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2008

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Full-Text Articles in Law

The Dystopian Potential Of Corporate Law, D. Gordon Smith Dec 2008

The Dystopian Potential Of Corporate Law, D. Gordon Smith

Faculty Scholarship

The community of corporate law scholars in the United States is fragmented. One group, heavily influenced by economic analysis of corporations, is exploring the merits of increasing shareholder power vis-a-vis directors. Another group, animated by concern for social justice, is challenging the traditional, shareholder-centric view of corporate law, arguing instead for a model of stakeholder governance. The current disagreement within corporate law is as fundamental as in any area of law, and the debate is more heated than at any time since the New Deal. This paper is part of a debate on the audacious question, Can Corporate Law Save ...


Initial Public Offerings And The Failed Promise Of Disintermediation, A. Christine Hurt Dec 2008

Initial Public Offerings And The Failed Promise Of Disintermediation, A. Christine Hurt

Faculty Scholarship

No abstract provided.


Agenda: Evolving Regional Frameworks For Ag-To-Urban Water Transfers, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program, Western Water Assessment, Red Lodge Clearinghouse Dec 2008

Agenda: Evolving Regional Frameworks For Ag-To-Urban Water Transfers, University Of Colorado Boulder. Natural Resources Law Center, Western Water Policy Program, Western Water Assessment, Red Lodge Clearinghouse

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

The permanent transfer of water from agricultural users to municipalities has become a common feature of water management in several western states. In many cases, these voluntary market‐based transfers provide significant benefits to both the buyers and sellers, but many third parties—including remaining irrigators, rural businesses and communities dependent upon agricultural economies—have been negatively impacted. While some impacts of these so‐called “buy and dry” transfers are largely unavoidable, many can be lessened by temporary arrangements that only shift water to cities in years when municipal supplies are inadequate, such as drought and post‐drought storage recovery ...


Slides: Lower Arkansas Valley Super Ditch Company, Inc.: Water Leasing Program, Peter Nichols Dec 2008

Slides: Lower Arkansas Valley Super Ditch Company, Inc.: Water Leasing Program, Peter Nichols

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Peter Nichols, General Counsel of the Lower Arkansas Valley “Super Ditch” Company, Trout, Raley, Montano, Witwer & Freeman PC, Colorado

33 slides


Slides: Idaho Rental Pool: Rules And Procedures, Idaho Water Resource Board, Jerry R. Rigby Dec 2008

Slides: Idaho Rental Pool: Rules And Procedures, Idaho Water Resource Board, Jerry R. Rigby

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Jerry Rigby, Counsel for Fremont‐Madison Irrigation District, Rigby, Thatcher, Andrus, Rigby & Moeller, Idaho

25 slides


Slides: Pvid/Mwd Land Management, Crop Rotation And Water Supply Program, Ed Smith Dec 2008

Slides: Pvid/Mwd Land Management, Crop Rotation And Water Supply Program, Ed Smith

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Ed Smith, General Manager, Palo Verde Irrigation District, Southern California

25 slides


The Moral Justification For Journalism, Sandra L. Borden Dec 2008

The Moral Justification For Journalism, Sandra L. Borden

Center for the Study of Ethics in Society Papers

Papers presented for the Center for the Study of Ethics in Society Western Michigan University


The Enduring Lessons Of The Breakup Of At&T: A Twenty-Five Year Retrospective, Christopher S. Yoo Dec 2008

The Enduring Lessons Of The Breakup Of At&T: A Twenty-Five Year Retrospective, Christopher S. Yoo

Faculty Scholarship at Penn Law

On April 18-19, 2008, the University of Pennsylvania Law School hosted a landmark conference on “The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective.” This conference was the first major event for Penn’s newly established Center for Technology, Innovation, and Competition, a research institute committed to promoting basic research into foundational frameworks that will shape the way policymakers think about technology-related issues in the future. The breakup of AT&T represents an ideal starting point for reexamining the major themes of telecommunications policy that have emerged over the past quarter century. The conference featured a ...


An Overview Of The Gloves-Off Economy: Workplace Standards At The Bottom Of America’S Labor Market, Annette Bernhardt, Heather Boushey, Laura Dresser, Chris Tilly Dec 2008

An Overview Of The Gloves-Off Economy: Workplace Standards At The Bottom Of America’S Labor Market, Annette Bernhardt, Heather Boushey, Laura Dresser, Chris Tilly

Center for Social Policy Publications

When we talk about the “gloves-off economy,” we are identifying a set of employer strategies and practices that either evade or outright violate the core laws and standards that govern job quality in the U.S. While such strategies have long been present in certain sectors, such as sweatshops and marginal small businesses, we argue that they are spreading. This trend, driven by competitive pressures, has been shaped by an environment where other major economic actors—government, unions, and civil society—have either promoted deregulation or been unable to contain gloves-off business strategies. The result, at the start of the ...


Toward A Unified Theory Of Access To Local Telephone Systems, Daniel F. Spulber, Christopher S. Yoo Dec 2008

Toward A Unified Theory Of Access To Local Telephone Systems, Daniel F. Spulber, Christopher S. Yoo

Faculty Scholarship at Penn Law

One of the most distinctive developments in telecommunications policy over the past few decades has been the increasingly broad array of access requirements regulatory authorities have imposed on local telephone providers. In so doing, policymakers did not fully consider whether the justifications for regulating telecommunications remained valid. They also allowed each access regime to be governed by its own pricing methodology and set access prices in a way that treated each network component as if it existed in isolation. The result was a regulatory regime that was internally inconsistent, vulnerable to regulatory arbitrage, and unable to capture the interactions among ...


Extended Time Off Overview, Workplace Flexibility 2010, Georgetown University Law Center Nov 2008

Extended Time Off Overview, Workplace Flexibility 2010, Georgetown University Law Center

Memos and Fact Sheets

Workplace Flexibility 2010 defines Extended Time Off (EXTO) as time taken off from work for a single reason that extends for more than five days but less than one year.

EXTO may be brief in nature (e.g., a few weeks), when taken, for example, for a vacation, to recover from minor surgery, or to comply with a public health quarantine request. EXTO may also be longer in nature (e.g., a month or more), when taken, for example, for maternity/paternity purposes, for elder care, for military duty, or for a sabbatical from work.

EXTO (either brief or prolonged ...


Fact Sheet On Extended Time Off (Exto), Workplace Flexibility 2010, Georgetown University Law Center, Urban Institute Nov 2008

Fact Sheet On Extended Time Off (Exto), Workplace Flexibility 2010, Georgetown University Law Center, Urban Institute

Memos and Fact Sheets

The Need for Extended Time Off (EXTO):

  1. New children: More women and mothers are working, and there is an increase in the number of couples with children in which both parents work.
  2. Health issues: According to a 2000 survey of employees regarding the Family & Medical Leave Act (FMLA), among those who took FMLA leave, more than half, 52.4%, of workers used the leave to attend to their own health conditions. Thirteen percent reported taking leave to care for a parent and nearly 12% reported using leave to care for an ill child.
  3. The need for paid EXTO: Despite the ...


The Taxation Of Private Equity Carried Interests: Estimating The Revenue Effects Of Taxing Profit Interests As Ordinary Income, Michael S. Knoll Nov 2008

The Taxation Of Private Equity Carried Interests: Estimating The Revenue Effects Of Taxing Profit Interests As Ordinary Income, Michael S. Knoll

Faculty Scholarship at Penn Law

In this Article, I estimate the tax revenue effects of taxing private equity carried interests as ordinary income rather than as long-term capital gain as under current law. Under reasonable assumptions, I conclude that the expected present value of additional tax collections would be between 1 percent and 1.5 percent of capital invested in private equity funds, or between $2 billion and $3 billion a year. That estimate, however, makes no allowance for changes in the structure of such funds or the composition of the partnerships, which might substantially reduce tax revenues below those estimates.


Reconceiving Labour Law: The Labour Market Regulation Project, Andrew D. Frazer Nov 2008

Reconceiving Labour Law: The Labour Market Regulation Project, Andrew D. Frazer

Faculty of Law - Papers (Archive)

This paper reviews the recent work by Australian labour lawyers that has embraced the ‘new regulation’ and in particular the idea of law as regulation. This approach has recast the academic study of labour law as being concerned with regulation of the labour market. While much of this work has concentrated on expanding the field of labour law to include many areas of law affecting the labour market (beyond the employer-employee relationship), the work has also developed the view of law as a mechanism of state regulation. The paper examines how the ‘regulatory turn’ in Australian labour law has affected ...


2008 Scholars And Artists Bibliography, Rajshehkar G. Javalgi Dr., Michael Schwartz Library, Cleveland State University, Friends Of The Michael Schwartz Library Oct 2008

2008 Scholars And Artists Bibliography, Rajshehkar G. Javalgi Dr., Michael Schwartz Library, Cleveland State University, Friends Of The Michael Schwartz Library

Scholars and Artists Bibliographies

This bibliography was created for the annual Friends of the Michael Schwartz Library Scholars and Artists Reception, recognizing scholarly and creative achievements of Cleveland State University faculty, staff and emeriti. Dr. Rajshekhar Javalgi was the guest speaker.


The Enduring Ambivalence Of Corporate Law, Christopher M. Bruner Oct 2008

The Enduring Ambivalence Of Corporate Law, Christopher M. Bruner

Scholarly Works

Prevailing theories of corporate law tend to rely heavily on strong claims regarding the corporate governance primacy and legitimacy of either the board or the shareholders, as the case may be. In this article I challenge the descriptive power of these theories as applied to widely held public corporations and advance an alternative, arguing that corporate law is, and will remain, deeply ambivalent - both doctrinally and morally - with respect to three fundamental and related issues: the locus of ultimate corporate governance authority, the intended beneficiaries of corporate production, and the relationship between corporate law and theachievement of the social good ...


Torts And Innovation, Gideon Parchomovsky, Alex Stein Oct 2008

Torts And Innovation, Gideon Parchomovsky, Alex Stein

Faculty Scholarship at Penn Law

This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts’ reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, the recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.


Schumpeterian Competition And Antitrust, Herbert J. Hovenkamp Oct 2008

Schumpeterian Competition And Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Joseph Schumpeter's vision of competition saw it as a destructive process in which effort, assets and fortunes were continuously destroyed by innovation. One possible implication is that antitrust's attention on short-run price and output issues is myopic: what seems at first glance to be a monopolistic exclusionary practice might really be an innovative enterprise with enormous payoffs in the long run. While this may be the case, three qualifications are critical. First, one must not confuse the prospect of innovation with the scope of the intellectual property laws; their excesses and special interest capture cast serious doubt on ...


Embattled Ceos, Marcel Kahan, Edward B. Rock Oct 2008

Embattled Ceos, Marcel Kahan, Edward B. Rock

Faculty Scholarship at Penn Law

In this paper, we argue that chief executive officers of publicly-held corporations in the United States are losing power to their boards of directors and to their shareholders. This loss of power is recent (say, since 2000) and gradual, but nevertheless represents a significant move away from the imperial CEO who was surrounded by a hand-picked board and lethargic shareholders. After discussing the concept of power and its dimensions, we document the causes and symptoms of the decline in CEO power in several areas: share ownership composition and shareholder activism; governance rules and the board response to shareholder activism; regulatory ...


The (Not So) Puzzling Behavior Of Angel Investors, Darian M. Ibrahim Oct 2008

The (Not So) Puzzling Behavior Of Angel Investors, Darian M. Ibrahim

Faculty Publications

No abstract provided.


States, Markets, And Gatekeepers: Public-Private Regulatory Regimes In An Era Of Economic Globalization, Christopher M. Bruner Oct 2008

States, Markets, And Gatekeepers: Public-Private Regulatory Regimes In An Era Of Economic Globalization, Christopher M. Bruner

Scholarly Works

This paper illuminates the spectrum of international economic regimes through discussion of an under-theorized regulatory structure in which traditional distinctions between state and market, public and private power, hard and soft law, and international and domestic policy realms, essentially collapse - the public-private gatekeeper.

Specifically, I examine striking similarities between global bond markets and e-commerce markets through comparison of entities regulating admission to them - the dominant credit rating agencies (Standard & Poor's and Moody's), and the Internet Corporation for Assigned Names and Numbers (ICANN). Following anexamination of the development of these markets and the global regulatory power exercised by these ...


Restoring The Right To Organize: Impacts Of The Employee Free Choice Act, Bureau Of Labor Education. University Of Maine Oct 2008

Restoring The Right To Organize: Impacts Of The Employee Free Choice Act, Bureau Of Labor Education. University Of Maine

Bureau of Labor Education

There has been growing controversy over a proposed new labor relations law called the Employee Free Choice Act (EFCA), also known as the “card check” bill. This briefing paper provides an overview of the Employee Free Choice Act, its context and rationale, and its implications for both workers’ abilities to organize and democratic rights in the workplace.


Automatic Bankruptcy Auctions And Fire-Sales, B. Espen Eckbo, Karin S. Thorburn Sep 2008

Automatic Bankruptcy Auctions And Fire-Sales, B. Espen Eckbo, Karin S. Thorburn

Finance Papers

We test for fire-sale tendencies in automatic bankruptcy auctions. We find evidence consistent with fire-sale discounts when the auction leads to piecemeal liquidation, but not when the bankrupt firm is acquired as a going concern. Neither industry-wide distress nor the industry affiliation of the buyer affect prices in going-concern sales. Bids are often structured as leveraged buyouts, which relaxes liquidity constraints and reduces bidder underinvestment incentives in the presence of debt overhang. Prices in “prepack” auctions (sales agreements negotiated prior to bankruptcy filing) are on average lower than for in-auction going-concern sales, suggesting that prepacks may help preempt excessive liquidation ...


Network Neutrality, Consumers, And Innovation, Christopher S. Yoo Aug 2008

Network Neutrality, Consumers, And Innovation, Christopher S. Yoo

Faculty Scholarship at Penn Law

In this Article, Professor Christopher Yoo directly engages claims that mandating network neutrality is essential to protect consumers and to promote innovation on the Internet. It begins by analyzing the forces that are placing pressure on the basic network architecture to evolve, such as the emergence of Internet video and peer-to-peer architectures and the increasing heterogeneity in business relationships and transmission technologies. It then draws on the insights of demand-side price discrimination (such as Ramsey pricing) and the two-sided markets, as well as the economics of product differentiation and congestion, to show how deviating from network neutrality can benefit consumers ...


International Competitiveness, Tax Incentives, And A New Argument For Tax Sparing: Preventing Double Taxation By Crediting Implicit Taxes, Michael S. Knoll Aug 2008

International Competitiveness, Tax Incentives, And A New Argument For Tax Sparing: Preventing Double Taxation By Crediting Implicit Taxes, Michael S. Knoll

Faculty Scholarship at Penn Law

Tax sparing occurs when a country with a worldwide tax system grants its citizens foreign tax credits for the taxes that they would have paid on income earned abroad, but that escapes taxation by virtue of foreign tax incentives. The supporters of tax sparing argue that it is a form of foreign aid, an obligation owed to developing countries, and a legitimate means of improving the competitiveness of resident investors. Tax sparing, however, has long been opposed by the United States on the grounds that it is an expensive and problematic concession to developing countries, inconsistent with basic and fundamental ...


"Of All Professions Begging Is The Best" - Some Problems In The Study Of Professions, Michael Davis Aug 2008

"Of All Professions Begging Is The Best" - Some Problems In The Study Of Professions, Michael Davis

Center for the Study of Ethics in Society Papers

Michael Davis' original paper was presented to the Center of the Study of Ethics in Society Western Michigan University on October 4, 2007.


Of All Professions, Prostitution Is The Oldest (Except Possibly For Teaching), Joseph Ellin Aug 2008

Of All Professions, Prostitution Is The Oldest (Except Possibly For Teaching), Joseph Ellin

Center for the Study of Ethics in Society Papers

Response by Joseph Ellin to a paper by Michael Davis Professions "Of All Professions, Begging is the Best"


Reply To Joseph Ellin's Of All Professions, Prostitution Is The Oldest (Except Possibly For Teaching), Michael Davis Aug 2008

Reply To Joseph Ellin's Of All Professions, Prostitution Is The Oldest (Except Possibly For Teaching), Michael Davis

Center for the Study of Ethics in Society Papers

No abstract provided.


Professions "Of All Professions, Begging Is The Best" A Paper By Michael Davis. Response By Joseph Ellin. Professor Davis' Reply, Center For The Study Of Ethics In Society Aug 2008

Professions "Of All Professions, Begging Is The Best" A Paper By Michael Davis. Response By Joseph Ellin. Professor Davis' Reply, Center For The Study Of Ethics In Society

Center for the Study of Ethics in Society Papers

Michael Davis' original paper was presented to the Center of the Study of Ethics in Society Western Michigan University on October 4, 2007.


Unilateral Refusals To Deal, Vertical Integration, And The Essential Facility Doctrine, Herbert J. Hovenkamp Jul 2008

Unilateral Refusals To Deal, Vertical Integration, And The Essential Facility Doctrine, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Where it applies, the essential facility doctrine requires a monopolist to share its "essential facility." Since the only qualifying exclusionary practice is the refusal to share the facility itself, the doctrine comes about as close as antitrust ever does to condemning "no fault" monopolization. There is no independent justification for an essential facility doctrine separate and apart from general Section 2 doctrine governing the vertically integrated monopolist's refusal to deal. In its Trinko decision the Supreme Court placed that doctrine about where it should be. The Court did not categorically reject all unilateral refusal to deal claims, but it ...