Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Law and Society

Series

Institution
Keyword
Publication Year
Publication
File Type

Articles 1 - 30 of 3707

Full-Text Articles in Law

Are We Responsible For Who We Are? Indoctrination And Social Influence As A Defense To Crime, Paul H. Robinson, Lindsay Holcomb Feb 2020

Are We Responsible For Who We Are? Indoctrination And Social Influence As A Defense To Crime, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Law

A patriotic POW is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he had not ...


The Cost Of Doing Business: Corporate Crime And Punishment Post-Crisis, Dorothy S. Lund, Natasha Sarin Feb 2020

The Cost Of Doing Business: Corporate Crime And Punishment Post-Crisis, Dorothy S. Lund, Natasha Sarin

Faculty Scholarship at Penn Law

For many years, law and economics scholars, as well as politicians and regulators, have debated whether corporate criminal enforcement overdeters beneficial corporate activity or in the alternative, lets corporate criminals off too easily. This debate has recently expanded in its polarization: On the one hand, academics, judges, and politicians have excoriated the DOJ for failing to send guilty bankers to jail in the wake of the financial crisis; on the other, the DOJ has since relaxed policies aimed to secure individual lability and reduced the size of fines and number of prosecutions.

A crucial and yet understudied piece of evidence ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Feb 2020

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with ...


Social Science And The Analysis Of Environmental Policy, Cary Coglianese, Shana Starobin Feb 2020

Social Science And The Analysis Of Environmental Policy, Cary Coglianese, Shana Starobin

Faculty Scholarship at Penn Law

As much as environmental problems manifest themselves as problems with the natural environment, environmental problems--and their solutions--are ultimately social and behavioral in nature. Just as the natural sciences provide a basis for understanding the need for environmental policy and informing its design, the social sciences also contribute in significant ways to the understanding of the behavioral sources of environmental problems, both in terms of individual incentives and collective action challenges. In addition, the social sciences have contributed much to the understanding of the ways that laws and other institutions can be designed to solve environmental problems. In this paper, we ...


A Truce In The Criminal Law Distributive Principle Wars?, Paul H. Robinson Feb 2020

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

Faculty Scholarship at Penn Law

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 ...


How Criminal Code Drafting Form Can Restrain Prosecutorial And Legislative Excesses: Consolidated Offense Drafting, Paul H. Robinson, Matthew Kussmaul, Muhammad Sarahne Feb 2020

How Criminal Code Drafting Form Can Restrain Prosecutorial And Legislative Excesses: Consolidated Offense Drafting, Paul H. Robinson, Matthew Kussmaul, Muhammad Sarahne

Faculty Scholarship at Penn Law

Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses.

After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay ...


From Tax Policy To Social Insurance, Edward D. Kleinbard Jan 2020

From Tax Policy To Social Insurance, Edward D. Kleinbard

University of Southern California Legal Studies Working Paper Series

This presentation was delivered to the Tax Section of the New York State Bar Association in January 2020. It first briefly reviews important current tax policy issues, and shows that the income tax has plenty of headroom to accommodate higher tax revenues: “Personal Income,” the government’s broadest measure of household income, is $6 trillion higher than aggregate Adjusted Gross Incomes.

The presentation then pulls back its focus to poverty and middle class life. It argues that education is the engine of economic opportunity, but the United States dishonors the principle of equality of opportunity by its unique reliance on ...


Champions For Justice 2020, Roger Williams University School Of Law Jan 2020

Champions For Justice 2020, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


Do Bans Help Modern Public Health?, Lawrence O. Gostin Jan 2020

Do Bans Help Modern Public Health?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

A century ago, the 18th Amendment to the United States Constitution went into effect, banning the “manufacture, sale, or transportation of intoxicating liquors.” Fourteen years after its ratification, the 18th Amendment was repealed by the 21st Amendment. What did Prohibition teach us about banning hazardous products like alcohol, tobacco, or e-cigarettes?


Separation Of Powers, Partisanship And Impeachment: How Can We Overcome The Partisan Propaganda?, John M. Greabe Jan 2020

Separation Of Powers, Partisanship And Impeachment: How Can We Overcome The Partisan Propaganda?, John M. Greabe

Law Faculty Scholarship

[excerpt] "Our Constitutional system divides power horizontally, among the three branches of the federal government, and vertically, between the federal government and the states. We refer to the former division as our "separation of powers" and the latter as our "federalism."


Google V. Oracle Amicus Merits Stage Brief: Vindicating Ip’S Channeling Principle And Restoring Jurisdictional Balance To Software Copyright Protection, Peter Menell, David Nimmer, Shyamkrishna Balganesh Jan 2020

Google V. Oracle Amicus Merits Stage Brief: Vindicating Ip’S Channeling Principle And Restoring Jurisdictional Balance To Software Copyright Protection, Peter Menell, David Nimmer, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

The Federal Circuit’s decisions in Oracle v. Google conflict with this Court’s seminal decision in Baker v. Selden, 101 U.S. 99 (1879), misinterpret Congress’s codification of this Court’s fundamental channeling principle and related limiting doctrines, and upend nearly three decades of sound, well-settled, and critically important decisions of multiple regional circuits on the scope of copyright protection for computer software. Based on the fundamental channeling principle enunciated in Baker v. Selden, as reflected in § 102(b) of the Copyright Act, the functional requirements of APIs for computer systems and devices, like the internal workings of ...


Privative Copyright, Shyamkrishna Balganesh Jan 2020

Privative Copyright, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright ...


The Uncertain Stewardship Potential Of Index Funds, Jill E. Fisch Jan 2020

The Uncertain Stewardship Potential Of Index Funds, Jill E. Fisch

Faculty Scholarship at Penn Law

Regulators and commentators around the world are increasingly demanding that institutional investors engage in stewardship with respect to their portfolio companies. Further, the demand for stewardship has broadened from an expectation that investors engage to reduce agency costs and promote economic value to a call for investors to demand that companies serve a broader range of societal interests and objectives. This chapter considers calls for stewardship in the context of the U.S. capital markets specifically as applied to index funds. It argues that, irrespective of the merits of institutional stewardship generally, the structure of index funds and the business ...


Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson Jan 2020

Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson

Faculty Scholarship at Penn Law

In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering ...


Christianity And Bankruptcy, David A. Skeel Jr. Dec 2019

Christianity And Bankruptcy, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Although the term “bankruptcy” is nowhere to be found in the Bible, debt and the consequences of default are a major theme both in the Hebrew Bible and in the New Testament. In Israel, as in the ancient Near East generally, a debtor who defaulted on his obligations was often sold into slavery or servitude. Biblical law moderated the harshness of this system by prohibiting Israelites from charging interest on loans to one another, thus diminishing the risk of default, and by requiring the release of slaves after seven years of service. Jesus alluded to the lending laws at least ...


Brief Of Professors Of Law, Us V. Bergdahl, Joshua E. Kastenberg, Rachel E. Vanlandingham, Geoffrey S. Corn Dec 2019

Brief Of Professors Of Law, Us V. Bergdahl, Joshua E. Kastenberg, Rachel E. Vanlandingham, Geoffrey S. Corn

Faculty Scholarship

When scrutinizing executive actions for unlawful command influence, this Court must account for a president’s immense power over the military. The extant judicial test for unlawful command influence – a violation of due process in the military setting – is a contextual one, and hence must consider the unique and unparalleled authority of the Commander-In-Chief over the military and individual service-members when the president’s actions are at issue. This executive power should also be evaluated in light of its myriad, and historically important, constitutional and statutory constraints – some predating the birth of the United States – that appropriately continue to shape ...


Law School News: Broadening The Perspective 12/04/2019, Michael M. Bowden Dec 2019

Law School News: Broadening The Perspective 12/04/2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Still Writing At The Master’S Table: Decolonizing Rhetoric In Legal Writing For A “Woke” Legal Academy, 21 The Scholar 255 (2019), Teri A. Mcmurtry-Chubb Dec 2019

Still Writing At The Master’S Table: Decolonizing Rhetoric In Legal Writing For A “Woke” Legal Academy, 21 The Scholar 255 (2019), Teri A. Mcmurtry-Chubb

UIC John Marshall Law School Open Access Faculty Scholarship

No abstract provided.


In Search Of The Common Law Inside The Black Female Body, 114 Nw. U.L. Rev. Online 187 (2019), Teri A. Mcmurtry-Chubb Dec 2019

In Search Of The Common Law Inside The Black Female Body, 114 Nw. U.L. Rev. Online 187 (2019), Teri A. Mcmurtry-Chubb

UIC John Marshall Law School Open Access Faculty Scholarship

No abstract provided.


Law School News: Tough Talk On Asylum 11/22/2019, Michael M. Bowden Nov 2019

Law School News: Tough Talk On Asylum 11/22/2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden Nov 2019

Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.


Law School News: Aals Honors Barron With Major Pro Bono Award 11/14/2019, Michael M. Bowden Nov 2019

Law School News: Aals Honors Barron With Major Pro Bono Award 11/14/2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Dean's Desk: Students Find Clerkships In Smaller Counties Rewarding, Austen L. Parrish Nov 2019

Dean's Desk: Students Find Clerkships In Smaller Counties Rewarding, Austen L. Parrish

Austen Parrish (2014-)

The students at the Indiana University Maurer School of Law come to Bloomington from all over the nation. During their summers, the temptation is for them to work in the country’s largest cities, often with the majority working in Indianapolis, Chicago, Washington, D.C., and New York. Many others work in our innovative Stewart Fellows global internship program, where students are placed in countries throughout the world.

Fewer students, however, choose to work in Indiana’s smaller towns, and the hundreds of trial court judges working there often need help. Many trial courts have crowded dockets and limited staffing ...


Investment In Latin America Will Limit Migration North, Ryan J. O'Riordan, Stanley P. Kowalski Nov 2019

Investment In Latin America Will Limit Migration North, Ryan J. O'Riordan, Stanley P. Kowalski

Law Faculty Scholarship

The refugee crisis at the US Southern Border is due to multiple compounding factors: Latin America’s over-reliance on commodities, failure to economically diversify to innovation, and a lack of coherent US strategic engagement with the region. The situation is hemispheric; imploding states and a serious humanitarian calamity loom ever larger on the southern horizon. Since this represents a long-term problem requiring strategic and sustainable development initiatives, a new Alliance for Progress for the 21st Century is proposed which will build partnerships to advance innovation-driven development across the region.


Economic And Social Rights Force Us To Pressure A Return To The State, Katharine G. Young Nov 2019

Economic And Social Rights Force Us To Pressure A Return To The State, Katharine G. Young

Boston College Law School Faculty Papers

In 2014, five-year old South African Michael Komape fell through a broken toilet—a rudimentary pit outfitted by his school—and drowned. His case was taken up by “SECTION27”, a social justice organization in South Africa, which campaigns for constitutional rights to dignity, equality, education, health care, social assistance, food and water (the latter rights are entrenched in the Constitution’s section 27). Pursuing both a #JusticeForMichael political campaign and litigation, SECTION27 won its argument about government liability, but failed in securing a remedy for Michael’s traumatized family.

The Komape case is emblematic of the complex interaction that can ...


Lawyers Weekly Newsmaker Reception : November 20, 2019, Roger Williams University School Of Law, Michael M. Bowden Nov 2019

Lawyers Weekly Newsmaker Reception : November 20, 2019, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.


Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr. Oct 2019

Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal ...


The Supreme Court And The Future Of Affirmative Action, Vinay Harpalani Oct 2019

The Supreme Court And The Future Of Affirmative Action, Vinay Harpalani

Faculty Scholarship

On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard. The big question is whether the U.S. Supreme Court will grant certiorari, since SFFA is sure to appeal subsequently to the High Court. However, there are a few reasons why the Justices might deny certiorari.


Perpetual Affordability Covenants: Can These Land Use Tools Solve The Affordable Housing Crisis?, Elizabeth Elia Oct 2019

Perpetual Affordability Covenants: Can These Land Use Tools Solve The Affordable Housing Crisis?, Elizabeth Elia

Faculty Scholarship

Approximately 3.8 million privately-owned residential housing units in America today contain affordability covenants recorded in their chains of title. State and local agencies and the District of Columbia use these covenants to ensure that publicly-subsidized properties are actually used to provide affordable housing. With rents at all-time highs and stagnant wages, the affordable housing crisis has reached a fever pitch. House Democrats are proposing billions more in housing subsidy. To the extent those funds subsidize privately-owned housing development they, too, will be secured by affordability covenants. In response to this crisis, a new trend in high cost markets is ...


Jailing Immigrant Detainees: A National Study Of County Participation In Immigration Detention, 1983-2013, Emily Ryo, Ian Peacock Oct 2019

Jailing Immigrant Detainees: A National Study Of County Participation In Immigration Detention, 1983-2013, Emily Ryo, Ian Peacock

University of Southern California Legal Studies Working Paper Series

Hundreds of county jails are involved in detaining immigrants facing removal proceedings, a civil process. In exchange, local jails receive per diem payments from Immigration and Customs Enforcement. Immigration detention thus presents a striking case of commodification of penal institutions for civil confinement purposes. Yet we know very little about the counties participating in this arrangement and the predictors of their participation over time. Our study offers the first systematic analysis of immigration detention in county jails using new and comprehensive panel data on jails across the United States. First, we find that the number of counties confining immigrant detainees ...