Law Commons^™

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Law

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …

Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

In this article, we respond to Professor Zelinsky’s criticism of our arguments regarding the constitutionality of New York’s tax residence rule. We argue that the Supreme Court’s decision in Wynne requires reconsideration of the New York Court of Appeal’s decision in Tamagni.

From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith

All Faculty Scholarship

Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft law commitments. Foreign relations law scholars typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich …

“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer

All Faculty Scholarship

Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and …

Spelling Out Spokeo, Craig Konnoth, Seth F. Kreimer

All Faculty Scholarship

For almost five decades, the injury-in-fact requirement has been a mainstay of Article III standing doctrine. Critics have attacked the requirement as incoherent and unduly malleable. But the Supreme Court has continued to announce “injury in fact” as the bedrock of justiciability. In Spokeo v. Robins, the Supreme Court confronted a high profile and recurrent conflict regarding the standing of plaintiffs claiming statutory damages. It clarified some matters, but remanded the case for final resolution. This Essay derives from the cryptic language of Spokeo a six stage process (complete with flowchart) that represents the Court’s current equilibrium. We put …

Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle

All Faculty Scholarship

This Article examines the role military automated surveillance and intelligence systems and techniques have supported a self-reinforcing racial bias when used by civilian police departments to enhance predictive policing programs. I will focus on two facets of this problem. First, my research will take an inside-out perspective, studying the role played by advanced military technologies and methods within civilian police departments, and how they have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools, and which automates de facto penalization and …

Wynne: It's Not About Double Taxation, Michael S. Knoll, Ruth Mason

All Faculty Scholarship

This Article discusses Wynne v. Comptroller, a dormant Commerce Clause case against Maryland pending before the Supreme Court. We use economic analysis to rebut Maryland’s claim that its tax regime does not discriminate against interstate commerce. We also argue that the parties’ framing of the central issue in the case as whether the Constitution requires states to relieve double taxation draws focus away from the discrimination question, and therefore could undermine the Wynnes’ case and lead to unjustified narrowing of the dormant Commerce Clause. We also show how our approach to tax discrimination resolves many of the issues that …

Judge Posner’S Simple Law, Mitchell N. Berman

All Faculty Scholarship

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely—from the Bluebook …

Catalogs, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

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.

Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal

All Faculty Scholarship

Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of …

Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese

All Faculty Scholarship

Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobile emissions standards, I contrast the divergent reactions to presidential influence under President Bush and President Obama. In both administrations the EPA faced clear presidential pressure, but critics of President Bush’s involvement generally applauded the actions taken by President Obama. The main difference appears to …

Assessing The Advocacy Of Negotiated Rulemaking: A Response To Philip Harter, Cary Coglianese

All Faculty Scholarship

For many years, advocates of negotiated rulemaking have advanced enthusiastic claims about how negotiated rulemaking would reduce litigation and shorten the rulemaking process. In an earlier study, I tested these claims systematically by assessing the effectiveness of negotiated rulemaking against existing rulemaking processes. I found that negotiated rulemaking neither saves time nor reduces litigation. Recently, Philip Harter, a longtime advocate of negotiated rulemaking, has criticized my study and asserted that negotiated rulemaking has succeeded remarkably in achieving its goals. Harter criticized the way I measured the length of the rulemaking process, claimed that I failed to appreciate differences in litigation, …