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Full-Text Articles in Legal History

An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo Nov 2017

An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo

Faculty Scholarship at Penn Law

Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by ...


The Progressives: Racism And Public Law, Herbert J. Hovenkamp Nov 2017

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that ...


Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson Aug 2017

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around ...


Trigger Crimes & Social Progress: The Tragedy-Outrage-Reform Dynamic In America, Paul H. Robinson, Sarah M. Robinson Aug 2017

Trigger Crimes & Social Progress: The Tragedy-Outrage-Reform Dynamic In America, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are ...


Are There Really "Plenty Of Shapiros Out There"? A Comment On The Courage Of Norma L. Shapiro, Reid K. Weisbord, David A. Hoffman Apr 2017

Are There Really "Plenty Of Shapiros Out There"? A Comment On The Courage Of Norma L. Shapiro, Reid K. Weisbord, David A. Hoffman

Faculty Scholarship at Penn Law

Norma Levy Shapiro, a trailblazing United States District Court Judge whose tenure on the Philadelphia federal bench spanned nearly 40 years, died July 22, 2016. This memoriam, written by two former law clerks, reflects fondly on Judge Shapiro’s judicial courage to follow her conscience even when doing so required making deeply unpopular decisions. To illustrate, this memoriam examines three of Judge Shapiro’s most memorable cases from her notable prisoner litigation docket.

First, in Harris v. Pernsley, Judge Shapiro’s principled but polarizing decisions in the Philadelphia prison overcrowding litigation elicited a now-familiar brand of snark from one (tremendous ...


The Separation Of Corporate Law And Social Welfare, William W. Bratton Jan 2017

The Separation Of Corporate Law And Social Welfare, William W. Bratton

Faculty Scholarship at Penn Law

A half century ago, corporate legal theory pursued an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. That vision was challenged on the ground during the 1980s, when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers. By 1990, it seemed like the institutions had won. But a different picture has emerged as the years have gone by. It is now clear that the market side really won the battle of the 1980s, succeeding in entering a wedge between corporate law and social ...


Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff Jan 2017

Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon cannot bear the ...


Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang Jan 2017

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for ...


Appraising The Progressive State, Herbert J. Hovenkamp Jan 2017

Appraising The Progressive State, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Since it origins in the late nineteenth century, the most salient characteristics of the progressive state have been marginalism in economics, greatly increased use of scientific theory and data in policy making, a commitment to broad participation in both economic and political markets, and a belief that resources are best moved through society by many institutions in addition to traditional markets.. These values have served to make progressive policy less stable than classical and other more laissez faire alternatives. However, the progressive state has also performed better than alternatives by every economic measure. One of the progressive state’s biggest ...


From The History To The Theory Of Administrative Constitutionalism, Sophia Z. Lee Jan 2017

From The History To The Theory Of Administrative Constitutionalism, Sophia Z. Lee

Faculty Scholarship at Penn Law

Legal scholars and historians have shown growing interest in how agencies interpret and implement the Constitution, what is called “administrative constitutionalism.” The points of contact between the history and theory of administrative constitutionalism are sufficiently extensive to merit systematic analysis. This chapter focuses on what history can offer the theory of administrative constitutionalism. It argues that historical accounts of administrative constitutionalism invite a more robust normative defense of the practice than theorists have thus far provided. There is much to the transparent, participatory versions of administrative constitutionalism that its defenders have primarily focused on thus far. This chapter is a ...


Intersectionality And The Constitution Of Family Status, Serena Mayeri Jan 2017

Intersectionality And The Constitution Of Family Status, Serena Mayeri

Faculty Scholarship at Penn Law

Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing ...