Law Commons^™

Reflections Of An Unapologetic Safety Regulator, Robert S. Adler

The Regulatory Review in Depth

No abstract provided.

Supreme Illegitimacy, Eric W. Orts

The Regulatory Review in Depth

No abstract provided.

Negligence And Culpability: Reflections On Alexander And Ferzan, Mitchell N. Berman

All Faculty Scholarship

Philosophers of criminal punishment disagree about whether infliction of punishment for negligence can be morally justified. One contending view holds that it cannot be because punishment requires culpability and culpability requires, at a minimum, advertence to the facts that make one’s conduct wrongful. Larry Alexander and Kim Ferzan are prominent champions of this position. This essay challenges that view and their arguments for it. Invoking a conceptual distinction between an agent’s being blameworthy for an act and their deserving punishment (or suffering) for that act, it explains that an agent can be blameworthy for negligent conduct, and thus liable to …

Neutralizing The Atmosphere, Shelley Welton

All Faculty Scholarship

“Net zero” has rapidly become the new organizing paradigm of climate change law. In the past few years, thousands of countries, companies, states, and cities have developed pledges that promise by a set date—typically around 2050—that any carbon they emit will be counterbalanced by capturing an equal amount of carbon out of the atmosphere. Collectively, these pledges now cover more than 91% of the global economy. This widespread adoption of scientifically aligned climate policy appears on its surface like a cause for celebration. However, concerns are mounting. To date, critiques of net zero have centered on what this Feature terms …

Beyond Guantanamo: Restoring The Rule Of Law To The Law Of War, Claire Oakes Finkelstein, Harvey Rishikof

All Faculty Scholarship

In June 2021, CERL assembled a working group to address the difficult legal and policy questions that arise in anticipation of renewed attempts to close the Guantánamo detention facility. The CERL 2021 Working Group on Guantánamo Bay is co-chaired by Claire Finkelstein, a professor of criminal and national security law at the University of Pennsylvania and CERL’s faculty director, and Harvey Rishikof, former convening authority for the commissions and a visiting professor of national security law at Temple University. The group comprises over thirty national security and counterterrorism experts, retired military officers, lawyers, former Department of Justice officials, psychologists, psychiatrists, …

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

All Faculty Scholarship

Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …

Purpose Proposals, Jill E. Fisch

All Faculty Scholarship

Repurposing the corporation is the hot issue in corporate governance. Commentators, investors and increasingly issuers, maintain that corporations should shift their focus from maximizing profits for shareholders to generating value for a more expansive group of stakeholders. Corporations are also being called upon to address societal concerns – from climate change and voting rights to racial justice and wealth inequality.

The shareholder proposal rule, Rule 14a–8, offers one potential tool for repurposing the corporation. This Article describes the introduction of innovative proposals seeking to formalize corporate commitments to stakeholder governance. These “purpose proposals” reflect a new dynamic in the debate …

Reining In Repeat Offenders, Rohit Chopra

The Regulatory Review in Depth

No abstract provided.

Qualifying Prosecutorial Immunity Through Brady Claims, Paul Heaton, Brian M. Murray, Jon B. Gould

All Faculty Scholarship

This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice …

Board Committee Charters And Esg Accountability, Lisa Fairfax

All Faculty Scholarship

We are currently witnessing a sharp increase in corporate attention on environmental, sustainability, and governance (“ESG”). The steep rise in corporate focus on ESG has prompted considerable criticism, not only from those concerned about how best to ensure that corporations are held accountable for their ESG commitments, but also from those who strenuously insist that corporate commitment to ESG is merely rhetorical or otherwise merely a passing fad. In an effort to shed light on the concerns around ESG accountability, and gain perspective about the potential illusory or short-term nature of ESG, I conducted my own survey of the committee …

Race And Regulation Podcast Episode 10 - Administrative Law's Racial Blind Spot, Daniel E. Ho

Penn Program on Regulation Podcasts

Administrative law has a racial blind spot, argues Daniel E. Ho of Stanford Law School. Judges have long set aside agency actions when government officials have failed to consider the differential impacts of their policy decisions on subgroups of business owners, park visitors, and even animals—but not when they have failed to consider differential impacts based on race or ethnicity. In this episode, Professor Ho traces how civil rights and administrative law have diverged over the past fifty years, as U.S. court decisions have removed issues of racial discrimination from administrative law’s purview. He concludes by discussing reforms that could …

Brief Of Professor Tobias B. Wolff As Amicus Curiae In Support Of Respondents In U.S. Supreme Court Case 303 Creative Llc V. Elenis, Tobias Barrington Wolff

All Faculty Scholarship

This amicus brief, filed in support of the Colorado anti-discrimination law in 303 Creative v. Elenis, is the product of about ten years of work on these First Amendment issues as a scholar and advocate. Its arguments rest on a core proposition: When a business sells goods and services in the public marketplace, it is not a street corner speaker engaging in a personal act of expression, it is a vendor engaged in commerce. Customers do not pay for the privilege of promoting a commercial vendor’s own personal message, they pay for goods and services chosen by them and …

Race And Regulation Podcast Episode 9 - Board Diversity And Community Lending, Brian D. Feinstein

Penn Program on Regulation Podcasts

The racial wealth gap in the U.S. is driven in part by a lack of access to credit among communities of color. But as Brian D. Feinstein of the Wharton School relays in this episode, new empirical research indicates that increasing the level of diversity on regional Federal Reserve Bank boards improves credit access for underbanked minority communities. He draws out the major implications of this research not only for narrowing the racial wealth gap, but for understanding the role that diversity in institutional leadership, including on corporate boards, can play in advancing racial equity more broadly.

Are All Risks Created Equal? Rethinking The Distinction Between Legal And Business Risk In Corporate Law, Adi Libson, Gideon Parchomovsky

All Faculty Scholarship

Should corporate legal risk be treated similarly to corporate business risks? Currently, the law draws a clear-cut distinction between the two sources of risk, permitting the latter type of risk and banning the former. As a result, fiduciaries are shielded from personal liability in the case of business risk and are entirely exposed to civil and criminal liability that arises from legal risk-taking. As corporate law theorists have underscored, the differential treatment of business and legal risk is highly problematic from the perspective of firms and shareholders. To begin with, legal risk cannot be completely averted or eliminated. More importantly, …

Selling Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust enforcers and its other defenders have never done a good job of selling their field to the public. That is not entirely their fault. Antitrust is inherently technical, and a less engaging discipline to most people than, say, civil rights or criminal law. The more serious problem is that when the general press does talk about antitrust policy it naturally gravitates toward the fringes, both the far right and the far left. Extreme rhetoric makes for better press than the day-to-day operations of a technical enterprise. The extremes are often stated in overdramatized black-and-white terms that avoid the real …

Race And Regulation Podcast Episode 8 - Vaccination Equity By Design, Olatunde C. Johnson

Penn Program on Regulation Podcasts

Racial disparities have occurred in COVID-19’s health effects and fatalities. They have persisted through the rollout of COVID-19 vaccines too, which saw a greater uptake in socioeconomically privileged segments of the population. These outcomes did not have to occur. Olatunde Johnson of Columbia Law School discusses how regulators could have made different policy design choices to promote greater equity in the vaccine rollout—and she draws key lessons not only for the next public health emergency but also for improving racial equity more generally.

Building Better Compliance, Cary Coglianese

All Faculty Scholarship

A response to Dorothy Lund & Natasha Sarin: "Corporate Crime and Punishment: An Empirical Study"

Race And Regulation Podcast Episode 7 - Citizenship, Race, And Political Inequality, Ming Hsu Chen

Penn Program on Regulation Podcasts

Formal citizenship requirements for political participation excludes not only noncitizens, but also many individuals from racial communities perpetually seen as foreigners. Ming Hsu Chen of the University of California Hastings College of Law looks at regulatory barriers, such as voter ID laws, that inhibit both racial minorities and non-citizens from participating equally in the American political process. She offers proposals for regulatory changes that would create a more equitable political order.

President Biden's Executive Order On Competition: An Antitrust Analysis, Herbert J. Hovenkamp

All Faculty Scholarship

In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time …

Race And Regulation Podcast Episode 6 - Race, Social Inequalities, And Clinical Drug Trials, Jill A. Fisher

Penn Program on Regulation Podcasts

As mandated by the U.S. Food and Drug Administration, clinical trials for new pharmaceuticals enroll healthy people as paid research participants to test for drug safety and tolerability. But the social injustices from these trials are too often overlooked. Drawing on her award-winning book, Adverse Events, Jill Fisher of UNC-Chapel Hill’s Center for Bioethics explains how clinical drug trials attract disproportionate participation by racial and ethnic minorities who then disproportionately assume risks of participating in these trials, often just to stay financially afloat.

Youth And Families Matter: Reconstructing The System One Youth At A Time From The Expertise Of Youth Advocates, Marcia Hopkims, Kara Finck, British Christopher, Duane Price, Anthony Simpson, Ishale Watson

All Faculty Scholarship

A group of youth advocates were tasked with discussing their experiences in the child welfare system as children and their perspectives on reforming the system. Informed by their experiences in foster care and work with the Juvenile Law Center, the youth advocates addressed issues of racism, reform, abolition, and child well-being. They concluded that meaningful reform of the child welfare system mandates a radical realignment of power to provide full participation, collaboration, and shared decision-making authority to families impacted by the child welfare system.

Diversity And Reimagining The Internal-External Dichotomy, Elizabeth Pollman

All Faculty Scholarship

In Duty and Diversity, two distinguished voices in business law, Professor Chris Brummer and former Chief Justice of the Delaware Supreme Court Leo E. Strine, Jr., make the case that corporate law provides “critical tools” to support corporations in taking effective action to help reduce racial and gender inequality. Specifically, they argue that “the pursuit of Diversity, Equity, and Inclusion is solidly authorized by the operation of traditional corporate law principles and can even be easily squared with the views of those who embrace what has come to be known as ‘shareholder primacy.’ ”Examining demographics in corporate boards and executive …

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

All Faculty Scholarship

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the pandemic response by …

Race And Regulation Podcast Episode 5 - Racial Equity And Data Privacy, Anita L. Allen

Penn Program on Regulation Podcasts

In this episode, Anita Allen, an internationally renowned expert on the philosophical dimensions of privacy and data protection law, reveals how race-neutral privacy laws in the U.S. have failed to address the unequal burdens faced online by Black Americans, whose personal data are used in racially discriminatory ways. Professor Allen articulates what she terms an African American Online Equity Agenda to guide the development of race-conscious privacy regulations that can better promote racial justice in the modern digital economy.

Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese

All Faculty Scholarship

Following the June 2019 explosion at the Philadelphia Energy Solutions (PES) refinery, the city of Philadelphia now confronts major challenges associated with the future of the refinery site. Whether the site is reopened as a refinery or other chemical-processing operation, or redeveloped for other uses, the city will face challenges endemic to all kinds of public policy issues: complexity, uncertainty, dynamism, tradeoffs, and value choices. This testimony, delivered to the City of Philadelphia Refinery Advisory Group’s Environment Committee, offers three main suggestions to help guide Philadelphia officials in dealing with the future of the PES refinery site. First, city officials …

Municipal Fiber In The United States: A Financial Assessment, Christopher S. Yoo, Jesse Lambert, Timothy P. Pfenninger

All Faculty Scholarship

Despite growing interest in broadband provided by municipally owned and operated fiber-to-the-home networks, the academic literature has yet to undertake a systematic assessment of these projects’ financial performance. To fill this gap, we utilize municipalities’ official reports to offer an empirical evaluation of the financial performance of every municipal fiber project in the U.S. operating in 2010 through 2019. An analysis of the actual performance of the resulting fifteen-project panel dataset reveals that none of the projects generated sufficient nominal cash flow in the short run to maintain solvency without infusions of additional cash from outside sources or debt relief. …

Antitrust Liability For False Advertising: A Response To Carrier & Tushnet, Susannah Gagnon, Herbert J. Hovenkamp

All Faculty Scholarship

This reply briefly considers when false advertising can give rise to antitrust liability. The biggest difference between tort and antitrust liability is that the latter requires harm to the market, which is critically dependent on actual consumer response. As a result, the biggest hurdle a private plaintiff faces in turning an act of false advertising into an antitrust offense is proof of causation – to what extent can a decline in purchase volume or other market rejection be specifically attributed to the defendant’s false claims? That requirement dooms the great majority of false advertising claims attacked as violations of the …

Race And Regulation Podcast Episode 4 - Creating An Inclusive National Politics, Guy-Uriel Charles

Penn Program on Regulation Podcasts

Throughout American history, racial inequality and political inequality have gone hand-in-hand. Building a truly representative democracy today and in the future will depend on ending racial discrimination in voting. In this episode, election law expert Guy-Uriel Charles of Harvard Law School argues that voting cannot be made a universal and fundamental right for all without nationalizing American election law and blocking states from adopting rules for redistricting and voting that exclude and disenfranchise minority voters. This episode is based on Prof. Charles’s 2021 Distinguished Lecture on Regulation at the University of Pennsylvania Carey Law School.

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

All Faculty Scholarship

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 …

How A Pandemic Plus Recession Foretell The Post-Job Based Horizon Of Health Insurance, Allison K. Hoffman

All Faculty Scholarship

For many years, the health insurance that people received through their jobs was considered the gold standard, so much so that it came to be called “Cadillac coverage.” Just as Cadillac has lost its sheen, so has job-based health insurance coverage in many cases. This decline predated the COVID-19 pandemic, yet it has been, and will continue to be, hastened by it. The changes to job-based coverage have prompted people to ask: what’s next? This Article suggests that the lessons from the pandemic could offer an opportunity fundamentally to rethink the way to pay for healthcare in the United States, …