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Full-Text Articles in Law

The Expansive Reach Of Pretrial Detention, Paul Heaton Feb 2020

The Expansive Reach Of Pretrial Detention, Paul Heaton

Faculty Scholarship at Penn Law

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention ...


Justifying Bad Deals, Tess Wilkinson-Ryan Jan 2020

Justifying Bad Deals, Tess Wilkinson-Ryan

Faculty Scholarship at Penn Law

In the past decade, psychological and behavioral studies have found that individual commitment to contracts persists beyond personal relationships and traditional promises. Even take-it-or-leave it consumer contracts get substantial deference from consumers — even when the terms are unenforceable, even when the assent is procedurally compromised, and even when the drafter is an impersonal commercial actor. Indeed, there is mounting evidence that people import the morality of promise into situations that might otherwise be described as predatory, exploitative, or coercive. The purpose of this Article is to propose a framework for understanding what seems to be widespread acceptance of regulation via ...


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 ...


Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer Jan 2018

Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer

Faculty Scholarship at Penn Law

The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.

The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968.

Analysis of these cases leads to three conclusions:

1. Exercise of independent ...


Strict Liability's Criminogenic Effect, Paul H. Robinson Jan 2017

Strict Liability's Criminogenic Effect, Paul H. Robinson

Faculty Scholarship at Penn Law

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails ...


The Law Of The Test: Performance-Based Regulation And Diesel Emissions Control, Cary Coglianese, Jennifer Nash Jan 2017

The Law Of The Test: Performance-Based Regulation And Diesel Emissions Control, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

The Volkswagen diesel emissions scandal of 2015 not only pushed that company’s stock and retail sales into freefall, but also raised serious questions about the efficacy of existing regulatory controls. The same furtive actions taken by Volkswagen had been taken nearly twenty years earlier by other firms in the diesel industry. In that previous scandal, the U.S. Environmental Protection Agency (EPA) discovered that diesel truck engine manufacturers had, like Volkswagen would later do, programmed on-board computers to calibrate their engines one way to satisfy the required emissions test. Those manufacturers had also programmed the on-board computers to re-calibrate ...


The Knowledge Gap In Workplace Retirement Investing And The Role Of Professional Advisors, Jill E. Fisch, Tess Wilkinson-Ryan, Kristin Firth Jan 2016

The Knowledge Gap In Workplace Retirement Investing And The Role Of Professional Advisors, Jill E. Fisch, Tess Wilkinson-Ryan, Kristin Firth

Faculty Scholarship at Penn Law

The dramatic shift from traditional pension plans to participant-directed 401(k) plans has increased the decision-making responsibility of individual investors for their own retirement planning. With this shift comes increasing evidence that investors are making poor decisions in choosing how much to save for retirement and in selecting among their investment options. Studies question the value of efforts to improve these decisions through regulatory reforms or investor education.

This article posits that deficiencies in workplace retirement savings cannot be adequately addressed until the reasons for poor investment decisions are better understood. We report the results of a study designed to ...


Ratification, Reporting, And Rights: Quality Of Participation In The Convention Against Torture, Cossette D. Creamer, Beth A. Simmons Aug 2015

Ratification, Reporting, And Rights: Quality Of Participation In The Convention Against Torture, Cossette D. Creamer, Beth A. Simmons

Faculty Scholarship at Penn Law

The core international human rights treaty bodies play an important role in monitoring implementation of human rights standards through consideration of states parties’ reports. Yet very little research explores how seriously governments take their reporting obligations. This article examines the reporting record of parties to the Convention against Torture, finding that report submission is heavily conditioned by the practices of neighboring countries and by a government’s human rights commitment and institutional capacity. This article also introduces original data on the quality and responsiveness of reports, finding that more democratic—and particularly newly democratic—governments tend to render higher quality ...


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 ...


Good Enough For Government Work: Two Cheers For Content Neutrality, Seth F. Kreimer Jul 2014

Good Enough For Government Work: Two Cheers For Content Neutrality, Seth F. Kreimer

Faculty Scholarship at Penn Law

When then-Professor Elena Kagan emerged on the public stage in the mid-1990s, she declared “the distinction between content-based and content-neutral regulations of speech serves as the keystone of First Amendment law.” In the last decade and a half, commentators and Supreme Court opinions regularly echoed that declaration. Yet the First Amendment does not mention “content neutrality.” It is an artifact of modern constitutional doctrine–a doctrine subject to a sustained barrage of judicial and academic criticism.

Most scholarly critiques of content neutrality focus on First Amendment theory and Supreme Court opinions. After surveying these critiques, along with the incomplete defenses ...


Endogenous Decentralization In Federal Environmental Policies, Howard F. Chang, Hilary Sigman, Leah G. Traub Jan 2014

Endogenous Decentralization In Federal Environmental Policies, Howard F. Chang, Hilary Sigman, Leah G. Traub

Faculty Scholarship at Penn Law

Under most federal environmental laws and some health and safety laws, states may apply for “primacy,” that is, authority to implement and enforce federal law, through a process known as “authorization.” Some observers fear that states use authorization to adopt more lax policies in a regulatory “race to the bottom.” This paper presents a simple model of the interaction between the federal and state governments in such a scheme of partial decentralization. Our model suggests that the authorization option may not only increase social welfare but also allow more stringent environmental regulations than would otherwise be feasible. Our model also ...


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 ...


Why Do Retail Investors Make Costly Mistakes? An Experiment On Mutual Fund Choice, Jill E. Fisch, Tess Wilkinson-Ryan Jan 2014

Why Do Retail Investors Make Costly Mistakes? An Experiment On Mutual Fund Choice, Jill E. Fisch, Tess Wilkinson-Ryan

Faculty Scholarship at Penn Law

There is mounting evidence that retail investors make predictable, costly investment mistakes, including underinvestment, naïve diversification, and payment of excessive fund fees. Over the past thirty-five years, however, participant-directed 401(k) plans have largely replaced professionally managed pension plans, requiring unsophisticated retail investors to navigate the financial markets themselves. Policy-makers have struggled with regulatory interventions designed to improve the quality of investment decisions without a clear understanding of the reasons for investor mistakes. Absent such an understanding, it is difficult to design effective regulatory responses.

This article offers a first step in understanding the investor decision-making process. We use an ...


Poisoning The Next Apple? The America Invents Act And Individual Inventors, David S. Abrams, R. Polk Wagner Mar 2013

Poisoning The Next Apple? The America Invents Act And Individual Inventors, David S. Abrams, R. Polk Wagner

Faculty Scholarship at Penn Law

The Leahy-Smith America Invents Act, the most significant patent law reform effort in two generations, has a dark side: It seems likely to decrease the patenting behavior of small inventors, a category which occupies special significance in American innovation history. In this paper we empirically predict the effects of the major change in the law: a shift in the patent priority rules from the United States’ traditional “first-to-invent” system to the predominant “first-to-file” system. While there has been some theoretical work on this topic, we use the Canadian experience with a similar change as a natural experiment to shed the ...


Who Calls The Shots?: How Mutual Funds Vote On Director Elections, Stephen J. Choi, Jill E. Fisch, Marcel Kahan Jan 2013

Who Calls The Shots?: How Mutual Funds Vote On Director Elections, Stephen J. Choi, Jill E. Fisch, Marcel Kahan

Faculty Scholarship at Penn Law

Shareholder voting has become an increasingly important focus of corporate governance, and mutual funds control a substantial percentage of shareholder voting power. The manner in which mutual funds exercise that power, however, is poorly understood. In particular, because neither mutual funds nor their advisors are beneficial owners of their portfolio holdings, there is concern that mutual fund voting may be uninformed or tainted by conflicts of interest. These concerns, if true, hamper the potential effectiveness of regulatory reforms such as proxy access and say on pay. This article analyzes mutual fund voting decisions in uncontested director elections. We find that ...


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 ...


Transparency Through Insurance: Mandates Dominate Discretion, Tom Baker Jan 2012

Transparency Through Insurance: Mandates Dominate Discretion, Tom Baker

Faculty Scholarship at Penn Law

This chapter describes how liability insurance has contributed to the transparency of the civil justice system. The chapter makes three main points. First, much of what we know about the empirics of the civil justice system comes from access to liability insurance data and personnel. Second, as long as access to liability insurance data and personnel depends on the discretion of liability insurance organizations, this knowledge will be incomplete and, most likely, biased in favor of the public policy agenda of the organizations providing discretionary access to the data. Third, although mandatory disclosure of liability insurance data would improve transparency ...


Estimating The Deterrent Effect Of Incarceration Using Sentencing Enhancements, David S. Abrams Jan 2012

Estimating The Deterrent Effect Of Incarceration Using Sentencing Enhancements, David S. Abrams

Faculty Scholarship at Penn Law

Increasing criminal sanctions may reduce crime through two primary mechanisms: deterrence and incapacitation. Disentangling their effects is crucial, since each mechanism has different implications for optimal policy setting. I use the introduction of state add-on gun laws, which enhance sentences for defendants possessing a firearm during the commission of a felony, to isolate the deterrent effect of incarceration. Defendants subject to add-ons would be incarcerated in the absence of the law change, so any short-term impact on crime can be attributed solely to deterrence. Using cross-state variation in the timing of law passage dates, I find that the average add-on ...


The Shifting Terrain Of Risk And Uncertainty On The Liability Insurance Field, Tom Baker Feb 2011

The Shifting Terrain Of Risk And Uncertainty On The Liability Insurance Field, Tom Baker

Faculty Scholarship at Penn Law

Recent sociological and historical work suggests that insurance risks often are not reliably calculable, except in hindsight. Insurance is “an uncertain business,” characterized by competition for premiums that pushes insurers into the unknown. This essay takes some preliminary steps that extend this insight into the liability insurance field. The essay first provides a simple quantitative comparison of U.S. property and liability insurance premiums over the last sixty years, setting the stage to make three points: (1) liability insurance premiums have grown at a similar rate as property insurance premiums and GDP over this period, providing yet another piece of ...


Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan Sep 2010

Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan

Faculty Scholarship at Penn Law

Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set ...


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 ...


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 ...


Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan Jun 2007

Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan

Faculty Scholarship at Penn Law

Regulation of business activity is nearly as old as law itself. In the last century, though, the use of regulation by modern governments has grown markedly in both volume and significance, to the point where nearly every facet of today’s economy is subject to some form of regulation. When successful, regulation can deliver important benefits to society; however, regulation can also impose undue costs on the economy and, when designed or implemented poorly, fail to meet public needs at all. Given the importance of sound regulation to society, its study by scholars of law and social science is also ...