Author: John Chapin

The Case Against MDL Rulemaking

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There is currently no uniform set of federal rules governing MDL proceedings. But this could soon change. In November 2017, the Advisory Committee on Civil Rules first addressed the possibility of creating new rules specifically for MDL. In the three years since then, the Advisory Committee has appointed a Subcommittee to seriously study the need for MDL-specific rules, and the Subcommittee has narrowed its focus to rulemaking in three areas: early vetting to weed out meritless claims, opportunities for interlocutory appellate review, and settlement review. Although some of these topics are more appropriate for rulemaking than others, this Comment argues that the Subcommittee should decline to move forward with any rule proposal. MDL-specific rules cannot be squared with either the purposes of § 1407 or the twin aims of the Federal Rules of Civil Procedure—efficiency and fairness—and should therefore not be adopted.

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National Parks, Incorporated

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Public lands and private enterprise exist in an uncomfortable equilibrium. Since their founding, the national parks have embraced some...

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Church Taxes and the Original Understanding of the Establishment Clause

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Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids...

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Detecting Mens Rea in the Brain

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What if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there?

If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization assumes.

We combined advanced functional brain-imaging technology with new artificial intelligence tools to see if the brain activities during knowing and reckless states of mind can ever be reliably distinguished.

As our experiment indicates, the answer is Yes. So here we provide an overview of our brain-scanning experiment, discuss important implications, and detail several necessary precautions, so our results won’t be over- or mis-interpreted.

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A Doctrine Without Exception: Critiquing an Immigration Exception to the Anticommandeering Rule

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Federal courts across the country have heard numerous lawsuits about the legality of “sanctuary cities,” which limit cooperation with...

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Justifying Bad Deals

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In the past decade, psychological and behavioral studies have found that individual commitment to contracts persists beyond personal...

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A Personal Essay

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History books will have much to say about the year 2020. Many stories will focus on the global battle against COVID-19. Others will mark the year as America’s racial reckoning—when our country confronted badges and incidents of slavery that have endured despite the Emancipation Proclamation, the Civil Rights Movement, and the presidency of Barack Obama.

In the midst of acknowledging those realities and their deep impact on our journal, the University of Pennsylvania Law Review still found time to commemorate an occasion that history books should not overlook. In the year 2020, one hundred years after the Nineteenth Amendment granted women the right to vote, the Editors-in-Chief of the nation’s top sixteen law schools’ flagship law reviews were all women. The odds of this occurring are slim to none—a 0.0015% chance, to be exact—and such a statistically significant moment reminds us that gender equity in our profession is crucial. This achievement also reveals the underlying truth that diverse leadership in all areas of our field is a prerequisite to building a more just legal system. So, we could not allow this moment to pass without immense gratitude and reflection.

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Illiberal Law in American Courts

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American courts are at times required to interpret the laws of authoritarian countries. Though such cases are increasingly common, they...

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The Congressional Bureaucracy

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Congress has a bureaucracy. Legal scholarship, judicial discourse, and doctrine about Congress and statutes have focused almost entirely...

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Availability of Tolling in a Presidential Prosecution

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There have been only a few instances in the history of the United States when the conduct of the President has drawn the legitimate attention of criminal prosecutors.

In 1973, President Richard Nixon came under scrutiny when several of his aides were convicted of crimes stemming from “a massive campaign of political spying and sabotage conducted on behalf of” the President’s 1972 reelection effort. A special prosecutor was appointed to investigate Nixon’s involvement, before being fired by Nixon himself in the “Saturday Night Massacre.” Several months later, after the Supreme Court held that the President could not claim privilege over taped conversations between he and his aides, the House Judiciary Committee passed the first of three articles of impeachment. Rather than face trial in the Senate, Nixon resigned, becoming the first and only U.S. President to resign the office. While Nixon’s resignation relieved prosecutors of the need to test whether they were constitutionally permitted to indict the President while he remained in office, the special prosecutor’s staff carefully considered the bounds of the President’s immunity in the months leading up to Nixon’s departure. Watergate thus provided the initial battleground for constitutional law scholars to debate the President’s amenability to indictment and criminal process.

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