Law Commons^™

How The Massachusetts Supreme Judicial Court Should Interpret Wynne, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

In this special report, Knoll and Mason discuss how the Massachusetts Supreme Judicial Court should apply Wynne when it hears on remand First Marblehead v. Commissioner of Revenue. The authors conclude that when it originally heard the case, the Massachusetts court mistakenly considered, as part of its internal consistency analysis, whether Gate Holdings Inc. experienced double state taxation. As developed by the U.S. Supreme Court and most recently applied in Wynne, the internal consistency test is not concerned with actual double taxation that may arise from the interaction of different states’ laws. Rather, the test is designed to determine …

The Importance Of Being Dismissive: The Efficiency Role Of Pleading Stage Evaluation Of Shareholder Litigation, Lawrence A. Hamermesh, Michael L. Wachter

All Faculty Scholarship

It has been claimed that the risk/reward dynamics of shareholder litigation have encouraged quick settlements with substantial attorneys’ fee awards but no payment to shareholders, regardless of the merits of the case. Fee-shifting charter and bylaw provisions may be too blunt a tool to control agency costs associated with excessive shareholder litigation, and are in any event now prohibited by Delaware statute. We claim, however, that active judicial supervision of public company shareholder litigation at an early stage reduces the costs of frivolous litigation to shareholders by separating meritorious from unmeritorious litigation before the full costs of discovery are incurred. …

Institutional Investors In Corporate Governance, Edward B. Rock

All Faculty Scholarship

This chapter of the Oxford Handbook on Corporate Law and Governance examines the role of institutional investors in corporate governance and the role of regulation in encouraging institutional investors to become active stewards. I approach these topics through asking what lessons we can draw from the U.S. experience for the E.U.’s 2014 proposed amendments to the Shareholder Rights Directive.

I begin by defining the institutional investor category, and summarizing the growth of institutional investors’ equity holdings over time. I then briefly survey how institutional investors themselves are governed and how they organize share voting. This leads me to two central …

Medicare Secondary Payer And Settlement Delay, Eric Helland, Jonathan Klick

All Faculty Scholarship

The Medicare Secondary Payer Act of 1980 and its subsequent amendments require that insurers and self-insured companies report settlements, awards, and judgments that involve a Medicare beneficiary to the Centers for Medicare and Medicaid Services. The parties then may be required to compensate CMS for its conditional payments. In a simple settlement model, this makes settlement less likely. Also, the reporting delays and uncertainty regarding the size of these conditional payments are likely to further frustrate the settlement process. We provide results, using data from a large insurer, showing that, on average, implementation of the MSP reporting amendments led to …

The New Synthesis Of Bank Regulation And Bankruptcy In The Dodd-Frank Era, David A. Skeel Jr.

All Faculty Scholarship

Since the enactment of the Dodd-Frank Act in 2010, U.S. bank regulation and bankruptcy have become far more closely intertwined. In this Article, I ask whether the new synthesis of bank regulation and bankruptcy is coherent, and whether it is likely to prove effective.

I begin by exploring some of the basic differences between bank resolution, which is a highly administrative process in the U.S., and bankruptcy, which relies more on courts and the parties themselves. I then focus on a series of remarkable new innovations designed to facilitate the rapid recapitalization of systemically important financial institutions: convertible contingent capital …

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

All Faculty Scholarship

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.

This paper is an effort to assist courts …

Creative Copyright: Tailoring Intellectual Property Policies And Business Strategies For Creative Content Industries In The Digital Age, Bhamati Viswanathan

SJD Dissertations

My dissertation explores intellectual property rights in three fields: fashion, music and education. I examine the varying degrees of IP rights in those fields, and ask whether the differing levels of rights are appropriate to keep these industries creative, innovative and robust. I further examine the salient characteristics of those rights and ask whether such an understanding might help to determine optimal levels of IP protection in other creative industries.

Managing Disruptive Patron Behavior In Law Libraries: A Grey Paper, Nicole P. Dyszlewski, Kristen R. Moore, Genevieve B. Tung

Librarian Scholarship at Penn Law

Nearly all law library staff has encountered or will encounter challenging patron behavior. In this article, the authors develop best practices based on their 2014 online survey of law library staff, follow-up correspondence with several survey respondents, and a review of case law and relevant literature within law librarianship and other fields.

Friends, Followers, And Fairness: Sec Fair Disclosure Requirements In A Changing Information Marketplace, Stan Polit

University of Pennsylvania Journal of Business Law

No abstract provided.

Regulating Proxy Puts: A Proposal To Narrow The Proper Purpose Of Proxy Puts After Sandridge, Mark H. Mixon Jr.

University of Pennsylvania Journal of Business Law

No abstract provided.

Desirable Resistance: Kahn V. M&F; Worldwide And The Fight For The Business Judgment Rule In Going-Private Mergers, Daniel Wilson

University of Pennsylvania Journal of Business Law

No abstract provided.

Design Flaws In The Bankruptcy Regime: Lessons From The U.K. For Preventing A Resurgent Creditors' Race In The U.S., Jodie A. Kirshner

University of Pennsylvania Journal of Business Law

No abstract provided.

Take It Or Leave It: Unconscionability Of Mandatory Pre-Dispute Arbitration Agreements In The Securities Industry, William Alan Nelson Ii

University of Pennsylvania Journal of Business Law

No abstract provided.

Franchising Constructive Termination: Quirk, Quagmire Or A French Solution?, Robert W. Emerson

University of Pennsylvania Journal of Business Law

No abstract provided.

Pay Ratio Disclosure: Another Failed Attempt To Curtail Executive Compensation, Kristopher Yingling

University of Pennsylvania Journal of Business Law

No abstract provided.

Yes, That Is Money Laundering. Oh Wait, It's Not: The Impact Of Cuellar On Concealment Money Laundering Case Law, Jennifer Wang

University of Pennsylvania Journal of Business Law

No abstract provided.

Bounties For Bad Behavior: Rewarding Culpable Whistleblowers Under The Dodd-Frank Act And Internal Revenue Code, Jennifer M. Pacella

University of Pennsylvania Journal of Business Law

No abstract provided.

Democracy In The Private Sector: The Rights Of Shareholders And Union Members, Michael J. Goldberg

University of Pennsylvania Journal of Business Law

No abstract provided.

Materiality And A Theory Of Legal Circularity, Wendy Gerwick Couture

University of Pennsylvania Journal of Business Law

No abstract provided.

Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson

University of Pennsylvania Journal of Business Law

No abstract provided.

State Courts Lack Jurisdiction To Hear Securities Act Class Actions, But The Frequent Failure To Ask The Right Question Too Often Produces The Wrong Answer, Mitchell A. Lowenthal, Shiwon Choe

University of Pennsylvania Journal of Business Law

No abstract provided.

Worldwide Hedge Fund Activism: Dimensions And Legal Determinants, Dionysia Katelouzou

University of Pennsylvania Journal of Business Law

No abstract provided.

The Pathologies Of Banking Business As Usual, Hilary J. Allen

University of Pennsylvania Journal of Business Law

No abstract provided.

Making Prepaid Safe For Consumers: A Framework For Providing Deposit Insurance And Regulation E Protections, Catherine Lee Wilson

University of Pennsylvania Journal of Business Law

No abstract provided.

Structural Foundations Of Financial Stability: What Canada Can Teach America About Building A Better Regulatory System, Lev E. Breydo

University of Pennsylvania Journal of Business Law

No abstract provided.

The Role Of The Profit Imperative In Risk Management, Christopher C. French

University of Pennsylvania Journal of Business Law

No abstract provided.

Taxing Status: Tax Treatment Of Mixed Business And Personal Expenses, Adi Libson

University of Pennsylvania Journal of Business Law

No abstract provided.

Revising The Roles Of Master And Servant: A Theory Of Work Law, Stephen Nayak-Young

University of Pennsylvania Journal of Business Law

No abstract provided.

The Charitable Deduction Games: Mimicking Impact Investing, Khrista Johnson

University of Pennsylvania Journal of Business Law

No abstract provided.

Navigating Med-Arb In China, Chuyang (Alexis) Liu

University of Pennsylvania Journal of Business Law

No abstract provided.