Law Commons^™

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. …

Sentencing Co-Offenders, Ehud Guttel, Ittai Paldor, Gideon Parchomovsky

All Faculty Scholarship

Tort law and criminal law are the two main vehicles utilized by the state to deter wrongful behavior. Despite the many similarities between the two legal fields, they differ in their treatment of collaborations. While tort law divides liability among joint-tortfeasors, criminal law abides by a no-division rule that imposes on each co-offender the full brunt of the sanction. Thus, each of two offenders who jointly steal $1,000, will be subject to the full corresponding penalty (rather than the divided penalty for stealing $500).

This Article demonstrates that in property and financial crimes, the no-division regime of criminal law harms …

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 …

Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese

All Faculty Scholarship

Following the June 2019 explosion at the Philadelphia Energy Solutions (PES) refinery, the city of Philadelphia now confronts major challenges associated with the future of the refinery site. Whether the site is reopened as a refinery or other chemical-processing operation, or redeveloped for other uses, the city will face challenges endemic to all kinds of public policy issues: complexity, uncertainty, dynamism, tradeoffs, and value choices. This testimony, delivered to the City of Philadelphia Refinery Advisory Group’s Environment Committee, offers three main suggestions to help guide Philadelphia officials in dealing with the future of the PES refinery site. First, city officials …

The Uncertain Stewardship Potential Of Index Funds, Jill E. Fisch

All Faculty Scholarship

Regulators and commentators around the world are increasingly demanding that institutional investors engage in stewardship with respect to their portfolio companies. Further, the demand for stewardship has broadened from an expectation that investors engage to reduce agency costs and promote economic value to a call for investors to demand that companies serve a broader range of societal interests and objectives. This chapter considers calls for stewardship in the context of the U.S. capital markets specifically as applied to index funds. It argues that, irrespective of the merits of institutional stewardship generally, the structure of index funds and the business environment …

What History Can Tell Us About The Future Of Insurance And Litigation After Covid-19, Kenneth S. Abraham, Tom Baker

All Faculty Scholarship

This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that profoundly influenced the course of insurance and insurance law, in order to predict the post-COVID-19 future of these fields. In each instance, there was a direct and decided cause-and-effect relationship between these developments and subsequent change in the world of insurance and insurance law. As important as the influence of COVID-19 is at present and probably will be in the future, in our view the COVID-19 pandemic will not be as significant an influence on insurance and …

Dismantling The “Black Opticon”: Privacy, Race Equity, And Online Data-Protection Reform, Anita L. Allen

All Faculty Scholarship

African Americans online face three distinguishable but related categories of vulnerability to bias and discrimination that I dub the “Black Opticon”: discriminatory oversurveillance, discriminatory exclusion, and discriminatory predation. Escaping the Black Opticon is unlikely without acknowledgement of privacy’s unequal distribution and privacy law’s outmoded and unduly race-neutral façade. African Americans could benefit from race-conscious efforts to shape a more equitable digital public sphere through improved laws and legal institutions. This Essay critically elaborates the Black Opticon triad and considers whether the Virginia Consumer Data Protection Act (2021), the federal Data Protection Act (2021), and new resources for the Federal Trade …

Why Aim Law Toward Human Survival, John William Draper

Librarian Scholarship at Penn Law

Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.

If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.

There is no better choice. You and all your relatives have rights. The …

Leases As Forms, David A. Hoffman, Anton Strezhnev

All Faculty Scholarship

We offer the first large scale descriptive study of residential leases, based on a dataset of ~170,000 residential leases filed in support of over ~200,000 Philadelphia eviction proceedings from 2005 through 2019. These leases are highly likely to contain unenforceable terms, and their pro-landlord tilt has increased sharply over time. Matching leases with individual tenant characteristics, we show that unlawful terms are surprisingly likely to be associated with more expensive leaseholds in richer, whiter parts of the city. This result is linked to landlords' growing adoption of shared forms, originally created by non-profit landlord associations, and more recently available online …

Remodelling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic

All Faculty Scholarship

This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …

Internal And External Challenges To Culpability, Stephen J. Morse

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This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …

Criminal Law’S Core Principles, Paul H. Robinson

All Faculty Scholarship

Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this “blank slate” conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.

Many writers dispute that such core principles …

Algorithm Vs. Algorithm, Cary Coglianese, Alicia Lai

All Faculty Scholarship

Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, …

The Psychology Of Separation: Border Walls, Soft Power, And International Neighborliness, Diana C. Mutz, Beth A. Simmons

All Faculty Scholarship

This study assesses the impact of international border walls on evaluations of countries and on beliefs about bilateral relationships between states. Using a short video, we experimentally manipulate whether a border wall image appears in a broader description of the history and culture of a little-known country. In a third condition, we also indicate which bordering country built the wall. Demographically representative samples from the United States, Ireland, and Turkey responded similarly to these experimental treatments. Compared to a control group, border walls lowered evaluations of the bordering countries. They also signified hostile international relationships to third-party observers. Furthermore, the …

2022 Edward V. Sparer Symposium Keynote Lecture, Deborah N. Archer

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

After Denial: Imagining With Education Justice Movements, Zoe Masters

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Autonomous Vehicles And The Future Of Transit For Individuals With Disabilities, John F. Saylor

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Bike Life, Cultural Conflict, And The City, Jordan Konell

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Linguistic Rights For Minorities And The Quest For Equality: The Case For Arab-Palestinians In Israel, Yousef T. Jabareen

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Funding The Unfunded Non-Mandate: An Equal Justice Case For Adequate Funding Of Public Defense, Jay C. Hauser

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Undemocratic Crimes, Paul H. Robinson, Jonathan C. Wilt

All Faculty Scholarship

One might assume that in a working democracy the criminal law rules would reflect the community’s shared judgments regarding justice and punishment. This is especially true because social science research shows that lay people generally think about criminal liability and punishment in consistent ways: in terms of desert, doing justice and avoiding injustice. Moreover, there are compelling arguments for demanding consistency between community views and criminal law rules based upon the importance of democratic values, effective crime-control, and the deontological value of justice itself.

It may then come as a surprise, and a disappointment, that a wide range of common …

The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb

All Faculty Scholarship

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby …

Preliminary Damages, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either …

Duty And Diversity, Chris Brummer, Leo E. Strine Jr.

All Faculty Scholarship

In the wake of the brutal deaths of George Floyd and Breonna Taylor, a slew of reforms from Wall Street to the West Coast have been introduced, all aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope and degree of legal obligation and practical effects. In this Article, we provide an old answer to the new questions facing DEI policy, and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we show that …

Secured Transactions Law Reform In Japan: Japan Business Credit Project Assessment Of Interviews And Tentative Policy Proposals, Megumi Hara, Kumiko Koens, Charles W. Mooney Jr.

All Faculty Scholarship

This article summarizes key findings from the Japan Business Credit Project (JBCP), which involved more than 30 semi-structured interviews conducted in Japan from 2016 through 2018. It was inspired by important and previously unexplored questions concerning secured financing of movables (business equipment and inventory) and claims (receivables)—“asset-based lending” or “ABL.” Why is the use of ABL in Japan so limited? What are the principal obstacles and disincentives to the use of ABL in Japan? The interviews were primarily with staff of banks, but also included those of government officials and regulators, academics, and law practitioners. The article proposes reforms of …

Virtually Incredible: Rethinking Deference To Demeanor When Assessing Credibility In Asylum Cases Conducted By Video Teleconference, Liz Bradley, Hillary Farber

All Faculty Scholarship

The COVID-19 pandemic forced courthouses around the country to shutter their doors to in-person hearings and embrace video teleconferencing (VTC), launching a technology proliferation within the U.S. legal system. Immigration courts have long been authorized to use VTC, but the pandemic prompted the Executive Office for Immigration Review (EOIR) to expand video capabilities and encourage the use of video “to the maximum extent practicable.” In this technology pivot, we must consider how VTC affects cases for international humanitarian protections, where an immigration judge’s ability to accurately gauge an applicant’s demeanor can have life-or-death consequences.

This Article takes a deep dive …

Decarceration's Inside Partners, Seema Saifee

All Faculty Scholarship

This Article examines a hidden phenomenon in criminal punishment. People in prison, during their incarceration, have made important—and sometimes extraordinary—strides toward reducing prison populations. In fact, stakeholders in many corners, from policy makers to researchers to abolitionists, have harnessed legal and conceptual strategies generated inside the walls to pursue decarceral strategies outside the walls. Despite this outside use of inside moves, legal scholarship has directed little attention to theorizing the potential of looking to people on the inside as partners in the long-term project of meaningfully reducing prison populations, or “decarceration.”

Building on the change-making agency and revolutionary ideation inside …