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Articles 31 - 60 of 1798
Full-Text Articles in Law
A Lesson From Startups: Contracting Out Of Shareholder Appraisal, Jill E. Fisch
A Lesson From Startups: Contracting Out Of Shareholder Appraisal, Jill E. Fisch
All Faculty Scholarship
Appraisal is a controversial topic. Policymakers have debated the goals served by the appraisal remedy, and legislatures have repeatedly revised appraisal statutes in an effort to meet those goals while minimizing the cost and potential abuse associated with appraisal litigation. Courts have struggled to determine the most appropriate valuation methodology and the extent to which that methodology should depend on case-specific factors. These difficulties are exacerbated by variation in the procedures by which mergers are negotiated and the potential for conflict-of-interest transactions.
Private ordering offers a market-based alternative to continued legislative or judicial efforts to refine the appraisal remedy. Through …
Police Frisks, David S. Abrams, Hanming Fang, Priyanka Goonetilleke
Police Frisks, David S. Abrams, Hanming Fang, Priyanka Goonetilleke
All Faculty Scholarship
The standard economic model of police stops implies that the contraband hit rate should rise when the number of stops falls, ceteris paribus. We provide empirical corroboration of such optimizing models of police behavior by examining changes in stops and frisks around two extraordinary events of 2020 - the pandemic onset and the nationwide protests following the killing of George Floyd. We find that hit rates from pedestrian and vehicle stops generally rose as stops and frisks fell dramatically. Using detailed data, we are able to rule out a number of alternative explanations, including changes in street population, crime, police …
Digital Cluster Markets, Herbert J. Hovenkamp
Digital Cluster Markets, Herbert J. Hovenkamp
All Faculty Scholarship
This paper considers the role of “cluster” markets in antitrust litigation, the minimum requirements for recognizing such markets, and the relevance of network effects in identifying them.
One foundational requirement of markets in antitrust cases is that they consist of products that are very close substitutes for one another. Even though markets are nearly always porous, this principle is very robust in antitrust analysis and there are few deviations.
Nevertheless, clustering noncompeting products into a single market for purposes of antitrust analysis can be valuable, provided that its limitations are understood. Clustering contributes to market power when (1) many customers …
#Wetoo, Kimberly Kessler Ferzan
#Wetoo, Kimberly Kessler Ferzan
All Faculty Scholarship
The #MeToo movement has caused a widespread cultural reckoning over sexual violence, abuse, and harassment. “Me too” was meant to express and symbolize that each individual victim was not alone in their experiences of sexual harm; they added their voice to others who had faced similar injustices. But viewing the #MeToo movement as a collection of singular voices fails to appreciate that the cases that filled our popular discourse were not cases of individual victims coming forward. Rather, case after case involved multiple victims, typically women, accusing single perpetrators. Victims were believed because there was both safety and strength in …
The Political Dynamics Of Legislative Reform: Potential Drivers Of The Next Communications Statute, Christopher S. Yoo, Tiffany Keung
The Political Dynamics Of Legislative Reform: Potential Drivers Of The Next Communications Statute, Christopher S. Yoo, Tiffany Keung
All Faculty Scholarship
Although most studies of major communications reform legislation focus on the merits of their substantive provisions, analyzing the political dynamics that led to the enactment of such legislation can yield important insights. An examination of the tradeoffs that led the major industry segments to support the Telecommunications Act of 1996 provides a useful illustration of the political bargain that it embodies. Application of a similar analysis to the current context identifies seven components that could form the basis for the next communications statute: universal service, pole attachments, privacy, intermediary immunity, net neutrality, spectrum policy, and antitrust reform. Determining how these …
Moving Toward Personalized Law, Cary Coglianese
Moving Toward Personalized Law, Cary Coglianese
All Faculty Scholarship
Rules operate as a tool of governance by making generalizations, thereby cutting down on government officials’ need to make individual determinations. But because they are generalizations, rules can result in inefficient or perverse outcomes due to their over- and under-inclusiveness. With the aid of advances in machine-learning algorithms, however, it is becoming increasingly possible to imagine governments shifting away from a predominant reliance on general rules and instead moving toward increased reliance on precise individual determinations—or on “personalized law,” to use the term Omri Ben-Shahar and Ariel Porat use in the title of their 2021 book. Among the various technological, …
Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang
Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang
All Faculty Scholarship
Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults."
In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primary norm with surprising …
A Reader’S Guide To Legal Orientalism, Teemu Ruskola
A Reader’S Guide To Legal Orientalism, Teemu Ruskola
All Faculty Scholarship
My book Legal Orientalism: China, the United States, and Modern Law (Harvard University Press 2013) was published in translation in China in 2016. This essay analyzes the Chinese reception of this book. Originally addressed to a North American readership, Legal Orientalism examines critically the asymmetric relationship in which Euro-American law and Chinese law stand to one another, the former regarding itself as an embodiment of universal values while viewing the latter’s as culturally particular ones. The essay explores what happens when a “Western” work of self-criticism is transmitted to an “Eastern” audience. In this context, it analyzes the politics of …
Why Aim Law Toward Human Survival, John William Draper
Why Aim Law Toward Human Survival, John William Draper
Librarian Scholarship at Penn Law
Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.
If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.
There is no better choice. You and all your relatives have rights. The …
Leases As Forms, David A. Hoffman, Anton Strezhnev
Leases As Forms, David A. Hoffman, Anton Strezhnev
All Faculty Scholarship
We offer the first large scale descriptive study of residential leases, based on a dataset of ~170,000 residential leases filed in support of over ~200,000 Philadelphia eviction proceedings from 2005 through 2019. These leases are highly likely to contain unenforceable terms, and their pro-landlord tilt has increased sharply over time. Matching leases with individual tenant characteristics, we show that unlawful terms are surprisingly likely to be associated with more expensive leaseholds in richer, whiter parts of the city. This result is linked to landlords' growing adoption of shared forms, originally created by non-profit landlord associations, and more recently available online …
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
All Faculty Scholarship
For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …
Remodeling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic
Remodeling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic
All Faculty Scholarship
This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …
Internal And External Challenges To Culpability, Stephen J. Morse
Internal And External Challenges To Culpability, Stephen J. Morse
All Faculty Scholarship
This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.
The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …
The Progressives' Antitrust Toolbox, Herbert J. Hovenkamp
The Progressives' Antitrust Toolbox, Herbert J. Hovenkamp
All Faculty Scholarship
The period 1900 to 1930 was the Golden Age of antitrust theory, if not of enforcement. During that period courts and scholars developed nearly all of the tools that we use to this day to assess anticompetitive practices under the federal antitrust laws. In subsequent years antitrust policy veered to both the left and the right, but today seems to be returning to a position quite similar to the one that these Progressive adopted. Their principal contributions were (1) partial equilibrium analysis, which became the basis for concerns about economic concentration, the distinction between short- and long-run analysis, and later …
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
All Faculty Scholarship
The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …
Monopolizing Digital Commerce, Herbert J. Hovenkamp
Monopolizing Digital Commerce, Herbert J. Hovenkamp
All Faculty Scholarship
Section 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.
The one …
Third Party Moral Hazard And The Problem Of Insurance Externalities, Gideon Parchomovsky, Peter Siegelman
Third Party Moral Hazard And The Problem Of Insurance Externalities, Gideon Parchomovsky, Peter Siegelman
All Faculty Scholarship
Insurance can lead to loss or claim-creation not just by insureds themselves, but also by uninsured third parties. These externalities—which we term “third party moral hazard”—arise because insurance creates opportunities both to extract rents and to recover for otherwise unrecoverable losses. Using examples from health, automobile, kidnap, and liability insurance, we demonstrate that the phenomenon is widespread and important, and that the downsides of insurance are greater than previously believed. We explain the economic, social and psychological reasons for this phenomenon, and propose policy responses. Contract-based methods that are traditionally used to control first-party moral hazard can be welfare-reducing in …
Development Of China's Trade Secrets Law In The Us' Shadow: Negative Consequences For China And Suggestions, Yang Chen
University of Pennsylvania Asian Law Review
No abstract provided.
Models Of Human Rights And Counter-Terrorism: Disabling The Terror Franchise In Southern Thailand, Mark D. Kielsgard
Models Of Human Rights And Counter-Terrorism: Disabling The Terror Franchise In Southern Thailand, Mark D. Kielsgard
University of Pennsylvania Asian Law Review
No abstract provided.
Vote By Blood: The Perpetuating Function Of Proxies In Japanese Nationality Law, Andrew Masaru Orita
Vote By Blood: The Perpetuating Function Of Proxies In Japanese Nationality Law, Andrew Masaru Orita
University of Pennsylvania Asian Law Review
No abstract provided.
Director Liability Framework During Borderline Insolvency And Corporate Failure In India, M P Ram Mohan, Urmil Shah
Director Liability Framework During Borderline Insolvency And Corporate Failure In India, M P Ram Mohan, Urmil Shah
University of Pennsylvania Asian Law Review
No abstract provided.
China's Approach To Central Bank Digital Currency: Selectively Reshaping International Financial Order?, Heng Wang
University of Pennsylvania Asian Law Review
No abstract provided.
Breaking The Cycle Of Homelessness And Incarceration: Prisoner Reentry, Racial Justice, & Fair Chance Housing Policy, Tom Stanley-Becker
Breaking The Cycle Of Homelessness And Incarceration: Prisoner Reentry, Racial Justice, & Fair Chance Housing Policy, Tom Stanley-Becker
University of Pennsylvania Journal of Law and Public Affairs
No abstract provided.
Economic Challenges And Prison Renovation In Reform China, Mao-Hong Lin
Economic Challenges And Prison Renovation In Reform China, Mao-Hong Lin
University of Pennsylvania Asian Law Review
No abstract provided.
Beyond A "Bond-Aid" Approach: Building A Better Bond Law, Heather G. White
Beyond A "Bond-Aid" Approach: Building A Better Bond Law, Heather G. White
University of Pennsylvania Journal of Law and Public Affairs
No abstract provided.
The Curse Of The Lecherous Spiritual Charlatans: Law, Moral Panic And Newspaper Reports Of Rape By Religious Fraud In Taiwan, Jianlin Chen, Shao Yuan Chong
The Curse Of The Lecherous Spiritual Charlatans: Law, Moral Panic And Newspaper Reports Of Rape By Religious Fraud In Taiwan, Jianlin Chen, Shao Yuan Chong
University of Pennsylvania Asian Law Review
No abstract provided.
An Empirical Study Of Values Of Law Students In South Korea: Does 'Americanized' Legal Education Impact Their Confucian Ethics?, Richard Wu, Jaewon Kim
An Empirical Study Of Values Of Law Students In South Korea: Does 'Americanized' Legal Education Impact Their Confucian Ethics?, Richard Wu, Jaewon Kim
University of Pennsylvania Asian Law Review
No abstract provided.
Workforce Equality: The Constitutional Conception Of Educational Equality In Mao-Era China, Mengyun Ma
Workforce Equality: The Constitutional Conception Of Educational Equality In Mao-Era China, Mengyun Ma
University of Pennsylvania Asian Law Review
No abstract provided.
Focus On China: The Expansive Use Of National Security Measures To Address Economic Competitiveness Concerns, Stephen Kho, Yujin K. Mcnamara
Focus On China: The Expansive Use Of National Security Measures To Address Economic Competitiveness Concerns, Stephen Kho, Yujin K. Mcnamara
University of Pennsylvania Asian Law Review
No abstract provided.