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Full-Text Articles in Law

Cities And Provinces In A World Of States: Subnational Governments In The International Legal System, William W. Burke-White Sep 2021

Cities And Provinces In A World Of States: Subnational Governments In The International Legal System, William W. Burke-White

Faculty Scholarship at Penn Law

Over the past two decades, cities and provinces have emerged as economically and politically powerful actors in global affairs. They have begun to demand access to and participation in the international legal system. Yet, the traditional rules of international legal personality limit full, formal participation to sovereign equal nation states. Nonetheless, in response to the localization of new transnational challenges, subnational governments are finding ways to access international legal processes and influence the development of international legal norms. They are seeking accommodation within existing institutions and legal processes; emulating international law through their own commitments and organizations; incorporating international law ...


Influence Through Intimidation: Evidence From Business Lobbying And The Regulatory Process, Alex Acs, Cary Coglianese Jul 2021

Influence Through Intimidation: Evidence From Business Lobbying And The Regulatory Process, Alex Acs, Cary Coglianese

Faculty Scholarship at Penn Law

Interest group influence in the policy process is often assumed to occur through a mechanism of exchange, persuasion, or subsidy. Here, we explore how business groups may also exert influence by intimidating policymakers—a form of persuasion, but one based not on the provision of policy information but of political information. We develop a theory where a business firm lobbies a regulator to communicate political information about its capacity to commit to future influence-seeking activities that would sanction the regulator. The regulator assesses the credibility of this message by evaluating the firm’s commitment to lobbying. Guided by our theory ...


After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne Jul 2021

After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne

Faculty Scholarship at Penn Law

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of ...


The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro Jun 2021

The Deregulation Deception, Cary Coglianese, Natasha Sarin, Stuart Shapiro

Faculty Scholarship at Penn Law

President Donald Trump and members of his Administration repeatedly asserted that they had delivered substantial deregulation that fueled positive trends in the U.S. economy prior to the COVID pandemic. Drawing on an original analysis of data on federal regulation from across the Trump Administration’s four years, we show that the Trump Administration actually accomplished much less by way of deregulation than it repeatedly claimed—and much less than many commentators and scholars have believed. In addition, and also contrary to the Administration’s claims, overall economic trends in the pre-pandemic Trump years tended simply to follow economic trends ...


Unrules, Cary Coglianese, Gabriel Scheffler, Daniel Walters Apr 2021

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel Walters

Faculty Scholarship at Penn Law

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory ...


Internet Connectivity Among Indigenous And Tribal Communities In North America - A Focus On Social And Educational Outcomes, Christopher S. Yoo, Leon Gwaka, Muge Haseki Jan 2021

Internet Connectivity Among Indigenous And Tribal Communities In North America - A Focus On Social And Educational Outcomes, Christopher S. Yoo, Leon Gwaka, Muge Haseki

Faculty Scholarship at Penn Law

Broadband access is an important part of enhancing rural community development, improving the general quality of life. Recent telecommunications stimulus projects in the U.S. and Canada were intended to increase availability of broadband through funding infrastructure investments, largely in rural and remote regions. However, there are various small, remote, and rural communities, who remain unconnected. Connectivity is especially important for indigenous and tribal communities to access opportunities for various public services as they are generally located in remote areas. In 2016, the FCC reported that 41% of U.S. citizens living on tribal lands, and 68% of those in ...


Reconsidering The Evolutionary Erosion Account Of Corporate Fiduciary Law, William W. Bratton Jan 2021

Reconsidering The Evolutionary Erosion Account Of Corporate Fiduciary Law, William W. Bratton

Faculty Scholarship at Penn Law

This Article reconsiders the dominant account of corporate law’s duty of loyalty, which asserts that the courts have steadily relaxed standards of fiduciary scrutiny applied to self-dealing by corporate managers across more than a century of history—to the great detriment of the shareholder interest. The account originated in Harold Marsh, Jr.’s foundational article, Are Directors Trustees? Conflicts of Interest and Corporate Morality, published in The Business Lawyer in 1966. Marsh’s showing of historical lassitude has been successfully challenged in a recent book by Professor David Kershaw. This Article takes Professor Kershaw’s critique a step further ...


The History And Revival Of The Corporate Purpose Clause, Elizabeth Pollman Jan 2021

The History And Revival Of The Corporate Purpose Clause, Elizabeth Pollman

Faculty Scholarship at Penn Law

The corporate purpose debate is experiencing a renaissance. The contours of the modern debate are relatively well developed and typically focus on whether corporations should pursue shareholder value maximization or broader social aims. A related subject that has received much less scholarly attention, however, is the formal legal mechanism by which a corporation expresses its purpose—the purpose clause of the corporate charter. This Article examines corporate purpose through the evolution of corporate charters. Starting with historic examples ranging from the Dutch East India Company to early American corporations and their modern 21st century parallels, the discussion illuminates how corporate ...


Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli Jan 2021

Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli

Faculty Scholarship at Penn Law

Civil asset forfeiture has strayed far from its intended purpose. Designed to give law enforcement powerful tools to combat maritime offenses and criminal enterprises, forfeiture laws are now used to prey upon innocent motorists and lawful homeowners who are never charged with crimes. Their only sins are that they are carrying legal tender while driving on busy highways or providing shelter in their homes to adult children and grandchildren who allegedly sold small amounts of low-level drugs. Civil forfeiture abuses are commonplace throughout the country with some police even armed with legal waivers for property owners to sign on the ...


Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr. Jan 2021

Bankruptcy For Banks: A Tribute (And Little Plea) To Jay Westbrook, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this brief essay, to be included in a book celebrating the work of Jay Westbrook, I begin by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: a proposed reform that would facilitate the use of bankruptcy to resolve the financial distress of large financial institutions. Jay has been a strong critic of this legislation, arguing that financial ...


Whitman And The Fiduciary Relationship Conundrum, Lisa Fairfax Nov 2020

Whitman And The Fiduciary Relationship Conundrum, Lisa Fairfax

Faculty Scholarship at Penn Law

While the law on insider trading has been convoluted and, in Judge Jed S. Rakoff’s words, “topsy turvy,” the law on insider trading is supposedly clear on at least one point: insider trading liability is premised upon a fiduciary relationship. Thus, all three seminal U.S. Supreme Court cases articulating the necessary elements for demonstrating any form of insider trading liability under § 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934 made crystal clear that a fiduciary relationship represented the lynchpin for such liability.

Alas, insider trading law is not clear about the source from which ...


Local Elected Officials’ Receptivity To Refugee Resettlement In The United States, Robert Shaffer, Lauren E. Pinson, Jonathan A. Chu, Beth A. Simmons Oct 2020

Local Elected Officials’ Receptivity To Refugee Resettlement In The United States, Robert Shaffer, Lauren E. Pinson, Jonathan A. Chu, Beth A. Simmons

Faculty Scholarship at Penn Law

Local leaders possess significant and growing authority over refugee resettlement, yet we know little about their attitudes toward refugees. In this article, we use a conjoint experiment to evaluate how the attributes of hypothetical refugee groups influence local policymaker receptivity toward refugee resettlement. We sample from a novel, national panel of current local elected officials, who represent a broad range of urban and rural communities across the United States. We find that many local officials favor refugee resettlement regardless of refugee attributes. However, officials are most receptive to refugees whom they perceive as a strong economic and social fit within ...


The First Amendment And The Right(S) Of Publicity, Jennifer Rothman, Robert C. Post Oct 2020

The First Amendment And The Right(S) Of Publicity, Jennifer Rothman, Robert C. Post

Faculty Scholarship at Penn Law

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.

At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests ...


Environmental Soft Law As A Governance Strategy, Cary Coglianese Oct 2020

Environmental Soft Law As A Governance Strategy, Cary Coglianese

Faculty Scholarship at Penn Law

Soft law governance relies on nongovernmental institutions that establish and implement voluntary standards. Compared with traditional hard law solutions to societal and economic problems, soft law alternatives promise to be more politically feasible to establish and then easier to adapt in the face of changing circumstances. They may also seem more likely to be flexible in what they demand of targeted businesses and other entities. But can soft law actually work to solve major problems? This Article considers the value of soft law governance through the lens of three major voluntary, nongovernmental initiatives that address environmental concerns: (1) ISO 14001 ...


Pandemic Response As Border Politics, Michael R. Kenwick, Beth A. Simmons Jul 2020

Pandemic Response As Border Politics, Michael R. Kenwick, Beth A. Simmons

Faculty Scholarship at Penn Law

Pandemics are imbued with the politics of bordering. For centuries, border closures and restrictions on foreign travelers have been the most persistent and pervasive means by which states have responded to global health crises. The ubiquity of these policies is not driven by any clear scientific consensus about their utility in the face of myriad pandemic threats. Instead, we show they are influenced by public opinion and preexisting commitments to invest in the symbols and structures of state efforts to control their borders, a concept we call border orientation. Prior to the COVID-19 pandemic, border orientation was already generally on ...


Long-Term Care Policy After Covid-19 — Solving The Nursing Home Crisis, Rachel M. Werner, Allison K. Hoffman, Norma B. Coe May 2020

Long-Term Care Policy After Covid-19 — Solving The Nursing Home Crisis, Rachel M. Werner, Allison K. Hoffman, Norma B. Coe

Faculty Scholarship at Penn Law

Nursing homes have been caught in the crosshairs of the coronavirus pandemic. As of early May 2020, Covid-19 had claimed the lives of more than 28,000 nursing home residents and staff in the United States. But U.S. nursing homes were unstable even before Covid-19 hit. The tragedy unfolding in nursing homes is the result of decades of neglect of long-term care policy.

Beyond the pandemic, we will have to transform the way we pay for and provide long-term care. First, Medicaid programs need to invest considerably more in care in all settings, including home-based settings as Medicaid shifts ...


Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp Jan 2020

Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

A deep split in American innovation policy has arisen between new economy and old economy innovation. In a recent policy statement, the Antitrust Division of the Justice Department takes a position that tilts more toward the old economy. Its December, 2019, policy statement on remedies for Standard Essential Patents issued jointly with the U.S. Patent and Trademark Office and the National Institute of Standards and Technology reflects this movement.

The policy statement as a whole contains two noteworthy problems: one is a glaring omission, and the other is a mischaracterization of the scope of antitrust liability. Both positions are ...


Defined Contribution Plans And The Challenge Of Financial Illiteracy, Jill E. Fisch, Annamaria Lusardi, Andrea Hasler Jan 2020

Defined Contribution Plans And The Challenge Of Financial Illiteracy, Jill E. Fisch, Annamaria Lusardi, Andrea Hasler

Faculty Scholarship at Penn Law

Retirement investing in the United States has changed dramatically. The classic defined-benefit (DB) plan has largely been replaced by the defined contribution (DC) plan. With the latter, individual employees’ decisions about how much to save for retirement and how to invest those savings determine the benefits available upon retirement.

We analyze data from the 2015 National Financial Capability Study to show that people whose only exposure to investment decisions is by virtue of their participation in an employer-sponsored 401(k) plan are poorly equipped to make sound investment decisions. Specifically, they suffer from higher levels of financial illiteracy than other ...


Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr. Jan 2020

Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal ...


Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters Jan 2020

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

Faculty Scholarship at Penn Law

Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies ...


Regulation Of Algorithmic Tools In The United States, Christopher S. Yoo, Alicia Lai Jan 2020

Regulation Of Algorithmic Tools In The United States, Christopher S. Yoo, Alicia Lai

Faculty Scholarship at Penn Law

Policymakers in the United States have just begun to address regulation of artificial intelligence technologies in recent years, gaining momentum through calls for additional research funding, piece-meal guidance, proposals, and legislation at all levels of government. This Article provides an overview of high-level federal initiatives for general artificial intelligence (AI) applications set forth by the U.S. president and responding agencies, early indications from the incoming Biden Administration, targeted federal initiatives for sector-specific AI applications, pending federal legislative proposals, and state and local initiatives. The regulation of the algorithmic ecosystem will continue to evolve as the United States continues to ...


Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer Rothman Jan 2020

Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer Rothman

Faculty Scholarship at Penn Law

This book chapter appears in the CAMBRIDGE HANDBOOK ON INTERNATIONAL AND COMPARATIVE TRADEMARK LAW, edited by Jane C. Ginsburg & Irene Calboli (Cambridge Univ. Press 2020). The Chapter provides an overview of the defenses to trademark infringement, dilution, and false endorsement claims that serve the goals of free expression and fair competition. In particular, the Chapter covers the defenses of genericism, functionality, descriptive and nominative fair use, the Rogers test, statutory exemptions to dilution claims, and the questions of whether and how an independent First Amendment defense applies in light of recent Supreme Court decisions.

In addition to providing a useful ...


Detention By Any Other Name, Sandra G. Mayson Jan 2020

Detention By Any Other Name, Sandra G. Mayson

Faculty Scholarship at Penn Law

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and ...


The Effect Of Police Oversight On Crime And Allegations Of Misconduct: Evidence From Chicago, Bocar A. Ba, Roman G. Rivera Oct 2019

The Effect Of Police Oversight On Crime And Allegations Of Misconduct: Evidence From Chicago, Bocar A. Ba, Roman G. Rivera

Faculty Scholarship at Penn Law

Does policing the police increase crime? We avoid simultaneity effects of increased public oversight during a major scandal by identifying events in Chicago that only impacted officers’ self-imposed monitoring. We estimate crime’s response to self- and public-monitoring using regression discontinuity and generalized synthetic control methods. Self-monitoring, triggered by police union memos, significantly reduced serious complaints without impacting crime or effort. However, after a scandal, both civilian complaints and crime rates rise, suggesting that higher crime rates following heightened oversight results from de-policing and civilian behavior simultaneously changing. Our research suggests that proactive internal accountability improves police-community relations without increasing ...


Toward Fair And Sustainable Capitalism: A Comprehensive Proposal To Help American Workers, Restore Fair Gainsharing Between Employees And Shareholders, And Increase American Competitiveness By Reorienting Our Corporate Governance System Toward Sustainable Long-Term Growth And Encouraging Investments In America’S Future, Leo E. Strine Sep 2019

Toward Fair And Sustainable Capitalism: A Comprehensive Proposal To Help American Workers, Restore Fair Gainsharing Between Employees And Shareholders, And Increase American Competitiveness By Reorienting Our Corporate Governance System Toward Sustainable Long-Term Growth And Encouraging Investments In America’S Future, Leo E. Strine

Faculty Scholarship at Penn Law

To promote fair and sustainable capitalism and help business and labor work together to build an American economy that works for all, this paper presents a comprehensive proposal to reform the American corporate governance system by aligning the incentives of those who control large U.S. corporations with the interests of working Americans who must put their hard-earned savings in mutual funds in their 401(k) and 529 plans. The proposal would achieve this through a series of measured, coherent changes to current laws and regulations, including: requiring not just operating companies, but institutional investors, to give appropriate consideration to ...


Rulers Or Rules? International Law, Elite Cues And Public Opinion, Anton Strezhnev, Beth A. Simmons, Matthew D. Kim Jul 2019

Rulers Or Rules? International Law, Elite Cues And Public Opinion, Anton Strezhnev, Beth A. Simmons, Matthew D. Kim

Faculty Scholarship at Penn Law

One of the mechanisms by which international law can shape domestic politics is through its effects on public opinion. However, a growing number of national leaders have begun to advocate policies that ignore or even deny international law constraints. This article investigates whether international law messages can still shift public opinion even in the face of countervailing elite cues. It reports results from survey experiments conducted in three countries, the United States, Australia and India, which examined attitudes on a highly salient domestic political issue: restrictions on refugee admissions. In each experimental vignette, respondents were asked about their opinion on ...


The Tcja And The Questionable Incentive To Incorporate, Part 2, Michael S. Knoll Mar 2019

The Tcja And The Questionable Incentive To Incorporate, Part 2, Michael S. Knoll

Faculty Scholarship at Penn Law

The Tax Cuts and Jobs Act (TCJA) has put the question should a business be organized as a passthrough entity or as a corporation at center stage. The TCJA eliminated much of the tax disadvantage from using the corporate form, but did Congress go so far that it advantaged corporations relative to pass-through entities? Some prominent commentators say yes. They argue that the federal income tax now encourages individual owners of pass-through businesses to restructure their business as subchapter C corporations, and they predict that the TCJA will lead to a cascade of incorporations. The principal driver of the shift ...


The Tcja And The Questionable Incentive To Incorporate, Michael S. Knoll Mar 2019

The Tcja And The Questionable Incentive To Incorporate, Michael S. Knoll

Faculty Scholarship at Penn Law

The Tax Cuts and Jobs Act (TCJA) has put the question should a business be organized as a passthrough entity or as a corporation at center stage. The TCJA eliminated much of the tax disadvantage from using the corporate form, but did Congress go so far that it advantaged corporations relative to pass-through entities? Some prominent commentators say yes. They argue that the federal income tax now encourages individual owners of pass-through businesses to restructure their business as subchapter C corporations, and they predict that the TCJA will lead to a cascade of incorporations. The principal driver of the shift ...


In The Shadow Of The Law: The Role Of Custom In Intellectual Property, Jennifer Rothman Jan 2019

In The Shadow Of The Law: The Role Of Custom In Intellectual Property, Jennifer Rothman

Faculty Scholarship at Penn Law

Custom, including industry practices and social norms, has a tremendous influence on intellectual property (“IP”) law, from affecting what happens outside of the courts in the trenches of the creative, technology, and science-based industries, to influencing how courts analyze infringement and defenses in IP cases. For decades, many scholars overlooked or dismissed the impact of custom on IP law in large part because of a belief that the dominant statutory frameworks that govern IP left little room for custom to play a role. In the last ten years, however, the landscape has shifted and more attention has been given to ...


Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii Jan 2019

Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article ...