May Author Responses to PENNumbra


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This month, three print authors from the past year reply to the PENNumbra Responses to their articles.

In The Unusual Man in the Usual Place, Professor Bowers supports his argument from Punishing the Innocent by individually addressing each of the responses to his article in turn. Bowers begins by arguing that, while Professor Bibas would be right to view guilty pleas by innocent defendants as a “moral horrors” in a “well-functioning and transparent criminal justice system,” we do not have such a system. Under the flawed system we do have, however, Bowers contends that his proposal would promote “an odd, but very real, kind of honesty in lies—an honesty that innocent defendants do, and often should, falsely admit guilt in order to secure the benefits of defendant-favorable pleas.” Bowers then questions both the possibility and the wisdom of the “bold proposal” in Professor Thomas’ response. He asserts that although Thomas “surely does not want to engender more false guilty pleas, his proposal may have that principle effect.” Finally, Bowers acknowledges that Professor Wright’s call for targeted reforms may be correct, but argues that in regards to “voluntary and intelligent rational-choice pleas, we must opt for rules that either permit such pleas or forbid them—categorically.”

>Read the full response by Josh Bowers

In Excluding Religion: A Reply, Professor Tebbe defends his argument that as a matter of constitutional law, “governments ought to be given wider constitutional latitude to exclude religion from their support programs.” Tebbe first accepts the invitations of his responders to “explore the legal implications” of his argument on political theory, concluding that while his approach may seem to “appeal chiefly to separationists, . . . [it] may also hold some appeal for people who favor greater governmental influence over matters of conscience and morality.” He then devotes the remainder of his response to answer several critiques, including Professor Berg’s assertion that Excluding Religion cannot be squared with the “no-influence approach” to the First Amendment, Professor Garnett’s call for a more “muscular” form of liberalism, and Professor Smith’s criticism that Tebbe has not provided a “unitary principle” for religious freedom. Finally, Tebbe addresses why he even “bother[s]” to write in an area of law where some scholars believe arguments can only convince those readers who are already inclined to agree.

>Read the full response by Nelson Tebbe

In Making Sense of Immigration Law, Professor Cox continues his argument from Immigration Law’s Organizing Principles that the distinction between rules that select migrants and rules that regulate migrants “serves to obfuscate rather than illuminate the important normative principles at stake when we choose amongst competing immigration laws and policies.” In his rebuttal to Professors Schuck’s and Huntington’s responses, Cox contends that in many ways both scholars’ arguments “embody some of the same conceptual mistakes that . . . infect the field as a whole.” Cox first addresses what he believes is a “misapprehen[sion]” of the argument from Organizing Principles: Schuck’s contention that the article wrongly argues for “essential equivalence” between the concepts of “selection” and “regulation.” After clarifying the structure of his argument, Cox turns to Huntington’s claim that there is “some” conceptual distinction between the two types of rules. Cox argues that the distinction offered by Huntington—”between (a) admission and deportation rules and (b) other rules that regulate noncitizens”—can neither be understood as widely shared today nor a viable “dividing criterion” around which agreement could be found.

>Read the full response by Adam B. Cox

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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