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Full-Text Articles in Law

Does It Hurt A State To Introduce An Income Tax?, David J. Shakow Dec 2010

Does It Hurt A State To Introduce An Income Tax?, David J. Shakow

Faculty Scholarship at Penn Law

In an article in the Wall Street Journal, Arthur Laffer argued that, since 1960, the introduction of state income taxes reduced the relative size of a state’s gross state product and its relative per capita personal income. This paper criticizes Laffer’s conclusions on a number of grounds. 1. He uses incorrect figures for per capita income. In fact, relative per capita income rose in a majority of states that introduced an income tax since 1960. 2. The results are not clear when a state’s data is compared to other states in its region, rather than to the ...


Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp Dec 2010

Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court’s Leegin decision has now brought the rule of reason to all purely vertical intrabrand distribution restraints. But the rule of reason does not mean per se legality and occasions for anticompetitive vertically imposed restraints may still arise. Of all those that have been suggested the most plausible are vertical restraints imposed at the behest of a powerful dealer or group (cartel) of dealers.

Although a vertical distribution restraint resembles a dealer cartel in that both limit intraband competition, a manufacturer restraining the distribution of its product shuns the excess dealer profits a dealer cartel would seek ...


Recessions And The Social Safety Net: The Alternative Minimum Tax As A Counter-Cyclical Fiscal Stabilizer, Brian Galle, Jonathan Klick Dec 2010

Recessions And The Social Safety Net: The Alternative Minimum Tax As A Counter-Cyclical Fiscal Stabilizer, Brian Galle, Jonathan Klick

Faculty Scholarship at Penn Law

As recent events illustrate, state finances are procyclical: during recessions, state revenues crash, worsening the effects of economic downturns. This problem is well known, yet persistent. We argue here that, in light of predictable federalism and political economy dynamics, states will be unable to change this situation on their own. Additionally, we note that many possible federal remedies may result in worse problems, such as by creating moral hazard that would induce states to take on excessively risky policy, both fiscal and otherwise. Thus, we argue that policymakers should consider so-called “automatic” stabilizers, such as are found in the federal ...


Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen Oct 2010

Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen

Faculty Scholarship at Penn Law

In the United States, both constitutional law and tort law recognize the right to privacy, understood as legal entitlement to an intimate life of one’s own free from undue interference by others and the state. Lesbian, gay, bisexual, and transgender (“LGBT”) persons have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appealing to that right. In the constitutional arena, LGBT Americans have claimed the protection of state and federal privacy rights with a modicum of well-known success. Holding that homosexuals have the same right to sexual privacy as heterosexuals, Lawrence v. Texas symbolizes ...


The New Financial Deal: Understanding The Dodd-Frank Act And Its (Unintended) Consequences, David A. Skeel Jr. Oct 2010

The New Financial Deal: Understanding The Dodd-Frank Act And Its (Unintended) Consequences, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Contrary to rumors that the Dodd-Frank Act is an incoherent mess, its 2,319 pages have two very clear objectives: limiting the risk of the shadow banking system by more carefully regulating derivatives and large financial institutions; and limiting the damage caused by a financial institution’s failure. The new legislation also has a theme: government partnership with the largest Wall Street banks. The vision emerged almost by accident from the Bear Stearns and AIG bailouts of 2008 and the commandeering of the bankruptcy process to rescue Chrysler and GM in 2009. Its implications for derivatives regulation could prove beneficial ...


Abnormal Mental State Mitigations Of Murder – The U.S. Perspective, Paul H. Robinson Sep 2010

Abnormal Mental State Mitigations Of Murder – The U.S. Perspective, Paul H. Robinson

Faculty Scholarship at Penn Law

This paper examines the U.S. doctrines that allow an offender's abnormal mental state to reduce murder to manslaughter. First, the modern doctrine of "extreme emotional disturbance," as in Model Penal Code Section 210.3(1)(b), mitigates to manslaughter what otherwise would be murder when the killing "is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse." While most American jurisdictions are based upon the Mode Code, this is an area in which many states chose to retain their more narrow common law "provocation" mitigation. Second, the modern doctrine ...


Immigration, Association, And The Family, Matthew J. Lister Jul 2010

Immigration, Association, And The Family, Matthew J. Lister

Faculty Scholarship at Penn Law

In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why ...


Insurance In Sociolegal Research, Tom Baker May 2010

Insurance In Sociolegal Research, Tom Baker

Faculty Scholarship at Penn Law

Insurance has a long history in sociolegal research, most prominently as a window on accident compensation and related tort law in action. Recent work has extended that research, with the result that tort law in action may be the best mapped of any legal field outside criminal law. Sociological research has begun to explore insurance as a form of governance, with effects in many legal fields and across the economy. This essay reviews developments in both bodies of work. Part one examines the relationship between liability insurance and tort law in action using the metaphors of window and frame. Part ...


Book Review (Paul Frymer's Black And Blue: African Americans, The Labor Movement, And The Decline Of The Democratic Party)., Sophia Z. Lee May 2010

Book Review (Paul Frymer's Black And Blue: African Americans, The Labor Movement, And The Decline Of The Democratic Party)., Sophia Z. Lee

Faculty Scholarship at Penn Law

No abstract provided.


Network Neutrality Or Internet Innovation?, Christopher S. Yoo Apr 2010

Network Neutrality Or Internet Innovation?, Christopher S. Yoo

Faculty Scholarship at Penn Law

Over the past two decades, the Internet has undergone an extensive re-ordering of its topology that has resulted in increased variation in the price and quality of its services. Innovations such as private peering, multihoming, secondary peering, server farms, and content delivery networks have caused the Internet’s traditionally hierarchical architecture to be replaced by one that is more heterogeneous. Relatedly, network providers have begun to employ an increasingly varied array of business arrangements and pricing. This variation has been interpreted by some as network providers attempting to promote their self interest at the expense of the public. In fact ...


James Wilson And The Scottish Enlightenment, William Ewald Apr 2010

James Wilson And The Scottish Enlightenment, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.


The Ftc's Anticompetitive Pricing Case Against Intel, Herbert J. Hovenkamp Feb 2010

The Ftc's Anticompetitive Pricing Case Against Intel, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The FTC’s wide ranging complaint against Intel Corporation indicates that the FTC intends to rely on the “unfair methods of competition” language in §5 of the FTC Act to reach beyond the proscriptions on unilateral conduct contained in §2 of the Sherman Act. The Supreme Court has expressly authorized such expansion, and statutory text, legislative history and legal policy all support it. While §2 reaches only conduct that threatens to “monopolize” a market, the “unfair methods of competition” language can reach improper abuses of a dominant position that fall short of creating monopoly. Further, the FTC has expertise that ...


Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese Feb 2010

Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese

Faculty Scholarship at Penn Law

No abstract provided.


The Insurance Industry's Antitrust Immunity, Herbert J. Hovenkamp Jan 2010

The Insurance Industry's Antitrust Immunity, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The 1945 McCarran-Ferguson Act provides that federal legislation generally, including the antitrust laws, is “applicable to the business of insurance [only] to the extent that such business is not regulated by State law.” The statute was enacted after United States v. South Eastern Underwriters Assn. (1944), held that insurance transactions were “interstate commerce” and thus subject to the antitrust laws. That case had in turn undermined the traditional view expressed in Paul v. Virginia (1868), that insurance was not interstate commerce, but strictly local transactions. The South Eastern case followed in turn upon the Supreme Court's decision in Wickard ...


Oil And Water: Mixing Individual Mandates, Fragmented Markets, And Health Reform, Allison K. Hoffman Jan 2010

Oil And Water: Mixing Individual Mandates, Fragmented Markets, And Health Reform, Allison K. Hoffman

Faculty Scholarship at Penn Law

With momentum toward national health reform, there is wide support for legislation to include an individual mandate that would require all Americans to carry health insurance. Discussion of the individual mandate has relied largely on whether the mandate will generate universal coverage as a gauge for success. This article challenges the notion that an individual mandate is successful if it leads to universal coverage, revealing a critical problem the individual mandate will face even if all Americans were to have health insurance. To uncover this problem, this article sets out a novel framework that disentangles the three different policy objectives ...


Summary Judgment, Pleading, And The Future Of Transsubstantive Procedure, Stephen B. Burbank Jan 2010

Summary Judgment, Pleading, And The Future Of Transsubstantive Procedure, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


Ip And Antitrust: Reformation And Harm, Christina Bohannan, Herbert J. Hovenkamp Jan 2010

Ip And Antitrust: Reformation And Harm, Christina Bohannan, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust and intellectual property law both seek to improve economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust reform began in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition - furthering goals of antitrust policy. Today, patent law has begun its own reform journey, but it is in a much earlier ...


Presidential Power In Historical Perspective: Reflections' On Calabresi And Yoo's The Unitary Executive, Christopher S. Yoo Jan 2010

Presidential Power In Historical Perspective: Reflections' On Calabresi And Yoo's The Unitary Executive, Christopher S. Yoo

Faculty Scholarship at Penn Law

On February 6 and 7, 2009, more than three dozen of the nation’s most distinguished commentators on presidential power gathered in Philadelphia to explore themes raised by a book authored by Steven Calabresi and I co-authored reviewing the history of presidential practices with respect to the unitary executive. The conference honoring our book and the special journal issue bringing together the articles presented there provide a welcome opportunity both to look backwards on the history of our project and to look forwards at the questions yet to be answered.


Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee Jan 2010

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

No abstract provided.


Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton Jan 2010

Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton

Faculty Scholarship at Penn Law

This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law ...


Assuming The Risk: Tort Law, Policy, And Politics On The Slippery Slopes, Eric Feldman, Alison I. Stein Jan 2010

Assuming The Risk: Tort Law, Policy, And Politics On The Slippery Slopes, Eric Feldman, Alison I. Stein

Faculty Scholarship at Penn Law

Prominent jurists and legal scholars have long been critical of the doctrine of the assumption of risk, arguing that it is logically flawed and has sown confusion in the courts. This article takes a fresh look at the assumption of risk by focusing on legal conflicts over ski accidents in three ski-intensive states—Vermont, Colorado, and California. It argues that the tort doctrine of the assumption of risk remains vital, and highlights the way in which powerful political and economic actors with links to the ski industry have lobbied aggressively for state laws that codify the assumption of risk. The ...


The Overstated Promise Of Corporate Governance, Jill E. Fisch Jan 2010

The Overstated Promise Of Corporate Governance, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.


International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White Jan 2010

International Idealism Meets Domestic-Criminal-Procedure Realism, Stephanos Bibas, William W. Burke-White

Faculty Scholarship at Penn Law

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law’s main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of ...


The Case Against Shareholder Empowerment, William W. Bratton, Michael L. Wachter Jan 2010

The Case Against Shareholder Empowerment, William W. Bratton, Michael L. Wachter

Faculty Scholarship at Penn Law

No abstract provided.


Heedless Globalism: The Sec's Roadmap To Accounting Convergence, William W. Bratton Jan 2010

Heedless Globalism: The Sec's Roadmap To Accounting Convergence, William W. Bratton

Faculty Scholarship at Penn Law

The Securities Exchange Commission (SEC) has introduced a "Roadmap" that describes a process leading to mandatory use of International Financial Reporting Standards (IFRS) by domestic issuers by 2014. The SEC justifies this initiative on the grounds that global standardization yields cost savings and an ultimate gain in comparability, facilitating the search for global opportunities by u.s. investors and making u.s. capital markets more attractive to foreign issuers. This Article shows that the offered justification is inadequate. The SEC frames the matter as a choice between two institutional frameworks for standard setting, holding out high quality sets of standards ...


Should Bush Administration Lawyers Be Prosecuted For Authorizing Torture?, Claire Oakes Finkelstein, Michael Lewis Jan 2010

Should Bush Administration Lawyers Be Prosecuted For Authorizing Torture?, Claire Oakes Finkelstein, Michael Lewis

Faculty Scholarship at Penn Law

No abstract provided.


Opportunities And Challenges For Gender-Based Legal Reform In China, Rangita De Silva De Alwis Jan 2010

Opportunities And Challenges For Gender-Based Legal Reform In China, Rangita De Silva De Alwis

Faculty Scholarship at Penn Law

No abstract provided.


The Obama Administration And Section Two Of The Sherman Act, Herbert J. Hovenkamp Jan 2010

The Obama Administration And Section Two Of The Sherman Act, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

During the administration of President George W. Bush, the Antitrust Division was not enthusiastic about use of §2 of the Sherman Act to pursue anticompetitive single-firm conduct. Indeed, its most prominent contribution on the issue was the Antitrust Division’s §2 Report, which the Obama Antitrust Division withdrew only eight months after it was issued.This withdrawal was entirely in keeping with candidate Obama’s repeated promises to reinvigorate antitrust enforcement.

This essay analyzes the current state of antitrust and makes recommendations concerning structures and practices where increased §2 enforcement is warranted and those where it is not. Wise use ...


Contingent Valuation Studies And Health Policy, Matthew D. Adler Jan 2010

Contingent Valuation Studies And Health Policy, Matthew D. Adler

Faculty Scholarship at Penn Law

This short comment argues that both cost-benefit analysis (CBA) and cost-effectiveness analysis (CEA) should be seen as imperfect tools for evaluating health policy. This is true, not only for extra-welfarists, but even for welfarists, since both CBA and CEA can deviate from the use of social welfare functions (SWF). A simple model is provided to illustrate the divergence between CBA, CEA, and the SWF approach. With this insight in mind, the comment considers the appropriate role of contingent-valuation studies. For full text, please see: http://www.law.upenn.edu/cf/faculty/madler/workingpapers/578A59B6d01.pdf.


Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Paul H. Robinson, Michael T, Cahill, Daniel M. Bartels Jan 2010

Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Paul H. Robinson, Michael T, Cahill, Daniel M. Bartels

Faculty Scholarship at Penn Law

Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any ...