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The Progressives: Racism And Public Law, Herbert J. Hovenkamp Nov 2017

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that ...


Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp Oct 2017

Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new ...


Amending Corporate Charters And Bylaws, Albert H. Choi, Geeyoung Min Aug 2017

Amending Corporate Charters And Bylaws, Albert H. Choi, Geeyoung Min

Faculty Scholarship at Penn Law

Recently, courts have embraced the contractarian theory that corporate charters and bylaws constitute a “contract” between the shareholders and the corporation and have been more willing to uphold bylaws unilaterally adopted by the directors. This paper examines the contractarian theory by drawing a parallel between amending charters and bylaws, on the one hand, and amending contracts, on the other. In particular, the paper compares the right to unilaterally amend corporate bylaws with the right to unilaterally modify contract terms, and highlights how contract law imposes various limitations on the modifying party’s discretion. More generally, when the relationship of contracting ...


Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson Aug 2017

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around ...


Trigger Crimes & Social Progress: The Tragedy-Outrage-Reform Dynamic In America, Paul H. Robinson, Sarah M. Robinson Aug 2017

Trigger Crimes & Social Progress: The Tragedy-Outrage-Reform Dynamic In America, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship at Penn Law

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are ...


The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow Aug 2017

The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow

Faculty Scholarship at Penn Law

Digital tokens have been used to raise substantial amounts of money. But little attention has been paid to the tax consequences surrounding their issuance and sale. There are significant potential tax liabilities lurking in the use of digital tokens. But, because of the anonymity inherent in the blockchain structures used for the issuance of tokens and payments for them, there is a significant question as to whether those tax liabilities will ever be collected.


The Use And Reliability Of Federal Nature Of Suit Codes, Christina L. Boyd, David A. Hoffman Jul 2017

The Use And Reliability Of Federal Nature Of Suit Codes, Christina L. Boyd, David A. Hoffman

Faculty Scholarship at Penn Law

When filing a civil case in a federal district court, attorneys must identify one, and only one, of ninety issue area nature of suit (NOS) codes that best describes their case. While this may seem like a trivial moment in litigation, the selection of this single descriptor has significant implications for court statistics, empirical research findings, and the allocation of resources to federal courts, including judgeships. Despite the import of NOS codes, there is little within the process of choosing them to guarantee reliability in the selected NOS codes. To assess how reliable NOS codes are, we examine a database ...


Report Of The Delaware Criminal Law Recodification Project, Paul H. Robinson, Matthew Kussmaul, Ilya Rudyak, Criminal Law Research Group Jul 2017

Report Of The Delaware Criminal Law Recodification Project, Paul H. Robinson, Matthew Kussmaul, Ilya Rudyak, Criminal Law Research Group

Faculty Scholarship at Penn Law

In 1973, during the “first wave” of American criminal law recodification efforts following the publication of the Model Penal Code, Delaware adopted a new criminal code. While it represented a dramatic improvement over the law it replaced, its initial clarity and utility were greatly diminished by subsequent piecemeal legislation. Delaware’s current criminal code is lengthy, inconsistent, and replete with duplicative and outdated offenses that impose disproportional punishments. This process of criminal code deterioration is not unique to Delaware and plagues other U.S. jurisdictions. In 2015, however, stakeholders in Delaware’s criminal justice system initiated a code revision process ...


The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp Jul 2017

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a ...


Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr Jun 2017

Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr

Faculty Scholarship at Penn Law

Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere. A few administrative agencies have already begun to adopt this technology, while ...


Are There Really "Plenty Of Shapiros Out There"? A Comment On The Courage Of Norma L. Shapiro, Reid K. Weisbord, David A. Hoffman Apr 2017

Are There Really "Plenty Of Shapiros Out There"? A Comment On The Courage Of Norma L. Shapiro, Reid K. Weisbord, David A. Hoffman

Faculty Scholarship at Penn Law

Norma Levy Shapiro, a trailblazing United States District Court Judge whose tenure on the Philadelphia federal bench spanned nearly 40 years, died July 22, 2016. This memoriam, written by two former law clerks, reflects fondly on Judge Shapiro’s judicial courage to follow her conscience even when doing so required making deeply unpopular decisions. To illustrate, this memoriam examines three of Judge Shapiro’s most memorable cases from her notable prisoner litigation docket.

First, in Harris v. Pernsley, Judge Shapiro’s principled but polarizing decisions in the Philadelphia prison overcrowding litigation elicited a now-familiar brand of snark from one (tremendous ...


Who Bleeds When The Wolves Bite? A Flesh-And-Blood Perspective On Hedge Fund Activism And Our Strange Corporate Governance System, Leo E. Strine Jr. Apr 2017

Who Bleeds When The Wolves Bite? A Flesh-And-Blood Perspective On Hedge Fund Activism And Our Strange Corporate Governance System, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

This paper examines the effects of hedge fund activism and so-called wolf pack activity on the ordinary human beings—the human investors—who fund our capital markets but who, as indirect of owners of corporate equity, have only limited direct power to ensure that the capital they contribute is deployed to serve their welfare and in turn the broader social good.

Most human investors in fact depend much more on their labor than on their equity for their wealth and therefore care deeply about whether our corporate governance system creates incentives for corporations to create and sustain jobs for them ...


Bail Reform: New Directions For Pretrial Detention And Release, Megan Stevenson, Sandra G. Mayson Mar 2017

Bail Reform: New Directions For Pretrial Detention And Release, Megan Stevenson, Sandra G. Mayson

Faculty Scholarship at Penn Law

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who ...


Draft Report Of The Somali Criminal Law Recodification Initiative, Paul H. Robinson, Criminal Law Research Group Mar 2017

Draft Report Of The Somali Criminal Law Recodification Initiative, Paul H. Robinson, Criminal Law Research Group

Faculty Scholarship at Penn Law

The Government of Somalia and the International Development Law Organization (IDLO) jointly commissioned the drafting of a modern criminal code for Somalia that embodies fundamental Islamic principles. The proposed code developed by the Criminal Law Research Group in cooperation with the major Somali players of the criminal justice process is a modern and comprehensive penal code incorporating numerous cutting-edge innovations in drafting forms, code structure, and criminal law doctrine. It is also the first and only such code incorporating the major tenets and principles of Islamic law as currently practiced in Somalia. This two-volume report to the Somali Working Group ...


Strict Liability's Criminogenic Effect, Paul H. Robinson Jan 2017

Strict Liability's Criminogenic Effect, Paul H. Robinson

Faculty Scholarship at Penn Law

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance.

But this analysis fails ...


Women And The Making Of The Tunisian Constitution, Rangita De Silva De Alwis, Anware Mnasri, Estee Ward Jan 2017

Women And The Making Of The Tunisian Constitution, Rangita De Silva De Alwis, Anware Mnasri, Estee Ward

Faculty Scholarship at Penn Law

This article attempts to glean from field interviews and secondary sources some of the sociopolitical complexities that underlay women’s engagement in Tunisia’s 2011-14 constitution-making process. Elucidating such complexities can provide further insight into how women’s engagement impacted the substance and enforceability of the constitution’s final text. We argue that, in spite of longstanding roadblocks to implement and enforce constitutional guarantees, the greater involvement of Tunisian women in the constitution drafting process did make a difference in the final gender provisions of Tunisia’s constitution. Although not all recommendations were adopted, Tunisian women were able to use ...


The Law Of The Test: Performance-Based Regulation And Diesel Emissions Control, Cary Coglianese, Jennifer Nash Jan 2017

The Law Of The Test: Performance-Based Regulation And Diesel Emissions Control, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

The Volkswagen diesel emissions scandal of 2015 not only pushed that company’s stock and retail sales into freefall, but also raised serious questions about the efficacy of existing regulatory controls. The same furtive actions taken by Volkswagen had been taken nearly twenty years earlier by other firms in the diesel industry. In that previous scandal, the U.S. Environmental Protection Agency (EPA) discovered that diesel truck engine manufacturers had, like Volkswagen would later do, programmed on-board computers to calibrate their engines one way to satisfy the required emissions test. Those manufacturers had also programmed the on-board computers to re-calibrate ...


Buying Monopoly: Antitrust Limits On Damages For Externally Acquired Patents, Erik N. Hovenkamp, Herbert J. Hovenkamp Jan 2017

Buying Monopoly: Antitrust Limits On Damages For Externally Acquired Patents, Erik N. Hovenkamp, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The “monopoly” authorized by the Patent Act refers to the exclusionary power of individual patents. That is not the same thing as the acquisition of individual patent rights into portfolios that dominate a market, something that the Patent Act never justifies and that the antitrust laws rightfully prohibit.

Most patent assignments are procompetitive and serve to promote the efficient commercialization of patented inventions. However, patent acquisitions may also be used to combine substitute patents from external patentees, giving the acquirer an unearned monopoly position in the relevant technology market. A producer requires only one of the substitutes, but by acquiring ...


The Triangle Of Law And The Role Of Evidence In Class Action Litigation, Jonah B. Gelbach Jan 2017

The Triangle Of Law And The Role Of Evidence In Class Action Litigation, Jonah B. Gelbach

Faculty Scholarship at Penn Law

In Tyson Foods v. Bouaphakeo, a "donning and doffing" case brought under Iowa state law incorporating the Fair Labor Standards Act's overtime pay provisions, the petitioners asked the Supreme Court to reject the use of statistical evidence in Rule 23(b)(3) class certification. To its great credit, the Court refused. In its majority opinion, the Court cited both the Federal Rules of Evidence and federal common law interpreting the FLSA. In this paper, I take a moderately deep dive into the facts of the case, and the three opinions penned by Justice Kennedy (for the Court), Chief Justice ...


Partial Takings, Abraham Bell, Gideon Parchomovsky Jan 2017

Partial Takings, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship at Penn Law

Partial takings allow the government to expropriate the parts of an asset it needs, leaving the owner the remainder. Both vital and common, partial takings present unique challenges to the standard rules of eminent domain. Partial takings may result in the creation of suboptimal, and even unusable, parcels. Additionally, partial takings create assessment problems that do not arise when parcels are taken as a whole. Finally, partial takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current jurisprudence fails to resolve these problems and can even exacerbate them ...


The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson Jan 2017

The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson

Faculty Scholarship at Penn Law

In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25 ...


Root Cause Analysis: A Tool To Promote Officer Safety And Reduce Officer Involved Shootings Over Time, John Hollway, Calvin Lee, Sean Smoot Jan 2017

Root Cause Analysis: A Tool To Promote Officer Safety And Reduce Officer Involved Shootings Over Time, John Hollway, Calvin Lee, Sean Smoot

Faculty Scholarship at Penn Law

This Article proposes the use of Root Cause Analysis (RCA) as a tool for reducing or preventing officer-involved shootings (OIS). RCA is a method of problem solving designed to identify core underlying factors that contributed to generate an undesirable outcome, organizational accident, or adverse event. Once these core underlying causative factors have been identified, participants in the system can fashion remedies that will prevent future occurrences of similar undesirable outcomes. RCA is part of a prospective, non-blaming “systems approach” to preventing error in complex human systems that has been successfully used to reduce errors in aviation, healthcare, manufacturing, nuclear power ...


The Value Of The Right To Exclude: An Empirical Assessment, Jonathan Klick, Gideon Parchomovsky Jan 2017

The Value Of The Right To Exclude: An Empirical Assessment, Jonathan Klick, Gideon Parchomovsky

Faculty Scholarship at Penn Law

Property theorists have long deemed the right to exclude fundamental and essential for the efficient use and allocation of property. Recently, however, proponents of the progressive property movement have called into question the centrality of the right to exclude, suggesting that it should be scaled back to allow the advancement of more socially beneficial uses of property. Surprisingly, the debate between the opponents and detractors of the right to exclude is devoid of any empirical evidence. The actual value of the right to exclude remains unknown.

In this Article, we set out to fill this void by measuring, for the ...


Democratizing Criminal Law: Feasibility, Utility, And The Challenge Of Social Change, Paul H. Robinson Jan 2017

Democratizing Criminal Law: Feasibility, Utility, And The Challenge Of Social Change, Paul H. Robinson

Faculty Scholarship at Penn Law

The notion of “democratizing criminal law” has an initial appeal because, after all, we believe in the importance of democracy and because criminal law is so important – it protects us from the most egregious wrongs and is the vehicle by which we allow the most serious governmental intrusions in the lives of individuals. Given criminal law’s special status, isn’t it appropriate that this most important and most intrusive governmental power be subject to the constraints of democratic determination?

But perhaps the initial appeal of this grand principle must give way to practical realities. As much as we are ...


The Poverty Of The Neuroscience Of Poverty: Policy Payoff Or False Promise?, Amy L. Wax Jan 2017

The Poverty Of The Neuroscience Of Poverty: Policy Payoff Or False Promise?, Amy L. Wax

Faculty Scholarship at Penn Law

A recent body of work in neuroscience examines the brains of people suffering from social and economic disadvantage. This article assesses claims that this research can help generate more effective strategies for addressing these social conditions and their effects. It concludes that the so-called neuroscience of deprivation has no unique practical payoff, and that scientists, journalists, and policy-makers should stop claiming otherwise. Because this research does not, and generally cannot, distinguish between innate versus environmental causes of brain characteristics, it cannot predict whether neurological and behavioral deficits can be addressed by reducing social deprivation. Also, knowledge of brain mechanisms yields ...


Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas Jan 2017

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate ...


The Separation Of Corporate Law And Social Welfare, William W. Bratton Jan 2017

The Separation Of Corporate Law And Social Welfare, William W. Bratton

Faculty Scholarship at Penn Law

A half century ago, corporate legal theory pursued an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. That vision was challenged on the ground during the 1980s, when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers. By 1990, it seemed like the institutions had won. But a different picture has emerged as the years have gone by. It is now clear that the market side really won the battle of the 1980s, succeeding in entering a wedge between corporate law and social ...


Seizing Family Homes From The Innocent: Can The Eighth Amendment Protect Minorities And The Poor From Excessive Punishment In Civil Forfeiture?, Louis S. Rulli Jan 2017

Seizing Family Homes From The Innocent: Can The Eighth Amendment Protect Minorities And The Poor From Excessive Punishment In Civil Forfeiture?, Louis S. Rulli

Faculty Scholarship at Penn Law

Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind—property—and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.

The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness ...


Intersectionality And The Constitution Of Family Status, Serena Mayeri Jan 2017

Intersectionality And The Constitution Of Family Status, Serena Mayeri

Faculty Scholarship at Penn Law

Marital supremacy—the legal privileging of marriage—is, and always has been, deeply intertwined with inequalities of race, class, gender, and region. Many if not most of the plaintiffs who challenged legal discrimination based on family status in the 1960s and 1970s were impoverished women, men, and children of color who made constitutional equality claims. Yet the constitutional law of the family is largely silent about the status-based impact of laws that prefer marriage and disadvantage non-marital families. While some lower courts engaged with race-, sex-, and wealth-based discrimination arguments in family status cases, the Supreme Court largely avoided recognizing ...


Appraising Merger Efficiencies, Herbert J. Hovenkamp Jan 2017

Appraising Merger Efficiencies, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Mergers of business firms violate the antitrust laws when they threaten to lessen competition, which generally refers to a price increase resulting from a reduction in output. However, a merger that threatens competition may also enable the post-merger firm to reduce its costs or improve its product. Attitudes toward mergers are heavily driven by assumptions about efficiency gains. If mergers of competitors never produced efficiency gains but simply reduced the number of competitors, a strong presumption against them would be warranted. We tolerate most mergers because of a background, highly generalized belief that most or at least many produce cost ...