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Full-Text Articles in Law

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas Aug 2016

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

Faculty Scholarship at Penn Law

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to ...


How Being Right Can Risk Wrongs, Paul H. Robinson, Sarah M. Robinson Aug 2016

How Being Right Can Risk Wrongs, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

This is a chapter from the new book The Vigilante Echo. Previous chapters have made clear that some vigilantism can be morally justified where the government has failed in its promise under the social contract to protect and to do justice. But this chapter explains how even moral vigilante action can be problematic for the larger society. Vigilantes may try to do the right thing but are likely to lack the training and professional neutrality of police. They may be successful, but only on pushing the crime problem to an adjacent neighborhood. Because their open lawbreaking may seem admirable to ...


Shadow Vigilante Officials Manipulate And Distort To Force Justice From An Apparently Reluctant System, Paul H. Robinson, Sarah M. Robinson Aug 2016

Shadow Vigilante Officials Manipulate And Distort To Force Justice From An Apparently Reluctant System, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

The real danger of the vigilante impulse is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways, by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the operation of the system in a host of important ways. For example, when people act as classic ...


Conviction Review Units: A National Perspective, John Hollway Apr 2016

Conviction Review Units: A National Perspective, John Hollway

Faculty Scholarship at Penn Law

Over the past 25 years, Americans have become increasingly aware of a vast array of mistakes in the administration of justice, including wrongful convictions, situations where innocent individuals have been convicted and incarcerated for crimes they did not commit. The most prevalent institutional response by prosecutors to address post-conviction fact-based claims of actual innocence is the Conviction Review Unit (CRU), sometimes called the Conviction Integrity Unit. Since the creation of the first CRU in the mid-2000s, more than 25 such units have been announced across the country; more than half of these have been created in the past 24 months ...


Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle Feb 2016

Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle

Faculty Scholarship at Penn Law

This Article examines the role military automated surveillance and intelligence systems and techniques have supported a self-reinforcing racial bias when used by civilian police departments to enhance predictive policing programs. I will focus on two facets of this problem. First, my research will take an inside-out perspective, studying the role played by advanced military technologies and methods within civilian police departments, and how they have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools, and which automates de facto penalization and ...


The Legal Limits Of “Yes Means Yes”, Paul H. Robinson Jan 2016

The Legal Limits Of “Yes Means Yes”, Paul H. Robinson

Faculty Scholarship at Penn Law

This op-ed piece for the Chronicle of Higher Education argues that the affirmative consent rule of "yes means yes" is a useful standard that can help educate and ideally change norms regarding consent to sexual intercourse. But that goal can best be achieved by using “yes means yes” as an ex ante announcement of the society's desired rule of conduct. That standard only becomes problematic when used as the ex post principle of adjudication for allegations of rape. Indeed, those most interested in changing existing norms ought to be the persons most in support of distinguishing these two importantly ...


What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas Jan 2016

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended ...


What Gideon Did, Sara Mayeux Jan 2016

What Gideon Did, Sara Mayeux

Faculty Scholarship at Penn Law

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on ...


Criminal Justice And (A) Catholic Conscience, Leo E. Strine Jr. Jan 2016

Criminal Justice And (A) Catholic Conscience, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

This article is one person's reflections on how an important influence on his own sense of moral values -- Jesus Christ -- affects his thinking about his own approach to his role as a public official in a secular society, using the vital topic of criminal justice as a focal point. This article draws several important lessons from Christ's teachings about the concept of the other that are relevant to issues of criminal justice. Using Catholicism as a framework, this article addresses, among other things, capital punishment and denying the opportunity for redemption; the problem of racial disparities in the ...


Designing Plea Bargaining From The Ground Up: Accuracy And Fairness Without Trials As Backstops, Stephanos Bibas Jan 2016

Designing Plea Bargaining From The Ground Up: Accuracy And Fairness Without Trials As Backstops, Stephanos Bibas

Faculty Scholarship at Penn Law

American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation ...


Reducing False Guilty Pleas And Wrongful Convistions Through Exoneree Compensation, Murat C. Mungan, Jonathan Klick Jan 2016

Reducing False Guilty Pleas And Wrongful Convistions Through Exoneree Compensation, Murat C. Mungan, Jonathan Klick

Faculty Scholarship at Penn Law

A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed. In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals' plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas. Any distortions in guilty individuals' incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty. Although there are many statutory reform proposals for increasing exoneration compensations ...


Modest Retributivism, Mitchell N. Berman Jan 2016

Modest Retributivism, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.