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2010

University of Pennsylvania Law School

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Articles 1 - 30 of 280

Full-Text Articles in Law

Resale Price Maintenance: Consignment Agreements, Copyrighted Or Patented Products And The First Sale Doctrine, Herbert J. Hovenkamp Dec 2010

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

Faculty Scholarship

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 ...


Leegin, The Rule Of Reason, And Vertical Agreement, Herbert J. Hovenkamp Dec 2010

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

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 ...


Does It Hurt A State To Introduce An Income Tax?, David J. Shakow Dec 2010

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

Faculty Scholarship

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 ...


Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp Dec 2010

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

Faculty Scholarship

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 ...


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 Dec 2010

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

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 ...


Recessions And The Social Safety Net: The Alternative Minimum Tax As A Counter-Cyclical Fiscal Stabilizer, Brian Galle, Jonathan Klick Dec 2010

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

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 ...


The Disutility Of Injustice, Paul H. Robinson, Geoffrey P. Goodwin, Michael Reisig Dec 2010

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

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 ...


The Shadow Of State Secrets, Laura K. Donohue Dec 2010

The Shadow Of State Secrets, Laura K. Donohue

University of Pennsylvania Law Review

No abstract provided.


Denied And Disparaged: Applying The Federalist Ninth Amendment, Seth Rokosky Dec 2010

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

University of Pennsylvania Law Review

No abstract provided.


Table Of Contents, Editorial Board Dec 2010

Table Of Contents, Editorial Board

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Does Public Opinion Infuence The Supreme Court? Possibly Yes (But We're Not Sure Why), Lee Epstein, Andrew D. Martin Dec 2010

Does Public Opinion Infuence 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.


Low Stakes And Constitutional Interpretation, Adam M. Samaha Dec 2010

Low Stakes And Constitutional Interpretation, Adam M. Samaha

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Constitutional Stability And The Deferential Court, Sonia Mittal, Barry R. Weingast Dec 2010

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

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 Dec 2010

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.


Public Support And Judicial Crises In Latin America, Gretchen Helmke Dec 2010

Public Support And Judicial Crises In Latin America, Gretchen Helmke

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


The Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf Dec 2010

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

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


The Countermajoritarian Opportunity, John Ferejohn, Pasquale Pasquino Dec 2010

The Countermajoritarian Opportunity, John Ferejohn, Pasquale Pasquino

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Guns, Originalism, And Cultural Cognition, Jamal Greene Dec 2010

Guns, Originalism, And Cultural Cognition, Jamal Greene

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Public Opinion And State Supreme Courts, Neal Devins, Nicole Mansker Dec 2010

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

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Judge Henry Friendly And The Craft Of Judging, Michael Boudin Dec 2010

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 Dec 2010

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.


The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh Nov 2010

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

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 ...


The Original Scope Of The Congressional Power To Regulate Elections, Robert G. Natelson Nov 2010

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

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Judging Darwin: Understanding The New Distributive Model Of Evolution Instruction, Louis J. Virelli Iii Nov 2010

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

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


"A Special Class Of Persons": Pregnant Women's Right To Refuse Medical Treatment After Gonzales V. Carhart, Margo Kaplan Nov 2010

"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.


By Birth Or By Choice? The Intersection Of Racial And Religious Discrimination In School Admissions, Molly E. Swartz Nov 2010

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.


"A More Majestic Conception": The Importance Of Judicial Integrity In Preserving The Exclusionary Rule, Robert M. Bloom, David H. Fentin Nov 2010

"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.


Gonzalez V. Crosby And The Use Of Federal Rule Of Civil Procedure 60(B) In Habeas Proceedings, Stefan Ellis Nov 2010

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.


Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen Oct 2010

Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen

Faculty Scholarship

In the United States, both constitutional law and tort law recognize the right to privacy, understood as legal entitlement to an intimate life of one’s own free from undue interference by others and the state. Lesbian, gay, bisexual, and transgender (“LGBT”) persons have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appealing to that right. In the constitutional arena, LGBT Americans have claimed the protection of state and federal privacy rights with a modicum of well-known success. Holding that homosexuals have the same right to sexual privacy as heterosexuals, Lawrence v. Texas symbolizes ...


Microcredit: Not Yet A Panacea To End Trafficking In Women, Katherine Driscoll Oct 2010

Microcredit: Not Yet A Panacea To End Trafficking In Women, Katherine Driscoll

University of Pennsylvania Journal of Business Law

No abstract provided.