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University of Pennsylvania Carey Law School

2012

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Articles 1 - 30 of 274

Full-Text Articles in Law

Against All Odds: Community And Policy Solutions To Address The American Youth Crisis, Kisha Bird Dec 2012

Against All Odds: Community And Policy Solutions To Address The American Youth Crisis, Kisha Bird

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Mediation Of Special Education Disputes In Pennsylvania, Sonja Kerr, Jenai St. Hill Dec 2012

Mediation Of Special Education Disputes In Pennsylvania, Sonja Kerr, Jenai St. Hill

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Rights, Respect, Responsibility: Advancing The Sexual And Reproductive Health And Rights Of Young People Through International Human Rights Law, Janine Kossen Dec 2012

Rights, Respect, Responsibility: Advancing The Sexual And Reproductive Health And Rights Of Young People Through International Human Rights Law, Janine Kossen

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Colorblind Education Reform: How Race-Neutral Policies Perpetuate Segregation And Why Voluntary Integration Should Be Put Back On The Reform Agenda, Jamie Gullen Dec 2012

Colorblind Education Reform: How Race-Neutral Policies Perpetuate Segregation And Why Voluntary Integration Should Be Put Back On The Reform Agenda, Jamie Gullen

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Youth Courts: Lawyers Helping Students Make Better Decisions, Gregory Volz, David Keller Trevaskis, Rachel Miller Dec 2012

Youth Courts: Lawyers Helping Students Make Better Decisions, Gregory Volz, David Keller Trevaskis, Rachel Miller

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Antitrust And The 'Filed Rate' Doctrine: Deregulation And State Action, Herbert J. Hovenkamp Dec 2012

Antitrust And The 'Filed Rate' Doctrine: Deregulation And State Action, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In its Keogh decision the Supreme Court held that although the Interstate Commerce Act did not exempt railroads from antitrust liability, a private plaintiff may not recover treble damages based on an allegedly monopolistic tariff rate filed with a federal agency. Keogh very likely grew out of Justice Brandeis's own zeal for regulation and his concern for the protection of small business — in this case, mainly shippers whom he felt were protected from discrimination by filed rates. The Supreme Court's Square D decision later conceded that Keogh may have been “unwise as a matter of policy,” but reaffirmed ...


Antitrust And Nonexcluding Ties, Herbert J. Hovenkamp Dec 2012

Antitrust And Nonexcluding Ties, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Notwithstanding hundreds of court decisions, tying arrangements remain enigmatic. Conclusions that go to either extreme, per se legality or per se illegality, invariably make simplifying assumptions that frequently do not obtain. For example, by ignoring double marginalization or tying product price cuts it becomes very easy to prove that a wide range of ties are anticompetitive. At the other extreme, by ignoring foreclosure possibilities one can readily conclude that ties are invariably benign.

Ties have historically been thought to produce two kinds of competitive harm: “leverage,” or extraction; and foreclosure, or exclusion. The two theories are not mutually exclusive. Indeed ...


Comparative Antitrust Federalism: Review Of Cengiz, Antitrust Federalism In The Eu And The Us, Herbert J. Hovenkamp Dec 2012

Comparative Antitrust Federalism: Review Of Cengiz, Antitrust Federalism In The Eu And The Us, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay reviews Firat Cengiz’s book Antitrust Federalism in the EU and the US (2012), which compares the role of federalism in the competition law of the European Union and the United States. Both of these systems are “federal,” of course, because both have individual nation-states (Europe) or states (US) with their own individual competition provisions, but also an overarching competition law that applies to the entire group. This requires a certain amount of cooperation with respect to both territorial reach and substantive coverage.

Cengiz distinguishes among “markets,” “hierarchies,” and “networks” as forms of federalism. Markets are the ...


Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank Dec 2012

Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank

Faculty Scholarship at Penn Law

In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or state ...


Pure Software In An Impure World? Winny, Japan's First P2p Case, Ridwan Khan Dec 2012

Pure Software In An Impure World? Winny, Japan's First P2p Case, Ridwan Khan

East Asia Law Review

In 2011, Japan’s Supreme Court decided its first contributory infringement peer-to-peer case, involving Isamu Kaneko and his popular file-sharing program, Winny. This program was used in Japan to distribute many copyrighted works, including movies, video games, and music. At the district court level, Kaneko was found guilty of contributory infringement, fined 1.5 million yen, and sentenced to one year in prison. However, the Osaka High Court reversed the district court and found for Kaneko. The High Court decision was then affirmed by the Supreme Court, which settled on a contributory infringement standard based on fault, similar to the ...


War On The Korean Peninsula? Application Of Jus In Bello In The Cheonan And Yeonpyeong Island Attacks, Seunghyun Sally Nam Dec 2012

War On The Korean Peninsula? Application Of Jus In Bello In The Cheonan And Yeonpyeong Island Attacks, Seunghyun Sally Nam

East Asia Law Review

The media often reports that the Korean Peninsula is ‘technically at war’, but there is still uncertainty surrounding the issue of whether the Korean Peninsula is, as a matter of law, in a state of war. This legal issue has now become particularly important as the International Criminal Court released a statement on December 6, 2010 in which it opened a preliminary examination of whether the sinking of the South Korean warship, the Cheonan, which was found to be a result of a torpedo attack from a North Korean submarine, and artillery attacks from North Korea that occurred near Yeonpyeong ...


Can The States Keep Secrets From The Federal Government, Robert A. Mikos Dec 2012

Can The States Keep Secrets From The Federal Government, Robert A. Mikos

University of Pennsylvania Law Review

No abstract provided.


Tailoring Discovery: Using Nontranssubstantive Rules To Reduce Waste And Abuse, Joshua M. Koppel Dec 2012

Tailoring Discovery: Using Nontranssubstantive Rules To Reduce Waste And Abuse, Joshua M. Koppel

University of Pennsylvania Law Review

No abstract provided.


Take Care That The Laws Be Faithfully Litigated, Parker Rider-Longmaid Dec 2012

Take Care That The Laws Be Faithfully Litigated, Parker Rider-Longmaid

University of Pennsylvania Law Review

No abstract provided.


The Striking Success Of The National Labor Relations Act, Michael L. Wachter Dec 2012

The Striking Success Of The National Labor Relations Act, Michael L. Wachter

Faculty Scholarship at Penn Law

Although often viewed as a dismal failure, the National Labor Relations Act (NLRA) has been remarkably successful. While the decline in private sector unionization since the 1950s is typically viewed as a symbol of this failure, the NLRA has achieved its most important goal: industrial peace.

Before the NLRA and the 1947 Taft-Hartley Amendments, our industrial relations system gave rise to frequent and violent strikes that threatened the nation’s stability. For example, in the late 1870s, the Great Railroad Strike spread throughout a number of major cities. In Pittsburg alone, strikes claimed 24 lives, nearly 80 buildings, and over ...


Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen Dec 2012

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

Faculty Scholarship at Penn Law

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a ...


Courtroom Drama With Chinese Characteristics: A Comparative Approach To Legal Process In Chinese Cinema, Stephen Mcintyre Dec 2012

Courtroom Drama With Chinese Characteristics: A Comparative Approach To Legal Process In Chinese Cinema, Stephen Mcintyre

East Asia Law Review

While previous “law and film” scholarship has concentrated mainly on Hollywood films, this article examines legal themes in Chinese cinema. It argues that Chinese films do not simply mimic Western conventions when portraying the courtroom, but draw upon a centuries-old, indigenous tradition of “court case” (gong’an) melodrama. Like Hollywood cinema, gong’an drama seizes upon the dramatic and narrative potential of legal trials. Yet, while Hollywood trial films turn viewers into jurors, pushing them back and forth between the competing stories that emerge from the adversarial process, gong’an drama eschews any recognition of opposing narratives, instead centering on ...


Neoclassical Labor Economics: Its Implications For Labor And Employment Law, Michael L. Wachter Dec 2012

Neoclassical Labor Economics: Its Implications For Labor And Employment Law, Michael L. Wachter

Faculty Scholarship at Penn Law

Whereas law and economics appears throughout business law, it never caught on in legal commentary about labor and employment law. A major reason is that the goals of the National Labor Relations Act (NLRA), the country’s foundational labor law, are at war with basic principles of economics. The lack of integration is unfortunate if understandable. Notwithstanding the NLRA’s normative goal to keep wages out of competition, economic analysis applies as centrally to labor markets as to any other market.

One of the NLRA’s primary goals is to equalize bargaining power. Its drafters envisioned achieving this goal through ...


Leaving The Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, And Their Consequences, Stephen B. Burbank, S. Jay Plager, Gregory Ablavsky Dec 2012

Leaving The Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, And Their Consequences, Stephen B. Burbank, S. Jay Plager, Gregory Ablavsky

Faculty Scholarship at Penn Law

This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy enabled the authors to describe more precisely than previous scholarship such matters of interest as the role that judges in senior status play in the contemporary federal judiciary, the rate at which federal judges are retiring from the bench (rather than assuming, or after assuming, senior status), and the reasons why some federal judges remain in regular active service instead of ...


Innovation And Competition Policy, Ch. 5 (2d Ed): Competition And Innovation In Copyright And The Dmca, Herbert J. Hovenkamp Nov 2012

Innovation And Competition Policy, Ch. 5 (2d Ed): Competition And Innovation In Copyright And The Dmca, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA ...


The Effect Of Privately Provided Police Services On Crime, John M. Macdonald, Jonathan Klick, Ben Grunwald Nov 2012

The Effect Of Privately Provided Police Services On Crime, John M. Macdonald, Jonathan Klick, Ben Grunwald

Faculty Scholarship at Penn Law

Research demonstrates that police reduce crime. The implication of this research for investment in a particular form of extra police services, those provided by private institutions, has not been rigorously examined. We capitalize on the discontinuity in police force size at the geographic boundary of a private university police department to estimate the effect of the extra police services on crime. Extra police provided by the university generate approximately 45-60 percent fewer crimes in the surrounding neighborhood. These effects appear to be similar to other estimates in the literature.


Diversity Within Racial Groups And The Constitutionality Of Race-Conscious Admissions, Vinay Harpalani Nov 2012

Diversity Within Racial Groups And The Constitutionality Of Race-Conscious Admissions, Vinay Harpalani

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Equality Federalism: A Solution To The Marriage Wars, Mae Kuykendall Nov 2012

Equality Federalism: A Solution To The Marriage Wars, Mae Kuykendall

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Can You Handle The Truth? Compelled Commercial Speech And The First Amendment, Jenniver M. Keighley Nov 2012

Can You Handle The Truth? Compelled Commercial Speech And The First Amendment, Jenniver M. Keighley

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Due Process Limitations On Rule 23(B)(2) Monetary Remedies: Examining The Source Of The Limitation In Wal-Mart Stores, Inc. V. Dukes, Megan E. Barriger Nov 2012

Due Process Limitations On Rule 23(B)(2) Monetary Remedies: Examining The Source Of The Limitation In Wal-Mart Stores, Inc. V. Dukes, Megan E. Barriger

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Padilla V. Kentucky: Overcoming Teague's "Watershed" Exception To Non-Retroactivity, Jennifer H. Berman Nov 2012

Padilla V. Kentucky: Overcoming Teague's "Watershed" Exception To Non-Retroactivity, Jennifer H. Berman

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas Nov 2012

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas

Faculty Scholarship at Penn Law

Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed that ...


The Missed Opportunity Of United States V. Jones: Commercial Erosion Of Fourth Amendment Protection In A Post-Google Earth World, Mary G. Leary Nov 2012

The Missed Opportunity Of United States V. Jones: Commercial Erosion Of Fourth Amendment Protection In A Post-Google Earth World, Mary G. Leary

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh Nov 2012

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the ...


Reconstruction And Resistance, Kermit Roosevelt Iii Nov 2012

Reconstruction And Resistance, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and ...