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Articles 1 - 30 of 48
Full-Text Articles in Law
What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler
What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler
All Faculty Scholarship
Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …
The Progressives: Racism And Public Law, Herbert J. Hovenkamp
The Progressives: Racism And Public Law, Herbert J. Hovenkamp
All Faculty Scholarship
American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?
When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …
For Legal Principles, Mitchell N. Berman
For Legal Principles, Mitchell N. Berman
All Faculty Scholarship
Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.
In …
Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith
Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith
All Faculty Scholarship
This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how …
Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr
Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr
All Faculty Scholarship
Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere. A few administrative agencies have already begun to adopt this technology, while others …
High-Stakes Interpretation, Ryan D. Doerfler
High-Stakes Interpretation, Ryan D. Doerfler
All Faculty Scholarship
Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.
This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to regard …
Plural Marriage: When One Spouse Is Not Enough, John O. Hayward
Plural Marriage: When One Spouse Is Not Enough, John O. Hayward
JCL Online
No abstract provided.
Construction, Originalist Interpretation And The Complete Constitution, Richard S. Kay
Construction, Originalist Interpretation And The Complete Constitution, Richard S. Kay
JCL Online
No abstract provided.
Resolving The Reasonable Belief And Probable Cause Circuit Split Stemming From Payton And Steagald, Steve Ragatzki
Resolving The Reasonable Belief And Probable Cause Circuit Split Stemming From Payton And Steagald, Steve Ragatzki
JCL Online
No abstract provided.
The Original Meaning Of "Natural Born", Michael D. Ramsey
The Original Meaning Of "Natural Born", Michael D. Ramsey
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Antidiscrimination In The Legal Profession And The First Amendment: A Partial Defense Of Model Rule 8.4(G), Claudia E. Haupt
Antidiscrimination In The Legal Profession And The First Amendment: A Partial Defense Of Model Rule 8.4(G), Claudia E. Haupt
JCL Online
No abstract provided.
Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu
Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu
All Faculty Scholarship
Strict scrutiny and the free exercise of religion have had an uneasy relationship in American jurisprudence. In this Article, we trace the history of strict scrutiny in free exercise cases and outline how it applies today. Then, using a unique dataset of cases from a 25-year period, we detail the characteristics of these cases. Finally, we discuss the implications for future cases. Our research indicates that even though claimants currently win a large percentage of cases, those victories might not be durable.
From The History To The Theory Of Administrative Constitutionalism, Sophia Z. Lee
From The History To The Theory Of Administrative Constitutionalism, Sophia Z. Lee
All Faculty Scholarship
Legal scholars and historians have shown growing interest in how agencies interpret and implement the Constitution, what is called “administrative constitutionalism.” The points of contact between the history and theory of administrative constitutionalism are sufficiently extensive to merit systematic analysis. This chapter focuses on what history can offer the theory of administrative constitutionalism. It argues that historical accounts of administrative constitutionalism invite a more robust normative defense of the practice than theorists have thus far provided. There is much to the transparent, participatory versions of administrative constitutionalism that its defenders have primarily focused on thus far. This chapter is a …
The Legal Story Of Guantánamo North, Rylee Sommers-Flanagan
The Legal Story Of Guantánamo North, Rylee Sommers-Flanagan
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Identity Crisis: Claim Preclusion In Constitutional Challenges Ro Statutes, Riley T. Keenan
Identity Crisis: Claim Preclusion In Constitutional Challenges Ro Statutes, Riley T. Keenan
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Rights Dynamism, Timothy Zick
Rights Dynamism, Timothy Zick
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Burden Of Proof: How Intersectionality Can Inform Our View Of The Equal Protection Intent Requirement, Kaiya Arroyo
Burden Of Proof: How Intersectionality Can Inform Our View Of The Equal Protection Intent Requirement, Kaiya Arroyo
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Incentives, Lies, And Disclosure, Christopher Robertson, D. Alex Winkelman
Incentives, Lies, And Disclosure, Christopher Robertson, D. Alex Winkelman
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Stings And Scams: "Fake News," The First Amendment, And The New Activist Journalism, Michael C. Dorf, Sidney G. Tarrow
Stings And Scams: "Fake News," The First Amendment, And The New Activist Journalism, Michael C. Dorf, Sidney G. Tarrow
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Gibbons Fallacy, Richard Primus
The Gibbons Fallacy, Richard Primus
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Was Cleburne An Accident?, William D. Araiza
Was Cleburne An Accident?, William D. Araiza
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Unprofessional Advice, Claudia E. Haupt
Unprofessional Advice, Claudia E. Haupt
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Navigating The Rights Of The Mentally Ill And The Second Amendment: Defining Responsibility, Balancing Safety, And Weighing Constitutional Rights, Emily Wajert
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
"Every Sort Of Interest": Penn Central And The Right To Community-Making Spaces, Barron M. Flood
"Every Sort Of Interest": Penn Central And The Right To Community-Making Spaces, Barron M. Flood
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Public Interest Vs. Private Lives--Affording Public Figures Privacy In The Digital Era: The Three Principle Filtering Model, Shlomit Yanisky-Ravid, Ben Zion Lahav
Public Interest Vs. Private Lives--Affording Public Figures Privacy In The Digital Era: The Three Principle Filtering Model, Shlomit Yanisky-Ravid, Ben Zion Lahav
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Compulsion, Lawrence Rosenthal
Compulsion, Lawrence Rosenthal
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Gouverneur Morris And James Wilson At The Constitutional Convention, Jack Heyburn
Gouverneur Morris And James Wilson At The Constitutional Convention, Jack Heyburn
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Masthead
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Freedom Of Conscience, But Which One? In Search Of Coherence In The U.S. Supreme Court's Religion Jurisprudence, Patrick Weil
Freedom Of Conscience, But Which One? In Search Of Coherence In The U.S. Supreme Court's Religion Jurisprudence, Patrick Weil
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Black And White And Gray All Over: How Anticlassification Theory Can Endorse Race-Based Affirmative Action Policies, Daniel C. Epstein
Black And White And Gray All Over: How Anticlassification Theory Can Endorse Race-Based Affirmative Action Policies, Daniel C. Epstein
University of Pennsylvania Journal of Constitutional Law
No abstract provided.