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The Genetic Information Nondiscrimination Act (Gina): Public Policy And Medical Practice In The Age Of Personalized Medicine, Eric A. Feldman Dec 2011

The Genetic Information Nondiscrimination Act (Gina): Public Policy And Medical Practice In The Age Of Personalized Medicine, Eric A. Feldman

Faculty Scholarship at Penn Law

Survey data suggest that many people fear genetic discrimination by health insurers or employers. In fact, such discrimination has not yet been a significant problem. This article examines the fear and reality of genetic discrimination in the United States, describes how Congress sought to prohibit such discrimination by passing the Genetic Information Nondiscrimination Act of 2008 (GINA), and explores the implications of GINA for general internists and their institutions. It concludes that medical providers and health care institutions must be familiar with the general intent and specific terms of GINA, and should continue to collect genetic information that can contribute ...


The Triumph And Tragedy Of Tobacco Control: A Tale Of Nine Nations, Eric A. Feldman, Ronald Bayer Dec 2011

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

Faculty Scholarship at Penn Law

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 ...


Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas Nov 2011

Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Protecting Liberty And Autonomy: Desert/Disease Jurisprudence, Stephen J. Morse Oct 2011

Protecting Liberty And Autonomy: Desert/Disease Jurisprudence, Stephen J. Morse

Faculty Scholarship at Penn Law

This contribution to a symposium on the morality of preventive restriction on liberty begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the ...


Disparate Impact Realism, Amy L. Wax Oct 2011

Disparate Impact Realism, Amy L. Wax

Faculty Scholarship at Penn Law

In Ricci v. DeStefano, 129 S. Ct. 2658 (2009), the Supreme Court recently reaffirmed the doctrine, first articulated by the Court in Griggs v. Duke Power Company, 401 U.S. 424 (1971), that employers can be held liable under Title VII of the 1964 Civil Rights Act for neutral personnel practices with a disparate impact on minority workers. The Griggs Court further held that employers can escape liability by showing that their staffing practices are job related or consistent with business necessity.

In the interim since Griggs, social scientists have generated evidence undermining two key assumptions behind that decision and ...


Rights-Based Theories Of Accident Law, Gregory J. Hall Aug 2011

Rights-Based Theories Of Accident Law, Gregory J. Hall

Faculty Scholarship at Penn Law

This article shows that extant rights-based theories of accident law contain a gaping hole. They inadequately address the following question: What justifies using community standards to assign accident costs in tort law?

In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this ...


Harsanyi 2.0, Matthew D. Adler Aug 2011

Harsanyi 2.0, Matthew D. Adler

Faculty Scholarship at Penn Law

How should we make interpersonal comparisons of well-being levels and differences? One branch of welfare economics eschews such comparisons, which are seen as impossible or unknowable; normative evaluation is based upon criteria such as Pareto or Kaldor-Hicks efficiency that require no interpersonal comparability. A different branch of welfare economics, for example optimal tax theory, uses “social welfare functions” (SWFs) to compare social states and governmental policies. Interpersonally comparable utility numbers provide the input for SWFs. But this scholarly tradition has never adequately explained the basis for these numbers.

John Harsanyi, in his work on so-called “extended preferences,” advanced a fruitful ...


State Bankruptcy From The Ground Up, David A. Skeel Jr. Jul 2011

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

Faculty Scholarship at Penn Law

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 ...


Genetics And Criminal Responsibility, Stephen J. Morse Jul 2011

Genetics And Criminal Responsibility, Stephen J. Morse

Faculty Scholarship at Penn Law

Some believe that genetics threatens privacy and autonomy and will eviscerate the concept of human nature. Despite the astonishing research advances, however, none of these dire predictions and no radical transformation of the law have occurred.


A Preface To Neoclassical Legal Thought, Herbert J. Hovenkamp Jun 2011

A Preface To Neoclassical Legal Thought, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Most legal historians speak of the period following classical legal thought as “progressive legal thought.” That term creates an unwarranted bias in characterization, however, creating the impression that conservatives clung to an obsolete “classical” ideology, when in fact they were in many ways just as revisionist as the progressives legal thinkers whom they critiqued. The Progressives and New Deal thinkers whom we identify with progressive legal thought were nearly all neoclassical, or marginalist, in their economics, but it is hardly true that all marginalists were progressives. For example, the lawyers and policy makers in the corporate finance battles of the ...


Mental Disorder And Criminal Law, Stephen J. Morse Apr 2011

Mental Disorder And Criminal Law, Stephen J. Morse

Faculty Scholarship at Penn Law

Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, are treated specially. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal ...


Collateral Consequences, Genetic Surveillance, And The New Biopolitics Of Race, Dorothy E. Roberts Apr 2011

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

Faculty Scholarship at Penn Law

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 ...


Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson Mar 2011

Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson

Faculty Scholarship at Penn Law

In this essay, Professor Robinson supports the current Israeli proposal for structuring judicial discretion in sentencing, in particular its reliance upon desert as the guiding principle for the distribution of punishment, its reliance upon benchmarks, or “starting-points,” to be adjusted in individual cases by reference to articulated mitigating and aggravating circumstances, and the proposal’s suggestion to use of an expert committee to draft the original guidelines.


Report On Offense Grading In New Jersey, Paul H. Robinson, Rebecca Levenson, Nicholas Feltham, Andrew Sperl, Kristen-Elise Brooks, Agatha Koprowski, Jessica Peake, Benjamin Probber, Brian Trainor Feb 2011

Report On Offense Grading In New Jersey, Paul H. Robinson, Rebecca Levenson, Nicholas Feltham, Andrew Sperl, Kristen-Elise Brooks, Agatha Koprowski, Jessica Peake, Benjamin Probber, Brian Trainor

Faculty Scholarship at Penn Law

The University of Pennsylvania Criminal Law Research Group was commissioned to do a study of offense grading in New Jersey. After an examination of New Jersey criminal law and a survey of New Jersey residents, the CLRG issued this Final Report. (For the report of a similar project for Pennsylvania, see Report on Offense Grading in Pennsylvania, http://ssrn.com/abstract=1527149, and for an article about the grading project, see The Modern Irrationalities of American Criminal Codes: An Empirical Study of Offense Grading, http://ssrn.com/abstract=1539083, Journal of Criminal Law and Criminology (forthcoming 2011).) The New Jersey ...


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 Jan 2011

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

Faculty Scholarship at Penn Law

No abstract provided.


Introduction, In Critical Concepts In Intellectual Property Law: Copyright, Christopher S. Yoo Jan 2011

Introduction, In Critical Concepts In Intellectual Property Law: Copyright, Christopher S. Yoo

Faculty Scholarship at Penn Law

The two-volume set entitled Critical Concepts in Intellectual Property Law: Copyright brings together a thought-provoking collection of landmark and recent scholarship on copyright. Section 1 of Volume I focuses on the history of copyright, with Tyler Ochoa and Mark Rose providing an example of the prevailing interpretation of the history and articles by Thomas Nachbar and by William Treanor and Paul Schwartz offering fresh takes on the early English and American experiences. Section 2 focuses on copyright’s philosophical foundations, framed by the work of Justin Hughes and followed by revisionist perspectives on Lockean and Hegelian theory offered by Seana ...


Replay, Mitchell N. Berman Jan 2011

Replay, Mitchell N. Berman

Faculty Scholarship at Penn Law

This paper explores a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he must let it stand even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer‟s FIFA World Cup, commentators proposed not only that soccer employ instant replay, but also that it follow the NFL in directing officials to ...


Severe Environmental Deprivation (Aka Rsb): A Tragedy, Not A Defense, Stephen J. Morse Jan 2011

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

Faculty Scholarship at Penn Law

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 or any other potentially powerful predisposing cause of crime should not per se be a defense to crime that excuses or mitigates criminal responsibility; and second, that criminal law defenses to responsibility are crucial to the just adjudication of guilt and innocence, but they are not an appropriate means to remedy undoubted social, biological, and psychological problems. I conclude that no jurisdiction has adopted the defense because it is conceptually unjustifiable and empirically unworkable. SED is a tragedy, but it should not be a defense to crime. Finally, I conclude with a number of criminal justice reform suggestions, including many that I believe the other writers would endorse.


Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin Jan 2011

Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen B. Burbank, Stephen N. Subrin

Faculty Scholarship at Penn Law

In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens ...


Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas Jan 2011

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

Faculty Scholarship at Penn Law

No abstract provided.


Managing Moral Risk: The Case Of Contract, Aditi Bagchi Jan 2011

Managing Moral Risk: The Case Of Contract, Aditi Bagchi

Faculty Scholarship at Penn Law

The concept of moral luck describes how the moral character of our actions seems to depend on factors outside our control. Implications of moral luck have been extensively explored in criminal law and tort law, but there is no literature on moral luck in contract law. I show that contract is an especially illuminating domain for the study of moral luck because it highlights that moral luck is not just a dark cloud over morality and the law to bemoan or ignore. We anticipate moral luck, i.e., we manage our moral risk, when we take into account the possibility ...


Interpretation And Construction: Originalism And Its Discontents, Kermit Roosevelt Iii Jan 2011

Interpretation And Construction: Originalism And Its Discontents, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

No abstract provided.


Plenary No Longer: How The Fourteenth Amendment "Amended" Congressional Jurisdiction-Stripping Power, Maggie Blackhawk Jan 2011

Plenary No Longer: How The Fourteenth Amendment "Amended" Congressional Jurisdiction-Stripping Power, Maggie Blackhawk

Faculty Scholarship at Penn Law

This Note proposes a solution to the long-standing debate among federal courts scholars as to where to draw the limits of congressional power to strip appellate jurisdiction from the Supreme Court and to strip original jurisdiction from the lower federal courts. Although the Supreme Court has rarely addressed the possibility of limitations on congressional jurisdiction-stripping power, the few determinative cases to go before the Court reveal an acceptance of the orthodox view of plenary power. Proponents of the orthodox view maintain that state courts, bound to hear constitutional claims by their general jurisdictional grant and to enforce the Constitution by ...


Mercy, Crime Control & Moral Credibility, Paul H. Robinson Jan 2011

Mercy, Crime Control & Moral Credibility, Paul H. Robinson

Faculty Scholarship at Penn Law

If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the ...


Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse Jan 2011

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

Faculty Scholarship at Penn Law

This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have ...


Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse Jan 2011

Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse

Faculty Scholarship at Penn Law

This is a chapter in a book, Constitution 3.0: Freedom and Technological Change, edited by Jeffrey Rosen and Benjamin Wittes and published by Brookings. It considers whether likely advances in neuroscience will fundamentally alter our conceptions of human agency, of what it means to be a person, and of responsibility for action. I argue that neuroscience poses no such radical threat now and in the immediate future and it is unlikely ever to pose such a threat unless it or other sciences decisively resolve the mind-body problem. I suggest that until that happens, neuroscience might contribute to the reform ...


Blackmail, Mitchell N. Berman Jan 2011

Blackmail, Mitchell N. Berman

Faculty Scholarship at Penn Law

Blackmail - the wrongful conditional threat to do what would be permissible - presents one of the great puzzles of the criminal law, and perhaps all of law, for it forces us to explain how it can be impermissible to threaten what it would be permissible to do. This essay, a contribution to forthcoming collection of papers on the philosophy of the criminal law, seeks to resolve the puzzle by building on, and refining, an account of blackmail that I first proposed over a decade ago, what I termed the "evidentiary theory of blackmail." In doing so, it also critically reviews other ...


Regulating The Plea-Bargaining Market: From Caveat Emptor To Consumer Protection, Stephanos Bibas Jan 2011

Regulating The Plea-Bargaining Market: From Caveat Emptor To Consumer Protection, Stephanos Bibas

Faculty Scholarship at Penn Law

Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not ...


Process Choice, Cary Coglianese Jan 2011

Process Choice, Cary Coglianese

Faculty Scholarship at Penn Law

Regulation scholars have long searched for the best tools to use to achieve public policy goals, generating an extensive body of research on what has become known as instrument choice. By contrast, analysis of options for structuring how officials make regulatory decisions – process choice – remains in relative infancy. Notwithstanding the emphasis legal scholars and political economists have placed on administrative procedures, surprisingly little research has investigated why regulators choose among different process options or what value they and the public receive from different choices. In their book, Regulation by Litigation, Andrew Morriss, Bruce Yandle, and Andrew Dorchak make a significant ...


Two Kinds Of Retributivism, Mitchell N. Berman Jan 2011

Two Kinds Of Retributivism, Mitchell N. Berman

Faculty Scholarship at Penn Law

This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment. The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure. However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”).

Whether or not it is ultimately persuasive, consequentialist retributivism is ...