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Full-Text Articles in Law

United States Antitrust Policy In An Age Of Ip Expansion, Herbert J. Hovenkamp Dec 2004

United States Antitrust Policy In An Age Of Ip Expansion, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The idea that there is a tension between antitrust and the intellectual property laws is readily exaggerated. The tension that exists results mainly from our uncertainty about the optimal amount and scope of IP protection. In general, antitrust draws clearer lines than intellectual property law does, although one should not push the point too far. Antitrust policy as manifested in the courts has achieved a fair amount of consensus today. By contrast, deep uncertainty remains about fundamental questions concerning the socially optimal outcome of IP disputes. In addition, while the antitrust statutes are for the most part public regarding provisions ...


Icarus In The Boardroom, Introduction, David A. Skeel Jr. Dec 2004

Icarus In The Boardroom, Introduction, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Americans have always loved risk takers. Like the Icarus of ancient Greek lore, however, even the most talented entrepreneurs can overstep their bounds. All too often, the very qualities that make Icaran executives special - self-confidence, visionary insight, and extreme competitiveness - spur them to take misguided and even illegal chances. The Icaran failure of an ordinary entrepreneur isn't headline news. But put Icarus in the corporate boardroom and - as this book vividly demonstrates - the ripple effects can be profound. Ever since the first large-scale corporations emerged in the nineteenth century, their ability to tap huge amounts of capital and the ...


Evaluating Environmental Policies, Lori Snyder Bennear, Cary Coglianese Nov 2004

Evaluating Environmental Policies, Lori Snyder Bennear, Cary Coglianese

Faculty Scholarship at Penn Law

For too long, environmental policymaking has relied on trial and error, without adequate or systematic learning from either the trials or the errors. Systematic program evaluation research has been remarkably scarce relative to the overall number of environmental policies adopted in the United States, as well as relative to the amount of evaluation research found in other fields, such as medicine, education, or transportation safety. This paper examines the role that program evaluation should play in environmental policy making, distinguishing such research from other types of analysis, including risk assessment, cost-effectiveness analysis, and cost-benefit analysis. It explains the kinds of ...


Constitutional Ethnography: An Introduction, Kim Lane Scheppele Oct 2004

Constitutional Ethnography: An Introduction, Kim Lane Scheppele

Faculty Scholarship at Penn Law

Constitutional ethnography is the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape. This article provides an introduction to this sort of study by contrasting constitutional ethnography with multivariate analysis and with nationalist constitutional analysis. The article advocates not a universal one-size-fits-all theory or an elegant model that abstracts away the distinctive, but instead outlines an approach that can identify a set of repertoires found in real cases. Learning the set of repertoires that constitutional ethnography reveals, one can see more deeply into particular cases. Constitutional ethnography ...


Law In A Time Of Emergency, Kim Lane Scheppele Oct 2004

Law In A Time Of Emergency, Kim Lane Scheppele

Faculty Scholarship at Penn Law

This article examines the domestic and foreign policy responses of the Bush administration to the events of 9/11 and contrasts them with the primary responses of America’s democratic allies in Europe. Both sets of responses are understood through the lens of Carl Schmitt’s writing on the nature of the state of exception, which in many ways provides a blueprint for contemporary American conceptions of emergency powers while providing a notorious and unsuccessful attempt to justify emergency powers to contemporary Europeans. I argue that the divergence in the standard understandings of two formative historical events help explain European ...


Other People's Patriot Acts: Europe's Response To September 11, Kim Lane Scheppele Oct 2004

Other People's Patriot Acts: Europe's Response To September 11, Kim Lane Scheppele

Faculty Scholarship at Penn Law

After September 11, many countries changed their laws to make it easier to fight terrorism. They did so in part because the United Nations Security Council passed Resolution 1373 under its Chapter VII powers. The resolution required all Members of the United Nations to criminalize terrorism, to prevent their territory from being used to plan or promote terrorism, to crack down on terrorism financing, to tighten up immigration and asylum procedures and to share information about terrorists and terrorist threats with other states. This article examines what happened to the Security Council mandate when it got to Europe by first ...


A Realpolitik Defense Of Social Rights, Kim Lane Scheppele Sep 2004

A Realpolitik Defense Of Social Rights, Kim Lane Scheppele

Faculty Scholarship at Penn Law

Social rights are controversial in theory, but many constitutions feature long lists of social rights anyway. But how can poor states ever hope to realize these rights? This article examines the practical bargaining over social rights that occurs when countries go broke and international financial institutions step in to direct internal fiscal affairs. Constitutional Courts can give their own governments leverage in bargaining with the IMF by making strong decisions defending social rights just at those moments. Because of the IMF's commitment to the rule of law, it is hard for the IMF to insist as part of the ...


Watching The Watchers: Surveillance, Transparency, And Political Freedom In The War On Terror, Seth F. Kreimer Sep 2004

Watching The Watchers: Surveillance, Transparency, And Political Freedom In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


On Software Regulation, Polk Wagner Aug 2004

On Software Regulation, Polk Wagner

Faculty Scholarship at Penn Law

This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibria of regulation-bysoftware. The absence of a legal right will stimulate a technological response—and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.” The implications of this methodological shift are explored in the context of the emerging (and ...


General And Specific Legal Rules, Paul G. Mahoney, Chris William Sanchirico Jul 2004

General And Specific Legal Rules, Paul G. Mahoney, Chris William Sanchirico

Faculty Scholarship at Penn Law

Legal rules may be general (that is, applicable to a broad range of situations) or specific. Adopting a custom-tailored rule for a specific activity permits the regulator to make efficient use of information about the social costs and benefits of that activity. However, the rule maker typically relies on the regulated parties for such information. The regulated parties may attempt to influence the rule maker, producing rules that reflect their private interests. We show that in some cases limiting the rule maker to a single rule for multiple activities will moderate this influence and maximize welfare. Available for download at ...


International Legal Pluralism, William W. Burke-White Jul 2004

International Legal Pluralism, William W. Burke-White

Faculty Scholarship at Penn Law

No abstract provided.


Our Corporate Federalism And The Shape Of Corporate Law, Marcel Kahan, Edward B. Rock Jun 2004

Our Corporate Federalism And The Shape Of Corporate Law, Marcel Kahan, Edward B. Rock

Faculty Scholarship at Penn Law

In the public debate sparked by the corporate scandals of the last years, Delaware has been strikingly absent. In contrast to the high profile activity of Congress, the Securities and Exchange Commission, the stock exchanges, federal prosecutors, and even state law enforcement officials, Delaware has been largely mute: no legislation; no rule-making; no criminal investigations; few headlines. In this Article, we use Delaware's relative passivity during this latest episode of corporate law-making as a starting point in the analysis of the shape of American corporate federalism and Delaware's place within it. We argue that Delaware long ago opted ...


Intellectual Property Law And The Boundaries Of The Firm, Oren Bar-Gill, Gideon Parchomovsky Jun 2004

Intellectual Property Law And The Boundaries Of The Firm, Oren Bar-Gill, Gideon Parchomovsky

Faculty Scholarship at Penn Law

Arrow's disclosure paradox implies that information that is not afforded legal protection cannot be bought or sold on the market. This paper emphasizes the important relationship between the paradox of disclosure and the boundaries of the firm question. Only legally protected inventions, i.e., patented inventions, may be traded; pre-patent stages of the innovation process may not. Consequently, by force of law, rather than by the guidance of economic principle, pre-patent innovation must be carried out within the boundaries of a single firm.


Perceptions Of Corruption And Campaign Finance: When Public Opinion Determines Constitutional Law, Nathaniel Persily, Kelli Lammie Jun 2004

Perceptions Of Corruption And Campaign Finance: When Public Opinion Determines Constitutional Law, Nathaniel Persily, Kelli Lammie

Faculty Scholarship at Penn Law

This study tests the empirical assumptions about American public opinion found in the Supreme Court’s opinions concerning campaign finance reform. The area of campaign finance is a unique one in First Amendment law because the Court has allowed the mere appearance of a problem (in this case, “corruption”) to justify the curtailment of recognized First Amendment rights of speech and association. Since Buckley v. Valeo, defendants in campaign finance cases have proffered various types of evidence to support the notion that the public perceives a great deal of corruption produced by the campaign finance system. Most recently, in McConnell ...


Does Criminal Law Deter? A Behavioral Science Investigation, Paul H. Robinson Jun 2004

Does Criminal Law Deter? A Behavioral Science Investigation, Paul H. Robinson

Faculty Scholarship at Penn Law

Having a criminal justice system that imposes sanctions no doubt does deter criminal conduct. But available social science research suggests that manipulating criminal law rules within that system to achieve heightened deterrence effects generally will be ineffective. Potential offenders often do not know of the legal rules. Even if they do, they frequently are unable to bring this knowledge to bear in guiding their conduct, due to a variety of situational, social, or chemical factors. Even if they can, a rational analysis commonly puts the perceived benefits of crime greater than its perceived costs, due to a variety of criminal ...


Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas Jun 2004

Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas

Faculty Scholarship at Penn Law

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The ...


Pleas' Progress, Stephanos Bibas May 2004

Pleas' Progress, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Shifting Sands: The Limits Of Science In Setting Risk Standards, Cary Coglianese, Gary E. Marchant Apr 2004

Shifting Sands: The Limits Of Science In Setting Risk Standards, Cary Coglianese, Gary E. Marchant

Faculty Scholarship at Penn Law

No abstract provided.


The Tax Efficiency Of Stock-Based Compensation, Michael S. Knoll Mar 2004

The Tax Efficiency Of Stock-Based Compensation, Michael S. Knoll

Faculty Scholarship at Penn Law

Over the last two decades, the use of company stock and options thereon to compensate and motivate employees has become widespread. Defenders of stock-based compensation argue that it creates value for shareholders because it encourages employees to work harder and with a common purpose. Critics, however, are less sure and stock-based compensation has come under heavy attack from investors, commentators and academics. Critics argue that it imposes excessive risk on employees and overstates net income. To date, there has been very little detailed legal or economic analysis of the tax efficiency of stock-based compensation. What serious work there has been ...


A New Player In The Boardroom: The Emergence Of The Independent Directors' Counsel, Geoffrey C. Hazard Jr., Edward B. Rock Mar 2004

A New Player In The Boardroom: The Emergence Of The Independent Directors' Counsel, Geoffrey C. Hazard Jr., Edward B. Rock

Faculty Scholarship at Penn Law

Over the last thirty years, the independent directors have occasionally been represented by independent counsel. Instances include: special litigation committees reviewing derivative suits; independent committees in parent subsidiary mergers and MBOs; and internal investigations of misconduct. We predict that, with the additional legal requirements imposed on independent directors by the Sarbanes Oxley Act and related changes to SEC rules and Stock Exchange listing requirements, the independent directors, especially those on the Audit Committee, increasingly will be represented on a continuing basis by independent legal counsel. Out of this will emerge a new figure in the board room: the Independent Directors ...


Criminal Justice In The Information Age, Paul H. Robinson Mar 2004

Criminal Justice In The Information Age, Paul H. Robinson

Faculty Scholarship at Penn Law

This paper suggests how the information age might produce high capture and conviction rates and speculates on the effect of such developments on the criminal justice system's punishment theory. The low rate at which offenders presently are punished makes a deterrent threat of official sanction of limited effect. With a high punishment rate, however, a distribution of liability and punishment based upon a deterrence principle might, for the first time, make sense. On the other hand, the greater deterrent effect might eliminate crime as a serious social concern. And, without the pressure of a serious crime problem, the theory ...


Is The Federal Circuit Succeeding? An Empirical Assessment Of Judicial Performance, Polk Wagner, Lee Petherbridge Mar 2004

Is The Federal Circuit Succeeding? An Empirical Assessment Of Judicial Performance, Polk Wagner, Lee Petherbridge

Faculty Scholarship at Penn Law

As an appellate body jurisdictionally demarcated by subject matter rather than geography, the United States Court of Appeals for the Federal Circuit occupies a unique role in the federal judiciary. This controversial institutional design has had profound effects on the jurisprudential development of the legal regimes within its purview - especially the patent law, which the Federal Circuit has come to thoroughly dominate in its two decades of existence. In this Article, we assess the court's performance against its basic premise: that, as compared to prior regional circuit involvement, centralization of legal authority will yield a clearer, more coherent, and ...


What Property Is, Abraham Bell, Gideon Parchomovsky Feb 2004

What Property Is, Abraham Bell, Gideon Parchomovsky

Faculty Scholarship at Penn Law

Property law has eluded both a consistent definition and a unified conceptual framework. Instrumentalists insist that property is nothing more than default contract rules. Conceptualists proclaim the primacy of in rem conceptualization and of specially privileged rights such as the rights to exclude. Others think of property as an infinitely malleable bundle of sticks. We demonstrate that any comprehensive property theory must address four legal questions: (1) What things are protected by property law; (2) vis-a-vis whom; (3) with what rights; and (4) enforced by what mechanism. Then, we introduce a value-oriented theory to show how property law answers these ...


Lawsuit Abandonment Options In Possibly Frivolous Litigation Games, Peter H. Huang Jan 2004

Lawsuit Abandonment Options In Possibly Frivolous Litigation Games, Peter H. Huang

Faculty Scholarship at Penn Law

This paper develops a new theory of possibly frivolous litigation by focusing on a plaintiff's options to unilaterally abandon a lawsuit. Federal Rule of Civil Procedure 41(a)(1)(i) and its various state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. This paper's options approach to litigation, including quite possibly, frivolous litigation is placed in the context of the literature of economic models about litigation in general and frivolous litigation in particular. This paper demonstrates that possibly frivolous lawsuits will be filed and settled when the values of a plaintiff ...


The Conceptual Jurisprudence Of The German Constitution, William Ewald Jan 2004

The Conceptual Jurisprudence Of The German Constitution, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.


Insuring Liability Risks, Tom Baker Jan 2004

Insuring Liability Risks, Tom Baker

Faculty Scholarship at Penn Law

Recent dramatic increases in prices for medical liability insurance, directors and officers insurance, and other lines of commercial liability insurance, together with the exit of some insurers from those lines of business, has placed liability insurance on the public agenda. At the same time, asbestos and environmental losses continue to mount under general liability insurance policies sold long ago, when no one could have predicted the extent or cost of such losses. In combination, these and other related events have raised serious concerns about the insurability of liability risks and have prompted calls for dramatic efforts to roll back the ...


Race, Face, And Rawls, Anita L. Allen Jan 2004

Race, Face, And Rawls, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Welfare Reform And Economic Freedom: Low-Income Mothers' Decisions About Work At Home And In The Market, Dorothy E. Roberts Jan 2004

Welfare Reform And Economic Freedom: Low-Income Mothers' Decisions About Work At Home And In The Market, Dorothy E. Roberts

Faculty Scholarship at Penn Law

No abstract provided.


Sovereign Debt Reform And The Interest Of Creditors, William W. Bratton, G. Mitu Gulati Jan 2004

Sovereign Debt Reform And The Interest Of Creditors, William W. Bratton, G. Mitu Gulati

Faculty Scholarship at Penn Law

No abstract provided.


Selling Mayberry: Communities And Individuals In Law And Economics, Gideon Parchomovsky, Peter Siegelman Jan 2004

Selling Mayberry: Communities And Individuals In Law And Economics, Gideon Parchomovsky, Peter Siegelman

Faculty Scholarship at Penn Law

The small village of Cheshire, Ohio was recently acquired in its entirety by the firm whose giant power plant, located at the edge of town, caused it serious pollution problems. Although the plant was worth substantially more than the town, this was not a simple Coasean bargain. This paper combines an ethnographic methodology with theoretical insights from law and economics to present an empirical and theoretic challenge to the standard account of nuisance disputes. We explore the transaction in detail and explain what prevented collective action and holdout problems that are usually thought to hinder bargaining with groups. Specifically, we ...