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Articles 1 - 30 of 52
Full-Text Articles in Constitutional Law
National Pork Is A Bibb Case, Not A Pike Case, Michael S. Knoll, Ruth Mason
National Pork Is A Bibb Case, Not A Pike Case, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
In October 2022, the U.S. Supreme Court heard oral argument in National Pork Producers Council v. Ross, a Ninth Circuit case out of California, dismissing a challenge to Proposition 12, which, inter alia, bans the sale of wholesome pork (without regard to where it was produced) from the offspring of breeding sows confined in a manner California voters consider “cruel.” National Pork thus puts the Court in the position of choosing between the often-criticized undue-burden strand of the dormant Commerce Clause and California’s request that the Court approve its ban on out-of-state pork not because of the products’ qualities, but …
Solving The Congressional Review Act’S Conundrum, Cary Coglianese
Solving The Congressional Review Act’S Conundrum, Cary Coglianese
All Faculty Scholarship
Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).
After the SEC issued its …
The Pennhurst Doctrines And The Lost Disability History Of The "New Federalism", Karen Tani
The Pennhurst Doctrines And The Lost Disability History Of The "New Federalism", Karen Tani
All Faculty Scholarship
This Article reconstructs the litigation over an infamous institution for people with disabilities—Pennhurst State School & Hospital—and demonstrates that litigation’s powerful and underappreciated significance for American life and law. It is a tale of two legacies. In U.S. disability history, Halderman v. Pennhurst State School & Hospital is a celebrated case. The 1977 trial court decision recognized a constitutional “right to habilitation” and ordered the complete closure of an overcrowded, dehumanizing facility. For people concerned with present-day mass incarceration, the case retains relevance as an example of court-ordered abolition.
For those outside the world of deinstitutionalization and disability rights, however, …
Brief Of Professors Michael Knoll And Ruth Mason As Amici Curiae Supporting Petitioners In National Pork Producers Council V. Ross, Michael S. Knoll, Ruth Mason
Brief Of Professors Michael Knoll And Ruth Mason As Amici Curiae Supporting Petitioners In National Pork Producers Council V. Ross, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
The district court erred when it concluded that because Proposition 12 applies only to in-state sales, it could not be extraterritorial. On the contrary, because California regulates pork production based on domestic, inbound, and outbound sales, its regulation is internally inconsistent and overbroad. As an obligation of interstate comity, this Court has understood extraterritoriality to require the basis of regulation to be internally consistent. A regulation is internally consistent when, if every state regulated using the same nexus as the challenged state, cross-border commercial activity would not be regulated by more than one state. Proposition 12 cannot meet this basic …
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
All Faculty Scholarship
For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
All Faculty Scholarship
The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …
No More January Sixths: A Constitutional Proposal To Take Politics Out Of Presidential Election Mechanics, Paul Boudreaux
No More January Sixths: A Constitutional Proposal To Take Politics Out Of Presidential Election Mechanics, Paul Boudreaux
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Deferring To Foreign Courts, Maggie Gardner
Deferring To Foreign Courts, Maggie Gardner
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Office Of The Chief Circuit Judge, Marin K. Levy, Jon O. Newman
The Office Of The Chief Circuit Judge, Marin K. Levy, Jon O. Newman
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Digital Civil Procedure, David Freeman Engstrom
Digital Civil Procedure, David Freeman Engstrom
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Reflections On The Nexus Of Procedure And History: The Example Of Modern American Arbitration, Amalia D. Kessler
Reflections On The Nexus Of Procedure And History: The Example Of Modern American Arbitration, Amalia D. Kessler
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Protests, The Press, And First Amendment Rights Before And After The “Floyd Caselaw”, Peter Jacobs
Protests, The Press, And First Amendment Rights Before And After The “Floyd Caselaw”, Peter Jacobs
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Amazon's Neighborhood Watch, Jackson Eskay
Amazon's Neighborhood Watch, Jackson Eskay
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Eye In The Sky Delivers (And Influences) What You Buy, Hadar Y. Jabotinsky, Michal Lavi
The Eye In The Sky Delivers (And Influences) What You Buy, Hadar Y. Jabotinsky, Michal Lavi
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Public Square Has Eyes (Or Cameras): Anonymous Speech Under The First And Fourth Amendments In The Age Of Facial Recognition, Apratim Vidyarthi
The Public Square Has Eyes (Or Cameras): Anonymous Speech Under The First And Fourth Amendments In The Age Of Facial Recognition, Apratim Vidyarthi
Prize Winning Papers
Winner of Penn Law's 2022 Fred G. Leebron Memorial Prize for the best paper in the field of constitutional law.
Beyond Sisyphus: Some Thoughts On Electoral College Reform, Jack N. Rakove
Beyond Sisyphus: Some Thoughts On Electoral College Reform, Jack N. Rakove
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Hague Convention On Choice Of Court Agreements: A Critical Assessment, Gary Born
The Hague Convention On Choice Of Court Agreements: A Critical Assessment, Gary Born
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Past And Future Of Procedure Scholarship, James E. Pfander
The Past And Future Of Procedure Scholarship, James E. Pfander
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Turning To The States: Why Voting Rights Advocates Should Bring Voter Id Challenges To State Courts And How To Identify A Friendly Forum—Lessons From The Post-Crawford Decisions, Carolyn F. Rice
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Predicting, Up And Down: A Framework For Legal Prediction, Joseph Avery
Predicting, Up And Down: A Framework For Legal Prediction, Joseph Avery
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Collapse Of The Federal Rules System, David Marcus
The Collapse Of The Federal Rules System, David Marcus
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Masthead
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Supreme Court Arrests Regulatory Law On Climate And Sustainable Power, Steven Ferrey
Supreme Court Arrests Regulatory Law On Climate And Sustainable Power, Steven Ferrey
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Dred Scott And Asian Americans, Gabriel J. Chin
Dred Scott And Asian Americans, Gabriel J. Chin
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Democracy And Demography, Paul Schiff Berman, Neal S. Mehrotra, Kathryn C. Sadasivan
Democracy And Demography, Paul Schiff Berman, Neal S. Mehrotra, Kathryn C. Sadasivan
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Smith’S Last Stand? Free Exercise And Foster Care Exceptionalism, James G. Dwyer
Smith’S Last Stand? Free Exercise And Foster Care Exceptionalism, James G. Dwyer
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Revenge Porn In The Shadow Of The First Amendment, Roni Rosenberg, Hadar Dancig-Rosenberg
Revenge Porn In The Shadow Of The First Amendment, Roni Rosenberg, Hadar Dancig-Rosenberg
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Civil Rico Standing For Misleading Pharmaceutical Marketing In Painters Health Care Fund V. Takeda Pharmaceutical Co., Tristan Lim
Civil Rico Standing For Misleading Pharmaceutical Marketing In Painters Health Care Fund V. Takeda Pharmaceutical Co., Tristan Lim
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Denying The Violence: The Missing Constitutional Law Of Conquest, Juan F. Perea
Denying The Violence: The Missing Constitutional Law Of Conquest, Juan F. Perea
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Runaway Presidential Power Over Diplomacy, Jean Galbraith
The Runaway Presidential Power Over Diplomacy, Jean Galbraith
All Faculty Scholarship
The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. And these are just a few of many examples from recent years. The President’s assertedly exclusive …