Social and Behavioral Sciences Commons^™

Gambling In Territorial Hawaii, Robert M. Jarvis

University of Pennsylvania Asian Law Review

This article collects and discusses gambling cases decided during Hawaii’s territorial period (1898–1959). Previous commentators have overlooked these decisions, even though they provide a rich source of information about life during this distinct period of Hawaii’s history.

Freedom Of Contract And M&A Termination Fees: Peculiar Case Of South Korea Vs. United States, Joseph Cho

University of Pennsylvania Asian Law Review

This manuscript offers a comprehensive survey of the liquidated damages regimes in the Republic of Korea and the United States, specifically within the framework of corporate mergers and acquisitions. In the Republic of Korea, liquidated damages play a crucial role in pre-estimating potential damages arising from contract breaches, offering numerous benefits such as reducing the creditor’s evidentiary burden and fostering contractual compliance. Notably, the Korean Civil Code provides checks against excessive predetermined damages. In contrast, the U.S. perspective is enriched by a series of case laws, emphasizing the compensatory intent of liquidated damages. A comparative analysis reveals intriguing intersections between …

Regulating The Unregulated: The Beginning Of The End Of A Laissez-Faire Era Of The Crypto "Wild West", Bo Hyun Kim

University of Pennsylvania Asian Law Review

The crypto market has been left largely unregulated on a global scale for over a decade. 1 Recently, multiple jurisdictions are aligning efforts to tame the increasingly volatile crypto “Wild West” as evidenced by the influx of forthcoming legislations, consultations between operators and regulators, and regulatory crackdowns. 2 A cross-comparative analysis of the regulatory framework in the United States, the European Union, and Korea indicates that the proposed scopes of legislations cover an expansive breadth of assets. However, there are further needs for supplementary regulations following the enactment of the newly proposed regulations to close certain critical gaps that remain …

An Absent "No" Is Not A "Yes": A Legal Analysis Of Consent In Japan's Amended Penal Code And International Rape Legislation Standards, Larissa Truchan

University of Pennsylvania Asian Law Review

On June 16, 2023, the Japanese government passed a law to partially amend the Penal Code that explicitly outlines eight scenarios prosecutable as the crime of rape that make “it difficult for the victim to form, express, or fulfill the intention not to consent.” This article will reveal that the June 2023 amendment does not criminalize all “non-consensual sexual intercourse,” as its text suggests, but is premised on defining coercive circumstances that may interfere with a victim’s presumed duty to demonstrate their “intention not to consent.” As a result, Japanese courts will continue to possess the subjective power to determine …

Vietnam's "Entire People Ownership" Of Land: Theory And Practice, Phan Trung Hien, Hugh D. Spitzer

University of Pennsylvania Asian Law Review

The Constitution of Vietnam declares that “[t]he Socialist Republic of Vietnam State is a socialist rule of law State of the People, by the People, and for the People.” It also states that land is “under ownership by the entire people represented and uniformly managed by the State.” This means the entire people of Vietnam are collective landowners and the Vietnam State is their “representative.” Given that, how might the public execute its real ownership—rather than treating “people’s ownership” as just a slogan? This article analyzes the gaps in theory and practice in Vietnam, a country with a robust market …

Deconstructing The Decolonizing Plot Of The Tydings-Mcduffie Act: A Review Of America's International Relations In Asia In The Early Twentieth Century, Alvin Hoi-Chun Hung

University of Pennsylvania Asian Law Review

The Tydings-McDuffie Act was enacted in 1934 to establish a designated path for the Philippines, then an American colony, to become independent after a ten-year transition period. This article looks into the macro-environment of the Asia-Pacific region in the 1930s regarding the impact of the Soviet Union, the Republic of China, the Shōwa empire of Japan, and its puppet state “Manchukuo” in China, embedded within the innumerable socio-political and economic conflicts between the U.S. and the Philippines. The Tydings-McDuffie Act is critically examined to assess its underlying decolonizing plot of the political and economic relationship between the U.S. and the …

Prevention Of Judicial Corruption In Bangladesh: Cutting The Gordian Knot By Ensuring Accountability, S M Solaiman

University of Pennsylvania Asian Law Review

Judicial corruption has eaten away at good governance in Bangladesh for decades, hindering its ambition to attain the United Nations Sustainable Development Goals (“SDGs”) and taking advantage of the absence of any effective accountability mechanism. The magnitude of corruption is so intense that the successive Chief Justices, Attorneys-General, local, and international anti-corruption organizations, and even the Supreme Court of Bangladesh (“SCB”) itself in a judgment have forthrightly admitted the prevalence of judicial corruption. The malpractice does profoundly undermine the rule of law and infringe on the people’s right to fair trial. Corruption is on the rise in the country as …

Intellectual Property Legislation Holism In China, Taorui Guan

University of Pennsylvania Asian Law Review

No abstract provided.

The Slogans And Goals Of Antitrust Law, Herbert J. Hovenkamp

All Faculty Scholarship

This is a comparative examination of the slogans and goals most advocated for antitrust law today – namely, that antitrust should be concerned with “bigness,” that it should intervene when actions undermine the “competitive process,” or that it should be concerned about promoting some conception of welfare. “Bigness” as an antitrust concern targets firms based on absolute size rather than share of a market, as antitrust traditionally has done. The bigness approach entails that antitrust cannot be concerned about low prices, or the welfare of consumers and labor. Nondominant firms could not sustain very high prices or cause significant reductions …

The Trouble With Time Served, Kimberly Ferzan

All Faculty Scholarship

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time …

Demonstrating Law Library Value Through Mission-Centered Assessment, Amanda Watson, Amanda Karel, Amanda Runyon, Leslie Street

All Faculty Scholarship

This paper presents a history of evaluation in U.S. academic law libraries, shares survey results about our collective professional mindset, and offer practical steps for law libraries that are ready to abandon a pervasive culture of evaluation.

Regulating Machine Learning: The Challenge Of Heterogeneity, Cary Coglianese

All Faculty Scholarship

Machine learning, or artificial intelligence, refers to a vast array of different algorithms that are being put to highly varied uses, including in transportation, medicine, social media, marketing, and many other settings. Not only do machine-learning algorithms vary widely across their types and uses, but they are evolving constantly. Even the same algorithm can perform quite differently over time as it is fed new data. Due to the staggering heterogeneity of these algorithms, multiple regulatory agencies will be needed to regulate the use of machine learning, each within their own discrete area of specialization. Even these specialized expert agencies, though, …

Worker Welfare And Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The important field of antitrust and labor has gone through a profound change in orientation. For the great bulk of its history labor has been viewed as a competitive threat, and the debate over antitrust and labor was framed around whether there should be a labor “immunity” from the antitrust laws. In just the last decade, however, the orientation has flipped. Most new writing views labor as a target of anticompetitive restraints imposed by employers. Antitrust is increasingly concerned with protecting labor rather than challenging its conduct.

Antitrust interest in labor markets is properly focused on two things. The smaller …

Regulating Recruitment: Migration, Criminalization, And Compounded Informality, Shikha Silliman Bhattacharjee

University of Pennsylvania Asian Law Review

No abstract provided.

Vol. 19 Masthead

University of Pennsylvania Asian Law Review

No abstract provided.

Mixed Jurisdiction Law Beyond The Purported Common Law-Civil Law Dichotomy: The Property Endowment In Iran, Markus G. Puder

University of Pennsylvania Asian Law Review

No abstract provided.

Babies And Individual Income Tax: How To Boost China's Fertility, Alex Ang Gao

University of Pennsylvania Asian Law Review

Winner of THE 2023 PAMELA DALEY PRIZE, to the graduating student writing the best paper in the field of tax law.

Convertible Equity In The Japanese Startup Ecosystem, A. Reid Monroe-Sheridan

University of Pennsylvania Asian Law Review

No abstract provided.

Evading A Race-Conscious Constitution, Cara Mcclellan

All Faculty Scholarship

The idea of a “colorblind” Constitution is front and center in cases before the Supreme Court this term, including Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina (UNC). In these cases, the same plaintiff organization, Students for Fair Admissions (SFFA), has asked the Supreme Court to rule that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 prohibit universities from considering race as one of many factors in admissions to pursue the educational benefits that flow from diversity. In support …

Rationing Access, Roy Baharad, Gideon Parchomovsky

All Faculty Scholarship

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources—national parks, fisheries, heritage sites, and fragile ecosystems—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on …

Dynamic Disclosure: An Exposé On The Mythical Divide Between Voluntary And Mandatory Esg Disclosure, Lisa Fairfax

All Faculty Scholarship

In March 2022, for the first time in its history, the Securities and Exchange Commission (the “SEC”) proposed rules mandating disclosure related to climate change. The proposed rules are remarkable because heretofore many in the business community, including the SEC, vehemently resisted climate-related disclosure, based primarily on the argument that such disclosure is not material to investors. This resistance is exemplified by the current lack of any SEC disclosure mandates for climate change. The proposed rules have sparked considerable pushback including allegations that the rules violate the First Amendment, would be too costly, and focus on “social” or “political” issues …

Border Orientation In A Globalizing World, Beth A. Simmons, Michael R. Kenwick

All Faculty Scholarship

Border politics are a salient component of high international politics. States are increasingly building infrastructure to ‘secure’ their borders. We introduce the concept of border orientation to describe the extent to which the State is committed to the spatial display of capacities to control the terms of penetration of its national borders. Border orientation provides a lens through which to analyze resistance to globalization, growing populism, and the consequences of intensified border politics. We measure border orientation using novel, geo-spatial data on the built environment along the world’s borders and theorize that real and perceived pressures of globalization have resulted …

Gamestop And The Reemergence Of The Retail Investor, Jill E. Fisch

All Faculty Scholarship

The GameStop trading frenzy in January 2021 was perhaps the highest profile example of the reemergence of capital market participation by retail investors, a marked shift from the growing domination of those markets by large institutional investors. Some commentators have greeted retail investing, which has been fueled by app-based brokerage accounts and social media, with alarm and called for regulatory reform. The goals of such reforms are twofold. First, critics argue that retail investors need greater protection from the risks of investing in the stock market. Second, they argue that the stock market, in term, needs protection from retail investors. …

Negligence And Culpability: Reflections On Alexander And Ferzan, Mitchell N. Berman

All Faculty Scholarship

Philosophers of criminal punishment disagree about whether infliction of punishment for negligence can be morally justified. One contending view holds that it cannot be because punishment requires culpability and culpability requires, at a minimum, advertence to the facts that make one’s conduct wrongful. Larry Alexander and Kim Ferzan are prominent champions of this position. This essay challenges that view and their arguments for it. Invoking a conceptual distinction between an agent’s being blameworthy for an act and their deserving punishment (or suffering) for that act, it explains that an agent can be blameworthy for negligent conduct, and thus liable to …

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

All Faculty Scholarship

Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …

Purpose Proposals, Jill E. Fisch

All Faculty Scholarship

Repurposing the corporation is the hot issue in corporate governance. Commentators, investors and increasingly issuers, maintain that corporations should shift their focus from maximizing profits for shareholders to generating value for a more expansive group of stakeholders. Corporations are also being called upon to address societal concerns – from climate change and voting rights to racial justice and wealth inequality.

The shareholder proposal rule, Rule 14a–8, offers one potential tool for repurposing the corporation. This Article describes the introduction of innovative proposals seeking to formalize corporate commitments to stakeholder governance. These “purpose proposals” reflect a new dynamic in the debate …

Selling Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust enforcers and its other defenders have never done a good job of selling their field to the public. That is not entirely their fault. Antitrust is inherently technical, and a less engaging discipline to most people than, say, civil rights or criminal law. The more serious problem is that when the general press does talk about antitrust policy it naturally gravitates toward the fringes, both the far right and the far left. Extreme rhetoric makes for better press than the day-to-day operations of a technical enterprise. The extremes are often stated in overdramatized black-and-white terms that avoid the real …

President Biden's Executive Order On Competition: An Antitrust Analysis, Herbert J. Hovenkamp

All Faculty Scholarship

In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time …

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

All Faculty Scholarship

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the pandemic response by …

Municipal Fiber In The United States: A Financial Assessment, Christopher S. Yoo, Jesse Lambert, Timothy P. Pfenninger

All Faculty Scholarship

Despite growing interest in broadband provided by municipally owned and operated fiber-to-the-home networks, the academic literature has yet to undertake a systematic assessment of these projects’ financial performance. To fill this gap, we utilize municipalities’ official reports to offer an empirical evaluation of the financial performance of every municipal fiber project in the U.S. operating in 2010 through 2019. An analysis of the actual performance of the resulting fifteen-project panel dataset reveals that none of the projects generated sufficient nominal cash flow in the short run to maintain solvency without infusions of additional cash from outside sources or debt relief. …