Jurisprudence Commons^™

Love In The Time Of Covid, Jeanne L. Schroeder

Articles

A striking aspect of the current American cultural divide is divergent attitudes towards expertise, generally, and masking and vaccination to mitigate the Covid-19 pandemic, specifically. Liberal pundits profess shock that Red State America won’t just ‘trust the science’. On the right, politicians and television personalities reject mandates in the name of ‘freedom’.

Lacanian discourse theory gives insight into this. The rejection of expertise is an example of an ‘hysteric discourse’ challenging a ‘university discourse’: the regime of experts. An hysteric discourse is a critique of rules imposed by experts by the subjects-subjected-to them. Hysteria can lead, in turn, to a …

Fiqh On Finance: A Scientometric Analysis Using Bibliometrix, Aam Slamet Rusydiana, Aisyah As-Salafiyah, Yulizar Djamaluddin Sanrego, Lina Marlina

Library Philosophy and Practice (e-journal)

This study aims to determine the development and trend map of fiqh on finance published by Scopus-indexed journals in the theme of Islamic economics and finance. The data analyzed were 547 publications of document publications. The export data is then processed and analyzed using the R Bibliometrix application program to find out the bibliometric map of the fiqh on finance research development. The results showed that the number of publications on fiqh’s theme on finance experienced a significant increase. The results show that the most popular journal is the International Journal of Islamic and Middle Eastern Finance …

Harry Potter And The Gluttonous Machine, Jason A. Beckett

Faculty Journal Articles

In this paper, I outline the colonial structure of international law, and examine the short decline or suppression of its coloniality in the so-called ‘era of decolonisation’, then illustrate its resurgence in the modern neo-colonial order. PIL has split into two separate systems. One includes, and is justified by, the heroic tales of human rights and ‘Humanity’s Law’. The other is the actualised system of International Economic Law (IEL), an order driven by the need of the over-developed states to plunder the under-developed states’ resources and labour, to subsidise the luxury to which we have grown accustomed. One purports to …

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Playing At The Crossroads Of Religion And Law: Historical Milieu, Context And Curriculum Hooks In Lost & Found, Owen Gottlieb

Articles

This chapter presents the use of Lost & Found – a purpose-built tabletop to mobile game series – to teach medieval religious legal systems. The series aims to broaden the discourse around religious legal systems and to counter popular depiction of these systems which often promote prejudice and misnomers. A central element is the importance of contextualizing religion in period and locale. The Lost & Found series uses period accurate depictions of material culture to set the stage for play around relevant topics – specifically how the law promoted collaboration and sustainable governance practices in Fustat (Old Cairo) in twelfth-century …

The Deceptive Dyad: How Falseness Structures International Law, Jason A. Beckett

Faculty Journal Articles

Public International Law (PIL) is portrayed as an autonomous and tolerably just legal system. A determinable system of rules and principles, deployed by professionals to evaluate and constrain the global machinations of power politics. Law as an authoritative structure through which global justice can be pursued. This entrenches a comforting, but false, progress narrative; and obscures the limitations of pursuing progressive change through international law. PIL is structured by false necessity and false contingency. These interact to create the Deceptive Dyad, which disguises the radical indeterminacy of PIL. PIL’s purported demands, however meticulously crafted, do not effect change in the …

Equality And Access To Credit: A Social Contract Framework, John Linarelli

Scholarly Works

The problems governments face in regulating consumer finance fall into two categories: normative and cognitive. The normative problems have to do with the way that some governments, particularly those adhering to an American model of household finance, have financed social mobility and intergenerational welfare through debt, a tenuous and socially risky policy choice. Credit has a substantial social aspect to it in the United States, where the federal government has in some way engaged in subsidizing about 1/3 of consumer credit, particularly in the residential mortgage market, feeding into a substantial capital markets dimension through government-guaranteed securitization. Most Americans think …

Propertizing Fair Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The landmark case of Google v. Oracle, currently pending before the Supreme Court, illustrates why this is problematic. Even if the Court were to rule that Google’s use of Oracle’s Java API’s was fair, the ruling would not protect the numerous parties that developed Java applications for the Android operating system; it would only shelter Google and Google’s particular use. This is not an isolated problem; the per use/per user rule cuts across fair uses of copyrighted …

A Literature Review On Islamic Estate Planning From Year 2014 To 2019, Muhammad MuiʻZz Abdullah, Naimah Mohamad Nasir, Nasrul Hisyam Nor Muhamad, Muhammad Ridhwan Ab. Aziz, Abdul Bari Awang, Mek Wok Mahmud

Library Philosophy and Practice (e-journal)

A systematic property planning is one of the most important processes to ensure that the accumulated property over a person's lifetime can be fully utilized for goodness especially by their heirs. However, there are many problems of neglection and postponement in islamic estate distribution among the heirs nowadays, which result in difficulties in the management process. In fact, because of the unfamiliarity of the property distribution process among the heirs has caused them to ignore existing solutions. Therefore, this article aims to study the factors leading to delays in islamic estate administration and to highlight solutions to the arising issues …

Considering Law And Macroeconomics, Anna Gelpern, Adam J. Levitin

Georgetown Law Faculty Publications and Other Works

The worst financial and economic crisis to hit the world’s richest economies since the Great Depression inspired a flood of scholarship that straddled the disciplines of law and macroeconomics. With few exceptions, this crisis scholarship did not set out to build a new interdisciplinary movement and did not claim the legacy of earlier efforts to mine the intersection of law and macroeconomics. What are we to make of this moment ten years on? Could Law and Macroeconomics (#LawMacro for short) be an important new turn in legal and economic thought, a casual interdisciplinary tryst on the margins of a hundred-year …

Distributive Justice And Rural America, Ann M. Eisenberg

Faculty Publications

Today’s discourse on struggling rural communities insists they are “dying” or “forgotten.” Many point to globalization and automation as the culprits that made livelihoods in agriculture, natural resource extraction, and manufacturing obsolete, fueling social problems such as the opioid crisis. This narrative fails to offer a path forward; the status quo is no one’s fault, and this “natural” rural death inspires mourning rather than resuscitation. This Article offers a more illuminating account of the rural story, told through the lens of distributive justice principles. The Article argues that rural communities have not just “died.” They were sacrificed. Specifically, distributive justice …

The New Mechanisms Of Market Inefficiency, Kathryn Judge

Faculty Scholarship

Mechanisms of market inefficiency are some of the most important and least understood institutions in financial markets today. A growing body of empirical work reveals a strong and persistent demand for “safe assets,” financial instruments that are sufficiently low risk and opaque that holders readily accept them at face value. The production of such assets, and the willingness of holders to treat them as information insensitive, depends on the existence of mechanisms that promote faith in the value of the underlying assets while simultaneously discouraging information production specific to the value of those assets. Such mechanisms include private arrangements, like …

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Faculty Scholarship

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

Price And Prejudice: An Empirical Test Of Financial Incentives, Altruism, And Racial Bias, Kristen Underhill

Faculty Scholarship

Many argue that paying people for good behavior can crowd out beneficial motivations like altruism. But little is known about how financial incentives interact with harmful motivations like racial bias. Two randomized vignette studies test how financial incentives affect bias. The first experiment varies the race of a hypothetical patient in need of a kidney transplant (black or white), an incentive ($18,500 or none), and addition of a message appealing to altruism. Incentives encouraged donation but introduced a significant bias favoring white patients. The second experiment assesses willingness to donate to a patient (black or white) without an incentive and …

The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand

Articles

The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, …

Punishment Without Process: Victim Impact Proceedings For Dead Defendants, Bruce Green, Rebecca Roiphe

Articles & Chapters

After Jeffrey Epstein committed suicide in jail, two judges allowed his accusers to speak in court. This article argues that the proceedings were inappropriate because the criminal case ends when the defendant dies. If the conviction and appeal are not final, there is no finding of guilt, and the defendant is still presumed innocent. Allowing accusers to speak at this time violates the principle of due process and threatens to undermine faith in judges and the criminal justice system in general. While courts are at times legally required to hear from victims of crimes, they were not allowed to do …

A Theory Of Poverty: Legal Immobility, Sara Sternberg Greene

Faculty Scholarship

The puzzle of why the cycle of poverty persists and upward class mobility is so difficult for the poor has long captivated scholars and the public alike. Yet with all of the attention that has been paid to poverty, the crucial role of the law, particularly state and local law, in perpetuating poverty is largely ignored. This Article offers a new theory of poverty, one that introduces the concept of legal immobility. Legal immobility considers the cumulative effects of state and local laws as a mechanism through which poverty is perpetuated and upward mobility is stunted. The Article provides an …

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 …

Teaching The Lochner Era, Barry Cushman

Journal Articles

This article, prepared for the St. Louis University Law Journal's issue on “Teaching the Fourteenth Amendment,” develops a taxonomy of the Supreme Court's economic substantive due process jurisprudence during the so-called “Lochner Era” of the late-19th and early-20th centuries, and offers an assessment of the trajectory and mechanisms of the decline of that body of doctrine.

Copyright As Market Prospect, Shyamkrishna Balganesh

All Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts—principally trespass and negligence—in order to understand copyright’s structure of entitlement and liability. This focus on property- and harm-based torts has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant's volitional actions interfere with a potential economic benefit that was likely …

Teva And The Process Of Claim Construction, Lee Petherbridge Ph.D., R. Polk Wagner

All Faculty Scholarship

In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court addressed an oft-discussed jurisprudential disconnect between itself and the U.S. Court of Appeals for the Federal Circuit: whether patent claim construction was “legal” or “factual” in nature, and how much deference is due to district court decisionmaking in this area. In this Article, we closely examine the Teva opinion and situate it within modern claim construction jurisprudence. Our thesis is that the Teva holding is likely to have only very modest effects on the incidence of deference to district court claim construction but that for unexpected reasons the …

Commerce, Religion, And The Rule Of Law, Nathan B. Oman

Faculty Publications

The rule of law and religion can act as commercial substitutes. Both can create the trust required for material prosperity. The rule of law simplifies social interactions, turning people into formal legal agents and generating a map of society that the state can observe and control, thus credibly committing to the enforcement of the legal rights demanded by impersonal markets. Religion, in contrast, embraces complex social identities. Within these communities, economic actors can monitor and sanction misbehavior. Both approaches have benefits and problems. The rule of law allows for trade among strangers, fostering peaceful pluralism. However, law breeds what Montesquieu …

International Investment Law Through The Lens Of Global Justice, Steven Ratner

Law & Economics Working Papers

The last decade has witnessed a series of criticisms from states, NGOs, and scholars of international investment law’s rules and procedures. Running in parallel, and for a longer period, political philosophers have developed theories about what would constitute a just international economic order. Yet international law and philosophy have not directly engaged with one another regarding the justice of international investment law. This article attempts to breach that gap by analyzing the key critiques of investment law from the perspective of theories of global justice. Philosophical approaches are useful for appraising investment law because they offer a rigorous framework for …

Lost & Found, Owen Gottlieb, Ian Schreiber, Kelly Murdoch-Kitt

Presentations and other scholarship

Lost & Found is a strategy card-to-mobile game series that teaches medieval religious legal systems with attention to period accuracy and cultural and historical context.

The Lost & Found games project seeks to expand the discourse around religious legal systems, to enrich public conversations in a variety of communities, and to promote greater understanding of the religious traditions that build the fabric of the United States. Comparative religious literacy can build bridges between and within communities and prepare learners to be responsible citizens in our pluralist democracy.

The first game in the series is a strategy game called Lost & …

Inefficient Inequality, Shi-Ling Hsu

Scholarly Publications

For the past several decades, much American lawmaking has been animated by a concern for economic efficiency. At the same time, broad concerns over wealth and income inequality have roiled American politics, and still loom over lawmakers. It can be reasonably argued that a tension exists between efficiency and equality, but that argument has had too much purchase over the past few decades of lawmaking. What has been overlooked is that inequality itself can be allocatively inefficient when it gives rise to collectively inefficient behavior. Worse still, some lawmaking only masquerades as being efficiency-promoting; upon closer inspection, some of this …

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 …

Why Law Now Needs To Control Rather Than Follow Neo-Classical Economics, 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 …

The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Fair use is one of modern law's most fascinating and troubling doctrines. It is amorphous and vague, and notoriously difficult to apply. It is, at the same time, vitally important in copyright and perhaps the most frequently raised and litigated issue in the law of intellectual property.

This article offers a novel theory of fair use that provides both a better understanding of the underlying principles and better tools for applying the doctrine.

In contrast with the dominant understanding of fair use in the literature — that fair use addresses market failure — the article proposes viewing fair use as …

The High Cost Of Transferring The Dream, Kim Brooks

Articles, Book Chapters, & Popular Press

This paper is part of a larger project where I use the facts in tax decisions to reveal something about who we are. It looks through a small window into the lives of the people who find themselves caught between our collective and their individual expenditure aspirations. More specifically, it explores the circumstances in which individuals find that their outstanding tax debts pose a threat to their ability to maintain ownership of their home.

In this paper I use the facts of tax cases for two ends. First, I am interested in disrupting legal knowledge hierarchies. We choose cases to …

Antecedent Law And Ethics Of Aid In Dying, Alan Meisel

Articles

Scholarly discussion of physician aid in dying – physicians actively aiding patients in ending their lives – has noticeably increased in recent years. While conversations and examinations of end-of-life treatment have been ongoing for decades, the antecedent law and ethics of aid in dying that have developed in the United States have recently moved into the spotlight. In this essay, written for a symposium at Quinnipiac School of Law, the author takes his audience on a brief journey through the history of end-of-life decision-making in the U.S., beginning with the early days of the Karen Quinlan case in 1976 and …