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Articles 1 - 30 of 33
Full-Text Articles in Entire DC Network
Legal Reform In Contemporary Japan, Eric Feldman
Legal Reform In Contemporary Japan, Eric Feldman
All Faculty Scholarship
In this chapter I offer a preliminary assessment of a quickly moving target—legal reform and its impact on rights in Japan. Although a broad consensus has emerged among interested parties that at least some degree of reform is desirable, there is significant disagreement about the goals of reform, and also about the likelihood that it will achieve certain objectives. Some commentators believe that the Japanese legal system is on the cusp of a “revolution” that will shore up long-neglected rights and create new entitlements. Others predict that the consequences of reform will be modest; and they despair that aggrieved individuals …
Codifying Shari'a: International Norms, Legality & The Freedom To Invent New Forms, Paul H. Robinson, Adnan Zulfiqar, Margaret Kammerud, Michael Orchowski, Elizabeth A. Gerlach, Adam L. Pollock, Thomas M. O'Brien, John C. Lin, Tom Stenson, Negar Katirai, J. John Lee, Marc Aaron Melzer
Codifying Shari'a: International Norms, Legality & The Freedom To Invent New Forms, Paul H. Robinson, Adnan Zulfiqar, Margaret Kammerud, Michael Orchowski, Elizabeth A. Gerlach, Adam L. Pollock, Thomas M. O'Brien, John C. Lin, Tom Stenson, Negar Katirai, J. John Lee, Marc Aaron Melzer
All Faculty Scholarship
The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system …
Exploding The Class Action Agency Costs Myth: The Social Utility Of Entrepreneurial Lawyers, Myriam Gilles, Gary B. Friedman
Exploding The Class Action Agency Costs Myth: The Social Utility Of Entrepreneurial Lawyers, Myriam Gilles, Gary B. Friedman
University of Pennsylvania Law Review
No abstract provided.
Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas
Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas
All Faculty Scholarship
This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge …
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
All Faculty Scholarship
Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories of …
Answering Lara's Call: May Congress Place Nonmember Indians Within Tribal Jurisdiction Without Running Afoul Of Equal Protection Or Due Process Requirements?, Eric Wolpin
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Constitutional Limitations On The Expansion Of Involuntary Civil Commitment For Violent And Dangerous Offenders, Justin Engel
Constitutional Limitations On The Expansion Of Involuntary Civil Commitment For Violent And Dangerous Offenders, Justin Engel
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Christianity And The (Modest) Rule Of Law, David A. Skeel Jr., William J. Stuntz
Christianity And The (Modest) Rule Of Law, David A. Skeel Jr., William J. Stuntz
All Faculty Scholarship
Conservative Christians are often accused, justifiably, of trying to impose their moral views on the rest of the population: of trying to equate God's law with man's law. In this essay, we try to answer the question whether that equation is consistent with Christianity. It isn't. Christian doctrines of creation and the fall imply the basic protections associated with the rule of law. But the moral law as defined in the Sermon on the Mount is flatly inconsistent with those protections. The most plausible inference to draw from those two conclusions is that the moral law - God's law - …
The Rehnquist Court's Fifth Amendment Incrementalism, Stephanos Bibas
The Rehnquist Court's Fifth Amendment Incrementalism, Stephanos Bibas
Articles
No abstract provided.
The Next "New Wave": Law Genre Documentaries, Lawyering In Support Of The Creative Process, And Visual Legal Advocacy, Regina Austin
The Next "New Wave": Law Genre Documentaries, Lawyering In Support Of The Creative Process, And Visual Legal Advocacy, Regina Austin
All Faculty Scholarship
Unlike law-related feature films, law-related documentary or nonfiction films have rarely been the subject of legal scholarship, nor have they been extensively used as teaching tools throughout the law school curriculum. The lack of interest in such films is explained by a number of popular misconceptions about documentaries, such as their “genre-lessness” or the lack of common threads running through the films that facilitate critical reception; the elusive nature of documentary truth; the films’ fixation on victimization and by necessity the exploitation of the films’ subjects; and the lack of practical payoff for law students and lawyers from critically studying …
The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter
The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter
All Faculty Scholarship
No abstract provided.
The Background Check Balancing Act: Protecting Applicants With Criminal Convictions While Encouraging Criminal Background Checks In Hiring, Elizabeth A. Gerlach
The Background Check Balancing Act: Protecting Applicants With Criminal Convictions While Encouraging Criminal Background Checks In Hiring, Elizabeth A. Gerlach
University of Pennsylvania Journal of Business Law
No abstract provided.
Transparency And Participation In Criminal Procedure, Stephanos Bibas
Transparency And Participation In Criminal Procedure, Stephanos Bibas
All Faculty Scholarship
The insiders who run the criminal justice system–judges, police, and especially prosecutors–have information, power, and self-interests that greatly influence the criminal justice process and outcomes. Outsiders–crime victims, bystanders, and most of the general public–find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result, a spiral ensues: insiders twist rules as they see fit, outsiders try to constrain them, and insiders find new ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law’s substantive goals. The gulf clouds …
Assessing Chief Justice William Rehnquist, Erwin Chemerinsky
Assessing Chief Justice William Rehnquist, Erwin Chemerinsky
University of Pennsylvania Law Review
No abstract provided.
Protecting Laws Designed To Remedy Anti-Gay Discrimination From Equal Protection Challenges: The Desireability Of Rational Basis Scrutiny, Erik K. Ludwig
Protecting Laws Designed To Remedy Anti-Gay Discrimination From Equal Protection Challenges: The Desireability Of Rational Basis Scrutiny, Erik K. Ludwig
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Forgotten Constitutional Law Of Treason And The Enemy Combatant Problem, Carlton F.W. Larson
The Forgotten Constitutional Law Of Treason And The Enemy Combatant Problem, Carlton F.W. Larson
University of Pennsylvania Law Review
No abstract provided.
Can $1 Buy Constitutionality?: The Effect Of Nomincal Punitive Damages On The Prison Litigation Reform Act's Physical Injury Requirement, Allison Cohn
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Using Parole To Constitutionally Reconcile The Criminal Punishment Goals Of Desert And Incapacitation, Adam L. Pollock
Using Parole To Constitutionally Reconcile The Criminal Punishment Goals Of Desert And Incapacitation, Adam L. Pollock
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Christianity And The (Modest) Rule Of Law, David A. Skeel Jr., William J. Stuntz
Christianity And The (Modest) Rule Of Law, David A. Skeel Jr., William J. Stuntz
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Connectedness And Its Discontents, Dan Markel
Connectedness And Its Discontents, Dan Markel
University of Pennsylvania Law Review Online
No abstract provided.
Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse
Addiction, Genetics, And Criminal Responsibility, Stephen J. Morse
All Faculty Scholarship
No abstract provided.
A Reckless Response To Rape: A Reply To Ayres And Baker, Kimberly Kessler Ferzan
A Reckless Response To Rape: A Reply To Ayres And Baker, Kimberly Kessler Ferzan
All Faculty Scholarship
In a recent article in the University of Chicago Law Review, Professors Ian Ayres and Katharine Baker propose the crime of "reckless sexual conduct," criminalizing unprotected first-encounter sexual intercourse. The goals of this proposal are to combat the epidemic of sexually transmitted diseases by requiring condom use and to reduce acquaintance rape by "forcing" communication. While the goals are admirable, the proposal is deeply flawed. As public health legislation, it is overinclusive, thereby punishing the morally innocent, and its conception of consent as an affirmative defense fundamentally misunderstands criminal responsibility. As rape reform, which is arguably the true aim of …
Restorative Processes & Doing Justice, Paul H. Robinson
Restorative Processes & Doing Justice, Paul H. Robinson
All Faculty Scholarship
This essay argues that, while many restorative processes are quite valuable, there is the potential for their use to produce results that conflict with the community's shared intuitions of justice and to thereby undermine the criminal law's moral credibility. Because such moral credibility can have practical crime-control value, it ought not be undermined unless the crime-control benefits of doing so clearly outweigh the costs. In practice, it is entirely possible to rely upon restorative processes in ways that avoid injustice and that assure justice is done.
Alternative Career Resolution Ii: Changing The Tenure Of Supreme Court Justices, Stephen B. Burbank
Alternative Career Resolution Ii: Changing The Tenure Of Supreme Court Justices, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Final Report Of The Maldivian Penal Law & Sentencing Codification Project: Text Of Draft Code (Volume 1) And Official Commentary (Volume 2), Paul H. Robinson, Criminal Law Research Group -- University Of Pennsylvania
Final Report Of The Maldivian Penal Law & Sentencing Codification Project: Text Of Draft Code (Volume 1) And Official Commentary (Volume 2), Paul H. Robinson, Criminal Law Research Group -- University Of Pennsylvania
All Faculty Scholarship
The United Nations Development Programme and the Government of the Maldives commissioned the drafting of a penal code based upon existing Maldivian law, which meant primarily a codification of Shari'a. This is the Final Report of that codification project. A description of the process that produced this Report and the drafting principles behind it, as well as a discussion of the special challenges of codifying Islamic criminal law, are contained in an article at http://ssrn.com/abstract=941443.
Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman
Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman
All Faculty Scholarship
For generations, criminal law theorists, moral and political philosophers, and economists have struggled to resolve one of the law's great puzzles: whether, why, and under what circumstances the law should criminalize the conditional threat to do what is lawful. This is the so-called paradox of blackmail. Although libertarians have insisted that blackmail should be lawful, most commentators agree that at least some forms of blackmail are properly criminalized, disagreeing over the proper rationale. In his provocative article, Meta-blackmail, Russell Christopher presents a wholly novel argument in support of the libertarian conclusion. Christopher's argument relies upon the imaginary device of a …
Foreword (Documentaries & The Law Symposium Issue): Engaging Documentaries Seriously, Regina Austin
Foreword (Documentaries & The Law Symposium Issue): Engaging Documentaries Seriously, Regina Austin
All Faculty Scholarship
No abstract provided.
Invoking The Penalty: How Florida's Felon Disenfranchisement Law Violates The Constitutional Requirement Of Population Equality In Congressional Representation, And What To Do About It, Katherine Shaw
Articles
No abstract provided.
Deriving Support From International Law For The Right To Counsel In Civil Cases, Sarah Paoletti
Deriving Support From International Law For The Right To Counsel In Civil Cases, Sarah Paoletti
All Faculty Scholarship
No abstract provided.
Labor's Fragile Freedom Of Association Post-9/11, Ruben J. Garcia
Labor's Fragile Freedom Of Association Post-9/11, Ruben J. Garcia
University of Pennsylvania Journal of Business Law
No abstract provided.