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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 ...


The Disutility Of Injustice, Paul H. Robinson, Geoffrey P. Goodwin, Michael Reisig Dec 2010

The Disutility Of Injustice, Paul H. Robinson, Geoffrey P. Goodwin, Michael Reisig

Faculty Scholarship at Penn Law

For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment. That shift to desert has prompted concerns by two ...


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 ...


Realism, Punishment & Reform [A Reply To Braman, Kahan, And Hoffman, "Some Realism About Punishment Naturalism”], Paul H. Robinson, Owen D. Jones, Robert O. Kurzban Oct 2010

Realism, Punishment & Reform [A Reply To Braman, Kahan, And Hoffman, "Some Realism About Punishment Naturalism”], Paul H. Robinson, Owen D. Jones, Robert O. Kurzban

Faculty Scholarship at Penn Law

Professors Donald Braman, Dan Kahan, and David Hoffman, in their article "Some Realism About Punishment Naturalism," to be published in an upcoming issue of the University of Chicago Law Review, critique a series of our articles: Concordance and Conflict in Intuitions of Justice (http://ssrn.com/abstract=932067), The Origins of Shared Intuitions of Justice (http://.ssrn.com/abstract=952726), and Intuitions of Justice: Implications for Criminal Law and Justice Policy (http://.ssrn.com/abstract=976026). Our reply, here, follows their article in that coming issue. As we demonstrate, they have misunderstood our views on, and thus the implications of ...


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 ...


Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan Sep 2010

Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan

Faculty Scholarship at Penn Law

Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set ...


Veiled Women In The American Courtroom: Is The Niqab A Barrier To Justice?, Anita L. Allen Sep 2010

Veiled Women In The American Courtroom: Is The Niqab A Barrier To Justice?, Anita L. Allen

Faculty Scholarship at Penn Law

U.S. courts and policy-makers have recently authorized laws and practices that interfere with the wearing of religious modesty attire that conceals the hair or face in contexts such as courtroom testimony or driver’s license issuance. For example, in response to a court’s dismissal of the case of a woman who refused to remove her niqab in the courtroom, the Michigan Supreme Court decided that judges can exercise “reasonable control” over the appearance of courtroom parties. But what degree of control over religious attire is reasonable? The Constitution will not allow a blanket niqab removal policy based on ...


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 ...


The Effect Of Allowing Pollution Offsets With Imperfect Enforcement, Hilary A. Sigman, Howard F. Chang Sep 2010

The Effect Of Allowing Pollution Offsets With Imperfect Enforcement, Hilary A. Sigman, Howard F. Chang

Faculty Scholarship at Penn Law

Several pollution control regimes, including climate change policies, allow polluters in one sector subject to an emissions cap to offset excessive emissions in that sector with pollution abatement in another sector. The government may often find it more costly to verify offset claims than to verify compliance with emissions caps, and concerns about difficulties in enforcement may lead regulators to restrict the use of offsets. In this paper, we demonstrate that allowing offsets may increase pollution abatement and reduce illegal pollution, even if the government has a fixed enforcement budget. We explore the circumstances that may make it preferable to ...


Coasean Markets, Herbert J. Hovenkamp Aug 2010

Coasean Markets, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Coase’s work emphasized the economic importance of very small markets and made a new, more marginalist form of economic “institutionalism” acceptable within mainstream economics. A Coasean market is an association of persons with competing claims on a legal entitlement that can be traded. The boundaries of both Coasean markets and Coasean firms are determined by measuring not only the costs of bargaining but also the absolute costs of moving resources from one place to another. The boundaries of a Coasean market, just as those of the Coasean business firm, are defined by the line where the marginal cost of ...


American Needle And The Boundaries Of The Firm In Antitrust Law, Herbert J. Hovenkamp Aug 2010

American Needle And The Boundaries Of The Firm In Antitrust Law, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In American Needle the Supreme Court unanimously held that for the practice at issue the NFL should be treated as a “combination” of its teams rather than a single entity. However, the arrangement must be assessed under the rule of reason. The opinion, written by Justice Stevens, was almost certainly his last opinion for the Court in an antitrust case; Justice Stevens had been a dissenter in the Supreme Court’s Copperweld decision 25 years earlier, which held that a parent corporation and its wholly owned subsidiary constituted a single “firm” for antitrust purposes. The Sherman Act speaks to this ...


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 ...


The Modern Irrationalities Of American Criminal Codes: An Empirical Study Of Offense Grading, Paul H. Robinson, Thomas Gaeta, Matthew Majarian, Megan Schultz, Douglas M. Weck Jul 2010

The Modern Irrationalities Of American Criminal Codes: An Empirical Study Of Offense Grading, Paul H. Robinson, Thomas Gaeta, Matthew Majarian, Megan Schultz, Douglas M. Weck

Faculty Scholarship at Penn Law

The Model Penal Code made great advances in clarity and legality, moving most of the states from a mix of common law and ad hoc statutes to the modern American form of a comprehensive, succinct code that has served as a model around the world. Yet the decades since the wave of Model Code-based codifications have seen a steady degradation of American codes brought on by a relentless and accelerating rate of criminal law amendments that ignore the style, format, and content of the existing codes. The most damaging aspect of this trend is the exponentially increasing number of offense ...


American Needle: The Sherman Act, Conspiracy, And Exclusion, Herbert J. Hovenkamp Jun 2010

American Needle: The Sherman Act, Conspiracy, And Exclusion, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This essay, part of a colloquium in the CPI Antitrust Journal, explores the meaning and significance of the Supreme Court’s decision in American Needle v. NFL. The Supreme Court held that for purposes of the dispute at hand the NFL should be treated as a collaboration of its member teams rather than a single entity. The factors that the Supreme Court considered most important were, first, that the NFL’s member teams are individually owned profit making entities who compete with each other in at least some economic markets, such as that for the sale of apparel bearing NFL ...


Diverging Family Structure And “Rational” Behavior: The Decline In Marriage As A Disorder Of Choice, Amy L. Wax May 2010

Diverging Family Structure And “Rational” Behavior: The Decline In Marriage As A Disorder Of Choice, Amy L. Wax

Faculty Scholarship at Penn Law

The past fifty years have witnessed a growing divergence in family structure by social class, income, education, and race. The goal is to explain why significant segments of the population are moving away from the traditional patterns of family and reproduction. Most demographers acknowledge that external and material constraints fail to account for most of the present dispersion by class and race in marriage, divorce, and patterns of childbearing. Nor do these factors explain the widening of disparities over time. In attempting to improve on prior theories, this paper proposes a different explanation for these developments. It argues that demographic ...


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.


Remembering Ed Baker, Seth F. Kreimer Feb 2010

Remembering Ed Baker, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Intra-Enterprise Activity, Joint Ventures And Sports Leagues: Identifying Unilateral Conduct Under The Antitrust Laws, Herbert J. Hovenkamp Jan 2010

Intra-Enterprise Activity, Joint Ventures And Sports Leagues: Identifying Unilateral Conduct Under The Antitrust Laws, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In the American Needle case the Supreme Court will consider whether the NFL’s decision to give an exclusive trademark license to one firm should be counted as “unilateral” on the NFL’s part, or rather as the concerted joint venture activity of the NFL’s individual member teams. The intellectual property in question is not trademarks in the NFL itself, but rather the trademarks and other intellectual property developed separately by each individual team, and which the teams in turn have licensed exclusively to the NFL.

In general, when a joint venture is engaged in its own business the ...


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 ...


Constitutional Constructions And Constitutional Decision Rules: Thoughts On The Carving Of Implementation Space, Mitchell N. Berman Jan 2010

Constitutional Constructions And Constitutional Decision Rules: Thoughts On The Carving Of Implementation Space, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


The Non-Management Side Of Academic Administration, Michael A. Fitts Jan 2010

The Non-Management Side Of Academic Administration, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


A Dean's Perspective On Ed Baker, Michael A. Fitts Jan 2010

A Dean's Perspective On Ed Baker, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr. Jan 2010

Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.