Law Commons^™

Conditional Spending And The Conditional Offer Puzzle, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

All Faculty Scholarship

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …

Observers As Participants: Letting The Public Monitor The Criminal Justice Bureaucracy, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

The Limits Of Textualism In Interpreting The Confrontation Clause, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Consent Of The Governed Or Consent Of The Government? The Problems With Consent Decrees In Government-Defendant Cases, Michael T. Morley

University of Pennsylvania Journal of Constitutional Law

Consent decrees raise serious Article III concerns. When litigants agree on their rights and jointly seek the same relief from a court, they are no longer adverse and a justiciable controversy no longer exists between them. In the absence of an actual controversy between opposing parties, it is both inappropriate and unnecessary for a court to issue a substantive order declaring or modifying the litigants’ rights. Whether Article III’s adverseness requirement is seen as jurisdictional or prudential, federal courts should decline to issue consent decrees and instead require litigants that wish to voluntarily resolve a case to execute a settlement …

The "Otherized" Latino: Edward Said's Orientalism Theory And Reforming Suspect Class Analysis, Laura M. Goodall

University of Pennsylvania Journal of Constitutional Law

Despite Latinos’ growing political influence, discrimination against Latinos persists. W.E.B. DuBois wrote in 1903, “The problem of the Twentieth Century is the problem of the color line . . . .” Today, the color line has expanded beyond the white-black racial dichotomy, and Latinos stand at the forefront of our national discussion about race, politics, and society. In this discussion and amid evidence of prejudice, a central legal question arises: Does the Supreme Court’s current analytical framework for the Fourteenth Amendment Equal Protection Clause adequately protect the Latino population from discriminatory laws and state action? This Comment concludes that the …

The Church Of Originalism, S. L. Whitesell

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Emerging Technologies And Dwindling Speech, Jorge R. Roig

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Contemporary Contextual Analysis: Accounting For Changed Factual Conditions Under The Equal Protection Clause, Sean G. Williamson

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Informational Privacy: Lessons From Across The Atlantic, Timothy Azarchs

University of Pennsylvania Journal of Constitutional Law

The digital age sparked an explosion both in the quantity of private information that a government can gather on private citizens, and in the rapidity with which such information, once leaked, can spread across the globe. As the recent controversy involving Nation-al Security Agency (“NSA”) surveillance of phone and Internet communications demonstrates, governments are eager to take advantage of this new capacity. In such an age, citizens’ rights to privacy are increasingly crucial. The right to decisional privacy—to be free from government interference when making personal decisions about such things as procreation and sexuality—has been affirmed and clarified by the …

Truthful But Misleading? The Precarious Balance Of Autonomy And State Interests In Casey And Second-Generation Doctor-Patient Regulation, Danielle Lang

University of Pennsylvania Journal of Constitutional Law

In recent years, state legislatures have passed a record number of abortion restrictions, many of which regulate the dialogue between doctor and patient before a woman can access abortion. As increasingly aggressive doctor-patient regulations are challenged, the courts are struggling to determine what constraints, if any, Casey placed on the state’s ability to regulate abortion in the interest of protecting potential life, short of outright abortion bans. This Article revisits the compromise struck in Casey, tracing its attempt to accommodate two constitutional goals in tension—the state’s interest in protecting potential life and the woman’s liberty interest in autonomously determining her …

The Fall And Rise Of Specialized Federal Constitutional Courts, Michael E. Solimine

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

No Calling Cut: The Political Right To Record Police, Elizabeth J. Frawley

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

A Corporate Right To Privacy, Elizabeth Pollman

All Faculty Scholarship

The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions for the future, and the ones that offer the greatest potential for better understanding the nature of corporate rights. This Article analyzes one of those questions — whether corporations have, or should have, a constitutional right to privacy. First, the Article examines the contours of the question in Supreme Court jurisprudence and provides the first scholarly treatment of the growing body of conflicting law in the lower courts on …

Public Assistance, Drug Testing, And The Law: The Limits Of Population-Based Legal Analysis, Candice T. Player

All Faculty Scholarship

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges courts …

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

All Faculty Scholarship

Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied …

Treaty Termination As Foreign Affairs Exceptionalism, Jean Galbraith

All Faculty Scholarship

No abstract provided.

Money, Sex, And Religion--The Supreme Court's Aca Sequel, George J. Annas, Theodore Ruger, Jennifer Prah Ruger

All Faculty Scholarship

The Supreme Court decision in the Hobby Lobby case is in many ways a sequel to the Court's 2012 decision on the constitutionality of the Affordable Care Act (ACA). The majority decision, written by Justice Samuel Alito, is a setback for both the ACA's foundational goal of access to universal health care and for women's health care specifically. The Court's ruling can be viewed as a direct consequence of our fragmented health care system, in which fundamental duties are incrementally delegated and imposed on a range of public and private actors. Our incremental, fragmented, and incomplete health insurance system means …

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

All Faculty Scholarship

Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

Multiple Attempts At Class Certification, Tobias Barrington Wolff

All Faculty Scholarship

The phenomenon of multiple attempts at class certification -- when class counsel file the same putative class action in multiple successive courts and attempt to secure an order of certification despite previous denials of the same request -- has always presented a vexing analytical puzzle. When the Supreme Court rejected one proposed solution to that problem in Smith v. Bayer, it left unresolved some of the broader questions of preclusion doctrine, federal common law, and the constraints of due process with which any satisfying approach will have to grapple.

This essay was solicited as a reply to a recent …

The Law And Economics Of Stop-And-Frisk, David S. Abrams

All Faculty Scholarship

The relevant economic and legal research relating to police use of stop-and-frisk has largely been distinct. There is much to be gained by taking an interdisciplinary approach. This Essay emphasizes some of the challenges faced by those seeking to evaluate the efficacy and legality of stop-and-frisk, and suggests some ways forward and areas of exploration for future research.

Reconciling Equal Protection Law In The Public And In The Family: The Role Of Racial Politics, Dorothy E. Roberts

All Faculty Scholarship

In Constitutional Colorblindness and the Family, Katie Eyer brings to our attention an intriguing contradiction in the Supreme Court's equal protection jurisprudence. Far from ending race‐based family law rules with its 1967 decision, Loving v. Virginia, the Court has ignored lower courts' decisions approving official uses of race in foster care, adoption, and custody decisions in the last half century. Thus, as Eyer observes, “during the same time that the Supreme Court has increasingly proclaimed the need to strictly scrutinize all government uses of race, family law has remained a bastion of racial permissiveness.”

Scholars who oppose race‐matching …