Periodical Summaries 2008-2014
Joshua P. Fershee, Facts, Fiction, and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth of Pennsylvania, 116 W. Va. L. Rev. 819 (2014): the author discusses "how assumed facts were used to justify the plurality opinion and concurrence" in the Pennsylvania Supreme Court's recent decision in Robinson Township v. Commonwealth. To the author, these facts include "sweeping . . . conclusions" about the negative effects and "inherently bad" nature of hydraulic fracturing along with the court's finding of no "minimal statewide protections" to regulate hydraulic fracturing. The author then discusses what the use of these facts means to the present and future of hydraulic fracturing in Pennsylvania and "suggests [a] narrow reading of the case" will produce a more "appropriate outcome" in state environmental regulation.
Katrina Liu, Reentering The City of Brotherly Love: Expanding Equal Protection For Ex-Offenders In Philadelphia, 22 Temp. Pol. & Civ. Rts. L. Rev. 175 (2012): the author discusses applying the standards of equal protection found within the Pennsylvania Constitution toward ex-offenders and allowing them to find employment after prison sentences.
W. Devin Wagstaff, Fractured Pennsylvania: An Analysis of Hydraulic Fracturing, Municipal Ordinances, and the Pennsylvania Oil and Gas Act, 20 N.Y.U. Envtl. L.J. 327 (2013): The author discusses whether the local ordinances of towns and municipalities effectively circumvent the Pennsylvania Oil and Gas Act. This article covers the law in Pennsylvania as of the time the complaint was filed for Robinson Township v. Commonwealth, which challenged the Oil and Gas Act of 2012.
Nathaniel I. Holland, Pennsylvania Oil and Gas Update, 19 Tex. Wesleyan L. Rev. 539 (2013): the author reviews the most recent caselaw relating to multiple areas of oil and gas law in Pennsylvania including preemption, ownership of mineral rights, "paying quantities," environmental issues, and lease termination.
Keith B. Hall, When do State Oil and Gas or Mining Statutes Preempt Local Regulations?, 27-WTR Nat. Resources & Env't 13 (2013): the author discusses the three different kinds of preemption in the context of the debate over how much control localities should have in protecting their local environment from natural resource extraction. He discusses the preemption of local ordinances in several states including Pennsylvania, and highlights the recent developments in Pennsylvania relating to the changes to the Oil and Gas Act and the subsequent lawsuit.
Joseph Iole, May Two Laws Occupy the Same Space at the Same Time? Understanding Pennsylvania Preemption Law in the Marcellus Shale Context, 6 Appalachian Nat. Resources L.J. 39 (2011): the author discusses the changes in Pennsylvania zoning laws that have taken place as drilling the Marcellus Shale has become a viable industry in Pennsylvania. He covers the developments in preemption law up to the most recent amendments to the Oil and Gas Act, but this article was published before the challenge to the law in Robinson Township v. Commonwealth.
John S. Summers, Rebecca S. Melly, The Court of Judicial Discipline: A Review of the the first Twenty Years, 84 Pa. B.A. Q. 1 (January 2013): the authors review the jurisprudence which has developed since the inception of the Court of Judicial Discipline as well as the role of the Judicial Conduct Board and the Court in judicial discipline in Pennsylvania.
Thomas G. Saylor, Fourth Amendment Departures and Sustainability in State Constitutionalism, 22 Widener L.J. 1 (2012): Justice Saylor discusses the sustainability of state constitutional departures in judicial federalism. As an example of the difficulties that can arise for state courts seeking to interpret their own constitution's parallel provision of a Federal Constitutional Right, he looks at the interpretation of Article I, Section 8 of the Pennsylvania Constitution, which has language substantially similar to that of the Fourth Amendment.
Matthew J Curran, A River Runs Through It, But Can You? Expanding Pennsylvania's Public Trust Doctrine to Encompass the Modern Trend of Recreational Navigability, 22 Widener L.J. 183 (2012): the author proposes an new navigability test to be used by Pennsylvania Courts in order to expand the definition of public water ways to be more consistent with how people use water ways. The Pennsylvania Constitution gives the public the right to enjoy public water ways, but it is not always clear which water ways are public and which are private.
George A. Huber and A. Everette James, The Intersection between Pike County and America's Healthcare Reform, 35-FEB Pa. Law 38 (Jan./Feb. 2013): after reviewing the history and up holding of the HUP test in Mesivtah Chaim of Bobov, Inc. v. Pike County Board of Assessment Appeals, 44 A.3d 3 (Pa. 2012), the authors discuss the issues that Pennsylvania Courts will have to asses when provisions of the Affordable Care Act will become effective, which require nonprofit hospitals to conduct a community health needs assessment. The authors argue that these assessments will transition the nonprofit hospitals from "traditional individual patient treatment roles to additional public, population health role, usually in the domain of government agencies," and this change will need to be addressed by the courts as it relates to relieving the government of some of its burden.
Dan Raichel, Between Huntley and Salem: The Current State of Municipal Authority in Pennsylvania to Affect Gas Drilling Through Zoning, 19 Buff. Envtl. L.J. (2011-2012): the author discusses limits on municipal regulation of zoning laws, specifically the extent to which municipalities can regulate gas drilling. The author explores the pre-emption risks for certain kinds of zoning controls. (This article does not deal with Act 13 and the subsequent litigation because the talk was given at a symposium that happened before Act 13 was passed on February 14. 2012.)
Karen M. Balaban, Keystones of Election Law: How a Stealth Candidate Remains Under the Radar, 21 Widener L.J. 161 (2011): highlights Commonwealth Court's interpretation of provisions of the Pennsylvania Election Code, including cases involving the constitutionality of law governing the election of judges to the Commonwealth Court.Tara M. Franklin, Done with Distracted Driving: Implications of Pennsylvania's Ban on Text-Based Communication While Driving Under the State Constitution, 117 Penn. St. L. Rev. 171 (Summer 2012): the author does an analysis of search and seizure law under Article I, Section 8 of the Pennsylvania Constitution and its possible application to likely scenarios under the new ban on text-based communication while driving. She highlights privacy concern inherent in a cell phone search, and proposes possible solutions that would be consistent with Pennsylvania case law balancing privacy and public safety.
Patricia Sweeney and Ryan Joyce, Gubernatorial Emergency Management Powers: Testing the Limits in Pennsylvania, 6 Pitt. J. Entvl. Pub. Health L. J. 149 (Spring 2012): the authors examine the scope of the powers of the governor to declare a state of emergency and what powers the executive has during the state of emergency. After examining the constitutional and statutory sources for this power, the authors conclude that, although the emergency powers of the governor are "extensive and wide-ranging," there are meaningful checks on that power. The checks on emergency management powers are the separation of powers doctrine, the power of the legislature to overturn a gubernatorial emergency declaration, the prospect of judicial review, and the limitation of suspension authority to "regulatory statutes" based in the text of the Emergency management Services Code.
Thomas G. Saylor, Power and Prerogative: Reflections on Judicial Suspension of Laws, 21 Widener L.J. 259 (2012): Justice Saylor reflects on the use of judicial suspension of laws by the Pennsylvania Supreme Court. He focuses on the wide area of overlap between matters of procedure and matters of substance. The Supreme Court has jurisdiction under the state constitution over procedural rules, regulation of the practice of law, and administration of the judicial system. The Supreme Court has treated this as an exclusive power even though the constitution does not make that explicit. Saylor examines how the judiciary branch could best protect their core functions while respecting the prerogatives of the other branches. He offers some broad guidelines for considering when judicial suspension of laws is appropriate: while the courts must always vigorously defend their core constitutional powers against actual threats, they should avoid being reflexive about the exclusivity of procedural powers; consider the interests and motivations of other branches of government; consider whether a challenged legislative measure actually impinges on a core judicial prerogative; and he encourages a more measured approach to the constitutional text itself.
Ashley Oakey, A Cautionary Tale for Municipalities Considering Chapter 9, 31-MAY Am. Bankr Inst. J. 44 (2012): The author uses the attempt by the City of Harrisburg to file for municipal bankruptcy in 2011 to show how difficult it is for a municipality to overcome the power a state has in determining how its cities are able to address their financial distress. The city raised both federal and state constitutional law claims, but failed with all claims to show that the municipality was eligible to file for bankruptcy. Relevant to state constitutional law was the finding of the United States Bankruptcy Court, Middle District of Pennsylvania that Act 26, which prevented third class cites from filing for bankruptcy even if they were "financially distressed" under Act 47, did not the violate Article III, Section 32 prohibition of special laws because Act 26 applied to all third class cities, not just Harrisburg.
Mary Whisner, Fifty More Constitutions, 104 Law Libr. J. 331 (Spring 2012): The author emphasizes the importance of researching state constitutional law for the practicing lawyer. She gives the example of how advocates for same-sex couples based their cases on distinctive provisions with in state constitutions. State supreme courts decides more cases each year based on state constitutional provisions than the Supreme Court of the Unites States does on the federal constitution, so it is essential for the practitioner to be aware of what is going on. She discusses some of the difficulties in researching this area of law as well as how libraries can help to develop resources.
The Pennsylvania Bar Association Quarterly, January, 2012, presents a Symposium Issue entitled, "Justice Unfunded--Justice Undone? Assuring Sustainable Funding for Our Courts". 83 Pa.B.A.Q.3 & 10.
The following articles deal primarily with issues parallel to those that arise in Pennsylvania:
Ann Kaluzavich, Police Officers' Exercise of Discretion in the Operation of Sobriety Checkpoints: The Need for Predetermined, Objective Guidelines for a Safe, Effective, and Constitutional Checkpoint: Commonwealth v. Worthy, 49 Duq. L. Rev. 545, 567 (2011): the author argues that the Pennsylvania Supreme Court's decision to uphold a roadblock subject to unfettered discretion by on-site police officers in Commonwealth v. Worthy, 957 A.2d 720 (Pa. 2008) prevented an opportunity to establish objective guidelines for Pennsylvania law enforcement and courts to use in setting up future roadblocks.
Jeffrey A. Parness, American State Constitutional Equalities, Gonzaga Law Review, Vol. 45, p. 773 (2009): the author argues that the Illinois Constitution's equal rights provision is superior to other states' equal rights provisions; specifically, it provides for self-executing rights, limited General Assembly authority, and regulations of private and public discrimination.
Jeffrey A. Parness, State Damage Caps and Separation of Powers, Penn State Law Review, Vol. 116 (2011): the article calls for a judicial rule-making approach (as opposed to a separation of powers approach) to issues involving state statutory damage caps.
Jeffrey A. Parness, Judicial Versus Legislative Authority after Lebron, Illinois Bar Journal, Vol. 98, p. 324 (2010): the article proposes that there will be heightened judicial scrutiny of statutes on attorney conduct, appellate practice, and jury decision-making after the Illinois Supreme Court invalidated statutory caps on noneconomic damages in medical negligence cases in Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (2010), rehearing denied (May 24, 2010).
Anyone interested in the Pennsylvania Constitution should read the recent Duquesne Law Review Pennsylvania Issue honoring the late Chief Justice Ralph Cappy. Vol. 47, No. 3.
For those interested in the current state of oil and gas law in Pennsylvania, a recent article written by John M. Smith, entitled “The Prodigal Son Returns: Oil and Gas Drillers Return to Pennsylvania with a Vengeance”, examines the current relationship between state and local regulation of the oil and gas industry and the need for increased local regulatory powers for purposes of Marcellus Shale production and development. 49 Duq. L. Rev. 1 (2011).
For a thorough summary of the environmental rights case law in Pennsylvania and other states with constitutions similar to Pennsylvania’s Constitution, see Michelle B. Mudd, A “Constant and Difficult Task”: Making Local Land Use Decisions in States with a Constitutional Right to a Healthful Environment, 38 Ecology L.Q. 1 (2011).
Darren M. Breslin, Judicial Merit-Retention Elections in Pennsylvania, 48 Duq. L. Rev. 891 (2010): the article tracks the history of retention election in Pennsylvania in light of the current debates over judicial selection.
Clifford E. Haines, Judicial Independence and Judicial Accountability: How Judicial Evaluations Can Support and Enhance Both, 48 Duq. L. Rev. 909 (2010): the article discusses the contribution that evaluations of judges by lawyers and other participants in the legal system can make to the quality and even independence of the judiciary.
Evelyn Brody, All Charities are Property-Tax Exempt, But Some Charities are More Exempt than Others, 44 New Eng. L. Rev. 621 (2010): the article discusses property tax exemption issues around the country and contains in an Appendix a fifty-one-jurisdiction review of state constitutions and caselaw relating to property tax exemption.
Nicole M. Santo, Delineating the Power of the Governor and the General Assembly with Respect to Appropriations in Pennsylania: an Analysis of Jubelirer v. Rendell, 19 Widener L. J. 421 (2010) examines the line item veto power of the Governor in the context deleting portions of an appropriation bill that define funding terms without vetoing the actual monetary figure that accompanies the language; Jubelirer limited the veto to monetary values and prohibited so-called "language only" disapprovals.
The Widener Law Journal has recently published an exchange on the history of the Pennsylvania Constitution's gun rights provision between Nathan Kozuskanich and co-authors David B. Kopel and Clayton E. Cramer. See 19 Widener L.J. 277, 321 and 343 (2010).
Jill Ambrose, Note. A Fourth Wave of Education Funding Litigation: How Education Standards and Costing-Out Studies Can Aid Plaintiffs in Pennsylvania and Beyond, 19 B.U. Pub. Int. L.J. 107 (2009): the author outlines a new possible litigation strategy to enforce Art. III, Section 14 of the Pennsylvania Constitution and analogous provisions in other states.
Christine O'Neill, Closing the Door on Positive Rights: State Court Use of the Political Question Doctrine to Deny Access to Educational Adequacy Claims, 42 Colum. J. L. & Soc. Probs. 545 (2009): discusses Pennsylvania caselaw along with that of other states.
Katrina C. Rowan, Anti-Exclusionary Zoning in Pennsylvania: A Weapon for Developers, a Loss for Low-Income Pennsylvanians, 80 Temp. L. Rev. 1271 (2007)--comment argues that the great need for affordable housing is not being met under Pennsylvania's unique anti-exclusionary zoning case law because the law focuses on property rights and land uses rather than classes of people and because developers manipulate the curative amendment process.
Colette L. Keilman, State Versus Local Legislation: Legitimizing the Process of Locating Gaming Facilities in Pennsylvania Gaming Control Board v. City Council of Philadelphia, 18 Widener L. J. 609 (2009).
Jason George Gottesman, Society Hill Civic Ass'n. v. Pennsylvania Gaming Control Board and the Requirement of Administrative Intervention as a Prerequisite to Standing Under the Pennsylvania Gaming Act, 18 Widener L. J. 579 (2009).
Carlton F.W. Larson, The Revolutionary American Jury: A Case Study of the 1778-1779 Philadelphia Treason Trials, 61 Southern Methodist University Law Review, 1441 (2008) Between September 1778 and April 1779, twenty-three men were tried in Philadelphia for high treason against the state of Pennsylvania. These trials were aggressively prosecuted by the state in an atmosphere of widespread popular hostility to opponents of the American Revolution. Philadelphia juries, however, convicted only four of these men, a low conviction rate even in an age of widespread jury lenity; moreover, in three of these four cases, the juries petitioned Pennsylvania's executive authority for clemency. Since it is unlikely that most of the defendants were factually innocent, these low conviction rates are a mystery that has never been adequately explained. The Article demonstrates, for the first time, how eighteenth-century American defense counsel creatively used peremptory challenges, deployed along religious, political, and economic lines, to create favorable juries, composed almost entirely of men who had previously served in treason cases.
Lynn A. Marks and Shira J. Goodman, Executive Director and Associate Director, respectively, of Pennsylvanians for Modern Courts, wrote an article for the The Legal Intelligencer, in favor of a constitutional amendment establishing merit selection of at least some members of the Pennsylvania judiciary, People Should Decide on Change of Judicial Selection Process, 1/6/2009 Legal Intelligencer 7.
Carlton F.W. Larson, The Revolutionary American Jury: A Case Study of the 1778-1779 Philadelphia Treason Trials, 61 SMU L. Rev 1441 (2008): recounts little known aspect of Pennsylvania legal history, the treason trials of Tories at the beginning of the Revolutionary War.