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Articles 1 - 30 of 45
Full-Text Articles in Law
Dimensions Of Delegation, Cary Coglianese
Dimensions Of Delegation, Cary Coglianese
All Faculty Scholarship
How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …
The American Pathology Of Inequitable Access To Medical Care, Allison K. Hoffman, Mark A. Hall
The American Pathology Of Inequitable Access To Medical Care, Allison K. Hoffman, Mark A. Hall
All Faculty Scholarship
What most defines access to health care in the United States may be its stark inequity. Daily headlines in top newspapers paint the highs and lows. Articles entitled: “We Mapped the Uninsured. You’ll notice a Pattern: They tend to live in the South, and they tend to be poor” and op-eds with titles like “Do Poor People Have a Right to Health Care?” and “What it’s Like to Be Black and Pregnant when you Know How Dangerous That Can Be” run side-by-side with headlines touting “The Operating Room of the Future,” and advances in gene therapy that promise cures …
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
All Faculty Scholarship
This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …
Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn
Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn
All Faculty Scholarship
Public choice theory has long been the dominant lens through which economists and other scholars have viewed occupational licensing. According to the public choice account, practitioners favor licensing because they want to reduce competition and drive up their own wages. This essay argues that the public choice account has been overstated, and that it ironically has served to distract from some of the most important harms of licensing, as well as from potential solutions. We emphasize three specific drawbacks of this account. First, it is more dismissive of legitimate threats to public health and safety than the research warrants. Second, …
The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman
The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman
All Faculty Scholarship
The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.
The lecture (as adapted for this Article) explores …
The Constitutional Problems With The Election Of Amtrak’S President, Aaron Kahen
The Constitutional Problems With The Election Of Amtrak’S President, Aaron Kahen
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Hybrid Nature Of The Property Clause: Implications For Judicial Review Of National Monument Reductions, Lance F. Sorenson
The Hybrid Nature Of The Property Clause: Implications For Judicial Review Of National Monument Reductions, Lance F. Sorenson
University of Pennsylvania Journal of Constitutional Law
In the recurring and contentious debates regarding the President’s authority to declare (and perhaps rescind) National Monuments, both those who argue for an expansive authority and those who favor restricted authority treat the Antiquities Act as a delegation of legislative power; they only disagree on whether the delegation is appropriate or, in the case of rescission, whether a delegation exists at all. However, this framework is wrong. The Property Clause is not strictly a legislative power. Rather, it is a hybrid; rulemaking power is interspersed with an administrative one—the power to manage property. The Supreme Court has recognized this distinction …
On The Senate’S Purported Constitutional Duty To Meaningfully Consider Presidential Nominees To The Supreme Court Of The United States: A Response To Chief Judge Peter J. Eckerstrom, Seth Barrett Tillman
On The Senate’S Purported Constitutional Duty To Meaningfully Consider Presidential Nominees To The Supreme Court Of The United States: A Response To Chief Judge Peter J. Eckerstrom, Seth Barrett Tillman
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Fisher’S Forewarning: Using Data To Normalize College Admissions, Shakira D. Pleasant
Fisher’S Forewarning: Using Data To Normalize College Admissions, Shakira D. Pleasant
University of Pennsylvania Journal of Constitutional Law
This Article presents a nuanced view of Fisher v. University of Texas that has largely been ignored in mainstream discourse in the case. In Fisher, Justice Anthony Kennedy cast the deciding vote to uphold the University of Texas (“UT”) race-conscious admissions policy. This was the first time that Justice Kennedy voted to uphold a race-conscious policy, and many commentators have focused on this aspect of his Fisher majority opinion. However, Justice Kennedy also gave a stern forewarning to UT and other universities: in the future, they better have strong data to show that they need to use race-conscious admissions. …
Yes, The Senate Elevated Partisan Political Goals Over Constitutional Text When It Refused To Consider President Obama’S Nominee To Replace Justice Scalia, Peter J. Eckerstrom
Yes, The Senate Elevated Partisan Political Goals Over Constitutional Text When It Refused To Consider President Obama’S Nominee To Replace Justice Scalia, Peter J. Eckerstrom
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Machine Learning Evidence: Admissibility And Weight, Patrick W. Nutter
Machine Learning Evidence: Admissibility And Weight, Patrick W. Nutter
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Neglecting Nationalism, Gil Seinfeld
Neglecting Nationalism, Gil Seinfeld
University of Pennsylvania Journal of Constitutional Law
Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely …
Big Data And The Right To Political Participation, Michal Saliternik
Big Data And The Right To Political Participation, Michal Saliternik
University of Pennsylvania Journal of Constitutional Law
In recent years, the big data revolution has rapidly expanded from the private to the public sector. Today, government authorities at all levels analyze mass amounts of digital data produced by citizens and use it to inform their policy choices in such diverse areas as healthcare, education, transportation, and urban planning. Proponents of this trend assert that it not only yields better policies, but also facilitates political participation by allowing more people to influence governmental decisions at a low cost and with little effort.
This Article argues, however, that the political participation that big data analysis currently enables is flawed …
Going "Clear", Ryan D. Doerfler
Going "Clear", Ryan D. Doerfler
All Faculty Scholarship
This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words, …
Ministerial Magic: Tax-Free Housing And Religious Employers, Bridget J. Crawford, Emily Gold Waldman
Ministerial Magic: Tax-Free Housing And Religious Employers, Bridget J. Crawford, Emily Gold Waldman
JCL Online
No abstract provided.
Solitary Confinement In America, Andrew Leon Hanna
Solitary Confinement As Per Se Unconstitutional, Andrew Leon Hanna
Solitary Confinement As Per Se Unconstitutional, Andrew Leon Hanna
JCL Online
No abstract provided.
Race-Conscious Admissions, Diversity, And Academic Freedom, Vinay Harpalani
Race-Conscious Admissions, Diversity, And Academic Freedom, Vinay Harpalani
JCL Online
No abstract provided.
Fake News And Racial, Ethnic, And Religious Minorities: A Precarious Quest For Truth, Kimberly Grambo
Fake News And Racial, Ethnic, And Religious Minorities: A Precarious Quest For Truth, Kimberly Grambo
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The New Fighting Words?: How U.S. Law Hampers The Fight Against Information Warfare, Jill Goldenziel, Manal Cheema
The New Fighting Words?: How U.S. Law Hampers The Fight Against Information Warfare, Jill Goldenziel, Manal Cheema
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Structural Analysis Of Article V: The Constitutionality Of A Limited Convention To Propose Amendments, Damian O'Sullivan
Structural Analysis Of Article V: The Constitutionality Of A Limited Convention To Propose Amendments, Damian O'Sullivan
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Present Constitutional Status Of Solitary Confinement, Andrew Leon Hanna
The Present Constitutional Status Of Solitary Confinement, Andrew Leon Hanna
JCL Online
No abstract provided.
Rediscovering The Journal Clause: The Lost History Of Legislative Constitutional Interpretation, Nicholas Handler
Rediscovering The Journal Clause: The Lost History Of Legislative Constitutional Interpretation, Nicholas Handler
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Improper Commandeering, Josh Blackman
Improper Commandeering, Josh Blackman
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Classless And Uncivil: The Three-Decade Legacy Of Evans V. Jeff D., William H. Fedullo
Classless And Uncivil: The Three-Decade Legacy Of Evans V. Jeff D., William H. Fedullo
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Constitutionality Of Immigrant Sanctuaries And Anti-Sanctuaries: Originalism, Current Doctrine, And A Second-Best Alternative, Nelson Lund
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Immigration To Blue Cities In Red States: The Battleground Between Sanctuary And Exclusion, Karla Mari Mckanders
Immigration To Blue Cities In Red States: The Battleground Between Sanctuary And Exclusion, Karla Mari Mckanders
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Immigration Adjudication Bankruptcy, Jill E. Family
Immigration Adjudication Bankruptcy, Jill E. Family
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Felony Disenfranchisement Laws: Paying And Re-Paying A Debt To Society, Christina Beeler
Felony Disenfranchisement Laws: Paying And Re-Paying A Debt To Society, Christina Beeler
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Contracting Around The Constitution: An Anticommodificationist Perspective On Unconstitutional Conditions, Louis W. Fisher
Contracting Around The Constitution: An Anticommodificationist Perspective On Unconstitutional Conditions, Louis W. Fisher
University of Pennsylvania Journal of Constitutional Law
No abstract provided.