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Full-Text Articles in Law

Government Clubs: Theory And Evidence From Voluntary Environmental Programs, Cary Coglianese, Jennifer Nash Dec 2008

Government Clubs: Theory And Evidence From Voluntary Environmental Programs, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

The U.S. Environmental Protection Agency (EPA) has established numerous voluntary environmental programs over the last fifteen years, seeking to encourage businesses to make environmental progress beyond what current law requires them to achieve. EPA aims to induce beyond-compliance behavior by offering various forms of recognition and rewards, including relief from otherwise applicable environmental regulations. Despite EPA's emphasis on voluntary programs,relatively few businesses have availed themselves of these programs -- and paradoxically, the programs that offer the most significant regulatory benefits tend to have the fewest members. We explain this paradox by focusing on (a) how programs'membership screening ...


Evaluating The Social Effects Of Environmental Leadership Programs, Jonathan C. Borck, Cary Coglianese, Jennifer Nash Oct 2008

Evaluating The Social Effects Of Environmental Leadership Programs, Jonathan C. Borck, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

In the past decade, EPA and over 20 states have created voluntary environmental leadership programs designed to recognize and reward businesses that take steps that go beyond compliance with the strictures of environmental law. Environmental leadership programs seek not only to spur direct improvements to environment quality but also to advance broader social goals that may lead indirectly to environmental improvements, such as improving business-government relationships and changing business culture. Measuring progress toward leadership programs’ social goals is a particularly challenging but essential task if researchers and decision makers are to understand the full impacts of these programs. In this ...


The Freedom Of Information Act And The Ecology Of Transparency, Seth F. Kreimer Sep 2008

The Freedom Of Information Act And The Ecology Of Transparency, Seth F. Kreimer

Faculty Scholarship at Penn Law

The Framers’ approbation of a unitary executive rested in important part on the belief that the unitary executive’s actions were apt to be more “narrowly watched and readily suspected” by an informed public opinion than those of a plural executive. Yet the body of the Constitution provides no right to public information. What the Constitutional text omits, the last generation has embedded as a part of modern constitutional practice in the Freedom of Information Act. Some critics have deplored FOIA as a “romantic” effort at “self help oversight”, superfluous in light of the checks and balances of divided government ...


Network Neutrality, Consumers, And Innovation, Christopher S. Yoo Aug 2008

Network Neutrality, Consumers, And Innovation, Christopher S. Yoo

Faculty Scholarship at Penn Law

In this Article, Professor Christopher Yoo directly engages claims that mandating network neutrality is essential to protect consumers and to promote innovation on the Internet. It begins by analyzing the forces that are placing pressure on the basic network architecture to evolve, such as the emergence of Internet video and peer-to-peer architectures and the increasing heterogeneity in business relationships and transmission technologies. It then draws on the insights of demand-side price discrimination (such as Ramsey pricing) and the two-sided markets, as well as the economics of product differentiation and congestion, to show how deviating from network neutrality can benefit consumers ...


Political Versus Administrative Justice, Stephanos Bibas Aug 2008

Political Versus Administrative Justice, Stephanos Bibas

Faculty Scholarship at Penn Law

This comment responds to an essay by Rachel Barkow, which insightfully links the decline of mercy in American criminal justice to the rise of a rule-of-law ideal inspired by administrative law. This comment notes the dangers of the administrative, rule-focused, judiciocentric approach to criminal justice. Instead, it suggests a more political approach, with more judicial deference to political actors and less judicial policing of equal treatment. The essay by Rachel Barkow to which this comment responds, as well as other authors' comments on this essay and the author's reply to those comments, can be found at http://www.law ...


Compliance With Advance Directives: Wrongful Living And Tort Law Incentives, Holly Fernandez Lynch, Michele Mathes, Nadia N. Sawicki Jun 2008

Compliance With Advance Directives: Wrongful Living And Tort Law Incentives, Holly Fernandez Lynch, Michele Mathes, Nadia N. Sawicki

Faculty Scholarship at Penn Law

Modern ethical and legal norms generally require that deference be accorded to patients' decisions regarding treatment, including decisions to refuse life-sustaining care, even when patients no longer have the capacity to communicate those decisions to their physicians. Advance directives were developed as a means by which a patient's autonomy regarding medical care might survive such incapacity. Unfortunately, preserving patient autonomy at the end of life has been no simple task. First, it has been difficult to persuade patients to prepare for incapacity by making their wishes known. Second, even when they have done so, there is a distinct possibility ...


The Unbearable Lightness Of Christian Legal Scholarship, David A. Skeel Jr. Jun 2008

The Unbearable Lightness Of Christian Legal Scholarship, David A. Skeel Jr.

Faculty Scholarship at Penn Law

When the ascendancy of a new movement leaves a visible a mark on American politics and law, its footprints ordinarily can be traced through the pages of America’s law reviews. But the influence of evangelicals and other theologically conservative Christians has been quite different. Surveying the law review literature in the 1976, the year Newsweek proclaimed as the "year of the evangelical," one would not find a single scholarly legal article outlining a Christian perspective on law or any particular legal issue. Even in the 1980s and 1990s, the literature remained remarkably thin. By the 1990s, distinctively Christian scholarship ...


Invasions Of Conscience And Faked Apologies, Stephanos Bibas Jun 2008

Invasions Of Conscience And Faked Apologies, Stephanos Bibas

Faculty Scholarship at Penn Law

This comment responds to an essay by Jeffrie Murphy, which powerfully notes the limitations and dangers of using remorse and apology as metrics for punishment. But the state is more justified in teaching lessons than Murphy suggests, and retributivism ought to make more room for victim vindication and satisfaction. Gauging sincerity, while difficult, is not impossible. In the end, Murphy offers strong reasons to be cautious. But a humane society ought to be more willing to take chances and, having punished, to forgive. The essay by Jeffrie Murphy to which this comment responds, as well as other authors' comments on ...


Happiness Research And Cost-Benefit Analysis, Matthew D. Adler, Eric Posner Jun 2008

Happiness Research And Cost-Benefit Analysis, Matthew D. Adler, Eric Posner

Faculty Scholarship at Penn Law

A growing body of research on happiness or subjective well-being shows, among other things, that people adapt to many injuries more rapidly than is commonly thought, fail to predict the degree of adaptation and hence overestimate the impact of those injuries on their well-being, and, similarly, enjoy small or moderate rather than significant changes in well-being in response to significant changes in income. Some researchers believe that these findings pose a challenge to cost-benefit analysis, and argue that project evaluation decision-procedures based on economic premises should be replaced with procedures that directly maximize subjective well-being. This view turns out to ...


The Discriminating Mind: Define It, Prove It, Amy L. Wax May 2008

The Discriminating Mind: Define It, Prove It, Amy L. Wax

Faculty Scholarship at Penn Law

Differential group achievements in competitive spheres like business, government, and academia, in conjunction with professed organizational commitments to fairness and equal opportunity, fuel claims that unconscious discrimination operates widely in society today. But attempts to blame disparities by race or sex on inadvertent bias must be approached with caution in the current climate. Many allegations concerning unconscious discrimination do not properly allege category-based treatment at all but rather target the disparate impact, or differential effects, of category-neutral criteria. Such impacts often reflect welldocumented “supply side” disparities between groups in human capital development, qualifications, and behavior. These patterns are not most ...


Hate Speech, C. Edwin Baker Mar 2008

Hate Speech, C. Edwin Baker

Faculty Scholarship at Penn Law

This paper describes the rationale that a full protection theory of free speech, a theory based on respect for individual autonomy, would give for protecting hate speech. The paper then notes that such a rationale will be unpersuasive to many (including this author) if the harms associated with a failure to outlaw hate speech are as great as often suggested – most dramatically, if the failure to prohibit makes a substantial contribution to the occurrence of serious racial/ethnic violence or genocide. The article then attempts to outline what empirical evidence would be needed to support this conclusion and gives reasons ...


Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson Mar 2008

Competing Conceptions Of Modern Desert: Vengeful, Deontological, And Empirical, Paul H. Robinson

Faculty Scholarship at Penn Law

The dispute over the role desert should play, if any, in assessing criminal liability and punishment has a long and turbulent history. There is some indication that deserved punishment -- referred to variously as desert, just punishment, retributive punishment, or simply doing justice -- may be in ascendance, both in academic debate and in real world institutions. A number of modern sentencing guidelines have adopted it as their distributive principle. Desert is increasingly given deference in the purposes section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code's provisions. Indeed, a ...


Engines Of Inequality: Class, Race, And Family Structure, Amy L. Wax Jan 2008

Engines Of Inequality: Class, Race, And Family Structure, Amy L. Wax

Faculty Scholarship at Penn Law

The past 30 years have witnessed a dramatic divergence in family structure by social class, income, education, and race. This article reviews the data on these trends, explores their significance, and assesses social scientists’ recent attempts to explain them. The article concludes that society-wide changes in economic conditions or social expectations cannot account for these patterns. Rather, for reasons that are poorly understood, cultural disparities have emerged by class and race in attitudes and behaviors surrounding family, sexuality, and reproduction. These disparities will likely fuel social and economic inequality and contribute to disparities in children’s life prospects for decades ...


The Paths Of Christian Legal Scholarship, David A. Skeel Jr. Jan 2008

The Paths Of Christian Legal Scholarship, David A. Skeel Jr.

Faculty Scholarship at Penn Law

The history of twentieth century Christian legal scholarship– really, the absence of Christian legal scholarship in America’s elite law schools– can be told as a tale of two emblematic clashes: the first an intriguing historical footnote, the second a brief, explosive war of words. In the first, a tort action in Nebraska circa 1890,William Jennings Bryan and Roscoe Pound served as opposing counsel; the second was a war of words in the 1940s between a group of neo-Thomist scholars and defenders of Oliver Wendell Holmes. Using these two incidents to frame as a starting point, this essay briefly ...


Health Law’S Coherence Anxiety, Theodore Ruger Jan 2008

Health Law’S Coherence Anxiety, Theodore Ruger

Faculty Scholarship at Penn Law

Academic health law is often said to suffer from a "law of the horse" problem, or, more particularly, to lack various dimensions of theoretical coherence. In conventional legal academic discourse, the "coherence" ideal prioritizes a cluster of attributes, all of which health law lacks: sparse conceptual singularity, a reductionist focus on particular legal forms, institutional centralization, and historical determinism and orderly development of a legal field. Health law is a singularly poor fit with this traditional model of field coherence. It is a mishmash of various legal forms, applied by divergent and often colliding institutions, and has developed much more ...


Polyphonic Stare Decisis: Listening To Non-Article Iii Actors, Kermit Roosevelt Jan 2008

Polyphonic Stare Decisis: Listening To Non-Article Iii Actors, Kermit Roosevelt

Faculty Scholarship at Penn Law

This article explores the input that non-Article III actors can and should have in the Supreme Court’s decision to reconsider a prior constitutional decision. It employs a model of constitutional decision-making that distinguishes between the articulation of constitutional meaning and the construction of constitutional doctrine to identify several different stages at which a court can adhere to or depart from precedent and examines the persuasive power of non-Article III input at each stage.


Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas Jan 2008

Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas

Faculty Scholarship at Penn Law

The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child ...


Determinism And The Death Of Folk Psychology: Two Challenges To Responsibility From Neuroscience, Stephen J. Morse Jan 2008

Determinism And The Death Of Folk Psychology: Two Challenges To Responsibility From Neuroscience, Stephen J. Morse

Faculty Scholarship at Penn Law

No abstract provided.


The Rhetoric And Reality Of Regulatory Reform, Cary Coglianese Jan 2008

The Rhetoric And Reality Of Regulatory Reform, Cary Coglianese

Faculty Scholarship at Penn Law

In January 2007, President George W. Bush stirred up widespread controversy by issuing amendments to an executive order on regulatory review adopted initially by President Clinton. The Bush amendments variously require agencies to issue written regulatory problem statements, assign gate-keeping responsibilities to Regulatory Policy Officers within each agency, and undertake analytic reviews before adopting certain kinds of guidance documents. Both legal scholars and policy advocates charge that the Bush amendments place significant new burdens on administrative agencies and will delay the issuance of important new regulatory policies. This paper challenges the rhetorical claims of obstructionism that have emerged in response ...


Federal Jurisdiction And Due Process In The Era Of The Nationwide Class Action, Tobias Barrington Wolff Jan 2008

Federal Jurisdiction And Due Process In The Era Of The Nationwide Class Action, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

The class action has come of age in America. With increasing regularity, class litigation plays a central role in discussions about theory, doctrine, and policy in the American civil justice system. The dynamics of the class action lie at the heart of current debates over the nature of the litigation process and the limits of adjudication in effectuating social policy. Choice of law analysis has enjoyed a renaissance as its significance to the question of class certification has become apparent. Class litigation now frequently drives debates over tort reform and the phenomenon of regulation through litigation. In these and many ...


The Virtuous Spy: Privacy As An Ethical Limit, Anita L. Allen Jan 2008

The Virtuous Spy: Privacy As An Ethical Limit, Anita L. Allen

Faculty Scholarship at Penn Law

Is there any reason not to spy on other people as necessary to get the facts straight, especially if you can put the facts you uncover to good use? To “spy” is secretly to monitor or investigate another's beliefs, intentions, actions, omissions, or capacities, especially as revealed in otherwise concealed or confidential conduct, communications and documents. By definition, spying involves secret, covert activity, though not necessarily lies, fraud or dishonesty. Nor does spying necessarily involve the use of special equipment, such as a tape recorder or high-powered binoculars. Use of a third party agent, such as a “private eye ...


Undressing Difference: The Hijab In The West, Anita L. Allen Jan 2008

Undressing Difference: The Hijab In The West, Anita L. Allen

Faculty Scholarship at Penn Law

On March 15, 2006, French President Jacques Chirac signed into law an amendment to his country’s education statute, banning the wearing of "conspicuous" signs of religious affiliation in public schools. Prohibited items included "a large cross, a veil, or skullcap." The ban was expressly introduced by lawmakers as an application of the principle of government neutrality, "du principe de laïcité." Opponents of the law viewed it primarily as an intolerant assault against the hijab, a head and neck wrap worn by many Muslim women around the world. In Politics of the Veil, Professor Joan Wallach Scott offers an illuminating ...


Reconstructing The Race-Sex Analogy, Serena Mayeri Jan 2008

Reconstructing The Race-Sex Analogy, Serena Mayeri

Faculty Scholarship at Penn Law

No abstract provided.


The Domestic Influence Of International Criminal Tribunals: The International Criminal Tribunal For The Former Yugoslavia And The Creation Of The State Court Of Bosnia & Herzegovina, William W. Burke-White Jan 2008

The Domestic Influence Of International Criminal Tribunals: The International Criminal Tribunal For The Former Yugoslavia And The Creation Of The State Court Of Bosnia & Herzegovina, William W. Burke-White

Faculty Scholarship at Penn Law

International criminal tribunals are often criticized for having minimal influence on the states over which they exercise jurisdiction. This article argues that the International Criminal Tribunal for the Former Yugoslavia has had a far more positive impact on domestic governance in Bosnia & Herzegovina than previously assumed by both the academic and policy communities. The article develops a theoretical model to explain the impact of international criminal tribunals on domestic governance and tests that model against the ICTY¹s influence in Bosnia. More specifically, the article advances the claim that the nature of the tribunal¹s jurisdictional relationship with domestic judicial institutions and ...


Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii Jan 2008

Detention And Interrogation In The Post-9/11 World, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

Our detention and interrogation policies in the wake of the terrorist attacks of 9/11 have been a disaster. This paper, delivered as a Donahue Lecture at Suffolk University Law School in February 2008, explores the dimensions and source of that disaster. It first offers a clear and intelligible narrative of the construction and implementation of executive detention and interrogation policy and then analyzes the roles played by the different branches of government and the American people in order to understand how we have ended up in our current situation.


Thoroughly Modern: Sir James Fitzjames Stephen On Criminal Responsibility, Stephen J. Morse Jan 2008

Thoroughly Modern: Sir James Fitzjames Stephen On Criminal Responsibility, Stephen J. Morse

Faculty Scholarship at Penn Law

5 Ohio St. J. Crim. Law 505 (2008)


Reconfiguring Property In Three Dimensions, Abraham Bell, Gideon Parchomovsky Jan 2008

Reconfiguring Property In Three Dimensions, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship at Penn Law

In this Article, we demonstrate that every property question invariably involves three distinct dimensions: (1) the number of owners, (2) the scope of owner’s dominion and (3) asset configuration. Furthermore, we claim that the interplay among the three dimensions shapes the field of property and holds the key to understanding the deep structure of property law. On this view, property law is a balancing act that requires policymakers and private actors to constantly juggle the often-conflicting demands lying along these three dimensions. The three-dimensional account of property we develop in this Article has important descriptive and normative implications. Descriptively ...


Environmental Leadership Programs: Toward An Empirical Assessment Of Their Performance*, Jonathan C. Borck, Cary Coglianese, Jennifer Nash Jan 2008

Environmental Leadership Programs: Toward An Empirical Assessment Of Their Performance*, Jonathan C. Borck, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

Over the past decade, the U.S. Environmental Protection Agency (EPA) and states have developed environmental leadership programs (ELPs), a type of voluntary environmental program designed to recognize facilities with strong environmental performance records and encourage facilities to perform better. Proponents argue that ELPs overcome some of the limitations of traditional environmental regulation by encouraging managers to address the full gamut of environmental problems posed by their facilities, reducing the costs of environmental regulation, easing adversarialism, and fostering positive culture change. Although ELPs have been in place for at least five years at the federal level and in seventeen states ...


Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen Jan 2008

Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen

Faculty Scholarship at Penn Law

The term “lifelog” refers to a comprehensive archive of an individual's quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the ...


The Economics Of International Labor Migration And The Case For Global Distributive Justice In Liberal Political Theory, Howard F. Chang Jan 2008

The Economics Of International Labor Migration And The Case For Global Distributive Justice In Liberal Political Theory, Howard F. Chang

Faculty Scholarship at Penn Law

Estimates of the magnitude of the gains that the world could enjoy by liberalizing international migration indicate that even partial liberalization would not only produce substantial increases in the world’s real income but also improve its distribution. Although the economic effects of immigration on native workers and distributive justice among natives are often advanced as reasons to reduce immigration, these concerns do not provide a sound justification for our restrictive immigration laws. Instead, the appropriate response to concerns about the distribution of income among natives is to increase the progressivity of our tax system. Protectionist immigration policies are not ...