Author Archive for university-of-pennsylvania-law-review
Samuelson and Sheffner Debate the Constitutionality of Copyright Statutory Damages
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Unconstitutionally Excessive Statutory Damage Awards in Copyright Cases
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October 2, 2009 at 11:09 am
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PENNumbra publishes responses to The Elusive Quest for Global Governance Standards
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This issue contains responses to The Elusive Quest for Global Governance Standards by Lucian A. Bebchuk & Assaf Hamdani.
In The Elusive Quest for Global Governance Standards, Professors Lucian Bebchuk and Assaf Hamdani argue that the currently available metrics for assessing the governance of public companies around the world suffer from a basic shortcoming. The impact of many key governance arrangements, they argue, depends considerably on companies’ ownership structure: measures that protect outside investors in a company without a controlling shareholder are often irrelevant or even harmful when it comes to investor protection in companies with a controlling shareholder, and vice versa. Consequently, governance metrics that purport to apply to companies regardless of ownership structure are bound to miss the mark with respect to one or both types of firms. In particular, Bebchuk and Hamdani attempt to show that the influential metrics used extensively by scholars and shareholder advisers to assess governance arrangements around the world—the Corporate Governance Quotient (CGQ), the Anti-Director Rights Index, and the Anti-Self-Dealing Index—are inadequate for this purpose. They suggest that going forward, the quest for global governance standards should be replaced by an effort to develop and implement separate methodologies for assessing governance in companies with and without a controlling shareholder. The professors identify the key features that these separate methodologies should include and discuss how to apply such methodologies in either country-level or firm-level comparisons.
In American Corporate Governance Indices as Seen from a European Perspective, Professor Klaus Hopt provides his insights from a continental European perspective in response to Bebchuk and Hamdani. Overall, Hopt believes the article is a “great contribution that may . . . open up a new legal and politics-of-law discourse” on the measures of corporate governance. Despite its promise, however, Hopt offers several differences in the economies of the United States and continental Europe that warrant closer consideration in Bebchuk and Hamdani’s duel set of metrics. These unique features of the European system—such as the increased number of companies with controlling shareholders or the larger institutional presence of labor on company boards—lead Hopt to question several aspects of Bebchuk and Hamdani’s analysis and recommendations. More generally, he wonders if shareholder structures are “the only or even the major criterion for differentiation” between the various corporate governance metrics when compared to the “securities-regulation regime and the financial system of the relevant country.” Finally, Hopt cautions the reader to remember that however these metrics evolve, they are but one tool of many for “basing comparative, investment, and even policies decisions” in the world of corporate governance.
Professor Vikramaditya Khanna offers his thoughts on Bebchuk and Hamdani’s article in Corporate Governance Ratings: One Score, Two Scores, or More? Khanna begins by offering a succinct summary of the Bebchuk and Hamdani’s recommendations and capturing the governance practices that the authors suggest matter most to companies with (CS) and without (NCS) controlling shareholders. Next, he considers whether these differences are supported in the extant scholarship. He considers anecdotal and emprical data from established and emerging markets and concludes that Bebchuk and Hamdani’s distinctions find “considerable support” in the literature. Notwithstanding this support, Khanna turns to consider whether the CS-NCS distinction is the optimal one to organize the professors’ governance rankings. Although he notes several other potential considerations, he ultimately offers a solution that would retain the simplicity and usefulness of Bebchuk and Hamdani’s CS-NCS distinction while providing insight into other salient country- or firm-specific distinctions through subsidiary rankings. Lastly, Khanna offers suggestions for next steps for implementing the recommendations of The Elusive Quest for Global Governance Standards.
As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
October 2, 2009 at 11:03 am
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PENNumbra publishes responses to Foundations of Intellectual Property Reform Symposium
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This month, Jonathan S. Masur and Lee Petherbridge respond to panelists who participated in the Law Review’s Foundations of Intellectual Property Reform Symposium.
In PTO’s Future: Reform or Abolition?, Professor Masur responds to the panelists from Intellectual Property Meets Administrative Law: Institutional Reform at the Patent and Trademark Office. In response to Professors Abramowicz and Duffy’s proposal for a competitive marketplace for granting patents, Masur uses the recent failures of the SEC to question whether the PTO could provide effective oversight of the new marketplace. In response to Professor Long’s analysis of the PTO’s efforts to expand its authority over patent law, Masur attempts to explain the Office’s “unholy alliance with intellectual-property-related interest groups and industry lobbying bodies.” Turning to Professor Rai’s article, Masur contrasts Rai’s incremental reforms to the sweeping changes suggested by Abramowicz and Duffy and wonders if implementing Rai’s suggestions might improve the PTO “to the point where a private competitor would not seem to offer such obvious benefits.” Finally, Masur examines Professor Mossoff’s “new defense of Lockean property theory” against Felix Cohen’s seventy-year-old critique. Despite Mossoff’s novel arguments, Masur maintains that an item or idea “has no value to an individual—even in Mossoff’s terms—without some set of enforceable rights.”
Professor Petherbridge offers his insights in response to the panelists from Addressing Patent Quality: The Theory, Practice, and Implications of the Way Patents Are Granted. Instead of commenting on each article in turn, Petherbridge uses his response to take up “some of the issues in the broader scholarly debate about patents, patent quality, and patent-system reform that . . . are put into relief by the present works.” Petherbridge begins by examining how each article addresses (or perhaps, belittles) the problem of “low quality” patents, asking “Are low-quality patents a problem worth the candle?” Next, Petherbridge explores the two “very different views [presented by the three works] about how a patent system might operationalize the exclusive rights that it promises,” focusing especially on Professors Burk and Lemley’s proposal to move back to a central-claiming regime to determine a patentee’s exclusive rights. Despite Burk and Lemley’s “well written and forcefully presented” arguments, Petherbridge offers several reasons why the reader should be cautious in accepting Burk and Lemley’s conclusions “hook, line, and sinker.” Finally, Petherbridge considers the insights of the three works into such “seminal” concepts of patent scholarship as the economic function of patents and whether we should even have our current patent system.
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September 14, 2009 at 9:03 am
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May Author Responses to PENNumbra
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This month, three print authors from the past year reply to the PENNumbra Responses to their articles.
In The Unusual Man in the Usual Place, Professor Bowers supports his argument from Punishing the Innocent by individually addressing each of the responses to his article in turn. Bowers begins by arguing that, while Professor Bibas would be right to view guilty pleas by innocent defendants as a “moral horrors” in a “well-functioning and transparent criminal justice system,” we do not have such a system. Under the flawed system we do have, however, Bowers contends that his proposal would promote “an odd, but very real, kind of honesty in lies—an honesty that innocent defendants do, and often should, falsely admit guilt in order to secure the benefits of defendant-favorable pleas.” Bowers then questions both the possibility and the wisdom of the “bold proposal” in Professor Thomas’ response. He asserts that although Thomas “surely does not want to engender more false guilty pleas, his proposal may have that principle effect.” Finally, Bowers acknowledges that Professor Wright’s call for targeted reforms may be correct, but argues that in regards to “voluntary and intelligent rational-choice pleas, we must opt for rules that either permit such pleas or forbid them—categorically.”
In Excluding Religion: A Reply, Professor Tebbe defends his argument that as a matter of constitutional law, “governments ought to be given wider constitutional latitude to exclude religion from their support programs.” Tebbe first accepts the invitations of his responders to “explore the legal implications” of his argument on political theory, concluding that while his approach may seem to “appeal chiefly to separationists, . . . [it] may also hold some appeal for people who favor greater governmental influence over matters of conscience and morality.” He then devotes the remainder of his response to answer several critiques, including Professor Berg’s assertion that Excluding Religion cannot be squared with the “no-influence approach” to the First Amendment, Professor Garnett’s call for a more “muscular” form of liberalism, and Professor Smith’s criticism that Tebbe has not provided a “unitary principle” for religious freedom. Finally, Tebbe addresses why he even “bother[s]” to write in an area of law where some scholars believe arguments can only convince those readers who are already inclined to agree.
In Making Sense of Immigration Law, Professor Cox continues his argument from Immigration Law’s Organizing Principles that the distinction between rules that select migrants and rules that regulate migrants “serves to obfuscate rather than illuminate the important normative principles at stake when we choose amongst competing immigration laws and policies.” In his rebuttal to Professors Schuck’s and Huntington’s responses, Cox contends that in many ways both scholars’ arguments “embody some of the same conceptual mistakes that . . . infect the field as a whole.” Cox first addresses what he believes is a “misapprehen[sion]” of the argument from Organizing Principles: Schuck’s contention that the article wrongly argues for “essential equivalence” between the concepts of “selection” and “regulation.” After clarifying the structure of his argument, Cox turns to Huntington’s claim that there is “some” conceptual distinction between the two types of rules. Cox argues that the distinction offered by Huntington—”between (a) admission and deportation rules and (b) other rules that regulate noncitizens”—can neither be understood as widely shared today nor a viable “dividing criterion” around which agreement could be found.
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May 11, 2009 at 6:45 am
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April Responses to the Penn Law Review
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This issue contains responses to Immigration Law’s Organizing Principles by Adam B. Cox.
In his Article, Professor Cox questions the central principle of immigration law that rules for selecting immigrants are fundamentally different from rules that regulate the lives of immigrants outside the selection process. Cox argues that the distinction is false because every rule of immigration necessarily effects both selection and regulation. Furthermore, even if rules could effectively be categorized, there is no moral or constitutional significance to the distinction. Rather, they are simply two alternative mechanisms that a state may use to achieve a particular end. Under this new understanding, Cox explores the implications to immigration law and institutional design.
Professor Schuck, in his Response, Immigration Law’s Organizing Principles: A Response, agrees that there is overlap in the incentives and effects of selection rules and regulation rules, but contends that Cox goes too far to claim “essential equivalence of the two.” Rather, he argues the real question is “whether, despite the overlap, enough difference between the two remains to justify maintaining some distinction in the legal rules that apply to them.” Unfortunately, despite Cox’s “valuable contribution” to the immigration law scholarship, by claiming equivalence of the two types of rules, Cox does not fully address, “much less answer” this question.
Professor Huntington, in her Response, A House Still Divided, is sympathetic to Cox’s desire to discard the traditional dichotomy between rules that govern the selection and regulation of immigrants. She identifies, however, two points of resistance to destabilizing the categories. Both because “there is some difference between selection and regulation,” and, more importantly, there is “political utility” in distinguishing between the two, Huntington argues that academics “need to be forthright about the power the distinction retains.”
April 3, 2009 at 11:32 am
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Debate: Democracy, Political Ignorance, and Constitutional Reform
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Democracy, Political Ignorance, and Constitutional Reform
In Democracy, Political Ignorance, and Constitutional Reform, Professors Ilya Somin and Sanford Levinson discuss the constitutional implications of a federal government whose “size, scope, and complexity” are far beyond anything that the framers could have possibly imagined and an electorate that is more likely to be able to name the Three Stooges than the three branches of their government. While both professors agree that the situation is problematic for our democratic form of government, they offer very different solutions to address the issue. Professor Somin argues that given such political ignorance, there is no guarantee that opening the door to large-scale constitutional reform would be able to provide a government that is any better. Rather, the best solutions would be aimed at “reduc[ing] the overweening power of government over society.” Professor Levinson, on the other hand, asserts any efforts to radically reduce government are akin to “swimming upstream, perhaps against a waterfall.” Instead, he offers three Constitutional reforms to adapt our founding document to better match the complexity of the modern state. Through these three modest changes, Professor Levinson asserts we can take significant steps toward a “more perfect Union.”
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April 3, 2009 at 11:28 am
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Debate: Implicit Race Bias and the 2008 Presidential Election: Much Ado About Nothing?
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Implicit Race Bias and the 2008 Presidential Election: Much Ado About Nothing?
Dr. Gregory Park and Professor Jeffrey Rachlinksi debate Professor Richard Epstein on the implications of President Obama’s election on race-based policies such as affirmative action and antidiscrimination laws. Dismissing claims that a “post-racial America” has arrived, Parks and Rachlinski argue that the presidential campaign simply demonstrated that modern racism “operates not as an absolute barrier, but as a kind of tax on members of racial minorities.” Because a typical minority job applicant does not have access to the “enormous resources” available to Obama, affirmative action and antidiscrimination laws are still necessary. Epstein, on the other hand, argues that while Parks’ and Rachlinski’s analysis of the campaign is flawed, the debate itself is a “sideshow.” Instead, “any private individual or firm can hire a person for good reason, bad reason, or no reason at all” and the market, not public force, should end unsavory hiring practices.
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March 10, 2009 at 10:15 am
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March Responses to the Penn Law Review
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This issue contains responses to Saving Lives Through Administrative Law and Economics by John D. Graham.
In this Article, Dean Graham examines the recent history of federal lifesaving regulation and argues that, considering both philosophical and practical perspectives, lifesaving regulation informed by benefit-cost analysis (BCA) has compelling advantages relative to regulation informed by the main alternatives to BCA. Using his first-hand experience as the Administrator of the Office of Information and Regulatory Affairs (OIRA), Graham suggests that, despite its reputation for antiregulatory bias, BCA is actually an influential tool for protecting or advancing valuable lifesaving regulations. But the Article also pinpoints problems in the “benefit-cost” state, and identifies opportunities for improvement in the process of lifesaving regulation. Graham concludes by suggesting that innovations in analytic practice that would strengthen the efficiency and fairness of federal lifesaving regulation.
Professor Elliott, in his Response, Only a Poor Workman Blames his Tools: On the Uses and Abuses of Benefit-Cost Analysis in Regulatory Decision Making About the Environment, faults Graham’s argument for falling into “the two conceptual traps that it inherits from the critics: both the ‘fine tuning’ and the ‘selective realism’ fallacies.”
If these two fallacies were better understood and avoided, Elliott argues that “BCA can be a very useful, albeit imperfect, technique for comparing policies.”
>Read the full response by E. Donald Elliott
Professor Hsu, in his Response, Saving Lives Through Administrative Law and Economics: A Response, takes issue with Graham’s support for the “soft” BCA rule. Instead, he comes to the defense of using BCA as a “procedural” rule, “in which a [BCA] is required of agency actions but is provided for informational purposes only and not intended to be determinative in any way.” Hsu also looks into the potential for the growing field of happiness research to better inform BCA, helping to ensure that BCA best fulfills its informational role.
>Read the full response by Shi-Ling Hsu
Professor Hammitt, in his Response, Saving Lives: Benefit-Cost Analysis and Distribution, focuses on Graham’s support for using BCA as a “soft” rule, which would allow for considerations of equity along with the more common utilitarian measurements. After exploring the issues of measurement inherent in BCA, Hammitt concludes that BCA helps ease some tensions in regulatory decision making by “providing an integrated framework to account for the consequences of regulation and making estimates of the magnitudes of these consequences explicit and open to review and challenge.” And, by incorporating equity concerns, Hammitt believes that Graham’s test ultimately “should make BCA even more valuable.”
>Read the full response by James K. Hammitt
March 10, 2009 at 10:02 am
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University of Pennsylvania Law Review, Issue 157:2 (December 2008)
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University of Pennsylvania Law Review, Issue 157:2 (December 2008)
ARTICLES
Immigration Law’s Organizing Principles
Adam B. Cox
Saving Lives Through Administrative Law And Economics
John D. Graham
Laboratories Of Destitution: Democratic Experimentalism And The Failure Of Antipoverty Law
David A. Super
COMMENTS
Christopher DiPompeo
Paige S. Goodwin
March 2, 2009 at 1:02 pm
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February Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review.
February 2, 2009 at 3:00 pm
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December Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review and a debate.
November 30, 2008 at 11:33 pm
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November Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review and a debate.
November 5, 2008 at 5:05 pm
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April Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to two articles from the print edition of the Law Review.
John Gardner and R.A. Duff both respond to Michael S. Moore’s Causing, Aiding, and the Superfluity of Accomplice Liability. In his article, Professor Moore rejects the notion that a separate desert basis must be created for accomplice liability, by focusing on the actus reus of accomplice liability and asking “what does one have to do in order to be an accomplice to someone else’s crime?”
Professor Gardner, in his Response, Moore on Complicity and Causality, notes that, though he and Professor Moore agree “that causal wrongs exist,” they “part company [when they] turn to the question of which moral and legal wrongs are causal wrongs.” Gardner argues that “the wrongs of accomplices are all causal wrongs,” in that “aiding, abetting, and counseling are all straightforward ways of making a causal contribution to the wrongs that are aided, abetted, or counseled.” Gardner argues for a view of accomplice liability that incorporates “causal pluralism,” or that “causing something is not the only way of making a causal contribution” to an outcome. Human agency, Gardner asserts, involves a causal complexity that is “not visible to the experimental sciences,” and that this difference “explains both the significance and the importance of causal contributions that are distinguished, causally distinguished, with respect to their directedness and indirectedness.” He concludes that “the types of causal contributions made by accomplices to and through the acts of their principals vary” in ways that Moore’s account fails to provide for.
Professor Duff, in his Response, Is Accomplice Liability Superfluous?, explores the “third and fourth desert bases Moore identifies” and argues “that there is still some room for a distinctive doctrine of complicity and thus for accomplice liability as a distinctive type of liability.” Duff focuses on the mens rea of accomplice liability, specifically that of intentionality and foresight, and ultimately claims “that, even if all that Moore says about the actus reus is right, it does not warrant his conclusion” that there is no unique desert basis for accomplice liability.
Responding to Barak D. Richman’s Antitrust and Nonprofit Hospital Mergers: A Return to Basics, James F. Blumstein examines Professor Richman’s account under the two different “ways of thinking about the product and the industry – the traditional professional/scientific and the market-oriented model.” Professor Blumstein, in his Response, Antitrust Enforcement in the Health Care Industry: A Battleground of Competing Paradigms, describes the history of the struggle between these two paradigms, in the industry and in the courts, and how the “[a]pplication of the antitrust laws to the greater healthcare marketplace has . . . contributed toward a greater emphasis on the market-oriented paradigm,” leading to “push back in antitrust doctrine . . . in the context of judicial hostility to applying traditional antitrust orthodoxy to some components of health care.” Recognizing that the health care industry developed according to the professional/scientific model, Blumstein emphasizes Richman’s assertion that antitrust doctrine can play a “constructive role” in the context of hospital mergers, by “build[ing] accountability into an economic sector that has inadequate accountability mechanisms.” Blumstein concludes that “[a]ntitrust doctrine does not necessarily stand in the way of nonprofit hospitals that seek to merge, but it imposes an analytical metric that focuses on competition and efficiency.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
April 28, 2008 at 4:46 pm
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March Responses
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Susan A. Bandes, Peter H. Huang, and Michael Stocker each respond to Dan M. Kahan’s Two Conceptions of Emotion in Risk Regulation, 156 U. Pa. L. Rev. 741 (2008). In his article, Professor Kahan mainly examines two competing theories of risk perception, the “irrational weigher” theory and the “cultural evaluator theory.” Kahan prefers the latter theory, which suggests, in part, that “individuals are cognitively motivated to reject information about risk when they perceive that accepting it would threaten their defining group commitments.” He argues that “[t]o avoid this reaction . . . information about risks must be framed in a way that affirms rather than denigrates recipients’ cultural identities . . . .”
March 27, 2008 at 6:43 pm
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Response: Setting the Bar Too High
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Frank I. Michelman responds to Youngjae Lee’s International Consensus as Persuasive Authority in the Eighth Amendment, 156 U. Pa. L. Rev. 63 (2007).
Professor Michelman, in his Response, Setting the Bar Too High, critically examines Professor Lee’s attempt to establish “the negligible epistemic value . . . [of a] unanimous world-wide rejection of the death penalty for juveniles.” Professor Michelman supports Justice Kennedy’s reference in Roper v. Simmons to an international consensus against capital punishment for juveniles because while he admits that many countries “are surely not relevantly like-minded with us . . . some of them surely are.” Professor Michelman is confident that “the probability is strong that the number of the world’s relevantly like-minded societies . . . is large enough to sustain the instructiveness for us of the external world’s unanimous rejection of the juvenile death penalty.” Moreover, he argues that “however true it . . . is that any randomly selected country in the worldwide bunch ‘may’ think vastly differently than we do about the severity of death, . . . not a single one of them dissents from the flat rejection of death as a fitting punishment for juveniles.” Consequently, he concludes that “[t]he presumption of epistemic value in the face of worldwide unanimity holds.”
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March 7, 2008 at 5:02 pm
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Response: Law and the Market: The Impact of Enforcement
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Howell E. Jackson responds to John C. Coffee, Jr.’s Law and the Market: The Impact of Enforcement, 156 U. Pa. L. Rev. 229 (2007).
Professor Jackson, in his Response, The Impact of Enforcement: A Reflection, seeks to tease out the “not inconsiderable challenges” scholars might face in attempting to confirm or rebut Professor Coffee’s core argument—“that higher levels of enforcement in the United States provide a genuine benefit to U.S. financial markets.” For example, Professor Jackson points out that when comparing regulatory efforts at the international level, it is difficult to know the extent to which “resources allocated to regulatory agencies . . . [may] serv[e] as sinecures for cronies of political elites or positions from which to extract bribes.” After considering a number of other problems that complicate the comparison process, Professor Jackson suggest two alternative approaches that might help overcome the complexities he identifies: 1) “focus on technical measures of financial performance;” and 2) “examin[e] the behavior of market participants.”
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March 6, 2008 at 8:10 am
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January Responses
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Elizabeth M. Glazer provides a fourth response (following in the wake of Professors Fennell, Garnett, and Underkuffler) to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007).
Professor Glazer, in her Response, Rule by (Out)Law: Property’s Contingent Right to Exclude, attempts to explain why Peñalver and Katyal’s “property outlaws” so successfully violate property owners’ exclusion rights when the right to exclude is seen “as property law’s most important or defining right.” Professor Glazer concludes that “the outlaw tells us[] that an owner cannot invoke [the right to exclude] if she wishes to invoke it in isolation. . . .” She believes that the right to exclude is only absolute “so long as its exercise is coupled with the exercise of another right in the property bundle.”
Shyamkrishna Balganesh responds to Sara K. Stadler’s Copyright as Trade Regulation, 155 U. Pa. L. Rev. 899 (2007).
Balganesh examines Professor Stadler’s argument that “the copyright grant be reformulated to consist of no more than an exclusive right to distribute works publicly.” He agrees that “copyright law ought to be visualized as a doctrine of unfair competition,” but offers an alternative conception of “implementing this ideal.” Balganesh writes, “Since copyright is about generating incentives for creation, we might want to connect [a competitive] nexus requirement to copyright’s instrumental purpose through a test of foreseeability. Given that liability for infringement is premised on a showing of copying, such a test would place the burden on the plaintiff to show that the defendant’s copying was in a market and of a form reasonably foreseeable when the work was created.”
As always, please click on the PENNumbra link to read previous
Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
January 30, 2008 at 11:22 pm
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Baze-d and Confused: What’s the Deal with Lethal Injection?
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The Supreme Court recently heard oral arguments in the case of Baze v. Rees, which asks the Justices to examine the constitutionality of Kentucky’s lethal injection methodology. In this latest PENNumbra Debate Professors Alison J. Nathan, of Fordham University, and Douglas A. Berman, of The Ohio State University, tease out the legal, political, and practical issues that the Court faces as it addresses Baze.
In her Opening, Professor Nathan critiques the irrationality of the three-formula lethal injection procedure used by Kentucky and many other states. Professor Nathan writes that “lethal injection as pervasively practiced in the United States today is the result of a historical accident, not scientifically informed deliberation.” She contends that the sort of democratic reform that has been the catalyst for legislative changes in execution procedures in the past has been stymied by “lethal injection’s peculiar history, attendant secrecy, and protocol involving the use of [a] pain-masking paralytic drug.” She concludes by arguing that “[i]n this context of non-transparency, it is distinctly the role and responsibility of the judiciary, led by the Supreme Court, to scrutinize the practice of lethal injection and its history.”
Professor Berman agrees that “the development and administration of lethal injection protocols have been haphazard and sloppy.” However, his concern is principally focused on why the lack of a democratic reform movement has failed to raise the consciousness of the nation. He contends that “three critical practical and political realities” explain the absence of a national backlash: in sum, 1) no human-administered death penalty system can be perfect; 2) few Americans care to make a perfect system; and 3) most Americans are “blissfully ignorant” of any such “imperfections.” Through his “realpolitik” lenses, Professor Berman remains skeptical that the Justices will be able to rise above “the broader practical and political realities that surround the modern administration of capital punishment [and help] ensure that the machinations of death . . . persist.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
January 26, 2008 at 5:32 pm
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University of Pennsylvania Law Review, Volume 156 Number 2
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| ARTICLES | |
| Law and the Market: The Impact of Enforcement |
John C. Coffee, Jr. |
| Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities |
Christopher S. Elmendorf |
| Causing, Aiding, and the Superfluity of Accomplice Liability |
Michael S. Moore |
| COMMENTS | |
| Appended Post-Passage Senate Judiciary Committee Report: Unlikely “Legislative History” for Interpreting Section 5 of the Reauthorized Voting Rights Act |
Erica Lai |
| The Constitutionality of Federal Restrictions on the Indemnification of Attorneys’ Fees |
Nishchay Maskay |
January 15, 2008 at 11:49 pm
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Responses to Property Outlaws
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Lee Anne Fennell, Nicole Stelle Garnett, and Laura S. Underkuffler each respond to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007). In their article, Professors Peñalver and Katyal argue that the violation of property laws (by actors they call “property outlaws”) can enhance the social order. In their view, “the apparent stability and order that property law provides owe much to the destabilizing role of the lawbreaker, who occasionally forces shifts of entitlements and laws.”
Professor Fennell, in her Response, Order with Outlaws?, notes that “most property violations destabilize the social order without producing any significant offsetting benefits.” She argues that in order to maximize the “informational signal that [a property] violation sends,” liability rules, injunctive relief, and supercompensatory penalties can help to “harness the information generated by lawbreakers.”
Professor Garnett, in her Response, Property In-Laws, is skeptical of Peñalver and Katyal’s claim that property outlaws provide beneficial and necessary “shocks” to a system that “has a . . . tendency to become ossified and out of date.” Instead, her intuition is that “outlaws usually respond to instability in a property regime, not the ossified hyper-stability that Peñalver and Katyal fear.” Thus, she suspects that “the evolutionary sequence [of property law] generally proceeds from instability to stability, not from bad stability to instability to good stability as [Peñalver and Katyal] suggest.”
Finally, Professor Underkuffler, in her Response, Lessons from Outlaws, agrees with Peñalver and Katyal that, in a system which disfavors property violations, it is critical to “distinguish positive or desirable property lawbreaking from that which is not.” However, Professor Underkuffler does not believe that relying on efficiency and rectification analyses always provides the correct answer. She wonders whether the true reason for our tolerance of property outlaws is “because the lawbreakers are the losers under the existing regime of property and entitlements, while the targeted owners are winners under the same regime.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
January 7, 2008 at 1:50 pm
Posted in: Law Rev (Penn), Law Rev Forum
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