Law Commons^™

Leegin, The Rule Of Reason, And Vertical Agreement, Herbert J. Hovenkamp

All Faculty Scholarship

The Supreme Court’s Leegin decision overturned the longstanding rule of per se illegality for resale price maintenance and applied a rule of reason. One might think that the question whether a vertical “agreement” exists between a manufacturer and a dealer should not be affected by the mode of analysis to be applied after an agreement is found. First one asks whether an agreement exists, and determines whether the per se rule or rule of reason applies only after receiving an affirmative answer. Nevertheless, ever since Colgate the Supreme Court has generally taken a more restrictive approach on the agreement issue …

Resale Price Maintenance: Consignment Agreements, Copyrighted Or Patented Products And The First Sale Doctrine, Herbert J. Hovenkamp

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The rule of reason adopted for resale price maintenance in the Supreme Court’s Leegin decision, which upset the century old Dr. Miles rule of per se illegality, requires some reconsideration of a number of issues about antitrust treatment of RPM. Under the old per se rule, bona fide “consignment” agreements were not covered by Section 1 of the Sherman Act at all because there was said to be no qualifying “agreement” between the supplier and the dealer. Rather the dealer was simply said to be acting as an agent of the seller. However, insofar as RPM produces competitive dangers, such …

Does It Hurt A State To Introduce An Income Tax?, David J. Shakow

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In an article in the Wall Street Journal, Arthur Laffer argued that, since 1960, the introduction of state income taxes reduced the relative size of a state’s gross state product and its relative per capita personal income. This paper criticizes Laffer’s conclusions on a number of grounds. 1. He uses incorrect figures for per capita income. In fact, relative per capita income rose in a majority of states that introduced an income tax since 1960. 2. The results are not clear when a state’s data is compared to other states in its region, rather than to the United States as …

Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp

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The Supreme Court’s Leegin decision has now brought the rule of reason to all purely vertical intrabrand distribution restraints. But the rule of reason does not mean per se legality and occasions for anticompetitive vertically imposed restraints may still arise. Of all those that have been suggested the most plausible are vertical restraints imposed at the behest of a powerful dealer or group (cartel) of dealers.

Although a vertical distribution restraint resembles a dealer cartel in that both limit intraband competition, a manufacturer restraining the distribution of its product shuns the excess dealer profits a dealer cartel would seek. Accordingly, …

Constitutional Stability And The Deferential Court, Sonia Mittal, Barry R. Weingast

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Does Public Opinion Influence The Supreme Court? Possibly Yes (But We're Not Sure Why), Lee Epstein, Andrew D. Martin

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Guns, Originalism, And Cultural Cognition, Jamal Greene

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Low Stakes And Constitutional Interpretation, Adam M. Samaha

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Democracy And Judicial Review, Will And Reason, Amendment And Interpretation: A Review Of Barry Friedman's The Will Of The People, Vicki C. Jackson

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Table Of Contents, Editorial Board

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Public Support And Judicial Crises In Latin America, Gretchen Helmke

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Public Opinion And State Supreme Courts, Neal Devins, Nicole Mansker

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Countermajoritarian Opportunity, John Ferejohn, Pasquale Pasquino

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Shadow Of State Secrets, Laura K. Donohue

University of Pennsylvania Law Review

No abstract provided.

The Disutility Of Injustice, Paul H. Robinson, Geoffrey P. Goodwin, Michael Reisig

All Faculty Scholarship

For more than half a century, the retributivists and the crime-control instrumentalists have seen themselves as being in an irresolvable conflict. Social science increasingly suggests, however, that this need not be so. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment. That shift to desert has prompted concerns by two …

Advising Noncitizen Defendants On The Immigration Consequences Of Criminal Convictions: The Ethical Answer For The Criminal Defense Lawyer, The Court, And The Sixth Amendment, Yolanda Vazquez

All Faculty Scholarship

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the …

Judge Henry Friendly And The Craft Of Judging, Michael Boudin

University of Pennsylvania Law Review

No abstract provided.

Uniformity, Federalism, And Tort Reform: The Erie Implications Of Medical Malpractice Certificate Of Merit Statutes, Benjamin Grossberg

University of Pennsylvania Law Review

No abstract provided.

Denied And Disparaged: Applying The Federalist Ninth Amendment, Seth Rokosky

University of Pennsylvania Law Review

No abstract provided.

Recessions And The Social Safety Net: The Alternative Minimum Tax As A Countercyclical Fiscal Stabilizer, Brian Galle, Jonathan Klick

All Faculty Scholarship

As recent events illustrate, state finances are procyclical: during recessions, state revenues crash, worsening the effects of economic downturns. This problem is well known, yet persistent. We argue here that, in light of predictable federalism and political economy dynamics, states will be unable to change this situation on their own. Additionally, we note that many possible federal remedies may result in worse problems, such as by creating moral hazard that would induce states to take on excessively risky policy, both fiscal and otherwise. Thus, we argue that policymakers should consider so-called “automatic” stabilizers, such as are found in the federal …

Product Life Cycle Theory And The Maturation Of The Internet, Christopher S. Yoo

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Much of the recent debate over Internet policy has focused on the permissibility of business practices that are becoming increasingly common, such as new forms of network management, prioritization, pricing, and strategic partnerships. This Essay analyzes these developments through the lens of the management literature on the product life cycle, dominant designs, technological trajectories and design hierarchies, and the role of complementary assets in determining industry structure. This analysis suggests that many of these business practices may represent nothing more than a reflection of how the nature of competition changes as industries mature. This in turn suggests that network neutrality …

"A Special Class Of Persons": Pregnant Women's Right To Refuse Medical Treatment After Gonzales V. Carhart, Margo Kaplan

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Gonzalez V. Crosby And The Use Of Federal Rule Of Civil Procedure 60(B) In Habeas Proceedings, Stefan Ellis

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Original Scope Of The Congressional Power To Regulate Elections, Robert G. Natelson

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

"A More Majestic Conception": The Importance Of Judicial Integrity In Preserving The Exclusionary Rule, Robert M. Bloom, David H. Fentin

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Judging Darwin: Understanding The New Distributive Model Of Evolution Instruction, Louis J. Virelli Iii

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

By Birth Or By Choice? The Intersection Of Racial And Religious Discrimination In School Admissions, Molly E. Swartz

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Uneasy Case For The Inside Director, Lisa Fairfax

All Faculty Scholarship

In the wake of recent scandals and the economic meltdown, there is nearly universal support for the notion that corporations must have independent directors. Conventional wisdom insists that independent directors can more effectively monitor the corporation and prevent or otherwise better detect wrongdoing. As the movement to increase director independence has gained traction, inside directors have become an endangered species, relegated to holding a minimal number of seats on the corporate board. This Article questions the popular trend away from inside directors by critiquing the rationales in favor of director independence, and assessing the potential advantages of inside directors. This …

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

All Faculty Scholarship

‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques …