Law Commons^™

An Employment Opportunity Or A Discrimination Dilemma?: Sheltered Workshops And The Employment Of The Disabled, Laura C. Hoffman

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Originalism And Same-Sex Marriage, Grant Darwin

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Immigration Reform And The Democratic Will, Daniel I. Morales

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Distant Silences And Default Judgments: Access To Justice For Transnationally Abandoned Women, Shikha Silliman Bhattacharjee

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Ashcroft V. Iqbal And Binding International Law: Command Responsibility In The Context Of War Crimes And Human Rights Abuses, Peter Laumann

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

The Need For Sexting Law Reform: Appropriate Punishments For Teenage Behaviors, Alexandra Kushner

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Competition For Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

Both antitrust and IP law are limited and imperfect instruments for regulating innovation. The problems include high information costs and lack of sufficient knowledge, special interest capture, and the jury trial system, to name a few. More fundamentally, antitrust law and intellectual property law have looked at markets in very different ways. Further, over the last three decades antitrust law has undergone a reformation process that has made it extremely self conscious about its goals. While the need for such reform is at least as apparent in patent and copyright law, very little true reform has actually occurred.

Antitrust has …

Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp

All Faculty Scholarship

A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – …

Distributive Justice And Consumer Welfare In Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The dominant view of antitrust policy in the United States is that it is intended to promote some version of economic welfare. More specifically, antitrust promotes allocative efficiency by ensuring that markets are as competitive as they can practicably be, and that firms do not face unreasonable roadblocks to attaining productive efficiency, which refers to both cost minimization and innovation.

The distribution concern that has dominated debates over United States antitrust policy over the last several decades is whether antitrust should adopt a “consumer welfare” principle rather than a more general neoclassical “total welfare” principle. In The Antitrust Paradox Robert …

The Innovation Commons, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Penn Law E-Brief (December 2013)

Penn Carey Law E-Brief

No abstract provided.

To Benefit Or Not To Benefit: Mutually Induced Consideration As A Test For The Legality Of Unpaid Internships, Craig Durrant

University of Pennsylvania Law Review

No abstract provided.

Reuniting 'Is' And 'Ought' In Empirical Legal Scholarship, Joshua B. Fischman

University of Pennsylvania Law Review

No abstract provided.

Factual Precedents, Allison Orr Larsen

University of Pennsylvania Law Review

No abstract provided.

Deciding By Default, Cass R. Sunstein

University of Pennsylvania Law Review

No abstract provided.

Solar-Backed Securities: Opportunities, Risks, And The Specter Of The Subprime Mortgage Crisis, Samantha Jacoby

University of Pennsylvania Law Review

No abstract provided.

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …

Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp

All Faculty Scholarship

In FTC v. Actavis the Supreme Court held that settlement of a patent infringement suit in which the patentee of a branded pharmaceutical drug pays a generic infringer to stay out of the market may be illegal under the antitrust laws. Justice Breyer's majority opinion was surprisingly broad, in two critical senses. First, he spoke with a generality that reached far beyond the pharmaceutical generic drug disputes that have provoked numerous pay-for-delay settlements.

Second was the aggressive approach that the Court chose. The obvious alternatives were the rule that prevailed in most Circuits, that any settlement is immune from antitrust …

Patent Value And Citations: Creative Destruction Or Strategic Disruption?, David S. Abrams, Ufuk Akcigit, Jillian Popadak

All Faculty Scholarship

Prior work suggests that more valuable patents are cited more and this view has become standard in the empirical innovation literature. Using an NPE-derived dataset with patent-specific revenues we find that the relationship of citations to value in fact forms an inverted-U, with fewer citations at the high end of value than in the middle. Since the value of patents is concentrated in those at the high end, this is a challenge to both the empirical literature and the intuition behind it. We attempt to explain this relationship with a simple model of innovation, allowing for both productive and strategic …

Innovation, Ip Rights, And Anticompetitive Exclusion, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses …

Resource Movement And The Legal System, Herbert J. Hovenkamp

All Faculty Scholarship

In "The Problem of Social Cost" Ronald Coase considered several common law disputes among neighbors whose economic activities conflicted with one another. For example, Sturges v. Bridgman was a nineteenth century nuisance case involving a pediatrician whose practice was hindered by his neighbor, a confectioner whose operation required a noisy mechanical mortar & pestle. Coase showed that if high transaction costs did not interfere, private bargaining would provide a solution which he characterized as efficient -- namely, that the right to continue would be given to the person who valued it most. For example, if the pediatrician valued the right …

The Fourth Amendment Implications Of The Government's Use Of Cell Tower Dumps In Its Electronic Surveillance, Brian L. Owsley The Honorable

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Supreme Court's New Source Of Legitimacy, Or Bassok

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Hiv Confidentiality And Stigma: A Way Forward, Hannah R. Fishman

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Animating The Seventh Amendment In Contemporary Plaintiff's Litigation: The Rule, Or The Exception?, Cory Tischbein

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

A (Virtual) Land Of Confusion With College Students' Online Speech: Introducing The Curricular Nexus Test, Jeffery C. Sun, Neal H. Hutchens, James D. Breslin

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Adjusting The Presumption Of Constitutionality Based On Margin Of Statutory Passage, Edward C. Dawson

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Private Enforcement, Stephen B. Burbank, Sean Farhang, Herbert Kritzer

All Faculty Scholarship

Our aim in this Article is to advance understanding of private enforcement of statutory and administrative law in the United States and to raise questions that will be useful to those who are concerned with regulatory design in other countries. To that end, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development of private enforcement. We also set forth key elements of the general legal landscape in which decisions about private enforcement are made, aspects of which should be central to the choice of …

Migrant Workers’ Access To Justice At Home: Indonesia, Bassina Farbenblum, Eleanor Taylor-Nicholson, Sarah Paoletti

All Faculty Scholarship

Each year, around half a million Indonesians travel abroad to work, half of those to the Middle East. They are typically women from small cities or villages with primary education and limited work experience, hired to perform domestic work. Many suffer abuse and exploitation but have virtually no access to recourse within their host country’s legal system.

The vulnerability of migrant workers abroad makes it crucial for them to be able to seek redress in their own countries. Access to justice at home also allows for redress when home governments and private recruitment businesses breach their legal responsibilities to migrant …

Can Pensions Be Restructured In (Detroit’S) Municipal Bankruptcy?, David A. Skeel Jr.

All Faculty Scholarship

This paper, which was written as a White Paper for the Federalist Society, describes and assesses the question whether public employee pensions can be restructured in bankruptcy, with a particular focus on Detroit. Part I gives a brief overview both of the treatment of pensions under state law, and of the Michigan law governing the Detroit pensions. Part II explains the legal argument for restructuring an underfunded pension in bankruptcy. Part III considers the major federal constitutional objections to restructuring, Part IV discusses arguments based on the Michigan Constitution, and Part V assesses several Chapter 9 arguments against restructuring. None …