Jurisprudence Commons^™

James Wilson And The Drafting Of The Constitution, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.

Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz

Faculty Scholarship at Penn Law

What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the ...

The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein

Faculty Scholarship at Penn Law

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang

Faculty Scholarship at Penn Law

In this Article, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after tax incomes of the least skilled native workers. Policies to protect these native workers frol1'l immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages fel1'wle participation in the labor force. This burden ...

Criminalization Of Corporate Law: The Impact On Shareholders And Other Constituents, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.

Challenges In Law Making In Mass Societies, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.

The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick

Faculty Scholarship at Penn Law

No abstract provided.

Forgiveness In Criminal Procedure, Stephanos Bibas

Faculty Scholarship at Penn Law

Though forgiveness and mercy matter greatly in social life, they play fairly small roles in criminal procedure. Criminal procedure is dominated by the state, whose interests in deterring, incapacitating, and inflicting retribution leave little room for mercy. An alternative system, however, would focus more on the needs of human participants. Victim-offender mediation, sentencing discounts, and other mechanisms could encourage offenders to express remorse, victims to forgive, and communities to reintegrate and employ offenders. All of these actors could then better heal, reconcile, and get on with their lives. Forgiveness and mercy are not panaceas: not all offenders and victims would ...

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

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 ...

The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter

Faculty Scholarship at Penn Law

No abstract provided.

Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.

Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry

Faculty Scholarship at Penn Law

No abstract provided.

Preemption In The Rehnquist Court: A Preliminary Empirical Assessment, Michael S. Greve, Jonathan Klick

Faculty Scholarship at Penn Law

The federal preemption of state law has emerged as a prominent field of study for legal scholars and political scientists. This rise to prominence of a technical and often dull field of jurisprudence is due to a number of developments-increasingly frequent federal statutory preemptions; the states' unprecedented aggressiveness in regulating business transactions, the expansion of corporate liability under state common law and the increased resort of corporate defendants to federal preemption defenses; and, not least, the Rehnquist Court's discovery of federalism and states' rights.

Unfortunately, the preemption debate has been marred by misperceptions and a lack of reliable data ...

Government Regulation Of Irrationality: Moral And Cognitive Hazards, Jonathan Klick, Gregory Mitchell

Faculty Scholarship at Penn Law

No abstract provided.

Alternative Career Resolution Ii: Changing The Tenure Of Supreme Court Justices, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.

The Protestant Revolutions And Western Law, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.

Responsibility For Unintended Consequences, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as ...

Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi

Faculty Scholarship at Penn Law

Functional law and economics, which draws its influence from the public choice school of economic thought, stands in stark contrast to both the Chicago and Yale schools of law and economics. While the Chicago school emphasizes the inherent efficiency of legal rules, and the Yale school views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law’s ability to remedy those failures on ...

Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.

What Personal Rules Can Teach Us About Basic Institutions, Claire O. Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.

Welfare, Dialectic, And Mediation In Corporate Law, William W. Bratton

Faculty Scholarship at Penn Law

No abstract provided.

International Legal Pluralism, William W. Burke-White

Faculty Scholarship at Penn Law

No abstract provided.

Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas

Faculty Scholarship at Penn Law

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The ...

Pleas' Progress, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.

The Conceptual Jurisprudence Of The German Constitution, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.

Functional Law And Economics: The Search For Value-Neutral Principles Of Lawmaking, Francesco Parisi, Jonathan Klick

Faculty Scholarship at Penn Law

No abstract provided.

The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.

Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach

Faculty Scholarship at Penn Law

No abstract provided.

Human Rights And National Security: The Strategic Correlation, William W. Burke-White

Faculty Scholarship at Penn Law

No abstract provided.

The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler

Faculty Scholarship at Penn Law

No abstract provided.