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.

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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

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

Federal Hate Crime Laws and United States v. Lopez: On A Collision Course To Clarify Jurisdictional-Element Analysis

Christopher DiPompeo

Mapping The Limits Of Repatriable Cultural Heritage: A Case Study Of Stolen Flemish Art In French Museums

Paige S. Goodwin

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.

Richard Lawless and Ronald Mann respond to Oren Bar-Gill and Elizabeth Warren’s Making Credit Safer, 157 U. PA. L. REV. 1 (2008). Making Credit Safer begins by noting that, while physical products, from toasters to toys, are routinely inspected and regulated for safety, credit products, like mortgage loans and credit cards, are left largely unregulated, even though they can also be unsafe. Because financial products are analyzed through a contract paradigm rather than a products paradigm, consumers have been left with unsafe credit products. Bar-Gill and Warren use the physical-products analogy to build a case, supported by both theory [...]]]>

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.

Richard Lawless and Ronald Mann respond to Oren Bar-Gill and Elizabeth Warren’s Making Credit Safer, 157 U. PA. L. REV. 1 (2008). Making Credit Safer begins by noting that, while physical products, from toasters to toys, are routinely inspected and regulated for safety, credit products, like mortgage loans and credit cards, are left largely unregulated, even though they can also be unsafe. Because financial products are analyzed through a contract paradigm rather than a products paradigm, consumers have been left with unsafe credit products. Bar-Gill and Warren use the physical-products analogy to build a case, supported by both theory and data, for comprehensive safety regulation of consumer credit and propose a fundamental restructuring of this current regulatory regime, urging the creation of a new federal regulator that will have both the authority and the incentives to police the safety of consumer credit products.

Professor Lawless, in his Response, The Limits of Contract as Product, challenges Bar-Gill and Warren’s initial assumption that consumer credit contracts should be viewed as products rather than contracts. While agreeing that some aspects of consumer credit contracts do resemble products, these contracts also contain other elements, and Lawless thus asserts that “[o]nce we shift our attention to these other elements, . . . our classification of these contracts as products explodes.” Additionally, Lawless raises the issue of regulatory capture, maintaining that Bar-Gill and Warren’s suggested new agency could be particularly subject “to interest-group manipulation, as the regulator’s broad discretion would give them cover to justify most any regulatory regime.”

Professor Mann, in his Response, Unsafe at any Price?, questions Bar-Gill and Warren’s “link between the imperfection of consumer credit markets and the policy response of a government agency with a broad and general mandate to eliminate ‘unsafe’ products.” His primary concern is that a broadly powered federal agency may not, “in the long run, effectively advance the interests of consumers.” In order to address the market imperfections described by Bar-Gill and Warren, Mann argues that such an agency would need more than broad power and a vague statutory mandate to avoid the dangers of ineffective response.

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.

Thomas Berg, Richard Garnett, and Steven Smith respond to Nelson Tebbe’s Excluding Religion, 156 U. PA. L. REV. 1263 (2008). In his article, Professor Tebbe analogizes free exercise to other constitutional rights such as speech and privacy and argues that the government may single out religious activities and entities for exclusion from its support programs without offending the Constitution. Though Tebbe explains that this power is consrtained by several limits, he maintains that “the government need not remain neutral toward religion in its support programs,” even if doing so “may skew private incentives toward nonreligious activities and [...]]]>

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.

Thomas Berg, Richard Garnett, and Steven Smith respond to Nelson Tebbe’s Excluding Religion, 156 U. PA. L. REV. 1263 (2008). In his article, Professor Tebbe analogizes free exercise to other constitutional rights such as speech and privacy and argues that the government may single out religious activities and entities for exclusion from its support programs without offending the Constitution. Though Tebbe explains that this power is consrtained by several limits, he maintains that “the government need not remain neutral toward religion in its support programs,” even if doing so “may skew private incentives toward nonreligious activities and messages.” Tebbe concludes by exploring the implications of his argument for how a government ought to be permitted to “influence private choices concerning matters of conscience.”

Professor Berg, in his Response, Religious Choice and Exclusions of Religion, argues that Professor Tebbe’s justifications for his argument fail because religious choice is a central purpose of the Religion Clauses. After rejecting Tebbe’s justifications and criticizing Tebbe’s interpretation of legal precedent, Berg concludes that “Tebbe’s argument for government discretion to exclude religion succeeds only if preserving the religious choice of individuals and groups is not a fundamental First Amendment value.”

While Professor Garnett generally expresses his appreciation of Tebbe’s “thorough and thoughtful examination . . . of important and difficult questions,” his Response, Excluding Religion: A Response, expresses “some doubts and reservations.” First, while he agrees that “governments may and should, sometimes and for some purposes, treat religion in a special or distinctive way,” he questions whether the reasons Tebbe gives for exclusion are actually “Establishment Clause reasons.” Second, Garnett expresses reservations that “Tebbe’s conclusions are not as bracing or radical as one might have expected, or even hoped.” Specifically, Garnett takes issue with the limits that Tebbe would place on this power of exclusion and questions why Tebbe’s analysis “does not carry him further, to a somewhat more ‘muscular’ liberalism.”

Professor Smith, in his Response, Playing Around with Religion’s Constitutional Joints, begins by arguing generally that, when it comes to the Religion Clause, “there just is not much to say . . . that could or should convince anybody who is not independently inclined toward a particular advocate’s point of view.” Tracing at least “three clusters of authorities and arguments” with regard to government support for religion, Smith argues that no side is in a position to be convinced by the arguments of the others. While he finds himself siding with Tebbe’s position, he “can see no reason why anyone not so inclined should be persuaded.”

Finally, in The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, Seth Barrett Tillman and Professor Steven Calabresi debate whether there is a constitutional bar to joint senate-presidential office-holding. Treating the text formalistically, Tillman carefully parses the text of the Constitution’s Incompatibility Clause and other related clauses to reach the conclusion that the presidency is not “an Office under the United States.” However, citing other constitutional provisions and the history of presidential practice, Professor Calabresi counters that Tillman has “made an ingenious argument for an utterly implausible proposition” that “is contrary to the plain meaning of the constitutional text and to the way we have done things for eight hundred years.”

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Stephanos Bibas, George Thomas, and Ronald Wright respond to Josh Bowers’ Punishing the Innocent, 156 U. PA. L. REV. 1117 (2008). In his article, Professor Bowers makes the seemingly counterintuitive argument that the criminal justice system should make it easier for innocent defendants to enter guilty pleas and take advantage of plea bargains. Bowers maintains that, because most criminal defendants are recividivists in low-stakes cases, the arguments for reducing the process costs of taking a case to trial vastly outweigh the concerns of false guilty pleas and wrongful punishment. Thus, the system should view false guilty [...]]]>

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.

Stephanos Bibas, George Thomas, and Ronald Wright respond to Josh Bowers’ Punishing the Innocent, 156 U. PA. L. REV. 1117 (2008). In his article, Professor Bowers makes the seemingly counterintuitive argument that the criminal justice system should make it easier for innocent defendants to enter guilty pleas and take advantage of plea bargains. Bowers maintains that, because most criminal defendants are recividivists in low-stakes cases, the arguments for reducing the process costs of taking a case to trial vastly outweigh the concerns of false guilty pleas and wrongful punishment. Thus, the system should view false guilty pleas as a legal fiction and require defense attorneys to advise and assist innocent defendants who wish to enter a false guilty plea to avoid these process costs.

Professor Bibas, in his Response, Exacerbating Injustice, argues that Professor Bowers’ argument “rests on [the] misguided premise” that “the job of plea rules and defense lawyers is simply to maximize the satisfaction of individual defendants’ preferences.” According to Bibas, false guilty pleas would serve to undermine “the public faith and confidence in the judicial system” and to impede both guilty defendants’ admissions of their own guilt and the healing benefits of closure for victims. Bibas concludes that our criminal justice system must remain morally committed to “exonerating the innocent, however inconsistant we are in pursuing that in practice.”

Professor Thomas, in his Response, Helping Defendants in High-Stakes Cases, deems Professor Bowers’ article “a breath of fresh air.” However, Thomas argues for an even more radical change of our system—where specially-appointed magistrates would “actively engage in a search for truth rather than being mere referees for adversaries.” These “screening magistrates” would screen out cases where defendants “are probably not guilty,” and then act as “plea regulators” for the cases that remain, proposing a charge and sentence that the defendant could either take or move on to a jury trial. Thomas believes that moving away from our current adversarial system in this way would “move us toward a model where protecting innocence is more important than advocacy.”

Professor Wright, in his Response, Guilty Pleas and Submarkets, criticizes Bowers’ focus on just recidivists in low-stakes cases. Instead of viewing “defendants” as one global market, Wright believes it would be better to “to evaluate and regulate the submarkets of criminal justice separately.” Furthermore, Wright notes that there are also submarkets among criminal prosecutors, depending on the organization of prosectuion offices around the country. Wright thus suggests that the solution lies in targeted regulation that is sensitive to these submarkets, and not global change, as “the simple microeconomic model of buyers and sellers in the market for guilty pleas has taken us about as far as it can go”

Finally, in First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government’s Interest, Professors Paul E. McGreal and James J. Alfini explore the permissible limits on judicial campaign speech in light of the Supreme Court’s First Amendment Campaign Speech precedent.. Professor McGreal argues that, as long as a judge’s campaign speech expresses an accepted form of legal analysis, that speech may not be regulated without violating the judicial candidate’s First Amendment rights. Dean Alfini, on the other hand, would require a more stringent regulation of campaign speech and would base such restrictions on the ABA’s formulation that judges may not “make pledges, promises, or commitments” in their campaign that would compromise their impartiality.

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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 [...]]]>

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.”

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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 . . . .”

Professor Bandes, in her [...]]]>

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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 . . . .”

Professor Bandes, in her Response, Emotions, Values, and the Construction of Risk, notes that when dealing with emotions and public policymaking “[t]he challenge is to encourage the helpful emotions, and discourage, educate, or cabin the unhelpful ones.” She argues that “Values and the emotions that animate them should be assessed in light of our democratic aspirations” and concludes that the “process of defining and acting upon our collective values . . . is . . . essential to the working of participatory democracy . . . .”

Professor Huang, in his Response, Diverse Conceptions of Emotions in Risk Regulation, adds to Kahan’s analysis by focusing on the role that positive emotions can play in affecting risk perceptions. He acknowledges that fear is a strong motivating factor in risk perception, but argues that we should not ignore the influence of positive emotions “including courage and pride.” Professor Huang also emphasizes the problem of heterogeneity in the audience and warns that “no single model of emotions in risk perception can accurately describe all roles that all emotions play for all people, in all situations, during all times, facing all risks.”

Finally, Professor Stocker, in his Response, Some Questions About Emotions and Risk Evaluation, examines Kahan’s account of the rational weigher, irrational weigher, and cultural evaluator theories and probes for weakness in each theory’s treatment of emotion and risk evaluation. He observes that the challenge in capturing the relationship between emotion and risk results from the fact that “the social values expressed by . . . emotions are typically available only in outline.” He asks us, in conclusion, to consider just “how difficult it is . . . to give a ‘full and final’ account of what patriotism, love, being a good lawyer, etc., [really] requires . . . .”

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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 [...]]]>

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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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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 [...]]]>

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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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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 [...]]]>

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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.”

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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 [...]]]>

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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.”

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