{"title":"The Decisional Significance of the Chief Justice","authors":"F. Cross, Stefanie A. Lindquist","doi":"10.2307/40041349","DOIUrl":"https://doi.org/10.2307/40041349","url":null,"abstract":"","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"1665-1707"},"PeriodicalIF":2.5,"publicationDate":"2006-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041349","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68758194","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}
Long before the first European immigrants set foot on American shores, Indian tribes had systems to administer justice. Long after the federal government had effectively subjugated tribal governments, Congress passed the Indian Reorganization Act to encourage tribes to “organize Western-style governments.” Formal court systems, “a relatively recent development in Indian Country,” are essential components of a functioning Western-style government. These court systems have grown substantially over the past three decades. In 1974, the American Indian Law Training Program began publishing the In-
{"title":"Personal Jurisdiction in Tribal Courts","authors":"D. Castleman","doi":"10.2307/40041323","DOIUrl":"https://doi.org/10.2307/40041323","url":null,"abstract":"Long before the first European immigrants set foot on American shores, Indian tribes had systems to administer justice. Long after the federal government had effectively subjugated tribal governments, Congress passed the Indian Reorganization Act to encourage tribes to “organize Western-style governments.” Formal court systems, “a relatively recent development in Indian Country,” are essential components of a functioning Western-style government. These court systems have grown substantially over the past three decades. In 1974, the American Indian Law Training Program began publishing the In-","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"1253"},"PeriodicalIF":2.5,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041323","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757782","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 1283 I. EVALUATING SPECIFIC PERSONAL JURISDICTION IN “OFFER TO SELL” PATENT INFRINGEMENT CASES 1289 A. The Federal Circuit Test for Personal Jurisdiction in Patent Cases .. 1290 B. The Federal Circuit’s Application of the Akro Test to “Offer to Sell” Patent Infringement Cases 1294 II. INTERPRETING “OFFER TO SELL” INFRINGEMENT IN THE CONTEXT OF THE PATENT STATUTES AND CONTRACT LAW 1300 A. The Addition of “Offer To Sell” as an Independent Statutory Grant to the Patentee 1300 B. Distinguishing “Offer To Sell” (Infringement) from “Offer” (Contract Law) and “On Sale” (Patentability Bar) 1302 C. The Federal Circuit’s Interpretation of “Offer To Sell” 1306 III. KEEPING THE SUBSTANTIVE “OFFER TO SELL” INFRINGEMENT ANALYSIS DISTINCT FROM THE PERSONAL JURISDICTION DETERMINATION 1310 A. Mixed Decisions in the District Courts 1312 B. Effective “Offer to Sell” Infringement Liability Requires a Different Analysis 1315 C. A Possible Solution 1319 CONCLUSION 1321
{"title":"The Illusion of “Offer To Sell” Patent Infringement: When an Offer Is an Offer but Is Not an Offer","authors":"Larry S. Zelson","doi":"10.2307/40041324","DOIUrl":"https://doi.org/10.2307/40041324","url":null,"abstract":"INTRODUCTION 1283 I. EVALUATING SPECIFIC PERSONAL JURISDICTION IN “OFFER TO SELL” PATENT INFRINGEMENT CASES 1289 A. The Federal Circuit Test for Personal Jurisdiction in Patent Cases .. 1290 B. The Federal Circuit’s Application of the Akro Test to “Offer to Sell” Patent Infringement Cases 1294 II. INTERPRETING “OFFER TO SELL” INFRINGEMENT IN THE CONTEXT OF THE PATENT STATUTES AND CONTRACT LAW 1300 A. The Addition of “Offer To Sell” as an Independent Statutory Grant to the Patentee 1300 B. Distinguishing “Offer To Sell” (Infringement) from “Offer” (Contract Law) and “On Sale” (Patentability Bar) 1302 C. The Federal Circuit’s Interpretation of “Offer To Sell” 1306 III. KEEPING THE SUBSTANTIVE “OFFER TO SELL” INFRINGEMENT ANALYSIS DISTINCT FROM THE PERSONAL JURISDICTION DETERMINATION 1310 A. Mixed Decisions in the District Courts 1312 B. Effective “Offer to Sell” Infringement Liability Requires a Different Analysis 1315 C. A Possible Solution 1319 CONCLUSION 1321","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"1283"},"PeriodicalIF":2.5,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041324","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757897","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}
Pub Date : 2006-05-01DOI: 10.1017/CBO9780511609800.051
Theodore P. Seto, Sande L. Buhai
Although people with disabilities make up some 20% of the American population, scholars have largely ignored U.S. tax provisions of particular relevance to them. This article undertakes the first such systematic study. In the process, it reexamines disability theory, tax theory, and the mechanical structure of the individual income tax system. Disability theory has changed dramatically over the past century, to the point that many tax rules important to people with disabilities are no longer justified by modern disability theory. Standard tax theory turns out to be inadequate to deal with the problems of people with disabilities because, consistent with its utilitarian origins, it generally assumes that taxpayers are identical except with respect to income; as a result, it lacks capacity to deal with other individual differences in ability to pay. The failure of theory to deal adequately with ability to pay, in turn, has placed serious strains on the mechanical structure of the individual income tax system as a whole, which has become increasingly incoherent. This article analyzes existing tax provisions of particular relevance to people with disabilities using an ability-to-pay approach to individual income taxation and a human variation paradigm of disability rights, justifying or reframing some and recommending repeal of others. Among other issues, it explores the general welfare doctrine and a dramatic expansion of the medical expense deduction, neither of which has received sufficient scholarly attention elsewhere. Ultimately, the article suggests, if the individual income tax system as a whole were to be reframed in terms of ability to pay, the mechanical complexity of that system could be rationalized and significantly reduced.
{"title":"Tax and Disability: Ability to Pay and the Taxation of Difference","authors":"Theodore P. Seto, Sande L. Buhai","doi":"10.1017/CBO9780511609800.051","DOIUrl":"https://doi.org/10.1017/CBO9780511609800.051","url":null,"abstract":"Although people with disabilities make up some 20% of the American population, scholars have largely ignored U.S. tax provisions of particular relevance to them. This article undertakes the first such systematic study. In the process, it reexamines disability theory, tax theory, and the mechanical structure of the individual income tax system. Disability theory has changed dramatically over the past century, to the point that many tax rules important to people with disabilities are no longer justified by modern disability theory. Standard tax theory turns out to be inadequate to deal with the problems of people with disabilities because, consistent with its utilitarian origins, it generally assumes that taxpayers are identical except with respect to income; as a result, it lacks capacity to deal with other individual differences in ability to pay. The failure of theory to deal adequately with ability to pay, in turn, has placed serious strains on the mechanical structure of the individual income tax system as a whole, which has become increasingly incoherent. This article analyzes existing tax provisions of particular relevance to people with disabilities using an ability-to-pay approach to individual income taxation and a human variation paradigm of disability rights, justifying or reframing some and recommending repeal of others. Among other issues, it explores the general welfare doctrine and a dramatic expansion of the medical expense deduction, neither of which has received sufficient scholarly attention elsewhere. Ultimately, the article suggests, if the individual income tax system as a whole were to be reframed in terms of ability to pay, the mechanical complexity of that system could be rationalized and significantly reduced.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"1053"},"PeriodicalIF":2.5,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9780511609800.051","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57078890","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 explores the connection between corporate governance and D&O insurance. It argues that D&O insurers act as gatekeepers and guarantors of corporate governance, screening and pricing corporate governance risks to maintain the profitability of their risk pools. As a result, D&O insurance premiums provide the insurer's assessment of a firm's governance quality. Most basically, firms with good corporate governance pay relatively low D&O premiums while firms with worse corporate governance pay more. This simple relationship could signal important information to investors and other capital market participants. Unfortunately, the signal is not being sent. Corporations lack the incentive to produce this disclosure themselves, and U.S. securities regulators do not require registrants to provide this information. This Essay therefore advocates a change to U.S. securities regulation, making disclosure of D&O policy details - specifically premiums, limits and retentions under each type of coverage, as well as the identity of the insurer - mandatory.
{"title":"Uncovering a Gatekeeper: Why the SEC Should Mandate Disclosure of Details Concerning Directors’ and Officers’ Liability Insurance Policies","authors":"Sean J. Griffith","doi":"10.2139/SSRN.728442","DOIUrl":"https://doi.org/10.2139/SSRN.728442","url":null,"abstract":"This Essay explores the connection between corporate governance and D&O insurance. It argues that D&O insurers act as gatekeepers and guarantors of corporate governance, screening and pricing corporate governance risks to maintain the profitability of their risk pools. As a result, D&O insurance premiums provide the insurer's assessment of a firm's governance quality. Most basically, firms with good corporate governance pay relatively low D&O premiums while firms with worse corporate governance pay more. This simple relationship could signal important information to investors and other capital market participants. Unfortunately, the signal is not being sent. Corporations lack the incentive to produce this disclosure themselves, and U.S. securities regulators do not require registrants to provide this information. This Essay therefore advocates a change to U.S. securities regulation, making disclosure of D&O policy details - specifically premiums, limits and retentions under each type of coverage, as well as the identity of the insurer - mandatory.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"1147"},"PeriodicalIF":2.5,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67813165","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}
{"title":"The Competence of Students as Editors of Law Reviews: A Response to Judge Posner","authors":"N. Cotton","doi":"10.2307/40041289","DOIUrl":"https://doi.org/10.2307/40041289","url":null,"abstract":"","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"951"},"PeriodicalIF":2.5,"publicationDate":"2006-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041289","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757549","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}
While courts in the United States frequently invoke legislative intent and legislative purpose when interpreting statutes, legal scholars have long questioned whether a multimember body like Congress can have purposes or intentions. Drawing on the philosophical literature on collective intention, this Comment argues that Congress, when enacting statutes, is the type of social organization that has intentions. The same literature on collective intention, however, counsels caution in expanding the list of mental states one should ascribe to Congress. This Comment begins by defining the contours of legislative intent and legislative purpose and then explore why relying on legislative purpose is appealing to courts. Next, the Comment describes a variety of theories of collective intention and looks in depth at the work of Raimo Tuomela. Third, the Comment analyzes Congress’s characteristics as a social entity and applies Tuomela’s account of collective intention to Congress, concluding that this account demonstrates that Congress, at least under certain circumstances, can have intentions. The argument runs as follows: to be a member of Congress an individual must agree that when legislation is being written, amended, and voted on certain members of Congress will become “operative” members. Once a bill is passed, all members of Congress
{"title":"For All Intents and Purposes: What Collective Intention Tells Us about Congress and Statutory Interpretation","authors":"Abby Wright","doi":"10.2307/40041290","DOIUrl":"https://doi.org/10.2307/40041290","url":null,"abstract":"While courts in the United States frequently invoke legislative intent and legislative purpose when interpreting statutes, legal scholars have long questioned whether a multimember body like Congress can have purposes or intentions. Drawing on the philosophical literature on collective intention, this Comment argues that Congress, when enacting statutes, is the type of social organization that has intentions. The same literature on collective intention, however, counsels caution in expanding the list of mental states one should ascribe to Congress. This Comment begins by defining the contours of legislative intent and legislative purpose and then explore why relying on legislative purpose is appealing to courts. Next, the Comment describes a variety of theories of collective intention and looks in depth at the work of Raimo Tuomela. Third, the Comment analyzes Congress’s characteristics as a social entity and applies Tuomela’s account of collective intention to Congress, concluding that this account demonstrates that Congress, at least under certain circumstances, can have intentions. The argument runs as follows: to be a member of Congress an individual must agree that when legislation is being written, amended, and voted on certain members of Congress will become “operative” members. Once a bill is passed, all members of Congress","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"983"},"PeriodicalIF":2.5,"publicationDate":"2006-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041290","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757283","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}
Consider two current controversies in American law and politics: the first is whether the expansion of copyright, trademark, and other forms of intellectual property conflicts with the free speech principle; the second is whether government collection and use of racial data (in the census or in law enforcement) violates the antidiscrimination principle. What do these controversies have in common? Both involve constitutional challenges that call into question the legitimacy of existing practices. More importantly, these examples teach us something about how constitutional principles operate. In each case, controversy arises as people apply a longstanding principle to a longstanding practice—a practice that heretofore has not been understood to be implicated by the principle. People exercise creativity by applying the principles to these previously uncontroversial practices, and as they do, they can reshape the meaning of both the principle and the practice. The claim that a longstanding practice violates a longstanding principle draws into question not only the legitimacy of the practice, but also the authority and the scope of the principle. While some argue that the free speech principle delegitimates expansion of copyright terms and other intellectual property rights, others insist that the challenged practice is fully consistent with the free speech principle: restrictions on infringement of intellectual property rights regulate conduct, not speech, and the fair use defense and the idea/ expression distinction adequately protect free speech interests in
{"title":"Principles, Practices, and Social Movements","authors":"J. Balkin, Reva B. Siegel","doi":"10.2307/40041288","DOIUrl":"https://doi.org/10.2307/40041288","url":null,"abstract":"Consider two current controversies in American law and politics: the first is whether the expansion of copyright, trademark, and other forms of intellectual property conflicts with the free speech principle; the second is whether government collection and use of racial data (in the census or in law enforcement) violates the antidiscrimination principle. What do these controversies have in common? Both involve constitutional challenges that call into question the legitimacy of existing practices. More importantly, these examples teach us something about how constitutional principles operate. In each case, controversy arises as people apply a longstanding principle to a longstanding practice—a practice that heretofore has not been understood to be implicated by the principle. People exercise creativity by applying the principles to these previously uncontroversial practices, and as they do, they can reshape the meaning of both the principle and the practice. The claim that a longstanding practice violates a longstanding principle draws into question not only the legitimacy of the practice, but also the authority and the scope of the principle. While some argue that the free speech principle delegitimates expansion of copyright terms and other intellectual property rights, others insist that the challenged practice is fully consistent with the free speech principle: restrictions on infringement of intellectual property rights regulate conduct, not speech, and the fair use defense and the idea/ expression distinction adequately protect free speech interests in","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"927"},"PeriodicalIF":2.5,"publicationDate":"2006-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041288","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68757483","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 fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of "integration." This article brings that debate to a new context - the integration presumption under the Individuals with Disabilities Education Act ("IDEA"). The IDEA has contained an "integration presumption" for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In addition, the article demonstrates that Congress created this presumption to mandate the closing of inhumane, disability-only educational institutions but not to require fully inclusive education for all children with disabilities. This article examines the available empirical data and concludes that such evidence cannot justify a presumption for a fully inclusive educational environment for children with mental retardation, emotional or mental health impairments, or learning disabilities. While this article recognizes that structural remedies, such as an integration presumption, can play an important role in achieving substantive equality, such remedies also need periodic re-examination. Modification of the integration presumption can help it better serve the substantive goal of according an adequate and appropriate education to the full range of children who have disabilities while still protecting disabled children from inhumane, disability-only educational warehouses.
{"title":"The Disability Integration Presumption: Thirty Years Later","authors":"R. Colker","doi":"10.2307/40041286","DOIUrl":"https://doi.org/10.2307/40041286","url":null,"abstract":"The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of \"integration.\" This article brings that debate to a new context - the integration presumption under the Individuals with Disabilities Education Act (\"IDEA\"). The IDEA has contained an \"integration presumption\" for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In addition, the article demonstrates that Congress created this presumption to mandate the closing of inhumane, disability-only educational institutions but not to require fully inclusive education for all children with disabilities. This article examines the available empirical data and concludes that such evidence cannot justify a presumption for a fully inclusive educational environment for children with mental retardation, emotional or mental health impairments, or learning disabilities. While this article recognizes that structural remedies, such as an integration presumption, can play an important role in achieving substantive equality, such remedies also need periodic re-examination. Modification of the integration presumption can help it better serve the substantive goal of according an adequate and appropriate education to the full range of children who have disabilities while still protecting disabled children from inhumane, disability-only educational warehouses.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"154 1","pages":"789"},"PeriodicalIF":2.5,"publicationDate":"2006-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/40041286","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68756999","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}
"Welfarism" is the principle that social policy should be based solely on individual well-being with no reference to "fairness" or "rights." The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attention. Call this the "ex ante/ex post" problem. The problem arises from the combination of uncertainty - an inevitable feature of real policy choice - and a social preference for equality. If the policymaker is not a utilitarian, but rather has a "social welfare function" that is equity-regarding to some degree, then she faces the following choice: Should she care about the equalization of expected well-being (the ex ante approach), or should she care about the expected equalization of actual well-being (the ex post approach)? Should she focus on the equality of prospects or the prospects for equality?In this Article, we bring the ex ante/ex post problem to the attention of legal academics, provide novel insight into when and why the problem arises, and highlight legal applications where the problem figures prominently. We ultimately conclude that welfarism requires an ex post approach. This is a counterintuitive conclusion because the ex post approach can conflict with ex ante Pareto superiority. Indeed, the Article demonstrates that the ex post application of every equity-regarding social welfare function - whatever its particular form - must conflict with ex ante Pareto superiority in some choice situations. Among other things, then, the Article shows that legal academics must abandon either their commitment to welfarism or their commitment to ex ante Pareto superiority.
{"title":"Inequality and Uncertainty: Theory and Legal Applications","authors":"M. Adler, C. Sanchirico","doi":"10.2139/SSRN.886571","DOIUrl":"https://doi.org/10.2139/SSRN.886571","url":null,"abstract":"\"Welfarism\" is the principle that social policy should be based solely on individual well-being with no reference to \"fairness\" or \"rights.\" The propriety of this approach has recently been the subject of extensive debate within legal scholarship. Rather than contributing (directly) to this debate, we identify and analyze a problem within welfarism that has received far too little attention. Call this the \"ex ante/ex post\" problem. The problem arises from the combination of uncertainty - an inevitable feature of real policy choice - and a social preference for equality. If the policymaker is not a utilitarian, but rather has a \"social welfare function\" that is equity-regarding to some degree, then she faces the following choice: Should she care about the equalization of expected well-being (the ex ante approach), or should she care about the expected equalization of actual well-being (the ex post approach)? Should she focus on the equality of prospects or the prospects for equality?In this Article, we bring the ex ante/ex post problem to the attention of legal academics, provide novel insight into when and why the problem arises, and highlight legal applications where the problem figures prominently. We ultimately conclude that welfarism requires an ex post approach. This is a counterintuitive conclusion because the ex post approach can conflict with ex ante Pareto superiority. Indeed, the Article demonstrates that the ex post application of every equity-regarding social welfare function - whatever its particular form - must conflict with ex ante Pareto superiority in some choice situations. Among other things, then, the Article shows that legal academics must abandon either their commitment to welfarism or their commitment to ex ante Pareto superiority.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"155 1","pages":"279"},"PeriodicalIF":2.5,"publicationDate":"2006-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67856414","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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