Current Print Issue

Vol. 167, Issue 6


Featured Article

Balancing Versus Structured Decision Procedures: Antitrust, Title VII Disparate Impact, And Constitutional Law Strict Scrutiny

Louis Kaplow
167 U. Pa. L. Rev. 1375 (2019)

Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. In‐depth analysis of such protocols reveals them to be inferior to unconstrained balancing with respect to the quality of final decisions and the guidance they provide for the collection of information and thus the conduct of adjudication. This Article applies this analysis to the rule of reason and merger regulation under antitrust law, Title VII disparate impact law, and the practices of strict scrutiny and proportionality analysis in constitutional law. Longstanding controversies are addressed and unappreciated deficiencies are discovered. In all three domains, existing law is cast in a substantially different light, both descriptively and normatively.

Featured Comment

The Logic Of Experience: The Role Of History In Recognizing Public Rights Of Access Under The First Amendment

Shira Poliak
167 U. Pa. L. Rev. 1561 (2019)

This Comment addresses this dearth in scholarship by identifying eight ways lower courts use history to analyze the experience prong of the experience and logic test for whether a First Amendment right attaches to right of access to certain legal proceedings. I identified these taxonomies by reviewing 185 federal circuit court opinions in Westlaw that cited Press‐Enterprise II, seventy‐six of which applied the experience and logic test. I also reviewed some federal district court and state court opinions cited in the circuit court opinions and scholarly articles. I focus on the range of ways courts have handled “mixed history”—a proceeding that is replete with examples of both open and closed practices.

This Comment analyzes to what degree these different taxonomies are in line with, or depart from, the Supreme Court’s jurisprudence on the topic. Like Levine, I argue that some of the different approaches reflect uncertainty and unanswered questions in the Supreme Court’s opinions. This analysis demonstrates that lower courts have little direction regarding how to conceptualize historical traditions that are beset by open and closed practices, or proceedings that lack a historical tradition of access because they are relatively new.

Nevertheless, while this Comment shows that a range of approaches to the experience prong are in line with the Supreme Court’s jurisprudence, analyzing the different uses of history by lower courts in detail underscores scholars’ critiques of the doctrine. In particular, it shows that the experience prong is not suited to address new practices when there may be no history of openness or closure, and that the emphasis on history does not allow the right of access doctrine to accommodate changes in governmental practice and innovation.

Online Exclusives
 Last updated: November 12, 2019


Judicial Independence Under Attack: A Theory of Necessity

Michael M. Baylson, Elizabeth Coyne, Martha Guarnieri & Samantha Weiss
168 U. Pa. L. Rev. Online 1 (2019)

Did the longest government shutdown in United States history this past winter constitute a severe threat to a functioning and independent federal judiciary? In short, yes. From the vantage point of a district court’s chambers, we experienced firsthand the uncertainty that almost weakened the federal judiciary when Congress and the President were at odds over the budget, threatening the judicial branch of the government with shrinkage or closure. This Essay asserts a viable legal theory—we call it a “theory of necessity”—to prevent any constitutional crisis caused by a future government shutdown. This theory invokes four building blocks of well‐established legal doctrines that, when connected, pave a path to secure the judicial branch’s autonomy. The theory of necessity requires the legislative and executive branches to recognize their constitutional obligations to fund the judicial branch, without interruption.


Should Dissimilar Uses Of Trade Secrets Be Actionable?

Camilla A. Hrdy
168 U. Pa. L. Rev. Online 78 (2019)
Responding to Joseph P. Fishman* & Deepa Varadarajan**, Similar Secrets

Joseph Fishman and Deepa Varadarajan address a critical question in their new article, Similar Secrets: should trade secret law prohibit substantially dissimilar uses of trade secret information by those who took that information through improper means or in violation of a duty of confidentiality to the information’s owner, particularly when those dissimilar uses result in innovative new pursuits of high social value? Under current doctrine such an action would likely lead to a viable claim of trade secret misappropriation. But should this type of “retooling” really be discouraged by trade secret law?

This Response shows that the article’s thesis—that trade secret law should imitate copyright law’s willingness to permit substantially dissimilar uses of content—conflicts with trade secret law’s fundamental purpose: to protect the integrity of secret information. Whereas Fishman and Varadarajan have turned to copyright law for help, it makes more sense to focus on improving the doctrines we already have. Improving existing doctrines will do more to ameliorate concerns about hindering innovative new uses, while maintaining trade secret law’s fundamental goals.