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 [...]]]>

PENNumbra’s featured works are now available at www.pennumbra.com.

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.”

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.

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 [...]]]>

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.

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.

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 [...]]]>

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 . . . .”

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.

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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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Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.

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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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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 [...]]]>

PENNumbra’s featured works are now available at the NEW AND IMPROVED www.pennumbra.com.

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

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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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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 [...]]]>

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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.”

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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 [...]]]>

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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.

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: [...]]]>

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.