Law Commons^™

The Ecology Of Transparency Reloaded, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.

The late Justice Scalia argued that the …

Enhancing Public Access To Online Rulemaking Information, Cary Coglianese

Faculty Scholarship at Penn Carey Law

One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, government agencies have engaged in increasing efforts to make rulemaking information available online as well as to elicit public participation via electronic means of communication. How successful are these efforts? How might they be improved? In this article, I investigate agencies’ efforts to make rulemaking information available …

First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen

Faculty Scholarship at Penn Carey Law

No abstract provided.

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

Faculty Scholarship at Penn Carey Law

No abstract provided.

Veiled Women In The American Courtroom: Is The Niqab A Barrier To Justice?, Anita L. Allen

Faculty Scholarship at Penn Carey Law

U.S. courts and policy-makers have recently authorized laws and practices that interfere with the wearing of religious modesty attire that conceals the hair or face in contexts such as courtroom testimony or driver’s license issuance. For example, in response to a court’s dismissal of the case of a woman who refused to remove her niqab in the courtroom, the Michigan Supreme Court decided that judges can exercise “reasonable control” over the appearance of courtroom parties. But what degree of control over religious attire is reasonable? The Constitution will not allow a blanket niqab removal policy based on any of the …

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

Faculty Scholarship at Penn Carey Law

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 …

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

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick

Faculty Scholarship at Penn Carey Law

No abstract provided.

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Carey Law

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories of …

The Consciousness Of Religion And The Consciousness Of Law, With Some Implications For Dialogue, Howard Lesnick

Faculty Scholarship at Penn Carey Law

No abstract provided.

Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry

Faculty Scholarship at Penn Carey Law

No abstract provided.

Wealth, Utility, And The Human Dimension, Jonathan Klick, Francesco Parisi

Faculty Scholarship at Penn Carey Law

Functional law and economics, which draws its influence from the public choice school of economic thought, stands in stark contrast to both the Chicago and Yale schools of law and economics. While the Chicago school emphasizes the inherent efficiency of legal rules, and the Yale school views law as a solution to market failure and distributional inequality, functional law and economics recognizes the possibility for both market and legal failure. That is, while there are economic forces that lead to failures in the market, there are also structural forces that limit the law’s ability to remedy those failures on an …

Truth Machines And Consequences: The Light And Dark Sides Of 'Accuracy' In Criminal Justice, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

Responsibility For Unintended Consequences, Claire Oakes Finkelstein

Faculty Scholarship at Penn Carey Law

The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as closely as possible. …

Econometric Analysis Of U.S. Abortion Policy: A Critical Review, Jonathan Klick

Faculty Scholarship at Penn Carey Law

No abstract provided.

No Other Gods: Answering The Call Of Faith In The Practice Of Law, Howard Lesnick

Faculty Scholarship at Penn Carey Law

No abstract provided.

Speaking Volumes: Musings On The Issues Of The Day, Inspired By The Memory Of Mary Joe Frug, Regina Austin, Elizabeth M. Schneider

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Roles Of Litigation, Stephen B. Burbank

Faculty Scholarship at Penn Carey Law

No abstract provided.

Technologies Of Protest: Insurgent Social Movements And The First Amendment In The Era Of The Internet, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Possibility Of A Fair Paretian, Howard F. Chang

Faculty Scholarship at Penn Carey Law

No abstract provided.

"Bad For Business": Contextual Analysis, Race Discrimination, And Fast Food, Regina Austin

Faculty Scholarship at Penn Carey Law

No abstract provided.

A Liberal Theory Of Social Welfare: Fairness, Utility, And The Pareto Principle, Howard F. Chang

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Hazards Of Legal Fine Tuning: Confronting The Free Will Problem In Election Law Scholarship, Michael A. Fitts

Faculty Scholarship at Penn Carey Law

No abstract provided.

Personal Fulfillment In The Changing World Of Law Practice: Opportunities And Obstacles, Howard Lesnick

Faculty Scholarship at Penn Carey Law

No abstract provided.

The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

"Not Just For The Fun Of It!" Governmental Restraints On Black Leisure, Social Inequality, And The Privatization Of Public Space, Regina Austin

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Religious Lawyer In A Pluralist Society, Howard Lesnick

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

Nest Eggs And Stormy Weather: Law, Culture, And Black Women's Lack Of Wealth, Regina Austin

Faculty Scholarship at Penn Carey Law

No abstract provided.

Religious Particularity, Religious Metaphor, And Religious Truth: Listening To Tom Shaffer, Howard Lesnick

Faculty Scholarship at Penn Carey Law

No abstract provided.