Law Commons^™

Why Aim Law Toward Human Survival, John William Draper

Librarian Scholarship at Penn Law

Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.

If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.

There is no better choice. You and all your relatives have rights. The …

Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman

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For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

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The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb

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The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby …

Proportionality, Constraint, And Culpability, Mitchell N. Berman

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Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones. This essay proposes that these differences cannot be successfully adjudicated, and one …

A Truce In Criminal Law's Distributive Principle Wars?, Paul H. Robinson

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Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs.

It is argued here that the two are in fact reconcilable, in a fashion. …

Against The Received Wisdom: Why The Criminal Justice System Should Give Kids A Break, Stephen J. Morse

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Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about …

Autonomy, Gideon Parchomovsky, Alex Stein

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Personal autonomy is a constitutive element of all rights. It confers upon a rightholder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a rightholder of a choice that was rightfully hers — the choice as to how to go about her life.

Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a rightholder without securing her permission or, worse, …

Going "Clear", Ryan D. Doerfler

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This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words, …

Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters

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After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in other work …

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

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Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …

The Genius Of Common Law Intellectual Property, Shyamkrishna Balganesh

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Among Richard Epstein’s influential contributions to legal scholarship over the years is his writing on common law intellectual property. In it, we see Epstein’s attempt to meld the innate logic of the common law’s conceptual structure with the realities of the modern information economy. Common law intellectual property refers to different judge made causes of action that create forms of exclusive rights and privileges in intangibles, interferences with which are then rendered enforceable through private liability. In this Essay, I examine Epstein’s writing on two such doctrines: “hot news misappropriation” and “cyber-trespass”, which embraces several important ideas that modern discussions …

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Law

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …

Judicious Imprisonment, Gregory Jay Hall

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Starting August 21, 2018, Americans incarcerated across the United States have been striking back — non-violently. Inmates with jobs are protesting slave-like wages through worker strikes and sit-ins. Inmates also call for an end to racial disparities and an increase in rehabilitation programs. Even more surprisingly, many inmates have begun hunger strikes. Inmates are protesting the numerous ills of prisons: overcrowding, inadequate health care, abysmal mental health care contributing to inmate suicide, violence, disenfranchisement of inmates, and more. While recent reforms have slightly decreased mass incarceration, the current White House administration could likely reverse this trend. President Donald Trump’s and …

Defending Honor And Beyond: Reconsidering The Relationship Between Seemingly Futile Defense And Permissible Harming, Kimberly Kessler Ferzan

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In Helen Frowe's book, Defensive Killing, she argues that some cases of seemingly futile self-defense are actually instances of justifiable defense of the victim's honor. This paper explores Frowe's claim, first by isolating the central cases and then by examining her rejection of punitive reasons. From there, the paper examines Frowe's understanding of "defense of honor," ultimately suggesting that Frowe's conception is best construed as action that has expressive, but not defensive, value. From there, I turn to two more general puzzles. First, what if the defender mistakenly believes that she can successfully defend and acts for that reason, …

Our Principled Constitution, Mitchell N. Berman

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Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …

Findlay Stark, Culpable Carelessness: Recklessness And Negligence In The Criminal Law, Cambridge: Cambridge University Press, 2016, Kimberly Kessler Ferzan

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Culpable Carelessness by Findlay Stark is a careful and considered contribution to the 'punishment for negligence' debate. As well as providing a comprehensive overview of the doctrinal and theoretical aspects of recklessness and negligence in the criminal law, it also offers novel insights for scholars already steeped in these debates. An additional methodological strength is that Stark takes seriously the connection between theory and law, offering useful potential jury instructions on recklessness and negligence.

Probing The Depths Of The Responsible Corporate Officer's Duty, Kimberly Kessler Ferzan

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Many criminal law scholars have criticized the Responsible Corporate Officer Doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the Responsible Corporate Officer Doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, …

Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan

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Many retributivists maintain that when a defendant commits an offense, (1) the defendant forfeits rights against punishment and (2) it is intrinsically good for the defendant to get the punishment he deserves. Self-defense theorists often maintain that when certain conditions are met, (1) an aggressor forfeits his rights against defensive force and (2) the aggressor may be harmed instrumentally to prevent his attack. In the context of a symposium on Uwe Steinhoff’s "Just War Theory," this paper examines the intersection of defense and desert. First, may desert and defense be aggregated when, for instance, the amount of harm that is …

Patty Hearst Reconsidered: Personal Identity In The Criminal Law, Kimberly Kessler Ferzan

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In this contribution to a symposium celebrating Joshua Dressler, I revisit the Dressler/Delgado debate over Patty Hearst through the prism of personal identity. After reviewing why personal identity presents a problem for punishment, I discuss how a "personal identity" defense would fit within the criminal law, including when it would undermine status responsibility, when it would undermine a voluntary act, and when it would serve as an excuse.

Arguing With Friends, William Baude, Ryan D. Doerfler

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It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive …

Consent And Coercion, Kimberly Kessler Ferzan

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There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari’s behavior on a date. Whereas some commentators condemned Ansari’s behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent.

This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the …

The Inevitability And Ubiquity Of Cycling In All Feasible Legal Regimes: A Formal Proof, Leo Katz, Alvaro Sandroni

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Intransitive choices, or cycling, are generally held to be the mark of irrationality. When a set of rules engenders such choices, it is usually held to be irrational and in need of reform. In this article, we prove a series of theorems, demonstrating that all feasible legal regimes are going to be rife with cycling. Our first result, the legal cycling theorem, shows that unless a legal system meets some extremely restrictive conditions, it will lead to cycling. The discussion that follows, along with our second result, the combination theorem, shows exactly why these conditions are almost impossible to meet. …

Pretrial Detention And Bail, Megan Stevenson, Sandra G. Mayson

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Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who …

High-Stakes Interpretation, Ryan D. Doerfler

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Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to regard …

The Tragedy Of Justice Scalia, Mitchell N. Berman

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Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of …

Bruised Soul Of The Artist: A Tribute To Sheldon W. Halpern, Anita L. Allen

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In an unusual case, Scottish-born painter Peter Doig was accused of wrongfully denying the authenticity of a painting he insisted he did not paint, to the financial detriment of the work’s owner. Doig won the case against him, which commenced in 2013 and continued for three years. United States District Judge Gary Feinerman ultimately ruled that the evidence presented in a week-long trial proved “conclusively” that Doig did not paint the plaintiff owner’s painting. The case raised concerns about whether a living artist should ever be required by law to authenticate a work of art ascribed to him or her …

How To Think (Like A Lawyer) About Rape, Kimberly Kessler Ferzan, Peter K. Westen

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From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when we use “consent” to mean two different things and the question of whether …

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

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Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply …

Human Survival, Risk, And Law: Considering Risk Filters To Replace Cost-Benefit Analysis, John William Draper

Librarian Scholarship at Penn Law

Selfish utilitarianism, neo-classical economics, the directive of short-term income maximization, and the decision tool of cost-benefit analysis fail to protect our species from the significant risks of too much consumption, pollution, or population. For a longer-term survival, humanity needs to employ more than cost-justified precaution.

This article argues that, at the global level, and by extension at all levels of government, we need to replace neo-classical economics with filters for safety and feasibility to regulate against significant risk. For significant risks, especially those that are irreversible, we need decision tools that will protect humanity at all scales. This article describes …