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Full-Text Articles in Law

Whither The Regulatory “War On Coal”? Scapegoats, Saviors, And Stock Market Reactions, Cary Coglianese, Daniel E. Walters Oct 2019

Whither The Regulatory “War On Coal”? Scapegoats, Saviors, And Stock Market Reactions, Cary Coglianese, Daniel E. Walters

Faculty Scholarship at Penn Law

Complaints about excessive economic burdens associated with regulation abound in contemporary political and legal rhetoric. In recent years, perhaps nowhere have these complaints been heard as loudly as in the context of U.S. regulations targeting the use of coal to supply power to the nation’s electricity system, as production levels in the coal industry dropped nearly by half between 2008 and 2016. The coal industry and its political supporters, including the President of the United States, have argued that a suite of air pollution regulations imposed by the U.S. Environmental Protection Agency (EPA) during the Obama Administration ...


Toward Fair And Sustainable Capitalism: A Comprehensive Proposal To Help American Workers, Restore Fair Gainsharing Between Employees And Shareholders, And Increase American Competitiveness By Reorienting Our Corporate Governance System Toward Sustainable Long-Term Growth And Encouraging Investments In America’S Future, Leo E. Strine Sep 2019

Toward Fair And Sustainable Capitalism: A Comprehensive Proposal To Help American Workers, Restore Fair Gainsharing Between Employees And Shareholders, And Increase American Competitiveness By Reorienting Our Corporate Governance System Toward Sustainable Long-Term Growth And Encouraging Investments In America’S Future, Leo E. Strine

Faculty Scholarship at Penn Law

To promote fair and sustainable capitalism and help business and labor work together to build an American economy that works for all, this paper presents a comprehensive proposal to reform the American corporate governance system by aligning the incentives of those who control large U.S. corporations with the interests of working Americans who must put their hard-earned savings in mutual funds in their 401(k) and 529 plans. The proposal would achieve this through a series of measured, coherent changes to current laws and regulations, including: requiring not just operating companies, but institutional investors, to give appropriate consideration to ...


The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky Sep 2019

The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky

Faculty Scholarship at Penn Law

The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had long-lasting impact on corporate law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem that is the mirror image of the agency problem has surfaced—the reverse agency problem. The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms including Pretrial Diversion Agreements (PDAs), and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach ...


On Environmental, Climate Change & National Security Law, Mark P. Nevitt Sep 2019

On Environmental, Climate Change & National Security Law, Mark P. Nevitt

Faculty Scholarship at Penn Law

This Article offers a new way to think about climate change. Two new climate change assessments — the 2018 Fourth National Climate Assessment (NCA) and the United Nations Intergovernmental Panel’s Special Report on Climate Change — prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change a “super wicked” environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement ...


Criminal Arrests In Clark County, Nevada, By Jurisdiction 2006-2016, Elia Del Carmen Solano-Patricio, Caitlin Saladino, William E. Brown Aug 2019

Criminal Arrests In Clark County, Nevada, By Jurisdiction 2006-2016, Elia Del Carmen Solano-Patricio, Caitlin Saladino, William E. Brown

Criminal Justice

Criminal arrests in Southern Nevada are on a downward trend. Despite a record-setting influx in population across the Las Vegas Valley and the surrounding metro area, officers in each of Clark County’s police jurisdictions arrest fewer people every year. The present study utilizes the Arrest Trends Tool created by the Vera Institute of Justice and the FBI’s Uniform Crime Reporting (UCR) Program to measure the number of arrests made over ten years for a variety of illegal activities, including drug abuse, violence and murder, property crimes, sex crimes, alcohol-related crimes, theft, white collar crimes, and other offenses. This ...


A Tale Of Two Markets: Regulation And Innovation In Post-Crisis Mortgage And Structured Finance Markets, William W. Bratton, Adam J. Levitin Aug 2019

A Tale Of Two Markets: Regulation And Innovation In Post-Crisis Mortgage And Structured Finance Markets, William W. Bratton, Adam J. Levitin

Faculty Scholarship at Penn Law

This Article takes the occasion of the tenth anniversary of the financial crisis to review recent developments in the structured products market, connecting the emergent pattern to post-crisis regulation.

The Article tells a tale of two markets. The financial crisis stemmed from excessive risk-taking and shabby practice in the subprime home mortgage market, a market that owed its existence to the private-label, originate to securitize model. But the pre-crisis boom in private label subprime mortgage-backed securities could never have happened absent back up financing from an array of structured products and vehicles created in the capital markets—the CDOs that ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Aug 2019

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with ...


Frand And Antitrust, Herbert J. Hovenkamp Aug 2019

Frand And Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This paper considers when a patentee’s violation of a FRAND commitment also violates the antitrust laws. It warns against two extremes. First, is thinking that any violation of a FRAND obligation is an antitrust violation as well. FRAND obligations are contractual, and most breaches of contract do not violate antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation.

Every antitrust case must consider the market environment in which conduct is to be evaluated. SSOs operated by multiple firms are joint ventures. Antitrust’s role ...


After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne Aug 2019

After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne

Faculty Scholarship at Penn Law

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of ...


Best Practices For Member Outreach And Engagement: How Effective Acos Build Understanding And Respect, Jessica Carpenter, Jocelyn Gordon Jun 2019

Best Practices For Member Outreach And Engagement: How Effective Acos Build Understanding And Respect, Jessica Carpenter, Jocelyn Gordon

Commonwealth Medicine Publications

Targeted strategies and sustained efforts at member outreach and engagement are helping Accountable Care Organizations (ACOs) and their Community Partners (CPs) achieve their shared goals for delivering patient-centered care. The most successful organizations focus on activities designed to create a stronger connection with their members, building trust and a better understanding of individuals’ characteristics and care needs. Positive results of these efforts include successful person-centered care planning, improved compliance with care plans and prescriptions, and implementation of recommended lifestyle changes — changes that help support independent living, reduce medical costs and complications, and drive improvements in member satisfaction.


University Of Massachusetts Medical School Report To Minnesota Department Of Human Services Health And Incarceration Project, Katharine London, Jeremy Tourish Jun 2019

University Of Massachusetts Medical School Report To Minnesota Department Of Human Services Health And Incarceration Project, Katharine London, Jeremy Tourish

Commonwealth Medicine Publications

On behalf of the Minnesota Department of Health Services, Health Law & Policy experts from our Public and Private Health Solutions group completed a literature review of successful efforts to improve the health of previously incarcerated individuals. In addition, our experts conducted five focus groups to obtain recommendations from experienced professionals who work directly with previously incarcerated individuals regarding interventions likely to improve the health of this unique population.

This study came about at the direction of Minnesota Legislature. They were interested in developing a methodology for paying higher rates to health care providers who provide services to high cost and ...


Health Care's Market Bureaucracy, Allison K. Hoffman May 2019

Health Care's Market Bureaucracy, Allison K. Hoffman

Faculty Scholarship at Penn Law

The last several decades of health law and policy have been built on a foundation of economic theory. This theory supported the proliferation of market-based policies that promised maximum efficiency and minimal bureaucracy. Neither of these promises has been realized. A mounting body of empirical research discussed in this Article makes clear that leading market-based policies are not efficient — they fail to capture what people want. Even more, this Article describes how the struggle to bolster these policies — through constant regulatory, technocratic tinkering that aims to improve the market and the decision-making of consumers in it — has produced a massive ...


Centros, California’S “Women On Boards” Statute And The Scope Of Regulatory Competition, Jill E. Fisch, Steven Davidoff Solomon May 2019

Centros, California’S “Women On Boards” Statute And The Scope Of Regulatory Competition, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

We examine the Centros decision through the lens of SB 826 – the California statute mandating a minimum number of women on boards. SB 826, like the Centros decision, raises questions about the scope of the internal affairs doctrine and its role in encouraging regulatory competition. Despite the claim that US corporate law is characterized by regulatory competition, in the US, the internal affairs doctrine has led to less variation in corporate law than in Europe. We theorize that this is due to the shareholder primacy norm in US corporate law which results in the internal affairs doctrine focusing on matters ...


What’S In Your Wallet (And What Should The Law Do About It?), Natasha Sarin May 2019

What’S In Your Wallet (And What Should The Law Do About It?), Natasha Sarin

Faculty Scholarship at Penn Law

In traditional markets, firms can charge prices that are significantly elevated relative to their costs only if there is a market failure. However, this is not true in a two-sided market (like Amazon, Uber, and Mastercard), where firms often subsidize one side of the market and generate revenue from the other. This means consideration of one side of the market in isolation is problematic. The Court embraced this view in Ohio v. American Express, requiring that anticompetitive harm on one side of a two-sided market be weighed against benefits on the other side.

Legal scholars denounce this decision, which, practically ...


The Rhode Island Earned Income Tax Credit: History And Analysis, Andrew Boardman May 2019

The Rhode Island Earned Income Tax Credit: History And Analysis, Andrew Boardman

Senior Honors Projects

This paper offers a comprehensive political history of the Rhode Island Earned Income Tax Credit (EITC) and an analysis of Rhode Island EITC recipients. It explores the history of the Rhode Island EITC, an income subsidy available to low-income workers, from its introduction in 1975 through 2018. It details the forces behind expansions and reforms and the effects of those changes. It also analyzes microdata to construct a profile of current EITC recipients. This paper concludes that the Rhode Island EITC has historically been viewed as both a poverty alleviation program and an incentive for labor market work. The Rhode ...


Infants Exposed To Homelessness: Health, Health Care Use, And Health Spending From Birth To Age Six, Robin E. Clark, Linda Weinreb, Julie M. Flahive, Robert W. Seifert May 2019

Infants Exposed To Homelessness: Health, Health Care Use, And Health Spending From Birth To Age Six, Robin E. Clark, Linda Weinreb, Julie M. Flahive, Robert W. Seifert

Commonwealth Medicine Publications

Homeless infants are known to have poor birth outcomes, but the longitudinal impact of homelessness on health, health care use, and health spending during the early years of life has received little attention. Linking Massachusetts emergency shelter enrollment records for the period 2008-15 with Medicaid claims, we compared 5,762 infants who experienced a homeless episode with a group of 5,553 infants matched on sex, race/ethnicity, location, and birth month. Infants born during a period of unstable housing resulting in homelessness had higher rates of low birthweight, respiratory problems, fever, and other common conditions; longer neonatal intensive care ...


Safety & Risk Management News, Otterbein University May 2019

Safety & Risk Management News, Otterbein University

Otterbein Police Department

No abstract provided.


The Health Care Costs Of Financial Exploitation In Maine, Kimberly I. Snow Mhsa, Ba, Yvonne Jonk Phd, Deborah Thayer Mba, Catherine Mcguire Bs, Stewart Bratesman Mpp, Charles A. Smith Phd, Erika C. Ziller Phd May 2019

The Health Care Costs Of Financial Exploitation In Maine, Kimberly I. Snow Mhsa, Ba, Yvonne Jonk Phd, Deborah Thayer Mba, Catherine Mcguire Bs, Stewart Bratesman Mpp, Charles A. Smith Phd, Erika C. Ziller Phd

Disability & Aging

This study sought to determine the Medicare and Medicaid costs experienced by dual eligible older adults in Maine for whom Maine Adult Protective Services (APS) substantiated allegations of elder financial exploitation and to compare them to those of Maine’s general older population. The analysis is an important step forward in estimating the medical costs associated with elder abuse.

Elder financial exploitation may result in significant public burden on Medicare and Medicaid, shouldered by taxpayers. Efforts to detect, investigate, prosecute, and mitigate this abuse will benefit not only the victims, but also the financial stewardship of these public programs.


The Niobrara National Scenic River: Exploring Co-Management Through A Case Study Of The Niobrara Council, Melissa M. Mosier May 2019

The Niobrara National Scenic River: Exploring Co-Management Through A Case Study Of The Niobrara Council, Melissa M. Mosier

Dissertations & Theses in Natural Resources

In recent decades, government staff and local citizens have increasingly employed cooperative schemes of natural resource management, in lieu of more conventional, top-down approaches of addressing user conflicts as they relate to water resources. The focus of this project was on the Niobrara Council, a partnership of local, state, and federal representatives charged with cooperatively managing the reach of the Niobrara River that was federally designated under the Wild and Scenic Rivers Act in 1991. The project's purpose was to explore the cooperative framework of the Council, using the methodology outlined by Carlsson and Berkes (2005). This methodology involved ...


British Government Information Resources, Bert Chapman Apr 2019

British Government Information Resources, Bert Chapman

Libraries Faculty and Staff Creative Materials

Provides an overview of British Government information resources. Contents include basic British economic and political background and information from British Government websites including the Department of Environment, Food, and Rural Affairs (DEFRA), Brexit related material produced by British government agencies such as the Department for Exiting the European Union,, the Ministry of Defence, the National Museum of the Royal Navy, the Home Office Visas and Immigration Section, the Office of National Statistics, Her Majesty's Treasury, the British Parliament including parliamentary committees and research agencies, the website of Member of Parliament (MP) Jacob Rees-Mogg (Conservative-North East Somerset), a webcast of ...


Marxist Implementation Of Climate Change As A Geopolitical Fear Tactic, Katelyn Larossa Apr 2019

Marxist Implementation Of Climate Change As A Geopolitical Fear Tactic, Katelyn Larossa

Senior Honors Theses

In recent years the climate change debate has shifted from the peripheries of international political discussions to center stage, manifesting in the Paris Agreement in November of 2016 under the United Nations Framework Convention on Climate Change. However, the science behind the climate change debate is disputed and does not support the claims made by global leaders who continue to push for increasing environmental regulations and financial aid to those most adversely affected by the supposed climate change (underdeveloped and developing nations). Examining the geopolitical and economic implications of climate change actions reveals the underlying political philosophies guiding global leaders ...


Will Ending Certain Drug Rebates Lower List Prices And Patient Out-Of-Pocket Costs?, Mckenzie Taylor, Stephanie Tran Apr 2019

Will Ending Certain Drug Rebates Lower List Prices And Patient Out-Of-Pocket Costs?, Mckenzie Taylor, Stephanie Tran

Commonwealth Medicine Publications

Earlier this year, the Department of Health and Human Services (HHS) proposed changes to the current pricing and contracting system for federal health care programs, Medicare Part D and Medicaid.This proposal aligns with the Trump Administration’s blueprint for lowering drug prices which we have written about previously.


The Expanding Role Of Pharmacists: A Positive Shift For Health Care, Ashley Chiara Mar 2019

The Expanding Role Of Pharmacists: A Positive Shift For Health Care, Ashley Chiara

Commonwealth Medicine Publications

When reflecting upon the impactful members of a patient’s healthcare team, much consideration is given to the patient’s nurses, primary care physician and specialists. However, with nearly nine in 10 Americans living within five miles of a community pharmacy, and four in five receiving prescription benefits through a pharmacy benefit manager (PBM), the role of the pharmacist in orchestrating a patient’s care on the front lines is often overlooked.


The Tcja And The Questionable Incentive To Incorporate, Part 2, Michael S. Knoll Mar 2019

The Tcja And The Questionable Incentive To Incorporate, Part 2, Michael S. Knoll

Faculty Scholarship at Penn Law

The Tax Cuts and Jobs Act (TCJA) has put the question should a business be organized as a passthrough entity or as a corporation at center stage. The TCJA eliminated much of the tax disadvantage from using the corporate form, but did Congress go so far that it advantaged corporations relative to pass-through entities? Some prominent commentators say yes. They argue that the federal income tax now encourages individual owners of pass-through businesses to restructure their business as subchapter C corporations, and they predict that the TCJA will lead to a cascade of incorporations. The principal driver of the shift ...


Platforms And The Rule Of Reason: The American Express Case, Herbert J. Hovenkamp Mar 2019

Platforms And The Rule Of Reason: The American Express Case, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In Ohio v. American Express Co., the Supreme Court applied antitrust’s rule of reason to a two-sided platform. The challenge was to an “anti-steering” rule, a vertical restraint preventing merchants from shifting customers who offered an AmEx card from to a less costly alternative such as Visa or Mastercard.

A two-sided platform is a business that depends on relationships between two different, noncompeting groups of transaction partners. For example, a printed periodical such as a newspaper earns revenue by selling both advertising and subscriptions to the paper itself. Success depends on a platform’s ability to maintain the appropriate ...


The Tcja And The Questionable Incentive To Incorporate, Michael S. Knoll Mar 2019

The Tcja And The Questionable Incentive To Incorporate, Michael S. Knoll

Faculty Scholarship at Penn Law

The Tax Cuts and Jobs Act (TCJA) has put the question should a business be organized as a passthrough entity or as a corporation at center stage. The TCJA eliminated much of the tax disadvantage from using the corporate form, but did Congress go so far that it advantaged corporations relative to pass-through entities? Some prominent commentators say yes. They argue that the federal income tax now encourages individual owners of pass-through businesses to restructure their business as subchapter C corporations, and they predict that the TCJA will lead to a cascade of incorporations. The principal driver of the shift ...


Mandatory Minimum Penalties: An Analysis Of Four State’S Penal Codes And Federal Court Policies, Cassie Geiken Mar 2019

Mandatory Minimum Penalties: An Analysis Of Four State’S Penal Codes And Federal Court Policies, Cassie Geiken

Honors Theses, University of Nebraska-Lincoln

In Nebraska, variations of bills attempting to amend mandatory minimum laws in the state have been introduced. The harshness of the mandatory sentences, as well as the looming state of emergency caused by prison overcrowding, have sustained the debate over sentencing laws. This essay identifies the core issues of mandatory minimum sentencing laws and analyzes the states of Nebraska, Texas, Alabama, California, and the federal system’s use of mandatory minimums for felony charges to identify potential solutions. Statute review found that Nebraska’s current sentencing codes are misaligned with the rest of the nation; not even Alabama with one ...


Defined Contribution Plans And The Challenge Of Financial Illiteracy, Jill E. Fisch, Annamaria Lusardi, Andrea Hasler Feb 2019

Defined Contribution Plans And The Challenge Of Financial Illiteracy, Jill E. Fisch, Annamaria Lusardi, Andrea Hasler

Faculty Scholarship at Penn Law

Retirement investing in the United States has changed dramatically. The classic defined-benefit (DB) plan has largely been replaced by the defined contribution (DC) plan. With the latter, individual employees’ decisions about how much to save for retirement and how to invest those savings determine the benefits available upon retirement.

We analyze data from the 2015 National Financial Capability Study to show that people whose only exposure to investment decisions is by virtue of their participation in an employer-sponsored 401(k) plan are poorly equipped to make sound investment decisions. Specifically, they suffer from higher levels of financial illiteracy than other ...


Payment Reform For Kids, Robert W. Seifert Feb 2019

Payment Reform For Kids, Robert W. Seifert

Commonwealth Medicine Publications

Comprehensive care for children – including greater attention to behavioral health, socio-emotional development, and strong family relationships – may hold the key to lifelong health and well-being. With this premise, a group in Connecticut has just published recommendations for improving pediatric primary care through payment reform.


Hushing Contracts, David A. Hoffman, Eric Lampmann Feb 2019

Hushing Contracts, David A. Hoffman, Eric Lampmann

Faculty Scholarship at Penn Law

The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, has attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy ...