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Full-Text Articles in Law

Report On Offense Grading In Pennsylvania, Paul H. Robinson, Criminal Law Research Group, University Of Pennsylvania Law School Dec 2009

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

Faculty Scholarship at Penn Law

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 ...


Regulatory Theory, Matthew D. Adler Dec 2009

Regulatory Theory, Matthew D. Adler

Faculty Scholarship at Penn Law

This chapter reviews a range of topics connected to the justification of government regulation, including: the definition of “regulation”; welfarism, Kaldor-Hicks efficiency, and the Pareto principles; the fundamental theorems of welfare economics and the “market failure” framework for justifying regulation, which identifies different ways in which the conditions for those theorems may fail to hold true (such as externalities, public goods, monopoly power, and imperfect information); the Coase theorem; and the different forms of regulation.


Treaty Compliance And Violation, Beth A. Simmons Nov 2009

Treaty Compliance And Violation, Beth A. Simmons

Faculty Scholarship at Penn Law

International law has enjoyed a recent renaissance as an important subfield of study within international relations. Two trends are evident in the recent literature. First, the obsession with theoretical labels is on the decline. Second, empirical, especially quantitative, work is burgeoning. This article reviews the literature in four issues areas — security, war, and peace; international trade; protection of the environment; and human rights — and concludes we have a much stronger basis for assessing claims about compliance and violation now than was the case only a few years ago. Still, the literature suffers from a few weaknesses, including problems of selection ...


Criminalization Tensions: Empirical Desert, Changing Norms & Rape Reform, Paul H. Robinson Oct 2009

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

Faculty Scholarship at Penn Law

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 ...


Bankruptcy Phobia, David A. Skeel Jr. Jul 2009

Bankruptcy Phobia, David A. Skeel Jr.

Faculty Scholarship at Penn Law

As the recent economic crisis has unfolded, bankruptcy has offered possible solutions at several key junctures. The first of these solutions, often referred to as mortgage modification, was geared toward homeowners who faced the loss of their homes in the months—now several years—since the start of the subprime crisis On the corporate side, Chapter 11 was an obvious alternative when large nonbank financial institutions like Bear Stearns and AIG stumbled in 2008. But regulators repeatedly balked, and the one exception to the avoidance of bankruptcy at all costs—Lehman Brothers—was anomalous. This aversion to bankruptcy, which seems ...


The Transparency President? The Obama Administration And Open Government, Cary Coglianese Jun 2009

The Transparency President? The Obama Administration And Open Government, Cary Coglianese

Faculty Scholarship at Penn Law

President Obama has trumpeted transparency as a major part of his reform agenda, promising an "unprecedented" degree of governmental openness and overseeing a variety of open government reforms, from changes in Freedom of Information Act policies to the creation of new websites like Recovery.Gov. Although transparency is politically popular, and the Obama Administration benefits in the short run by contrasting itself with the Bush Administration's reputation for secrecy, in the long run President Obama's rhetoric on openness in government may backfire politically. Too much emphasis on making government a fishbowl will only raise expectations about an unattainable ...


Transparency And Public Participation In The Rulemaking Process, Cary Coglianese, Heather Kilmartin, Evan Mendelson Jun 2009

Transparency And Public Participation In The Rulemaking Process, Cary Coglianese, Heather Kilmartin, Evan Mendelson

Faculty Scholarship at Penn Law

Each year, federal regulatory agencies create thousands of new rules that affect the economy. When these agencies insulate themselves too much from the public, they are more likely to make suboptimal decisions and decrease public acceptance of their resulting rules. A nonpartisan Task Force on Transparency and Public Participation met in 2008 to identify current deficiencies in agency rulemaking procedures and develop recommendations for the next presidential administration to improve the quality of regulations and the legitimacy of regulatory proceedings. This report summarizes the Task Force's deliberations, indicating ways that federal agencies could do a better job of seeking ...


The Indivisible Constitution, Kermit Roosevelt Apr 2009

The Indivisible Constitution, Kermit Roosevelt

Faculty Scholarship at Penn Law

In The Invisible Constitution, Laurence Tribe argues that many of our most deeply-held constitutional convictions are not to be found in the words of the Constitution itself. They are, instead, part of what he calls the invisible Constitution. This review essay argues that although that claim is true, it is not worth spending a book on. Moreover, its very truth—the fact that certain “invisible” constitutional propositions are as central and well-established as textual ones—undermines the value of treating the “invisible” Constitution as a qualitatively different entity.


Prosecutorial Regulation Versus Prosecutorial Accountability, Stephanos Bibas Apr 2009

Prosecutorial Regulation Versus Prosecutorial Accountability, Stephanos Bibas

Faculty Scholarship at Penn Law

No government official has as much unreviewable power or discretion as the prosecutor. Few regulations bind or even guide prosecutorial discretion, and fewer still work well. Most commentators favor more external regulation by legislatures, judges, or bar authorities. Neither across-the-board legislation nor ex post review of individual cases has proven to be effective, however. Drawing on management literature, this article reframes the issue as a principal-agent problem and suggests corporate strategies for better serving the relevant stakeholders. Fear of voters could better check prosecutors, as could victim participation in individual cases. Scholars have largely neglected the most promising avenue of ...


The Myth Of Equality In The Employment Relation, Aditi Bagchi Mar 2009

The Myth Of Equality In The Employment Relation, Aditi Bagchi

Faculty Scholarship at Penn Law

Although it is widely understood that employers and employees are not equally situated, we fail adequately to account for this inequality in the law governing their relationship. We can best understand this inequality in terms of status, which encompasses one’s level of income, leisure and discretion. For a variety of misguided reasons, contract law has been historically highly resistant to the introduction of status-based principles. Courts have preferred to characterize the unfavorable circumstances that many employees face as the product of unequal bargaining power. But bargaining power disparity does not capture the moral problem raised by inequality in the ...


The Neal Report And The Crisis In Antitrust, Herbert J. Hovenkamp Mar 2009

The Neal Report And The Crisis In Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Neal Report, which was commissioned by Lyndon Johnson and published in 1967, is rightfully criticized for representing the past rather than the future of antitrust. Its authors completely embraced a theory of competition and industrial organization that had dominated American economic thinking for forty years, but was just in the process of coming to an end. The structure-conduct-performance (S-C-P) paradigm that the Neal Report embodied had in fact been one of the most elegant and most tested theories of industrial organization. The theory represented the high point of structuralism in industrial organization economics, resting on the proposition that certain ...


Rewarding Prosecutors For Performance, Stephanos Bibas Feb 2009

Rewarding Prosecutors For Performance, Stephanos Bibas

Faculty Scholarship at Penn Law

Prosecutorial discretion is a problem that most scholars attack from the outside. Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. At best these approaches can catch the very worst misconduct. They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking. The more promising alternative is to work within prosecutors' offices, to create incentives for good performance. This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards ...


Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler Jan 2009

Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler

Faculty Scholarship at Penn Law

This essay is a chapter in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart’s “rule of recognition” model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods --such as textualism, originalism, “living constitutionalism,” structure-and-relationship reasoning, representation-reinforcement, minimalism, and so forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring ...


The Poetry Of Genetics: On The Pitfalls Of Popularizing Science, Anita L. Allen Jan 2009

The Poetry Of Genetics: On The Pitfalls Of Popularizing Science, Anita L. Allen

Faculty Scholarship at Penn Law

The role genetic inheritance plays in the way human beings look and behave is a question about the biology of human sexual reproduction, one that scientists connected with the Human Genome Project dashed to answer before the close of the 20th century. This is also a question about politics, and, it turns out poetry, because, as the example of Lucretius shows, poetry is an ancient tool for the popularization of science. "Popularization" is a good word for successful efforts to communicate elite science to non-scientists in non-technical languages and media. According to prominent sociobiologist E.O. Wilson, "sexual dominance is ...


Atmospherics: Abortion Law And Philosophy, Anita L. Allen Jan 2009

Atmospherics: Abortion Law And Philosophy, Anita L. Allen

Faculty Scholarship at Penn Law

In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, “On Philosophy in American Law.” The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by “philosophy” Llewellyn only meant “atmosphere”. His concerns were the “general approaches” taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn’s “law” included anything that reflects the “ways of the law ...


Stereotype Threat: A Case Of Overclaim Syndrome?, Amy L. Wax Jan 2009

Stereotype Threat: A Case Of Overclaim Syndrome?, Amy L. Wax

Faculty Scholarship at Penn Law

The theory of Stereotype Threat (ST) predicts that, when widely accepted stereotypes allege a group’s intellectual inferiority, fears of confirming these stereotypes cause individuals in the group to underperform relative to their true ability and knowledge. There are now hundreds of published studies purporting to document an impact for ST on the performance of women and racial minorities in a range of situations. This article reviews the literature on stereotype threat, focusing especially on studies investigating the influence of ST in the context of gender. It concludes that there is currently no justification for concluding that ST explains women ...


Pleading And The Dilemmas Of “General Rules”, Stephen B. Burbank Jan 2009

Pleading And The Dilemmas Of “General Rules”, Stephen B. Burbank

Faculty Scholarship at Penn Law

This article comments on Professor Geoffrey Miller’s article about pleading under Tellabs and goes on (1) to use Tellabs, Bell Atlantic Corp. v Twombly, and Iqbal v. Hasty (in which the Court has granted review) to illustrate the limits of, and costs created by, certain foundational assumptions and operating principles that are associated with the Rules Enabling Act’s requirement of “general rules,” and (2) more generally, to illustrate the costs of the complex procedural system that we have created. Thus, for instance, the argument that the standards emerging from Twombly should be confined to antitrust conspiracy cases confronts ...


Patents, Property, And Competition Policy, Herbert J. Hovenkamp Jan 2009

Patents, Property, And Competition Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The decision to regulate involves the identification of markets where simple assignment of property rights is not sufficient to ensure satisfactory competitive results, usually because some type of market failure obtains. By contrast, if property rights are well defined when they are initially created and can subsequently be traded to some reasonably competitive equilibrium, then regulation is thought not to be necessary. In such cases the antitrust laws have a significant role to play in ensuring that the market can be as competitive as free trading allows. One problem with the patent system is that once a patent is granted ...


Race, Gender, And Genetic Technologies: A New Reproductive Dystopia?, Dorothy E. Roberts Jan 2009

Race, Gender, And Genetic Technologies: A New Reproductive Dystopia?, Dorothy E. Roberts

Faculty Scholarship at Penn Law

No abstract provided.


Liability Insurance At The Tort-Crime Boundary, Tom Baker Jan 2009

Liability Insurance At The Tort-Crime Boundary, Tom Baker

Faculty Scholarship at Penn Law

This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state’s accusations. The crime-tort separation in liability ...


Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman Jan 2009

Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman

Faculty Scholarship at Penn Law

This essay, a contribution to a forthcoming edited volume on Hart's rule of recognition and the U.S. Constitution, advances one argument and pitches one proposal. The argument is that Hart's theory of law does not succeed. On Hart's account, legal propositions are what they are - that is, they have the particular content and status that they do - by virtue of their satisfying necessary and sufficient conditions that are themselves established by a special sort of convergent practice among officials. American constitutional theorists are often troubled by this account because it seems to imply that in the ...


A Right To Bear Firearms But Not To Use Them? Defensive Force Rules And The Increasing Effectiveness Of Non-Lethal Weapons, Paul H. Robinson Jan 2009

A Right To Bear Firearms But Not To Use Them? Defensive Force Rules And The Increasing Effectiveness Of Non-Lethal Weapons, Paul H. Robinson

Faculty Scholarship at Penn Law

Under existing American law, advances in non-lethal weapons increasingly make the use of firearms for defense unlawful and the Second Amendment of little practical significance. As the effectiveness and availability of less lethal weapons increase, the choice of a lethal firearm for protection is a choice to use more force than is necessary, in violation of existing self-defense law. At the same time, a shift to non-lethal weapons increases the frequency of situations in which a person’s use of force is authorized because defenders with non-lethal weapons are freed from the special proportionality requirements that limit the use of ...


The First Amendment And Commercial Speech, C. Edwin Baker Jan 2009

The First Amendment And Commercial Speech, C. Edwin Baker

Faculty Scholarship at Penn Law

After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve the exercise ...


Women’S Unequal Citizenship At The Border: Lessons From Three Nonfiction Films About The Women Of Juárez, Regina Austin Jan 2009

Women’S Unequal Citizenship At The Border: Lessons From Three Nonfiction Films About The Women Of Juárez, Regina Austin

Faculty Scholarship at Penn Law

There is no better illustration of the impact of borders on women’s equal citizenship than the three documentaries reviewed in this essay. All three deal with the femicides that befell the young women of Ciudad Juárez, Mexico between 1993 and 2005. Juarez is just across the border from El Paso, Texas. Performing the Border (1999) stimulates the viewer’s imagination regarding the ephemeral nature of borders and their impact on the citizenship of women who live at the intersection of local, regional, national and international legal regimes. Señorita Extraviada (2001) is an intimate portrait of the victims which illustrates ...