Harvard Law Review最新文献

{"title":"Affordable convergence: \"reasonable interpretation\" and the Affordable Care Act.","authors":"Martha Minow","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"126 1","pages":"117-49"},"PeriodicalIF":3.4,"publicationDate":"2012-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759467","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":"National Federation of Independent Business v. Sebelius: the Patient Protection and Affordable Care Act.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"126 1","pages":"72-82"},"PeriodicalIF":3.4,"publicationDate":"2012-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32759465","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":"Historical Gloss and the Separation of Powers","authors":"C. Bradley, Trevor W. Morrison","doi":"10.2139/SSRN.1999516","DOIUrl":"https://doi.org/10.2139/SSRN.1999516","url":null,"abstract":"Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, most accounts of how historical practice should inform the separation of powers require “acquiescence” by the branch of government whose prerogatives the practice implicates, something that is viewed as critical to giving historical practice the force of law. Yet the concept of acquiescence has been treated much too casually in the literature. Claims about acquiescence are typically premised on a Madisonian conception of interbranch competition, pursuant to which Congress and the Executive Branch are each assumed to have the tools and the motivation to guard against encroachments on their authority. It has become apparent from political science scholarship, however, that the Madisonian model does not accurately reflect the dynamics of modern congressional-executive relations. This requires a reexamination of the premises and implications of the idea of institutional acquiescence in particular, and of the role of historical practice more generally. Ultimately, we argue, the problems with the Madisonian model are not fatal to crediting historical practice in interpreting the separation of powers. But they do require more attention to the reasons why such practice is invoked, the extent to which the reasons demand institutional acquiescence, and the precise method by which such acquiescence is identified. To illustrate the importance of each of these questions, we present three case studies of constitutional debates concerning the separation of powers in which practice-based arguments are prominent - war powers, congressional-executive agreements, and removal of executive officers.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"126 1","pages":"411-485"},"PeriodicalIF":3.4,"publicationDate":"2012-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1999516","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67839429","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":"Property as Modularity","authors":"T. Merrill","doi":"10.7916/D8MG7P3Q","DOIUrl":"https://doi.org/10.7916/D8MG7P3Q","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"125 1","pages":"151-163"},"PeriodicalIF":3.4,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71366991","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":"Orphan Business Models: Toward a New Form of Intellectual Property","authors":"M. Abramowicz","doi":"10.4324/9781315777306-9","DOIUrl":"https://doi.org/10.4324/9781315777306-9","url":null,"abstract":"CONTENTS I. RESPONSES WITHIN PATENT LAW: BUSINESS METHODS AND 1371 RELATED DOCTRINES A. Market Experimentation After Bilski 1373 1. Abstractness and Suitability for Experimentation 1373 2. Other Patent Doctrines 1378 B. Problems with Incorporating Market Experimentation 1379 Concerns II. SUBJECT-SPECIFIC RESPONSES: THE CASE OF 1381 PHARMACEUTICALS A. Statutory Regimes 1383 1. Orphan Drug Act 1384 2. Protection from Generic Competition 1388 3. Encouragement of Generic Competition 1389 B. Potential Reform Paths 1392 1. Longer Protection Term 1392 2. Ceilings on Exclusivity Based on Inputs or Success 1393 3. Administrative Discretion 1395 III. NEW APPROACHES TO INTELLECTUAL PROPERTY PROTECTION FOR ORPHAN BUSINESS MODELS 1396 A. Term Competition 1396 1. The General Mechanism 1396 2. The Unconventionality of the Mechanism 1400 3. Extensions 1401 (a) Nonappropriable Network Effects 1402 (b) Long Time Horizons 1404 (c) Deregulation and Reregulation Incentives 1405 (d) Industry-Specific Statutory Compromises 1406 B. A Bonding Mechanism 1408 1. First Step Scenario: A Bonding Mechanism 1409 2. Potential Improvements to the Bonding Mechanism. 1415 3. Further Applications: Beyond Conventional Business 1416 Models (a) Scientific Research 1417 (b) Legal Innovation 1419 IV. CONCLUSION 1421 Harold Demsetz famously observed that property rights will tend to emerge when the value from recognizing them is sufficiently great to make their transaction costs bearable. (1) Demsetz's theory is descriptive, (2) but when the tradeoffs inherent in particular property rights are nearly in balance, normative debate about the desirability of those rights is likely to be lively. (3) The business method patents controversy underlying the Supreme Court's decision in Bilski v. Kappos (4) might thus be seen as an epiphenomenon of the broader sweep of Demsetzian institutional evolution. The immediate policy question is whether the costs inherent in a regime of patents on business methods (including patents on business models) (5) outweigh the benefits. (6) Over the long run, (7) however, if Demsetz's core insight is correct, we should expect evolving legal institutions to find some means of protecting business methods at least in those cases where such protection is most critical and can be accomplished most cheaply. The form of protection that ultimately emerges, however, might be quite different from patent protection for business methods as under-stood today. Perhaps the Patent and Trademark Office (PTO) and courts will develop more effective doctrines for avoiding issuing un-necessary patents--for example by toughening the nonobviousness test. (8) At least as importantly, the subject matter of business method protection--not necessarily business method patent protection--could change. Business method patents protect ideas for new business methods (9) because of the longstanding rule that inventions need not be reduced to practice (10) or commercialized (11) to be entitled to pa","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"124 1","pages":"1362-1421"},"PeriodicalIF":3.4,"publicationDate":"2011-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70442511","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":"Agency Coordination in Shared Regulatory Space","authors":"J. Freeman, Jim Rossi","doi":"10.2139/SSRN.1778363","DOIUrl":"https://doi.org/10.2139/SSRN.1778363","url":null,"abstract":"This Article argues that inter-agency coordination is one of the great challenges of modern governance. It explains why lawmakers frequently assign overlapping and fragmented delegations that require agencies to “share regulatory space,” why these delegations are so pervasive and stubborn, and why consolidating or eliminating agency functions will not solve the problems they create. The Article describes a variety of tools that Congress, the President and the agencies can use to manage coordination challenges effectively, including agency interaction requirements, formal inter-agency agreements, and joint policymaking. The Article assesses the relative costs and benefits of these coordination tools, using the normative criteria of efficiency, effectiveness and accountability, and concludes that the benefits of coordination will frequently justify its costs. To varying extents, these instruments can reduce regulatory costs for both government and the private sector, improve expertise, and ameliorate the risk of bureaucratic drift without compromising transparency. Coordination can also help to preserve the functional aspects of shared or overlapping authority, which include promoting inter-agency competition and accountability, while minimizing its dysfunctions in terms of discordant policy. While burdensome, shared regulatory space should also provide an important opportunity for the President to extend his reach. The Article argues that the President is uniquely positioned and motivated to manage the problems of shared regulatory space, and that coordination tools afford him the chance to put his stamp on policy. The Article recommends a comprehensive executive branch effort to promote stronger inter-agency coordination and improve coordination instruments. Of course, any presidential exercise of centralized supervision must operate within legal bounds, and often will be politically contentious. On balance, however, presidential leadership will be crucial to managing the serious coordination challenges presented by modern governance, and existing political and legal checks on potential overreach are sufficient to manage any conflicts with Congress. The Article concludes by exploring the implications of enhanced inter-agency coordination for judicial review. Courts might adjust standards of review to promote coordination, but even under existing standards of review policy decisions arrived at through strong inter-agency coordination likely will attract greater deference. The Article shows that greater coordination is relatively unlikely to impact the outcome of the Chevron inquiry for reviewing agency legal interpretations. Yet it also suggests some minor doctrinal adjustments that could lead to greater deference where agencies use certain coordination instruments to adopt shared legal interpretations. The larger conceptual purpose of the Article is to draw attention to the phenomenon of shared regulatory space and highlight the pressing need for","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"125 1","pages":"1131-1211"},"PeriodicalIF":3.4,"publicationDate":"2011-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1778363","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67742343","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":"Constitutional law -- free exercise clause -- Ninth Circuit rejects strict scrutiny for pharmacy dispensing requirement. -- Stormans, Inc. v. Selecky, 571 F.3d 960 (9th Cir. 2009).","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"123 2","pages":"596-603"},"PeriodicalIF":3.4,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28747091","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":"Employment law -- Family and Medical Leave Act of 1993 -- Department of Labor regulations alter substitution of paid leave provision under the FMLA. -- FMLA Final Rule, 73 Fed. Reg. 67,934 (Nov. 17, 2008) (codified at 29 C.F.R. pt. 825 (2009)).","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"123 2","pages":"604-11"},"PeriodicalIF":3.4,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28747092","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":"Federalism and the Generality Problem in Constitutional Interpretation","authors":"J. Manning","doi":"10.2139/SSRN.2849593","DOIUrl":"https://doi.org/10.2139/SSRN.2849593","url":null,"abstract":"In recent years, the Supreme Court has embraced a freestanding federalism that is not tied to any particular clause of the Constitution. Rather, because multiple clauses assume the continued existence of states and set up a government of limited and enumerated powers, the Court has inferred that such provisions collectively convey a purpose to establish federalism and to preserve a significant degree of state sovereignty. The Court has treated that general background purpose as a warrant to derive specific but unenumerated limitations on federal power – in particular, a federalism clear statement rule, an anticommandeering principle, and broad state sovereign immunity from suit in state courts. This Article argues that the interpretive methodology underlying the new federalism cases cannot readily be squared with the process insights clearly articulated by the Court in its recent statutory interpretation cases, which endorse the related propositions that lawmaking entails compromise, that enacted texts select means as well as ends, and that abstracting from a law’s specific means to its general aims dishonors the level of generality at which lawmakers choose to legislate. Despite evident differences between statutes and the Constitution, this Article maintains that where, as in the new federalism cases, the Court purports to attribute its holdings to decisions made by the founders pursuant to the processes prescribed by Articles V or VII, its interpretive approach should proceed from the premise that constitutionmaking involves process considerations analogous to those that characterize legislation. Constitutionmaking entails disagreement and compromise by stakeholders who have the right to insist upon compromise as the price of their assent. Moreover, the U.S. Constitution itself represents “a bundle of compromises” and, in the particular area of interest here, quite elaborately spells out the means by which power is to be divided between the federal and state governments. Indeed, emphasizing that federalism was an innovation of our Constitution, this Article maintains that the specific means chosen to implement our form of concurrent sovereignty in fact define the concept of federalism and that, contrary to the Court’s recent cases, there is no freestanding federalism.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"122 1","pages":"2003-2069"},"PeriodicalIF":3.4,"publicationDate":"2009-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68387237","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 Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law","authors":"F. Pollock","doi":"10.2307/1321856","DOIUrl":"https://doi.org/10.2307/1321856","url":null,"abstract":"It is part of the Online Library of Liberty web site http://oll.libertyfund.org, which was established in 2004 in order to further the educational goals of Liberty Fund, Inc. To find out more about the author or title, to use the site's powerful search engine, to see other titles in other formats (HTML, facsimile PDF), or to make use of the hundreds of essays, educational aids, and study guides, please visit the OLL web site. This title is also part of the Portable Library of Liberty DVD which contains over 1,000 books and quotes about liberty and power, and is available free of charge upon request.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"1 1","pages":"51"},"PeriodicalIF":3.4,"publicationDate":"2009-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1321856","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68278797","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}