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Full-Text Articles in Law

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters Mar 2018

The Self-Delegation False Alarm: Analyzing Auer Deference's Effect On Agency Rules, Daniel E. Walters

Faculty Scholarship

Auer deference holds that when agencies interpret their own pre-existing regulations, they receive deference from reviewing courts. The doctrine serves a critical function in the administrative process, obviating the need for agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary and guaranteeing that agencies’ good faith exercise of interpretive discretion will be respected by courts. But for some leading scholars and jurists, this benign-sounding doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation-of-powers norms in the process. This “perverse incentives thesis” has become increasingly influential ...


Capturing Regulatory Agendas?: An Empirical Study Of Industry Use Of Rulemaking Petitions, Daniel E. Walters Mar 2018

Capturing Regulatory Agendas?: An Empirical Study Of Industry Use Of Rulemaking Petitions, Daniel E. Walters

Faculty Scholarship

A great deal of skepticism toward administrative agencies stems from the widespread perception that they excessively or even exclusively cater to business interests. From the political right comes the accusation that business interests use regulation to erect barriers to entry that protect profits and stifle competition. From the political left comes the claim that business interests use secretive interactions with agencies to erode and negate beneficial regulatory programs. Regulatory “capture” theory elevates many of these claims to the status of economic law. Despite growing skepticism about capture theory in academic circles, empirical studies of business influence and capture return ambiguous ...


Anthony Kennedy: A Most Principled Justice, Mitchell N. Berman, David Peters Feb 2018

Anthony Kennedy: A Most Principled Justice, Mitchell N. Berman, David Peters

Faculty Scholarship

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in ...


Finding The Right Balance In Appraisal Litigation: Deal Price, Deal Process, And Synergies, Lawrence A. Hamermesh, Michael L. Wachter Feb 2018

Finding The Right Balance In Appraisal Litigation: Deal Price, Deal Process, And Synergies, Lawrence A. Hamermesh, Michael L. Wachter

Faculty Scholarship

This article examines the evolution of Delaware appraisal litigation and concludes that recent precedents have created a satisfactory framework in which the remedy is most effective in the case of transactions where there is the greatest reason to question the efficacy of the market for corporate control, and vice versa. We suggest that, in effect, the developing framework invites the courts to accept the deal price as the proper measure of fair value, not because of any presumption that would operate in the absence of proof, but where the proponent of the transaction affirmatively demonstrates that the transaction would survive ...


Property As The Right To Be Left Alone, Abraham Bell, Gideon Parchomovsky Feb 2018

Property As The Right To Be Left Alone, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship

Once upon a time, there existed a clear nexus between property and privacy. Protection of property rights was an important safeguard against intrusions of the privacy interests of owners both by the government and by private actors. Gradually, however, the symbiotic relationship between privacy and property has been forgotten by scholars and policymakers and fallen into oblivion.

In this Article, we seek to restore the centrality of privacy in property law by making two novel contributions – one descriptive and one normative. Descriptively, we demonstrate that concerns for privacy inform, at times implicitly, many important property doctrines. Indeed, we show that ...


Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp Feb 2018

Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp

Faculty Scholarship

Mergers of competitors are conventionally challenged under the federal antitrust laws when they threaten to lessen competition in some product or service market in which the merging firms sell. Mergers can also injure competition in markets where the firms purchase. Although that principle is widely recognized, very few litigated cases have applied merger law to buyers. This article concerns an even more rarefied subset, and one that has barely been mentioned. Nevertheless, its implications are staggering. Some mergers may be unlawful because they injure competition in the labor market by enabling the post-merger firm anticompetitively to suppress wages or salaries ...


Toward A Horizontal Fiduciary Duty In Corporate Law, Asaf Eckstein, Gideon Parchomovsky Feb 2018

Toward A Horizontal Fiduciary Duty In Corporate Law, Asaf Eckstein, Gideon Parchomovsky

Faculty Scholarship

Fiduciary duty is arguably the single most important aspect of our corporate law system. It consists of two distinct sub-duties—a duty of care and a duty of loyalty—and it applies to all directors and corporate officers. Yet, under extant law, the duty only applies vertically, in the relationship between directors and corporate officers and the firm. At present, there exists no horizontal fiduciary duty: directors and corporate officers owe no fiduciary duty to each other. Consequently, if one of them fails her peers, they cannot seek direct legal recourse against her even when they stand to suffer significant ...


Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff Feb 2018

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

Faculty Scholarship

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of ...


Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp Feb 2018

Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp

Faculty Scholarship

Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.

In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of ...


Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason Jan 2018

Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason

Faculty Scholarship

In this article, we respond to Professor Zelinsky’s criticism of our arguments regarding the constitutionality of New York’s tax residence rule. We argue that the Supreme Court’s decision in Wynne requires reconsideration of the New York Court of Appeal’s decision in Tamagni.


Prophylactic Merger Policy, Herbert J. Hovenkamp Jan 2018

Prophylactic Merger Policy, Herbert J. Hovenkamp

Faculty Scholarship

An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there ...


Remedial Reading: Evaluating Federal Courts' Application Of The Prejudice Standard In Capital Sentences From "Weighing" And "Non-Weighing" States, Sarah Gerwig-Moore Jan 2018

Remedial Reading: Evaluating Federal Courts' Application Of The Prejudice Standard In Capital Sentences From "Weighing" And "Non-Weighing" States, Sarah Gerwig-Moore

JCL Online

No abstract provided.


Views Among College Students Regarding Freedom Of Expression: An Analysis In Light Of Key Supreme Court Decisions, John Villasenor Jan 2018

Views Among College Students Regarding Freedom Of Expression: An Analysis In Light Of Key Supreme Court Decisions, John Villasenor

JCL Online

No abstract provided.


A Counterfactual History Of Transgender Students' Rights, Kristi L. Bowman Jan 2018

A Counterfactual History Of Transgender Students' Rights, Kristi L. Bowman

JCL Online

No abstract provided.


Progressive Antitrust, Herbert J. Hovenkamp Jan 2018

Progressive Antitrust, Herbert J. Hovenkamp

Faculty Scholarship

Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...


Copyright As Market Prospect, Shyamkrishna Balganesh Jan 2018

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts—principally trespass and negligence—in order to understand copyright’s structure of entitlement and liability. This focus on property- and harm-based torts has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant's volitional actions interfere with a potential economic ...


Anti‐Slapp Statutes And The Federal Rules: Why Preemption Analysis Shows They Should Apply In Federal Diversity Suits, William James Seidleck Jan 2018

Anti‐Slapp Statutes And The Federal Rules: Why Preemption Analysis Shows They Should Apply In Federal Diversity Suits, William James Seidleck

University of Pennsylvania Law Review

No abstract provided.


Pandora’S Digital Box: The Promise And Perils Of Digital Wallets, Adam J. Levitin Jan 2018

Pandora’S Digital Box: The Promise And Perils Of Digital Wallets, Adam J. Levitin

University of Pennsylvania Law Review

No abstract provided.


Fda Regulation Of 3d‐Printed Organs And Associated Ethical Challenges, Elizabeth Kelly Jan 2018

Fda Regulation Of 3d‐Printed Organs And Associated Ethical Challenges, Elizabeth Kelly

University of Pennsylvania Law Review

No abstract provided.


Our Regionalism, Jessica Bulman-Pozen Jan 2018

Our Regionalism, Jessica Bulman-Pozen

University of Pennsylvania Law Review

No abstract provided.


Copyright As Market Prospect, Shyamkrishna Balganesh Jan 2018

Copyright As Market Prospect, Shyamkrishna Balganesh

University of Pennsylvania Law Review

No abstract provided.


On The Disparate Treatment Of Business And Personal Salt Payments, Michael S. Knoll Jan 2018

On The Disparate Treatment Of Business And Personal Salt Payments, Michael S. Knoll

Faculty Scholarship

The Tax Cuts and Jobs Act, H.R. 1, would eliminate the federal income tax deduction for nonbusiness state and local taxes while maintaining the deduction for business state and local taxes. That disparate treatment has generated a storm of negative commentary. In this short essay, I consider whether the federal tax law should allow a deduction for business state and local taxes assuming that there is no deduction for nonbusiness state and local taxes. I argue that investors and businesses, including pass-through businesses, should be allowed to deduct state and local property and sales taxes, but not general income ...


Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert Jan 2018

Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert

Faculty Scholarship

Automated financial product advisors – “robo advisors” – are emerging across the financial services industry, helping consumers choose investments, banking products, and insurance policies. Robo advisors have the potential to lower the cost and increase the quality and transparency of financial advice for consumers. But they also pose significant new challenges for regulators who are accustomed to assessing human intermediaries. A well-designed robo advisor will be honest and competent, and it will recommend only suitable products. Because humans design and implement robo advisors, however, honesty, competence, and suitability cannot simply be assumed. Moreover, robo advisors pose new scale risks that are different ...


The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr. Jan 2018

The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr.

Faculty Scholarship

For two hundred years, the equality of creditors norm—the idea that similarly situated creditors should be treated similarly—has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose.

Part I of this Article traces the historical emergence and evolution of the equality ...


Masthead Jan 2018

Masthead

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Not Your Mouthpiece: Abortion, Ideology, And Compelled Speech In Physician-Patient Relationships, Sarah Kramer Jan 2018

Not Your Mouthpiece: Abortion, Ideology, And Compelled Speech In Physician-Patient Relationships, Sarah Kramer

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Why International Law Should Matter To Black Lives Matter: A Draft Petition To The Inter-American Commission On Human Rights On Behalf Of The Family Of Eric Garner, Laura Goolsby Jan 2018

Why International Law Should Matter To Black Lives Matter: A Draft Petition To The Inter-American Commission On Human Rights On Behalf Of The Family Of Eric Garner, Laura Goolsby

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Deconstructing Re-Entry: Idenitfying Issues, Best Practices, And Solutions, Jamil A. Favors Jan 2018

Deconstructing Re-Entry: Idenitfying Issues, Best Practices, And Solutions, Jamil A. Favors

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Mental Disorder And Criminal Justice, Stephen J. Morse Jan 2018

Mental Disorder And Criminal Justice, Stephen J. Morse

Faculty Scholarship

This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements ...


Contested Visions: The Value Of Systems Theory For Corporate Law, Tamara Belinfanti, Lynn Stout Jan 2018

Contested Visions: The Value Of Systems Theory For Corporate Law, Tamara Belinfanti, Lynn Stout

University of Pennsylvania Law Review

No abstract provided.