Minnesota Law Review最新文献_第2页

Forum Competition and Choice of Law Competition in Securities Law after Morrison v. National Australia Bank 莫里森诉澳大利亚国民银行案后证券法中的论坛竞争与法律选择

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2012-12-01 DOI: 10.2139/SSRN.2029983

Wulf A. Kaal, Richard W. Painter

{"title":"Forum Competition and Choice of Law Competition in Securities Law after Morrison v. National Australia Bank","authors":"Wulf A. Kaal, Richard W. Painter","doi":"10.2139/SSRN.2029983","DOIUrl":"https://doi.org/10.2139/SSRN.2029983","url":null,"abstract":"In Morrison v. National Australia Bank, the U.S. Supreme Court in 2010 held that U.S. securities laws apply only to securities transactions within the United States. The transactional test in Morrison could be relatively short lived because it is rooted in geography. For cases involving private securities transactions in which geographic determinants of a transaction and thus applicable law are unclear, this article suggests redirecting the inquiry away from the geographic location of securities transactions towards the parties’ choice of law. In the long run, allowing parties to choose the law pertaining to private transactions could be more effective than relying on geography that is both indeterminate and easy to manipulate. Jurisdictions could then compete to induce transacting parties to bring private transactions within their jurisdictional reach by designing substantive law and procedures that parties choose ex-ante (\"Choice of Law Competition”). Recent cases expanding the jurisdictional reach of Dutch courts suggest that the Netherlands or another EU member state could engage in a different type of jurisdictional competition. Jurisdictions performing this role adjust their procedural rules to set up a forum within their borders for litigation that appeals to plaintiffs and their lawyers (\"Forum Competition\"). The U.S. engaged in some Forum Competition for extraterritorial securities litigation prior to Morrison, and the Dodd-Frank Act of 2010 empowers the SEC to continue to bring suits in the United States over securities transactions outside the United States. For many issuers and investors who do not choose the forum ex-ante, Forum Competition can be suboptimal. Depending on future developments, the acceptable outer bounds of Forum Competition between the United States and Europe may need to be defined by treaty or multilateral agreement.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2012-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67868450","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 5

Our Partisan Foreign Affairs Constitution 我们的党派外交宪法

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2011-01-01 DOI: 10.2139/SSRN.1900155

Jide Nzelibe

{"title":"Our Partisan Foreign Affairs Constitution","authors":"Jide Nzelibe","doi":"10.2139/SSRN.1900155","DOIUrl":"https://doi.org/10.2139/SSRN.1900155","url":null,"abstract":"The received wisdom tends to treat constitutional arrangements, such as the allocation of foreign affairs authority, as efficiency enhancing constraints imposed on political actors that were originally negotiated and are currently being interpreted behind a benign veil of ignorance. In this picture, since the net distributive effects of the foreign affairs powers on specific societal groups are considered to be uncertain and unpredictable, the incentive by such groups to engage in an instrumental or self-serving interpretation of such powers is presumably blunted. This Paper suggests, on the contrary, that partisan groups can often reasonably predict ex ante or determine ex post how an expansive or constrained interpretation of specific foreign affairs powers is likely to affect their material or ideological objectives. The issue of interpretative choice in foreign affairs powers usually involves the outcome of the struggle between right and left leaning groups in which each side attempts to increase the number of veto points (or constitutional constraints) on issues that favor the opposition, and decrease the number of veto points on issues that benefit their favored constituencies. Using this framework, this Paper analyzes how postwar partisan conflict between Republican and Democratic leaning constituencies on issues like human right treaties and war powers has both spawned and restricted the scope of foreign affairs authority in the United States. In the early post WWII era, when the New Deal politics of guns and butter were complementary, progressive Democratic constituencies were supportive of a proactive military agenda and favored greater executive branch flexibility in both war powers and in the ratification of human rights treaties, whereas Republican leaning constituencies (and conservative Democrats) were against. Starting in the late-1960s, as fallout of the Vietnam War, the positions of the Republican and Democrat Parties started to switch gradually on war powers. By the1980s, when President Reagan created a cleavage between the politics of guns and butter, in which the growth of the growth of the national security state was decoupled from that of the welfare state, Republican leaning constituencies cemented their support of greater executive branch flexibility in war powers but not in human rights treaty ratification, whereas progressive Democratic constituencies largely adopted an opposite set of institutional preferences. Finally, this Article concludes by critically examining the normative implications of using increased judicial oversight to counteract the effects of foreign affairs partisanship.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67775604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Special Incentives to Sue 起诉的特别奖励措施

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2010-01-26 DOI: 10.2139/SSRN.1474923

M. Lemos

引用次数: 10

Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? 19世纪晚期《权利法案》的引入为何失败?

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2009-01-01 DOI: 10.31228/osf.io/bgjd4

Gerard N. Magliocca

引用次数: 1

Reclaiming International Law from Extraterritoriality 从治外法权中恢复国际法

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2008-02-25 DOI: 10.2139/SSRN.1013740

Austen L. Parrish

{"title":"Reclaiming International Law from Extraterritoriality","authors":"Austen L. Parrish","doi":"10.2139/SSRN.1013740","DOIUrl":"https://doi.org/10.2139/SSRN.1013740","url":null,"abstract":"A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, applied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too. This Article addresses a topic that leading theorists have given scant attention - the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars - from both the Sovereigntist and new Internationalist perspective - should embrace and reclaim multilateral international lawmaking.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2008-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68125552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 20

The Problem of Authority: Revisiting the Service Conception 权威问题:重新审视服务概念

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2007-09-04 DOI: 10.1093/acprof:oso/9780199562688.003.0005

J. Raz

引用次数: 234

Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence 言论自由、严格审查与自助:技术如何升级宪法法学

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2003-09-03 DOI: 10.2139/SSRN.422621

T. Bell

{"title":"Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence","authors":"T. Bell","doi":"10.2139/SSRN.422621","DOIUrl":"https://doi.org/10.2139/SSRN.422621","url":null,"abstract":"Self-help plays a nearly unnoticed but increasingly important role in free speech jurisprudence. Under both the compelling interest and least restrictive means prongs of strict scrutiny, courts have determined the constitutionality of content-based restrictions on speech by comparing the efficacy of state action to that of alternative, self-help remedies. Courts and commentators, however, have yet to explore and justify how self-help does and should influence First Amendment law. Thanks largely to the obscuring effect of the captive audience doctrine, courts have invoked self-help in compelling interest inquiries in a consistent, but only implicit, manner. In contrast, although the Supreme Court has encouraged lower courts to consider self-help remedies as part of that inquiry, the Court itself has given similar consideration only very recently. The present paper thus analyzes the extant case law to reveal how self-help has powerfully affected free speech strict scrutiny jurisprudence. The paper moreover justifies self-help's role as consistent with a fundamental principle of governance: political entities should undertake only those projects that they can accomplish more effectively than can private ones. Evaluations of the relative efficacy of political and private means will change with the relevant facts, of course. As a general matter, however, technological advances giving private parties increasingly refined means of manipulating information should lead courts to reduce the permissible scope of state action. Just as we upgrade computer software to benefit from progressively better hardware, in other words, we should upgrade First Amendment jurisprudence to benefit from progressively better self-help.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2003-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68737779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

Anticompetitive Settlement of Intellectual Property Disputes 反竞争解决知识产权纠纷

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2003-02-24 DOI: 10.2139/SSRN.380841

Herbert Hovenkamp, M. Janis, Mark A. Lemley

{"title":"Anticompetitive Settlement of Intellectual Property Disputes","authors":"Herbert Hovenkamp, M. Janis, Mark A. Lemley","doi":"10.2139/SSRN.380841","DOIUrl":"https://doi.org/10.2139/SSRN.380841","url":null,"abstract":"The overwhelming majority of intellectual property lawsuits settle before trial. These settlements involve agreements between the patentee and the accused infringer, parties who are often competitors before the lawsuit. Because these competitors may agree to stop competing, to regulate the price each charges, and to exchange information about products and prices, settlements of intellectual property disputes naturally raise antitrust concerns. In this paper, we suggest a way to reconcile the interests of intellectual property law and antitrust law in evaluating intellectual property settlements. In Part I, we provide background on the issue. Part II argues that in most cases courts can determine the legality of a settlement agreement without inquiring into the merits of the intellectual property dispute being settled, either because the settlement would be legal even if the patent were invalid or not infringed, or because the settlement would be illegal even if the patent were valid and infringed. Only in a narrow class of cases will the merits of the intellectual property dispute matter. In Part III, we argue that in that narrow middle set of cases antitrust's rule of reason is unlikely to be helpful. Rather, courts must inquire into the validity, enforceability, and infringement issues in the underlying case, with particular sensitivity to both the type of intellectual property right at issue and the industrial context of the dispute. In Part IV, we apply our framework to a number of common settlement terms, most notably the use of exclusion payments to settle pharmaceutical patent disputes. We argue that exclusion payments that exceed litigation costs should be deemed illegal per se. There is no legitimate reason for such payments, and the most likely reason - to permit the patentee to exclude competition that would likely have occurred absent the payment - is anticompetitive. Further, legitimate patent disputes can be settled in other ways than with an exclusion payment - for example, by licensing the defendant or by agreeing to delay entry.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2003-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.380841","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68648357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 57

The Economists' New Arguments 经济学家的新论点

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2003-02-19 DOI: 10.2139/SSRN.381542

Brett H. Mcdonnell

{"title":"The Economists' New Arguments","authors":"Brett H. Mcdonnell","doi":"10.2139/SSRN.381542","DOIUrl":"https://doi.org/10.2139/SSRN.381542","url":null,"abstract":"This paper is a review and critique, in dialogue form, of Fairness versus Welfare, by Louis Kaplow and Steven Shavell. It raises a number of concerns about the book. Kaplow and Shavell argue that all normative legal policymaking arguments should be grounded in a welfarist approach, that is, they should focus only on how different policies will affect human welfare. They produce a formal argument that any fairness theory (which they define as a theory which does not rely exclusively on welfare) will under some circumstances prefer a policy which makes everyone worse off, and hence we should reject all fairness theories. The book's argument is tautological and convincing only to those whose intuitions already favor welfare over fairness; indeed, Kaplow and Shavell's formal proof of the inconsistency between fairness and welfare can equally validly be used to argue that one should follow a fairness approach rather than the welfarist approach which Kaplow and Shavell prefer. Kaplow and Shavell argue that consistency requires that if one rejects fairness in favor of welfare in the examples they present, then one is committed to rejecting fairness in favor of welfare in all instances. However, there are other, well-known examples where utilitarian and welfarist approaches lead to objectionable results - Kaplow and Shavell's notion of consistency suggests that we should therefore reject welfarism in all instances. Kaplow and Shavell try to explain away intuitions favoring fairness as having an evolutionary origin - in most instances, fairness intuitions and norms advance efficiency. Kaplow and Shavell suggest that therefore when the fairness norms and efficiency conflict, efficiency should triumph. The paper argues that such evolutionary explanations are not always right, and even when they are, we may have other reasons to follow fairness norms anyway. Moreover, the link between fairness norms and efficiency suggests reasons why universal adoption of a welfare approach may reduce welfare.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2003-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68649598","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

Personal privacy and common goods: a framework for balancing under the national health information privacy rule. 个人隐私与共同利益:国家卫生信息隐私规则下的平衡框架。

IF 1.3 3区社会学

Minnesota Law Review Pub Date : 2002-11-04 DOI: 10.2139/SSRN.346506

L. Gostin, J. Hodge

{"title":"Personal privacy and common goods: a framework for balancing under the national health information privacy rule.","authors":"L. Gostin, J. Hodge","doi":"10.2139/SSRN.346506","DOIUrl":"https://doi.org/10.2139/SSRN.346506","url":null,"abstract":"The newly-introduced Standards for Privacy of Individually Identifiable Health Information represent the first systematic national privacy protections of health information. Flowing from a Congressional mandate in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the regulations protect the privacy of individually-identifiable health records in any form (including electronic, paper and oral) through disclosure and use limitations, fair information practices, and privacy and security policies that apply to \"covered entities\" (health providers, health insurance plans and health care clearinghouses) and their business associates. Privacy safeguards are needed because of the personal nature of health data, the rapid shift from paper to electronic records, and actual and perceived risks of unwarranted disclosures. Existing health information privacy legal protections at the federal and state levels are fragmented, inconsistent, and variable. The new standards endeavor to protect patient privacy by limiting disclosures of individually-identifiable medical information (or \"protected health information\" (PHI)). Disclosure and use of PHI can only occur upon patient consent, subject to several exceptions outside the health care transaction setting. The regulations also implement fair information practices, which have long been a feature of existing federal laws. Fair information practices allow patients to (1) inspect and amend their records, (2) receive notice of covered entities' privacy practices and potential uses and disclosures of health information, and (3) request confidential communications and an accounting of actual disclosure. Through the regulations, HHS attempts to set a \"floor\" for protections that, it suggests, \"balance[s] the needs of the individual with the needs of society.\" Reaching this balance, however, is precarious. The national privacy rule does not always achieve a fair and reasonable allocation of benefits and burdens for patients and the community. We suggest a framework for balancing that values privacy and common goods, without a priori favoring either. We instead seek to maximize privacy interests where they matter most to the individual and maximize communal interests where they are likely to achieve the greatest public good. Thus, where the potential for public benefit is high and the risk of harm to individuals is low, we suggest that public entities should have discretion to use data for important public purposes. Provided that the data are used only for the public good (e.g., research or public health), and the potential for harmful disclosures are negligible, there are good reasons for permitting data sharing. Conversely, if data are disclosed in ways that are unlikely to achieve a strong public benefit, and the personal risks are high, individual interests in autonomy should prevail. Consequently, for these kinds of disclosures, the law should strictly prohibit the release of information without ","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2002-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68595906","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 46