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Full-Text Articles in Law

Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank Dec 2012

Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank

Faculty Scholarship at Penn Law

In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or state ...


Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen Dec 2012

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

Faculty Scholarship at Penn Law

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a ...


Reconstruction And Resistance, Kermit Roosevelt Iii Nov 2012

Reconstruction And Resistance, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and ...


Originalism And The Other Desegregation Decision, Ryan C. Williams Oct 2012

Originalism And The Other Desegregation Decision, Ryan C. Williams

Faculty Scholarship at Penn Law

Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively "incorporates ...


Hauerwasian Christian Legal Theory, David A. Skeel Jr. Oct 2012

Hauerwasian Christian Legal Theory, David A. Skeel Jr.

Faculty Scholarship at Penn Law

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely ...


Enhancing Public Access To Online Rulemaking Information, Cary Coglianese Oct 2012

Enhancing Public Access To Online Rulemaking Information, Cary Coglianese

Faculty Scholarship at Penn 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 ...


Prison, Foster Care, And The Systemic Punishment Of Black Mothers, Dorothy E. Roberts Aug 2012

Prison, Foster Care, And The Systemic Punishment Of Black Mothers, Dorothy E. Roberts

Faculty Scholarship at Penn Law

This article is part of a UCLA Law Review symposium, “Overpoliced and Underprotected: Women, Race, and Criminalization.” It analyzes how the U.S. prison and foster care systems work together to punish black mothers in a way that helps to preserve race, gender, and class inequalities in a neoliberal age. The intersection of these systems is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I examine the statistical overlap between the prison and foster care populations, the simultaneous explosion of both systems in recent decades, the injuries that ...


Political Authority And Political Obligation, Stephen R. Perry Jul 2012

Political Authority And Political Obligation, Stephen R. Perry

Faculty Scholarship at Penn Law

Legitimate political authority is often said to involve a “right to rule,” which is most plausibly understood as a Hohfeldian moral power on the part of the state to impose obligations on its subjects (or otherwise to change their normative situation). Many writers have taken the state’s moral power (if and when it exists) to be a correlate, in some sense, of an obligation on the part of the state’s subjects to obey its directives. Thus legitimate political authority is said to entail a general obligation to obey the law, and a general obligation to obey the law ...


"Life Without Parole" Under Modern Theories Of Punishment, Paul H. Robinson Jun 2012

"Life Without Parole" Under Modern Theories Of Punishment, Paul H. Robinson

Faculty Scholarship at Penn Law

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done ...


Losing My Religion: The Place Of Social Justice In Clinical Legal Education, Praveen Kosuri Apr 2012

Losing My Religion: The Place Of Social Justice In Clinical Legal Education, Praveen Kosuri

Faculty Scholarship at Penn Law

Many law school clinics presume a “social justice” mission—that is, representation of the indigent and under-represented about poverty law issues—as the only legitimate goal for clinic clients and matters. This article contends that social justice should not be presumed, but rather should be considered an option—among many—to include in a clinic’s pedagogy. If increased experiential learning opportunities for students are a real objective, and clinics are the pinnacle of those opportunities, then broadening the portfolio of clinical offerings to include those that are not focused on social justice should be a valid proposition. The modern ...


States Of Bankruptcy, David A. Skeel Jr. Apr 2012

States Of Bankruptcy, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In the past several years, many states’ financial condition has been so precarious that some observers have predicted that one or more might default. As the crisis persisted, a very unlikely word crept into these conversations: bankruptcy. Should Congress provide a bankruptcy option for states, or would bankruptcy be a mistake? The goal of this Article is to carefully vet this question, using all of the theoretical, empirical and historical tools currently available. The discussion is structured as a “case” for bankruptcy, rather than an “on the one hand, on the other hand” assessment. But it seeks to be scrupulously ...


Collegiality And Individual Dignity, Tobias Barrington Wolff Mar 2012

Collegiality And Individual Dignity, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

This Essay identifies and describes the tension between the norms of collegiality and basic principles of individual dignity that LGBT scholars and lawyers encounter when confronted with the dehumanizing arguments that are regularly advanced by opponents of equal treatment under law for lesbian, gay, bisexual and transgender people. It is a transcript of remarks delivered at a March 2012 symposium on the Defense of Marriage Act at Fordham Law School, with minimal edits for publication.


The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicholas Treich Mar 2012

The Social Value Of Mortality Risk Reduction: Vsl Vs. The Social Welfare Function Approach, Matthew D. Adler, James K. Hammitt, Nicholas Treich

Faculty Scholarship at Penn Law

We examine how different welfarist frameworks evaluate the social value of mortality risk-reduction. These frameworks include classical, distributively unweighted cost-benefit analysis—i.e., the “value per statistical life” (VSL) approach—and three benchmark social welfare functions (SWF): a utilitarian SWF, an ex ante prioritarian SWF, and an ex post prioritarian SWF. We examine the conditions on individual utility and on the SWF under which these frameworks display the following five properties: i) wealth sensitivity, ii) sensitivity to baseline risk, iii) equal value of risk reduction, iv) preference for risk equity, and v) catastrophe aversion. We show that the particular manner ...


Parallel Contract, Aditi Bagchi Feb 2012

Parallel Contract, Aditi Bagchi

Faculty Scholarship at Penn Law

This Article describes a new model of contract. In parallel contract, one party enters into a series of contracts with many similarly situated individuals on background terms that are presumptively identical. Parallel contracts depart from the classical model of contract in two fundamental ways. First, obligations are not robustly dyadic in that they are neither tailored to the two parties to a given agreement nor understood by those parties by way of communications with each other. Second, obligations are not fixed at a discrete moment of contract. Parallel contracts should be interpreted differently than agreements more consistent with the classic ...


Who’S Afraid Of The Apa?, David J. Shakow Feb 2012

Who’S Afraid Of The Apa?, David J. Shakow

Faculty Scholarship at Penn Law

The Supreme Court’s decision in Mayo Foundation for Medical Education and Research v. United States means that tax practitioners must be more sensitive to administrative law and judicial deference to administrative rules. This includes gaining some familiarity with the Administrative Procedure Act (APA) and the major cases that deal with judicial deference to administrative action, starting with Chevron USA Inc. v. Natural Resources Defense Council Inc. While the Supreme Court spends a lot more time considering issues of administrative law rather than tax law, the many decisions don’t result in a clear set of rules as to how ...


Rewards For Rights Ratification? Testing For Tangible And Intangible Benefits Of Human Rights Treaty Ratification, Richard Neilsen, Beth A. Simmons Jan 2012

Rewards For Rights Ratification? Testing For Tangible And Intangible Benefits Of Human Rights Treaty Ratification, Richard Neilsen, Beth A. Simmons

Faculty Scholarship at Penn Law

Among the explanations for state ratification of human rights treaties, few are more common and widely accepted than the conjecture that states are rewarded for ratification by other states. These rewards are expected to come in the form of tangible benefits—foreign aid, trade, and investment—and intangible benefits such as praise, acceptance, and legitimacy. Surprisingly, these explanations for ratification have never been tested empirically. We summarize and clarify the theoretical underpinnings of “reward-for-ratification” theories and test these propositions empirically by looking for increased international aid, economic agreements, and public praise and recognition following ratification of four prominent human rights ...


Introduction: Punishment And Culpability, Mitchell N. Berman Jan 2012

Introduction: Punishment And Culpability, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach Jan 2012

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

Faculty Scholarship at Penn Law

No abstract provided.


Not As Bad As You Think: Why Garcetti V. Ceballos Makes Sense, Kermit Roosevelt Iii Jan 2012

Not As Bad As You Think: Why Garcetti V. Ceballos Makes Sense, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

No abstract provided.


Perceptions Of Fairness And Justice: The Shared Aims And Occasional Conflicts Of Legitimacy And Moral Credibility, Josh Bowers, Paul H. Robinson Jan 2012

Perceptions Of Fairness And Justice: The Shared Aims And Occasional Conflicts Of Legitimacy And Moral Credibility, Josh Bowers, Paul H. Robinson

Faculty Scholarship at Penn Law

No abstract provided.


A Tea Party At The Hague?, Stephen B. Burbank Jan 2012

A Tea Party At The Hague?, Stephen B. Burbank

Faculty Scholarship at Penn Law

In this article, I consider the prospects for and impediments to judicial cooperation with the United States. I do so by describing a personal journey that began more than twenty years ago when I first taught and wrote about international civil litigation. An important part of my journey has involved studying the role that the United States has played, and can usefully play, in fostering judicial cooperation, including through judgment recognition and enforcement. The journey continues but, today, finds me a weary traveler, more worried than ever about the politics and practice of international procedural lawmaking in the United States ...


The Machinery Of Criminal Justice, Stephanos Bibas Jan 2012

The Machinery Of Criminal Justice, Stephanos Bibas

Faculty Scholarship at Penn Law

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased ...


Plotting Premeditation's Demise, Kimberly Kessler Ferzan Jan 2012

Plotting Premeditation's Demise, Kimberly Kessler Ferzan

Faculty Scholarship at Penn Law

Theorists have consistently critiqued premeditation as being both over and under inclusive in capturing the worst killers. It is over inclusive because it covers a mercy killer, who emotionally deliberates about putting a loved one out of his misery. It is under inclusive because it does not include hot blooded, angry attacks that reveal deep indifference to the value of human life.

This symposium contribution argues that the problem is that premeditation can only partially capture the most culpable choices. Culpability is complex. Culpability assessments include the analysis of risks imposed; the reasons why they were imposed; the defendant’s ...


Extralegal Punishment Factors: A Study Of Forgiveness, Hardship, Good-Deeds, Apology, Remorse, And Other Such Discretionary Factors In Assessing Criminal Punishment, Paul H. Robinson, Sean Jackowitz, Daniel M. Bartels Jan 2012

Extralegal Punishment Factors: A Study Of Forgiveness, Hardship, Good-Deeds, Apology, Remorse, And Other Such Discretionary Factors In Assessing Criminal Punishment, Paul H. Robinson, Sean Jackowitz, Daniel M. Bartels

Faculty Scholarship at Penn Law

The criminal law's formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender's liability and the grade of the offense. A look at how the punishment decision-making process actually works, however, suggests that courts and other decisionmakers frequently go beyond the formal legal factors and take account of what might be called "extralegal punishment factors" (XPFs).

XPFs, the subject of this Article, include matters as diverse as an offender's apology, remorse, history of good or bad deeds, public acknowledgment of guilt, special talents, old age, extralegal suffering from the ...


New Therapies, Old Problems, Or, A Plea For Neuromodesty, Stephen J. Morse Jan 2012

New Therapies, Old Problems, Or, A Plea For Neuromodesty, Stephen J. Morse

Faculty Scholarship at Penn Law

This article suggests that investigational deep brain stimulation (DBS) for mental disorders raises few new bioethical issues. Although the scientific basis of the procedure may be both complex and largely unknown, addressing informed consent in such situations is a familiar problem. After reviewing the legal and moral background for investigating DBS and the scientific difficulties DBS faces as a potential treatment for mental disorders, the article focuses on informed consent and makes two primary suggestions. The study of DBS may proceed, but "hyper-disclosure" of the complexities should be required for competent subjects or proper surrogates if the candidate is not ...


Triaging Appointed-Counsel Funding And Pro Se Access To Justice, Benjamin H. Barton, Stephanos Bibas Jan 2012

Triaging Appointed-Counsel Funding And Pro Se Access To Justice, Benjamin H. Barton, Stephanos Bibas

Faculty Scholarship at Penn Law

For decades, scholars and advocates have lauded Gideon’s guarantee of appointed counsel in criminal cases and sought to extend it into a civil-Gideon right in a range of civil cases. This past Term, the Supreme Court disappointed the civil-Gideon movement in Turner v. Rogers, unanimously rejecting an across-the-board right to counsel while encouraging reforms to make courts more accessible to pro se litigants. Turner is mostly right, we argue, because funding limitations require reserving counsel mostly for criminal cases, where they are needed most. For the first time, the Court recognized that lawyers can make cases not only slower ...


Choice Of Law In Federal Courts: From Erie And Klaxon To Cafa And Shady Grove, Kermit Roosevelt Iii Jan 2012

Choice Of Law In Federal Courts: From Erie And Klaxon To Cafa And Shady Grove, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

The article offers a new perspective on choice of law in federal courts. I have argued in a series of articles that ordinary choice of law problems are best understood through application of a particular conceptual framework, which I call the two-step model. Rather than thinking of choice of law as some sort of meta-procedure, this model takes it to address two substantive questions: what are the scope of the competing states’ laws, and which should be given priority if they conflict? My previous articles have explored the utility of this framework for tackling some perennial problems in choice of ...


Alexander's Genius, Mitchell N. Berman Jan 2012

Alexander's Genius, Mitchell N. Berman

Faculty Scholarship at Penn Law

Larry Alexander is one of the most creative, penetrating, and wide-ranging legal theorists working today. This short essay, prepared as a tribute for a special issue of the APA Newsletter on Philosophy and Law, aims to convey a flavor of his work by introducing, and causing some trouble for, just a few of his more heterodox and provocative positions. The principal critical target of the essay is Alexander’s contention (a contention that he has pressed both alone and with Saikrishna Prakash) that extreme partisan gerrymandering does not violate the U.S. Constitution. The most persuasive grounding for the unconstitutionality ...