Law Commons^™

We're All Born Naked And The Rest Is Speech: Gender Expression And The First Amendment, Charlie Ferguson

University of Pennsylvania Law Review

As the antitransgender moral panic reaches a fever pitch, transgender civil rights are becoming increasingly fragile. A potential legal defense to these attacks lies within the First Amendment: if gender expression, or the way humans communicate their gender identity, is understood to be expressive conduct, it may receive protections under the Free Speech Clause. Using the framework of Spence v. Washington, this Comment argues that gender expression is a form of speech deserving of First Amendment protection. First, a speaker can use gender expression to share information about their identity. And second, an audience is likely to understand the speaker’s …

The Sweep And Force Of Section Three, William Baude, Michael Paulsen

University of Pennsylvania Law Review

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This Article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by …

Private Enforcement In The States, Diego A. Zambrano, Neel Guha, Austin Peters, Jeffrey Xia

University of Pennsylvania Law Review

Scholarship on U.S. litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the U.S. often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance, and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress has deliberately empowered private plaintiffs instead of, or in addition to, government agencies. …

Central Bank Digital Currency As New Public Money, Christina Parajon Skinner

University of Pennsylvania Law Review

No abstract provided.

Combatting Corporate Tokenism: The Role Of Shareholder Derivative Litigation In Board And Executive-Level Diversification, Caitlin Gleason

University of Pennsylvania Law Review

In the wake of several social justice movements, including the #MeToo movement in 2017 and the Black Lives Matter Movement in 2020, corporations increasingly emphasized their commitments to diversity, equity, and inclusion (DEI) in a variety of ways. Amid shifts in both public attitudes and the corporate landscape, a new trend in shareholder derivative actions emerged: shareholders began suing boards of directors for corporate failures related to DEI shortcomings. As a result, major corporations like Meta, Cisco, and Gap have faced suits brought by shareholders seeking to hold boards accountable for corporations’ public pledges to DEI values and initiatives.

Although …

Don't Just Do Something, Stand There: What Crinimal Law Teaches Us About Article Iii Standing In Data Breach Cases, Caroline Ribet

University of Pennsylvania Law Review

Data breaches of companies that expose consumer information are a pervasive and growing issue. The United States Courts of Appeals are divided over whether consumers have Article III Standing to sue the hacked organizations that did not protect their personal data. This Comment draws on insights from criminal law to argue that courts should take a more expansive view of the harm to consumers when their personal data is exposed, even where the plaintiffs cannot allege that their data has been misused. This approach would give more consumers the opportunity to have a day in court to vindicate the real …

False Analogies To Predatory Pricing, Christopher R. Leslie

University of Pennsylvania Law Review

Philosophers and policymakers have long cautioned against comparing incomparable objects or concepts. Scores of judicial opinions caution judges and litigants against comparing apples to oranges. The original idiom, as recited by such sixteenth-century luminaries as Sir Thomas More and William Shakespeare, admonished against equating apples and oysters,4 two items unlikely to be mistaken for each other given their obvious dissimilarities in color, texture, smell, and immediate edibility. Over time, oysters were replaced by oranges and the expression evolved to caution against confusing two types of fruit, which do in fact share some similar qualities but are quite distinct and, thus, …

Conflicts Of Law And The Abortion War Between The States, Paul Schiff Berman, Roey Goldstein, Sophie Leff

University of Pennsylvania Law Review

On the subject of abortion, the so-called “United” States of America are becoming more disunited than ever. The U.S. Supreme Court’s precipitous decision in Dobbs v. Jackson Women’s Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court issued its decision, at least nineteen states have increased restrictions on abortion access, while at least twenty states and …

Private Equity, Conflicts, And Chapter 11: The Three Types Of Attorney Conflicts That Undermine Corporate Restructuring, Crawford G. Schneider

University of Pennsylvania Law Review

Private equity has become a dominant force in distressed investing and Chapter 11 corporate reorganization. As a result, three new types of attorney conflicts have emerged, each of which threatens to undermine the efficacy and credibility of the bankruptcy system. Bankruptcy judges, practitioners, and scholars must respond. This Comment provides those stakeholders with a doctrinal and normative framework to understand the conflicts that pervade the system. In particular, this Comment defines three types of conflicts, explains how each threatens the functionality of Chapter 11 corporate restructuring, lays the doctrinal groundwork for a new understanding of attorney disinterestedness, and provides solutions …

The Failed Promise Of Installment Fines, Beth Colgan, Jean Galbraith

University of Pennsylvania Law Review

n the 1970s, the Supreme Court prohibited the then-common practice of incarcerating criminal defendants because they lacked the money to immediately pay off their fines and fees. The Court suggested that states could instead put defendants on installment payment plans. As this Article shows, this suggestion came against a backdrop of impressive success stories about installment fines—including earlier experiments in which selected defendants had reliably paid off modest fines through carefully calibrated payment plans. Yet as this Article also shows, installment fines practices of today differ significantly from those early experiments, as lawmakers have increased fine amounts, added on fees, …

Systemic Failure To Appear In Court, Lindsay Graef, Sandra G. Mayson, Aurelie Ouss, Megan Stevenson

University of Pennsylvania Law Review

This Article aims to reorient the conversation around “failure-to-appear” (FTA) in criminal court. Recent policy and scholarship have addressed FTA mostly as a problem of criminal defendants in connection with questions about how bail systems should operate. But ten years of data from Philadelphia reveal a striking fact: it is not defendants who most frequently fail to appear but rather the other parties necessary for a criminal proceeding—witnesses and lawyers. Between 2010 and 2020, an essential witness or private attorney failed to appear for at least one hearing in 53% of all cases, compared to a 19% FTA rate for …

Terms Of Service And Fourth Amendment Rights, Orin S. Kerr

University of Pennsylvania Law Review

Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these Terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: by agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.

This Article argues that the courts are wrong. Terms of …

The Exception Is The Rule: The Role Of Security Clearances In Employment Discrimination, A. David Sowry

University of Pennsylvania Law Review

The 1988 Supreme Court decision Department of Navy v. Egan created a bar on judicial review of security-clearance determinations. Today, this comes up most often in the context of employment discrimination, leading courts to find they have no jurisdiction over the claim. The bar on judicial review is not universal, and a handful of exceptions have emerged in lower courts over the years. However, this Comment shows that the so-called “exceptions” are not exceptions at all. Rather, they arise in situations where there is no need for the court to review the security-clearance determination. This Comment proposes to reformulate the …

Cohesive Class Actions, Miles M. Gray

University of Pennsylvania Law Review

The Rule 23(b)(2) class action has taken many forms since it was added to the Federal Rules in 1966. At first, the provision was used largely to enforce the antidiscrimination objectives of the Civil Rights Era, but over time, subsection (b)(2) became a stock device to pursue injunctive and declaratory relief on a class-wide basis. Along with those developments have come attempts to limit the (b)(2) class, first with the excision of most money damages and individualized injunctions, and now with the requirement in the lower courts that the class be “cohesive.” Though the cohesiveness doctrine lacks a uniform definition, …

Unconstitutional Conditions And The Constitutional Text, Ryan C. Williams

University of Pennsylvania Law Review

Federal and state actors sometimes condition access to benefits that they are constitutionally permitted but not obligated to provide on the willingness of recipients to engage in certain behavior that governments cannot compel directly. Current judicial doctrine treats such conditional offers as sometimes permitted and sometimes prohibited. But existing case law addressing such “unconstitutional conditions” challenges lacks a coherent account of when and why such conditional offers violate the Constitution. A wide-ranging academic debate has swirled around the doctrine, with commentators proposing various reforms to bring order to the courts’ confused and confusing jurisprudence.

A curious feature of this debate …

Surveillance Class Actions: Reconstructing A Federal Data Privacy Private Right Of Action, Nabil Shaikh

University of Pennsylvania Law Review

Class actions against online platforms alleging improper data collection and sharing practices have increased dramatically in recent years. In 2022, the Federal Trade Commission solicited public comment on governing these practices, which it termed “commercial surveillance,” through rulemaking. This Comment highlights the rise of private commercial surveillance and how both regulation and litigation have been employed to address ensuing harms. This Comment then discusses procedural barriers to these class actions, particularly Rule 23(b)(3)’s predominance requirement and Article III standing, and how some courts have relied on the U.S. Supreme Court’s decisions in Comcast v. Behrend and TransUnion v. Ramirez to …

Outcome Reasons And Process Reasons In Normative Constitutional Theory, Larry Solum

University of Pennsylvania Law Review

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of their counterfactual implications for a handful of prior decisions of the Supreme Court. …

Arbitration's Unraveling, Myriam E. Gilles

University of Pennsylvania Law Review

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area …

T.L.O. Goes Home: Remote Learning And The Future Of School Search Doctrine After Ogletree V. Cleveland State University, William Mcdonald

University of Pennsylvania Law Review

The Supreme Court has not addressed the relationship between searches by school administrators and a student’s Fourth Amendment rights in over two decades. Since then, remote learning and other advances in educational technology have changed the meaning of the “school environment.” In a recent federal district court case in Ohio, the court held that a public university’s remote examination policy, which required a student to conduct a scan of her own bedroom before beginning a remote exam, violated the student’s Fourth Amendment rights. This Comment argues that the previous school search Supreme Court cases offer poor tests for this new …

Debt Textualism And Creditor-On-Creditor Violence: A Modest Plea To Keep The Faith, Eric Talley, Sneha Pandya

University of Pennsylvania Law Review

No abstract provided.

Defending Esg: A New Standard Of Review For Defensive Measuresthat Impact Esg Ratings, Nicole R. Hovatter

University of Pennsylvania Law Review

No abstract provided.

The Anti-Tenancy Doctrine, Sarah Schindler, Kellen Zale

University of Pennsylvania Law Review

No abstract provided.

Abstaining From Abstention: Why Younger Abstention Does Not Apply In 42 U.S.C. § 1983 Bail Litigation, Alezeh Rauf

University of Pennsylvania Law Review

No abstract provided.

Restoration, Retribution, And Sexual Assault: The Value Of Apologies, Kristen M. Marino

University of Pennsylvania Law Review

Winner of THE 2023 HENRY C. LOUGHLIN PRIZE, to the student writing the best paper on legal ethics.

Submerged Independent Agencies, Brian D. Feinstein, Jennifer Nou

University of Pennsylvania Law Review

No abstract provided.

Negotiating Legitimacy: An Evaluation Of The Negotiation Class Proposal, Camila Bayly

University of Pennsylvania Law Review

No abstract provided.

Removing Barriers To State Tax Incentive Reform, Michelle D. Layser

University of Pennsylvania Law Review

No abstract provided.

Facing Contracting Issues:The Psychological And Financial Impacts Of Facebook Outsourcing Content Moderation, Chloé Nurik

University of Pennsylvania Law Review

No abstract provided.

Disaggregating State Bankruptcy, Michael A. Francus

University of Pennsylvania Law Review

No abstract provided.

The Conflict Among African American Penal Interests: Rethinking Racial Equity In Criminal Procedure, Trevor G. Gardner

University of Pennsylvania Law Review

No abstract provided.