Our News & Stories

Cynthia Dahl, an accomplished intellectual property lawyer and leader with experience as both corporate counsel and law firm litigator, is the inaugural Director of the University of Pennsylvania Law School’s new Detkin Intellectual Property and Technology Clinic.

Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law at the University of Pennsylvania Law School and Professor of History, has been appointed a Distinguished Lecturer by the Organization of American Historians (OAH).

The Hon. Louis Pollak

The Hon. Louis Pollak, who served as Dean of the University of Pennsylvania Law School from 1975 to 1978 before being appointed to the federal bench, died Tuesday at his home in Philadelphia after a long battle with heart disease. He was 89.

Judge Pollak, who served on the United States District Court for the Eastern District of Pennsylvania, was widely regarded as one of the leading members of the judiciary in the country.

For the 11th consecutive year, a Penn Law student has been named a recipient of the Burton Distinguished Legal Writing Award.

She will be recognized at the 13^th annual Burton Awards ceremony, to take place at the Library of Congress on June 11, 2012. Retired Supreme Court Justice John Paul Stevens is the scheduled speaker. Bernadette Peters, the two-time Tony Award winning actress, is also on the program.

Tobias Barrington Wolff, Professor of Law

The Pennsylvanians traveling to Washington along with Wolff are:

• William Ewing, National Employment Lawyers Association
• Jodi Hirsh, Pennsylvania Coordinator, People For the American Way
• Eleanor Levie, Advocacy Chair, National Council of Jewish Women, Greater Philadelphia Section
• Christine Stone, Board Member and Pennsylvania Public Affairs Chair, National Council of Jewish Women and Chair, Pennsylvania Coalition for Constitutional Values
• Stella Tsai, Partner, Archer & Greiner, P.C.
• Twanda Turner-Hawkins, Vice President, National Bar Association

They will join 150 advocates from 27 states in a day of discussions with White House staff. A deal between Senate Republicans and Democrats to allow judicial nominations to proceed in the Senate expires May 7th, and the advocates are urging the Senate to hold final up-or-down votes on all pending nominees.

After the White House meeting, the advocates will visit the offices of key senators, including Senators Casey and Toomey, to urge them to work to end the delays that have plagued the Senate confirmation process since the beginning of the Obama presidency.

Despite the delays, the overwhelming majority of Obama’s nominees have garnered tremendous bipartisan support, such as Cathy Bissoon, Mark Hornak and Robert Mariani, who were confirmed to seats in Pennsylvania district courts by large bipartisan majorities in October.

The Pennsylvania delegation will also urge Senators Casey and Toomey to quickly recommend to the president nominees for Pennsylvania’s empty seats. They hope their conversations in Washington will help national leaders understand how harmful the confirmation delays have been to Americans who are seeking justice.

Louis S. Rulli, Practice Professor of Law and Clinical Director

Rulli was honored for his contributions not only as Practice Professor of Law and Director of Clinical Programs, but for serving  as an “inspiring example and mentor to others engaged in pro bono service” through his countless bar association activities and non-profit board affiliations, as well as the vast amount of pro bono legal assistance he offers in which he routinely makes it a priority to engage students.

The Recognition Event celebrated the pro bono and public interest work of the Law School’s 2012 graduating class, who collectively performed more than 30,000 hours of service. Third-year student Jaime Gullen received the C. Edwin Baker Award for performing the most pro bono hours of any student in the Class of 2012 – 638 hours over her three years at the Law School. Gullen, who co-founded two separate pro bono projects, is also the recipient of a postgraduate fellowship.

Tthe Law School’s 2012 graduating class collectively performed more than 30,000 hours of service.

For a complete list of individuals and organizations honored, see the Recognition Event program 2012.pdf.

Jonathan Ellis L’10

Jonathan Ellis L’10, who is currently wrapping up a year’s service as a Bristow Fellow in the Office of the Solicitor General at the U.S. Department of Justice, will begin a year-long clerkship this July for Chief Justice John G. Roberts of the Supreme Court of the United States.

“I’m excited to work closely with one of the most respected jurists of his generation,” said Ellis during a recent call. “It’s a great honor to have the opportunity to work with the Chief Justice, and to get a view of the Supreme Court that isn’t available to many citizens.”

A standout student while at Penn Law, upon graduating in 2010 Ellis was awarded the Peter McCall prize, which is awarded each year to the member of the graduating class who has received the highest grades during their three years at the Law School.

Ellis, whose interest in appellate work runs deep, sought during each year of his summer employment while in law school to work for appellate lawyers, and clerked after graduation for Judge A. Raymond Randolph on the U.S. Court of Appeals for the D.C. Circuit. He then applied to be a Bristow Fellow, which are awarded to law school graduates with excellent academic records, typically after completion of a one-year judicial clerkship, usually with a federal appellate-court judge.

In applying for a highly coveted Supreme Court clerkship, Ellis worked with the Law School’s clerkship committee in preparing his application, including with Christine Fritton, the Associate Director for Clerkships in Penn Law’s Career Planning & Professionalism office. “She gave me good advice on how to prepare for the process,” he said, and added, “Professors Bibas, Burbank, and Yoo graciously wrote letters of recommendation for me.”

With no small amount of humility, he remarked his successful application is “thanks to some good fortune and a great deal of help from Penn and elsewhere.”

In addition to looking forward to working with Chief Justice Roberts and learning more about his working style and decision-making process, Ellis hopes his clerkship “will continue to improve my legal writing,” on which he devoted particular focus while at Penn Law, during his previous clerkship, and as a Bristow Fellow. “I also hope to enhance my research and reasoning abilities over the next year.”

Meanwhile, Ellis looks forward to working with Roberts, “often the voice of the Court,” and to “witness a wide array of oral arguments, skills, approaches, and styles,” and to garner insights into “what moves the Court to decide the cases the way it does.”

As Ellis starts his clerkship this July, he follows another recent Penn Law alumnus to the U.S. Supreme Court, Christopher DiPompeo L’09, who is in the final months of his year-long clerkship with Chief Justice Roberts.

“Chris was a year ahead of me,” Ellis explained, “and is a friend; we met during my Admitted Students Weekend and had similar experiences at Penn Law. For example, he was president of the Law School’s Christian Legal Society when he was a 2L, and then I was the following year. We both were on the Law Review board. And we worked together for a summer at Jones Day – he was a rising 3L and I was a rising 2L.”

Meanwhile, Ellis is still determining his career’s future direction. “I’m very interested in appellate work, though I’m not sure whether that will be in the government or in private practice. I suppose I have the next year-and-a-half to figure that out,” he said. “I’d certainly be excited to argue in front of the Supreme Court one day.”

-More college and university participants located in PA than anywhere else in U.S.-

Double Rainbow over Penn Park, University of Pennsylvania Photo by Scott Spitzer, Office of University Communications

The U.S. Environmental Protection Agency recently announced the winners of the 2012 College University Green Power Challenge and the top winner in the Green Power Challenge is the University of Pennsylvania. In addition, more colleges and universities who are participating in the Challenge are located in Pennsylvania than any other state in the nation. Of the 73 universities participating, 17 are located in Pennsylvania and are buying green power - - power from renewable resources.

The University of Pennsylvania beat out 72 other schools across the country by purchasing more than 200 million kilowatt hours (KWh) of green power or 48 percent of its total power purchases.

Green power is generated from renewable resources such as solar, wind, geothermal, biomass, biogas, and low-impact hydropower. The University of Pennsylvania has taken first place honors in the challenge for the fifth consecutive year and its green power use is equivalent to avoiding greenhouse gas emissions of approximately 27,000 passenger vehicles each year.

“By purchasing green power from renewable sources, these 17 Pennsylvania institutions are spurring the development of the nation’s green power market and reducing harmful air pollution,” said EPA’s mid-Atlantic Regional Administrator Shawn M. Garvin. “Their commitment to renewable energy, especially at the University of Pennsylvania, is contributing to the growth in green jobs and a green economy.”

The other 16 Green Power Partners in Pennsylvania are: Duquesne University in Pittsburgh; Dickinson College in Carlisle; Franklin & Marshall College in Lancaster; Haverford College in Bryn Mawr; Swarthmore College in Swarthmore; Gettysburg College in Gettysburg; Philadelphia University in Philadelphia; Drexel University in Philadelphia; Juniata College in Huntingdon; Eastern University in St. Davids; Allegheny College in Meadville; Bucknell University in Lewisburg; Mercyhurst College in Erie; Chatham University and Carnegie Mellon University in Pittsburgh; and Marywood University in Scranton.

For more information on the winners: www.epa.gov/greenpower/initiatives/cu_challenge.htm.

For more information on EPA’s Green Power Partnership: www.epa.gov/greenpower.

 

Ben Grunwald, C'08, L'13, PhD'13, a second-year student at University of Pennsylvania Law School who is pursuing a joint degree in law and criminology, has won the 2012 Student Paper Award from the Law and Society Association (LSA) for his study of sentencing guidelines.

Prof. Edward Rock L’83, the Saul A. Fox Distinguished Professor of Business Law.

Two articles co-authored by Penn Law’s Saul A. Fox Distinguished Professor of Business Law Edward B. Rock L’83 appear on the Corporate Practice Commentator’s latest annual list of “Top 10 Corporate and Securities Articles.” The poll tabulates the top selections by teachers of corporate and securities law from a pool of more than 580 articles published in legal journals in 2011. Professor Rock’s articles have appeared in the top 10 list six years in a row.

Rock’s articles, co-authored with Marcel Kahan, are “When the Government Is the Controlling Shareholder,” from the Texas Law Review, and “The Insignificance of Proxy Access,” from the Virginia Law Review.

“When Government Is the Controlling Shareholder” deals with the recent government bailouts of major corporations, in which the U.S. Treasury invested in private firms. The article addresses how corporate law applies when the government is the controlling shareholder.

In honor of the release of “Targeted Killings: Law and Morality in and Asymmetrical World,” the University of Pennsylvania Law School will host a book celebration on Monday, April 30, 2012 at 5:30 p.m. in Silverman 245, Levy Conference Room.  

• What is targeted killing in a military context and what is the theory under which such killings may be permissible?
• Does the law of war confine lawful attacks to conventional battlefields or has the specter of terrorism transformed the entire world into a global battlefield?
• Do law and morality break down at the margins when military and civilian leaders are forced to take drastic action to stop deadly terrorist attacks?

By Jenny Chung C'12

Four films by Penn Law students premiered the evening of April 18 at the Law School's Michael A. Fitts Auditorium, marking the third annual Rough Cut Film Festival.

Professor Regina Austin welcomes the audience to the 2012 Rough Cut Film Festival.

Austin prefaced the screenings with a request for audience feedback after the show; she reminded those in attendance of the “measure of courage [required] to present ‘rough cuts’ to lawyers and other experts with years of experience.” Each film, half an hour in length, was followed by a brief question-and-answer session in which audience members communicated inquiries and suggestions directly to the filmmakers.

Disabled: SSI and Aiding Children in Need

The evening opened with Disabled, which documented the difficulties confronting families seeking federal aid to care for children with disabilities.

Featuring interviews with parents of disabled children, legal advocates and lawmakers, the film revealed the impact of revisions to the Supplemental Security Income (SSI) Act introduced as a result of welfare reform legislation passed in 1996. A more stringent test of eligibility, which now mandates the individual evaluation of each child’s functionality as part of her or his assessment, caused over 100,000 children to lose their benefits.  While well over 60 percent of children who apply for benefits are now denied, the film goes on to explain that the House of Representatives recently passed a resolution to cut $1.4 billion from the program in the interest of reducing spending.

Pushed Out and Forgotten: Philadelphia’s Youth and the School-to-Prison Pipeline

Angela Briggs L'12, Tiffany Gelott L'12, and Ginene LewisL'12 presented "Pushed Out and Forgotten: Philadelphia’s Youth and the School-to-Prison Pipeline."

Pushed Out and Forgotten addressed aspects of the disciplinary practices of the Philadelphia public school system that contribute to high dropout and incarceration rates.

Tsedey Bogale L'13, Tarun Sridharan L'13, and Shikha Bhattacharjee L'13, and Lauren O'Garro-Moore L'12 present "Between Worlds: The Path to Independence for Immigrant Survivors of Domestic Violence."

Yiyang Wu L'12, Samuel Saylor L'12, and Thomas Isler L'12 present "Pay Up! Criminal Justice Debt in Philadelphia."

16 Penn Law and Wharton students traveled to NYC to learn more about the investment industry.

A group of 16 Penn Law and Wharton students recently traveled to New York City to meet with several prominent private equity firms and hedge funds and learn more about careers in the investment industry. The trek was organized by the JD/MBA Student Association, and sought to give students an opportunity to learn more about the different roles within investment firms, and the opportunities available to law school graduates within the investment industry. 

Linda Wang, C’12
 

Randall Kennedy, Raymond and Sadie Alexander Visiting Professor of Law

Randall Kennedy on Thurgood Marshall's career as "Mr. Civil Rights"

Kennedy did not pass judgment on Marshall for making these controversial decisions, but he did believe in having debates about them. “I think Thurgood Marshall’s career and stature can stand disagreement. We shouldn’t engage in hagiography. We should engage in a critical examination of this great man’s career.”

The University of Pennsylvania Law School’s graduation ceremony was held at the Academy of Music on Monday, May 14, 2012 at 3:00 p.m. Mayor Rudy Giuliani, who has had a varied career as a lawyer, prosecutor, Mayor of New York City, Deputy Attorney General of the United States, and a 2008 presidential candidate delivered the Law School's commencement address.

- Roberts to be inaugural Sadie T.M. Alexander Professor of Civil Rights -

President Amy Gutmann and Provost Vincent Price  announced the appointment of Dorothy Roberts as the University of Pennsylvania’s fourteenth Penn Integrates Knowledge Professor, effective July 1, 2012.

The Penn Integrates Knowledge program was launched by President Gutmann in 2005 as a University-wide initiative to recruit exceptional faculty members whose research and teaching exemplify the integration of knowledge across disciplines, and who are jointly appointed between two schools at Penn.

Joanna Visser L’10, joined the Toll Public Interest Center and Juvenile Law Center as the 2011 Toll Public Interest Center Philadelphia Fellow, where she supports efforts to end the practice of sentencing juveniles to life in prison without parole, and counsels Penn Law students on local pro bono and public interest opportunities. Before beginning her Fellowship, she served as law clerk to the Honorable Joel Schneider, Magistrate Judge, United States District Court for the District of New Jersey.

 The Legal Intelligencer has named Elizabeth McManus L’ 04, Associate Director for Professional Development of Career Planning and Professionalism at Penn Law, among its list for “Women of the Year,” which highlights the achievements of top female attorneys across the state of Pennsylvania who have made positive contributions to the legal community.

Kara Finck, most recently Managing Attorney for the public interest organization The Bronx Defenders, is the new Director of the University of Pennsylvania Law School’s Child Advocacy Clinic.

Megan Rok L'11, Sara Alba L'11, and Jamie Gullen L'12 (Not pictured: Denisse Cordova, L’12, studying abroad at University of Mannheim)

As part of its commitment to supporting public interest legal careers, the University of Pennsylvania Law School’s Toll Public Interest Center (TPIC) has named 2012 Postgraduate Fellowship Award recipients.

Launched in 2009, the postgraduate fellowship program has grown through the generous support of alumni like Robert L'66 and Jane Toll GSE'66, Gerald McHugh, and Penn Law alumni at the Langer, Grogan, and Diver law firm. This year, the Law School added support from the University of Pennsylvania Law Review, creating a total of four full-time postgraduate fellowships. Fellows design their own public interest projects and work with partnering non-profit organizations locally, nationally, or internationally on pressing issues and advocating for clients.

“The commitment to social justice and public-interest lawyering demonstrated by this year’s Fellows is both inspiring and impressive," said Michael A. Fitts, dean of Penn Law. "They have identified a broad range of social needs to which they are responding with great passion and outstanding legal talent.”

“These students work so hard in their time at Penn Law to serve the communities they care so much about," noted Arlene Finkelstein, Assistant Dean & Executive Director of the Law School's Toll Public Interest Center. "It gives us great pride to see them develop these projects in conjunction with their partnering organizations in a way that will not only have a tremendous impact, but also launch their public interest careers.”

The 2012 TPIC Postgraduate Fellowship recipients and their projects are:
 

• Sarah Alba, L’11, awarded the Toll Public Interest Fellowship. Alba will work with Manhattan Legal Services in New York. Sarah’s project, Advocacy Project to Remedy Employment Discrimination on the Basis of Credit Checks, will create a credit discrimination clinic which will employ community education, direct services, and policy advocacy to assist unemployed members of the minority communities of upper Manhattan overcome an emerging but overlooked barrier to re-employment: the usage of credit reports by employers to deny employment opportunities to minority applicants.

• Denisse Cordova, L’12, awarded the the Penn Law Fellowship. Partnering with FoodFirst Information and Action Network (FIAN), an international network of organizations, Cordova's project, Responding to Violations of Women's Human Right to Food, will serve women and girls whose right to adequate food has been violated by developing legal strategies that respond to gender-differentiated needs and priorities as well as gender inequalities in terms of opportunities and outcomes to enable affected communities to realize this human right. This project will respond to specific cases of violations of women's right to food in Latin America and develop prototype methodologies that can be replicated in other regions.

• Jamie Gullen, L’12, awarded the Langer, Grogan & Diver Fellowship in Social Justice. With partner organization Community Legal Services of Philadelphia, Gullen's project, Empowering Youth through Work Project: Reducing Barriers to Employment for Young Adults with Criminal Records, will utilize direct representation, community education and outreach, and systemic reform to will reduce barriers to employment for young adults with criminal records.  Through her project, Jamie will work with young adults to expunge their arrest records, reduce the amount of criminal justice debt they owe to the courts, and challenge the predatory practices of for-profit educational institutions that enroll students in training for fields from which they are barred by their criminal records.

• Megan Rok, L’11, awarded the inaugural University of Pennsylvania Law Review Public Interest Fellowship. Rok will partner with the Support Center for Child Advocates in Philadelphia. Her project, Educational Advocacy for Court-Involved Youth, will enable Megan to provide services for children in the child welfare system, who are at a high risk of poor education outcomes. In Philadelphia, 75% of these children do not graduate high school. Through this project Megan will provide a critical and missing element in the effort to address the education crisis of court-involved youth: an improved process for early identification and intervention through direct representation in Family Court and school proceedings to ensure new and existing education rights.

Fellows are selected by the TPIC Advisory Board, a group of legal professionals who serve as counsel to TPIC on its public interest programs and initiatives. The Fellowships are awarded through a competitive process, and recipients are screened through written applications and interviews. Successful applicants must demonstrate both a strong commitment to public service and an effective partnership with a public interest organization that will allow them to provide a necessary legal service to an under-represented cause or community. The Fellowships are designed to launch long-term public interest careers.

In addition to the Penn Law Fellows, a number of Penn Law 3Ls and alumni have succeeded in obtaining other fellowships to engage in public interest work.

Founded in 1989, TPIC is at the center of public interest initiatives at Penn Law, helping all students to cultivate meaningful opportunities to provide pro bono legal service to under-represented communities, while mentoring students who hope to make public interest their professional focus. The Center’s pro bono program, which includes a 70-hour pro bono requirement and emphasizes students’ professional development, has been recognized with the American Bar Association’s Pro Bono Publico Award.

The Penn Program on Documentaries and the Law presents the 2012 Rough Cut Video Festival at 6:30 p.m. on Wednesday, April 18, 2012 at the University of Pennsylvania Law School. The Video Festival will  feature a series of short films produced by members of the Visual Legal Advocacy Seminar, taught by Professor Regina Austin L’73,the William A. Schnader Professor or Law and Director of the Penn Program of Documentaries and the Law.

A central component of the Program, Austin’s seminar exposes students to the use and analysis of law-genre documentaries and how they are used within the legal academy, while they learn about legal issues that are involved in making documentaries and explore the uses of nonfiction film as a tool of legal advocacy.

• Criminal Court debt
• The school-to-prison pipeline
• SSI benefits for children with so-called "silent disabilities"
• Immigrant women and services for victims of domestic violence

From April 2-5 the University of Pennsylvania Law School celebrated the formal opening of Golkin Hall, a state-of-the-art building that completes Penn Law’s magnificent and physically integrated campus and embodies its distinctive vision for an interdisciplinary legal education. A convocation and conversation with The Hon. Sonia Sotomayor, Associate Justice of the Supreme Court of the United States, was the culmination of the week-long series of special events at the Law School.
 
Celebrations included Tee Shirt Day and a Street Fair, as well as faculty and distinguished alumni panels examining trends in the future of legal education and how law guides America’s social, political and economic future and responds to multiple global challenges. The week concluded as the Penn Law community convened at Irvine Auditorium on April 5 for Golkin Hall’s dedication event, A Conversation with U.S. Supreme Court Associate Justice Sonia Sotomayor. Sotomayor spoke about her thoughts on the law, legal education and life.
 
"With the completion of Golkin Hall, our complex redefines the law school campus as a connected and collaborative space that encourages the integration of people and programs,” said Michael A. Fitts, Dean of Penn Law. “Golkin Hall symbolizes and furthers our vision of the role of lawyers in society today and in the future: not only as problem solvers, but as managers and leaders who can move seamlessly across fields. Penn Law embodies this ongoing integration of the law with related disciplines, as evidenced by our partnerships with schools and departments across Penn, and with other universities and institutions around the world.”
 
Fitts added: "The formal opening of Golkin Hall is also a testament to the extraordinary generosity and dedication of our many alumni who contributed their time and resources to help make this project such a great success."
 
The building, named in honor of Perry Golkin, W'74, WG'74, L'78 and Donna Golkin, WG'77, the lead donors to the project, is located on Sansom Street in West Philadelphia. The project broke ground in May 2010 and cost approximately $33.5 million, all donor supported; Penn Law did not borrow for construction. The building is 40,000 square feet and features an inviting two-story lobby leading to a two-story west wing and a three-story east wing. Designed by architects at the Boston-based firm Kennedy & Violich Architecture, Golkin Hall features roof-top gardens and green roofs, a state-of-the-art court room, and 350-seat auditorium.
 
Faculty, students, staff, and visitors enter from Sansom Street into Golkin’s lobby to spectacular views of the Penn Law courtyard, an essential element in the social and intellectual life of the Law School.
 
The completion of Golkin Hall entirely connects Penn Law’s four buildings that include Silverman Hall, Penn Law's signature, 110-year-old Georgian-style building, Tanenbaum Hall, and Gittis Hall. It does so while respecting the historical three-story row homes that make up the scenic and trendy Restaurant Row across Sansom Street. The end result is a façade that is well-situated in its neighborhood surroundings and welcomes the University community and public to Penn Law.
 
The Golkin Hall project follows a multi-year, $18 million, top-to-bottom renovation of three of Penn Law’s interconnected buildings. As a result, the Law School’s classrooms and Biddle Library are state-of-the-art, new faculty offices facilitate scholarship and student advising, collaborative-study rooms are available for teams of students, and the Gittis Center for Clinical Legal Studies and student groups benefit from improved meeting space.

The refurbishing of Penn’s Law’s campus responds to nearly 50 percent growth in Penn Law’s faculty during Fitts’ tenure as Dean, with stellar appointments in corporate law and finance, intellectual property, international law, and science and technology. In addition, since2000 Penn Law has expanded its cross-disciplinary curriculum, launching nearly 30 joint- or dual-degree and certificate programs with the preeminent schools and graduate departments at Penn, while infusing course work with the scholarship and training of its increasingly interdisciplinary faculty.
 
As a result, Penn Law graduates develop the knowledge, skills, and insights necessary to successfully navigate the fields in which they and their clients operate, in the U.S. and globally.

Click below to view images from the week-long series of events celebrating the opening of Golkin Hall: 

Dedicating Golkin Hall: A conversation with U.S. Supreme Court Associate Justice Sonia Sotomayor in the media

• ABA Journal
• Associated Press
• Associated Press (News story with photos)
• Associated Press Photos
• CBS Philly
• The Daily Pennsylvanian
• The Legal Intelligencer
• The National Law Journal
• Philadelphia Inquirer
• University of Pennsylvania Law School newsroom

By Nicole Greenstein C'14

Dean Fitts and Justice Sotomayor at Irvine Auditorium.

While an onstage brass quintet played the sonorous music of Gabrieli, Bach and Handel to open the event, Sotomayor entered the auditorium alongside many other distinguished guests: Penn Law Dean Michael Fitts, University of Pennsylvania President Dr. Amy Gutmann, the Poet Laureate of the Library of Congress Dr. Daniel Hoffman, and Chairman of the Trustees David Cohen L’81, and Philadelphia City Councilman William Green L’95.

 

From left to right: David Cohen L’81, Chairman of the Trustees, Penn; Justice Sotomayor; President Amy Gutmann; and Dean Fitts.

Justice Sotomayor talks with students from the Law School's Latin American Law Students Association (LALSA.)

Dean Fitts presents a new scholarship in Sotomayor’s name for students aspiring to the judiciary.

The ribbon-cutting at Golkin Hall, with Perry Golkin, W'74, WG'74, L'78 and Donna Golkin, WG'77.

 

“Today marks the culmination of a decade-long effort to transform Penn Law,” Dean Michael Fitts said as he welcomed the audience at the convocation ceremony. “With this dedication of Golkin Hall, we have completed our vision for the finest urban law campus in America.”

 

Fitts added that the creation of Golkin Hall focused on one goal: to educate Penn’s students to become “the finest lawyers, problem solvers, and leaders they can be in service in to the society.” Whether it be through the pursuit of better access to justice, better healthcare, business entrepreneurship or human rights, Fitts said, Golkin Hall symbolizes the school’s vision for the role of lawyers in society today as well as for generations to come.

 

Sotomayor and Fitts soon sat at center stage for their conversation, where Sotomayor discussed how her childhood dream transformed into a reality.

 

Ever since she read detective novels like Nancy Drew and watched television lawyers like Perry Mason, Sotomayor knew from a young age that she wanted to be a lawyer. This passion continued from her childhood through high school, where Sotomayor joined debate teams and became active in student government.

 

However, it was not until studying the law in college that Sotomayor realized why the law was truly tailored to her personality and interests.

 

“At the end, what law is, is service to people,” she explained. “No matter what kind of law you practice, whether it’s public or private, non-profit or for profit, government or not, you are helping people and institutions manage relationships.”

 

“And it became clear to me at least, that I’m fueled by that,” Sotomayor added. “Personally, I enjoy working with people to help solve their problems.”

 

In addition to reflecting on her own past experiences, Sotomayor also cited life lessons she learned to offer firsthand advice to law students in the audience.

 

Aside from some of the more basic guidelines like earning good grades, having extensive writing experience, and finding a law professor mentor, Sotomayor stressed that perhaps the most important piece of advice she could give is to follow your passions to truly do something meaningful.

 

“Involve yourself in something that’s important to you, and make a difference,” she said. “Undertake whatever project you want — I don’t judge students’ passions by whether they’re politically correct or not…I judge the students by have they made a difference in whatever project they’ve undertaken.”

 

 After Sotomayor’s talk, Fitts announced a new scholarship named in honor of Sotomayor, for future students aspiring to follow in her footsteps.

 

Sotomayor, who in the words of Dr. Amy Gutmann “rose from a public housing project in the Bronx to the bench of the supreme court,” would not have been able to become the first Latina and third female Justice without scholarships for her education.

 

“I relied on the largess of people like the Golkins who created my American dream, and I am so grateful to this school for passing it forward to someone else,” Sotomayor said.

 

Philadelphia City Councilman William Green also joined the stage to officially declare April 5^th, 2012 as Penn Law Day. This dedication was made not only to recognize the formal opening of Golkin Hall, Green said, but also to honor “the contribution that the Penn Law School has made to the education of lawyers and the delivery of justice in our city, our country, and around the globe.”

 

Dean Fitts concluded the dedication ceremony with some thankful words to Sotomayor for being such a special part of this historic day. He explained that although one of the most intensely debated questions today is who should serve on the Supreme Court, what makes an admirable Supreme Court justice should not hinge on whether they are merely a liberal or a conservative.

 

“In the end, what we look for in a Supreme Court justice is a quality of mind, a sense of history, a sense of passion,” Fitts said. “Judge,” he added, turning to Sotomayor, “I think we’ve seen it on display in every way this afternoon.”

 

 

Stephanos Bibas, a Professor of Law and Director of the Supreme Court Clinic at the University of Pennsylvania Law School, scored a U.S. Supreme Court victory on March 28, in a complex immigration case involving a permanent resident of the United States facing deportation.

In Vartelas v. Holder, the Court ruled for the petitioner, Panagis Vartelas, whose case had been argued on January 18 by Bibas, assisted by students in Penn Law’s Supreme Court Clinic.

In a 6-3 decision written by Justice Ruth Bader Ginsburg, the Court found that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which strips lawful permanent residents convicted of a crime of the right to travel abroad with the guarantee of reentry, could not be applied retroactively to a green-card holder who pleaded guilty to an offense prior to 1996 and traveled abroad thereafter.

Vartelas, a citizen of Greece and a lawful permanent resident of the United States since 1989, was detained at New York’s Kennedy Airport in 2003 upon returning from a family visit overseas. Mr. Vartelas, a Queens businessman, pleaded guilty in 1994 to a U.S. court in a counterfeiting case – a crime that at the time wasn’t cause for deportation if he left the country and attempted reentry. However, when the IIRIRA was passed in 1996, it made even minor cases cause for deportation and was to be applied retroactively.

Students in Penn Law’s Supreme Court Clinic helped Bibas conduct research, draft the merits brief, and prepare strategy. The Clinic is the nation’s first to closely integrate practical experience on Supreme Court matters with an academic seminar on the workings of the Court. The year-long Clinic focuses on the practical side of identifying and litigating active Supreme Court cases, including participating in moot court rehearsals and attending oral arguments at One First Street, giving students intensive, hands-on experience.

“Participating in the Supreme Court Clinic has been a wonderful addition to my education here at Penn Law,” said Ellen Mossman L’12, who worked with Bibas and her fellow Clinic students preparing for arguments this semester. “The Clinic allows us as law students to participate in a unique experience in the legal profession that many lawyers never get the chance to do. My writing and analytical abilities have improved so much with the Clinic - the professors really push the students to expand their thinking, and the collaborative process allows us to reach arguments that one person could not reach alone.”

Mossman added: “Particularly with Supreme Court cases, it is sometimes easy to lose track of the real-world consequences of cases before the Court, and so it was great to be able to have a connection with the client to remember that these cases matter to the people involved. Participating in a merits case is a formative experience by itself, and winning the case really vindicates all of the time and effort that we put into the arguments.”

The Clinic is led by Bibas, Lecturer Stephen B. Kinnaird, also a former clerk to Justice Kennedy and a partner with the Paul Hastings law firm, and Lecturer Nancy Bregstein Gordon L’78, a former clerk to Justice Lewis F. Powell, Jr. The accompanying seminar is taught by Penn Law Professor Amy Wax and Adjunct Lecturer James Feldman, a former clerk to Justice William J. Brennan, Jr. Both Wax and Feldman are former assistants to the U.S. Solicitor General, and combined have argued more than 60 cases before the Supreme Court.

Bibas litigates a wide range of Supreme Court cases, both criminal and civil. Most recently, in April 2011, Bibas argued the case of Tapia v. United States, in which the Court held that a federal court cannot impose or lengthen a prison term to foster a defendant’s rehabilitation. In March 2011, Bibas argued the case of Turner v. Rogers, which involved whether an indigent defendant has a right to court-appointed counsel when faced with being sent to jail for failing to pay child support. He and his co-counsel also won a landmark victory in Padilla v. Kentucky in 2010, persuading the Court to recognize the right of noncitizen defendants to accurate information about deportation before they plead guilty.

Professor Bibas recently discussed the uniqueness and value of the Supreme Court Clinic with Penn Law’s Office of Communications.
 

Jacques deLisle, the Stephen A. Cozen Professor of Law, Professor of Political Science, Director of the Center for East Asian Studies, and Associate Director of the new Center for the Study of Contemporary China at Penn, focuses his research and teaching on contemporary Chinese law and politics. This spring semester he has run an innovative new seminar, “China and International Human Rights,” drawing together Law School students, other Penn students, and members of the wider University community.

PL: Who are some of the experts you have involved in the series?

On Wednesday, April 4, the Law School will host two panels featuring Penn Law faculty and alumni, respectively, focusing on six critical areas of the law that will shape 21st century legal debates, and how legal education can prepare students for leadership in diverse fields. The panels are part of “Golkin Week ” April 2 – 5, which celebrates the formal opening of Golkin Hall.

From noon 1:15 p.m. on Wednesday the Law School community will convene in Levy Conference Center for the panel, “Future Impact: Law and Legal Scholarship,” which will feature Penn Law faculty members examining six critical areas where the law is rapidly changing and which will shape the legal debates of the 21st century. Participants will also discuss how changes in higher education and legal education will unfold over the coming decades and how a traditional law school education may change as a result.

The panel will be moderated by Ron Daniels, President of The Johns Hopkins University, and panelists include:

• Prof. Stephen Burbank on the future of American judiciary;
• Prof. William Burke-White on the future of international law;
• Prof. Jacques deLisle on the future of China;
• Prof. Jill Fisch on the future of the American corporation;
• Prof. Sally Gordon on the future of religion, politics and the law; and
• Prof. Edward Rock L’83 on the future of the financial system.

From 4:30 p.m. to 5:15 p.m. the Penn Law community will convene in the Michael A. Fitts Auditorium for the panel, “Future Impact: Leadership and a Legal Education,” which will feature six Penn Law alumni panelists who will offer their perspectives on how their time in law school prepared them for leadership in diverse fields – often, fields they could not have imagined as students – and shaped their approaches to the issues and challenges that they have addressed in their careers.

The panel will be moderated by Paul Haaga L’74, WG’74, Chairman of the Capital Research and Management Company, and panelists include:

• Pamela Johnson L’83, Founder, PSJ Advisors, and former Sr. Vice President, Fannie Mae (2002-2006);
• Osagie Imasogie GL’85, Senior Managing Partner, Phoenix IP Ventures;
• Steven Cozen C’61, L’64, Founding Partner, Cozen O’Connor;
• The Hon. Gene E.K. Pratter L’75, Judge, U.S. District Court, Eastern District of Pennsylvania and former General Counsel to the firm of Duane Morris LLP;
• Perry Golkin W’74, WG’74, L’78, member, Kohlberg, Kravis, Roberts and Co.; and
• Daniel Garodnick L’00, council member of District 4, New York City Council, and former associate of Paul Weiss Rifkind Wharton & Garrison LLP.

For more information about the panels and for the complete schedule of events April 2 - 5 please visit the Golkin Week website.

As part of an innovative management class held recently over spring break, a group of University of Pennsylvania Law School students have raised over $36,000 for Make-A-Wish® Philadelphia and Susquehanna Valley, which will fund the wishes of local children with life-threatening medical conditions.

Prof. Adam Grant and Penn Law students present a check on behalf of their Organizational Behavior classmates to Make-A-Wish Philadelphia

A special check presentation to Dennis Heron, CEO of Make-A-Wish Philadelphia and Susquehanna Valley, by the Penn students and their professor took place on March 27 in Penn Law’s Golkin Hall.

Thirty-five Penn Law students devoted their time over spring break to take the graduate seminar “Organizational Behavior,” a unique class modeled after the hit NBC show, “The Apprentice.” As part of the course, from March 5-9 students were divided into seven teams to work every day, all day on a real-life challenge: to develop and execute a strategic fundraising plan, with all money raised going to Make-A-Wish.

The seminar, led by Adam Grant, a management professor at Penn’s Wharton School, provided students the opportunity to test, develop, hone, and reflect on their capabilities in making decisions, collaborating in teams, motivating peers and supervisors, influencing clients, and building and leveraging social networks. Students worked under the supervision of a number of experts involved in the challenge, including Penn Law alumni and practicing attorneys Rick D’Avino, Anthony Noble, Paige Pratter, and Jennifer Williams; as well as three lawyers on the Make-A-Wish board of directors, Nate Andrisani, Peter Ochroch, and Judge Felipe Restrepo.

“Make-A-Wish is honored to partner with the University of Pennsylvania Law School in support of local children’s wishes. The students represent the best in their field and are passionate advocates for the children we serve. We are deeply appreciative of their tremendous fundraising results,” said Heron.

Penn Law students with Prof. Grant on the last day of the seminar after learning the teams’ fundraising totals.

“This course was designed by Professor Grant to provide our students with an opportunity to develop and build their management, leadership, and team-building skills,” said Heather Frattone, Penn Law’s Associate Dean for Career Planning and Professionalism, who worked with Grant to organize the course. “We are thrilled to partner with Make-A-Wish, knowing that what students learned and accomplished as part of the class will have direct benefits for children in the Philadelphia area.”

Penn Law offered the course as an intense immersion experience that reflects the realities of organizational behavior in a large law firm or business. In addition to its benefits for the local community, the course complements the legal knowledge and analytical skills students develop as part of the Penn Law curriculum. Is part of the many partnerships the Law School has with other professional schools and departments at Penn, as well as with private and public sector organizations off-campus, to help further law students’ professional development and commitment to public service.

“The experience I had in this seminar is something I will not soon forget,” said Adam Katz, who is pursuing a joint law and MBA degree at Penn. “In just a week, we learned a tremendous amount about ourselves, working as a team, managing others, and perhaps most importantly, the power of a wish.”

Transcript

On Saturday, March 31 Penn Law will host the inaugural L.E.A.R.N. Education Conference, an all-day conference convening academics, politicians, entrepreneurs, educators, and other experts in public education to identify solutions to major challenges in America’s public schools. 

The conference, titled “Bridging Sectors to Rebuild Education,” aims to equip attendees with the requisite knowledge to develop personal action-items to improve public education. Keynote speakers include two political leaders at the forefront of education reform, Governor Ed Rendell C’65, HON’00, and Congressman Chaka Fattah MGA’86, who will discuss the challenges faced by the state and federal education reform initiatives they have proposed. 

Governor Ed Rendell C’65, HON’00

Congressman Chaka Fattah MGA’86

• Government: Policy-Making to a Better Educational Future
• Business Ventures: How Education Social Enterprises are Transforming Education
• Education Policy Research: Finding Data-Driven Solutions
• Law: How Legal Advocacy Can Ensure All Students Have Access to a Quality Education
• School and District Leadership: Lessons from the Trenches of Education Reform
• Non-Profits: Transforming Education

by Jenny Chung C’12

2012 Edward V. Sparer Symposium

According to Kossen, such initiatives as youth leadership councils are valuable because they provide outlets for youth to discuss issues of relevance to them. “It’s important to give youth opportunities to speak out…to reach out to marginalized youth with social media…and to [help them develop] decision-making capabilities with regard to all the programs and policies that impact them,” she said.

In addition to stressing the importance of teaching youth to “advocate for themselves,” Fosu exhorted lawyers and activists who hope to champion the interests of at-risk youth to “stay true to the cause, believe and always challenge.”

“All of us can advocate for issues, and we’re all responsible to each other to voice them,” Akallo added. “We can say ‘our Congressmen can do this,’ but individually we also have to contribute to change within our own communities.”

Keynote Address – Rachel Lloyd, GEMS

Rachel Lloyd, Founder and Executive Director of GEMS: Girls Educational & Mentoring Services

The panel was followed by a keynote address delivered by Rachel Lloyd, Founder and Executive Director of GEMS: Girls Educational & Mentoring Services. Based in New York City, GEMS is now the nation’s largest organization offering direct services and outreach to victims of sexual exploitation and trafficking. In 2008, the organization contributed to the passage of the New York Safe Harbor Act for Exploited Children, which ended the criminalization of trafficking victims.

“We’re more of a youth empowerment/gender-based violence organization than an anti-trafficking one,” Lloyd said, highlighting the need to view trafficking “as part of other systemic issues affecting youth.”

Evoking her experiences working with adult women emerging from the sex industry in 1997, Lloyd recalled “meeting 12- and 13-year-olds told to lie [about their ages] by their pimps, held in adult correctional jails.”

Underage victims of sex trafficking in the United States continued to be regarded as prostitutes rather than victims, she said, even after the Trafficking Victims Protection Act—which acknowledged the victimization of non-U.S. citizens exclusively—came into law in 2000.

“Over the years our biggest fight has been to ensure the recognition of victimization happening to girls in this country as the same thing happening to girls in Ukraine, Thailand [and] Cambodia,” Lloyd said. “13- and 14-year-old girls were arrested and charged with prostitution they couldn’t legally consent to—it doesn’t make legal or moral sense.”

Affirming the importance of “survivor leadership,” Lloyd spoke to the necessity of trafficking survivors coming to the forefront and developing expertise in the issues that concern them.

According to Lloyd, since the passage of the Safe Harbor Act in New York—designating it the first state in the country to “protect, not prosecute children for an act of prostitution they couldn’t even legally consent to”—nine other states have passed Safe Harbor legislation.

“I’m really proud of the work we did in Albany, not only because we changed state law, but because girls whose voices had been continually silenced were the ones who changed that law and are now affecting the history of the country,” she said. “I believe in the next five years we’ll see that law in every state, shifting the paradigm of seeing young people as victims, not criminals.”

In light of the fact that many GEMS clients came out of the child welfare system, Lloyd argued that system reform must be incorporated into the anti-trafficking movement.
“Histories of trauma and sexual abuse are so interwoven, only addressing criminal justice issues is insufficient,” she explained. “We must talk about systemic issues and root causes.”
Addressing the media spotlight currently trained on trafficking and the “momentum” generated as a result, Lloyd advocated the prioritization of “long-term systemic change” above immediate “rescue.” 

“We’re challenging the idea that you can rescue children—rescue is such a short-term solution,” she said. “We have to be focused on empowerment, economic independence and developing leadership and strength among youth."

By Linda Wang C’12

Khaled Abou El Fadl, UCLA School of Law

By Kai Syuen Loh C’15

This year’s Public Interest Week Honorary Fellow-in-Residence Marcia Greenberger C’67, L’70 shined a spotlight on women’s rights during her keynote address at Penn Law’s Silverman Hall on the evening of Wednesday, March 14.

In response to an audience member’s question on her biggest worry in the “entrepreneurial” aspects of advocacy, she said it was “the serious state of education decline.”

Nicole Greenstein C'14

On Wednesday, February 1, the Penn Law Women’s Association held its annual dinner at the Sheraton University City Hotel, drawing out a record-breaking crowd of over 180 students, faculty, attorneys, and alumni. In keeping with the Penn Law Women’s Association tradition, the event attracted women from across the legal spectrum — from first year students to seasoned attorneys. Participants enjoyed a cocktail reception, followed by an elegant dinner in the Ben Franklin Ballroom with a speech by the keynote speaker, Marjorie Margolies. 

Margolies shared stories from her varied and distinguished career as an Emmy Award-winning journalist, United States Congresswoman, and Founder and President of Women’s Campaign International (WCI)— a non-profit agency that works in emerging democracies to empower women to actively participate in public advocacy and political processes.

Courtesy of Penn News

Neuroscience, with its brain scans and complex molecular pathways, may seem to have little in common with the law — except perhaps a penchant for obscure Latin phrases. But a collection of students and faculty at the University of Pennsylvania are bridging the gap with the Law and Brain Student Group and an accompanying lecture series.

“Neuroscience is something that can impact almost every single action of humans,” said Gabriel Lázaro L'13, the group’s organizer and a law student at Penn. “From arts to criminal acts, it’s just telling you information about how we process everything we do.”

Begun in 2009 by former law student Benjamin Bumann L'11, the group and lecture series have continued under the guidance of Lázaro, who is now in his second year of Penn's joint J.D./Master of Bioethics program. Lázaro came to Penn Law directly after finishing his Ph.D. in neuroscience, working under researcher Joseph LeDoux at New York University. There he studied how memories of traumatic events are shaped in a brain region called the amygdala and how responses to objects or events that recalled these traumas could be altered.

Partway through his science degree, however, he felt a pull to apply what he was learning in his studies in a broader contest.

“I loved the lab but wanted to go to law school,” Lázaro said. “I’ve always been interested in the law and the policy behind science, health and mental health.”

When selecting a law program, he found the resources of Penn Law, with its joint degree program and Center for Neuroscience and Society, appealing.

“Penn is a great place to integrate if you’re interested in policy and science development and neuroscience specifically,” he said.

The debates that can emerge from such integration are numerous. How the brain influences behavior could alter society’s notion of “free will” and judgment of whether and how someone should be punished for their actions. Research that uncovers what the brain looks like when a person lies could help judges and juries determine whether to trust testimonies. And as neuroscience advances, the law will need to keep pace to help society navigate quandaries that may arise with innovations such as neuromarketing, cognitive-enhancing drugs and memory-blocking techniques.

So far, there are relatively few applications of cutting-edge neuroscience research in the legal arena, Lázaro said. Those that do exist are controversial.

One example is functional MRIs, a type of brain scan that tracks blood flow in the brain and is thought to indicate areas of brain activity. Some research suggests that the scans could show whether someone is lying or even whether a criminal possesses neural deficiencies associated with being a psychopath. Still, there is much debate over whether these scientific techniques are reliable enough to serve as evidence of guilt or innocence.

That’s what makes bringing together experts in both law and science so valuable, Lázaro said.

“When you get into each of the fields, you start seeing the intricacies, concerns and doubts. As an academic, you begin to question how much you trust and how you can determine whether or not you have good data.”

The Law and Brain lectures draw a range of attendees, from law professors to medical students.

“All of this makes for a great debate,” Lázaro said. “These are scholarly discussions at their best, but what we’re talking about can impact what happens when we leave the room as well. I’m all for being practical and applying what we learn.”

In the most recent lecture, held March 15, Rita Goldstein, a scientist at Brookhaven National Laboratory, spoke about the legal and societal implications of viewing addiction as a brain disorder.

The final talk of the lecture series for the academic year will be held on April 19 featuring Paul Glimcher, a Penn alumnus and researcher at New York University, who will discuss how neurobiological findings may influence politics and economics. The series included Owen Jones, who holds the New York Alumni Chancellor's Chair in Law at Vanderbilt Law School and is director of the MacArthur Foundation Research Network on Law and Neuroscience, speaking about the neuroscience of punishment decisions; Adam Kolber, Professor of Lawat Brooklyn Law School on the privacy of thoughts and feelings; and Oliver Goodenough, Professor of Law at Vermont Law School and Faculty Fellow at Harvard's Berkman Center for Internet & Society, on neuroscience, law, and institutional design.

The talks, which are open to the public, are held Thursdays from 4:30 to 6 p.m. Each is followed by a reception, sponsored by the Law School’s Dean’s Speaker Fund. Additional information, including the location of each talk, is available at the Law and Brain Student Group Web site.

Kateryna Brezitska C’14

On February 22, the Penn Law National Security Society, the Office of International Programs, and the Student Affairs Speakers Fund co-hosted an address at the Law School by Dr. Marwan Muasher, a former Deputy Prime Minister of Jordan, World Bank official, and currently a vice president at the Carnegie Endowment.

Further, Muasher made it clear that economic reform must precede political reform. “Once we put bread on the table, people will make wiser choices.” He said that in the past, the bread before freedom argument meant in many cases that neither bread nor freedom was had. One solution he proposed is education reform. Although there has been a great amount of monetary contribution towards education in the Middle East, the money has not been put in the right areas. “People talk about education as the quantity of education like putting computers to schools or talk about technical aspects of education like wanting to improve scores on international tests.”

From Monday, March 12 through Friday, March 16 the Toll Public Interest Center (TPIC) at Penn Law will host the Fourth Annual Public Interest Week, a series of workshops, conferences, and events which will explore pressing issues in pro bono and public interest lawyering. This year’s theme is: “Abundant Justice: Leveraging Our Collective Resources for Maximum Impact.”

• A public interest practice area fair and reception;
• A panel discussion on access to counsel in PA death penalty cases;
• A discussion on civil rights in prisons;
• A screening of the film A Question of Integrity: Politics, Ethics, and the Supreme Court and discussion immediately following on issues of conflict of interest and impartiality of SCOTUS judges;
• A workshop for students on how to thrive as a public interest lawyer;
• A discussion on minority youth in the juvenile justice system;
• A panel discussion on advocating for consumers in the regulatory context;
• A workshop on the nuts-and-bolts of post-graduate public interest fellowships;
• The week will end with the fourth annual Penn Law Public Interest Alumni Dinner, bringing current students together with the legal professionals in whose footsteps they hope to follow.

From April 2-5 the University of Pennsylvania Law School will celebrate the formal opening of Golkin Hall, a state-of-the-art building that completes Penn Law’s magnificent and physically integrated campus and embodies its distinctive vision for an interdisciplinary legal education. The Hon. Sonia Sotomayor, Associate Justice of the Supreme Court of the United States, will participate in the Dedication Convocation on April 5, which includes a conversation on the law with the Law School and wider Penn communities.

High resolution images for media:
Golkin Hall Sansom Street Exterior
Golkin Hall Sansom Street with Center City skyline
Golkin Hall Berylson Family Lobby
Photo from green roof overlooking Courtyard

The convocation and conversation with Justice Sotomayor is the culmination of a week-long series of special events at the Law School. These will include celebrations as well as faculty and distinguished alumni panels examining trends in the future of legal education and how law guides America’s social, political and economic future and responds to multiple global challenges.

Perry Golkin, W'74, WG'74, L'78 and Donna Golkin, WG'77 accept Dean Fitts' (far left) appreciation for their lead gift and inspiring support for Golkin Hall project.

"With the completion of Golkin Hall, our complex redefines the law school campus as a connected and collaborative space that encourages the integration of people and programs,” said Michael A. Fitts, Dean of Penn Law. “Golkin Hall symbolizes and furthers our vision of the role of lawyers in society today and in the future: not only as problem solvers, but as managers and leaders who can move seamlessly across fields. Penn Law embodies this ongoing integration of the law with related disciplines, as evidenced by our partnerships with schools and departments across Penn, and with other universities and institutions around the world.”

Fitts added: "The formal opening of Golkin Hall is also a testament to the extraordinary generosity and dedication of our many alumni who contributed their time and resources to help make this project such a great success."

The building, named in honor of Perry Golkin, W'74, WG'74, L'78 and Donna Golkin, WG'77, the lead donors to the project, is located on Sansom Street in West Philadelphia. The project broke ground in May 2010 and cost approximately $33.5 million, all donor supported; Penn Law did not borrow for construction. The building is 40,000 square feet and features an inviting two-story lobby leading to a two-story west wing and a three-story east wing. Designed by architects at the Boston-based firm Kennedy & Violich Architecture, Golkin Hall features roof-top gardens and green roofs, a state-of-the-art court room, and 350-seat auditorium.

Faculty, students, staff, and visitors enter from Sansom Street into Golkin’s lobby to spectacular views of the Penn Law courtyard, an essential element in the social and intellectual life of the Law School.

The Berylson Family Lobby facing the Courtyard.

The completion of Golkin Hall entirely connects Penn Law’s four buildings that include Silverman Hall, Penn Law's signature, 110-year-old Georgian-style building, Tanenbaum Hall, and Gittis Hall. It does so while respecting the historical three-story row homes that make up the scenic and trendy Restaurant Row across Sansom Street. The end result is a façade that is well-situated in its neighborhood surroundings and welcomes the University community and public to Penn Law.

The refurbishing of Penn’s Law’s campus responds to nearly 50 percent growth in Penn Law’s faculty during Fitts’ tenure as Dean, with stellar appointments in corporate law and finance, intellectual property, international law, and science and technology. In addition, since 2000 Penn Law has expanded its cross-disciplinary curriculum, launching nearly 30 joint- or dual-degree and certificate programs with the preeminent schools and graduate departments at Penn, while infusing course work with the scholarship and training of its increasingly interdisciplinary faculty.

As a result, Penn Law graduates develop the knowledge, skills, and insights necessary to successfully navigate the fields in which they and their clients operate, in the U.S. and globally.

For more information about the Golkin Hall celebrations and the event with Justice Sotomayor, please visit the Golkin Hall Dedication Week website. Additional details about the event with Justice Sotomayor will be announced in the coming days.

 Click below to take a virtual tour of Golkin Hall!

In Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis, Matthew Adler (Oxford University Press), Leon Meltzer Professor of Law at Penn Law, systematically examines how to integrate considerations of equality and fair distribution into government policy analysis. In the book provides a rigorous and comprehensive defense of the “social welfare function” arguing particularly for a “prioritarian” social welfare function: one that gives greater weight to well-being changes affecting worse-off individuals. In doing so, the book draws on many literatures: in theoretical economics, applied economics, philosophy, and law.

Professor Adler sat down with Penn Law's Communications Department to talk more about his book. 

Transcript:

I’m Matthew Adler, the Leon Meltzer Professor at University of Pennsylvania Law School. The book, which just came out is Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis. Basically, what it tries to talk about in a systematic way is how to do policy analysis in a manner that is sensitive not just to total costs and benefits but to fair distribution - to equality.

Cost-benefit analysis is a technique that has been used a lot. It is used by the U.S. government, it’s used increasingly by other governments, to think about policies and regulations. But cost-benefit analysis itself is not sensitive to distribution; it simply looks at total costs and benefits as opposed to looking at how those are distributed across the population.

So, what the book is trying to do is to think systematically about how incorporate these considerations of distribution into cost benefit analysis. And it does that using something called the social welfare function. Which is an idea has been around for a while in scholarship, various bodies of scholarship, which talk about talk about this idea of the social welfare function. But what this book tries to do is to bring together economics, philosophy, and the law… to try to provide sort of a synthetic, comprehensive, elaboration of this idea of the social welfare function as a way to think about policy making so as to be sensitive to distribution.

This transcript was edited for length.

By Cordelia Meserow C’14

On February 14 students and faculty members gathered in the Law School’s Gittis Hall for a symposium focusing on the latest book by Penn Law Professor Stephanos Bibas, The Machinery of Criminal Justice. Symposium participants included Richard A. Bierschbach, an associate law professor at the Cardozo School at Yeshiva University; Paul Robinson, the Colin S. Diver Professor of Law at Penn Law; Stephen P. Garvey, a law professor from Cornell University; and Matthew Adler, the Leon Meltzer Professor of Law at Penn Law, who served as moderator.   

The Machinery of Criminal Justice analyzes key problems with the American criminal justice system, and in the book Bibas explores the difficulties in meting out effective punishment, and how to re-integrate victims, defendants, and local community back into the overall process.

 By Anna Pan C’14

On February 15, an alumnus of Penn Law, Leo E. Strine, Jr. L’88, Chancellor of the Delaware Court of Chancery, addressed students, faculty, and jurists in Penn Law’s Levy Conference Center to take on the issue of judicial restraint versus judicial activism. His speech, titled “Regular Order as Equity,” was hosted by the Law School’s Institute for Law & Economics (ILE) as part of their annual Distinguished Jurist lecture series.

Chancellor Strine, an adjunct professor at the Law School, Harvard and Vanderbilt Law, joined the Court as Vice Chancellor in 1998 at the age of 34, and was named Chancellor last June. The Delaware Court of Chancery is recognized as the world’s preeminent forum for business and corporate law and dispute resolution.

Strine began his address with a wry explanation of why he believed ILE should change its name.

Strine then shifted topics, speaking in favor of the “judicial mindset that favors regular order over the episodic judicial grant of exemptions from required procedural expectations and the need to secure contractual runs at the bargaining table,” he said.

Strine noted that while judges use “imperfect tools,” he asserted “we have to try to provide justice equitably” by using such methods as standards of review and principles of interpretation “consistently in like cases, and to avoid deviating from them when political pressures or other factors create a temptation for one-off situational departures.”

By adhering to regular order, Strine said, “the judiciary does the most equity, because it upholds the reasonable expectations of citizens in a society governed under law that accords a high level of procedural due process, and that now enables all its citizens a fair opportunity” to participate in a democracy.

Equity emerged in the law, he explained, “as a gap-filler to do justice in a world of unevolved institutions, and where not all people were treated the same way in similar circumstances.” And it continues to play “a vital role as a gap-filler and as a key default protection in relationships where one party is given broad discretionary authority over the property and rights of others,” Strine said.

Chancellor Leo E. Strine, Jr. L'88

But, he argued, an “equitable impulse” is not license for judges to impose personal views of what the “right” outcome in cases should be, “thereby [enabling] litigants who have failed to follow procedural rules or to obtain the contract they wanted at the bargaining table, to get a result from a court that is at odds with what regular order would have produced.”

Moving into the realm of civil procedure, Strine noted, “I do not grasp the equity of excusing litigants from compliance with the rules.”

Prof. Randall Kennedy

Randall Kennedy, a leading scholar of civil liberties and race relations law and an award-winning author, has been appointed Penn Law’s inaugural Raymond Pace and Sadie Tanner Mossell Alexander ED’18, GR’21, L’27 Visiting Professor of Civil Rights for the 2012 spring semester. Kennedy currently holds the Michael R. Klein Professor of Law at Harvard Law School, where he teaches courses on contracts, freedom of expression, and the regulation of race relations. 

Kennedy writes for a wide range of scholarly and general interest publications, and his recent books include Persistence of the Color Line: Racial Politics and the Obama Presidency (2011); Sellout: The Politics of Racial Betrayal (2008), and Interracial Intimacies: Sex, Marriage, Identity and Adoption (2003). His book Race, Crime and the Law was the recipient of the Robert F. Kennedy Book Award in 1998.

"We are delighted to welcome Randall, a celebrated scholar and gifted teacher, to the Law School as the first incumbent of this important professorship,” said Michael A. Fitts, Dean of Penn Law. “The Chair serves as a critical means by which we can educate the next generation of lawyers about civil rights law in America. In addition, it will serve to contribute within and outside the legal academy to the comprehensive study and discussion about ways we can combat discrimination in any form.”

"I am deeply honored to contribute to the legacy of the Alexanders, activist jurists whom I have long admired,” Kennedy said.

Kennedy sits on the editorial boards of The Nation, Dissent, and The American Prospect, and is a member of the American Law Institute, the American Academy of Arts and Sciences, and the American Philosophical Association.   

Kennedy earned his A.B. from Princeton University and a J.D. from Yale Law School. Prior to joining Harvard’s law faculty in 1984, he served as a law clerk for Judge J. Skelly Wright of the U.S. Court of Appeals and for Justice Thurgood Marshall of the U.S. Supreme Court.

Sadie T.M. Alexander ED'18, GR'21, L'27 and Raymond Pace Alexander W'20

Sadie Tanner Mossell Alexander was the first African American in the U.S. to earn a Ph.D. in economics and, in 1927, the first African American woman to graduate from Penn Law. Her exceptional career included service to President Harry Truman as a member of his President's Committee on Civil Rights, as well as her active role in the creation of the Philadelphia Commission on Human Rights and her work as its first commissioner.   

Her husband, Raymond Pace Alexander, was appointed the first African-American judge on the Philadelphia Court of Common Pleas; one of his decisions led to the establishment of Community Legal Services. He and his wife played key roles in Pennsylvania's 1935 Equal Rights Law, making it illegal to deny African-Americans access to public schools, restaurants and hotels.

The Chair was established at Penn Law through an initial gift from the Alexander estate in 1993, and through the involvement of the Alexanders' daughters, Dr. Rae Alexander-Minter GR’81, who played a pivotal role over the years in leading fundraising efforts, and Mary B. Cannaday. The Chair has been co-funded by the Law School, Penn, and through a grant by the Pennsylvania Department of Education and a gift from the law firm Duane Morris. In addition, in 1994 Penn Law’s Black Law Students Association (BLSA) established a Sadie Tanner Mossell Alexander Committee and each year since then has hosted an annual dinner and conference to support fundraising for the Chair as well as celebrate the Alexanders’ lives and legacy. In total, more than 350 donors, including individual alumni, students, and faculty, as well as alumni groups, student groups, law firms, and corporations, have contributed to the establishment of the professorship.

Penn Law is actively seeking a permanent incumbent for the Chair.

By Jenny Chung C’12

On Feb. 16 renowned, author, academic, and political leader Michael Ignatieff was the speaker for Penn Law’s annual Owen J. Roberts Memorial Lecture series, delivering an address in Levy Conference Center titled “Standing in Law and Standing in Politics: The Rules That Determine Who Gets Heard.”

In his opening remarks, the Law School’s Dean Michael A. Fitts ranked the Roberts lecture series, now in its 50^th year, among the “grandest traditions” of Penn Law. The series had initially been launched in honor of the memory of alumnus and former Dean Owen J. Roberts, who served as a Depression-era Supreme Court Justice before returning to the Law School in the capacity of a professor.

Naming Roberts an “epitome” of the Penn Law ideal on account of his dual commitment to academia and public service, Fitts commended Ignatieff—author, professor and former leader of Canada’s Liberal party—for his contributions to liberal thought as a public intellectual and humanist, noting Ignatieff’s “[embodiment of] the virtues of Owen J. Roberts.”

Ignatieff started his lecture with a discussion of “standing” in the domains of both law and politics. Within the former, he noted, standing determines whether an individual has the right to be heard in a court of law. Political standing, by contrast, governs the right to vote and the right to seek public office.

“The enduring point of contention in standing cases is whether an individual’s or group’s right of access to the law is to be sacrificed on the altar of legal restraint, or whether judicial restraint is to be sacrificed in the name of equal protection,” Ignatieff explained, adding that “when we move from law into politics, a similar conflict emerges between using law to ensure that elections are free and using it to ensure that standing is equal.”

To Ignatieff, the ongoing debate over whether legal mechanisms should be deployed to ensure parity of standing between parties is reflective of broader disagreement surrounding “the balance between democracy’s conflicting principles.” 

Identifying the establishment of standing as the “critical condition for electability,” Ignatieff proceeded to examine how, due to the erosion of political allegiances among voters, candidates are now compelled to “battle for standing in a profession that has more power but less authority, legitimacy and respect than ever.”

He attributed the modern voter’s mistrust of political candidates to the “decay of institutions” that had once equipped candidates with “validation, testimonials, endorsements and other ritual conferrals of standing.”

Moreover, because voters now support candidates strictly on the basis of individual preference rather than along ethnic, gender or occupational lines, Ignatieff said, they have begun to “value their common identity as citizens less” and to vote less frequently as a result.

The ascendancy of the individualistic electorate has also led to the substitution of “micro-targeting to individuals” for “policy, platform and vision for the country’s future”—which, according to Ignatieff, once formed “an essential element” of politics.

He further explained that in order to conduct an effective campaign and acquire standing in the eyes of voters, candidates must rely on “paid professionals who wage campaigns against each other for commercial gain,” resulting in the professionalization of politics and the conversion of wealth into political clout. 

However, Ignatieff pointed out that a well-financed campaign alone may not be enough to gain voter approval. The principal determinant of standing remains, in fact, the candidate’s ability to affirm his “belonging” to the community he seeks to represent.

For this reason, he said, standing is not an “entitlement” reserved for the highest bidder, but remains “a privilege to be accorded by citizens”—in keeping with the founding principles of democracy, which posit that “the right to rule must be earned in the trust and confidence of ordinary citizens.”
 
Shifting his focus to a related issue in the political arena, Ignatieff observed that the battle for standing has rendered competition for public office a “war” based on the vilification of one’s opponent rather than a “debate” centered on “vision, platform and ideas.”

Ignatieff concluded by advocating the restoration of a “politics of adversaries” in place of the prevailing “politics of enemies” and the substitution of a “politics of program” for the current “politics of standing.”

“If standing becomes the only question in politics, none of the essential questions a society has to solve will get decided in elections,” he said. “Elections will become plebiscites of standing while the real questions—who do we want to be as a people, what challenges must we solve together—will not be decided by the people.”

Well known for his work as a human rights advocate of Western intervention in the prevention of genocide, Ignatieff had earlier served as Director of the Carr Center for Human Rights Policy at Harvard’s Kennedy School of Government before his entry into Canadian politics as a member of the House of Commons, Liberal party leader, and as a candidate for Prime Minister. He is now Senior Resident at Massey College, University of Toronto, where he teaches courses in political science as well as law.

According to Dean Fitts, Ignatieff’s return to academia signaled his having “come full circle” in much the same way Roberts had decades prior. “Michael resembles Roberts in his commitment to scholarship, to legal education and to civic leadership,” he said as part of his introduction. “His fascinating career has redefined what it means to be a public citizen.”

By Jenny Chung C'12

Members of the Penn Law community convened this month for the Latin American Law Students Association’s (LALSA) annual conference, titled “Beyond the 2010 Census: Harnessing the Power of the Latino Community.” Inspired by the national dialogue in the wake of the 2010 census on the influence and potential of the growing Latino population, this year’s conference examined how the expansion of the Hispanic community can be converted into a political and economic force. 

The keynote address was delivered by Raul A. Reyes, an attorney and columnist who writes on issues relevant to the Latino community. A third-generation Mexican-American, Reyes’ work has explored—among countless other topics—how the question of racial and ethnic identity has impacted Latinos in the U.S. and the harsh realities faced by Latino youth. 

Reyes opened by extending his condolences to Thomas A. Saenz, President and General Counsel of the Mexican-American Legal Defense and Educational Fund, who was unable to deliver the keynote due to a death in the family. “Saenz is a role model of mine—he was involved in some of the most important civil rights legislation over the years and numerous cases in immigrants’ rights, education, employment and voting rights,” Reyes said, naming Saenz a “true Hispanic hero.”

He proceeded to enumerate and evaluate the challenges Latinos continue to confront within the current political system. “Due to demographics and the digital age, the Latino electorate have matured faster than the parties and candidates realize,” Reyes said. “But they’re still using moves from old playbooks because they don’t get us.”

According to Reyes, the prevailing conception of the Latino constituency as a “sleeping giant” is wildly inaccurate. “Pundits would wonder when we were going to ‘wake up’…my parents have been voting all their lives,” Reyes observed. He added that one of the “first” and “proudest” acts performed by recent immigrants is that of registering to vote. “We’ve never been ‘sleeping’—just overlooked until the numbers finally made that impossible.”

Due to the relative youth of the Latino population and its inclusion of a body of undocumented residents, Reyes said, many would-be members of the Latino electorate are ineligible to vote. Nevertheless, he maintained, demographics have heightened the importance of Latino voters in each successive election.

According to Reyes, twelve million Latinos will vote in the 2012 election, marking a twenty-five percent increase since 2008. Further, because swing states often have sizeable Latino populations, he said, “Latino voters could well determine who is the next occupant of the White House.”

In spite of such incentives to engage Hispanic voters, however, politicians have not yet begun to practice effective methods of “Hispanic outreach.” Such attempts, Reyes said, currently entail little more than translating campaign websites into Spanish—“overlooking the fact that Latinos are statistically the least likely group to have a home computer”—and airing commercials on Univision and Telemundo. Because the core viewers of both channels tend to be recent immigrants who cannot vote, he explained, the advertisements are unsuccessful.

Reyes emphasized the necessity for politicians to acknowledge the existence of two distinct Hispanic communities: the immigrant community, consisting of new arrivals and first-generation Americans, and the “more assimilated” community. “The latter group is the target for political parties, but they’re sending messages and resources to the immigrant market,” he said. “Until this distinction is recognized they’re going to continue to struggle to reach Latino voters.”

In Reyes’ view, it is likewise imperative that politicians cease to view illegal immigration as the issue of foremost concern to Latino voters, who—like other Americans—are most invested in jobs, the economy and education.

“What concerns Latinos most is our 11 percent unemployment rate, higher than the national average,” Reyes said. “Latinos were disproportionately affected by the foreclosure crisis, hardest hit in the recession and slowest to recover, and have dropout rates triple those of whites and double those of African-Americans…but the major political parties still think a major Latino issue is immigration.”

He also pointed out that, contrary to beliefs held by the political establishment, Latinos are no longer ethnic voters who invariably gravitate toward Latino candidates.

Reyes named Latina magazine as a compelling model of how best to engage a broad cross-section of the Latino community. With three million subscribers to its print edition and over one million monthly page views, Reyes said, Latina offers “a case study political parties should examine because it shows it is indeed possible to address and engage with Hispanics on a national level.”

He further identified social media as a necessary but as yet absent component of the Latino community’s relation to the political structure and an optimal way to reach young Latino voters. “Only when we’ve made voting an integral part of our civic lives—that’s when we’re truly going to advance,” Reyes said, concluding the keynote by challenging his audience to register non-voters.

The first of the day’s two panels, Growing Tomorrow’s Economy: Understanding the Latino Impact on the Marketplace, featured authorities in fields ranging from commerce to consumer advocacy. The next panel, 2012: Capturing the Latino Vote, followed with a discussion between experts in marketing, politics and political science concerning potential approaches by which the influence of the Latino constituency can be mobilized in the upcoming presidential election. 

By Jenny Chung C'12

Panelists at the Journal of Constitutional Law Symposium convened Jan. 20 explored constitutional law lessons derived from the New Deal and their relevance to the Obama administration.

According to JCL Editor-in-Chief Vivian Lee L’12, who delivered opening remarks, the Symposium aimed not only to advance dialogue within the discipline of constitutional law scholarship but also to showcase the “best work from the brightest scholars” in the field.

Penn Law Dean Michael A. Fitts further characterized the New Deal as a “transformative Constitutional moment,” reflective of an “obvious connection” between doctrinal issues of Supreme Court decision-making and events occurring beyond the Court’s chambers. The Symposium, Fitts said, addressed a topic both “amazingly timely” and “academically important.”

The first of the day’s panels centered on the court-packing plan proposed by President Franklin Roosevelt and its influence on present-day perceptions of the three branches of government and the separation of powers they collectively enforce.

Texas Southern University School of Law Professor Craig Jackson, who acted as panel moderator, opened discussion by remarking on the significant theoretical development occurring within the period in question, which—like the present—had confronted a range of economic and social pressures.

The panel commenced with University of Virginia School of Law Professor Barry Cushman’s critique of Supreme Power: Franklin Roosevelt vs. The Supreme Court, authored by historian Jeff Shesol and named a 2010 New York Times Notable Book of the Year.

Cushman explained that any history of the court-packing controversy intends to answer three questions: how to understand the “political story,” or trajectory of the plan; how to understand the “legal story,” or constitutional landscape that confronted New Deal reformers; and how to articulate the relation between both narratives.

While Cushman commended Shesol’s rendering of the “political story,” in his view the author’s attempts to answer the second and third questions were less successful.
Shesol’s treatment of the topic, according to Cushman, overlooks the fact that doctrine was frequently employed by Justices to fulfill ideological and class ends.

Additionally, Cushman said, Shesol’s misunderstanding of legal doctrine resulted in his misconstruing certain court decisions and contributed to his failure to illustrate the relationship between the legal and political narratives at hand. “Shesol does not assess the salient causal elements and possibilities […] he instead tries to place potentially relevant factors on the table but doesn’t integrate them into comprehensive accounts,” Cushman concluded. “He never finds firm middle ground on which to stand.”

Cushman was followed by Professor Laura Cisneros of the Golden Gate University School of Law, who examined the legacy of the court-packing plan and its effects on institutional power arrangements with reference to the plan’s use and significance as a rhetorical tool.

Among the plan’s effects, Cisneros asserted, were the realigned balance of power among the branches, the reassertion of Congressional power vis-à-vis the President and the formation of factions within the Democratic party.

Though the term “rhetoric” has suffered a “serious decline in popular perception”— given its suggestion of “deceit [and the] dishonest use of language”—she maintains that this perception is “incomplete,” given the value of rhetorical orientation.

“Understanding a writer’s perception of experience provides insight into their basis for knowing what they know,” she explained. “What we see as reality is shaped by the words we use, and what we say is a product of how we say it.”

To Cisneros, the court-packing plan’s sustaining significance is representational: specifically, it functions as a trope signifying “institutional hegemony and governmental hubris and excess.” Close-reading both concurring and dissenting Supreme Court opinions to bolster her claims, Cisneros establishes the role of the court-packing plan’s language as a reminder to the public that judicial independence remains a vital component of the system of government and as a confirmation of the integrity of the separation of powers.

NYU School of Law Professor Deborah Malamud concluded the panel by addressing the New Deal’s “social and cultural radicalism,” its “preservative role” with regard to existing class structures and “resonance” with the current administration’s policy decisions.

In adjudicated cases of the New Deal involving the exercise of judicial power, Malamud said, “it is convincing that it made a big difference that the legal work done by the New Deal administration and the soundness of the litigation strategy made a big difference in what was rejected or accepted.” Adding that the above constitute “powerful internalist arguments” and stressing the importance of “[taking] seriously the phenomenology of the feeling of constraint by doctrine,” she explained that the “struggle with the question of doctrinal constraint was inconsistent with a purely externalist account.”

Malamud subsequently affirmed the necessity of attending to the Court’s own perception of the political and economic exigencies of the time in which the Justices lived, as decisions made under the conditions of “perceived exigency” acquire “precedential value.”

“Justices are called upon to understand the needs of the day,” she said, inviting the audience to contemplate how this condition influences the “positions taken by key Justices.” 

After a break for lunch following the first panel, Symposium attendees and participants reconvened for an interview featuring Jeff Shesol, conducted by Jeffrey Toobin for C-SPAN’s Book TV.

When asked about the impetus governing his authorship of Supreme Power, Shesol replied that he had consistently been “drawn to stories of conflict,” and the court-packing crisis may arguably be the “greatest constitutional conflict” of the age. “Institutions and individuals [were] fighting for great stakes,” he reflected.

Shesol recounted each stage of the conflict between Roosevelt and the Supreme Court, which had “struck down the centerpieces of the New Deal […] in short succession.”

“The real question was whether FDR [could] get anything fundamental done because the Supreme Court was standing in the way of everything,” he recalled.

The oldest Court in U.S. history, Roosevelt’s Court was known popularly as the “nine old men” and, according to Shesol, still subscribed to the spirit of the 19^th century on many issues. “Justices were scrambling in favor of doctrines thought dead for decades [and] applying them with vigor to New Deal cases,” Shesol explained.

Though the prospect of amending the Constitution had greater currency than that of court-packing, FDR rejected the former notion as he was convinced that the “problem” can be traced to the group of Justices as opposed to any inherent contradiction between the Constitution and the New Deal.

Despite playing out decades ago, Shesol said, the court-packing conflict is not without relevance to present-day issues. “It raises the question of whether the Court is a political institution and whether public pressure should exercise any influence on [its practices]—the perennial question in American public life,” he explained.

“The Court had taken itself out of the mainstream of American thought and was standing in the way of what a lot of Americans felt had to be done; it had allowed itself to fall out of step, and there was a sharp public counterreaction which had an effect on the Court itself and its decisions.”

The Penn Program on Documentaries and the Law, directed by Professor Regina Austin L'73, combines the study and production of documentary videos with legal education at Penn Law. The Program exposes students to the use and analysis of law-genre documentaries and how they are used within the legal academy, while they learn about legal issues that are involved in making documentaries and explore the uses of nonfiction film as a tool of legal advocacy.

Recent student videos have included a complex and balanced account of violence against Asian immigrant students at South Philadelphia High School and the ensuing civil rights case brought by the U.S. Department of Justice against the Philadelphia School District; a look into the legal and social implications of gambling in the black community; an exploration of the “Ban the Box” ordinance in Philadelphia that bars employers from inquiring about the criminal histories or doing background checks of job applicants until after the initial interview; and a documentary about the impact of incarceration on motherhood and the challenges pregnant woman face while confined in jails and prisons.
 
Professor Austin recently spoke with the Penn Law's Office of Communications to discuss the uniqueness of the Penn Program on Documentaries and the Law.

On January 18, the U.S. Supreme Court heard argument for Vartelas v. Holder to decide whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which strips lawful permanent residents convicted of a crime the right to travel abroad with the guarantee of reentry, should be applied retroactively to a green-card holder who pleaded guilty to an offense prior to 1996 and traveled abroad thereafter.

Stephanos Bibas, a professor at the University of Pennsylvania Law School and the director of Penn Law’s Supreme Court Legal Clinic, argued the case for Panagis Vartelas, a citizen of Greece and a lawful permanent resident of the United States since 1989, who was detained at New York’s Kennedy Airport in 2003 upon returning from a family visit overseas. Mr. Vartelas, a Queens businessman, pleaded guilty in 1994 to a U.S. court in a counterfeiting case – a crime that at the time wasn’t cause for deportation if he left the country and attempted reentry. However, when the IIRIRA was passed in 1996, it made even minor cases cause for deportation and was to be applied retroactively.

For more information on Vartelas v. Holder and links to opinions and briefs filed in the case, see SCOTUSblog.

In the first full year of operation RegBlog, a student-edited website sponsored by the Penn Program on Regulation (PPR) at Penn Law, has attracted leading scholars, government officials, analysts, and business executives to become the leading daily online source for news, analysis, and opinion of regulatory matters.

• Professor Anita Allen’s argument about the virtues of certain kinds of government-mandated privacy
• Professor Theodore Ruger’s analysis of preemption issues raised by recent vaccine injury litigation
• Professor David Skeel’s commentary on the challenges of implementing the Dodd Frank Act.

RegBlog posts have been cited in the Wall Street Journal, the Washington Post, Houston Chronicle, Bloomberg BusinessWeek, Yale Law Journal, Florida Law Journal, Google Finance, Open Congress, and many other outlets and publications.

Throughout 2011 Penn Law faculty and students alike continued to engage the most critical legal issues of the day. Our research, classes and programs demonstrated vibrancy and impact by taking on issues facing the nation and the world. From cross-disciplinary scholarship to testifying on Capitol Hill to programs taking faculty and students to every corner of the globe, Penn Law’s intellectual and programmatic expansion reflected the Law School’s physical expansion into the new Golkin Hall.

·      New Allen Book explores the need for privacy protections in an overexposed world

·      JIL Symposium on Middle East democratization: "No turning back"

·      Robert and Jane Toll Give Additional $2.5 Million for Penn Law's Public Interest Programs

·      Penn Program on Regulation Hosts DC Workshop on Open Government

·      Elisabet Wenzlaff LLM'82, Volvo's General Counsel and Senior Vice President, on the LLM Experience

Recent University of Pennsylvania Law School graduates Marsha Chien L’10 and Jesse Krohn L’11 and current Penn Law student Kristin Bochicchio L’12 are the recipients of national fellowships which will support their work in public service.

Marsha Chien and Jesse Krohn are among the Class of 2012 Skadden Fellows, which are awarded each year by the Skadden Fellowship Foundation “in recognition of the dire need for greater funding for graduating law students who wish to devote their professional lives to providing legal services to the poor (including the working poor), the elderly, the homeless and the disabled, as well as those deprived of their civil or human rights,” according to the Foundation.

The 2012 Class of Skadden Fellows includes 28 graduating law students and judicial clerks from around the U.S., including Penn Law alumnae Chien and Krohn, who will be supported in creating their own projects at sponsoring public interest organizations.

In addition, Kristin Bochicchio has been named a 2012 Equal Justice Works Fellow, a two-year fellowship program wherein Fellows design “unique projects that serve and address a range of legal issues, including domestic violence, homelessness, community economic development, immigration, civil rights, juvenile justice, employment rights, health care, consumer fraud, and environmental justice,” according to the organization. Equal Justice Works matches Fellows and their sponsoring public interest organizations with funding to support their projects.

Marsha Chien L’10	Marsha Chien L’10 will serve as a Skadden Fellow at the Legal Aid Society-Employment Law Center in San Francisco. Her project involves direct representation, community education and impact litigation for limited-English proficient (LEP) workers barred from equal employment opportunities. Before law school, Chien was a Peace Corps Volunteer in Guatemala. In law school, she was a Penn Law Toll Public Interest Scholar and during law school worked with Friends of Farmworkers, California Rural Legal Assistance, Penn Law’s Transnational Clinic, and co-directed both the Penn Law Immigrant Rights Project and Employment Advocacy Project. She is currently clerking for the Hon. Marsha J. Pechman in the Western District of Washington.
Jesse Krohn L’11	Jesse Krohn L’11 will serve as a Skadden Fellow at Philadelphia Legal Assistance. She will be providing direct representation to indigent teen parents on matters of child support and custody, protection from abuse, and access to public benefits, in order to enable them to reach their educational and professional goals. Krohn is a former Teach for America teacher in Philadelphia. As a law student Krohn was a Penn Law Toll Public Interest Scholar and during law school she worked with the National Women’s Law Center, the Education Law Center, and the Penn Law Custody and Support Assistance Clinic pro bono project, where she supervised other students and began her relationship with the organization that will host her project. She is currently clerking for the Hon. Ellen L. Hollander in the United States District Court for the District of Maryland.
Kristin Bochicchio L ‘12	Kristin Bochicchio L ‘12 will serve as the BP/ Arnold & Porter Equal Justice Works Fellow at the Tahirih Justice Center in Houston, Texas. She will be providing representation and outreach to African and Middle Eastern women and girls fleeing gender-based violence. While in law school, she worked as co-director of Penn Law’s Students Against Gender-Based Exploitation pro bono project, represented an Iraqi refugee living in Jordan through the Iraqi Refugee Assistance Project, and received an International Summer Human Rights Fellowship to intern at the Gender Research & Advocacy Project of the Legal Assistance Centre in Namibia. A dual JD/MA student, Bochiccio is currently finishing a Masters in French law at Sciences Po (L'Institut d'études politiques) in Paris.

Among the Class of 2011 Skadden Fellows are Sheerine Alemzadeh L’11 and Amy Laura Cahn L’09, who are currently pursuing their Fellowship-supported public interest projects at the Chicago Alliance Against Sexual Exploitation, and the Public Interest Law Center in Philadelphia, respectively.

Two Penn Law alumnae are currently completing the second year of their EJW Fellowships: Eliana Kaimowitz L’07 is working with the California Rural Legal Assistance Foundation; and Charlotte Whitmore L’08 is working with the Pennsylvania Innocence Project.

More information about the Skadden Fellowship and the Equal Justice Works Fellowship is available online.

By Jenny Chung C'12

Claire Finkelstein, Jens Ohlin, Ambassador Thomas Graham, Daphne Eviatar and Kevin Govern

On Wednesday, November 30 the Institute for Law and Philosophy (ILP) of the University of Pennsylvania Law School hosted a panel discussion on the “Ethical and Legal Dimensions of Targeted Killing,” drawing an audience of faculty, students, and members of the public, and which brought to light a “sea change” in modern conceptions of war and national security policy.

Moderated by Claire Finkelstein, an ILP co-director and Algernon Biddle Professor of Law and Professor of Philosophy, the panel brought together four prominent authorities in the fields of international and criminal law, national security policy, military ethics, and human rights.

Finkelstein opened by highlighting both the timeliness and relevance of discussing military ethics as an issue with which both the Obama and Bush administrations have grappled in combating terrorism.

She noted the “enormous sea change” the nation has undergone in recent decades concerning “fundamental conceptions related to war [and] the traditional distinction between combatants and civilians.” In addition, because the notion of sovereignty now plays a decreasingly important role in terms of identifying enemy threats to the country, Finkelstein said, important issues have emerged surrounding “how we think about the relationship between U.S. military action in the fight for security and the civilian-combatant divide.”

Finkelstein also identified the expansion of executive authority in the wake of 9/11 as another ideological shift. “We have according to many policymakers and lawyers been in a protracted state of emergency since 9/11—in times of emergency, the executive branch is conceived of as having broader powers,” she said. “What do we make of a state of emergency with no beginning, middle or end in sight?”

The panel commenced with a question on whether the Obama administration’s current use of targeted killing can be considered ethically or legally problematic.

Jens Ohlin, Associate Professor at Cornell University Law School and expert in international humanitarian law, criminal law and international law, asserted that the Obama administration has demonstrated “remarkable restraint” in carrying out targeted killings.

“I’m convinced [that] under international humanitarian law if civilians are participating in hostilities they can be targeted,” he said, adding that this approach has served as a “guiding principle” to the administration.

Claire Finkelstein, Jens Ohlin and Ambassador Thomas Graham

Ambassador Thomas Graham, Special Representative of the President for Arms Control, Non-Proliferation, and Disarmament (1994-1997), emphasized that the acceptability and legality of targeted killings and the drone technology used in such operations depend largely on whether or not they occur in a war zone.

“Using targeting killing drones in struggle against the Taliban is a legitimate part of military action,” he explained. “The use of military weapons like drones in Yemen, far removed from any war zone, is problematic.”

Senior Associate at the Law and Security Program of Human Rights First Daphne Eviatar contended that the methods adopted by the current administration are not lawful.

“It’s not clear that the admin is targeting only belligerents because of the secrecy surrounding the program,” she said. “The administration doesn’t even acknowledge it has a CIA drone program, which conducts the bulk of its strikes. We don’t know who they’re targeting, why, or the extent of civilian casualties because it’s not recorded—there’s a murky view of what’s going on.”

Ave Maria School of Law Associate Professor Kevin Govern, who specializes in military ethics and military law, expressed confidence that “adequate legal oversight” is exercised and argued that the perception of killing occurring more often than capture is mere “speculation confirmed by rumor and innuendo.”

The question that followed concerned who could permissibly targeted in war aside from combatants and elicited a range of responses from the panelists.

While there exists a “functional equivalence” between citizens engaging in hostilities and enemy combatants, Ohlin said, it is exceedingly difficult to identify the civilians who are directly participating in hostilities (DPH).

He suggested as a possible solution the categorical classification of individuals belonging to hierarchical nonstate groups who exercise a “continuous combat function” as combatants.

Eviatar corroborated the notion that DPH status is difficult to assess and added that targeted killings are based on intelligence that may not be altogether accurate. “Mistakes are being made all the time in that area,” she said. “More transparency on the kind of intelligence being used is important to knowing whether the right people are being targeted.”

The panelists then turned to the question of the extent of military duty to capture rather than kill in international conflicts.

According to Ohlin, while international humanitarian law dictates capture on condition of surrender, the law of armed conflict does not. “It’s a determination of what body of law applies,” he explained. “If you’re going to argue there is a duty to capture, I take it what you’re really arguing is that the law of armed conflict just doesn’t apply to the operation.”
 

Daphne Eviatar and Kevin Govern

“The Pentagon’s statistics indicate 84 to 86 percent of ongoing kill-or-capture operations involved no use of violence,” Govern said, maintaining that “elected legislators” must be trusted to perform their role as “oversight” and the military to “ensure a detailed planning process” precedes every operation.

When asked whether the targeted killings of Osama Bin Laden and Anwar al-Awlaki were legal and ethical under the principles of law and morality of war, Govern replied that as they met the four basic criteria: “military necessity, proportionality of the use of force, avoidance of unnecessary suffering and discrimination/discernment,” both were legally and ethically justified.

Eviatar contended, however, that while the Bin Laden raid is widely regarded as morally justified, “it may have been an illegal operation.” She added that “al-Awlaki was also problematic because […] there was no real indication that he was DPH and should have been subject to arrest and prosecution.”

In Graham’s view, there had never been any intention to capture Bin Laden alive, as that would have “triggered terrorist actions all over the world to get him released.” While the raid was “contrary to policy,” he nevertheless believes it was justified.

The case of al-Awlaki, however, was “very different” and due process should have taken precedence over military necessity, Graham said. “He was an American citizen killed by the U.S. government without a full trial in a country that wasn’t part of a war zone,” he explained. “I don’t think something like the al-Awlaki case should ever happen—there has to be some deference paid to the fact that we do have a Constitution.”

Additional Event Photos: Panel Discussion: Ethical and Legal Dimensions of Targeted Killing (Flickr)

The LLM program at Penn Law is a one-year, full-time advanced course of study designed for lawyers trained outside of the United States. The curriculum and cross-disciplinary perspective provide a superb legal education, and present opportunities for students to take law-related classes outside the Law School at Penn’s elite schools, departments and programs.

Elisabet Wenzlaff LLM'82, General Counsel and Senior Vice President of Volvo Car Corporation, shares her experience as an LLM student at Penn Law in this video feature.

Transcript

My name is Elisabet Wenzlaff. I’m an alumna of University of Pennsylvania. I graduated in 1982 and my current profession is that I am a corporate lawyer. I am general counsel of Volvo Car Corporation and I’m also the senior vice president there.

It was a wonderful year… I didn’t plan it so much. Of course I applied for a scholarship, but basically I wanted to go abroad or do something different, have an adventure. And you have to remember, this is a couple of years ago, it was almost 30 years ago. So I didn’t have a lot of expectations, but when I was there I realized how much it did to me, how much it broadened my mind, how much it helped me in my career, how many people I got to know, how much I benefited from it in all respects. So, it really changed my life.
 
I think it opened my eyes… that law is different in different countries, it opened my way of thinking, the way of legal thinking. I had a legal education from Sweden, where I come from. But, of course I got this other perspective – the U.S. perspective and also the international perspective. So, it did a lot to me as a person. And if it does a lot to you as a person, it does a lot for you as a lawyer.
 
I think Penn took very good care of their foreign students. They organized a lot of parties and adventures for us. It made us get to know each other and feel special. I think we were very well taken care of here, so I think contributed, at least for me, a very great year here.
 
[Prospective students] should definitely not hesitate to apply. I think they should be more open than thinking what can this do for me in my career, is this a good career step? I think they should go beyond that and think what can this do for me as a person, because, I think, that is the real benefit.

Transcript edited for length.

By Kathryn Siegel C'12

David Rudovsky introduces the guest speakers

On November 3, criminal justice practitioners Abbe Smith and Tucker Carrington convened in Gittis Hall’s Kushner Classroom to debate the value of innocence projects versus overall systemic reform. The event, titled “A House Divided: Is Justice Just for the Innocent?”, was sponsored by the Journal of Law and Social Change (JLASC), which will feature articles by both speakers on the subject in its December publication. Abbe Smith currently directs the Criminal Defense and Prisoner Advocacy Clinic at Georgetown Law School, while Tucker Carrington is the first director of the Mississippi Innocence Project at the University of Mississippi Law School. Penn’s criminal law professor David Rudovsky opened the event with introductions of Smith and Carrington before giving them the floor.

“Can you believe I’m complaining about innocence projects? I mean, for God’s sake, is nothing sacred?” Smith spoke first, commending the noble purpose of projects like Carrington’s. “I want to be clear that I believe in the work of innocence projects” in exonerating innocent people, she said.

She then continued to explain her three major arguments against them. First, she noted a sense of “self-righteousness and superiority” that pervades innocence projects, as though guilty persons are “beneath” the aid of lawyers. Second, she maintained that the focus on “factual innocence,” such as DNA exonerations, draw too hard a line between guilt and innocence. A defendant can be “not guilty” without being completely blameless, she reminds the audience.

Third, she argued that innocence project clinics in law schools divert too many resources and “ill prepare students for work in criminal law in a time of mass incarceration.” With 2.3 million Americans in prison, Smith suggested that reforming the large-scale approach to criminal justice is a more important issue than exonerating the few hundred who have been wrongly convicted. “Let’s not forget about the guilty,” she said.

Tucker Carrington

Carrington, a former student of Smith’s, then presented his rebuttal with a series of anecdotes drawn from his early work in New Orleans and later in Mississippi. He described a case in the “mean place” of New Orleans’ Jefferson parish, where his client had been convicted of homicide and jailed for 18 years. Despite evidence that proved him factually innocent, the judge and prosecutor urged Carrington and his co-counsel to strike a deal to avoid re-opening the trial. With this and other stories, Carrington points out that dishonesty, “prosecutorial misconduct, and forensic fraud” too often lead to unfair convictions.

He also directly addressed Smith’s three concerns. As far as self-righteousness on the part of innocence projects, “there is no doubt a surfeit of arrogance... but we haven’t exactly cornered the market on that,” Carrington said. Besides, he added, the systemic reforms that innocence projects also seek, such as legislative changes, would benefit both the innocent and the guilty. He also conceded the pitfalls of reliance on strictly factual innocence as a pillar of the projects’ work. But he defended his clinic at University of Mississippi Law School as an enlightening experience for students that, contrary to Smith’s claim, encourages them to understand their clients’ humanity.

To conclude, Carrington reiterated the hope and affirmation that innocence project cases provide. “[They] have captured public’s attention, imagination and conception of justice,” he said. “Something about them just touches people.”

Following their talks, Professor Rudovsky welcomed questions from the audience, beginning with two of his own. He and other listeners inquired about how innocence projects and more all-encompassing reforms could work together to affect change. While neither could answer definitively, Smith did acknowledge a certain competition between the two.

“Innocence projects are eating up funds that might be better used for criminal defense programs or death penalty resource centers,” she responded. Carrington agreed that “the innocence project hasn’t changed much of what is wrong with the system as a whole,” such as mass incarceration, “but that’s not what we bargained for anyway.”

Following the Q&A, some early prints of Smith’s and Carrington’s JLASC articles were made available to the audience, and a light reception was provided for attendees in the Great Hall.

By Nicole Greenstein C’14

Professors Lillian BeVier, Theodore Ruger and Arlen Specter

On Monday, November 21, a crowd of students and faculty convened in Penn Law’s Gittis Hall for a debate on the United States Supreme Court’s recent decision in Citizens United v. Federal Election Commission. First Amendment expert and University of Virginia Law Professor Lillian BeVier was opposite Penn Law Professor Theodore Ruger, a Constitutional law expert, and the debate was moderated by former U.S Senator Arlen Specter, an adjunct professor at the Law School.
 
Sponsored by the Penn Law Federalist Society, the event delved into the intricacies of the Supreme Court’s decision while also looking ahead at future implications that the case might have in the political environment. The majority opinion in Citizens United held that prohibition of all independent campaign contributions by corporations and unions was invalid, interpreting their campaign contribution rights to be the same as those of individual citizens.

Professor BeVier sided with the majority opinion, defending the argument that corporations should be protected by the First Amendment right to free speech. Professor Ruger took the opposing view, arguing that although corporations have certain constitutional rights, they should not enjoy the same protections as individuals.
 
BeVier took to the podium first to share the justifications behind her support for the Citizens United decision.
 
“The reaction to Citizens United has been nothing short of hysterical, which is kind of puzzling since the holding actually conforms to well-established and deeply-embedded First Amendment principles,” she said.
 
BeVier refuted critics’ view that the Citizens United case is an “apocalypse in the making” that will strip away power from the people. By giving corporations the right to spend money, BeView asserted that these corporations will then direct their advocacy to the people. With corporations informing the public of their views about which candidatesthey deem fit to run for federal office, Citizens United instead offers the public a more diverse, robust range of voices to chose from, she said.
 
“Instead of taking power away from the people, citizens united bestowed on them an opportunity previously denied to them,” BeVier explained. “Namely, the power to hear and evaluate for themselves arguments from sources previously silenced.”
 
“In my view, Citizens United got it right,” she noted at the conclusion of her speech.
 

Professor Ted Ruger

However, Ruger explained how in the past the courts have upheld necessary restrictions on such corporate speech, but with this case the Supreme Court overturned such rulings in one fell swoop.
 
“For the Court to fairly clumsily wander in with no originalist, textualist or doctrinal mandate and reconfigure fundamentally what congress did, does speak to a profound assertiveness — and even activism — on the part of the court,” Ruger asserted in summing up his argument.
 
BeVier followed up with a rebuttal, in which she argued that she does not trust Congress to regulate campaign finance. Since members of Congress know the inner workings of campaign finance reform, she expressed worry that they might use this knowledge to “extend their time in office.”
 
Although Specter was partial to Congress being a senator himself, he did acknowledge the validity to BeVier’s claim.
 
“When you say you don’t trust congress, you have a lot of company,” Specter said, adding that today’s polls show a loss of faith and confidence in the institutions of government to solve our problems. He even pointed to “the Tea Partiers and the Occupiers” as evidence that people are starting to think Congress cannot handle America’s troubles.
 
One audience member, an L’13 student who wished to remain anonymous due to his position on the Graduate and Professional Student Association, appreciated how relevant the debate was to the current state of politics in America.
 
“It is important for people to have faith in government, but the seed of our mistrust lies in corruption,” he said. “Personally I think Citizens United allowed more corruption in, so I was interested to hear the other side of the issue.”
 
Federalist Society President Daniel Pollack L’12, thought the event was a resounding success.
 
“I thought it was a great event,” he said. “I was really thankful that Professor BeVier, Professor Ruger, and Senator Specter were able to come out tonight.”

By Jenny Chung C'12

Penn Law Professor Cary Coglianese

An audience of students, faculty, and members of the public filled Penn Law’s Levy Conference Room November 19 for the 2011 Journal of Business Law Symposium, a full-day event comprised of three panels and five keynote lectures delivered by leading authorities in the fields of corporate law, financial regulation, and commerce, as well as other fields.

Organized by the Law School’s Journal of Business Law, this year’s Symposium addressed the implementation of the Dodd-Frank Act and the wider topic of consumer financial protection.

Professor Cary Coglianese’s opening remarks centered on the common ground between recent questions concerning relations between public authority and the ordering of private affairs as compared against those raised several centuries earlier at the nation’s founding.
 
“We’re considering today questions that have deep roots in American history and a core reflected in the movements of today,” he said. “The concerns underlying Occupy Wall Street’s efforts tap into a deep suspicion of power that underlies the American polity.”

He advised audience members to ask themselves how a conference organized around the issue of consumer protection five to ten years from now would assess whether the Dodd-Frank Act was successful at ending corporate abuses and, in turn, what criteria should be employed in evaluating the success of legislation intended to regulate relations between businesses and consumers.

“A gathering like [this Symposium] comes at a perfect time to look backward as well as forward and look forward to looking backward,” he added.

Wharton School of Business Professor Franklin Allen

Prof. Allen keynote address: Dodd-Frank and systemic risk

Coglianese’s introduction was followed by the Symposium’s first keynote lecture, delivered by Wharton School of Business Professor Franklin Allen, who discussed systemic risk within the framework of the Dodd-Frank Act.

According to Allen, most regulators before the financial crisis were confident that controlling the risk assumed by individual banks was sufficient to prevent crises as it forestalled the buildup of risk in the financial system. He suggested that this view is “fundamentally flawed” given its inability to account for systemic risk, which can arise from “panics, banking crises due to asset price falls, contagion [and] foreign exchange mismatches in the banking system.”

Tracing the origins of financial panics to “multiple equilibria in the banking system” which compel people to withdraw their funds from banks when they sense others are likely to withdraw—even if there exists no other rational incentive to do so—Allen posited the guarantee of all short-term debt as a possible method of ruling out such “self-fulfilling equilibria” but cautioned that this approach may entail other types of systemic risk and itself prove costly.

Allen also identified the extensive involvement of banks in real estate and too-low interest rates coupled with large foreign exchange reserves—mostly held in dollars and accumulated by central banks in Asia—as contributing factors to the crisis.

He emphasized the need to reduce global imbalances and explained that self-insurance by Asian countries through large reserves is optimal for the countries in question but “inefficient” globally. To rectify this, he suggested, a stronger Asian presence in the governance structure of the International Monetary Fund is central.

Allen also proposed that ensuring the permanence of the IMF liquidity facility may provide the solution to foreign exchange mismatches, another source of systemic risk.

“Systemic risk is a complex phenomenon and we don’t understand it well enough,” he said. “Central banks are constructed to manage crises, but those who are dissidents are screened out from the get-go—it’s important not to do that so we don’t miss things as we did in the previous crisis.”

Prof. Jacoby keynote: Regulatory innovation and the Bureau of Consumer Financial Protection

UNC School of Law Professor Melissa B. Jacoby, authority on bankruptcy and commercial law, delivered the next keynote speech on regulatory innovation and the Bureau of Consumer Financial Protection.

Jacoby opened her talk with the observation that current discussion of the Bureau’s existence “has played out in extreme terms” and “moderate discussion” of the issues is necessary.

UNC School of Law Professor Melissa B. Jacoby

While the principal objective of the bureau is to raise consumer confidence in financial markets and ensure individuals make “smart” decisions, she said, the Bureau also provides a basis for systematic assessment of the market in addition to venues for direct two-way communication with the public like online interactive forms and comment logs.

“This was a particular way to communicate with and get substantive comments back from a wide swath of the population—as confidence builds one can anticipate even more,” she said, adding that public commenting affects public perception of the Bureau “perhaps more so than voting” by providing a means of fostering a sense of inclusion.

Shifting her focus to the Dodd-Frank Act, Jacoby maintained that the passage of the bill was key to safeguarding the ability of states to protect their own citizens insofar as it enabled states to enforce their own consumer protection laws.

Citing the inability of government to “solve all problems” as justification for the Bureau, Jacoby criticized the “extreme” nature of the arguments frequently leveled against it.

“People opposed to the Bureau talk about the ‘right to be wrong,’ and it’s hard to disagree with that as a general proposition, but when people can’t internalize the consequences of their decisions we have to move beyond that,” she explained.

In her view, government has long played a role in encouraging debt, and while the state does and should be entitled to invest significant resources in subsidizing debt collection, it is imperative that “ground rules” be set.

“No one likes all aspects of the Bureau, but we need something to look across the entire market and provide a credible threat of enforcement somewhere within the system. There has to be an actor who can and will step in,” Jacoby said.

Professors David Skeel, David Reiss, Jason S. Johnston and Paul G. Mahoney

Feature panel: Consumer Protection and the Consumer Financial Protection Bureau

Moderated by Penn Law Professor David Skeel, the first panel addressed “The Project of Consumer Protection and the Consumer Financial Protection Bureau” and invoked the expertise of four distinguished legal scholars.

The panel commenced with a modern-day fable, recounted by Professor David Reiss of Brooklyn Law School, illustrating the “fundamentally irreconcilable worldviews” held by people evaluating the events leading to the subprime market crisis.

A reimagining of the age-old tale of the emperor’s new clothes, Reiss’ story involved an emperor swindled by scoundrels posing as lenders who claimed to have invented a mortgage “so insubstantial it looks burdensome to anyone too stupid to appreciate its quality.” While the entire kingdom perceived the mortgage as heavy, no one was willing to voice his opinion for fear of appearing incompetent.

The moral of the story, Reiss suggested, is that “disclosure can be insufficient to convey the complexity of certain transactions to many consumers” and that the persistence of “muddled and conflicting views about consumer protection” will result in inefficient regulation.

University of Virginia Law School Professor Jason S. Johnston then offered a preliminary critique and examination of the likely consequences of the Dodd-Frank Act’s consumer protection provisions, highlighting areas in which Dodd-Frank departs from existing law.

Prior to the subprime mortgage crisis, Johnston said, prudent consumers had adapted expectations and were reluctant to approach adjustable rate mortgages due to the risk of rates increasing. However, this changed when rates were artificially suppressed from 2001 to 2005 and the Federal Reserve actively encouraged consumers to take out adjustable rate mortgages and lauded the rise of the subprime segment.

Johnston contested the legitimacy of attributing consumer mortgage decisions to “irrational optimism,” contending that those “running national policy and the Federal Reserve especially” should be held accountable.

University of Virginia Law School Professor Jason S. Johnston

Johnston argued that Dodd-Frank fails to address the central issue of government officials and experts misrepresenting market conditions to rational consumers. “If they say low interest rates are now a permanent feature of the economy and you trust them, reading contract terms is irrational because what matters is haste,” he explained.

He added that fundamental reform is needed with regard to the role of the Federal Reserve. “Its discretion has to be limited and its powers restricted—not expanded,” he said.

Paul G. Mahoney, Dean of the University of Virginia Law School, spoke on the shift in regulatory philosophy from disclosure-based standards to restricting and shaping contracts between firms and consumers.

While the drafters of the first federal securities laws explicitly rejected the merit review approach in favor of more disclosure-based systems, enabling fully-informed investors to decide what is best for them, Mahoney explained, this strategy has eroded over time in favor of policing abusive deals.

The change in approach, he said, is reflective of a “current and powerful strand in academic thinking” which holds that individuals are subject to a range of cognitive biases that interferes with their ability to select the best financial product for them even if they are fully informed about the terms.

Mahoney criticized the idea that social welfare can be improved by suppressing consumer preferences and replacing them with those designated by technocrats, noting the “remarkable similarity between arguments that consumers are too dumb to make good decisions and those a century ago in favor of a centrally planned economy.”

While the proponents of the Consumer Financial Protection Bureau argue that the Bureau will not seek to manage financial markets but instead nudge consumers in right direction, Mahoney remains skeptical.

“Governments are not good at nudging, what they do is shove,” he said, adding that the current approach “ignores public choice theory.”

University of Virginia Law School Professor Edmund W. Kitch concluded the panel by examining the ways in which the Bureau could tackle consumer credit card debt.

According to Kitch, the simplest criterion by which to determine whether it is advisable for a consumer to borrow capital relates to whether or not the consumer has available projects which will yield a higher rate of return than the cost of capital.

“If we’re going to assume in terms of credit cards that the rate of return is 18 percent, it’s a very high rate,” Kitch said. “It’s hard to identify projects that return in excess of 18 percent a year, and if you use that standard I agree that Americans are drowning in debt.”

Given that the Bureau cannot impose an interest rate cap, the next viable alternative in Kitch’s view is extending credit only after the project for the use of the credit is evaluated and approved by an independent expert acting in the interest of the consumer to determine whether the proposed use of the credit has a reasonable return that exceeds the rate on the card.

Kitch explained that while the Bureau’s budget may be insufficient to provide this service, it could mandate that banks pay for it or outsource to firms specializing in evaluating credit extensions, which would then be evaluated and approved by the Bureau.

“This would raise the cost of providing credit cards but reduce the amount of outstanding debt,” he said, adding that “every means” of consumer credit must be covered to render this method effective. 

Founded in 1997, the Journal of Business Law publishes articles and comments on a broad range of business law topics including corporate governance, securities regulation, capital market regulation, employment law and the law of mergers and acquisitions.

Click to enlarge poster.

On Wednesday, November 30 at 4:30 p.m in Silverman 245A, Penn Law’s Institute for Law and Philosophy (ILP) will host a panel, “The Ethical and Legal Dimensions of Targeted Killing.”

Featured speakers include:

• Moderator: Claire Finkelstein, the Algernon Biddle Professor of Law and Professor of Philosophy, University of Pennsylvania School of Law
• Jens Ohlin, Associate Professor of Law, Cornell University
• Kevin Govern, Associate Professor of Law, Ave Maria School of Law
• Daphne Eviatar, Senior Associate, Law and Security Program, Human Rights First
• Ambassador Thomas Graham, Special Representative of the President for Arms Control, Non-Proliferation, and Disarmament (1994-1997)

The use of targeted killing has become a favored tool in the so-called war on terror, and the killing of Osama Bin Laden this year further solidified support for the practice, given its efficiency and swift success. Since Bin Laden, several high profile targeted killings have further increased public attention to such operations. But with increased public scrutiny has come a growing sentiment that the moral and legal justifications for targeted killing have not been sufficiently explored.

As part of the November 30 panel, speakers will examine such questions as, to what extent do we have an obligation to attempt to capture before killing terror suspects? Are some individuals on the target list civilians rather than combatants or "unlawful combatants"? Are there special problems associated with targeting American citizens, such as al-Awlaki? And if killing al-Awlaki was legitimate, would the same sort of operation be permissible on U.S. soil?

The panel is a follow-on event to a major April 2011 ILP conference, “Using Targeted Killing to Fight the War on Terror,”which convened scholars, policy makers, and practitioners to address related questions arising at the intersection of moral, political, and legal theory, just war theory, national security law, and international law, as well as criminal and constitutional law and theory.

In addition, the April conference papers have been collected in a book forthcoming from Oxford University Press, Targeted Killings: Law and Morality in an Asymmetrical World.

Seth Kreimer, Kenneth W. Gemmill Professor of Law

Seth Kreimer, the Kenneth W. Gemmill Professor of Law at the University of Pennsylvania Law School, will be awarded the Spencer L. Coxe Civil Libertarian Award by the American Civil Liberties Union of Pennsylvania for his “remarkable commitment to civil liberties in Pennsylvania and nationwide,” according to the group. The award will be presented at the 2011 Bill of Rights Celebration (ACLU) on December 15, 2011 at the Historical Society of Philadelphia.

Kreimer’s research and teaching focuses on Constitution Law and Civil Rights. His first article, Allocational Sanctions: The Problem of Negative Rights in a Positive State, set the terms for a generation of discussion of unconstitutional conditions on public benefits. His subsequent work has shaped analysis of privacy of information, abortion regulation, assisted suicide, and gay marriage. He has explored the implications of DNA testing in criminal justice, free speech on the Internet, and the dangers of abuse in the so-called “war on terror.”

During his career Kreimer has represented plaintiffs in a wide array of litigation. He served as co-counsel in Ferguson v. City of Charleston (U.S. Supreme Court 2001), establishing the right of obstetrical patients to refuse non-consensual drug testing; In Re R.B.F. (Pa. Supreme Court 2002), securing the right of gay and lesbian parents to establish families by second parent adoption; Nixon v. Commonwealth (Pa. Supreme Court 2003), challenging the constitutionality of lifetime disqualification of ex-offenders from employment; Buck v. Stankovic (M. D. Pa. 2007), enjoining denial of a marriage license to a citizen who wished to marry an undocumented non-citizen and Miller v. Mitchell (3rd Cir 2010) the first successful constitutional challenge to a prosecution of a minor for “sexting.”

In April of this year Kreimer was awarded the Law School’s inaugural Beacon Award which recognizes a faculty member’s contribution to pro bono and public interest service.

From left to right: Arlen Specter C’51, Michael A. Fitts, David Mark, the Hon. Gene E.K. Pratter.

On Tuesday, November 8 in Washington, D.C., Penn Law hosted a high-level panel attended by a standing room only audience in the National Press Club ballroom, which examined whether the branches of the federal government are able to effectively compromise to carry out the people’s business – or if instead we are headed into a state of permanent crisis, or gridlock, exacerbated by the 2012 election cycle.

Panelists included Michael A. Fitts, Dean of the Law School; Arlen Specter C’51, former U.S. Senator (D-PA) and Adjunct Professor of Law at Penn Law; and the Hon. Gene E.K. Pratter L’75, Judge for the U.S. District Court, Eastern District of Pennsylvania. David Mark, senior editor at POLITICO, served as moderator.

Participants explored whether and how in the current climate of overheated partisan rhetoric the respective branches can work effectively and compromise to solve some of the major problems facing the nation.
 

Click here to view a video and slideshow of the previous Penn Law Washington Seminar series event, "Are Superpowers Above the Law? The U.S., China, and the Future of the International Legal Order".

Anita Allen, the Henry R. Silverman Professor of Law and Professor of Philosophy at Penn Law, is an expert on privacy law, bioethics, and contemporary values, and is recognized for her scholarship about legal philosophy, women’s rights, and race relations. In her most recent book, Unpopular Privacy: What Must We Hide, Allen offers insight into the ethical and political underpinnings of public policies mandating privacies that people may be indifferent to or even despise.

Allen recently discussed her book with the Law School’s Office of Communications for this video feature.

 Transcript:

I’m Anita Allen, professor of Law and Philosophy at the University of Pennsylvania, and my new book is called Unpopular Privacy: What Must We Hide?

Unpopular Privacy is a book that has a very special mission. Most books about privacy explain why we need privacy or defend why the government should give people the option of privacy. My book takes the unusual stance of saying, OK, we want the government to protect privacy but also want people to want privacy. The book seeks to explain why it is important that we actually consider imposing privacy on society that may be enthralled by social media and other electronic devices that involve giving away or exposing ourselves to the general public.

The aim is to really assess the scholarly perspective that has been so resistant and hesitant to admit paternalistic laws into the picture. We tend to think that law should be paternalistic only when it comes to children. Well, my argument is that there is something about technology and the Internet, its complexity, its novelty, which justifies a more aggressive approach to protect people from their own lack of interest in privacy.

This book took a very long time to write. I began writing this book in the late 1990s and it took a long time to write because the world kept changing: 9/11 rewrote the terms of social life creating a need for more security, more monitoring. So, every time I thought I was about to finish this book, we would get a great cataclysm, it could be 9/11, it could be financial meltdown, and all of these things which may not obviously have to do with privacy, they actually resulted in changes in privacy laws... and so the world was not standing still.

I finally decided that the world was never going to stand still and I had to write the book. But I think the book now reflects thinking about what we need by way of privacy in a highly regulated context and we need... unfortunately, more regulations and also more personal ethics. One of the big points my book makes is that if a person is going to enjoy the kind of privacy he or she needs moving forward, we have to have law in place but also personal ethics in place that lead us to value our own privacy, and to value our own opportunities that stem from a world in which we can in fact control access to information.

This transcript was edited for length.

Professor Christopher Yoo

By Nicole Greenstein C’14

On Monday, October 24, three of the nation’s leading experts on telecommunications law and competition policy convened in the Faculty Lounge to celebrate Christopher S. Yoo, the Law School’s John H. Chestnut Professor of Law and the Director for the Center of Technology, Innovation & Competition, and his recent book, Networks in Telecommunications: Economics and Law, which he co-authored with Daniel F. Spulber. The Hon. Stephen Williams, a judge on the U.S. Court of Appeals for the D.C Circuit, Herbert Hovenkamp, the Ben and Dorothy Willie Professor of Law and History at the University of Iowa, and Howard Shelanski, a Professor of Law at Georgetown University, joined Yoo in the symposium to reflect on his groundbreaking book and its important implications for regulatory policy and the law of networks.

Speaking to a room filled with Penn Law faculty and students, moderator and Edward B. Shils Professor of Law Cary Coglianese opened the evening’s event with a few words about Yoo’s new book.

“The argument of the book,” Coglianese explained, “can be encapsulated by one sentence: ‘Markets, rather than regulators, should determine access to networks.’”
 
Coglianese continued on to say how this central theme in Networks in Telecommunications is an important one in an era where the global economy depends on telecommunications networks. He also praised Yoo for developing his argument methodically with great detail and precision, whether he was presenting an in-depth analysis of graph theory or of the law and economics of regulation.

Judge Williams agreed with Coglianese’s praise.

“I definitely want to second what Cary said about the quality of the book,” Williams said, adding that it proved to be a very illuminating read that earned one of the more “prominent places” on his bookshelves.

Williams also appreciated the book’s argument about monopolies among networks. He agreed with many of Yoo’s critiques of access mandates, adding that such requirements often cause networks to turn into “a fully regulated monopoly, which is hardly conducive to innovation or efficiency.”
 
Professor Hovenkamp took the podium next to offer his commentary on Yoo’s book.

“The thing I really like about Christopher’s book is that it's technical but very approachable,” Hovenkamp said. “It will be talked about for a long time, and I expect it to be cited many, many times in both the academic literature and the case law.”

Hovenkamp also strongly agreed with Yoo’s argument that regulations infringe too much on networks — a mistake that discourages innovation, which is a crucial component to the world of technology. Regulatory policy, Hovenkamp said, “approaches the problem with a machete rather than a scalpel, and the result is that it probably creates very significant deterrents to innovation.”

Professors Christopher Yoo, Howard Shelanksi, and Cary Coglianese

Professor Shelanski also echoed sentiments expressed by the two earlier commentators on regulation.

Poorly designed regulatory policy, Shelanski argued, “can render the whole architecture inefficient, and greatly affect forward-looking decisions about how the network will evolve.”

Although Shelanski agreed that the book serves as a cautionary tale for regulatory policy, he added that unfortunately the regulatory agencies have at times failed to pay attention to the kinds of concerns the book raises.

Professor Yoo also gave his response to the three commentators and talked about the process of writing his book at the end of the evening’s symposium.

“The goal of the book was very simple in many ways,” Yoo explained. “We never really understood how networks work. They’ve been a black box.”

In the modern world, however, the importance and influence of networks extend beyond just a black box. The book looks for new insights into the regulation of networks by delving into this “remarkably under-theorized, under-studied area.”

Yoo noted after the event that his only regret was that his co-author was unable to be part of the celebration.

For audience member Jonathan Mincer L’12, the book symposium proved to be a thought-provoking experience.

“Professor Yoo focused on the importance of understanding a system before regulating it,” he said. “On the other hand, Professor Shelanski brought up the interesting point that sometimes entrenched systems need to be changed for the common good.”

Mincer was impressed with the symposium’s commentators. “These are three luminaries in the fields of antitrust and regulation, so it was a real honor to see them,” he added.

Professor Coglianese viewed the event as a resounding success.
 
“We are very fortunate to have this great book to talk about, as well as three distinguished commentators from the fields of antitrust and regulatory policy,” he said.  “The event generated a rich and healthy discussion with significant implications for the future of technology and the Internet.”

Immediately following the Government of Haiti’s appearance tomorrow morning before the Universal Periodic Review Working Group of the United Nations Human Rights Council in Geneva, Switzerland, Professor Sarah Paoletti, the director of the University of Pennsylvania’s Transnational Human Rights Legal Clinic, will join lawyers from the Bureau des Avocats Internationaux, the Haiti-based affiliate of the Institute for Justice and Democracy in Haiti, and the Human Rights Advocacy Director of MADRE, to discuss priority recommendations stemming from the Review and strategies for successful  implementation of those recommendations in Haiti. The panel will be held in Room XX, Palais de Nations, Geneva, from 12:30 – 14:00 local time. 

In close consultation and coordination with grassroots advocates and activists in Haiti, Penn Law’s Transnational Legal Clinic contributed to a report focusing on labor rights and the rights of child domestic workers in Haiti, issues to be taken up during Haiti’s Universal Periodic Review and addressed in greater detail during a panel presentation coordinated by the Institute for Justice and Democracy in Haiti and the Bureau des Avocats Internationaux.  Haiti’s review, initially scheduled for May 2010, was postponed at the request of the Haitian government in response to the Jan. 2010 earthquake and will now close out the first full cycle of the Universal Periodic Review, a mechanism established with the creation of the UN Human Rights Council in 2006.

The submissions to Haiti’s Universal Periodic Review, Labor Rights, and Restavèk: The Persistence of Child Labor and Slavery, as well as an overarching summary report, are available for download via http://ijdh.org/projects/universal-periodic-review-upr#IJDH-BAI Reports/Analysis.

“Haiti’s UPR provides a unique opportunity to call for accountability not just from the government of Haiti but also from the international community, that has long played a direct and not always positive role in development and governance in Haiti,” said Professor Paoletti.  “In participating in the Universal Periodic Review process, Haitians – particularly women and children – suffering from violence and insecurity in the tent camps, those struggling to find sustainable employment in conditions that meet basic labor rights standards, children hungry for an education and the opportunities meaningful access to education provides, and other grassroots activists, are calling on the Government of Haiti and the international community to hear their voices and incorporate their priorities and recommendations in setting an agenda for not just rebuilding Haiti to the country it was before the earthquake, but rather in building a country that respects and promotes human rights in a sustainable and autonomous fashion.”

Penn Law is co-sponsoring this event with  Bureau des Avocats Internationaux / Institute for Justice and Democracy in Haiti, Human Rights Advocates, CUNY School of Law, Center for Gender and Refugee Studies at University of California Hastings School of Law, and MADRE.

The days of widely tolerated prejudice against Latino individuals in the United States have long passed. But in a recent paper, "Perpetuating the Marginalization of Latinos: A Collateral Consequence of the Incorporation of Immigration Law into the Criminal Justice System," University of Pennsylvania Law School Professor Yolanda Vazquez argues that crimmigration – the comingling of criminal and immigration law – has replaced overt discrimination as the modern day apparatus for extending a history of Latino exclusion, discrimination, and marginalization in this country.

Chilean Judge Juan Guzmán Tapia who prosecuted dictator Pinochet arrives at Penn this month

In October the University of Pennsylvania Law School welcomes Juan Guzmán Tapia, the distinguished Chilean judge who led the investigation and prosecution of dictator Gen. Augusto Pinochet, as one of six Penn Law Bok Visiting International Professors who will teach during the 2011-12 academic year. Guzman Tapia joins in residence fellow Bok professor Arie Reich, Dean of the Law Faculty of Bar-Ilan University and Bok Professor who arrived earlier in September.  In total, Penn Law will host six Bok VIPs during the 2011-12 academic year.

Each year Penn Law brings to Philadelphia several internationally recognized experts in international and comparative law from around the world to serve as Bok Visiting International Professors. In recent years, senior academics, jurists or professionals across a wide range of disciplines and specialties, from China, Germany, India, Japan, and Nigeria have participated in the program.

Bok professors spend several weeks at Penn Law to teach a short course to upper-level students, host a faculty seminar, and participate in Penn Law and Penn-wide activities in connection with their field of expertise. The Bok VIP program gives students access to top international experts and offers new perspectives on cutting edge issues in international and comparative law.

The 2011-2012 Bok Professors are:

Arie Reich (September 2011) Arie Reich is the Dean of the Law Faculty at Bar-Ilan University in Israel and a world renowned expert on international trade law. He pioneered the field in Israeli academia and has published some thirty academic books and articles in Israel, Europe, and North America. The University of Pennsylvania  Journal of International Law has published his work and also invited him to write the foreword (with Oren Perez) for its Winter 2005 issue. The Israeli government has appointed him as its representative to the United Nations Commission on International Trade Law and as one of its arbitrators under the Washington Treaty for the Settlement of Investment Disputes and under the Mexico-Israel Free Trade Agreement. He received his LL.B. from Bar Ilan University and his LL.M. and S.J.D. degrees from the University of Toronto Faculty of Law. Gideon Parchomovsky, the Robert G. Fuller, Jr. Professor of Law, will serve as Reich’s faculty host while at Penn Law.

Juan Guzmán Tapia (October 2011) Juan Guzmán Tapia is a distinguished Chilean law professor who gained international prominence as the judge who led the investigation and prosecution of dictator Gen. Augusto Pinochet. Judge Guzmán’s efforts to bring Pinochet to trial formed the basis for the 2008 feature-length documentary The Judge and the General. Guzmán retired from the Santiago appeals court in 2005 and is now a Professor of Procedural Law at the School of Law of the Catholic University of Santiago. He has also served as Dean at the School of Law at the Central University of Chile, where he now directs the center for human rights studies. Judge Guzmán has been honored with the Oscar Romero Award for Leadership in Service to Human Rights and the Letelier-Moffit Human Rights Award. Practice Associate Professor of Law Sarah Paoletti will serve as Guzmán’s faculty host.

Henrik Lando (January 2012) Henrik Lando is Professor of Law and Economics and the Director of the Center for Law, Economics, and Financial Institutions at the Copenhagen Business School (CBS). He is one of the leading law-and-economics scholars in Europe, writing about a wide variety of areas of the law, including contracts, torts, criminal law, and evidence, and has published extensively in interdisciplinary peer-reviewed journals. He has visited numerous universities in the United States, including the Massachusetts Institute of Technology, where was a visiting scholar in the economics department. He received his Ph.D. in economics from the University of Copenhagen. Howard Chang, the Earle Hepburn Professor of Law, will serve as Lando’s faculty host.

Joshua Getzler (January or February 2012) Joshua Getzler is a senior member of the law faculty of Oxford University, where he is a University Lecturer in Law and a Reader in Legal History as well as a Fellow at St. Hugh’s College. Since 2007, he has also been a Conjoint Professor of Law at the University of New South Wales in Sydney, Australia. He studied both law and history at the Australian National University, then earned a doctorate degree in legal history at Oxford University. His research and scholarship covers a wide range of topics: modern legal history, law and economics, contracts, equity and trusts, property theory, capital markets, and Roman law. His 2004 book, A History of Water Rights at Common Law is considered one of the leading theoretical contributions to the area of riparian rights. In 2005, Getzler won the Peter Birks Prize for Outstanding Legal Scholarship, awarded by the U.K. Society of Legal Scholars (SLS), for his book. Assistant Professor of Law Shyam Balganesh will serve as Getzler’s faculty host.

Hideki Kanda (Co-teaching course with Eric Feldman in March 2012) Hideki Kanda is Professor of Law at the University of Tokyo. His main areas of specialization include commercial law, corporate law, banking regulation, and securities regulation. He taught as a Visiting Professor of Law at the University of Chicago Law School in 1989, 1991 and 1993, and as a Visiting Professor at Harvard Law School in 1996. His corporate law book is the standard text on the subject in Japanese universities. He has written many articles in English as well as Japanese in his areas of specialization. He is widely regarded as the top corporate and securities academic in Japan. Both Edward Rock, the Saul A. Fox Distinguished Professor of Business Law, and Charles Mooney, the Charles A. Heimbold, Jr. Professor of Law, will serve as his faculty hosts.

Pratap Mehta (March 2012) Pratap Bhanu Mehta’s core research interests include political theory, constitutional law, society and politics in India, governance and political economy, and international affairs.  He has taught, studied and conducted research at many peer institutions including Harvard, Oxford, and Princeton.  Dr. Mehta also serves on many government and policy bodies in India, including the Prime Minister of India’s National Knowledge Commission and the Supreme Court appointed Committee on Regulating Indian Universities.  In addition to serving on committees Mehta has developed policy reports for organizations such as the World Bank, the United Nations Research Institute for Social Development, and the U.K. Department for International Development.  His work is widely published in both academic journals and media outlets. Shyam Balganesh will serve as Mehta’s faculty host.

Previous Bok Visiting International Professors have included Okko Behrends, Göttingen University (Germany); Armin von Bogdandy, Max Planck Institute for Comparative Public Law and International Law(Germany); Hauwa Ibrahim, Aries Law Firm (Nigeria); KP Krishnan, Secretary of the Economic Advisory Council of the Prime Minister (India); Zhaojie Li, Leading PRC scholar on China and the international legal system; Michael Stolleis, University of Frankfurt (Germany); Chenguang Wang, Tsinghua University, (China), China; Setsuo Miyazawa, Aoyama Gakuin University, ( Japan); Jean-Bernard Auby, Sciences Po (France); Michael Faure, Maastricht University (Netherlands; Gunther Frankenberg, Goethe University Frankfurt am Main (Germany); Akio Shimizu, Waseda Law School (Japan); and Michael Trebilcok, University of Toronto (Canada). 
 

By Dana Vogel
Excerpt from Penn Law Journal Fall 2011 Volume 46, Number 2

Regulations affect everything from health care to the economy and the environment to food, but it’s not always easy for lawyers and interested members of the public to find careful yet accessible analysis of regulatory issues.

RegBlog is an innovative addition to legal education, too. Building on Penn Law’s cross-disciplinary strengths, RegBlog brings together more than 30 students from the Law School and other Penn graduate programs to write, edit, and operate the blog under Coglianese’s tutelage. Students gain an opportunity to see how what they are learning in the classroom applies to live regulatory issues.

Professor Regina Austin

By Jenny Chung C’12

On Monday evening, an audience of Penn Law students, faculty and local patrons of the arts filed into International House Philadelphia’s Ibrahim Theater for a screening of the documentary Hot Coffee, followed by a panel discussion on the film and the questions it raises.

The event inaugurated the Alan Lerner Social Justice Series, which — in the spirit of social justice advocate and former Penn Law professor Alan Lerner — aims to raise awareness of critical social justice topics through the medium of film. Organized in collaboration with nonprofit First Person Arts and cosponsored by Penn Law and the American Civil Liberties Union, the series will “capture the drama of real life through art” in the interest of provoking discussion about contemporary social issues, according to First Person Arts President Vicki Solot. 

In accord with the series’ commitment to fostering public awareness of social justice concerns, Hot Coffee exposes and examines the mechanisms by which corporations seek to deny consumers access to the courtroom and perpetuate inequities within the civil justice system.

The film opens by reconstructing the infamous “McDonald’s coffee case,” in which a woman who sustained extensive third-degree burns after spilling said beverage into her lap was awarded $2.7 million in punitive damages. The case then became a rallying point for tort reform, in large part due to the perceived frivolity of the lawsuit.

Through a series of interviews featuring the jurors who had ruled in favor of the plaintiff along with her physician, attorney, and family members, the film dispels a number of popular misconceptions surrounding the case. Contrary to general assumption, the plaintiff had requested compensation only to finance medical expenses, and McDonald’s had previously faced—and ignored—over 700 complaints about burns from hot beverages.

The film proceeds to document the tort reform campaign launched in the wake of the “coffee case” by corporate interests with political clout, which succeeded both in limiting the amount plaintiffs could receive in damages and electing conservative pro-business judges to state courts. It likewise reveals the extent to which corporate contributions can influence judicial campaigns, citing the election of former Mississippi state justice Oliver Diaz as a recent example.

Following the “coffee case,” two other court cases are invoked to illustrate the shortcomings of the civil justice system: the film goes on to depict a medical malpractice case wherein the plaintiffs could not fully recover the compensation awarded in court due to state caps on damages, and concludes with a case involving a woman who had unknowingly forfeited her right to seek redress in court for sexual assault as a result of a mandatory arbitration clause in her employment contract.

Penn Law Professor Tom Baker appears in the documentary

The screening was followed by a panel discussion in which Professor Mark Rahdert of Temple University’s Beasley School of Law and Penn Law professors Regina Austin and Tom Baker expressed their views on the content and presentation of the documentary.

Rahdert characterized the film’s treatment of the McDonald’s case as an “important corrective to some serious distortion about the case put forward in the ‘90s as part of the campaign for tort reform.”

“It’s useful for us to see the complexities and realities behind it,” he said, adding that such “poster child” cases generally tend to invite oversimplification and exaggeration.

Austin’s critique of the documentary centered primarily on its failure to “leave room for the audience to own its material and conclusions,” articulating the need for audiences “to think about what these stories mean and what should follow.”

“The ‘hot coffee case’ represents the idea that personal responsibility is an important value in society,” she said. “The question is, what story goes along with ideas about personal responsibility?”

According to Baker, statistics indicate that the vast majority of those who may be entitled to a civil lawsuit opt not to sue. “Decades of social psychology research have proven that the primary way people deal with harm in our society is to lump it,” he said. He further explained that “from the legal system’s perspective, there are not many frivolous lawsuits.”

Rahdert, who affirmed this view, attributes the legitimacy of most lawsuits to the “structure of the practice of law, especially in the tort arena.”

As most plaintiffs’ cases are brought by lawyers who earn contingent fees dependent on their outcomes, he said, “the business model of the sensible attorney sifts out all but the most meritorious cases because there’s too much risk of spending time and effort and getting nothing in return.”

In Why the Law Is So Perverse, Leo Katz, Frank Carano Professor of Law, examines four fundamental features of the legal system, all of which seem to not make sense on some level and to demand explanation. Katz asserts that these perversions arise out of a cluster of logical difficulties related to multicriterial decision making. Professor Katz sat down with Penn Law's Communications Department to talk more about his book.

• Why the Law Is So Perverse: Introduction
• Why the Law Is So Perverse: Question 1
• Why the Law Is So Perverse: Question 2
• Why the Law Is So Perverse: Question 3
• Why the Law Is So Perverse: Question 4

By Nicole Greenstein C’14

Four distinguished panelists gathered in Penn Law’s Levy Conference Room on September 22 to discuss and answer questions about the previous and upcoming Supreme Court terms. Sponsored by the American Constitution Society for Law & Policy, this Supreme Court Preview and Review Panel addressed a wide array of issues ranging from health care, gun regulation and the freedom of the press.

L-R: Thomas Goldstein, Linda Greenhouse, Randy Barnett, Monica Youn, and Tobias Barrington Wolff

Speaking to a room filled with faculty, students, attorneys and community members, moderator Penn Law Professor Tobias Barrington Wolff opened the evening’s event by introducing the four panelists: Randy Barnett, Thomas Goldstein, Linda Greenhouse and Monica Youn. Each panelist started by offering a summary of their background before explaining what issues in the Supreme Court interest and concern them.

Barnett, a Carmack Waterhouse Professor of Legal Theory from Georgetown Law Center as well as a visiting professor to Penn Law, spoke about the heated debate surrounding the constitutionality of the Patient Protection and Affordable Care Act.

Barnett has written extensively about the healthcare act in Op-Ed pieces featured in newspapers such as the Washington Post and the Wall Street Journal, but he formally became involved in the case when he joined a legal team representing the National Federation of Independent Business. As a strong disbeliever in the act’s constitutionality, Barnett presented his reasons as to why he believes the act might not survive the Supreme Court’s scrutiny.

“In this case, Congress is not regulating activity. Congress is actually reaching out to mandate activity,” Barnett explained.

Barnett argued that the scope of President Obama’s health care plan extends “outside the line that the Supreme Court has previously drawn” in cases such U.S v. Lopez, which limited the power of Congress to reach inside intrastate activity, he said.

 “It’s high time for the high court to hear this case,” Barnett added.

Linda Greenhouse, a Pulitzer Prize-winning Supreme Court correspondent for the New York Times, took a different stance on the issue of healthcare. She said that Barnett’s assertions should be “taken with a grain of salt,” particularly his argument that the Supreme Court might rule Obama’s healthcare act as unconstitutional due to its unprecedented nature.

“Maybe we should have done this a long time ago, and then it wouldn’t be unprecedented,” Greenhouse countered.

Randy Barnett, Monica Youn, and Tobias Barrington Wolff

Greenhouse agreed, stating that to take someone’s private medical information and use it for marking purposes is “a pretty pressing” issue that could have sweeping effects in terms of setting a precedent on the issue of personal privacy.

Thomas Goldstein, a renowned Supreme Court advocate and founding partner of Goldstein & Russell, P.C, also spoke about the importance of future Supreme Court appointments.

“The amount of socially and politically infused cases is awesome in its scope,” Goldstein explained, citing cases involving abortion, gay rights, and other issues that polarize the American public. As a result, Supreme Court appointments have become more consequential than ever before, he said.

As the event neared its conclusion, Wolff picked a handful of questions from the audience to ask the four expert panelists. One audience member asked about the political dimension of the Court, and was wondering whether cases near a presidential race can affect the election’s outcome.

Wolff offered his own opinion to the question, stating that with the pressing issues of our current economic climate, the Court’s decisions are unlikely to alter the upcoming election. However, Wolff explained that in other elections the Supreme Court often plays a significant role.

“It is I think true, not in this election cycle but in others, that the issue of the Supreme Court and the composition of the Court moving forward with possible appointments can be a powerful issue,” Wolff explained.

For audience member Noel León L’14, the panel offered some very intriguing and insightful discussions.

“They were incredible,” she said. “They had differing opinions on the huge issues, and it was just amazing to watch these great minds speak about these important questions.”

One of the event’s organizers, Aaron Safane L’12, also thought the evening was a success.

“I thought it was tremendous, and I especially liked the debate between the panelists about healthcare,” he said. “It really shows how we can talk about events in law school that affect real life.”

A report by the representatives of the Presidential Commission for the Study of Bioethical Issues, including University of Pennsylvania Law School Professor Anita Allen and University of Pennsylvania’s President Amy Gutman, was sent to the President in conclusion to its investigation into the U.S. Public Health Service (U.S. PHS) studies done in Guatemala in the 1940s.

According to the President’s Bioethics Commission, the revelation last fall that the U.S. Public Health Service (the precursor agency to the U.S. Department of Health and Human Services) supported research on sexually transmitted diseases in Guatemala from 1946 to 1948, President Obama tasked the Bioethics Commission with two assignments: first, to oversee an investigation into the research in Guatemala that took place in the 1940s; and to seek assurances that current rules for research subjects are sufficient to protect people from harm or unethical treatment, both in the U.S. and in other countries.

Professor Anita Allen sat down with Penn Law’s Office of Communications to talk about this report and the Commission’s findings.

Transcript

Sarah Paoletti Practice Associate Professor of Law

A new study by a human rights delegation, including University of Pennsylvania Law School Professor Sarah Paoletti, is recommending that the U.S. Department of State conduct a more thorough investigation into the alleged abuses of over 400 J-1 student workers by the Hershey Company and several of its contractors.

The report was created by a delegation of human-rights and labor-law experts that includes, in addition to Professor Paoletti, Fran Ansley of the University of Tennessee College of Law; Colleen P. Breslin of Villanova University School of Law; Stephanie Luce of the City University of New York; Tsedeye Gebreselassie, staff attorney with the National Employment Law Project; Beth Lyon of Villanova University School of Law; and William Quigley of Loyola University New Orleans College of Law. The delegation found little oversight of the J-1 program by state and federal agencies, leaving space for abuse at multiple levels.

"We are extremely concerned by students’ accounts of deception, coercion, and threats from the State Department-certified sponsoring agency CETUSA (the Council for Educational Travel, USA), as well as supervisors from SHS Onsite Solutions, Inc., the employment agency that contracted with CETUSA to provide the J-1 student workers, and Exel North American Logistics, Inc., contracted by Hershey to run operations at the Hershey packing plant,” said Professor Paoletti, who directs the Transnational Legal Clinic at Penn Law. “These accounts are consistent with accounts of abuses experienced by other categories of guestworkers, compounded by the layers of contracting and subcontracting used here by the Hershey Company."

The delegation visited the seasonal workers who traveled to the United States on the J-1 Visa Summer Student Travel/Work Program at the Hershey packing plant, conducting a preliminary investigation into the workers’ claims that their living and working conditions violated international human rights standards. The workers, who launched a massive complaint and protest against the packing factory, claim their treatment not only fell short of the program’s promise as a cultural exchange opportunity, but that they were subjected to working under abusive conditions, taking home well below minimum wage after mandatory company deductions.

The report identifies a series of recommendations needed to ensure the protection and promotion of the student workers’ human rights moving forward, including suspension of all CETUSA J-1 contracts pending release of the results of the investigations; individualized assessments of the students’ claims; and ongoing monitoring. In addition, the report concludes that a larger investigation is needed for the J-1 visa program.

"The State Department, which has within its mandate to oversee the J-1 cultural and education exchange program, is not equipped to ensure student workers' conditions meet basic human rights standards under U.S. law, as well as under international law,” Paoletti said. “Those failures have contributed to the apparent violations, as alleged by the students."

To read the report in its entirety, please go to: http://www.guestworkeralliance.org/wp-content/uploads/2011/09/Human-Rights-Delegation-Report-on-Hersheys-J-1-Workers.pdf.

Excerpts from Penn Law Journal Fall 2011 Volume 46, Number 2 

The response to 9/11 produced a brief period of national unity. We focused on our common humanity rather than our differences — a way of life that prevails at Penn Law School. Many of our students experienced the worst national tragedy of their lives on 9/11. On that day, we remembered the virtues of community. It has guided us every day since.

Anita A. Allen Henry R. Silverman Professor of Law and Professor of Philosophy After the events of September 11, 2001, there was a lot of talk in the ethics community about America having been “remade” as a nation more conscious of the need for security and less smug about our moral stature in the world. In the wake of 9/11 we could better see the importance of personal values and character: for not only had a handful of men lacking a moral compass taken down major businesses and employers like Enron and WorldCom, a handful of such men took down hubs of America’s economic prowess and military might — the World Trade Center and the Pentagon. Yet the heroism on board the aircraft that crashed in the Pennsylvania countryside on 9/11, thwarting another vicious attack on Washington bespoke America’s moral core. 9/11 pulled us together, created a sense of common purpose, recommitted us to fair, open, sacrificial democracy. The tenor of our involvement in Iraq, both some of how we got there and some of what we did when we arrived, was cause for concern about American values. The election of an idealistic, young African American president in 2008 symbolized the “Yes We Can!” character and freedom to which we aspire. Ten years after 9/11, some might say we seem to be losing our way, individually and collectively. Nothing like a major anniversary to renew flagging optimism.

William Burke-White Professor of Law Former Member of the Secretary’s Policy Planning Staff, U.S. Department of State September 11 shifted the fundamental assumption on which U.S. policy had rested since the end of the Cold War. During the 1990s, the U.S. enjoyed relative security from external threats; our security could be guaranteed at our own borders. On September 11, America’s vulnerability became all too clear. Yet, unlike the threats of the Twentieth Century, new threats stemmed not from states but from amorphous, often invisible terrorist networks rooted overseas but potentially operating anywhere. In this new environment, U.S. security came to depend on the stability, effectiveness, and cooperation of other states — whether enforcing their own domestic laws, preventing the spread of weapons of mass destruction, or apprehending terrorist suspects. In the decade since 9/11, the U.S. has tested two very different models of this external assurance of American security. To oversimplify, one model has sought to transform foreign governments — forcibly if necessary — to ensure both their capacity and willingness to participate in these efforts. The second model has sought to build a global architecture of cooperation to achieve the same goal. Both models have proved to have their limitations; the decade ahead will likely see continued shifts and experimentation. But, the real danger is that while orienting our foreign policy to address the threats of 9/11, we will overlook the challenges presented by rising powers, economic statecraft, and energy security.

Howard Chang Earle Hepburn Professor of Law In the summer of 2001, ambitious plans to address the problem of illegal immigration by liberalizing access to employment-based visas appeared to be a priority on the national political agenda. With the support of both labor unions and business interests, President George W. Bush seemed poised to guide these liberalizing reforms through Congress as essential elements of comprehensive immigration reform. The terrorist attacks of September 11, however, placed these plans on hold as the public suddenly came to view immigration policy through the lens of national security concerns. Congress quickly adopted a series of restrictive amendments to our immigration laws, including expansions in the exclusion and deportation grounds related to terrorism, designed to make it more difficult for terrorists to enter and remain in the United States. Restrictionists, however, now invoke the threat of international terrorism as a reason to oppose any liberalizing reforms, and when efforts at comprehensive immigration reform resumed in 2006 and 2007, legislation that would have liberalized access to visas died in Congress. The irony is that the September 11 attacks themselves illustrate how comprehensive immigration reform would not undermine national security. Each of the hijackers who struck on September 11 entered the United States legally on non-immigrant visas; most of them used tourist visas. None of them needed or used an immigrant visa, nor did they need or use any visas for temporary workers. Thus, liberalized access to either immigration visas or visas for guest workers would not make it easier for terrorists to enter and attack, given the availability of tourist visas and other visas for temporary visitors, including those actually used by the terrorists who carried out the September 11 attacks. Yet the pall that those attacks cast over the prospects for comprehensive immigration reform lingers to this day as an unfortunate legacy of September 11.

Cary Coglianese Edward B. Shils Professor of Law and Professor of Political Science Director, Penn Program on Regulation The United States responded to the horrific attacks on September 11, 2001, by making numerous changes to its airline security regulation. Anyone who travels regularly knows of these changes, including the creation of the Transportation Security Administration (TSA), the federalization of screening personnel, and requirements for cabin door locks — not to mention new procedures for photo identification, body scans and pat-downs, and checked bag screening. For those who follow regulation, the challenges the government faced implementing these legal and administrative changes have also been familiar. It took several years before all checked baggage could be screened and still longer before domestic cargo could be inspected; to this day, cargo on international flights entering the U.S. is still not fully inspected. Despite the fact that weapons still do slip past screeners and other security vulnerabilities remain, the TSA’s screening efforts have generated lawsuits and public resistance about privacy invasions and discrimination. Ten years ago, late night comedians temporarily suspended their broadcasts following September 11th; today TSA screeners find themselves the butt of television comedy. In the immediate wake of September 11, 2001, many Americans wondered why their government had failed to guarantee their safety; the intervening decade has provided at least a partial answer by revealing the profound challenges that regulators confront when dealing with complex, dynamic problems. Regulating well is seldom easy, and although airplanes may well be safer today than ever before, the United States’ experience with security regulation in the last ten years has only revealed more clearly how challenging the regulatory task can be.

Joe Daniels L’98 President/CEO, National September 11 Memorial & Museum at the World Trade Center On the day of the 9/11 attacks I lived in lower Manhattan with my family, and I still do today. Nearly 10 years ago I witnessed an unprecedented horror as well as unequaled courage and heroism. I’m proud my neighborhood, city and nation remained resilient in the weeks, months and years that followed. After all we experienced and endured, to see how far we have come, and to be given the opportunity to play a major role, not only in the reconstruction effort, but also in honoring and remembering the nearly 3,000 victims, brings this full circle for me.

Jacques deLisle Stephen A. Cozen Professor of Law In a narrow and immediate sense, the aftermath of 9/11 was good for U.S.-China relations. In an effort to secure Beijing’s cooperation on United Nations Security Council resolutions and in anti-terrorism efforts more generally and as a consequence of the U.S.’ focus on international terrorist threats and the wars in Iraq and Afghanistan, Washington put less emphasis on issues that had been perennial sources of friction in relations with Beijing, ranging from trade to human rights. But a positive tone in U.S.- China relations is not necessarily good for the U.S.’ China-related interests, especially in the long run. Although we have become accustomed to thinking of 9/11 and terrorism emanating from strains of radical Islam as the major change in international affairs in the last decade, the rise of China is more important. The dominance of anti-terrorism in U.S. foreign policy — including the wars it spawned — since 9/11 has weakened the U.S.’ ability to address the rise of China in several ways. First, it has distracted U.S. policymakers from focusing on the consequences of China’s ascension and China’s foreign policy agenda — something which has been greatly welcomed among those in Chinese policymaking circles who see the U.S. as a potential adversary or imagine a U.S. plot to contain China’s rise. Second, the U.S.’ post-9/11 wars and other anti-terrorism expenditures have reduced the resources the U.S. has available — and, perhaps more importantly, the resources China thinks the U.S. will have available — to address and engage China’s rising military and economic clout. Third, throughout much of the decade, American military intervention in Islamic countries and the dominance of anti-terrorism agendas in U.S. engagement with Southeast Asian states diminished U.S. soft power, relative to China’s, among China’s near-neighbors — although this situation recently has improved with shifts in U.S. policy and China’s shift to a more assertive, even aggressive, stance on the South China Sea and other regional issues. Finally, the U.S.’ response to 9/11 has diminished the U.S.’ ability to press American goals to change China’s behavior. American critiques of the Chinese regime’s human rights behavior face rebuttals that invoke Abu Ghraib, Guantánamo, the erosion of civil liberties in U.S. law, and so on. And Beijing invokes U.S.-driven U.N. resolutions and the “global war on terror” to defend its measures targeting alleged “terrorists” in China’s restless Muslim northwest and even in Tibet.

Azizah al-Hibri GR’75, L’85 Professor of Law, University of Richmond Founder and President, KARAMAH: Muslim Women Lawyers for Human Rights Member, U.S. Commission on International Religious Freedom We were full of hope and inspiration. You could say these were “the Sixties” of interfaith activism. We crossed political lines. We crossed ethnic lines. We crossed social lines. We stood together and promoted religious virtues of cooperation, civility and understanding. We did this together in churches, mosques and synagogues. Nothing seemed to stop us from fulfilling the American ideal of a harmonious interfaith society… until the planes hit the skyscrapers, and everything fell apart, even our interfaith dreams. In the aftermath, the fact was lost that many Muslims died at Ground Zero along with other victims. Islam became a dirty word and all Muslims became suspect. I remember the traumatized Muslim women who sought counseling after sudden law enforcement raids on their homes in Virginia. In an art class, one of them painted a blurred red, white and blue flag. When the counselor asked why was it blurred, the woman answered: “Because of my tears.” Her friend began using paper cups and plates because she did not know when “they would come back and take us.” The raids did not uncover any troubling information, but scores of Muslims were scarred forever. Others were deeply touched by acts of kindness, like the human chain formed by their non-Muslim neighbors who surrounded a mosque to protect it from vandalism. Now that the clouds may be slowly parting, might we not reconstruct our dream of a happy and harmonious interfaith world, one that truly honors the First Amendment of our Constitution?

Howard Lesnick Jefferson B. Fordham Professor of Law Most of the economic, cultural, and political changes that have occurred in this country in the last decade - the legitimation of endless rapacity in economic life and the resulting insulation of its consequences from political redress, the pervasive militarization of foreign policy and the growing ordinariness of “wars of choice,” the largest patronage boondoggle in American history (aka the War in Iraq) , the near-total annihilation of independent journalism, disastrous turns in policy toward public education and immigration — probably would have occurred in some form had September 11, 2001, been just another day. Yet it seems hard to discount its tragic significances. Like historic assassinations, it seems a defining moment, a critical turning- point, burned into our national consciousness. Shooting an archduke, or a President may set in motion terrible things, but the act itself is all too ordinary; incinerating over 3,000 people who just happened to go to work that day is of a different order of thing. Pearl Harbor, after all, was a naval base. Speculations about causation seem beside the point. My daughter was walking across Washington Square that morning, and saw one of the towers fall. For an American, happily, that is a different order of things.

David A. Skeel S. Samuel Arsht Professor of Corporate Law The morning the Twin Towers were destroyed, I was on my way to the law school to teach (I thought) my bankruptcy class. There hadn’t been many noteworthy bankruptcies that year, but this would soon change. Enron collapsed a few weeks later, and its scandal-riddled collapse would be followed by Global Crossing, WorldCom and other companies. No one would have imagined those scandals on that unnervingly brilliant September morning, and still less would they have imagined the even greater collapses of Bear Stearns, Lehman Brothers, AIG and others seven years later. In retrospect, 9/11 stands like a line of demarcation between the old business and financial order that dated back to the 1930s, and a new order that is still emerging, even after two major pieces of legislation: the Sarbanes-Oxley Act of 2002, and the Dodd-Frank Act of 2010. It would be nice to say that 9/11 was the day that the “greed is good” ethos of the 1980s and 1990s ended, and was replaced by sensible regulation and a more nuanced perspective on markets and finance. But that wouldn’t be accurate. We aren’t there yet.

On the eve of a historic vote in Congress that will fundamentally change U.S. patent law, a new study authored by professors David Abrams and R. Polk Wagner of the University of Pennsylvania Law School finds that a rule change moving away from the current “first-to-invent” system used in America for generations to the “first-to-file” system, universally used by foreign countries, is likely to result in a drop in patents requested by and issued to small and individual inventors.

While the upcoming vote on the Hill may see the broadest set of changes to American patent Law in two generations, perhaps surprisingly virtually no empirical analysis has been conducted on the impact of the primary components of the proposed reforms, which are deeply controversial. On the one hand, opponents of the “first-to-file” system, who favor how the current U.S. law operates, argue that proposed reforms disadvantage small inventors and will lead to lower quality patents. Those in favor of moving away from “first-to-invent” – notably the Obama administration – emphasize administrative simplicity and the cost savings of “first-to-file.”

With their groundbreaking new study, Abrams and Wagner investigate the expected effects on patenting behavior of the major change in the so-called “America Invents Act of 2011” on which Congress will vote next week. The study authors looked to the experience of the last industrialized nation to switch from “first-to-invent” to “first-to-file” – Canada, which changed its law in 1989 – as a natural experiment to shed the first empirical light on the question.

Their analysis uses a “difference-in-difference framework” to estimate the impact of the change in Canadian law on that country’s small inventors. A “difference-in-difference” analysis is a research design that controls for effects other than the priority rule change. In Abrams and Wagner’s study, by comparing the observed differences in individual patenting behavior in Canada across the 1989 change in the law to differences in individual patenting behavior in the U.S. during the same time period, the authors were able to isolate the effect of the law change on individual patenting behavior in Canada.

Using data on all patents granted by the Canadian Intellectual Property Office and the U.S. Patent and Trademark Office, Abrams and Wagner find a significant drop in the fraction of patents granted to small inventors in Canada coincident with the implementation of the change over to the “first-to-file” law.

Abrams and Wagner note, however, that they found no measurable changes in patent quality. Moreover, they write, while “the net welfare impact that can be expected from a shift to first-to-file is unclear, our results do reveal that, contrary to conventional wisdom, the rule change is not free – it is likely to result in reduced patenting behavior by individual inventors.”

As background, patent priority rules establish who among competing inventors has the right to receive a patent on an invention. At first blush, Abrams and Wagner point out, this seems a remarkably simple question: the first inventor should receive the patent grant. But the situation becomes much more complex when there are multiple inventors independently working in the same area of technology; only one can receive the patent grant. And while it is simple to establish a rule wherein the first  inventor gets the patent rights, the question is, what act triggers the establishment of the rights? This, then, is the basic difference between the U.S. “first‐to‐invent” system and the “first-to-file” system used everywhere else in the world. According to current U.S. law, the first “inventor” is given the patent rights, while elsewhere the inventor who first files an application at the patent office will receive the rights.

The paper is available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1919730.

Related Links:
Wall Street Journal (subscription required), "Patent Overhaul Nears"

Dean Bernard Wolfman in a 1975 Penn Law yearbook photo

Bernard Wolfman C’46, L’48, former dean of the University of Pennsylvania Law School and the Fessenden Professor of Law, Emeritus at Harvard University, died August 20, 2011. He was 87. 

Penn Law's portrait of Dean Bernard Wolfman Artist: Richard Hurd. Date: 1975.

Gifts to Penn Law in memory of Mr. Wolfman can made online or sent by check to:

A new study commissioned by the Administrative Conference of the United States (ACUS) finds that the design and functionality of U.S. federal agencies’ websites risks pushing into the background vital information about agency rulemaking, as well as online opportunities for public comment on rules under consideration.

Cary Coglianese Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation

The study, “Federal Agency Use of Electronic Media in the Rulemaking Process,” by Cary Coglianese, a professor at the University of Pennsylvania Law School and an expert in administrative law and regulatory affairs, investigates U.S. federal agencies’ efforts to use electronic media in the rulemaking process. Given the major economic and societal impacts of rules adopted by agencies, ranging from the Environmental Protection Agency to the Federal Communications Commission, the process by which these agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation – values to which the Obama administration has stated its commitment.

Drawing on a review of current agency uses of the Internet, a systematic survey of regulatory agencies’ websites, and interviews with managers at a variety of federal regulatory agencies, Coglianese finds that while agency websites have become a virtual front door for the U.S. government, rulemaking information remains difficult to find from many agencies' homepages, even for agencies that issue many rules.  For example, only 14 percent of the most frequent rule-writing agencies contain a page that displays all the rules they have open for public comment – and only 30 percent contain a link dedicated to soliciting public comments.

Coglianese’s analysis reveals that an emerging approach to government website design focuses on giving prominence to “top tasks” sought by members of the public, such as businesses seeking licenses or filing for permits, and the proliferation of competing demands for communication makes rulemaking only one – and to some agency decision makers, perhaps a relatively minor one – of the many priorities under consideration when agency officials make decisions about the design and functionality of their websites. As such, the author recommends that agencies should create rulemaking webpages showing all rules open for comment, and that agencies should model such rulemaking webpages on those that many members of Congress have displaying legislation which they are currently sponsoring.

The findings suggest that there exist both considerable differences in how well various agencies are managing their use of electronic media as well as significant opportunities for the diffusion of best-practice innovations that some agencies have adopted.  This research also provides a basis for seven key recommendations Coglianese offers for enhancing both the accessibility and quality of rulemaking through digital technology – including that agencies should strive further to improve the accessibility of their websites to all members of the public, especially those with limited English proficiency, sight impairments, and low bandwidth Internet connections.

Continued vigilance is needed, the author writes, to ensure that agency websites and other electronic media will be as accessible to ordinary citizens as they are to repeat players in the policymaking process in Washington, D.C.

The ACUS, an independent federal agency that was shut down in 1995 but reinstated last year, commissioned Coglianese to author one of the first studies in the agency’s new era of operation.  The author, whose 2004 Administrative Law Review article “E-Rulemaking: Information Technology and Regulatory Policy” is the seminal work on the subject, is also the founder of RegBlog.org, a website sponsored by the Penn Program on Regulation that features daily news and expert analysis on regulatory affairs.

To download Coglianese’s report:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1911546
http://www.acus.gov/wp-content/uploads/downloads/2011/08/Coglianese-Report.pdf

The ACUS’s Committee on Rulemaking will hold its first meeting on this project from 2:00-5:00 pm eastern time on Wednesday, August 24, 2011 at the Conference’s offices in Washington, D.C.

Four University of Pennsylvania Law School professors have been awarded chaired professorships by the provost of the University: William Bratton, Jody Kraus, Gideon Parchomovsky, and Christopher S. Yoo. 

In Religion in Legal Thought and Practice, Howard Lesnick, Jefferson B. Fordham Professor of Law, examines moral issues in public and private life from a religious but not a devotional perspective. Rather than seeking to prove that one belief system or moral stance is right, the book guides readers to a greater understanding of the effect of religious beliefs and practices on ways of conceiving and addressing moral questions, without their having to accept or to reject a specific religious outlook. Professor Lesnick sat down with Penn Law’s Office of Communications to give a deeper look into the major themes in his book.

Penn Law (PL): Please tell us about the book.

“D&O insurance decreases corporations’ intent to be accurate and truthful in their financial statements, and discourages corporate officers from following the duty of care and duty of loyalty.”

Tom Baker Deputy Dean and William Maul Measey Professor of Law and Health Sciences

Tom Baker, the William Maul Measey Professor of Law and Health Sciences at Penn Law, researches and publishes on the subjects of insurance, risk, and responsibility using methods and perspectives drawn from across the disciplines of economics, sociology, psychology, and history. This summer he discussed his latest, groundbreaking book, Ensuring Corporate Misconduct: How Liability Insurance Undercuts Shareholder Litigation, with the Law School’s Office of Communications.

Penn Law (PL):  Please tell us a little bit about the book and your reasons for writing it.

Tom Baker (TB):  Most of my research looks at the way that insurance institutions affect legal institutions. I've done a lot of work on how insurance affects personal injury and medical malpractice litigation, and the medical malpractice debate. That research has followed a tradition of people who have studied how the law in action is different from the law on the books— and insurance in the area of liability affects law in action because insurance, in the end, pays for the liability. 

My co-author Sean Griffith and I wrote this book in large part to provide an example of what happens in a world in which you have liability on the part of a big corporation, and the litigation of securities class actions and other kinds of corporate litigation brought on behalf of shareholders— yet Directors & Officers (D&O) insurance is involved, as D&O insurance provides corporate officers financial protection if they’re sued in relation to their duties with a company. So, the idea was to figure out how insurance affects litigation in the corporate context, which hadn’t been investigated by anybody before.

People have looked at how insurance affects litigation, but no one has conducted empirical field research on the question of how insurance manages the deterrent signal set by liability. So, a deterrent signal is sent when insurance companies charge more for higher risk individuals— because paying claims is costly, when writing policies they incentivize you to behave more safely, for example, you pay less for your insurance if you have things like smoke alarms in your house and so forth. But in the corporate context, we wanted to see how insurance works as a transformer of the deterrent signal all the way from selling the insurance to the claims aspect. 

PL:  What exactly do you mean by transforming the deterrent signal in the corporate context?

TB:  Well, so much of corporate law is directed at the transparency of financial reporting, and then at the officer or the executive being the faithful servant of the corporation. In terms of liability, a CEO or corporate officers could be liable for not providing correct information to regulators or shareholders, or there could be liability for breaching the duty of loyalty or duty to care to the corporation. 

With that, no one had ever looked at this subject in a really systematic way from the starting point of selling this insurance all the way through to the managing the claim aspect, to see whether insurance does or does not kind of facilitate deterrent ideas of liability through insurance. And so we did that, as well.

What we found is D&O insurance undermines good corporate governance by reducing the consequences of bad corporate governance for the individuals involved.  The book’s title is a play on words, in that this insurance makes misconduct more possible.

Ensuring Corporate Misconduct: How Liability Insurance Undercuts Shareholder Litigation

PL:  What methodology did you employ?

TB:  We conducted interviews with people who sell the insurance, who buy the insurance, and we interviewed underwriters, risk managers, and brokers— a typical D&O policy for a large, publicly traded corporation will be a seven-figure premium, so these deals are all done through brokers. And we talked to people on the reinsurance side of this, we spoke with “pricing actuaries,” who are the people in insurance companies that set the broad parameters for how the policies are priced. 

What we were trying to figure out was, is there an effort when selling the insurance to price it according to risk? The logic being if the insurance company is going to pay when corporate officers are liable, then theoretically that takes away the prevention incentive. But if it turns out that the price of the insurance is linked or based on your “riskiness,” then that provides some incentive for a CEO or corporate officers to not engage in such risky behavior that could lead to a lawsuit. 

In sum, we went out and investigated to see whether there were any kind of loss prevention efforts made by the insurance companies when it came to D&O insurance. The answer was no, none, zero. Why? The notion that some insurance underwriter is going to tell a CEO what he or she is supposed to do when it comes to financial reporting was a concept that was literally laughable to the subjects we interviewed.

If anything, D&O insurance decreases corporations’ intent to be accurate and truthful in their financial statements, and discourages corporate officers from following the duty of care and duty of loyalty. Now, there are other things that encourage them to be careful and to be loyal, but D&O insurance reduces the deterrent’s incentive rather than increases it. In short, the way D&O insurance works is that if I’m a CEO and get sued for a shareholder’s class action, D&O pays for the lawyer, pays for the settlement— it’s not my money. 

PL:  What kind of reforms or policy recommendations do you suggest in the book?

TB:  One of our policy suggestions is that certain kinds of D&O insurance, we think, ought not to be purchased except with a very high deductible; or that when corporations buy this insurance, they should have what’s called co-insurance, which means that they are on the hook for a percentage of the loss all the way up. 

But beyond the policy implications or recommendations, for law professors and law students the value of the book is that we explain how this securities class action litigation actually operates— what makes me tick is going out and figuring out how a particular part of the world works.  I think in the long run, the book’s value will be felt most by people who are learning to be lawyers, so they understand the role of insurance in the corporate litigation context.

June 20-21, 2011
Beijing, PRC
Summit Statement

From June 20 – 21, 2011, nine American and ten Chinese Law School Deans convened a summit to discuss legal education, the role of law schools in society and in building the rule of law, and modes of collaboration among law schools to support academic and institutional goals.  The discussion was wide-ranging and both sides came away with a better understanding of each other’s goals and constraints with regard to important aspects of legal education in their respective countries.

The purpose of the summit was to begin a dialogue and in that spirit both sides herewith set forward the following statement: 

• We recognize and support the rule of law.
• We agree on the importance of promoting the integrity of the legal profession.
• Legal education is important to the functioning of society and is a vital means to design and implement the above principles.
• We recognize the important contribution of past Sino-US cooperation on legal education and reform and the value in supporting future cooperation. 

Deans on both sides agree to discuss mechanisms for future cooperation by establishing a joint committee to discuss and develop ways to move forward.

Summit between nine U.S and 10 China law deans produces statement supporting the need for expanded cooperation and ensuring the integrity of the legal process

Penn Law Dean Michael Fitts and State Councilor Liu Yandong

Following an unprecedented summit on June 20-21 in Beijing between deans from leading law schools in the U.S. and China, participants in the first Sino-U.S. Deans Summit issued a joint statement outlining shared principles, including recognition of and support for the rule of law, and the objective of establishing ongoing two-way collaboration between top U.S. and China law schools. 

The Summit focused on the present state and future needs of legal education in both countries, the role of law schools in society and in building the rule of law, and modes of collaboration among law schools to support academic and institutional goals. The deans agreed to form a working group with five deans from each side to develop new programs that will foster multilateral exchanges between law schools, and to explore new initiatives that focus on substantive areas of law such as public health, the environment, and leadership.

The U.S. deans were organized by Michael Fitts, dean of the University of Pennsylvania Law School. In addition to the Summit sessions the nine U.S. participants and their Chinese counterparts met for over an hour with State Councilor Liu Yandong, the senior China government official responsible for education and Secretary of State Hillary Clinton’s counterpart for the Sino-US People-to-People exchange. 

The Summit was convened by Fitts at the suggestion of then-U.S. ambassador to China Jon Huntsman, who saw it as an important forum for Chinese and American leaders in law and higher education to come together on the basis of shared values and interests.

The joint statement issued by the American and Chinese law deans noted that they:

• recognize and support the rule of law;
• agree on the importance of promoting the integrity of the legal profession in the U.S. and China;
• agree to discuss mechanisms for future cooperation by establishing a joint committee to discuss and develop ways to move forward.

“This was an incredibly valuable set of meetings,” said Fitts. “All of our country’s law schools have engaged in various efforts at globalization in one form or another with many countries, including China, but the size and speed of economic and legal change in China of late tests all of our experiences and thinking.   The Summit allowed us to focus on where the legal relationships with, and in, China are likely to evolve for all of our institutions over the near and far term.”

“The Summit was an important first step,” stated Wang Zhenmin, dean of Tsinghua Law School. “We look forward to building on this foundation to strengthen legal education and exchange between the United States and China as well as the rule of law and the legal profession.”

Chinese media reports highlighted the Summit’s contribution to strengthening ties between the United States and China and the importance of training legal personnel and fostering other legal cooperation projects.

During the summit the deans from China focused on ways in which legal education is able to confer both substantive knowledge of law and its implementation, as well as how it fosters analytical thinking that lawyers apply to a range of social and economic questions. They noted that China has moved to a new stage in its legal development, focused on implementation and realizing law’s meaning in society.  More than once, the Chinese side inquired about the high number of American public and private sector leaders who started out in law school.

The American deans explored the rationale for internationalization and expressed appreciation of the significance that robust global linkages have played in the rapid scale-up of law schools in China. A number of participants agreed that internationalization will be a game-changer for law schools, requiring American schools to understand law as a sociological and dynamic force as much across and beyond borders as well as within them.

Legal development in China has been robust over the past thirty years, but there remain serious concerns about insufficient protection of core civil and political rights, due process and judicial independence.  As they departed China, the US Summit participants welcomed the news that high-profile activist and artist, Ai Weiwei, was released from detention and that Hu Jia was able to return home to his wife several days later.

The U.S. law deans also met with U.S. embassy staff as well as Tung Chee Hwa, the former Chief Executive of the Hong Kong, and Gao Xiqing, the head of the China Investment Corporation (the PRC’s sovereign wealth fund).

List of China deans:

• Fu Zitang, President, Southwest University of Political Science and Law
• Ji Weidong, Shanghai Jiaotong University KoGuan Law School
• Han Dayuan, Renmin University of China Law School
• Liu Ningyuan, East China University of Political Science and Law
• Wang Zhenmin, Tsinghua Law School
• Xiao Yongping, Wuhan University Law School
• Xu Chongli, Xiamen University Law School
• Xue Gangling, Dean of Law School of Chinese University of Political Science and Law
• Yao Jianzong, Jilin University Law School
• Zhang Shouwen, Peking University Law School

List of U.S. deans:

• Evan Caminker, University of Michigan Law School
• Chris Edley, University of California, Berkeley, School of Law
• JoAnne Epps Temple University Law School
• Michael Fitts, University of Pennsylvania Law School
• Larry Kramer, Stanford University Law School
• Paul Mahoney, University of Virginia Law School
• Robert Post, Yale Law School
• Michael Schill, University of Chicago Law School
• William Treanor, Georgetown University Law Center

Stephen B. Burbank David Berger Professor for the Administration of Justice

In July, Stephen Burbank, the David Berger Professor for the Administration of Justice at Penn Law, will be a featured speaker at the Fourteenth World Congress of the International Association of Procedural Law in Heidelberg, Germany, where he will present a paper on private enforcement of statutory and administrative law, co-authored with Sean Farhang of the University of California, Berkeley, and Herbert Kritzer of the University of Minnesota.

Burbank, who serves as a general reporter for one of the main sessions in Heidelberg, spoke with the Law School’s Office of Communications about his research, differences in the use of private enforcement in the U.S. and other countries, and how procedure is used by Congress and the Supreme Court to exercise power.

Penn Law (PL):  What is the focus of your paper, and how did it come about?

Stephen Burbank (SB):  I was asked to serve as a general reporter by the IAPL conference organizers. I decided that the subject was so complex, and so clearly amenable to interdisciplinary and empirical perspectives, that I needed co-authors. Both of my co-authors are political scientists and empiricists.  It is interesting that the IAPL, which is dominated by scholars from countries that traditionally have avoided private enforcement, would devote a major session to that topic. The organizers made it clear to me that their real interest is finding out more about private enforcement in the United States.

It took a while for me to figure out what they meant by private enforcement – there is considerable fuzziness and disagreement among legal systems as to what private enforcement is. What the organizers were referring to is the so-called private attorney general rationale. In most countries from the civil law tradition, which includes most of Europe, the whole notion of private enforcement is an oxymoron because they conceive a much more formal, strict divide between what is public and what is private, and what is suitable for public regulatory activity and what is suitable for private litigation. 

In America, we don’t have that strict view of the public-private dichotomy. In the beginning of our paper, we devote considerable attention to this question of definition.  We conclude that it probably suffices to think about private enforcement of statutory and administrative law as a phenomenon that results when a legislature determines that there is an unremedied, systemic problem, and that incentives should be provided for privately- initiated litigation in place of or in addition to litigation brought by the executive branch or administrative proceedings. 

PL:  Why is this question of definition so important from a comparative perspective?

SB:  If a legislature does not define private enforcement regimes broadly, chances are that it will end up with what one commentator rather vividly described as “beautiful cars without engines.” That was a description of countries, including Italy, that have turned to something like our class action but without dealing with the problem of cost shifting. In most of the rest of the world, the loser in litigation has to pay some or all of the winner’s attorneys’ fees – the so-called “English Rule.”  That is a fairly robust deterrent of frivolous litigation, but it is also a fairly robust deterrent of litigation by those who are risk averse, who do not have the capacity to pay the other side’s attorneys’ fees if they lose. Class actions will not get off the ground unless the English Rule is relaxed (or even more radical changes in litigation finance are instituted).  

A legislature that is sincerely interested in addressing unremedied systemic problems in whole or part through private enforcement needs to consider all of the rules that could affect the willingness and ability of private parties actually to enforce the law, including the remedies that are available.

Note the emphasis on institutional choice. One of my co-authors, Sean Farhang, has done important work on private enforcement at the federal level. Searching for good indicators of congressional interest in private enforcement, he focused, very creatively, on two types of provisions. First are statutory provisions that asymmetrically authorize the award of fees to a prevailing plaintiff.  The normal rule in this country is that each side bears its own attorneys’ fees.  We use the “American Rule” as opposed to the “English Rule” that I previously mentioned and that is used almost everywhere else. The American Rule can be changed by statute, however, and Farhang thought that such provisions would be one very good indication of congressional interest in private enforcement. Second are statutory provisions authorizing multiple damages - like the Sherman Antitrust Act, which provides for treble damages - or statutory damages, which are damages that a prevailing plaintiff can receive without proof of actual damages.

PL:  And what methodology was used?

SB:  Farhang looked at all federal statutes from 1887 to 2004 that have either or both of those two types of provisions, creating a database of private enforcement regimes. He was interested in testing empirically the hypothesis that, just as Congress may seek to mitigate administrative subversion of statutory norms by writing more specific statutes, so Congress - or a legislature more generally - may want to use private enforcement, either solely or in combination with public enforcement, as a hedge against subversion of legislative preferences by an administrative agency controlled by an ideologically distant executive.

His analyses support that hypothesis, indicating that resort to these techniques of statutory fee shifting and/or multiple damages is very strongly associated with periods of divided government where one party controls Congress and the other controls the executive branch.  In addition, he did some really interesting qualitative social science focusing on the Civil Rights Act of 1964 (and associated legislation in 1976 and 1991) that also supports the hypothesis.

PL:  How else did you and your co-authors approach this topic?

SB:  Having defined the phenomenon of interest, we look to the general legal landscape that may affect both a legislative choice to use or not use private enforcement and the efficacy of a private enforcement regime. This includes the general rules on procedural steps like pleading. Pleading rules determine how specific a plaintiff has to be in order to remain in court and have access to discovery. It so happens that the U.S. Supreme Court has very recently - without admitting that it was doing it - judicially amended the rules on pleading in a way I believe will make it much harder for some plaintiffs to survive a motion to dismiss their complaints -- to get to the discovery phase where they have the opportunity to secure the information necessary to establish the defendant’s liability. That should be of general concern; from the perspective of private enforcement, the Court’s decisions make it harder for people to do what Congress wanted them to be able to do.

The rules in question went into effect in 1938. It is reasonable to assume that after a certain point -- say 1957, when the U.S. Supreme Court resoundingly approved of the system of so-called notice pleading -- every Congress that included private enforcement incentives in a statute was relying on these rules. 

Thus, it is a very broad subject because, properly viewed, it requires attention not just to the specific provisions in a statute that are indicators of the legislature’s interest in private enforcement, but to many other rules. As my comments indicate, these “other rules” include both those that are part of the general procedural landscape, like pleading, and those that are much harder to categorize, like cost shifting. Both types can determine whether private enforcement is effective. 

In the paper we provide these details about the American general landscape and some comparative information from England and Wales, Australia, and Canada. We also provide two case studies,  one dealing with federal anti-discrimination law, and the other with unfair and deceptive practices, which are largely governed by state law. Although we were not able to gain much comparative traction on private enforcement between the United States and, say, England and Wales, we do think that there are some very interesting possibilities with respect to the European Union. 

Stephen Burbank in the classroom

PL:  In what respect?

SB:  Most countries in Europe have parliamentary systems that in theory at least are immune to the institutional dynamics that are associated with private enforcement in the United States - at least at the federal level. Yet, while doing the research for this paper, it became clear that in some areas like consumer protection, antitrust, and securities much of the push for private enforcement in Europe comes about either directly or indirectly as a result of initiatives by the European Union. As a lawmaking body the EU may find private enforcement very attractive because of concerns about defection by member states. In other words, the EU may replicate the separation of powers dynamic. The EU has some direct lawmaking capacity, and it has the power to influence developments even in areas where member states retain lawmaking capacity. If a member state was not particularly anxious to protect consumers, it could subvert an EU directive to do so. 

But if you provide for private enforcement by individual consumers, you can get around that sort of defection. Thus, there is a dynamic of dispersed power given the structure of the EU, both horizontally and vertically, that may be something like what we see in our federal government. And so the EU may provide an institutional explanation for some of the interest that we’re seeing in private enforcement.

In addition, let’s face it, private enforcement is perceived to be less expensive. For France, for example, to abide by an EU directive to better protect consumers the old-fashioned way would portend the expenditure of a lot of resources on central administrative enforcement. So, it becomes very attractive, at least in the short term and on a narrow definition of costs, to use private enforcement, particularly in countries that rely on costs paid by private parties to fund their courts.

Historically in the U.S., one reason why Republicans have been willing to go along with private enforcement is that it avoids the problem of big government. One of the sociological truths about Americans is that we don’t like bureaucratic authority and we don’t like taxes. If you sincerely want effective administrative enforcement of federal law, you will need bigger administrative agencies funded, presumably, by tax dollars.

PL:  What are some of the other key findings from the paper?

SB:  Farhang’s previous work noted the puzzle, from an institutional perspective, of the judiciary’s role in private enforcement. Providing incentives for privately-initiated enforcement could be deemed another way of avoiding subversion – but only if Congress is confident about the politics of the judiciary. For example, in the early 1970s, a Democratic member of Congress was likely pleased to have judges appointed by Democratic presidents presiding over Title VII litigation, rather than having it enforced by the Equal Employment Opportunity Commission (EEOC), which was under the thumb of President Nixon.

But what if the complexion of the judiciary changes, as of course it has in this country since the 1970s, becoming more conservative? The thought might be, well, at least you have some protection because, after all, this is not judicial enforcement. In the paper we argue those who have described the phenomenon as judicial enforcement are making a mistake, because the incentives are given to private parties and their lawyers.  It imparts to the system an autopilot type of quality that provides some protection against subversion by the judiciary. 

That said, in 1991 a Democratic Congress finally became so upset with the way in which the federal judiciary was interpreting Title VII and related legislation that they enacted provisions that overruled numerous U.S. Supreme Court decisions. Previously, private litigation under Title VII had declined, and complaints to the EEOC had declined. How did Congress deal with it? By increasing the amount of money that a plaintiff could recover. Prior to 1991, you could not recover compensatory, let alone punitive, damages if you were the victim of a Title VII violation; you could only recover back pay, maybe even some front pay. Congress changed that, and guess what? Complaints and lawsuits increased. Thus, there are a variety of ways you can promote private enforcement. You can use fee shifting or raise the ante in order to provide incentives to private lawyers.

This underscores the potential of the judiciary to subvert congressional preferences through other means. That is what I think is occurring in the Court’s recent pleading decisions. It is a subtle but effective way of regulating access to courts by a judiciary that is ideologically distant from the enacting Congress. It should not come as a surprise if these decisions have a disproportionately adverse impact on civil rights litigation, and in particular, employment discrimination Litigation.

Q: What should people take away from this? 

A: This research again confirms my view that procedure is power. People who have been selling the notion that procedure is technical, that it’s “adjective law,” have been doing it largely for the purpose of ensuring that they retain power.  And for a long time they were very effective at that.

Now, Congress is in on the dirty little secret that procedure is power, which is why so often in the last 20 years we have seen major reforms accomplished not through changes in the substantive law, but through changes in procedure. When Congress could not agree, for example, on what the mental state (scienter) required for securities fraud should be - whether knowledge or recklessness - it did not make any difference. In the Private Securities Litigation Reform Act they tightened up the pleading requirements. The statute requires greater factual specificity, and it requires that the pleading raise a strong inference of whatever mental state is required. Procedure provided Congress with a way to deal with the problem of the ambiguity that resulted from inability to compromise on the substantive standard.

But the Supreme Court has known the power of procedure for a long time. The Court knew, and the Chief Justice in particular knew, that there was little chance that the Federal Rules on pleading could be amended through the process that is supposed to be used. The Enabling Act process requires, ultimately, an opportunity for Congress to review the policy choices being made, and if appropriate, to block them from becoming effective through legislation. The Court has avoided that by pretending to interpret the Rules. One of the costs of the Court’s lawlessness, I believe, is the effectiveness of private enforcement in this country.

Reposted with permission from the Oxford Law website.

Edward B. Rock L'83, Saul A. Fox Distinguished Professor of Business Law

“Judging Corporate Law” was the subject of a Law and Finance roundtable held at St Hilda’s College in June, hosted by Oxford University’s Faculty of Law and jointly organized with the University of Pennsylvania Law School.

The roundtable featured an extraordinary line-up of judges from the Delaware and English courts, including Mummery LJ (Court of Appeal), Steele CJ (Delaware Supreme Court), Lewison J (Chancery Division, High Court), Jacobs J (Delaware Supreme Court), Briggs J (Chancery Division, High Court), Chancellor Chandler (Delaware Court of Chancery), Vice Chancellor Laster (Delaware Court of Chancery), Sales J (Chancery Division, High Court), David Richards J (Chancery Division, High Court; Vice-Chancellor of the County Palatine), and Stephen Lamb (former Vice Chancellor of the Delaware Court of Chancery), together with Charles Crawshay (Deputy Director General, Takeover Panel).

The purpose of the roundtable was to consider and compare the treatment of core business/corporate law issues in the Delaware courts and the English courts. With this purpose in mind, the roundtable was divided into five sessions, two relating to aspects of directors’ duty of care, two relating to aspects of directors’ duty of loyalty, and one relating to takeover issues. For each session, two significant cases were chosen for discussion, one handed down by a Delaware court, the other by an English court. Two judges were responsible for each session: one drawn from the Delaware bench, the other from the English bench (and, for the takeovers session, from the UK Takeover Panel). The English judge in each session was asked to focus on the Delaware case, and the Delaware judge on the English case.

Each judicial discussant was asked to consider one question: if the case had been litigated in their home jurisdiction, how would it have been argued and decided? This approach focused the discussion, encouraging participants to identify the specific rules of law and procedure that would likely govern the treatment of similar facts in their home jurisdiction.

This, in turn, encouraged participants to consider not only formal differences between the two jurisdictions (such as, for example, the classification of directors’ duties, or the treatment of contractual arrangements to exclude liability for breach of duty) but also to consider the extent to which these differences were in practice likely to produce different results: that is, participants were invited to move beyond formal differences to identify functionally equivalent rules. 

This yielded a unique and extraordinarily insightful set of contributions. Other participants, including senior practitioners and academics from both the UK and US (among them, Charles Randell of Slaughter and May, Professor Ronald Gilson of Columbia Law School, Professor Edward Rock of Penn Law, Professor John Armour of the Oxford Law Faculty, and Professor David Kershaw of the LSE Department of Law), also made significant contributions to the debate. The overall result was a lively and productive exchange of ideas between the two jurisdictions.

In a video Q&A Serena Mayeri, Professor of Law at the University of Pennsylvania Law School, discusses her new book Reasoning from Race: Feminism, Law, and the Civil Rights Revolution.

Serena Mayeri: The book is called Reasoning from Race, and what I mean by that is a number of different strategies that feminists used during the 1960s and ‘70s to make the case that sex discrimination was a problem that was worthy of attention.

The most fun part of researching and writing this book was the opportunity to have access to the papers of various individuals and groups who were involved in the litigation and legislative campaigns and other advocacy efforts that I’m talking about. I looked at the papers of individuals like Pauli Murray, who is a central figure in my story - she was an African American lawyer who pioneered these race-sex analogies as the reasoning for the race strategy in the early ‘60s up through the early ’70s, which was then picked up by people like Ruth Bader Ginsburg, now a U.S. Supreme Court Justice, who litigated a lot of the sex equality cases in the 1970s.

One case that I found particularly fascinating in my research was a challenge by a young African American woman, Katie Mae Andrews, to a policy in New Orleans where the schools districts banned unwed mothers from teaching school.  Miss Andrews wanted to be a teacher and she went to a local civil rights attorney, who then collaborated with feminists at the Center for Constitutional Rights in New York. They made arguments to the federal court in Mississippi, and later took the case to the U.S. Supreme Court. 

But when it got there, the very rich intersections between race and sex and sexuality and employment and reproductive freedom were bleached out of the case. And I use this case as an example to show how, in many instances, African American women plaintiffs brought really pivotal sex equality cases to the courts, only to find that by the time they reached the Supreme Court, the really compelling aspects of their case were obscured. 

One of the things I’m trying to do in the book is to dispel what I think is the myth about 1970s feminist legal advocacy - that feminists were very focused on the concerns of white middle class women, not concerned with racial justice or with economic justice, or with the connections between reproductive freedom and economic and racial equality.

What came out of the Supreme Court was not what feminists put in, but was something much more limited – a much less capacious vision of equality than what feminists were advancing.  And I hope that my book, along a number of different dimensions, can give a richer picture of what feminists did present to the court, much of which was rejected, but is still, I think, really worthy of being exhumed.

This transcript was edited for length.

For their work on the 2010 U.S. Supreme Court Case Padilla v. Kentucky, Penn Law Professor Stephanos Bibas and Clinical Supervisor and Lecturer Yolanda Vázquez have received the 2011 Jack Wasserman Memorial Award from the American Immigration Lawyers Association (AILA). Bibas and Vázquez were among a twelve-member team of pro bono attorneys selected for excellence in litigation in the field of immigration law for their work on Padilla. Students in Penn Law’s Supreme Court Clinic, which Bibas directs, also worked on the case. The Padilla team was presented with the award on June 16, 2011 during the AILA’s Annual Conference in San Diego, CA.

The AILA recognized the Padilla team for improving the rights for immigrants in the U.S. court system by successfully arguing to the Supreme Court that “criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea.”

In announcing the award the AILA noted that in its opinion, the Supreme Court recognized that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, a result of Congress’ 1996 decision to eliminate the Attorney General's discretionary authority to cancel removal in meritorious cases. "These changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction,” Justice Stevens wrote in the Court’s opinion. “The importance of accurate legal advice for noncitizens accused of crimes has never been more important."

The AILA stated in their announcement, “The litigation team took on this pro bono case as a labor of love, and brought about a result that has transformed the landscape of the rights of immigrants in our system.”

Bibas, the Director of Penn Law’s Supreme Court Clinic and a former Assistant U.S. Attorney, is a leading scholar of criminal procedure with expertise in criminal charging, plea bargaining and sentencing. He studies the powers, incentives, information, and psychology that shape how prosecutors, defense counsel, defendants, and judges behave. Bibas has litigated a wide range of Supreme Court cases, both criminal and civil, and is writing a book (Assembly-Line Criminal Justice, Oxford, forthcoming 2011) on how criminal justice should do more to encourage acceptance of responsibility, remorse, apology, and forgiveness.

Vázquez, a former public defender in the District of Columbia and Chicago, is an expert on the intersection of immigration and criminal law and its impact on defendants, society, and the criminal justice system. Her research focuses on defense counsels’ duty to advise noncitizen defendants on the immigration consequences of a criminal conviction. Vázquez also studies the effect of the intersection of immigration and criminal law in the criminal justice system on Latinos, arguing that the incorporation of immigration law and enforcement into the criminal justice system has become the primary means to subordinate and socially marginalize Latinos living in the United States. She currently co-teaches in the Civil Practice Clinic in addition to teaching a Crimmigration seminar.

Penn Law’s Supreme Court Clinic is the nation’s first to closely integrate students’ practical experience on U.S. Supreme Court matters with a semester-long academic seminar on the workings of the Court. Students conduct research, draft briefs, and help prepare strategy; in the past two years Clinic students have worked on three Supreme Court cases that Clinic instructors argued on the merits, and many more as amici, co-counsel, or at the cert stage.

Founded in 1946, the AILA is a non-profit, national organization of over 11,000 attorneys and law professors who practice and teach immigration law. The Jack Wasserman Memorial Award was established by the AILA in 1980.

Additional members of the Padilla v. Kentucky litigation team include:

• Stephen B. Kinnaird, Paul, Hastings, Janofsky & Walker LLP, Washington, DC
• Timothy G. Arnold, Dept. of Public Advocacy, Frankfort, KY
• D. Scott Carlton, Paul, Hastings, Janofsky & Walker LLP, Los Angeles, CA
• Adam S. Cherensky, Paul, Hastings, Janofsky & Walker LLP, Los Angeles, CA
• Alexander M.R. Lyon, Paul, Hastings, Janofsky & Walker LLP, Palo Alto, CA
• Mitchell A. Mosvick, Paul, Hastings, Janofsky & Walker LLP, Washington, DC
• Richard E. Neal, U'Sellis & Kitchen, PLC, Louisville, KY
• Leeann N. Rosnick, Paul, Hastings, Janofsky & Walker LLP, Washington, DC
• Elizabeth Stevens, Orrick Herrington & Sutcliffe LLP, San Francisco, CA
• Norton Tooby , Law Offices of Norton Tooby, Oakland, CA

On Wednesday, June 15 Adam M. Finkel, Fellow and Executive Director of the Penn Program on Regulation, gave witness testimony at the House Small Business Committee's hearing, "Lifting the Weight of Regulations: Growing Jobs by Reducing Regulatory Burdens."

The hearing examined H.R. 527, the Regulatory Flexibility Improvements Act of 2011, and H.R. 585, the Small Business Size Standard Flexibility Act of 2011. According to the House Committee on Small Business, "The two bills are designed to remove loopholes in the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), and strengthen the power of the Office of the Chief Counsel for Advocacy."

Video: Adam Finkel's Opening Statement

Video: Adam Finkel Responds to Questioning by Congresswoman Renee Ellmers (R-NC)

Video: Adam Finkel Responds to Comments and Questioning by Congressman Jeff Landry (R-LA)

Video: Adam Finkel Responds to Questions from House Committee on Small Business Chairman Sam Graves (R-MO)

Watch the Complete Hearing
Additional Information About This Hearing
RegBlog: House Committee Debates Effects of Regulation on Small Business

Penn Law's business and corporate law faculty have dominated the 17th annual poll of the "Top Ten Corporate and Securities Articles of 2010," recently conducted by Corporate Practice Commentator. Articles by Professors William Bratton, Jill Fisch, Edward Rock, David Skeel, and Michael Wachter were among the top ten selected by corporate and securities law academics, which were chosen from more than 440 published and indexed in legal journals in 2010.

“Like last year, Penn Law was the first in the number of faculty publishing top ten business and corporate law articles, and I congratulate our five Penn Law professors on this achievement,” said Michael A. Fitts, Dean of Penn Law. “The Law School’s business and corporate law program is unrivaled among our peers. This latest accomplishment is indicative of our faculty’s expertise, for the benefit of Penn Law and the wider world.”

	William Bratton and co-author Michael Wachter’s article, The Case Against Shareholder Empowerment, was published by the University of Pennsylvania Law Review. Bratton, a Professor of Law and Co-Director of the Law School’s Institute for Law and Economics (ILE), is recognized internationally as a leading writer on business law. Wachter, the William B. Johnson Prof. of Law and Economics and ILE Co-Director, is a prominent cross-disciplinary scholar with current research focusing on topics of the intersection of corporate law and finance. In their article, the authors argue that empowering shareholders of public companies only enforces company management to maximize the market price of its stock. The goal to increase shareholder value was one of the major causes of the global financial crisis. In short, the authors claim shareholders seek short-term returns rather than focusing on long-term company value.
	Jill Fisch is a Professor of Law and Co-Director of ILE whose work focuses on the intersection of business and law, including the role of regulation and litigation in addressing limitations in the disciplinary power of the capital markets. Fisch and co-authors Stephen Choi and Marcel Kahan, both professors at New York University School of Law, were acknowledged for The Power of Proxy Advisors: Myth or Reality?, published by Emory Law Journal. The article focuses on the role of proxy advisors and how they influence shareholder voting outcomes.
	Edward Rock L’83, the Saul A. Fox Distinguished Professor of Business Law, writes on corporate law and corporate governance. His article, Embattled CEOs, co-authored with NYU’s Marcel Kahan in the Texas Law Review, addresses the declining power of chief executive officers of publicly-held corporations in the United States to their boards of directors and to their shareholders.
	David Skeel, the S. Samuel Arsht Professor of Corporate Law, writes on bankruptcy and corporate law and his article, Bankruptcy or bailouts?, co-authored with Kenneth Ayotte of Northwestern University School of Law for the Journal of Corporation Law, explores why bankruptcy would often be a better solution to the financial distress of large financial firms than the bailouts the government has used throughout the financial crisis. The authors highlight that although bankruptcy is not always the optimal response to financial distress, Chapter 11 is can be more effective than generally realized.

In addition, Penn Law Adjunct Professor of Law Leo Strine L'88 was selected for his article Loyalty's Core Demand: The Defining Role of Good Faith in Corporation Law for the Georgetown Law Journal, co-authored with Lawrence Hamermesh of Widener University School of Law, R. Franklin Balotti of Richards, Layton & Finger, and Jeffery Gorris of Morris, Nichols, Arsht & Tunnell, Attorneys At Law. The authors explore the role of good faith in corporate law, and question the duty of loyalty, and argue if the obligation of directors to act in good faith is a separate, free-standing fiduciary duty or a fundamental aspect of the core duty of loyalty.

On March 2 Professor Stephen Morse presented on Criminal Responsibility and Sentencing at The Raymond & Beverly Sackler U.S.A.-U.K. Scientific Forum at the Arnold and Mabel Beckman Center of the National Academies of Sciences and Engineering. The theme for the 2011 forum was "Neuroscience and the Law."

Click image to play video.

Professor Morse is introduced by Judge Gerard Lynch, U.S. Court of Appeals for the Second Circuit. His presentation begins at the 6:14 mark. Watch Professor Morse's presentation.

About Professor Stephen J. Morse
Stephen Morse, the Ferdinand Wakeman Hubbell Professor of Law and Professor of Psychology and Law in Psychiatry, is a renowned expert in criminal and mental health law who focuses on individual responsibility in criminal and civil law.

By Sean Moloney L'12

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science and Director of the Penn Program on Regulation

On his first day as President, Barack Obama announced his administration’s “commitment to creating an unprecedented level of openness in government.” Since then, the Obama Administration has implemented a major Open Government Initiative to increase transparency, participation, and collaboration across the federal government.
 
With federal agencies implementing an increasing number of open government projects, researchers and federal officials have noticed how little empirical research currently exists on transparency. As a result, they have begun to focus on developing an invigorated research agenda on transparency and its impacts. What ,exactly, are the benefits and costs of open government? How can its effects be studied empirically?

To answer these and other questions, the Penn Program on Regulation (PPR) held a workshop in Washington, D.C. last Friday. This workshop on “Assessing Open Government: Research Challenges in Evaluating Transparency” brought together over two dozen academics, government officials, and representatives from non-governmental organizations.

Edward B. Shils Professor of Law and Professor of Political Science Cary Coglianese, the workshop’s organizer and moderator, described the event as a “day of robust, interactive dialogue around a research agenda for open government.” In reflecting on the Obama Administration’s Initiative, Professor Coglianese noted that although concerns about governmental transparency date back decades and will continue for several more, the current administration has certainly heightened the salience of studying transparency.

The PPR workshop aimed to launch a collaborative research agenda from across the fields of law, social science, and information science. In the workshop’s opening sessions, participants attempted to define “open government” and develop a theory of its potential benefits and costs. Following a luncheon keynote address by Beth Noveck, the former U.S. Deputy Chief Technology Officer who led the creation of the Obama Administration’s Open Government Initiative, workshop participants discussed both the metrics and research designs that could be used to study the impacts of increased transparency.

Workshop participants agreed that the phrase “open government” encompasses a broad range of distinct, though related, policies and programs. Some of these involve releasing information retrospectively, like in Freedom of Information Act (FOIA) requests, while others proactively seek to inform members of the public so they can weigh in on pending decisions. Workshop participants seemed to agree that, for the purposes of research, the meaning of open government should ultimately be defined for each policy or program by its purpose, logic, and audience.

When it comes to assessing open government’s benefits and costs, some participants worried that although open government may reduce corruption and prevent the inefficient use of resources, it may also discourage officials from voicing important yet unpopular opinions when debating policy decisions. Others expressed concern over the time and money it takes for government to respond to FOIA requests, regardless of the value of the information requested.

Professor Anita Allen speaks at "Assessing Open Government: Research Challenges in Evaluating Transparency"

However, others asserted that transparency need not always compete with important values such as privacy, security, and efficiency. For example, it was noted that freedom of information laws have actually helped legal advocates uncover questionable governmental practices that impact individual privacy.

As Professor Coglianese said in summarizing the workshop, “The benefits of open government come with concrete costs, but conversely these costs can result in real benefits.” The challenge for researchers is to identify and measure both the intended and unintended consequences.

With respect to research metrics, participants admitted that research goals and data selection will ultimately depend on the type of open government project being evaluated. Tailoring metrics to specific projects, however, may be hampered practically by cost and regulatory barriers, such as the federal Paperwork Reduction Act.

Several workshop participants noted that advances in empirical knowledge of open government will likely depend on the accumulation of many small-scale, narrowly focused research studies, rather than on one “home run” study. Researchers also urged the use of multiple research methodologies, both qualitative and quantitative.

In his closing remarks, Professor Coglianese reflected on the many challenges illuminated by the workshop that confront researchers who seek to study open government empirically. Despite these challenges, he remained hopeful because of the many productive suggestions that emerged from the dialogue indicating that additional research is both possible and needed. 

“It is striking how little empirical research exists on governmental transparency, despite its centrality to democracy and the rule of law, two widely-studied bedrock values of good government,” he said. “Even a little more analysis of open government could go a long way.”

PPR plans to issue a follow-on report summarizing the dialogue to help further stimulate both additional open government research as well as clearer thinking about how to design effective open government policies. 

For additional coverage of the event, please visit the RegBlog website.

The University of Pennsylvania Law School has named four winners of teaching awards for the 2010-11 academic year. They are Jill Fisch (Robert A. Gorman Award for Excellence in Teaching), the Honorable Kent A. Jordan (Adjunct Teaching Award), Gideon Parchomovsky (A. Leo Levin Award for Excellence in an Introductory Course), and David Skeel (Harvey Levin Memorial Award for Teaching Excellence). In addition, Professor Sarah Barringer Gordon received the University’s Lindback Award for Distinguished Teaching.

Jill Fisch Receives the Robert A. Gorman Award for Excellence in Teaching Jill Fisch, Perry Golkin Professor of Law and Co-director of the Institute for Law and Economics, has been awarded the Robert A. Gorman Award for Excellence in Teaching. This year Professor Fisch taught classes on Corporations and Corporate Governance. Sample Student Accolades “Professor Fisch is absolutely amazing – helpful, responsive, and [she] did an amazing job of stimulating interest in the area and sharing her knowledge on a variety of corporate governance subjects.” “Almost half of every class is dedicated to discussion of the issues treated. Independent thoughts are not only encouraged but also stimulated by Professor Fisch, who is always keen to have the students see the two sides of the coin. Attending class is always enriching.” “She was very respectful of students, very reasonable in her expectations, and was very accommodating about meeting outside of class.”

Honorable Kent A. Jordan Receives the Adjunct Teaching Award Honorable Kent A. Jordan, a federal judge on the United States Court of Appeals for the Third Circuit and Adjunct Professor of Law at the University of Pennsylvania, received the Adjunct Teaching Award for his class Intellectual Property: Trademarks. Sample Student Accolades “Judge Jordan is a great professor and not only teaches the material effectively but balances it well with stories about the application of the law in practice and the courtroom.” “He's hilarious, charismatic, clever and engaging.” “The lectures are excellent and the class is frequently tied to current events and issues that are developing in the law while the class is in progress.”

Gideon Parchomovsky Receives the A. Leo Levin Award for Excellence in an Introductory Course Gideon Parchomovsky, Professor of Law, has been awarded the A. Leo Levin Award for Excellence in an Introductory Course for his class in property law. This is the second time Professor Parchomovsky has been selected for this award. Sample Student Accolades “Professor Parchomovsky is an excellent instructor –  clear, organized, knowledgeable, patient, humorous.” “Professor [Parchomovsky] did a great job simulating interest while constantly supplementing our reading with information on studies related to what we were learning. [He] also kept the energy in classroom high and positive.”  “While I was not interested in property before the course, I now already see the world a bit differently from taking his class.”

David Skeel Receives the Harvey Levin Memorial Award for Teaching Excellence This is the third time a graduating class has selected David Skeel, S. Samuel Arsht Professor of Corporate Law, to receive the Harvey Levin Memorial Award for Excellence in Teaching. In recent years he has received the Robert A. Gorman Award for Excellence in Teaching and the University's Lindback Award for Distinguished Teaching. Skeel teaches Bankruptcy Law and Commercial Credit II and leads the Globalization of Corporate Governance Seminar. Sample Student Accolades “Skeel is fantastic. He really enlivens what could be extremely tedious subject matter. He's clearly enthusiastic about the issues and that helps a lot.” “He does a great job engaging the class, explaining principles clearly, and keeping things interesting with amusing hypotheticals.” “Professor [Skeel] was very encouraging, and the discussions were lively, especially when people were allowed to freely debate their divergent ideas about corporate governance.”

Sarah Barringer Gordon Receives a University of Pennsylvania Christian R. and Mary F. Lindback Award Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law in the School of Law and Professor of History in the School of Arts and Sciences, was awarded a Lindback Award for Distinguished Teaching from the University of Pennsylvania.  Since joining Penn Law in 1994 Gordon has taught classes such as Church and State, Property Law, American Religious History, and Legal History. She has been awarded the law school’s Robert A. Gorman Award for Teaching Excellence twice—once in 2004 and again in 2009. Sample Student Accolades “Professor Gordon brings an interesting insight to every topic and delights in showing you something new or surprising by her novel interpretations. She also seems to genuinely care for her subjects and treats the sources on their own validity.” “Professor Gordon truly wants to make sure that she structures her lectures toward her students' interests. She does research to prepare lectures on topics of interest to us, which is satisfying as a student to know that she cares about our interests and she truly knows the information that she is delivering to us. That passion is certainly contagious and stimulates class interest.” “She should be the model for professorial balance between research and teaching, as she clearly loved doing both and let the former lead her in the latter.” “She encouraged independent study and discovery with whoever wanted to chat with her. I have a feeling she lit several intellectual fires this semester and that people will actually enjoy writing their final papers!”

Criminal Law: Research and Practice

Paul H. Robinson, Colin S. Diver Professor of Law and director of the Criminal Law Research Group at Penn Law

This year Penn Law’s Criminal Law Research Group (CLRG), directed by Paul Robinson, the Colin S. Diver Professor of Law, did a survey of New Jersey residents about the state’s criminal code, to find out whether citizens thought the punishments for an array of offenses were appropriate for a given crime.

This spring the CLRG issued their Final Report (PDF), and the study – a project led by Robinson and conducted by eight Law School students - found serious conflicts between what New Jersey residents thought were suitable punishment for offenses, and those contained in existing criminal law.

In the survey, respondents were asked to read 127 brief descriptions of cases that are crimes under current New Jersey law, and then asked to grade how serious they perceived those crimes to be on a scale of 1 to 7, with 7 being the most serious, akin to murder.  New Jersey’s criminal code has 7 offense grades, and subjects were given examples of each.

Professor Robinson spoke with Penn Law’s Office of Communications to discuss the study, and how it revealed that New Jersey Code’s offense grading, likely flawed from the start, has become increasingly inconsistent and irrational in its categorizations - and unfair in its application. 

Penn Law (PL):  Please tell us about the study – why did you approach this question of public perception of crimes and how they are graded?

Paul Robinson (PR):  This was a study of the current state of conflict between what New Jersey residents thought was the relative seriousness of various offenses and what the criminal code actually provides. 

On the one hand, liberals and conservatives tend to disagree about whether the law should be more or less punitive than it is. But what we know from the empirical research is that people across demographics feel quite strongly that the relative seriousness of a particular offense ought to affect, or control, the amount of punishment meted out.  So, one would assume that given that agreement, the criminal code of a jurisdiction like New Jersey would reflect that.

As just one example, opening a bottle of ketchup at the supermarket and placing it back on the shelf without purchasing was graded by New Jersey residents as being similar in seriousness to fighting with another person, a petty disorderly persons offense, which has a maximum sentence of 30 days imprisonment. But under current law the offense is actually graded as a 3rd degree crime, which has a maximum sentence of five years.

This is not unique to New Jersey, by the way. Last year the CLRG did a similar study for the state of Pennsylvania with similar results. What the results show in both instances is that while citizens may agree about the relative seriousness of different offenses, the criminal codes often get it wrong.

PL:  Why is this so? How did the grading irrationalities or inconsistencies come about?

PR:  The reasons arise from the nature of American crime politics, so it’s really not a surprise that you see the problem in both jurisdictions we have studied so far. There is a section of the report that addresses how we could have such common conflict between people’s shared intuitions and the law.

I think a couple of different things are going on:  One is what you might call the “crime du jour” problem. That is, legislators get worked up about a particular offense, either because it’s been in the news or for some other reason.  As a result, they create penalties for it, but the penalties reflect their being particularly worked up at that moment. A year or so later when it’s no longer such a hot topic, that penalty sticks out as being exaggerated. 

The other problem is that most of the time the solution, if there is one, to the crime problem is not in creating some new offense or in increasing the penalty for an offense. That is, sometimes you can do something about it, but the things that you can do are not something that the legislature can address by changing the criminal code. 

PL:  Do you mean making changes at a policy level?

PR:  Yes.  It may be that there are specific things that can be done, but they typically can be addressed by the executive, not by the legislative branch.  The problem is that legislators, wanting to be receptive to the concerns of their constituents, want to be seen as doing something about a problem.  And they have a limited number of things that they can do compared to the executive branch; the only thing they can do is pass legislation.

The original New Jersey Criminal Code, which came about in 1978, covered all crimes and included a total of 243 offenses.  Today’s criminal code in New Jersey has 650 offenses in it, and another 904 offenses outside of the criminal code.  So, New Jersey has a total of 1554 offenses, and most of these are repetitive, overlapping-- unnecessary. 

PL:  How can New Jersey fix these inconsistencies or irrationalities?  Also, how can states avoid, or fix, this major problem?

PR:  The best thing would be a general re-codification of their criminal law, which would take the 1554 offenses in the current New Jersey law and avoid all the overlap and duplication, and put them in a code where the grade assigned to each offense really did match its appropriate level of seriousness relative to all the other offenses.  That would be ideal.

PL:  How would it work? Does that entail a governor-appointed commission? 

PR:  Yes, in most jurisdictions it does, and that’s what New Jersey did in the 1970s, when it created what it is now Title 2C; it had a Criminal Code Revision Commission. Now, it’s possible to do something less ambitious than that.  One could leave the 1554 offenses, but at least go through and try to adjust the penalties – the offense grades -- so that they make sense. 

In other words, they could do the sort of study that we did in testing each one of the offenses to see what its relative seriousness is.  Then, at one time, reset the penalties for all of those offenses so that at least they’re consistent in relative seriousness with one another.  That would be a dramatic improvement over what we have now.  It wouldn’t be, I think, as desirable as an entirely new criminal code, but it would still be a significant improvement.

Now, on the issue of how do you prevent it from happening?  That’s a very important question.  Because the processes that have led to the degradation of New Jersey criminal law, of course, still exist. And even if you created a new criminal code, then next month the legislature would be in the same process of generating reams of criminal law amendments to it.  And how do you prevent it from immediately being degraded again? 

What that requires is some mechanism by which when new legislation is proposed there is a check to ensure that the penalties that are proposed in the new legislation match the relative seriousness of that offense, as compared to the existing offenses. 

PL:  In today’s era of state budget cuts, is this feasible?

PR:  As a matter of economics this exercise would save an enormous amount of money.  Because when a state gets a grade wrong, the effect typically is to set the grade too high.  For example, if a commission worked to rationalize all of the offense grades against one another, the natural effect would be to reduce most of the offense grades.

It would reduce the prison population because the statutory maximums for many offenses would be reduced to better match their relative seriousness, and it is likely that the sentences imposed under those statutes would similarly be reduced. The larger point here is that, if a state like New Jersey had a rational grading system, the state would be using its prison resources much more justly and more efficiently. 

PL:  How do you and Penn Law students work together on a project like this?

PR:  Typically in a project this size the way the Criminal Law Research Group works is, I identify a project first, and then we set up the research group to do it-- as a Law School course, and we run it like a small law firm. In this particular case, eight students were involved and two of the students, Rebecca Levenson L’12 and Nicholas Feltham L’11, served as co-directors. They took responsibility for a lot of the organization of the work itself.  As a group they handled this project from beginning to end, and I helped to guide them in terms of decision-making.

Practice Associate Professor Sarah Paoletti and students from the Transnational Legal Clinic interview community leaders in Haiti

Civil society in Haiti is still struggling to reemerge from the destruction brought about by last year’s devastating earthquake, as well as the infrastructural and other challenges that existed long before in the country. Amid these stark challenges six students in Penn Law’s Transnational Legal Clinic (TLC), supervised by Practice Associate Professor Sarah Paoletti, travelled to Haiti during spring break this semester. 

Over the course of the week, Elizabeth Eisenberg L’11, Cora Ang GL’11, John Moore L’11, Rekha Nair L’12, Samantha Stephens L’11 and Erika Tang GL’11 worked alongside the Institute for Justice and Democracy in Haiti and its sister organization Bureau des Avocats Internationaux to conduct on-the-ground research, interviews, and consultations in preparation for drafting a report on labor and human rights in Haiti to be submitted to the United Nations Human Rights Council as part of Haiti's upcoming Universal Periodic Review.

The Universal Periodic Review is a process established in 2006 by the United Nation's Human Rights Council with the purpose of evaluating each country's human rights record in light of the obligations established in the U.N. Charter, the Universal Declaration of Human Rights, other human rights instruments, and the country's own stated commitments.

While eager to participate and have their voices heard during this process, representatives of grassroots organizations and representatives from the most impacted communities do not have the resources to draft and submit the reports on their own. Therefore, students from the Transnational Legal Clinic took responsibility for drafting a report on labor rights.

“Since the earthquake the students had been eager to do something for Haiti, but I didn’t want to be just another foreign group on the ground,” said Professor Paoletti. “In this case there was a defined task, a demonstrated need, requests from grassroots organizations, and a set deadline, which contributed to making it a meaningful experience and an opportunity for real engagement with groups impacted by what we do.”

Throughout the week, the Transnational Legal Clinic team met with human rights lawyers, representatives from large international humanitarian nongovernment organizations, investigative journalists, the chief executive officer of Digicel (a cell phone carrier and the largest private employer in Haiti), staff from organizations working to combat abuses committed against Restavek children (children sent to live with other families who then find themselves in situations of domestic servitude and forced labor), representatives from an organization of women survivors of gender-based violence who assist other women and children victims of gender-based violence, tent camp residents, and a host of grassroots advocates. They visited two large camps – one an ad hoc settlement and the other a planned camp – to assess the economic opportunities available to the residents.

“This trip exposed students to how complex issues of human rights are, especially in a post-disaster setting and the importance of ensuring the people most directly affected by disaster and policy are a part of any discussions addressing human rights concerns and recommendations for moving forward,” said Paoletti.

“My work prior to this had been research only,” said Rekha Nair L’12. “In going to Haiti I got to see the problems and issues on the ground. The trip helped me to understand how to engage grassroots groups and local people on these issues. I also realized that while an outside organization from the United States or elsewhere can do meaningful work, lasting social change can only come from within, from a Haitian people and government empowered and committed to making a change together.”

Breakfasts and evenings were spent debriefing, conducting research, preparing for the next day's set of interviews, and drafting portions of the labor report, which TLC submitted to the United Nations on March 21st. The work of the clinic students constituted a valuable contribution to Haiti's Universal Period Review by raising critical questions and identifying key recommendations from across Haitian civil society for the advancement of human rights and labor rights in Haiti.

Cora Ang GL’11 described the scene in Port-Au-Prince as “truly traumatic” but explained that “there was a willingness of the people to have their voices heard.”  She said, “Whether we were navigating our way through the narrow paths of a tent camp or interviewing abused women, the narrative that echoed was the same: Access to education, access to job opportunities, adequate housing, access to clean water and healthcare. This is still what the population at large needs in order to survive each passing day and forge a future.”

Professor Seth Kreimer accepts Penn Law's inaugural Beacon Award

University of Pennsylvania Law School Professor Seth Kreimer received a standing ovation as he was honored with the Law School’s inaugural Beacon Award to recognize a faculty member’s contribution to pro bono and public interest service. The award was part of Penn Law’s annual Public Interest Recognition Event, held Thursday evening, April 14, at the Levy Conference Center.

Kreimer “has been a resource, literally, for every public interest organization in Philadelphia, whether it’s the Women’s Law Project, Juvenile Law Project, AIDS Law Project, ACLU, [or the] Public Interest Law Center of Philadelphia,” Penn Law Senior Fellow David Rudovsky said in presenting the award. “He has a passion and a commitment to fairness, to equality, [and] to access to justice that motivates him in a way that’s really unique among people in the field.”

Rudovsky described Kreimer as the go-to source for legal advice for lawyers facing the toughest issues in public interest and civil liberties litigation. “There’s Westlaw, there’s Lexis – there’s also something known as ‘Seth-law,’” Rudovsky said, eliciting laugher from the crowd.  

In accepting the award, Kreimer invoked the late Justice Louis Brandeis. “[Justice Brandeis] used to say that the only legitimate basis for accumulating wealth or professional privilege is the opportunity that it provides from time to time to do the right thing,” Kreimer said. “Over the years, I’ve been blessed with a series of sources of professional privilege that have made it possible for me to undertake pro bono efforts and this is an occasion to express my gratitude.”

Kreimer thanked the Law School, and particularly Dean Fitts, for providing him with a base on which to work on civil rights and civil liberties issues. He thanked public interest organizations, lawyers, and his clients for giving him a chance to join them in “efforts to bend the moral arc of the universe towards justice.” And he thanked his students. “I have been honored by the insight and the eagerness and the passion of the students at Penn Law School,” he said. “I look forward to seeing after you leave and go out in the world the ways in which you use your professional privileges from time to time to do the right thing.”

Third-year student Kristen-Elise Brooks received the C. Edwin Baker Award for performing the most pro bono hours of any student in the Class of 2011 – 426 hours over her three years at the Law School. “I’m sure that most people expect that the person who has the most [pro bono] hours would be going into public interest straight out of law school – and I’m not. I’m going to be starting in the fall at Paul Weiss,” Brooks said. “I think that’s one of the wonderful things about Penn. It’s that everyone does pro bono here. It’s not that there are public interest and firm people … Everyone is pro bono oriented.”

The event recognized the work of numerous Penn Law students, public interest law attorneys and advocates, and over 20 student-run pro bono groups. Loida Moreno, director of volunteer services for the Philadelphia Prison System, took the opportunity of being honored for her work with Penn Law’s Prisoners’ Education and Advocacy Project to thank the students at the event. She recognized “all the students that in one way or another took the time, the initiative, the leadership, and the effort to say, ‘I’m going to be part of a project for people that, for the most part, people choose to forget.’”

For a complete list of individuals and organizations honored, see the Public Interest Recognition Event program (PDF).

Flickr: Photos from the Annual Public Interest Recognition Event

Bridging Theory and Practice

Bok Visiting International Professor KP Krishnan

Dr. KP Krishnan, the Secretary of the Economic Advisory Council of the Prime Minister of India, this semester came to Penn Law to serve as a Bok Visiting International Professor, where he taught a seminar on capital market regulation in India.

Each year through its International Program Penn Law invites several recognized experts in international and comparative law from around the world to Philadelphia, providing students access to senior experts, jurists, and professionals who offer new perspectives on cutting edge issues.

Penn Law’s Office of Communications interviewed Dr. Krishnan on his experience at the Law School and how globalization is impacting the exchange of ideas between India and the U.S.

Penn Law: What brought you to Penn Law through the Bok International Visiting Professors program?

KP Krishan (KK):  Really, it was a chance conversation with folks at the Center for the Advanced Study of India (CASI), which is a center here at Penn,  which led to a meeting with the Penn Law  people.  I was visiting New York and Washington for work last year, and one thing led to another: while I was in Philadelphia I met with Professors Eric Feldman, Anita Allen and Jill Fisch and Associate Dean Amy Gadsden at the White Dog Cafe, and I had this formal offer to be a Bok professor.

I’ve been teaching in India on financial sector regulation – not as a regular full course, but co-teaching with other professors. So, when this offer came, in a sense it was a natural extension of what I’ve been doing off-and-on. 

PL:  Please tell us about your current work in the Indian government. 

KK:  I belong to the Indian Civil Service, and in the Indian Civil Service  the way it normally works is, we spend a lifetime in the government.  Since July 1 last year my present job is to be the secretary of the prime minister’s Economic Advisory Council.  The nearest equivalent of this is the White House’s Council of Economic Advisers.

Immediately prior to that, for five years I ran the financial markets division in the Indian Ministry of Finance, which deals with financial sector regulation, as well as international cooperation in the financial sector.  My present job is much more macro - it includes the financial sector also.  It is much more advisory and economy wide. 

PL:  Are you able to bring that experience to bear in your Law School class?

KK:  Yes. Regulation, particularly financial sector regulation, by its very nature, has an enormous amount of policy content. And in a context like India, where a lot of the regulation is done through the mechanism of law, the political process – that is, the parliamentary process - clears the regulation. This by definition involves all the major political parties, their ideologies and their view on markets and the state – should there be greater role of the state, a lesser role of the state, etc.  The final outcome is necessarily an amalgam of all the expert views, thinking, and knowledge of finance and law, and finally, what is acceptable politically.

Therefore, I think, a person who has had the advantage of a ringside view of all of this brings to the classroom a sense, or a reality check, about what happens and how the best should not become the enemy of the good.  And that’s what I’ve tried to bring to the seminar at Penn Law. 

An interesting aspect is the parallels with the U.S. system.  At one level, we are very different. But at another level, the processes in a democracy are ultimately the same.  It is the politically accountable politicians who make the last call.  Do they always make the call in the public interest?  Do they make it on the basis of some other lobbying group, or on account of international pressure?  These are the kind of things that we discussed in the class.

PL:  What was it like in the classroom? Who participated?

KK:  I had nine students from the Law School, and interestingly, two Wharton professors – one who teaches accounting, another who teaches economics and business policy – as well as an Indian infrastructure lawyer, and Professor Shyam Balganesh from Penn Law. An average class was about 12 or 13 folks.  A very interesting mix of people.

PL:  What are the key similarities or differences in the regulatory frameworks in India and the U.S.?

KK:  Regulation in both countries has been, in a sense, path-dependent.  That is, it’s not something which somebody sat up one day and designed –it’s the result of history, not exactly what, ideally, a professor would recommend.  In India we have a multiplicity of regulators, exactly like the U.S. does, but for very different reasons.  The U.S. has it for reasons of the federal distribution of powers – the distribution between the states and the federal government.  In India, the entire financial sector rests with the government of India, namely the federal government, but nevertheless, we still have a multiplicity of regulators.  And bringing about coordination between regulators has been a major theme in both countries. 

The pre- and the post- [2008 financial] crisis issues in India and the U.S. actually led to identical conclusions – we need greater coordination amongst regulators.  But at the same time, we need to keep politics out of this because the fundamental issue is consumer protection.

PL:  What is the value of comparative law in this context?

KK:  Let me just give you one example. One of the major problems that came out post the Lehman crisis in the U.S. was the unregulated, or the over-the-counter markets - the OTC markets - a bilateral market between a buyer and a seller, not intermediated by a stock exchange or any other kind of exchange.  Through its history, India has had an explicit preference for exchange-traded markets over OTC markets, where a lot of the information doesn’t come out in the public domain - so when a crisis of the kind that happened in 2007 or 2008 occurs, you do not actually know how badly off is a particular financial firm, because a lot of their trades are known only to them and their counterparties.

So, when the crisis blew up, the government could not even estimate what is the kind of damage that was going to hit the system, and therefore, what it was that the government needed to do.  So instead we have encouraged the much more open, transparent, publicly traded exchange markets.  And so post-2008, the Financial Stability Board, the G20, have actually begun to mandate exchange-like regulations for the OTC markets. 

In this sense, the flow of best practices now seems to be two-way, and I think the Financial Stability Board and the G20 have encouraged this two-way flow of ideas.  It is still dominated by a flow coming from the OECD to the emerging markets economies, but I believe there are also the beginnings of what I would think is an encouraging trickle of a flow in the developing world’s direction, which is hugely important.

One of the major consequences of globalization is a much more interconnected world. So, I also want to note what the Law School and Penn in general are doing to organize a structured flow of ideas between scholars and practitioners in India with their counterparts in the U.S. is going to be increasingly relevant and important for globalization to become a meaningful, productive and mutually beneficial process.

Supreme Court Clinic students with Stephanos Bibas, Stephen B. Kinnaird, and James Feldman in Washington, DC after the Turner v. Rogers argument in March. They will return on April 18 for the case of Tapia v. United States.

Can a court give a defendant a longer prison sentence in order to promote the defendant’s rehabilitation? The U.S. Supreme Court will hear argument on this issue in the case of Tapia v. United States on Monday, April 18, despite the case being “orphaned” by the U.S. Solicitor General’s office.

Stephanos Bibas, a professor at the University of Pennsylvania Law School and the director of Penn Law’s Supreme Court Clinic, was appointed amicus curiae (“friend of the court”) by the Court to advocate for the government’s abandoned position in the case. About twice every three terms, the Court appoints a lawyer to represent an orphaned issue, and often it chooses a justice’s former clerk. Professor Bibas clerked for Justice Kennedy, is a former federal prosecutor, and has written on sentencing, the issue in Tapia. 

Of note, Professor Bibas has been assisted in the case by students in Penn Law’s Supreme Court Clinic, who have helped conduct research, draft the amicus curiae brief, and prepare strategy. Tapia is Bibas and the Supreme Court Clinic’s second case to go to oral argument this semester. In March, Bibas argued the case of Turner v. Rogers, which involved whether an indigent defendant has a right to court-appointed counsel when faced with being sent to jail for failing to pay child support.

"We are blessed to have a dozen bright, eager students who have helped to strategize, research, write, and edit the briefs,” Bibas said. On Tapia, he added, “They've helped us immeasurably in giving the Supreme Court a perspective on the history of rehabilitative treatments and sentencing reform that it otherwise would not have heard."

Penn Law’s Supreme Court Clinic is the nation’s first to closely integrate practical experience on Supreme Court matters with a semester-long academic seminar on the workings of the Court. Clinic students work on active Supreme Court cases, including participating in moot court rehearsals and attending oral arguments at One First Street.

The Clinic is led by Bibas, Lecturer Stephen B. Kinnaird, also a former clerk to Justice Kennedy and a partner with the Paul Hastings law firm, and Lecturer Nancy Bregstein Gordon L’78, a former clerk to Justice Lewis F. Powell, Jr. The accompanying seminar is taught by Penn Law Professor Amy Wax and Adjunct Lecturer James Feldman, a former clerk to Justice William J. Brennan, Jr. Both Wax and Feldman are former assistants to the Solicitor General, and combined have argued more than 60 cases before the Supreme Court.

Sarah Carroll L’11, a student in the Supreme Court Clinic who wrote research briefs in support of Bibas’ oral argument, said, “It’s an amazing opportunity to help with actual Supreme Court litigation through the Clinic while still in law school. Professor Bibas takes our suggestions seriously; when we’re sitting in class one of us can say ‘this paragraph wasn’t that persuasive to me,’ and he usually revises it based on our input.”

“In the class and in the Clinic you can watch your own work get a lot stronger,” said Katherine Meeks L’12. “The ethos is very collaborative, so when you circulate a draft [of a brief] you expect to get comments, criticisms, and suggestions. I’ve learned a lot about how to make good legal arguments and write well, and not be afraid to make a mistake.”

Meeks added, “You try to do your best work for it. It just takes your skills to a different level.”

Faculty Research Brief Series

Chris William Sanchirico Samuel A. Blank Professor of Law, Business and Public Policy; Co-Director, Center for Tax Law and Policy

What should determine the taxes that an individual pays? Specifically, what potentially taxable attributes should be included in the government’s calculus of the tax an individual must pay and the transfers (that is, tax reductions) she is entitled to receive? The question is among the most elemental and perennially controversial in tax law and policy.

Under the current U.S. tax and transfer system, an individual’s taxes and transfers are based on a long and varied list of personal attributes: the taxpayer’s income from various sources, expenses of various kinds, assets, liabilities, age, and family structure.

But despite the eclectic nature of the current system, the dominant view among tax scholars is that the tax base should not be so eclectic – that achieving the optimal balance of revenue, efficiency, and equity requires basing taxes and transfers on a single taxable attribute, namely labor earnings, and not also on other potentially taxable attributes such as capital gains. The optimality of such labor-earnings-only taxation is regarded as “the plain vanilla case” or the “natural model.” Circumstances in which a more eclectic tax base is warranted are described as “exotic” or as “theoretical curiosities.”

In a recent paper, however, University of Pennsylvania Law School Professor Chris William Sanchirico asserts that – with regard to balancing revenue, efficiency, and equity – tax eclecticism is in fact the optimal model, and labor-earnings-only taxation, the exotic exception. Sanchirico’s paper, Tax Eclecticism, does not defend the often frustrating complexity of the current U.S. tax system, but rather argues for the general principle of tax eclecticism.

Sanchirico, a Ph.D. economist as well as a legal scholar, supports his argument for tax eclecticism with mathematical analysis that focuses on the impact of including capital gains in the tax base.

Sanchirico’s argument has two parts. The primary objective of the paper concerns the three criteria of revenue collection, economic efficiency, and the mitigation of economic inequality. Sanchirico asserts that basing monetary flows between individuals and the government on a more inclusive set of taxable attributes makes it possible to achieve a better balance of these three competing criteria. The second objective of the paper concerns a fourth criteria: the administrability of the tax and transfer system. Sanchirico argues that an eclectic tax base need not make the tax substantially more difficult to administer.

Although Sanchirico’s argument for an eclectic tax base is somewhat consistent with the U.S. tax system as it actually is, it swims against a powerful tide of thought among many tax scholars regarding how the tax system ought to be.

The paper has important implications for the long-running debate over whether capital gains should be taxed in addition to labor earnings. Accordingly, it casts doubt on the consensus view that the income tax, which taxes both capital and labor income, ought to be replaced with a consumption tax, which (under certain special conditions) is equivalent to a tax on labor earnings only.

The paper also contributes to the debate over whether non-tax-and-transfer legal and administrative policies – such as those concerning environmental regulation, public goods provision, immigration, and private law rules in tort or contract – should be set in part to reflect society’s redistributional goals, or rather be determined solely on the basis of efficiency.

Read the full brief by clicking the image below (PDF) or download the complete paper from the SSRN website.

The University of Pennsylvania Law School has launched RegBlog, a website that provides news, analysis, and opinion on regulation. RegBlog is a special project of the Penn Program on Regulation, an interdisciplinary, University-wide program that analyzes regulatory policy problems and alternative strategies for solving them.

“RegBlog capitalizes on expertise and energy from across the University community – students, faculty, and alumni – to encourage intelligent dialogue about important policy issues and the complex regulatory process,” said Cary Coglianese, Edward B. Shils professor of Law and professor of Political Science at the University of Pennsylvania and director of the Penn Program on Regulation. “The website fills a unique need for balanced, penetrating coverage of regulatory issues for the general reader as well as the scholar and practitioner.”

RegBlog features news and analysis on policy developments, regulatory actions, court decisions, and cutting-edge research related to regulation. The website tackles issues such as the Dodd-Frank financial reform legislation, food safety in an era of global trade, constitutional challenges to health care reform, and governmental transparency. Each Monday the website publishes a Regulatory Recap which compiles some of the most important regulatory stories from the previous week.

RegBlog is written and edited by over 20 students and several alumni from across the University of Pennsylvania.  Professor Coglianese serves as the faculty advisor, overseeing the overall work and contributing original content. The website also features guest posts by leading academics and practitioners. Initial guest contributors include Penn Law Professors Theodore Ruger and David Skeel, along with Abigail Slater, a senior attorney with the Federal Trade Commission.

In addition to serving as a much-needed resource for readers, RegBlog offers students a unique opportunity for cross-disciplinary collaboration and real-world impact. “The website gives students a chance to contribute original content,” said RegBlog Editor-in-Chief Jonathan Mincer L’12. “There is no better way to learn how to analyze complex  issues and write high-quality, interesting, professional work than to do it nearly every day, discuss it with other students, and receive direct feedback from a top Penn Law professor.”

RegBlog’s 2010-2011 Board comprises seven graduate students from the Law School and School of Arts and Sciences.  The website’s team of writers includes a postdoctoral fellow in the Department of Radiology at the School of Medicine, graduate students in bioengineering, environmental science, governmental administration, landscape architecture, and city and regional planning, and several JD and LLM students at the Law School.

“One of the strengths of RegBlog is that students in various departments of the University can contribute posts that are relevant to their fields of study,” said RegBlog Executive Editor Steve Gillard, who is pursuing a Masters in Environmental Studies. “This is because RegBlog prides itself on writing pieces about diverse regulatory issues and making them accessible to people who do not have a law degree.”

RegBlog is an outgrowth of a blog that Professor Coglianese created in 2009 as a project of the Penn Program on Regulation. The new RegBlog is designed to draw on the cross-disciplinary strengths of the University of Pennsylvania to provide a distinctive destination website for regulatory news and analysis.

To read RegBlog, go to http://www.regblog.org.

In today’s economic climate, community development through the successful creation and growth of small businesses is a critical challenge for most U.S. cities, including Philadelphia.

So when Praveen Kosuri, practice associate professor at Penn Law, came to the Law School in 2007 to lead its Entrepreneurship Legal Clinic (ELC), he started by reaching out to local community economic development experts to determine how pro bono legal services could help revitalize Philadelphia neighborhoods and the broader area. His approach met with immediate success.

As Kosuri created relationships and found clients for the Clinic, he learned that The Enterprise Center, a West Philadelphia ‘business accelerator,’ was looking for ways to support local businesses and create sustainable jobs. “The Enterprise Center had identified a parcel of land--a boarded-up grocery store at 48th and Spruce in West Philly--that it wanted to acquire and transform into something that could anchor the community, but they weren’t quite sure what it would look like,” said Kosuri. “But the first step was to acquire the parcel.”

Thus during the 2008 spring semester, Kosuri received a call from The Enterprise Center asking for a referral for someone who might be able to help negotiate with the owner of the grocery store.  “I said, well, we can do that,” Kosuri noted. He pitched the services of the Clinic to Della Clark, the president of The Enterprise Center whose brainchild the project was, and convinced Clark and her team that the Clinic could be of assistance.

The ELC is one of nine clinics at Penn Law’s Gittis Center for Clinical Legal Studies, which engage the Law School’s students in direct legal representation of individual and organizational clients in a range of domestic and international venues.

The commercial real estate transaction for which the ELC agreed to provide its services would launch the Center for Culinary Enterprises (CCE), an innovative multi-use commercial kitchen and educational restaurant, designed to be an engine for creating food-related jobs and businesses and to provide resources to emerging food entrepreneurs in Philadelphia.

The project sought to transform the unoccupied 12,500 square-foot former grocery store on South 48th Street into a major economic development project that will provide jobs, education and opportunity to Philadelphians. Upon opening in early 2012, CCE will include three fully licensed commercial kitchens; Little Louie’s BBQ, a restaurant with a training program that will provide high school juniors and seniors with real-world experience in restaurant management; two retail spaces available to local food businesses; and a multimedia learning center called the eKitchen, which includes a 36-seat classroom with a demonstration kitchen.

“How it worked is that in January of 2008 our students met with the client and figured out exactly what it was The Enterprise Center wanted to do. In that first semester, students worked to devise a negotiation strategy, and then helped the client negotiate with the seller,” Kosuri said.

The value of the commercial kitchens to the community is that while many entrepreneurs seek to apply their skills in the food industry, “One of the biggest barriers to formal entry and business growth for entrepreneurs is often that they don’t have a health-certified commercial kitchen where they can produce their products,” said T. Stephen Jenkins L’11, who worked on the project during the fall 2010 semester. “The CCE will help to lessen this burden by providing access to these kitchens to local entrepreneurs at an affordable cost.”

As the Entrepreneurship Legal Clinic has between 20 to 30 clients at any given time and 16 students per semester, students are teamed for more complex clients.

Jenkins worked with Angela Redai L’11 on the CCE case. “It was valuable to see the structure of the organization and to get a feel for the steps they needed to take to realize their end goals,” said Redai. “Building on what students had done in the past, one of our responsibilities was organizing all of the CCE’s funding, as it is a non-profit organization, so that the lenders would know going forward how these loans would be repaid.”

“From reading the transition memos [from the previous semester’s students] and speaking with the client directly,” Jenkins explained, and working primarily with Gregory Heller, managing director, Economic Growth & Community Revitalization at The Enterprise Center and the CCE’s project manger, “Angela and I were able to come up with a game plan for what we wanted to present to our client.”

For the teams of students each semester who worked on the matter, “the first part of it was acquiring the land,” Kosuri noted. “And as we progressed, the second part was, how do you structure this larger enterprise, and what’s it going to look like?  We needed to figure out a structure that would protect The Enterprise Center from liability associated with the food businesses and wouldn’t jeopardize its 501(c)(3) status.” 

As part of the clinical experience, “Students are in the role of coordinating the entire deal,” Kosuri said, “just like they would be as associates in a law firm. What we seek to do here is to provide students with an experience that will last years into practice rather than merely months.”

From the very beginning until the present the students, Kosuri pointed out, “reviewed and commented on the architect contracts. There have been several pieces of financing – the students have been involved in all of that."

"Under our supervision,” Kosuri said, “students have been doing basically everything – from the acquisition of the parcel to obtaining the property tax exemption to securing zoning variances from the City [of Philadelphia] to the bidding process to select a general contractor, to the various rounds of financing, and even the commercial leases.”

“The Entrepreneurship Legal Clinic has been a tremendous partner on the Center for Culinary Enterprises, and we at The Enterprise Center are very grateful for the Clinic’s support,” said The Enterprise Center’s Heller, who has worked with the Clinic’s students since heading up the project in the summer of 2009.

He added: “There are substantial legal costs associated with commercial real estate, and as a not-for-profit organization that develops projects to benefit the community, we work hard to focus our limited resources directly on building projects and investing in community-based programming. Thanks to the Clinic’s pro bono support, we have been able to redirect dollars that would have been spent on legal counsel directly into the project’s community-based outcomes.”

In addition, the Clinic was able to draw on the pro bono counsel of the attorneys at the Philadelphia office of Dechert LLP. “We partnered with them from the beginning, and they’ve been outstanding,” said Kosuri. “If there’s something about which we need their guidance, we can go to them. But as part of their professional development, our students manage the process as opposed to the Dechert folks managing the process.”

Working in the Clinic and with the CCE, “It definitely honed my eye for detail and my attention to how language needs to be framed to achieve certain objectives,” said Redai. “For example, we were meeting with Greg [Heller], hearing his perspective as the client, hearing where they were with the project at the CCE and everything they needed to move forward. Then, working with our clinical supervisors, we had to figure out what steps we needed to take legally to help them achieve their goals. The client work was pretty much entirely on our shoulders.”

“One of the things that I was interested in during law school was to get some hands-on practical skills,” said Jenkins. “And being involved with the Entrepreneurship Legal Clinic allowed me to do that, including substantive experience with corporate/transactional work.”

“The Clinic’s students and staff, led by its Director Praveen Kosuri, have done a very professional job, consistently worked with us to overcome challenges, meet our deadlines, and fulfill all of the legal needs of a complex project,” said Heller. “The Clinic is a fabulous resource for Philadelphia’s communities, and we are proud to be one of the Clinic’s partners.”

For more information about Penn Law’s clinical programs, please visit http://www.law.upenn.edu/clinic.

Center for Culinary Enterprises: A Recipe for Economic Development

(A Penn Law VLA Production)

In his latest book, The New Financial Deal: Understanding the Dodd-Frank Act and Its (Unintended) Consequences, David Skeel, the S. Samuel Arsht Professor of Corporate Law at Penn Law, analyses the 2,300-plus pages of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2008, passed into law in the immediate aftermath of the global economic crisis, and representing the greatest financial regulation reform in the U.S. since the Great Depression.

Professor Skeel sat down with Penn Law’s Office of Communications to discuss the impacts and unintended consequences of the Dodd-Frank Act.

Penn Law (PL):  Why did you decide to write this book?

Prof. David Skeel (DS):  I had been working on these issues for two years by the time the legislation was nearing enactment.  I’d been writing articles about the financial crisis, focusing especially on the role that bankruptcy might play and on the regulation of the derivatives industry. I also had talked with a number of Congressional staffers who were involved in the legislation, and had had the privilege of testifying at several hearings on the crisis and possible reforms. Having spent so much time thinking about and discussing the financial reforms, I thought it would be great to put everything together in a book, but I had concluded it would take too long for the book to come out for it really to be worthwhile. 

Then in May I got an email out of the blue from an editor, asking if I would be interested in writing a book about the reforms. The good news was that they would publish the book very quickly; the bad news was that they would need the manuscript by the end of the summer.

Ordinarily, my answer would have been, "No way. I can’t write a book in a summer."  But it was an opportunity to put everything together in one place, to explain what the legislation would do and what its implications might be. So I took a deep breath and said yes.

PL:  What are some of the key issues of Dodd-Frank?

DS:  To very quickly put the legislation into context, people talk about the Dodd-Frank Act being an incoherent mess, 2,319 pages of chaos. But it really isn’t. The legislation has two main responses to the financial crisis: first, it tries to limit the risk of the instruments (such as derivatives) and institutions (the giant banks and other “systemically important” financial institutions) of contemporary finance; and second it tries to limit the fallout in the event a systemically important financial institution nevertheless falls into financial distress. 

Parts of the legislation actually work pretty well, I think.  I think the derivatives regulation is likely to be effective. Lots of other parts of it don’t work so well, and in my view will have unintended negative consequences. 

PL:  Such as?

DS:  The legislation solidifies the status of the largest financial institutions as too big to fail.  It singles the giant banks out for special treatment, but it doesn’t try to limit their size or break them up – it just assumes that we’re going to have these giant banks dominating our financial services industry. 

I fear that this will have unfortunate consequences. For example, it’s going to be very difficult for small- and medium-sized banks to compete with the giant banks. As a result, I think we may see less innovation in the financial services industry than we otherwise would. We also may well have less lending to small- and medium-sized businesses, because the small- and medium-sized banks are the ones that, historically, have lent to small- and medium-sized businesses.

I also fear that the legislation could create a “partnership” between the government and the largest banks. The legislation contains a number of provisions that could be used to extract concessions from the largest banks, which creates the risk of political policy dictating banking decisions rather than just economics dictating banking decisions. So, one set of unintended consequences has to do with the fact that we are accepting these giant banks and taking them as a given rather than really trying to do something about them. 

PL:  And what if these giant banks fail?

DS:  Well, the second set of concerns has to do with just that. Dodd-Frank’s new resolution rules  give regulators the power to take over one of these giant institutions if it runs into trouble.  The premise of this system is that what we do with small-and medium-sized banks now is a good model for how to deal with giant institutions when they fail. In my view, this strategy—which gives bank regulators sweeping authority—makes far less sense for giant financial institutions than for small banks. I think that lawmakers should have taken a much closer look at bankruptcy, which relies much less on the discretion of regulators.

PL:  What kind of regulatory guidance does the legislation provide?

DS:  The short answer is, not a lot. Part of the conventional wisdom about Dodd-Frank is it leaves everything up to the discretion of regulators. This is one context in which I believe the conventional wisdom is right. The new law invites regulators to impose new capital standards on the big financial institutions and even, in theory, to limit their risk taking in a variety of ways. But it doesn’t suggest how to do this. The main regulators are already struggling mightily, and falling behind, as they try to crank out all the regulations that Dodd-Frank calls for.

PL:  Why, in your view, is a market-based approach involving bankruptcy a better approach than bailouts?

DS:  The danger, in my view, of a regulatory approach to the insolvency of these institutions is two-fold. First, regulators tend to not know that a collapse is coming until it’s too late. Yes, Dodd-Frank is going to help by requiring more oversight and a lot more disclosure. But very frequently, the managers know there’s a problem long before regulators do. So, to the extent you can encourage decision makers who do know what’s going on, such as the managers of the business and its creditors, to make the decision when it's time for insolvency proceedings, as they do with bankruptcy, I think that’s a good thing.

The second concern I have is that there is an inevitable incentive for regulators to bail out a giant institution when there’s trouble. If they don’t bail out one of these institutions and it blows up, that’s egg on their face. Everybody points a finger at the regulators and says: "You dummies, why did you let it fail?" If they bail the institution out, regulators might get some criticism but we typically don’t know until a few years later whether that was a mistake. 

That said, I’m not saying that bankruptcy is always the best solution in these situations.  Occasionally you do need to inject money into the marketplace. My claim is an argument that whenever possible, it’s better to use a more market-oriented approach like bankruptcy that assures companies aren’t bailed out; and assures that creditors do, in fact, take losses if the company they’ve lent money to does badly. 

And in my view, Dodd-Frank pushes things too much in the other direction.  It creates, if anything, disincentives to use bankruptcy.

PL:  What do you think works about the legislation?

DS:  Before Dodd-Frank, derivatives were for the most part simply unregulated. Dodd-Frank now requires that most derivatives be submitted to a clearinghouse, which will be responsible for guaranteeing the performance of both sides of the derivatives contract. Dodd-Frank also requires that most derivatives be traded on exchanges, so they can no longer be secret, private deals between two banks. Now they have to be publicly disclosed and their terms will be a little bit more standardized. 

The Dodd-Frank innovation that I like is the new consumer financial protection bureau. The consumer bureau was first proposed by Elizabeth Warren; it was her idea, and as you know she used to teach at Penn Law (although this isn’t the only good reason to support the new bureau!).   Supporters of the consumer bureau argued that none of the regulators who were supposed to protect consumers were in a position to effectively champion consumers’ interests. The Federal Reserve, for instance, had primary responsibility but also suffered from a serious conflict of interest.  The Fed’s primary mission is to preserve the stability of the banking system, which can directly conflict with protecting the interests of consumers. Sometimes gouging consumers is a way to preserve bank stability. 

The beauty of the consumer bureau, in my view, is that it creates a new consumer champion that’s not conflicted, whose primary responsibility is to focus on consumers and to make sure consumers are protected in the financial marketplace.

PL:  What will happen if there’s a change in presidential administration, will Dodd-Frank change at all?

DS:  The legislation is intended to be independent of a particular administration, in the sense that a number of the key regulators are, at least to some extent, insulated from political changes. For example, the director of the new consumer bureau will serve for five years; the director can’t be removed simply because the party in power changes.   

This and other aspects of  Dodd-Frank areintended not to be politically sensitive. But in other respects, politics will inevitably play a role. The regulator that arguably came out strongest as a result of Dodd-Frank is the U.S. Treasury, which possesses a number of powers. The legislation assumes that the Treasury will make the first move to take over a giant financial institution that falls into distress, for instance, and a major new research center will be housed in the Treasury. The Treasury, obviously, is very politically sensitive. If we move from one administration to another, we may get a very different Secretary of the Treasury, which will have substantial regulatory implications. 

PL:  How does Dodd-Frank deal with the international dimensions of financial services regulation? 

DL:  There is frequent reference to international issues in Dodd-Frank; the word “foreign” appears in Dodd-Frank dozens of times. But when you add all this up, all it amounts to is an exhortation for U.S. regulators to cooperate with their foreign counterparts. 

Basically, what Dodd-Frank says is, please coordinate in the event there is financial distress. Dodd-Frank doesn’t do much more than that internationally, in part that’s because there’s only so much a U.S. law can do to deal with international issues.

But even with that caveat, it is surprising that Dodd-Frank doesn’t do more because a lot of what blew up in 2008 did so on an international scale. When Lehman Brothers failed, it wasn’t just a US problem, it was a huge problem in England—in many respects, much more of a problem than in the US; it also was a significant problem in Japan. 

Dodd-Frank does do one thing that I think could be very helpful internationally as well as domestically. The new law requires every systemically important financial institution to prepare a “living will,” or “rapid resolution plan,” every year. 

The idea is, these big banks have to prepare a fire drill. They have to inform regulators how, in the event of a crisis, they are going to make sure that the damage is contained.  In other words, how they will make sure that one bank’s crisis doesn’t become a worldwide crisis. 

To the extent this is aggressively enforced, and bank regulators require that the banks prepare a serious plan explaining what the organization of the bank is, and how they’re going to deal with the potential fallout from a crisis, the living wills could actually have a pretty significant effect. It’s the one part of the international response that I think really could make a difference.

This year Penn Law’s Public Interest Week coincides with Sunshine Week, a national effort to promote dialogue about open government and freedom of information. We sat down with Director of the Penn Program on Regulation and Penn Law Professor Cary Coglianese to discuss how information technology affects the transparency of the federal rulemaking process. 

By Tanya Barrientos. Reprinted from the Penn Current.

During his nearly 50 years in public life—30 of them as a U.S. Senator—Arlen Specter has not only witnessed some of the most historic events in modern history, he has played a role in them.

He’s been part of the national dialogue since as early as 1963 and 1964, when he served as assistant counsel to the President’s Commission on the Assassination of President Kennedy (better known as the Warren Commission). It was Specter who developed what came to be called “the single bullet theory,” asserting that gunman Lee Harvey Oswald acted alone in the shooting in Dallas. The theory was controversial then, and it remains controversial today. But controversy has never been something Specter has tried to avoid. In fact, it’s been one of the hallmarks of his notable career.

As the longest-serving U.S. Senator in Pennsylvania’s history, Specter has participated in the confirmation hearings of 14 Supreme Court nominees—including the intense questioning of nominee Robert Bork (whose nomination was rejected) in 1987, and the contentious questioning of Anita Hill, who in 1991 accused Supreme Court nominee Clarence Thomas of sexual harassment. The Senate approved Thomas’ nomination by a vote of 52 to 48. In his memoir, “Passion for Truth,” published in 2000, Specter comes about as close as he ever might to an outright apology for the Hill incident, writing that he “didn’t understand the explosive nature of the [sexual harassment] issue” back then.

During his five consecutive terms in the Senate, Specter served on the Senate Judiciary Committee, including as chairman from 2005 to 2007; he was chairman of the Senate Select Committee on Intelligence from 1995 to 1997 and was a senior member of the Senate Appropriations Committee.

In 2010, Specter lost his run for re-election. In September of this year, he will return to his alma mater as an adjunct faculty member at Penn Law School, where he will teach a course on the relationship between Congress and the U.S. Supreme Court, focusing on the separation of powers and the confirmation process. The former senator recently talked with the Current and Penn Law about having grown up in the same small Kansas town as retired Senator Bob Dole, his days as a Penn undergrad, his entry into politics and what he hopes to impart to a new generation of lawyers. 
 
Q. Your association with Penn goes back to your days as an undergraduate. How did you decide on Penn back then?
A. My beginning association with Penn was as a student in the College. I graduated from Penn in 1951, was on the debating team and I was a member of the Pi Lambda Phi fraternity. I came to Penn because my family moved to Philadelphia. We were living in Russell, Kansas, a little town of 5,000 people, and when my sister Shirley was of a marriageable age, there was only one Jewish boy in town and that was me, her brother. So the family moved to Philadelphia so she could meet and marry a fine Jewish boy and raise a fine Jewish family, which she did. I had been attending the University of Oklahoma and I decided to come with the family and that brought me to Philadelphia and the University of Pennsylvania.

Q. Russell, Kansas is the same town former Senator Bob Dole is from. Did your families know each other?
A. Our families were friends. My father had a junkyard in Russell and my father weighed his junk on Doran Dole’s [Bob’s father] scale. He ran the local granary so he had the biggest and only scale in town that could weigh a big truck. Bob’s brother Kenny and my brother Morton were contemporaries and were friends, and of course I got to know Bob very well in the Senate.

Q. What are some of your most vivid memories about your College days? You said you were on the debate team, did that spark your interest in politics?
A. The debate team took on Oxford in 1949. …We debated the team on the question that, Resolve: The British Empire was decadent. We won the debate on the judges’ balloting, and afterwards my father walked up to me and said, ‘Arlen, do you think it was very polite that those two young fellows came all the way from Great Britain and you beat them?’ and I said, ‘Yeah Dad, that’s debating.’

Q. Any other memories you hold dear?
A. Sure, the fraternity house was lively on Saturday nights. I took Joan [Specter’s wife of 55 years] to a party there on our first date in the fall of 1949.

Q. After law school why did you decide to live in Philadelphia?
A. I was in the service for two years. I was in the Air Force ROTC at Penn. The Korean War was on and I spent two years stateside with the OSI [Office of Special Investigations]. I went to law school at Yale and I had an interest in settling in Denver, where I worked for a law firm between my second and third years of law school. I was doing very well, until they found out I was Jewish. They didn’t hire Jewish fellows. I liked Philadelphia a lot and had a number of offers here, so I joined a very fine firm here— Barnes, Dechert, Price, Meyers and Rhoads—and I married a Philadelphia girl, and I’ve been here ever since.

Q. So Philadelphia came through for you when it came to battling anti-Semitism?
A. Well, anti-Semitism, like racism, bubbles just a little bit below the surface. I’m glad to say I think those days are over. Law firms all over the country and all over the world are hiring talent now. I think we are over that, but when I was in law school it was a problem. And I talk about it because I think it’s important for people to recognize it, and not to pretend that it never happened.

Q. In your final floor statement in the Senate, you said ‘partisan gridlock’ and ‘abuse of the Senate rules’ have damaged what you called the ‘world’s greatest deliberative body.’
A. The tradition is to have a farewell address, but I used the opportunity to make what I called a closing argument, to try to bring about some changes. It used to be that the Senate was a place where any senator could offer virtually any amendment at virtually any time and get a vote. So, with unlimited debate you could bring up new ideas and debate them. It’s a pretty good forum for attracting public attention and really doing something constructive. And then there was a rule that was abused by majority leaders of both sides where they would offer amendments so that no further amendments could be offered. They called it ‘filling the tree.’ It was a procedural device, and when it was done by Republicans, the Democrats would object that they didn’t have a chance to offer amendments and they would filibuster. The filibusters were very abusive. To break a filibuster you need 60 votes and it takes about three days of the Senate’s time.

At the same time there was a lot of partisanship over judges, because the cultural wars have been fought out at times in the federal courts on questions like a woman’s right to choose, school prayer, embryonic stem cell research. And the political parties have been controlled by the fringes. They control the primary process. For example, an excellent senator like Joe Lieberman couldn’t win a primary in Connecticut [in 2006]. I couldn’t win a Republican primary in Pennsylvania [in 2010]. Bob Bennett [former Republican Senator] of Utah had a 93 percent conservative record and he couldn’t win a primary in Utah. [Republican Senator] Lisa Murkowski in Alaska lost her primary, and she was opposed by members of the Republican caucus. People that she sits with every Tuesday for lunch, and with whom she talks about party affairs, felt she wasn’t sufficiently conservative. I called that in my speech sophisticated cannibalism, and I made a mistake; I should not have called it sophisticated. It’s just raw cannibalism. The fights between the parties have descended to a level where right now it appears we are going to have two years of chaos, until the decision is made about who is going to be elected president in 2012.

Q. Of all the places you could teach, why did you choose Penn Law, and how will you incorporate your Senate experience into your course on the separation of powers?
A. I chose Penn because it’s one of the best law schools in the country. ... And I know a lot of the people at Penn, including one of the distinguished visiting professors named Shanin Specter [Arlen Specter’s son]. I taught at Penn in 1969, 1970 and 1971, so I know the Law School and it’s a terrific place. I have keen interest in developing ideas about the Supreme Court for the next generation of lawyers. I think it’s very important for people who have been fortunate enough to have had the kind of experiences as I’ve had to share the experiences with other people.

Q. One of the areas you will be delving into in your teaching is the relationship between Congress and the Supreme Court, as well as the confirmation process. Why focus on that?
A. I think the Supreme Court needs to be better understood, and one of the ways to have it understood is to televise the court, which is something I’ve been trying to do for virtually my entire Senate career. The supreme court of Great Britain is televised, as is the supreme court of Canada, the state supreme courts, the U.S. Senate and the House; but the U.S. Supreme Court has resisted. … One of the grave problems of the confirmation process is that [Supreme Court] nominees make a lot of statements that are really close to commitments—you can’t sue them for deviating—but there is such a practice of totally ignoring the statements that there really needs to be a way to deal with it. For example, [Chief Justice John] Roberts wrote a concurring opinion joined by [Justice Samuel] Alito in Citizens United [v. Federal Election Commission] that is a 180-degree U-turn from the questioning in the confirmation hearings on following precedents stare decisis and on being deferential to Congressional findings of fact. And, the Supreme Court decides all the cutting issues of the day. They need to be understood. I think the legitimacy of the Supreme Court really is under attack at the moment. Not too many people know it, but their decision in Bush v. Gore was disgraceful. I use that word knowingly. [Justice Antonin] Scalia said irreparable damage would be done to President Bush’s legitimacy if the votes were counted, which made absolutely no sense. ...And there’s Citizens United, and they’ve just made a mockery of the statute which governs changes in the rules of civil procedure, but that’s a long story. …Those are some of the thoughts on my mind, just some.

Q. Penn President Amy Gutmann has said she hopes that your presence on campus will encourage more students to pursue careers in public service.
A. I’m pleased to hear that she said that. I’ve long contended that government does not have the best and the brightest. … When I came out of law school I became a committeeman to try and work through the political ranks. Being hired in the district attorney’s office was political at the time. But once I got to City Hall I found the level of professionalism was much inferior to what there was at the big law firms. I’ve always tried to bring people into government. When I was elected DA, I had a special recruiting policy. I went to all the big law firms to try to secure a young lawyer for two years to get his services and to get experience for him. ... I’ve spoken at countless colleges and high schools and I’ve always carried the theme of ‘get involved,’ and when I interact with the [Penn Law] students I’ll be carrying that message forward. Of course my whole career has been a statement to that effect.

Faculty Research Brief Series

In the United States, both constitutional law and tort law recognize people’s right to privacy: a legal entitlement to an intimate life of one’s own free from undue interference by the state and others. For lesbian, gay, bisexual, and transgender (LGBT) people seeking to protect that right, the constitutional arena has brought a modicum of well-known success. In 2003, for example, two cases suggested that LGBT people had come a long way in having their right to privacy protected under constitutional law. In Lawrence v. Texas, the Supreme Court struck down laws criminalizing consensual sexual acts between same-sex adults, and in Goodridge v. Dep’t of Pub. Health, the Massachusetts Supreme Court recognized the right to same-sex marriage.

Penn Law and Public Service

Penn Law’s William Burke-White, currently on public service leave at the U.S. Department of State serving on Secretary Clinton’s Policy Planning staff, is a Professor of Law and international legal expert whose research addresses issues related to international law and institutions, with particular interests in global governance, human rights, and international financial law.

He recently spoke with Penn Law’s Office of Communications about his work in government and a recently published groundbreaking State Department review of how the United States approaches diplomacy and international development.

Penn Law (PL): What attracted you to government service, and what contributions do you think legal scholars can make in international affairs?

Prof. William Burke-White (WBW): First and foremost for me is the opportunity to serve our country. There is no greater contribution one can make than to serve in government. And 2008 was a moment when the call to service and the chance to change things was quite extraordinary. So, for me, it was a simple choice when presented with the opportunity to bring both my substantive knowledge and my commitment to serve Secretary Clinton at the State Department.

Beyond my desire to serve, as an international lawyer I have seen clearly that governments have the biggest ability to impact the international legal system. From that perspective, there was a very practical reason to come into government. And, in the process, I’ve learned a great deal that will influence my scholarship going forward.

PL: You and your colleagues on the Policy Planning staff worked on the Quadrennial Diplomacy and Development Review (QDDR), which was recently released. What is it, and why is it important?

WBW: When then-Senator Clinton was on the Armed Services Committee, she watched how every four years the Department of Defense produces the Quadrennial Defense Review, through which the Department of Defense looks ahead and asks, what capabilities it needs to meet America’s military needs in the years ahead? That is something the Department of State had never done. And so Secretary Clinton wisely decided a year and a half ago that we should undertake a Quadrennial Diplomacy and Development Review to look ahead at the challenges of the future and build the diplomatic and development capabilities America will need over the next decade. One of the surprises in government, even in the policy planning office where we’re supposed to be looking ahead, is the fact that day-to-day events to take over. Whether it’s an earthquake in Haiti or demonstrations in Egypt.

Through the QDDR Secretary Clinton tasked us with the simple question: “how can we do better?” And the answer that the Review, in all its 251 pages, is that the U.S. needs to lead in the world today through civilian power as much as through military power. In a world of budget constraint, civilian power is far cheaper, but it is also far more effective.

Another fundamental change in our foreign policy in the last 20 years is the fact that every civilian agency, whether it’s the Department of Agriculture or the Department of Health and Human Services, is active overseas. All of the things the civilian agencies of government are doing, when brought together in the service of a unified plan, constitute America’s civilian power. The QDDR lays out a blueprint for how we can harness that civilian power to deliver the results America needs today.

PL: What does the QDDR say about the importance of the rule of law and international legal regimes and institutions, as aspects of US diplomacy and diplomatic efforts?

WBW: The QDDR is a capabilities review. It examines the capabilities we need going forward. One of those capabilities is building a global architecture of cooperation: elevating our engagement with multilateral institutions; strengthening the way we deal with regional organizations; and working better with rising powers. International law itself is not a focus of the QDDR, largely because multilateral cooperation today often happens in other fora such as the G20, which is not about creating international legal rules, but rather getting governments to harmonize their domestic policies. And so the focus of the QDDR is much more on getting international organizations to work, and work well, and changing how we work with regional organizations, rather than saying we need more treaties.

PL: But the phrase “rule of law” comes up a lot in the report, along with the themes of course of international development and institution-building.

WBW: Absolutely, and there are two fundamental things that Secretary Clinton recognizes in this report. The first is that development is an equal pillar of American foreign policy, alongside diplomacy and defense. And that we need to build the capability of foreign governments to be able to be our partners in solving collective challenges, so that they can take care of their own problems themselves. Second, Secretary Clinton recognizes that a conflict or crisis anywhere in the world, where a state is weak or failing, is a threat to us, and that we need to prevent those conflicts so we’re not always responding to them in more costly ways.

And lurking in both of those recognitions, is something that the reports spends a lot of time talking about, which is the need to build effective justice systems within countries. If you don’t have a local justice system that can resolve grievances, then conflict will fester, or even after there’s been a military solution, on the country won’t be able to transition toward long-term development. And so is the QDDR charts a course toward the US role in building effective justice systems in post-conflict environments.

In the past, American’s response has often been to build security capacity in other countries, - for example, providing military assistance or training. Perhaps the best example is Haiti, where we have spent a vast amount of money building a very strong police force. And today, in Haiti, the police force is the most respected institution, domestically, within the whole government. However, we have not been as consistent or effective in helping states build justice systems that work. Haiti’s justice system has among the longest pre-trial detention times in the world. Ultimately that’s not sustainable, because you can have a good police system, but if you can’t then prove people guilty or innocent, you don’t resolve the underlying problems. So going forward from the QDDR, our approach will be far more holistic—investing in all aspects of security and justice sector reform.

PL: How will your experience in government impact your research when you return to teaching? And what would you advise your law students who may be considering careers in public or government service?

WBW: My experience has transformed my scholarship as well as the way I think in some very important ways. It’s changed the way I think about international law itself. International law is based on state practice, what states actually do. And as a scholar who previously hadn’t been in government, it is easy to assume that everything a state does is the result of a conscious choice. One of the things you quickly learn in government is that more often than not, state practice is based on the fact that a decision was not made rather than that one was made.

Also, as an international lawyer, my experience has forced me to grapple with what international law means in a world of rising powers. Separate from the QDDR, the other major project I’ve worked on is a public report on global governance – how states cooperate in the international system. And through that process, I traveled to rising powers, including China, Brazil, South Africa, India, Japan, states in the Middle East, and and talked with them about the role of international law and how states cooperate. Likely my first major academic project when I return will take a serious look at how we create international legal rules in a world of rising powers – a world in which those powers’ interests are not always aligned and in which multilateral agreements are very, very hard to reach.

It’s not a sort of skepticism of international law, but a recognition that it’s much harder to reach international agreements today than it was when the international community was defined by the trans-Atlantic alliance that shared common values, even when interests divided.

In terms of my teaching, I have always been an idealist at heart. And my teaching will still have that note of idealism, but it will be grounded in the practicality of how international law actually gets made. It will recognize the bureaucratic process as a bigger part of that how government operates than I appreciated before coming into government.

And for students who seek careers in government service with an international dimension, my biggest realization is that basically every agency of the federal government—and even many state governments—are working overseas today. The Department of Agriculture had 22 pages of comments on the QDDR precisely because of all the work it is doing overseas. So, don’t confine your job search to the Department of State or the Department of Defense, but recognize that there are jobs that involve international work, and even international law, at every single agency of the US government.

My final piece of advice is that, particularly in the kind of career environment we have today, plotting a career that brings you both into government and out of government at different times along the way makes a great deal of sense. That if you do nothing but government, one could argue it’s hard to have perspective, but that finding a path that gives you the inside as well as the outside, that lets you bring new skills, new expertise, and new ideas into government, is essential.

By Jenny Chung C’12

Inaugurating Penn Law’s International Human Rights Law Speaker Series, Hauwa Ibrahim, a Bok Visiting International Professor this semester and a senior partner at Aries Law Firm in Nigeria, presented a talk Tuesday in the Berylson Family Classroom (Gittis 1) to an audience of students on the topic of justice under Shari’a--Islamic law--in Africa, focusing particularly on women’s human rights.

Ibrahim opened with some general reflections on her experience thus far as a visiting professor and of the universal nature of the issues she addresses as a lawyer defending women accused of crimes under Shari’a. “They could, by extension, concern all of us,” she said, observing that international human rights advocacy in general is closely tied to the ideal of “global peace and freedom.”

According to Ibrahim, while Shari’a law was officially introduced into northern Nigeria in 1999, the Nigerian constitution had even before then provided for its application. In 1999, however, a new set of punishments for five offenses were introduced. Under these provisions, for example, drinking alcohol was punishable by public flogging, theft by amputation, and marital infidelity by lethal stoning. “If you kill, you will die the way you killed -- it’s the idea of ‘an eye for an eye, a tooth for a tooth,’” Ibrahim said, adding that despite the harsh penalties it prescribes, Shari’a--like Islam--is grounded in ideas of “human dignity, justice and freedom.” 

Copyright 2011, Philadelphia Bar Association. Used with permission. 

John O. Honnold, the William A. Schnader Professor of Commercial Law Emeritus at the University of Pennsylvania Law School and an expert in private international law who was known as the father of the Vienna Convention, died on January 21. He was 95 and lived in Kennett Square, PA.

Update:

Philadelphia Inquirer: John O. Honnold Jr., 95; a Penn law professor who played an active role in 20th century events 

Q&A by Kevin Harnett. Reprinted from The Pennsylvania Gazette.

Civil procedure – the rules courts follow when handling lawsuits – used to be regarded as boring and beside the point. The fact that it's now understood as central to what a law means in practice is due in no small part to the scholarship of Stephen Burbank, the David Berger Professor for the Administration of Justice.

Burbank's interdisciplinary work – joining law, history, and political science – has shown how seemingly esoteric changes in the Federal Rules of Civil and Criminal Procedure can have a profound impact on the way the courts deliver justice, and how in recent times a more assertive Congress has seized on this form of "backdoor" lawmaking.

Take, for example, the Class Action Fairness Act of 2005, the first major legislation of George W. Bush's second term. While the act did not explicitly limit Americans' right to sue, Burbank notes, it shifted class-action suits in excess of $5 million from state courts to the more complex federal courts, a move that critics charged would have the de facto effect of protecting corporations by making such litigation harder to pursue.

Here Burbank talks about the increasingly tumultuous relationship between law and politics, including the hyper-politicization of the Supreme Court, the dangers of a legal system jammed with lawsuits, and a few things Republicans learned from Democrats about exploiting the law for political gain.

He also takes a moment to talk about his other job – as Special Master to the National Football League – which will make him a pivotal figure over the next year as players and owners face-off over the fate of the 2011-2012 season.

You've written about the power of procedural rulemaking to determine the way a law functions in practice. Can you explain what you mean by that?

What people have realized, much more than used to be the case, is that even though there was a great deal of rhetoric about procedure as technical – as unimportant stuff that should be left to the experts – the fact is that in many rules of procedure there lies tremendous power. There's the story that may or may not be apocryphal that, I think it was [US Representative] John Dingell told one of his colleagues, "You write the substance and I'll write the procedure and I'll screw you every time." I believe that. Congress now understands that procedure can be very useful – in a political sense – to mask what are essentially substantive decisions.


In the recent midterm elections three state Supreme Court justices in Iowa were recalled because they'd ruled in favor of gay marriage. What do you make of the charge that these justices had acted as "legislators in robes"?

That's nonsense. I have no reason to believe they were doing anything other than faithfully interpreting the legal sources that were before them. It's very convenient for groups – and unfortunately it happens to usually be the Right these days – to pretend that law is easy to ascertain and that all a judge has to do, to use Chief Justice Roberts' unfortunate metaphor, is play an umpire... Anybody who knows baseball knows that umpires have different strike zones. The notion that all law is determinate is nuts, just as I think it's not helpful to pretend that all law is radically indeterminate.


Another place where politics has a big effect on the law is judicial appointments. Do you think the current Supreme Court is more ideological than previous courts?

More than it has been in the recent past, yes. Though one could certainly make the argument that the Warren Court was as ideologically tilted to the Left as the current court is ideologically tilted to the Right. The Right saw how effective the Left had been in using the courts to secure what they wanted when they couldn't get it from the legislature, and they decided to pay close attention to getting people of their political stripe put on the courts. They've been very successful in that.


Do you think the justices Obama appointed – Sotomayor and Kagan – are less ideological than the two Bush appointed – Roberts and Alito?

Oh yes, absolutely. Note that in terms of the politics of federal judicial appointments, if one party is nominating middle-of-the-road candidates it becomes pretty easy to focus on the few that seem to be left-of-center or maybe even further than that and block them. But if the other party is nominating only hard-right judges, there are only so many that you can block.


New topic. Beginning in the 1970s the volume of private litigation in the US ballooned. Why was this?

The 800-pound gorilla in this landscape is the class action. The class action is not by and large a legal instrument that is provided by statute, or regulated by statute. It is the result of this rulemaking process that I was talking about. Like all of the federal rules, or almost all of them, the class-action rule was written to apply to all types of cases. If you add the power of the class action to the private enforcement regime that's already in place, you can have a very powerful vehicle for enforcement – which can lead in some circumstances to over-enforcement. It's a problem.


Litigation has also increased tremendously in complexity over the past few decades. Do you think this has created a barrier to justice?

I don't think there's any question about it. It's really a scandal, a scandal. If you're looking for causal explanations, there are a lot of them. They certainly include the pretty chronic under-funding of the courts, questions about the adequacy of alternatives to the courts – particularly arbitration – and the failure of imagination on the part of people responsible for providing viable alternatives to the state of nature.

One of the things I recommend is something that the federal rulemakers have refused to do for decades: the creation of at least one separate track for simple cases. You wouldn't get very much discovery, but what you would get would be a realistic chance of a trial.
 

It seems to favor the powerful when litigation becomes more complex and the courts are underfunded. Do you think this situation is incidental or were interest groups behind it?

I think there is some of that. People don't like to think about it, but [there's] the old saying: a right without a remedy is worthless. Throughout the world many lawmaking bodies create rights without providing the mechanisms that are necessary for the enjoyment of those rights.


Turning to football. You are the special master to the NFL. Special master is not a designation a lot of people are familiar with – can you explain it?

A special master is somebody appointed by a court, in this case a federal court, to perform certain tasks as specified by the court. The special master who was appointed by the court – on the joint recommendation of class council, which is the union, and the league – resolves certain types of disputes which, roughly put, relate to or might be thought to implicate the concerns underlying the claims made in the NFL antitrust litigation [of the early-1990s]. Thus for instance the special master resolves questions that have to do with free agency.


You've stayed with the job for eight years — what do you like about it?

It's interesting, and obviously, students particularly think it's very sexy until – as happened on one occasion at least – I've secured the agreement of the parties to have some students sit in on the hearings, and they find out that what it involves is usually very hard questions of contract interpretation. The Collective Bargaining Agreement is a long, complex document and both sides have extremely good lawyers, which means that they have the good sense to settle most of the disputes they have. The ones that I see are only the hardest disputes, either in terms of doubts about what the proper answer is, or hard in the sense of very difficult for their client to accept.


Your first case as Special Master involved the All-Pro wide receiver Terrell Owens, and whether he could be traded to the Eagles. Do you hear from fans when you decide disputes like that?

I get emails encouraging me to rule one way or the other, or if they don't like a ruling, saying, You idiot! How could you rule like this?

On December 22, 2010 Tobias Barrington Wolff, a professor at the University of Pennsylvania Law School, attended by special invitation the White House signing ceremony marking the repeal of the "Don't Ask Don't Tell" (DADT) policy, enacted in 1993. The policy prohibited lesbian, gay and bisexual U.S. service members from speaking honestly about their identities or having any kind of private romantic relationships — twenty-four hours a day, seven days a week, whether on duty or off duty.

Wolff has written and researched widely on the topic and from 2007 to 2008 served as an advisor to Barack Obama's presidential campaign. He spoke with Penn Law's office of communications about the repeal of DADT and future legal and policy implications.

Penn Law School (PLS): Please tell us about your scholarship and policy involvement with DADT.

Tobias Barrington Wolff (TBW): My involvement with the policy goes back about 14 years. My scholarly work has focused mostly on an examination of the policy's First Amendment and free speech implications. In fact, I wrote my first law review article on the policy, as a third-year law student, and published it after I graduated. The DADT policy represented a singular kind of speech regulation in American legal history. It was the most direct form of regulation of identity speech that we've ever seen. And it's the only instance of which I'm aware in American law where the government passed a regulation that restricted the behavior of a group of people and then prohibited them from even identifying themselves as the individuals who were being regulated.

It represented a singular affront, both to the individual rights of U.S. service members in their dignity and their ability to express themselves, and to the democratic values that demand that the relevant voices in an important public debate be heard. And of course, throughout the entire life of DADT the one voice that we couldn't hear from was the gay, lesbian, and bisexual service members who were living under the policy every day – because identifying themselves and participating in that debate would have required them to end their careers and be discharged from the military.

PLS: What course of events led you to be at the White House signing ceremony with President Obama, and what were your thoughts when the President signed the repeal?

TBW: I became involved with the Obama campaign in June 2007 when they asked me to serve as the chair of their advisory committee on lesbian, gay, bisexual and transgender (LGBT) policy issues. I served as an advisor for a year and-a-half. I did a lot of speaking engagements and frequently dealt with the press on those issues for the campaign, in addition to my assistance with policy work. After the president took office, obviously I knew a lot of people in his administration and the relationship continued. I've been advising the White House periodically on related issues.

President Obama has been working on repeal of DADT since he first took office. In the more focused process that played out over the last year, I've attempted to offer my input and guidance to the administration as they navigated the very difficult political landscape – getting the support they would need in Congress, and getting the buy-in they saw as necessary from the Pentagon and the senior military leadership in order to get this done. It took such extraordinary skill – in leadership, governance, and statesmanship – on the part of the president and his administration. I've been doing this work for 14 years and I can tell you that even a couple of years ago advocates for the policy's repeal weren't sure that it was politically possible to get this done.

When they scheduled the signing ceremony they invited me to attend, and I wound up sitting in the center of the front row. I literally had a front row seat to history. It was overwhelming.

PLS: What are the implications of repeal? Where do we go from here?

TBW: The statute just signed into law requires that the president, the secretary of defense, and the chairman of the Joint Chiefs of Staff certify that repeal of DADT can be implemented successfully and that the preparations, regulations, and so forth that are necessary can be put in place. The president has made it clear that he expects that certification process to be done carefully, but swiftly. There has been reporting since the signing ceremony that he has spoken with each of the service chiefs and they believe they will be able to complete their preparations with dispatch.

It's going to be a matter of months for certification, and if the experience of other militaries around the world is any indication – there are about 25 nations around the world who have gotten rid of their anti-gay policies and integrated gays and lesbians, and they have done it easily and without substantial problems – then the certification process will not take very long and it will be a smooth transition.

The repeal of DADT is important in and of itself, but it's also an opportunity to change the nature of the conversation about LGBT people around the country. Military service has always been taken as one of the markers of first-class citizenship. Before now, there has always been an impediment to arguing for other forms of equal treatment for LGBT Americans when this one very visible and important marker of citizenship was being denied to them by federal statute. Now that it is being taken off the books, I think that a lot of other conversations about equal treatment under law will change for the better.

Summers is survived by his wife, Evelyn, sons Mark and Craig, daughters Erica and Lisa, a sister Majel Drake, and eight grandchildren. Donations may be made to the Peggy Browning Fund, which provides fellowships for law students dedicated to improving the lives of workers, at 1525 Walnut St., Philadelphia 19102 or to the Association for Union Democracy, 104 Montgomery St., Brooklyn, NY, 11225.

Updates:

New York Times: Clyde W. Summers, Advocate of Labor Union Democracy

Philadelphia Inquirer:  Clyde Summers, Expert on Law and Labor

Washington Post & San Francisco Examiner: Clyde W. Summers Dies, Legal Scholar Was Influential Advocate of Union Democracy

Memorial Service: A service to honor and remember Professor Summers will be held at the Law School's Levy Conference Center on Saturday, April 16, at 2pm.

Merion, PA – The University of Pennsylvania Law School faculty gathered here in September for their annual retreat, a tradition designed to renew the intellectual vitality and camaraderie of the Law School’s academic community. The retreat included scholarly panel discussions on a range of legal topics, from gay rights, to the use of empirical research in the law, to health law, the financial crisis, and copyright law beyond fair use.

“The idea of a day devoted to intense academic discussion and to building social connections with colleagues makes our faculty retreat a unique Penn Law institution,” said Dean Michael Fitts. “The retreat allows us to come together as a group for an entire day to discuss and debate some of the most significant issues that lawyers face today, and to do so in a relaxed setting. Everyone comes away with a renewed appreciation for our community's energy, intelligence and cohesiveness, even as we represent incredibly diverse intellectual perspectives."

Click any photo above to view a slideshow of the retreat.      Click above to view a video of the retreat.

Jean Galbraith, a Sharswood Fellow at the University of Pennsylvania Law School, has won the 2010 American Inns of Court Warren E. Burger Prize. Ms. Galbraith receives a cash prize of $5,000 and her winning essay will be published in the South Carolina Law Review. The award will be presented on October 23, 2010, at the American Inns of Court’s Celebration of Excellence, hosted by Justice Clarence Thomas, at the Supreme Court of the United States.

Excerpted from the American Inns of Court website.

Articles by Penn Law Professors Tom Baker, William W. Bratton, Jill E. Fisch, Edward B. Rock and Michael L. Wachter are among the Top Ten corporate and securities articles for 2009, as listed by the Corporate Practice Commentator. The articles were selected by teachers in corporate and securities law from a list of articles published and indexed in legal journals during 2009.

University of Pennsylvania Law School students’ work on the Supreme Court case, Padilla v. Kentucky has resulted in the Court ruling in their favor. The Supreme Court decision means that lawyers must tell non-citizen criminal defendants whether pleading guilty to a crime could lead to their deportation.

In October, students were at the Supreme Court to hear oral arguments in the case. “Penn is very fortunate to be partnered with excellent lawyers who allow us to leverage our own abilities and for our students see top notch advocacy at work,” Bibas says. “It’s great for the students to be able to watch the laws as they’re being made. It’s a capstone to their third year of legal education. It’s something they can get here that not many law students have an opportunity to do.”

The University of Pennsylvania Law School has appointed two new members to its standing faculty: William Wilson Bratton, a nationally renowned expert in business law, and Tess Wilkinson-Ryan, a rising interdisciplinary scholar in law and psychology.

“I am delighted to welcome these outstanding scholars to Penn Law's standing faculty,” said Dean Michael A. Fitts. “As a leading expert in business law, Bill Bratton will be a valuable addition to the Law School’s already strong concentration in business law. And Tess Wilkinson-Ryan, an up-and-coming legal talent, will further Penn Law’s standing as a pioneer in interdisciplinary legal education. Just as important, both Bill and Tess are exceptional teachers and collaborators who will enhance the intellectual vitality of the Law School.”

William Wilson Bratton is presently the Peter P. Weidenbruch, Jr. Professor of Business Law at the Georgetown University Law Center.  He served as a Visiting Professor of Law at the University of Pennsylvania Law School for the 2009-10 academic year. Bratton is also a Research Associate at the European Corporate Governance Institute in Brussels, Belgium and this year’s Anton Philips Professor at the Faculty of Law at Tilburg University in the Netherlands.  Bratton is an expert in corporate law, legal history, and law and economics. His recent scholarship addresses a range of topics, including shareholder primacy, hedge fund activism, financial accounting standards, dividend policy, executive pay, and merger valuation.  He is the editor of Corporate Finance: Case and Materials and the co-editor of an Oxford Press Collection of essays on regulatory competition.  He is a member of the American Law Institute, the American Economics Association and the American Finance Association. Before joining Georgetown Law, Bratton served on the faculties of Cardozo Law School, Rutgers School of Law-Newark and George Washington University Law School.  He previously clerked for Judge William H. Timbers of the Second Circuit, U.S. Court of Appeals and practiced corporate law at Debevoise & Plimpton in New York. Bratton earned his BA and JD from Columbia University.

Tess Wilkinson-Ryan, a rising interdisciplinary scholar who studies the crossroads of law and psychology, is currently a Sharswood Fellow at the University of Pennsylvania Law School. Wilkinson-Ryan’s recent research applies experimental paradigms from psychology and behavioral economics to investigate the role of moral intuitions in legal decision-making, including breach of contract and divorce negotiations.  She has published numerous articles in law reviews and peer reviewed journals. Wilkinson-Ryan holds a BA from Harvard University and a JD and PhD in psychology from the University of Pennsylvania.

Over 100 students, professors and members of the bar attended a federal judges panel on Tuesday, Feb. 2, hosted by the University of Pennsylvania Law School’s Chapter of the American Constitution Society (ACS). Penn Law Professor Catherine Struve moderated the discussion, which included judges from four federal courts: Hon. R. Guy Cole, Jr. of the Sixth Circuit; Hon. Gene E. K. Pratter of the Eastern District of Pennsylvania; Hon. Stephen Reinhardt of the Ninth Circuit; and Hon. Marjorie Rendell of the Third Circuit.

Penn Law’s ACS Chapter was formed in 2001 with the goal to help revitalize and transform contemporary debate about the role of law in society. This is the seventh consecutive year that the Chapter has organized a federal judges panel.

The University of Pennsylvania Law School will co-sponsor the inaugural East Asian Law and Society Conference and sponsor a reception in Hong Kong on Feb. 5 to welcome participants and show its support for this new, cross-disciplinary initiative.  The conference, hosted at Hong Kong University, will bring together experts from around the globe to discuss cutting edge issues related to law and its impact in East Asia.  Deputy Dean for International Affairs Eric A. Feldman will attend the conference on behalf of Penn Law.  “The Law School is pleased to support the first East Asian Law and Society Conference and looks forward to expanding its ties in the region,” Dean Feldman noted before his departure for Hong Kong.

The Penn Program on Regulation (PPR) hosted a panel discussion at the Wharton School on Tuesday, Jan. 26 to assess President Obama’s regulatory record a year after he took office. PPR Executive Director Adam Finkel introduced the event and PPR Director Cary Coglianese moderated.   

Penn Law Professor Christopher Yoo will speak at the FCC's workshop on “Innovation, Investment, and the Open Internet” on Wednesday, January 13, at 4:30 p.m. The workshop will examine how the internet's openness affects the ability of network operators, internet content and application providers and other Internet technology developers to innovate and to drive investment, job creation and economic growth through the internet ecosystem. The workshop will take place at MIT’s media lab in Cambridge, Massachusetts, and will be streamed live over the internet at www.openinternet.gov/workshops.

Students in Penn Law's Supreme Court Clinic were back at the Supreme Court on January 12 for oral arguments in the second case they've handled this school year. Professor Stephanos Bibas, Lecturer Stephen Kinnaird and the students assisted in researching, writing briefs and preparing strategy in Abbott v. Abbott. The international child abduction case involves a parent taking a child out of a country without the other parent's consent.

The Penn Law group researched family law and international treaties on child custody from several countries, strategized, and edited and rewrote briefs. "The work was my first introduction to the challenges of international legal research," said student, Rick Bold. "I had to learn how not only to find the relevant statutes or code provisions, but I had to find them in English."

"Writing the briefs has been a collaborative project that has challenged my writing and forced me to be open to suggestion and criticism," student, Chad Albert said. "The drafts that we submit to Professor Bibas and Mr. Kinnaird invariably change dramatically before they are submitted to the Court, and the process of having my work torn to shreds and then rebuilt has given me invaluable insight into the editing process at the highest level of legal writing."

Attorney, Karl Hays of Austin, Texas argued the case before the Supreme Court, with Professor Bibas and Kinnaird second-chairing. Hays represents Jacquelyn Vaye Abbott in her case against her former husband, Timothy Mark Cameron Abbott. Jacquelyn Abbott was awarded custody of their son in Chile, where they lived at the time. Later, she took the child from Chile to Texas without Timothy Abbott's consent.

To Hays, the Penn Law Supreme Court Clinic is an invaluable resource. "They can analyze and synthesize various issues I couldn't do on my own," Hays said. "They had the ability to research foreign case law, various other conventions and treaties that a solo attorney in Austin couldn't do."

"The students' work and creativity allowed us to put arguments before the Court that had not previously been considered in Hague Convention cases," said Kinnaird, who also heads the Supreme Court practice in the Washington, D.C., law offices of Paul Hastings.

The work on the case was educational for everyone involved. "It's been a fascinating adventure," said Bibas. We've all been able to learn a lot. We didn't know details about the Hague Convention when we started."

"The chance to be doing hands on, live research, in front of the highest court in the land no less, breathes life and passion into the experience in a way that studying something in the mere academic sense in a classroom never could, said student, Dane Reinstedt.

In a bit of friendly inter-school rivalry, Stanford Law's Supreme Court Litigation Clinic assisted Timothy Abbott's attorneys. This is the first time one law school assisted one side of the case and another law school handled the other side in a Supreme Court case.

The friendly rivalry between Bibas and Stanford Law Professor and Clinic director, Jeffrey Fisher runs deeper. They've debated each other in public forums, and the two clinics have competed for several cases, but the world of the Supreme Court bar is collegial. Fisher advised Bibas in starting Penn Law's clinic.

Abbott v. Abbott is the Penn Law Clinic's second Supreme Court case this school year. In October, the Penn Law class also assisted in Padilla v. Kentucky, a case that tests the limits of the Sixth Amendment's guarantee of effective assistance of counsel for non-citizen criminal defendants. Rulings in both cases are expected by the spring.

Penn Law Professor Kermit Roosevelt has been announced as 2009 honoree for Exemplary Legal Writing by the Green Bag, a law journal dedicated to good legal writing. The award recognizes Roosevelt in the news and editorial category for his essay Justice Cincinnatus: David Souter – a dying breed, the Yankee Republican, which was published on Slate on May 1, 2009. Roosevelt clerked for Justice Souter during the 1999-2000 term.

Under Pennsylvania’s criminal code, reading someone’s email without permission is treated like robbery – a third-degree felony with a maximum sentence of seven years.

Penn Law Professor Christopher Yoo, director of the Center for Technology, Innovation and Competition, will testify before the House Judiciary Committee on Wednesday, Dec. 16 on “Piracy of Live Sports Broadcasting Over the Internet.”  See: http://judiciary.house.gov/hearings/hear_091216.html

Penn Law Senior Fellow David Rudovsky will receive the Pennsylvania ACLU’s inaugural Keystone of Civil Liberties Award during its Bill of Rights Dinner on Tuesday, Dec. 15, 2009. Rudovsky, one of the nation’s leading civil rights and criminal defense attorneys, practices public interest law with the firm of Kairys, Rudovsky, Messing & Feinberg. He has devoted his career to furthering civil liberties and civil rights in cases involving governmental misconduct, prisoners’ rights, first amendment freedoms, and racial discrimination.

Updates:

Concurring Opinions: "He was as fine a teacher as he was a scholar."

First Amendment Center: "Ed was a modern-day gadfly, albeit one who wore wide-rimmed glasses that allowed him to see things that many of the rest of us could not."

Legal Theory: "Ed was a significant contributor to fundamental debates in constitutional theory for decades."

Balkinization: "The finest media law scholar of his generation."

Balkinization (2): "I’ve never seen the influence of the 'marketplace of ideas' on the Supreme Court documented or criticized as thoroughly as Baker does it."

Feminist Law Professors: "He was brilliant, funny, kind and fiercely invested in building a more just world."  

Daily Pennsylvanian: "He loved the underdog.”

C. Edwin Baker, the Nicholas F. Gallicchio Professor of Law and Communication at the University of Pennsylvania Law School and a leading scholar in the fields of constitutional law, communications law and free speech, died suddenly on Dec. 8 in New York City, where he had lived the past 20 years. He was 62. He collapsed while exercising and could not be revived.

Professor Baker was considered one of the country’s foremost authorities on the First Amendment and on mass media policy. Most recently, he focused his work on the economics of the news business, political philosophy, and jurisprudential questions concerning the egalitarian and libertarian bases of constitutional theory.

Recent rulings by the U.S. Supreme Court have circumvented the power of Congress and are undermining access to court and the constitutional right to trial by jury, a University of Pennsylvania Law School professor testified today (Dec. 2, 2009) before the Senate Judiciary Committee.

Penn Law Professor Christopher Yoo, co-director of the Center for Technology, Innovation and Competition, is speaking at two events in Washington, DC, on technology policy.

Eight students and their professor were at the Supreme Court Oct. 13, seeing their work in action in a case before the nation’s highest court. 

The seventh annual International Right to Know Day will be commemorated worldwide and celebrated with an awards ceremony in Bulgaria on Sept. 28. 

While more states move to legalize same-sex marriage, California has instead eliminated this right with the passage of Proposition 8. Penn Law Professor Tobias Barrington Wolff and civil rights attorney Eva Jefferson Paterson discuss the uncertain future of marriage equality in California during a program at UCLA's Hammer Museum. (Watch video. Run time 1:49.) Wolff served as co-chair of President Obama's LGBT advisory committee during the 2008 presidential campaign. He writes and teaches civil procedure and constitutional law. Paterson is the president and founder of the Equal Justice Society and former executive director at the Lawyers' Committee for Civil Rights.

Students at the University of Pennsylvania Law School will have even more opportunities to advocate for human rights and asylum protection, thanks to a gift from Skadden, Arps, Slate, Meagher & Flom and its partners. The gift honors Robert C. Sheehan, a 1969 graduate of the Law School who recently ended his 15-year tenure as executive partner of the law firm and assumed a new role as the firm’s pro bono partner.

University of Pennsylvania Law School Dean Michael A. Fitts has named Professor Anita Allen as deputy dean for academic affairs and Professor Eric Feldman as deputy dean for international affairs.

The University of Pennsylvania has launched the Penn Center for Neuroscience and Society, a cross-disciplinary endeavor to increase understanding of the impact of neuroscience on society through research and teaching and to encourage the responsible use of neuroscience for the benefit of humanity.

Penn Law Professor Stephen Morse has been named associate director of the Center.

Morse, the Ferdinand Wakeman Hubbell Professor of Law and professor of psychology and law in psychiatry, is a renowned expert in criminal and mental health law.  His work emphasizes individual responsibility in criminal and civil law. Morse is currently working on a book, Desert and Disease: Responsibility and Social Control, and he has served as a member of the MacArthur Foundation Research Network on Mental Health and Law.

University of Pennsylvania Law School Dean Michael A. Fitts has announced the appointment of five faculty to endowed professorships.

Many proposals to reform the U.S. patent system are on the table, but for Penn Law professors Polk Wagner and Gideon Parchomovsky most of them do not achieve a balance between improving patent quality and promoting innovation.

Since the mid-1980s, the number of patent applications has soared, creating a huge backlog and resulting in the approval of inventions that don’t meet the basic criteria of being useful, novel or non-obvious to a person skilled in the relevant field.

The increase in patent applications can be linked to a growing corporate tendency to use patents strategically, instead of using them to protect inventions.   Some companies began procuring patents to avoid future litigation, while for others patents are like lottery tickets, said Wagner.   Most patents have no commercial value whatsoever, but a small percentage do yield immense profits. Recognizing this needle in the haystack potential of patents, companies began creating large patent portfolios on the chance that one of them will yield some profit, he said.

Since only perhaps 6 percent of patents are commercialized, Wagner and Parchomovsky are proposing a fourth requirement for patentability — commercialization — to reduce the number of enforceable patents to lessen patent congestion. 

That black Americans lag behind whites on important measures of social and economic well-being is indisputable. Black men are disproportionately uneducated, unmarried, unemployed and incarcerated. Black women and their children endure high rates of poverty living in fatherless families. 

The University of Pennsylvania Law School has named four winners of teaching awards for the 2008-09 academic year. They are: Catherine Struve, the Harvey Levin Memorial Award for Teaching Excellence; Sarah Barringer Gordon, the Robert A. Gorman Award for Excellence in Teaching; Tobias Barrington Wolff, the A. Leo Levin Award for Excellence in an Introductory Course; and Lisa Scottoline, the Adjunct Teaching Award.

On the 20th anniversary of the Tiananmen Square uprising, Penn Law's Amy Gadsden criticizes the Obama administration for weakening America's human rights policy toward China. "When Secretary of State Hillary Clinton debuted on the diplomatic stage in China in February 2009, she made a point of elevating cooperation with China on pressing transnational problems over human rights issues," Gadsden writes for the Foreign Policy Research Institute. "In a moment of candor that was highly criticized, Secretary Clinton dismissed the importance of raising human rights with her Chinese counterparts, saying, 'We know what they are going to say because I've had those kinds of conversations for more than a decade with Chinese leaders.'”

"In 1989, China stood on the precipice of history," concludes Gadsden, Penn Law's associate dean and executive director of international programs. "After the Tiananmen crackdown it was unclear whether economic liberalization would continue and what the future of China might look like. It turned out to be another chapter in the story of China’s economic development, not its political reform. It would be comforting to think that China over the next twenty years will liberalize, but it is naive to assume that such changes are inevitable. China’s civil society groups offer tremendous hope for the protection of human rights in China and the Obama administration, perhaps above all others, should grow comfortable investing in this hope."

Should corporations have the right to remain silent? Penn Law Professor Tobias Wolff argues that they should not, especially when that right interferes with the government’s efforts to disseminate educational and safety information to the public.

How the judicial branch navigates its relationship to administrative agencies can shed light on the allocation of lawmaking power among the three branches of government, says Penn Law Professor Jill Fisch.  Fisch, a securities law expert, is using the case of Levy v. Sterling Holding Co. to explore this issue.

The Obama administration's handling of the Chrysler and GM bankruptcies "violates the basic rules of bankruptcy in ways that could have dangerous consequences", David Skeel told the House Judiciary Committee on May 21.

"Our bankruptcy laws are well designed to successfully restructure the automakers," he said. "There is a widespread misconception that bankruptcy means the death of a business, but the American bankruptcy laws are designed to preserve and restructure viable enterprises like the carmakers. The first major mistake with the carmakers was waiting so long to consider the bankruptcy option."

A complete copy of is testimony is available here.

Can a non-citizen who pleads guilty to a drug charge be deported because of that plea, even if his lawyer told him that he would not risk deportation by pleading guilty?

William Burke-White, a University of Pennsylvania Law School professor, has been appointed to a position in Secretary of State Hillary Clinton’s Office of Foreign Policy Planning.  
The office serves as the secretary’s internal think tank, providing her with direct and independent policy advice.  Burke-White, will advise Clinton on issues involving Russia and international law.
The Policy Planning staff's mission is to take a longer-term, strategic view of global trends and frame recommendations for the secretary to advance U.S. interests.
Burke-White will be on a two-year leave from Penn Law to serve in the office. 

Jacques deLisle, the Stephen A. Cozen Professor of Law, moderates a discussion [watch video] with President Clinton about how the American constitutional experience has influenced political thought and policy initiatives in other countries and the challenges of nurturing constitutionalism and democracy abroad.

Young, healthy people are an elusive group for health insurance companies.   Dubbed the “young invincibles,” they are 18 to 29 year olds who can afford to buy insurance but don’t because they are overly optimistic about not getting sick or injured.  

Legal education is entering a time of ferment and innovation, laws should recognize a right to privacy in public places, and the government’s intervention in the economy raises challenging questions for corporate law, three Penn Law professors told the Third Circuit Judicial Conference during its meeting in Philadelphia, May 4-6.

Articles by Penn Law Professors Edward B. Rock and Jill E. Fisch are among the Top Ten corporate and securities articles for 2008, as listed by the Corporate Practice Commentator.

At this year's Equal Justice Foundation auction, which raises money to support students who are exploring public interest careers, second-year Penn Law student Sarah McConaughy's bid was enough to secure the car washing talents of Professors Edward B. Rock and Jill E. Fisch.

While wearing roller skates.

"The winning bid was $290 -- and well worth it!" says McConaughy, who drove away in one clean set of wheels.

 [During their day jobs, Professors Rock and Fisch produced scholarship listed among the Top 10 corporate and securities articles for 2008.]

Regulatory agencies must make use of science, but they should not portray policy decisions as being the inevitable result of research findings, a University of Pennsylvania Law School professor told a congressional subcommittee today (April 30, 2009).

The federal government should take steps to improve the process of creating new regulations, three scholars at the University of Pennsylvania Law School recommend in comments submitted to the federal government as part of a review process ordered by President Obama.

For Alan Lerner, practice professor of law at Penn Law, emotions are just like gravity: an invisible force whose effects can be felt throughout the law. How else can one explain 5-4 and 6-3 splits on the Supreme Court on legal questions such as what constitutes cruel and unusual punishment, or an unreasonable search? If reason and logic were the only factors, then far more court decisions would be unanimous. 

Immigrants detained in the United States increasingly are denied due process, abused by local law enforcement and held in poor detention conditions, a delegation led by the University of Pennsylvania Law School told a hearing of the Inter-American Commission on Human Rights (IACHR).

Court deadlines don’t just cause anxiety for lawyers. They can mean the difference between life and death, says Penn Law Professor Catherine Struve.

PHILADELPHIA (March 16, 2009) – Amy Gadsden, an expert in democracy and human rights promotion and Chinese politics who has served the U.S. State Department, has joined the University of Pennsylvania Law School in the newly created position of associate dean and executive director of international programs.

Could an annuity scheme that was popular in the late 19^th Century hold the key to providing health insurance for young adults ages 19-29, the so-called young “invincibles” who account for more than one-third of all uninsured adults?

 Serena Mayeri

One might say that every week is public interest week at the University Pennsylvania Law School, where students must complete 70 hours of public service in order to graduate.

• Stephen Bright, director of the Southern Center for Human Rights, will lecture on the right to counsel at 5 p.m. on March 16, in Silverman Hall 240B. Bright is widely known for his work against the death penalty and his work toward providing the poor with improved access to lawyers and the legal system. “Poor defendants invariably receive inadequate defense assistance” argues Bright. “Rich people get a completely different kind of justice.” In addition to his public lecture, Bright will spend several days visit classes and meeting with students and faculty as this year’s Honorary Fellow, a distinction bestowed by the faculty on a public service leader.
• Linda Greenhouse, Pulitzer Prize winner and former reporter for the New York Times will examine the role of the courts in the annual Irving R. Segal Lecture, “How Judges Know What They Know.” She will speak at 4:30 p.m. on March 18 in the Levy Conference Center. A long-time reporter covering the U.S. Supreme Court, Greenhouse will discuss sources of judicial knowledge. She now serves as the Knight Distinguished Journalist-in-Residence and Joseph M. Goldstein Senior Fellow at Yale Law School.
• Jeremy Travis, president of John Jay College of Criminal Justice, will discuss prisoner reentry into society as part of his keynote address for the 28^th Annual Edward V. Sparer Symposium at 1:30 p.m. on March 20, in the Levy Conference Center. The Sparer Symposium honors Edward V. Sparer, a former professor at Penn Law School and a maverick in the field of public interest law and policy. This year’s theme is “Current Practices, Alternative Solutions: Crime in the City." Before becoming president at John Jay, Travis led a national research program focused on prisoner reentry into society as a senior fellow affiliated with the Justice Policy Center at the Urban Institute. Before Travis’ address, the symposium will bring together panels of legal thinkers and practitioners to discuss community-centered solutions, collaborative policing practices and possible sentencing reforms. Among the panelists will be Robin Steinberg, executive director of the Bronx Defenders; Philadelphia Police Commissioner Charles H. Ramsey; and Penn Law Professors Stephanos Bibas and David Rudovsky.

            Gather forty of the nation’s leading general counsel, law firm partners and legal academics in a San Diego conference room.  Add one economist. Welcome a U.S. congressman and a British solicitor via videoconference. Then, lob in this piece of raw meat: legal regulations are antiquated, law school accreditation requirements are misguided, and Big Law’s billable hours are corrosive.  Discuss. 

• Multi-jurisdictional practice. Members of the Bar in one state should be able to practice in any state, as long as they agree to abide by local rules. Federal preemption may be required to accomplish this.
• Litigation. Too much litigation is too expensive, primarily because of exhaustive discovery.
• Court reform. Rebecca Love Kourlis, a former justice of the Colorado Supreme Court who is executive director of the Institute for Advancement of the American Legal System, pointed out that judges have little incentive to control cases and that the Bar sometimes comes down hard on judges who efficiently manage cases through the system. The notion that court performance metrics must focus on measuring time to disposition alone is not only misleading, it can actually result in bad outcomes. According to Kourlis, this narrow view only encourages settlements, which in turn reduce trials and appellate decisions that contribute to the common law, making it harder for in-house counsel to assess risk and driving up legal costs. Kourlis contends that other measurements must be built into the performance assessment process and the Bar must demonstrate support for these criteria. Those other measurements should emphasize procedural fairness, such as: was the judge prepared for the hearing or process and respectful of participants; was he or she timely in moving the case along and in rendering decisions; and, were those decisions clear?
• Billing. The billable hour emphasizes effort over results and is leading many businesses to ramp-up in-house counsel or to out-source (to India) to control costs. “At large law firms, lawyers don’t know what their jobs are: make money or serve clients,” said Scott Gilbert, co-founder and chairman of Gilbert Oshinsky. Clients could force a new compensation structure on Big Law simply by refusing to hire firms that have billable hour quotas.
• Client-firm interactions. These associations need to become less transactional and more relational. “Clients should be willing to invest in firms beyond giving them business,” said David Wilkins, a professor at Harvard Law School. “Treat firms as true partners.”  Carla Powers-Herron, group counsel at Shell Oil Co., added: “The law firm structure has killed creativity. It’s all about the book of business, not about how to best serve clients. There’s no focus on value.”    Harvey Anderson, vice president and general counsel at Mozilla Corp., suggested that firm lawyers “participate in client business meetings, go to marketing planning sessions, learn about the business and act like an owner of the problem not just a provider of discrete legal advice.” 
• Legal education. Legal education is too analytic, insufficiently collaborative, and emphasizes legal analysis at the expense of problem-solving and skill-building. Law schools should not become trade schools, but they would benefit from better engagement between faculty and practicing attorneys and by having more practicing attorneys in their teaching ranks. “We have people teaching who don’t practice. You would never find that in medical school,” said Michael Roster, former chairman of the Association of Corporate Counsel. The association’s Value Challenge is actively engaging inside and outside counsel in conversations regarding needed changes in the profession.
• Practicing law. The practice of law should be more narrowly and clearly defined so that it does not prohibit the provision of some basic services by non-lawyers. “We simply do not need lawyers to do some of the things that we need to have done,” said former Penn Law Dean Robert Mundheim, now of counsel at Shearman & Sterling.  Added Emory Law School Professor George Shepherd: “My mom works as a tax preparer for H&R Block, and she’s not a CPA.”
• Ownership. Allowing outside investment in law firms would do more than provide additional capital; it would bring greater discipline of business reporting and analysis to the legal profession.