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Articles
Intention, Torture, and the Concept of State Crime
By Aditi Bagchi. 114 Penn St. L. Rev. 1.
Notwithstanding the universal prohibition against torture, and almost universal agreement that in order to qualify as torture, the act in question must be committed intentionally with an illicit purpose, the intentional element of torture remains ambiguous. I make the following claims about how we should interpret the intent requirement as applied to states. First, state intent should be understood objectively with reference to the apparent reasons for state action. The subjective motivation of particular state actors is not directly relevant. While we focus on subjective intent in the context of individual crime because of its relation to culpability and blameworthiness, in the context of state crime we should be concerned with preserving the legitimacy of political authority, and the conditions for legitimacy turn on the apparent reasons rather than subjective motivations behind state action . . . [keep reading]
Judges Judging Judicial Candidates: Should Currently Serving Judges Participate in Commissions to Screen and Recommend Article III Candidates Below the Supreme Court Level?
By Mary L. Clark. 114 Penn St. L. Rev. 49.
In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below the Supreme Court level, just as judges commonly do for state court, other federal court, and other nations’ court appointments? This Article answers “no.” [keep reading]
Analytical Jurisprudence and the Concept of Commercial Law
By John Linarelli. 114 Penn St. L. Rev. 119.
Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. This article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order . . . [keep reading]
The Assault on Judicial Independence and the Uniquely Delaware Response
By Devera B. Scott, Esq., Keith J. Feigenbaum, Esq., Kelley M. Huff, Esq., and the Honorable Jan R. Jurden. 114 Penn St. L. Rev. 217.
In the early years of the American democratic experiment, one of the foremost observers of American democracy, Alexis de Tocqueville, wrote that “the courts correct the aberrations of democracy and . . . though they can never stop the movements of the majority, they do succeed in checking and directing them.” Tocqueville’s writings resonated greatly at the time, as many states moved towards the popular election of judges in the name of Jacksonian Democracy. Sadly, more than 170 years after they were first spoken, Tocqueville’s words remain relevant and of vital importance as federal and state courts face increasingly virulent assaults on their constitutionally-guaranteed independence . . . [keep reading]
Comments
Freedom from the Press: Why the Federal Propaganda Prohibition Act of 2005 is a Good Idea
By Stas Getmanenko. 114 Penn St. L. Rev. 251.
This Comment reviews First Amendment freedom of the press through the prism of technological change brought about in the last decade. When the First Amendment secured fundamental human liberties in 1791, its main purpose was to oppose tyranny. The passage of the First Amendment was a logical extension and the culmination of the pilgrims’ escape from state-sponsored persecution. At that time, the First Amendment amounted to the triumph of liberal thought which granted people their long-sought freedoms. This Comment argues that some two hundred years after the passage of the Bill of Rights, new-age informational tactics exploit the text of the First Amendment contrary to its intent. Thus, the situation amounts to nothing less than tyranny against which the Amendment was intended to protect . . . [keep reading]
Stormans and the Pharmacists: Where Have All the Conscientious Rx Gone?
By Jason R. Mau. 114 Penn St. L. Rev. 293.
The “right of conscience” is a term that is likely to elicit strong feelings in any context. Use that same phrase with the word “pharmacist” and these strong feelings will most likely be heightened, because they involve issues of reproduction and First Amendment rights, both evoking passionate views. Recently, the increasing amount of stories reporting pharmacists’ refusal to sell over-the-counter emergency contraceptives has fueled the public debate between those who believe in a right of conscience and those who believe in a right of access to contraceptives. This public debate over emergency contraceptives and pharmacists’ right of conscience has led many state legislatures to enact or amend previously existing legislation to outline each state’s position on the subject . . . [keep reading]
Compelling Choice: Forcibly Medicating Death Row Inmates to Determine Whether They Wish to Pursue Collateral Relief
By Dominic Rupprecht. 114 Penn St. L. Rev. 333.
It is unclear exactly how many of the 3,228 inmates on death row are mentally incompetent. A BBC report placed the number at approximately 10%. Some clinical studies have found as many as 40% or even 70% of surveyed inmates are psychotic. Whether the actual number of death row inmates suffering from mental illness is 10% or 70%, mentally ill inmates represent a considerable portion of the death row population and pose unique challenges for the criminal justice system.
In July 2008, the Pennsylvania Supreme Court ruled that two of these mentally ill death row inmates, Thavirak Sam and Herbert Watson, could be forcibly medicated to render them competent to determine whether they wished to pursue collateral relief under Pennsylvania’s Post Conviction Relief Act (PCRA). This appears to be the first time a court of last resort has resolved the issue raised by Sam and Watson . . . [keep reading]
Damned If You Don’t . . . Damned if You Do? Creating Effective, Constitutionally Permissible University Sexual Harassment Policies
By Alexis Snyder. 114 Penn St. L. Rev. 367.
In the past two decades, the tension between the First Amendment’s free speech guarantee and harassment policies has been the subject of much commentary. This tension is particularly strong in the university setting. On the one hand, universities are seen as beacons of free thought and the exchange of ideas. On the other hand, universities have a duty to protect their students from harassment, which could interfere with a student’s right to participate fully in the learning environment.In fact, courts have indicated that a university can be legally liable for student-on-student sexual harassment under Title IX if the university knows about the harassment and fails to take any action . . . [keep reading]