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Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang Jan 2021

Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

In Section I, through a ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Jan 2020

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence ...


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 ...


Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii Jan 2019

Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article ...


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 ...


Arguing With Friends, William Baude, Ryan D. Doerfler Jan 2018

Arguing With Friends, William Baude, Ryan D. Doerfler

Faculty Scholarship at Penn Law

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or ...


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 ...


The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson Jan 2018

The Subversions And Perversions Of Shadow Vigilantism, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

This excerpt from the recently published Shadow Vigilantes book argues that, while vigilantism, even moral vigilantism, can be dangerous to a society, the real danger 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 ...


Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro Jan 2018

Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective ...


Are There Really "Plenty Of Shapiros Out There"? A Comment On The Courage Of Norma L. Shapiro, Reid K. Weisbord, David A. Hoffman Apr 2017

Are There Really "Plenty Of Shapiros Out There"? A Comment On The Courage Of Norma L. Shapiro, Reid K. Weisbord, David A. Hoffman

Faculty Scholarship at Penn Law

Norma Levy Shapiro, a trailblazing United States District Court Judge whose tenure on the Philadelphia federal bench spanned nearly 40 years, died July 22, 2016. This memoriam, written by two former law clerks, reflects fondly on Judge Shapiro’s judicial courage to follow her conscience even when doing so required making deeply unpopular decisions. To illustrate, this memoriam examines three of Judge Shapiro’s most memorable cases from her notable prisoner litigation docket.

First, in Harris v. Pernsley, Judge Shapiro’s principled but polarizing decisions in the Philadelphia prison overcrowding litigation elicited a now-familiar brand of snark from one (tremendous ...


Bail Reform: New Directions For Pretrial Detention And Release, Megan Stevenson, Sandra G. Mayson Mar 2017

Bail Reform: New Directions For Pretrial Detention And Release, Megan Stevenson, Sandra G. Mayson

Faculty Scholarship at Penn Law

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who ...


The Tragedy Of Justice Scalia, Mitchell N. Berman Jan 2017

The Tragedy Of Justice Scalia, Mitchell N. Berman

Faculty Scholarship at Penn Law

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia ...


Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang Jan 2017

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented 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 ...


Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas Aug 2016

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

Faculty Scholarship at Penn Law

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to ...


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 ...


Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla Jan 2016

Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla

Faculty Scholarship at Penn Law

This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly ...


The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer Jan 2016

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

Faculty Scholarship at Penn Law

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current ...


Material Facts In The Debate Over Twombly And Iqbal, Jonah B. Gelbach Jan 2016

Material Facts In The Debate Over Twombly And Iqbal, Jonah B. Gelbach

Faculty Scholarship at Penn Law

This paper presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions from nearly 2,000 randomly selected employment discrimination and contracts cases to try to assess Twombly and Iqbal’s performance in filtering cases according to merit. I first explain how such data might be helpful in such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal.

I then report results indicating that even using this large collection of data -- the most comprehensive data assembled to date to address this question -- we cannot tell whether “TwIqbal” supporters or critics are ...


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 ...


Making "Friends" With The #Ethics Rules: Avoiding Pitfalls In Professional Social Media Use, Cynthia Laury Dahl Jan 2015

Making "Friends" With The #Ethics Rules: Avoiding Pitfalls In Professional Social Media Use, Cynthia Laury Dahl

Faculty Scholarship at Penn Law

Lawyers’ professional use of social media is widespread and a critical component to running a successful practice. Yet some common uses of social media easily – and often innocently -- violate the professional rules of ethics. The American Bar Association recently passed amendments to the Model Rules of Professional Conduct to include topics related to social media use, but the amendments still do not address all issues. Likewise, advisory opinions of state and local bar associations and court opinions give scant and sometimes contradictory advice about when a use does or does not violate a Rule. This essay discusses four topics at ...


The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson Jan 2015

The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson

Faculty Scholarship at Penn Law

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.


Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Jill E. Fisch, Sean J. Griffith, Steven M. Davidoff Jan 2015

Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Jill E. Fisch, Sean J. Griffith, Steven M. Davidoff

Faculty Scholarship at Penn Law

Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result ...


Legal Realism And The Conflict Of Laws, Kermit Roosevelt Iii Jan 2015

Legal Realism And The Conflict Of Laws, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

What did legal realism bring to the conflict of laws? Why was the realist critique of the received wisdom so successful? And why, despite that success, is the realist movement in conflict of laws—and, indeed, the whole American choice of law revolution—seen as a failure?

In this Response, I suggest some brief answers to those questions. Realism, I suggest, is more successful than its critics think—though its project remains unfinished. A better understanding of realism's contributions can show us what work remains in the realist project.


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 ...


Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach Jan 2015

Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach

Faculty Scholarship at Penn Law

In light of the gateway role that the pleading standard can play in our civil litigation system, measuring the empirical effects of pleading policy changes embodied in the Supreme Court's controversial Twombly and Iqbal cases is important. In my earlier paper, Locking the Doors to Discovery, I argued that in doing so, special care is required in formulating the object of empirical study. Taking party behavior seriously, as Locking the Doors does, leads to empirical results suggesting that Twombly and Iqbal have had substantial effects among cases that face Rule 12(b)(6) motions post-Iqbal. This paper responds ...


The Moral Vigilante And Her Cousins In The Shadows, Paul H. Robinson Jan 2015

The Moral Vigilante And Her Cousins In The Shadows, Paul H. Robinson

Faculty Scholarship at Penn Law

By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law rules ...


Roadblocks To Access To Justice: Reforming Ethical Rules To Meet The Special Needs Of Low-Income Clients, Louis S. Rulli Jan 2014

Roadblocks To Access To Justice: Reforming Ethical Rules To Meet The Special Needs Of Low-Income Clients, Louis S. Rulli

Faculty Scholarship at Penn Law

The nation’s growing justice gap has left the poor with far too little access to legal representation, even in the most serious of civil matters. With poverty rates approaching their highest levels in the last fifty years, the poor struggle to hold on to their homes, their jobs, and their families, frequently overmatched by superior resources and an abundance of opposing lawyers representing corporations, government, and well-heeled interests. Non-profit lawyers struggle to provide limited assistance to the poor in high volume, community settings, or in courtroom corridors and on telephone hot lines. It is in these non-traditional settings that ...


Commentary: Reflections On Remorse, Stephen J. Morse Jan 2014

Commentary: Reflections On Remorse, Stephen J. Morse

Faculty Scholarship at Penn Law

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.


Rethinking Summary Judgment Empirics: The Life Of The Parties, Jonah B. Gelbach Jan 2014

Rethinking Summary Judgment Empirics: The Life Of The Parties, Jonah B. Gelbach

Faculty Scholarship at Penn Law

No abstract provided.