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Articles 1 - 30 of 45
Full-Text Articles in Law
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
Faculty Scholarship at Penn Carey Law
Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …
What Will Our Future Look Like And How Will We Respond?, Michael A. Fitts
What Will Our Future Look Like And How Will We Respond?, Michael A. Fitts
Faculty Scholarship at Penn Carey Law
No abstract provided.
"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh
"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh
Faculty Scholarship at Penn Carey Law
No abstract provided.
Punishment As Contract, Claire Oakes Finkelstein
Punishment As Contract, Claire Oakes Finkelstein
Faculty Scholarship at Penn Carey Law
This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …
James Wilson And The Scottish Enlightenment, William Ewald
James Wilson And The Scottish Enlightenment, William Ewald
Faculty Scholarship at Penn Carey Law
No abstract provided.
James Wilson And The Drafting Of The Constitution, William Ewald
James Wilson And The Drafting Of The Constitution, William Ewald
Faculty Scholarship at Penn Carey Law
No abstract provided.
The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang
The Disadvantages Of Immigration Restriction As A Policy To Improve Income Distribution, Howard F. Chang
Faculty Scholarship at Penn Carey Law
In this Article, I argue that tax and transfer policies are more efficient than immigration restrictions as instruments for raising the after tax incomes of the least skilled native workers. Policies to protect these native workers frol1'l immigrant competition in the labor market do no better at promoting distributive justice and are likely to impose a greater economic burden on natives in the country of immigration than the tax alternative. These immigration restrictions are especially costly given the disproportionate burden that they place on households with working women, which discourages fel1'wle participation in the labor force. This burden runs contrary …
The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick
The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick
Faculty Scholarship at Penn Carey Law
No abstract provided.
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein
Faculty Scholarship at Penn Carey Law
Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories of …
Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry
Hart On Social Rules And The Foundations Of Law: Liberating The Internal Point Of View, Stephen R. Perry
Faculty Scholarship at Penn Carey Law
No abstract provided.
Government Regulation Of Irrationality: Moral And Cognitive Hazards, Jonathan Klick, Gregory Mitchell
Government Regulation Of Irrationality: Moral And Cognitive Hazards, Jonathan Klick, Gregory Mitchell
Faculty Scholarship at Penn Carey Law
No abstract provided.
Hobbes And The Internal Point Of View, Claire Oakes Finkelstein
Hobbes And The Internal Point Of View, Claire Oakes Finkelstein
Faculty Scholarship at Penn Carey Law
No abstract provided.
Moralizing In Public, Anita L. Allen
Moralizing In Public, Anita L. Allen
Faculty Scholarship at Penn Carey Law
No abstract provided.
What Personal Rules Can Teach Us About Basic Institutions, Claire Oakes Finkelstein
What Personal Rules Can Teach Us About Basic Institutions, Claire Oakes Finkelstein
Faculty Scholarship at Penn Carey Law
No abstract provided.
Ripstein, Rawls, And Responsibility, Stephen R. Perry
Ripstein, Rawls, And Responsibility, Stephen R. Perry
Faculty Scholarship at Penn Carey Law
No abstract provided.
The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler
The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler
Faculty Scholarship at Penn Carey Law
No abstract provided.
Functional Law And Economics: The Search For Value-Neutral Principles Of Lawmaking, Francesco Parisi, Jonathan Klick
Functional Law And Economics: The Search For Value-Neutral Principles Of Lawmaking, Francesco Parisi, Jonathan Klick
Faculty Scholarship at Penn Carey Law
No abstract provided.
The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas
The Right To Remain Silent Helps Only The Guilty, Stephanos Bibas
Faculty Scholarship at Penn Carey Law
No abstract provided.
The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch
The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch
Faculty Scholarship at Penn Carey Law
No abstract provided.
Harm, History, And Counterfactuals, Stephen R. Perry
Harm, History, And Counterfactuals, Stephen R. Perry
Faculty Scholarship at Penn Carey Law
No abstract provided.
Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas
Harmonizing Substantive-Criminal Law-Values And Criminal Procedure: The Case Of Alford And Nolo Contendere Pleas, Stephanos Bibas
Faculty Scholarship at Penn Carey Law
No abstract provided.
Method And Principle In Legal Theory, Stephen R. Perry
Method And Principle In Legal Theory, Stephen R. Perry
Faculty Scholarship at Penn Carey Law
No abstract provided.
Two Men On A Plank, Claire Oakes Finkelstein
Two Men On A Plank, Claire Oakes Finkelstein
Faculty Scholarship at Penn Carey Law
No abstract provided.
The Possibility Of A Fair Paretian, Howard F. Chang
The Possibility Of A Fair Paretian, Howard F. Chang
Faculty Scholarship at Penn Carey Law
No abstract provided.
Positivism And The Notion Of An Offense, Claire Oakes Finkelstein
Positivism And The Notion Of An Offense, Claire Oakes Finkelstein
Faculty Scholarship at Penn Carey Law
While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under …
The Inefficiency Of Mens Rea, Claire Oakes Finkelstein
The Inefficiency Of Mens Rea, Claire Oakes Finkelstein
Faculty Scholarship at Penn Carey Law
No abstract provided.
When The Rule Swallows The Exception, Claire Oakes Finkelstein
When The Rule Swallows The Exception, Claire Oakes Finkelstein
Faculty Scholarship at Penn Carey Law
No abstract provided.
The Hazards Of Legal Fine Tuning: Confronting The Free Will Problem In Election Law Scholarship, Michael A. Fitts
The Hazards Of Legal Fine Tuning: Confronting The Free Will Problem In Election Law Scholarship, Michael A. Fitts
Faculty Scholarship at Penn Carey Law
No abstract provided.
Personal Fulfillment In The Changing World Of Law Practice: Opportunities And Obstacles, Howard Lesnick
Personal Fulfillment In The Changing World Of Law Practice: Opportunities And Obstacles, Howard Lesnick
Faculty Scholarship at Penn Carey Law
No abstract provided.
Threats And Preemptive Practices, Claire Oakes Finkelstein
Threats And Preemptive Practices, Claire Oakes Finkelstein
Faculty Scholarship at Penn Carey Law
No abstract provided.