Law Commons^™

United States Antitrust Policy In An Age Of Ip Expansion, Herbert J. Hovenkamp

Faculty Scholarship at Penn Carey Law

The idea that there is a tension between antitrust and the intellectual property laws is readily exaggerated. The tension that exists results mainly from our uncertainty about the optimal amount and scope of IP protection. In general, antitrust draws clearer lines than intellectual property law does, although one should not push the point too far. Antitrust policy as manifested in the courts has achieved a fair amount of consensus today. By contrast, deep uncertainty remains about fundamental questions concerning the socially optimal outcome of IP disputes. In addition, while the antitrust statutes are for the most part public regarding provisions …

Evaluating Environmental Policies, Lori Snyder Bennear, Cary Coglianese

Faculty Scholarship at Penn Carey Law

For too long, environmental policymaking has relied on trial and error, without adequate or systematic learning from either the trials or the errors. Systematic program evaluation research has been remarkably scarce relative to the overall number of environmental policies adopted in the United States, as well as relative to the amount of evaluation research found in other fields, such as medicine, education, or transportation safety. This paper examines the role that program evaluation should play in environmental policy making, distinguishing such research from other types of analysis, including risk assessment, cost-effectiveness analysis, and cost-benefit analysis. It explains the kinds of …

Watching The Watchers: Surveillance, Transparency, And Political Freedom In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

Shifting Sands: The Limits Of Science In Setting Risk Standards, Cary Coglianese, Gary E. Marchant

Faculty Scholarship at Penn Carey Law

No abstract provided.

E-Rulemaking: Information Technology And The Regulatory Process, Cary Coglianese

Faculty Scholarship at Penn Carey Law

In order to channel interest in e-rulemaking toward effective and meaningful innovations in regulatory practice, the Kennedy School of Government's Regulatory Policy Program convened two major workshops, bringing together academic experts from computer sciences, law, and public management along with key public officials involved in managing federal regulation. This paper summarizes the discussions that took place at these workshops and develops an agenda for future research on information technology and the rulemaking process. It highlights the institutional challenges associated with using information technology in the federal regulatory process and suggests that in some cases existing rulemaking practices may need to …

Would Mandating Network Neutrality Help Or Hurt Broadband Competition? A Comment On The End-To-End Debate, Christopher S. Yoo

Faculty Scholarship at Penn Carey Law

No abstract provided.

Vultures Or Vanguards?: The Role Of Litigation In Sovereign Debt Restructuring, Jill E. Fisch, Caroline M. Gentile

Faculty Scholarship at Penn Carey Law

No abstract provided.

The New Federal Regulation Of Corporate Governance, Jill E. Fisch

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Epa's Risky Reasoning, Cary Coglianese, Gary E. Marchant

Faculty Scholarship at Penn Carey Law

Regulators must rely on science to understand problems and predict the consequences of regulatory actions, but science by itself cannot justify public policy decisions. We review the Environmental Protection Agency's efforts to justify recent changes to its National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, showing how the agency was able to cloak its policy judgments under the guise of scientific objectivity. By doing so, the EPA evaded accountability for a shifting and incoherent set of policy positions that will have major implications for public health and the economy. For example, even though EPA claimed to base …

Seeking Truth For Power: Informational Strategy And Regulatory Policy Making, Cary Coglianese, Richard Zeckhauser, Edward A. Parson

Faculty Scholarship at Penn Carey Law

Whether regulating mutual funds or chemical manufacturers, government's policy decisions depend on information possessed by industry. Yet it is not in any industry's interests to share information that will lead to costly regulations. So how do government regulators secure needed information from industry? Since information disclosed by any firm cannot be retrieved and can be used to regulate the entire sector, industry faces a collective action problem in maintaining silence. While collective silence is easy to maintain if all firms' interests are aligned, individual firms' payoffs for disclosure can vary due to heterogeneous effects of regulation and differing expectations about …

The Recently Revised Marriage Law Of China: The Promise And The Reality, Charles J. Ogletree Jr., Rangita De Silva De Alwis

Faculty Scholarship at Penn Carey Law

In April 2001, the Standing Committee of the Ninth National People's Congress (NPC), China's highest legislative body, passed the long-debated and much awaited amendments to the Marriage Law on the closing day of its twenty-first session. As stated by one PRC commentator, "In the 50 years since the founding of the New China, there has not been any law that has caused such a widespread concern for ordinary people."'

Even though the recent revisions to the marriage laws have been hailed as some of the most significant and positive changes in family law in China, thus far no empirical evaluation …

Agency Choice Of Policymaking Form, Elizabeth Magill

Faculty Scholarship at Penn Carey Law

An administrative agency delegated some task--protect the environment, assure the integrity of the securities markets, improve auto safety--might carry out that obligation by adopting a rule, bringing or deciding a case, or announcing its interpretation of the statute. Although agencies are unique institutions in this respect, this state of affairs generates little comment. This Article aims to rectify that by identifying, evaluating, and coming to terms with the phenomenon of agency choice of policymaking form. That phenomenon can be simply stated: The typical administrative agency is authorized to use a range of distinct policymaking forms to effectuate its statutory mandate …

Copyright And Product Differentiation, Christopher S. Yoo

Faculty Scholarship at Penn Carey Law

No abstract provided.

E-Rulemaking: Information Technology And The Regulatory Process: New Directions In Digital Government Research, Cary Coglianese

Faculty Scholarship at Penn Carey Law

Electronic rulemaking, or e-rulemaking, offers the potential to overcome some of the informational challenges associated with developing regulations. E-rulemaking refers to the use of digital technologies in the development and implementation of regulations. The use of these technologies may help streamline and improve regulatory management, such as by helping agency staff retrieve and analyze vast quantities of information from diverse sources. By taking better advantage of advances in digital technologies, agencies might also be able to increase the public's access to and involvement in rulemaking. Part I of this article details the rulemaking process, outlining the procedures agencies must currently …

Sovereign Debt Reform And The Interest Of Creditors, William W. Bratton, G. Mitu Gulati

Faculty Scholarship at Penn Carey Law

No abstract provided.

Gaming Delaware, William W. Bratton

Faculty Scholarship at Penn Carey Law

No abstract provided.

Human Rights And National Security: The Strategic Correlation, William W. Burke-White

Faculty Scholarship at Penn Carey Law

No abstract provided.

Econometric Analysis Of U.S. Abortion Policy: A Critical Review, Jonathan Klick

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Role Of Government In Corporate Governance, Cary Coglianese, Elizabeth K. Keating, Michael L. Michael, Thomas J. Healey

Faculty Scholarship at Penn Carey Law

Numerous corporate scandals in the past several years have fueled widespread debate over proposals for government action. The central challenge for government is how to restore corporate integrity and market confidence without overreacting and stifling the dynamism that underlies a strong economy. To examine this challenge, the Center for Business and Government's Regulatory Policy Program organized a conference in May 2004 on The Role of Government in Corporate Governance. The conference brought together government officials, business leaders, and academic researchers to discuss three fundamental public policy issues raised by recent corporate abuses. First, who should regulate corporate management - government …

Welfare Reform And Economic Freedom: Low-Income Mothers' Decisions About Work At Home And In The Market, Dorothy E. Roberts

Faculty Scholarship at Penn Carey Law

No abstract provided.

Inside The Black Box: How Should A Sovereign Bankruptcy Regime Be Structured?, Patrick Bolton, David A. Skeel Jr.

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Role Of Politics And Policy In Television Regulation, Christopher S. Yoo

Faculty Scholarship at Penn Carey Law

This article is a reply to Thomas Hazlett’s commentary on my article entitled, “Rethinking the Commitment to Free, Local Television.” Although politics and public choice theory represent an important approach for analyzing government actions, economic policy still exercises some influence over the regulation of television. On the one hand, we agree that the regulatory preference of free television and local programming is more a reflection of political considerations than economic policy and that the importance of promoting communities of interest over geographic communities, and the potential for new services such as Digital Audio Radio Services to benefit consumers. On the …

Fear Assessment: Cost-Benefit Analysis And The Pricing Of Fear And Anxiety, Matthew D. Adler

Faculty Scholarship at Penn Carey Law

Risk assessment is now a common feature of regulatory practice, but fear assessment is not. In particular, environmental, health and safety agencies such as EPA, FDA, OSHA, NHTSA, and CPSC, commonly count death, illness and injury as costs for purposes of cost-benefit analysis, but almost never incorporate fear, anxiety or other welfare-reducing mental states into the analysis. This is puzzling, since fear and anxiety are welfare setbacks, and since the very hazards regulated by these agencies - air or water pollutants, toxic waste dumps, food additives and contaminants, workplace toxins and safety threats, automobiles, dangerous consumer products, radiation, and so …

Of Patents And Path Dependency: A Comment On Burk And Lemley, R. Polk Wagner

Faculty Scholarship at Penn Carey Law

No abstract provided.

Rules, Principles, And The Accounting Crisis In The United States, William W. Bratton

Faculty Scholarship at Penn Carey Law

The Sarbanes-Oxley Act and the Securities Exchange Commission move too quickly ·when they prod the Financial Accounting Standards Board, the standard setter for US GAAP, to move immediately to a principles-based system. Priorities respecting reform of corporate reporting in the US need to be ordered more carefully. Incentive problems impairing audit performance should be solved first through institutional reform insulating the audit from the negative impact of rent-seeking and solving adverse selection problems otherwise affecting audit practice. So long as auditor independence and management incentives respecting accounting treatments remain suspect. the US reporting system holds out no actor plausibly positioned …

Atypical Pneumonia And Ambivalent Law And Politics: Sars And The Response To Sars In China, Jacques Delisle

Faculty Scholarship at Penn Carey Law

No abstract provided.

Pari Passu And A Distressed Sovereign's Rational Choices, William W. Bratton

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Social And Moral Cost Of Mass Incarceration In African American Communities, Dorothy E. Roberts

Faculty Scholarship at Penn Carey Law

No abstract provided.

Bankruptcy's Home Economics, David A. Skeel Jr.

Faculty Scholarship at Penn Carey Law

This essay began its life as a commentary on Elizabeth Warren’s article “The New Economics of the American Family” at the American Bankruptcy Institute's 25th Anniversary Symposium of the Bankruptcy Code in 2003. (Both the Warren article and my commentary were published in the symposium in the American Bankruptcy Institute Law Review.) “The New Economics of the American Family” was drawn in many respects from then-Professor Warren’s co-authored book, The Two Income Trap. The essay refers to both, though it puts particular emphasis on the article. The essay begins by briefly describing the basic thesis of the article-- …

Risk Regulation, Endogenous Public Concerns, And The Hormones Dispute: Nothing To Fear But Fear Itself?, Howard F. Chang

Faculty Scholarship at Penn Carey Law

The dispute between the United States and the European Union (EU) regarding the EU ban on meat imports treated with hormones raises the question: How should regulators respond to public fears that are disproportionate to the risks as evaluated by experts in risk assessment? If regulators cannot eliminate public fears through education, then there is some social benefit from regulations that reduce the feared risks and thereby reduce public anxiety and distortions in behavior flowing from that anxiety. These considerations imply that we cannot simply ignore public fears that technocrats would deem "irrational." On the other hand, there is the …