2023 - 2024 Advances in Research

ADVANCES IN RESEARCH

The faculty at the University of Pennsylvania Carey Law School dedicate themselves to producing research and scholarship that illuminates the most pressing issues facing society today. From artificial intelligence regulation and climate change to cutting-edge research on criminal law reform and achieving racial, social, and economic justice, and more, our professors discover and share pathbreaking insights that push the legal academy forward and reshape real-world policy.

Our faculty members are interdisciplinary thinkers who bridge the gap between the law and myriad connected fields by collaborating extensively with scholars from institutions around the country and throughout the world. Their work exemplifies diverse methodologies and perspectives, revealing the wide range of modes of thought and areas of academic inquiry that thrive here at the Law School.

In this issue of Advances in Research, we offer a snapshot of some of the most noteworthy research and scholarship conducted by our faculty over the past year. The featured faculty members include both longstanding experts in their fields and promising scholars at the beginning of their careers. We hope you enjoy this edition.

Sincerely,

Sophia Z. Lee Dean and Bernard G. Segal Professor of Law

TORN APART: HOW THE CHILD WELFARE SYSTEM DESTROYS BLACK FAMILIES—AND HOW ABOLITION CAN BUILD A SAFER WORLD

Basic Books, 2022

In Torn Apart, Dorothy E. Roberts, an award-winning scholar, exposes the foundational racism of the child welfare system and calls for radical change. She reveals that the child welfare system is not designed to protect children from abuse but rather to punish Black families, writing that the system is better understood as a “family policing system” that collaborates with law enforcement and prisons to oppress Black communities.

Roberts writes that child protection investigations ensnare a majority of Black children, putting their families under intense state surveillance and regulation, and that these children are disproportionately torn from their families and placed in foster care, driving many to juvenile detention and imprisonment. The only way to stop the destruction caused by family policing, Torn Apart argues, is to dismantle the destructive child welfare system and replace it with an approach that truly supports families and cares for children.

To date, Torn Apart has won the following accolades:

• American Sociological Association 2022 Distinguished Scholarly Book Award (honorable mention)

• Ass’n for Humanist Sociology 2023 Betty and Alfred McClung Lee Book Award

• Goddard Riverside Stephan Russo 2022 Book Prize for Social Justice (shortlist)

• Los Angeles Times 2022 Book Prizes (finalist)

• Society for the Study of Social Problems 2023 C. Wright Mills Award (finalist)

DOROTHY E. ROBERTS

George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights

DOROTHY E. ROBERTS is an acclaimed scholar of race, gender, and the law. She joined the University of Pennsylvania as its 14th Penn Integrates Knowledge (PIK) Professor with joint appointments in the Departments of Africana Studies and Sociology and the Law School. She is also the Founding Director of the Penn Program on Race, Science & Society in the Center of Africana Studies. Her pathbreaking work in law and public policy focuses on urgent social justice issues in policing, family regulation, science, medicine, and bioethics.

American Criminal Law, Its People, Principles, and Evolution

Colin S. Diver Professor of Law Routledge,

This book, which Paul H. Robinson co-authored with Sarah M. Robinson, is designed for the general reader and university students, including non-law students. It offers an engaging approach to criminal law that aims to foster understanding of the principles and competing interests that underlie American criminal law.

A full range of criminal law topics are covered—general principles of liability, general defenses, and specific offenses—with a special focus on those that illustrate the law’s and society’s shift in values. The readings for each topic include a summary of the governing law and its development, a review of the current state of the law in different U.S. jurisdictions, and an examination of the law in action using a pair of cases, one historic and one modern.

The case studies involve famous events—such as the shootout at the OK Corral, Lincoln’s assassination, the Hatfield-McCoy feud, Vanderbilt’s market manipulation and famous people—such as the Marquis de Sade, Oscar Wilde, Billy the Kid, Aaron Burr, Lewis Carroll, Mafia boss Joe Bananas, and entertainers Bette Davis, Frank Sinatra, Elvis Presley, Ike and Tina Turner, and pornographer Larry Flynt.

By embedding legal material in interesting storytelling, this book provides a unique approach to understanding American criminal law, its underlying principles, and the change in criminal law as society has changed.

PAUL H. ROBINSON

One of the world’s leading criminal law scholars, PAUL H. ROBINSON is a member of the American Law Institute and former federal prosecutor and counsel for the U.S. Senate Subcommittee on Criminal Laws and Procedures. He has published articles in virtually all of the top law reviews, lectured in more than 100 cities in 34 states and 27 countries, and had his writings appear in 15 languages.

The Nation That Never Was Reconstructing America’s Story

University of Chicago Press, 2022

Here’s a story we tell ourselves about America: that our fundamental values were stated in the Declaration of Independence, fought for in the Revolution, and made law in the Constitution. And American history, we like to think, is a process of more fully realizing those founding values.

In this eye-opening reinterpretation of the American story, Kermit Roosevelt argues that none of these things is true. Our fundamental values come not from Founding America but from resistance to it. They were stated not in the Declaration but in the Gettysburg Address, fought for not in the Revolution but in the Civil War, and made law not in the original Constitution but in the very different Reconstruction Constitution.

Reconstruction, he argues, was not a fulfilment of the ideals of the Founding but rather a repudiation: we modern Americans are the heirs not of Founding America but of the people who overthrew and destroyed that political order.

This different understanding of the source of American values and identity opens the door to a new understanding of ourselves and our story, and ultimately to a new America.

KERMIT ROOSEVELT

David Berger Professor for the Administration of Justice

KERMIT ROOSEVELT works in a diverse range of fields, focusing on constitutional law and conflict of laws; he has published scholarly books in both areas. In 2014, he was selected by the American Law Institute as the Reporter for the Third Restatement of Conflict of Laws. In 2021, he was appointed to President Biden’s Commission on Supreme Court Reform, and he has served as a Fellow of the Yale Information Society Project since 1998.

Fool Proof HOW FEAR OF PLAYING THE SUCKER SHAPES OUR SELVES AND THE SOCIAL ORDER —AND WHAT WE CAN DO ABOUT IT

TESS

Harper, 2023

Fool Proof tracks the implications of the sucker contract form personal choices to cultural conflict, ultimately charting an unexpected and empowering path forward.

This pathbreaking book provides the first in-depth analysis of the sucker’s game as implicit worldview, drawing evidence everywhere from grocery shopping to international trade deals, from road rage to #MeToo. Offering real-world puzzles and stories, Tess Wilkinson-Ryan explores what kind of hustles feel like scams and which ones feel like business as usual, who gets pegged as suckers and who gets lauded as saints. She takes deep dives into areas like the psychology of stereotyping, the history of ethnic slurs, and the economics of the family—and shows how the threat of being suckered is deployed to perpetuate social and economic hierarchies.

A contracts professor, Wilkinson-Ryan also draws on famous cases, like Vokes v. Arthur Murray Dance Studio and Williams v. Walker-Thomas Furniture, to shed light on the complex cultural questions that courts and parties face when their deals start to come apart.

Ultimately, Fool Proof argues that the goal is not so much to spot the con as to renegotiate its meaning. The fear of being suckered can be weaponized to disrupt cooperation and trust, but it can also be defused and reframed to make space for moral agency and social progress. Facing the fear of being suckered head-on means deciding for ourselves what risks to take, what relationships to invest in, when to share, and when to protest— drafting a new template for how to live with integrity in a sucker’s world.

WILKINSON-RYAN L’05, G’06, PHD’08

Golkin Family Professor; Professor of Psychology

TESS WILKINSON-RYAN studies the psychology of legal-decision making. Her research addresses the role of moral judgment in legal-decision-making, with a particular focus on private contracts and negotiations. In 2012, she was awarded the A. Leo Levin Award for Excellence in Teaching an Introductory Course.

REGULATING MACHINE LEARNING

“The kind of vigilance that regulators will need to maintain will require that regulators themselves use the most sophisticated tools in their arsenals.”

on research by CARY COGLIANESE

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

In “Regulating Machine Learning: The Challenge of Heterogeneity,” published by Competition Policy International, Prof. Coglianese outlines challenges in regulating machine learning algorithms and offers recommendations for sensible and sound regulatory strategies.

Coglianese points out that the autonomous and opaque qualities of machine-learning algorithms make these digital tools both distinctive and a matter of public concern. When it comes to regulating machine learning, though, a different quality of these algorithms matters most of all: “their heterogeneity. The Merriam-Webster Dictionary defines ‘heterogeneity’ as ‘the quality or state of consisting of dissimilar or diverse elements.’ Machine learning algorithms’ heterogeneity will make all the difference in deciding when to regulate them, who should regulate them, and how to design regulations imposed on their development and use.”

Coglianese provides a sampling of the ways that different entities use machine-learning algorithms, including:

• Social media platforms to select and highlight content for users

• Hospital radiology departments to detect cancer in patients

• Credit card companies to identify potential fraudulent charges

• Commercial airlines to operate aircraft with auto-piloting systems

• Online retailers to make product recommendations to visitors to their websites

• Political campaigns in deciding where and how advertise

Furthermore, he writes, “even within the same organizations, different machine learning algorithms can perform different functions. An automobile manufacturer, for example, might use one type of machinelearning algorithm to automate certain on-road operations of their vehicles, while using other machine learning algorithms as part of its manufacturing processes or for managing its supply chain and inventory.”

These highly varied uses bring with them different risks and tradeoffs that regulators must address, explains Coglianese.

Regulation must be agile, flexible, and vigilant to address differences in machine-learning algorithms and the problems that they can present. He explains why policymakers would do well to pursue a strategy known as management-based regulation to address problems created by machine learning. This strategy—one which Coglianese has been studying for decades in other contexts—imposes legal obligations on firms to identify risks and develop internal procedures and auditing protocols to manage those risks. It is often the main, if not the only, regulatory option available in settings where risks are extremely heterogenous.

Building on other research of his on the governmental use of machine-learning tools, Coglianese also explains that regulators themselves can use machine-learning tools to improve their performance. In “Regulating Machine Learning,” Coglianese writes:

Algorithms … are not merely tools for private sector firms seeking to innovate and enhance value. … At present, some regulators use them to identify firms that are likely in violation of applicable rules. Rather than sending out auditors or inspectors at random, and thereby using limited oversight resources to monitor firms that will be in compliance, regulators can vastly improve the detection of violators by using machine learning to decide how to target their limited resources.

This same approach could be used by regulators when allocating limited resources to oversee firms’ compliance with machine-learning regulation. With so many different uses for machine learning, and the prospect of vast numbers of firms using this digital technology, regulators will have to be smart about how to allocate their oversight resources. This may include using natural language processing algorithms to identify firms with inadequate risk management plans. It may include using algorithms to select firms for regulatory auditing that are most likely to be treating required management-based planning in a pro forma fashion. The

kind of vigilance that regulators will need to maintain will require that regulators themselves use the most sophisticated tools in their arsenals.

Regulating machine-learning algorithms sensibly will not be easy, Coglianese recognizes. Their complexity, self-learning properties, and opacity create reasons for, as well as challenges to, sound regulation. In addition, “these algorithms’ varied forms, multiple uses, and dynamic properties make most conventional regulatory strategies obsolete. The tradition of a regulatory body that establishes and then enforces rigid, general commands will not fit well in a world of rapidly evolving, highly varied digital tool.”

To regulate machine learning well, government “must draw upon the expertise of multiple regulatory institutions that can target machine learning’s multiple uses. These specialized regulators will need to deploy flexible regulatory instruments, such as managementbased regulation, and use smart oversight strategies, such as by using algorithmic tools for prioritizing resources.”

Coglianese concludes that “effective governance in a world driven by heterogeneous algorithmic machines will depend on sophisticated decision-making and top-level performance by human institutions tasked with regulatory oversight. Regulating machine learning well will demand the utmost levels of vigilance and excellence by regulatory officials as they practice their craft.”

read the full article.

Cary Coglianese is the Edward B. Shils Professor of Law, Professor of Political Science, and the Founding Director of the Penn Program on Regulation. He specializes in the study of administrative law and regulatory processes, with an emphasis on the empirical evaluation of alternative processes and strategies and the role of public participation, technology, and businessgovernment relations in policymaking. He has written extensively on artificial intelligence law and policy

CONTINGENT CONGRESSIONAL PROCEDURE could be CATASTROPHIC

on research by WILLIAM

EWALD

John J. O’Brien Chair of International Law; Professor of Philosophy; Co-Director of the Institute of Law & Philosophy

Prof. Ewald illustrates how the contingent congressional procedure was cobbled together and argues if it were used in the present combustible political circumstances to resolve a close presidential election, the result would be catastrophic.

In “ What Comes after January 6? On the Contingent Congressional Procedure,” published in the University of Pennsylvania Journal of Constitutional Law, Ewald reflects on events following January 6, 2021, writing that most criticism of the system of presidential election focuses on the Electoral College and most criticism of the Electoral College focuses narrowly on the shortcomings of the Electoral College itself. The Electoral College, however, “may not be the most urgent problem,” he writes.

“Already in 1823, Thomas Jefferson judged [the contingent congressional procedure] ‘the most dangerous blot in our constitution.’ If it were used in the present combustible political circumstances to resolve a close presidential election, the result would be catastrophic. The nation might survive one such election. I doubt it could survive two.”

“Unfortunately, the only practicable way to eliminate the congressional procedure is by constitutional amendment and the long history of failure to amend the Electoral College gives little ground for optimism.”

Ewald writes:

The congressional procedure has not been used since 1825. There were efforts to reform it in the 1820s. But gradually, as the two-party system took hold, the sense of urgency was lost. In the past two centuries, calls for reform of the Electoral College have been frequent: calls for reform of the congressional procedure have been, at best, an occasional afterthought.

How likely is it that the congressional procedure might be employed today?

If the President of the Senate counts the votes on January 6 and no candidate wins a majority, then the election is made by Congress. There are several ways that could occur. For instance: (1) There could be an exact tie between the top two candidates. That is statistically unlikely, but considerably more likely than what happened in the Florida recount. (2) A state could, through political paralysis or some other irregularity, fail to deliver its electoral votes in a form suitable for counting. (3) In a close race, a handful of “faithless electors” could throw the election into the House. (4) A third-party candidate could follow the [Strom] Thurmond strategy and translate a modest share of the popular vote into enough electoral votes to throw the election to Congress.

What happens if no candidate receives a majority in the Electoral College? The election of the president would be made by the House of Representatives. The vote would not be by individual representative, but by state delegation, on the principle of one-state-one-vote. There are several problems. What happens if a delegation splits, or a representative dies or is indicted or revealed to be a foreign agent? What happens if a state legislature attempts to instruct its delegation on how to vote? The Constitution does not say. In 1801 and 1825, the House made up the rules.

Note that the individual representatives would not be pledged to anybody. Legally, they would be free agents: 435 of them. Their only constraint would be to choose among the top three candidates in the Electoral College. They would be free to bargain with party leaders, fellow politicians, and, no doubt, lobbyists. They would also be free to change their party affiliation or to seek career advancement. There would undoubtedly be charges of “corrupt bargains,” real or imagined, just as there were in 1825.

To get to the heart of the contingent congressional procedure issues in his paper, Ewald asks (1) What is the relationship of the Electoral College to the early stages of the election campaign? (2) What would be the effect of abolishing the Electoral College on the two-party system? (3) What is the relationship of the two-party system to the very last step in the process, the contingent procedure in the House of Representatives?

He concedes “that the Electoral College can be lived with— unhappily and with gritted teeth, but it can be lived with, the way one might live with an unsightly blemish. It was even possible to live with the ‘wrong winner’ results of 2000 and 2016.”

He continues, “But the contingent congressional procedure is a different matter. That the procedure has not been used since 1825 is mostly a matter of luck and the persistence of the two-party system. But the two-party system is itself fragile, and there is no good reason to imagine that it is perpetual. I do not, of course, deny that the contingent procedure can be lived with, just as one might live with an aneurysm that goes unnoticed until the day it kills you.”

Ewald offers a remedy but is not optimistic about its viability.

“Can the danger be warded off? Or must we continue to rely on luck? Unfortunately, the only practicable way to eliminate the congressional procedure is by constitutional amendment and the long history of failure to amend the Electoral College gives little ground for optimism.”

read the full article.

William Ewald is an internationally recognized scholar in legal philosophy and comparative law. He is the author of an oftencited article in the University of Pennsylvania Law Review on the philosophical foundations of comparative law, “What Was it Like to Try a Rat?” and is currently at work on a study, for Harvard University Press, of the constitutional thought of James Wilson, first Professor of Law at the University of Pennsylvania.

WILLIAM EWALD

MODEL PENAL CODE

A Lodestar for Reformers

on research by

KIMBERLY KESSLER FERZAN L’95

Earle Hepburn Professor of Law and Professor of Philosophy; Co-Director, Institute of Law & Philosophy

Prof. Ferzan makes the claim that the Model Penal Code’s success lies in the fact that it is a theoretical and conceptual lodestar for past and future reformers.

The recently published book, The American Law Institute: A Centennial History, collects a series of original essays in honor of the organization’s centennial. The essays are authored by leading experts including Ferzan, who penned the chapter, “From Restatement to Model Penal Code: The Progress and Perils of Criminal Law Reform.”

In the chapter, Ferzan outlines the evolution of the ALI’s approach to criminal law reform, resulting in the Model Penal Code (MPC). She explores how the chaotic state of criminal law called for reform and how the need for direction transformed the project from Restatement to model code. Next, she discusses how it innovated American criminal law and briefly surveys its substantial impact on law reform. Ferzan sets forth the arguments for updating the MPC, including recent projects that revised both sentencing and sexual assault. Finally, she evaluates the MPC.

An ALI committee formed in 1924 recommended that “The American Law Institute undertake a restatement of the substantive law of crimes.” But it would be almost 40 years before the MPC would

be approved by the ALI membership. At long last, in 1952 the MPC was undertaken and none too soon. Quoting other scholars, Ferzan writes, before the MPC, “[w]hat passed for major ‘reform’ in that period was the federal criminal code in 1948 putting the offenses in alphabetical order.”

Promulgated in 1962, the Code became widely influential, Ferzan notes.

“Essentially every criminal law coursebook in widespread use in American law schools reprints the MPC, rather than any state’s actual code, as the one example of an integrated criminal code students are exposed to in substantial completeness,” she writes. The MPC “prompted a wave of state code reforms in the 1960s and 1970s, each influenced by the Model Penal Code,” and thirty-four states recodified their criminal laws, which were influenced by the MPC. “Thousands of court opinions have cited the Model Penal Code as persuasive authority for the interpretation of an existing statute or in the exercise of a court’s occasional power to formulate a criminal law doctrine.”

“Even as we seek to limit the breadth and depth of our criminal laws, we want reflective principles for how to write the criminal law we again wish to have.

More than ever, we must return to our Model Penal Code.”

From the article:

Notably, in significant respects, the narrative about the MPC has lost a thread of the story. While scholars today question how we teach and write about the criminal law, and as the MPC is cast as an outdated relic, and worse—a Disney version of Law and Order, it may be worth asking whether scholars ever faithfully teach the Code. [MPC Reporter Herbert] Wechsler’s pragmatism made the MPC attractive to theorists of all stripes, and retributivists have found it to be as much of a model and an ideal as those who favor incapacitation, deterrence, or rehabilitation. Indeed, though some criticize the Code for prioritizing preventive goals, other retributivists find the MPC’s conclusions completely hospitable to their more desert-based theories. What is perhaps lost in the substantive course on criminal law is the relationship between substantive rules and sentencing that sets the robust Wechslerian vision so radically apart from today’s practices. That is, the substantive course teaches a rule for early intervention for attempts, and it couples that with equal punishment for attempts and completed crimes. That’s what first-year law students learn. But missing in the first-year course is that that punishment was indeterminate in ways that allowed for early release of those who were no longer dangerous and further detention of those who were. It was dangerousness all the way down. Because the Code is so hospitable to opposing views, that vision of the criminal law has been obscured.”

But beyond the missing stories and the failed attempts, in other ways, the MPC was a monumental success. What the MPC achieved is so ingrained into the fabric of criminal law that we take much of what it did for granted. It is hard to overstate the importance of the conceptual innovations. They reconceptualized crimes into a coherent structure, and they imposed order with element analysis and mens rea definitions. As Sanford H. Kadish remarked [in “Fifty Years of Criminal Law: An Opinionated Review,”] “This is all old hat now, the standard stuff of the first-year criminal law class. But it was a breakthrough to articulate so lucidly and powerfully a conception of culpability requirements comprehending all crime definitions, and it has been transforming in its impact on the law and on legal education and scholarship.

Ferzan concludes, “Today, criminal law certainly needs to be reformed. But it does not need to be rethought. Rather, more than ever, we need the public will to return to the central questions the reformers asked years ago, and to reimpose order on the chaotic and haphazard criminalization of our recent past. Even as we seek to limit the breadth and depth of our criminal laws, we want reflective principles for how to write the criminal law we again wish to have. More than ever, we must return to our Model Penal Code.”

editorial boards of the Stanford Encylopedia for Philosophy (Philosophy of Law), Legal Theory, Oxford Studies in Political Philosophy, and Criminal Law and Philosophy

Kimberly Kessler Ferzan’s work focuses on criminal law theory. She is the co-editor in chief of Law and Philosophy and is also on the

KIMBERLY KESSLER FERZAN L’95

GameStop AND THE REEMERGENCE OF THE Retail Investor

JILL E. FISCH

Saul A. Fox Distinguished Professor of Business Law and Co-Director of the Institute for Law & Economics

Prof. Fisch’s article examines the GameStop trading frenzy in January 2021, which marked a reemergence of the retail investor in the securities markets, and the calls sparked by the frenzy for broad regulatory reform.

In her article, “GameStop and the Reemergence of the Retail Investor,” published in the Boston University Law Review, Fisch details how and why an unprecedented number of new and largely inexperienced investors began trading so-called “meme stocks”— companies that included GameStop, AMC Entertainment Holdings, Inc., and Express. Her article explores the role of the pandemic lockdown, app-based brokerage firms, and social media platforms in both facilitating this trading and changing the manner in which retail investors interact with the market and each other.

As Fisch explains, the GameStop frenzy spurred investigations by both Congress and the SEC and led many commentators to argue that the increase in direct retail participation in the capital markets warranted broad-based regulatory reforms. “Critics argue that retail

investors need to be protected from the capital markets—from Reddit and gamification-fueled investments in meme stocks and from using margin trading and options in connection with those investments,” Fisch writes. “These critics further argue that the capital markets need to be protected from retail investors whose behavior contributes to market volatility, increases systemic risk, and undermines allocational efficiency.”

She evaluates these demands for reform, concluding that they overstate the costs of retail trading and overlook the benefits.

She further challenges the idea that it is somehow dangerous or inappropriate for retail investors to purchase securities traded in the highly regulated U.S. public markets and issued by corporations that publish reports on a regular basis about their financial condition and

“Rather than focusing on keeping retail investors out of the market, however, this Article argues that the

lesson for regulators from the GameStop frenzy is the need to understand the new drivers of retail investing and to ensure that those drivers promote informed and efficient investing behavior.”

business operations, which are audited and subject to SEC oversight for accuracy. At a more fundamental level, Fisch argues that the reemergence of the retail investor has the potential to enable citizen capitalism—providing ordinary citizens with a stake in the nation’s productivity while, at the same time, increasing the accountability of those businesses to societal interests.

From the article:

The central contribution of this Article is to make the affirmative case for the benefits of increased engagement by retail investors in the capital markets. This Article explains that retail investing has the potential to increase the involvement of ordinary citizens in the country’s economic development. The current trend has engaged a population that has not traditionally participated in the capital markets and offers them the opportunity to realize the economic rewards of such participation. Retail investing offers a valuable counterpoint to the increased concentration and herding by institutional investors, particularly the largest mutual fund sponsors. Finally, retail investing has the potential to enhance the accountability and legitimacy of business and its leaders.

This is not to understate the fact that a shift to increased retail investment creates new challenges and is likely to impose costs. Investors will make mistakes and lose money. Stock prices may be more volatile, and traditional market participants will have to adjust their behavior to account for the reemergence of retail. Rather than focusing on keeping

retail investors out of the market, however, this Article argues that the lesson for regulators from the GameStop frenzy is the need to understand the new drivers of retail investing and to ensure that those drivers promote informed and efficient investing behavior. Toward that end, this Article focuses on the information sources used by retail investors, the possible misuse of customer information by app-based brokers, and the potential to harness the power of fintech to increase investor financial literacy.

The GameStop frenzy is very much a product of new developments in the capital markets, particularly the role of fintech and social media, Fisch writes. These developments show considerable promise in reducing barriers to retail participation in those markets. The reemergence of the retail investor, moreover, has the promise of affecting not just capital market behavior, but the way public corporations are run.

Fisch concludes, “Whether this promise will be realized remains to be seen and depends in part on developments in retail engagement— not just in trading, but in voting shares. It also depends on the extent to which regulators take action to restrict the innovations that have led to broader market participation. This Article has argued that the rationale for such restrictions is unconvincing and motivated largely by a misplaced skepticism about retail trading. At the same time, this Article identifies potential opportunities for regulators to improve the retail investor experience and to learn from the costs as well as the benefits of retail ownership.”

read the full article.

Jill E. Fisch writes and teaches about corporate governance and securities regulation with a particular focus on the role of both institutional and retail shareholders in the capital markets.

JILL E. FISCH

THE DISABILITY DOCKET

on research by

JASMINE E. HARRIS Professor of Law and

KAREN M. TANI L’O7, PHD’11 Seaman Family University Professor

“Even a brisk and selective review of the Supreme Court’s recent output shows how central the concept of disability is to the current legal landscape, including the way the law distributes resources, conceives of equality (and harm), and structures social relationships.”

Profs. Harris and Tani with co-author Shira Wakschlag, Senior Director of Legal Advocacy & General Counsel of The Arc of the United States, published a pathbreaking paper tracing the disability through-line in recent Supreme Court cases.

“ The Disability Docket ” by Harris, Tani, and Wakschlag was published in the American University Law Review as part of a symposium on “equal justice under law” in recent and current Supreme Court terms.

Drawing on insights from disability legal studies and from the trenches of disability advocacy, the authors apply a “disability lens” to the Supreme Court’s 2021 and 2022 Terms. Their analysis suggest the need for greater public awareness of how vulnerable the disabled population is, as well as how tightly their interests are tethered to

other marginalized groups that hope to protect and enhance their civil rights in the Roberts Court era. The article also, makes the case that more legal areas—beyond those implicated in recent cases— would benefit from this perspective.

In writing the article, Harris, Tani, and Wakschlag aim to help the American public understand the significance of disability-related cases to important debates about inclusion and resource distribution, as well as to show how non-disability cases may disproportionally impact people with disabilities.

From the article:

The monumental changes emanating from the contemporary Supreme Court have now generated abundant commentary—but it remains possible to glean new insights if we review the Court’s work from an alternative perspective, one that does not often inform mainstream accounts. Drawing on insights from Disability Legal Studies and. other critical approaches to law, as well as from the trenches of disability advocacy and civil litigation, this Article applies a “disability lens” to the Supreme Court’s 2021 and 2022 Terms. Our review of the Court’s published decisions and. broader docket suggests three themes. We highlight (1) the role of disability cases in the retrenchment of civil rights, (2) the vast and underappreciated effects that certain “non-disability” cases are likely to have on people with disabilities, and (3) the difficult choices that disability law litigators and. advocates face when disability law cases end up before this Court. Throughout, the Article, we suggest, legal areas that, would benefit from further examination through a “disability lens.”

Harris, Tani, and Wakschlag go on to make three main interventions. First, they delve into a set of disability-related cases that have allowed the Court to retrench civil rights more generally. The authors argue this is not a new phenomenon, but it is “strikingly visible in recent cases,” such as the damages case Cummings v. Premier Rehab Keller, P.L.L.C.

Second, the authors explain how several cases that are not about disability are likely to have powerful effects on disabled people, including high-profile, high stakes cases such as Dobbs v. Jackson Women’s Health Organization (involving reproductive rights) and West Virginia v. Environmental Protection Agency (involving agency action to address climate change).

Third, the authors emphasize why the current Supreme Court is a dangerous place for cases that do invoke disability law. They document some of the savvy ways in which advocates from the disability community have navigated this challenging legal environment, such as through community organizing efforts and strategic communications, as in CVS Pharmacy Inc. v. Doe

As a whole, the article shows the importance of the “disability docket” for disabled people, who continue to seek “access, inclusion, and remedies for harm” while also exploring its wider implications. They conclude, “Even a brisk and selective review of the Supreme Court’s recent output shows how central the concept of disability is to the current legal landscape, including the way the law distributes resources, conceives of equality (and harm), and structures social relationships.”

“How might this landscape have been different had the disability lens been a more prominent part of our evaluative and analytical toolkit in previous decades? And how might the landscape change if scholars, lawyers, litigants, and public commentators (outside of the disability space) are willing to apply this lens in the future?”

read the full paper.

Jasmine E. Harris is a law and inequality legal scholar with expertise in disability law, antidiscrimination law, and evidence. Her work seeks to address the relationship between law and equality with a focus on law’s capacity to advance social norms of inclusion in the context of disability. Harris consults with federal and state lawmakers and legal advocates on issues of legislative and policy reforms related to disability law.

Karen M. Tani is the first graduate of the University of Pennsylvania’s JD/PhD program in American Legal History. Her research and scholarship focus on social welfare law, administrative agencies, the role of rights in the modern American State, and the history of disability law in the late 20th century. She holds a joint appointment in Penn’s History Department.

JASMINE E. HARRIS

KAREN M. TANI L’07, PHD’11

PROSECUTORIAL ACCOUNTABILITY THROUGH CIVIL LIABILITY

Prof. Paul Heaton, Ross Miller, and Rachel Leigh Greenspan (University of Mississippi) conclude in this paper that there may be wide public support for policies and legislative initiative that increase prosecutorial accountability through civil liability.

on research by

PAUL HEATON Professor

of Law; Academic Director of the Quattrone Center for the Fair Administration of Justice and

ROSS MILLER

Assistant Director of the Quattrone Center for the Fair Administration of Justice

In “Reform We Can Agree On: Public Opinion on Prosecutorial Liability,” published in the Journal of Experimental Criminology, Heaton, Miller, and Greenspan present their study on public opinion on the doctrine of absolute immunity for prosecutors by surveying a nationally representative sample of U.S. adults. In an era of increasing polarization, the authors identify a legal policy reform—allowing people wrongfully convicted due to intentional prosecutorial misconduct to sue—that could enjoy widespread public support. To conduct this study, the authors designed an experiment in which a nationally representative panel of 2,000 U.S. adults read one of two narrative scenarios of a wrongful conviction, which differed only in the prosecutor’s knowledge and intent to withhold exculpatory evidence. The scenario was patterned after the case of John Thompson, an exoneree who was initially awarded $14 million by a jury after suing the office for his

“Results from the current study show broad public support for the notion that prosecutors should be able to be held civilly liable when they withhold exculpatory evidence.”

wrongful prosecution, but whose award was ultimately overturned by the U.S. Supreme Court, which cited the legal doctrine of absolute prosecutorial immunity. Participants then answered whether and why the wrongfully convicted individual in the story should be entitled to money damages. The authors specifically explored not only whether the prosecutor’s knowledge about the exculpatory evidence impacted support for civil liability, but also whether demographic characteristics affected this pattern.

The survey revealed that 87% of respondents would favor departing from the doctrine of absolute immunity and permitting a lawsuit against a prosecutor who intentionally withholds exculpatory evidence. When evidence withholding was not intentional, support for allowing a lawsuit fell to 67%. To examine how widespread support for a tort remedy would be following intentional withholding, the researchers divided their respondents into market segments based on age, political ideology, race, gender, region, and other demographic characteristics. This allowed them to examine, for example, the level of support among very liberal women with college degrees, or white Trump voters living in the south. For every single one of the 363 market segments observable in the data, a majority of respondents endorsed permitting prosecutorial tort liability following intentional acts. Support was widespread but not as universal when withholding was unintentional.

From the paper:

Results from the current study show broad public support for the notion that prosecutors should be able to be held civilly liable when they withhold exculpatory evidence,” they write. The authors further conclude, “Despite widespread political polarization in the USA the current results highlight an unrecognized opportunity for consensus to reform the doctrine of absolute immunity. Absolute immunity causes harm to defendants, as evidenced by the fact that prosecutorial misconduct factored into 30% of the exonerations to date recorded by the National Registry of Exonerations. Prosecutorial misconduct and absolute immunity can reduce public trust in government, particularly concerning given that overall trust in government has been declining over the past 20 years. Holding prosecutors accountable for misconduct they commit as a part of their duties is widely endorsed by the public and may be one way to address this trend. (citations omitted)

read the full paper.

Paul Heaton‘s research aims to apply methodological insights from economics to inform issues in legal and criminal justice policy. He currently teaches first-year criminal law and a seminar on empirical social science research and the law.

Ross Miller’s research is motivated by his prior experience as a criminal and civil rights trial attorney and seeks to investigate new ways to improve accuracy and fairness in criminal legal systems. As Assistant Director of the Quattrone Center, he facilitates a wide variety of collaborative and interdisciplinary criminal justice research.

PAUL HEATON

ROSS MILLER

Worker Welfare AND Antitrust

on research by

HERBERT HOVENKAMP

James G. Dinan University Professor

In a paper published in the University of Chicago Law Review, Prof. Hovenkamp claims both antitrust’s neoliberal right and its progressive left have advocated policies that are harmful to labor.

In the paper,, “ Worker Welfare and Antitrust,” Hovenkamp admits, “The history of antitrust law and labor has not been pretty. The Sherman Act was passed at a time when the labor movement was feared as much as admired. Oliver Wendell Holmes, Jr., captured the sentiment in his 1897 address to the Boston University Law School, five years before he was appointed to the Supreme Court. ‘When socialism first began to be talked about,’ he observed, ‘the comfortable classes of the community were a good deal frightened.’”

Holmes suspected that this fear drove judicial attitudes about the working class in both England and the United States, writes Hovenkamp. The public at the time was divided on the issue of how antitrust policy should address organized labor.

Since then, Hovenkamp notes, antitrust and labor has gone through a profound change in orientation. For the great bulk of its history, labor has been viewed as a competitive threat and the debate over antitrust and labor was framed around whether there should be a labor “immunity” from the antitrust laws. “In just the last decade, however, the orientation has flipped,” he writes. “Most new writing views labor as a target of anticompetitive restraints imposed by employers. Antitrust is increasingly concerned with protecting labor rather than challenging its conduct.”

“There is no a priori reason for thinking that worker harm is less severe than consumer harm. A properly designed antitrust policy must focus on both sets of interests.”

From the paper:

Neoliberal antitrust, such as that advocated by Robert Bork, tended to support antitrust policies favoring lower output because of its energetic protection of producer profits to the extent of including them in its definition of “consumer welfare.” The result was higher markups and lower output. On the other side, over-enforcement as is sometimes associated with antitrust populism tends to favor lower output because of its opposition to “bigness” and small business protectionism. For example, calls to “break up” large digital platforms are almost certainly calculated to result in lower product output, perhaps significantly. Such breakups interfere with both economies of scale or scope as well as the attainment of beneficial network effects.

The market for employment tracks these outcomes consistently: moving antitrust policy either to the neoliberal right or the populist left is bad for workers as well as consumers.

While the number of units of labor is roughly proportional to the number of units of product, welfare effects can differ. That depends on the amount of market power the affected firm has on each side. For example, if the product market is concentrated or completely covered by a restraint, the welfare effects of an output reduction on the product side will be relatively high. Overall market output will decline

and prices will rise. By contrast, if the labor market is highly competitive the welfare effects on that side will be smaller or even minimal. In the economy as a whole, labor market concentration is, if anything, greater than product market concentration, particularly at the lower end of the wage scale. In highly concentrated labor markets a substantial output reduction in the product market can harm labor significantly.

In the paper, Hovenkamp notes the original Progressives were supportive of labor and were critical to the development of the field of labor economics as well as the antitrust law governing labor disputes. Today’s new Progressives, or neo-Brandeisians, are also quite solicitous of labor, “and they certainly support such things as ramped up antitrust enforcement against overly aggressive noncompete agreements, as well as more traditional areas of wage fixing. While those concerns are welcome, they also have a blind spot, which is their lack of attentiveness to the impact of product restraints on labor.”

He concludes, “Consumer welfare when it is properly defined and worker welfare travel in tandem. When a practice harms consumers by raising prices and reducing output, it harms labor as well. There is no a priori reason for thinking that worker harm is less severe than consumer harm. A properly designed antitrust policy must focus on both sets of interests.”

read the full paper.

Herbert Hovenkamp is a Fellow of the American Academy of Arts and Sciences. In 2008 he won the Justice Department’s John Sherman Award for his lifetime contributions to antitrust law. He co-authored casebooks in antitrust, property law, and a free open source casebook on innovation and competition policy. He has also consulted on numerous antitrust cases for various government entities and private plaintiffs.

HERBERT HOVENKAMP

A DEFENSE OF THE DORMANT COMMERCE C LAUS E

on research by

MICHAEL KNOLL

Theodore K. Warner Professor of Law & Professor of Real Estate; Co-Director, Center for Tax Law and Policy

In this article, Prof. Knoll and Ruth Mason, Edwin S. Cohen Distinguished Professor of Law and Taxation and Director of the Virginia Center for Tax Law at University of Virginia School of Law, offer a rare defense of a doctrinal area, the dormant Commerce Clause, that has been excoriated as both illegitimate and unclear, including by members of the Supreme Court itself.

In “Bibb Balancing: Regulatory Mismatches Under the Dormant Commerce Clause,” published in the George Washington Law Review, Knoll and Mason write that “courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a further distinction that divides cases into single state burdens, which arise from the application of a single state’s law alone, and mismatch burdens, which arise from legal diversity.”

Bibb Balancing, which is referenced in the article’s title, refers to a case, Bibb v. Navajo Freight Lines, Inc., which the authors describe as employing external benchmarks consisting of other states’ laws as a baseline for evaluating the challenged state’s rule. They write this “approach is inevitable; mismatch burdens must be measured against other states’ laws because the nature of a mismatch burden is that it arises from regulatory diversity,”

From the article:

Despite the criticisms that attach to Bibb balancing, we recognize that failing to restrain regulatory mismatches would threaten the smooth functioning of the national marketplace and undercut important federalism

values. Thus, in addition to clarifying the doctrine and acknowledging the drawbacks of Bibb balancing, this Article provides advice for achieving more consistent and defensible results in mismatch cases.

Single-state burdens arise when—irrespective of what other states do—a regulation impedes interstate commerce relative to in-state commerce. Thus, all facially discriminatory regulations impose single state burdens; the excess burden on interstate commerce arises from the application of the challenged state’s law alone.

Facially neutral regulations, in turn, can impose singlestate or mismatch burdens. Consider the regulation challenged in Pike. In Pike, Arizona required cantaloupes grown in Arizona also to be packed there. In our terms, this constituted a single-state burden because it did not depend on the packing regulations applicable in other states; instead, the burden arose from Arizona law alone. In balancing in Pike, the Supreme Court thus examined only Arizona law, an approach we refer to as using an internal benchmark.

Mismatch burdens, in contrast, arise from the interaction of multiple states’ laws. The defining feature of a mismatch burden is that the presence or absence of similar regulation by other states does affect the cost to comply with the first state’s regulation. The paradigmatic mismatch case was Bibb v. Navajo Freight Lines, Inc., in which the Supreme Court precluded an Illinois law that required trucks on Illinois highways to have curved mudflaps at a time when other states permitted or required trucks to have straight mudflaps. As a result of the differences in the content of these regulations, trucks with straight mudflaps traveling interstate had to divert around Illinois or, if they wanted to enter Illinois, switch to curved mudflaps at the state border. Although the Supreme Court purports to use Pike balancing in both single-state and mismatch cases— indeed, the Court does not expressly distinguish the two types of cases—this Article shows that the Supreme Court’s approach to each type of case differs substantially. Specifically, in mismatch cases, the Court uses external benchmarks consisting of other states’ laws to measure both the burden on interstate commerce and the challenged

state’s regulatory interest. In Bibb, for example, the Supreme Court understood the burden on interstate commerce to arise from Illinois’s departure from the straight-mudflap rule applicable in other states. Likewise, in defending its deviating rule, Illinois had to show that its curved-mudflap requirement produced a significant safety gain over and above that from the straight mudflaps permitted on roads in other states. As this Article explains, such a posture can place a heavy burden on innovating states.

The authors conclude that “The goal of this Article was not to argue that the Supreme Court either should abandon undue burden balancing in mismatch cases or engage in more balancing in such cases. Instead, the goal was to clarify what is actually happening in dormant Commerce Clause cases, including mismatch cases, to explain why it matters in terms of regulatory outcomes, the national economy, and federalism more generally, and to offer some rational ways of improving or curtailing balancing in mismatch cases.”

full

the

article.

Michael Knoll is an insightful commentator on how income tax laws affect business and investment decisions and a creative proponent of how those laws could be redesigned whose recent research includes writings on sovereign wealth funds, private equity, international tax arbitrage and the impact of the corporate income tax on the competitiveness of the U.S. auto industry.

MICHAEL KNOLL

THE MEANING OF DISCRIMINATION

Practice Associate Prof. McClellan argues that without a contextual analysis that is grounded in white supremacy, discrimination claims lose their meaning and could be actionable on competing sides of many issues and policy decisions.

on research by

CARA MCCLELLAN GED’12 Director of the Advocacy for Racial and Civil (ARC) Justice Clinic and Practice Associate Professor of Law

On June 29, 2023, the Supreme Court ruled in Students for Fair Admissions Inc. v. President & Fellows of Harvard College that the admissions programs at Harvard College and the University of North Carolina violate the equal protection clause of the 14th Amendment. In “ When Claims Collide: Students for Fair Admissions v. Harvard and the Meaning of Discrimination,” published prior to the decision in the Loyola University of Chicago Law Journal, McClellan examines the allegations of intentional discrimination in the SFFA v. Harvard lawsuit, which rely primarily on racial disparities in the standardized test scores of applicants to Harvard.

She contrasts SFFA’s allegations of discrimination with those presented in Smith v. Regents of the University of California, a case in which a coalition of students, including Asian American students, flipped the claims in SFFA on their head by arguing that the use of the SAT and ACT constitutes discrimination because of barriers that underprivileged students face that disadvantage them on standardized tests.

“The importance of diversity within diversity, and the need for an intersectional frame to consider intersecting identities, exists for students of all racial backgrounds, during the application process and beyond.”

McClellan writes the claims in these cases provide an entry point for considering what she calls “mirror” claims of discrimination, in which allegations of discrimination are brought challenging both sides of an issue or policy decision, in this case the use of standardized test scores in the college admissions process.

She then contends that “one way of distinguishing between what appear to be mirror discrimination claims is to ask whether there is a strong basis in evidence to believe that a policy or decision would entail liability for disparate impact discrimination. If so, avoiding disparate impact liability provides a defense that should shield the actor against a mirror claim of intentional discrimination by establishing that there is not a substantial legitimate justification for the reverse action in the face of the disproportionate adverse effect on members of a protected group.”

From the article:

Diversity within diversity requires both a critical mass of students from different racial backgrounds and attention to how multiple identities over-lap and intersect. By allowing the flexibility to consider many factors, including race, but also socioeconomic status, gender, sexual orientation, disability status, and religion, amongst other kinds of group status, holistic admissions offers the potential to foster diversity within the group of admitted students who share a common racial background. There are of course, distinctions between different subgroups within the Black, Latinx and Native American communities, just as there are within the Asian American community, and there is a real need for disaggregated data within all of these groups to recognize and understand intragroup differences. College admissions committees should consider identity among multiple matrices to pursue a compelling interest in diversity and to protect against tokenism, and the wrong (but common) assumption that an individual student can represent the experience of an entire racial group. The importance of diversity within diversity, and the need for an intersectional

frame to consider intersecting identities, exists for students of all racial backgrounds, during the application process and beyond.

McClellan draws on critical race theory scholarship and discusses how an intersectional frame informed by disaggregated data can help to analyze racial power and understand mirror discrimination claims contextually.

And the reality is, she writes, that many admissions policies that may appear to be “race-neutral” on their face, in fact unfairly advantage white students. Colleges and universities have a duty to address the ways that admissions policies may unjustifiably, disproportionately exclude students of color—a duty that exists regardless of whether race-conscious admissions is deemed constitutional.

Writing before the Supreme Court rendered its decision, McClellan writes, “Indeed, if the Supreme Court holds that raceconscious admission is unconstitutional, addressing racially disparate impacts perpetuated through other college admissions policies will become even more critical to ensuring that pathways to college remain open to students of all racial backgrounds. Universities should consider whether reliance on the SAT or ACT unjustifiably decreases the admissions chances of minority applicants in violation of Title VI, in light of the well-established research showing that the SAT and ACT are not reliable indicators of a student’s potential to succeed in college. Universities should also carefully review legacy admissions policies that have the effect of disadvantaging students whose families lacked access to institutions of higher education in previous generations, and thus disproportionately favor white and wealthy applicants who were not historically excluded.

“Finally, the need for colleges and universities to ensure a safe and inclusive climate will be even more urgent if the Supreme Court’s pending decision results in a significant drop in the number of underrepresented minority students in higher education, limiting diversity within diversity, and increasing racial isolation and tokenism on campuses.”

read the full article.

Cara McClellan’s ARC Justice Clinic provides students with hands-on experience working in civil rights litigation and policy advocacy around systemic racism. She has also published in several other top publications, including the Columbia Journal of Race & Law and Yale Law & Policy Review. McClellan recently published “Toward Abolitionist Remedies: Police (Non)Reform Litigation after the 2020 Uprisings” in the Fordham Urban Law Journal. Her article, “Challenging Legacy Discrimination: The Persistence of School Pushout as Racial Discrimination,” is forthcoming in the Boston University Law Review

CARA MCCLELLAN

WHY ABOLITION

DOROTHY E. ROBERTS

George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights

“Far from abandoning children, abolitionists aim to build ways of supporting families that will keep children safer than family policing does.”

Prof. Roberts presents a concise case for the abolition of the child welfare system. She characterizes the current system as a family policing system that harms children and explains why its abolition is essential to keep children safe.

“ Why Abolition,” published in Family Court Review, is based on Roberts’ pathbreaking book, Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World

Roberts’ assessment of the child welfare system is a damning one. She writes that the trauma that children experience from being torn from their parents, siblings, and friends is compounded by conditions in foster care that continue to disrupt every aspect of their lives. Not only does the child welfare system intrude on too many families and fail to provide them true safety or support, Roberts writes, it also overlooks the damaging impacts of poverty, racism, and patriarchal culture on children and their families.

“There is no question that Black children are overrepresented in the family policing system: they comprise a percentage of the foster care population that is nearly double their share of the overall population,” she writes. “More than half of Black children (53%) are subjected to a CPS investigation at some point during their childhoods—almost twice the lifetime prevalence for white children (28.2%).”

Roberts also notes the system’s community-wide impact. “In addition to the trauma that investigations and removals inflict on individual children and their families, family policing also causes widespread damage to entire Black communities. Forced child removal has a racial geography. In cities across the country, child protection cases tend to be concentrated primarily in Black neighborhoods, so their damaging effects are felt by all the residents who live there. The high rates of child welfare agency involvement in segregated Black neighborhoods create a uniquely intense relationship between Black families and the child welfare authorities who police them.”

For Roberts, there is only one solution: abolition of the child welfare system. The child welfare system cannot be reformed, she argues, because it is designed to oppress the most marginalized communities in the nation and is built on an ideological foundation that was set centuries ago to support white supremacy and settler colonialism. Instead of implementing more reforms to fix the child welfare system, she calls for a radical shift in the state’s relationship to families.

DOROTHY E. ROBERTS

She also writes that abolition isn’t abandonment, rather it is “necessary to keep children safe.”

Roberts writes, “The argument that abolition will leave children vulnerable to abuse misunderstands what abolition means. Far from abandoning children, abolitionists aim to build ways of supporting families that will keep children safer than family policing does. There is a long way to go between our current destructive system, which upholds an unequal society, and an equal society that has no need for a destructive system. But this is a reason to start the joint project of dismantling the system and creating safer communities now, not to lament the hopelessness of the task.”

From the article:

Some readers might ask, “Why can’t we maintain the child welfare system to protect children from maltreatment while we build more communitybased support for families?” Abolishing the system is necessary not only to avoid the harm it causes, but also because its operation interferes with better ways of supporting families and keeping children safe. The tentacles of CPS surveillance spread throughout US society, far beyond the walls of

child welfare agencies. Family policing relies on an expansive network of information sharing that spans the school, health care, public assistance, and law enforcement systems. This confluence of social services and child protective services directs state surveillance against poor and low-income families, especially Black families, who are more likely to rely on public service providers. It also thwarts the potential for service-providing professionals and facilities to be caring resources for families. Despite their benign intentions, teachers, health care workers, and social service providers who report concerns about children’s welfare to child protection authorities are unlikely to generate a beneficial response. Instead, CPS treats these calls as accusations to be investigated, not requests for support. Mandated reporting therefore drives many family caregivers from the very people and places that otherwise would be well-equipped to support them.

Dorothy E. Roberts is an acclaimed scholar of race, gender, and the law. She joined the University of Pennsylvania as its 14th Penn Integrates Knowledge Professor with joint appointments in the Departments of Africana Studies and Sociology and the Law School where she holds the inaugural Raymond Pace and Sadie Tanner Mossell Alexander chair. She is also founding director of the Penn Program on Race, Science & Society in the Center for Africana Studies.

THE PRIMACY of ELECTORAL POLITICS AND OUR OUTDATED CHECKS AND BALANCES

on research by

THEODORE W. RUGER

John H. Chesnut Professor of Law and Former Penn Carey Law Dean

In his chapter, “The Primacy of Electoral Politics and Our Outdated Checks and Balances,” from the 2022 book, Beyond Imagination?: The January 6 Insurrection, Prof. Ruger, who was the Dean of Penn Carey Law at time of publication, explores how the polarizing force of primary partisan politics has strained the fundamental “checks and balances” that the Constitution’s framers thought would moderate views and check ambition of elected officials. Conversely, when structurally protected from facing the GOP electorate, multiple Republican officials—appointed Attorneys General and Article III federal judges—following the 2020 election acted in concert with accepted rule of law values rather than their simple ideological preferences. The differential behavior of Republican legal officials who were facing reelection compared with those who were not regarding the January 6th insurrection illustrates the corrosive effect partisan politics has on lawyerleaders not insulated from direct electoral sanction, particularly from the GOP primary electorate.

Beyond Imagination is a collective work product, led by Villanova Law’s Dean Mark Alexander, that brings together 14 deans of American law schools to examine the causes and potential responses to the events of January 6, 2021, at the U.S. Capitol and elsewhere, in hopes of moving the nation forward towards healing and a recommitment to the rule of law and the Constitution.

“We

seek to train and promote and reward individuals of high moral integrity into public service; all the while knowing that public office simultaneously attracts others sheerly for ambition and desire for raw power.”

In his chapter, Ruger writes that the events following the November 2020 election and the different ways several Republican officials responded to Donald Trump’s baseless claims of election fraud illustrate the importance of insulating “rule of law” officials— such as government attorneys as well as judges—from direct partisan election. Almost all state attorneys general who faced election or reelection bought into the bogus claims advanced by Trump’s attorneys. But notably, and less well-known, almost every GOP state attorney general who was not facing reelection by state constitutional rule or otherwise chose not to join the tendentious and ultimately baseless litigation, even when their state’s baseline electorate was as pro-Trump as any.

Ruger explains that “almost all of the appointed Republican AGs, even in deeply ‘red’ states, declined to join the politicized briefing effort” led by Texas’s Attorney General, which ultimately was rejected by a unanimous U.S. Supreme Court. In Ruger’s view, the fact that such immediate electoral influences operated on the majority of GOP attorneys general who were facing primary elections, all of whom as attorneys were “members of the Bar and all holding an office that calls for public-regarding ‘rule of law’ decision-making is both striking and concerning.” Ruger’s chapter advocates a national discussion of whether more state attorney general positions ought be removed from the operation of ordinary partisan politics and made appointed posts.

The chapter explains that:

This attention to structural safeguards is needed because no regime of education or ethics will ever perfectly screen out self-serving or unethical public officials. No matter how strong our educational institutions, and how careful our professional ethical standards, lawyers and elected officials will slip through who fall far short of those ideals. From the

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earliest days of our constitutional democracy, framers and theorists have struggled with this fundamental duality. We seek to train and promote and reward individuals of high moral integrity into public service; all the while knowing that public office simultaneously attracts others sheerly for ambition and desire for raw power. Such insights about our government and its structure were held by James Madison and other architects of our Constitution. Their writings and the design choices they made inform our current predicament even as the limitations of those original structural protections against intentional lawlessness were laid bare by Trump and his attorneys following the 2020 election.

Ruger explores how the Constitution’s original “checks and balances” have been strained and rendered ineffective by the rise of strong and focused national parties, particularly the amplification and enforcement of more extreme views within each party by the primary election system. The Framers did not contemplate the role that political parties would play in dampening the protective effect of the ordinary separation of powers inherent in the federal Constitution and that of every state.

Looking ahead, Ruger finds nothing inherently wrong with the rule of law, particularly on constitutional subjects where there is societal disagreement playing out with some degree of political influence. But as currently framed in our two-party system “such political incentive structures do inflect and even distort performance in office and warrant further study and ought to catalyze discussion of reforms. Politics and the rule of law will always interact, and ought to in a democracy, but the [period following the 2020 election] illustrates the importance of building better structures to ensure they remain distinct in times of greatest crisis.”

Theodore

Ruger is the former Dean of the University of Pennsylvania Carey Law School and a scholar of constitutional law, specializing in the study of judicial authority, and an expert on health law and pharmaceutical regulation.

THEODORE W. RUGER

GRID RELIABILITY THROUGH CLEAN ENERGY

on research by

SHELLEY WELTON Presidential Distinguished Professor of Law and Energy Policy

In a collaborative and award-winning paper, Prof. Shelley Welton argues that decarbonizing the energy grid would make it both more reliable and more equitable.

With co-authors Alexandra Klass (University of Michigan Law School); Joshua Macey (University of Chicago Law School); Hannah Wiseman (Penn State University), Welton co-authored “Grid Reliability Through Clean Energy,” which was published in the Stanford Law Review and awarded the prestigious Morrison Prize by the Sandra Day O’Connor College of Law at Arizona State University.

In the paper, the authors address the perceived tension between clean energy and grid reliability that has become a crucial conversation among policymakers and politicians, especially in the wake of recent high-profile power failures. Ultimately, they argue that continuing

to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climaterelated weather events; these extremes will disrupt the power supply with impacts rippling far beyond the electricity sector.

“The effects of climate change pose increasingly serious threats to the U.S. energy system, including hurricanes, wildfires, extreme heat, and extreme cold. These weather-related threats are expected to become more frequent, which in turn will require a significant increase in electric-grid resilience and reliability,” the authors write. “The strategy for mitigating these harms can be summarized in six words: electrify everything and decarbonize the grid.”

“[W]e argue for calibrated reforms to U.S. energy law and governance that shift authority within and among the silos to integrate the twin aims of reliability and low-carbon energy.”

From the abstract:

In the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far beyond the electricity sector.

This Article shows that much of the perceived tension between clean energy and reliability is a failure of law and governance resulting from the United States’ siloed approach to regulating the electric grid. Energy regulation is, we argue, siloed across three dimensions: (1) across substantive responsibilities (clean energy versus reliability); (2) across jurisdictions (federal, regional, state, and sometimes local); and (3) across a public–private continuum of actors. This segmentation renders the full convergence of clean-energy and reliability goals extremely difficult. Reliability-focused organizations operating within their silos routinely counteract climate policies when making decisions about how to keep the lights on. Similarly, legal silos often cause states and regional organizations to neglect valuable opportunities for collaboration.

Despite the challenges posed by this disaggregated system, conceptualizing the sphere of energy reliability as siloed across these dimensions unlocks new possibilities for reform. We do not propose upending energy law silos or

making energy institutions wholly public. Rather, we argue for calibrated reforms to U.S. energy law and governance that shift authority within and among the silos to integrate the twin aims of reliability and low-carbon energy. Across the key policy areas of electricity markets, transmission planning and siting, reliability regulation, and regional grid governance, we assess changes that would integrate climate and reliability imperatives; balance state, regional, and federal jurisdiction; and reconcile public and private values. We believe this approach to energy law reform offers a holistic and realistic formula for a cleaner, more reliable grid.

The authors underscore their belief that their approach to energy law reform offers a holistic and realistic formula for a cleaner, more reliable grid, and they emphasize the crucial connection between energy reliance and social equity.

“The technical nature of conversations about grid reform often serves to obscure its social stakes. But make no mistake: The transition to a clean, reliable grid is fundamentally a matter of justice. The fossil fuel-based grid has too long disproportionately harmed lowincome communities and communities of color,” the authors write. “...Thus, although the clean-energy transition presents justice-related challenges of its own, decarbonization—designed and implemented in a matter that protects low-income ratepayers from major rate increases—remains a critical foundation of a more just future.”

Shelley Welton also holds an affiliation with the Kleinman Center for Energy Policy in the Weitzman School. From decarbonization in a democracy to clean energy justice, her legal research focuses on how climate change is transforming energy and environmental law.

SHELLEY WELTON

3501 Sansom Street

Philadelphia, PA 19104