Current Print Issue

Vol. 167, Issue 3


Featured Article

Police Disciplinary Appeals

167 U. Pa. L. Rev. 545 (2019)

Scholars and experts generally agree that rigorous enforcement of internal regulations within a police department promotes constitutional policing by deterring future misconduct and removing unit officers from the streets. In recent years, though, a troubling pattern has emerged. Because of internal appeals procedures, police departments must often rehire or significantly reduce disciplinary sanctions against officers who have engaged in serious misconduct.

By drawing on a national dataset of police union contracts, this Article analyzes the disciplinary appeals process utilized in a substantial cross section of large and midsized American police departments. It shows that the majority of these departments give police officers the ability to appeal disciplinary sanctions through multiple levels of appellate review. At the end of this process, many departments allow officers to appeal disciplinary sanctions to an arbitrator selected, in part, by the local police union or the aggrieved officer. Most jurisdictions give these arbitrators expansive authority to reconsider factual and legal decisions related to the disciplinary matter. And police departments frequently ban members of the public from watching or participating in these appellate hearings.

While each of these appellate procedures may be individually defensible, they may theoretically combine in many police departments to create a formidable barrier to officer accountability.

Featured Comment

New Legal Problems, Old Legal Solutions: Bailment Theory as the Baseline Data Security Standard of Care Owed to an Opponent's Data in Discovery

167 U. Pa. L. Rev. 775 (2019)

The digitization of discovery has created new data security threats to parties’ proprietary data from third parties. The transfer of electronically stored information (“ESI”), in any instance, is antithetical to data security. The real issues on the duty to protect an opponent’s data arise when there is no protective order in place, or during the negotiations of such protective orders.

This Comment suggests a baseline standard of care that should be owed by a receiving party in discovery to protect the electronic data of the producing party. Where immense value is present in stored data, the receiving party’s duty of care to protect that data is of utmost importance. Establishing a baseline duty of care will provide certainty under the law and will play an essential role in future discovery negotiations.

Online Exclusives
 Last updated: June 23, 2019


Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower

Stephen B. Burbank
168 U. Pa. L. Rev. Online 17 (2019)

The University of Pennsylvania Law Review Online presents the first installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar,” a series of articles, essays, and commentaries addressing the current state and direction of the judiciary. Contributors include scholars, judges, and practitioners whose extensive experience and diverse perspectives illuminate the relationship between judicial independence and accountability, as well as the forces which shape that relationship. Contributions to the series will be published throughout the summer and fall. The series begins with Professor Stephen B. Burbank's “Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower.” From his experiences as a Supreme Court clerk during Watergate, as a reporter on the judicial committee implementing the Judicial Conduct and Disability Act, and finally as a law professor deeply engaged in the study of judicial power, Professor Burbank suggests several lessons on how judicial accountability is essential to maintaining an independent judiciary.

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this Essay, I aim to provide practical context for some of the important lessons to be learned from the periods of stress for the federal judiciary that I have observed as a lawyer and concerned citizen and to provide theoretical context for lessons I have deemed significant as a scholar.


The Creditors' Bargain Reconstituted: Comments on Barry Adler's The Creditors' Bargain Revisited

Edward J. Janger
167 U. Pa. L. Rev. Online 47 (2019)
Responding to Barry E. Adler, The Creditors' Bargain Revisited

In his book, The Logic and Limits of Bankruptcy Law, Thomas Jackson asserts that bankruptcy law should approximate the bargain creditors would strike at the initiation of the firm (T1) regarding the possibility that the firm might later fail and default on its debts (T2). Jackson reasons that the firm’s creditors would choose a collective remedy that limits the power of individual creditors to force an inefficient liquidation. They would agree to stop the race of diligence.

In his thoughtful and provocative contribution to this symposium, The Creditors’ Bargain Revisited, Barry Adler asks whether, in the current world of finance and bankruptcy, creditors would choose the same collective remedy? His answer is, “No.” As he sees it, creditors would prefer the unfettered right to exercise their negotiated remedies. Barry offers three pieces of evidence: (1) sophisticated creditors frequently say that they would prefer to opt out of collective bankruptcy in favor of individual collection; (2) creditors frequently seek to adopt bankruptcy remote structures such as securitization through special purpose vehicles to avoid the bankruptcy process; and (3) blanket (often second) lien financing is frequently used by undersecured creditors to control and implement an all asset sale. Instead, he posits his preferred, noncollective, approach to insolvency: an express bargain based in creditor autonomy, or as he puts it, “a contractual alternative to bankruptcy.”

My response proceeds in three steps. First, I channel Inigo Montoya from The Princess Bride to suggest that the “Creditors’ Bargain” does not mean what Barry thinks it means. Second, I situate Barry’s contractualism in relation to the alternate “collective” theories of bankruptcy value distribution: the relativism of Baird and Casey; and a more rigorous version of the creditors’ bargain articulated by me and Melissa Jacoby in previous work. Third, I argue for the normative superiority of the collective approach, both for its fidelity to the Creditors’ Bargain heuristic and because of its consistency with a broader set of corporate governance norms that seek to encourage adequate capitalization and risk internalization.