Law Commons^™

The New Penal Bureaucrats, Shaun Ossei-Owusu

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he protests of 2020 have jump-started conversations about criminal justice reform in the public and professoriate. Although there have been longstanding demands for reformation and re-imagining of the criminal justice system, recent calls have taken on a new urgency. Greater public awareness of racial bias, increasing visual evidence of state-sanctioned killings, and the televised policing of peaceful dissent have forced the public to reckon with a penal state whose brutality was comfortably tolerated. Scholars are publishing op-eds, policy proposals, and articles with rapidity, pointing to different factors and actors that produce the need for reform. However, one input has gone …

Disability Benefits As Poverty Law: Revisiting The "Disabled State", Karen M. Tani

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This essay uses the history of Sullivan v. Zebley, a famous disability benefits case, to revisit political scientist Deborah Stone’s argument in THE DISABLED STATE (1984). Observing that “[m]edical certification” of disability had “become one of the major paths to public aid in the modern welfare state,” Stone wondered whether policymakers were asking the “concept of disability” to do too much and whether they were sufficiently alert to the concept’s tendency to expand over time.

Filed in 1983 and decided by the Supreme Court in 1990, Sullivan v. Zebley is an example of those expansionary pressures and their results. …

The Invention Of Antitrust, Herbert J. Hovenkamp

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The long Progressive Era, from 1900 to 1930, was the Golden Age of antitrust theory, if not of enforcement. During that period courts and Progressive scholars developed nearly all of the tools that we use to this day to assess anticompetitive practices under the federal antitrust laws. In a very real sense we can say that this group of people invented antitrust law. The principal contributions the Progressives made to antitrust policy were (1) partial equilibrium analysis, which became the basis for concerns about economic concentration, the distinction between short- and long-run analysis, and later provided the foundation for the …

Racial Justice And Administrative Procedure, Sophia Z. Lee

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This article argues that commemorating the Administrative Procedure Act (APA) should involve accounting for the role it has played in both advancing and thwarting racial justice, as well as the role racial justice advocates have played in shaping its interpretation. The APA was not designed to advance racial justice; indeed, its provisions insulated some of the mid-twentieth century's most racially pernicious policies from challenge. Yet racial justice advocates have long understood that administrative agencies could be a necessary or even uniquely receptive target for their efforts and the APA shaped those calculations. Along the way, racial justice advocates left their …

Pretrial Detention And The Value Of Liberty, Megan Stevenson, Sandra G. Mayson

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How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous—and which has looked to algorithmic risk assessments to quantify danger—has brought this question to the fore. Constitutional doctrine authorizes pretrial detention when the government’s interest in safety “outweighs” an individual’s interest in liberty, but it does not specify how to balance these goods. If detaining ten presumptively innocent people for three months is projected to prevent one robbery, is it worth it?

This Article confronts the question of …

Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

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In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a large collection …

A Miser’S Rule Of Reason: The Supreme Court And Antitrust Limits On Student Athlete Compensation, Herbert J. Hovenkamp

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The unanimous Supreme Court decision in NCAA v. Alston is its most important probe of antitrust’s rule of reason in decades. The decision implicates several issues, including the role of antitrust in labor markets, how antitrust applies to institutions that have an educational mission as well as involvement in a large commercial enterprise, and how much leeway district courts should have in creating decrees that contemplate ongoing administration.

The Court accepted what has come to be the accepted framework: the plaintiff must make out a prima facie case of competitive harm. Then the burden shifts to the defendant to produce …

Criminal Law’S Core Principles, Paul H. Robinson

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Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this “blank slate” conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.

Many writers dispute that such core principles …

Duty And Diversity, Chris Brummer, Leo E. Strine Jr.

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In the wake of the brutal deaths of George Floyd and Breonna Taylor, a slew of reforms from Wall Street to the West Coast have been introduced, all aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope and degree of legal obligation and practical effects. In this Article, we provide an old answer to the new questions facing DEI policy, and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we show that …

Secured Transactions Law Reform In Japan: Japan Business Credit Project Assessment Of Interviews And Tentative Policy Proposals, Megumi Hara, Kumiko Koens, Charles W. Mooney Jr.

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This article summarizes key findings from the Japan Business Credit Project (JBCP), which involved more than 30 semi-structured interviews conducted in Japan from 2016 through 2018. It was inspired by important and previously unexplored questions concerning secured financing of movables (business equipment and inventory) and claims (receivables)—“asset-based lending” or “ABL.” Why is the use of ABL in Japan so limited? What are the principal obstacles and disincentives to the use of ABL in Japan? The interviews were primarily with staff of banks, but also included those of government officials and regulators, academics, and law practitioners. The article proposes reforms of …

Antitrust By Algorithm, Cary Coglianese, Alicia Lai

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Technological innovation is changing private markets around the world. New advances in digital technology have created new opportunities for subtle and evasive forms of anticompetitive behavior by private firms. But some of these same technological advances could also help antitrust regulators improve their performance in detecting and responding to unlawful private conduct. We foresee that the growing digital complexity of the marketplace will necessitate that antitrust authorities increasingly rely on machine-learning algorithms to oversee market behavior. In making this transition, authorities will need to meet several key institutional challenges—building organizational capacity, avoiding legal pitfalls, and establishing public trust—to ensure successful …

The Psychology Of Separation: Border Walls, Soft Power, And International Neighborliness, Diana C. Mutz, Beth A. Simmons

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This study assesses the impact of international border walls on evaluations of countries and on beliefs about bilateral relationships between states. Using a short video, we experimentally manipulate whether a border wall image appears in a broader description of the history and culture of a little-known country. In a third condition, we also indicate which bordering country built the wall. Demographically representative samples from the United States, Ireland, and Turkey responded similarly to these experimental treatments. Compared to a control group, border walls lowered evaluations of the bordering countries. They also signified hostile international relationships to third-party observers. Furthermore, the …

Stealth Governance: Shareholder Agreements And Private Ordering, Jill E. Fisch

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Corporate law has embraced private ordering -- tailoring a firm’s corporate governance to meet its individual needs. Firms are increasingly adopting firm-specific governance through dual-class voting structures, forum selection provisions and tailored limitations on the duty of loyalty. Courts have accepted these provisions as consistent with the contractual theory of the firm, and statutes, in many cases, explicitly endorse their use. Commentators too support private ordering for its capacity to facilitate innovation and enhance efficiency.

Private ordering typically occurs through firm-specific charter and bylaw provisions. VC-funded startups, however, frequently use an alternative tool – shareholder agreements. These agreements, which have …

Do Police Union Contracts Hinder Accountability: A Quantitative Approach, Jacob Bell

Prize Winning Papers

Winner of Penn Carey Law's 2022 Wiley C. Rutledge Memorial Fund Award for the best research project on the relation of law enforcement and individual liberty.

Orchestrating Equity: What Antidiscrimination Law Can Learn From Blind Hiring In American Orchestras, Stephen F. Marino

Prize Winning Papers

Winner of Penn Law's 2022 Herman Lazarus Prize for the best paper on a topic of comparative labor or employment law: