University of Pennsylvania Law Review最新文献

{"title":"The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem","authors":"Carlton F. W. Larson","doi":"10.2307/40041287","DOIUrl":"https://doi.org/10.2307/40041287","url":null,"abstract":"This Article argues that the issue of enemy combatant detentions should be studied through the lens of the Treason Clause of Article III. Specifically, the Article argues that the Treason Clause prohibits the exercise of military authority over individuals who are subject to the law of treason, a category that includes not only United States citizens, but almost all persons merely present within the United States. From at least the seventeenth century through the nineteenth century, English and American treatise writers, public officials, and courts consistently distinguished between persons subject to the law of treason, and thus entitled to trial under the ordinary processes of the criminal courts, and persons who could be treated as enemies under military authority. This long-standing rule was abandoned without coherent explanation by the Supreme Court in the 1942 decision of Ex parte Quirin, a decision unfortunately affirmed in 2004 by Hamdi v. Rumsfeld. This Article argues for reinstatement of the traditional rule. The Article also argues that many terrorist actions are appropriately punished as treason, either as acts of levying war against the United States or of adhering to their enemies. Rather than representing a fundamental departure from the ordinary criminal law paradigm, terrorist actions fit comfortably within it.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"863-926"},"PeriodicalIF":2.5,"publicationDate":"2006-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041287","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Taxonomy of Privacy","authors":"Daniel J. Solove","doi":"10.2307/40041279","DOIUrl":"https://doi.org/10.2307/40041279","url":null,"abstract":"Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from an embarrassment of meanings. Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of privacy do not fare well when pitted against more concretely-stated countervailing interests. In 1960, the famous torts scholar William Prosser attempted to make sense of the landscape of privacy law by identifying four different interests. But Prosser focused only on tort law, and the law of information privacy is significantly more vast and complex, extending to Fourth Amendment law, the constitutional right to information privacy, evidentiary privileges, dozens of federal privacy statutes, and hundreds of state statutes. Moreover, Prosser wrote over 40 years ago, and new technologies have given rise to a panoply of new privacy harms. A new taxonomy to understand privacy violations is thus sorely needed. This article develops a taxonomy to identify privacy problems in a comprehensive and concrete manner. It endeavors to guide the law toward a more coherent understanding of privacy and to serve as a framework for the future development of the field of privacy law.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"477"},"PeriodicalIF":2.5,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041279","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68756993","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Retroactivity and Immigrant Crimes since St. Cyr: Emerging Signs of Judicial Restraint","authors":"Van Wyke, D. Vashti","doi":"10.2307/40041283","DOIUrl":"https://doi.org/10.2307/40041283","url":null,"abstract":"Prior to 1996 if a permanent resident was convicted of a crime that subjected her to deportation, she was often eligible to apply for a waiver of deportation, known as 212(c) relief. A waiver of deportation was granted under 212(c) if the immigrant could show substantial equitable ties with the United States, including a U.S. citizen spouse or children, U.S. business ownership, and employment in the United States. These 212(c) waivers were routinely granted in more than fifty percent of cases. In 1996, however, Congress overhauled immigration law through two bills—the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). A central goal of the bills was to facilitate the deportation of immigrants convicted of crimes. To do this, AEDPA restricted and IIRIRA entirely eliminated the 212(c) waiver mechanism, meaning that permanent residents convicted of a greatly expanded list of crimes would be automatically deported, regardless of how deeply connected they were with the United States.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"741"},"PeriodicalIF":2.5,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041283","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68756922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Limited Times: Rethinking the Bounds of Copyright Protection","authors":"Kevin A. Goldman","doi":"10.2307/40041282","DOIUrl":"https://doi.org/10.2307/40041282","url":null,"abstract":"No one born in the last eighty years has seen an original work created in her lifetime fall into the public domain. Each time the term of copyright protection has been due to expire, Congress has passed another extension. This has led some scholars to suggest that Congress is effectively granting these works a perpetual copyright, in violation of the Constitution’s requirement that such protection only be granted for “limited Times.” Although the Supreme Court has re-","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"705"},"PeriodicalIF":2.5,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041282","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68756772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Executive Review in the Fragmented Executive: State Constitutionalism and Same-Sex Marriage","authors":"Norman R. Williams","doi":"10.2307/40041280","DOIUrl":"https://doi.org/10.2307/40041280","url":null,"abstract":"In contrast to the U.S. Constitution with its unitary, Hamiltonian federal executive, state constitutions fragment executive authority, providing for the direct popular election of several state officials and establishing relatively independent local governments. The significance of this feature of state constitutional structure for executive review - the notion that executive officials, no less than judges, have the power to interpret and enforce constitutional commitments - has been unexplored by commentators but recently became the focus of national public attention. Specifically, the issue whether state executive officials may refuse to enforce laws that they believe to be unconstitutional was a central element of the controversy regarding the issuance of marriage licenses to same-sex couples in San Francisco, California and Multnomah County, Oregon. As the California and Oregon experiences demonstrated, state governors often lack any meaningful ability to control state or local executive officials' exercise of executive review authority because of state constitutional provisions fragmenting executive authority. As a result, intra-executive disputes often find their way into the courts. State courts, in turn, have reacted in different ways in response to these claims of executive interpretive authority. One model, which I label the judicial exclusivity model and which was embraced by the California Supreme Court, rules out executive review en toto on constitutional grounds because, according to this view, the task of enforcing the constitution is exclusively for the courts. Another model, which I call the legislative model and was endorsed by the Oregon Supreme Court, accepts in principle the constitutional propriety of executive review but cedes to the state legislature the power to determine which officials may consider constitutional claims in performing their statutory duties. Still a third model, pressed unsuccessfully by the county officials in San Francisco and Multnomah County, asserts that there is a constitutional right and corresponding obligation for all executive officials to interpret and enforce the constitution. As I show, the legislative model best accords with state constitutional text and structure. In so doing, I challenge the predominant, judicial exclusivity model, which, as I argue, rests upon an outdated and erroneous understanding of the respective roles of the three branches of government in interpreting and enforcing the constitution. At the same time, I also reject the diametrically opposite theory that all executive officials have a constitutional right to engage in executive review. While I acknowledge that constitutional officers, such as the governor, may engage in executive review as part of the discharge of their constitutionally assigned powers and duties, I endorse and defend the legislative model, which leaves it to the legislature to determine whether the myriad non-constitutional officers employed by sta","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"565"},"PeriodicalIF":2.5,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041280","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gone Broke: Sovereign Debt, Personal Bankruptcy, and a Comprehensive Contractual Solution","authors":"Adam Brenneman","doi":"10.2307/40041281","DOIUrl":"https://doi.org/10.2307/40041281","url":null,"abstract":"Both sovereign debt and defaults have appeared frequently in the news over the past few years. However, the issue of sovereign debt restructuring is far from new. Restructurings have occurred as far back as the sixteenth century. Between 1557 and 1647, six debt crises in Spain were resolved using two of the same techniques discussed in modern restructurings: rescheduling principal payments and reduc-","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"649"},"PeriodicalIF":2.5,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041281","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757176","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Case for Managed Judges: Learning from Japan after the Political Upheaval of 1993","authors":"J. Ramseyer, E. Rasmusen","doi":"10.2307/40041354","DOIUrl":"https://doi.org/10.2307/40041354","url":null,"abstract":"Although the executive branch appoints Japanese Supreme Court justices as it does in the United States, a personnel office under the control of the Supreme Court rotates lower court Japanese judges through a variety of posts. This creates the possibility that politicians might indirectly use the postings to reward or punish judges. For forty years, the Liberal Democratic Party (LDP) controlled the legislature and appointed the Supreme Court justices who in turn controlled the careers of these lower-court judges. In 1993, it temporarily lost control. We use regression analysis to examine whether the end of the LDP’s electoral lock changed the court’s promotion system, and find surprisingly little change. Whether before or after 1993, the Supreme Court used the personnel office to \"manage\" the careers of lower court judges. The result: uniform and predictable judgments that economize on litigation costs by facilitating out-of-court settlements.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"33 1","pages":"1879"},"PeriodicalIF":2.5,"publicationDate":"2005-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041354","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68758071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A New Approach to Insanity Acquittee Recidivism: Redefining the Class of Truly Responsible Recidivists","authors":"Maura Caffrey","doi":"10.2307/25047591","DOIUrl":"https://doi.org/10.2307/25047591","url":null,"abstract":"After receiving verdicts of not guilty by reason of insanity, John McGee and Ronald Manien were committed to Michigan mental hos pitals.1 The center for forensic psychiatry later determined that McGee and Manien were \"no longer mentally ill and dangerous\" and released them.2 Shortly after being released, McGee kicked his wife to death3 and Manien raped two women.4 The public outcry that followed these tragic events prompted the Michigan legislature to statutorily authorize the \"guilty but mentally ill\" (GBMI) verdict in cases where a defendant raises the insanity de fense. The verdict permits the jury to find that although the defen dant is mentally ill, she is not legally insane, and she may be given a full criminal sentence. A defendant who receives a GBMI verdict must","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"399"},"PeriodicalIF":2.5,"publicationDate":"2005-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/25047591","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68752884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Quality, Not Quantity: An Analysis of Confidential Settlements and Litigants' Economic Incentives","authors":"Alison Lothes","doi":"10.2307/25047592","DOIUrl":"https://doi.org/10.2307/25047592","url":null,"abstract":"The recent rise of “sunshine” legislation, which prohibits or reduces secret settlements of civil lawsuits, highlights public unease with confidential settlements. Recurring, highly publicized, dangerous events expose the costs of confidentiality: the Bridgestone/Firestone tire scandal and the Catholic Church sex abuse scandal are the most recent. Litigation regarding the Dalkon Shield, the Ford Pinto, and","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"433"},"PeriodicalIF":2.5,"publicationDate":"2005-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/25047592","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68752985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Trial Distortion and the End of Innocence in Federal Criminal Justice","authors":"R. Wright","doi":"10.2307/25047583","DOIUrl":"https://doi.org/10.2307/25047583","url":null,"abstract":"INTRODUCTION 80 I. GUILTY PLEAS THAT RESOLVE CASES BUT NOT QUESTIONS 87 A. Federal Guilty Plea Growth Spurts 88 B. Plea Bargain Theories, Looking High and Low 91 1. Micro-Level Intentions 92 2. Macro-Level Social Purposes 97 II. ACQUITTALS AS A WARNING 100 A. Federal Acquittal Rates and the Guilty Plea Connection 101 B. Acquittals and the Other Displaced Outcomes 103 C. The Mid-Level Trial Distortion Theory 106 1. Trial Distortion and Trial Penalties 107 2. Are Lost Acquittals and Dismissals Trial Distortions? 112 3. The Accuracy Hypothesis 114 III. WHAT MADE FEDERAL ACQUITTALS DISAPPEAR? 116 A. Case Volume 117 B. Legal Complexity and Defense Counsel in the 1950s and 1960s ........122 C. Crime of the Decade 125 D. Sentence Severity and Trial Penalties in the 1990s 129 E. Prosecutor Power as the Leading Acquittal Culprit 134 IV. LEGAL ENVIRONMENTS HOSTILE TO INNOCENCE 137 A. Environmental Audits 139 B. Trials and Tribulations by the Numbers 146 C. The Sentencing Law Nexus 150 CONCLUSION 154 APPENDIX 156","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"79"},"PeriodicalIF":2.5,"publicationDate":"2005-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/25047583","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68753072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}