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Full-Text Articles in Law

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor Jul 2021

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor

Faculty Scholarship at Penn Law

The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this paper, we canvas the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication ...


Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank Jan 2019

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

Faculty Scholarship at Penn Law

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as ...


Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang Oct 2018

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in ...


The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr. Jan 2017

The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In less than a decade, Delaware’s legislature has overruled its courts and reshaped Delaware corporate law on two different occasions, with proxy access bylaws in 2009 and with shareholder litigation bylaws in 2015. Having two dramatic interventions in quick succession would be puzzling under any circumstances. The interventions are doubly puzzling because with proxy access, Delaware’s legislature authorized the use of bylaws or charter provisions that Delaware’s courts had banned; while with shareholder litigation, it banned bylaws or charter provisions that the courts had authorized. This Article attempts to unravel the puzzle.

I start with corporate law ...


Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky Jan 2017

Empowering Individual Plaintiffs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship at Penn Law

The individual plaintiff plays a critical—yet, underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key ...


Administrative Law: The U.S. And Beyond, Cary Coglianese Jul 2016

Administrative Law: The U.S. And Beyond, Cary Coglianese

Faculty Scholarship at Penn Law

Administrative law constrains and directs the behavior of officials in the many governmental bodies responsible for implementing legislation and handling governance responsibilities on a daily basis. This field of law consists of procedures for decision making by these administrative bodies, including rules about transparency and public participation. It also encompasses oversight practices provided by legislatures, courts, and elected executives. The way that administrative law affects the behavior of government officials holds important implications for the fulfillment of democratic principles as well as effective governance in society. This paper highlights salient political theory and legal issues fundamental to the U.S ...


Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse Jun 2016

Actions Speak Louder Than Images: The Use Of Neuroscientific Evidence In Criminal Cases, Stephen J. Morse

Faculty Scholarship at Penn Law

This invited commentary for Journal of Law & the Biosciences considers four empirical studies previously published in the journal of the reception of neuroscientific evidence in criminal cases in the United States, Canada, England and Wales, and the Netherlands. There are conceded methodological problems with all, but the data are nonetheless instructive and suggestive. The thesis of the comment is that the courts are committing the same errors that have bedeviled the reception of psychiatric and psychological evidence. There is insufficient caution about the state of the science, and more importantly, there is insufficient understanding of the relevance of the neuroscientific ...


Spelling Out Spokeo, Craig Konnoth, Seth F. Kreimer Jan 2016

Spelling Out Spokeo, Craig Konnoth, Seth F. Kreimer

Faculty Scholarship at Penn Law

For almost five decades, the injury-in-fact requirement has been a mainstay of Article III standing doctrine. Critics have attacked the requirement as incoherent and unduly malleable. But the Supreme Court has continued to announce “injury in fact” as the bedrock of justiciability. In Spokeo v. Robins, the Supreme Court confronted a high profile and recurrent conflict regarding the standing of plaintiffs claiming statutory damages. It clarified some matters, but remanded the case for final resolution. This Essay derives from the cryptic language of Spokeo a six stage process (complete with flowchart) that represents the Court’s current equilibrium. We put ...


Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach Sep 2015

Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach

Faculty Scholarship at Penn Law

I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.


Judge Posner’S Simple Law, Mitchell N. Berman Jan 2015

Judge Posner’S Simple Law, Mitchell N. Berman

Faculty Scholarship at Penn Law

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range ...


Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang Jan 2015

Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members ...


Processing Disability, Jasmine E. Harris Jan 2015

Processing Disability, Jasmine E. Harris

Faculty Scholarship at Penn Law

This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability — initially rendering disability invisible, later, legitimizing particular narratives of disability synonymous with incapacity, and, in recent history, advancing full socio-economic visibility of people with disabilities. The Americans with Disabilities Act ...


Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang Jan 2014

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to ...


Shleifer's Failure, Jonathan Klick Jan 2013

Shleifer's Failure, Jonathan Klick

Faculty Scholarship at Penn Law

No abstract provided.


On The Study Of Judicial Behaviors: Of Law, Politics, Science And Humility, Stephen B. Burbank Jan 2011

On The Study Of Judicial Behaviors: Of Law, Politics, Science And Humility, Stephen B. Burbank

Faculty Scholarship at Penn Law

In this paper, which was prepared to help set the stage at an interdisciplinary conference held at the University of Indiana (Bloomington) in March, I first briefly review what I take to be the key events and developments in the history of the study of judicial behavior in legal scholarship, with attention to corresponding developments in political science. I identify obstacles to cooperation in the past – such as indifference, professional self-interest and methodological imperialism -- as well as precedents for cross-fertilization in the future. Second, drawing on extensive reading in the political science and legal literatures concerning judicial behavior, I seek ...


Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr. Mar 2009

Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Straw, Sand, And Sophistry, Stephen B. Burbank Jan 2009

Straw, Sand, And Sophistry, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Time Out, Stephen B. Burbank Jan 2009

Time Out, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick Jan 2007

The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick

Faculty Scholarship at Penn Law

Judges facing exogenous constraints on their pecuniary income have an incentive to reduce their workload to increase their private welfare. In the face of an increase in caseload, this incentive will induce judges to attempt to terminate some cases more rapidly. In class action cases, failing to grant an attorney fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Using two data sets of class action settlements, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case.


Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard Jr. Jan 2006

Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Two Valuable Treatises On Civil Procedure, Geoffrey C. Hazard Jr. Jan 2005

Two Valuable Treatises On Civil Procedure, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Judicial Accountability To The Past, Present, And Future: Precedent, Politics And Power, Stephen B. Burbank Jan 2005

Judicial Accountability To The Past, Present, And Future: Precedent, Politics And Power, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Lawyer For The Situation, Geoffrey C. Hazard Jr. Jan 2004

Lawyer For The Situation, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


"Announcement" By Federal Judicial Nominees, Geoffrey C. Hazard Jr. Jan 2004

"Announcement" By Federal Judicial Nominees, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank Jan 2004

Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas Jan 2004

The Feeney Amendment And The Continuing Rise Of Prosecutorial Power To Plea Bargain, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas Jan 2003

Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch Jan 2003

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.


What Do We Mean By "Judicial Independence"?, Stephen B. Burbank Jan 2003

What Do We Mean By "Judicial Independence"?, Stephen B. Burbank

Faculty Scholarship at Penn Law

In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of ...


Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch Jan 2002

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

Faculty Scholarship at Penn Law

The lead counsel auction has attracted increasing attention. Auction advocates mgue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is ...