Law Commons^™

Copyright And Product Differentiation, Christopher S. Yoo

All Faculty Scholarship

Existing economic analyses generally frame copyright as presenting a conflict between promoting efficient levels of access to creative works on the one hand and providing sufficient incentives to support their creation on the other. The supposed irreconcilability of the access-incentives tradeoff has led most scholars to regard copyright as a necessary evil and to advocate limiting copyright protection to the lowest level still sufficient to support creation of the work. In this Article, Professor Christopher Yoo breaks with the conventional wisdom and proposes a new approach to copyright law based on the economics of product differentiation. This differentiated products approach …

Lawsuit Abandonment Options In Possibly Frivolous Litigation Games, Peter H. Huang

All Faculty Scholarship

This paper develops a new theory of possibly frivolous litigation by focusing on a plaintiff's options to unilaterally abandon a lawsuit. Federal Rule of Civil Procedure 41(a)(1)(i) and its various state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. This paper's options approach to litigation, including quite possibly, frivolous litigation is placed in the context of the literature of economic models about litigation in general and frivolous litigation in particular. This paper demonstrates that possibly frivolous lawsuits will be filed and settled when the values of a plaintiff's options to unilaterally abandon litigation …

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

All Faculty Scholarship

No abstract provided.

Hong Kong's Endgame And The Rule Of Law (Ii): The Battle Over The People And The Business Community In The Transition To Chinese Rule (The Journal In Review: A Look Back At Twenty-Five Years Of The University Of Pennsylvania Journal Of International Economic Law), Jacques Delisle, Kevin P. Lane

University of Pennsylvania Journal of International Law

No abstract provided.

Dworkin, Precedent, Confidence, And Roe V. Wade, Gregory B. David

University of Pennsylvania Law Review

No abstract provided.

Countermajoritarian Hero Or Zero - Rethinking The Warren Court's Role In The Criminal Procedure Revolution, Corinna Barrett Lain

University of Pennsylvania Law Review

No abstract provided.

Racial Dimensions Of Credit And Bankruptcy, David A. Skeel Jr.

All Faculty Scholarship

No abstract provided.

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

All Faculty Scholarship

No abstract provided.

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

All Faculty Scholarship

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 …

Constitutional Choices: Legal Feminism And The Historical Dynamics Of Change, Serena Mayeri

All Faculty Scholarship

No abstract provided.

"The Shame Of It All": Stigma And The Political Disenfranchisement Of Formerly Convicted And Incarcerated Persons, Regina Austin

All Faculty Scholarship

No abstract provided.

"A Question Which Convulses A Nation": The Early Republic's Greatest Debate About The Judicial Review Power, Theodore Ruger

All Faculty Scholarship

No abstract provided.

Insuring Liability Risks, Tom Baker

All Faculty Scholarship

Recent dramatic increases in prices for medical liability insurance, directors and officers insurance, and other lines of commercial liability insurance, together with the exit of some insurers from those lines of business, has placed liability insurance on the public agenda. At the same time, asbestos and environmental losses continue to mount under general liability insurance policies sold long ago, when no one could have predicted the extent or cost of such losses. In combination, these and other related events have raised serious concerns about the insurability of liability risks and have prompted calls for dramatic efforts to roll back the …

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

All Faculty Scholarship

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 …

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

All Faculty Scholarship

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 …

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

All Faculty Scholarship

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 …

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

All Faculty Scholarship

No abstract provided.

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

All Faculty Scholarship

No abstract provided.

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

All Faculty Scholarship

No abstract provided.

Gaming Delaware, William W. Bratton

All Faculty Scholarship

No abstract provided.

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

All Faculty Scholarship

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 …

A Normative Theory Of Bankruptcy Law: Bankruptcy As (Is) Civil Procedure, Charles W. Mooney Jr.

All Faculty Scholarship

This paper develops a normative theory of bankruptcy law. The core of the theory is that bankruptcy law exists in order to maximize the recoveries of and benefits for those who have legal entitlements ("rightsholders") in respect of a financially distressed debtor. It recognizes that bankruptcy law in the United States is a branch of civil procedure, in general, and the jurisdiction of federal courts, in particular; hence, I call the theory "procedure theory." Procedure theory holds that it generally is wrong in bankruptcy to redistribute a debtor's wealth away from its rightsholders to benefit third-party interests, such as at-will …

Selling Mayberry: Communities And Individuals In Law And Economics, Gideon Parchomovsky, Peter Siegelman

All Faculty Scholarship

The small village of Cheshire, Ohio was recently acquired in its entirety by the firm whose giant power plant, located at the edge of town, caused it serious pollution problems. Although the plant was worth substantially more than the town, this was not a simple Coasean bargain. This paper combines an ethnographic methodology with theoretical insights from law and economics to present an empirical and theoretic challenge to the standard account of nuisance disputes. We explore the transaction in detail and explain what prevented collective action and holdout problems that are usually thought to hinder bargaining with groups. Specifically, we …

Exactly Backwards: Exceptionalism And The Federal Circuit, Polk Wagner

All Faculty Scholarship

This short essay critically evaluates the current proposals, most closely associated with Dan Burk and Mark Lemley, that the patent law should increasingly become technology-specific - that is, that the law should reflect different rules for different technological areas or industries. I make three points. The first is to point out that descriptive claims of a fundamental technological-exceptionalism (what I call "macro-exceptionalism") in the patent law are not well supported, once one sets aside the small factual variability ("micro-exceptionalism") built into the legal standards. Second, using empirical data from the development of claim construction jurisprudence and the patterns of en …

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

All Faculty Scholarship

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 …

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

All Faculty Scholarship

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 …

Torture, Necessity, And The Union Of Law & Philosophy, Kimberly Kessler Ferzan

All Faculty Scholarship

This brief essay critiques the torture memoranda's use of the necessity defense from the perspectives of criminal law doctrine, criminal law theory, and moral philosophy.

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

All Faculty Scholarship

No abstract provided.

Balancing Ease And Accuracy In Assessing Pharmaceutical Exclusion Payments, Herbert Hovenkamp, Mark D. Janis, Mark A. Lemley

All Faculty Scholarship

No abstract provided.

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

All Faculty Scholarship

No abstract provided.