Digital Commons Network^™

Of Might And Men, Kate Shaw, Leah M. Litman, Melissa Murray

Articles

A review of Manhood: The Masculine Virtues America Needs By Josh Hawley.

Structural Antitrust Relief Against Digital Platforms, Herbert J. Hovenkamp

Journal of Law & Innovation

Structural (“breakup”) remedies for monopolization cases under § 2 of the Sherman Act are uncommon. When they do occur the courts almost always break firms along the boundary lines that had been formed by an earlier combination or merger. The FTC’s current request that Facebook spin off Instagram and WhatsApp are of this kind. The complaints in the government cases against Google Search and Amazon are far more general.

The choice whether to “break up” a violator or use a more focused remedy, such as an injunction against anticompetitive practices, depends significantly on how much faith we have in the …

Beyond Algorithmic Disclosure For Ai, Christopher S. Yoo

Articles

One of the most commonly recommended policy interventions with respect to algorithms in general and artificial intelligence ("AI") systems in particular is the need for greater transparency, often focusing on the disclosure of the variables employed by the algorithm and the weights given to those variables. This Essay argues that any meaningful transparency regime must provide information on other critical dimensions as well. For example, any transparency regime must also include key information about the data on which the algorithm was trained, including its source, scope, quality, and inner correlations, subject to constraints imposed by copyright, privacy, and cybersecurity law. …

Choice Of Law In Same-Sex Marriage, J. Anes Sung

University of Pennsylvania Law Review Online

No abstract provided.

A Grand Jury Exhortation, Benjamin Keener

Student Articles

This essay brings to light a rare feature of the Stewart legal system. Grand jury charges remain understudied, partly for want of primary source materials. The brief historical and biographical sketches of the essay are appended by a unique and relevant artifact of the time: a preamble or exhortation to a grand jury charge, ostensibly delivered by a Justice of the King's Bench, John Dodderidge.

Generative Interpretation, David A. Hoffman, Yonathan Arbel

Articles

We introduce generative interpretation, a new approach to estimating contractual meaning using large language models. As AI triumphalism is the order of the day, we proceed by way of grounded case studies, each illustrating the capabilities of these novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the actual agreements that they adjudicated, we show that AI models can help factfinders ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties’ agreements. We also illustrate how models can calculate the probative value of individual pieces of extrinsic evidence. After offering best practices for the use of …

What’S In A Name? Esg Mutual Funds And The Sec’S Names Rule, Jill Fisch, Adriana Z. Robertson

Articles

"As investor money flows into environmental, social and governance (ESG) mutual funds, regulators have raised growing concerns about greenwashing – specifically that a fund’s name will falsely suggest that the fund invests in companies that meet certain ESG standards. To address these concerns, the SEC proposed amendments to the Investment Company Act “Names Rule.” The amendments extend the scope of the Rule to funds whose names include terms such as ESG, green or sustainable. If adopted, they will require such funds to invest at least 80 percent of the value of their assets in companies that meet the standards suggested …

Partisanship Creep, Kate Shaw

Articles

It was once well settled and uncontroversial—reflected in legislative enactments, Executive Branch practice, judicial doctrine, and the broader constitutional culture—that the Constitution imposed limits on government partisanship. This principle was one instantiation of a broader set of rule of law principles: that law is not merely an instrument of political power; that government resources should not be used to further partisan interests, or to damage partisan adversaries.

For at least a century, each branch of the federal government has participated in the development and articulation of this nonpartisanship principle. In the legislative realm, federal statutes beginning with the 1883 Pendleton …

Rules For Robots: Constitutional Challenges With The Ai Bill Of Right's Principles Regulating Automated Systems, Melany Amarikwa

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

An Absent "No" Is Not A "Yes": A Legal Analysis Of Consent In Japan's Amended Penal Code And International Rape Legislation Standards, Larissa Truchan

University of Pennsylvania Asian Law Review

On June 16, 2023, the Japanese government passed a law to partially amend the Penal Code that explicitly outlines eight scenarios prosecutable as the crime of rape that make “it difficult for the victim to form, express, or fulfill the intention not to consent.” This article will reveal that the June 2023 amendment does not criminalize all “non-consensual sexual intercourse,” as its text suggests, but is premised on defining coercive circumstances that may interfere with a victim’s presumed duty to demonstrate their “intention not to consent.” As a result, Japanese courts will continue to possess the subjective power to determine …

Child Sacrifices: The Precarity Of Minors' Autonomy And Bodily Integrity After Dobbs, Teri D. Baxter

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

When A Wrong Creates A Life: Tort Responses To Children Born From Institutional Sexual Violence, Karen M. Tani

Articles

Today, the paradigm case of “wrongful life” involves a claim on behalf of a child—typically, a disabled child—who would not exist but for an act of negligent reproductive healthcare. Framed in this way, the tort of “wrongful life” is controversial, and rightfully so. This Article, part of a symposium on “new torts,” reminds readers that one of the nation’s earliest reported “wrongful life” cases arose from a very different set of facts: Williams v. State, filed in 1963 in New York City, stemmed from the alleged rape and impregnation of a patient at a large, state-run psychiatric hospital; through a …

Toward Abolitionist Remedies: Police (Non)Reform Litigation After The 2020 Uprisings, Cara Mcclellan, Jamelia N. Morgan

Articles

In the summer of 2020, across the country, Americans took to the street in protest of Mr. George Floyd’s murder and the police killings of countless other Black people. In too many cases, police responded to protesters with excessive force and the very brutality that had led people to protest police in the first place. In the wake of these horrific displays of force, over 40 lawsuits were filed nationwide that challenged police conduct at protests. Smith v. City of Philadelphia, one of the lawsuits brought on behalf of residents and protesters in Philadelphia, was unique because the tragic underlying …

A Rapidly Shifting Landscape : Why Digitized Violence Is The Newest Category Of Gender-Based Violence, Rangita De Silva De Alwis

Articles

This paper proposes that new research on technology-facilitated violence must shape gender-based violence against women laws. Given the AI revolution, including large language models (“ LLMs ”), and generative artificial intelligence, new technologies continue to create power disparities that help facilitate gender-based violence both online and offline. The paper argues that the veil of anonymity provided by the digital realm facilitates violence ; and the automation capabilities offered by technology amplify the scope and impact of abusive behavior. Although the direct physical act of sexual violence is different from offline violence, there are similarities. Firstly, both acts share the structural …

A Sword And A Shield: An Antidiscrimination Analysis Of Academic Freedom Protections, Apratim Vidyarthi

University of Pennsylvania Journal of Constitutional Law

Academic freedom is an essential principle undergirding education in the United States. Its purpose is to further the freedom of thought and inquiry in the academic profession by advancing knowledge and the search for truth. Academic freedom goes back more than a century, and is now intertwined with First Amendment doctrine. Yet today’s academic freedom doctrine suffers from serious problems, some of which perpetuate discrimination in the classroom and systemically in educational institutions.

The definition of academic freedom in theory is misaligned with that in case law. Courts have done little to analyze what protections academic freedom provides, and case …

Concretizing Abstract Rights: Damages For Intangible Constitutional Injuries Under The Prison Litigation Reform Act, Abigail Kasdin

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Immigration In The Shadow Of Death, Eunice Lee

University of Pennsylvania Journal of Constitutional Law

In this piece, I examine the immigration enforcement and adjudication system as a whole from the perspective of life and death. Drawing upon social theory frames as well as legal scholarship, I look to how doctrines and laws continually devalue and risk noncitizens’ lives. Although scholarly work has examined how differing aspects of immigration law and enforcement take lives—e.g., via detention, cross-border shootings, and deportation— explorations have yet to consider the system as a whole from this perspective.

My contribution illuminates how laws as well as legal doctrines serve as mechanisms for assigning differential value to human life, ultimately taking …

Lavatories Of Democaracy: Recognizing A Right To Public Toilets Through International Human Rights And State Constitutitonal Law, Rick Weinmeyer

University of Pennsylvania Journal of Constitutional Law

The United States is a public toilet nightmare. Truly public toilets are a rarity, while the restrooms provided by private businesses are inconsistently available via “customer only” policies and the discriminatory actions of owners and their employees. Some jurisdictions have made tepid attempts at providing more bathrooms, but all have failed. The result: an accumulation of entirely preventable public health harms, including outbreaks of infectious disease, illness, and dignitary harms.

This Article is the first to provide a comprehensive review of U.S. toilet law—the laws and policies that determine where bathrooms are provided and who has access to them—and diagnose …

Preface, Tess Markovich, Margaret Cohen

University of Pennsylvania Journal of Law and Public Affairs

No abstract provided.

Challenging Gendered Islamophobia: Empowering Muslim Women Through Cedaw General Recommendation 40 On Leadership, Sarah Kawamleh

University of Pennsylvania Journal of Law and Public Affairs

This Comment examines the intersection of gendered Islamophobia and the empowerment of Muslim women through the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) General Recommendation 40 on leadership. It begins by addressing the limited understanding regarding Muslim women's experiences within international human rights law frameworks. Through in-depth case studies and analysis, the Comment explores how CEDAW can be utilized to empower Muslim women and combat gendered Islamophobia. It highlights the challenges faced by Muslim women in accessing leadership positions, a struggle that is especially evident in certain countries like France, while also critiquing the limitations …

Obstetric Violence And Forced Sterilization: Conceptualizing Gender-Based Institutional Violence, Rangita De Silva De Alwis

University of Pennsylvania Journal of Law and Public Affairs

The twenty-first century continues to witness gynecological abuse in the form of forced sterilizations of minority women. In many parts of the world, states weaponize family planning programs as a form of reproductive policy against poor women and women of color, treating women’s fertility as a drain on the state's resources. The first part of this Article discusses how legal systems around the world do little to provide redress for women who are coerced to undergo certain medical procedures during, before, and after childbirth, and give little consideration to their right to bodily autonomy. The second part of the Article …

On The Exhaustion Of Local Remedies: Reconciling Sovereignty And Justice Before The European Court Of Human Rights, Alara Hanci

University of Pennsylvania Journal of International Law

Europe has a rule of law crisis. In the past decade, Turkey, Poland, and Hungary have undermined their democratic societies and compromised the independence of their institutions by affording unprecedented strength to their executive branch and imposing severe restrictions on the public sphere. As their illiberal policies spread, so does the frequency with which individuals adversely affected by these policies seek justice before the European Court of Human Rights. In these cases, Article 35(1) of the European Convention on Human Rights requires that they first exhaust the local remedies available in their national legal system.

Article 35(1) reflects the role …

Age-Appropriate Design Code Mandates, Stacy-Ann Elvy

University of Pennsylvania Journal of International Law

Fueled by the Internet of Things and various other technological developments, information about children’s daily activities and social interactions are progressively migrating to the digital sphere. In response to the rapid datafication of children and in accordance with the United Kingdom’s Data Protection Act of 2018, the Information Commissioner’s Office issued the Age-Appropriate Design Code (“U.K. Design Code”), which became enforceable in September 2021. Approximately one year later in September 2022, California enacted the California Age-Appropriate Design Code Act (“California Design Act”). The California Design Act is modeled after the U.K. Design Code. This Article is one of the first …

Transportation: The Hidden Right To Exclude, Saleema Snow

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Outcome Reasons And Process Reasons In Normative Constitutional Theory, Larry Solum

University of Pennsylvania Law Review

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of their counterfactual implications for a handful of prior decisions of the Supreme Court. …

We're All Born Naked And The Rest Is Speech: Gender Expression And The First Amendment, Charlie Ferguson

University of Pennsylvania Law Review

As the antitransgender moral panic reaches a fever pitch, transgender civil rights are becoming increasingly fragile. A potential legal defense to these attacks lies within the First Amendment: if gender expression, or the way humans communicate their gender identity, is understood to be expressive conduct, it may receive protections under the Free Speech Clause. Using the framework of Spence v. Washington, this Comment argues that gender expression is a form of speech deserving of First Amendment protection. First, a speaker can use gender expression to share information about their identity. And second, an audience is likely to understand the speaker’s …

Surveillance Class Actions: Reconstructing A Federal Data Privacy Private Right Of Action, Nabil Shaikh

University of Pennsylvania Law Review

Class actions against online platforms alleging improper data collection and sharing practices have increased dramatically in recent years. In 2022, the Federal Trade Commission solicited public comment on governing these practices, which it termed “commercial surveillance,” through rulemaking. This Comment highlights the rise of private commercial surveillance and how both regulation and litigation have been employed to address ensuing harms. This Comment then discusses procedural barriers to these class actions, particularly Rule 23(b)(3)’s predominance requirement and Article III standing, and how some courts have relied on the U.S. Supreme Court’s decisions in Comcast v. Behrend and TransUnion v. Ramirez to …

Arbitration's Unraveling, Myriam E. Gilles

University of Pennsylvania Law Review

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area …

Combatting Corporate Tokenism: The Role Of Shareholder Derivative Litigation In Board And Executive-Level Diversification, Caitlin Gleason

University of Pennsylvania Law Review

In the wake of several social justice movements, including the #MeToo movement in 2017 and the Black Lives Matter Movement in 2020, corporations increasingly emphasized their commitments to diversity, equity, and inclusion (DEI) in a variety of ways. Amid shifts in both public attitudes and the corporate landscape, a new trend in shareholder derivative actions emerged: shareholders began suing boards of directors for corporate failures related to DEI shortcomings. As a result, major corporations like Meta, Cisco, and Gap have faced suits brought by shareholders seeking to hold boards accountable for corporations’ public pledges to DEI values and initiatives.

Although …

Private Enforcement In The States, Diego A. Zambrano, Neel Guha, Austin Peters, Jeffrey Xia

University of Pennsylvania Law Review

Scholarship on U.S. litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the U.S. often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance, and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress has deliberately empowered private plaintiffs instead of, or in addition to, government agencies. …