The 1970 edition of Wigmore on Evidence offers the proposition that every female complainant in a rape prosecution should be subject to a psychiatric examination and echoes turn-of-the century psychoanalysts in its explanation: “The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is the heroine or victim.” In other words, some women falsely accuse men of rape because, either intentionally or inadvertently, they have confused a sexual fantasy with a violent crime. The focus of this Comment, and the focus of considerable controversy and difficulty in rape trials, is evidentiary procedure when the defendant claims that the complainant consented to the intercourse. Putting aside the philosophical problem of defining consent, in the absence of physical injuries the only relevant evidence of the crime will be testimony from the defendant and the prosecutrix. Recent reforms have attempted to address this situation. Federal Rule of Evidence 413, for example, permits prosecutors to introduce a defen-
1970年版的《威格摩尔论证据》(Wigmore on Evidence)提出，强奸案中的每一位女性原告都应该接受精神检查，并在其解释中呼应了世纪之交的精神分析学家:“不贞洁(让我们称之为)的心态在虚构的性事件中得到了偶然但直接的表达，叙述者是其中的女主角或受害者。”换句话说，一些女性错误地指控男性强奸，是因为有意或无意地将性幻想与暴力犯罪混为一谈。本评论的焦点，以及强奸审判中相当有争议和困难的焦点，是被告声称申诉人同意性交时的证据程序。撇开定义同意的哲学问题不谈，在没有身体伤害的情况下，犯罪的唯一相关证据将是被告和检察官的证词。最近的改革试图解决这一问题。例如，联邦证据规则第413条允许检察官提出辩护
{"title":"Admitting Mental Health Evidence to Impeach the Credibility of a Sexual Assault Complainant","authors":"Tess Wilkinson‐Ryan","doi":"10.2307/4150616","DOIUrl":"https://doi.org/10.2307/4150616","url":null,"abstract":"The 1970 edition of Wigmore on Evidence offers the proposition that every female complainant in a rape prosecution should be subject to a psychiatric examination and echoes turn-of-the century psychoanalysts in its explanation: “The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is the heroine or victim.” In other words, some women falsely accuse men of rape because, either intentionally or inadvertently, they have confused a sexual fantasy with a violent crime. The focus of this Comment, and the focus of considerable controversy and difficulty in rape trials, is evidentiary procedure when the defendant claims that the complainant consented to the intercourse. Putting aside the philosophical problem of defining consent, in the absence of physical injuries the only relevant evidence of the crime will be testimony from the defendant and the prosecutrix. Recent reforms have attempted to address this situation. Federal Rule of Evidence 413, for example, permits prosecutors to introduce a defen-","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"36 1","pages":"1373-1397"},"PeriodicalIF":2.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150616","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69362805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article, Professor Maldonado examines the extensive empirical evidence of paternal disengagement and analyses the reasons close to one-third of noncustodial fathers have little or no contact with their children after divorce. Exploring current societal norms of post-divorce fatherhood, she concludes that the law's and society's treatment and expectations of divorced fathers may be facilitating their disengagement. Drawing on the rich scholarship on the law's effect on social norms of littering, recycling, sexual harassment, and marital commitment, among others, she argues that the law has the ability to trigger a social norm of involved fatherhood after divorce, thereby encouraging fathers to remain a part of their children's lives. She proposes that states adopt a presumption of joint legal custody AND require that nonresidential fathers participate in their children's upbringing. Relying on norm theorists' framework for determining how social norms arise, Professor Maldonado rejects legal enforcement of mandatory parenting rules in favor of informal external and internal sanctions. She argues that as a result of the law's expressive function, these legal reforms will signal to fathers and their communities that fatherhood is an important and expected responsibility, not an option, and that good parents nurture their children. In short time, communities would informally enforce paternal involvement rules by shaming those fathers who violate the norm. Further, these legal reforms might also have a self-sanctioning effect as many fathers would internalize the legal rule and experience guilt if they failed to participate in their children's upbringing because it would signify, both externally and internally, that they are bad parents. Thus, even absent external enforcement, fewer fathers would abandon their children after divorce.
{"title":"Beyond Economic Fatherhood: Encouraging Divorced Fathers to Parent","authors":"S. Maldonado","doi":"10.2307/4150643","DOIUrl":"https://doi.org/10.2307/4150643","url":null,"abstract":"In this Article, Professor Maldonado examines the extensive empirical evidence of paternal disengagement and analyses the reasons close to one-third of noncustodial fathers have little or no contact with their children after divorce. Exploring current societal norms of post-divorce fatherhood, she concludes that the law's and society's treatment and expectations of divorced fathers may be facilitating their disengagement. Drawing on the rich scholarship on the law's effect on social norms of littering, recycling, sexual harassment, and marital commitment, among others, she argues that the law has the ability to trigger a social norm of involved fatherhood after divorce, thereby encouraging fathers to remain a part of their children's lives. She proposes that states adopt a presumption of joint legal custody AND require that nonresidential fathers participate in their children's upbringing. Relying on norm theorists' framework for determining how social norms arise, Professor Maldonado rejects legal enforcement of mandatory parenting rules in favor of informal external and internal sanctions. She argues that as a result of the law's expressive function, these legal reforms will signal to fathers and their communities that fatherhood is an important and expected responsibility, not an option, and that good parents nurture their children. In short time, communities would informally enforce paternal involvement rules by shaming those fathers who violate the norm. Further, these legal reforms might also have a self-sanctioning effect as many fathers would internalize the legal rule and experience guilt if they failed to participate in their children's upbringing because it would signify, both externally and internally, that they are bad parents. Thus, even absent external enforcement, fewer fathers would abandon their children after divorce.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"921"},"PeriodicalIF":2.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150643","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69365202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
THEODORE J. WEIMAN On July 22, 2004, the House of Representatives passed the Marriage Protection Act of 2004, a bill that would strip the federal courts of jurisdiction over cases challenging the constitutionality of the 1996 Defense of Marriage Act. Two months later, the House passed a similar bill that would curtail federal court jurisdiction for challenges to the constitutionality of the Pledge of Allegiance or its recitation. Though perhaps unlikely to pass the Senate, the bills represent an attempt by Congress to avoid potential federal court determination of issues involving important areas of constitutional law with the hope of
{"title":"Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young","authors":"T. J. Weiman","doi":"10.2307/4150638","DOIUrl":"https://doi.org/10.2307/4150638","url":null,"abstract":"THEODORE J. WEIMAN On July 22, 2004, the House of Representatives passed the Marriage Protection Act of 2004, a bill that would strip the federal courts of jurisdiction over cases challenging the constitutionality of the 1996 Defense of Marriage Act. Two months later, the House passed a similar bill that would curtail federal court jurisdiction for challenges to the constitutionality of the Pledge of Allegiance or its recitation. Though perhaps unlikely to pass the Senate, the bills represent an attempt by Congress to avoid potential federal court determination of issues involving important areas of constitutional law with the hope of","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"1677"},"PeriodicalIF":2.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150638","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69364732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
An impressively large number of consumer transactions are occurring online these days. Today, millions of consumers buy billions of dollars worth of goods online in a single year, and the numbers continue to grow. Presumably, the benefits to online purchases are all about efficiency. Vendors can conserve on the costs of maintaining stores and hiring employees to properly staff them. Consumers can conserve on the time and travel costs associated with shopping; and, unlike their offline counterparts, the online stores never close. To this extent, Internet transactions have been a huge success. Despite this success, states might not be doing all that they can to increase vendor competition and thereby decrease the prices paid by consumers. Empirical studies indicate that significant price disparities for the same or similar products still exist online. Moreover, unknown and new online vendors typically must pay an extra five to ten percent of the consumer’s purchase price to third-party intermediaries who help ensure that the transaction goes smoothly. The numbers suggest that known vendors might well take in more revenues at lower expense to provide the same goods to consumers that unknown vendors provide. This Essay explores the possibility that the market for online purchases fails to work as efficiently as it can because consumers lack trust in unknown vendors, and it argues that consumer distrust in unknown vendors can and often does take the form of categorical avoidance of other unknown vendors. This avoidance of unknown vendors as a class results from the fact that trust and distrust, as cognitive phenom-
{"title":"Choice of Law for Internet Transactions: The Uneasy Case for Online Consumer Protection","authors":"E. O'Connor","doi":"10.2307/4150652","DOIUrl":"https://doi.org/10.2307/4150652","url":null,"abstract":"An impressively large number of consumer transactions are occurring online these days. Today, millions of consumers buy billions of dollars worth of goods online in a single year, and the numbers continue to grow. Presumably, the benefits to online purchases are all about efficiency. Vendors can conserve on the costs of maintaining stores and hiring employees to properly staff them. Consumers can conserve on the time and travel costs associated with shopping; and, unlike their offline counterparts, the online stores never close. To this extent, Internet transactions have been a huge success. Despite this success, states might not be doing all that they can to increase vendor competition and thereby decrease the prices paid by consumers. Empirical studies indicate that significant price disparities for the same or similar products still exist online. Moreover, unknown and new online vendors typically must pay an extra five to ten percent of the consumer’s purchase price to third-party intermediaries who help ensure that the transaction goes smoothly. The numbers suggest that known vendors might well take in more revenues at lower expense to provide the same goods to consumers that unknown vendors provide. This Essay explores the possibility that the market for online purchases fails to work as efficiently as it can because consumers lack trust in unknown vendors, and it argues that consumer distrust in unknown vendors can and often does take the form of categorical avoidance of other unknown vendors. This avoidance of unknown vendors as a class results from the fact that trust and distrust, as cognitive phenom-","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"1883"},"PeriodicalIF":2.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150652","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain whether the making of federal common law by state courts is justified. A common premise of such theories - that courts make federal common law for the kinds of forward-looking policy reasons that would move Congress to enact a statute - largely accounts for the inadequacy. The Article proceeds to provide an account of the making of federal common law by state courts that considers historical practice, the constitutional structure, and certain normative claims about the way in which courts can and ought to make law. It concludes that state courts, when it is necessary to make federal common law in order to enforce existing law, are justified in doing so not as a deputy legislature, but as the result of attempting to best discern and apply existing principles of federal law. Finally, the Article identifies implications of this analysis for the operation of federal common law in federal courts.
{"title":"State Courts and the Making of Federal Common Law","authors":"A. Bellia","doi":"10.2307/4150642","DOIUrl":"https://doi.org/10.2307/4150642","url":null,"abstract":"The authority of federal courts to make federal common law has been a controversial question for courts and scholars. Several scholars have propounded theories addressing primarily whether and when federal courts are justified in making federal common law. It is a little-noticed phenomenon that state courts, too, make federal common law. This Article brings to light the fact that state courts routinely make federal common law in as real a sense as federal courts make it. It further explains that theories that focus on whether the making of federal common law by federal courts is justified are inadequate to explain whether the making of federal common law by state courts is justified. A common premise of such theories - that courts make federal common law for the kinds of forward-looking policy reasons that would move Congress to enact a statute - largely accounts for the inadequacy. The Article proceeds to provide an account of the making of federal common law by state courts that considers historical practice, the constitutional structure, and certain normative claims about the way in which courts can and ought to make law. It concludes that state courts, when it is necessary to make federal common law in order to enforce existing law, are justified in doing so not as a deputy legislature, but as the result of attempting to best discern and apply existing principles of federal law. Finally, the Article identifies implications of this analysis for the operation of federal common law in federal courts.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"825"},"PeriodicalIF":2.5,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150642","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69368127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In their 1968 seminal survey on the “recognition of foreign adjudications,” Professors Arthur von Mehren and Donald Trautman set out five reasons attesting to the vital importance of recognizing judgments rendered in foreign nations. The policies they highlighted focused on efficiency, protection of the successful party, forum shopping, grant of authority to the more appropriate jurisdiction, and “an interest in fostering stability and unity in an international order in which many aspects of life are not confined to any single jurisdiction.” Today, more than thirty-five years later, their reasoning rings true, as the issues surrounding both the recognition and the enforcement of foreign judgments have never been more salient. Breakthroughs in real-time communication in the last twenty-five years are only one reason for ever-blurring borders between nations. As human action and the need for efficiency increasingly demand that the judgments of one country’s courts are recognized and enforced by other nations, there
{"title":"Cross-Border Judgments and the Public Policy Exception: Solving the Foreign Judgment Quandary by Way of Tribal Courts","authors":"Lindsay Loudon Vest","doi":"10.2307/4150667","DOIUrl":"https://doi.org/10.2307/4150667","url":null,"abstract":"In their 1968 seminal survey on the “recognition of foreign adjudications,” Professors Arthur von Mehren and Donald Trautman set out five reasons attesting to the vital importance of recognizing judgments rendered in foreign nations. The policies they highlighted focused on efficiency, protection of the successful party, forum shopping, grant of authority to the more appropriate jurisdiction, and “an interest in fostering stability and unity in an international order in which many aspects of life are not confined to any single jurisdiction.” Today, more than thirty-five years later, their reasoning rings true, as the issues surrounding both the recognition and the enforcement of foreign judgments have never been more salient. Breakthroughs in real-time communication in the last twenty-five years are only one reason for ever-blurring borders between nations. As human action and the need for efficiency increasingly demand that the judgments of one country’s courts are recognized and enforced by other nations, there","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"797"},"PeriodicalIF":2.5,"publicationDate":"2004-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150667","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69372943","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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
{"title":"War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror","authors":"R. Brooks","doi":"10.2307/4150665","DOIUrl":"https://doi.org/10.2307/4150665","url":null,"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","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"675"},"PeriodicalIF":2.5,"publicationDate":"2004-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150665","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Comment examines the Federal Circuit's appellate review of claim construction during the years after its en banc decision in Cybor, in which the Court declared that claim construction is purely a matter of law, with no underlying factual inquiries, and would thenceforth be reviewed de novo. While Cybor made a seemingly simple rule, the Comment argues that it has had complicated consequences - internal inconsistency in the Federal Circuit's case law on claim construction, mixed messages to district courts, and seepage of the inconsistency into other areas of the patent law, such as indefiniteness. The reason for these unintended consequences, the Comment argues, is that certain issues underlying claim construction are immutably issues of fact, and the Federal Circuit has tried to force them to behave as issues of law to make the Cybor rule work. The Comment further argues that Cybor is inconsistent with the Supreme Court's decision in Markman, and concludes with two possible solutions, both of which involve limiting the holding of Cybor.
{"title":"Simplicity at the Cost of Clarity: Appellate Review of Claim Construction and the Failed Promise of Cybor","authors":"William H. Burgess","doi":"10.2307/4150666","DOIUrl":"https://doi.org/10.2307/4150666","url":null,"abstract":"This Comment examines the Federal Circuit's appellate review of claim construction during the years after its en banc decision in Cybor, in which the Court declared that claim construction is purely a matter of law, with no underlying factual inquiries, and would thenceforth be reviewed de novo. While Cybor made a seemingly simple rule, the Comment argues that it has had complicated consequences - internal inconsistency in the Federal Circuit's case law on claim construction, mixed messages to district courts, and seepage of the inconsistency into other areas of the patent law, such as indefiniteness. The reason for these unintended consequences, the Comment argues, is that certain issues underlying claim construction are immutably issues of fact, and the Federal Circuit has tried to force them to behave as issues of law to make the Cybor rule work. The Comment further argues that Cybor is inconsistent with the Supreme Court's decision in Markman, and concludes with two possible solutions, both of which involve limiting the holding of Cybor.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"6 1","pages":"763"},"PeriodicalIF":2.5,"publicationDate":"2004-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150666","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69366198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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.
{"title":"False Campaign Speech and the First Amendment","authors":"William P. Marshall","doi":"10.2307/4150626","DOIUrl":"https://doi.org/10.2307/4150626","url":null,"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.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"285"},"PeriodicalIF":2.5,"publicationDate":"2004-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150626","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69363174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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).
{"title":"Latinos, Anglos, Voters, Candidates, and Voting Rights","authors":"Jonathan Nagler, R. M. Alvarez","doi":"10.2307/4150628","DOIUrl":"https://doi.org/10.2307/4150628","url":null,"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).","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"393-432"},"PeriodicalIF":2.5,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150628","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69363844","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：