Law Commons^™

Power Shifts In International Law: Structural Realignment And Substantive Pluralism, William W. Burke-White

All Faculty Scholarship

For most of the past sixty years, the United States and Europe have led, independently and collectively, the international legal system. Yet, the rise of the BRICs over the past decade has caused a profound transformation of global politics. This paper examines the implications of this redistribution of power for international law. While international lawyers have long debated the ability of law to constrain state behavior, this paper shifts the debate from the power of law to the role of power within international law. It first advances a structural argument that the diffusion, disaggregation, and issue-specific asymmetries in the distribution …

The American Criminal Code: General Defenses, Paul H. Robinson, Matthew Kussmaul, Camber Stoddard, Ilya Rudyak, Andreas Kuersten

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There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”

The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority …

The Cape Town Convention’S Improbable-But-Possible Progeny Part Two: Bilateral Investment Treaty-Like Enforcement Mechanism, Charles W. Mooney Jr.

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This Essay is Part Two of a two-part essay series that outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty-six Contracting States (fifty-eight of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

This Part of the Essay explores whether an investor-state dispute settlement (ISDS) feature …

Marital Supremacy And The Constitution Of The Nonmarital Family, Serena Mayeri

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Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy—the legal privileging of marriage—through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their …

Freedom From Violence And The Law: A Global Perspective In Light Of Chinese Domestic Violence Law, 2015, Rangita De Silva De Alwis, Jeni Klugman

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No abstract provided.

Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach

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In light of the gateway role that the pleading standard can play in our civil litigation system, measuring the empirical effects of pleading policy changes embodied in the Supreme Court's controversial Twombly and Iqbal cases is important. In my earlier paper, Locking the Doors to Discovery, I argued that in doing so, special care is required in formulating the object of empirical study. Taking party behavior seriously, as Locking the Doors does, leads to empirical results suggesting that Twombly and Iqbal have had substantial effects among cases that face Rule 12(b)(6) motions post-Iqbal. This paper responds to …

Sanctioning Freedoms: U.S. Sanctions Against Iran Affecting Information And Communications Technology Companies, Pinky P. Mehta

University of Pennsylvania Journal of International Law

No abstract provided.

Comptroller V. Wynne: Internal Consistency, A National Marketplace, And Limits On State Sovereignty To Tax, Michael S. Knoll, Ruth Mason

University of Pennsylvania Law Review Online

No abstract provided.

Two Timing The Law, Joshua Getzler

University of Pennsylvania Law Review Online

No abstract provided.

Depicting Minority Petitioners' Lives In Appellate Opinions, Kate Huddleston

University of Pennsylvania Law Review Online

No abstract provided.

Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman

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The commercial speech doctrine in First Amendment jurisprudence has frequently been criticized and is recognized as a highly contested, problematic and shifting landscape. Despite the compelling critique within constitutional law scholarship more broadly, Intellectual Property (“IP”) law has not only embraced the differential treatment of commercial speech, but has done so in ways that disfavor a much broader swath of speech than traditional commercial speech doctrine allows. One of the challenges for courts, litigants, and scholars alike is that the term “commercial” is used to mean multiple things, even within the same body of IP law. In this Article, I …

What Should Restatement (Fourth) Say About Treaty Interpretation?, Jean Galbraith

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Restatement (Second) and Restatement (Third) of Foreign Relations Law took notably different approaches to treaty interpretation, reflecting intervening changes in the legal landscape. This symposium contribution identifies five developments in international and domestic law since Restatement (Third). It then considers their import for the forthcoming Restatement (Fourth). Most importantly, it argues that Restatement (Fourth) should fully incorporate two articles on treaty interpretation from the Vienna Convention on the Law of Treaties into its black-letter provisions. Since the time of Restatement (Third), these articles have become central to international practice on treaty interpretation, and the principles they set forth are …

Moore’S Law, Metcalfe’S Law, And The Theory Of Optimal Interoperability, Christopher S. Yoo

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Many observers attribute the Internet’s success to two principles: Moore’s Law and Metcalfe’s Law. These precepts are often cited to support claims that larger networks are inevitably more valuable and that costs in a digital environment always decrease. This Article offers both a systematic description of both laws and then challenges the conventional wisdom by exploring their conceptual limitations. It also explores how alternative mechanisms, such as gateways and competition, can permit the realization benefits typically attributed to Moore’s Law and Metcalfe’s Law without requiring increases in network size.

Frames And Consensus Formation In International Relations: The Case Of Trafficking In Persons, Volha Charnysh, Paulette Lloyd, Beth A. Simmons

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This article examines the process of consensus formation by the international community regarding how to confront the problem of trafficking in persons. We analyze the corpus of United Nations General Assembly Third Committee resolutions to show that: (1) consensus around the issue of how to confront trafficking in persons has increased over time; and (2) the formation of this consensus depends upon how the issue is framed. We test our argument by examining the characteristics of resolutions’ sponsors and discursive framing concepts such as crime, human rights, and the strength of enforcement language. We conclude that the consensus-formation process in …

The Model Penal Code's Conceptual Error On The Nature Of Proximate Cause, And How To Fix It, Paul H. Robinson

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The Model Penal Code reconceptualized proximate cause to see it as part of the offense culpability requirements rather than as, in the traditional view, a minimum requirement for the strength of the connection between the actor's conduct and the prohibited result. That conceptual error, rare in the well-thought-out Model Code, invites misinterpretation and misapplication of the proximate cause provision, and can produce improper liability results. The failure is all the more unfortunate because the Model Code drafters did have an important improvement to offer in dealing with the challenging issue of proximate cause. Their jettison of fixed detailed rules in …

Brulotte'S Web, Herbert J. Hovenkamp

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Kimble v. Marvel Entertainment held that stare decisis required the Supreme Court to adhere to the half century old, much criticized rule in Brulotte v. Thys. Justice Douglas' Brulotte opinion concluded that license agreements requiring royalties measured by use of a patent after its expiration are unenforceable per se. The court need not inquire into market power nor anticompetitive effects, effects on innovation, and it may not accept any defense. Congress can change the rule if it wants to, but has resisted many invitations to do so.

Under Brulotte a hybrid license on patents and trade secrets requires a royalty …

Copyright Trust, Abraham Bell, Gideon Parchomovsky

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Collaborative production of expressive content accounts for an ever growing number of copyrighted works. Indeed, in the age of content sharing and peer production, collaborative efforts may have become the paradigmatic form of authorship. Surprisingly, though, copyright law continues to view the single author model as the dominant model of peer production. Copyright law’s approach to authorship is currently based on a hodgepodge of rigid doctrines that conflate ownership and control. The result is a binary system under which a contributor to a collaborative work is either recognized as an author with a full control and management rights or a …

Empowering Employees To Prevent Fraud In Nonprofit Organizations, John M. Bradley

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This Article examines the significant problem of fraud within nonprofit organizations and demonstrates that current anti-fraud measures do not adequately reflect the important role employees play in perpetuating or stopping fraudulent activity. Psychological and organizational behavior studies have established the importance of (1) participation and (2) peers in shaping the behavior of individuals within the organizational context. This Article builds on that research and establishes that to successfully combat fraud, organizations must integrate employees into the design, implementation, and enforcement of anti-fraud strategy and procedures. Engaged, empowered employees will be less likely to commit fraud and more likely to dissuade …

Bounties For Bad Behavior: Rewarding Culpable Whistleblowers Under The Dodd-Frank Act And Internal Revenue Code, Jennifer M. Pacella

University of Pennsylvania Journal of Business Law

No abstract provided.

Democracy In The Private Sector: The Rights Of Shareholders And Union Members, Michael J. Goldberg

University of Pennsylvania Journal of Business Law

No abstract provided.

Materiality And A Theory Of Legal Circularity, Wendy Gerwick Couture

University of Pennsylvania Journal of Business Law

No abstract provided.

Design Flaws In The Bankruptcy Regime: Lessons From The U.K. For Preventing A Resurgent Creditors' Race In The U.S., Jodie A. Kirshner

University of Pennsylvania Journal of Business Law

No abstract provided.

Take It Or Leave It: Unconscionability Of Mandatory Pre-Dispute Arbitration Agreements In The Securities Industry, William Alan Nelson Ii

University of Pennsylvania Journal of Business Law

No abstract provided.

Friends, Followers, And Fairness: Sec Fair Disclosure Requirements In A Changing Information Marketplace, Stan Polit

University of Pennsylvania Journal of Business Law

No abstract provided.

Desirable Resistance: Kahn V. M&F; Worldwide And The Fight For The Business Judgment Rule In Going-Private Mergers, Daniel Wilson

University of Pennsylvania Journal of Business Law

No abstract provided.

Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson

University of Pennsylvania Journal of Business Law

No abstract provided.

State Courts Lack Jurisdiction To Hear Securities Act Class Actions, But The Frequent Failure To Ask The Right Question Too Often Produces The Wrong Answer, Mitchell A. Lowenthal, Shiwon Choe

University of Pennsylvania Journal of Business Law

No abstract provided.

Worldwide Hedge Fund Activism: Dimensions And Legal Determinants, Dionysia Katelouzou

University of Pennsylvania Journal of Business Law

No abstract provided.

The Pathologies Of Banking Business As Usual, Hilary J. Allen

University of Pennsylvania Journal of Business Law

No abstract provided.

Making Prepaid Safe For Consumers: A Framework For Providing Deposit Insurance And Regulation E Protections, Catherine Lee Wilson

University of Pennsylvania Journal of Business Law

No abstract provided.