Law Commons^™

The Triumph And Tragedy Of Tobacco Control: A Tale Of Nine Nations, Eric A. Feldman, Ronald Bayer

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The use of law and policy to limit tobacco consumption illustrates one of the greatest triumphs of public health in the late twentieth and early twenty-first centuries, as well as one of its most fundamental failures. Overall decreases in tobacco consumption throughout the developed world represent millions of saved lives and unquantifiable suffering averted. Yet those benefits have not been equally distributed. The poor and the undereducated have enjoyed fewer of the gains. In this review, we build on existing tobacco control scholarship and expand it both conceptually and comparatively. Our focus is the social gradient of smoking both within …

Introduction: Appreciating Bill Stuntz, Michael Klarman, David A. Skeel Jr., Carol Steiker

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The past several decades have seen a renaissance in criminal procedure as a cutting edge discipline, and as one inseparably linked to substantive criminal law. The renaissance can be traced in no small part to the work of a single scholar: William Stuntz. This essay is the introductory chapter to The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz (forthcoming, Cambridge University Press, 2012), which brings together twelve leading American criminal justice scholars whose own writings have been profoundly influenced by Stuntz and his work. After briefly chronicling the arc of Stuntz’s career, the essay provides …

State Bankruptcy From The Ground Up, David A. Skeel Jr.

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After a brief, high profile debate, proposals to create a new bankruptcy framework for states dropped from sight in Washington in early 2011. With the debate’s initial passions having cooled, at least for a time, we can now consider state bankruptcy, as well as other responses to states’ fiscal crisis, a bit more quietly and carefully. In this Article, I begin by briefly outlining a theoretical and practical case for state bankruptcy. Because I have developed these arguments in much more detail in companion work, I will keep the discussion comparatively brief. My particular concern here is, as the title …

Perpetuating The Marginalization Of Latinos: A Collateral Consequence Of The Incorporation Of Immigration Law Into The Criminal Justice System, Yolanda Vazquez

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Latinos currently represent the largest minority in the United States. In 2009, we witnessed the first Latina appointment to the United States Supreme Court. Despite these events, Latinos continue to endure racial discrimination and social marginalization in the United States. The inability of Latinos to gain political acceptance and legitimacy in the United States can be attributed to the social construct of Latinos as threats to national security and the cause of criminal activity.

Exploiting this pretense, American government, society and nationalists are able to legitimize the subordination and social marginalization of Latinos, specifically Mexicans and Central Americans, much to …

When The Government Is The Controlling Shareholder, Marcel Kahan, Edward B. Rock

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As a result of the 2008 bailouts, the United States Government is now the controlling shareholder in AIG, Citigroup, GM, GMAC, Fannie Mae and Freddie Mac. Corporate law provides a complex and comprehensive set of standards of conduct to protect non-controlling shareholders from controlling shareholders who have goals other than maximizing firm value. In this article, we analyze the extent to which these existing corporate law structures of accountability apply when the government is the controlling shareholder, and the extent to which federal “public law” structures substitute for displaced state “private law” norms. We show that the Delaware restrictions on …

Collateral Consequences, Genetic Surveillance, And The New Biopolitics Of Race, Dorothy E. Roberts

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This Article is part of a Howard Law Journal Symposium on “Collateral Consequences: Who Really Pays the Price for Criminal Justice?,” as well as my larger book project, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century (The New Press, 2011). It considers state and federal government expansion of genetic surveillance as a collateral consequence of a criminal record in the context of a new biopolitics of race in America. Part I reviews the expansion of DNA data banking by states and the federal government, extending the collateral impact of a criminal record—in the form …

Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister

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Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan’s recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I review Buchanan’s new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to …

Making Sense Of The New Financial Deal, David A. Skeel Jr.

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In this Essay, I assess the enactment and implications of the Dodd-Frank Act, Congress’s response to the 2008 financial crisis. To set the stage, I begin by very briefly reviewing the causes of the crisis. I then argue that the legislation has two very clear objectives. The first is to limit the risk of the shadow banking system by more carefully regulating the key instruments and institutions of contemporary finance. The second objective is to limit the damage in the event one of these giant institutions fails. While the new regulation of the instruments of contemporary finance—including clearing and exchange …

Board Diversity Revisited: New Rationale, Same Old Story, Lisa Fairfax

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Recently, board diversity advocates have relied on market- or economic-based rationales to convince corporate America to increase the number of women and people of color in the boardroom, in lieu of moral or social justifications. This shift away from moral or social justifications has been deliberate, and it stems from a belief that corporate America would better respond to justifications that centered on the corporate bottom line. However, recent empirical data reveals that despite the increased reliance on, and apparent acceptance of, market- or economic-based rationales for board diversity, there has been little change in actual board diversity. This Article …

The Shifting Terrain Of Risk And Uncertainty On The Liability Insurance Field, Tom Baker

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Recent sociological and historical work suggests that insurance risks often are not reliably calculable, except in hindsight. Insurance is “an uncertain business,” characterized by competition for premiums that pushes insurers into the unknown. This essay takes some preliminary steps that extend this insight into the liability insurance field. The essay first provides a simple quantitative comparison of U.S. property and liability insurance premiums over the last sixty years, setting the stage to make three points: (1) liability insurance premiums have grown at a similar rate as property insurance premiums and GDP over this period, providing yet another piece of evidence …

Masthead, Editors

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Punishment As Contract, Claire Oakes Finkelstein

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This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …

Technologies Of Control And The Future Of The First Amendment, Christopher S. Yoo

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The technological context surrounding the Supreme Court’s landmark decision in FCC v. Pacifica Foundation allowed the Court to gloss over the tension between two rather disparate rationales. Those adopting a civil libertarian view of free speech could support the decision on the grounds that viewers’ and listeners’ inability to filter out unwanted speech exposed them to content that they did not wish to see or hear. At the same time, Pacifica also found support from those who more paternalistically regard indecency as low value (if not socially harmful) speech that is unworthy of full First Amendment protection. The arrival of …

Associational Privacy And The First Amendment: Naacp V. Alabama, Privacy And Data Protection, Anita L. Allen

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No abstract provided.

Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas

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No abstract provided.

Are We Responsible For Who We Are? The Challenge For Criminal Law Theory In The Defenses Of Coercive Indoctrination And "Rotten Social Background", Paul H. Robinson

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Should coercive indoctrination or "rotten social background" be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community's shared intuitions of justice support it. The law’s rejection of such defenses suggests that there …

Severe Environmental Deprivation (Aka Rsb): A Tragedy, Not A Defense, Stephen J. Morse

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This article is a contribution to a symposium issue of the Alabama Civil Rights & Civil Liberties Law Review devoted to whether severe environmental deprivation, sometimes termed rotten social background, should be a defense to crime and why it has not been adopted. I begin by presenting the framework I apply for thinking about such problems. I then identify the main theses Professors Richard Delgado and Andrew Taslitz present and consider their merits. Next, I turn to the arguments of the other papers by Professors Paul Robinson, Erik Luna and Angela Harris. I make two general arguments: first, that SED …

What Will Our Future Look Like And How Will We Respond?, Michael A. Fitts

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Unequal Promises, Aditi Bagchi

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This essay explores the nature and implications of a type of inequality that is widespread but largely ignored. Promises deliver important ethical value, and commercial promises, because they are our most common experience of promise with strangers, are of special value. But not all commercial promises generate that value equally. This paper makes the following claims: (1) while some retail promises are promises either to deliver a good or service, or to pay some compensation, other retail promises are simple promises to deliver a good or service; (2) retail promises in high-end markets are more likely to have the simple …

Redefining Human Rights Lawyering Through The Lens Of Critical Theory: Lessons For Pedagogy And Practice, Carol Bettinger-Lopez, Davida Finger, Meetali Jain, Jonel Newman, Sarah Paoletti, Deborah M. Weissman

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No abstract provided.

Criminalization Tensions: Empirical Desert, Changing Norms, And Rape Reform, Paul H. Robinson

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This short Article is part of the organizers’ larger Criminalization Project, which seeks, among other things, to develop theories for how criminalization decisions should be made. The argument presented here is that there is instrumentalist, as well as deontological, value in having criminalization decisions that generally track the community’s judgments about what is sufficiently condemnable to be criminal, but that there are also good reasons to deviate from community views. Interestingly, those in the business of social reform may be the ones with the greatest stake in normally tracking community views, in order to avoid community perceptions of the criminal …

Abnormal Mental State Mitigations Or Murder – The U.S. Perspective, Paul H. Robinson

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This paper examines the U.S. doctrines that allow an offender's abnormal mental state to reduce murder to manslaughter. First, the modern doctrine of "extreme emotional disturbance," as in Model Penal Code Section 210.3(1)(b), mitigates to manslaughter what otherwise would be murder when the killing "is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse." While most American jurisdictions are based upon the Mode Code, this is an area in which many states chose to retain their more narrow common law "provocation" mitigation. Second, the modern doctrine of "mental illness negating an …

Deregulation Vs. Reregulation Of Telecommunications: A Clash Of Regulatory Paradigms, Christopher S. Yoo

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For the past several decades, U.S. policymakers and the courts have charged a largely deregulatory course with respect to telecommunications. During the initial stages, these decisionmakers responded to technological improvements by narrowing regulation to cover only those portions of industry that remained natural monopolies and deregulating those portions that became open to competition. Eventually, Congress began regulating individual network components rather than services, mandating that incumbent local telephone companies provide unbundled access to any network element. As these elements became open to competition, the courts prompted the Federal Communications Commission to release almost the entire network from unbundling obligations. The …

Advantaging Aggressors: Justice & Deterrence In International Law, Paul H. Robinson, Adil Ahmad Haque

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Current international law imposes limitations on the use of force to defend against unlawful aggression that improperly advantage unlawful aggressors and disadvantage their victims. The Article gives examples of such rules, governing a variety of situations, showing how clearly unjust they can be. No domestic criminal law system would tolerate their use.

There are good practical reasons why international law should care that its rules are perceived as unjust. Given the lack of an effective international law enforcement mechanism, compliance depends to a large degree upon the moral authority with which international law speaks. Compliance is less likely when its …