Law Commons^™

Social Welfare, Human Dignity, And The Puzzle Of What We Owe Each Other, Amy L. Wax

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Proponents of work-based welfare reform claim that moving the poor from welfare to work will advance the goals of economic self-reliance and independence. Reform opponents attack these objectives as ideologically motivated and conceptually incoherent. Drawing on perspectives developed by luck egalitarians and feminist theorists, these critics disparage conventional notions of economic desert, find fault with market measures of value, debunk ideals of autonomy, and emphasize the pervasiveness of interdependence and unearned benefits within free market societies. These arguments pose an important challenge to justifications usually advanced for work-based welfare reform. Reform proponents must concede that no member of society can …

Regulating Irrational Exuberance And Anxiety In Securities Markets , Peter H. Huang

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This paper analyzes the regulatory implications of irrational exuberance and anxiety in securities markets. U.S. federal securities laws mandate the disclosure of certain information, but regulate only the cognitive form and content of that information. An important and unstudied question is how to regulate securities markets where some investors respond not only cognitively to the form and content of information, but also emotionally to the form and content of information. This paper investigates that question when some investors feel exuberance or anxiety that is unjustified by cognitive processing of the available information. This paper develops the implications for mandatory securities …

Building Sector-Based Consensus: A Review Of The Epa's Common Sense Initiative, Cary Coglianese, Laurie K. Allen

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In the late 1990s, the U.S. Environmental Protection Agency (EPA) conducted what the agency considered to be a "bold experiment" in regulatory reinvention, bringing representatives from six industrial sectors together with government officials and NGO representatives to forge a consensus on innovations in public policy and business practices. This paper assesses the impact of the agency's "experiment" - called the Common Sense Initiative (CSI) - in terms of the agency's goals of improving regulatory performance and technological innovation. Based on a review of CSI projects across all six sectors, the paper shows how EPA achieved, at best, quite modest accomplishments. …

“Black People’S Money”: The Impact Of Law, Economics, And Culture In The Context Of Race On Damage Recoveries, Regina Austin

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“’Black People’s Money’: The Impact of Law, Economics, and Culture in the Context of Race on Damage Recoveries” is one of a series of articles by the author dealing with black economic marginalization; prior work considered such topics as shopping and selling as forms of deviance, street vending, restraints on leisure, and the importance of informality in loan transactions. This article deals with the linkage between the social significance of black people’s money and its material value. It analyzes the construction of “black money,” its association with cash, and the taboos and cultural practices that assure that black money will …

The Effect Of Abortion Legalization On Sexual Behavior: Evidence From Sexually Transmitted Diseases, Jonathan Klick, Thomas Stratmann

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Unwanted pregnancy represents a major cost of sexual activity. When abortion was legalized in a number of states in 1969 and 1970 (and nationally in 1973), this cost was reduced. We predict that abortion legalization generated incentives leading to an increase in sexual activity, accompanied by an increase in sexually transmitted diseases (STDs). Using Centers for Disease Control data on the incidence of gonorrhea and syphilis by state, we test the hypothesis that abortion legalization led to an increase in sexually transmitted diseases. We find that gonorrhea and syphilis incidences are significantly and positively correlated with abortion legalization. Further, we …

Why Do Distressed Companies Choose Delaware? An Empirical Analysis Of Venue Choice In Bankruptcy , Kenneth M. Ayotte, David A. Skeel Jr.

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We analyze a sample of large Chapter 11 cases to determine which factors motivate the choice of filing in one court over another when a choice is available. We focus in particular on the Delaware court, which became the most popular venue for large corporations in the 1990s. We find no evidence of agency problems governing the venue choice or affecting the outcome of the bankruptcy process. Instead, firm characteristics and court characteristics, particularly a court's level of experience, are the most important factors. We find that court experience manifests itself in both a greater ability to reorganize marginal firms …

Judging Unions' Future Using A Historical Perspective: The Public Policy Choice Between Competition And Unionization, Michael L. Wachter

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In this paper I look at unions' future using a historical perspective and focusing on the period of union ascendancy as well as the past few decades when unions have been in decline. We know trends currently in place are unfavorable to unions. What conditions would be favorable? The rise of unions from the 1930s through the early 1950s was due to the convergence of a number of events - an economic policy that attempted to restrict competition beginning in the 1930s, the twin beliefs that labor markets were inherently noncompetitive and/or that individual workplaces were exploitative, and low union …

Risk, Death And Harm: The Normative Foundations Of Risk Regulation, Matthew D. Adler

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Is death a harm? Is the risk of death a harm? These questions lie at the foundations of risk regulation. Agencies that regulate threats to human life, such as the EPA, OSHA, the FDA, the CPSC, or NHTSA, invariably assume that premature death is a first-party harm - a welfare setback to the person who dies - and often assume that being at risk of death is a distinct and additional first-party harm. If these assumptions are untrue, the myriad statutes and regulations that govern risky activities should be radically overhauled, since the third-party benefits of preventing premature death and …

Creditors' Ball: The "New" New Corporate Governance In Chapter 11, David A. Skeel Jr.

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In the 1980s and early 1990s, many observers believed that the American corporate bankruptcy laws were desperately inefficient. The managers of the debtor stayed in control as "debtor in possession" after filing for bankruptcy, and they had the exclusive right to propose a reorganization plan for at least the first four months of the case, and often far longer. The result was lengthy cases, deteriorating value and numerous academic proposals to replace Chapter 11 with an alternative regime. In the early years of the new millennium, bankruptcy could not look more different. Cases proceed much more quickly, and they are …

Interview With Cynthia E. White, Antoinette E. Walker, Cynthia E. White, Legal Oral History Project, University Of Pennsylvania Carey Law School

Legal Oral History Project

For transcript, click the Download button above. For video index, click the link below.

Cynthia E. White (L '80) worked in the City of Phialdelphia Law Department from 1984 to 2017, becoming Chief Deputy Solicitor of the Tax Unit in 1995. She has also served as president and board chairman of the Consumer Bankruptcy Assistance Project

Interview With Robert C. Sheehan, Daniel Yunger, Robert C. Sheehan, Legal Oral History Project, University Of Pennsylvania Carey Law School

Legal Oral History Project

For transcript, click the Download button above.

Robert C. Sheehan (L '69) has practiced at Skadden, Arps since 1969 and served as Executive Partner from 1994 to 2009. He was won several awards for leadership and for pro bono work. He currently oversees Skadden's pro bono program. From 1996 to 2012 he was a member of the Penn Law Board of Overseers.

Taxing Sunny Days: Adjusting Taxes For Regional Living Costs And Amenities, Michael S. Knoll, Thomas D. Griffith

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Taxpayers pay tax on their nominal income without regard to their regional cost of living or the value of their regional amenities. Although commentators have argued that the income tax's failure to account for such differences is unfair - because residents of high-cost and low-amenity regions pay higher taxes than residents of low-cost and high-amenity regions - that argument is unpersuasive because migration tends to eliminate regional differences in living standards. The tax system's failure to adjust for regional differences is, however, likely to misallocate resources across regions in two ways. First, it is likely to discourage taxpayers from settling …

Genocide, Press Freedom, And The Case Of Hassan Ngeze, C. Edwin Baker

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This essay was written under contract with the United Nations to serve as background for my testimony as an expert witness in behalf of Hassen Ngeze in his prosecution before the International Criminal Tribunal for Rwanda. (On motion of the prosecutor, the Court excluded this essay - or report - and the offer of my testimony.) In the Prosecutor v. Ngeze, the prosecution charged Ngeze with direct and public incitement to genocide and conspiracy to commit genocide almost entirely on the basis of his publication of a newspaper, Kangura one of many newspapers being published in Rwanda during the period …

Prohibited Risks And Culpable Disregard Or Inattentiveness: Challenge And Confusion In The Formulation Of Risk-Creation Offenses, Paul H. Robinson

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Because they track the Model Penal Code, current criminal law formulations of risk offenses typically fail to distinguish the rule of conduct question - What risks does the criminal law prohibit? - from the adjudication question - When is a particular violator's conscious disregard of, or his inattentiveness to, a risk in a particular situation sufficiently condemnable to deserve criminal liability? Instead, the formulations address only the second question - through their definition of reckless and negligent culpability - and fail to provide a rule of conduct provision to define a prohibited risk. This reliance upon culpability definitions as the …

The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett

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No abstract provided.

The Role Of Deterrence In The Formulation Of Criminal Law Rules: At Its Worst When Doing Its Best, Paul H. Robinson, John M. Darley

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For the past several decades, the deterrence of crime has been a centerpiece of criminal law reform. Law-givers have sought to optimize the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime. Although this seems initially an intuitively compelling strategy, we are going to suggest that is a poor one; poor for two reasons. First, its effectiveness rests on a set of assumptions that on examination cannot be sustained. Second, the attempt to employ the strategy generates a good many crimogenic costs that are …

Where Shall We Live? Class And The Limitations Of Fair Housing Law, Wendell Pritchett

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This paper examines the effort to secure fair housing laws at the local, state and federal levels in the 1950s, focusing in particular on New York City and state. It will examine the arguments that advocates made regarding the role the law should play in preventing housing discrimination, and the relationship of these views to advocates' understanding of property rights in general. My paper will argue that fair housing advocates had particular conceptions about the importance of housing in American society that both supported and limited their success. By arguing that minorities only sought what others wanted - a single-family …

Speaking Volumes: Musings On The Issues Of The Day, Inspired By The Memory Of Mary Joe Frug, Regina Austin, Elizabeth M. Schneider

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No abstract provided.

Corporate Policy And The Coherence Of Delaware Takeover Law, Richard E. Kihlstrom, Michael L. Wachter

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This Article presents a model that can be used to explain key elements of Delaware takeover law. By incorporating corporate policy as a key variable in the model, Delaware law’s management discretion rule can be shown to be best suited for maximizing the value of the corporation and the shareholders’ interest under a set of reasonable assumptions. By allowing for occasional market mispricing and the agency costs associated with managing to the market, we demonstrate that a shareholder choice regime would likely lead to suboptimal investment decisions. In our model, managers are assumed to have better information regarding alternative corporate …

Corporate Constitutionalism: Antitakeover Charter Provisions As Pre-Commitment, Marcel Kahan, Edward B. Rock

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Constitutions constitute a polity and create and entrench power. A corporate constitution - the governance choices incorporated in state law and the certificate of incorporation - resembles a political constitution. Delaware law allows parties to create corporations, to endow them with perpetual life, to assign rights and duties to "citizens" (directors and shareholders), to adopt a great variety of governance structures, and to entrench those choices. In this Article, we argue that the decision to endow directors with significant power over decisions whether and how to sell the company is a constitutional choice of governance structure. We then argue that …

The Rise And Demise Of The Technology-Specific Approach To The First Amendment, Christopher S. Yoo

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This article examines how analytical, technological, and doctrinal developments are forcing the courts to reconsider their media-specific approach to assessing the constitutionality of media regulation. In particular, it offers a comprehensive reevaluation of the continuing validity of the Broadcast Model of regulation, which contains features, such as licensing and direct content regulation, that normally would be considered paradigmatic violations of the First Amendment. Specifically, the analysis assesses the theoretical coherence of the traditional justification for extending a lesser degree of First Amendment protection to broadcasting than to other media (i.e., the physical scarcity of the electromagnetic spectrum) as well as …

Inevitable Mens Rea, Stephen J. Morse

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No abstract provided.

The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo

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Recent Supreme Court decisions and political events have reinvigorated the debate over Congress's authority to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitutional Convention rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive in which all administrative authority is centralized in the President. More recently, the debate has turned towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. …

The Value Of Giving Away Secrets, Oren Bar-Gill, Gideon Parchomovsky

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This Essay demonstrates the strategic advantage of narrow patents and unprotected publication of R&D output. Broad patents might stifle follow-on improvements by deterring potential cumulative innovators, who fear being held up by the initial inventor at the ex post licensing stage. By opting for a narrower patent and unprotected publication, the initial patent holder commits not to hold up follow-on inventors, thus promoting sequential innovation and generating lucrative licensing fees. Counterintuitively, in cumulative innovation settings, less protection benefits the patentee. This finding may serve as a counter-force to the much-lamented "anti-commons" problem. More generally, our theory demonstrates that the divergence …

Final Report Of The Illinois Criminal Code Rewrite And Reform Commission, Paul H. Robinson, Michael T. Cahill

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The Governor of Illinois created a commission to examine the problems with Illinois criminal law and to rewrite the Illinois criminal code. This two-volume Final Report of the Illinois Criminal Code Rewrite and Reform Commission proposes a new criminal code, in volume 1, together with an official commentary, in volume 2, that explains each provision and how and why it differs from existing law. The introduction to the Report summarizes the reasons for and the importance of criminal code reform, and describes the techniques used in this rewrite project, including both the project’s drafting principles and the methods by which …

Turf Struggles: Land, Sovereignty, And Sovereign Immunity, Catherine T. Struve

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No abstract provided.

Nullificatory Juries, Kaimipono David Wenger, David A. Hoffman

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In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call "nullificatory juries." We discuss the features of such juries, and consider recent behavioral data relating to …

Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas

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No abstract provided.

Anticompetitive Settlement Of Intellectual Property Disputes, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

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The overwhelming majority of intellectual property lawsuits settle before trial. These settlements involve agreements between the patentee and the accused infringer, parties who are often competitors before the lawsuit. Because these competitors may agree to stop competing, to regulate the price each charges, and to exchange information about products and prices, settlements of intellectual property disputes naturally raise antitrust concerns. In this paper, we suggest a way to reconcile the interests of intellectual property law and antitrust law in evaluating intellectual property settlements. In Part I, we provide background on the issue. Part II argues that in most cases courts …

Defeating Class Certification In Securities Fraud Actions, Kermit Roosevelt Iii

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No abstract provided.