Volume 161 – University of Pennsylvania Law Review

VOLUME 161, ISSUE 7 JUNE 2013

ARTICLES

The Technology of Creditor Protection

BARRY E. ADLER & MARCEL KAHAN

Contract is the primary means through which creditors control a firm�s debt� equity conflict. There is an irony here, however. Actions that may render a debtor insolvent are the events against which creditors contract. Yet when a breach of contract yields a debtor�s… Expand

A Theory of Preferred Stock

WILLIAM W. BRATTON & MICHAEL L. WACHTER

Should preferred stock be treated under corporate law as an equity interest in the issuing corporation or under contract law as a senior security? Should a preferred certificate of designation be subsumed in the corporate charter and treated as an incomplete contract filled… Expand

Adapting to the New Shareholder-Centric Reality

EDWARD B. ROCK

After more than eighty years of sustained attention, the master problem of U.S. corporate law�the separation of ownership and control�has mostly been brought under control. This resolution has occurred more through changes in market and corporate practices than through… Expand

RESPONSES

How to Avoid Implementing Today’s Wrong Policies to Solve Yesterday’s Corporate Governance Problems

COLIN MAYER

In response to Barry E. Adler & Marcel Kahan, The Technology of Creditor Protection, 161 U. Pa. L. Rev. 1773 (2013), and Edward B. Rock, Adapting to the New Shareholder-Centric Reality, 161 U. Pa. L. Rev. 1907 (2013).

The Toxic Side Effects of Shareholder Primacy

LYNN A. STOUT

The past two decades have seen a dramatic shift… Expand

Poor Pitiful or Potently Powerful Preferred

LEO E. STRINE, JR.

In response to William W. Bratton & Michael L. Wachter, A Theory of Preferred Stock, 161 U. Pa. L. Rev. 1815 (2013).

Exploring the Limits of Contract Design in Debt Financing

GEORGE TRIANTIS

In response to Barry E. Adler & Marcel Kahan, The Technology of Creditor Protection, 161 U. Pa. L. Rev. 1773 (2013) and Edward B. Rock, Adapting to the New Shareholder-Centric Reality, 161 U. Pa. L. Rev. 1907 (2013).

The alignment of shareholder and manager interests… Expand

COMMENTS

Protecting Search Terms as Opinion Work Product: Applying the Work Product Doctrine to Electronic Discovery

SEAN GRAMMEL

Music Piracy and Diminishing Revenues: How Compulsory Licensing for Interactive Webcasters Can Lead the Recording Industry Back to Prominence

NEIL S. TYLER

This Comment suggests that Congress should amend the Copyright Act to ensure that promising new music-based technologies are able to survive. The establishment of a compulsory license for interactive webcasters will help ensure that sound recording copyright owners are…

VOLUME 161, ISSUE 6 MAY 2013

ARTICLES

Algorithms and Speech

STUART MINOR BENJAMIN

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance�algorithm-based decisions. I begin by looking to broadly accepted legal… Expand

Machine Speech

TIM WU

Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that… Expand

Owning E-Sports: Proprietary Rights in Professional Computer Gaming

DAN L. BURK

One of the most astounding and largely underappreciated developments accompanying the recent proliferation of mass-market computer technology has been the rise of video gaming. From arcade to console and computer desktop to interactive multiplayer network, the explosion in… Expand

Trust and Online Interaction

JUSTIN (GUS) HURWITZ

This Article considers one of the challenges of this evolution: the role of intermediaries� liability for the harm they cause to users. All online interactions are conducted through intermediaries�the routers, servers, applications, services, and switches that make up the… Expand

Information Privacy in the Cloud

PAUL M. SCHWARTZ

Cloud computing is the locating of computing resources on the Internet in a fashion that makes them highly dynamic and scalable. This kind of distributed computing environment can quickly expand to handle a greater system load or take on new tasks. Cloud computing thereby… Expand

Information, Innovation, and Competition Policy for the Internet

HOWARD A. SHELANSKI

Antitrust agencies around the world are increasingly focusing on digital indus- tries. Critics have justifiably questioned the ability of competition agencies to make beneficial enforcement decisions given the complexity and rapid pace of change in online markets. This… Expand

Protocol Layering and Internet Policy

CHRISTOPHER S. YOO

An architectural principle known as protocol layering is widely recognized as one of the foundations of the Internet�s success. In addition, some scholars and industry participants have urged using the layers model as a central organizing principle for regulatory policy.…

VOLUME 161, ISSUE 5 APRIL 2013

ARTICLES

The Geography of the Battlefield: A Framework for Detention and Targeting Outside the �Hot� Conflict Zone

JENNIFER C. DASKAL

The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state�s authority to use lethal force and to detain without charge. To date, the legal and policy… Expand

Exorcising McCulloch: The Conflict-Ridden History of American Banking Nationalism and Dodd-Frank Preemption

RODERICK M. HILLS, JR.

Conventional wisdom holds that federal laws conferring banking powers on national banks presumptively preempt state laws seeking to control the exercise of those powers. This conventional wisdom originates with McCulloch v. Maryland, which established that nationally… Expand

An Empirical Study of Patent Litigation Timing: Could a Patent Term Reduction Decimate Trolls Without Harming Innovators?

BRIAN J. LOVE

This Article conducts an empirical analysis of the relative ages of patents litigated by practicing and nonpracticing entities (NPEs). By studying all infringement claims for a sample of recently expired patents, I find considerable differences in litigation practices… Expand

COMMENTS

Confusing the Means for the Ends: How a Pro-Settlement Policy Risks Undermining the Aims of Title VII

ROBERT D. FRIEDMAN

When analyzing cases arising from disputes over Title VII settlements, courts often begin with the proposition that Congress intended to encourage voluntary settlement of employment discrimination claims. As a result, courts resolve many issues attendant to the settlement… Expand

Suboptimal Social Science and Judicial Precedent

BEN K. GRUNWALD

The social sciences have developed dramatically over the last century in both breadth and sophistication. These disciplines offer systematic data collection and an analytic methodology to test our empirical intuitions about individual behavior and social institutions. Prior…

VOLUME 161, ISSUE 4 MARCH 2013

ARTICLES

Localist Statutory Interpretation

ETHAN J. LEIB

The average citizen�s point of contact with the judicial system as a litigant is, most likely, in the nation�s municipal, county, or local courts. Whether she is contesting a traffic infraction, being charged with a misdemeanor, being cited for a violation of a local… Expand

Neighborhood Empowerment and the Future of the City

KENNETH A. STAHL

In any given metropolitan region, scores of municipalities are locked in a zero-sum struggle for mobile sources of jobs and tax revenue. This competition appears to benefit small, homogeneous suburbs that can directly enact the uniform will of the electorate over large,… Expand

The Conditions of Pretrial Detention

CATHERINE T. STRUVE

The Supreme Court has set forth in detail the standards that govern convicted prisoners’ Eighth Amendment claims concerning their conditions of confinement, but has left undefined the standards for comparable claims by pretrial detainees. The law articulated by the lower… Expand

COMMENTS

The State and the �Psycho Ex-Wife�: Parents� Rights, Children�s Interests, and the First Amendment

KELLY KANAVY

On June 6, 2011, a judge in a small Pennsylvania county courthouse issued a custody order and started a firestorm. The order, citing the children�s best interests, required a father embroiled in a custody battle to take down his critical blog �The Psycho Ex-Wife� and… Expand

The Property Matrix: An Analytical Tool to Answer the Question, �Is This Property?�

FRANCISCO J. MORALES

While it is easy for us to recognize a tangible object as property, we are less comfortable recognizing an intangible thing, such as trade secrets, news, advanced degrees, or our time, as property. The same goes for objects that, though tangible, lie too close to the…

VOLUME 161, ISSUE 3 FEBRUARY 2013

ARTICLES

Four Conceptions of Insurance

KENNETH S. ABRAHAM

This Article identifies four conceptions of insurance that have operated in the debates about insurance law in recent decades, analyzes these conceptions, and examines the normative agendas that drive them. These are the contract, public utility/regulated industry, product,… Expand

Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles

JAMES M. ANDERSON, JOHN M. MACDONALD, RICKY BLUTHENTHAL & J. SCOTT ASHWOOD

The idea of using law to change the built environment in ways that reduce opportunities to commit crimes has a long history. Unfortunately, this idea has received relatively little attention in the legal academy and only limited rigorous empirical scrutiny. In this Article,… Expand

Soul of A Woman: The Sex Stereotyping Prohibition at Work

KIMBERLY A. YURACKO

In 1989, the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited form of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of… Expand

COMMENTS

Up for Grabs: A Workable System for the Unilateral Acquisition of Chattels

MATT CORRIEL

This paper is about the everyday occurrence of coming across an object in the world and evaluating whether or not it is up for grabs. My project explores the shared space at the precipice of the laws of finders, abandonment, destruction, and conversion: a space we often… Expand

Delay in Considering the Constitutionality of Inordinate Delay: The Death Row Phenomenon and the Eighth Amendment

KARA SHARKEY

The Supreme Court has repeatedly declined to address the validity of the unconstitutional delay claim raised by Valle and other death row inmates before him. The issue first came to the Court�s attention over fifteen years ago, in Lackey v. Texas. Justice Stevens issued a…

VOLUME 161, ISSUE 2 JANUARY 2013

ARTICLES

Escaping Battered Credit: A Proposal for Repairing Credit Reports Damaged by Domestic Violence

ANGELA LITTWIN

Debt and domestic violence are connected in ways not previously imagined. A new type of debt�which I have labeled �coerced debt��is emerging from abusive relationships. Coerced debt occurs when the abuser in a violent relationship obtains credit in the victim�s name via… Expand

Federalism, Regulatory Lags, and the Political Economy of Energy Production

DAVID B. SPENCE

The production of natural gas from formerly inaccessible shale formations through the use of hydraulic fracturing has expanded domestic energy supplies and lowered prices and is stimulating the replacement of dirtier fossil fuels with cleaner natural gas. At the same time,… Expand

State Law, the Westfall Act, and the Nature of the Bivens Question

CARLOS M. V�ZQUEZ & STEPHEN I. VLADECK

In the past few years, four courts of appeals have applied a presumption against recognition of a Bivens cause of action in dismissing damages suits alleging constitutional violations arising out of federal officials� pursuit of various national security and… Expand

COMMENTS

Rethinking the Cooperation Clause in Standard Liability Insurance Contracts

NICHOLAS J. GILES

Liability insurance literature has identified three central duties owed by the insurer to the policyholder that grow from the standard personal liability contract: the duty to defend covered claims against the policyholder, the duty to indemnify the insured against… Expand

Preserving Judicial Supremacy Come Heller High Water

BENJAMIN S. SOFTNESS

Minimalism does not only facilitate doctrinal innovation in a given area of the law. On my account, the Court sometimes issues minimalist rulings in order to preserve its ability to develop doctrine at all. The Court�s ability to �say what the law is� depends entirely on…

VOLUME 161, ISSUE 1 DECEMBER 2012

ARTICLES

Leaving the Bench, 1970�2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences

STEPHEN B. BURBANK, S. JAY PLAGER & GREGORY ABLAVSKY

This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy… Expand

Can the States Keep Secrets from the Federal Government?

ROBERT A. MIKOS

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over… Expand

Information Issues on Wall Street 2.0

ELIZABETH POLLMAN

Billions of dollars have flooded new online marketplaces for trading private company stock. These marketplaces stand poised to become important, lasting features of the private company world as they provide a central meeting place for buyers and sellers and potentially… Expand

COMMENTS

Tailoring Discovery: Using Nontranssubstantive Rules to Reduce Waste and Abuse

JOSHUA M. KOPPEL

The current system of discovery in the federal courts can produce enormous costs for both litigants and the court system. These costs stem from the overuse of both discovery in general and costly mandatory discovery procedures that are relevant in only a small subset of… Expand

Take Care That the Laws Be Faithfully Litigated

PARKER RIDER-LONGMAID

In this Comment, I argue that the framework Presidents use to decide whether to defend arguably unconstitutional statutes should be elaborated for statutes that the President believes violate the Constitution’s guarantee of equal protection–specifically where he believes…