SelectedWorks @ Widener University Commonwealth Law School
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Natural Resources and the Public Estate; Article I, Section 27
No full textThis is a detailed explanation of the history and cases decided under Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment. It is the final pre-publication version of the chapter on the Amendment in The Pennsylvania Constitution: A Treatise on Rights and Liberties (Ken Gormley et al., eds., forthcoming 2020).The Amendment has two parts. The first part creates a right in “the people” to clean air, pure water, and the preservation of certain values. The second part articulates the right of “the people” to the state’s public natural resources, and establishes a right in “the people” to have those resources conserved and maintained for the benefit of present and future generations. The amendment is located in Article I of the Pennsylvania constitution (the subject of the treatise), which is Pennsylvania’s Declaration of Rights, analogous to the U.S. Bill of Rights. Pennsylvania is one of few states in the country to recognize the environmental rights of its citizens, and is perhaps the most prominent.This treatise chapter first explains the history of the Amendment. It then describes four ways that courts have applied it. The first and most obvious is as a basis for legally enforceable claims. For more than four decades, Pennsylvania courts avoided applying the text of the Amendment, using instead a judicially invented test as a substitute for the text and greatly weakening the Amendment’s effect. Beginning with a plurality opinion in 2013 in Robinson Township v. Commonwealth, and then a majority opinion in 2017 in Pennsylvania Environmental Defense Foundation v. Commonwealth, the Pennsylvania Supreme Court used the text of the Amendment to hold legislation unconstitutional, and discarded the judicially invented test. This chapter also explains that Pennsylvania courts have applied the Amendment in three other ways—as confirmation and extension of the police power, as guidance in statutory interpretation, and as constitutional authority for laws whose constitutionality has been challenged on other grounds
From Fire Hose to Garden Hose: Section 13(3) of the Federal Reserve Act
No full textAt the height of the Great Financial Crisis, the Federal Reserve employed a previously unused section of the Federal Reserve Act, Section 13(3), to engage in a level of lending unparalleled in global financial history. Section 13(3) provided a firehose of liquidity for the US financial system, and The Federal Reserve used it to successfully fight the Great Financial Crisis. However, once the worst of the crisis had passed, Congress quickly acted to limit the Federal Reserve’s powers under Section 13(3) by passing DoddFrank and introducing the orderly liquidation authority. These limitations have reduced the Federal Reserve’s Section 13(3) power to that of a mere garden hose. One can only speculate whether the Great Financial Crisis would have continued and perhaps permanently crippled the US financial system had the Federal Reserve not been able to effectively utilize Section 13(3). The Federal Reserve’s now-limited Section 13(3) power will undoubtedly hamper its ability to respond to crises in the future
Say What?: A How-To Guide on Providing Formative Assessment to Law Students Through Live Critique
No full textThe American Bar Association requires law schools to move beyond the traditional, single final exam and incorporate more assessment. One method law professors may use is live critique. Through live critique, the professor examines students’ work for the first time in front of students and reacts to it live. This article details the benefits of live critique for law students, which include enhanced learning, increased confidence, and practice-ready skills. It also describes how professors can boost the effectiveness and efficiency of their feedback by delivering it live. Finally, the article provides suggestions for professors in overcoming potential challenges and provides step-by-step guidance on how to integrate live critique into any law school course
Immigration Adjudication Bankruptcy
No full textThe Trump Administration is pushing an adjudicatory system on the brink over the edge. The system designed to decide whether to remove (deport) individuals from the United States has longstanding problems that predate the Trump Administration. Those problems are being exasperated rather than improved. It is time to consider the notion of immigration adjudication bankruptcy. Immigration adjudication bankruptcy involves a declaration that the removal adjudication system is not satisfying the basic principles of administrative process: accuracy, acceptability, and efficiency. This Article, a part of a symposium on executive power and immigration law, raises questions about when bankruptcy should be declared and examines issues surrounding the restructuring of immigration removal adjudication
Raising Compulsory Automobile Insurance Minimum Amounts: A Case Study from the United States
No full textThis article discusses a decision both European Union Member States and states in the United States must make: whether to raise their compulsory automobile insurance minimum amounts. The authors review a case study from the United States, the Commonwealth of Pennsylvania, and conclude a proposed increase in the compulsory minimum amounts should pass the legislator. The purpose of compulsory automobile insurance is to compensate victims of automobile accidents. Due to inflation, the minimum amounts in Pennsylvania no longer compensate adequately. Moreover, the data do not support the contention that an increase in the minimum amounts will cause large increases in premiums and uninsured rates. The authors conclude that compulsory minimum amounts should be periodically reviewed, as they are in the European Union, and that arguments about large increases in premiums and uninsured rates should be subjected to a careful review based on data
The Faulty Foundation of the Draft Restatement of Consumer Contracts
No full textProfessor Gregory Klass’s replication study of the Draft Restatement of the Law of Consumer Contract’s empirical analysis of privacy policies found troubling and pervasive problems with the Reporters’ coding of cases. We extended Professor Klass’s study with a replication of the coding of the two largest datasets supporting the Draft Restatement, those on the enforceability of unilateral contract modifications and those on the enforceability of clickwrap assent. For the replication, we reviewed 186 cases blind to the Reporters’ coding.We found that nearly two-thirds of the cases in the unilateral modification dataset were irrelevant to the hypothesis tested by the Reporters. The irrelevant cases included business-to-business cases, vacated and reversed decisions, a duplicate decision, and cases determined on statutory grounds specific to credit card agreements. The remaining relevant cases were atypical, almost entirely involving enforcement of arbitration clauses, express contractual clauses permitting unilateral modifications, or credit card agreements.Likewise, we found that nearly half of the cases in the clickwrap assent dataset were irrelevant to the Reporters’ tested hypothesis. The irrelevant cases included business-to-business cases, another duplicate decision, and cases with neither contracts nor clickwrap agreements. The overwhelming majority of the relevant cases involved the sui generis contexts of enforcement of arbitration clauses or forum selection clauses. Among such cases, we also found a materially higher rate of non-enforcement of clickwrap agreements than the Reporters found.Based on our attempt to replicate the Reporters’ coding, we lack confidence that the Draft Restatement correctly and accurately “restates” the law of consumer contracts
Professor William Lloyd Prosser (1898-1972)
No full textThe publication of Scholars of Tort Law marks the beginning of a long overdue rebalancing of private law scholarship. Instead of concentrating on judicial decisions and academic commentary only for what that commentary says about judicial decisions, the book explores the contributions of scholars of tort law in their own right. The work of a selection of leading scholars of tort law from across the common law world, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. By focusing on the work of influential tort scholars, the book serves to emphasize the importance of legal scholarship to the development of the common law more generally
