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Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall 2016 Legal Studies & Business Ethics/Wharton University of Pennsylvania

Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall

Amy J. Sepinwall

There is in the criminal law perhaps no principle more canonical than the fault principle, which holds that one may be punished only where one is blameworthy, and one is blameworthy only where one is at fault. Courts, criminal law scholars, moral philosophers and textbook authors all take the fault principle to be the foundational requirement for a just criminal law. Indeed, perceived threats to the fault principle in the mid-Twentieth Century yielded no less an achievement than the drafting of the Model Penal Code, which had as its guiding purpose an effort to safeguard faultless conduct from criminal condemnation ...


1911 – Triangle Factory Fire – Building Safety Codes, Paul H. Robinson, Sarah M. Robinson 2016 University of Pennsylvania Law School

1911 – Triangle Factory Fire – Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship

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 ...


Is Government Really Broken?, Cary Coglianese 2016 University of Pennsylvania Law School

Is Government Really Broken?, Cary Coglianese

Faculty Scholarship

The widespread public angst that surfaced in the 2016 presidential election revealed how many Americans believe their government has become badly broken. Given the serious problems that continue to persist in society—crime, illiteracy, unemployment, poverty, discrimination, to name a few—widespread beliefs in a governmental breakdown are understandable. Yet such a breakdown is actually far from self-evident. In this paper, I explain how diagnoses of governmental performance depend on the perspective from which current conditions in the country are viewed. Certainly when judged against a standard of perfection, America has a long way to go. But perfection is no ...


Amendment Creep, Jonathan L. Marshfield 2016 University of Arkansas School of Law

Amendment Creep, Jonathan L. Marshfield

Michigan Law Review

To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level ...


Democratizing Criminal Law: Feasibility, Utility, And The Challenge Of Social Change, Paul H. Robinson 2016 University of Pennsylvania Law School

Democratizing Criminal Law: Feasibility, Utility, And The Challenge Of Social Change, Paul H. Robinson

Faculty Scholarship

The notion of “democratizing criminal law” has an initial appeal because, after all, we believe in the importance of democracy and because criminal law is so important – it protects us from the most egregious wrongs and is the vehicle by which we allow the most serious governmental intrusions in the lives of individuals. Given criminal law’s special status, isn’t it appropriate that this most important and most intrusive governmental power be subject to the constraints of democratic determination?

But perhaps the initial appeal of this grand principle must give way to practical realities. As much as we are ...


Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin 2016 Vanderbilt Law School

Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin

Christopher Serkin

The purpose of the Fifth Amendment’s Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act ...


Insurance Against Extreme Events: Pairing Short-Term Incentives With Long-Term Strategies, Howard Kunreuther 2016 University of Pennsylvania

Insurance Against Extreme Events: Pairing Short-Term Incentives With Long-Term Strategies, Howard Kunreuther

Penn Wharton Public Policy Initiative

Consumers tend to purchase too little insurance or purchase it too late. Consequently, taxpayers wind up bearing substantial burdens for paying reconstruction costs from extreme events. The 2005 and 2012 hurricane seasons alone cost taxpayers nearly $150 billion. There is much that can be done to better facilitate the role that insurance can play in addressing losses from extreme events, both natural and man-made.


The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert 2016 Fordham University School of Law

The Second Circuit And Social Justice, Matthew Diller, Alexander A. Reinert

Fordham Law Review

This Article highlights just a few areas of law as illustrations of the Second Circuit’s jurisprudence in dealing with claims of marginalized and subordinated individuals and groups. In the area of civil rights, this Article focuses on sexual harassment law and prisoners’ rights. In the area of public benefits, this Article focuses on public assistance and the disability benefit programs of the Social Security Act.


Solving Ethical Puzzles To Unlock University Technology Transfer Client Work For An Intellectual Property Legal Clinic, Cynthia L. Dahl 2016 University of Pennsylvania Law School

Solving Ethical Puzzles To Unlock University Technology Transfer Client Work For An Intellectual Property Legal Clinic, Cynthia L. Dahl

Faculty Scholarship

Intellectual property (IP) and technology legal clinics are experiencing an unprecedented surge in popularity. Before 2000 there were only five such clinics, but by 2016 there were seventy-four, with fifty added since 2010 alone. As law schools are approving new IP clinics and as practitioners are developing syllabi, there is an increasing need to share knowledge about models that work and how to avoid pitfalls.

One potentially fertile – but traditionally underutilized -- source of client work for an IP and technology clinic is the university technology transfer office (“TTO”), the department that protects, markets, and licenses all university intellectual property. Through ...


The Two Laws Of Sex Stereotyping, Noa Ben-Asher 2016 Elisabeth Haub School of Law at Pace University

The Two Laws Of Sex Stereotyping, Noa Ben-Asher

Boston College Law Review

This Article offers two main contributions to the study of sex stereotyping. First, it identifies an organizing principle that explains why some forms of sex stereotyping are today legally prohibited while others are not. Second, it argues for a shift in the current rights framework—from equal opportunity to individual liberty—that could assist courts and other legal actors to appreciate the harms of currently permissible forms of sex stereotyping. Commentators and courts have long observed that the law of sex stereotyping has many inconsistencies. For instance, it is lawful today for the state to require that unwed biological fathers ...


The Tragedy Of Justice Scalia, Mitchell N. Berman 2016 University of Pennsylvania Law School

The Tragedy Of Justice Scalia, Mitchell N. Berman

Faculty Scholarship

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia ...


Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson 2016 Columbia University

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.


Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky 2016 Brooklyn Law School

Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key ...


Independence Without Accountability: The Paradox Of Egypt’S Judiciary, Sahar Aziz 2016 Texas A&M University School of Law

Independence Without Accountability: The Paradox Of Egypt’S Judiciary, Sahar Aziz

Sahar F. Aziz

Among the myriad questions surrounding the study of the “Arab Spring,” the one that has engendered much scholarly debate is “What happened to Egypt’s revolution?” Answers abound in explaining why Egypt today is more authoritarian than in the final years of the Mubarak regime. No single factor or theory suffices to explain the complex political, economic, and social forces intersecting over the past four tumultuous years. Indeed, scholars are likely to spend many years, if not decades, deconstructing the buildup to and aftermath of what is now coined the “January 25th Revolution.” Accordingly, this Article cautiously proceeds to examine ...


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

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

Faculty Scholarship

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 ...


The Trojan Horse Of Corporate Integration, Edward D. Kleinbard 2016 University of Southern California

The Trojan Horse Of Corporate Integration, Edward D. Kleinbard

University of Southern California Legal Studies Working Paper Series

The U.S. Senate Finance Committee has invested significant resources, including hearings and staff reports, to make the case for an unusual form of corporate dividend integration – a corporate dividends-paid deduction, combined with a universal shareholder dividend withholding tax collected from the firm. This proposal would not reduce the cash tax outlays of U.S. corporations in respect of distributed or retained earnings. It would not reduce the aggregate tax burdens imposed on most shareholders, and in many plausible circumstances would raise those tax costs. It is a poorly targeted response to design weaknesses in the U.S. international corporate ...


The New Federal Regulation Of Corporate Governance, Jill E. Fisch 2016 University of Pennsylvania Law School

The New Federal Regulation Of Corporate Governance, Jill E. Fisch

Jill Fisch

No abstract provided.


Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang 2016 Univ of Penn Law School

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to ...


Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang 2016 University of Pennsylvania Law School

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

Sean Farhang

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 ...


Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer 2016 University of Pennsylvania

Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer

Sean Farhang

Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development ...


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