Archive for the ‘Law Rev (Penn)’ Category
PENNumbra publishes responses to The Inexorable Radicalization of Textualism
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This issue contains responses to The Inexorable Radicalization of Textualism by Jonathan R. Siegel.
In The Inexorable Radicalization of Textualism, Professor Jonathan Siegel argues that textualism differs fundamentally from intentionalism and purposivism, and that the gap between them gets wider with time. Siegel concludes that textualism inexorably radicalizes itself as textualists gradually realize that their axiom—the statutory text is the law—compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together. As a result, Siegel finds that textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.
In Opportunistic Textualism, Professor Lawrence Solan argues that while Professor Siegel expresses reasonable concern about the consequences of carrying textualism to its logical extreme, “it is virtually impossible to be a textualist on the ground.” Because judges are inclined to relax their embrace of formalism in favor of other values, the extreme results that Siegel fears cannot be consistently realized. Solan looks to the example of radical textualism that Siegel offers: a rigid dissent by Judge Bybee from a Ninth Circuit decision correcting a clear statutory drafting error. Solan points out that Judge Bybee has been willing to look to legislative history, intent, and statutory purpose in a variety of other areas, and that even the staunchest textualists speak of legislative intent when resolving ambiguous statutes. Solan closes by acknowledging that formalism, like other canons of construction, has been used opportunistically to reach results driven primarily by ideology. Though he shares Professor Siegel’s concerns about some of the cases discussed in The Inexorable Radicalization of Textualism, he concludes that those results do not represent a radical or inevitable movement toward “law without mind.”
In Is Textualism Doomed?, Professor Ilya Somin counters Professor Siegel’s argument that textualism is ultimately doomed to irrelevance because its “inexorable radicalization . . . will cause it to lose the interpretation wars.” Somin contends that Siegel’s normative critique of textualism and positive prediction about its future are overdrawn. In Part I, Professor Somin shows that adherence to text does not inevitably lead to absurd and extreme results. In Part II, Somin claims that Siegel has understated the importance of textual ambiguity. He argues that when faced with an ambiguous text, resorting to extrinsic evidence of meaning is entirely consistent with textualist premises and may sometimes even be required by them. In Part III, Somin finds that textualism is here to stay, and will not “work itself pure” as Siegel has argued. Somin concludes by reasoning that because federal judges are not as interested in “grand theories of interpretation” and methodological consistency as academics are, they will not take textualism to its logical extreme.
As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
April 5, 2010 at 7:30 pm
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PENNumbra publishes responses to The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws
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This issue contains responses to The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws by Kimberly West-Faulcon.
In The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, Professor Kimberly West-Faulcon considers whether universities that completely abolish affirmative action to comply with state anti–affirmative action initiatives may actually be breaking the law with respect to Title VI. Using statistical tests for identifying Title VI disparate impact, she analyzes selective California and Washington public university admissions cycles after the enactment of anti–affirmative action laws and finds racial disparities in admissions to affirmative action–less universities of sufficient magnitude that, if unjustified, could establish that an institution has a compelling interest in considering race to comply with federal antidiscrimination law. Based on this analysis, she concludes that state anti–affirmative action laws may permit the consideration of race if undertaken to remedy federal “racial effect discrimination.”
In Do We Care Enough About Racial Inequality? Reflections on The River Runs Dry, Professor Guy-Uriel Charles asserts that while West-Faulcon has provided an apt legal tool to address racial inequality in education, the problem is not a lack of legal tools but the failure of the legal system to recognize the dignity of people of color in constitutional analysis. Charles argues that legal academics need to make not just legal arguments but a renewed case why we ought to care about racial inequality.
In Doctrinal Dilemma, Professor Girardeau Spann describes West-Faulcon’s argument as both analytically sound and enticingly clever but demonstrates that doctrinal arguments can likewise be developed by socially powerful opponents that are cogent enough to evade West-Faulcon’s conclusions. Consequently, Spann argues that legal scholars seeking to promote racial justice confront a serious dilemma: continue to make doctrinal arguments and reinforce the legitimacy of a social system that uses law as a tool for the continued oppression of racial minorities; or stop participating and risk losing those sporadic concession that even an oppressive social system must occasionally make to prevent bottled-up frustrations from ripening into serious threats of destabilizing change.
As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
December 2, 2009 at 11:05 am
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Herrmann, Beck, and Burbank Debate Twombly and Iqbal
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In Plausible Denial: Should Congress Overrule Twombly and Iqbal?, Mark Herrmann and James Beck debate with Professor Stephen Burbank whether the plausibility standard set out in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal is a proper “recalibration” of the pleading rules or an illegitimate “innovation” and whether Congress would be wise to overrule it. In their Opening Statement, Herrmann and Beck argue that the drafters of the Federal Rules intentionally left Rule 8 ambiguous. The creation of new federal rights, liberalization of class action rules, and massive escalation of discovery costs warranted the retirement of the “no set of facts” language from the Court’s earlier interpretation of Rule 8. In their view, the new course set by the Supreme Court is the proper one.
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.
December 2, 2009 at 11:05 am
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May Author Responses to PENNumbra
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This month, three print authors from the past year reply to the PENNumbra Responses to their articles.
In The Unusual Man in the Usual Place, Professor Bowers supports his argument from Punishing the Innocent by individually addressing each of the responses to his article in turn. Bowers begins by arguing that, while Professor Bibas would be right to view guilty pleas by innocent defendants as a “moral horrors” in a “well-functioning and transparent criminal justice system,” we do not have such a system. Under the flawed system we do have, however, Bowers contends that his proposal would promote “an odd, but very real, kind of honesty in lies—an honesty that innocent defendants do, and often should, falsely admit guilt in order to secure the benefits of defendant-favorable pleas.” Bowers then questions both the possibility and the wisdom of the “bold proposal” in Professor Thomas’ response. He asserts that although Thomas “surely does not want to engender more false guilty pleas, his proposal may have that principle effect.” Finally, Bowers acknowledges that Professor Wright’s call for targeted reforms may be correct, but argues that in regards to “voluntary and intelligent rational-choice pleas, we must opt for rules that either permit such pleas or forbid them—categorically.”
In Excluding Religion: A Reply, Professor Tebbe defends his argument that as a matter of constitutional law, “governments ought to be given wider constitutional latitude to exclude religion from their support programs.” Tebbe first accepts the invitations of his responders to “explore the legal implications” of his argument on political theory, concluding that while his approach may seem to “appeal chiefly to separationists, . . . [it] may also hold some appeal for people who favor greater governmental influence over matters of conscience and morality.” He then devotes the remainder of his response to answer several critiques, including Professor Berg’s assertion that Excluding Religion cannot be squared with the “no-influence approach” to the First Amendment, Professor Garnett’s call for a more “muscular” form of liberalism, and Professor Smith’s criticism that Tebbe has not provided a “unitary principle” for religious freedom. Finally, Tebbe addresses why he even “bother[s]” to write in an area of law where some scholars believe arguments can only convince those readers who are already inclined to agree.
In Making Sense of Immigration Law, Professor Cox continues his argument from Immigration Law’s Organizing Principles that the distinction between rules that select migrants and rules that regulate migrants “serves to obfuscate rather than illuminate the important normative principles at stake when we choose amongst competing immigration laws and policies.” In his rebuttal to Professors Schuck’s and Huntington’s responses, Cox contends that in many ways both scholars’ arguments “embody some of the same conceptual mistakes that . . . infect the field as a whole.” Cox first addresses what he believes is a “misapprehen[sion]” of the argument from Organizing Principles: Schuck’s contention that the article wrongly argues for “essential equivalence” between the concepts of “selection” and “regulation.” After clarifying the structure of his argument, Cox turns to Huntington’s claim that there is “some” conceptual distinction between the two types of rules. Cox argues that the distinction offered by Huntington—”between (a) admission and deportation rules and (b) other rules that regulate noncitizens”—can neither be understood as widely shared today nor a viable “dividing criterion” around which agreement could be found.
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.
May 11, 2009 at 6:45 am
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April Responses to the Penn Law Review
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This issue contains responses to Immigration Law’s Organizing Principles by Adam B. Cox.
In his Article, Professor Cox questions the central principle of immigration law that rules for selecting immigrants are fundamentally different from rules that regulate the lives of immigrants outside the selection process. Cox argues that the distinction is false because every rule of immigration necessarily effects both selection and regulation. Furthermore, even if rules could effectively be categorized, there is no moral or constitutional significance to the distinction. Rather, they are simply two alternative mechanisms that a state may use to achieve a particular end. Under this new understanding, Cox explores the implications to immigration law and institutional design.
Professor Schuck, in his Response, Immigration Law’s Organizing Principles: A Response, agrees that there is overlap in the incentives and effects of selection rules and regulation rules, but contends that Cox goes too far to claim “essential equivalence of the two.” Rather, he argues the real question is “whether, despite the overlap, enough difference between the two remains to justify maintaining some distinction in the legal rules that apply to them.” Unfortunately, despite Cox’s “valuable contribution” to the immigration law scholarship, by claiming equivalence of the two types of rules, Cox does not fully address, “much less answer” this question.
Professor Huntington, in her Response, A House Still Divided, is sympathetic to Cox’s desire to discard the traditional dichotomy between rules that govern the selection and regulation of immigrants. She identifies, however, two points of resistance to destabilizing the categories. Both because “there is some difference between selection and regulation,” and, more importantly, there is “political utility” in distinguishing between the two, Huntington argues that academics “need to be forthright about the power the distinction retains.”
April 3, 2009 at 11:32 am
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Debate: Democracy, Political Ignorance, and Constitutional Reform
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Democracy, Political Ignorance, and Constitutional Reform
In Democracy, Political Ignorance, and Constitutional Reform, Professors Ilya Somin and Sanford Levinson discuss the constitutional implications of a federal government whose “size, scope, and complexity” are far beyond anything that the framers could have possibly imagined and an electorate that is more likely to be able to name the Three Stooges than the three branches of their government. While both professors agree that the situation is problematic for our democratic form of government, they offer very different solutions to address the issue. Professor Somin argues that given such political ignorance, there is no guarantee that opening the door to large-scale constitutional reform would be able to provide a government that is any better. Rather, the best solutions would be aimed at “reduc[ing] the overweening power of government over society.” Professor Levinson, on the other hand, asserts any efforts to radically reduce government are akin to “swimming upstream, perhaps against a waterfall.” Instead, he offers three Constitutional reforms to adapt our founding document to better match the complexity of the modern state. Through these three modest changes, Professor Levinson asserts we can take significant steps toward a “more perfect Union.”
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.
April 3, 2009 at 11:28 am
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Debate: Implicit Race Bias and the 2008 Presidential Election: Much Ado About Nothing?
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Implicit Race Bias and the 2008 Presidential Election: Much Ado About Nothing?
Dr. Gregory Park and Professor Jeffrey Rachlinksi debate Professor Richard Epstein on the implications of President Obama’s election on race-based policies such as affirmative action and antidiscrimination laws. Dismissing claims that a “post-racial America” has arrived, Parks and Rachlinski argue that the presidential campaign simply demonstrated that modern racism “operates not as an absolute barrier, but as a kind of tax on members of racial minorities.” Because a typical minority job applicant does not have access to the “enormous resources” available to Obama, affirmative action and antidiscrimination laws are still necessary. Epstein, on the other hand, argues that while Parks’ and Rachlinski’s analysis of the campaign is flawed, the debate itself is a “sideshow.” Instead, “any private individual or firm can hire a person for good reason, bad reason, or no reason at all” and the market, not public force, should end unsavory hiring practices.
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.
March 10, 2009 at 10:15 am
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March Responses to the Penn Law Review
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This issue contains responses to Saving Lives Through Administrative Law and Economics by John D. Graham.
In this Article, Dean Graham examines the recent history of federal lifesaving regulation and argues that, considering both philosophical and practical perspectives, lifesaving regulation informed by benefit-cost analysis (BCA) has compelling advantages relative to regulation informed by the main alternatives to BCA. Using his first-hand experience as the Administrator of the Office of Information and Regulatory Affairs (OIRA), Graham suggests that, despite its reputation for antiregulatory bias, BCA is actually an influential tool for protecting or advancing valuable lifesaving regulations. But the Article also pinpoints problems in the “benefit-cost” state, and identifies opportunities for improvement in the process of lifesaving regulation. Graham concludes by suggesting that innovations in analytic practice that would strengthen the efficiency and fairness of federal lifesaving regulation.
Professor Elliott, in his Response, Only a Poor Workman Blames his Tools: On the Uses and Abuses of Benefit-Cost Analysis in Regulatory Decision Making About the Environment, faults Graham’s argument for falling into “the two conceptual traps that it inherits from the critics: both the ‘fine tuning’ and the ‘selective realism’ fallacies.”
If these two fallacies were better understood and avoided, Elliott argues that “BCA can be a very useful, albeit imperfect, technique for comparing policies.”
>Read the full response by E. Donald Elliott
Professor Hsu, in his Response, Saving Lives Through Administrative Law and Economics: A Response, takes issue with Graham’s support for the “soft” BCA rule. Instead, he comes to the defense of using BCA as a “procedural” rule, “in which a [BCA] is required of agency actions but is provided for informational purposes only and not intended to be determinative in any way.” Hsu also looks into the potential for the growing field of happiness research to better inform BCA, helping to ensure that BCA best fulfills its informational role.
>Read the full response by Shi-Ling Hsu
Professor Hammitt, in his Response, Saving Lives: Benefit-Cost Analysis and Distribution, focuses on Graham’s support for using BCA as a “soft” rule, which would allow for considerations of equity along with the more common utilitarian measurements. After exploring the issues of measurement inherent in BCA, Hammitt concludes that BCA helps ease some tensions in regulatory decision making by “providing an integrated framework to account for the consequences of regulation and making estimates of the magnitudes of these consequences explicit and open to review and challenge.” And, by incorporating equity concerns, Hammitt believes that Graham’s test ultimately “should make BCA even more valuable.”
>Read the full response by James K. Hammitt
March 10, 2009 at 10:02 am
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University of Pennsylvania Law Review, Issue 157:2 (December 2008)
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University of Pennsylvania Law Review, Issue 157:2 (December 2008)
ARTICLES
Immigration Law’s Organizing Principles
Adam B. Cox
Saving Lives Through Administrative Law And Economics
John D. Graham
Laboratories Of Destitution: Democratic Experimentalism And The Failure Of Antipoverty Law
David A. Super
COMMENTS
Christopher DiPompeo
Paige S. Goodwin
March 2, 2009 at 1:02 pm
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February Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review.
February 2, 2009 at 3:00 pm
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December Responses
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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review and a debate.
November 30, 2008 at 11:33 pm
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November Responses
posted by University of Pennsylvania Law Review
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
posted by University of Pennsylvania Law Review
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Susan A. Bandes, Peter H. Huang, and Michael Stocker each respond to Dan M. Kahan’s Two Conceptions of Emotion in Risk Regulation, 156 U. Pa. L. Rev. 741 (2008). In his article, Professor Kahan mainly examines two competing theories of risk perception, the “irrational weigher” theory and the “cultural evaluator theory.” Kahan prefers the latter theory, which suggests, in part, that “individuals are cognitively motivated to reject information about risk when they perceive that accepting it would threaten their defining group commitments.” He argues that “[t]o avoid this reaction . . . information about risks must be framed in a way that affirms rather than denigrates recipients’ cultural identities . . . .”
March 27, 2008 at 6:43 pm
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Response: Setting the Bar Too High
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Frank I. Michelman responds to Youngjae Lee’s International Consensus as Persuasive Authority in the Eighth Amendment, 156 U. Pa. L. Rev. 63 (2007).
Professor Michelman, in his Response, Setting the Bar Too High, critically examines Professor Lee’s attempt to establish “the negligible epistemic value . . . [of a] unanimous world-wide rejection of the death penalty for juveniles.” Professor Michelman supports Justice Kennedy’s reference in Roper v. Simmons to an international consensus against capital punishment for juveniles because while he admits that many countries “are surely not relevantly like-minded with us . . . some of them surely are.” Professor Michelman is confident that “the probability is strong that the number of the world’s relevantly like-minded societies . . . is large enough to sustain the instructiveness for us of the external world’s unanimous rejection of the juvenile death penalty.” Moreover, he argues that “however true it . . . is that any randomly selected country in the worldwide bunch ‘may’ think vastly differently than we do about the severity of death, . . . not a single one of them dissents from the flat rejection of death as a fitting punishment for juveniles.” Consequently, he concludes that “[t]he presumption of epistemic value in the face of worldwide unanimity holds.”
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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.”
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March 6, 2008 at 8:10 am
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posted by Kaimipono D. Wenger
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The Pentagon’s recent decision to try six Guantanamo detainees for capital crimes such as “terrorism and support of terrorism” made national headlines. William Glaberson, “U.S. Charges 6 With Key Roles in 9/11 Attacks,” N.Y. Times, Feb. 11, 2008, at A1. In this latest PENNumbra Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism (Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists).
Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a “hybrid” option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to “balance[] the legitimate rights of the individual with the equally legitimate national security rights of the state.” He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding “that some of the detainees present a genuine threat to American national security,” and an awareness “that indefinite detention violates constitutional principles and fundamental concepts of morality.”
Professor Parry agrees that current U.S. policy toward detainees has been “misguided,” but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests “that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fall-back option.” Professor Parry points to research that shows that “the federal government is often able to prosecute suspected terrorists in federal court,” and therefore considers alternative proposals to Article III courts to be “solution[s] in search of a problem.” Professor Parry realizes that “trial in federal court will not be possible for every suspected terrorist,” and concludes that, “[f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice.”
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.
February 28, 2008 at 10:21 pm
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Baze-d and Confused: What’s the Deal with Lethal Injection?
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The Supreme Court recently heard oral arguments in the case of Baze v. Rees, which asks the Justices to examine the constitutionality of Kentucky’s lethal injection methodology. In this latest PENNumbra Debate Professors Alison J. Nathan, of Fordham University, and Douglas A. Berman, of The Ohio State University, tease out the legal, political, and practical issues that the Court faces as it addresses Baze.
In her Opening, Professor Nathan critiques the irrationality of the three-formula lethal injection procedure used by Kentucky and many other states. Professor Nathan writes that “lethal injection as pervasively practiced in the United States today is the result of a historical accident, not scientifically informed deliberation.” She contends that the sort of democratic reform that has been the catalyst for legislative changes in execution procedures in the past has been stymied by “lethal injection’s peculiar history, attendant secrecy, and protocol involving the use of [a] pain-masking paralytic drug.” She concludes by arguing that “[i]n this context of non-transparency, it is distinctly the role and responsibility of the judiciary, led by the Supreme Court, to scrutinize the practice of lethal injection and its history.”
Professor Berman agrees that “the development and administration of lethal injection protocols have been haphazard and sloppy.” However, his concern is principally focused on why the lack of a democratic reform movement has failed to raise the consciousness of the nation. He contends that “three critical practical and political realities” explain the absence of a national backlash: in sum, 1) no human-administered death penalty system can be perfect; 2) few Americans care to make a perfect system; and 3) most Americans are “blissfully ignorant” of any such “imperfections.” Through his “realpolitik” lenses, Professor Berman remains skeptical that the Justices will be able to rise above “the broader practical and political realities that surround the modern administration of capital punishment [and help] ensure that the machinations of death . . . persist.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
January 26, 2008 at 5:32 pm
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University of Pennsylvania Law Review, Volume 156 Number 2
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| ARTICLES | |
| Law and the Market: The Impact of Enforcement |
John C. Coffee, Jr. |
| Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities |
Christopher S. Elmendorf |
| Causing, Aiding, and the Superfluity of Accomplice Liability |
Michael S. Moore |
| COMMENTS | |
| Appended Post-Passage Senate Judiciary Committee Report: Unlikely “Legislative History” for Interpreting Section 5 of the Reauthorized Voting Rights Act |
Erica Lai |
| The Constitutionality of Federal Restrictions on the Indemnification of Attorneys’ Fees |
Nishchay Maskay |
January 15, 2008 at 11:49 pm
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Responses to Property Outlaws
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Lee Anne Fennell, Nicole Stelle Garnett, and Laura S. Underkuffler each respond to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007). In their article, Professors Peñalver and Katyal argue that the violation of property laws (by actors they call “property outlaws”) can enhance the social order. In their view, “the apparent stability and order that property law provides owe much to the destabilizing role of the lawbreaker, who occasionally forces shifts of entitlements and laws.”
Professor Fennell, in her Response, Order with Outlaws?, notes that “most property violations destabilize the social order without producing any significant offsetting benefits.” She argues that in order to maximize the “informational signal that [a property] violation sends,” liability rules, injunctive relief, and supercompensatory penalties can help to “harness the information generated by lawbreakers.”
Professor Garnett, in her Response, Property In-Laws, is skeptical of Peñalver and Katyal’s claim that property outlaws provide beneficial and necessary “shocks” to a system that “has a . . . tendency to become ossified and out of date.” Instead, her intuition is that “outlaws usually respond to instability in a property regime, not the ossified hyper-stability that Peñalver and Katyal fear.” Thus, she suspects that “the evolutionary sequence [of property law] generally proceeds from instability to stability, not from bad stability to instability to good stability as [Peñalver and Katyal] suggest.”
Finally, Professor Underkuffler, in her Response, Lessons from Outlaws, agrees with Peñalver and Katyal that, in a system which disfavors property violations, it is critical to “distinguish positive or desirable property lawbreaking from that which is not.” However, Professor Underkuffler does not believe that relying on efficiency and rectification analyses always provides the correct answer. She wonders whether the true reason for our tolerance of property outlaws is “because the lawbreakers are the losers under the existing regime of property and entitlements, while the targeted owners are winners under the same regime.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.
January 7, 2008 at 1:50 pm
Posted in: Law Rev (Penn), Law Rev Forum
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