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Author: University of Pennsylvania Law Review

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Penn Law Review Online Essay Explores the Prudential Third-Party Standing of Family-Owned Corporations

A new essay by Matthew I. Hall and Benjamin Means, published by the University of Pennsylvania Law Review Online explores the prudential third-party standing of family-owned corporations.

On November 26, 2013, the Supreme Court agreed to decide whether for-profit corporations or their shareholders have standing to challenge federal regulations that implement the Patient Protection and Affordable Care Act (ACA). At issue in the two cases consolidated for appeal, Hobby Lobby andConestoga Wood Specialties, are regulations mandating that employers with fifty or more employees offer health insurance that includes coverage for all contraceptives approved by the Food and Drug Administration (FDA). The plaintiffs assert that providing certain types of contraceptive care would be contrary to their religious beliefs and allege, therefore, that the mandate violates the Religious Freedom Restoration Act of 1993 (RFRA) as well as the First Amendment’s Free Exercise Clause.

The government does not dispute that the family owners of Hobby Lobby and Conestoga Wood Specialties are sincere in their religious objections. However, the mandate applies only to employers and imposes no direct duties upon corporate shareholders. Thus, a threshold issue in these cases and dozens of other pending cases involving for-profit corporations is whether any plaintiff has standing to challenge the mandate. Some courts have concluded that religious objections to the mandate are simply nonjusticiable. Other courts have found standing, either by endorsing the novel proposition that a for-profit business corporation is, itself, a person capable of religious exercise, or by allowing individual owners who have no personal obligations or liability under the ACA’s mandate to nevertheless interpose a religious objection.

We offer the Court a way to resolve the cases before it that, unlike the approaches advocated by the parties, avoids the need to decide questions of first impression regarding the free exercise rights of for-profit corporations. Under well-established exceptions to the prudential rule against third-party standing, one party can sometimes assert the interests of a third party. Allowing Hobby Lobby and Conestoga Wood Specialties to litigate religious objections to the mandate on behalf of their shareholders obviates the need for the Court to venture into uncharted territory. The crucial insight is that the corporation’s injury need not be religious in nature for the religious objections to the ACA regulations to be adjudicated. So long as the corporate plaintiff is injured economically by the regulations, it has standing under Article III to challenge them. At that point, the corporation’s assertion of the constitutional or statutory rights of absent third parties is properly analyzed under the rubric of third-party standing.

As always, please visit pennlawreview.com to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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PENNumbra Essay Explores the Meaning of U.S. Citizenship under the Constitution

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In his essay Original Citizenship, Josh Blackman asks what the Constitution means when it refers to “citizen[s] of the United States.” Acknowledging the lack of guidance on the topic, Blackman looks to contemporary notions of citizenship, including the theories of birthright citizenship and “citizenship by election,” for help. In concluding that one could only become a citizen of the United States as of the Declaration of Independence, Blackman tracks early case law at critical points in the nation’s early history. He looks to treason cases, contested elections, and interpretations of Jay’s Treaty to determine that the only logical starting point for “original” citizenship must be the Declaration. Blackman’s piece is a much-needed contribution to a sparse area of scholarship and helps to lay the groundwork for future work on the implications of his findings.

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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Crooms & Sidhu Debate the Future of the United States Commission on Civil Rights

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In The Future of the U.S. Commission on Civil Rights, Professors Lisa Crooms and Dawinder Sidhu discuss the potential for expanding the mandate of the Commission. Professor Crooms opens by noting that suggestions to expand the Commission’s mandate to include human rights have been around for decades, and argues that such ideas are still worth adopting. She comments that the Commission would have to engage in extensive fact-finding in order to justify such an expansion. Professor Crooms raises further concerns over manipulation of the appointment process for commissioners, but that such manipulation has not necessarily jeopardized the Commission’s role. Indeed, she concludes that an expansion of the mandate to include human rights would aid the United States in meeting its treaty obligations and discourage the Commission from ignoring its vital role in responding to important equality issues, including those already within its core mandate.

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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PENNumbra Publishes Responses to Paying for Long-Term Performance

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Professors Lawrence Mitchell and Steven Kaplan respond to Lucian Bebchuk and Jesse Fried’s Article Paying for Long-Term Performance, which appeared in the Law Review earlier in 2010. In The Partner-Manager, Professor Mitchell (The George Washington University School of Law) praises their suggested executive compensation reforms and seeks to place those reforms in the larger context of the evolution of corporate management. He argues that excessive compensation is a recent phenomenon, and, as such, arguments that view it as “inevitable” must be viewed skeptically. He argues that the rise of the independent monitoring board of directors has created informational asymmetries and a power vacuum between the board and management, resulting in the rise of the “partner-manager” whose significant equity stake created the agency problems we see today. While Mitchell accepts that the Bebchuk-Fried reforms will help temper those incentives, he wonders whether they go to the heart of the problem, which he sees as corporate governance.

In Weak Solutions to an Illusory Problem, Professor Steven Kaplan (University of Chicago Booth School of Business) argues that the Bebchuk-Fried analysis is fundamentally flawed because it rests on incorrect assumptions about executive compensation. Kaplan points to empirical work by himself and others that suggests there may be no compensation problem at all. The studies he points to show that compensation tends to rise and fall with the market and that managers are, in fact, rewarded for good performance and punished for poor performance. Kaplan argues that, if anything, the Bebchuk-Fried proposals will add only marginal protections at a high cost: he suggests that their reforms will discourage top talent from serving as executives because it will become significantly riskier to serve at public companies, particularly when lucrative alternatives are available with private-equity-funded firms.

As always, please visit PENNumbra to read previous Essays, Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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Weisselberg & Bibas Debate the State of the Right to Remain Silent

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In The Right to Remain Silent, Professors Charles Weisselberg and Stephanos Bibas debate the state of the right to remain silent after the Supreme Court’s decision in Berghuis v. Thompkins, which held that a suspect in custody must affirmatively state her intent to remain silent in order to invoke that right. Professor Weisselberg (University of California, Berkeley School of Law) recounts the interrogation of Mr. Thompkins and argues that the majority in Thompkins rejected the fundamental underpinnings of Miranda’s prophylactic rule and established a new one that fails to protect the rights of suspects. Professor Bibas (University of Pennsylvania Law School) argues that the Court’s holding reflects a proper rejection of Miranda’s “failed experiment,” which ignored the Fifth Amendment’s compulsion requirement and did not establish adequate safeguards for the innocent suspects who need them. He posits that the tougher question is how to reform the system so that it does protect those parties, and he further suggests that videotaping all interrogations would go a long way toward ensuring confessions that are free from compulsion.

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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PENNumbra Hosts Debate on the Argument for Same-Sex Marriage

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The Argument for Same-Sex Marriage

In PENNumbra’s debate on same-sex marriage, Professors Nelson Tebbe and Deborah Widiss revisit their argument that equal access, and not equal protection or substantive due process, is the legal theory most likely to lead to a successful recognition of a constitutional right to same-sex marriage. Professor Shannon Gilreath steps back from the current controversy to assess whether same-sex marriage is desirable at all, suggesting that problems inherent in the institution itself, as well as the risks same-sex marriages pose to gay and lesbian cultural identities, should prompt its proponents to reconsider marriage’s prominent place in the ongoing push for equality.

Read the full Debate here: http://pennumbra.com/debates/debate.php?did=37

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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PENNumbra Essay Examines Whether Uniform Laws Truly Provide Uniformity

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A Failure of Uniform Laws?

One of the main purported benefits of uniform codes is that states adopting them have access to a pre-existing body of law to aid in their interpretation (i.e., the judicial opinions of sister states). In A Failure of Uniform Laws?, Professor Michael Risch tests the viability of this assumption through an empirical analysis of West Virginia, which along with forty-six other states, has adopted the Uniform Trade Secrets Act. Risch finds that West Virginia courts interpreting the UTSA do not rely on sister-state courts, but instead on common-law and treatise-based interpretations. Risch’s Essay is a preliminary exploration of whether the UTSA is providing the uniformity touted by its proponents, to be followed by a more comprehensive geographical study.

Read the full Essay here: http://pennumbra.com/essays/essay.php?eid=1

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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Chafetz & Gerhardt Debate the Constitutionality of the Filibuster

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Is the Filibuster Constitutional?

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of—and thanks to—the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable. The Senate Rules Committee plans to address the issue of filibuster reform shortly.

In Is the Filibuster Constitutional?, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the cloture rules represent an unconstitutional principle of entrenchment and highlights the absurdity by analogizing to a hypothetical rule requiring a supermajority to unseat an incumbent senator, which would surely not be tolerated. Chafetz concludes that historical practice fails to justify obstructionist tactics and that any constitutionally conscientious senator has a duty to reject the filibuster as it currently operates.

Professor Gerhardt attributes the Senate’s behavior to the lack of a majority committed to curtailing abuses of Senate procedure. He argues that the weaknesses of the traditional arguments against the filibuster underscore the filibuster’s inherent constitutionality. Gerhardt points out that a majority of Senate seats is never subject to election at the same time and that the Constitution does not forbid, but instead expressly permits, the Senate to draft internal procedures. Failing to find an anti-entrenchment principle implied in the constitutional scheme, Gerhardt groups the filibuster with other Senate traditions—such as holds and bitter partisanship—and finds that the solution to unsatisfactory behavior in the legislature is, and always has been, accountability at the ballot box.

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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PENNumbra publishes responses to The Inexorable Radicalization of Textualism

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This issue contains responses to The Inexorable Radicalization of Textualism by Jonathan R. Siegel.

In The Inexorable Radicalization of Textualism, Professor Jonathan Siegel argues that textualism differs fundamentally from intentionalism and purposivism, and that the gap between them gets wider with time. Siegel concludes that textualism inexorably radicalizes itself as textualists gradually realize that their axiom—the statutory text is the law—compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together. As a result, Siegel finds that textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.

In Opportunistic Textualism, Professor Lawrence Solan argues that while Professor Siegel expresses reasonable concern about the consequences of carrying textualism to its logical extreme, “it is virtually impossible to be a textualist on the ground.” Because judges are inclined to relax their embrace of formalism in favor of other values, the extreme results that Siegel fears cannot be consistently realized. Solan looks to the example of radical textualism that Siegel offers: a rigid dissent by Judge Bybee from a Ninth Circuit decision correcting a clear statutory drafting error. Solan points out that Judge Bybee has been willing to look to legislative history, intent, and statutory purpose in a variety of other areas, and that even the staunchest textualists speak of legislative intent when resolving ambiguous statutes. Solan closes by acknowledging that formalism, like other canons of construction, has been used opportunistically to reach results driven primarily by ideology. Though he shares Professor Siegel’s concerns about some of the cases discussed in The Inexorable Radicalization of Textualism, he concludes that those results do not represent a radical or inevitable movement toward “law without mind.”

In Is Textualism Doomed?, Professor Ilya Somin counters Professor Siegel’s argument that textualism is ultimately doomed to irrelevance because its “inexorable radicalization . . . will cause it to lose the interpretation wars.” Somin contends that Siegel’s normative critique of textualism and positive prediction about its future are overdrawn. In Part I, Professor Somin shows that adherence to text does not inevitably lead to absurd and extreme results. In Part II, Somin claims that Siegel has understated the importance of textual ambiguity. He argues that when faced with an ambiguous text, resorting to extrinsic evidence of meaning is entirely consistent with textualist premises and may sometimes even be required by them. In Part III, Somin finds that textualism is here to stay, and will not “work itself pure” as Siegel has argued. Somin concludes by reasoning that because federal judges are not as interested in “grand theories of interpretation” and methodological consistency as academics are, they will not take textualism to its logical extreme.

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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PENNumbra publishes responses to The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws

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This issue contains responses to The River Runs Dry:  When Title VI Trumps State Anti–Affirmative Action Laws by Kimberly West-Faulcon.

In The River Runs Dry:  When Title VI Trumps State Anti–Affirmative Action Laws, Professor Kimberly West-Faulcon considers whether universities that completely abolish affirmative action to comply with state anti–affirmative action initiatives may actually be breaking the law with respect to Title VI. Using statistical tests for identifying Title VI disparate impact, she analyzes selective California and Washington public university admissions cycles after the enactment of anti–affirmative action laws and finds racial disparities in admissions to affirmative action–less universities of sufficient magnitude that, if unjustified, could establish that an institution has a compelling interest in considering race to comply with federal antidiscrimination law. Based on this analysis, she concludes that state anti–affirmative action laws may permit the consideration of race if undertaken to remedy federal “racial effect discrimination.”

In Do We Care Enough About Racial Inequality? Reflections on The River Runs Dry, Professor Guy-Uriel Charles asserts that while West-Faulcon has provided an apt legal tool to address racial inequality in education, the problem is not a lack of legal tools but the failure of the legal system to recognize the dignity of people of color in constitutional analysis. Charles argues that legal academics need to make not just legal arguments but a renewed case why we ought to care about racial inequality.

In Doctrinal Dilemma, Professor Girardeau Spann describes West-Faulcon’s argument as both analytically sound and enticingly clever but demonstrates that doctrinal arguments can likewise be developed by socially powerful opponents that are cogent enough to evade West-Faulcon’s conclusions. Consequently, Spann argues that legal scholars seeking to promote racial justice confront a serious dilemma: continue to make doctrinal arguments and reinforce the legitimacy of a social system that uses law as a tool for the continued oppression of racial minorities; or stop participating and risk losing those sporadic concession that even an oppressive social system must occasionally make to prevent bottled-up frustrations from ripening into serious threats of destabilizing change.

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.