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University of Pennsylvania Law Review, Issue 157:2 (December 2008)
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University of Pennsylvania Law Review, Issue 157:2 (December 2008)
ARTICLES
Immigration Law’s Organizing Principles
Adam B. Cox
Saving Lives Through Administrative Law And Economics
John D. Graham
Laboratories Of Destitution: Democratic Experimentalism And The Failure Of Antipoverty Law
David A. Super
COMMENTS
Christopher DiPompeo
Paige S. Goodwin
March 2, 2009 at 1:02 pm
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February Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review.
February 2, 2009 at 3:00 pm
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December Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review and a debate.
November 30, 2008 at 11:33 pm
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November Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review and a debate.
November 5, 2008 at 5:05 pm
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April Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to two articles from the print edition of the Law Review.
John Gardner and R.A. Duff both respond to Michael S. Moore’s Causing, Aiding, and the Superfluity of Accomplice Liability. In his article, Professor Moore rejects the notion that a separate desert basis must be created for accomplice liability, by focusing on the actus reus of accomplice liability and asking “what does one have to do in order to be an accomplice to someone else’s crime?”
Professor Gardner, in his Response, Moore on Complicity and Causality, notes that, though he and Professor Moore agree “that causal wrongs exist,” they “part company [when they] turn to the question of which moral and legal wrongs are causal wrongs.” Gardner argues that “the wrongs of accomplices are all causal wrongs,” in that “aiding, abetting, and counseling are all straightforward ways of making a causal contribution to the wrongs that are aided, abetted, or counseled.” Gardner argues for a view of accomplice liability that incorporates “causal pluralism,” or that “causing something is not the only way of making a causal contribution” to an outcome. Human agency, Gardner asserts, involves a causal complexity that is “not visible to the experimental sciences,” and that this difference “explains both the significance and the importance of causal contributions that are distinguished, causally distinguished, with respect to their directedness and indirectedness.” He concludes that “the types of causal contributions made by accomplices to and through the acts of their principals vary” in ways that Moore’s account fails to provide for.
Professor Duff, in his Response, Is Accomplice Liability Superfluous?, explores the “third and fourth desert bases Moore identifies” and argues “that there is still some room for a distinctive doctrine of complicity and thus for accomplice liability as a distinctive type of liability.” Duff focuses on the mens rea of accomplice liability, specifically that of intentionality and foresight, and ultimately claims “that, even if all that Moore says about the actus reus is right, it does not warrant his conclusion” that there is no unique desert basis for accomplice liability.
Responding to Barak D. Richman’s Antitrust and Nonprofit Hospital Mergers: A Return to Basics, James F. Blumstein examines Professor Richman’s account under the two different “ways of thinking about the product and the industry – the traditional professional/scientific and the market-oriented model.” Professor Blumstein, in his Response, Antitrust Enforcement in the Health Care Industry: A Battleground of Competing Paradigms, describes the history of the struggle between these two paradigms, in the industry and in the courts, and how the “[a]pplication of the antitrust laws to the greater healthcare marketplace has . . . contributed toward a greater emphasis on the market-oriented paradigm,” leading to “push back in antitrust doctrine . . . in the context of judicial hostility to applying traditional antitrust orthodoxy to some components of health care.” Recognizing that the health care industry developed according to the professional/scientific model, Blumstein emphasizes Richman’s assertion that antitrust doctrine can play a “constructive role” in the context of hospital mergers, by “build[ing] accountability into an economic sector that has inadequate accountability mechanisms.” Blumstein concludes that “[a]ntitrust doctrine does not necessarily stand in the way of nonprofit hospitals that seek to merge, but it imposes an analytical metric that focuses on competition and efficiency.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
April 28, 2008 at 4:46 pm
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March Responses
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Susan A. Bandes, Peter H. Huang, and Michael Stocker each respond to Dan M. Kahan’s Two Conceptions of Emotion in Risk Regulation, 156 U. Pa. L. Rev. 741 (2008). In his article, Professor Kahan mainly examines two competing theories of risk perception, the “irrational weigher” theory and the “cultural evaluator theory.” Kahan prefers the latter theory, which suggests, in part, that “individuals are cognitively motivated to reject information about risk when they perceive that accepting it would threaten their defining group commitments.” He argues that “[t]o avoid this reaction . . . information about risks must be framed in a way that affirms rather than denigrates recipients’ cultural identities . . . .”
March 27, 2008 at 6:43 pm
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Response: Setting the Bar Too High
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Frank I. Michelman responds to Youngjae Lee’s International Consensus as Persuasive Authority in the Eighth Amendment, 156 U. Pa. L. Rev. 63 (2007).
Professor Michelman, in his Response, Setting the Bar Too High, critically examines Professor Lee’s attempt to establish “the negligible epistemic value . . . [of a] unanimous world-wide rejection of the death penalty for juveniles.” Professor Michelman supports Justice Kennedy’s reference in Roper v. Simmons to an international consensus against capital punishment for juveniles because while he admits that many countries “are surely not relevantly like-minded with us . . . some of them surely are.” Professor Michelman is confident that “the probability is strong that the number of the world’s relevantly like-minded societies . . . is large enough to sustain the instructiveness for us of the external world’s unanimous rejection of the juvenile death penalty.” Moreover, he argues that “however true it . . . is that any randomly selected country in the worldwide bunch ‘may’ think vastly differently than we do about the severity of death, . . . not a single one of them dissents from the flat rejection of death as a fitting punishment for juveniles.” Consequently, he concludes that “[t]he presumption of epistemic value in the face of worldwide unanimity holds.”
As always, please click on the PENNumbra link to read previous
Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
March 7, 2008 at 5:02 pm
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Response: Law and the Market: The Impact of Enforcement
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Howell E. Jackson responds to John C. Coffee, Jr.’s Law and the Market: The Impact of Enforcement, 156 U. Pa. L. Rev. 229 (2007).
Professor Jackson, in his Response, The Impact of Enforcement: A Reflection, seeks to tease out the “not inconsiderable challenges” scholars might face in attempting to confirm or rebut Professor Coffee’s core argument—“that higher levels of enforcement in the United States provide a genuine benefit to U.S. financial markets.” For example, Professor Jackson points out that when comparing regulatory efforts at the international level, it is difficult to know the extent to which “resources allocated to regulatory agencies . . . [may] serv[e] as sinecures for cronies of political elites or positions from which to extract bribes.” After considering a number of other problems that complicate the comparison process, Professor Jackson suggest two alternative approaches that might help overcome the complexities he identifies: 1) “focus on technical measures of financial performance;” and 2) “examin[e] the behavior of market participants.”
As always, please click on the PENNumbra link to read previous
Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
March 6, 2008 at 8:10 am
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January Responses
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Elizabeth M. Glazer provides a fourth response (following in the wake of Professors Fennell, Garnett, and Underkuffler) to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007).
Professor Glazer, in her Response, Rule by (Out)Law: Property’s Contingent Right to Exclude, attempts to explain why Peñalver and Katyal’s “property outlaws” so successfully violate property owners’ exclusion rights when the right to exclude is seen “as property law’s most important or defining right.” Professor Glazer concludes that “the outlaw tells us[] that an owner cannot invoke [the right to exclude] if she wishes to invoke it in isolation. . . .” She believes that the right to exclude is only absolute “so long as its exercise is coupled with the exercise of another right in the property bundle.”
Shyamkrishna Balganesh responds to Sara K. Stadler’s Copyright as Trade Regulation, 155 U. Pa. L. Rev. 899 (2007).
Balganesh examines Professor Stadler’s argument that “the copyright grant be reformulated to consist of no more than an exclusive right to distribute works publicly.” He agrees that “copyright law ought to be visualized as a doctrine of unfair competition,” but offers an alternative conception of “implementing this ideal.” Balganesh writes, “Since copyright is about generating incentives for creation, we might want to connect [a competitive] nexus requirement to copyright’s instrumental purpose through a test of foreseeability. Given that liability for infringement is premised on a showing of copying, such a test would place the burden on the plaintiff to show that the defendant’s copying was in a market and of a form reasonably foreseeable when the work was created.”
As always, please click on the PENNumbra link to read previous
Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
January 30, 2008 at 11:22 pm
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Baze-d and Confused: What’s the Deal with Lethal Injection?
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The Supreme Court recently heard oral arguments in the case of Baze v. Rees, which asks the Justices to examine the constitutionality of Kentucky’s lethal injection methodology. In this latest PENNumbra Debate Professors Alison J. Nathan, of Fordham University, and Douglas A. Berman, of The Ohio State University, tease out the legal, political, and practical issues that the Court faces as it addresses Baze.
In her Opening, Professor Nathan critiques the irrationality of the three-formula lethal injection procedure used by Kentucky and many other states. Professor Nathan writes that “lethal injection as pervasively practiced in the United States today is the result of a historical accident, not scientifically informed deliberation.” She contends that the sort of democratic reform that has been the catalyst for legislative changes in execution procedures in the past has been stymied by “lethal injection’s peculiar history, attendant secrecy, and protocol involving the use of [a] pain-masking paralytic drug.” She concludes by arguing that “[i]n this context of non-transparency, it is distinctly the role and responsibility of the judiciary, led by the Supreme Court, to scrutinize the practice of lethal injection and its history.”
Professor Berman agrees that “the development and administration of lethal injection protocols have been haphazard and sloppy.” However, his concern is principally focused on why the lack of a democratic reform movement has failed to raise the consciousness of the nation. He contends that “three critical practical and political realities” explain the absence of a national backlash: in sum, 1) no human-administered death penalty system can be perfect; 2) few Americans care to make a perfect system; and 3) most Americans are “blissfully ignorant” of any such “imperfections.” Through his “realpolitik” lenses, Professor Berman remains skeptical that the Justices will be able to rise above “the broader practical and political realities that surround the modern administration of capital punishment [and help] ensure that the machinations of death . . . persist.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
January 26, 2008 at 5:32 pm
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University of Pennsylvania Law Review, Volume 156 Number 2
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| ARTICLES | |
| Law and the Market: The Impact of Enforcement |
John C. Coffee, Jr. |
| Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities |
Christopher S. Elmendorf |
| Causing, Aiding, and the Superfluity of Accomplice Liability |
Michael S. Moore |
| COMMENTS | |
| Appended Post-Passage Senate Judiciary Committee Report: Unlikely “Legislative History” for Interpreting Section 5 of the Reauthorized Voting Rights Act |
Erica Lai |
| The Constitutionality of Federal Restrictions on the Indemnification of Attorneys’ Fees |
Nishchay Maskay |
January 15, 2008 at 11:49 pm
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Responses to Property Outlaws
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Lee Anne Fennell, Nicole Stelle Garnett, and Laura S. Underkuffler each respond to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007). In their article, Professors Peñalver and Katyal argue that the violation of property laws (by actors they call “property outlaws”) can enhance the social order. In their view, “the apparent stability and order that property law provides owe much to the destabilizing role of the lawbreaker, who occasionally forces shifts of entitlements and laws.”
Professor Fennell, in her Response, Order with Outlaws?, notes that “most property violations destabilize the social order without producing any significant offsetting benefits.” She argues that in order to maximize the “informational signal that [a property] violation sends,” liability rules, injunctive relief, and supercompensatory penalties can help to “harness the information generated by lawbreakers.”
Professor Garnett, in her Response, Property In-Laws, is skeptical of Peñalver and Katyal’s claim that property outlaws provide beneficial and necessary “shocks” to a system that “has a . . . tendency to become ossified and out of date.” Instead, her intuition is that “outlaws usually respond to instability in a property regime, not the ossified hyper-stability that Peñalver and Katyal fear.” Thus, she suspects that “the evolutionary sequence [of property law] generally proceeds from instability to stability, not from bad stability to instability to good stability as [Peñalver and Katyal] suggest.”
Finally, Professor Underkuffler, in her Response, Lessons from Outlaws, agrees with Peñalver and Katyal that, in a system which disfavors property violations, it is critical to “distinguish positive or desirable property lawbreaking from that which is not.” However, Professor Underkuffler does not believe that relying on efficiency and rectification analyses always provides the correct answer. She wonders whether the true reason for our tolerance of property outlaws is “because the lawbreakers are the losers under the existing regime of property and entitlements, while the targeted owners are winners under the same regime.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
January 7, 2008 at 1:50 pm
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Debate: Collaberative Environmental Law
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Professors Eric W. Orts, of Penn’s Wharton School, and Cary Coglianese, of Penn’s Law School, discuss the benefits and disadvantages of collaborative public policy decision making in the environmental context.
Professor Orts argues that it is time to embrace a different policymaking approach—that of collaborative environmental lawmaking. Professor Orts’s skepticism of the independence of political and other governmental actors in a world in which “lobbyists and campaign financiers . . . play large and often decisive roles in th[e public policymaking] process” leads him to conclude that “in many situations, it makes better sense to trust less in the traditional centralized process of environmental lawmaking and to consider more frequently the alternative of engaging in collaborative environmental law.”
Professor Coglianese responds that collaborative environmental law is “not at all feasible for making real-world decisions about major environmental problems,” and that this policymaking approach “introduces new types of predictable and serious problems.” Professor Coglianese contends that, by making agreement the primary aim of policymaking, collaborative environmental law actually conveys a willingness to give in to interested parties in pursuit of the “holy grail” of consensus. Instead, Professor Coglianese urges that public “engagement should be used with another goal in mind . . . mak[ing] the best possible decision [to] . . . best advance[] the overall public interest.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
January 3, 2008 at 4:03 pm
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University of Pennsylvania Law Review, Volume 156 Number 1
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December 21, 2007 at 2:28 pm
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Responses: Plea bargaining
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PENNumbra‘s featured November responses are now available at www.pennumbra.com.
This month, Frank O. Bowman, III, Michael M. O’Hear, and Daniel Richman each respond to Ronald F. Wright’s article, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79 (2005). In his article, Professor Wright addresses the challenges to the judicial system from the rise of plea bargaining rates in the United States. He argues that reform is best accomplished through a “mid-level” regulatory strategy—what he calls the “trial distortion theory”—that neither condemns nor endorses the plea bargaining process, but asks if pleas are distorting the pattern of outcomes that would result from a “healthy” system in which trials were the norm.
Professor Bowman, in his Response, American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer, picks up on one of Professor Wright’s key findings: “the curious fact that the rate of acquittals in federal criminal cases has declined even faster than the rate of guilty pleas has increased.” Professor Bowman goes on to suggest that “acquittals may be vanishing in part because a once-common courtroom denizen—the true trial lawyer—is becoming an endangered species,” and worries that the system has created “ever-greater disincentives to trying the kind of cases in which acquittal is a live possibility.”
Professor O’Hear, in his response, What’s Good About Trials?, questions whether trial distortion represents a significant problem. Professor O’Hear
believes our main focus should be on “mak[ing] plea bargaining processes look more like trial processes.” According to Professor O’Hear, “The trick is to find ways of injecting the values of voice, neutrality, and respect into the plea bargaining process without robbing plea bargaining of its efficiency advantages over the trial process.”
Finally, Professor Richman, in his Response, Judging Untried Cases, applauds Professor Wright for attempting to determine whether “the inexorable reduction in trials actually reflects an impairment of the federal criminal system’s truth-finding function.” However, he notes that Professor Wright overlooked one important factor in his analysis: the extent to which “the vanishing acquittal rate reflects an increase in the [federal] adoption of well-established ‘local’ cases.” Without more information, Professor Richman concludes, “aggregrate caseload statistics are . . . hard to interpret.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
November 30, 2007 at 9:54 am
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Debate: Voter ID: What’s at Stake?
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PENNumbra‘s featured works of November are now available at www.pennumbra.com.
As Lyle Denniston wrote earlier this fall on SCOTUSblog.com, “[f]ew cases the [Supreme] Court might have agreed to hear w[ill] be likely to have as much real-world political impact as the newly granted case[] of Crawford v. Marion County Election Board . . . , involving an Indiana voting requirement law that is said to be among the most demanding in the nation.” (see Analysis: An Election Issue for an Election Year.) Before the Justices themselves have an opportunity to delve into the case, Professors Bradley A. Smith, of Capital University Law School, and Edward B. Foley, of The Ohio State University, debate the major legal, political, and philosophical
issues behind the controversial matter of voter ID in Voter ID: What’s at Stake?
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
November 27, 2007 at 4:14 pm
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Response: Just Following Orders
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PENNumbra‘s featured works of October are now available at www.pennumbra.com.
The latest featured October Response on PENNumbra is Just Following Orders, by Roderick M. Hills, Jr. It is an analysis of Norman R. Williams’s 2006 article, Executive Review in the Fragmented Executive: State Constitutionalism and Same-Sex Marriage. Professor Hills praises Professor Williams for recognizing that “whatever the merits of [the departmentalist and judicial supremacist] positions as interpretations of the U.S. Constitution, both are hopelessly unpersuasive when applied to state constitutions.” He then examines Professor Williams’s defense of “a third method—‘the legislative model’—for determining when agencies should just follow orders from the legislature.” However, he ultimately concludes that “Professor Williams’s theory ignores the facts about democratic accountability and expertise that most of us would regard as critical,” and argues that “this gap suggests a problem with his theory”—a gap that Professor Hills hopes Professor Williams fills in his next examination of executive review.
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
October 31, 2007 at 9:47 am
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Responses: The Disability Integration Presumption
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PENNumbra‘s featured works of October are now available at www.pennumbra.com.
As the legal wrangling over the cost of disability education rages on, Professors Samuel R. Bagenstos and Mark C. Weber each provide unique responses to Professor Ruth Colker’s 2006 article, The Disability Integration Presumption: Thirty Years Later.
Professor Bagenstos writes in Abolish the Integration Presumption? Not Yet, that while Professor Colker’s arguments are compelling, “[h]er article fails to establish that the IDEA’s individualized integration presumption imposes significant costs, and . . . downplay[s] significant benefits of that presumption.” He concludes that the “supposed failure[s] of integration . . . reflect [more on] the education system’s refusal to provide true integration” than on the presumption’s validity.
Professor Weber, in A Nuanced Approach to the Disability Integration Presumption, applauds Professor Colker for attempting to look at the integration presumption in a new way, but worries that her stance on the presumption is misplaced. Rather than abandoning the presumption, Professor Weber argues that integration can work well as long as educators focus on “which services and protections are being offered to educate a child within general education. . . . The way to equality is to provide extra services, technology, and accommodations in regular classes so that the children with disabilities do not fall behind.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
October 27, 2007 at 2:31 pm
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Debate: Can Handguns Be Effectively Regulated?
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PENNumbra’s featured works of October are now available at www.pennumbra.com.
Recent reports on crime statistics published by the FBI show that violent crime has increased for the second straight year across the nation. In particular, the FBI’s reports demonstrate that in major metropolitan areas, such as Philadelphia, homicides have increased by 6.7%.
In the midst of this upsurge in violent crime, Professors James B. Jacobs, of New York University, and David Kairys, of Temple University, reengage with America’s long-running debate over the effectiveness of gun (specifically handgun) control regulation, in their debate, Can Handguns Be Effectively Regulated?
Both Professor Jacobs and Professor Kairys agree that the debate on handgun control “at its core is [related to] a personal, cultural, and political identification of guns with personal self-worth . . . , freedom, liberty, and . . . God and country.” Whereas Professor Jacobs accepts this as a political reality and uses it as an anchor from which to engage in this discussion, Professor Kairys steadfastly disagrees: “The best hope for emerging from our disgraceful state of denial is to respectfully engage and challenge the cultural and political identification of guns with our nation’s highest ideals and the deadly legacy of that identification as it is currently conceived.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
October 24, 2007 at 2:30 am
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September Responses
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PENNumbra has recently featured a number of excellent new responses to several of the Penn Law Review’s print edition articles:
Benjamin C. Zipursky, in Evidence, Unfairness, and Market-Share Liability: A Comment on Geistfeld, responds to Mark A. Geistfeld’s The Doctrinal Unity of Alternative Liability and Market-Share Liability, arguing that the proposals in Geistfeld’s “provocative and insightful” article may be too far-reaching, and specifically contending that Geistfeld’s “arguments made from a normative point of view for the principle of evidential grouping are unsound.”
David D. Meyer, in The Geography of Family Privacy, responds to Laura A. Rosenbury’s Between Home and School, praising Rosenbury for “calling attention to the lack of scholarship addressing the childrearing that takes place” outside of the home and school environs, but noting that he remains unconvinced that it wouldn’t be better to use location “not as an organizing principle, but as a more indeterminate factor in calibrating the strength of justification required of the state for any intervention in childrearing.”
Paul E. McGreal, in In Defense of Complete Preemption, responds to both Gil Seinfeld’s The Puzzle of Complete Preemption and Trevor W. Morrison’s response to Seinfeld, Complete Preemption and the Separation of Powers, arguing that both Geistfeld and Morrison fail to fully conceptualize the well-pleaded complaint rule and asserting that “the complete preemption doctrine and the bar on pleading anticipated defenses are simply two sides of the well-pleaded complaint coin.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles, including Issue 6 of Vol. 155—the Symposium Issue, featuring the culmination of the conversation that began last November when the Penn Law Review held a Symposium on the topic, “Responses to Global Warming: The Law, Economics, and Science of Climate Change.”
Scholars interested in participating in a debate on PENNumbra, or in writing a response to any print edition article, PENNumbra debate, or previous PENNumbra response should send an email to online@pennumbra.con.
September 25, 2007 at 7:54 pm
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