Showing papers in "University of Pennsylvania Law Review in 2004"
TL;DR: In this article, an outmoded version of the Law of Armed Conflict is presented, and the boundaries between national security and domestic affairs are discussed. But it does not address the problem of war without end.
Abstract: INTRODUCTION: AN OUTMODED LEGAL PARADIGM 676 I. BACKGROUND 687 A. The Law of Armed Conflict 687 B. National Security Law 695 C. The Assumption of Clear Boundaries 702 II. CHANGES: GLOBALIZATION AND ASYMMETRICAL THREAT 705 III. THE BREAKDOWN OF BOUNDARIES 711 A. “International” Versus “Internal” Armed Conflicts 711 B. Crime Versus Conflict 715 C. Geographical Boundaries 720 D. War Without End: Temporal Boundaries 725 E. We Are All at War: Distinctions Between Persons 729 F. The Boundaries Between National Security and Domestic Affairs...... 736 IV. IMPLICATIONS: WAR EVERYWHERE; RIGHTS NOWHERE 744 V. WHAT CAN BE DONE? HUMAN RIGHTS LAW AS A BASIS FOR CRITIQUE 746 VI. REINVENTING THE LAW OF ARMED CONFLICT 755 CONCLUSION 760
57 citations
TL;DR: This article examined the empirical assumptions about American public opinion found in the Supreme Court's opinions concerning campaign finance reform and found that the share of the population describing government as corrupt went down even as soft money contributions skyrocketed, and that an individual's perception of corruption derives to some extent from that person's position in society (race, income, education level); opinion of the incumbent President and performance of the economy over the previous year; attitudes concerning taxation and big government; and propensity to trust other people, in general.
Abstract: 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. FEC, in which the Court upheld the McCain-Feingold campaign finance law, both the Department of Justice and the plaintiffs conducted and submitted into evidence public opinion polls measuring the public’s perception of corruption. This article examines the data presented in that case, but also examines forty years of survey data of public attitudes toward corruption in government. We argue that trends in public perception of corruption may have little to do with the campaign finance system. The share of the population describing government as corrupt went down even as soft money contributions skyrocketed. Moreover, the survey data suggest that an individual’s perception of corruption derives to some extent from that person’s (1) position in society (race, income, education level); (2) opinion of the incumbent President and performance of the economy over the previous year; (3) attitudes concerning taxation and “big government”; and (4) propensity to trust other people, in general. Although we conclude
50 citations
TL;DR: In this article, the authors explore the problems with using science to justify policy decisions by analyzing the Environmental Protection Agency's recently revised air quality standards for ground-level ozone and particulate matter, some of the most significant regulations ever issued.
Abstract: Regulators need to rely on science to understand problems and predict the consequences of regulatory actions, but over reliance on science can actually contribute to, or at least deflect attention from, incoherent policymaking. In this article, we explore the problems with using science to justify policy decisions by analyzing the Environmental Protection Agency's recently revised air quality standards for ground-level ozone and particulate matter, some of the most significant regulations ever issued. In revising these standards, EPA mistakenly invoked science as the exclusive basis for its decisions and deflected attention from a remarkable series of inconsistencies. For example, even though EPA claimed to base its standards on a singular concern for public health, it set its standards at levels that will still lead to hundreds, if not thousands, of deaths each year. In other ways, EPA's positions were like shifting sands, changing at points that apparently were expedient for the agency. Such an outcome should not be unexpected when an agency misuses science as a policy rationale, but it also need not be inevitable if agencies accept the limits of science in justifying risk standards. We conclude by offering a set of principles to give direction to standard setting by EPA and other agencies. In the case of EPA's air quality program, Congress will likely need to amend the Clean Air Act to enable EPA to break free of the conceptual incoherence in which it now finds itself mired. Decision makers in any setting, though, can avoid the problem of shifting sands by carefully understanding what science can and cannot do.
29 citations
TL;DR: In this article, the authors conducted an empirical study of the Federal Circuit's jurisprudence of claim construction, the interpretation of language defining a patent's scope, and concluded that the record is decidedly mixed, though there are some encouraging signs.
Abstract: As an appellate body jurisdictionally demarcated by subject matter rather than geography, the United States Court of Appeals for the Federal Circuit occupies a unique role in the federal judiciary. This controversial institutional design has had profound effects on the jurisprudential development of the legal regimes within its purview - especially the patent law, which the Federal Circuit has come to thoroughly dominate in its two decades of existence. In this Article, we assess the court's performance against its basic premise: that, as compared to prior regional circuit involvement, centralization of legal authority will yield a clearer, more coherent, and more predictable legal infrastructure for the patent law. Using empirical data obtained from a novel study of the Federal Circuit's jurisprudence of claim construction - the interpretation of language defining a patent's scope - we conclude that, on this indicator at least, the record is decidedly mixed, though there are some encouraging signs. Specifically, the study indicates that the court is sharply divided between two basic methodological approaches to claim construction, each of which leads to distinct results. The dominant analytic framework gained additional favor during the period of the study, and yet the court became increasingly polarized. We also find that the significantly different approaches to claim construction followed by Federal Circuit judges has led to panel-dependency; claim construction analysis is clearly affected by the composition of the three-judge panel that hears and decides the case. While little in the results of this study would lead one to conclude that the court has been an unqualified success, we believe that the picture of the Federal Circuit that emerges is of a court in broad transition. Driven in part by new appointments and an effort to respond to its special mandate, a new Federal Circuit is emerging - one that appears to be more rules-driven and more consistent than before. It is too early to be sure, but the findings here, perhaps bolstered by the procedural and jurisprudential reform suggestions we derive from the results, suggest that the Federal Circuit's unique position in the judiciary may yet be vindicated.
27 citations
TL;DR: The Americans with Disabilities Act (ADA) was heralded as an “emancipation proclamation” for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements as mentioned in this paper.
Abstract: The Americans with Disabilities Act (ADA) was heralded as an “emancipation proclamation” for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA’s employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than
26 citations
TL;DR: In this paper, the authors use the U.S. Supreme Court's recent opinion in McConnell v. FEC to argue that the law should play a central role in reducing the impact of disparities in wealth on political participation.
Abstract: This Article uses the U.S. Supreme Court's recent opinion in McConnell v. FEC to argue that the law should play a central role in reducing the impact of disparities in wealth on political participation. In upholding large parts of the Bipartisan Campaign Reform Act, the Court in McConnell acknowledged the adverse impact of concentrated wealth on widespread democratic participation and self-government. Even in the aftermath of the reforms upheld in McConnell, however, a small, wealthy and homogenous donor class continues to make relatively large contributions that fund the bulk of American politics. Less than one percent of the U.S. population makes financial contributions over $200 to federal candidates, and these contributions represent the vast majority of funds that candidates receive from individuals. Of those who contribute over $200, approximately 85 percent have household incomes of $100,000 or more, 70 percent are male, and 96 percent are white. This donor class effectively determines which candidates possess the resources to run viable campaigns. Instead of preventing corruption or equalizing funds between candidates, this Article proposes that the primary goal of future reforms should be to reduce the impact of wealth and empower more citizens to participate in the funding of campaigns. On average, candidates should receive a larger percentage of their funds from a greater number of people in smaller contribution amounts. After responding to class-blind campaign reform opponents' claims that the impact of wealth on democratic participation warrants minimal concern, this Article examines concrete proposals. Reforms like matching funds and tax credits for smaller contributions, combined with emerging technology, would enable more Americans to make contributions and would enhance their voices in our democracy. Consistent with the Court's approach in McConnell, reforms that empower smaller contributors prompt candidates and political committees to raise funds from a greater number of persons and tangibly benefit public participation in political debate.
18 citations
16 citations
TL;DR: In contrast to the all-or-nothing nature of the mutual assent regime, where preliminary forms of consent are either full-blown contracts or create no obligation, under the no-retraction regime, obligations emerge gradually, as the positions of the negotiating parties draw closer as discussed by the authors.
Abstract: This Essay explores an alternative to one of the pillars of contract law, that obligations arise only when there is “mutual assent”—when the parties reach consensus over the terms of the transaction. It explores a principle of “no-retraction,” under which each party is obligated to terms it manifested and can retract only with some liability. In contrast to the all-or-nothing nature of the mutual assent regime, where preliminary forms of consent are either full-blown contracts or create no obligation, under the no-retraction regime, obligations emerge gradually, as the positions of the negotiating parties draw closer. Further, the no-retraction liability regime can be coupled with different damage measures to advance various social goals, including optimal reliance. The theory is applied to areas of contract formation that have produced inconsistent jurisprudence, such as precontractual liability and misunderstandings, and resolves them in a simple and unified fashion. Finally, the analysis provides a fresh understanding of the obligation to negotiate in good faith and explores a new criterion for gap-filling in incomplete contracts.
15 citations
TL;DR: In this paper, the authors suggest that a broad and traditional approach to fiduciary duties is preferable to a narrower analysis of entire fairness or contractually oriented good faith because a broader formulation better reflects society's norms of ethical conduct, more adequately serves all sectors of the private business community, may be more effective in combating subtle freezeout schemes, and does not presume that the parties' relationship is governed by a highly negotiated contract.
Abstract: Courts are establishing a mandatory core of acceptable business conduct within the relatively new context of the limited liability company (LLC). Outside of Delaware, courts have tailored traditional notions of corporate and/or partnership fiduciary duties to the LLC, while within Delaware, courts are developing minimum standards of conduct through restricted interpretations of contractual waivers, rigorous application of the entire fairness standard, and recourse to contractually based concepts of good faith. This Article suggests that a broad and traditional approach to fiduciary duties is preferable to a narrower analysis of entire fairness or contractually oriented good faith because a broader formulation better reflects society's norms of ethical conduct, more adequately serves all sectors of the private business community, may be more effective in combating subtle freezeout schemes, and does not presume that the parties' relationship is governed by a highly negotiated contract. Furthermore, this Article emphasizes that courts are central to all LLC modeling, including Delaware's contractarian paradigm, and are leading the way toward the development of a mandatory frame of reference for balancing the interest in contractual freedom with the need for minimum standards to curb opportunistic and abusive conduct.
14 citations
TL;DR: The recall of Governor Gray Davis and simultaneous election of Arnold Schwarzenegger provide a unique window into aspects of elections and democratic institutions that are not limited to statewide recall elections as mentioned in this paper, which can serve as a way to think about broader issues relevant not only to future recalls but also to all candidate and issue elections in California and throughout the nation.
Abstract: The recall of Governor Gray Davis and simultaneous election of Arnold Schwarzenegger provide a unique window into aspects of elections and democratic institutions that are not limited to statewide recall elections. Although one must be wary of drawing general conclusions about the political process from an unusual event such as the statewide recall, this election can serve as a way to think about broader issues relevant not only to future recalls but also to all candidate and issue elections in California and throughout the nation. In this article, I will discuss insights that the recent recall provides with respect to four familiar areas of law and politics. First, the recall demonstrated the significant and sometimes troubling role that money plays in modern campaigns, as well as the difficulty of constructing effective and comprehensive campaign finance laws. Second, the unusual structure of the recall election, where an election for Davis’s successor was on the same ballot as the recall question, helps to illustrate the role of political parties in elections. It suggests that independent and minor party candidates can be part of an election without necessarily causing widespread voter confusion. Third, the more than twenty lawsuits filed before the election was held—with one threatening to delay the election for months until an en banc panel of the Ninth Circuit stepped in—demonstrate that litigation is being used more aggressively as political strategy in the wake of the Supreme Court’s intervention in the 2000 presidential election. Unless courts take a less
12 citations
TL;DR: This article found that suburban and urban voters had markedly different policy preferences, party identifications, and partisan voting behavior than rural areas, which were overrepresented by state legislatures before the mid-1960s.
Abstract: Malapportionment of state legislatures before the mid-1960s gave urban and surburban voters much less representation than they deserved. This paper documents that suburban and urban voters had markedly different policy preferences, party identifications, and partisan voting behavior than rural areas, which were overrepresented. However, the patterns are not uniform. In the Northeast and North Central, the suburban and urban under represented areas were much more Democratic than rural areas. In the South and the West, the rural areas leaned more Democratic than the urban and suburban voters. Policy preferences split differently in the Northeast and North Central than they did in the South and West. Urban and Suburban voters were much more liberal on social welfare and economic policy than rural voters in those areas. In the South and West, few differences existed across locales. On only one issue did the urban and suburban areas have more liberal attitudes throughout the nation: racial politics. Court-ordered reapportionment, thus, increased the political weight of liberals and Democrats in the Northeast and North Central, but not in the South and West. Consistent with Erickson (1973), reapportionment moved the median voter in all regions to the left on issues of civil rights and racial policy.
TL;DR: In this paper, the authors examine the use of single-observation case studies to develop causal explanations for significant legal events, detailing the evidential and inferential problems inherent in this methodology.
Abstract: This article critically examines the use of single-observation case studies to develop causal explanations for significant legal events, detailing the evidential and inferential problems inherent in this methodology. Most significant among these problems is that focus on a single case necessitates the use of counterfactual thought experiments to test causal hypotheses. The pitfalls of such thought experiments are illustrated through discussion of recent attempts to explain the collapse of Enron Corporation using this approach. Application of a set of normative criteria to the products of these Enron thought experiments reveals the suspect nature of causal explanations and policy prescriptions drawn from single-observation case studies.
TL;DR: The legal and policy issues underlying the question of whether deceptive campaign speech should be regulated are discussed in this paper. But, as pointed out by the authors, the arguments in favor of regulating false campaign speech are not so different from the ones relied on by the Court in upholding limits on corporate and labor expenditures.
Abstract: Although campaign reformers may believe otherwise, it is not only the money in campaigns that is problematic. Deceptive campaign speech can also threaten the integrity of the electoral process. It can distort the issues, distract the voters from making informed decisions, inhibit voter turnout, and alienate the citizenry. Its effects on the political system can be as corrosive as the worst campaign finance abuses. At the same, regulating false campaign speech raises serious first amendment issues. Not only, as the Court has stated, does the first amendment have its "fullest and most urgent application [in] campaigns for political office" but regulating campaign speech is especially problematic because the dangers and risks of allowing the government and the courts to interfere with the rough and tumble of political campaigns are extremely high. This paper presents the legal and policy issues underlying the question of whether deceptive campaign speech should be regulated. In so doing, it compares the reasons for and against the regulation of deceptive campaign speech with the arguments for and against the prohibition of corporate and labor campaigns expenditures upheld in McConnell v. FEC. Contending that the differences in the arguments in favor of regulating false campaign speech are not so different from the ones relied on by the Court in upholding limits on corporate and labor expenditures, the paper suggests that, for better or worse, the implication of McConnell is that restrictions on deceptive campaign speech would also be upheld. Yet while it may be true that McConnell sheds significant light on the validity of deceptive campaign speech restrictions, it may also be true that weighing the competing interests underlying campaign speech restrictions sheds significant light on the validity of McConnell.
TL;DR: The recent decision in McConnell v. Federal Election Commission marks the culmination of an effort begun in 2000 to shift the Court's campaign finance jurisprudence in an important, though potentially dangerous, direction as discussed by the authors.
Abstract: The Supreme Court’s recent decision in McConnell v. Federal Election Commission marks the culmination of an effort begun in 2000 to shift the Court’s campaign finance jurisprudence in an important, though potentially dangerous, direction. Under pre-2000 jurisprudence, the Court (with one notable exception) upheld campaign finance laws only when the government demonstrated, with a reasonable amount of evidence, that the laws were closely drawn to prevent corruption or the appearance of corruption. The new jurisprudence, while purporting to apply the same anticorruption standard, does so with a new and extensive deference to legislative judgments on both the need for campaign finance regulation and the proper means to achieve it. There are signs that this shift is not merely the slipping of existing standards. Rather, it appears that the Court’s jurisprudence is moving in the direction proposed by Justice Breyer, toward upholding campaign finance laws that promote a kind of political equality. Justice Breyer termed the rationale a “general participatory self-government objective,” and explained its aim “to democratize the influence that money can bring to bear upon the electoral process, thereby building
TL;DR: Klarman and Goldberg as mentioned in this paper used the term "countermajoritarian hero" to describe the role of the Court in the Civil Rights and Civil Liberties Revolutions.
Abstract: t Assistant Professor of Law, University of Richmond School of Law;J.D., University of Virginia, 1996. Like the Beatles, I get by with a little help from my friends. Special thanks to Ron Bacigal, Michael Klarman, Earl Dudley, Michael Allan Wolf, Carl Tobias, John Nowak, Warren Billings, Emmy Paulette Reeves, Jim Gibson, John Douglass, and John Lain for their substantive input and editorial comments. Thanks also to Stacy Reed, Dan Petouvis, and Anne Major for their research assistance and to Richmond's talented library staff for helping me locate several period documents. I am likewise grateful for a research grant provided by Hunton & Williams, P.C. Finally, I creditJessica Marie Lain for her exceptionally impeccable timing. ArthurJ. Goldberg, The Court Sits-In the Center of the Storm, N.Y. TIMES, Nov. 8, 1964, ? 6 (Magazine), at 30. Justice Goldberg served on the Warren Court from October 1962 toJuly 1965. Linda Greenhouse, ArthurJ. Goldberg, in 2 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 848, 848 (Leonard W. Levy et al. eds., 1986). I credit Michael Klarman for coining the term "countermajoritarian hero." See, e.g., Michael J. Klarman, Brown, Originalism, and Constitutionalism Theory: A Response to Professor McConnell, 81 VA. L. REV. 1881, 1933-34 (1995) [hereinafter Klarman, A Response] (referring to the "myth of the Court as 'countermajoritarian hero"'); MichaelJ. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. LJ. 491, 493 (1997) [hereinafter Klarman, The Entrenchment Problem] (arguing that 'judges do not act as 'countermajoritarian heroes' or 'villains"'); Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 6 (1996) [hereinafter Klarman, Rethinking] (noting the "overblown nature of the [Supreme Court's] countermajoritarian hero image"); MichaelJ. Klarman, What's So Great About Constitutionalism?, 93 Nw. U. L. REV. 145, 192 (1998) [hereinafter Klarman, What's So Great] (arguing that "[o]nly one who thinks about judicial review ahistorically and acontextually could subscribe to the romantic vision of the Court as countermajoritarian hero"). See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) ("Nor need we enquire ... whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searchingjudicial inquiry.").
TL;DR: Ben-Shahar et al. as discussed by the authors investigated the propriety of using a single regime to resolve preconsensual and postconsensual problems in contract law and examined the plausibility of the doctrinal solutions.
Abstract: My friend and former colleague Omri Ben-Shahar has established a reputation for providing nuanced and well-grounded applications of economic analysis to important problems of contract law. In recent years, he has undertaken the ambitious task of exploring a significant topic at the boundary of contract law: liability for problems that arise out of efforts to form a contract. The essay to which I reply, Contracts Without Consent: Exploring a New Basis for Contractual Liability, is his second work on that topic, following his 2001 article with Lucian Bebchuk entitled Precontractual Reliance. Collectively, these pieces provide a comprehensive analysis of the relationship between opportunistic behavior and contract law. My goal in this reply is not to challenge that analysis directly, but rather, to test its boundaries. As a thematic matter, I discuss the practical domain in which the proposed new basis for contractual liability is useful and examine the plausibility of the doctrinal solutions that Ben-Shahar recommends. I first address the propriety of using a single regime to resolve preconsensual and postconsensual problems. I then consider whether the characterization of Ben-Shahar’s proposal as a default rule responds to the concerns that I raise in the first part of my discussion.
TL;DR: In this paper, the authors argue that the Court as a whole seems to be in a doctrinal holding pattern, unsure of where to go next and suggest a novel reading of Georgia v. Ashcroft, the Supreme Court's most recent race and redistricting case, as a bridge between the Court's prior strategy for adjudicating vote-dilution claims and a more process-oriented approach that deploys a variant of the minority veto.
Abstract: During the last year and a half, the Supreme Court has issued three important election law decisions in each of election law's main fiefdoms: race and redistricting, campaign finance, and the regulation of political parties. What has been missing from the commentary thus far has been an effort to connect the dots. This essay claims that these three, seemingly disparate decisions can be understood as part of a story that began more than four decades ago, when the Court first entered the political thicket. The Court has long tried to use a conventional individual rights framework - the bread-and-butter of legal analysis - to adjudicate what are often claims about the structure of the political process. An individual-rights framework, however, does not provide adequate analytic tools for resolving such challenges, as the Court's most recent opinions reveal. As a result, the Court as a whole seems to be in a doctrinal holding pattern, unsure of where to go next. This essay thus argues that we are witnessing a doctrinal interregnum in election law. It charts the course the Court has taken thus far, exploring the connections between the Court's three most recent election law decisions and its prior jurisprudence. It argues that, despite their many differences, each case reveals the dilemma the Court now faces in resolving what are fundamentally structural claims with an individual-rights framework. Part II speculates on the next steps the Court will take. In doing so, it attempts to sharpen the terminology deployed in the "rights-structure" debate thus far and suggests a novel reading of Georgia v. Ashcroft, the Supreme Court's most recent race and redistricting case, as a bridge between the Court's prior strategy for adjudicating vote-dilution claims - policing substantive outcomes - and a more process-oriented approach that deploys a variant of the minority veto. The essay closes by reflecting on how courts might use their regulatory powers to create incentives for other institutional actors to work to improve the structural health of our democracy.
TL;DR: The authors compared the demographics, political preferences, and voting behavior of Latinos and Anglos in California and found that there is remarkable diversity among Latinos within California and that a community of interest must be based more on shared preferences than on political outcomes.
Abstract: In this paper we contrast the demographics, political preferences, and voting behavior of Latinos and Anglos. In doing so, we focus particularly on California because of the large quantity of economic, demographic, and political data concerning Latinos that are available for that state. Also, restricting ourselves to Latinos in California avoids the “problem” of cross-state diversity. We demonstrate that there is remarkable diversity among Latinos within California. Were we to add the Hispanic populations of other states to our analysis, particularly Cubans in Florida and Puerto Ricans in New York, we would magnify this diversity considerably. The purpose of our research is to provide suitable factual material for determining whether or not Latinos can constitute a “community of interest.” We do not offer a new theory of “community of interest” here. But we think that a community of interest must be based more on shared preferences than on political outcomes (where “political outcomes” can be policy choices or candidates running for office).
TL;DR: The post-2000 redistricting cases reveal that the machinations of special interests in the electoral process are as dominant as ever as discussed by the authors, regardless of Reynolds v. Sims and the one-man, one-vote standard.
Abstract: SAMUEL ISSACHAROFF PAMELA S. KARLAN Chief Justice Warren called Reynolds v. Sims his most important opinion “because it insured that henceforth elections would reflect the collective public interest—embodied in the ‘one-man, onevote’ standard—rather than the machinations of special interests.” The Supreme Court marked Reynolds’ fortieth anniversary with a pair of decisions that reveal a central fact about contemporary redistricting: whatever else Reynolds has accomplished, the machinations of special interests in the electoral process are as dominant as ever. In Vieth v. Jubelirer, the Court confronted a blatant Republican gerrymander of Pennsylvania’s congressional delegation; in Cox v. Larios, the Court reviewed an equally shameless effort to preordain Democratic dominance of Georgia’s state legislature. What’s striking about the post-2000 redistricting cases is not only
TL;DR: For example, in this article, the United States Supreme Court invalidated the provision of the Minnesota Code of Judicial Conduct that precluded judicial candidates from "announcing" their views concerning disputed legal and political questions.
Abstract: The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters in a so-called retention election - in which there is no competing candidate but voters are asked simply whether they approve of the incumbent - in order to keep their positions. In twenty of the states that provide for electoral contests between competing judicial candidates, some or all judicial elections are nonpartisan, even though candidates for other state offices are elected on party lines. Most strikingly, virtually all states that provide for judicial elections also impose campaign codes that restrict the election-related activities of judicial candidates to a far greater extent than these states regulate the campaigns of executive and legislative candidates. Generally adopted by rule of the state's highest court rather than by statute, these codes, inter alia, limit what judicial candidates may say in their campaigns, restrict how they raise campaign contributions, and curtail their ability to engage in partisan political activities other than support for their own candidacies. In 2002, the United States Supreme Court sharply called into question the constitutionality of state judicial campaign restrictions. In Republican Party of Minnesota v. White, a closely divided Supreme Court invalidated the provision of the Minnesota Code of Judicial Conduct that precluded ju-dicial candidates from "announcing" their views concerning disputed legal and political questions. White found that the First Amendment applies to a judicial campaign code and, therefore, the code's restriction on campaign speech should be subject to strict judicial scrutiny. The Court cast doubt on the primary rationale for the campaign canons - preserving the impartiality and the appearance of impartiality of the state judiciary - and expressed skepticism with regard to the notion that even if judicial impartiality is a compelling state interest, that interest may be advanced by campaign speech restrictions. Moreover, the Court emphasized the positive value of enabling judicial candidates to express themselves on disputed political and legal questions. As the Court stated, those are "what the elections are about." Although Justice Scalia's majority opinion observed that "we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office," the Court also pointedly declined to find that the First Amendment allows greater regula-tion of judicial election campaigns than of other elections. Rather, noting the important lawmaking role of American courts, the majority concluded that the dissenters "greatly exaggerate[d] the difference between judicial and legislative elections." White's treatment of the judicial impartiality rationale and its application of the narrow tailoring requirement raise questions about whether any judicial campaign restriction could pass strict scrutiny. The decision casts a shadow of unconstitutionality over the entire project of judicial election campaign regulation. In the eighteen months since White, federal courts have held unconstitu-tional a number of state judicial campaign restrictions that were not at issue in White. Similarly, a number of state courts have revised their canons, including provisions not at issue in White, to make them less restrictive. To be sure, many state courts have retained their canons and have rejected First Amendment challenges to the restrictions on judicial campaign and partisan political activities that the canons impose. But the constitutionality of the state canons that subject judicial campaigns to greater regulation than legislative or executive campaigns remains uncertain.
TL;DR: State universities and colleges appear to be well-balanced with their private counterparts: each contains strong academic programs with Nobel Laureates and other notable scholars in their research labs and lecture halls; each fields large numbers of strong sports teams; and each benefits from the current federal intellectual property rights regime, whereby valuable patents, copyrights, and trademarks have been claimed.
Abstract: At first blush, major state universities and colleges appear to be well-balanced with their private counterparts: Each contains strong academic programs with Nobel Laureates and other notable scholars in their research labs and lecture halls; each fields large numbers of strong sports teams; and each benefits from the current federal intellectual property rights regime, whereby valuable patents, copyrights, and trademarks have been claimed. Despite this apparent parity, however, state universities have a surprising economic advantage over private universities—state universities can profit from their Eleventh Amendment immunity against damage claims for intellectual property infringement. Private institutions are not similarly immune. This disparate treatment of intellectual property rights is particularly important because of several recent cases involving universities (both public and private) against private entities. Two noteworthy examples include litigation by the University of Rochester against G.D. Searle & Co. (Pharmacia) for the alleged infringement of the University’s patent on the Cox-2 enzyme and John Madey’s claim against Duke University concerning the alleged infringement of his patents
TL;DR: Ben-Shahar's no-retraction principle as mentioned in this paper has been used to transform the line between agreement and no agreement, between liability for unkept promises or assurances and no liability for such un-kept promises, in the absence of any communication at all.
Abstract: In Contracts Without Consent: Exploring a New Basis for Contractual Liability, Omri Ben-Shahar, a talented and creative economic analyst of law, advocates a principle—which he calls the “no-retraction” principle—that is so at odds with the existing structure of the common law of contracts as to basically turn contract law upside down. BenShahar’s no-retraction principle would radically alter the line between agreement and no agreement, between liability for unkept promises or assurances and no liability for such unkept promises or assurances. Indeed, under a no-retraction regime, there would be no line between agreement and no agreement, and contractual liability could exist even in the absence of any communication (or what Ben-Shahar calls a “proposal”) at all. Transactions could be forced upon parties who want nothing to do with them—either because they’ve walked away from failed negotiations or because they were never in any negotiations to begin with—but only on the terms that were or would have been demanded by the unwilling party. By incurring reliance expenditures early in a contractual negotiation (or, apparently, before a negotiation had even begun), a relying party could hold the other negotiating party liable for those reliance expenses, regardless of
TL;DR: Burger et al. as mentioned in this paper argue that the bright-line rule drawn by Cybor has resulted in a great deal of inconsistency in the Federal Circuit's claim construction jurisprudence.
Abstract: WILLIAM H. BURGESS In its en banc ruling in Cybor Corp. v. FAS Technologies, Inc., the Federal Circuit attempted to settle much of the confusion surrounding appellate review of claim construction with a simple bright-line rule–-it declared that claim construction is a pure matter of law with no underlying factual inquiries, and therefore reviewable de novo on appeal. In the years leading up to Cybor, the federal district courts were struggling to apply the Federal Circuit’s rules on claim construction, and the Federal Circuit and the district courts were struggling to parse the issues of fact and law implicated in claim construction. The promise of Cybor was in its simplicity. No longer would the district courts have to separate issues of law and fact in claim construction, and by securing de novo review the Federal Circuit would be freer to lead by example and could ensure consistency and uniformity in claim construction by taking the issue for itself. Further, the Cybor ruling has been understood as wholly consistent with the Supreme Court’s prior decision on claim construction in Markman v. Westview Instruments, Inc. In this Comment, I argue that, counterintuitively, the bright-line rule drawn by Cybor has resulted in a great deal of inconsistency in the Federal Circuit’s claim construction jurisprudence. The reason for this, I argue, is that certain issues underlying claim construction are
TL;DR: McKee as mentioned in this paper analyzes the component parts of "judicial deference" as set out in McConnell v. Federal Election Commission, and assesses their interrelationship and persuasiveness.
Abstract: This Article analyzes the component parts of “judicial deference” as set out in McConnell v. Federal Election Commission, and assesses their interrelationship and persuasiveness. Part I locates McConnell within the history of struggles over the proper role of courts and legislatures in the constitutional design and oversight of campaign finance controls. It attempts to show how the Court could not settle on a consistent account of its role, or Congress’s, in the application of the rationale in Buckley v. Valeo for controlling campaign finance. With the advent of McConnell, the Court seeks to construct a way out for itself, built around Congressional “expertise” in striking the required constitutional balance. Part II more fully evaluates the theory of judicial deference articulated by the McConnell Court, with particular reference to the Court’s uses of: 1) history; 2) the notion of legislative “expertise;” 3) appeals to “political realities;” and 4) Congress’s imperative need, in light of those realities, to address actual or predicted circumvention. This construction of deference suffers from an internal conflict that eventually undermines its persuasiveness: it functions as an escape from the rigors of Buckley, but at the same time Buckley, and more specifically the assumed exclusivity of the corruption rationale, defines its theoretical limits. The Court must ground its justification of defer-
TL;DR: For example, this paper pointed out that the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
Abstract: January 22, 2004, marked the thirty-first anniversary of Roe v. Wade.' When the Supreme Court reconsidered and upheld the merits of Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, the majority put front and center the importance of stare decisis. The Court cited Justice Benjamin Cardozo for the wisdom that a judicial system could not function if it considered each issue anew in every case that raised it.3 Precedent assumes a greater role in a special case like Roe, the majority said, where the "Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."4 Needless to say, Roe did not end the controversy, and with a GOP-controlled Congress and White House, Roe's status is somewhat precarious.5 On January 23, 2003, President George W. Bush promised antiabortion protesters assembled on the National Mall "'to protect the lives of innocent children waiting to be born"' and pledged that his administration would promote "'compassionate alternatives"' to abortion.6 The Supreme Court likely stands one vote away from overturning Roe. As Justice Harry Blackmun himself noted
TL;DR: In this article, the authors concluded that the analysis of contract formation was "lacking in rigor and in nuance" and that "[i]t remains for future work to explore the extent to which the approach developed... has the horsepower to resolve pragmatically the problems that have proven difficult for current doctrine and to examine whether these solutions advance the various social objectives associated with contract formation".
Abstract: I ended Contracts Without Consent: Exploring a New Basis for Contract Liability with a reminder that the analysis was “lacking in rigor and in nuance” and that “[i]t remains for future work to explore the extent to which the approach developed . . . has the horsepower to resolve pragmatically the problems that have proven difficult for current doctrine and to examine whether these solutions advance the various social objectives associated with contract formation.” Such “future work” arrived sooner than I expected. I have now had the privilege to read the three commentaries that the University of Pennsylvania Law Review solicited, three razor-sharp critiques, producing precisely what I hoped would follow: an exploration, balanced with both theoretical nuance and empirical pragmatism, of the implications that flow from the no-retraction regime. And I may ultimately have to concede that much is still unresolved (or at least not convincingly resolved) by the proposed regime. But before we reembrace the traditional way of thinking about contracts, it may be worth our while to take a moment to understand the scope and the validity of the critiques and to determine whether a fine-tuned account of the noretraction regime emerges with the aid of such understanding. The commentaries to Contracts Without Consent occupy a continuum between the curious and the angry. On the one hand, it is viewed charitably as an “intriguing” and “appealing new approach,” embraced as a potential “new and promising beginning” of what can
TL;DR: In this paper, the editors at the University of Pennsylvania Law Review put so much energy into this piece and for being so supportive of my work, and they all worked with incredible care, and I note that all errors are entirely my own.
Abstract: t B.A. 2001, Cornell University; J.D. Candidate 2005, University of Pennsylvania. I am grateful to Professor Jennifer Rosato and to Michelle Seldin for their insightful comments and conversations on these issues. Indraneel Sur generously contributed editorial assistance and invaluable advice at every step of this process, and Nick Marsilio kindly shared his research. I especially thank the editors at the University of Pennsylvania Law Review for putting so much energy into this piece and for being so supportive of my work. They all worked with incredible care, and I note that all errors are entirely my own. Finally, I thank Ethan Simonowitz, as this Comment is as much his as it is my own. S.F. v. State ex rel. T.M., 695 So. 2d 1186, 1188 (Ala. Civ. App. 1996). 2County of San Luis Obispo v. Nathaniel J., 57 Cal. Rptr. 2d 843, 843 (Ct. App. 1996) (citation omitted). Laura W. Morgan, It's Tetn O'Clock: Do You Know Where Your Sperm Are? Toward a Strict Liability Theory of Parentage, 11 DIVORCE LITIG. 1, 7 (1999), available at http:// www.childsupportguidelines.com/articles/artl99903.html.