Volume 157 – University of Pennsylvania Law Review

VOLUME 157, ISSUE 6 JULY 2009

ARTICLES

Ending the Patenting Monopoly

MICHAEL ABRAMOWICZ & JOHN F. DUFFY

Did TRIPS Spur Innovation? An Analysis of Patent Duration and Incentives to Innovate

DAVID S. ABRAMS

Law and the Boundaries of Technology-Intensive Firms

OREN BAR-GILL & GIDEON PARCHOMOVSKY

Is Intellectual Property Trivial?

JONATHAN M. BARNETT

Fence Posts or Sign Posts? Rethinking Patent Claim Construction

DAN L. BURK & MARK A. LEMLEY

Nonrivalry and Price Discrimination in Copyright Economics

JOHN P. CONLEY & CHRISTOPHER S. YOO

Technology and Uncertainty: The Shaping Effect on Copyright Law

BEN DEPOORTER

Using Social Norms to Regulate Fan Fiction and Remix Culture

STEVEN A. HETCHER

The Case for Preferring Patent-Validity Litigation Over Second-Window Review and Gold-Plated Patents: When One Size Doesn�t Fit All, How Could Two Do the Trick?

F. SCOTT KIEFF

The PTO and the Market for Influence in Patent Law

CLARISA LONG

The Use and Abuse of IP at the Birth of the Administrative State

ADAM MOSSOFF

Growing Pains in the Administrative State: The Patent Office�s Troubled Quest for Managerial Control

ARTI K. RAI

Institutions and Indirectness in Intellectual Property

HENRY E. SMITH

Understanding Patent-Quality Mechanisms

R. POLK WAGNER

OTHER

Reinventing Discovery: Patent Law�s Characterizations of and Interventions upon Science

ARIEL SIMON

VOLUME 157, ISSUE 5 MAY 2009

ARTICLES

The Elusive Quest for Global Governance Standards

LUCIAN A. BEBCHUK & ASSAF HAMDANI

In The Elusive Quest for Global Governance Standards, Professors Lucian Bebchuk and Assaf Hamdani argue that the currently available metrics for assessing the governance of public companies around the world suffer from a basic shortcoming. The impact of many key… Expand

Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects

PAULINE T. KIM

Recent studies have established that the decisions of a federal court of appeals judge are influenced not only by the preferences of the judge, but also by the preferences of her panel colleagues. Although the existence of these �panel effects� is well documented, the… Expand

How Should Punitive Damages Work?

DAN MARKEL

In Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, Professor Dan Markel argued that the purpose of punitive damages should be to advance�in part�the public�s interest in retributive justice. These �retributive damages� should be an expressly… Expand

COMMENTS

Sticks and Stones: The Ability of Attorneys to Appeal from Judicial Criticism

MATTHEW FUNK

Language, National Origin, and Employment Discrimination: The Importance of the EEOC Guidelines

ANDREW J. ROBINSON

VOLUME 157, ISSUE 4 APRIL 2009

ARTICLES

Prosecutorial Regulation Versus Prosecutorial Accountability

STEPHANOS BIBAS

Probably? Understanding Tax Law�s Uncertainty

SARAH B. LAWSKY

The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws

KIMBERLY WEST‐FAULCON

Opponents of affirmative action are waging a national battle over race‐conscious admissions through state ballot initiatives like California’s Proposition 209, Washington’s Initiative 200, Michigan’s Proposal 2, and Nebraska’s Initiative 424. With seemingly little regard… Expand

COMMENTS

What Is the Rule of Recognition in the United States?

STEPHEN V. CAREY

Hope for the Future? The Asylum Claims of Women Fleeing Sexual Violence in Guatemala

ALLISON W. REIMANN

VOLUME 157, ISSUE 3 MARCH 2009

ARTICLES

Constitutional Crises

SANFORD LEVINSON & JACK M. BALKIN

How the Merits Matter: Directors� and Officers� Insurance and Securities Settlements

TOM BAKER & SEAN J. GRIFFITH

Circuit Effects: How the Norm of Federal Judicial Experience Biases the Supreme Court

LEE EPSTEIN, ANDREW D. MARTIN, KEVIN M. QUINN & JEFFREY A. SEGAL

COMMENTS

Unilateral Settlements and Retroactive Transfers: A Problem of Copyright Co-ownership

JAMES K. ROTHSTEIN

Based Upon: Deriving Plain Meaning from the False Claims Act�s Jurisdictional Bar

JONATHAN PEIRCE URSPRUNG

VOLUME 157, ISSUE 2 DECEMBER 2008

ARTICLES

Immigration Law�s Organizing Principles

ADAM B. COX

In his Article, Professor Cox questions the central principle of immigration law that rules for selecting immigrants are fundamentally different from rules that regulate the lives of immigrants outside the selection process. Cox argues that the distinction is false because… Expand

Saving Lives Through Administrative Law and Economics

JOHN D. GRAHAM

In this Article, Dean Graham examines the recent history of federal lifesaving regulation and argues that, considering both philosophical and practical perspectives, lifesaving regulation informed by benefit-cost analysis (BCA) has compelling advantages relative to… Expand

Laboratories Of Destitution: Democratic Experimentalism And The Failure Of Antipoverty Law

DAVID A. SUPER

Democratic experimentalism, the procedural component of the �new governance� movement, has won widespread acceptance in calling for decentralization, deliberation, deregulation, and experimentation. Democratic experimentalists claim that this approach offers pragmatic… Expand

COMMENTS

Federal Hate Crime Laws and United States v. Lopez: On A Collision Course To Clarify Jurisdictional-Element Analysis

CHRISTOPHER DIPOMPEO

Rather than overrule the previous sixty years of Commerce Clause cases, Lopez reinterpreted many of the earlier cases to make them fit within its new framework. While Lopez was a surprising shift in Commerce Clause doctrine at the time of the Court�s decision, two major… Expand

Mapping The Limits Of Repatriable Cultural Heritage: A Case Study Of Stolen Flemish Art In French Museums

PAIGE S. GOODWIN

This Comment explores the current legal paradox that allows for the repatriation of art taken during World War II while maintaining stolen Flemish art in the Louvre for eternity. Part I discusses the Napoleonic revolution and the creation of French museums relying on…

VOLUME 157, ISSUE 1 NOVEMBER 2008

ARTICLES

Making Credit Safer

OREN BAR-GILL AND ELIZABETH WARREN

Oren Bar-Gill and Elizabeth Warren�s Making Credit Safer begins by noting that, while physical products, from toasters to toys, are routinely inspected and regulated for safety, credit products, like mortgage loans and credit cards, are left largely unregulated, even though… Expand

Dynamic Incorporation Of Foreign Law

MICHAEL C. DORF

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… Expand

International Tribunals: A Rational Choice Analysis

ANDREW T. GUZMAN

In well-functioning domestic legal systems, courts provide a mechanism through which commitments and obligations are enforced. A party that fails to honor its obligations can be brought before a court and sanctioned through seizure of person or property. The international… Expand

COMMENTS

Jurisdiction And The Federal Rules: Why The Time Has Come To Reform Finality By Inequitable Deadlines

CHRISTOPHER W. ROBBINS

Over seventy years ago, the creation of the Federal Rules of Civil Procedure represented the triumph of equity over the often-arbitrary distinctions created by the common law pleading and code pleading systems that predated them. Despite equity�s expansion beyond pleading… Expand

The Rights Of Others: Protection And Advocacy Organizations’ Associational Standing To Sue

KELSEY MCCOWAN HEILMAN

Popular discussion of the standing doctrine has reached a fever pitch. A search for �standing to sue� in the New York Times archives for the last two years connects this phrase to a smorgasbord of hot political issues: global warming, warrantless wiretapping, torture,… Expand

IN MEMORIAM

In Memoriam: William S. Stevens

We are sorry to note that William S. Stevens, member of the University of Pennsylvania Law School Class of 1975 and a former editor of the Law Review, passed away last week at the age of sixty. While a member of the Law Review, Stevens wrote a humorous anonymous �Aside� on… Expand