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University of Pennsylvania Carey Law School

Constitutional Law

University of Pennsylvania Journal of Constitutional Law

2014

Articles 1 - 30 of 32

Full-Text Articles in Law

Revisiting The Manson Test: Social Science As A Source Of Constitutional Interpretation, Benjamin Wiener Jan 2014

Revisiting The Manson Test: Social Science As A Source Of Constitutional Interpretation, Benjamin Wiener

University of Pennsylvania Journal of Constitutional Law

Throughout the late 1960s and early 1970s, the Supreme Court defined the Due Process limitations on the admissibility of eyewitness identifications. The Court ultimately settled on a test in Manson v. Brathwaite. Since 1977, the Court’s test has been roundly criticized in the legal7 and social science8 literature. Despite developments in social science that have augmented our understanding of eyewitness identifications, the Supreme Court has failed to readdress the issue.

This Comment considers whether or not the United States Supreme Court should use social science evidence as a source for reinterpreting the Due Process Clause as expressed through the ...


Beyond Suspect Classifications, Susannah W. Pollvogt Jan 2014

Beyond Suspect Classifications, Susannah W. Pollvogt

University of Pennsylvania Journal of Constitutional Law

Suspect classification analysis is dead. Or so it would seem.

As is well known, suspect classification analysis and the associated tiers of scrutiny framework are the primary doctrinal features of contemporary equal protection jurisprudence. How plaintiffs fare under these twin doctrines determines the ultimate fate of their equal protection claims. Accordingly, equal protection advocates often turn their attention to suspect classification analysis in crafting their arguments.

And yet, despite the profound impact of suspect classification analysis on contemporary equal protection jurisprudence, the doctrine sits much like an aging patriarch, exerting a level of control that far exceeds its actual efficacy ...


Tread On Me!, Toni M. Massaro Jan 2014

Tread On Me!, Toni M. Massaro

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Disappearing Together? American Federalism And Social Contract Theory, Jaren Wilkerson Jan 2014

Disappearing Together? American Federalism And Social Contract Theory, Jaren Wilkerson

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Emerging Technologies And Dwindling Speech, Jorge R. Roig Jan 2014

Emerging Technologies And Dwindling Speech, Jorge R. Roig

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Judicial Review And Non-Enforcement At The Founding, Matthew Steilen Jan 2014

Judicial Review And Non-Enforcement At The Founding, Matthew Steilen

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


No Calling Cut: The Political Right To Record Police, Elizabeth J. Frawley Jan 2014

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

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


The Constitution And Legislative History, Victoria F. Nourse Jan 2014

The Constitution And Legislative History, Victoria F. Nourse

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 Jan 2014

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.


The "Otherized" Latino: Edward Said's Orientalism Theory And Reforming Suspect Class Analysis, Laura M. Goodall Jan 2014

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 Court ...


The Secret History Of American Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman Jan 2014

The Secret History Of American Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


The Fall And Rise Of Specialized Federal Constitutional Courts, Michael E. Solimine Jan 2014

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

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Consent Of The Governed Or Consent Of The Government? The Problems With Consent Decrees In Government-Defendant Cases, Michael T. Morley Jan 2014

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 ...


I Am A Camera: Scrutinizing The Assumption That Cameras In The Courtroom Furnish Public Value By Operating As A Proxy For The Public, Cristina Carmody Tilley Jan 2014

I Am A Camera: Scrutinizing The Assumption That Cameras In The Courtroom Furnish Public Value By Operating As A Proxy For The Public, Cristina Carmody Tilley

University of Pennsylvania Journal of Constitutional Law

The United States Supreme Court has held that the public has a constitutional right of access to criminal trials and other proceedings, in large part because attendance at these events furnishes a number of public values. The Court has suggested that the press operates as a proxy for the public in vindicating this open court guarantee. That is, the Court has implied that any value that results from general public attendance at trials is replicated when members of the media at-tend and report on trials using the same means of perception as other members of the public.

The concept of ...


All Assemble: Order And Disorder In Law, Politics, And Culture, Tabatha Abu El-Haj Jan 2014

All Assemble: Order And Disorder In Law, Politics, And Culture, Tabatha Abu El-Haj

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Your Honor, Please Explain: Why Congress Can, And Should, Require Justices To Publish Reasons For Their Recusal Decisions, Suzanne Levy Jan 2014

Your Honor, Please Explain: Why Congress Can, And Should, Require Justices To Publish Reasons For Their Recusal Decisions, Suzanne Levy

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Informational Privacy: Lessons From Across The Atlantic, Timothy Azarchs Jan 2014

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 ...


The Church Of Originalism, S. L. Whitesell Jan 2014

The Church Of Originalism, S. L. Whitesell

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Weighing The Eighth Amendment: Finding The Balance Between Treating And Mistreating Suicidal Prisoners, Jessa Irene Degroote Jan 2014

Weighing The Eighth Amendment: Finding The Balance Between Treating And Mistreating Suicidal Prisoners, Jessa Irene Degroote

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Sport As Speech, Genevieve Lakier Jan 2014

Sport As Speech, Genevieve Lakier

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


The Voting Rights Act And The Fifteenth Amendment Standard Of Review, Jeremy Amar-Dolan Jan 2014

The Voting Rights Act And The Fifteenth Amendment Standard Of Review, Jeremy Amar-Dolan

University of Pennsylvania Journal of Constitutional Law

One of the most successful pieces of civil rights legislation in American History, the Voting RightsAct of 1965 helped achieve a level of black enfranchisement that had seemed impossible since the ratification of the Fifteenth Amendment nearly a century earlier. Indispensable to the VRA’s success was Section 5, which turns the tables on jurisdictions deemed to be the worst offenders by creating a presumption of racial discrimination that had to be overcome by “preclearing” any change in voting practices with federal authorities. Although the VRA has withstood a number of constitutional challenges over the years, the Supreme Court recently ...


Masthead Jan 2014

Masthead

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Public Concern And Outrageous Speech: Testing The Inconstant Boundaries Of Iied And The First Amendment Three Years After Snyder V. Phelps, Clay Calvert Jan 2014

Public Concern And Outrageous Speech: Testing The Inconstant Boundaries Of Iied And The First Amendment Three Years After Snyder V. Phelps, Clay Calvert

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


A Defense Of The Doctrine Of Preemption: Revealing The Fallacy That Federal Preemption Contributed To The Financial Crisis, Dori K. Bailey Jan 2014

A Defense Of The Doctrine Of Preemption: Revealing The Fallacy That Federal Preemption Contributed To The Financial Crisis, Dori K. Bailey

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Truthful But Misleading? The Precarious Balance Of Autonomy And State Interests In Casey And Second-Generation Doctor-Patient Regulation, Danielle Lang Jan 2014

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 ...


Should I Stay Or Should I Go Now: Foreign Law Implications For The Supreme Court's Recusal Problem, Christina Reichert Jan 2014

Should I Stay Or Should I Go Now: Foreign Law Implications For The Supreme Court's Recusal Problem, Christina Reichert

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Alienating Aliens: Equal Protection Violations In The Structures Of State Public-Benefit Schemes, Gregory T. W. Rosenberg Jan 2014

Alienating Aliens: Equal Protection Violations In The Structures Of State Public-Benefit Schemes, Gregory T. W. Rosenberg

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


The First Amendment Right To Speak About The Human Genome, Barbara J. Evans Jan 2014

The First Amendment Right To Speak About The Human Genome, Barbara J. Evans

University of Pennsylvania Journal of Constitutional Law

There is a fairly broad consensus among bioethicists and state and federal regulators that scientific investigators’ communication of genetic test results to research participants should be subject to prior review and content-based restrictions on what the participants can be told. The recommended restrictions often include outright bans on the return of results that are scientifically uncertain, that lack a well-established clinical or reproductive significance, or that reveal risks about which little can be done given the limitations of current medical knowledge. Yet, many research participants are curious about their genomes and want to know what researchers found out about them ...


Insights From Canada For American Constitutional Federalism, Stephen F. Ross Jan 2014

Insights From Canada For American Constitutional Federalism, Stephen F. Ross

University of Pennsylvania Journal of Constitutional Law

No abstract provided.


Good Enough For Government Work: Two Cheers For Content Neutrality, Seth F. Kreimer Jan 2014

Good Enough For Government Work: Two Cheers For Content Neutrality, Seth F. Kreimer

University of Pennsylvania Journal of Constitutional Law

When then-Professor Elena Kagan emerged on the public stage in the mid-1990s, she declared “the distinction between content-based and content-neutral regulations of speech serves as the keystone of First Amendment law.” In the last decade and a half, commentators and Supreme Court opinions regularly echoed that declaration. Yet the First Amendment does not mention “content neutrality.” The phrase is an artifact of modern constitutional doctrine–a doctrine subjected to a sustained barrage of judicial and academic criticism.

Most scholarly critiques of content neutrality focus on First Amendment theory and Supreme Court opinions. After surveying these critiques, along with the incomplete ...