Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Pennsylvania Carey Law School (38)
- University of Nebraska - Lincoln (14)
- University of Michigan Law School (9)
- Columbia Law School (5)
- Schulich School of Law, Dalhousie University (5)
-
- University of Pittsburgh School of Law (5)
- Singapore Management University (4)
- University of Richmond (3)
- University of Maryland Francis King Carey School of Law (2)
- Boston University School of Law (1)
- Cornell University Law School (1)
- Georgetown University Law Center (1)
- Liberty University (1)
- Maurer School of Law: Indiana University (1)
- Mississippi College School of Law (1)
- The Peter A. Allard School of Law (1)
- University of Georgia School of Law (1)
- University of Maine School of Law (1)
- University of Windsor (1)
- West Virginia University (1)
- Keyword
-
- Criminal law (7)
- Legislation (7)
- American rule (4)
- Constitutional law (4)
- Empirical legal studies (4)
-
- Penal codes (4)
- Regional differences (4)
- SSRN (4)
- 50-state survey (3)
- Administrative law (3)
- Corrections (3)
- Criminal statutes & case law (3)
- Discrimination (3)
- Empirical research (3)
- Judges (3)
- Legal history (3)
- Mapping of diversity & disagreement (3)
- Proportionality (3)
- TCJA (3)
- Tax reform (3)
- 52-jurisdiction survey (2)
- Big data (2)
- Breyer Committee Report (2)
- Choice theory (2)
- Comparative law (2)
- Constitution (2)
- Contract law (2)
- Contracts (2)
- Copyright (2)
- Courts (2)
- Publication
-
- All Faculty Scholarship (37)
- United States Department of Justice: Publications and Materials (11)
- Articles (9)
- Faculty Scholarship (7)
- Research Collection Yong Pung How School Of Law (4)
-
- Law & Economics Working Papers (3)
- Law Student Publications (3)
- Lisa PytlikZillig Publications (3)
- Articles, Book Chapters, & Popular Press (2)
- Reports & Public Policy Documents (2)
- Testimony (2)
- All Faculty Publications (1)
- Articles by Maurer Faculty (1)
- Cornell Law Faculty Publications (1)
- Faculty Publications (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Journal Articles (1)
- Law Faculty Scholarship (1)
- Law Publications (1)
- Librarian Scholarship at Penn Law (1)
- Maryland Law Review Online (1)
- Research Papers, Working Papers, Conference Papers (1)
- Scholarly Works (1)
- Senior Honors Theses (1)
Articles 1 - 30 of 96
Full-Text Articles in Law
Preserving Life By Ranking Rights, John William Draper
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 …
Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad
Falling Between The Cracks: Understanding Why States Fail In Protecting Our Children From Crime, Michal Gilad
All Faculty Scholarship
The article is the first to take an inclusive look at the monumental problem of crime exposure during childhood, which is estimated to be one of the most damaging and costly public health and public safety problem in our society today. It takes-on the challenging task of ‘naming’ the problem by coining the term Comprehensive Childhood Crime Impact or in short the Triple-C Impact. Informed by scientific findings, the term embodies the full effect of direct and indirect crime exposure on children due to their unique developmental characteristics, and the spillover effect the problem has on our society as …
President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler
President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler
Faculty Publications
Recent presidents including Bill Clinton, G. W. Bush, and Barack Obama have refined how environmental law has been enacted and carried out. Under President Trump, the scope of public environmental law will most certainly narrow. It seems likely that the future of environmental law will depend not upon traditional federal command-and-control legislation or executive branch maneuvering, but instead upon activating environmentalism through expanded substantive areas and innovative regulatory techniques that fall outside the existing, traditional norms of environmental law and legal scholarship. This chapter is an attempt to acknowledge this monumental change, recognizing that these barriers to traditional environmental regulation …
Global Investment Rules As A Site For Moral Inquiry, Steven R. Ratner
Global Investment Rules As A Site For Moral Inquiry, Steven R. Ratner
Articles
The legal regime regulating cross-border investment gives key rights to foreign investors and places significant duties on states hosting that investment. It also raises distinctive moral questions due to its potential to constrain a state’s ability to manage its economy and protect its people. Yet international investment law remains virtually untouched as a subject of philosophical inquiry. The questions of international political morality surrounding investment rules can be mapped through the lens of two critiques of the law – that it systemically takes advantage of the global South and that it constrains the policy choices of states hosting investment. Each …
Bureaucratic Resistance And The National Security State, Rebecca Ingber
Bureaucratic Resistance And The National Security State, Rebecca Ingber
Faculty Scholarship
Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. …
Ensuring An Exemplary Judiciary Workplace: An Alternative To A Mandatory Reporting Requirement For Judges, Arthur D. Hellman
Ensuring An Exemplary Judiciary Workplace: An Alternative To A Mandatory Reporting Requirement For Judges, Arthur D. Hellman
Testimony
In December 2017, the Director of the Administrative Office of the United States Courts, responding to a request from Chief Justice Roberts, formed a Working Group to recommend measures “to ensure an exemplary workplace for every judge and every court employee.” The Working Group issued its report in June 2018. On October 30, 2018, two committees of the Judicial Conference of the United States, the administrative policy-making body of the federal judiciary, held a hearing on proposed amendments to the Rules for Judicial-Conduct and Judicial-Disability Proceedings and the Code of Conduct for United States Judges. Both sets of proposed amendments …
Comments On Proposed Amendments To The Rules For Judicial-Conduct And Judicial-Disability Proceedings, Arthur D. Hellman
Comments On Proposed Amendments To The Rules For Judicial-Conduct And Judicial-Disability Proceedings, Arthur D. Hellman
Testimony
In late 2017, prominent Ninth Circuit Judge Alex Kozinski was accused of engaging in sexual harassment and other misconduct over a long period during his tenure as a judge. Judge Kozinski resigned, but the controversy continued. The Director of the Administrative Office of the United States Courts, responding to a request from Chief Justice Roberts, formed a Working Group to recommend measures “to ensure an exemplary workplace for every judge and every court employee.” The Working Group issued its report in June 2018.
In September 2018, the Committee on Judicial Conduct and Disability (Conduct Committee) of the Judicial Conference of …
A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson
A General Mitigation For Disturbance-Driven Crimes?: Psychic State, Personal Choice, And Normative Inquiries, Paul H. Robinson
All Faculty Scholarship
It is argued here that the narrow provoked “heat of passion” mitigation available under current law ought to be significantly expanded to include not just murder but all felonies and not just “heat of passion” but potentially all mental or emotional disturbances, whenever the offender’s situation and capacities meaningfully reduce the offender’s blameworthiness for the violation. In determining eligibility for mitigation, the jury should take into account (a) the extent to which the offender was acting under the influence of mental or emotional disturbance (the psychic state inquiry), (b) given the offender’s situation and capacities, the extent to which one …
An Analysis Of St. Thomas Aquinas’S Position On The Relationship Between Justice And Legality, Wei Yao, Kenny Chng
An Analysis Of St. Thomas Aquinas’S Position On The Relationship Between Justice And Legality, Wei Yao, Kenny Chng
Research Collection Yong Pung How School Of Law
This paper is directed at a deep investigation of Thomas Aquinas's position on the relationship between justice and legality, a perennial debate in legal philosophy - are unjust laws laws at all? Modern natural law theorists taking contradictory positions all claim to be faithful to Aquinas's ideas on the matter. Yet, they cannot all be correct. This paper aims to discern Aquinas's true position on the matter by undertaking a detailed study of Aquinas's Treatise on Law, the broader context of the Summa Theologiae within which the Treatise is situated, and Aquinas's methodological and definitional approaches.
Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …
Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum
Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions to …
Antitrust's Unconventional Politics, Daniel A. Crane
Antitrust's Unconventional Politics, Daniel A. Crane
Articles
Antitrust law stands at its most fluid and negotiable moment in a generation. The bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values. To the bewilderment of many observers, the ascendant pressures for antitrust reforms are flowing from both wings of the political spectrum, throwing into confusion a conventional understanding that pro-antitrust sentiment tacked left and …
Corporal Punishment Of Children By Parents: Is It Discipline Or Violence And Abuse?, Wing Cheong Chan
Corporal Punishment Of Children By Parents: Is It Discipline Or Violence And Abuse?, Wing Cheong Chan
Research Collection Yong Pung How School Of Law
Physical punishment is still used as a means of child discipline by Singaporean parents. Is there a difference between such use of violence and abuse of children which is punishable as a criminal offence? What does Singapore and international law say about the use of punitive force on children by parents and other adults who act in loco parentis? This article argues that there is in fact sufficient evidence that Singapore law implicitly prohibits corporal punishment of children by their parents.
Outcome Prediction In The Practice Of Law, Mark K. Osbeck, Michael Gilliland
Outcome Prediction In The Practice Of Law, Mark K. Osbeck, Michael Gilliland
Articles
Business forecasters typically use time-series models to predict future demands, the forecasts informing management decision making and guiding organizational planning. But this type of forecasting is merely a subset of the broader field of predictive analytics, models used by data scientists in all manner of applications, including credit approvals, fraud detection, product-purchase and music-listening recommendations, and even the real-time decisions made by self-driving vehicles. The practice of law requires decisions that must be based on predictions of future legal outcomes, and data scientists are now developing forecasting methods to support the process. In this article, Mark Osbeck and Mike Gilliland …
Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow
Why Is It Wrong To Punish Thought?, Gabriel S. Mendlow
Articles
It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished. …
Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe
Informed Consent And The Role Of The Treating Physician, Eric Feldman, Holly Fernandez Lynch, Steven Joffe
All Faculty Scholarship
In the century since Justice Benjamin N. Cardozo famously declared that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” informed consent has become a central feature of American medical practice. In an increasingly team-based and technology-driven system, however, who is — or ought to be — responsible for obtaining a patient’s consent? Must the treating physician personally provide all the necessary disclosures, or can the consent process, like other aspects of modern medicine, take advantage of specialization and division of labor? Analysis of Shinal v. Toms, …
Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin
Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin
Articles, Book Chapters, & Popular Press
The ability to engage in political activity is an essential feature of a democratic society. However, the ability of government lawyers to do so is unclear. While most governments have passed legislation identifying permissible political activity of their employees, it is unclear how the professional obligations of lawyers apply in this context and how these professional obligations interact with this legislation. This article answers these questions. The duty of loyalty to the client requires most government lawyers to refrain from all political activity at the same level of government. The special professional obligations of Crown prosecutors require these lawyers to …
A Review Of Various Actions By The Federal Bureau Of Investigation And Department Of Justice In Advance Of The 2016 Election, Office Of The Inspector General, U.S. Department Of Justice
A Review Of Various Actions By The Federal Bureau Of Investigation And Department Of Justice In Advance Of The 2016 Election, Office Of The Inspector General, U.S. Department Of Justice
United States Department of Justice: Publications and Materials
The Department of Justice (Department) Office of the Inspector General (OIG) undertook this review of various actions by the Federal Bureau of Investigation (FBI) and Department in connection with the investigation into the use of a private email server by former Secretary of State Hillary Clinton. Clinton served as Secretary of State from January 21, 2009, until February 1, 2013, and during that time used private email servers hosting the @clintonemail.com domain to conduct official Department of State (State Department) business. In 2014, in response to a request from the State Department to Clinton for “copies of any Federal records …
A Study In Sovereignty: Federalism, Political Culture, And The Future Of Conservatism, Clint Hamilton
A Study In Sovereignty: Federalism, Political Culture, And The Future Of Conservatism, Clint Hamilton
Senior Honors Theses
This thesis confronts symptoms of an issue which is eroding at the principles of conservative advocacy, specifically those dealing with federalism. It contrasts modern definitions of federalism with those which existed in the late 1700s, and then attempts to determine the cause of the change. Concluding that the change was caused by a shift in American political identity, the author argues that the conservative movement must begin a conversation on how best to adapt to the change to prevent further drifting away from conservative principles.
Identity-Based Conflicts In Public Policy: The Case Of Hydraulic Fracturing Policy In Pennsylvania, Alison Peck
Identity-Based Conflicts In Public Policy: The Case Of Hydraulic Fracturing Policy In Pennsylvania, Alison Peck
Law Faculty Scholarship
Americans are experiencing a communication crisis in public policy-a crisis that has become especially acute since the November 2016 elections. Research shows that Americans increasingly treat their policy views as constitutive of their identities and separate themselves from other groups based on these identities. New solutions are needed in the lawmaking process to soften participants' hardening of their own identities and negative characterizations of other groups. This Article studies one controversy that has proven to be entrenched, if not yet intractable, in many jurisdictions: hydraulic fracturing. The Article examines advances made by scholars of conflict resolution and peace and conflict …
A Drone By Any Other Name: Purposes, End-User Trustworthiness, And Framing, But Not Terminology, Affect Public Support For Drones, Lisa M. Pytlikzillig, Brittany Duncan, Sebastian Elbaum, Carrick Detweiler
A Drone By Any Other Name: Purposes, End-User Trustworthiness, And Framing, But Not Terminology, Affect Public Support For Drones, Lisa M. Pytlikzillig, Brittany Duncan, Sebastian Elbaum, Carrick Detweiler
Lisa PytlikZillig Publications
Projections indicate that, as an industry, unmanned aerial vehicles (UAVs, commonly known as drones) could bring more than 100 000 jobs and $80 billion in economic growth to the U.S. by 2025 [1]. However, these promising projections do not account for how various publics may perceive such technologies. Understanding public perceptions is important because the attitudes of different groups can have large effects on the trajectory of a technology, strongly facilitating or hindering technology acceptance and uptake [2].
To advance understanding of U.S. public perceptions of UAV technologies, we conducted a nationwide survey of a convenience sample of 877 Americans …
Lnk Market Community Conversations, Lisa M. Pytlikzillig, Usda Value Added Producer Grant Steering Committee
Lnk Market Community Conversations, Lisa M. Pytlikzillig, Usda Value Added Producer Grant Steering Committee
Lisa PytlikZillig Publications
This report details the procedures and results from two public engagements conducted around the possibility of a year-round public market that might be situated in or near Lincoln’s downtown area. The purpose of these engagements was to uncover and explore the range of responses, hopes, concerns, and perceived benefits, barriers, and facilitators of a year-round Lincoln market.
A multi-pronged approach was used in which recruitment survey responses from about 135 persons was combined with pre-post surveys and in-depth conversations with 60 persons as shown in Figure 1.1.
The final report includes all three strands of information: from the recruitment surveys, …
Public And Private Enforcement Of Corporate And Securities Laws: An Empirical Comparison Of Hong Kong And Singapore, Wai Yee Wan, Christopher C. H. Chen, Say Hak Goo
Public And Private Enforcement Of Corporate And Securities Laws: An Empirical Comparison Of Hong Kong And Singapore, Wai Yee Wan, Christopher C. H. Chen, Say Hak Goo
Research Collection Yong Pung How School Of Law
No abstract provided.
The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne Jacobs
The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne Jacobs
Law Publications
In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions,d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used to …
Digging Into Democracy: Reflections On Ced And Social Change Lawyering After #Ows, Barbara Bezdek
Digging Into Democracy: Reflections On Ced And Social Change Lawyering After #Ows, Barbara Bezdek
Maryland Law Review Online
No abstract provided.
Innovative Contracting For Pharmaceuticals And Medicaid’S Best-Price Rule, Nicholas Bagley
Innovative Contracting For Pharmaceuticals And Medicaid’S Best-Price Rule, Nicholas Bagley
Articles
In recent years, drug manufacturers and private payers have expressed interest in novel pricing models that more closely link a drug’s price to its value. Indication-based pricing, outcome-based pricing, drug licenses, and drug mortgages have all been discussed as alternatives to paying strictly for volume. Manufacturers and payers have complained, however, that Medicaid’s “best-price rule” inhibits their ability to enter into these newpricing arrangements. This article examines the best-price rule and assesses to what extent, if any, it might frustrate the goal of paying for value. We conclude that the best-price rule is not as serious a problem as it …
Beat It: Tax Reform And Tax Treaties, Reuven S. Avi-Yonah
Beat It: Tax Reform And Tax Treaties, Reuven S. Avi-Yonah
Law & Economics Working Papers
The Tax Cuts and Jobs Act (TCJA) includes several provisions that may be viewed as potential violations of US tax treaties. However, most of those potential violations, such as new IRC section 951A and to a large extent new IRC section 59A, are covered by the Savings Clause (US model article 1(4)). The only remaining question is whether IRC section 59A (the “Base Erosion Anti-Abuse Tax”, or BEAT) violates the non-discrimination provision (article 24), which is exempted from the Savings Clause. The answer is no, because foreign related parties are not comparable to US related parties receiving interest or royalties.
Lowering Legal Barriers To Rpki Adoption, Christopher S. Yoo, David A. Wishnick
Lowering Legal Barriers To Rpki Adoption, Christopher S. Yoo, David A. Wishnick
All Faculty Scholarship
Across the Internet, mistaken and malicious routing announcements impose significant costs on users and network operators. To make routing announcements more reliable and secure, Internet coordination bodies have encouraged network operators to adopt the Resource Public Key Infrastructure (“RPKI”) framework. Despite this encouragement, RPKI’s adoption rates are low, especially in North America.
This report presents the results of a year-long investigation into the hypothesis—widespread within the network operator community—that legal issues pose barriers to RPKI adoption and are one cause of the disparities between North America and other regions of the world. On the basis of interviews and analysis of …
How Terrible Is The New Tax Law? Reflections On Tra17, Reuven S. Avi-Yonah
How Terrible Is The New Tax Law? Reflections On Tra17, Reuven S. Avi-Yonah
Law & Economics Working Papers
Overall, TRA17 is not much worse than TRA86 or TRA14. It increases the deficit, but not by an impossible amount; it is distributionally skewed, but less so than is usually assumed; and its details are not terrible (on the international side they are a big improvement over prior law). There is one big problem, the pass through provisions, and we can only hope that as its horrible implications unfold it will be a prime candidate for repeal.
Disclaiming Property, Michael Pappas
Disclaiming Property, Michael Pappas
Faculty Scholarship
Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.
Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural …