Public Law and Legal Theory Commons^™

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

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.

The historical context dates back to the 1880s, a period when the influence of the Sermon on the ...

Hushing Contracts, David A. Hoffman, Eric Lampmann

Faculty Scholarship at Penn Law

The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, has attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy ...

Making Consumer Finance Work, Natasha Sarin

Faculty Scholarship at Penn Law

The financial crisis exposed major faultlines in banking and financial markets more broadly. Policymakers responded with far-reaching regulation that created a new agency—the CFPB—and changed the structure and function of these markets.

Consumer advocates cheered reforms as welfare-enhancing, while the financial sector declared that consumers would be harmed by interventions. With a decade of data now available, this Article presents the first empirical examination of the successes and failures of the consumer finance reform agenda. Specifically, I marshal data from every zip code and bank in the United States to test the efficacy of three of the most ...

Going "Clear", Ryan D. Doerfler

Faculty Scholarship at Penn Law

This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words ...

Introduction: The Power Of Global Performance Indicators, Judith G. Kelley, Beth A. Simmons

Faculty Scholarship at Penn Law

In recent decades, IGOs, NGOs, private firms and even states have begun to regularly package and distribute information on the relative performance of states. From the World Bank's Ease of Doing Business Index to the Financial Action Task Force blacklist, Global Performance Indicators (GPIs) are increasingly deployed to influence governance globally. We argue that GPIs derive influence from their ability to frame issues, extend the authority of the creator, and—most importantly —to invoke recurrent comparison that stimulate governments' concerns for their own and their country's reputation. Their public and ongoing ratings and rankings of states are particularly ...

Book Review: An Examination Of Maine's Public Beach Access, Ariel A. Hampton

Ocean and Coastal Law Journal

Many people assume that access rights to public resources are unwavering. Two Maine Supreme Judicial Court cases concerning limitations to public access to Maine beaches rebut this assumption. In his book, Maine's Beaches Are Public Property: The Bell Cases Must Be Reexamined, Professor Orlando E. Delogu challenges the modifications to public beach access that resulted from these two cases. This Review focuses on the historical and legal arguments that Professor Delogu presents as justification for the reversal of the Bell cases. Professor Delogu gives compelling reasons for his take on the Bell cases and why the State of Maine ...

The Power Of Ranking: The Ease Of Doing Business Indicator And Global Regulatory Behavior, Rush Doshi, Judith G. Kelley, Beth A. Simmons

Faculty Scholarship at Penn Law

The proliferation of Global Performance Indicators (GPIs), especially those that rate and rank states against one another, shapes decisions of states, investors, bureaucrats, and voters. This power has not been lost on the World Bank, which has marshaled the Ease of Doing Business (EDB) index to amass surprising influence over global regulatory policies – a domain over which it has no explicit mandate and for which there is ideological contestation. This paper demonstrates how the World Bank’s EDB ranking system affects policy through bureaucratic, transnational, and domestic-political channels. We use observational and experimental data to show that states respond to ...

Lowering Legal Barriers To Rpki Adoption, Christopher S. Yoo, David A. Wishnick

Faculty Scholarship at Penn Law

Across the Internet, mistaken and malicious routing announcements impose significant costs on users and network operators. To make routing announcements more reliable and secure, Internet coordination bodies have encouraged network operators to adopt the Resource Public Key Infrastructure (“RPKI”) framework. Despite this encouragement, RPKI’s adoption rates are low, especially in North America.

This report presents the results of a year-long investigation into the hypothesis—widespread within the network operator community—that legal issues pose barriers to RPKI adoption and are one cause of the disparities between North America and other regions of the world. On the basis of interviews ...

Prefatory Matter

Richmond Public Interest Law Review

No abstract provided.

Letter From The Editor, Maryann Grover

Richmond Public Interest Law Review

No abstract provided.

If Roe Falls: Whole Woman’S Health Act As A Necessary Stop-Gap On The Way To Full Protection Of Bodily Autonomy In Virginia, Galina Varchena

Richmond Public Interest Law Review

In 2016, the Supreme Court clarified the scenarios in which an “undue burden” is imposed on a pregnant person seeking an abortion in Whole Woman’s Health v. Hellerstedt. As a result, the constitutionality of many of Virginia’s abortion regulations seems in doubt. These unconstitutional regulations include the TRAP regulation that limits the type of facilities that can provide abortions, and statutes relating to informed consent and mandatory waiting periods. Thus, the outlook following the Court’s ruling in Whole Woman’s Health looked, if not bright, then at least hopeful for reproductive rights. That changed, though, with the ...

Virginia’S 2018 General Assembly Session In Review, Mollie Laird

Richmond Public Interest Law Review

The 2018 General Assembly session came on the heels of what many deemed a shocking 2017 election cycle. Democrats gained a surprising number of seats in the General Assembly, creating the need for bipartisan compromise throughout the 2018 session. It is when compromise occurred that deals were made and laws were passed to benefit Virginians. This does not mean that tensions did not flare at times. Ideological differences were certainly on display in debates surrounding Confederate monuments and gun control. But beyond ideological differences, the General Assembly was able to raise the felony-larceny threshold and to end a rate freeze ...

Aging Out: 2018 Legislation Seeking To Address Virginia’S Permanency Problem For Children In Foster Care, Valerie L'Herrou

Richmond Public Interest Law Review

Virginia has one of the highest rates of youth who “age out” of the foster care system and one of the lowest family reunification rates in the country. This is due to several factors, including that the termination of parental rights has an accelerated timeline in Virginia compared to the federal timeline. Children who age out of the system lack a sense of permanency that is critical to healthy psychological development. As a result, many such children tend to experience lower levels of educational attainment and income, and higher levels of substance use, criminal justice system involvement, and homelessness than ...

Free To Bleed: Virginia House Bill 83 And The Dignity Of Menstruating Inmates, Holly Seibold, Gianna Fienberg

Richmond Public Interest Law Review

For many individuals, their monthly period is an embarrassing and stigmatizing event, but for those who are homeless or have a low income, are students, or are incarcerated, it is something much more dangerous. A lack of menstrual hygiene can lead to serious health risks including skin infections, urinary tract and bladder infections, and toxic shock syndrome. Because of the cost of menstrual supplies, though, many are prevented from adequately caring for their menstrual health. Students, the homeless and low-income, and the incarcerated are regularly confronted by a lack of access to menstrual supplies and are thus forced to use ...

Grassroots Organizing And Medicaid Expansion In Virginia: The Lee County Chapter Of Virginia Organizing And Medicaid Expansion, Brian Johns, Rosemary Gould, Ladelle Mcwhorter

Richmond Public Interest Law Review

The ability to participate in grassroots organizing derives implicitly from the Constitution’s declaration of “We the People” and explicitly from the First Amendment’s guarantee of the right to petition the Government for redress. At Virginia Organizing, we take this grant of power very seriously as is evident from our recent grassroots organizing for Medicaid expansion in Virginia. Our work focused predominately on more rural parts of the Commonwealth where our chapter members have experienced the consequences of a lack of access to health care. By mobilizing individuals passionate about Medicaid expansion and those who suffer from the lack ...

The Appeal Of A Repeal: Analyzing Virginia’S Self-Sabotage Of Successful Re-Entry For Drug Felons, Salaam Bhatti

Richmond Public Interest Law Review

The United States is currently engaged in a battle against poverty. There are many heads to this Hydra, but one of the most significant is the felony drug ban. The felony drug ban prohibits individuals convicted of felony drug offenses from receiving Supplement Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF) benefits. This means that, at a time when a former inmate is most vulnerable – when they struggle to find work and support themselves post-release - the government turns a blind eye to that individual’s need, often forcing a former inmate to recidivate and do anything they ...

Virginia Pioneers Mental Health Transportation Alternative For Children Under Temporary Detention Order, Snapper Tams, Victoria Zicker

Richmond Public Interest Law Review

Children in Virginia who are experiencing a mental health crisis have traditionally been shackled while they are transported to a mental health facility for treatment. Such shackling is traumatizing for children and detrimental to their cognitive and emotional development. Shackling has been required by law enforcement personnel, the default providers of mental health transportation. However, alternative transportation options to law enforcement exist and are actively being explored in Virginia in order to de-stigmatize mental health crises and minimize trauma caused by the transportation process. The Virginia Department of Behavioral Health and Developmental Services funded a pilot program in southwestern Virginia ...

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

Faculty Scholarship at Penn Law

Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference ...

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

Faculty Scholarship at Penn Law

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the ...