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Articles 1 - 30 of 55
Full-Text Articles in Constitutional Law
Discrimination As Disruption: Addressing Hostile Environments Without Violating The Constitution, Cara Mcclellan
Discrimination As Disruption: Addressing Hostile Environments Without Violating The Constitution, Cara Mcclellan
All Faculty Scholarship
In early March 2015, a video surfaced showing members of the Sigma Alpha Epsilon (SAE) fraternity at the University of Oklahoma chanting: “There will never be a nigger at SAE . . . you can hang him from a tree, but he’ll never sign with me.” Following the wide circulation of this video, the university’s president expelled two students leading the chants in the video for creating a hostile racial environment on campus. Legal commentators criticized this disciplinary action, arguing that it violated the First Amendment and principles of academic freedom. On the other hand, a review of Title VI …
Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri
Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri
All Faculty Scholarship
In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history …
Scott V. Harris And The Future Of Summary Judgment, Tobias Barrington Wolff
Scott V. Harris And The Future Of Summary Judgment, Tobias Barrington Wolff
All Faculty Scholarship
The Supreme Court’s decision in Scott v. Harris has quickly become a staple in many Civil Procedure courses, and small wonder. The cinematic high-speed car chase complete with dash-cam video and the Court’s controversial treatment of that video evidence seem tailor-made for classroom discussion. As is often true with instant classics, however, splashy first impressions can mask a more complex state of affairs. At the heart of Scott v. Harris lies the potential for a radical doctrinal reformation: a shift in the core summary judgment standard undertaken to justify a massive expansion of interlocutory appellate jurisdiction in qualified immunity cases. …
Human Rights Treaties In And Beyond The Senate: The Spirit Of Senator Proxmire, Jean Galbraith
Human Rights Treaties In And Beyond The Senate: The Spirit Of Senator Proxmire, Jean Galbraith
All Faculty Scholarship
In 1995, Louis Henkin wrote a famous piece in which he suggested that the process of human rights treaty ratification was haunted by “the ghost of Senator Bricker” – the isolationist Senator who in the 1950s had waged a fierce assault on the treaty power, especially with regard to human rights treaties. Since that time, Senator Bricker’s ghost has proved even more real. Professor Henkin’s concern was with how the United States ratified human rights treaties, and specifically with the packet of reservations, declarations, and understandings (RUDs) attached by the Senate in giving its advice and consent. Today, the question …
Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp
Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp
All Faculty Scholarship
This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.
One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California growers …
Wynne: It's Not About Double Taxation, Michael S. Knoll, Ruth Mason
Wynne: It's Not About Double Taxation, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
This Article discusses Wynne v. Comptroller, a dormant Commerce Clause case against Maryland pending before the Supreme Court. We use economic analysis to rebut Maryland’s claim that its tax regime does not discriminate against interstate commerce. We also argue that the parties’ framing of the central issue in the case as whether the Constitution requires states to relieve double taxation draws focus away from the discrimination question, and therefore could undermine the Wynnes’ case and lead to unjustified narrowing of the dormant Commerce Clause. We also show how our approach to tax discrimination resolves many of the issues that …
Epilogue: The New Deal At Bay, Herbert J. Hovenkamp
Epilogue: The New Deal At Bay, Herbert J. Hovenkamp
All Faculty Scholarship
The Opening of American Law examines changes in American legal thought that began during Reconstruction and the Gilded Age, and extending through the Kennedy/Johnson eras. During this period American judges and legal writers embraced various conceptions of legal "science," although they differed about what that science entailed. Beginning in the Gilded Age, the principal sources were Darwinism in the biological and social sciences, marginalism in economics and psychology, and legal historicism. The impact on judicial, legislative, and later administrative law making is difficult to exaggerate. Among the changes were vastly greater use of behavioral or deterrence based theories of legal …
The Enforcement Power In Crisis, William D. Araiza
Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Case For Same-Sex Marriage, Adam Lamparello
Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Case For Same-Sex Marriage, Adam Lamparello
JCL Online
No abstract provided.
Filling The Federal Appellate Court Vacancies, Carl Tobias
Filling The Federal Appellate Court Vacancies, Carl Tobias
JCL Online
No abstract provided.
The Voting Rights Act, Questions Of Deference & Legislative Facts In A Digital Age, Allison Orr Larsen
The Voting Rights Act, Questions Of Deference & Legislative Facts In A Digital Age, Allison Orr Larsen
JCL Online
No abstract provided.
Dystopian Constitutionalism, Thomas P. Crocker
Dystopian Constitutionalism, Thomas P. Crocker
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Second Way: A Comment On Hawkins And A Cautionary Note, Richard Sander
The Second Way: A Comment On Hawkins And A Cautionary Note, Richard Sander
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Skeletal Norms, Garrick B. Pursley
Skeletal Norms, Garrick B. Pursley
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Redefining Non-Article Iii Adjudicatory Authority Post-Stern V. Marshall, Hyungjoo Han
Redefining Non-Article Iii Adjudicatory Authority Post-Stern V. Marshall, Hyungjoo Han
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Tests For Harm In Criminal Cases: A Fix For Blurred Lines, Anne Bowen Poulin
Tests For Harm In Criminal Cases: A Fix For Blurred Lines, Anne Bowen Poulin
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Disclosing Bribes In Disguise: Campaign Contributions As Implicit Bribery And Enforcing Violations Impartially (Winner Of American Constitution Society's National Student Writing Competition), Brian F. Jordan
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Man, Morality, And The United States Constitution, Daniel Lambright
Man, Morality, And The United States Constitution, Daniel Lambright
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
"The Right Of Trial By Jury Shall Be Preserved": Limiting The Appealability Of Summary Judgment Orders Denying Qualified Immunity, Arielle Herzberg
"The Right Of Trial By Jury Shall Be Preserved": Limiting The Appealability Of Summary Judgment Orders Denying Qualified Immunity, Arielle Herzberg
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Hair’S The Thing: Trait Discrimination And Forced Performance Of Race Through Racially Conscious Public School Hairstyle Prohibitions, Anna-Lisa F. Macon
Hair’S The Thing: Trait Discrimination And Forced Performance Of Race Through Racially Conscious Public School Hairstyle Prohibitions, Anna-Lisa F. Macon
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Emerging Use Of A Balancing Approach In Casey'S Undue Burden Analysis, Karen A. Jordan
The Emerging Use Of A Balancing Approach In Casey'S Undue Burden Analysis, Karen A. Jordan
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
May It Please The Court: Federal Courts And School Desegregation Post-Parents Involved, George B. Daniels, Rachel Pereira
May It Please The Court: Federal Courts And School Desegregation Post-Parents Involved, George B. Daniels, Rachel Pereira
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Tort, Speech, And The Dubious Alchemy Of State Action, Cristina Carmody Tilley
Tort, Speech, And The Dubious Alchemy Of State Action, Cristina Carmody Tilley
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Reverse Nullification And Executive Discretion, Michael T. Morley
Reverse Nullification And Executive Discretion, Michael T. Morley
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Feeble In Fact: How Underenforcement, Deference, And Independence Shape The Supreme Court’S Affirmative Action Doctrine, Zachary C. Ewing
Feeble In Fact: How Underenforcement, Deference, And Independence Shape The Supreme Court’S Affirmative Action Doctrine, Zachary C. Ewing
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Mismatched Or Counted Out? What’S Missing From Mismatch Theory And Why It Matters, Stacy L. Hawkins
Mismatched Or Counted Out? What’S Missing From Mismatch Theory And Why It Matters, Stacy L. Hawkins
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Parsing Marriage Penalties: The Irrationality Of Tax And Government Benefit Marriage Penalty Jurisprudence, Victoria Barry
Parsing Marriage Penalties: The Irrationality Of Tax And Government Benefit Marriage Penalty Jurisprudence, Victoria Barry
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Converging Systems: How Changes In Fact And Law Require A Reassessment Of Suppression In Immigration Proceedings, Elizabeth L. Young
Converging Systems: How Changes In Fact And Law Require A Reassessment Of Suppression In Immigration Proceedings, Elizabeth L. Young
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Masthead
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Judgment Fund: America's Deepest Pocket & Its Susceptibility To Executive Misuse, Paul F. Figley
The Judgment Fund: America's Deepest Pocket & Its Susceptibility To Executive Misuse, Paul F. Figley
University of Pennsylvania Journal of Constitutional Law
No abstract provided.