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Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang Jan 2021

Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

In Section I, through a ...


Internal And External Challenges To Culpability, Stephen J. Morse Jan 2021

Internal And External Challenges To Culpability, Stephen J. Morse

Faculty Scholarship at Penn Law

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 ...


The Post-Chicago Antitrust Revolution: A Retrospective, Christopher S. Yoo Dec 2020

The Post-Chicago Antitrust Revolution: A Retrospective, Christopher S. Yoo

Faculty Scholarship at Penn Law

A symposium examining the contributions of the post-Chicago School provides an appropriate opportunity to offer some thoughts on both the past and the future of antitrust. This afterword reviews the excellent papers with an eye toward appreciating the contributions and limitations of both the Chicago School, in terms of promoting the consumer welfare standard and embracing price theory as the preferred mode of economic analysis, and the post-Chicago School, with its emphasis on game theory and firm-level strategic conduct. It then explores two emerging trends, specifically neo-Brandeisian advocacy for abandoning consumer welfare as the sole goal of antitrust and the ...


Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy Dec 2020

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Faculty Scholarship at Penn Law

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often-countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way to ...


Due Process In Antitrust Enforcement: Normative And Comparative Perspectives, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang Dec 2020

Due Process In Antitrust Enforcement: Normative And Comparative Perspectives, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang

Faculty Scholarship at Penn Law

Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and ...


A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz Dec 2020

A Formulaic Recitation Will Not Do: Why The Federal Rules Demand More Detail In Criminal Pleading, Charles Eric Hintz

Faculty Scholarship at Penn Law

When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must plead sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements. Given the significantly higher stakes involved in criminal cases, one might think that an even more robust requirement would exist in that context. But in fact a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply ...


Is Executive Function The Universal Acid?, Stephen J. Morse Nov 2020

Is Executive Function The Universal Acid?, Stephen J. Morse

Faculty Scholarship at Penn Law

This essay responds to Hirstein, Sifferd and Fagan’s book, Responsible Brains (MIT Press, 2018), which claims that executive function is the guiding mechanism that supports both responsible agency and the necessity for some excuses. In contrast, I suggest that executive function is not the universal acid and the neuroscience at present contributes almost nothing to the necessary psychological level of explanation and analysis. To the extent neuroscience can be useful, it is virtually entirely dependent on well-validated psychology to correlate with the neuroscientific variables under investigation. The essay considers what executive function is and what the neuroscience adds to ...


Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor Nov 2020

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor

Faculty Scholarship at Penn Law

The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this paper, we canvas the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication ...


Deregulatory Deceptions: Reviewing The Trump Administration’S Claims About Regulatory Reform, Cary Coglianese, Natasha Sarin, Stuart Shapiro Nov 2020

Deregulatory Deceptions: Reviewing The Trump Administration’S Claims About Regulatory Reform, Cary Coglianese, Natasha Sarin, Stuart Shapiro

Faculty Scholarship at Penn Law

President Donald Trump and his supporters like to point to the positive economic trends the United States experienced prior to the COVID pandemic. They argue that these positive conditions stemmed from the President’s policies, especially his emphasis on deregulation. But what has the Trump Administration really accomplished when it comes to deregulation? The answer is much less than the Administration has claimed—and much less than probably most members of the public would surmise. We compare the claims the Administration has made about its deregulatory accomplishments with what the evidence can sustain. Drawing on an original compilation of data ...


Pursuing Diversity: From Education To Employment, Amy L. Wax Oct 2020

Pursuing Diversity: From Education To Employment, Amy L. Wax

Faculty Scholarship at Penn Law

A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce ...


Influence Through Intimidation: Evidence From Business Lobbying And The Regulatory Process, Alex Acs, Cary Coglianese Oct 2020

Influence Through Intimidation: Evidence From Business Lobbying And The Regulatory Process, Alex Acs, Cary Coglianese

Faculty Scholarship at Penn Law

Interest group influence in the policy process is often assumed to occur through a mechanism of exchange, persuasion, or subsidy. Here, we explore how business groups may also exert influence by intimidating policymakers—a form of persuasion, but one based not on the provision of policy information but of political information. We develop a theory where a business firm lobbies a regulator to communicate political information about its capacity to commit to future influence-seeking activities that would sanction the regulator. The regulator assesses the credibility of this message by evaluating the firm’s commitment to lobbying. Guided by our theory ...


Unrules, Cary Coglianese, Gabriel Scheffler, Daniel Walters Oct 2020

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel Walters

Faculty Scholarship at Penn Law

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory ...


A Truce In The Criminal Law Distributive Principle Wars?, Paul H. Robinson Oct 2020

A Truce In The Criminal Law Distributive Principle Wars?, Paul H. Robinson

Faculty Scholarship at Penn Law

Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs.

It is argued here that the two are in fact reconcilable, in a fashion ...


The Irony Of Health Care’S Public Option, Allison K. Hoffman Sep 2020

The Irony Of Health Care’S Public Option, Allison K. Hoffman

Faculty Scholarship at Penn Law

The idea of a public health insurance option is at least a half century old, but has not yet had its day in the limelight. This chapter explains why if that moment ever comes, health care’s public option will fall short of expectations that it will provide a differentiated, meaningful alternative to private health insurance and will spur health insurance competition.

Health care’s public option bubbled up in its best-known form in California in the early 2000s and got increasing mainstream attention in the lead up to the 2010 health reform, the Patient Protection and Affordable Care Act ...


Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker Sep 2020

Uncertainty > Risk: Lessons For Legal Thought From The Insurance Runoff Market, Tom Baker

Faculty Scholarship at Penn Law

Insurance ideas inform legal thought: from tort law, to health law and financial services regulation, to theories of distributive justice. Within that thought, insurance is conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. This ideal type also supports a restrictive vision of liability-based regulation that opposes expansions and supports cutbacks, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work ...


The Search For Clarity In Attorney's Duty To Google, Michael Murphy Aug 2020

The Search For Clarity In Attorney's Duty To Google, Michael Murphy

Faculty Scholarship at Penn Law

Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much ...


Did The America Invents Act Change University Technology Transfer?, Cynthia L. Dahl Aug 2020

Did The America Invents Act Change University Technology Transfer?, Cynthia L. Dahl

Faculty Scholarship at Penn Law

University technology transfer offices (TTOs) are the gatekeepers to groundbreaking innovations sparked in research laboratories around the U.S. With a business model reliant on patenting and licensing out for commercialization, TTOs were positioned for upheaval when the America Invents Act (AIA) transformed U.S. patent law in 2011. Now almost ten years later, this article examines the AIA’s actual effects on this patent-centric industry. It focuses on the five key areas of most interest to TTOs: i) first to file priority; ii) broadening of the universe of prior art; iii) carve-out to the prior commercial use defense; iv ...


Law As Scapegoat, Cary Coglianese Aug 2020

Law As Scapegoat, Cary Coglianese

Faculty Scholarship at Penn Law

Populist nationalist movements have been on the rise around the world in recent years. These movements have tapped into, and fueled, a deep anger among many members of the public. Especially in the face of stagnant or declining economic prospects—as well as expanding inequality—much anger has been directed at minorities and migrants. Politicians with authoritarian tendencies have sought to leverage such public anger by reinforcing tendencies to scapegoat others for their society’s problems. In this paper, I show that laws and regulations—like migrants—can be framed as “the other” too and made into scapegoats. With reference ...


The Aca’S Choice Problem, Allison K. Hoffman Aug 2020

The Aca’S Choice Problem, Allison K. Hoffman

Faculty Scholarship at Penn Law

The Affordable Care Act (ACA) is in many ways a success. Millions more Americans now have access to health care, and the ACA catalyzed advances in health care delivery reform. Simultaneously, it has reinforced and bolstered a problem at the heart of American health policy and regulation: a love affair with choice. The ACA’s insurance reforms doubled down on the particularly American obsession with choice. This article describes three ways in which that doubling down is problematic for the future of US health policy. First, pragmatically, health policy theory predicts that choice among health plans will produce tangible benefits ...


How Medicalization Of Civil Rights Could Disappoint, Allison K. Hoffman Jul 2020

How Medicalization Of Civil Rights Could Disappoint, Allison K. Hoffman

Faculty Scholarship at Penn Law

This essay reflects on Craig Konnoth’s recent Article, Medicalization and the New Civil Rights, which is a carefully crafted and thought-provoking description of the refashioning of civil rights claims into medical rights frameworks. He compellingly threads together many intellectual traditions—from antidiscrimination law to disability law to health law—to illustrate the pervasiveness of the phenomenon that he describes and why it might be productive as a tool to advance civil rights.

This response, however, offers several reasons why medicalization may not cure all that ails civil rights litigation’s pains and elaborates on the potential risks of overinvesting ...


The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter Menell Jun 2020

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter Menell

Faculty Scholarship at Penn Law

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Prods., Inc. v. McDonald’s Corp., ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonaldland characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding ...


Deploying Machine Learning For A Sustainable Future, Cary Coglianese May 2020

Deploying Machine Learning For A Sustainable Future, Cary Coglianese

Faculty Scholarship at Penn Law

To meet the environmental challenges of a warming planet and an increasingly complex, high tech economy, government must become smarter about how it makes policies and deploys its limited resources. It specifically needs to build a robust capacity to analyze large volumes of environmental and economic data by using machine-learning algorithms to improve regulatory oversight, monitoring, and decision-making. Three challenges can be expected to drive the need for algorithmic environmental governance: more problems, less funding, and growing public demands. This paper explains why algorithmic governance will prove pivotal in meeting these challenges, but it also presents four likely obstacles that ...


Indoctrination And Social Influence As A Defense To Crime: Are We Responsible For Who We Are?, Paul H. Robinson, Lindsay Holcomb May 2020

Indoctrination And Social Influence As A Defense To Crime: Are We Responsible For Who We Are?, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Law

A patriotic POW is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he had not ...


Commercial Law Intersections, Giuliano Castellano, Andrea Tosato Apr 2020

Commercial Law Intersections, Giuliano Castellano, Andrea Tosato

Faculty Scholarship at Penn Law

Commercial law is not a single, monolithic entity. It has grown into a dense thicket of subject-specific branches that govern a broad range of transactions and corporate actions. When one of these events falls concurrently within the purview of two or more of these commercial law branches - such as corporate law, intellectual property law, secured transactions law, conduct and prudential regulation - an overlap materializes. We refer to this legal phenomenon as a commercial law intersection (CLI). Some notable examples of transactions that feature CLIs include bank loans secured by shares, supply chain financing arrangements, patent cross-licensing, and blockchain-based initial coin ...


Lost In Transplantation: Modern Principles Of Secured Transactions Law As Legal Transplants, Charles W. Mooney Jr. Apr 2020

Lost In Transplantation: Modern Principles Of Secured Transactions Law As Legal Transplants, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This manuscript will appear as a chapter in a forthcoming edited volume published by Hart Publishing, Secured Transactions Law in Asia: Principles, Perspectives and Reform (Louise Gullifer & Dora Neo eds., forthcoming 2020). It focuses on a set of principles (Modern Principles) that secured transactions law for personal property should follow. These Modern Principles are based on UCC Article 9 and its many progeny, including the UNCITRAL Model Law on Secured Transactions. The chapter situates the Modern principles in the context of the transplantation of law from one legal system to another. It draws in particular on Alan Watson’s pathbreaking ...


The Proof Is In The Process: Self-Reporting Under International Human Rights Treaties, Cosette D. Creamer, Beth A. Simmons Feb 2020

The Proof Is In The Process: Self-Reporting Under International Human Rights Treaties, Cosette D. Creamer, Beth A. Simmons

Faculty Scholarship at Penn Law

Recent research has shown that state reporting to human rights monitoring bodies is associated with improvements in rights practices, calling into question earlier claims that self-reporting is inconsequential. Yet little work has been done to explore the theoretical mechanisms that plausibly account for this association. This Article systematically documents—across treaties, countries, and years—four mechanisms through which reporting can contribute to human rights improvements: elite socialization, learning and capacity building, domestic mobilization, and law development. These mechanisms have implications for the future of human rights treaty monitoring.


How Criminal Code Drafting Form Can Restrain Prosecutorial And Legislative Excesses: Consolidated Offense Drafting, Paul H. Robinson, Matthew Kussmaul, Muhammad Sarahne Feb 2020

How Criminal Code Drafting Form Can Restrain Prosecutorial And Legislative Excesses: Consolidated Offense Drafting, Paul H. Robinson, Matthew Kussmaul, Muhammad Sarahne

Faculty Scholarship at Penn Law

Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses.

After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay ...


Google V. Oracle Amicus Merits Stage Brief: Vindicating Ip’S Channeling Principle And Restoring Jurisdictional Balance To Software Copyright Protection, Peter Menell, David Nimmer, Shyamkrishna Balganesh Jan 2020

Google V. Oracle Amicus Merits Stage Brief: Vindicating Ip’S Channeling Principle And Restoring Jurisdictional Balance To Software Copyright Protection, Peter Menell, David Nimmer, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

The Federal Circuit’s decisions in Oracle v. Google conflict with this Court’s seminal decision in Baker v. Selden, 101 U.S. 99 (1879), misinterpret Congress’s codification of this Court’s fundamental channeling principle and related limiting doctrines, and upend nearly three decades of sound, well-settled, and critically important decisions of multiple regional circuits on the scope of copyright protection for computer software. Based on the fundamental channeling principle enunciated in Baker v. Selden, as reflected in § 102(b) of the Copyright Act, the functional requirements of APIs for computer systems and devices, like the internal workings of ...


Rejoining Treaties, Jean Galbraith Jan 2020

Rejoining Treaties, Jean Galbraith

Faculty Scholarship at Penn Law

Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal is consistent with international law. This Article considers a further question that to date is deeply underexplored. This is: does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from a treaty? I argue that the answer to this question is yes, except in certain limited circumstances. This answer ...


Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters Jan 2020

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

Faculty Scholarship at Penn Law

Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies ...