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2014

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Faculty Scholarship at Penn Law

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Articles 1 - 12 of 12

Full-Text Articles in Political Science

Good Enough For Government Work: Two Cheers For Content Neutrality, Seth F. Kreimer Jul 2014

Good Enough For Government Work: Two Cheers For Content Neutrality, Seth F. Kreimer

Faculty Scholarship at Penn Law

When then-Professor Elena Kagan emerged on the public stage in the mid-1990s, she declared “the distinction between content-based and content-neutral regulations of speech serves as the keystone of First Amendment law.” In the last decade and a half, commentators and Supreme Court opinions regularly echoed that declaration. Yet the First Amendment does not mention “content neutrality.” It is an artifact of modern constitutional doctrine–a doctrine subject to a sustained barrage of judicial and academic criticism.

Most scholarly critiques of content neutrality focus on First Amendment theory and Supreme Court opinions. After surveying these critiques, along with the incomplete defenses ...


Behaviorism In Finance And Securities Law, David A. Skeel Jr. Jan 2014

Behaviorism In Finance And Securities Law, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this Essay, I take stock (as something of an outsider) of the behavioral economics movement, focusing in particular on its interaction with traditional cost-benefit analysis and its implications for agency structure. The usual strategy for such a project—a strategy that has been used by others with behavioral economics—is to marshal the existing evidence and critically assess its significance. My approach in this Essay is somewhat different. Although I describe behavioral economics and summarize the strongest criticisms of its use, the heart of the Essay is inductive, and focuses on a particular context: financial and securities regulation, as ...


Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee Jan 2014

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

Faculty Scholarship at Penn Law

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to ...


Performance Track’S Postmortem: Lessons From The Rise And Fall Of Epa’S “Flagship” Voluntary Program, Cary Coglianese, Jennifer Nash Jan 2014

Performance Track’S Postmortem: Lessons From The Rise And Fall Of Epa’S “Flagship” Voluntary Program, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

For nearly a decade, the United States Environmental Protection Agency (“EPA”) considered its National Environmental Performance Track to be its “flagship” voluntary program — even a model for transforming the conventional system of environmental regulation. Since Performance Track’s founding during the Clinton Administration, EPA officials repeatedly claimed that the program’s rewards attracted hundreds of the nation’s “top” environmental performers and induced these businesses to make significant environmental gains beyond legal requirements. Although EPA eventually disbanded Performance Track early in the Obama Administration, the program has been subsequently emulated by a variety of state and federal regulatory authorities. To ...


Soft Law As Foreign Relations Law, Jean Galbraith Jan 2014

Soft Law As Foreign Relations Law, Jean Galbraith

Faculty Scholarship at Penn Law

The United States increasingly relies on “soft law” and, in particular, on cooperation with foreign regulators to make domestic policy. The implementation of soft law at home is typically understood to depend on administrative law, as it is American agencies that implement the deals they conclude with their foreign counterparts. But that understanding has led courts and scholars to raise questions about whether soft law made abroad can possibly meet the doctrinal requirements of the domestic discipline. This Article proposes a new doctrinal understanding of soft law implementation. It argues that, properly understood, soft law implementation lies at the intersection ...


The Oxford Guide To Treaties; Edited By Duncan B. Hollis; Recent Books On International Law: Book Reviews, Jean Galbraith Jan 2014

The Oxford Guide To Treaties; Edited By Duncan B. Hollis; Recent Books On International Law: Book Reviews, Jean Galbraith

Faculty Scholarship at Penn Law

This is a review of The Oxford Guide to Treaties (2012), edited by Duncan B. Hollis.


A Vision Of An Emerging Right To Health Care In The U.S.: Expanding Health Care Equity Through Legislative Reform, Allison K. Hoffman Jan 2014

A Vision Of An Emerging Right To Health Care In The U.S.: Expanding Health Care Equity Through Legislative Reform, Allison K. Hoffman

Faculty Scholarship at Penn Law

When asked to write a chapter on how litigation has advanced a right to health in the U.S., I responded skeptically, both because evidence of the existence of any such right is weak and the role of litigation in promoting its development is small at best. A snapshot of the U.S. health care system evinces the absence of even a more narrow right to health care – a guarantee of equitable access to basic medical care. Instead, it reveals a fragmented picture of public and private financing that leaves many people lacking meaningful access to care. More so, the ...


Treaty Termination As Foreign Affairs Exceptionalism, Jean Galbraith Jan 2014

Treaty Termination As Foreign Affairs Exceptionalism, Jean Galbraith

Faculty Scholarship at Penn Law

No abstract provided.


Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang Jan 2014

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to ...


Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player Jan 2014

Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player

Faculty Scholarship at Penn Law

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges ...


Crimea And The International Legal Order, William W. Burke-White Jan 2014

Crimea And The International Legal Order, William W. Burke-White

Faculty Scholarship at Penn Law

A key balance between two of the most fundamental principles of the post-World War II international legal and political order is at stake today in Ukraine. Particularly in its annexation of Crimea, Russia has exploited the tension between a fundamental principle that prohibits the acquisition of territory through the use of force and an equally fundamental right of self-determination. Russia’s reinterpretation of these two principles could well destabilize the tenuous balance between the protection of individual rights and the preservation of states’ territorial integrity that undergirds the post World War II order. In determining the precedent that will be ...


The Bankruptcy Code’S Safe Harbors For Settlement Payments And Securities Contracts: When Is Safe Too Safe?, Charles W. Mooney Jr. Jan 2014

The Bankruptcy Code’S Safe Harbors For Settlement Payments And Securities Contracts: When Is Safe Too Safe?, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This Article addresses insolvency law-related issues in connection with certain financial-markets contracts, such as securities contracts, commodity contracts, forward contracts, repurchase agreements (repos), swaps and other derivatives, and master netting agreements. The Bankruptcy Code provides special treatment—safe harbors—for these contracts (collectively, qualified financial contracts or QFCs). This special treatment is considerably more favorable for nondebtor parties to QFCs than the rules applicable to nondebtor parties to other contracts with a debtor. Yet even some strong critics of the safe harbors concede that some special treatment may be warranted. This Article offers a critique of the safe harbor for ...