Now showing items 1-20 of 5541

    • The Restructuring of the Relationship Between Shareholders and the Corporate Entity: Reflections on Berle and Means

      Porrata-Doria, Rafael A., Jr. (1989)
      This Article is an examination and reassessment of Professors Berle and Means' seminal theory of the nature of the relationship between a/corporation, its shareholders, and its management. Because of its importance to modern corporate law,' this relationship is examined in the context of two recent corporate antitakeover defensive techniques: the creation of super common stock, and management's deliberate discrimination against suspected hostile shareholders.
    • The Philadelphia Story: The Rhetoric of School Reform

      DeJarnatt, Susan L. (2004)
      The words empower, accountability, and failure permeate the debate over public education, in the media, in political statements, and in the language of legal authority. This article examines how those words were used in the particular experience of Philadelphia, often described as the largest school reform effort in the history of public education. In 2001 and 2002, Philadelphia became a key battleground for the debate on education as the public school system was taken over by the state government and the governor proposed privatizing the entire school district. The arguments for privatization focused on the claimed failure of the schools and asserted that private management would provide accountability. The article examines the contrast between the reality and the rhetoric animating the debate. It analyzes the use of high-stakes testing as the sole determinant of failure; the likely effect of private management on the levels of accountability, particularly in light of the Philadelphia system's experience to date with the relative lack of accountability of charter schools, and evaluates the claims that privatization would empower parents. It concludes that the rhetoric of reform was used to try to individualize education with the goal of marketizing schooling to the detriment of more democratic reform ideas.
    • Law Talk: Speaking, Writing, and Entering the Discourse of Law

      DeJarnatt, Susan L. (2002)
      The author suggests talking about the legal writing process with first-year legal research and writing students, as they are learning and actively writing, and advocates for students' experiencing "being the audience" of legal writing, as part of their education. This Article reviews three academic schools of thought regarding the relationship between speech and writing. This Article argues for change in the typical legal writing pedagogy, meaning more student interaction and teacher intervention, to effectively enable students to engage in discourse communities of law.
    • Preparing for Globalized Law Practice: The Need to Include International and Comparative Law in the Legal Writing Curriculum

      DeJarnatt, Susan L.; Rahdert, Mark C. (2011)
      Many American legal scholars have chronicled the growing importance of international and comparative legal principles in understanding and resolving contemporary legal issues. Others have asserted that the practice of law itself is becoming global, although few have attempted to demonstrate the globalization of legal practice in any systematic way. Claims about the globalization of law have led in turn to proposals for the globalization of the law school curriculum. Innovative legal educators have advanced a variety of creative proposals for incorporating more attention to global legal issues in the course work of law students. But this scholarship includes relatively little discussion about the globalization of Legal Research and Writing (LRW), the course in which most students acquire the basic tools they use to learn law on their own. While some LRW professors have pioneered the inclusion of foreign and international perspectives in their courses, few have done so in a consistent and thoroughgoing way. This article endeavors to address this omission by arguing in favor of including a comparative and international perspective in the standard LRW curriculum. We argue that the empirical and normative premises which lie behind proposals for globalizing the law curriculum also support exposure to research and advocacy involving foreign and international law as part of the basic “toolkit” of skills that all students learn through LRW instruction. Without introducing a global perspective in LRW, the other changes in the law school curriculum will have limited impact. With an introduction to the sources and methods of using international and comparative law in LRW, however, students will be equipped to integrate global and domestic components into their analysis of a wide range of legal subjects, making the global perspective mainstream. To address the lack of empirical evidence concerning globalization in practice, the article presents a survey of the approximately 10,000 members of the Philadelphia Bar Association regarding the extent to which they encounter foreign and international law issues in practice. The article describes the survey and reports its results. They support the conclusion that lawyers in a wide range of domestic practices regularly confront the need to know something about international and foreign law. Even when they represent fairly “ordinary” clients in what can be characterized as “typical” legal matters, they routinely encounter situations where they need to research questions of foreign or international law, and to incorporate the results of that research into their work product. Building on these theoretical arguments and empirical observations, the article concludes by describing an experimental attempt to incorporate international and foreign law into a traditional first year LRW course. It discusses some of the challenges involved in working international and foreign legal issues into a domestic legal problem, and how those challenges were addressed in context. It also provides guidance and suggestions for possible LRW problem development, based in part on ideas derived from our survey responses.
    • A Legal Mandate That Authorizers Consider Fiscal and Other Impacts of Charter School Expansion

      DeJarnatt, Susan L. (2019)
      Pennsylvania’s Constitution mandates that the Commonwealth provide “for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.” Pennsylvania decided to add charter schools to this system in 1997, a decision that, like all legislation, must be considered in light of this constitutional commitment to public education and to its role in preparing the Commonwealth’s students for their participation in democracy. Charter schools cost money and the vast bulk of that money comes directly out of the budgets of Pennsylvania school districts. Pennsylvania spent nearly $1.7 billion on charter schools in 2016-2017. Pennsylvania also underfunds its school districts. It ranks 46 out of 50 states for the state contribution to education funding and has the dubious honor of having the largest gap in the country between highly funded districts and poorly funded ones. Those districts also have the responsibilities of authorizing new charter schools, exercising oversight over existing schools, and determining whether to renew or revoke charters. Some charter proponents argue that Pennsylvania’s Charter School Law bars school districts from giving any consideration to the financial impact on districts when they authorize or renew charter schools. This belief conflicts with the plain language of the Charter School Law and its legislative history, and is not supported by court decisions. It rests on a few decisions of the Charter Appeals Board (CAB) which have misinterpreted the language and intent of the Charter School Law. Not one opinion from the Pennsylvania appellate courts has held that authorizers are forbidden from any consideration of financial impact. Balancing the needs and interests of all of the stakeholders in the public education system—students, families, teachers, support staff, administrators, schools—both traditional and charter, tax payers, retirees, and communities—is an enormous challenge. Charter schools are part of that public education system. But requiring school districts to completely ignore the financial impact of their decisions about charter growth cannot be the response to that challenge. If charters must be granted and renewed without any consideration of their financial impact on the school system as a whole, Pennsylvania will be even further impaired in its ability to meet its constitutional obligations. Thus, authorizers not only may consider financial impact, they must do so.
    • The Virtues of Public Education

      DeJarnatt, Susan L. (2009)
    • Moving beyond Product to Process: Building a Better LRW Program

      Margolis, Ellie; DeJarnatt, Susan L. (2005)
      In the past two decades, LRW has undergone a pedagogical revolution that shifted the emphasis from the product of writing to the process of writing. In the former, product view, LRW teaching tended to focus solely on the product produced, what scholars have called the current-traditional or formalist approach. The teacher did not engage in the process of analysis, assuming that the thinking process was completed before the writing process began. This method of teaching often failed to produce good legal writing. Influenced by composition and rhetoric theory, LRW scholars began to advocate for a focus on the process of analysis and writing, instead of limiting their role to mere correctors of error. This approach recognizes that it is through the process of analyzing and writing that a student constructs meaning. LRW became a course about legal analysis - how to perform it and, most important, how to convey it to others in writing, as lawyers are called upon to do it in their work. The majority of LRW programs have incorporated at least some elements of process-based teaching, though formalism remains central in some LRW classrooms. Many common pedagogical choices still grow out of the older view - not just the product emphasis, but also the era when LRW teachers were replaced every few years and were constantly faced with reinventing the wheel. This article addresses some of the common challenges that arise in structuring a LRW program to maximize student learning. We review the Temple LRW program in detail to demonstrate how we have resolved many of these issues; we highlight those aspects of our program that are different from many other LRW programs and suggest why our methods resolve certain pedagogical dilemmas and are consistent with current theories on teaching writing and helping students enter the discourse community of lawyers.
    • Taking on the Role of Lawyer: Transactional Skills, Transnational Issues, and Commercial Law

      Butturini, Paolo; DeJarnatt, Susan L. (2020)
      American law schools face an ever-growing call for more skills training and experiential learning as part of legal education. This call is mirrored by a call for expansion of experiential learning and skills to include those beyond litigation-based writing. Italian law schools tend generally to adopt a traditional theoretical approach, offering curricular activities that rarely include skills classes or experiential learning. But this situation has been rapidly evolving in the recent years. Increasing attention is being paid in Italy to the call for a more professionally- oriented legal education. Lawyers in both countries today also need to see themselves as part of the international community, not just as individuals concerned only with their localities. Traditionally domestic legal issues cross borders in amazing and legally fascinating ways. In this article, we encourage legal educators in the US, in Italy, and elsewhere to recognize these needs and we offer suggestions for incorporating transactional skills with a cross border dimension to help meet them. We draw on our experiences as teachers in two very different systems of legal education and our work together in Italy and the US to involve students in experiential learning of transactional skills. Although our experiences are based in Italy and the US, we see this effort itself as global and a way to help US law professors build relationships and expand teaching opportunities in other countries and in other legal systems. The article summarizes the arguments for expanding legal education in the US and in Italy to include transactional skills education within a global context. It then offers a model for how schools can do this based on the design and pedagogy of the Introduction to Transactional Skills program at Temple. Finally, it shows how the ITS pedagogical model can be adapted to other legal issues and local needs and can transfer to other cultures.
    • Virtual Reality: Cyber Charter Schools And The Need For Reform

      DeJarnatt, Susan L. (2021)
      Pennsylvania needs to reform its system for funding cyber charter schools.The fourteen cyber charters draw students and tuition dollars from nearly every public school district across the state, but those districts have no say in authorizing or overseeing cyber charters. Though the cybers are a financial drain on the districts, they are money makers for their operators due to weaknesses in the Charter School Law. First, the Charter School Law (CSL) directs the districts to remit the exact same per pupil funding to a cyber charter as they do to a bricks and mortar charter, even though the costs of running a cyber are much lower. Second, the per pupil payment a district must provide to the charter is based on the per pupil spending of that sending district, not on the charter’s cost to educate the student. Finally, cybers, like all charters, receive much higher payments for students with special education needs, but cybers, like all charters, have no obligation to spend that extra money on special education.The CLS should be revised to account for the true costs of operating cyber charter schools and to provide for a voice for districts in the oversight and accountability of these programs.
    • Brief of Law Professors as Amici Curiae in Support of Public Citizen, Inc., v. Trump

      Meyer, Katherine A.; Flatt, Victor B.; Flournoy, Alyson; Glicksman, Robert L.; McGarity, Thomas O.; Shapiro, Sidney A.; Sinden, Amy; Sokol, Karen; Steinzor, Rena I.; Tomain, Joseph P.; Verchick, Robert R.M. (2017-05-24)
    • Cass Sunstein's Cost-Benefit Lite: Economics for Liberals

      Sinden, Amy (2004)
      Book Review: Cass R. Sunstein, The Cost-Benefit State: The Future of Regulatory Protection (ABA Section of Administrative Law and Regulatory Practice, 2002) Cass R. Sunstein, Risk and Reason: Safety, Law, and the Environment (Cambridge University Press, 2002). In these two books, Professor Sunstein promotes cost-benefit analysis (CBA) as the presumptively correct decisionmaking tool for virtually all environmental health and safety regulation. His claims are both normative and descriptive. By avoiding the usual welfare economics defense of CBA, his normative claim sets aside the external critiques of CBA (like the incommensurability problem), and offers instead a set of "pragmatic" justifications: 1) CBA will rationalize government decisionmaking and reduce the undue influence of interest groups that exploit "cognitive distortions" that cause ordinary people to inaccurately assess risks; 2) CBA will increase transparency by forcing regulators to evaluate and describe the full array of consequences flowing from proposed regulations. These justifications are ultimately unconvincing because Professor Sunstein fails to take seriously the central concern of the internal critiques of CBA - indeterminacy. Ironically, when he tests his theories in practice with a careful and cogent case study of EPA's CBA of arsenic in drinking water, he discovers indeterminacy of an astonishing magnitude. He concludes that reasonable people might peg the benefits of the arsenic rule as low as $13 million or as high as $3.4 billion. Though he remains staunchly committed to CBA, the indeterminacy of CBA fatally undermines both of his "pragmatic" justifications. On the descriptive side, Professor Sunstein claims that the United States is becoming a "Cost-Benefit State" and that, as part of this trend, federal courts are adopting a set of "cost-benefit default principles" under which they apply a presumption in favor of CBA to their review of agency decisionmaking. A close look at these cases, however, reveals that in many instances results that he attributes to the "default principles" are more easily explained by reference to the specific statutory language at issue or as classic and not particularly remarkable applications of traditional administrative law principles. Moreover, on the two occasions on which the "default principles" have been tested in the U.S. Supreme Court, they have been roundly rejected.
    • The Economics of Endangered Species: Why Less is More in the Economic Analysis of Critical Habitat Designations

      Sinden, Amy (2004)
      The Endangered Species Act (ESA) is the paradigmatic "absolutist" statute of American environmental law. One provision, however, allows economic considerations to play a role in a particular determination - the designation of an area as "critical habitat" for an endangered species. Though largely ignored for many years, this provision has been recently reinvigorated by a landmark decision from the Tenth Circuit, New Mexico Cattle Growers Association v. U. S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). This article examines recent economic analyses performed by the U.S. Fish and Wildlife Service in the wake of this decision, observing an emerging trend toward increased quantification, formalization, and complexity. This reflects a more general trend toward an increasing faith in cost-benefit analysis in both government and academia. But the ascendancy of cost-benefit analysis has distracted our attention from other ways of taking economic costs into account in environmental standard setting. In fact, throughout the 1970s, Congress generally eschewed the use of formal economic cost-benefit analysis and opted instead for "short-cut" standards that provide for some consideration of the costs of regulation - through, for example, a rough apples-to-oranges comparison of costs and benefits - without requiring the substantial investment of resources necessary for a fully quantified analysis. Considering this provision of the ESA against the backdrop of this rich tradition of "short-cut" standards in American environmental law, this article concludes that application of formal economic cost-benefit analysis to critical habitat designations is inconsistent with congressional intent and, moreover, simply a bad idea. It illogically forces incommensurable values into a common metric; it produces hopelessly indeterminate results; it clouds transparency and undermines public participation by giving controversial and uncertain predictions a false patina of scientific accuracy and objectivity; and it delivers all this regulatory imperfection for a price that is outrageously high, draining needed resources from the real business of saving species.
    • In Defense of Absolutes: Combating the Politics of Power in Environmental Law

      Sinden, Amy (2005)
      The tragedy of the commons has become the central and defining parable of environmental law. Once the environmental problem is defined in the terms of welfare economics, it is only natural to view the solution also in those terms - i.e., as cost-benefit analysis. But market failure is only part of the problem. Environmental degradation also results from a kind of political failure. The endemic power imbalance between the diffuse, non-economic individual interests favoring environmental protection and the concentrated, economic, corporate interests opposing it distorts agency decision making. Accordingly, what is needed is a standard for agency decision making that accounts for and counteracts this power disparity. Cost-benefit analysis fails to do this, as it explicitly avoids distributional issues and actually exacerbates the problem of power imbalance because it is indeterminate and therefore endlessly manipulable. I suggest we look for guidance to theories of constitutional rights, which are fundamentally grounded in concerns about power imbalance and its distorting effects on government decision making. Theories of rights routinely reject the utilitarian notion that decisions should be made by balancing costs and benefits to society as a whole, instead replacing the utilitarian balance with blunt prophylactic rules that counteract power imbalance by placing a thumb on the scale in favor of the weaker party. By analogy, in crafting statutory standards for agency decision making in environmental law, we should also reject cost-benefit analysis in favor of a trumping approach. The Endangered Species Act provides an example in which Congress has taken just such an approach. Its absolute standards operate as trumps: not by actually delivering absolute results, but by putting a thumb on the scale - giving the diffuse and powerless interests that favor species protection a credible threat of injunction and thus power in the political negotiating process through which such issues are ultimately resolved.
    • Climate Change and Human Rights

      Sinden, Amy (2007)
      Global warming may well be the most profound moral issue ever to face the human species. Profound moral issues demand a profound response from law, and as we enter the twenty-first century, human rights is (at least at a rhetorical level) the law's best response to profound, unthinkable, far-reaching moral transgression. More fundamentally, it is the law's strongest condemnation of the exploitation of the weak by the powerful. As such, it was the law's response to the moral crises of the twentieth century, and I want to suggest that it may be an appropriate legal response to the moral crisis of the twenty-first century as well. Human rights function to counteract power imbalances in society. By acting as trumps human rights effectively put a thumb on the scale in favor of the weaker party in order to correct for the distorting effects of power. Because the economic model has become the dominant lens through which we view the world, climate change is often analyzed as a market failure brought on by the tragedy of the commons. But market failure is only part of the problem. There is a far more fundamental and intractable problem standing in the way of meaningful action to stem global warming. That is the political failure brought on by the enormous disparity in power and resources between those interests that stand to gain from climate change regulation and those that - at least in the short run - stand to lose. Thinking of climate change as a human rights issue can help us see that it is not just a matter of aggregate costs and benefits, but of winners and losers - of the powerful few preventing the political system from acting to protect the powerless many.
    • Power and responsibility: why human rights should address corporate environmental wrongs

      Sinden, Amy (2009-09)
      This chapter attempts to construct a normative justification for the imposition of human rights duties on transnational corporations (TNCs) that commit environmental wrongs in the developing world. Under the now near-hegemonic worldview of welfare economics, TNCs are analogised to individuals competing in the marketplace and thus placed squarely on the private side of the public/private divide. If we step outside of the economic worldview, however, and recognise the extent to which the normative justifications for civil and political human rights have traditionally been rooted in a perceived need to counteract the imbalance of power between the individual and the state, it becomes clear that it is frequently far more appropriate to treat TNCs as like states than like individuals. Many TNCs, after all, wield more power and resources than many states. Accordingly, at least where one of two sets of factual circumstances exist, human rights duties should be imposed directly on TNCs for environmental harms: 1) where the state has become so weak and/or corrupt as to be non-functional, or 2) where the TNC has so much power and influence within the domestic government that it essentially controls state decision-making.
    • The “Preference for Pollution” and Other Fallacies, or Why Free Trade Isn’t “Progress” Absent the Harmonization of Environmental Standards

      Sinden, Amy (2008-01)
      The argument that environmental standards must be harmonized among countries involved in free trade in order to ensure a "level playing field" has been prominent in the recent political discourse surrounding globalization and the expansion of international trade. Among academic economists, however, the level-playing-field argument has been widely rejected. In their view, the whole point of free trade is to exploit inherent differences among countries. Differing environmental standards simply reflect the differing preferences for environmental protection among citizens of different countries and, like differences in natural resource endowments, can be exploited via free trade in order to increase overall social welfare. The economists are wrong in rejecting the level playing field argument, however. While it may be true that free trade without harmonization will increase social welfare in the ideal world of economic theory, there is little reason to think that it will do so in the real world. In particular, the economists' claim depends on the untenable assumption that the countries involved in free trade all set and enforce environmental standards at economically optimal - or efficient - levels. If we instead make the far more realistic assumption that environmental standards in one or more countries either are set too low to begin with or are under-enforced, the economists' claim - that free trade increases social welfare - no longer holds. Basic tenets of political and economic theory make clear that political and market dynamics tend systematically to skew environmental standard-setting and enforcement to sub-optimal levels. And where that is true, free trade between countries with differing standards is likely to decrease overall social welfare. Therefore, in order to avoid these negative welfare effects, upward harmonization of environmental standards should be a pre-requisite to free trade.
    • The Missing Instrument: Dirty Input Limits

      Driesen, David M.; Sinden, Amy (2009)
      This article evaluates an environmental protection instrument that the literature has hitherto largely overlooked, Dirty Input Limits (DILs), quantitative limits on the inputs that cause pollution. DILs provide an alternative to cumbersome output-based emissions trading and performance standards. DILs have played a role in some of the world's most prominent environmental success stories. They have also begun to influence climate change policy, because of the impossibility of imposing an output-based cap on transport emissions. We evaluate DILs' administrative advantages, efficiency, dynamic properties, and capacity to better integrate environmental protection efforts. DILs, we show, not only have significant advantages that make them a good policy tool, they also have the capacity to help us fruitfully reconceptualize environmental law in more holistic fashion.
    • The Hidden Human and Environmental Costs of Regulatory Delay

      The Center for Progressive Reform (2009-10)
      Each year dozens of workers are killed, thousands of children harmed, and millions of dollars wasted because of unjustifiable delays in federal regulatory action. Such delays in regulatory action have become commonplace, part of the wallpaper of Washington’s regulatory process for the protector agencies-the Consumer Product Safety Commission (CPSC), EPA, the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), and OSHA. Despite its significance, the problem of regulatory delay and the costs it generates has been virtually ignored in the debate over the general wisdom of the U.S. regulatory system over the last 30-plus years. Opponents of the regulatory system have deliberately framed this debate in terms of the “costs and benefits” of regulatory action, implying that regulatory inaction caused by regulatory delay is somehow cost-free. The one-sided nature of this debate is perhaps best exemplified by the White House Office of Management and Budget’s annual Report to Congress on the Benefits and Costs of Federal Regulations, as required by the 2001 Regulatory Right-to-Know Act. These annual reports document in painstaking detail the quantified and monetized costs and benefits of regulatory action, providing aggregate estimates of these costs and benefits for many of the regulations that federal agencies have issued over the previous year as well as over the previous ten years. Not once, however, have these reports ever sought to document the costs of regulatory delay. The problem with ignoring the costs of regulatory delay is that it provides an incomplete picture of the value of the U.S. regulatory system - one that is inevitably skewed against stronger regulatory protection. Broadly speaking, the purpose of this white paper is to begin the process of filling in the rest of this picture, so that in the future the debate over the general wisdom of the U.S. regulatory system can continue on more robust and balanced terms. To this end, this white paper presents three case studies. Each tells the story of a recent or ongoing example of regulatory delay that has caused real harm to Americans and their environment.