Lawmaking bodies in one polity sometimes incorporate the law of another polity "dynamically," so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. Dynamic incorporation does, however, delegate lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such cessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation states agree to delegate lawmaking power to a supranational entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation states within the decision-making structures of the supranational entity can ameliorate, but cannot fully compensate for, the resulting democratic losses suffered by those nation states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to selfgovernance.
{"title":"Dynamic Incorporation of Foreign Law","authors":"Michael C. Dorf","doi":"10.2139/SSRN.1093323","DOIUrl":"https://doi.org/10.2139/SSRN.1093323","url":null,"abstract":"Lawmaking bodies in one polity sometimes incorporate the law of another polity \"dynamically,\" so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. Dynamic incorporation does, however, delegate lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such cessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation states agree to delegate lawmaking power to a supranational entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation states within the decision-making structures of the supranational entity can ameliorate, but cannot fully compensate for, the resulting democratic losses suffered by those nation states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to selfgovernance.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"157 1","pages":"103"},"PeriodicalIF":2.5,"publicationDate":"2008-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68137946","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 Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity in regard to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005. CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions shed some light on issues such as jurisdictional burden and standard of proof, most of the judicial activity was socially wasteful litigation. It emphasized transitional efforts to interpret sloppily drafted provisions. More interesting, we saw wise but value-laden resistance by judges to CAFA, as they interpreted it in a way to dampen the early hopes of overly enthusiastic removers. Regression analysis confirms the suggestion that one can derive from percentages of cases decided in certain ways. With the exception of Republican male judges, the federal judiciary has not warmly embraced the statute.
{"title":"CAFA Judicata: A Tale of Waste and Politics","authors":"K. Clermont, T. Eisenberg","doi":"10.2139/SSRN.1014966","DOIUrl":"https://doi.org/10.2139/SSRN.1014966","url":null,"abstract":"The Class Action Fairness Act has taken on its real form through construction by the federal judges. That form emerges in this empirical study of judicial activity and receptivity in regard to the Act. Our data comprise the opinions under the Act published during the two and a half years following its enactment in 2005. CAFA has produced a lot of litigation in its short life. The cases were varied, of course, but most typically the resulting published federal opinion involved a removed contract case, with the dispute turning on the statute's effective date or on federal jurisdiction. Even though the opinions shed some light on issues such as jurisdictional burden and standard of proof, most of the judicial activity was socially wasteful litigation. It emphasized transitional efforts to interpret sloppily drafted provisions. More interesting, we saw wise but value-laden resistance by judges to CAFA, as they interpreted it in a way to dampen the early hopes of overly enthusiastic removers. Regression analysis confirms the suggestion that one can derive from percentages of cases decided in certain ways. With the exception of Republican male judges, the federal judiciary has not warmly embraced the statute.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"156 1","pages":"1553"},"PeriodicalIF":2.5,"publicationDate":"2007-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68126485","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 implicit minority discount, or IMD, is a fairly new concept in Delaware appraisal law. A review of the case law discussing the concept, however, reveals that it has emerged haphazardly and has not been fully tested against principles that are generally accepted in the financial community. While control share blocks are valued at a premium because of the particular rights and opportunities associated with control, these are elements of value that cannot fairly be viewed as belonging either to the corporation or its shareholders. In corporations with widely dispersed share holdings, the firm is subject to agency costs that must be taken into consideration in determining going concern value. A control block-oriented valuation that fails to deduct such costs does not represent the going concern value of the firm. As a matter of generally accepted financial theory, on the other hand, share prices in liquid and informed markets do generally represent that going concern value, with attendant agency costs factored or priced in. There is no evidence that such prices systematically and continuously err on the low side, requiring upward adjustment based on an implicit minority discount.Given the lack of serious support for the IMD in finance literature, this Article suggests that the Delaware courts may be relying on the IMD as a means to avoid imposing upon squeezed-out minority shareholders the costs of fiduciary misconduct by the controller. Where either past or estimated future earnings or cash flows are found to be depressed as a result of fiduciary misconduct, however, or where such earnings or cash flows fail to include elements of value that belong to the corporation being valued, the appropriate way to address the corresponding reduction in the determination of fair value is by adjusting those subject company earnings or cash flows upward.This approach to the problem of controller opportunism is more direct, more comprehensive in its application, and more in keeping with prevailing financial principles, than the implicit minority discount that the Delaware courts have applied in the limited context of comparable company analysis. The Delaware courts can therefore comfortably dispense with resort to the financially unsupported concept that liquid and informed share markets systematically understate going concern value.
{"title":"The Short and Puzzling Life of the 'Implicit Minority Discount' in Delaware Appraisal Law","authors":"Lawrence A. Hamermesh, M. Wachter","doi":"10.2139/SSRN.961022","DOIUrl":"https://doi.org/10.2139/SSRN.961022","url":null,"abstract":"The implicit minority discount, or IMD, is a fairly new concept in Delaware appraisal law. A review of the case law discussing the concept, however, reveals that it has emerged haphazardly and has not been fully tested against principles that are generally accepted in the financial community. While control share blocks are valued at a premium because of the particular rights and opportunities associated with control, these are elements of value that cannot fairly be viewed as belonging either to the corporation or its shareholders. In corporations with widely dispersed share holdings, the firm is subject to agency costs that must be taken into consideration in determining going concern value. A control block-oriented valuation that fails to deduct such costs does not represent the going concern value of the firm. As a matter of generally accepted financial theory, on the other hand, share prices in liquid and informed markets do generally represent that going concern value, with attendant agency costs factored or priced in. There is no evidence that such prices systematically and continuously err on the low side, requiring upward adjustment based on an implicit minority discount.Given the lack of serious support for the IMD in finance literature, this Article suggests that the Delaware courts may be relying on the IMD as a means to avoid imposing upon squeezed-out minority shareholders the costs of fiduciary misconduct by the controller. Where either past or estimated future earnings or cash flows are found to be depressed as a result of fiduciary misconduct, however, or where such earnings or cash flows fail to include elements of value that belong to the corporation being valued, the appropriate way to address the corresponding reduction in the determination of fair value is by adjusting those subject company earnings or cash flows upward.This approach to the problem of controller opportunism is more direct, more comprehensive in its application, and more in keeping with prevailing financial principles, than the implicit minority discount that the Delaware courts have applied in the limited context of comparable company analysis. The Delaware courts can therefore comfortably dispense with resort to the financially unsupported concept that liquid and informed share markets systematically understate going concern value.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"156 1","pages":"1"},"PeriodicalIF":2.5,"publicationDate":"2007-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67911356","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 paper by Kunreuther and Michel-Kerjan provides a powerful overview of changes in extreme weather related events. Supported by empirical evidence they show that in recent decades insurers have, more than before, been confronted with catastrophic losses resulting from weather related events (hurricanes, flooding). Moreover, they equally predict that it is very likely that these types of high damage events will occur even more in the future. One could easily cite other studies which equally predict that as a result of climate change it is likely that in the (near) future more of these extreme weather related events will lead to high losses. These studies merit two comments: 1. Even though one could argue that these estimates often relate to total losses (which are by definition much higher than the insured losses) it is likely that (as the authors rightly argue) insurers will be confronted with more losses from weather related events. Moreover, the amount of losses per incident will be higher as well. 2. Although there is of course (as many contributors to the conference mentioned) still a lot of debate among scientists on whether the predicted increase of these extreme weather events are actually the result of anthropogenic emissions, from an insurance perspective this in fact does not matter. All that matters for the insurer is that empirical evidence suggests that an increase in extreme weather events is likely to occur in the future. As the authors rightly mention, for an insurer it is not directly relevant whether this increase in extreme weather related events is the result of climate change or not. Insurers and reinsurers have already long discovered the importance of climate change for their way of doing business and have devoted various studies to this topic.
{"title":"Insurability of Damage Caused by Climate Change - A Comment","authors":"M. Faure","doi":"10.2307/40041383","DOIUrl":"https://doi.org/10.2307/40041383","url":null,"abstract":"The paper by Kunreuther and Michel-Kerjan provides a powerful overview of changes in extreme weather related events. Supported by empirical evidence they show that in recent decades insurers have, more than before, been confronted with catastrophic losses resulting from weather related events (hurricanes, flooding). Moreover, they equally predict that it is very likely that these types of high damage events will occur even more in the future. One could easily cite other studies which equally predict that as a result of climate change it is likely that in the (near) future more of these extreme weather related events will lead to high losses. These studies merit two comments: 1. Even though one could argue that these estimates often relate to total losses (which are by definition much higher than the insured losses) it is likely that (as the authors rightly argue) insurers will be confronted with more losses from weather related events. Moreover, the amount of losses per incident will be higher as well. 2. Although there is of course (as many contributors to the conference mentioned) still a lot of debate among scientists on whether the predicted increase of these extreme weather events are actually the result of anthropogenic emissions, from an insurance perspective this in fact does not matter. All that matters for the insurer is that empirical evidence suggests that an increase in extreme weather events is likely to occur in the future. As the authors rightly mention, for an insurer it is not directly relevant whether this increase in extreme weather related events is the result of climate change or not. Insurers and reinsurers have already long discovered the importance of climate change for their way of doing business and have devoted various studies to this topic.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"155 1","pages":"1875"},"PeriodicalIF":2.5,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041383","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68758606","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 developing litigation finance industry is applauded by those who champion its access-granting and bargaining-power-equalizing functions for low-income plaintiffs in civil suits, and derided by those who warn of its unsavory business practices and interference with settlement efforts. With no current body of law adequately addressing the potential problems this burgeoning industry creates, it is vital to develop an approach to litigation finance that protects both the integrity of the settlement process and consumer interests. Such an approach simultaneously must avoid excessive regulation that effectively hinders court access by precluding disadvantaged plaintiffs with viable claims from having their days in court. Applying systems thinking to the field of litigation finance and its effect on settlement reveals a simple objective that would best achieve the necessary balance between this new field’s angels and demons: reducing the time delay currently plaguing civil courts. Part I of this Comment explores the general structure, history, and current status of litigation finance, identifying the circumstances that stimulated its creation and describing its prototypical operation. Part I also briefly reviews existing legal doctrines that have been, or could potentially be, used to regulate litigation finance, including champerty, usury, and contract law. Part II examines the widely diverging viewpoints about the litigation finance industry, focusing in
{"title":"It's about Time: A System Thinking Analysis of the Litigation Finance Industry and Its Effect on Settlement","authors":"M. Rodak","doi":"10.2307/40041312","DOIUrl":"https://doi.org/10.2307/40041312","url":null,"abstract":"The developing litigation finance industry is applauded by those who champion its access-granting and bargaining-power-equalizing functions for low-income plaintiffs in civil suits, and derided by those who warn of its unsavory business practices and interference with settlement efforts. With no current body of law adequately addressing the potential problems this burgeoning industry creates, it is vital to develop an approach to litigation finance that protects both the integrity of the settlement process and consumer interests. Such an approach simultaneously must avoid excessive regulation that effectively hinders court access by precluding disadvantaged plaintiffs with viable claims from having their days in court. Applying systems thinking to the field of litigation finance and its effect on settlement reveals a simple objective that would best achieve the necessary balance between this new field’s angels and demons: reducing the time delay currently plaguing civil courts. Part I of this Comment explores the general structure, history, and current status of litigation finance, identifying the circumstances that stimulated its creation and describing its prototypical operation. Part I also briefly reviews existing legal doctrines that have been, or could potentially be, used to regulate litigation finance, including champerty, usury, and contract law. Part II examines the widely diverging viewpoints about the litigation finance industry, focusing in","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"155 1","pages":"503"},"PeriodicalIF":2.5,"publicationDate":"2006-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041312","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68758177","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}
Market-share liability has been one of the most controversial doctrines in tort law, with a strong plurality of courts rejecting the doctrine on the ground that it radically departs from the fundamental principle of causation. Courts that have adopted this liability rule, though, believe they are adhering to the principle of causation. In the first case to adopt market-share liability, the California Supreme Court claimed that the liability rule is grounded upon an extension of alternative liability, a doctrine that has been accepted by virtually all jurisdictions. The court never adequately explained how alternative liability can be modified to yield market-share liability, and the only explanation provided by torts scholars involves redefining the tort right to permit compensation for tortious risk, conditional upon the occurrence of injury, rather than for the injury itself. However, courts do not conceptualize the tort right in these terms, for otherwise the doctrine of market-share liability would be uncontroversial. As this Article shows, market-share liability can be derived from alternative liability in a manner that neither redefines the tort right nor departs from the principle of causation. Alternative liability permits the plaintiff to prove causation against the group of defendants. This characterization of the causal rule has been recognized by some torts scholars, but has never been justified. The Article shows that evidential grouping is a defensible principle implicit in numerous cases involving analogous causal problems, including the asbestos cases. Evidential grouping not only explains the doctrine of alternative liability, it shows how a modification of that liability rule yields market-share liability largely for reasons given by the California Supreme Court. This conceptualization of alternative liability and market-share liability also explains the otherwise puzzling liability rule adopted by courts in the asbestos cases. Due to this doctrinal unity, the widespread acceptance of alternative liability should make market-share liability more widely acceptable.
{"title":"The Doctrinal Unity of Alternative Liability and Market-Share Liability","authors":"Mark A. Geistfeld","doi":"10.2307/40041311","DOIUrl":"https://doi.org/10.2307/40041311","url":null,"abstract":"Market-share liability has been one of the most controversial doctrines in tort law, with a strong plurality of courts rejecting the doctrine on the ground that it radically departs from the fundamental principle of causation. Courts that have adopted this liability rule, though, believe they are adhering to the principle of causation. In the first case to adopt market-share liability, the California Supreme Court claimed that the liability rule is grounded upon an extension of alternative liability, a doctrine that has been accepted by virtually all jurisdictions. The court never adequately explained how alternative liability can be modified to yield market-share liability, and the only explanation provided by torts scholars involves redefining the tort right to permit compensation for tortious risk, conditional upon the occurrence of injury, rather than for the injury itself. However, courts do not conceptualize the tort right in these terms, for otherwise the doctrine of market-share liability would be uncontroversial. As this Article shows, market-share liability can be derived from alternative liability in a manner that neither redefines the tort right nor departs from the principle of causation. Alternative liability permits the plaintiff to prove causation against the group of defendants. This characterization of the causal rule has been recognized by some torts scholars, but has never been justified. The Article shows that evidential grouping is a defensible principle implicit in numerous cases involving analogous causal problems, including the asbestos cases. Evidential grouping not only explains the doctrine of alternative liability, it shows how a modification of that liability rule yields market-share liability largely for reasons given by the California Supreme Court. This conceptualization of alternative liability and market-share liability also explains the otherwise puzzling liability rule adopted by courts in the asbestos cases. Due to this doctrinal unity, the widespread acceptance of alternative liability should make market-share liability more widely acceptable.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"77 1","pages":"447"},"PeriodicalIF":2.5,"publicationDate":"2006-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041311","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757647","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 public trust doctrine provides that government holds title to certain lands and waterways in trust for the public benefit and public use. While the common law doctrine varies from state to state, historically it “requires that . . . trust land[s] be accessible and used for a public purpose; that [they] be put to . . . uses appropriate to the resource; and, in some cases, that [they] not be sold.” It does not, however, foreclose the private lease and license of public lands; rather, it requires that such lands be utilized primarily for the public benefit, and only incidentally for private benefit. Thus, fundamentally, the public trust doctrine incorporates a public use test. The New York public trust doctrine, as it applies to public parkland, has nebulously defined “public benefit” and “public use” as a “park,” in contrast to a “non-park,” use. In this Comment, I argue for
{"title":"Towards Environmental Entrepreneurship: Restoring the Public Trust Doctrine in New York","authors":"M. Benn","doi":"10.2307/40041305","DOIUrl":"https://doi.org/10.2307/40041305","url":null,"abstract":"The public trust doctrine provides that government holds title to certain lands and waterways in trust for the public benefit and public use. While the common law doctrine varies from state to state, historically it “requires that . . . trust land[s] be accessible and used for a public purpose; that [they] be put to . . . uses appropriate to the resource; and, in some cases, that [they] not be sold.” It does not, however, foreclose the private lease and license of public lands; rather, it requires that such lands be utilized primarily for the public benefit, and only incidentally for private benefit. Thus, fundamentally, the public trust doctrine incorporates a public use test. The New York public trust doctrine, as it applies to public parkland, has nebulously defined “public benefit” and “public use” as a “park,” in contrast to a “non-park,” use. In this Comment, I argue for","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"155 1","pages":"203"},"PeriodicalIF":2.5,"publicationDate":"2006-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041305","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757417","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 232 I. CLINICAL TRIALS MOVE ABROAD—BUT HUMAN SUBJECTS PROTECTIONS DO NOT FOLLOW 235 A. Utility of Extraterritorial Research to Multinational Corporations ......236 B. Utility of Medical Research to Developing Countries 241 C. Inadequate Enforcement of an Informed Consent Requirement Permits Exploitation 242 II. HUMAN SUBJECTS CAN ENFORCE PROTECTIONS UNDER THE ATS 246 A. Trovan Litigation as a Test Case 247 B. Judicial Interpretation of the ATS Leaves Room for Expansion of the Federal Common Law 248 1. Historical Perspective on the ATS 250 2. Filartiga and Tel-Oren 252 3. The Sosa Standard Defined: A Jurisdictional Statute Recognizing Federal Common Law 254 III. INFORMED CONSENT MEETS THE SOSA STANDARD FOR A NORM OF CUSTOMARY INTERNATIONAL LAW 255 A. Human Subjects Protections Require Informed Consent 257 1. Nuremberg Code 257 2. Declaration of Helsinki 259 3. CIOMS International Ethical Guidelines for Research Involving Human Subjects 262
{"title":"An Open Door to Ending Exploitation: Accountability for Violations of Informed Consent under the Alien Tort Statute","authors":"Erin Talati","doi":"10.2307/40041306","DOIUrl":"https://doi.org/10.2307/40041306","url":null,"abstract":"INTRODUCTION 232 I. CLINICAL TRIALS MOVE ABROAD—BUT HUMAN SUBJECTS PROTECTIONS DO NOT FOLLOW 235 A. Utility of Extraterritorial Research to Multinational Corporations ......236 B. Utility of Medical Research to Developing Countries 241 C. Inadequate Enforcement of an Informed Consent Requirement Permits Exploitation 242 II. HUMAN SUBJECTS CAN ENFORCE PROTECTIONS UNDER THE ATS 246 A. Trovan Litigation as a Test Case 247 B. Judicial Interpretation of the ATS Leaves Room for Expansion of the Federal Common Law 248 1. Historical Perspective on the ATS 250 2. Filartiga and Tel-Oren 252 3. The Sosa Standard Defined: A Jurisdictional Statute Recognizing Federal Common Law 254 III. INFORMED CONSENT MEETS THE SOSA STANDARD FOR A NORM OF CUSTOMARY INTERNATIONAL LAW 255 A. Human Subjects Protections Require Informed Consent 257 1. Nuremberg Code 257 2. Declaration of Helsinki 259 3. CIOMS International Ethical Guidelines for Research Involving Human Subjects 262","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"155 1","pages":"231-278"},"PeriodicalIF":2.5,"publicationDate":"2006-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041306","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757589","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}
If there were no juries, would there be a law of evidence? And should there be? These questions are not about whether this or that rule of evidence owes its existence to the institution of the jury, and are thus not about whether particular evidence rules should be modified or eliminated when juries are not present. Nor are they about those many rules of evidence that are premised on such wildly mistaken folk wisdom about jury behavior that they are in desperate need of modification or elimination in light of what we now know from the social sciences about how people in general and juries in particular actually decide and deliberate. Rather, my question is whether the law of evidence, in the large, is so substantially a product of the institution of the jury itself that if juries did not exist, then vast swaths of evidence law would, and should, not exist as well. This question is not merely of academic or historical interest. Numerous American trial judges, echoing what scholars since Jeremy Bentham have urged, essentially discard large chunks of the law of evidence when they sit without a jury. Time and again, especially in civil litigation and more than occasionally even in criminal cases, objections to the admissibility of evidence are met with the judicial re-
{"title":"On the Supposed Jury-Dependence of Evidence Law","authors":"F. Schauer","doi":"10.2307/40041304","DOIUrl":"https://doi.org/10.2307/40041304","url":null,"abstract":"If there were no juries, would there be a law of evidence? And should there be? These questions are not about whether this or that rule of evidence owes its existence to the institution of the jury, and are thus not about whether particular evidence rules should be modified or eliminated when juries are not present. Nor are they about those many rules of evidence that are premised on such wildly mistaken folk wisdom about jury behavior that they are in desperate need of modification or elimination in light of what we now know from the social sciences about how people in general and juries in particular actually decide and deliberate. Rather, my question is whether the law of evidence, in the large, is so substantially a product of the institution of the jury itself that if juries did not exist, then vast swaths of evidence law would, and should, not exist as well. This question is not merely of academic or historical interest. Numerous American trial judges, echoing what scholars since Jeremy Bentham have urged, essentially discard large chunks of the law of evidence when they sit without a jury. Time and again, especially in civil litigation and more than occasionally even in criminal cases, objections to the admissibility of evidence are met with the judicial re-","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"155 1","pages":"165"},"PeriodicalIF":2.5,"publicationDate":"2006-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041304","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757349","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 essay questions the wisdom and the constitutionality of the packet of powers now held by the Chief Justice of the United States. Many of the current attributes of the position are relatively recent additions, generated during the twentieth century through the interaction of a sequence of congressional decisions and the leadership of Chief Justices William Howard Taft, Earl Warren, Warren Burger, and William Rehnquist. These jurists responded to new demands as national law grew in importance in the American polity, and they introduced new ideas that gave the federal judiciary the capacity to function as a programmatic, agenda-setting agency. The reconfiguring of judicial power and structure within the federal system took place as, more generally, democratic mandates were reinterpreted to insist both that women and men of all colors had rights enforceable by courts and that the judiciary ought to include individuals diverse enough to capture an expanding class of litigants. Further, as concerns emerged about how, through popular electoral processes, individuals could entrench their authority for unduly long periods of time, American democracy revisited its institutions of electoral politics in the hopes (not yet well realized) of imposing constraints on the power of elected officials to entrench their own or their parties' power. It is the interaction among these factors - the developing democratic principles, the long-held commitments to separation of powers and independent adjudication, and the new range of tasks accruing to the Chief Justice - that makes troubling the range of powers now possessed by the chief justiceship. One individual can serve for decades as a life-tenured administrator-adjudicator. With such tenure in office, one person has a unique opportunity to forward positions through two channels: by building a body of doctrine in case law and by building a set of policies in administrative directives. When an individual is asked to be instrumental on behalf of the billion-dollar agency called The Federal Courts (with some two thousand judges, thirty thousand in staff, and hundreds of facilities) and also to be successful jurisprudentially as a disinterested adjudicator, one role cannot help but bleed into the other. Each role amplifies the power of, distracts from, and imposes costs on the other. Such conflation undermines democratic principles and the legitimacy of adjudication by giving the few individuals who hold the chief justiceship a disproportionate impact on American law. The history of the developments of the twentieth century makes plain the plasticity of the packet of activities associated with the chief justiceship. Because the powers are artifacts of custom and statute rather than the Constitution, Congress as well as the Chief Justice can and should revisit these powers to revise the charter of that role.
{"title":"Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States","authors":"J. Resnik, Lane Dilg","doi":"10.2307/40041348","DOIUrl":"https://doi.org/10.2307/40041348","url":null,"abstract":"This essay questions the wisdom and the constitutionality of the packet of powers now held by the Chief Justice of the United States. Many of the current attributes of the position are relatively recent additions, generated during the twentieth century through the interaction of a sequence of congressional decisions and the leadership of Chief Justices William Howard Taft, Earl Warren, Warren Burger, and William Rehnquist. These jurists responded to new demands as national law grew in importance in the American polity, and they introduced new ideas that gave the federal judiciary the capacity to function as a programmatic, agenda-setting agency. The reconfiguring of judicial power and structure within the federal system took place as, more generally, democratic mandates were reinterpreted to insist both that women and men of all colors had rights enforceable by courts and that the judiciary ought to include individuals diverse enough to capture an expanding class of litigants. Further, as concerns emerged about how, through popular electoral processes, individuals could entrench their authority for unduly long periods of time, American democracy revisited its institutions of electoral politics in the hopes (not yet well realized) of imposing constraints on the power of elected officials to entrench their own or their parties' power. It is the interaction among these factors - the developing democratic principles, the long-held commitments to separation of powers and independent adjudication, and the new range of tasks accruing to the Chief Justice - that makes troubling the range of powers now possessed by the chief justiceship. One individual can serve for decades as a life-tenured administrator-adjudicator. With such tenure in office, one person has a unique opportunity to forward positions through two channels: by building a body of doctrine in case law and by building a set of policies in administrative directives. When an individual is asked to be instrumental on behalf of the billion-dollar agency called The Federal Courts (with some two thousand judges, thirty thousand in staff, and hundreds of facilities) and also to be successful jurisprudentially as a disinterested adjudicator, one role cannot help but bleed into the other. Each role amplifies the power of, distracts from, and imposes costs on the other. Such conflation undermines democratic principles and the legitimacy of adjudication by giving the few individuals who hold the chief justiceship a disproportionate impact on American law. The history of the developments of the twentieth century makes plain the plasticity of the packet of activities associated with the chief justiceship. Because the powers are artifacts of custom and statute rather than the Constitution, Congress as well as the Chief Justice can and should revisit these powers to revise the charter of that role.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"1575"},"PeriodicalIF":2.5,"publicationDate":"2006-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041348","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68758179","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}
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