Volume 162 – University of Pennsylvania Law Review

VOLUME 162, ISSUE 7 JUNE 2014

ARTICLES

Speech: Opening Address

SHELDON WHITEHOUSE

“I imagine that many law students who arrive here at this famous law school in Philadelphia, the city that hosted our nation�s Constitutional Convention, dream of litigating epic constitutional cases before the United States Supreme Court. For the students here, perhaps… Expand

Keynote Address: “The Just, Speedy, and Inexpensive Determination of Every Action?”

HAROLD HONGJU KOH

On this seventy-fifth birthday of the Federal Rules of Civil Procedure, it is worth noting that the Rules are that rare public document that contains within its text the very metric for measuring its own success. Contrast, for example, the U.S. Constitution, which aims �to .… Expand

Litigation Reform: An Institutional Approach

STEPHEN B. BURBANK & SEAN FARHANG

This Article is part of an ongoing study of the behavior of American political institutions, including courts, with respect to federal civil litigation. We are particularly interested in litigation that involves statutory private enforcement regimes and other legal… Expand

Attorneys’ Fees in a Loser-Pays System

THEODORE EISENBERG, TALIA FISHER & ISSI ROSEN-ZVI

Attorneys� fees fuel litigation, yet little is known about fees. Fee data are rarely available in the United States or in English rule, loser-pays jurisdictions. This Article analyzes fee awards in Israel, which vests judges with discretion to award fees, with loser pays… Expand

Rethinking Summary Judgment Empirics: The Life of the Parties

JONAH B. GELBACH

It hardly needs saying that summary judgment has been a controversial topic. The device was, by many accounts, long a sleepy backwater of the procedural countryside.

In one telling of this story, the Court paved paradise and put up a parking lot of pretrial disposition that… Expand

“Looking Backward” to 1938

RICHARD MARCUS

It is a pleasure to contribute to this celebration of the seventy-fifth anniversary of the Federal Rules. As one who has been something of a rulemaking insider for over twenty percent of the seventy-five years since the Federal Rules came into effect, I suppose I incline… Expand

From the Particular to the General: Three Federal Rules and the Jurisprudence of the Rehnquist and Roberts Courts

EDWARD A. PURCELL, JR.

With the possible exception of John Marshall, the Justice most frequently quoted by legal scholars is almost certainly Oliver Wendell Holmes, Jr. Following that practice, I begin with an appropriate Holmesian injunction: our �business as thinkers is to make plainer the way… Expand

The Burdens of Pleading

ALEXANDER A. REINERT

To preview my argument briefly, plausibility pleading formally asks judges�for the first time since the advent of the Federal Rules�to engage in a merits-based analysis at the pleading stage based on their �judicial experience and common sense.� Judges are expected to… Expand

The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure at 75

JUDITH RESNIK

The normative goals of the 1938 Federal Rules facilitated a reconceptualization of federal adjudication by welcoming into court a diverse array of persons who, as the century unfolded and equality mandates expanded, became rights-holders. As a consequence, courts came to… Expand

The Fourth Era of American Civil Procedure

STEPHEN N. SUBRIN AND THOMAS O. MAIN

Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise�s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules… Expand

Discretion in Class Certification

TOBIAS BARRINGTON WOLFF

A district court has broad discretion in deciding whether a suit may be maintained as a class action.Variations on this phrase populate the class action jurisprudence of the federal courts. The sentiment reflects the equity roots of the representative class proceeding�a…

VOLUME 162, ISSUE 6 MAY 2014

ARTICLES

Standing Outside of Article III

TARA LEIGH GROVE

The U.S. Supreme Court has insisted that standing doctrine is a �bedrock� requirement only of Article III. Accordingly, both jurists and scholars have assumed that the standing of the executive branch and the legislature, like that of other parties, depends solely on… Expand

Litigating Article III Standing: A Proposed Solution to the Serious (But Unrecognized) Separation of Powers Problem

MARTIN H. REDISH & SOPAN JOSHI

At one point or another, every law student likely encounters Lujan v. Defenders of Wildlife, in which the Supreme Court succinctly restated the elements of Article III standing before deciding that the plaintiffs lacked it. But what likely escapes notice, even of students… Expand

Structural Corporate Degradation Due to Too-Big-to-Fail Finance

MARK J. ROE

Corporate governance incentives at too-big-to-fail financial firms deserve systematic examination. For industrial conglomerates that have grown too large to be efficient, internal and external corporate structural pressures push to resize the firm. External activists press… Expand

COMMENTS

May Contain: Allergen Labeling Regulations

SARAH BESNOFF

Nausea; hives; swelling of eyes, nose, and throat; lung failure; and possibly death�these are the symptoms food allergy sufferers can endure if they consume their respective food allergen. Food allergies affect between 2%-9% of the U.S. population. Each year, roughly 30,000… Expand

You Can’t Sell Your Firm and Own It Too: Disallowing Dual-Class Stock Companies from Listing on the Securities Exchanges

TIAN WEN

In 2004, Google’s initial public offering (IPO) revealed that the company would go public with a dual-class capitalization structure. A dual-class stock company has a capital structure whereby insiders hold common stock with multiple votes per share (typically ten), while…

VOLUME 162, ISSUE 5 APRIL 2014

ARTICLES

Ghost in the Network

DEREK E. BAMBAUER

Cyberattacks are inevitable and widespread. Existing scholarship on cyberespionage and cyberwar is undermined by its futile obsession with preventing attacks. This Article draws on research in normal accident theory and complex system design to argue that successful attacks… Expand

Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?

AARON EDLIN & REBECCA HAW

It has been over a hundred years since George Bernard Shaw wrote that �[a]ll professions are a conspiracy against the laity.� Since then, the number of occupations and the percentage of workers subject to occupational licensing have exploded; nearly one-third of the U.S.… Expand

The Function of Article V

AZIZ Z. HUQ

What good is Article V? The Constitution�s amendment rule renders the text inflexible, countermajoritarian, and insensitive to important contemporary constituencies. Comparative empirical studies, moreover, show that textual rigidity is not only rare in other countries�… Expand

COMMENTS

Letters of Intent in Corporate Negotiations: Using Hostage Exchanges and Legal Uncertainty to Promote Compliance

J. ANDREW HOLTEN

Letters of intent (LOIs) are fundamental building blocks of many corporate transactions. Although their form and terms vary, LOIs are used predominantly to communicate parties� agreement to the basic structure of a deal and a mutual desire to continue negotiating. They are… Expand

Towards a Unified Theory of “Reverse-Erie“

OMAR K. MADHANY

A �reverse-Erie� problem arises when a state court is hearing a federal cause of action and confronts a situation in which a state law and a federal law conflict. The term finds its etymological origin in Erie Railroad Co. v. Tompkins, which dealt with the opposite problem…

VOLUME 162, ISSUE 4 MARCH 2014

ARTICLES

Collateral Compliance

JOSHUA D. BLANK

As most of us are aware, noncompliance with the tax law can lead to tax penalties, which almost always take the form of monetary sanctions. But noncompliance with the tax law can have other consequences as well. Collateral sanctions for tax noncompliance�which apply on top… Expand

Insider Trading via the Corporation

JESSE M. FRIED

A U.S. firm buying and selling its own shares in the open market can trade on inside information more easily than its own insiders because it is subject to less stringent trade-disclosure rules. Not surprisingly, insiders exploit these relatively lax rules to engage in… Expand

Bureaucracy at the Boundary

ANNE JOSEPH O’CONNELL

The traditional view of the federal administrative state imagines a bureaucracy consisting entirely of executive agencies under the control of the President as well as regulatory commissions and boards that are more independent of the White House. Administrative law clings… Expand

COMMENTS

Twenty Years of Shareholder Proposals After Cracker Barrel: An Effective Tool for Implementing LGBT Employment Protections

NEEL RANE

�This employee is being terminated due to violation of company policy. The employee is gay.�

This was the reason Cracker Barrel stated for dismissing Cheryl Summerville, a cook for the restaurant chain, on her official separation notice. Cracker Barrel fired as many as… Expand

The Applicability of State Appeal Bond Caps in Suits Brought in Federal Courts Pursuant to Diversity Jurisdiction

JESSE WENGER

Since 2000, forty-one states have passed appeal bond reform statutes, a tort reform measure that, in some shape or form, caps the amount of a supersedeas bond a defendant must secure in order to stay the execution of a judgment while pursuing an appeal. The state statutes…

VOLUME 162, ISSUE 3 FEBRUARY 2014

ARTICLES

Funding Terror

SHIMA BARADARAN, MICHAEL FINDLEY, DANIEL NIELSON & JASON SHARMAN

The events of September 11, 2001, forever changed the political and legal responses to terrorism. After more than ten years, two wars, numerous targeted military strikes, and significantly increased surveil-lance, we have not stopped the growth of al-Qaeda and other… Expand

Constitutional Colorblindness and the Family

KATIE EYER

Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even �benign� uses of race (including, most notably, affirmative action), the lower courts have continued… Expand

Why Do Retail Investors Make Costly Mistakes? An Experiment on Mutual Fund Choice

JILL E. FISCH & TESS WILKINSON-RYAN

Congress has recently acknowledged the need for a better understanding of investor behavior. In the Dodd�Frank Act, Congress instructed the SEC to conduct a study of investor financial literacy. The SEC�s study was conducted at the most superficial level, however, and… Expand

COMMENTS

The Divided States of America: Reinterpreting Title VII’s National Origin Provision to Account for Subnational Discrimination Within the United States

JACQUELINE GRACE DIAZ

From the marginalization of Native Americans to the bitter rivalry between the North and the South, discrimination within the United States is not a new phenomenon. For centuries, Americans have discriminated against one another because they come from different parts of the… Expand

Putting Plea Bargaining on the Record

JOEL MALLORD

More than a decade ago, Rolando Stockton rejected a plea bargain that came with a ten-year prison sentence, opting instead to take his chances at trial. The trial went badly. After being found guilty on several drug and firearm charges, Stockton received a forty-year prison…

VOLUME 162, ISSUE 2 JANUARY 2014

ARTICLES

Selling State Borders

JOSEPH BLOCHER

The relationship between state sovereignty and state territory in the United States is more complex, interesting, and unstable than the reassuring familiarity of an American map might suggest. State borders move as a result of wandering rivers, interstate border compacts,… Expand

The First Disestablishment: Limits on Church Power and Property Before the Civil War

SARAH BARRINGER GORDON

The rights and responsibilities of religious institutions are hotly debated in the early twenty-first century. Liberal separationists argue that religious organizations should be subject to secular laws regarding labor, health care (including access to birth control), child… Expand

The Next Generation Communications Privacy Act

ORIN S. KERR

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records. ECPA is widely regarded as outdated, and ECPA reform is now on the Congressional agenda. At the same time, existing reform… Expand

COMMENTS

Read My Lipsky: Reliance on Consent Orders in Pleadings

KEVIN LEVENBERG

Consent orders are used to resolve government enforcement actions through a court-approved settlement. Although consent orders often include detailed factual and legal findings, defendants typically deny or neither admit nor deny those findings. Nevertheless, some private… Expand

Patent Nonuse and Technology Suppression: The Use of Compulsory Licensing to Promote Progress

NEIL TYLER

The U.S. Supreme Court has consistently and adamantly held that patents do not require patentees to use or commercialize their inventions. Rather, patents simply grant inventors the right to exclude others from using or producing their inventions. That exclusive right, once…

VOLUME 162, ISSUE 1 DECEMBER 2013

ARTICLES

Deciding by Default

CASS R. SUNSTEIN

Impersonal default rules, chosen by private or public institutions, establish settings and starting points for countless goods and activities�cell phones, rental car agreements, computers, savings plans, health insurance, websites, privacy, and much more. Some of these… Expand

Factual Precedents

ALLISON ORR LARSEN

Lawyers and judges speak to each other in a language of precedents � decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more… Expand

Reuniting ‘Is’ and ‘Ought’ in Empirical Legal Scholarship

JOSHUA B. FISCHMAN

Scholars engaged in empirical legal research have long struggled to balance the methodological demands of social science with the normative aspirations of legal scholarship. In recent years, empirical legal scholarship has increased dramatically in methodological… Expand

COMMENTS

To Benefit or Not to Benefit: Mutually Induced Consideration As a Test for the Legality of Unpaid Internships

CRAIG DURRANT

Over the last fifteen years, unpaid internships have become a part of our generation’s psyche. You try to get into the best college; then you try to get the best unpaid internship; and finally you try to get the best full-time job. This pattern, however, has raised four… Expand

Solar-Backed Securities: Opportunities, Risks, and the Specter of the Subprime Mortgage Crisis

SAMANTHA JACOBY

Existing project financing structures utilizing the Investment Tax Credit (ITC) and depreciation benefits have helped spur growth in the solar industry but are insufficient on their own to enable the residential solar sector to scale up and become a mainstream energy source.…