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Full-Text Articles in Law

Qalys And Policy Evaluation: A New Perspective, Matthew D. Adler Dec 2005

Qalys And Policy Evaluation: A New Perspective, Matthew D. Adler

Faculty Scholarship at Penn Law

“QALYs” (Quality-Adjusted Life Years) are a metric for health and longevity very widely employed by health researchers. Surveys are used to assign health states a quality ranking on zero-one scale, with zero representing a health state no better than death and one perfect health. The total QALY value of a health profile is calculated as the time spent in its component health states, each weighted by its quality. Until a few years ago, despite the huge academic literature on QALY measurement, this approach was seldom used by policymakers in the U.S. But there have been recent signs of governmental ...


Equity Analysis And Natural Hazards Policy, Matthew D. Adler Nov 2005

Equity Analysis And Natural Hazards Policy, Matthew D. Adler

Faculty Scholarship at Penn Law

What is an “equitable” policy for mitigating the impacts of hurricanes, earthquakes, floods, and other natural hazards? Economists tend to see “equity” or “distribution” as irreducibly political and subjective. But, in truth, equity analysis and cost-benefit analysis are on a par. Both require a normative justification. Moreover, normative argument can help us structure equity analysis, just as it can cost-benefit analysis. This chapter, written for a forthcoming book on natural hazards policy after Katrina, argues that equity is a normative consideration distinct from efficiency or overall well-being. It then argues that equity is individualistic, not group-based; ex post, not ex ...


The Corporate Form As A Solution To A Discursive Dilemma, Edward B. Rock Oct 2005

The Corporate Form As A Solution To A Discursive Dilemma, Edward B. Rock

Faculty Scholarship at Penn Law

I examine the connection between the discursive dilemma and corporate law. The discursive dilemma (or doctrinal paradox) is a distinctive social choice problem that was first identified by Kornhauser and Sager and later used as the basis for a theory of organizational personality by Pettit. I examine the ways in which the corporate form prevents the emergence of the discursive dilemma in the firm context and the extent to which the presence of the discursive dilemma can provide the foundation for a theory of corporate personality.


Federalism And Antitrust Reform, Herbert J. Hovenkamp Oct 2005

Federalism And Antitrust Reform, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action ...


Imputed Conflicts Of Interest In International Law Practice, Geoffrey C. Hazard Jr. Oct 2005

Imputed Conflicts Of Interest In International Law Practice, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Discounts And Exclusions, Herbert J. Hovenkamp Aug 2005

Discounts And Exclusions, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The discounting practices of dominant firms has emerged as one of the most problematic areas of private antitrust enforcement against single-firm conduct. The most difficult discount practices to assess are bundled, or multi-product discounts in situations where no significant rival produces every product that is included in the bundle. A debate has emerged over whether such discounts are properly assessed under a legal test that analogizes them to predatory pricing or to tying. Defendants typically prefer predatory pricing analogies, requiring a showing that the price of the assembled bundle was below a relevant measure of cost, such as marginal cost ...


Theories Of The Employment Relationship: Choosing Between Norms And Contracts, Michael L. Wachter Jun 2005

Theories Of The Employment Relationship: Choosing Between Norms And Contracts, Michael L. Wachter

Faculty Scholarship at Penn Law

In this paper, I analyze three types of labor market relationships that are prevalent in the economy - the external labor market that exists outside of firms, and the union and nonunion employment relationships that exist inside firms. The parties' relationships in each of these markets are markedly different from one another with respect to their use of contracts versus norms, their enforcement mechanisms, and their reliance on external competitive market pressures. Why do these very distinct forms exist? This paper provides an answer to this question. To be successful, each of the structures has to resolve problems of match-specific assets ...


Unilateral Refusals To License In The U.S., Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley Jun 2005

Unilateral Refusals To License In The U.S., Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

Faculty Scholarship at Penn Law

Most antitrust claims relating to intellectual property involve challenges to agreements, licensing practices or affirmative conduct involving the use or disposition of the intellectual property rights or the products they cover. But sometimes an antitrust claim centers on an intellectual property owner's refusal to use or license an intellectual property right, perhaps coupled with efforts to enforce the intellectual property right against infringers. The allegation may be that the intellectual property right is so essential to competition that it must be licensed across the board, or that a refusal to license it to one particular party was discriminatory, or ...


Management-Based Strategies For Improving Private Sector Environmental Performance, Cary Coglianese, Jennifer Nash Mar 2005

Management-Based Strategies For Improving Private Sector Environmental Performance, Cary Coglianese, Jennifer Nash

Faculty Scholarship at Penn Law

Improvements in environmental quality depend in large measure on changes in private sector management. In recognition of this fact, government and industry have begun in recent years to focus directly on shaping the internal management practices of private firms. New management-based strategies can take many forms, but unlike conventional regulatory approaches they are linked by their distinctive focus on management practices, rather than on environmental technologies or emissions targets. This article offers the first sustained analysis of both public and private sector initiatives designed specifically to improve firms' environmental management. Synthesizing the results of a conference of leading scholars and ...


Against 'Individual Risk': A Sympathetic Critique Of Risk Assessment, Matthew D. Adler Mar 2005

Against 'Individual Risk': A Sympathetic Critique Of Risk Assessment, Matthew D. Adler

Faculty Scholarship at Penn Law

"Individual risk" currently plays a major role in risk assessment and in the regulatory practices of the health and safety agencies that employ risk assessment, such as EPA, FDA, OSHA, NRC, CPSC, and others. Risk assessors use the term "population risk" to mean the number of deaths caused by some hazard. By contrast, "individual risk" is the incremental probability of death that the hazard imposes on some particular person. Regulatory decision procedures keyed to individual risk are widespread. This is true both for the regulation of toxic chemicals (the heartland of risk assessment), and for other health hazards, such as ...


The Accelerating Degradation Of American Criminal Codes, Paul H. Robinson, Michael T. Cahill Mar 2005

The Accelerating Degradation Of American Criminal Codes, Paul H. Robinson, Michael T. Cahill

Faculty Scholarship at Penn Law

No abstract provided.


White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas Feb 2005

White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas

Faculty Scholarship at Penn Law

This symposium essay speculates about how Booker's loosening of the Federal Sentencing Guidelines is likely to affect white-collar plea bargaining and sentencing. Prosecutors' punishment intuitions and the strong white-collar defense bar will keep white-collar sentencing from growing as harsh as drug sentencing, but the parallels are nonetheless ominous. The essay suggests that the Sentencing Commission revise its loss-computation rules, calibrate white-collar sentences to their core purpose of expressing condemnation, and adding shaming punishments and apologies to give moderate prison sentences more bite.


Privatization And Punishment In The New Era Of Reprogenetics, Dorothy E. Roberts Jan 2005

Privatization And Punishment In The New Era Of Reprogenetics, Dorothy E. Roberts

Faculty Scholarship at Penn Law

No abstract provided.


Responsibility For Unintended Consequences, Claire Oakes Finkelstein Jan 2005

Responsibility For Unintended Consequences, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as ...


Advertising And Intermediaries In Provision Of Legal Services: Bates In Retrospect And Prospect, Geoffrey C. Hazard Jr. Jan 2005

Advertising And Intermediaries In Provision Of Legal Services: Bates In Retrospect And Prospect, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


A National Issue: Segregation In The District Of Columbia And The Civil Rights Movement At Mid-Century, Wendell E. Pritchett Jan 2005

A National Issue: Segregation In The District Of Columbia And The Civil Rights Movement At Mid-Century, Wendell E. Pritchett

Faculty Scholarship at Penn Law

No abstract provided.


The Protestant Revolutions And Western Law, William Ewald Jan 2005

The Protestant Revolutions And Western Law, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.


What Personal Rules Can Teach Us About Basic Institutions, Claire O. Finkelstein Jan 2005

What Personal Rules Can Teach Us About Basic Institutions, Claire O. Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


How Do Corporations Play Politics? The Fedex Story, Jill E. Fisch Jan 2005

How Do Corporations Play Politics? The Fedex Story, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.


Institutional Competition To Regulate Corporations: A Commment On Macey, Jill E. Fisch Jan 2005

Institutional Competition To Regulate Corporations: A Commment On Macey, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.


Unfinished Business: The Fading Promise Of Ada Enforcement In The Federal Courts Under Title I And Its Impact On The Poor, Louis S. Rulli, Jason A. Leckerman Jan 2005

Unfinished Business: The Fading Promise Of Ada Enforcement In The Federal Courts Under Title I And Its Impact On The Poor, Louis S. Rulli, Jason A. Leckerman

Faculty Scholarship at Penn Law

No abstract provided.


The Conservative's Dilemma: Traditional Institutions, Social Change, And Same-Sex Marriage, Amy L. Wax Jan 2005

The Conservative's Dilemma: Traditional Institutions, Social Change, And Same-Sex Marriage, Amy L. Wax

Faculty Scholarship at Penn Law

No abstract provided.


The Internet And Citizen Participation In Rulemaking, Cary Coglianese Jan 2005

The Internet And Citizen Participation In Rulemaking, Cary Coglianese

Faculty Scholarship at Penn Law

Each year, regulatory agencies promulgate thousands of important rules through a process largely insulated from ordinary citizens. Many observers believe the Internet could help revolutionize the rulemaking process, allowing citizens to play a central role in the development of new government regulations. This paper expresses a contrary view. In it, I argue that existing efforts to apply information technology to rulemaking will not noticeably affect citizen participation, as these current efforts do little more than digitize the existing process without addressing the underlying obstacles to greater citizen participation. Although more innovative technologies may eventually enable the ordinary citizen to play ...


"Lawyers For Lawyers": The Emerging Role Of Law Firm Legal Counsel, Geoffrey C. Hazard Jr. Jan 2005

"Lawyers For Lawyers": The Emerging Role Of Law Firm Legal Counsel, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Stephen Choi, Jill E. Fisch, A. C. Pritchard Jan 2005

Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Stephen Choi, Jill E. Fisch, A. C. Pritchard

Faculty Scholarship at Penn Law

When Congress enacted the Private Securities Litigation Reform Act in 1995 (“PSLRA”), the Act’s “lead plaintiff” provision was the centerpiece of its efforts to increase investor control over securities fraud class actions. The lead plaintiff provision alters the balance of power between investors and class counsel by creating a presumption that the investor with the largest financial stake in the case will serve as lead plaintiff. The lead plaintiff then chooses class counsel and, at least in theory, negotiates the terms of counsel’s compensation.

Congress’s stated purpose in enacting the lead plaintiff provision was to encourage institutional ...


Two Valuable Treatises On Civil Procedure, Geoffrey C. Hazard Jr. Jan 2005

Two Valuable Treatises On Civil Procedure, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Beyond Network Neutrality, Christopher S. Yoo Jan 2005

Beyond Network Neutrality, Christopher S. Yoo

Faculty Scholarship at Penn Law

No abstract provided.


Black Club Women And Child Welfare: Lessons For Modern Reform, Dorothy E. Roberts Jan 2005

Black Club Women And Child Welfare: Lessons For Modern Reform, Dorothy E. Roberts

Faculty Scholarship at Penn Law

No abstract provided.


On The Regulation Of Networks As Complex Systems: A Graph Theory Approach, Daniel F. Spulber, Christopher S. Yoo Jan 2005

On The Regulation Of Networks As Complex Systems: A Graph Theory Approach, Daniel F. Spulber, Christopher S. Yoo

Faculty Scholarship at Penn Law

No abstract provided.


Managing Gerrymandering, Mitchell N. Berman Jan 2005

Managing Gerrymandering, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.