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Full-Text Articles in Law

An Inferentially Robust Look At Two Competing Explanations For The Surge In Unauthorized Migration From Central America, Nick Santos May 2021

An Inferentially Robust Look At Two Competing Explanations For The Surge In Unauthorized Migration From Central America, Nick Santos

Dissertations

The last 8 years have seen a dramatic increase in the flow of Central American apprehensions by the U.S. Border Patrol. Explanations for this surge in apprehensions have been split between two leading hypotheses. Most academic scholars, immigrant advocates, progressive media outlets, and human rights organizations identify poverty and violence (the Poverty and Violence Hypothesis) in Central America as the primary triggers responsible. In contrast, while most government officials, conservative think tanks, and the agencies that work in the immigration and border enforcement realm admit poverty and violence may underlie some decisions to migrate, they instead blame lax U ...


Do Esg Mutual Funds Deliver On Their Promises?, Quinn Curtis, Jill E. Fisch, Adriana Z. Robertson Apr 2021

Do Esg Mutual Funds Deliver On Their Promises?, Quinn Curtis, Jill E. Fisch, Adriana Z. Robertson

Faculty Scholarship at Penn Law

Corporations have received growing criticism for their role in climate change, perpetuating racial and gender inequality, and other pressing social issues. In response to these concerns, shareholders are increasingly focusing on environmental, social, and corporate governance (ESG) criteria in selecting investments, and asset managers are responding by offering a growing number of ESG mutual funds. The flow of assets into ESG is one of the most dramatic trends in asset management.

But are these funds giving investors what they promise? This question has attracted the attention of regulators, with the Department of Labor and the Securities and Exchange Commission (SEC ...


Administrative Law In The Automated State, Cary Coglianese Apr 2021

Administrative Law In The Automated State, Cary Coglianese

Faculty Scholarship at Penn Law

In the future, administrative agencies will rely increasingly on digital automation powered by machine learning algorithms. Can U.S. administrative law accommodate such a future? Not only might a highly automated state readily meet longstanding administrative law principles, but the responsible use of machine learning algorithms might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. Algorithmic governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, algorithms might well prove to be more faithful agents of democratic institutions. Yet even if an automated ...


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. Apr 2021

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.

Faculty Scholarship at Penn Law

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 ...


Vertical Control, Herbert J. Hovenkamp Mar 2021

Vertical Control, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust litigation often requires courts to consider challenges to vertical “control.” How does a firm injure competition by limiting the behavior of vertically related firms? Competitive injury includes harm to consumers, labor, or other suppliers from reduced output and higher margins.

Historically antitrust considers this issue by attempting to identify a market that is vertically related to the defendant, and then consider what portion of it is “foreclosed” by the vertical practice. There are better mechanisms for identifying competitive harm, including a more individualized look at how the practice injures the best placed firms or bears directly on a firm ...


A Lesson From Startups: Contracting Out Of Shareholder Appraisal, Jill E. Fisch Mar 2021

A Lesson From Startups: Contracting Out Of Shareholder Appraisal, Jill E. Fisch

Faculty Scholarship at Penn Law

Appraisal is a controversial topic. Policymakers have debated the goals served by the appraisal remedy, and legislatures have repeatedly revised appraisal statutes in an effort to meet those goals while minimizing the cost and potential abuse associated with appraisal litigation. Courts have struggled to determine the most appropriate valuation methodology and the extent to which that methodology should depend on case-specific factors. These difficulties are exacerbated by variation in the procedures by which mergers are negotiated and the potential for conflict-of-interest transactions.

Private ordering offers a market-based alternative to continued legislative or judicial efforts to refine the appraisal remedy. Through ...


A Remedy For The Least Well Off: The Case For Preliminary Damages, Gideon Parchomovsky, Alex Stein Feb 2021

A Remedy For The Least Well Off: The Case For Preliminary Damages, Gideon Parchomovsky, Alex Stein

Faculty Scholarship at Penn Law

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 ...


Lifting Labor’S Voice: A Principled Path Toward Greater Worker Voice And Power Within American Corporate Governance, Leo E. Strine Jr., Aneil Kovvali, Oluwatomi O. Williams Feb 2021

Lifting Labor’S Voice: A Principled Path Toward Greater Worker Voice And Power Within American Corporate Governance, Leo E. Strine Jr., Aneil Kovvali, Oluwatomi O. Williams

Faculty Scholarship at Penn Law

In view of the decline in gain sharing by corporations with American workers over the last forty years, advocates for American workers have expressed growing interest in allowing workers to elect representatives to corporate boards. Board level representation rights have gained appeal because they are a highly visible part of codetermination regimes that operate in several successful European economies, including Germany’s, in which workers have fared better.

But board-level representation is just one part of the comprehensive codetermination regulatory strategy as it is practiced abroad. Without a coherent supporting framework that includes representation from the ground up, as is ...


Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani Feb 2021

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

Faculty Scholarship at Penn Law

This essay reviews Nate Holdren's "Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era" (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. "Injury Impoverished" illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.


The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro Feb 2021

The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro

Faculty Scholarship at Penn Law

President Donald Trump and his supporters repeatedly pointed to positive economic trends in the United States prior to the pandemic as proof of the growth delivered by his Administration, especially through deregulation. Yet, the Trump Administration actually accomplished much less by way of deregulation than it claimed—and much less than most commentators and scholars have surmised. In this Article, we perform an original analysis of data on federal regulation from the Trump Administration’s four years and find every claim made about its deregulatory record turned out either to be wrong or significantly exaggerated. The reality is that the ...


Should Corporations Have A Purpose?, Jill E. Fisch, Steven Davidoff Solomon Feb 2021

Should Corporations Have A Purpose?, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

The hot topic in corporate governance is the debate over corporate purpose and, in particular, whether corporations should shift their purpose from the pursuit of shareholder wealth to pursuing a broader conception of stakeholder or societal value. We argue that this debate has overlooked the critical predicate questions of whether a corporation should have a purpose at all and, if so, why,

We address these questions by examining the historical, legal and theoretical justifications for corporate purpose. We find that none of the three provides a basis for requiring a corporation to articulate a particular purpose or for a given ...


A Public Option For Employer Health Plans, Allison K. Hoffman, Howell E. Jackson, Amy Monahan Feb 2021

A Public Option For Employer Health Plans, Allison K. Hoffman, Howell E. Jackson, Amy Monahan

Faculty Scholarship at Penn Law

Following the 2020 presidential election, health care reform discussions have centered on two competing proposals: Medicare for All and an individual public option (“Medicare for all who want it”). Interestingly, these two proposals take starkly different approaches to employer-provided health coverage, long the bedrock of the U.S. health care system and the stumbling block to many prior reform efforts. Medicare for All abolishes employer-provided coverage, while an individual public option leaves it untouched.

This Article proposes a novel solution that finds a middle ground between these two extremes: an employer public option. In contrast to the more familiar public ...


Criminal Law’S Core Principles, Paul H. Robinson Feb 2021

Criminal Law’S Core Principles, Paul H. Robinson

Faculty Scholarship at Penn Law

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 ...


Propertizing Fair Use, Abraham Bell, Gideon Parchomovsky Feb 2021

Propertizing Fair Use, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship at Penn Law

In its current form, fair use doctrine provides a personal defense that applies narrowly to the specific use by the specific user. The landmark case of Google v. Oracle, currently pending before the Supreme Court, illustrates why this is problematic. Even if the Court were to rule that Google’s use of Oracle’s Java API’s was fair, the ruling would not protect the numerous parties that developed Java applications for the Android operating system; it would only shelter Google and Google’s particular use. This is not an isolated problem; the per use/per user rule cuts across ...


Library Of Congress [Docket No. 2021-1] Announcement Of Copyright Public Modernization Committee, Carla D. Hayden Jan 2021

Library Of Congress [Docket No. 2021-1] Announcement Of Copyright Public Modernization Committee, Carla D. Hayden

Copyright, Fair Use, Scholarly Communication, etc.

Action: Notice of convening of IT modernization public stakeholder committee.

Summary: The Library of Congress is convening a public committee to enhance communication and provide a public forum for the technology-related aspects of the U.S. Copyright Office's modernization initiative. At this time, the Library is announcing that it will accept applications from qualified members of the public to serve on this committee. The scope of contributions made by the committee are limited to the specific topics set forth in this notice. Membership will be on a volunteer basis, with the expectation of in-person or virtual participation at two ...


Undemocratic Crimes, Paul H. Robinson, Jonathan C. Wilt Jan 2021

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

Faculty Scholarship at Penn Law

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 ...


Environmental Soft Law As A Governance Strategy, Cary Coglianese Jan 2021

Environmental Soft Law As A Governance Strategy, Cary Coglianese

Faculty Scholarship at Penn Law

Soft law governance relies on nongovernmental institutions that establish and implement voluntary standards. Compared with traditional hard law solutions to societal and economic problems, soft law alternatives promise to be more politically feasible to establish and then easier to adapt in the face of changing circumstances. They may also seem more likely to be flexible in what they demand of targeted businesses and other entities. But can soft law actually work to solve major problems? This Article considers the value of soft law governance through the lens of three major voluntary, nongovernmental initiatives that address environmental concerns: (1) ISO 14001 ...


Reversing The Fortunes Of Active Funds, Adi Libson, Gideon Parchomovsky Jan 2021

Reversing The Fortunes Of Active Funds, Adi Libson, Gideon Parchomovsky

Faculty Scholarship at Penn Law

In 2019, for the first time in the history of U.S. capital markets, passive funds surpassed active funds in terms of total assets under management. The continuous growth of passive funds at the expense of active funds is a genuine cause for concern. Active funds monitor the management and partake of decision-making in their portfolio companies. Furthermore, they improve price efficiency and managerial performance by engaging in informed trading. The buy/sell decisions of active funds provide other market participants reliable information about the quality of firms. The cost of active investing is significant and it is exclusively borne ...


Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli Jan 2021

Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli

Faculty Scholarship at Penn Law

Civil asset forfeiture has strayed far from its intended purpose. Designed to give law enforcement powerful tools to combat maritime offenses and criminal enterprises, forfeiture laws are now used to prey upon innocent motorists and lawful homeowners who are never charged with crimes. Their only sins are that they are carrying legal tender while driving on busy highways or providing shelter in their homes to adult children and grandchildren who allegedly sold small amounts of low-level drugs. Civil forfeiture abuses are commonplace throughout the country with some police even armed with legal waivers for property owners to sign on the ...


Administrative Law In A Time Of Crisis: Comparing National Responses To Covid-19, Cary Coglianese, Neysun A. Mahboubi Jan 2021

Administrative Law In A Time Of Crisis: Comparing National Responses To Covid-19, Cary Coglianese, Neysun A. Mahboubi

Faculty Scholarship at Penn Law

Beginning in early 2020, countries around the world successively and then together faced the same rapidly emerging threats from the COVID-19 virus. The shared experience of this global pandemic affords scholars and policymakers a comparative lens through which to view how differences in countries’ governance structures and administrative responses affected their ability to manage the various crisis posed by the pandemic. This article introduces a special series of essays in the Administrative Law Review written by leading administrative law experts across the globe. Case studies focus on China, Chile, Germany, Italy, New Zealand, South Africa, and the United States, as ...


Restoration: The Role Stakeholder Governance Must Play In Recreating A Fair And Sustainable American Economy A Reply To Professor Rock, Leo E. Strine Jr. Dec 2020

Restoration: The Role Stakeholder Governance Must Play In Recreating A Fair And Sustainable American Economy A Reply To Professor Rock, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

In his excellent article, For Whom is the Corporation Managed in 2020?: The Debate Over Corporate Purpose, Professor Edward Rock articulates his understanding of the debate over corporate purpose. This reply supports Professor Rock’s depiction of the current state of corporate law in the United States. It also accepts Professor Rock’s contention that finance and law and economics professors tend to equate the value of corporations to society solely with the value of their equity. But, I employ a less academic lens on the current debate about corporate purpose, and am more optimistic about proposals to change our ...


Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy Dec 2020

Privacy Vs. Transparency: Handling Protected Materials In Agency Rulemaking, Christopher S. Yoo, Kellen Mccoy

Faculty Scholarship at Penn Law

Agencies conducting informal rulemaking proceedings increasingly confront conflicting duties with respect to protected materials included in information submitted in public rulemaking dockets. They must reconcile the broad commitment to openness and transparency reflected in federal law with the duty to protect confidential business information (CBI) and personally identifiable information (PII) against improper disclosure.

This Article presents an analysis of how agencies can best balance these often-countervailing considerations. Part I explores the statutory duties to disclose and withhold information submitted in public rulemaking dockets placed on agencies. It also examines judicial decisions and other legal interpretations regarding the proper way to ...


Crisis Within A Crisis: A Comparative Analysis Of Covid-19’S Implications On Greece And Spain’S Migrant And Refugee Processing Policies, Injy Elhabrouk Dec 2020

Crisis Within A Crisis: A Comparative Analysis Of Covid-19’S Implications On Greece And Spain’S Migrant And Refugee Processing Policies, Injy Elhabrouk

Undergraduate Honors Theses

With the onset of the COVID-19 pandemic came a collective global panic regarding health, safety, and security. Since the major outbreak of the coronavirus in March of 2020, few issues have received scrutiny and attention in the public sphere. Yet, the problems that existed before COVID-19 have not become obsolete, however, they were removed from the public eye. One such issue to receive less scrutiny is the treatment of the most vulnerable populations in the world—migrants and refugees. Spain and Greece’s locations on the Mediterranean Sea mean they are often the first place migrants seek refuge in their ...


Is The Digital Economy Too Concentrated?, Jonathan Klick Nov 2020

Is The Digital Economy Too Concentrated?, Jonathan Klick

Faculty Scholarship at Penn Law

Concentration in the digital economy in the United States has sparked loud criticism and spurred calls for wide-ranging reforms. These reforms include everything from increased enforcement of existing antitrust laws, such as challenging more mergers and breaking up firms, to an abandonment of the consumer welfare standard. Critics cite corruption and more systemic public choice problems, while others invoke the populist origins of antitrust to slay the digital Goliaths. On the other side, there is skepticism regarding these arguments. This chapter continues much of that skepticism.


The Costs Of Critical Habitat Or Owl’S Well That Ends Well, Jonathan Klick, J.B. Ruhl Nov 2020

The Costs Of Critical Habitat Or Owl’S Well That Ends Well, Jonathan Klick, J.B. Ruhl

Faculty Scholarship at Penn Law

When the Fish and Wildlife Service designated land in four counties of Arizona as “critical habitat” necessary for the protection of the endangered cactus ferruginous pygmy‐owl, property values dropped considerably. When the owl was later delisted, property values jumped back up. We use difference-in-difference and synthetic control designs to identify this effect with Zillow property value data. The results provide an estimate of the costs of this critical habitat designation, and they are considerable, contrary to the regulators’ position that critical habitat protection imposes no incremental costs beyond the original endangered species listing.


Toward Racial Equality: The Most Important Things The Business Community Can Do, Leo E. Strine Jr. Oct 2020

Toward Racial Equality: The Most Important Things The Business Community Can Do, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

In this address, former Chief Justice Strine kicked-off an important series, the Conference on Racial Equity in Corporate Governance, co-sponsored by the Millstein Center for Global Markets and Corporate Governance, Columbia Law School; the Institute for Law & Economics, University of Pennsylvania; the Rock Center for Corporate Governance, Stanford University; and the Stanford Center for Racial Justice, Stanford Law School.

The address explains the importance of institutional investors and corporations contributing to ending the persistent inequality suffered by black Americans. And it focuses on the reality that we would have made huge strides toward closing the race gap if our corporate governance and political systems ...


Stewardship 2021: The Centrality Of Institutional Investor Regulation To Restoring A Fair And Sustainable American Economy, Leo E. Strine Jr. Oct 2020

Stewardship 2021: The Centrality Of Institutional Investor Regulation To Restoring A Fair And Sustainable American Economy, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

In this essay, which formed the basis for the luncheon keynote speech at the Rethinking Stewardship online conference presented by the Ira M. Millstein Center for Global Markets and Corporate Ownership at Columbia Law School and ECGI, the European Corporate Governance Institute, the essential, but not sufficient, role of regulation to promote more effective stewardship by institutional investors is discussed. To frame specific policy recommendations that align the responsibilities of institutional investors with the best interests of their human investors in sustainable wealth creation, environmental responsibility, the respectful treatment of stakeholders, and, in particular, the fair pay and treatment of ...


Policing In A Democratic Constitution, Michael Wasco Oct 2020

Policing In A Democratic Constitution, Michael Wasco

Indiana Journal of Constitutional Design

Most constitutions contain provisions relating to or impacting policing. Separate from the armed forces and intelligence services, the police are the state’s internal security apparatus, and codifying issues related to policing within a constitution can ensure efficient service delivery and human rights protections.

Originating from the Libyan constitution making process, this paper provides a taxonomy of options for constitution drafters and scholars. More so than other issues, such as separation of powers or human rights protections generally, policing sections are very country specific. While not advocating for specific best practices, the work gives ample justifications for certain policing principles ...


It Is Time To Get Back To Basics On The Border, Donna Coltharp Oct 2020

It Is Time To Get Back To Basics On The Border, Donna Coltharp

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.


A Truce In The Criminal Law Distributive Principle Wars?, Paul H. Robinson Oct 2020

A Truce In The Criminal Law Distributive Principle Wars?, Paul H. Robinson

Faculty Scholarship at Penn Law

Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs.

It is argued here that the two are in fact reconcilable, in a fashion ...