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Full-Text Articles in Political Economy

Perpetual Affordability Covenants: Can These Land Use Tools Solve The Affordable Housing Crisis?, Elizabeth Elia Oct 2019

Perpetual Affordability Covenants: Can These Land Use Tools Solve The Affordable Housing Crisis?, Elizabeth Elia

Faculty Scholarship

Approximately 3.8 million privately-owned residential housing units in America today contain affordability covenants recorded in their chains of title. State and local agencies and the District of Columbia use these covenants to ensure that publicly-subsidized properties are actually used to provide affordable housing. With rents at all-time highs and stagnant wages, the affordable housing crisis has reached a fever pitch. House Democrats are proposing billions more in housing subsidy. To the extent those funds subsidize privately-owned housing development they, too, will be secured by affordability covenants. In response to this crisis, a new trend in high cost markets is ...


Toward Fair And Sustainable Capitalism: A Comprehensive Proposal To Help American Workers, Restore Fair Gainsharing Between Employees And Shareholders, And Increase American Competitiveness By Reorienting Our Corporate Governance System Toward Sustainable Long-Term Growth And Encouraging Investments In America’S Future, Leo E. Strine Sep 2019

Toward Fair And Sustainable Capitalism: A Comprehensive Proposal To Help American Workers, Restore Fair Gainsharing Between Employees And Shareholders, And Increase American Competitiveness By Reorienting Our Corporate Governance System Toward Sustainable Long-Term Growth And Encouraging Investments In America’S Future, Leo E. Strine

Faculty Scholarship at Penn Law

To promote fair and sustainable capitalism and help business and labor work together to build an American economy that works for all, this paper presents a comprehensive proposal to reform the American corporate governance system by aligning the incentives of those who control large U.S. corporations with the interests of working Americans who must put their hard-earned savings in mutual funds in their 401(k) and 529 plans. The proposal would achieve this through a series of measured, coherent changes to current laws and regulations, including: requiring not just operating companies, but institutional investors, to give appropriate consideration to ...


Frand And Antitrust, Herbert J. Hovenkamp Aug 2019

Frand And Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This paper considers when a patentee’s violation of a FRAND commitment also violates the antitrust laws. It warns against two extremes. First, is thinking that any violation of a FRAND obligation is an antitrust violation as well. FRAND obligations are contractual, and most breaches of contract do not violate antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation.

Every antitrust case must consider the market environment in which conduct is to be evaluated. SSOs operated by multiple firms are joint ventures. Antitrust’s role ...


Does The Decriminalization Of Prostitution Reduce Rape And Sexually Transmitted Disease? A Review Of Cunningham And Shah Findings, Lily Lachapelle, Clare Schneider, Melanie Shapiro, Donna M. Hughes Aug 2019

Does The Decriminalization Of Prostitution Reduce Rape And Sexually Transmitted Disease? A Review Of Cunningham And Shah Findings, Lily Lachapelle, Clare Schneider, Melanie Shapiro, Donna M. Hughes

Dignity: A Journal on Sexual Exploitation and Violence

In 2013, research findings by Cunningham and Shah claimed that rape and sexually transmitted diseases were reduced by decriminalized prostitution in Rhode Island. The original unpublished claims have received wide media coverage which have gone unexamined. This review finds errors in their analyses. One error is the date when prostitution was decriminalized in Rhode Island. Cunningham and Shah claim that prostitution was decriminalized in 2003. Our analysis finds the date of decriminalization of prostitution was 1980. The change in the start date of decriminalization significantly alters the analysis and the findings. Another error results from Cunningham and Shah using an ...


Health Care's Market Bureaucracy, Allison K. Hoffman May 2019

Health Care's Market Bureaucracy, Allison K. Hoffman

Faculty Scholarship at Penn Law

The last several decades of health law and policy have been built on a foundation of economic theory. This theory supported the proliferation of market-based policies that promised maximum efficiency and minimal bureaucracy. Neither of these promises has been realized. A mounting body of empirical research discussed in this Article makes clear that leading market-based policies are not efficient — they fail to capture what people want. Even more, this Article describes how the struggle to bolster these policies — through constant regulatory, technocratic tinkering that aims to improve the market and the decision-making of consumers in it — has produced a massive ...


Centros, California’S “Women On Boards” Statute And The Scope Of Regulatory Competition, Jill E. Fisch, Steven Davidoff Solomon May 2019

Centros, California’S “Women On Boards” Statute And The Scope Of Regulatory Competition, Jill E. Fisch, Steven Davidoff Solomon

Faculty Scholarship at Penn Law

We examine the Centros decision through the lens of SB 826 – the California statute mandating a minimum number of women on boards. SB 826, like the Centros decision, raises questions about the scope of the internal affairs doctrine and its role in encouraging regulatory competition. Despite the claim that US corporate law is characterized by regulatory competition, in the US, the internal affairs doctrine has led to less variation in corporate law than in Europe. We theorize that this is due to the shareholder primacy norm in US corporate law which results in the internal affairs doctrine focusing on matters ...


The Fire Rises: Refining The Pennsylvania Fireworks Law So That Fewer People Get Burned, Sean P. Kraus Apr 2019

The Fire Rises: Refining The Pennsylvania Fireworks Law So That Fewer People Get Burned, Sean P. Kraus

Dickinson Law Review

On October 30, 2017, the General Assembly of Pennsylvania passed an act that repealed the state’s fireworks law, which had prohibited the sale of most fireworks to Pennsylvanian consumers for nearly 80 years. The law’s replacement generally permits Pennsylvanians over 18 years old to purchase, possess, and use “Consumer Fireworks.” Bottle rockets, firecrackers, Roman candles, and aerial shells are now available to amateur celebrants for holidays like Independence Day and New Year’s Eve. The law also regulates a category of larger “Display Fireworks,” sets standards for fireworks vendors, and introduces a 12-percent excise tax on fireworks sales ...


The Tcja And The Questionable Incentive To Incorporate, Part 2, Michael S. Knoll Mar 2019

The Tcja And The Questionable Incentive To Incorporate, Part 2, Michael S. Knoll

Faculty Scholarship at Penn Law

The Tax Cuts and Jobs Act (TCJA) has put the question should a business be organized as a passthrough entity or as a corporation at center stage. The TCJA eliminated much of the tax disadvantage from using the corporate form, but did Congress go so far that it advantaged corporations relative to pass-through entities? Some prominent commentators say yes. They argue that the federal income tax now encourages individual owners of pass-through businesses to restructure their business as subchapter C corporations, and they predict that the TCJA will lead to a cascade of incorporations. The principal driver of the shift ...


The Tcja And The Questionable Incentive To Incorporate, Michael S. Knoll Mar 2019

The Tcja And The Questionable Incentive To Incorporate, Michael S. Knoll

Faculty Scholarship at Penn Law

The Tax Cuts and Jobs Act (TCJA) has put the question should a business be organized as a passthrough entity or as a corporation at center stage. The TCJA eliminated much of the tax disadvantage from using the corporate form, but did Congress go so far that it advantaged corporations relative to pass-through entities? Some prominent commentators say yes. They argue that the federal income tax now encourages individual owners of pass-through businesses to restructure their business as subchapter C corporations, and they predict that the TCJA will lead to a cascade of incorporations. The principal driver of the shift ...


Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler Jan 2019

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

Faculty Scholarship at Penn Law

Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.

Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing ...


Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr. Jun 2018

Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr.

Faculty Scholarship at Penn Law

This Essay draws both on my scholarly and on my personal experience as a member of Puerto Rico’s oversight board to assess the first two years of the Board’s existence. I begin in a scholarly mode, by exploring the question of where P.R.O.M.E.S.A., the legislation that created the Board, came from. P.R.O.M.E.S.A.’s core provisions are, I will argue, the product of two historical patterns that have emerged in responses to the financial distress of public entities in the United States. The first dates back to ...


The Significance Of Mongolia's Foreign Policy And Security Apparatus On A Global And Regional Scale, Bolor Lkhaajav May 2018

The Significance Of Mongolia's Foreign Policy And Security Apparatus On A Global And Regional Scale, Bolor Lkhaajav

Master's Projects and Capstones

Mongolia, land-locked between two politically, economically, and militarily powerful nations — Russia and China — often must balance its foreign and security policies with its two neighbors and countries beyond. When discussing Mongolia’s foreign policy and security apparatus, historians and scholars look at the international relations of East Asia as a whole. This is the case not because Mongolia’s foreign policy is insignificant but because greater powers impose greater influence on smaller states. Mongolia’s partial involvement in World War II (WWII), and the Cold War introduced new challenges as well as opportunities for Mongolia to modernize its foreign policy ...


The Normalization Of Prostitution In Switzerland: The Origin Of Policies, Corinne Isler, Marjut Jyrkinen Apr 2018

The Normalization Of Prostitution In Switzerland: The Origin Of Policies, Corinne Isler, Marjut Jyrkinen

Dignity: A Journal on Sexual Exploitation and Violence

In this article, we examine how socio-political actors frame prostitution and problems attached to the phenomenon and what types of policies they suggest. The sex trade in Switzerland has been tolerated since 1942, and prostitution is protected under the economic freedom guaranteed by the Swiss constitution. Any critique of prostitution is viewed as counterproductive, claimed to be rooted in old-fashioned ideas about sexuality and thought to worsen the situation for women who sell sex. The role of sex buyers is largely obscured, and the presumed right to buy sex remains unquestioned.


Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin Jan 2018

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011 ...


Progressive Antitrust, Herbert J. Hovenkamp Jan 2018

Progressive Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...


Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp Oct 2017

Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new ...


The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp Jul 2017

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a ...


Who Bleeds When The Wolves Bite? A Flesh-And-Blood Perspective On Hedge Fund Activism And Our Strange Corporate Governance System, Leo E. Strine Jr. Apr 2017

Who Bleeds When The Wolves Bite? A Flesh-And-Blood Perspective On Hedge Fund Activism And Our Strange Corporate Governance System, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

This paper examines the effects of hedge fund activism and so-called wolf pack activity on the ordinary human beings—the human investors—who fund our capital markets but who, as indirect of owners of corporate equity, have only limited direct power to ensure that the capital they contribute is deployed to serve their welfare and in turn the broader social good.

Most human investors in fact depend much more on their labor than on their equity for their wealth and therefore care deeply about whether our corporate governance system creates incentives for corporations to create and sustain jobs for them ...


The Separation Of Corporate Law And Social Welfare, William W. Bratton Jan 2017

The Separation Of Corporate Law And Social Welfare, William W. Bratton

Faculty Scholarship at Penn Law

A half century ago, corporate legal theory pursued an institutional vision in which corporations and the law that creates them protect people from the ravages of volatile free markets. That vision was challenged on the ground during the 1980s, when corporate legal institutions and market forces came to blows over questions concerning hostile takeovers. By 1990, it seemed like the institutions had won. But a different picture has emerged as the years have gone by. It is now clear that the market side really won the battle of the 1980s, succeeding in entering a wedge between corporate law and social ...


Defending A Mixed Economy, Herbert J. Hovenkamp May 2016

Defending A Mixed Economy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This essay reviews Jacob S. Hacker's and Paul Pierson's very engaging book, American Amnesia: How the War on Government Led Us to Forget what Made America Prosper (2016).


A Constitutional Political Economy Perspective On The Colonization Of Mars, Shashank Sirivolu Apr 2016

A Constitutional Political Economy Perspective On The Colonization Of Mars, Shashank Sirivolu

Honors Theses (PPE)

NASA has released an account of the agency's plans for a mission to Mars. Private organizations, like SpaceX, too have expressed a goal to visit or, in some cases, even establish settlements on Mars. Yet the prospect of establishing settlements, that is, colonizing - as opposed to simply exploring - raises a number of issues. The focus of this study is on the emergence of institutions and organizations on an extraterrestrial planet like Mars. Specifically, the thesis will explore the conscious design of organizations and institutions of collective action, from the Constitutional Political Economy perspective.


Antitrust And Information Technologies, Herbert J. Hovenkamp Mar 2016

Antitrust And Information Technologies, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Technological change strongly affects the use of information to facilitate anticompetitive practices. The effects result mainly from digitization and the many products and processes that it enables. These technologies of information also account for a significant portion of the difficulties that antitrust law encounters when its addresses intellectual property rights. In addition, changes in the technologies of information affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm.

For example, digital technology affects the way firms exercise market power, but it also imposes serious measurement difficulties. The digital revolution has occurred in ...


Through The Gateway: Marijuana Production, Governance, And The Drug War Détente, Michael Polson Feb 2016

Through The Gateway: Marijuana Production, Governance, And The Drug War Détente, Michael Polson

All Dissertations, Theses, and Capstone Projects

Since the 1996 voter approval of medical marijuana laws in California, marijuana policy has become increasingly liberalized. Producers, however, have remained in the greyest of grey market zones. Federal anti-drug laws and supply-side tactics have intensively targeted them even as marijuana has become more licit. In this legally unstable environment, marijuana patient-cultivators and underground producers have articulated and asserted themselves politically and economically, particularly as the likelihood of full legalization has increased. This dissertation explores how producers navigated the nebulous zone between underground and medical markets. I argue that even as producers supplied marijuana to a formalizing, regulated medical industry ...


Governance Reform And The Judicial Role In Municipal Bankruptcy, Clayton P. Gillette, David A. Skeel Jr. Jan 2016

Governance Reform And The Judicial Role In Municipal Bankruptcy, Clayton P. Gillette, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and the limitations of using the Bankruptcy Code to adjust municipal debt. In this article, we contend that, to truly resolve the distress of a substantial city, municipal bankruptcy needs to do more than simply provide immediate debt relief. Debt adjustment alone does nothing to remedy the fragmented decision-making and incentives for expanding municipal budgets that underlie municipal distress. Unless bankruptcy also addresses governance dysfunction, the city may slide right back into financial crisis. Governance restructuring has long been an essential element of corporate bankruptcy ...


Copyright And Good Faith Purchasers, Shyamkrishna Balganesh Jan 2016

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Good faith purchasers for value — individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality — have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul of ...


Re-Imagining Antitrust: The Revisionist Work Of Richard S. Markovits, Herbert J. Hovenkamp Jan 2016

Re-Imagining Antitrust: The Revisionist Work Of Richard S. Markovits, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This review discusses Richard Markovits’ two volume book "Economics and the Interpretation" and "Application of U.S. and E.U. Antitrust Law" (2014), focusing mainly on Markovits’ approaches to antitrust tests of illegality, pricing offenses, market definition and the assessment of market power, and his important work anticipating unilateral effects theory in merger cases. Markovits argues forcefully that the Sherman and Clayton Acts were intended to employ different tests of illegality. As a result, even when they cover the same practices, such as mergers, exclusive dealing, or tying, they address them under different tests. He then shows how he would ...


Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan Dec 2015

Incumbent Landscapes, Disruptive Uses: Perspectives On Marijuana-Related Land Use Control, Donald J. Kochan

Donald J. Kochan

The story behind the move toward marijuana’s legality is a story of disruptive forces to the incumbent legal and physical landscape. It affects incumbent markets, incumbent places, the incumbent regulatory structure, and the legal system in general which must mediate the battles involving the push for relaxation of illegality and adaptation to accepting new marijuana-related land uses, against efforts toward entrenchment, resilience, and resistance to that disruption.

This Article is entirely agnostic on the issue of whether we should or should not decriminalize, legalize, or otherwise increase legal tolerance for marijuana or any other drugs. Nonetheless, we must grapple ...


Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova Jun 2015

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of fueling continuous ...


Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp Apr 2015

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.

One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California ...


Heterodox Challenges To Consumption-Oriented Models Of Legislation, Luigi Russi, John Haskell Mar 2015

Heterodox Challenges To Consumption-Oriented Models Of Legislation, Luigi Russi, John Haskell

Luigi Russi

Consumption-oriented models of governance dominate the contemporary global legal architecture. The financial crisis beginning in 2008, however, poses fundamental questions about the future viability of these approaches to economics and law. This paper attempts to first, evaluate consumptionÕs salient historical development and themes from the post- World War II era to more recent legislative innovation, and second, introduce seven heterodox vignettes that challenge the hegemony of consumption in legislative policy. The paper concludes with some brief reflections upon potential opportunities and limitations of these heterodox traditions within future scholarship and policy addressing the interplay of law and consumption in global ...