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2016

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Full-Text Articles in Law

Tragedy, Outrage & Reform Crimes That Changed Our World: 1911 – Triangle Factory Fire – Building Safety Codes, Paul H. Robinson, Sarah M. Robinson Dec 2016

Tragedy, Outrage & Reform Crimes That Changed Our World: 1911 – Triangle Factory Fire – Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around ...


Getches-Wilkinson Center Newsletter, Fall 2016, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment Oct 2016

Getches-Wilkinson Center Newsletter, Fall 2016, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.


The Role Of Personal Laws In Creating A “Second Sex”, Rangita De Silva De Alwis, Indira Jaising Sep 2016

The Role Of Personal Laws In Creating A “Second Sex”, Rangita De Silva De Alwis, Indira Jaising

Faculty Scholarship at Penn Law

The cultural construction of gender determines the role of women and girls within the family in many societies. Gendered notions of power in the family are often shrouded in religion and custom and find their deepest expression in Personal Laws. This essay examines the international law framework as it relates to personal laws and the commonality of narratives of litigators and plaintiffs in the cases from the three different personal law systems in India.


Who Cares How Congress Really Works?, Ryan David Doerfler Aug 2016

Who Cares How Congress Really Works?, Ryan David Doerfler

Faculty Scholarship at Penn Law

Legislative intent is a fiction. Courts and scholars accept this by and large. As this Article shows, however, both are confused as to why, and, more importantly, as to what this entails.

This Article argues that the standard account of why legislative intent is a fiction—that Congress is a “they,” not an “it”—rests on an overly simplistic conception of shared agency. Drawing on contemporary work in philosophy of action, this Article contends that Congress as such has no intentions not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of ...


How Being Right Can Risk Wrongs, Paul H. Robinson, Sarah M. Robinson Aug 2016

How Being Right Can Risk Wrongs, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

This is a chapter from the new book The Vigilante Echo. Previous chapters have made clear that some vigilantism can be morally justified where the government has failed in its promise under the social contract to protect and to do justice. But this chapter explains how even moral vigilante action can be problematic for the larger society. Vigilantes may try to do the right thing but are likely to lack the training and professional neutrality of police. They may be successful, but only on pushing the crime problem to an adjacent neighborhood. Because their open lawbreaking may seem admirable to ...


Shadow Vigilante Officials Manipulate And Distort To Force Justice From An Apparently Reluctant System, Paul H. Robinson, Sarah M. Robinson Aug 2016

Shadow Vigilante Officials Manipulate And Distort To Force Justice From An Apparently Reluctant System, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

The real danger of the vigilante impulse is not of hordes of citizens, frustrated by the system’s doctrines of disillusionment, rising up to take the law into their own hands. Frustration can spark a vigilante impulse but such classic aggressive vigilantism is not the typical response. More common is the expression of disillusionment in less brazen ways, by a more surreptitious undermining and distortion of the operation of the criminal justice system.

Shadow vigilantes, as they might be called, can affect the operation of the system in a host of important ways. For example, when people act as classic ...


A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus Jul 2016

A Study Of Social Security Disability Litigation In The Federal Courts, Jonah B. Gelbach, David Marcus

Faculty Scholarship at Penn Law

A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set ...


Geopolitical Implications Of The Sino-Japanese East China Sea Dispute For The U.S., Bert Chapman Jun 2016

Geopolitical Implications Of The Sino-Japanese East China Sea Dispute For The U.S., Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Much analysis on Asian strategic challenges facing the U.S. has justifiably emphasized the South China Sea (SCS). This has also been reflected in 2016 presidential campaign debate on the SCS as an emerging area of U.S. foreign and national security policy concern. The East China Sea (ECS) is at least as important for the strategic interests of the U.S. and its allies given the tension between China and Japan over the Senkaku/Diaoyu islands, potential energy resources in this body of water, increasing defense spending by adjacent geographic powers, the area’s importance as a maritime international ...


The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo Jun 2016

The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo

Faculty Scholarship at Penn Law

What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law ...


Uncontrolled Experiments From The Laboratories Of Democracy: Traditional Cash Welfare, Federalism, And Welfare Reform, Jonah B. Gelbach May 2016

Uncontrolled Experiments From The Laboratories Of Democracy: Traditional Cash Welfare, Federalism, And Welfare Reform, Jonah B. Gelbach

Faculty Scholarship at Penn Law

In this chapter I discuss the history and basic incentive effects of two key U.S. cash assistance programs aimed at families with children. Starting roughly in the 1980s, critics of the Aid to Families with Dependent Children (AFDC) program argued that the program -- designed largely to cut relatively small checks -- failed to end poverty or promote work. After years of federally provided waivers that allowed states to experiment with changes to their AFDC programs, the critics in 1996 won the outright elimination of AFDC. It was replaced by the Temporary Assistance to Needy Families (TANF) program, over which states ...


Inquiry Into The Implementation Of Bush’S Executive Order 13211 And The Impact On Environmental And Public Health Regulation, Elizabeth Ann Glass Geltman, Gunwant Gill, Miriam Jovanovic Apr 2016

Inquiry Into The Implementation Of Bush’S Executive Order 13211 And The Impact On Environmental And Public Health Regulation, Elizabeth Ann Glass Geltman, Gunwant Gill, Miriam Jovanovic

Publications and Research

Executive Order 13211, promulgated in 2001, requires the federal government to consider the impact of federal action on energy independence as part of the George W. Bush’s National Energy Policy. This law review examines whether EO 13211 was used to curtail environmental protection and natural resource conservation. The article begins with a review of the procedure required of federal agencies under EO 13211 and its associated documents. The paper then examines case law and published federal rulemaking proceedings and examines how federal agencies apply tests to evaluate the potential energy effect. The study concludes that EO 13211 strikes a ...


Getches-Wilkinson Center Newsletter, Spring 2016, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment Apr 2016

Getches-Wilkinson Center Newsletter, Spring 2016, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.


Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment Mar 2016

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places ...


Can The International Criminal Court Deter Atrocity?, Hyeran Jo, Beth A. Simmons Mar 2016

Can The International Criminal Court Deter Atrocity?, Hyeran Jo, Beth A. Simmons

Faculty Scholarship at Penn Law

Whether and how violence can be controlled to spare innocent lives is a central issue in international relations. The most ambitious effort to date has been the International Criminal Court (ICC), designed to enhance security and safety by preventing egregious human rights abuses and deterring international crimes. We offer the first systematic assessment of the ICC's deterrent effects for both state and nonstate actors. Although no institution can deter all actors, the ICC can deter some governments and those rebel groups that seek legitimacy. We find support for this conditional impact of the ICC cross-nationally. Our work has implications ...


“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer Feb 2016

“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer

Faculty Scholarship at Penn Law

Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and ...


Sleep: A Human Rights Issue, Clark J. Lee Jan 2016

Sleep: A Human Rights Issue, Clark J. Lee

Homeland Security Publications

Recognition of sleep as a human rights issue by governmental and legal entities (as illustrated by recent legal cases in the United States and India) raises the profile of sleep health as a societal concern. Although this recognition may not lead to immediate public policy changes, it infuses the public discourse about the importance of sleep health with loftier ideals about what it means to be human. Such recognition also elevates the work of sleep researchers and practitioners from serving the altruistic purpose of improving human health at the individual and population levels to serving the higher altruistic purpose of ...


Beyond Reparation: Affirmative Action As A Solution For Disparate Representation, Suny Cardenas-Gomez Jan 2016

Beyond Reparation: Affirmative Action As A Solution For Disparate Representation, Suny Cardenas-Gomez

Student Research

This essay provides support for Affirmative Action policy from the perspective that both supporters and opponents want merit-based evaluations. Disparate representation and prejudice-driven discrimination, however, make this impossible. Affirmative Action gives minorities the opportunity to change their representation in certain fields, therefore changing the way they are perceived, and eventually dissipating existing race-based discrimination in the evaluation process.


Data Note: State Intellectual And Developmental Disability Agencies' Service Trends, Jean Winsor, Thinkwork! At The Institute For Community Inclusion At Umass Boston Jan 2016

Data Note: State Intellectual And Developmental Disability Agencies' Service Trends, Jean Winsor, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Data Note Series, Institute for Community Inclusion

This Data Note summarizes findings from the FY 2014 National Survey of State Intellectual and Developmental Disability Agencies' (IDD Agencies) Day and Employment Services.


Data Note: The Engagement Of Young Adults With Intellectual Disabilities In Vocational Rehabilitation: 2010–2014 State Trends, Alberto Migliore, Jean Winsor, Caro Narby, Thinkwork! At The Institute For Community Inclusion At Umass Boston Jan 2016

Data Note: The Engagement Of Young Adults With Intellectual Disabilities In Vocational Rehabilitation: 2010–2014 State Trends, Alberto Migliore, Jean Winsor, Caro Narby, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Data Note Series, Institute for Community Inclusion

In this Data Note, we look at the average number of young adults with intellectual disabilities (ID) who between 2010 and 2014 exited vocational rehabilitation (VR) programs in each of the 50 states and the District of Columbia.


Data Note: Comparing Vr Outcomes For Individuals With And Without Intellectual Disabilities Who Receive Postsecondary Education Services, John Shepard, Frank A. Smith, Thinkwork! At The Institute For Community Inclusion At Umass Boston Jan 2016

Data Note: Comparing Vr Outcomes For Individuals With And Without Intellectual Disabilities Who Receive Postsecondary Education Services, John Shepard, Frank A. Smith, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Data Note Series, Institute for Community Inclusion

This Data Note explores the provision of postsecondary education services to vocational rehabilitation customers with and without intellectual disabilities who exited the VR system in FY2014.


The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh Jan 2016

The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Central to modern copyright law is its test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components, actual copying — the question whether the defendant did in fact copy, and improper appropriation — the question whether such copying, if it did exist, was unlawful. Somewhat counter-intuitively though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach continues to influence modern copyright ...


The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang Jan 2016

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of ...


The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh Jan 2016

The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

In this Essay, I examine the interaction between Indian constitutional law and Indian tort law. Using the context of the Indian Supreme Court’s dramatic expansion of its fundamental rights jurisprudence over the last three decades, I argue that while the Court’s conscious and systematic effort to transcend the public law/private law divide and incorporate concepts and mechanisms from the latter into the former might have produced a few immediate and highly salient benefits for the public law side of the system, its long terms effects on India’s private law edifice have been devastating. The Court’s ...


Of Property And Information, Abraham Bell, Gideon Parchomovsky Jan 2016

Of Property And Information, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship at Penn Law

The property-information interface is perhaps the most crucial and under-theorized dimension of property law. Information about property can make or break property rights. Information about assets and property rights can dramatically enhance the value of ownership. Conversely, dearth of information can significantly reduce the benefit associated with ownership. It is surprising, therefore, that contemporary property theorists do not engage in sustained analysis of the property-information interface and in particular of registries — the repositories of information about property.

Once, things were different. In the past, discussions of registries used to be a core topic in property classes and a focal point ...


Statedata: The National Report On Employment Services And Outcomes, 2016, Jean Winsor, Jaimie Ciulla Timmons, John Butterworth, John Shepard, Cady Landa, Frank A. Smith, Daria Domin, Alberto Migliore, Jennifer Bose, Lydia Landim, Thinkwork! At The Institute For Community Inclusion At Umass Boston Jan 2016

Statedata: The National Report On Employment Services And Outcomes, 2016, Jean Winsor, Jaimie Ciulla Timmons, John Butterworth, John Shepard, Cady Landa, Frank A. Smith, Daria Domin, Alberto Migliore, Jennifer Bose, Lydia Landim, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

This report provides statistics over 25 years from several national datasets that address the status of employment and economic self-sufficiency for individuals with intellectual and developmental disabilities. The authors use abbreviations for both intellectual disability (ID) and intellectual and developmental disabilities (IDD) in this report. This is because data sources vary in the specific target groups that can be described. Please refer to each chapter for the disability definition used in that chapter. We provide a comprehensive overview that describes national trends in employment for people with IDD, and the appendices provide individual state profiles with data from several sources ...


Beyond Baby Steps An Empirical Study Of The Impact Of Environmental Justice Executive Order 12898, Elizabeth Ann Glass Geltman, Gunwant Gill, Miriam Jovanovic Jan 2016

Beyond Baby Steps An Empirical Study Of The Impact Of Environmental Justice Executive Order 12898, Elizabeth Ann Glass Geltman, Gunwant Gill, Miriam Jovanovic

Publications and Research

This study evaluated the impact of Executive Order (EO) 12898 to advance environmental justice. We conducted a review evaluating the frequency and effective use of EO 12898 since execution with particular focus following President Obama’s Plan EJ 2014. We found that both EO 12898 and Plan EJ 2104 had little, if any, impact on federal regulatory decision making. To the extent federal agencies discussed EO 12898, most did so in boilerplate rhetoric that satisfied compliance but was devoid of detailed thought or analysis. In the 21st year, with the exception of the Environmental Protection Agency, very little federal regulatory ...


Drilling For Common Ground: How Public Opinion Tracks Experts In The Debate Over Federal Regulation Of Shale Oil & Gas Extraction, Elizabeth Ann Glass Geltman Jan 2016

Drilling For Common Ground: How Public Opinion Tracks Experts In The Debate Over Federal Regulation Of Shale Oil & Gas Extraction, Elizabeth Ann Glass Geltman

Publications and Research

Public interest in environmental and health impacts from shale oil and gas extraction (what the public calls “fracking”) is growing. Industry claims the public outcry against the new technology is not grounded in science. In February 2013, Resources for the Future (“RFF”) published a list of high priority “risk pathways” that experts from NGOs, academia, government, and industry all agreed were real concerns about fracking. This article used the risk matrix to evaluate whether public comments in dockets of federal agencies that proposed regulation concerning hydraulic fracturing tracked expert concern. The article found that the public tracked many of the ...


Is Government Really Broken?, Cary Coglianese Jan 2016

Is Government Really Broken?, Cary Coglianese

Faculty Scholarship at Penn Law

The widespread public angst that surfaced around the 2016 presidential election in the United States revealed that many Americans believe their government has become badly broken. Given the serious problems that continue to persist in society—crime, illiteracy, unemployment, poverty, discrimination, and more—these beliefs in a government breakdown are understandable. Yet a breakdown is actually far from self-evident. In this paper, I explain how diagnoses of governmental performance depend on the perspective from which current conditions in the country are viewed. Certainly when judged against a standard of perfection, America has a long way to go. But perfection is ...


Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner Jan 2016

Comparison Excluding Commitments: Incommensurability, Adjudication, And The Unnoticed Example Of Trade Disputes, Sungjoon Cho, Richard Warner

All Faculty Scholarship

We claim that there are important cases of “incommensurability” in public policymaking, in which all relevant reasons are not always comparable on a common scale as better, worse, or equally good. Courts often fail to confront this. We are by no means the first to contend that incommensurability exists. Yet incommensurability’s proponents have failed to sway the courts mainly because they overlook the fact that there are two types of incommensurability. The first (“incompleteness incommensurability”) consists of the lack of any appropriate metric for making the comparison. We argue that this type of incommensurability is relatively unproblematic in that ...


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 ...