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Full-Text Articles in Law

Tradable Patent Rights: A New Approach To Innovation, Ian Ayres, Gideon Parchomovsky Dec 2007

Tradable Patent Rights: A New Approach To Innovation, Ian Ayres, Gideon Parchomovsky

Faculty Scholarship at Penn Law

Patent thickets may inefficiently retard cumulative innovation. This paper explores two alternative mechanisms that may be used to weed out patent thickets. Both mechanisms are intended to reduce the number of patents in our society. The first mechanism we discuss is price based regulation of patents through a system of increasing renewal fees. The second and more innovative mechanism is quantity based regulation through the establishment of a system of Tradable Patent Rights. The formalization of tradable patent rights would essentially create a secondary market for patent permits in which patent protection will be bought and sold.


The Origins Of Shared Intuitions Of Justice, Paul H. Robinson, Robert O. Kurzban, Owen D. Jones Nov 2007

The Origins Of Shared Intuitions Of Justice, Paul H. Robinson, Robert O. Kurzban, Owen D. Jones

Faculty Scholarship at Penn Law

Contrary to the common wisdom among criminal law scholars, the empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself – physical aggression, takings without consent, and deception in transactions – the shared intuitions are stunningly consistent, across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result? The authors theorize that one explanation may be an evolved predisposition toward these ...


Face To Face With “It”: And Other Neglected Contexts Of Health Privacy, Anita L. Allen Oct 2007

Face To Face With “It”: And Other Neglected Contexts Of Health Privacy, Anita L. Allen

Faculty Scholarship at Penn Law

“Illness has recently emerged from the obscurity of medical treatises and private diaries to acquire something like celebrity status,” Professor David Morris astutely observes. Great plagues and epidemics throughout history have won notoriety as collective disasters; and the Western world has made curiosities of an occasional “Elephant Man,” “Wild Boy,” or pair of enterprising “Siamese Twins.” People now reveal their illnesses and medical procedures in conversation, at work and on the internet. This paper explores the reasons why, despite the celebrity of disease and a new openness about health problems, privacy and confidentiality are still values in medicine.


The Harvard And Chicago Schools And The Dominant Firm, Herbert J. Hovenkamp Sep 2007

The Harvard And Chicago Schools And The Dominant Firm, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Chicago School has produced many significant contributions to the antitrust literature of the last half century. Thanks in part to Chicago School efforts today we have an antitrust policy that is more rigorously economic, less concerned with protecting noneconomic values that are impossible to identify and weigh, and more confident that markets will correct themselves without government intervention. This Chicago School revolution came at the expense of the Harvard structural school, which flourished from the 1930s through the 1950s. That school rested on a fairly rigid theory of Cournot oligopoly, exaggerated notions about barriers and impediments to entry, and ...


Separating Contract And Promise, Aditi Bagchi Sep 2007

Separating Contract And Promise, Aditi Bagchi

Faculty Scholarship at Penn Law

Contract has been conceptualized as a species of promise. Treating contractual promise as a kind of promise highlights certain important aspects of contracting, but it also obscures essential differences between legally binding and everyday, or what I will call “private,” promises. The moral character of a private promise depends on the fact that it is not only freely made but also freely kept. Most contractual promises are not intended to have and (by definition) do not have this voluntary character. A promisor essentially opts out of the private practice of promising when she assigns to a third party the authority ...


Is Open Source Software The New Lex Mercatoria?, Fabrizio Marrella, Christopher S. Yoo Aug 2007

Is Open Source Software The New Lex Mercatoria?, Fabrizio Marrella, Christopher S. Yoo

Faculty Scholarship at Penn Law

Early Internet scholars proclaimed that the transnational nature of the Internet rendered it inherently unregulable by conventional governments. Instead, the Internet would be governed by customs and practices established by the end user community in a manner reminiscent of the lex mercatoria, which spontaneously emerged during medieval times to resolve international trade disputes independently and autonomously from national law. Subsequent events have revealed these claims to have been overly optimistic, as national governments have evinced both the inclination and the ability to exert influence, if not outright control, over the physical infrastructure, the domain name system, and the content flowing ...


Well-Being, Inequality And Time: The Time-Slice Problem And Its Policy Implications, Matthew D. Adler Aug 2007

Well-Being, Inequality And Time: The Time-Slice Problem And Its Policy Implications, Matthew D. Adler

Faculty Scholarship at Penn Law

Should equality be viewed from a lifetime or “sublifetime” perspective? In measuring the inequality of income, for example, should we measure the inequality of lifetime income or of annual income? In characterizing a tax as “progressive” or “regressive,” should we look to whether the annual tax burden increases with annual income, or instead to whether the lifetime tax burden increases with lifetime income? Should the overriding aim of anti-poverty programs be to reduce chronic poverty: being badly off for many years, because of low human capital or other long-run factors? Or is the moral claim of the impoverished person a ...


Concordance & Conflict In Intuitions Of Justice, Paul H. Robinson, Robert O. Kurzban Jun 2007

Concordance & Conflict In Intuitions Of Justice, Paul H. Robinson, Robert O. Kurzban

Faculty Scholarship at Penn Law

The common wisdom among criminal law theorists and policy makers is that the notion of desert is vague and the subject to wide disagreement. Yet the empirical evidence in available studies, including new studies reported here, paints a dramatically different picture. While moral philosophers may disagree on some aspects of moral blameworthiness, people's intuitions of justice are commonly specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself – physical aggression, takings without consent, and deception in transactions – people's shared intuitions cut across demographics and cultures. The findings raise ...


Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan Jun 2007

Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan

Faculty Scholarship at Penn Law

Regulation of business activity is nearly as old as law itself. In the last century, though, the use of regulation by modern governments has grown markedly in both volume and significance, to the point where nearly every facet of today’s economy is subject to some form of regulation. When successful, regulation can deliver important benefits to society; however, regulation can also impose undue costs on the economy and, when designed or implemented poorly, fail to meet public needs at all. Given the importance of sound regulation to society, its study by scholars of law and social science is also ...


Why De Minimis?, Matthew D. Adler Jun 2007

Why De Minimis?, Matthew D. Adler

Faculty Scholarship at Penn Law

De minimis cutoffs are a familiar feature of risk regulation. This includes the quantitative “individual risk” thresholds for fatality risks employed in many contexts by EPA, FDA, and other agencies, such as the 1-in-1 million lifetime cancer risk cutoff; extreme event cutoffs for addressing natural hazards, such as the 100-year-flood or 475-year-earthquake; de minimis failure probabilities for built structures; the exclusion of low-probability causal models; and other policymaking criteria. All these tests have a common structure, as I show in the Article. A de minimis test, broadly defined, tells the decisionmaker to determine whether the probability of some outcome is ...


Super Size Me And The Conundrum Of Race/Ethnicity, Gender, And Class For The Contemporary Law-Genre Documentary Filmmaker, Regina Austin Jun 2007

Super Size Me And The Conundrum Of Race/Ethnicity, Gender, And Class For The Contemporary Law-Genre Documentary Filmmaker, Regina Austin

Faculty Scholarship at Penn Law

According to director Morgan Spurlock, the idea for "Super Size Me," the hugely popular documentary that explored the health impact of fast food, originated from a news report about Pelman v. McDonald’s, one of the fast food obesity cases. Over the course of his month-long McDonald’s binge, Spurlock became the literal embodiment of fast-food’s ill-effects on the seemingly generic American adult physique. Spurlock’s take on the subject, however, ignores the circumstances that contributed to the overweight conditions of the Pelman plaintiffs who were two black adolescent females who ate their fast food in the Bronx. One ...


The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson Apr 2007

The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson

Faculty Scholarship at Penn Law

Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical conception of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert can transcend community, situation, and time to give a conception of justice that can be relied upon to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than can deontological desert because, contrary to common wisdom, there is a good deal of agreement ...


The Non-Problem Of Free Will In Forensic Psychiatry And Psychology, Stephen J. Morse Mar 2007

The Non-Problem Of Free Will In Forensic Psychiatry And Psychology, Stephen J. Morse

Faculty Scholarship at Penn Law

This article demonstrates that there is no free will problem in forensic psychiatry by showing that free will or its lack is not a criterion for any legal doctrine and it is not an underlying general foundation for legal responsibility doctrines and practices. There is a genuine metaphysical free will problem, but the article explains why it is not relevant to forensic practice. Forensic practitioners are urged to avoid all usage of free will in their forensic thinking and work product because it is irrelevant and spawns confusion.


Weak Democracy, Strong Information: The Role Of Information Technology In The Rulemaking Process, Cary Coglianese Feb 2007

Weak Democracy, Strong Information: The Role Of Information Technology In The Rulemaking Process, Cary Coglianese

Faculty Scholarship at Penn Law

Techno-optimists advocate the application of information technology to the rulemaking process as a means of advancing strong democracy -- that is, direct, broad-based citizen involvement in regulatory policy making. In this paper, I show that such optimism is unfounded given the obstacles to meaningful citizen deliberation posed by the impenetrability of current e-rulemaking developments, the prevailing level of citizen disengagement from politics and policy making more generally, and most citizens’ lack of the requisite technical information about and understanding of the issues at stake in regulatory decision making. As such, a more realistic goal for the application of new technology to ...


Rejecting “Uncontrolled Authority Over The Body”: The Decencies Of Civilized Conduct, The Past And The Future Of Unenumerated Rights, Seth F. Kreimer Jan 2007

Rejecting “Uncontrolled Authority Over The Body”: The Decencies Of Civilized Conduct, The Past And The Future Of Unenumerated Rights, Seth F. Kreimer

Faculty Scholarship at Penn Law

When Roe v. Wade was decided, many constitutional scholars viewed it as a unique event, an aberrant invocation of unenumerated rights forged under the twin pressures of an occluded legislative process and women's urgent demands for reproductive autonomy. Three decades later, this critique is a less persuasive reading of the constitutional landscape. A generation of constitutional development and a broader view of the sweep of constitutional history situates Roe as part of a pattern of decisions protecting the bodies of "we the people" against the violence and control of the state. The pattern does not appear clearly in most ...


How Psychology Is Changing The Punishment Theory Debate, Paul H. Robinson Jan 2007

How Psychology Is Changing The Punishment Theory Debate, Paul H. Robinson

Faculty Scholarship at Penn Law

This brief essay reviews the contributions that social psychology is making the debate among criminal law theorists on the proper principle for the distribution of criminal liability and punishment. Included are a discussion of suggestions that deterrence may be ineffective as a distributive principle, that incapacitation of dangerous persons may be effective but might be more effective if pursued through a detention system distinct from the criminal justice system, and that desert as a distributive principle, ironically, might be the most effective for controlling crime. Available for download at http://ssrn.com/abstract=956130


Fair Use Harbors, Gideon Parchomovsky, Kevin A. Goldman Jan 2007

Fair Use Harbors, Gideon Parchomovsky, Kevin A. Goldman

Faculty Scholarship at Penn Law

The doctrine of fair use was originally intended to facilitate those socially optimal uses of copyrighted material that would otherwise constitute infringement. Yet the application of the law has become so unpredictable that would-be fair-users can rarely rely on the doctrine with any significant level of confidence. Moreover, the doctrine provides no defense for those seeking to make fair uses of material protected by anti-circumvention measures. As a result, artists working in media both new and old are unable to derive from copyrighted works the full value to which the public is entitled. In this Essay, we propose a solution ...


The Promise And Perils Of Credit Derivatives, Frank Partnoy, David A. Skeel Jr. Jan 2007

The Promise And Perils Of Credit Derivatives, Frank Partnoy, David A. Skeel Jr.

Faculty Scholarship at Penn Law

In this Article, we begin what we believe will be a fruitful area of scholarly inquiry: an in-depth analysis of credit derivatives. We survey the benefits and risks of credit derivatives, particularly as the use of these instruments affect the role of banks and other creditors in corporate governance. We also hope to create a framework for a more general scholarly discussion of credit derivatives. We define credit derivatives as financial instruments whose payoffs are linked in some way to a change in credit quality of an issuer or issuers. Our research suggests that there are two major categories of ...