Constitutional Law Commons^™

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 …

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

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

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

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

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

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

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.

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 …

Machine Learning Evidence: Admissibility And Weight, Patrick W. Nutter

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

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. …

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

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

JCL Online

No abstract provided.

Solitary Confinement In America, Andrew Leon Hanna

JCL Online

No abstract provided.

Solitary Confinement As Per Se Unconstitutional, Andrew Leon Hanna

JCL Online

No abstract provided.

Race-Conscious Admissions, Diversity, And Academic Freedom, Vinay Harpalani

JCL Online

No abstract provided.

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

JCL Online

No abstract provided.

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

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

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

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

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Masthead

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Regulatory Capture And The Marginalized Majority: The Case For Constitutional Protection Of The Majority's Disposable Income, Eyal Benvenisti, Amnon Morag

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Laboratories Of Democracy Reform: State Constitutions And Partisan Gerrymandering, Samuel S.-H. Wang, Richard F. Ober Jr., Ben Williams

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey

All Faculty Scholarship

In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock. Our contribution to the literature …

Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters

All Faculty Scholarship

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in other work …