University of Pennsylvania Law Review最新文献

{"title":"What Happened in Delaware Corporate Law and Governance from 1992-2004 - A Retrospective on Some Key Developments","authors":"E. Veasey, C. Guglielmo","doi":"10.2307/4150635","DOIUrl":"https://doi.org/10.2307/4150635","url":null,"abstract":"","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"1399"},"PeriodicalIF":2.5,"publicationDate":"2005-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150635","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69364831","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":"Law and the Boundaries of Technology-Intensive Firms","authors":"O. Bar‐Gill, Gideon Parchomovsky","doi":"10.2139/SSRN.702464","DOIUrl":"https://doi.org/10.2139/SSRN.702464","url":null,"abstract":"Arrow's disclosure paradox implies that information that is not afforded legal protection cannot be bought or sold on the market. This paper emphasizes the important relationship between the paradox of disclosure and the boundaries of the firm question. Only legally protected inventions, i.e., patented inventions, may be traded; pre-patent stages of the innovation process may not. Consequently, by force of law, rather than by the guidance of economic principle, pre-patent innovation must be carried out within the boundaries of a single firm.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"157 1","pages":"1649"},"PeriodicalIF":2.5,"publicationDate":"2005-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.702464","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67805494","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":"Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding","authors":"Andrew J. Wistrich, C. Guthrie, J. Rachlinski","doi":"10.2307/4150614","DOIUrl":"https://doi.org/10.2307/4150614","url":null,"abstract":"Due process requires courts to make decisions based on the evidence before them without regard to information outside of the record. Skepticism about the ability of jurors to ignore inadmissible information is widespread. Empirical research confirms that this skepticism is well founded. Many courts and commentators, however, assume that judges can accomplish what jurors cannot. This Article reports the results of experiments we have conducted to determine whether judges can ignore inadmissible information. We found that the judges who participated in our experiments struggled to perform this challenging mental task. The judges had difficulty disregarding demands disclosed during a settlement conference, conversation protected by the attorney-client privilege, prior sexual history of an alleged rape victim, prior criminal convictions of a plaintiff, and information the government had promised not to rely upon at sentencing. This information influenced judges' decisions even when they were reminded, or themselves had ruled, that the information was inadmissible. In contrast, the judges were able to ignore inadmissible information obtained in violation of a criminal defendant's right to counsel and the outcome of a search when determining whether probable cause existed. We conclude that judges are generally unable to avoid being influenced by relevant but inadmissible information of which they are aware. Nevertheless, judges displayed a surprising ability to do so in some situations.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"1251"},"PeriodicalIF":2.5,"publicationDate":"2005-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150614","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69362737","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":"Technology and Internet Jurisdiction","authors":"J. Reidenberg","doi":"10.2307/4150653","DOIUrl":"https://doi.org/10.2307/4150653","url":null,"abstract":"The current technology of the Internet creates ambiguity for sovereign territory because network boundaries intersect and transcend national borders. In this environment, jurisdiction over activities on the Internet has become a battleground for the struggle to establish the rule of law in the Information Society. This essay argues first that the initial wave of cases seeking to deny jurisdiction, choice of law and enforcement to states where users and victims are located constitutes a type of 'denial of service' attack against the legal system. In effect, the defenders of hate, lies, drugs, sex, gambling and stolen music use technologically based arguments to deny the applicability of rules of law interdicting their behavior. The essay next shows that innovations in information technology will undermine the technological assault on state jurisdiction. Innovation creates this counter-intuitive effect because more sophisticated computing enlists the processing capabilities and power of users' computers. This interactivity gives the victim's state a greater nexus with offending acts and provides a direct relationship with the offender for purposes of personal jurisdiction and choice of law. Some of these same innovations also enable states to enforce their decisions electronically and consequently bypass the problems of foreign recognition and enforcement of judgments. Finally, the essay argues that the exercise of state power through assertions of jurisdiction can and should be used to advance the development of more granular technologies and new service markets for legal compliance. Technologies should be available to enable Internet participants to respect the rule of law in states where their Internet activities reach. Assertions of state jurisdiction and electronic enforcement are likely to advance this public policy.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"34 1","pages":"1951"},"PeriodicalIF":2.5,"publicationDate":"2005-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150653","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366063","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":"Against 'Individual Risk': A Sympathetic Critique of Risk Assessment","authors":"M. Adler","doi":"10.2139/SSRN.487123","DOIUrl":"https://doi.org/10.2139/SSRN.487123","url":null,"abstract":"\"Individual risk\" currently plays a major role in risk assessment and in the regulatory practices of the health and safety agencies that employ risk assessment, such as EPA, FDA, OSHA, NRC, CPSC, and others. Risk assessors use the term \"population risk\" to mean the number of deaths caused by some hazard. By contrast, \"individual risk\" is the incremental probability of death that the hazard imposes on some particular person. Regulatory decision procedures keyed to individual risk are widespread. This is true both for the regulation of toxic chemicals (the heartland of risk assessment), and for other health hazards, such as radiation and pathogens; and regulatory agencies are now beginning to employ individual risk criteria for evaluating safety threats, such as occupational injuries. Sometimes, agencies look to the risk imposed on the maximally exposed individual; in other contexts, the regulatory focus is on the average individual's risk, or perhaps the risk of a person incurring an above-average but nonmaximal exposure. Sometimes, agencies seek to regulate hazards so as to reduce the individual risk level (to the maximally exposed, high-end, or average individual) below 1 in 1 million. Sometimes, instead, a risk level of 1 in 100,000 or 1 in 10,000 or even 1 in 1000 is seen as de minimis. In short, the construct of individual risk plays a variety of decisional roles, but the construct itself is quite pervasive.This Article launches a systematic critique of agency decisionmaking keyed to individual risk. Part I unpacks the construct, and shows how it invokes a frequentist rather than Bayesian conception of probability. Part II surveys agency practice, describing the wide range of regulatory contexts where individual risk levels are wholly or partly determinative of agency choice: these include most of the EPA's major programs for regulating toxins (air pollutants under the Clean Air Act, water pollutants under the Clean Water Act and Safe Drinking Water Act, toxic waste dumps under the Superfund statute, hazardous wastes under RCRA, and pesticides under FIFRA) as well as the FDA's regulation of food safety, OSHA regulation of workplace health and safety risks, NRC licensing of nuclear reactors, and the CPSC's regulation of risky consumer products.In the remainder of the Article, I demonstrate that frequentist individual risk is a problematic basis for regulatory choice, across a range of moral views. Part III focuses on welfare consequentialism: the moral view underlying welfare economics and cost-benefit analysis. I argue that the sort of risk relevant to welfare consequentialism is Bayesian, not frequentist. Part IV explores the subtle, but crucial difference between frequentist and Bayesian risk. Part V moves beyond cost-benefit analysis and examines nonwelfarist moral views: specifically, safety-focused, deontological, contractualist, and democratic views. Here too, I suggest, regulatory reliance on frequentist individual risk should be seen ","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"1121-1250"},"PeriodicalIF":2.5,"publicationDate":"2005-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67748983","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":"Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges","authors":"A. Koppelman","doi":"10.2307/4150659","DOIUrl":"https://doi.org/10.2307/4150659","url":null,"abstract":"Same-sex marriage is here. Massachusetts now recognizes such marriages, and increasing numbers of same-sex couples have married. Other states have virtually the same status: Vermont recognizes \"civil unions,\" and California recognizes \"domestic partnerships,\" that have virtually all the rights of marriage. Are these statuses exportable? Will same-sex unions be recognized in other states?The answer should not be mysterious. There is a well developed body of law on the question of whether and when to recognize extraterritorial marriages that are contrary to the forum's public policy. Assuming that courts decide to follow that law, the answer is, it depends. This article will offer a short overview. The answer is somewhat complex, but there are large areas of clarity.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"2143-2194"},"PeriodicalIF":2.5,"publicationDate":"2005-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150659","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366179","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":"Interest Analysis in Interjurisdictional Marriage Disputes","authors":"T. Wolff","doi":"10.2307/4150661","DOIUrl":"https://doi.org/10.2307/4150661","url":null,"abstract":"Gay and lesbian couples are now entering into legally authorized marriages for the first time in our Nation's history. As has happened many times before when significant policy differences have emerged among the civil marriage laws of different states, these married couples will inevitably move about the country, and state courts will have to decide whether and for what purpose to give effect to their marriages when forum law would have prohibited them from marrying locally. The debate over this recognition problem is already fully joined. Thus far, however, that debate has most frequently been characterized by positions that are sweeping and unconditional. On one side, skeptics argue that the federal Defense of Marriage Act and the public policy exception in choice of law together grant states the power to disregard any marriage that contravenes local law. On the other side, advocates of recognition invoke an array of constitutional arguments to contend that states may never exercise such a discriminatory and disruptive power against the marriages of gay couples. These are the lightning and thunder of legal analysis: categorical claims of state authority, met with categorical claims of constitutional invalidity.Many of the disputes that state courts will confront when married gay couples move and travel around the country will not be resolved by the heat and noise of this debate. Until the Supreme Court of the United States is prepared to place its institutional capital behind a principle of fully equal treatment for gay and lesbian couples, those couples must be prepared to engage courts in a discussion about what is sensible and advisable, not merely what is mandatory or prohibited. Among the most important elements in that discussion will be an examination of the range of interests that a state may rely upon in considering whether to give effect to a gay couple's marriage. That examination does require some attention to recent constitutional developments. While the Court has avoided any statement about the constitutional right of gay couples to marry in its recent decisions, it has nonetheless established principles that inform the range of interests that a state may legitimately assert as a basis for applying hostile forum law to the validly celebrated marriage of a couple from another state.In this Article, written for a symposium at the University of Pennsylvania Law School, I canvas a broad array of interjurisdictional marriage disputes and examine the interests that state courts have relied upon in discussing whether to give effect to a marriage that runs contrary to local law. I then examine the constitutional status of each of these rationales, as applied to a married gay couple, in the wake of the Supreme Court's decisions in Lawrence v. Texas, Romer v. Evans and Saenz v. Roe. I also discuss the statutes and constitutional provisions that a majority of states have now enacted to ban marriage by same-sex couples. Many of these mini Def","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"2215"},"PeriodicalIF":2.5,"publicationDate":"2005-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150661","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366264","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 Essential Relationship Spectrum: A Framework for Addressing Choice of Procedural Law in the Federal Circuit","authors":"Sean M. Mceldowney","doi":"10.2307/4150637","DOIUrl":"https://doi.org/10.2307/4150637","url":null,"abstract":"Because of the Federal Circuit’s unique jurisdictional grant, the court faces a unique choice-of-law problem whenever a procedural issue is appealed in a patent suit. Unfortunately, rather than announcing and following a consistent doctrine for choice-of-law questions, the Federal Circuit has developed a menu of phraseology and policy concerns, selecting and then applying a unique combination of appetizer and entree each time it faces a choice-of-procedural-law question. What is missing is a consistent conceptual framework. This Comment proposes such a framework, in the form of a conceptual spectrum, along which each choice-of-procedural-law question should be placed. Procedural questions bearing no relation to substantive patent doctrines (by which I mean, primarily, procedural questions that bear no relation to patent validity or infringement doctrines) are at one end of the spectrum, and those bearing a close and “essential” relationship are at the opposite end. When considering questions in light of this framework, three principles should guide the Federal Circuit. First, each precedential point on the spectrum should be a bright and immovable point, so that each decision is construed to encompass all similar procedural questions. Second, each choice-of-procedurallaw decision should be interpreted not only for its holding on a particular type of procedural question, but also for its holding on the degree of relationship between the procedural question and substantive patent law; in other words, the relevant unit of measure on the spectrum is the closeness of the relationship between a procedural question and substantive patent law. Third, the “essential","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"8 1","pages":"1639"},"PeriodicalIF":2.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150637","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69365034","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":"Within Each Lawyer's Conscience a Touchstone: Law, Morality, and Attorney Civil Disobedience","authors":"Robert M. Palumbos","doi":"10.2307/4150645","DOIUrl":"https://doi.org/10.2307/4150645","url":null,"abstract":"Lawyers, like all citizens, inevitably face conflicts between their responsibility to the law and their moral obligations. Attorneys, however, have a unique range of options for resolving such conflicts. They not only have power and privilege in the legal system that other citizens lack, but they also assume a heightened duty to that system and to the law. As the Model Code of Professional Responsibility states, “[t]o lawyers especially, respect for the law should be more than a platitude.” Civil disobedience has become an accepted method for citizens to resist the authority of the state on moral grounds. By committing civil disobedience and willingly accepting judicial punishment, one can protest the moral content of a law while still respecting the legal duty it imposes. This Comment addresses whether the current rules of professional ethics leave the option of civil disobedience available to attorneys, and asks under what circumstances attorneys may be justified in exercising that option.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"1057"},"PeriodicalIF":2.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150645","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69365688","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":"Frequency and Success: An Empirical Study of Criminal Law Defenses, Federal Constitutional Evidentiary Claims, and Plea Negotiations","authors":"S. G. Valdes","doi":"10.2307/4150639","DOIUrl":"https://doi.org/10.2307/4150639","url":null,"abstract":"Discussions of criminal law defenses typically focus on policy issues, with pundits, lawmakers, and scholars each advocating different grounds for allowing various defenses. While the insanity defense and plea negotiations have been the subject of intense philosophical and statistical scrutiny, most defenses have simply been accepted as part of the system without any empirical examination of their use. This survey of prosecutors, judges, and defense attorneys investigates the frequency and success rates of six defenses (entrapment, statutes of limitations, double jeopardy, diplomatic immunity, insanity, and reasonable mistake of law), three constitutional evidentiary provisions (the Fourth Amendment search and seizure exclusionary rule, the Fifth Amendment Miranda rule, and Sixth Amendment faulty identification procedures), and plea negotiations.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"1709"},"PeriodicalIF":2.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150639","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69365496","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}