in Atlanta, claiming that these laws violate the wearer’s First Amendment rights to freedom of speech and expression. This Comment sets out the First Amendment legal framework as it relates to anti-sag ordinances, particularly Atlanta’s proposed law, and considers the potential First Amendment issues faced by challengers of the ordinances . . . [keep reading]