University of Chicago Law Review最新文献_第9页

Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled 汉德法官和1917年的间谍法案:一个谜的解开

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600562

G. Stone

{"title":"Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled","authors":"G. Stone","doi":"10.2307/1600562","DOIUrl":"https://doi.org/10.2307/1600562","url":null,"abstract":"In his quite brilliant 1917 opinion in Masses Publishing Co v Patten,1 Judge Learned Hand set forth a novel interpretation of the Espionage Act of 19172 that has had enormous impact on our understanding of the First Amendment. In crafting this opinion, Judge Hand made clear that he was not holding the Act unconstitutional, but was merely construing it against the background of our longstanding commitment to the freedom of speech. Judge Hand adopted this approach in no small measure to deflect the vehemence of what he knew would be a harshly negative reaction to his decision. As a key step in his analysis, Judge Hand reasoned that -in light of our history, values, and tradition-it would be unwarranted to attribute to Congress an intention to enact a law that would have a broadly suppressive effect on free speech without an unequivocal statement of its purpose to that end. I have always assumed that this was merely a ploy to enable Judge Hand to cast his opinion in terms of statutory construction rather than constitutional compulsion, and that is certainly the conventional wisdom.3 On examination, however, it turns out, to my considerable surprise, that Judge Hand was right. Congress did not intend the Espionage Act to have the severely repressive effect attributed to it by the federal courts during World War I. This was a judicial, rather than a legislative, development. This sheds important new light not only on Judge Hand's opinion in Masses, but also on our understanding of Congress, the courts, and their respective roles in the evolution of one of the most repressive periods of American history.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"121 1","pages":"335-358"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77263698","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}

引用次数: 6

Property's Uneasy Path and Expanding Future 房地产的艰难之路和扩张的未来

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600553

Saul Levmore

{"title":"Property's Uneasy Path and Expanding Future","authors":"Saul Levmore","doi":"10.2307/1600553","DOIUrl":"https://doi.org/10.2307/1600553","url":null,"abstract":"How has law come to its present state and where is it going? These are two obvious questions to ask on the occasion of a great Law School's Centennial. In this Essay, I direct these questions at property rights, a centerpiece of the law and economics revolution that has itself been an important part of this last century of ideas. The law and economics literature has advanced the optimistic view that property rights have evolved in a way that promotes economic efficiency.1 I suggest that alongside the conventional and optimistic view, which is essentially transaction cost, or efficiency, based, there is an alternative and skeptical view that is interest group, or politically, driven. And if it is true that the evolution of property rights up to the present time is capable of conflicting explanations, then there is the question of predicting the future of property rights and, as we will see, the future of intellectual property in particular. Part I begins by exploring two distinct stories about the evolution of property rights. Part II then applies the two evolutionary stories to assess the future of intellectual property rights. I suggest that we should expect interest group pressures to generate an expansion of intellectual property rights, perhaps even to include protection for abstract ideas. These expanding rights will shape much of our legal system in the coming years. The conclusion adds some hopeful comments about the limits of interest group politics.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"84 4 1","pages":"181-196"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76071758","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}

引用次数: 16

What¿s Wrong with Gideon 吉迪恩怎么了

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600555

T. Meares

{"title":"What¿s Wrong with Gideon","authors":"T. Meares","doi":"10.2307/1600555","DOIUrl":"https://doi.org/10.2307/1600555","url":null,"abstract":"Gideon v Wainwright' is an icon of criminal procedure. The case, decided in 1963, established the constitutional right of indigent felony defendants to have counsel appointed to represent them in state criminal courts.2 To many, the Court's conclusion in Gideon was a long-awaited and obvious one. Indeed, Robert F Kennedy, then Attorney General, speaking at The Law School on Law Day a year after Gideon was decided, wondered whether lawyers even needed a constitutional determination to spell out appropriate professional responsibilities for representing indigent defendants.3 Given its status, then, one might find it somewhat surprising that I take issue with the case. I have set this task for myself, but I must be clear about what I perceive to be the problem with Gideon. I have no quarrel with Gideon's conclusion establishing the constitutional right of indigent defendants to appointed representation. That principle is, of course, why Gideon is famous. What I find problematic about Gideon is the basis of the Court's opinion. Gideon, I believe, represents a break with a kind of constitutional decisionmaking in the criminal procedure areaa break that has negative consequences. Specifically, Gideon marks the beginning of a shift in the Court's articulation of the requirements of fair trials away from notions of fundamental fairness in the Due Process Clause and toward reference to the Bill of Rights via the process of incorporation. The effect of this shift is subtle but significant. Throughout the early due process cases comprising the infancy of constitutional criminal procedure, the Court demonstrated not only an interest in securing accurate determinations of guilt for state criminal defendants, but also an obvious concern about the relationship between the structure of","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"16 1","pages":"215-232"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82174978","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}

引用次数: 5

Social Norms from Close-Knit Groups to Loose-Knit Groups 从紧密群体到松散群体的社会规范

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600563

L. Strahilevitz

{"title":"Social Norms from Close-Knit Groups to Loose-Knit Groups","authors":"L. Strahilevitz","doi":"10.2307/1600563","DOIUrl":"https://doi.org/10.2307/1600563","url":null,"abstract":"In 1991, Bob Ellickson's book about ranchers who raise cattle in an isolated California county launched an important new movement in the legal academy.' Scholars in this law and social norms movement began asking a series of interesting questions about the role of informal rules governing human relations, largely in an effort to determine whether these norms provide a more efficient structure of governance than formal law. Law and social norms scholars with empirical inclinations have, for the most part, continued to study the emergence and maintenance of social norms in communities that resemble Shasta County's closeknit group.2 A close-knit group is a network in which power is broadly distributed and information pertinent to informal control circulates easily among network members.3 Typically, close-knit groups are made up of repeat players who can identify one another. More recently, legal scholars interested in social norms have begun to examine how social norms might arise and be enforced in contexts with more anonymous subjects or fewer repeat players.4 Among these non-close-knit groups, it is important to distinguish between two types. Loose-knit groups are clusters of individuals among whom in-","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"3 1","pages":"359-372"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89054681","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}

引用次数: 43

Congressional Control over Treaty Interpretation 国会对条约解释的控制

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600667

Jamil N. Jaffer

引用次数: 1

Cultivating Humanity in Legal Education 在法学教育中培育人文精神

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600558

M. Nussbaum

{"title":"Cultivating Humanity in Legal Education","authors":"M. Nussbaum","doi":"10.2307/1600558","DOIUrl":"https://doi.org/10.2307/1600558","url":null,"abstract":"t Ernst Freund Distinguished Service Professor of Law and Ethics, The University of Chicago, appointed in the Law School, Philosophy Department, and Divinity School; Associate in the Classics Department, Affiliate of the Committee on Southern Asian Studies, member of the Board of the Human Rights Program, Coordinator of the Center for Comparative Constitutionalism. I am grateful to Eric Posner, Richard Posner, and Cass Sunstein for helpful comments on a previous draft, and to Jose Alvarez, Jeffrey Lehman, Anne-Marie Slaughter, and Mark Tushnet for helpful advice and information. 1 Hans Reiss, ed, Kant: Political Writings 107-08 (Cambridge 2d ed 1991) (H.B. Nisbet, trans). I alter Nisbet's translation of \"Recht\" from \"right\" to \"law\". Here as elsewhere, Kant uses \"Recht\" to translate Latin ius, frequently including the Latin in parentheses after the German. Often he alludes to classical ideas of natural law, ius naturae. Kant's continuity with Cicero, Seneca, and other Roman authors can best be appreciated if we bear these facts in mind. 2 United Nations Development Programme, Human Development Report 2000 9 (Oxford 2000). 3 All translations from Seneca's Latin are my own. The best edition of the Latin text of De Ira (On Anger) is in Seneca, Dialogorum Libri Duodecim 39-128 (Oxford 1977) (L.D. Reynolds, ed). An English-language version may be found at Seneca, On Anger, in Seneca, Moral and Political Essays 17,116 (Cambridge 1995) (John M. Cooper and J.F. Procope, eds). 265","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"44 1","pages":"265-280"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1600558","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72529636","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}

引用次数: 38

The Illegitimacy of Protective Jurisdiction over Foreign Affairs 外交事务保护管辖权的非法性

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600578

Andrew C. Baak

{"title":"The Illegitimacy of Protective Jurisdiction over Foreign Affairs","authors":"Andrew C. Baak","doi":"10.2307/1600578","DOIUrl":"https://doi.org/10.2307/1600578","url":null,"abstract":"Lawsuits filed in U.S. courts frequently antagonize foreign nations. For example, a sizeable mass tort suit filed against a corporation that is vital to a foreign state's economy is likely to capture the government's attention; in some instances, the lawsuit might compel the foreign government to raise the issue directly with the United States through diplomatic channels. As a result, the suit has potential ramifications for the United States' relations with that nation. Some courts have held that these speculative U.S. foreign relations interests are sufficient to support federal question jurisdiction over cases that are otherwise based on state law.2 In this Comment, I explore whether jurisdiction in such cases can be squared with the statutory and constitutional limits of federal question jurisdiction. The courts that have allowed federal question jurisdiction based on a case's possible impact on U.S. foreign affairs have rested their holdings on the federal common law of foreign relations. In Banco Nacional de Cuba v Sabbatino,3 the Supreme Court recognized that some aspects of the United States' foreign affairs are governed exclu4 sively by federal law. While Sabbatino left many unanswered ques-","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"105 1","pages":"1487-1512"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89938528","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}

引用次数: 2

The Rule of Law in Times of Stress 危机时期的法治

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600569

D. Wood

引用次数: 7

Standard-Setting Organizations: Patents, Price Fixing, and Per Se Legality 标准制定组织:专利、价格固定和本身合法性

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600663

Patrick D. Curran

{"title":"Standard-Setting Organizations: Patents, Price Fixing, and Per Se Legality","authors":"Patrick D. Curran","doi":"10.2307/1600663","DOIUrl":"https://doi.org/10.2307/1600663","url":null,"abstract":"Standard-setting organizations (SSOs), private groups that collaboratively select and adopt uniform technical standards for goods and services, are a critical element of the modern economy. Competitors within an industry often seek to make competing products interoperable by establishing industry-wide technical standards. To accomplish this end, competing companies join SSOs and work together to select particular technologies as industry standards. This process of product standardization benefits both producers and consumers: It promotes price competition among firms, creates demand-side economies of scale, and encourages product innovation by reducing the risks of future research and development efforts. Accordingly, antitrust enforcement agencies have recognized \"the important role of standard-setting in the technological innovation that will drive much of this nation's competitive vigor in the 21st Century.\"1 However, attempts by SSOs to avoid antitrust liability for price fixing now endanger the viability of the standard-setting process. When SSOs select patented technologies as industry standards, SSO patent policies typically require patent owners to offer \"fair,\" \"reasonable,\" \"nondiscriminatory\"2 licenses to SSO members. These licensing obligations are left intentionally vague to avert price-fixing liability. While this equivocal language has successfully insulated SSOs from antitrust liability, patent owners and SSO members repeatedly have been forced into high-risk litigation over the definition of \"fair,\"\"reasonable,\" \"nondiscriminatory\" license terms. This litigation has exposed both SSO members and patent owners to potential liability for patent infringement and antitrust violations, and has consequently created strong disincentives to take part in the SSO process. In turn, these disincentives now threaten the important social and economic benefits of standardization.","PeriodicalId":51436,"journal":{"name":"University of Chicago Law Review","volume":"91 1","pages":"983-1009"},"PeriodicalIF":2.0,"publicationDate":"2003-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75277249","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}

引用次数: 18

The Philosophical Dimensions of the Doctrine of Unconscionability 非理性主义的哲学维度

IF 2 2区社会学

University of Chicago Law Review Pub Date : 2003-01-01 DOI: 10.2307/1600579

P. Bridwell

引用次数: 20