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Antitrust Error Costs, Herbert J. Hovenkamp Nov 2021

Antitrust Error Costs, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The idea that consideration of error costs should inform judgments about actions with uncertain consequences is well established. When we act on imperfect information, we consider not only the probability of an event, but also the expected costs of making an error. In 1984 Frank Easterbrook used this idea to rationalize an anti-enforcement bias in antitrust, reasoning that markets are likely to correct monopoly in a relatively short time while judicial errors are likely to persist. As a result, false positives (recognizing a problem when there is none) are more costly than false negatives. While the problem of error cost ...


Pandemic Hope For Chapter 11 Financing, David A. Skeel Jr. Nov 2021

Pandemic Hope For Chapter 11 Financing, David A. Skeel Jr.

Faculty Scholarship at Penn Law

One of the biggest surprises of the recent pandemic from a bankruptcy perspective has been the ready availability of financing. A variety of factors—such as an estimated $2.5 trillion in available funding at the outset of the crisis and the buoyant stock market—may have contributed. In this Essay, I focus on a less widely appreciated factor, a striking shift in the capital structure of many corporate debtors. Rather than borrowing from one group of lenders, debtors now often borrow from multiple groups of diverse lenders. Although the new capital structure complexity has downsides, it also could counteract ...


Criminal Law’S Core Principles, Paul H. Robinson Oct 2021

Criminal Law’S Core Principles, Paul H. Robinson

Faculty Scholarship at Penn Law

Modern criminal law scholars and policymakers assume they are free to construct criminal law rules by focusing exclusively on the criminal justice theory of the day. But this “blank slate” conception of criminal lawmaking is dangerously misguided. In fact, lawmakers are writing on a slate on which core principles are already indelibly written and realistically they are free only to add detail in the implementation of those principles and to add additional provisions not inconsistent with them. Attempts to do otherwise are destined to produce tragic results from both utilitarian and retributivist views.

Many writers dispute that such core principles ...


Mutual Fund Stewardship And The Empty Voting Problem, Jill E. Fisch Oct 2021

Mutual Fund Stewardship And The Empty Voting Problem, Jill E. Fisch

Faculty Scholarship at Penn Law

When Roberta Karmel wrote the articles that are the subject of this symposium, she was skeptical of both the potential value of shareholder voting and the emerging involvement of institutional investors in corporate governance. In the ensuing years, both the increased role and engagement of institutional investors and the heightened importance of shareholder voting offer new reasons to take Professor Karmel’s concerns seriously. Institutional investors have taken on a broader range of issues ranging from diversity and political spending to climate change and human capital management, and their ability to influence corporate policy on these issues has become more ...


Nowhere To Run To, Nowhere To Hide, Praveen Kosuri, Lynnise Pantin Oct 2021

Nowhere To Run To, Nowhere To Hide, Praveen Kosuri, Lynnise Pantin

Faculty Scholarship at Penn Law

As the COVID-19 global pandemic ravaged the United States, exacerbating the country’s existing racial disparities, Black and brown small business owners navigated unprecedented obstacles to stay afloat. Adding even more hardship and challenges, the United States also engaged in a nationwide racial reckoning in the wake of the murder of George Floyd resulting in wide-scale protests in the same neighborhoods that initially saw a disproportionate impact of COVID-19 and harming many of the same Black and brown business owners. These business owners had to operate in an environment in which they experienced recurring trauma, mental anguish and uncertainty, along ...


The Runaway Presidential Power Over Diplomacy, Jean Galbraith Sep 2021

The Runaway Presidential Power Over Diplomacy, Jean Galbraith

Faculty Scholarship at Penn Law

The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. And these are just a few of many examples from recent years. The President’s assertedly ...


Team Production Revisited, William W. Bratton Sep 2021

Team Production Revisited, William W. Bratton

Faculty Scholarship at Penn Law

This Article reconsiders Margaret Blair and Lynn Stout’s team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited ...


What Is The Relationship Between Language And Thought?: Linguistic Relativity And Its Implications For Copyright, Christopher S. Yoo Sep 2021

What Is The Relationship Between Language And Thought?: Linguistic Relativity And Its Implications For Copyright, Christopher S. Yoo

Faculty Scholarship at Penn Law

To date, copyright scholarship has almost completely overlooked the linguistics and cognitive psychology literature exploring the connection between language and thought. An exploration of the two major strains of this literature, known as universal grammar (associated with Noam Chomsky) and linguistic relativity (centered around the Sapir-Whorf hypothesis), offers insights into the copyrightability of constructed languages and of the type of software packages at issue in Google v. Oracle recently decided by the Supreme Court. It turns to modularity theory as the key idea unifying the analysis of both languages and software in ways that suggest that the information filtering associated ...


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

https://scholarship.law.upenn.edu/faculty_scholarship/2624/

Cities and Provinces in a World of States: Subnational Governments in the International Legal System is currently undergoing revision.

Please check again soon. Thank you.



Municipal Fiber In The United States: A Financial Assessment, Christopher S. Yoo, Jesse Lambert, Timothy P. Pfenninger Jul 2021

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

Faculty Scholarship at Penn Law

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 ...


Herbert Hovenkamp As Antitrust Oracle: Appreciating The Overlooked Contributions Of The New Harvard School, Christopher S. Yoo Jul 2021

Herbert Hovenkamp As Antitrust Oracle: Appreciating The Overlooked Contributions Of The New Harvard School, Christopher S. Yoo

Faculty Scholarship at Penn Law

My colleague, Herbert Hovenkamp, is almost universally recognized as the most cited and the most authoritative US antitrust scholar. Among his many honors, his status as the senior author of the authoritative Areeda and Hovenkamp treatise makes him the unquestioned leader of the New Harvard School, which has long served as the bellwether for how courts are likely to resolve emerging issues in modern antitrust doctrine. Unfortunately, its defining tenets and its positions on emerging issues remain surprisingly obscure. My contribution to this festschrift explores the core commitments that distinguish the New Harvard School from other approaches to antitrust. It ...


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 ...


President Biden's Executive Order On Promoting Competition: An Antitrust Analysis, Herbert J. Hovenkamp Jul 2021

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

Faculty Scholarship at Penn Law

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 providing ...


The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb Jul 2021

The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Law

The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby ...


Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor Jul 2021

Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben Dor

Faculty Scholarship at Penn Law

The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this paper, we canvas the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication ...


Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb Jul 2021

Individualizing Criminal Law’S Justice Judgments: Shortcomings In The Doctrines Of Culpability, Mitigation, And Excuse, Paul H. Robinson, Lindsay Holcomb

Faculty Scholarship at Penn Law

In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a ...


A Miser’S Rule Of Reason: Student Athlete Compensation And The Alston Antitrust Case, Herbert J. Hovenkamp Jul 2021

A Miser’S Rule Of Reason: Student Athlete Compensation And The Alston Antitrust Case, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The unanimous Supreme Court decision in NCAA v. Alston is its most important probe of antitrust’s rule of reason in decades. The decision implicates several issues, including the role of antitrust in labor markets, how antitrust applies to institutions that have an educational mission as well as involvement in a large commercial enterprise, and how much leeway district courts should have in creating decrees that contemplate ongoing administration.

The Court accepted what has come to be the accepted framework: the plaintiff must make out a prima facie case of competitive harm. Then the burden shifts to the defendant to ...


A Roadmap To Revising Ethiopia’S Gender Discriminatory Laws: A Comparative Analysis, Rangita De Silva De Alwis Jul 2021

A Roadmap To Revising Ethiopia’S Gender Discriminatory Laws: A Comparative Analysis, Rangita De Silva De Alwis

Faculty Scholarship at Penn Law

Ethiopia is Africa's oldest independent country, the second-most populous nation in Africa, and one of the founding members of the Organization of African Unity (OAU), which was established on 25 May 1963 and replaced by the African Union (AU) in 2002. The headquarters of the AU is based in Addis Ababa. Today, Ethiopia has the largest GDP in East Africa and its economy is also one of the fastest growing economies in the world.

Ethiopia is one of the few countries in the world which had achieved gender parity in the cabinet, and where women hold the positions of ...


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 ...


Do Esg Mutual Funds Deliver On Their Promises?, Quinn Curtis, Jill E. Fisch, Adriana Z. Robertson Jun 2021

Do Esg Mutual Funds Deliver On Their Promises?, Quinn Curtis, Jill E. Fisch, Adriana Z. Robertson

Faculty Scholarship at Penn Law

Corporations have received growing criticism for their role in climate change, perpetuating racial and gender inequality, and other pressing social issues. In response to these concerns, shareholders are increasingly focusing on environmental, social, and corporate governance (ESG) criteria in selecting investments, and asset managers are responding by offering a growing number of ESG mutual funds. The flow of assets into ESG is one of the most dramatic trends in asset management.

But are these funds giving investors what they promise? This question has attracted the attention of regulators, with the Department of Labor and the Securities and Exchange Commission (SEC ...


Taking Stock Of Chapter 11, David A. Skeel Jr. May 2021

Taking Stock Of Chapter 11, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this Essay, written for a symposium honoring Sam Gerdano, I offer an assessment of current Chapter 11 theory and practice. The most distinctive feature of current Chapter 11 practice is the extent to which the parties now enter into intercreditor agreements, restructuring support agreements and other actual contracts governing their rights and responsibilities. One question raised by the dramatic shift in bankruptcy practice is whether the leading normative theory of bankruptcy, the Creditors’ Bargain Theory, is now obsolete, as some scholars have suggested. The Creditors’ Bargain Theory explains bankruptcy as a solution to coordination problems that might lead to ...


#Wetoo, Kimberly Kessler Ferzan Apr 2021

#Wetoo, Kimberly Kessler Ferzan

Faculty Scholarship at Penn Law

The #MeToo movement has caused a widespread cultural reckoning over sexual violence, abuse, and harassment. “Me too” was meant to express and symbolize that each individual victim was not alone in their experiences of sexual harm; they added their voice to others who had faced similar injustices. But viewing the #MeToo movement as a collection of singular voices fails to appreciate that the cases that filled our popular discourse were not cases of individual victims coming forward. Rather, case after case involved multiple victims, typically women, accusing single perpetrators. Victims were believed because there was both safety and strength in ...


Digital Cluster Markets, Herbert J. Hovenkamp Apr 2021

Digital Cluster Markets, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This paper considers the role of “cluster” markets in antitrust litigation, the minimum requirements for recognizing such markets, and the relevance of network effects in identifying them.

One foundational requirement of markets in antitrust cases is that they consist of products that are very close substitutes for one another. Even though markets are nearly always porous, this principle is very robust in antitrust analysis and there are few deviations.

Nevertheless, clustering noncompeting products into a single market for purposes of antitrust analysis can be valuable, provided that its limitations are understood. Clustering contributes to market power when (1) many customers ...


Secured Transactions Law Reform In Japan: Japan Business Credit Project Assessment Of Interviews And Tentative Policy Proposals, Megumi Hara, Kumiko Koens, Charles W. Mooney Jr. Apr 2021

Secured Transactions Law Reform In Japan: Japan Business Credit Project Assessment Of Interviews And Tentative Policy Proposals, Megumi Hara, Kumiko Koens, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This article summarizes key findings from the Japan Business Credit Project (JBCP), which involved more than 30 semi-structured interviews conducted in Japan from 2016 through 2018. It was inspired by important and previously unexplored questions concerning secured financing of movables (business equipment and inventory) and claims (receivables)—“asset-based lending” or “ABL.” Why is the use of ABL in Japan so limited? What are the principal obstacles and disincentives to the use of ABL in Japan? The interviews were primarily with staff of banks, but also included those of government officials and regulators, academics, and law practitioners. The article proposes reforms ...


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 ...


Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul S. Heaton Apr 2021

Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul S. Heaton

Faculty Scholarship at Penn Law

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the ...


Vertical Control, Herbert J. Hovenkamp Mar 2021

Vertical Control, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust litigation often requires courts to consider challenges to vertical “control.” How does a firm injure competition by limiting the behavior of vertically related firms? Competitive injury includes harm to consumers, labor, or other suppliers from reduced output and higher margins.

Historically antitrust considers this issue by attempting to identify a market that is vertically related to the defendant, and then consider what portion of it is “foreclosed” by the vertical practice. There are better mechanisms for identifying competitive harm, including a more individualized look at how the practice injures the best placed firms or bears directly on a firm ...


How Criminal Code Drafting Form Can Restrain Prosecutorial And Legislative Excesses: Consolidated Offense Drafting, Paul H. Robinson, Matthew Kussmaul, Muhammad Sarahne Mar 2021

How Criminal Code Drafting Form Can Restrain Prosecutorial And Legislative Excesses: Consolidated Offense Drafting, Paul H. Robinson, Matthew Kussmaul, Muhammad Sarahne

Faculty Scholarship at Penn Law

Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses.

After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay ...


A Lesson From Startups: Contracting Out Of Shareholder Appraisal, Jill E. Fisch Mar 2021

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

Faculty Scholarship at Penn Law

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 ...