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Full-Text Articles in Law

Taxes And Competitiveness, Michael S. Knoll Dec 2006

Taxes And Competitiveness, Michael S. Knoll

Faculty Scholarship at Penn Law

Around the world, the tax laws are shaped by concerns with competitiveness. This paper provides a general theory of how taxes impact competitiveness. As part of that theory, this paper also introduces the concept of tax-based competitiveness neutrality. A tax system is competitively neutral when taxes do not cause competitors to change their relative valuations of any investments. This paper then uses that theory to evaluate tax policy in two high profile and important areas. The paper begins by describing two models of competitiveness, called the conduit or new money model and the investor or old money model. The central ...


Legal Reform In Contemporary Japan, Eric Feldman Dec 2006

Legal Reform In Contemporary Japan, Eric Feldman

Faculty Scholarship at Penn Law

In this chapter I offer a preliminary assessment of a quickly moving target—legal reform and its impact on rights in Japan. Although a broad consensus has emerged among interested parties that at least some degree of reform is desirable, there is significant disagreement about the goals of reform, and also about the likelihood that it will achieve certain objectives. Some commentators believe that the Japanese legal system is on the cusp of a “revolution” that will shore up long-neglected rights and create new entitlements. Others predict that the consequences of reform will be modest; and they despair that aggrieved ...


Welfare Polls: A Synthesis, Matthew D. Adler Dec 2006

Welfare Polls: A Synthesis, Matthew D. Adler

Faculty Scholarship at Penn Law

“Welfare polls” are survey instruments that seek to quantify the determinants of human well-being. Currently, three “welfare polling” formats are dominant: contingent-valuation surveys, QALY surveys, and happiness surveys. Each format has generated a large, specialized, scholarly literature, but no comprehensive discussion of welfare polling as a general enterprise exists. This Article seeks to fill that gap. Part I describes the trio of existing formats. Part II discusses the actual and potential uses of welfare polls in government decisionmaking. Part III analyzes in detail the obstacles that welfare polls must overcome to provide useful well-being information, and concludes that they can ...


Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer Nov 2006

Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer

Faculty Scholarship at Penn Law

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private ...


Codifying Shari'a: International Norms, Legality & The Freedom To Invent New Forms, Paul H. Robinson, Adnan Zulfiqar, Margaret Kammerud, Michael Orchowski, Elizabeth A. Gerlach, Adam L. Pollock, Thomas M. O'Brien, John C. Lin, Tom Stenson, Negar Katirai, J. John Lee, Marc Aaron Melzer Nov 2006

Codifying Shari'a: International Norms, Legality & The Freedom To Invent New Forms, Paul H. Robinson, Adnan Zulfiqar, Margaret Kammerud, Michael Orchowski, Elizabeth A. Gerlach, Adam L. Pollock, Thomas M. O'Brien, John C. Lin, Tom Stenson, Negar Katirai, J. John Lee, Marc Aaron Melzer

Faculty Scholarship at Penn Law

The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified ...


Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler Nov 2006

Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler

Faculty Scholarship at Penn Law

How should agencies and legislatures evaluate possible policies to mitigate the impacts of earthquakes, floods, hurricanes and other natural hazards? In particular, should governmental bodies adopt the sorts of policy-analytic and risk assessment techniques that are widely used in the area of environmental hazards (chemical toxins and radiation)? Environmental hazards policy analysis regularly employs proxy tests, in particular tests of technological “feasibility,” rather than focusing on a policy’s impact on well-being. When human welfare does enter the analysis, particular aspects of well-being, such as health and safety, are often given priority over others. “Individual risk” tests and other features ...


Edward R. Becker: A Man In Full, Stephen B. Burbank Nov 2006

Edward R. Becker: A Man In Full, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas Oct 2006

Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas

Faculty Scholarship at Penn Law

This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge ...


Tax Practice In A Circular Revolution: A Review Of Pli's Circular 230 Deskbook, Bridget J. Crawford Oct 2006

Tax Practice In A Circular Revolution: A Review Of Pli's Circular 230 Deskbook, Bridget J. Crawford

Faculty Scholarship at Penn Law

This short review essay evaluates the Practicing Law Institute's Circular 230 Deskbook by Jonathan G. Blattmachr, Mitchell M. Gans and Damien Rios. For attorneys, accountants and others who "practice" before the IRS, the Circular 230 Deskbook is a masterful analysis and an important guide to the Internal Revenue Service's labyrinthine rules and regulations governing tax penalties, reportable transactions and the conduct of tax practitioners. Most tax attorneys and accountants have reacted to the recent changes to Circular 230 by appending banner notices to all written communications. Without fully understanding the underlying rules, however, a practitioner cannot be sure ...


A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein Oct 2006

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories ...


Christianity And The (Modest) Rule Of Law, David A. Skeel Jr., William J. Stuntz Aug 2006

Christianity And The (Modest) Rule Of Law, David A. Skeel Jr., William J. Stuntz

Faculty Scholarship at Penn Law

Conservative Christians are often accused, justifiably, of trying to impose their moral views on the rest of the population: of trying to equate God's law with man's law. In this essay, we try to answer the question whether that equation is consistent with Christianity. It isn't. Christian doctrines of creation and the fall imply the basic protections associated with the rule of law. But the moral law as defined in the Sermon on the Mount is flatly inconsistent with those protections. The most plausible inference to draw from those two conclusions is that the moral law - God ...


Federalism And Private International Law: Implementing The Hague Choice Of Court Convention In The United States, Stephen B. Burbank Jul 2006

Federalism And Private International Law: Implementing The Hague Choice Of Court Convention In The United States, Stephen B. Burbank

Faculty Scholarship at Penn Law

Federalism is important in the United States. It is also important that the United States be able to participate effectively in a global economy and that those charged with the conduct of the country's foreign affairs be able to make, and that the country abide by, international agreements that are designed to facilitate transnational commercial activity. The Hague Choice of Court Convention is one such agreement, the modest fruits of more than a decade of work in an international lawmaking effort that was initiated by the United States. However modest the fruits of the enterprise, the rest of the ...


The Next "New Wave": Law Genre Documentaries, Lawyering In Support Of The Creative Process, And Visual Legal Advocacy, Regina Austin Jul 2006

The Next "New Wave": Law Genre Documentaries, Lawyering In Support Of The Creative Process, And Visual Legal Advocacy, Regina Austin

Faculty Scholarship at Penn Law

Unlike law-related feature films, law-related documentary or nonfiction films have rarely been the subject of legal scholarship, nor have they been extensively used as teaching tools throughout the law school curriculum. The lack of interest in such films is explained by a number of popular misconceptions about documentaries, such as their “genre-lessness” or the lack of common threads running through the films that facilitate critical reception; the elusive nature of documentary truth; the films’ fixation on victimization and by necessity the exploitation of the films’ subjects; and the lack of practical payoff for law students and lawyers from critically studying ...


The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter Jul 2006

The Future Of International Law Is Domestic (Or, The European Way Of Law), William W. Burke-White, Anne-Marie Slaughter

Faculty Scholarship at Penn Law

No abstract provided.


The Place Of Competition In American Election Law, In The Marketplace Of Democracy, Nathaniel Persily Jun 2006

The Place Of Competition In American Election Law, In The Marketplace Of Democracy, Nathaniel Persily

Faculty Scholarship at Penn Law

This forthcoming book chapter defines the problem of diminished political competition, describes the relevant legal analogies concerning regulation of economic competition, and explains how the law shapes the competitive environment for elections. It also details how Supreme Court justices have sometimes tried to incorporate competitiveness concerns into their election law decisions in cases concerning ballot access, redistricting, campaign finance, party reform, and term limits. For the most part, constitutional law proves to be both a blunt and a coarse instrument for addressing excesses of partisan greed or self-interest, but justices of varying ideological leanings have invoked such concerns (usually in ...


Transparency And Participation In Criminal Procedure, Stephanos Bibas Jun 2006

Transparency And Participation In Criminal Procedure, Stephanos Bibas

Faculty Scholarship at Penn Law

The insiders who run the criminal justice system–judges, police, and especially prosecutors–have information, power, and self-interests that greatly influence the criminal justice process and outcomes. Outsiders–crime victims, bystanders, and most of the general public–find the system frustratingly opaque, insular, and unconcerned with proper retribution. As a result, a spiral ensues: insiders twist rules as they see fit, outsiders try to constrain them, and insiders find new ways to evade or manipulate the new rules. The gulf between insiders and outsiders undercuts the instrumental, moral, and expressive efficacy of criminal procedure in serving the criminal law’s ...


The Consciousness Of Religion And The Consciousness Of Law, With Some Implications For Dialogue, Howard Lesnick May 2006

The Consciousness Of Religion And The Consciousness Of Law, With Some Implications For Dialogue, Howard Lesnick

Faculty Scholarship at Penn Law

No abstract provided.


Gay Marriage, Public Opinion And The Courts, Nathaniel Persily Apr 2006

Gay Marriage, Public Opinion And The Courts, Nathaniel Persily

Faculty Scholarship at Penn Law

This Article examines trends in public opinion and media coverage on gay marriage to evaluate the claim that the Supreme Court’s decision in Lawrence v. Texas and the Massachusetts Supreme Judicial Court’s decision in Goodridge v. Department of Health catalyzed an anti-gay “backlash.” We find that in the immediate aftermath of Lawrence a larger share of the American public expressed hostile attitudes on questions tapping opinions on gay sex and gay marriage. That backlash continued through the two Goodridge decisions and the 2004 election, but appears to have leveled off and even returned to pre-Lawrence levels by the ...


Brain Overclaim Syndrome And Criminal Responsibility: A Diagnostic Note, Stephen J. Morse Apr 2006

Brain Overclaim Syndrome And Criminal Responsibility: A Diagnostic Note, Stephen J. Morse

Faculty Scholarship at Penn Law

This brief diagnostic note identifies a cognitive pathology, "Brain Overclaim Syndrome [BOS]," that often afflicts those inflamed by the fascinating new discoveries in the neurosciences. It begins by suggesting how one should think about the relation of neuroscience (or any other material explanation of human behavior) to criminal responsibility, distinguishing between internal and external critiques based on neuroscience. It then describes the signs and symptoms of BOS, the essential feature of which is to make claims about the implications of neuroscience for criminal responsibility that cannot be conceptually or empirically sustained. It then applies the diagnostic lens of BOS to ...


Measuring Efficiency In Corporate Law: The Role Of Shareholder Primacy, Jill E. Fisch Apr 2006

Measuring Efficiency In Corporate Law: The Role Of Shareholder Primacy, Jill E. Fisch

Faculty Scholarship at Penn Law

The shareholder primacy norm defines the objective of the corporation as maximization of shareholder wealth. Law and economics scholars have incorporated the shareholder primacy norm into their empirical analyses of regulatory efficiency. An increasingly influential body of scholarship uses empirical methodology to evaluate legal rules that allocate power within the corporation. By embracing the shareholder primacy norm, empirical scholars offer normative assessments about regulatory choices based on the effect of legal rules on measures of shareholder value such as stock price, net profits, and Tobin’s Q.

This Article challenges the foundations of using the shareholder primacy norm to judge ...


The Culture Of Legal Change: A Case Study Of Tobacco Control In Twenty-First Century Japan, Eric Feldman Apr 2006

The Culture Of Legal Change: A Case Study Of Tobacco Control In Twenty-First Century Japan, Eric Feldman

Faculty Scholarship at Penn Law

This Article argues that the interaction of international norms and local culture is a central factor in the creation and transformation of legal rules. Like Alan Watson's influential theory of legal transplants, it emphasizes that legal change is frequently a consequence of learning from other jurisdictions. And like those who have argued that rational, self-interested lawmakers responding to incentives such as reelection are the engine of legal change, this Article treats incentives as critical motivators of human behavior. But in place of the cutting-and-pasting of black-letter legal doctrine it highlights the cross-border flow of social norms, and rather than ...


Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh Apr 2006

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to ...


Standards Ownership And Competition Policy, Herbert J. Hovenkamp Mar 2006

Standards Ownership And Competition Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust law is a blunt instrument for dealing with many claims of anticompetitive standard setting. Antitrust fact finders lack the sophistication to pass judgment on the substantive merits of a standard. In any event, antitrust is not a roving mandate to question bad standards. It requires an injury to competition, and whether the minimum conditions for competitive harm are present can often be determined without examining the substance of the standard itself.

When government involvement in standard setting is substantial antitrust challenges should generally be rejected. The petitioning process in a democratic system protects even bad legislative judgments from collateral ...


The Return Of Bargain: An Economic Theory Of How Standard Form Contracts Negotiation Between Businesses And Consumers, Jason S. Johnston Mar 2006

The Return Of Bargain: An Economic Theory Of How Standard Form Contracts Negotiation Between Businesses And Consumers, Jason S. Johnston

Faculty Scholarship at Penn Law

This paper analyzes standard form contracts between firms and individual consumers (and borrowers). It presents a mix of anecdotal and empirical evidence from a large number of industries demonstrating a widespread pattern in which firms refrain from enforcing the typically clear bright line performance obligations that such standard form contracts set out (such as a consumer credit repayment terms, or a retail consumer's right to return goods). Instead, firms routinely give their supervisory employees the discretion to bargain around such terms. Within a simple and informal model, the paper explains such delegated, discretionary renegotiation as a means by which ...


Recharacterization And The Nonhindrance Of Creditors, David A. Skeel Jr., Georg Krause-Vilmar Mar 2006

Recharacterization And The Nonhindrance Of Creditors, David A. Skeel Jr., Georg Krause-Vilmar

Faculty Scholarship at Penn Law

Using a 1977 article by Robert Clark as the starting point, this article attempts to shed new light on the question of whether and when shareholder loans to her company should be either equitably subordinated or, as courts have done in a few recent cases, recharacterized as equity. In its emphasis on the particular issue of shareholder loans, the article has a narrower compass than Clark’s article, which uses a four-part typology to explore the relationship among fraudulent conveyance law, equitable subordination, veil piercing and dividend restrictions. But the article also expands Clark’s analysis in several respects. The ...


Choice, Consent, And Cycling: The Hidden Limitations Of Consent, Leo Katz Feb 2006

Choice, Consent, And Cycling: The Hidden Limitations Of Consent, Leo Katz

Faculty Scholarship at Penn Law

Most legal scholars assume that if V consents to allow D to do something to him, such consent makes D's actions legally and morally acceptable. To be sure, they are willing to make an exception when consent is given under a specified list of conditions: Force, fraud, incompetence, third-party effects, unequal bargaining power, commodification, paternalism - all of these may be grounds for rejecting the validity of V's consent. We might call scholars who take this view of consent quasi-libertarians. In this Article, I argue against the quasi-libertarian view of consent. My central claim is that the validity of ...


The Law Of Exclusionary Pricing, Herbert J. Hovenkamp Jan 2006

The Law Of Exclusionary Pricing, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The success of the Areeda-Turner test for predatory pricing and the Supreme Court's adoption of demanding proof requirements in its 1993 Brooke Group decision have made it very difficult for plaintiffs to win conventional predatory pricing claims. While many challenges to exclusionary pricing continue to be made, the legal theory has evolved away from classical predation to a variety of other theories. These include challenges to quantity and market share discounts, single item and package discounts, and various purchasing practices, including slotting fees, overinvestment in fixed cost assets, and overbuying of variable cost inputs. Plaintiffs have enjoyed somewhat greater ...


Introduction, Anita L. Allen Jan 2006

Introduction, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman Jan 2006

Meta-Blackmail And The Evidentiary Theory: Still Taking Motives Seriously, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard Jr. Jan 2006

Rhetoric Of Disputes In The Courts, The Media, And The Legislature, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.