University of Pennsylvania Law Review最新文献

{"title":"Remedying a Particularized Form of Discrimination: Why Disabled Plaintiffs Can and Should Bring Claims for Police Misconduct under the Americans with Disabilities Act","authors":"Rachel E. Brodin","doi":"10.2307/25047584","DOIUrl":"https://doi.org/10.2307/25047584","url":null,"abstract":"On November 18, 2000, Ryan K. Schorr, a twenty-five-year-old who suffered from bipolar disorder, was involuntarily committed to the Holy Spirit Hospital in Camp Hill, Pennsylvania, after his family and roommate noticed that his condition was deteriorating. Though Schorr was placed in a high security room at the hospital, when a crisis intervention worker opened his door to enter, he pushed past her and escaped confinement. After Schorr answered his family’s phone call to his apartment, his family informed the police of his whereabouts. West Shore Regional Police Officers Harry Hart Jr. and Gary Berresford arrived at Schorr’s apartment and, after knocking on the door and receiving no response, entered the residence through a partially open back door. The officers found Schorr in his bedroom, where a","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"157"},"PeriodicalIF":2.5,"publicationDate":"2005-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/25047584","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68752662","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 Underprivileged Profession: The Case for Supreme Court Recognition of the Journalist's Privilege","authors":"J. Nestler","doi":"10.2307/25047585","DOIUrl":"https://doi.org/10.2307/25047585","url":null,"abstract":"This article argues that the Supreme Court, under the power granted it by Federal Rule of Evidence 501, should recognize an evidentiary privilege allowing journalists to refuse to divulge confidential information. It explores the theoretical underpinnings (and potential differences) of the First Amendment's Press and Speech Clauses to conclude that the notion of a journalist's privilege has constitutional support. After tracing the rise of the press as an institution-and the rise of journalism as a profession-over the course of American history, it explains why no privilege existed for journalists at common law, especially when Blackstone wrote his Commentaries and when Wigmore penned his famous Treatise. Next, the article makes the case that the role of the journalist in today's society - serving as an important check on the increasingly centralized power of government - creates a more compelling justification for a journalist's privilege than perhaps at earlier times in our nation's history. The number of subpoenas issued to news organizations (and the number of reporters being held in contempt) is rapidly increasing, and the relationship between the government and the press is becoming more adversarial. In addition, reporters are often unable to guarantee confidentiality to their sources due to the widely varying levels of protection in different states and circuits and uncertainties about the forum in which they might be subpoenaed. The article then examines the protections journalists are afforded in various venues. Internationally, most of America's fellow common law countries have recognized privileges for journalists. Forty-nine states and the District of Columbia have created protections for journalists, either legislatively or judicially. Congress has also introduced legislation to this end on numerous occasions. The primary obstacle to federal recognition of the privilege is the 1972 case of Branzburg v. Hayes, in which the Supreme Court, by a 5-4 vote (and a very telling concurrence by Justice Powell), held that journalists were entitled to no such privilege and were required to give testimony to a grand jury. Though the circuit courts of appeal that have been presented with the issue vary widely in their interpretation of Branzburg, most have noted that the common law has evolved significantly since Branzburg's time, and that it is the province of the Supreme Court, if it so desires, to distinguish its prior precedent and recognize a journalist's privilege under Rule 501. In the final section, the article looks to Congress' intent in enacting Federal Rule of Evidence 501 and analyzes the Supreme Court's use of the Rule to create a federal psychotherapist-patient privilege in Jaffee v. Redmond (1996). The article concludes that the reasons for recognition of a journalist's privilege are stronger than those supporting a psychotherapist-patient privilege: the former is rooted in the Constitution, serves a more important role in our syst","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"201"},"PeriodicalIF":2.5,"publicationDate":"2005-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/25047585","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68752754","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":"Same-Sex Marriage: Refining the Conflict of Laws Analysis","authors":"L. Silberman","doi":"10.2307/4150660","DOIUrl":"https://doi.org/10.2307/4150660","url":null,"abstract":"To be objective about the role of conflict of laws in the treatment of same-sex marriage, it is helpful to start with tolerance for the views of both sides in the substantive debate over whether to permit samesex marriage. I begin with this observation because much of the writing about conflict of laws issues and the recognition of same-sex marriage is far from neutral on that issue. Unless and until the Supreme Court determines that a prohibition on same-sex marriage is unconstitutional as a matter of federal law, it is within the prerogative of each individual state to determine what status to accord to same-sex couples who want to formalize their relationship and/or what rights should attach to such relationships. The view about same-sex marriage that is taken by a particular state (in the United States) or by a particular country reflects the set of values accepted in that community as determined through its own political processes, whether expressed in state constitutional amendments, statutes enacted by the legislature, or by judicial decisions declared in the courts.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"2195"},"PeriodicalIF":2.5,"publicationDate":"2005-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150660","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366232","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":"Parochialism and Pluralism in Cyberspace Regulation","authors":"A. Stein","doi":"10.2307/4150655","DOIUrl":"https://doi.org/10.2307/4150655","url":null,"abstract":"I predicted a few years ago that the greater connectedness brought about by globalization in general, and technology in particular, would introduce a new humility into our jurisdictional attitudes. Jurisdictional and choice-of-law rules premised on hermetically sealed sovereignty, where governments had exclusive power over their citizens and territory, did not fit a world in which the power and influence of governments extended beyond their borders and collided with conflicting legal norms within their borders. Connectedness, I concluded, would inevitably produce a new sensitivity in conflict of laws to the multiple sources of power and authority with which people must contend in a wired world. Professors Berman and Reidenberg, while sympathetic with that perspective, have here suggested an appropriate caveat: technology can both connect and separate, and globalization can turn governments both outward toward cooperation and inward toward isolation. Connectedness can make us xenophobic as well as cosmopolitan. Thus, Professor Reidenberg discusses how technology enables states to exercise control over multistate electronic transactions in order to enforce their own, legitimate regulatory preferences. He is generally sympathetic to such assertions of national authority and rejects the plea of “Internet separatists” for governments to leave cyberspace alone.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"2003"},"PeriodicalIF":2.5,"publicationDate":"2005-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150655","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366105","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":"Extraterritorial Rights and Constitutional Methodology After Rasul v. Bush","authors":"Gerald L. Neuman","doi":"10.2307/4150657","DOIUrl":"https://doi.org/10.2307/4150657","url":null,"abstract":"Professor Roosevelt’s thoughtful article reviews the evolution of doctrine concerning the extraterritorial application of constitutional rights, identifies Rasul v. Bush as marking an opportunity to rethink prior debates, and sketches a new approach to the problem derived from the conflict of laws. Roosevelt’s analysis engages generously, while critically, with my own work on this subject. Although our starting points differ, we agree about many things, including the fact that new solutions could be useful. Nonetheless, I have deep reservations about a conflicts-based approach, as I will explain in this response. Regarding the implications of the jurisdictional decision in Rasul for future litigation on the merits, I agree that the majority opinion strongly suggests in a footnote that foreign nationals in U.S. custody at Guantanamo Bay Naval Base (“Guantanamo”) possess constitutional rights. I agree that the opinion leaves ambiguous the reason why foreign nationals have constitutional rights there—whether because they are human beings in long-term U.S. custody or because of the special character of U.S. authority at Guantanamo. And I agree that the answer for the present is more likely to turn on features peculiar to Guantanamo than on a general exploration of extraterritorial due process. In the words of Justice Kennedy’s Rasul concurrence, “Guan-","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"2073"},"PeriodicalIF":2.5,"publicationDate":"2005-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150657","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366173","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":"Elephants and Mice Revisited: Law and Choice of Law on the Internet","authors":"Peter P. Swire","doi":"10.2307/4150654","DOIUrl":"https://doi.org/10.2307/4150654","url":null,"abstract":"By definition, an essential question of cyberlaw is to define when law will affect actions in cyberspace. Such law might be uniform, such as where nations have entered into a treaty or have adopted the same legal rule. Or, such law might be diverse, such as where nations adopt different legal rules. Diversity of law often does not matter for physical acts, such as where the criminal law of one country simply does not apply to acts performed in a foreign country. On the Internet, however, diversity of law poses a fundamental challenge. Each surfer on a website might be from a foreign jurisdiction, with laws unknown to the owner of the site. Similarly, each website visited by a surfer might be hosted in a foreign jurisdiction, with laws unknown to the surfer. Every encounter in cyberspace, therefore, raises the possibility that diverse laws will apply. The rules for choosing among diverse laws—the subject of this part of the Symposium on “Choice of Law and Jurisdiction on the Internet”—thus appear uniquely important for cyberspace. Surprisingly, however, the number of actual cases addressing choice of law on the Internet is far, far lower than the initial analysis would suggest. Although there is the possibility of diverse national laws in every Internet encounter, some mysterious mechanisms are reducing the actual conflicts to a handful of cases. This Article seeks to explain those mysterious mechanisms. It does not primarily address the prescriptive task of saying what the optimal rules should be for resolving conflicting national laws that affect the Internet. Instead, it takes on a descriptive task. It treats choice of law on the Internet as a dependent variable; the task is to explain when and how choice-of-law rules actually matter on the Internet.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"2017 1","pages":"1975"},"PeriodicalIF":2.5,"publicationDate":"2005-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150654","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366100","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":"Guantanamo and the Conflict of Laws: Rasul and Beyond","authors":"K. Roosevelt","doi":"10.2307/4150656","DOIUrl":"https://doi.org/10.2307/4150656","url":null,"abstract":"Of the legal issues raised by the Bush Administration’s conduct of the war on terror, the detention of alleged “enemy combatants” presents perhaps the starkest conflict between individual liberty and executive authority. The Executive has claimed the power to designate individuals as enemy combatants and thereafter to hold them indefinitely without judicial review or access to counsel. A triad of cases decided by the Supreme Court in its October 2003 Term put this claim to the test and generally rejected it. Two cases dealt with Americans confined in the Navy brig in Charleston, South Carolina. Yaser Hamdi, allegedly captured on the field of battle in Afghanistan, was held entitled as a matter of Fifth Amendment Due Process to “a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker,” and to the assistance of counsel in that proceeding. The claims of Jose Padilla, arrested in Chicago and detained initially in New York before transport to the Charleston brig, received a slightly less welcoming reception: over the dissent of four Justices, the Court held that his habeas petition was improperly filed in the Southern District of New York and ordered its dismissal. Padilla will, however, be able to take advantage of the same rights as Hamdi upon refiling in South Carolina. No such confident prediction can be made with respect to the further proceedings contemplated by the Court’s opinion in the third","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"2017"},"PeriodicalIF":2.5,"publicationDate":"2005-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150656","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366113","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":"Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era","authors":"P. Berman","doi":"10.2307/4150651","DOIUrl":"https://doi.org/10.2307/4150651","url":null,"abstract":"It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Such assertions of national authority have helped to reawaken scholarly interest in the classic triumvirate of topics historically grouped together under the rubric of conflicts of laws: jurisdiction, choice of law, and recognition of judgments. In a previous article, I argued that territorially-based conceptions of legal jurisdiction may no longer be adequate in an era when ideas of bounded nation-state communities operating within fixed territorial borders are under challenge. I offered instead what I called a cosmopolitan pluralist conception of jurisdiction: cosmopolitan because it recognized the possibility that people can hold multiple, sometimes non-territorial, community affiliations; and pluralist because it acknowledged that forms of legal (or quasi-legal) jurisdiction can be asserted by communities that are not official state-sanctioned courts. This essay turns the focus to choice of law and recognition of judgments. Analyzing three recent U.S. cases (two involving choice of law and one addressing recognition of judgments), I seek to apply some of the principles of cosmopolitanism to consider how courts should understand their institutional role in cases raising multinational concerns. Taking seriously the observation that in conflicts scholarship there is nothing truly new under the sun, the cosmopolitan perspective I offer here does not purport to create a new theory of choice of law. Instead, it combines aspects of each of the three major choice-of-law regimes of the twentieth century-vested rights, governmental interests, and the substantive law method - to shape an overall attitude with which judges can approach cases involving conflicting transnational legal norms. This attitude starts from the idea that governments have an interest not only in helping in-state litigants win the particular litigation at issue, but a more important longer-term interest in being cooperative members of an international system and sharing in its reciprocal benefits and burdens. Similarly, with regard to judgment recognition, the cosmopolitan perspective asks judges to consider the independent value of enforcing a foreign judgment, even when that judgment is contrary to local policy choices. Moreover, the cosmopolitan approach focuses less on literal contacts with a territorially-based sovereign entity and more on the extent to which the various parties might be deemed to have affiliations with the possible communities seeking to impose their norms. Thus, while derived from various extant conflicts theories, the cosmopolitan perspective yields a distinctive approach, and one that I","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"1819"},"PeriodicalIF":2.5,"publicationDate":"2005-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150651","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69365874","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":"Horizontal Federalism in an Age of Criminal Justice Interconnectedness","authors":"Wayne A. Logan","doi":"10.2307/25047589","DOIUrl":"https://doi.org/10.2307/25047589","url":null,"abstract":"Despite their status as independent sovereigns, states increasingly exhibit a willingness to interact when it comes to crime control matters. This Article examines the two foremost examples of this phenomenon: criminal recidivist enhancement laws and sex offender registration laws. Both types of laws have been around for decades and have evolved to accommodate ex-offenders, who, consistent with constitutional freedom of movement, can (and often do) change state residences. This effort at accommodation, however, puts states in the unusual position of having to interpret and apply the criminal laws and outcomes of their fellow sovereigns. As the Article makes clear, recidivist and registration laws, while motivated by a desire to hold individuals accountable for their past misconduct and deprive them of incentives to migrate in search of a \"clean slate,\" present unique challenges and have important ramifications for \"our federalism.\" The Article begins with an overview of the means by which registration and recidivist laws take account of out-of-state prior convictions. While courts often face challenges in applying the laws to indigenous offenders, their task is made considerably more difficult when the predicate convictions occurred elsewhere. In such situations, they must construe foreign laws to determine if convictions, themselves possibly aged or evidenced by ambiguous or incomplete information, warrant consideration under their own recidivist or registration law. Part I examines the two basic approaches used today - external and internal - to make such determinations. The internal approach insists that out-of-state convictions, and any punishment attaching, satisfy the eligibility requirements of the forum state's registration or recidivist law. The external approach, on the other hand, allows such decisions to be based on the legal characterizations of their fellow sovereigns. Part II explores the practical and theoretical ramifications of interconnection, which can vary in accord with states’ use of the internal or external approach. In terms of the practical, the internal approach poses particular analytic challenges insofar as states often must undertake a difficult exercise in inter-state statutory construction. Because the approach places premium importance on local norms, without deference to how the prior conviction was treated in the foreign state, it is not uncommon for offenders to escape continued accountability. This uncertainty, in turn, can raise notice concerns for ex-offenders who must fathom (with respect to registration laws, often in a very short time period) the legal consequences of their prior conviction in their newly adopted state. Such concerns are not as pronounced in states using an external approach because, as noted, such legal consequences are pre-determined by the other state. The external approach, however, has a consequence of a different sort: potential unequal treatment of otherwise similarly situated ex-o","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"257"},"PeriodicalIF":2.5,"publicationDate":"2005-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/25047589","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68752799","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 Surprisingly Strong Case For Tailoring Constitutional Principles","authors":"Mark D. Rosen","doi":"10.2307/4150636","DOIUrl":"https://doi.org/10.2307/4150636","url":null,"abstract":"Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an alternative approach to One-Size-Fits-All that it dubs \"Tailoring.\" Tailoring refers to the possibility, though not the requirement, that a constitutional provision may apply differently to different levels of government. Tailoring thus would permit a situation where the federal government could regulate in ways unavailable to the sub-federal polities as a matter of constitutional law. Conversely, states or localities other times might be permitted to regulate in ways that the federal government could not. Though Tailoring might sound completely outlandish, the Article shows that more than a dozen Justices over the past century (including four who currently sit on the Court) have advocated that particular constitutional principle be tailored and that several discrete areas of contemporary constitutional law are best understood as examples of Tailoring. In the end, the Article concludes that the One-Size-Fits-All approach that is reflected in contemporary doctrine should be softened from a categorical requirement to a rebuttable presumption. Sensitivity to what level of government is acting - the conceptual core of Tailoring - is critical because the different levels of government are sufficiently dissimilar that a particular limitation as applied to one may have very different repercussions when applied to another. The Article identifies five respects in which the different levels of government systematically differ. Whether any or all of the differences justifies Tailoring a given constitutional principle ultimately turns on what is best characterized as pre-constitutional, political commitments. Interestingly, however, a broad array of competing approaches to ordering social life that often generates conflicting policy prescriptions - including public choice theory, law and economics, Robert Nozick's political philosophy, John Hart Ely's process theory, multi-culturalist theorists Will Kymlicka and Charles Taylor, and Rawlsian political thought - finds one or more of these distinctions sufficient to support Tailoring. The fact that many competing methodologies converge on the conclusion that Tailoring sometimes might be desirable counsels that constitutional doctrine should be responsive to potential differences among the various levels of government.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"1513"},"PeriodicalIF":2.5,"publicationDate":"2005-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150636","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69365024","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}