Law Commons^™

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.

The Shadow Constitution: Rescuing Our Inheritance From Neglect And Disuse, Stephen Menendian

University of Pennsylvania Journal of Constitutional Law

The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship …

Vol. 45 Masthead

University of Pennsylvania Journal of International Law

No abstract provided.

Dobbs V. Jackson Women's Health Organization: Reckoning With Its Impact And Charting A Path Forward, Hillary A. Schneller, Diana Kasdan, Risa E. Kaufman, Alexander Wilson

University of Pennsylvania Journal of Constitutional Law

Dobbs v. Jackson Women’s Health Organization undid 50 years of precedent guaranteeing the constitutional right to abortion in the United States. At the one-year anniversary of the decision, and as the devastating consequences continue to play out across the country, this article analyzes Dobbs and its impact. It also charts a way forward for rebuilding a more robust Fourteenth Amendment jurisprudence. It draws on the authors’ individual perspective and expertise, and the Center for Reproductive Rights’ role as lead counsel in the case and as a global human rights organization advancing reproductive rights in the United States and around the …

Transportation: The Hidden Right To Exclude, Saleema Snow

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Reassessing The Rule Of Law Legacy Of The Khmer Rouge Tribunal, Randle C. Defalco

University of Pennsylvania Journal of International Law

The focal point of transitional justice efforts in Cambodia have been recently-completed criminal prosecutions at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”). Like other international criminal justice institutions, the ECCC has been framed as not only a criminal court, but also as an institution capable of helping achieve various transitional justice goals such as improving the rule of law and respect for human rights domestically in Cambodia. This Article identifies troubling connections between the ECCC experience and the Cambodian government’s increasing use of rule by law tactics in recent years. The Article identifies two related ways in which …

Volume 45, Issue 3 Masthead

University of Pennsylvania Journal of International Law

No abstract provided.

Don't Just Do Something, Stand There: What Crinimal Law Teaches Us About Article Iii Standing In Data Breach Cases, Caroline Ribet

University of Pennsylvania Law Review

Data breaches of companies that expose consumer information are a pervasive and growing issue. The United States Courts of Appeals are divided over whether consumers have Article III Standing to sue the hacked organizations that did not protect their personal data. This Comment draws on insights from criminal law to argue that courts should take a more expansive view of the harm to consumers when their personal data is exposed, even where the plaintiffs cannot allege that their data has been misused. This approach would give more consumers the opportunity to have a day in court to vindicate the real …

Cohesive Class Actions, Miles M. Gray

University of Pennsylvania Law Review

The Rule 23(b)(2) class action has taken many forms since it was added to the Federal Rules in 1966. At first, the provision was used largely to enforce the antidiscrimination objectives of the Civil Rights Era, but over time, subsection (b)(2) became a stock device to pursue injunctive and declaratory relief on a class-wide basis. Along with those developments have come attempts to limit the (b)(2) class, first with the excision of most money damages and individualized injunctions, and now with the requirement in the lower courts that the class be “cohesive.” Though the cohesiveness doctrine lacks a uniform definition, …

Missing Doctrines In Fifth Circuit Caselaw: Injury And Causation In Environmental Litigators' Standing, Karen Joo

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Sovereignty And Separation: John Taylor Of Caroline And The Division Of Powers, Noah C. Zimmermann

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Defrosting Regulatory Chill, Guillermo J. Garcia Sanchez

University of Pennsylvania Journal of International Law

In Homer’s Odyssey, King Odysseus asked his men to tie him to the mast of his ship with the hope that he would not jump into the sea after listening to the Sirens. The Odyssey’s hero made a pact to bind himself in the future. He knew that the temptation would be impossible to resist without restraints. Similarly, the creators and advocates of international investment agreements believe that providing rights to foreign investors through international treaties will chill State policies that would harm the interests of investors in the future. The “rope” to tie the State is the threat of …

"Confucius" And America's Dangerous Myths About Chinese Law, Daniel Butler Friedman

University of Pennsylvania Journal of International Law

American legal scholars can’t stop talking about Confucius: there were over 100 law review articles in 2022 alone that reference Confucian ideas, and nearly 1,500 during the last five years. Almost all of them are wrong about what Confucius has meant for Chinese legal culture. In the face of five decades of contrary historical scholarship, these law review articles argue or imply that Chinese law started to become “Confucian” about 2,000 years ago and has never really changed since. That continuity (or stagnation), these scholars claim, is one of the keys to understanding contemporary Chinese law. As this Article will …

The Law Of Geographic Labor Market Inequality, Hiba Hafiz

University of Pennsylvania Law Review

How the law contributes to economic inequality is the subject of renewed attention, but the legal dimensions of geographic inequality have received much less scrutiny. At its core, geographic inequality is a function of how the national income gets spatially divided between capital and labor. While labor’s share of national income has generally declined, workers in rural and distressed communities have suffered most at the expense of capital. Recent empirical research on rural and distressed labor markets reveals an important structural cause: disproportionately high levels of employer market power with weak, if any, countervailing worker power to check it. While …

Implicit Bias, Structural Bias, And Implications For Law And Policy, Goodwin Liu

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Intraparty Conflict And The Separation Of Powers, Gregory Elinson

University of Pennsylvania Journal of Constitutional Law

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that, contrary to the Madisonian vision, competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty …

In The Room Where The Constitution Happens, Lorianne Updike Toler

University of Pennsylvania Journal of Constitutional Law

Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process.

In making this comparative case—one which has important implications for modern constitution-writing— scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots.

This study, the first monogram on New Hampshire’s five constitution-writing processes …

Central Bank Digital Currency As New Public Money, Christina Parajon Skinner

University of Pennsylvania Law Review

No abstract provided.

Terms Of Service And Fourth Amendment Rights, Orin S. Kerr

University of Pennsylvania Law Review

Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these Terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: by agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.

This Article argues that the courts are wrong. Terms of …

Conflicts Of Law And The Abortion War Between The States, Paul Schiff Berman, Roey Goldstein, Sophie Leff

University of Pennsylvania Law Review

On the subject of abortion, the so-called “United” States of America are becoming more disunited than ever. The U.S. Supreme Court’s precipitous decision in Dobbs v. Jackson Women’s Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court issued its decision, at least nineteen states have increased restrictions on abortion access, while at least twenty states and …

Unconstitutional Conditions And The Constitutional Text, Ryan C. Williams

University of Pennsylvania Law Review

Federal and state actors sometimes condition access to benefits that they are constitutionally permitted but not obligated to provide on the willingness of recipients to engage in certain behavior that governments cannot compel directly. Current judicial doctrine treats such conditional offers as sometimes permitted and sometimes prohibited. But existing case law addressing such “unconstitutional conditions” challenges lacks a coherent account of when and why such conditional offers violate the Constitution. A wide-ranging academic debate has swirled around the doctrine, with commentators proposing various reforms to bring order to the courts’ confused and confusing jurisprudence.

A curious feature of this debate …

Reconstructing As Revolution: The Fourteenth Amendment And The Destruction Of Founding America, Kermit Roosevelt Iii

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The Failed Promise Of Installment Fines, Beth Colgan, Jean Galbraith

University of Pennsylvania Law Review

n the 1970s, the Supreme Court prohibited the then-common practice of incarcerating criminal defendants because they lacked the money to immediately pay off their fines and fees. The Court suggested that states could instead put defendants on installment payment plans. As this Article shows, this suggestion came against a backdrop of impressive success stories about installment fines—including earlier experiments in which selected defendants had reliably paid off modest fines through carefully calibrated payment plans. Yet as this Article also shows, installment fines practices of today differ significantly from those early experiments, as lawmakers have increased fine amounts, added on fees, …

Systemic Failure To Appear In Court, Lindsay Graef, Sandra G. Mayson, Aurelie Ouss, Megan Stevenson

University of Pennsylvania Law Review

This Article aims to reorient the conversation around “failure-to-appear” (FTA) in criminal court. Recent policy and scholarship have addressed FTA mostly as a problem of criminal defendants in connection with questions about how bail systems should operate. But ten years of data from Philadelphia reveal a striking fact: it is not defendants who most frequently fail to appear but rather the other parties necessary for a criminal proceeding—witnesses and lawyers. Between 2010 and 2020, an essential witness or private attorney failed to appear for at least one hearing in 53% of all cases, compared to a 19% FTA rate for …

Clarifying Judicial Aggrandizement, Allen Sumrall, Beau J. Baumann

University of Pennsylvania Law Review Online

Scholars argue that the Roberts Court has been engaged in a judicial “power grab.” Some scholars describe the Court as “juristocratic,” others “aggrandizing.” The Court’s supporters argue that these critics’ charges only thinly veil the critics’ policy differences with the Court. Is the Roberts Court’s power materially different from other Courts? If the charge is about “judicial activism,” do the critics hold the Warren Court to the same standard?

Scholarship about the Roberts Court has encountered a long-running difficulty; “judicial power” is an amorphous braid of norms, ideas, and institutional arrangements. We advance a taxonomy for understanding different aspects of …

Background As Foreground: Section Three Of The Fourteenth Amendment And January 6th, Gerard N. Magliocca

University of Pennsylvania Journal of Constitutional Law

[I]t is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, and property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a …

Race, Originalism, And Skepticism, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Equal Protection Against Policing, Evan Bernick

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

The State Citizenship Clause, Kurt Lash

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Vol. 27 Masthead

University of Pennsylvania Journal of Law and Social Change

No abstract provided.