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Articles 1 - 19 of 19
Full-Text Articles in Law
Leaving The Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, And Their Consequences, Stephen B. Burbank, S. Jay Plager, Gregory Ablavsky
Leaving The Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, And Their Consequences, Stephen B. Burbank, S. Jay Plager, Gregory Ablavsky
All Faculty Scholarship
This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy enabled the authors to describe more precisely than previous scholarship such matters of interest as the role that judges in senior status play in the contemporary federal judiciary, the rate at which federal judges are retiring from the bench (rather than assuming, or after assuming, senior status), and the reasons why some federal judges remain in regular active service instead of …
The Inalienable Right Of Publicity, Jennifer E. Rothman
The Inalienable Right Of Publicity, Jennifer E. Rothman
All Faculty Scholarship
This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …
Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas
Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas
All Faculty Scholarship
Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed …
Reconstruction And Resistance, Kermit Roosevelt Iii
Reconstruction And Resistance, Kermit Roosevelt Iii
All Faculty Scholarship
This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and speculate that Balkin …
Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp
Antitrust’S State Action Doctrine And The Ordinary Powers Of Corporations, Herbert J. Hovenkamp
All Faculty Scholarship
The Supreme Court has now agreed to review the Eleventh Circuit's decision in Phoebe-Putney, which held that a state statute permitting a hospital authority to acquire hospitals implicitly authorized such acquisitions when they were anticompetitive – in this particular case very likely facilitating a merger to monopoly. Under antitrust law’s “state action” doctrine a state may in fact authorize such an acquisition, provided that it “clearly articulates” its desire to approve an action that would otherwise constitute an antitrust violation and also “actively supervises” any private conduct that might fall under the state’s regulatory scheme.
“Authorization” in the context of …
Originalism And The Other Desegregation Decision, Ryan C. Williams
Originalism And The Other Desegregation Decision, Ryan C. Williams
All Faculty Scholarship
Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively "incorporates" the Fourteenth …
New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo
New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo
All Faculty Scholarship
No abstract provided.
First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen
First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen
All Faculty Scholarship
No abstract provided.
Civil Rights Reform And The Body, Tobias Barrington Wolff
Civil Rights Reform And The Body, Tobias Barrington Wolff
All Faculty Scholarship
Discrimination on the basis of gender identity or expression has emerged as a major focus of civil rights reform. Opponents of these reforms have structured their opposition around one dominant image: the bathroom. With striking consistency, opponents have invoked anxiety over the bathroom -- who uses bathrooms, what happens in bathrooms, and what traumas one might experience while occupying a bathroom -- as the reason to permit discrimination in the workplace, housing, and places of public accommodation. This rhetoric of the bathroom in the debate over gender-identity protections seeks to exploit an underlying anxiety that has played a role in …
The Myth Of The Terry Frisk, Annie Fisher
Originalist Ideology And The Rule Of Law, Ian Bartrum
Originalist Ideology And The Rule Of Law, Ian Bartrum
JCL Online
No abstract provided.
New Deal Lessons For The Affordable Care Act: The General Welfare Clause, Elizabeth Weeks Leonard
New Deal Lessons For The Affordable Care Act: The General Welfare Clause, Elizabeth Weeks Leonard
JCL Online
No abstract provided.
"They Saw A Protest": Cognitive Illiberalism And The Speech-Conduct Distinction, Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, Jeffrey J. Rachlinski
"They Saw A Protest": Cognitive Illiberalism And The Speech-Conduct Distinction, Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, Jeffrey J. Rachlinski
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“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …
Of Icebergs And Glaciers: The Submerged Constitution Of American Healthcare, Theodore Ruger
Of Icebergs And Glaciers: The Submerged Constitution Of American Healthcare, Theodore Ruger
All Faculty Scholarship
No abstract provided.
Masthead
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Prospective Advice And Consent, Jean Galbraith
Prospective Advice And Consent, Jean Galbraith
All Faculty Scholarship
No abstract provided.
Alexander's Genius, Mitchell N. Berman
Alexander's Genius, Mitchell N. Berman
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Larry Alexander is one of the most creative, penetrating, and wide-ranging legal theorists working today. This short essay, prepared as a tribute for a special issue of the APA Newsletter on Philosophy and Law, aims to convey a flavor of his work by introducing, and causing some trouble for, just a few of his more heterodox and provocative positions. The principal critical target of the essay is Alexander’s contention (a contention that he has pressed both alone and with Saikrishna Prakash) that extreme partisan gerrymandering does not violate the U.S. Constitution. The most persuasive grounding for the unconstitutionality of (extreme) …
Sex Exceptionalism In Intellectual Property, Jennifer E. Rothman
Sex Exceptionalism In Intellectual Property, Jennifer E. Rothman
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The state regulates sexual activity through a combination of criminal and civil sanctions and the award of benefits, such as marriage and First Amendment protections, for acts and speech that conform with the state’s vision of acceptable sex. Although the penalties for non-compliance with the state’s vision of appropriate sex are less severe in intellectual property law than those, for example, in criminal or family law, IP law also signals the state’s views of sex. In this Article written for the Stanford symposium on the Adult Entertainment industry, I extend my consideration of the law’s treatment of sex after Lawrence …
Not As Bad As You Think: Why Garcetti V. Ceballos Makes Sense, Kermit Roosevelt Iii
Not As Bad As You Think: Why Garcetti V. Ceballos Makes Sense, Kermit Roosevelt Iii
All Faculty Scholarship
No abstract provided.