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University of Pennsylvania Carey Law School

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2003

Articles 1 - 30 of 79

Full-Text Articles in Law

Social Welfare, Human Dignity, And The Puzzle Of What We Owe Each Other, Amy L. Wax Dec 2003

Social Welfare, Human Dignity, And The Puzzle Of What We Owe Each Other, Amy L. Wax

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Proponents of work-based welfare reform claim that moving the poor from welfare to work will advance the goals of economic self-reliance and independence. Reform opponents attack these objectives as ideologically motivated and conceptually incoherent. Drawing on perspectives developed by luck egalitarians and feminist theorists, these critics disparage conventional notions of economic desert, find fault with market measures of value, debunk ideals of autonomy, and emphasize the pervasiveness of interdependence and unearned benefits within free market societies. These arguments pose an important challenge to justifications usually advanced for work-based welfare reform. Reform proponents must concede that no member of society can …

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Regulating Irrational Exuberance And Anxiety In Securities Markets , Peter H. Huang Dec 2003

Regulating Irrational Exuberance And Anxiety In Securities Markets , Peter H. Huang

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This paper analyzes the regulatory implications of irrational exuberance and anxiety in securities markets. U.S. federal securities laws mandate the disclosure of certain information, but regulate only the cognitive form and content of that information. An important and unstudied question is how to regulate securities markets where some investors respond not only cognitively to the form and content of information, but also emotionally to the form and content of information. This paper investigates that question when some investors feel exuberance or anxiety that is unjustified by cognitive processing of the available information. This paper develops the implications for mandatory securities …

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Building Sector-Based Consensus: A Review Of The Epa's Common Sense Initiative, Cary Coglianese, Laurie K. Allen Sep 2003

Building Sector-Based Consensus: A Review Of The Epa's Common Sense Initiative, Cary Coglianese, Laurie K. Allen

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In the late 1990s, the U.S. Environmental Protection Agency (EPA) conducted what the agency considered to be a "bold experiment" in regulatory reinvention, bringing representatives from six industrial sectors together with government officials and NGO representatives to forge a consensus on innovations in public policy and business practices. This paper assesses the impact of the agency's "experiment" - called the Common Sense Initiative (CSI) - in terms of the agency's goals of improving regulatory performance and technological innovation. Based on a review of CSI projects across all six sectors, the paper shows how EPA achieved, at best, quite modest accomplishments. …

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“Black People’S Money”: The Impact Of Law, Economics, And Culture In The Context Of Race On Damage Recoveries, Regina Austin Jul 2003

“Black People’S Money”: The Impact Of Law, Economics, And Culture In The Context Of Race On Damage Recoveries, Regina Austin

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“’Black People’s Money’: The Impact of Law, Economics, and Culture in the Context of Race on Damage Recoveries” is one of a series of articles by the author dealing with black economic marginalization; prior work considered such topics as shopping and selling as forms of deviance, street vending, restraints on leisure, and the importance of informality in loan transactions. This article deals with the linkage between the social significance of black people’s money and its material value. It analyzes the construction of “black money,” its association with cash, and the taboos and cultural practices that assure that black money will …

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The Effect Of Abortion Legalization On Sexual Behavior: Evidence From Sexually Transmitted Diseases, Jonathan Klick, Thomas Stratmann Jun 2003

The Effect Of Abortion Legalization On Sexual Behavior: Evidence From Sexually Transmitted Diseases, Jonathan Klick, Thomas Stratmann

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Unwanted pregnancy represents a major cost of sexual activity. When abortion was legalized in a number of states in 1969 and 1970 (and nationally in 1973), this cost was reduced. We predict that abortion legalization generated incentives leading to an increase in sexual activity, accompanied by an increase in sexually transmitted diseases (STDs). Using Centers for Disease Control data on the incidence of gonorrhea and syphilis by state, we test the hypothesis that abortion legalization led to an increase in sexually transmitted diseases. We find that gonorrhea and syphilis incidences are significantly and positively correlated with abortion legalization. Further, we …

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Why Do Distressed Companies Choose Delaware? An Empirical Analysis Of Venue Choice In Bankruptcy , Kenneth M. Ayotte, David A. Skeel Jr. May 2003

Why Do Distressed Companies Choose Delaware? An Empirical Analysis Of Venue Choice In Bankruptcy , Kenneth M. Ayotte, David A. Skeel Jr.

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We analyze a sample of large Chapter 11 cases to determine which factors motivate the choice of filing in one court over another when a choice is available. We focus in particular on the Delaware court, which became the most popular venue for large corporations in the 1990s. We find no evidence of agency problems governing the venue choice or affecting the outcome of the bankruptcy process. Instead, firm characteristics and court characteristics, particularly a court's level of experience, are the most important factors. We find that court experience manifests itself in both a greater ability to reorganize marginal firms …

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Judging Unions' Future Using A Historical Perspective: The Public Policy Choice Between Competition And Unionization, Michael L. Wachter May 2003

Judging Unions' Future Using A Historical Perspective: The Public Policy Choice Between Competition And Unionization, Michael L. Wachter

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In this paper I look at unions' future using a historical perspective and focusing on the period of union ascendancy as well as the past few decades when unions have been in decline. We know trends currently in place are unfavorable to unions. What conditions would be favorable? The rise of unions from the 1930s through the early 1950s was due to the convergence of a number of events - an economic policy that attempted to restrict competition beginning in the 1930s, the twin beliefs that labor markets were inherently noncompetitive and/or that individual workplaces were exploitative, and low union …

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Risk, Death And Harm: The Normative Foundations Of Risk Regulation, Matthew D. Adler Apr 2003

Risk, Death And Harm: The Normative Foundations Of Risk Regulation, Matthew D. Adler

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Is death a harm? Is the risk of death a harm? These questions lie at the foundations of risk regulation. Agencies that regulate threats to human life, such as the EPA, OSHA, the FDA, the CPSC, or NHTSA, invariably assume that premature death is a first-party harm - a welfare setback to the person who dies - and often assume that being at risk of death is a distinct and additional first-party harm. If these assumptions are untrue, the myriad statutes and regulations that govern risky activities should be radically overhauled, since the third-party benefits of preventing premature death and …

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Creditors' Ball: The "New" New Corporate Governance In Chapter 11, David A. Skeel Jr. Mar 2003

Creditors' Ball: The "New" New Corporate Governance In Chapter 11, David A. Skeel Jr.

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In the 1980s and early 1990s, many observers believed that the American corporate bankruptcy laws were desperately inefficient. The managers of the debtor stayed in control as "debtor in possession" after filing for bankruptcy, and they had the exclusive right to propose a reorganization plan for at least the first four months of the case, and often far longer. The result was lengthy cases, deteriorating value and numerous academic proposals to replace Chapter 11 with an alternative regime. In the early years of the new millennium, bankruptcy could not look more different. Cases proceed much more quickly, and they are …

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Taxing Sunny Days: Adjusting Taxes For Regional Living Costs And Amenities, Michael S. Knoll, Thomas D. Griffith Feb 2003

Taxing Sunny Days: Adjusting Taxes For Regional Living Costs And Amenities, Michael S. Knoll, Thomas D. Griffith

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Taxpayers pay tax on their nominal income without regard to their regional cost of living or the value of their regional amenities. Although commentators have argued that the income tax's failure to account for such differences is unfair - because residents of high-cost and low-amenity regions pay higher taxes than residents of low-cost and high-amenity regions - that argument is unpersuasive because migration tends to eliminate regional differences in living standards. The tax system's failure to adjust for regional differences is, however, likely to misallocate resources across regions in two ways. First, it is likely to discourage taxpayers from settling …

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Genocide, Press Freedom, And The Case Of Hassan Ngeze, C. Edwin Baker Jan 2003

Genocide, Press Freedom, And The Case Of Hassan Ngeze, C. Edwin Baker

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This essay was written under contract with the United Nations to serve as background for my testimony as an expert witness in behalf of Hassen Ngeze in his prosecution before the International Criminal Tribunal for Rwanda. (On motion of the prosecutor, the Court excluded this essay - or report - and the offer of my testimony.) In the Prosecutor v. Ngeze, the prosecution charged Ngeze with direct and public incitement to genocide and conspiracy to commit genocide almost entirely on the basis of his publication of a newspaper, Kangura one of many newspapers being published in Rwanda during the period …

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Prohibited Risks And Culpable Disregard Or Inattentiveness: Challenge And Confusion In The Formulation Of Risk-Creation Offenses, Paul H. Robinson Jan 2003

Prohibited Risks And Culpable Disregard Or Inattentiveness: Challenge And Confusion In The Formulation Of Risk-Creation Offenses, Paul H. Robinson

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Because they track the Model Penal Code, current criminal law formulations of risk offenses typically fail to distinguish the rule of conduct question - What risks does the criminal law prohibit? - from the adjudication question - When is a particular violator's conscious disregard of, or his inattentiveness to, a risk in a particular situation sufficiently condemnable to deserve criminal liability? Instead, the formulations address only the second question - through their definition of reckless and negligent culpability - and fail to provide a rule of conduct provision to define a prohibited risk. This reliance upon culpability definitions as the …

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The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett Jan 2003

The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett

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No abstract provided.

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Corporate Policy And The Coherence Of Delaware Takeover Law, Richard E. Kihlstrom, Michael L. Wachter Jan 2003

Corporate Policy And The Coherence Of Delaware Takeover Law, Richard E. Kihlstrom, Michael L. Wachter

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This Article presents a model that can be used to explain key elements of Delaware takeover law. By incorporating corporate policy as a key variable in the model, Delaware law’s management discretion rule can be shown to be best suited for maximizing the value of the corporation and the shareholders’ interest under a set of reasonable assumptions. By allowing for occasional market mispricing and the agency costs associated with managing to the market, we demonstrate that a shareholder choice regime would likely lead to suboptimal investment decisions. In our model, managers are assumed to have better information regarding alternative corporate …

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Corporate Constitutionalism: Antitakeover Charter Provisions As Pre-Commitment, Marcel Kahan, Edward B. Rock Jan 2003

Corporate Constitutionalism: Antitakeover Charter Provisions As Pre-Commitment, Marcel Kahan, Edward B. Rock

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Constitutions constitute a polity and create and entrench power. A corporate constitution - the governance choices incorporated in state law and the certificate of incorporation - resembles a political constitution. Delaware law allows parties to create corporations, to endow them with perpetual life, to assign rights and duties to "citizens" (directors and shareholders), to adopt a great variety of governance structures, and to entrench those choices. In this Article, we argue that the decision to endow directors with significant power over decisions whether and how to sell the company is a constitutional choice of governance structure. We then argue that …

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The Rise And Demise Of The Technology-Specific Approach To The First Amendment, Christopher S. Yoo Jan 2003

The Rise And Demise Of The Technology-Specific Approach To The First Amendment, Christopher S. Yoo

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This article examines how analytical, technological, and doctrinal developments are forcing the courts to reconsider their media-specific approach to assessing the constitutionality of media regulation. In particular, it offers a comprehensive reevaluation of the continuing validity of the Broadcast Model of regulation, which contains features, such as licensing and direct content regulation, that normally would be considered paradigmatic violations of the First Amendment. Specifically, the analysis assesses the theoretical coherence of the traditional justification for extending a lesser degree of First Amendment protection to broadcasting than to other media (i.e., the physical scarcity of the electromagnetic spectrum) as well as …

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Inevitable Mens Rea, Stephen J. Morse Jan 2003

Inevitable Mens Rea, Stephen J. Morse

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No abstract provided.

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The Role Of Deterrence In The Formulation Of Criminal Law Rules: At Its Worst When Doing Its Best, Paul H. Robinson, John M. Darley Jan 2003

The Role Of Deterrence In The Formulation Of Criminal Law Rules: At Its Worst When Doing Its Best, Paul H. Robinson, John M. Darley

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For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime. Although this seems initially an intuitively compelling strategy, we are going to suggest that is a poor one; poor for two reasons. First, its effectiveness rests on a set of assumptions that on examination cannot be sustained. Second, the attempt to employ the strategy generates a good many crimogenic costs that are …

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Immigration Restrictions As Employment Discrimination, Howard F. Chang Jan 2003

Immigration Restrictions As Employment Discrimination, Howard F. Chang

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In this paper, I analyze restrictions on immigration to the United States as a form of government-mandated employment discrimination against aliens. Through our immigration laws, we deny aliens access to valuable employment opportunities that are open to natives. Under our immigration and nationality laws, we base this discrimination explicitly on circumstances of birth beyond the control of the alien. I argue that immigration restrictions thereby violate our liberal ideals of equality, which require a cosmopolitan perspective that extends equal concern to all individuals. Furthermore, even if we assume a less demanding moral theory that allows us to give the interests …

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The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo Jan 2003

The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo

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Recent Supreme Court decisions and political events have reinvigorated the debate over Congress's authority to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitutional Convention rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive in which all administrative authority is centralized in the President. More recently, the debate has turned towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. …

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The Value Of Giving Away Secrets, Oren Bar-Gill, Gideon Parchomovsky Jan 2003

The Value Of Giving Away Secrets, Oren Bar-Gill, Gideon Parchomovsky

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This Essay demonstrates the strategic advantage of narrow patents and unprotected publication of R&D output. Broad patents might stifle follow-on improvements by deterring potential cumulative innovators, who fear being held up by the initial inventor at the ex post licensing stage. By opting for a narrower patent and unprotected publication, the initial patent holder commits not to hold up follow-on inventors, thus promoting sequential innovation and generating lucrative licensing fees. Counterintuitively, in cumulative innovation settings, less protection benefits the patentee. This finding may serve as a counter-force to the much-lamented "anti-commons" problem. More generally, our theory demonstrates that the divergence …

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Final Report Of The Illinois Criminal Code Rewrite And Reform Commission, Paul H. Robinson, Michael T. Cahill Jan 2003

Final Report Of The Illinois Criminal Code Rewrite And Reform Commission, Paul H. Robinson, Michael T. Cahill

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The Governor of Illinois created a commission to examine the problems with Illinois criminal law and to rewrite the Illinois criminal code. This two-volume Final Report of the Illinois Criminal Code Rewrite and Reform Commission proposes a new criminal code, in volume 1, together with an official commentary, in volume 2, that explains each provision and how and why it differs from existing law. The introduction to the Report summarizes the reasons for and the importance of criminal code reform, and describes the techniques used in this rewrite project, including both the project’s drafting principles and the methods by which …

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Turf Struggles: Land, Sovereignty, And Sovereign Immunity, Catherine T. Struve Jan 2003

Turf Struggles: Land, Sovereignty, And Sovereign Immunity, Catherine T. Struve

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No abstract provided.

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Bringing Moral Values Into A Flawed Plea Bargaining System, Stephanos Bibas Jan 2003

Bringing Moral Values Into A Flawed Plea Bargaining System, Stephanos Bibas

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No abstract provided.

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The Bush Administration's Response To The International Criminal Court, Jean Galbraith Jan 2003

The Bush Administration's Response To The International Criminal Court, Jean Galbraith

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No abstract provided.

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Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz Jan 2003

Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz

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Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks …

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How Relevant Is Jury Rationality?, David A. Hoffman Jan 2003

How Relevant Is Jury Rationality?, David A. Hoffman

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This essay reviews Punitive Damages: How Juries Decide by Cass Sunstein, et al. The book provides a good example of a recent trend: the use of behavioralist research to justify surprisingly paternalistic legal reforms. While critics of behavioralism often contend that its theoretical foundations are weak, this approach is unlikely to prove an effective rejoinder in the new debate about what kinds of paternalism are made permissible by human "irrationality". A better approach: (1) notes the lack of a nexus between behavioralism and the supposed emergent necessity of paternalist reforms; and (2) suggests that juror unwillingness to apply cost-benefit formula …

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Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas Jan 2003

Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas

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No abstract provided.

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What Do We Mean By "Judicial Independence"?, Stephen B. Burbank Jan 2003

What Do We Mean By "Judicial Independence"?, Stephen B. Burbank

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In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …

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No Other Gods: Answering The Call Of Faith In The Practice Of Law, Howard Lesnick Jan 2003

No Other Gods: Answering The Call Of Faith In The Practice Of Law, Howard Lesnick

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No abstract provided.

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