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A Roadmap To Revising Ethiopia’S Gender Discriminatory Laws: A Comparative Analysis, Rangita De Silva De Alwis Jul 2021

A Roadmap To Revising Ethiopia’S Gender Discriminatory Laws: A Comparative Analysis, Rangita De Silva De Alwis

Faculty Scholarship at Penn Law

Ethiopia is Africa's oldest independent country, the second-most populous nation in Africa, and one of the founding members of the Organization of African Unity (OAU), which was established on 25 May 1963 and replaced by the African Union (AU) in 2002. The headquarters of the AU is based in Addis Ababa. Today, Ethiopia has the largest GDP in East Africa and its economy is also one of the fastest growing economies in the world.

Ethiopia is one of the few countries in the world which had achieved gender parity in the cabinet, and where women hold the positions of ...


Secured Transactions Law Reform In Japan: Japan Business Credit Project Assessment Of Interviews And Tentative Policy Proposals, Megumi Hara, Kumiko Koens, Charles W. Mooney Jr. Apr 2021

Secured Transactions Law Reform In Japan: Japan Business Credit Project Assessment Of Interviews And Tentative Policy Proposals, Megumi Hara, Kumiko Koens, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This article summarizes key findings from the Japan Business Credit Project (JBCP), which involved more than 30 semi-structured interviews conducted in Japan from 2016 through 2018. It was inspired by important and previously unexplored questions concerning secured financing of movables (business equipment and inventory) and claims (receivables)—“asset-based lending” or “ABL.” Why is the use of ABL in Japan so limited? What are the principal obstacles and disincentives to the use of ABL in Japan? The interviews were primarily with staff of banks, but also included those of government officials and regulators, academics, and law practitioners. The article proposes reforms ...


Criminal Law’S Core Principles, Paul H. Robinson Feb 2021

Criminal Law’S Core Principles, Paul H. Robinson

Faculty Scholarship at Penn Law

Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this “blank slate” conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.

Many writers dispute that such core principles ...


In Defense Of Moral Credibility, Paul H. Robinson, Lindsay Holcomb Jan 2021

In Defense Of Moral Credibility, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Law

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby ...


Undemocratic Crimes, Paul H. Robinson, Jonathan C. Wilt Jan 2021

Undemocratic Crimes, Paul H. Robinson, Jonathan C. Wilt

Faculty Scholarship at Penn Law

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment. This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice. Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of ...


Internet Connectivity Among Indigenous And Tribal Communities In North America - A Focus On Social And Educational Outcomes, Christopher S. Yoo, Leon Gwaka, Muge Haseki Jan 2021

Internet Connectivity Among Indigenous And Tribal Communities In North America - A Focus On Social And Educational Outcomes, Christopher S. Yoo, Leon Gwaka, Muge Haseki

Faculty Scholarship at Penn Law

Broadband access is an important part of enhancing rural community development, improving the general quality of life. Recent telecommunications stimulus projects in the U.S. and Canada were intended to increase availability of broadband through funding infrastructure investments, largely in rural and remote regions. However, there are various small, remote, and rural communities, who remain unconnected. Connectivity is especially important for indigenous and tribal communities to access opportunities for various public services as they are generally located in remote areas. In 2016, the FCC reported that 41% of U.S. citizens living on tribal lands, and 68% of those in ...


Reckoning With Race And Disability, Jasmine E. Harris Jan 2021

Reckoning With Race And Disability, Jasmine E. Harris

Faculty Scholarship at Penn Law

Our national reckoning with race and inequality must include disability. Race and disability have a complicated but interconnected history. Yet discussions of our most salient socio-political issues such as police violence, prison abolition, healthcare, poverty, and education continue to treat race and disability as distinct, largely biologically based distinctions justifying differential treatment in law and policy. This approach has ignored the ways in which states have relied on disability as a tool of subordination, leading to the invisibility of disabled people of color in civil rights movements and an incomplete theoretical and remedial framework for contemporary justice initiatives. Legal scholars ...


A Truce In The Criminal Law Distributive Principle Wars?, Paul H. Robinson Oct 2020

A Truce In The Criminal Law Distributive Principle Wars?, Paul H. Robinson

Faculty Scholarship at Penn Law

Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs.

It is argued here that the two are in fact reconcilable, in a fashion ...


Law As Scapegoat, Cary Coglianese Aug 2020

Law As Scapegoat, Cary Coglianese

Faculty Scholarship at Penn Law

Populist nationalist movements have been on the rise around the world in recent years. These movements have tapped into, and fueled, a deep anger among many members of the public. Especially in the face of stagnant or declining economic prospects—as well as expanding inequality—much anger has been directed at minorities and migrants. Politicians with authoritarian tendencies have sought to leverage such public anger by reinforcing tendencies to scapegoat others for their society’s problems. In this paper, I show that laws and regulations—like migrants—can be framed as “the other” too and made into scapegoats. With reference ...


Divided By The Sermon On The Mount, David A. Skeel Jr. Jan 2020

Divided By The Sermon On The Mount, David A. Skeel Jr.

Faculty Scholarship at Penn Law

This Essay, written for a festschrift for Bob Cochran, argues that the much-discussed friction between evangelical supporters of President Trump and evangelical critics is a symptom of a much deeper theological divide over the Sermon on the Mount, where Jesus told his disciples to turn the other cheek when struck, love their neighbor as themselves, and pray that their debts will be forgiven as they forgive their debtors. Divergent interpretations of these teachings have given rise to competing evangelical visions of justice. One side of today’s divide—the religious right—can be traced directly back to the fundamentalist critics ...


The Reach Of The Realm, Kimberly Kessler Ferzan Jan 2020

The Reach Of The Realm, Kimberly Kessler Ferzan

Faculty Scholarship at Penn Law

In The Realm of Criminal Law, Antony Duff argues that the criminal law’s realm is bounded by territory. This is because a polity decides what it cares about in crafting its civic home, and it extends its rules and hospitality to guests (non-citizens). I question whether the most normatively attractive conception of a Duffian polity would be bounded by territory, or whether it would exercise far more extensive jurisdiction over its citizens wherever in the world they may be (active personality) and over harm to its citizens/interests wherever in the world the attacks occur (passive personality).


Introduction--Chinese Law In A Time Of Crises: Regulatory Challenges At Home, Ideological Contests Abroad . . . And More, Jacques Delisle Jan 2020

Introduction--Chinese Law In A Time Of Crises: Regulatory Challenges At Home, Ideological Contests Abroad . . . And More, Jacques Delisle

Faculty Scholarship at Penn Law

This special issue of the University of Pennsylvania Asian Law Review builds on the journal’s proud tradition of presenting noteworthy articles addressing important aspects of law in contemporary China, and reflects the evolution of English-language scholarship on Chinese law during the fifteen years since this journal began publication as the University of Pennsylvania East Asia Law Review. This collection appears at a fraught and possibly pivotal time for Chinese law and the context in which it operates. The authors in this issue address and respond to aspects of the defining issues of this critical moment.


Lessons From China's Response To Covid-19: Shortcomings, Successes, And Prospects For Reform In China's Regulatory State, Jacques Delisle, Shen Kui Jan 2020

Lessons From China's Response To Covid-19: Shortcomings, Successes, And Prospects For Reform In China's Regulatory State, Jacques Delisle, Shen Kui

Faculty Scholarship at Penn Law

China’s response to COVID-19 offers a case study of law, the regulatory state and governance in China. The costly delay in the initial response reflected distinctive features of the Chinese system, including perverse incentives local-level officials face to try to cover up problems, fragmentated institutions and rules, and politically weak public health bureaucracies. After the initial shortcomings, China’s largely successful efforts to contain the pandemic also reflected defining features of the Chinese system, including a highly capable, centralized and authoritarian party-state that could mobilize vast resources, coordinate across fractious institutions, create ad hoc government and party leadership bodies ...


Dealing With “Dilemmas Of Difference” In The Workplace, Rangita De Silva De Alwis, Sarah Heberlig, Lindsay Holcomb Jan 2020

Dealing With “Dilemmas Of Difference” In The Workplace, Rangita De Silva De Alwis, Sarah Heberlig, Lindsay Holcomb

Faculty Scholarship at Penn Law

Over the course of six months, the University of Pennsylvania Carey Law School’s class “Women, Law, and Leadership” interviewed 55 women between the ages of 25 and 85, all leaders in their respective fields. Nearly half of the women interviewed were women of color, and 10 of the women lived and worked in countries other than the U.S., spanning across Europe, Africa, and Southeast Asia. Threading together the common themes touched upon in these conversations, we gleaned a number of novel insights, distinguishing the leadership trajectories pursued by women who have risen to the heights of their professions ...


Christianity And Bankruptcy, David A. Skeel Jr. Dec 2019

Christianity And Bankruptcy, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Although the term “bankruptcy” is nowhere to be found in the Bible, debt and the consequences of default are a major theme both in the Hebrew Bible and in the New Testament. In Israel, as in the ancient Near East generally, a debtor who defaulted on his obligations was often sold into slavery or servitude. Biblical law moderated the harshness of this system by prohibiting Israelites from charging interest on loans to one another, thus diminishing the risk of default, and by requiring the release of slaves after seven years of service. Jesus alluded to the lending laws at least ...


Against The Received Wisdom: Why Should The Criminal Justice System Give Kids A Break?, Stephen J. Morse Jul 2019

Against The Received Wisdom: Why Should The Criminal Justice System Give Kids A Break?, Stephen J. Morse

Faculty Scholarship at Penn Law

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote. For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about ...


Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee Jun 2019

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that ...


Autonomy, Gideon Parchomovsky, Alex Stein May 2019

Autonomy, Gideon Parchomovsky, Alex Stein

Faculty Scholarship at Penn Law

Personal autonomy is a constitutive element of all rights. It confers upon a rightholder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a rightholder of a choice that was rightfully hers — the choice as to how to go about her life.

Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a rightholder without securing her permission or ...


Codifying A Sharia-Based Criminal Law In Developing Muslim Countries, Paul H. Robinson Apr 2019

Codifying A Sharia-Based Criminal Law In Developing Muslim Countries, Paul H. Robinson

Faculty Scholarship at Penn Law

This paper reproduces presentations made at the University of Tehran in March 2019 as part of the opening and closing remarks for a Conference on Criminal Law Development in Muslim-Majority Countries. The opening remarks discuss the challenges of codifying a Shari’a-based criminal code, drawing primarily from the experiences of Professor Robinson in directing codification projects in Somalia and the Maldives. The closing remarks apply many of those lessons to the situation currently existing in Iran. Included is a discussion of the implications for Muslim countries of Robinson’s social psychology work on the power of social influence and internalized ...


“Second Looks, Second Chances”: Collaborating With Lifers Inc. On A Video About Commutation Of Lwop Sentences, Regina Austin Jan 2019

“Second Looks, Second Chances”: Collaborating With Lifers Inc. On A Video About Commutation Of Lwop Sentences, Regina Austin

Faculty Scholarship at Penn Law

In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.” Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors. This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers. The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions ...


Rethinking Copyright And Personhood, Christopher S. Yoo Jan 2019

Rethinking Copyright And Personhood, Christopher S. Yoo

Faculty Scholarship at Penn Law

One of the primary theoretical justifications for copyright is the role that creative works play in helping develop an individual’s sense of personhood and self-actualization. Typically ascribed to the writings of Immanuel Kant and Georg Wilhelm Friedrich Hegel, personhood-based theories of copyright serve as the foundation for the moral rights prominent in European copyright law and mandated by the leading intellectual property treaty, which give authors inalienable control over aspects of their works after they have been created. The conventional wisdom about the relationship between personhood and copyright suffers from two fatal flaws that have gone largely unappreciated. First ...


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 ...


Of Law And Other Artificial Normative Systems, Mitchell N. Berman Jan 2019

Of Law And Other Artificial Normative Systems, Mitchell N. Berman

Faculty Scholarship at Penn Law

Different theories of law are situated within different pictures of our normative landscape. This essay aims to make more visible and attractive one picture that reflects basic positivist sensibilities yet is oddly marginalized in the current jurisprudential literature. The picture that I have in mind tries to vindicate surface appearances. It maintains that the social world is densely populated by countless normative systems of human construction (“artificial normative systems”) whose core functions are to generate and maintain norms (oughts, obligations, powers, rights, prohibitions, and the like). The norms that these systems output are conceptually independent from each other, and may ...


Foreword: Abolition Constitutionalism, Dorothy E. Roberts Jan 2019

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

Faculty Scholarship at Penn Law

In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is ...


Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters Jan 2019

Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters

Faculty Scholarship at Penn Law

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in ...


The Aesthetics Of Disability, Jasmine E. Harris Jan 2019

The Aesthetics Of Disability, Jasmine E. Harris

Faculty Scholarship at Penn Law

The foundational faith of disability law is the proposition that we can reduce disability discrimination if we can foster interactions between disabled and nondisabled people. This central faith, which is rooted in contact theory, has encouraged integration of people with and without disabilities, with the expectation that contact will reduce preju­dicial atti­tudes and shift societal norms. However, neither the scholarship nor disa­bility law sufficiently accounts for what this Article calls the “aesthetics of disability,” the proposition that our interaction with dis­ability is medi­ated by an affective process that inclines us to like, dislike, be attracted ...


Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp Dec 2018

Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.

In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of ...


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 ...


Self-Actualization And The Need To Create As A Limit On Copyright, Christopher S. Yoo Aug 2018

Self-Actualization And The Need To Create As A Limit On Copyright, Christopher S. Yoo

Faculty Scholarship at Penn Law

Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts.

This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of ...


James Wilson As The Architect Of The American Presidency, Christopher S. Yoo Jul 2018

James Wilson As The Architect Of The American Presidency, Christopher S. Yoo

Faculty Scholarship at Penn Law

For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is with respect to Article II, which establishes the executive and defines its powers. Most scholars characterize him as a resolute advocate of an independent, energetic, and unitary presidency, and a particularly successful one at that. In this regard, some scholars have generally characterized Wilson’s thinking as overly rigid. Yet a close examination of the Convention reveals Wilson to be more flexible than sometimes characterized. With respect to many aspects of the presidency, including the appointment ...