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University of Pennsylvania Carey Law School

2004

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Articles 31 - 60 of 224

Full-Text Articles in Law

Selected Current Bibliography, Book Review/Casenote Editor Oct 2004

Selected Current Bibliography, Book Review/Casenote Editor

University of Pennsylvania Journal of Business Law

No abstract provided.


Workers In Troubled Firms: When Are (Should) They Be Protected?, Steven L. Willborn Oct 2004

Workers In Troubled Firms: When Are (Should) They Be Protected?, Steven L. Willborn

University of Pennsylvania Journal of Business Law

No abstract provided.


The Question Remains After Raytheon Co. V. Hernandez: Whether No-Rehire Rules Disparately Impact Alcoholics And Former Drug Abusers, Christine Neylon O'Brien, Jonathan J. Darrow ` Oct 2004

The Question Remains After Raytheon Co. V. Hernandez: Whether No-Rehire Rules Disparately Impact Alcoholics And Former Drug Abusers, Christine Neylon O'Brien, Jonathan J. Darrow `

University of Pennsylvania Journal of Business Law

No abstract provided.


Capsule Reviews, Book Review/Casenote Editor Oct 2004

Capsule Reviews, Book Review/Casenote Editor

University of Pennsylvania Journal of Business Law

No abstract provided.


Constitutional Ethnography: An Introduction, Kim Lane Scheppele Oct 2004

Constitutional Ethnography: An Introduction, Kim Lane Scheppele

All Faculty Scholarship

Constitutional ethnography is the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape. This article provides an introduction to this sort of study by contrasting constitutional ethnography with multivariate analysis and with nationalist constitutional analysis. The article advocates not a universal one-size-fits-all theory or an elegant model that abstracts away the distinctive, but instead outlines an approach that can identify a set of repertoires found in real cases. Learning the set of repertoires that constitutional ethnography reveals, one can see more deeply into particular cases. Constitutional ethnography …


Other People's Patriot Acts: Europe's Response To September 11, Kim Lane Scheppele Oct 2004

Other People's Patriot Acts: Europe's Response To September 11, Kim Lane Scheppele

All Faculty Scholarship

After September 11, many countries changed their laws to make it easier to fight terrorism. They did so in part because the United Nations Security Council passed Resolution 1373 under its Chapter VII powers. The resolution required all Members of the United Nations to criminalize terrorism, to prevent their territory from being used to plan or promote terrorism, to crack down on terrorism financing, to tighten up immigration and asylum procedures and to share information about terrorists and terrorist threats with other states. This article examines what happened to the Security Council mandate when it got to Europe by first …


Law In A Time Of Emergency, Kim Lane Scheppele Oct 2004

Law In A Time Of Emergency, Kim Lane Scheppele

All Faculty Scholarship

This article examines the domestic and foreign policy responses of the Bush administration to the events of 9/11 and contrasts them with the primary responses of America’s democratic allies in Europe. Both sets of responses are understood through the lens of Carl Schmitt’s writing on the nature of the state of exception, which in many ways provides a blueprint for contemporary American conceptions of emergency powers while providing a notorious and unsuccessful attempt to justify emergency powers to contemporary Europeans. I argue that the divergence in the standard understandings of two formative historical events help explain European and American differences …


"Public Use" And The Justification Of Takings, Micah Elazar Sep 2004

"Public Use" And The Justification Of Takings, Micah Elazar

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Safe Rules Or Gays' Schools? The Dilemma Of Sexual Orientation Segregation In Public Education, Maurice R. Dyson Sep 2004

Safe Rules Or Gays' Schools? The Dilemma Of Sexual Orientation Segregation In Public Education, Maurice R. Dyson

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


No Reason For Exemption: Singleton V. Norris And Involuntary Medication Of Mentally Ill Capital Murderers For The Purpose Of Execution, Amir Vonsover Sep 2004

No Reason For Exemption: Singleton V. Norris And Involuntary Medication Of Mentally Ill Capital Murderers For The Purpose Of Execution, Amir Vonsover

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Reflections On Judging: At Home And Abroad, Patricia M. Wald Sep 2004

Reflections On Judging: At Home And Abroad, Patricia M. Wald

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


A Vintage Conflict Uncorked: The 21st Amendment, The Commerce Clause, And The Fully-Ripened Fight Over Interstate Wine And Liquor Sales, Marc Aaron Melzer Sep 2004

A Vintage Conflict Uncorked: The 21st Amendment, The Commerce Clause, And The Fully-Ripened Fight Over Interstate Wine And Liquor Sales, Marc Aaron Melzer

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Filters And Federalism: Public Library Internet Access, Local Control, And The Federal Spending Power, Anuj C. Desai Sep 2004

Filters And Federalism: Public Library Internet Access, Local Control, And The Federal Spending Power, Anuj C. Desai

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


A Realpolitik Defense Of Social Rights, Kim Lane Scheppele Sep 2004

A Realpolitik Defense Of Social Rights, Kim Lane Scheppele

All Faculty Scholarship

Social rights are controversial in theory, but many constitutions feature long lists of social rights anyway. But how can poor states ever hope to realize these rights? This article examines the practical bargaining over social rights that occurs when countries go broke and international financial institutions step in to direct internal fiscal affairs. Constitutional Courts can give their own governments leverage in bargaining with the IMF by making strong decisions defending social rights just at those moments. Because of the IMF's commitment to the rule of law, it is hard for the IMF to insist as part of the conditionality …


On Software Regulation, Polk Wagner Aug 2004

On Software Regulation, Polk Wagner

All Faculty Scholarship

This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibria of regulation-bysoftware. The absence of a legal right will stimulate a technological response—and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.” The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) …


General And Specific Legal Rules, Paul G. Mahoney, Chris William Sanchirico Jul 2004

General And Specific Legal Rules, Paul G. Mahoney, Chris William Sanchirico

All Faculty Scholarship

Legal rules may be general (that is, applicable to a broad range of situations) or specific. Adopting a custom-tailored rule for a specific activity permits the regulator to make efficient use of information about the social costs and benefits of that activity. However, the rule maker typically relies on the regulated parties for such information. The regulated parties may attempt to influence the rule maker, producing rules that reflect their private interests. We show that in some cases limiting the rule maker to a single rule for multiple activities will moderate this influence and maximize welfare. Available for download at …


The Trade Stakeholders Model And Participation By Nonstate Parties In The World Trade Organization, G. Richard Shell Jul 2004

The Trade Stakeholders Model And Participation By Nonstate Parties In The World Trade Organization, G. Richard Shell

University of Pennsylvania Journal of International Law

No abstract provided.


Foreign And Other Economic Rights Upon Conquest And Under Occupation: Iraq In Comparative And Historical Context , James Thuo Gathii Jul 2004

Foreign And Other Economic Rights Upon Conquest And Under Occupation: Iraq In Comparative And Historical Context , James Thuo Gathii

University of Pennsylvania Journal of International Law

No abstract provided.


The Application Of Domestic Patent Law To Exported Software: 35 U.S.C. 271(F), Alan M. Fisch, Brent H. Allen Jul 2004

The Application Of Domestic Patent Law To Exported Software: 35 U.S.C. 271(F), Alan M. Fisch, Brent H. Allen

University of Pennsylvania Journal of International Law

No abstract provided.


A Fish In Water: Sustainable Canadian Atlantic Fisheries Management And International Law, Andrew Fagenholz Jul 2004

A Fish In Water: Sustainable Canadian Atlantic Fisheries Management And International Law, Andrew Fagenholz

University of Pennsylvania Journal of International Law

No abstract provided.


Extension Of Standing In World Trade Organization Disputes To Nongovernment Parties, Philip M. Nichols Jul 2004

Extension Of Standing In World Trade Organization Disputes To Nongovernment Parties, Philip M. Nichols

University of Pennsylvania Journal of International Law

No abstract provided.


Realism, Liberalism, Values, And The World Trade Organization, Philip M. Nichols Jul 2004

Realism, Liberalism, Values, And The World Trade Organization, Philip M. Nichols

University of Pennsylvania Journal of International Law

No abstract provided.


The Wto Agreement On Government Procurement: A Necessary Evil In The Legal Strategy For Development In The Poor World, Victor Mosoti Jul 2004

The Wto Agreement On Government Procurement: A Necessary Evil In The Legal Strategy For Development In The Poor World, Victor Mosoti

University of Pennsylvania Journal of International Law

No abstract provided.


Forward, Jennifer Rosato Jul 2004

Forward, Jennifer Rosato

University of Pennsylvania Journal of International Law

No abstract provided.


Our Corporate Federalism And The Shape Of Corporate Law, Marcel Kahan, Edward B. Rock Jun 2004

Our Corporate Federalism And The Shape Of Corporate Law, Marcel Kahan, Edward B. Rock

All Faculty Scholarship

In the public debate sparked by the corporate scandals of the last years, Delaware has been strikingly absent. In contrast to the high profile activity of Congress, the Securities and Exchange Commission, the stock exchanges, federal prosecutors, and even state law enforcement officials, Delaware has been largely mute: no legislation; no rule-making; no criminal investigations; few headlines. In this Article, we use Delaware's relative passivity during this latest episode of corporate law-making as a starting point in the analysis of the shape of American corporate federalism and Delaware's place within it. We argue that Delaware long ago opted for what …


Intellectual Property Law And The Boundaries Of The Firm, Oren Bar-Gill, Gideon Parchomovsky Jun 2004

Intellectual Property Law And The Boundaries Of The Firm, Oren Bar-Gill, Gideon Parchomovsky

All Faculty Scholarship

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.


Perceptions Of Corruption And Campaign Finance: When Public Opinion Determines Constitutional Law, Nathaniel Persily, Kelli Lammie Jun 2004

Perceptions Of Corruption And Campaign Finance: When Public Opinion Determines Constitutional Law, Nathaniel Persily, Kelli Lammie

All Faculty Scholarship

This study tests the empirical assumptions about American public opinion found in the Supreme Court’s opinions concerning campaign finance reform. The area of campaign finance is a unique one in First Amendment law because the Court has allowed the mere appearance of a problem (in this case, “corruption”) to justify the curtailment of recognized First Amendment rights of speech and association. Since Buckley v. Valeo, defendants in campaign finance cases have proffered various types of evidence to support the notion that the public perceives a great deal of corruption produced by the campaign finance system. Most recently, in McConnell v. …


Does Criminal Law Deter? A Behavioral Science Investigation, Paul H. Robinson Jun 2004

Does Criminal Law Deter? A Behavioral Science Investigation, Paul H. Robinson

All Faculty Scholarship

Having a criminal justice system that imposes sanctions no doubt does deter criminal conduct. But available social science research suggests that manipulating criminal law rules within that system to achieve heightened deterrence effects generally will be ineffective. Potential offenders often do not know of the legal rules. Even if they do, they frequently are unable to bring this knowledge to bear in guiding their conduct, due to a variety of situational, social, or chemical factors. Even if they can, a rational analysis commonly puts the perceived benefits of crime greater than its perceived costs, due to a variety of criminal …


Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas Jun 2004

Plea Bargaining Outside The Shadow Of Trial, Stephanos Bibas

All Faculty Scholarship

Plea-bargaining literature predicts that parties strike plea bargains in the shadow of expected trial outcomes. In other words, parties forecast the expected sentence after trial, discount it by the probability of acquittal, and offer some proportional discount. This oversimplified model ignores how structural distortions skew bargaining outcomes. Agency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits all skew bargaining. In addition, psychological biases and heuristics warp judgments: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring all affect bargaining decisions. Skilled lawyers can partly counteract some of these problems but sometimes overcompensate. The …


A Critique Of The Strict Liability Standard For Determining Child Support In Cases Of Male Victims Of Sexual Assault And Statutory Rape, Ellen London Jun 2004

A Critique Of The Strict Liability Standard For Determining Child Support In Cases Of Male Victims Of Sexual Assault And Statutory Rape, Ellen London

University of Pennsylvania Law Review

No abstract provided.