Law Commons^™

There Is Something That Our Constitution Just Is, Evan D. Bernick, Christopher R. Green

College of Law Faculty Publications

Historian Jonathan Gienapp has launched a collection of widely celebrated attacks on originalism. He charges originalists with culpable neglect of the legal and political context in which the Constitution was framed and claims that the idea of a written Constitution was not prevalent in 1787 or 1788. Indeed, he goes so far as to call it a "myth."

This Article critiques Gienapp's arguments, contending that he is perpetuating myths of his own. It is not true that originalists haven't seriously investigated what sort of thing the Constitution is. It is not true that there was widespread, fundamental disagreement during the …

What Bad Decisions By Ron Desantis And Gavin Newsom Have In Common, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Panama Canal Treaties Were Carter’S Biggest Foreign Policy Win, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

What Both Sides Of The Abortion Fight Can Learn From Antonin Scalia, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Why I Am No Longer A Jew, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

By Any Measure, Liberal Democracy Is Superior. Here’S Why, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

If I Were A Betting Man: Some Predictions For The Year We Have Left, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

On Pope Benedict, Science, Faith, And His Legacy, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

An Alternative To The Independent State Legislature Doctrine, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Openness Of Talmud, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

The Prospect And Perils Of Climate Preemption For Public Health, Sarah Fox

College of Law Faculty Publications

Climate change is disrupting many communities in the United States and around the world. Climate events like heat waves, hurricanes, drought, fire, and flooding will become much more frequent, and with them will come the need for robust health care responses. Given the widespread and boundary-crossing nature of the problem, an ideal response would possibly originate at the federal or state level. As illustrated by the COVID-19 pandemic, however, there is little guarantee that such a response will be forthcoming. Recent foreclosures of federal options for handling climate change make such a response even less likely. Instead, it seems likely …

Movement Administrative Procedure, Evan D. Bernick

College of Law Faculty Publications

On April 4, 1946, The Potters Herald, a Thursday weekly dedicated to labor and union news, published an editorial warning readers of pending legislation “which may seriously affect labor” despite not containing a “single word about labor” in its text. This legislation would empower “anti-labor judges” to overturn decisions by the National Labor Relations Board. Despite its neutral appearance, it was in reality designed to “kick [labor and the NLRB] in the teeth” and would result in “a field day for the corporation lawyers.”

The complained-of legislation was the Administrative Procedure Act of 1946 (APA). From today’s vantage point, the …

What Is The Object Of The Constitutional Oath?, Evan D. Bernick, Christopher R. Green

College of Law Faculty Publications

How and why are public officials today obliged to follow the Constitution? Article VI gives us a crystal-clear answer: They are bound “by oath or affirmation, to support this Constitution.” But what is “this Constitution”? American constitutional culture today describes its Constitution in ways that presuppose that the Article VI oath binds officeholders to an external, objective, common object: the same commitment for all oath-takers today, and the same commitment today as in the past. Justices on the Supreme Court took their constitutional oaths at different times, spread out over 31 years from 1991 to 2022, but they claim to …

Equal Protection Against Policing, Evan D. Bernick

College of Law Faculty Publications

A White police officer pins his knee against a Black man’s neck. The Black man lies prone. He says he can’t move. He says he can’t breathe. He says he’s through. He pleads for his mama. He moans, gasps, and writhes. Blood runs out of his nose and mouth. After eight minutes and forty-six seconds, George Floyd is dead.

Videos of the killing went viral. All four of the Minneapolis Police Department officers who arrested Floyd for allegedly using a counterfeit $20 bill at a convenience store were fired. Derek Chauvin—who held his knee to Floyd’s neck—was initially charged by …

Common Sense Recommendations For The Application Of Tax Law To Digital Assets, Linda M. Beale, Jeremy Bearer-Friend, Jennifer Bird-Pollan, Samuel D. Brunson, Luís Calderón Gómez, Bryan Camp, Adam Chodorow, Mark Cochran, Lin William Cong, Matthew Foreman, Phil Gaudiano, I. Richard Gershon, Nathan C. Goldman, Jillian Grennan, Megan Justice, Young Ran (Christine) Kim, Herbert I. Lazerow, Tao Li, Lawrence Lokken, Omri Y. Marian, Orly Mazur, Stephanie Hunter Mcmahon, Tyler Menzer, Matt Metras, Ann M. Murphy, Henry Ordower, Amanda Parsons, Daniel Rabetti, Alex Raskolnikov, Tracey M. Roberts, Kerry A. Ryan, Edward A. Zelinsky

All Faculty Scholarship

In response to the Joint Committee on Taxation’s July 2023 request for comments on application of various Internal Revenue Code sections on digital assets, we propose a consistent set of rules to apply current law to digital assets. We highlight that the underlying economics and characteristics of transactions should be the primary concern for the application of rules and the valuation of digital assets. We believe any digital asset rules should (1) treat classes of digital assets with unique characteristics differently based on their economics, (2) minimize incentives for users to engage in tax-motivated structuring of transactions, and (3) allow …

Ambivalent Advocates: Why Elite Universities Compromised The Case For Affirmative Action, Jonathan Feingold

Faculty Scholarship

“The end of affirmative action.” The headline is near. When it arrives, scholars will explain that a controversial set of policies could not withstand unfriendly doctrine and less friendly Justices. This story is not wrong. But it is incomplete. Critically, this account masks an underappreciated source of affirmative action’s enduring instability: elite universities, affirmative action’s formal champions, have always been ambivalent advocates.

Elite universities are uniquely positioned to shape legal and lay opinions about affirmative action. They are formal defendants in affirmative action litigation and objects of public obsession. And yet, schools like Harvard and the University of North Carolina—embroiled …

Law And Culture, Tamar Frankel, Tomasz Braun

Faculty Scholarship

We often speak of law and culture in one breath. That may be so because both systems impose on each person and organization required rules of behavior. Yet, law and culture are quite different, though they relate to and affect each other. Therefore, it is desirable to examine their similarities and differences and their relationship. While the structures of law and culture are more similar than we might expect, their differences greatly affect the enforcement of the rules issued under each.

To be sure, both systems consist of rules and their enforcement. Most of our thoughts and knowledge, and many …

Shifting The Male Gaze Of Evidence, Teneille R. Brown

Utah Law Faculty Scholarship

In this article I target the altar at which many of us worship—the pursuit of rationality. For evidence purposes, rationality is defined as decisions that are reasonable, objective, inductive, and free from the bias of emotion. This view of rationality is deeply embedded in evidence scholarship and practice. It is also reflected in evidence rules like FRE 403, which treat emotional testimony as unfairly prejudicial simply because it is emotional. The anti-emotion view of rationality reflects the thinking of Western philosophical giants. Plato, Hobbes, Descartes, and Bacon all thought that men should strive for rationality by suppressing their emotions, because …

Review Of Tom Ginsburg, Democracies And International Law, Diane A. Desierto

Journal Articles

Review of Tom Ginsburg, Democracies and International Law. Cambridge: Cambridge University Press, 2021. Pp. 250. £29.99. ISBN: 9781108843133.

Naïve Realism, Cognitive Bias, And The Benefits And Risks Of Ai, Harry Surden

Publications

In this short piece I comment on Orly Lobel's book on artificial intelligence (AI) and society "The Equality Machine." Here, I reflect on the complex topic of aI and its impact on society, and the importance of acknowledging both its positive and negative aspects. More broadly, I discuss the various cognitive biases, such as naïve realism, epistemic bubbles, negativity bias, extremity bias, and the availability heuristic, that influence individuals' perceptions of AI, often leading to polarized viewpoints. Technology can both exacerbate and ameliorate these biases, and I commend Lobel's balanced approach to AI analysis as an example to emulate.

Although …

The Absurdity Of Criminalizing Encouraging Words, Eric Franklin Amarante

Scholarly Works

This article discusses the Supreme Court’s holding in Hansen v. U.S., which upheld a statute that makes it a felony to encourage an undocumented person to remain in the United States.

The Intersections Among Science, Technology, Policy And Law: In Between Truth And Justice, Paolo Davide Farah, Justo Corti Varela

Book Chapters

Different visions on the interaction between science, technology, policy and law have been presented. As common axe, we can detect the continuous search for truth and justice. Science and Law as social constructs, the distinction between truths and opinions through procedural method based on evidence and rationality, or how natural science “things” became facts, and consequently “truth”, are examples of this search. The evidence-gathering process that integrates scientific evidence into trial (sometimes by procedure and other times by a more substantive approach) is another possible approach. Of course, that the game of mutual influence among the four elements creates contradictions …

Science, Technology, Society, And Law, Paolo Davide Farah, Justo Corti Varela

Book Chapters

Traditionally, science and technology have been granted as sources of knowledge and objective truth. However, much more recently, they are also seen as human activities, conducted in a social environment. This new approach focuses on the intersections between science, technology and society, and particularly their regulation by the law. Concerns on how to best regulate the interaction come up in modern societies, and when either their use or their impacts are global, international law and international organizations become involved. The impact of the fourfold relation is so high that science and technology are seen as one of the reasons for …

The Interlinkages Science-Technology-Law: Information And Communication Society, Knowledge-Based Economy And The Rule Of Law, Giovanni Bombelli, Paolo Davide Farah

Book Chapters

This chapter focuses on the circular and complex relationship between science, technology, society, and law. The technology/society connection focuses on the democratic deficit issue. The democratic deficit would be a consequence of the lack of adaptability of western democracy to complex (information) societies, where technology (and the increasing access to data that it permits) is separating the connection between information and knowledge (as well as the classical legitimacy couple of democracy-truth) moving these societies towards a technocracy. On one hand, the technology-law circle deals with the progressive reduction of law to a normative technique (since the law is always late …

Regulating The Concussion Crisis In Sports: Canada’S Initiative To Bring Prevention Into Focus, Marcus Moore

All Faculty Publications

The twenty-first century has revealed the existence of a concussion crisis in sports. The crisis is of global reach, and Canada is no exception. In recent years, the Canadian government joined citizens in recognizing sports concussion as a major public health issue. A parliamentary committee investigated the crisis, reported findings, and made recommendations which the government accepted. As far as legal responses to the sport concussion crisis, new among the recommendations was a callto- action on prevention (Recommendation 13). Since there remains no medical cure for concussions, the government agreed with the view of injured former athletes and injury prevention …

Emerging Technology’S Language Wars: Cryptocurrency, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Work at the intersection of blockchain technology and law suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, legal researchers, lawmakers, researchers in the technical sciences, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates related to developing regulation in one specific area of the blockchain technology ecosystem: cryptocurrency. Using cryptocurrency …

Can Contract Emancipate? Contract Theory And The Law Of Work, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work.

Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by – and relegated to – employment and labor law. But contract law is not what contract theorists claim. Neither …