In his essay Original Citizenship, Josh Blackman asks what the Constitution means when it refers to “citizen[s] of the United States.” Acknowledging the lack of guidance on the topic, Blackman looks to contemporary notions of citizenship, including the theories of birthright citizenship and “citizenship by election,” for help. In concluding that one could only become a citizen of the United States as of the Declaration of Independence, Blackman tracks early case law at critical points in the nation’s early history. He looks to treason cases, contested elections, and interpretations of Jay’s Treaty to determine that the only logical starting point for “original” citizenship must be the Declaration. Blackman’s piece is a much-needed contribution to a sparse area of [...]]]>

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In his essay Original Citizenship, Josh Blackman asks what the Constitution means when it refers to “citizen[s] of the United States.” Acknowledging the lack of guidance on the topic, Blackman looks to contemporary notions of citizenship, including the theories of birthright citizenship and “citizenship by election,” for help. In concluding that one could only become a citizen of the United States as of the Declaration of Independence, Blackman tracks early case law at critical points in the nation’s early history. He looks to treason cases, contested elections, and interpretations of Jay’s Treaty to determine that the only logical starting point for “original” citizenship must be the Declaration. Blackman’s piece is a much-needed contribution to a sparse area of scholarship and helps to lay the groundwork for future work on the implications of his findings.

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

In The Future of the U.S. Commission on Civil Rights, Professors Lisa Crooms and Dawinder Sidhu discuss the potential for expanding the mandate of the Commission. Professor Crooms opens by noting that suggestions to expand the Commission’s mandate to include human rights have been around for decades, and argues that such ideas are still worth adopting. She comments that the Commission would have to engage in extensive fact-finding in order to justify such an expansion. Professor Crooms raises further concerns over manipulation of the appointment process for commissioners, but that such manipulation has not necessarily jeopardized the Commission’s role. Indeed, she concludes that an expansion of the mandate to include human rights would aid the United States in [...]]]>

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In The Future of the U.S. Commission on Civil Rights, Professors Lisa Crooms and Dawinder Sidhu discuss the potential for expanding the mandate of the Commission. Professor Crooms opens by noting that suggestions to expand the Commission’s mandate to include human rights have been around for decades, and argues that such ideas are still worth adopting. She comments that the Commission would have to engage in extensive fact-finding in order to justify such an expansion. Professor Crooms raises further concerns over manipulation of the appointment process for commissioners, but that such manipulation has not necessarily jeopardized the Commission’s role. Indeed, she concludes that an expansion of the mandate to include human rights would aid the United States in meeting its treaty obligations and discourage the Commission from ignoring its vital role in responding to important equality issues, including those already within its core mandate.

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

Professors Lawrence Mitchell and Steven Kaplan respond to Lucian Bebchuk and Jesse Fried’s Article Paying for Long-Term Performance, which appeared in the Law Review earlier in 2010. In The Partner-Manager, Professor Mitchell (The George Washington University School of Law) praises their suggested executive compensation reforms and seeks to place those reforms in the larger context of the evolution of corporate management. He argues that excessive compensation is a recent phenomenon, and, as such, arguments that view it as “inevitable” must be viewed skeptically. He argues that the rise of the independent monitoring board of directors has created informational asymmetries and a power vacuum between the board and management, resulting in the rise of the “partner-manager” [...]]]>

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Professors Lawrence Mitchell and Steven Kaplan respond to Lucian Bebchuk and Jesse Fried’s Article Paying for Long-Term Performance, which appeared in the Law Review earlier in 2010. In The Partner-Manager, Professor Mitchell (The George Washington University School of Law) praises their suggested executive compensation reforms and seeks to place those reforms in the larger context of the evolution of corporate management. He argues that excessive compensation is a recent phenomenon, and, as such, arguments that view it as “inevitable” must be viewed skeptically. He argues that the rise of the independent monitoring board of directors has created informational asymmetries and a power vacuum between the board and management, resulting in the rise of the “partner-manager” whose significant equity stake created the agency problems we see today. While Mitchell accepts that the Bebchuk-Fried reforms will help temper those incentives, he wonders whether they go to the heart of the problem, which he sees as corporate governance.

In Weak Solutions to an Illusory Problem, Professor Steven Kaplan (University of Chicago Booth School of Business) argues that the Bebchuk-Fried analysis is fundamentally flawed because it rests on incorrect assumptions about executive compensation. Kaplan points to empirical work by himself and others that suggests there may be no compensation problem at all. The studies he points to show that compensation tends to rise and fall with the market and that managers are, in fact, rewarded for good performance and punished for poor performance. Kaplan argues that, if anything, the Bebchuk-Fried proposals will add only marginal protections at a high cost: he suggests that their reforms will discourage top talent from serving as executives because it will become significantly riskier to serve at public companies, particularly when lucrative alternatives are available with private-equity-funded firms.

As always, please visit PENNumbra to read previous Essays, Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

In The Right to Remain Silent, Professors Charles Weisselberg and Stephanos Bibas debate the state of the right to remain silent after the Supreme Court’s decision in Berghuis v. Thompkins, which held that a suspect in custody must affirmatively state her intent to remain silent in order to invoke that right. Professor Weisselberg (University of California, Berkeley School of Law) recounts the interrogation of Mr. Thompkins and argues that the majority in Thompkins rejected the fundamental underpinnings of Miranda’s prophylactic rule and established a new one that fails to protect the rights of suspects. Professor Bibas (University of Pennsylvania Law School) argues that the Court’s holding reflects a proper rejection of Miranda’s “failed experiment,” which ignored [...]]]>

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In The Right to Remain Silent, Professors Charles Weisselberg and Stephanos Bibas debate the state of the right to remain silent after the Supreme Court’s decision in Berghuis v. Thompkins, which held that a suspect in custody must affirmatively state her intent to remain silent in order to invoke that right. Professor Weisselberg (University of California, Berkeley School of Law) recounts the interrogation of Mr. Thompkins and argues that the majority in Thompkins rejected the fundamental underpinnings of Miranda’s prophylactic rule and established a new one that fails to protect the rights of suspects. Professor Bibas (University of Pennsylvania Law School) argues that the Court’s holding reflects a proper rejection of Miranda’s “failed experiment,” which ignored the Fifth Amendment’s compulsion requirement and did not establish adequate safeguards for the innocent suspects who need them. He posits that the tougher question is how to reform the system so that it does protect those parties, and he further suggests that videotaping all interrogations would go a long way toward ensuring confessions that are free from compulsion.

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

In PENNumbra’s debate on same-sex marriage, Professors Nelson Tebbe and Deborah Widiss revisit their argument that equal access, and not equal protection or substantive due process, is the legal theory most likely to lead to a successful recognition of a constitutional right to same-sex marriage. Professor Shannon Gilreath steps back from the current controversy to assess whether same-sex marriage is desirable at all, suggesting that problems inherent in the institution itself, as well as the risks same-sex marriages pose to gay and lesbian cultural identities, should prompt its proponents to reconsider marriage’s prominent place in the ongoing push for equality.

Read the full Debate here: http://pennumbra.com/debates/debate.php?did=37

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out [...]]]>

The Argument for Same-Sex Marriage

In PENNumbra’s debate on same-sex marriage, Professors Nelson Tebbe and Deborah Widiss revisit their argument that equal access, and not equal protection or substantive due process, is the legal theory most likely to lead to a successful recognition of a constitutional right to same-sex marriage. Professor Shannon Gilreath steps back from the current controversy to assess whether same-sex marriage is desirable at all, suggesting that problems inherent in the institution itself, as well as the risks same-sex marriages pose to gay and lesbian cultural identities, should prompt its proponents to reconsider marriage’s prominent place in the ongoing push for equality.

Read the full Debate here: http://pennumbra.com/debates/debate.php?did=37

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

One of the main purported benefits of uniform codes is that states adopting them have access to a pre-existing body of law to aid in their interpretation (i.e., the judicial opinions of sister states). In A Failure of Uniform Laws?, Professor Michael Risch tests the viability of this assumption through an empirical analysis of West Virginia, which along with forty-six other states, has adopted the Uniform Trade Secrets Act. Risch finds that West Virginia courts interpreting the UTSA do not rely on sister-state courts, but instead on common-law and treatise-based interpretations. Risch’s Essay is a preliminary exploration of whether the UTSA is providing the uniformity touted by its proponents, to be followed by a more comprehensive geographical study.

Read [...]]]>

A Failure of Uniform Laws?

One of the main purported benefits of uniform codes is that states adopting them have access to a pre-existing body of law to aid in their interpretation (i.e., the judicial opinions of sister states). In A Failure of Uniform Laws?, Professor Michael Risch tests the viability of this assumption through an empirical analysis of West Virginia, which along with forty-six other states, has adopted the Uniform Trade Secrets Act. Risch finds that West Virginia courts interpreting the UTSA do not rely on sister-state courts, but instead on common-law and treatise-based interpretations. Risch’s Essay is a preliminary exploration of whether the UTSA is providing the uniformity touted by its proponents, to be followed by a more comprehensive geographical study.

Read the full Essay here: http://pennumbra.com/essays/essay.php?eid=1

As always, please visit PENNumbra to read published Essays, Responses, and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of—and thanks to—the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable. The Senate Rules Committee plans to address the issue of filibuster reform shortly.

In Is the Filibuster Constitutional?, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the cloture rules represent an unconstitutional principle of entrenchment and highlights the absurdity [...]]]>

Is the Filibuster Constitutional?

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of—and thanks to—the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable. The Senate Rules Committee plans to address the issue of filibuster reform shortly.

In Is the Filibuster Constitutional?, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the cloture rules represent an unconstitutional principle of entrenchment and highlights the absurdity by analogizing to a hypothetical rule requiring a supermajority to unseat an incumbent senator, which would surely not be tolerated. Chafetz concludes that historical practice fails to justify obstructionist tactics and that any constitutionally conscientious senator has a duty to reject the filibuster as it currently operates.

Professor Gerhardt attributes the Senate’s behavior to the lack of a majority committed to curtailing abuses of Senate procedure. He argues that the weaknesses of the traditional arguments against the filibuster underscore the filibuster’s inherent constitutionality. Gerhardt points out that a majority of Senate seats is never subject to election at the same time and that the Constitution does not forbid, but instead expressly permits, the Senate to draft internal procedures. Failing to find an anti-entrenchment principle implied in the constitutional scheme, Gerhardt groups the filibuster with other Senate traditions—such as holds and bitter partisanship—and finds that the solution to unsatisfactory behavior in the legislature is, and always has been, accountability at the ballot box.

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.

This issue contains responses to The Inexorable Radicalization of Textualism by Jonathan R. Siegel.

In The Inexorable Radicalization of Textualism, Professor Jonathan Siegel argues that textualism differs fundamentally from intentionalism and purposivism, and that the gap between them gets wider with time. Siegel concludes that textualism inexorably radicalizes itself as textualists gradually realize that their axiom—the statutory text is the law—compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together. As a result, Siegel finds that textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.

In Opportunistic Textualism, Professor Lawrence Solan argues that while Professor Siegel expresses reasonable concern about the [...]]]>

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This issue contains responses to The Inexorable Radicalization of Textualism by Jonathan R. Siegel.

In The Inexorable Radicalization of Textualism, Professor Jonathan Siegel argues that textualism differs fundamentally from intentionalism and purposivism, and that the gap between them gets wider with time. Siegel concludes that textualism inexorably radicalizes itself as textualists gradually realize that their axiom—the statutory text is the law—compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together. As a result, Siegel finds that textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.

In Opportunistic Textualism, Professor Lawrence Solan argues that while Professor Siegel expresses reasonable concern about the consequences of carrying textualism to its logical extreme, “it is virtually impossible to be a textualist on the ground.” Because judges are inclined to relax their embrace of formalism in favor of other values, the extreme results that Siegel fears cannot be consistently realized. Solan looks to the example of radical textualism that Siegel offers: a rigid dissent by Judge Bybee from a Ninth Circuit decision correcting a clear statutory drafting error. Solan points out that Judge Bybee has been willing to look to legislative history, intent, and statutory purpose in a variety of other areas, and that even the staunchest textualists speak of legislative intent when resolving ambiguous statutes. Solan closes by acknowledging that formalism, like other canons of construction, has been used opportunistically to reach results driven primarily by ideology. Though he shares Professor Siegel’s concerns about some of the cases discussed in The Inexorable Radicalization of Textualism, he concludes that those results do not represent a radical or inevitable movement toward “law without mind.”

In Is Textualism Doomed?, Professor Ilya Somin counters Professor Siegel’s argument that textualism is ultimately doomed to irrelevance because its “inexorable radicalization . . . will cause it to lose the interpretation wars.” Somin contends that Siegel’s normative critique of textualism and positive prediction about its future are overdrawn. In Part I, Professor Somin shows that adherence to text does not inevitably lead to absurd and extreme results. In Part II, Somin claims that Siegel has understated the importance of textual ambiguity. He argues that when faced with an ambiguous text, resorting to extrinsic evidence of meaning is entirely consistent with textualist premises and may sometimes even be required by them. In Part III, Somin finds that textualism is here to stay, and will not “work itself pure” as Siegel has argued. Somin concludes by reasoning that because federal judges are not as interested in “grand theories of interpretation” and methodological consistency as academics are, they will not take textualism to its logical extreme.

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.

This issue contains responses to The River Runs Dry:  When Title VI Trumps State Anti–Affirmative Action Laws by Kimberly West-Faulcon.

In The River Runs Dry:  When Title VI Trumps State Anti–Affirmative Action Laws, Professor Kimberly West-Faulcon considers whether universities that completely abolish affirmative action to comply with state anti–affirmative action initiatives may actually be breaking the law with respect to Title VI. Using statistical tests for identifying Title VI disparate impact, she analyzes selective California and Washington public university admissions cycles after the enactment of anti–affirmative action laws and finds racial disparities in admissions to affirmative action–less universities of sufficient magnitude that, if unjustified, could [...]]]>

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This issue contains responses to The River Runs Dry:  When Title VI Trumps State Anti–Affirmative Action Laws by Kimberly West-Faulcon.

In The River Runs Dry:  When Title VI Trumps State Anti–Affirmative Action Laws, Professor Kimberly West-Faulcon considers whether universities that completely abolish affirmative action to comply with state anti–affirmative action initiatives may actually be breaking the law with respect to Title VI. Using statistical tests for identifying Title VI disparate impact, she analyzes selective California and Washington public university admissions cycles after the enactment of anti–affirmative action laws and finds racial disparities in admissions to affirmative action–less universities of sufficient magnitude that, if unjustified, could establish that an institution has a compelling interest in considering race to comply with federal antidiscrimination law. Based on this analysis, she concludes that state anti–affirmative action laws may permit the consideration of race if undertaken to remedy federal “racial effect discrimination.”

In Do We Care Enough About Racial Inequality? Reflections on The River Runs Dry, Professor Guy-Uriel Charles asserts that while West-Faulcon has provided an apt legal tool to address racial inequality in education, the problem is not a lack of legal tools but the failure of the legal system to recognize the dignity of people of color in constitutional analysis. Charles argues that legal academics need to make not just legal arguments but a renewed case why we ought to care about racial inequality.

In Doctrinal Dilemma, Professor Girardeau Spann describes West-Faulcon’s argument as both analytically sound and enticingly clever but demonstrates that doctrinal arguments can likewise be developed by socially powerful opponents that are cogent enough to evade West-Faulcon’s conclusions. Consequently, Spann argues that legal scholars seeking to promote racial justice confront a serious dilemma: continue to make doctrinal arguments and reinforce the legitimacy of a social system that uses law as a tool for the continued oppression of racial minorities; or stop participating and risk losing those sporadic concession that even an oppressive social system must occasionally make to prevent bottled-up frustrations from ripening into serious threats of destabilizing change.

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.

Health care reform has been and continues to be one of the highest priorities in the Obama Administration’s domestic agenda. The proposals for reform played a major role in the debates leading up to President Obama’s election and dominate the Administration’s, and Congress’s, current domestic activities. While most policymakers seemingly agree that reform is necessary, there is much disagreement about the particulars of the appropriate reform. One of the more contested features is the so-called individual mandate—a federal requirement that every American possess a certain level of health insurance.

In A Healthy Debate, David Rivkin and Lee Casey debate Professor Jack Balkin over the constitutionality of such a mandate. In their Opening Statement, Rivkin and Casey argue that [...]]]>

A Healthy Debate: The Constitutionality of an Individual Mandate

Health care reform has been and continues to be one of the highest priorities in the Obama Administration’s domestic agenda. The proposals for reform played a major role in the debates leading up to President Obama’s election and dominate the Administration’s, and Congress’s, current domestic activities. While most policymakers seemingly agree that reform is necessary, there is much disagreement about the particulars of the appropriate reform. One of the more contested features is the so-called individual mandate—a federal requirement that every American possess a certain level of health insurance.

In A Healthy Debate, David Rivkin and Lee Casey debate Professor Jack Balkin over the constitutionality of such a mandate. In their Opening Statement, Rivkin and Casey argue that if Congress has the power to reform the health care system, it must be found in the Commerce Clause. After examining the limitations that the Court has set out in its modern Commerce Clause jurisprudence, Rivkin and Casey conclude that the mandate is even less defensible that the laws struck down in United States v. Morrison or United States v. Lopez. And it is no answer to claim that the power to implement the mandate can be found in the Taxing and Spending Clause. Even under that clause, Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

Check back weekly as the debate unfolds. 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.

This issue contains responses to Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects by Pauline T. Kim.

In Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, Professor Pauline Kim reports an empirical test of two competing explanations of panel effects—one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit judges. The latter explanation posits that court of appeals judges act strategically in light of the expected actions of others and that, therefore, panel effects should depend upon how the preferences of the Supreme Court or the circuit en banc are aligned relative to those of [...]]]>

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This issue contains responses to Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects by Pauline T. Kim.

In Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects, Professor Pauline Kim reports an empirical test of two competing explanations of panel effects—one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit judges. The latter explanation posits that court of appeals judges act strategically in light of the expected actions of others and that, therefore, panel effects should depend upon how the preferences of the Supreme Court or the circuit en banc are aligned relative to those of the panel members. Analyzing votes in Title VII sex discrimination cases, she finds no support for the theory that panel effects are caused by strategic behavior aimed at inducing or avoiding Supreme Court review. On the other hand, the findings strongly suggest that panel effects are influenced by circuit preferences. Both minority and majority judges on ideologically mixed panels differ in their voting behavior depending upon how the preferences of the circuit as a whole are aligned relative to the panel members. This study provides evidence that panel effects do not result from a dynamic wholly internal to the three judges hearing a case, but are influenced by the environment in the circuit as a whole as well.

In Panel Effects, Whistleblowing Theory, and the Role of Legal Doctrine, Derek Linkous and Professor Emerson Tiller argue that Kim erroneously rejects the Whistleblowing Theory (WT) of circuit panel decisionmaking—a theory emphasizing the role of legal doctrine in constraining ideological decisionmaking by a panel majority. In their response, Linkous and Tiller show how ignoring the strategic and deliberative roles of legal doctrine call into question the explanatory power of Kim’s strategic alignment hypothesis. After laying out the basic premises of WT and explaining WT’s application to both strategic and deliberative models of panel effects, Linkous and Tiller correct two assumptions that lead Kim to reject WT. From there, they address how doctrinal disobedience can be measured empirically by scholars when a legal doctrine (such as a standard) does not command particular outcomes in every case—a concern that led Kim to reject empirical work on WT. While Linkous and Tiller recognize that developing a coding scheme for doctrine is hard work, they argue that failing to even try prevents Kim from addressing a key piece of the panel effects puzzle—the role of legal doctrine.

In Psychology, Strategy, and Behavioral Equivalence, Professor Stefanie Lindquist and Dr. Wendy Martinek recognize that Kim has created an innovative empirical model to test for circuit and Supreme Court effects on panel decisionmaking at the United States Courts of Appeals. They recommend caution, however, in interpreting these results as evidence of strategic behavior since alternative explanations—including the effects of deliberation and circuit court precedent—could also account for the findings presented. Indeed, there is no basis for favoring a strategic theory over a deliberative one. Behavioral equivalence is, unfortunately, often a confounding problem in studies of strategic decision making on appellate courts. Lindquist and Martinek maintain their belief from earlier studies that while strategic behavior may take place on some courts, under some conditions, the strongest influence on federal appellate courts are from judges seeking consensus to promote the efficient administration of justice and to minimize error.

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.

In [...]]]>

Unconstitutionally Excessive Statutory Damage Awards in Copyright Cases

Check back weekly as the debate unfolds.

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.

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 [...]]]>

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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.

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 [...]]]>

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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.”

>Read Full Response

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.

>Read Full Response

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.

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 [...]]]>

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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.”

>Read the full response by Josh Bowers

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.

>Read the full response by Nelson Tebbe

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.

>Read the full response by Adam B. Cox

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.

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 [...]]]>

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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.

>Read the full response by Peter H. Schuck

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.”

>Read the full response by Clare Huntington

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 [...]]]>

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.”

>Read the full debate

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.

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 [...]]]>

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.

>Read the full debate

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.

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. [...]]]>

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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