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Full-Text Articles in Law

Newsroom: Have We Outgrown Brown? 02-06-2018, Michael M. Bowden Feb 2018

Newsroom: Have We Outgrown Brown? 02-06-2018, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Re-Examining The Law And Economics Of The Business Judgment Rule: Notes For Its Implementation In Non-Us Jurisdictions, Aurelio Gurrea-Martinez Jan 2018

Re-Examining The Law And Economics Of The Business Judgment Rule: Notes For Its Implementation In Non-Us Jurisdictions, Aurelio Gurrea-Martinez

Research Collection School Of Law

The business judgment rule, as it has been traditionally understood, seems to be based on three underlying assumptions that make this rule economically desirable. First, directors are subject to a credible threat of being sued for a breach of the duty of care. Second, the primary role of the corporation is to maximise shareholder value. Third, shareholders want the directors to pursue those investment projects with the highest net present value regardless of their volatility. This article challenges these assumptions and argues that the business judgment rule might not be desirable in some jurisdictions outside the United States and even ...


Injustice Under Law: Perpetuating And Criminalizing Poverty Through The Courts, Judge Lisa Foster May 2017

Injustice Under Law: Perpetuating And Criminalizing Poverty Through The Courts, Judge Lisa Foster

Georgia State University Law Review

Money matters in the justice system. If you can afford to purchase your freedom pretrial, if you can afford to immediately pay fines and fees for minor traffic offenses and municipal code violations, if you can afford to hire an attorney, your experience of the justice system both procedurally and substantively will be qualitatively different than the experience of someone who is poor. More disturbingly, through a variety of policies and practices—some of them blatantly unconstitutional—our courts are perpetuating and criminalizing poverty. And when we talk about poverty in the United States, we are still talking about race ...


The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr. Jan 2017

The Bylaw Puzzle In Delaware Corporate Law, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In less than a decade, Delaware’s legislature has overruled its courts and reshaped Delaware corporate law on two different occasions, with proxy access bylaws in 2009 and with shareholder litigation bylaws in 2015. Having two dramatic interventions in quick succession would be puzzling under any circumstances. The interventions are doubly puzzling because with proxy access, Delaware’s legislature authorized the use of bylaws or charter provisions that Delaware’s courts had banned; while with shareholder litigation, it banned bylaws or charter provisions that the courts had authorized. This Article attempts to unravel the puzzle.

I start with corporate law ...


Friendly Precedent, Anthony Niblett, Albert H. Yoon Apr 2016

Friendly Precedent, Anthony Niblett, Albert H. Yoon

William & Mary Law Review

This Article explores which legal precedents judges choose to support their decisions.When describing the legal landscape in a written opinion, which precedent do judges gravitate toward? We examine the idea that judges are more likely to cite “friendly” precedent. A friendly precedent, here, is one that was delivered by Supreme Court Justices who have similar political preferences to the lower court judges delivering the opinion. In this Article, we test whether a federal Court of Appeals panel is more likely to engage with binding Supreme Court precedent when the political flavor of that precedent is aligned with the political ...


Enhancing Judicial Institutions: Enhancing Economic Development, Stephane Alia Haisley Jan 2016

Enhancing Judicial Institutions: Enhancing Economic Development, Stephane Alia Haisley

Duke Law Master of Judicial Studies Theses

Since the 1980s, scholars and development banks have recognized the link between judicial institutions and economic growth. This thesis proposes to explore the role of judicial institutions in the performance of economies and questions whether enhancing judicial institutions can result in enhancing economic development in developing countries. Since the 1990s development banks have explored the role of judicial institutions in the quest for economic development. Both the World Bank and the International Monetary Fund (IMF) have done this through the pursuit of judicial reform efforts in countries with ailing economies. The focus has been on improving the efficiency of the ...


Cash Is King: How Market-Based Strategies Have Corrupted Classrooms And Criminal Courts In Post-Katrina New Orleans, Olympia Duhart, Hugh Mundy Dec 2015

Cash Is King: How Market-Based Strategies Have Corrupted Classrooms And Criminal Courts In Post-Katrina New Orleans, Olympia Duhart, Hugh Mundy

Hugh Mundy

On many accounts, it is a tale of two cities. The headlines and marketing machines tout to the world that “The Big Easy is Back.” But beyond the celebrations and parades, the story for poor Katrina survivors is very different. While many residents and businesses are enjoying a resurgence a decade after Katrina stormed through, others in post-Katrina New Orleans have a different experience. More than ten years after Hurricane Katrina, the city still struggles with systemic failures. These problem areas include housing, health care, mental health treatment, employment, education, and the criminal justice system. All of these challenges are ...


Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach Sep 2015

Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach

Faculty Scholarship at Penn Law

I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.


An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez Jun 2015

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.


Talking Points, Alex Stein, Jef De Mot Dec 2014

Talking Points, Alex Stein, Jef De Mot

Alex Stein

Our civil liability system affords numerous defenses against every single violation of the law. Against every single claim raised by the plaintiff, the defendant can assert two or more defenses each of which gives him an opportunity to win the case. As a result, when a court erroneously strikes out a meritorious defense, it might still keep the defendant out of harm’s way by granting him another defense. Rightful plaintiffs, on the other hand, must convince the court to deny each and every defense asserted by the defendant. Any rate of adjudicative errors—random and completely unbiased—consequently increases ...


The New Doctrinalism: Implications For Evidence Theory, Alex Stein Dec 2014

The New Doctrinalism: Implications For Evidence Theory, Alex Stein

Alex Stein

This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case-specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties’ entitlement–accountability relationship. The cost-minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal-best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the ...


Halliburton, Basic And Fraud On The Market: The Need For A New Paradigm, Charles W. Murdock Sep 2014

Halliburton, Basic And Fraud On The Market: The Need For A New Paradigm, Charles W. Murdock

Charles W. Murdock

Summary: Halliburton, Basic and Fraud on the Market: The Need for a New Paradigm

If defrauded securities plaintiffs cannot bring a class-action lawsuit, there often will be no effective remedy since the amount at stake for individual plaintiffs is not sufficient to warrant the substantial costs of litigation. To surmount the problem of individualized reliance and establish commonality, federal courts for twenty-five years have been employing the Basic fraud-on-the-market theory which posits that, in an efficient market, investors rely on the integrity of the market price.

While class certification at one time was a matter of course, today it is ...


In Search Of Effective Ethics & Compliance Programs, Maurice E. Stucke Feb 2014

In Search Of Effective Ethics & Compliance Programs, Maurice E. Stucke

Maurice E Stucke

The U.S. Sentencing Commission’s Organizational Guidelines for over twenty years have offered firms a significant financial incentive to develop an ethical organizational culture. Nonetheless, corporate crime persists. Too many ethics programs remain ineffective. As this Article explores, the Guidelines' current approach is not working. The evidence, including sentencing data over the past twenty years, reveals that few firms have effective ethics and compliance programs. Nor is there much hope that the Guidelines' incentive will induce companies, after the economic crisis, to become more ethical. The problem is not attributable to three assumptions underlying the Guidelines. The empirical research ...


Trusting The Courts: Redressing The State Court Funding Crisis, Michael J. Graetz Jan 2014

Trusting The Courts: Redressing The State Court Funding Crisis, Michael J. Graetz

Faculty Scholarship

In recent years, state courts have suffered serious funding reductions that have threatened their ability to resolve criminal and civil cases in a timely fashion. Proposals for addressing this state court funding crisis have emphasized public education and the creation of coalitions to influence state legislatures. These strategies are unlikely to succeed, however, and new institutional arrangements are necessary. Dedicated state trust funds using specific state revenue sources to fund courts offer the most promise for adequate and stable state court funding.


Legal Reform: China's Law-Stability Paradox, Benjamin L. Liebman Jan 2014

Legal Reform: China's Law-Stability Paradox, Benjamin L. Liebman

Faculty Scholarship

In the 1980s and 1990s, China devoted extensive resources to constructing a legal system, in part in the belief that legal institutions would enhance both stability and regime legitimacy. Why, then, did China’s leadership retreat from using law when faced with perceived increases in protests, citizen complaints, and social discontent in the 2000s? This law-stability paradox suggests that party-state leaders do not trust legal institutions to play primary roles in addressing many of the most complex issues resulting from China’s rapid social transformation. This signifies a retreat not only from legal reform, but also from the rule-based model ...


Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim Oct 2013

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state ...


Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein Aug 2013

Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein

Alex Stein

No abstract provided.


Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs’ Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss Mar 2013

Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs’ Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss

Scott A Moss

For a major field, employment discrimination suffers surprisingly low-quality plaintiff’s lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for won/loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses. These findings are puzzling; in a major legal service ...


Costs Of Codification, Dru Stevenson Feb 2013

Costs Of Codification, Dru Stevenson

Dru Stevenson

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs for courts ...


Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill Jan 2013

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first ...


Shleifer's Failure, Jonathan Klick Jan 2013

Shleifer's Failure, Jonathan Klick

Faculty Scholarship at Penn Law

No abstract provided.


The Selection Of Thirteenth-Century Disputes For Litigation, Daniel M. Klerman Jul 2011

The Selection Of Thirteenth-Century Disputes For Litigation, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

Priest and Klein's seminal 1984 article argued that litigated cases differ systematically and predictably from settled cases. This article tests the Priest-Klein selection model using a data set of thirteenth-century English cases. These cases are especially informative because juries rendered verdicts even in settled cases, so one can directly compare verdicts in settled and litigated cases. The results are consistent with the predictions of the Priest-Klein article, as well as with the asymmetric-information selection models developed by Hylton and Shavell.


Lay Judgments Of Judicial Decision-Making, Dan Simon, Nicholas Scurich Jul 2011

Lay Judgments Of Judicial Decision-Making, Dan Simon, Nicholas Scurich

University of Southern California Legal Studies Working Paper Series

This exploratory study examined lay people's evaluations of judicial decision-making, specifically of the judicial decision-making process and the judiciary's legitimacy. Seven hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure. Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and the legitimacy of the decision-maker, regardless of their outcomes. The study yielded four findings. First, lay people’s judgments were highly contingent on the ...


Foreign Citizens In Transnational Class Actions, Jay Tidmarsh, Linda Sandstrom Simard Dec 2010

Foreign Citizens In Transnational Class Actions, Jay Tidmarsh, Linda Sandstrom Simard

Jay Tidmarsh

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries ...


Measuring The Efficiency Of Brazilian Courts From 2006 To 2008: What Do The Numbers Tell Us?, Luciana L. Yeung, Paulo F. Azevedo Dec 2008

Measuring The Efficiency Of Brazilian Courts From 2006 To 2008: What Do The Numbers Tell Us?, Luciana L. Yeung, Paulo F. Azevedo

Luciana L Yeung

This paper uses a linear optimization method called Data Envelopment Analysis (DEA) to measure the efficiency of Brazilian State Courts during the years of 2006 to 2008. Our results show that relative efficiency varies substantially across the states. There is a group of courts that consistently top performs in the sample. On the other hand, there is a group of consistent poor performers, as well a group of average performers. Yet, the biggest problem seems to be with a group of State Courts with very unstable results, which might indicate serious problems in data collection and/or measurement. DEA also ...


Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan Dec 2008

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials ...


Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow Dec 2007

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States ...


Fashioning Entitlements: A Comparative Law And Economic Analysis Of The Judicial Role In Environmental Centralization In The U.S. And Europe, Jason S. Johnston, Michael G. Faure Apr 2007

Fashioning Entitlements: A Comparative Law And Economic Analysis Of The Judicial Role In Environmental Centralization In The U.S. And Europe, Jason S. Johnston, Michael G. Faure

Faculty Scholarship at Penn Law

This paper identifies and evaluates, from an economic point of view, the role of the judiciary the steady shift of environmental regulatory authority to higher, more centralized levels of government in both the U.S. and Europe. We supply both a positive analysis of how the decisions made by judges have affected the incentives of both private and public actors to pollute the natural environment, and normative answers to the question of whether judges have acted so as to create incentives that move levels of pollution in an efficient direction, toward their optimal, cost-minimizing (or net-benefit-maximizing) levels. Highlights of the ...


Afterthoughts From A "Buzz Killer", Sarah Krakoff Jan 2007

Afterthoughts From A "Buzz Killer", Sarah Krakoff

Articles

No abstract provided.


The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick Jan 2007

The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick

Faculty Scholarship at Penn Law

Judges facing exogenous constraints on their pecuniary income have an incentive to reduce their workload to increase their private welfare. In the face of an increase in caseload, this incentive will induce judges to attempt to terminate some cases more rapidly. In class action cases, failing to grant an attorney fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Using two data sets of class action settlements, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case.