Showing papers in "Villanova law review in 2016"

Moving Beyond Bitcoin to an Endogenous Theory of Decentralized Ledger Technology Regulation: An Initial Proposal

Abstract: This Article makes the case for such an approach in five parts. Part I briefly introduces the decentralized ledger technology ecosystem, setting the stage for the rest of the Article by focusing on the protocol layer before addressing applications that might run on the protocol, such as bitcoin payments. Part II examines the current regulatory landscape, describing the “law lag” experienced by the decentralized ledger technology ecosystem and evaluating whether the choice between ex ante and ex post regulation is contributing to the lag. In light of the technology, its present uses, and the current regulatory landscape facing those uses, Part III proposes a set of criteria for constructing a regulatory framework for decentralized ledger technology and evaluates the alternative regulatory approaches that have been considered to date in light of those criteria. Ultimately, Part III identifies a regulatory lacuna common to both the present landscape and the alternative proposals presented in the literature. Part IV synthesizes an endogenous theory of decentralized ledger technology regulation from concepts found in economic regulation, international development, comparative law, and financial regulation literature.

A Wolf in Sheep's Clothing: UNOCAL and the Defensive Mechanism Hidden in Corporate Benefit Purpose

Abstract: To the extent that directors at public benefit corporations adopt defensive measures, do such measures, in certain contexts, breach the thresholds of preclusivity and coerciveness when combined with the corporation’s latitude to adhere to its mission? This Article seeks to answer these questions, among others.

"Arising From" Villanova Law Review: Villanova Law Review's Analysis of Personal Jurisdiction

Abstract: As a general matter, this article reflects the principle that one can learn a great deal by studying the past. More specifically, the author argues that distinctions between specific and general jurisdiction, as well as the importance of the “arises from” inquiry, are better understood against the backdrop of Pennoyer v. Neff and the cases immediately following it. Part I of this Article provides an overview of personal jurisdiction up until 1955, the year the Villanova Law Review published its first issue. Part II considers how the Court and Villanova Law Review analyzed and applied International Shoe Co. v. Washington from 1955–2015. Part III argues that in recent years the policy bases Supreme Court Justices have used to explain specific and general jurisdiction may be traced back to Pennoyer. Finally, Part IV offers some general conclusions and observations.

Finding Certainty in Cert: An Empirical Analysis of the Factors Involved in Supreme Court Certiorari Decisions From 2001-2015

Abstract: The Supreme Court annually grants approximately 5% of the petitions to hear cases it receives. It denies petitions from the federal government, from large corporations, and from high-pro?le attorneys. The decisions of which petitions for writ of certiorari the Court grants sets the Court’s agenda each term and de?nes the issues which the Court will engage. With such a low likelihood that the Court hears any particular case, what makes a petition more or less likely to be granted? The focus of much of the existing scholarship on certiorari deals with the theoretical underpinnings of these judicial decisions. In this paper we set out to add to the empirical study of certiorari by examining an expansive, original dataset of the 93,000 petitions for certiorari between the 2001 and the start of the 2015 Supreme Court Terms. This allows us to investigate decisions made during and directly preceding the Roberts Court. The empirical examination focuses on several fact ors th at are thought to a?ect certiorari decisions, mainly focusing on the individuals and entities involved in the certiorari petitions. These include the lower court that most recently heard the case, the parties, the attorneys, law ?rms, and the participation of amicus curiae. We look at success from both sides of the litigation:both in respect to petitioners and respondents. The ?ndings in this paper are designed to add to our understanding of the extent that these individuals and entities factor into the likelihood of certiorari grants and denials. They are also designed to locate the speci?c individuals and entities that made the largest impact on certiorari decisions for the 2001 through 2015 Supreme Court Terms.

Third Circuit Takes the Wind Out of Frivolous Litigators' Sails in Fair Wind Sailing, Inc. v. Dempster

Abstract: This Casebrief examines the Third Circuit’s new interpretation of exceptional, which increases the likelihood of awarding attorneys’ fees under the Lanham Act and addresses the benefits that accompany the court’s willingness to import features from other areas of intellectual property law.

Smith and Hogan at Villanova: Reflections on Anglo-American Criminal Law, the Definition of Rape, and What America Still Needs to Learn from England

Abstract: This essay was presented at the Norman J. Shachoy Symposium in September 2015, commemorating the 60th anniversary of the Villanova Law Review. Primarily, it is a comment on two articles published in the Villanova Law Review: John C. Smith, “Subjective or Objective? Ups and Downs of the Test of Criminal Liability in England” (1981-1982) and T. Brian Hogan, “Crime, Punishment and Responsibility.” (1978-1979). The essays, authored by two of England’s most influential criminal law theorists, take up the broad issue of criminal responsibility. Moreover, in Smith’s contribution, he offers insights regarding how to think about the specific issue of mens rea in rape. In addition to engaging and honoring the work of Smith and Hogan as it appeared in the Villanova Law Review, this essay will defend two claims concerning comparative Anglo-American criminal law. First, English criminal law has long had a more salutary approach than many American jurisdictions when it comes to asking the right kind of questions regarding the mens rea of rape. Second, when it comes to substantive answers regarding what the mens rea of rape should be, American jurisdictions still have much to learn from England’s example.

#Guilty? Sublet v. State and the Authentication of Social Media Evidence in Criminal Proceedings

Abstract: This Note discusses the vague standard outlined in Sublet and points to a need for further clarification of authentication standards for social media posts. Part II provides background information regarding the use of social media in litigation. Part III discusses the facts and holding of Sublet. Part IV analyzes the Sublet majority’s decision-making process as well as the dissent’s critique of it. Part V provides a critical analysis of the court’s reasoning in Sublet. Finally, Part VI highlights the impact of Sublet and recommends a clearer standard for authentication that effectively balances the value of social media evidence against the myriad concerns regarding authorship.

Environmental Regulation and Environmental Rights

Abstract: This essay, part of a symposium celebrating the sixtieth anniversary of the Villanova Law Review, reflects on a 1971 article authored by Ferdinand Fernandez, who later would become a federal district court and then court of appeals judge. Fernandez’s article argued that the Due Process Clause of the Fourteenth Amendment creates a substantive individual right to state protection from pollution. Contrary to Fernandez’s prescriptions in 1971 at the advent of modern environmental law, legislation and regulation rather that constitutional litigation have come to dominate the environmental law landscape. In retrospect, this is not surprising. Legislatures and administrative agencies seem to be inherently better institutions than courts for making the complex policy decisions that balance the competing goals implicated by environmental issues. Moreover, when environmental issues are constitutionalized, they are more effectively addressed by mandating a legal and institutional structure conducive to protection of the individual from environmental harm, rather than attempting to guarantee the individual any particular level of environmental quality. The Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth of Pennsylvania, 83 A.3d 901 (2013), represents a possible doctrinal pathway consistent with such a structural approach.

Worlds Colliding: Competition Policy and Bankruptcy Asset Sales

Abstract: This Article is the first to fully examine the procedural and substantive conflicts between bankruptcy and antitrust in the context of bankruptcy fire sales. Those conflicts arise because bankruptcy and antitrust have opposing goals. Neither scholars nor courts have resolved the conflict between bankruptcy and antitrust despite the increasing frequency of potentially anticompetitive mergers and acquisitions in bankruptcy. The rule from _Butner v. United States_— the _Butner_ principle — speaks to uniformity of results in and out of bankruptcy for constituents of the bankruptcy estate, but no analogous doctrine addresses the need for uniform treatment of non-bankruptcy policies that arise in the context of a business bankruptcy proceeding. I address that gap for non-constituents with antitrust concerns flowing from a reorganization.