Law Commons^™

Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

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One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.

Intellectual history in the United States went into decline because …

Catalogs, Gideon Parchomovsky, Alex Stein

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It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

Copyright’S Private Ordering And The 'Next Great Copyright Act', Jennifer E. Rothman

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Private ordering plays a significant role in the application of intellectual property laws, especially in the context of copyright law. In this Article, I highlight some of the dominant modes of private ordering and consider what formal copyright law should do, if anything, to engage with private ordering in the copyright space. I conclude that there is not one single approach that copyright law should take with regard to private ordering, but instead several different approaches. In some instances, the best option is for the law to get out of the way and simply continue to provide room for various …

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

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Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

Mead As (Mostly) Moot: Predictive Interpretation In Administrative Law, Ryan David Doerfler

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In National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court explained that, within the domain of unclear agency-administered statutes, a federal court is subordinate to an administering agency. When an administering agency speaks authoritatively, federal court practice reflects this. When an agency speaks only informally, however, federal court practice does not. Specifically, when construing an agency-administered statute absent an authoritative agency interpretation, a federal court errs, given its subordinate status, when it exercises independent judgment concerning what interpretation is best. Instead, that subordinate status requires a court to predict what authoritative interpretation the administering agency …

A Vision Of An Emerging Right To Health Care In The United States: Expanding Health Care Equity Through Legislative Reform, Allison K. Hoffman

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When asked to write a chapter on how litigation has advanced a right to health in the U.S., I responded skeptically, both because evidence of the existence of any such right is weak and the role of litigation in promoting its development is small at best. A snapshot of the U.S. health care system evinces the absence of even a more narrow right to health care – a guarantee of equitable access to basic medical care. Instead, it reveals a fragmented picture of public and private financing that leaves many people lacking meaningful access to care. More so, the places …

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

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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 retrench …

Thinking Ahead, Looking Back: Assessing The Value Of Regulatory Impact Analysis And Procedures For Its Use, Cary Coglianese

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Analysis is a tool for making important legislative and regulatory decisions but it is also a way of looking back to see whether decisions made in the past have been good ones. How well have legal rules actually worked in practice? Answering this question is crucial, not only for improving regulation and legislation in the future, but also for improving forward-looking regulatory impact analysis (RIA). This article was originally presented as the keynote address at the 22nd Anniversary International Conference of the Korea Legislation Research Institute in August 2012. It highlights what social scientists have told us generally about the …

The Impact Of Codification On The Judicial Development Of Copyright, Christopher S. Yoo

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Despite the Supreme Court’s rejection of common law copyright in Wheaton v. Peters and the more specific codification by the Copyright Act of 1976, courts have continued to play an active role in determining the scope of copyright. Four areas of continuing judicial innovation include fair use, misuse, third-party liability, and the first sale doctrine. Some commentators have advocated broad judicial power to revise and overturn statutes. Such sweeping judicial power is hard to reconcile with the democratic commitment to legislative supremacy. At the other extreme are those that view codification as completely displacing courts’ authority to develop legal principles. …

The Striking Success Of The National Labor Relations Act, Michael L. Wachter

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Although often viewed as a dismal failure, the National Labor Relations Act (NLRA) has been remarkably successful. While the decline in private sector unionization since the 1950s is typically viewed as a symbol of this failure, the NLRA has achieved its most important goal: industrial peace.

Before the NLRA and the 1947 Taft-Hartley Amendments, our industrial relations system gave rise to frequent and violent strikes that threatened the nation’s stability. For example, in the late 1870s, the Great Railroad Strike spread throughout a number of major cities. In Pittsburg alone, strikes claimed 24 lives, nearly 80 buildings, and over 2,000 …

Innovation And Competition Policy: Statutory Supplement And Other Materials, Herbert J. Hovenkamp

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This Supplement to Cases and Materials on Innovation and Competition Policy includes the following: (1) a statutory supplement containing relevant provisions of the antitrust laws, the Patent Act, the Copyright Act, and the DMCA: (2) an annotated table of contents. Other supplemental materials, including discussion of recent decisions or other developments, will be added from time to time.

This book will be supplemented frequently as important new decisions or other developments occur. However, the author will attempt not to revise individual chapters during the course of the academic semester in order to avoid confusion in pagination or printing. Instead, supplemental …

Domestic Violence Lawmaking In Asia: Some Innovative Trends In Feminist Lawmaking, Rangita De Silva De Alwis

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Domestic violence lawmaking intersects global human rights norms and domestic women's movements. Domestic violence is both a global and local phenomenon. The World Bank argues that domestic violence accounts for one in five lost years in women aged 15-44. The costs range from direct expenses such as medical care and social services to productivity and labor market costs to the psychological toll imposed by the intergenerational transmission of violence. The international women's movement and the international human rights conventions have confirmed that violence in the home is neither a private issue nor a cultural practice. Domestic violence was placed on …

Antitrust's "Jurisdictional" Reach Abroad, Herbert J. Hovenkamp

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In its Arbaugh decision the Supreme Court insisted that a federal statute’s limitation on reach be regarded as “jurisdictional” only if the legislature was clear that this is what it had in mind. The Foreign Trade Antitrust Improvement Act (FTAIA) presents a puzzle in this regard, because Congress seems to have been quite clear about what it had in mind; it simply failed to use the correct set of buzzwords in the statute itself, and well before Arbaugh assessed this requirement.

Even if the FTAIA is to be regarded as non-jurisdictional, the constitutional extraterritorial reach of the Sherman Act is …

A Cost-Benefit Interpretation Of The "Substantially Similar" Hurdle In The Congressional Review Act: Can Osha Ever Utter The E-Word (Ergonomics) Again?, Adam M. Finkel, Jason W. Sullivan

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The Congressional Review Act permits Congress to veto proposed regulations via a joint resolution, and prohibits an agency from reissuing a rule “in substantially the same form” as the vetoed rule. Some scholars—and officials within the agencies themselves—have understood the “substantially the same” standard to bar an agency from regulating in the same substantive area covered by a vetoed rule. Courts have not yet provided an authoritative interpretation of the standard.

This Article examines a spectrum of possible understandings of the standard, and relates them to the legislative history (of both the Congressional Review Act itself and the congressional veto …

Report On Offense Grading In New Jersey, Paul H. Robinson, Rebecca Levenson, Nicholas Feltham, Andrew Sperl, Kristen-Elise Brooks, Agatha Koprowski, Jessica Peake, Benjamin Probber, Brian Trainor

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The University of Pennsylvania Criminal Law Research Group was commissioned to do a study of offense grading in New Jersey. After an examination of New Jersey criminal law and a survey of New Jersey residents, the CLRG issued this Final Report. (For the report of a similar project for Pennsylvania, see Report on Offense Grading in Pennsylvania, http://ssrn.com/abstract=1527149, and for an article about the grading project, see The Modern Irrationalities of American Criminal Codes: An Empirical Study of Offense Grading, http://ssrn.com/abstract=1539083, Journal of Criminal Law and Criminology (forthcoming 2011).) The New Jersey study found serious conflicts between the relative grading …

Does The Packers And Stockyards Act Require Antitrust Harm?, Herbert J. Hovenkamp

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The Packers and Stockyards Act was enacted in 1921. Congress was plainly influenced by the 1919 publication of a Federal Trade Commission Report on the meatpacking industry. Consistent with the FTC’s jurisdiction and concerns, the Report dealt with deceptive and unfair practices as well as practices that were believed to violate the antitrust laws. The language of the PSA does much the same, mixing the two. Of its seven specific prohibitions, three contain antitrust-like provisions requiring a lessening of competition. Two others reach unfair and tort-like conduct without any requirement of harm to competition. The remaining two reach both anticompetitive …

Masthead, Editors

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Examining Gender Stereotypes In New Work/Family Reconciliation Policies: The Creation Of A New Paradigm For Egalitarian Legislation, Rangita De Silva De Alwis

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No abstract provided.

On The Road To Civil Gideon: Five Lessons From The Enactment Of A Right To Counsel For Indigent Homeowners In Federal Civil Forfeiture Proceedings, Louis S. Rulli

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No abstract provided.

Immigration, Association, And The Family, Matthew J. Lister

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In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why …

The Modern Irrationalities Of American Criminal Codes: An Empirical Study Of Offense Grading, Paul H. Robinson, Thomas Gaeta, Matthew Majarian, Megan Schultz, Douglas M. Weck

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The Model Penal Code made great advances in clarity and legality, moving most of the states from a mix of common law and ad hoc statutes to the modern American form of a comprehensive, succinct code that has served as a model around the world. Yet the decades since the wave of Model Code-based codifications have seen a steady degradation of American codes brought on by a relentless and accelerating rate of criminal law amendments that ignore the style, format, and content of the existing codes. The most damaging aspect of this trend is the exponentially increasing number of offense …

Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese

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Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobile emissions standards, I contrast the divergent reactions to presidential influence under President Bush and President Obama. In both administrations the EPA faced clear presidential pressure, but critics of President Bush’s involvement generally applauded the actions taken by President Obama. The main difference appears to …

Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, Catherine T. Struve

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No abstract provided.

Report On Offense Grading In Pennsylvania, Paul H. Robinson, Criminal Law Research Group, University Of Pennsylvania Law School

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The Pennsylvania Legislature's Senate Judiciary Committee and House Judiciary Committee jointly commissioned this study of the criminal offense grading scheme contained in Pennsylvania criminal statutes. This Final Report, which was presented to a joint session of the two Committees on December 15, 2009, examines the extent to which current Pennsylvania law defines offenses with offense grades that are inconsistent with the relative seriousness of the offense as compared to other offenses, based upon an empirical survey of Pennsylvania residents. It also examines whether some offenses include within a single grade forms of conduct of very different degrees of seriousness, for …

Ruth Bader Ginsburg And Sensible Pragmatism In Federal Jurisdictional Policy, Tobias Barrington Wolff

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This article, written as part of a symposium celebrating the work of Justice Ruth Bader Ginsburg on the occasion of her fifteenth year on the Supreme Court, examines the strain of sensible legal pragmatism that informs Justice Ginsburg's writing in the fields of Civil Procedure and Federal Jurisdiction. Taking as its point of departure the Supreme Court's decision in City of Chicago v. International College of Surgeons, in which Ginsburg dissented, the article develops an argument against strict textualism in federal jurisdictional analysis. In its place, the article urges a purposive mode of interpretation that approaches jurisdictional text with a …

Doctors, Discipline, And The Death Penalty: Professional Implications Of Safe Harbor Statutes, Nadia N. Sawicki

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State capital punishment statutes generally contemplate the involvement of medical providers, and courts have acknowledged that the qualifications of lethal injection personnel have a constitutionally relevant dimension. However, the American Medical Association has consistently voiced its opposition to any medical involvement in executions. In recent years, some states have responded to this conflict by adopting statutory mechanisms to encourage medical participation in lethal injections. Foremost among these are safe harbor policies, which prohibit state medical boards from taking disciplinary action against licensed medical personnel who participate in executions. This Article posits that safe harbor policies, as limitations on medical board …

Policymaking Under Pressure: The Perils Of Incremental Responses To Climate Change, Cary Coglianese, Jocelyn D’Ambrosio

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Federal policymakers’ reluctance to enact a comprehensive climate change policy during the past decade has coincided with increased awareness of the inevitability and severity of the problems from global climate change. Thus, it is no surprise that piecemeal, sub-federal policies have garnered considerable support. Bolstered by the political science literature on the promise of incrementalism and democratic experimentalism, many proponents of climate change action favor incremental steps in the hope that they will improve the environment or at least serve as a basis for more comprehensive policies. Against this hopeful view, we explain why ad hoc responses to climate change …

Has The Erie Doctrine Been Repealed By Congress?, Geoffrey C. Hazard Jr.

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No abstract provided.

Varieties Of Employee Ownership: Some Unintended Consequences Of Corporate Law And Labor Law, Aditi Bagchi

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Theories of employee ownership implicitly assume that its essential features are the same in all countries. In fact, employee ownership varies considerably across institutional environments. In this paper, I compare its development in the United States, Germany, and Sweden to show that the institutional background - in particular, the existing bodies of corporate and labor law - against which a program of employee ownership arises determines its course. Background institutions determine the cost of worker control over management, the cost of collective decision-making, and the expected gains from risk-bearing. Those consequences of corporate and labor law in turn determine whether …

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

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No abstract provided.