Families Belong Together: The Path To Family Sanctity In Public Housing, 2020 Northwestern Pritzker School of Law
Families Belong Together: The Path To Family Sanctity In Public Housing, Mckayla Stokes
Northwestern Journal of Law & Social Policy
In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union …
The Pursuit Of Comprehensive Education Funding Reform Via Litigation, 2020 Northwestern Pritzker School of Law
The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs
Northwestern Journal of Law & Social Policy
No abstract provided.
A Class Action Lawsuit For The Right To A Minimum Education In Detroit, 2020 Northwestern Pritzker School of Law
A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips
Northwestern Journal of Law & Social Policy
No abstract provided.
Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?, 2020 Northwestern Pritzker School of Law
Panel Discussion: The Right To Education: With Liberty, Justice, And Education For All?
Northwestern Journal of Law & Social Policy
No abstract provided.
Table Of Contents, 2020 Seattle University School of Law
Table Of Contents, Seattle University Law Review
Seattle University Law Review
Table of Contents
Rejoining Treaties, 2020 University of Pennsylvania Carey Law School
Rejoining Treaties, Jean Galbraith
All Faculty Scholarship
Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal is consistent with international law. This Article considers a further question that to date is deeply underexplored. This is: does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from a treaty? I argue that the answer to this question is yes, except in certain limited circumstances. This answer …
Management-Based Regulation, 2020 University of Pennsylvania Law School
Management-Based Regulation, Cary Coglianese, Shana M. Starobin
All Faculty Scholarship
Environmental regulators have embraced management-based regulation as a flexible instrument for addressing a range of important problems often poorly addressed by other types of regulations. Under management-based regulation, regulated firms must engage in management-related activities oriented toward addressing targeted problems—such as planning and analysis to mitigate risk and the implementation of internal management systems geared towards continuous improvement. In contrast with more restrictive forms of regulation which can impose one-size-fits-all solutions, management-based regulation offers firms greater operational choice about how to solve regulatory problems, leveraging firms’ internal informational advantage to innovate and search for alternative measures to achieve the intended …
The Reach Of The Realm, 2020 University of Pennsylvania Carey Law School
The Reach Of The Realm, Kimberly Kessler Ferzan
All Faculty Scholarship
In The Realm of Criminal Law, Antony Duff argues that the criminal law’s realm is bounded by territory. This is because a polity decides what it cares about in crafting its civic home, and it extends its rules and hospitality to guests (non-citizens). I question whether the most normatively attractive conception of a Duffian polity would be bounded by territory, or whether it would exercise far more extensive jurisdiction over its citizens wherever in the world they may be (active personality) and over harm to its citizens/interests wherever in the world the attacks occur (passive personality).
Losing The Right To Assert You've Been Wronged: A Study In Conceptual Chaos?, 2020 University of Pennsylvania Carey Law School
Losing The Right To Assert You've Been Wronged: A Study In Conceptual Chaos?, Kimberly Kessler Ferzan
All Faculty Scholarship
Doctrinally, both consent and estoppel seem to lack a conceptual core. If consent is the exercise of a normative power predicated on our autonomy interests, then sometimes what we call “consent” is not really consent. And if estoppel is about barring/stopping/hindering one’s ability to make a claim, but not about changing the underlying rights and duties themselves, then sometimes what courts deem to be estoppel is not really estoppel. Instead, consent has alternative normative groundings, and estoppel seems to be employed as the term by which courts can simply reach what they deem to be the fair or equitable result. …
The Concept Of Criminal Law, 2020 University of Pennsylvania Carey Law School
The Concept Of Criminal Law, Sandra G. Mayson
All Faculty Scholarship
What distinguishes “criminal law” from all other law? This question should be central to both criminal law theory and criminal justice reform. Clarity about the distinctive feature(s) of criminal law is especially important in the current moment, as the nation awakens to the damage that the carceral state has wrought and reformers debate the value and the future of criminal law institutions. Foundational though it is, however, the question has received limited attention. There is no clear consensus among contemporary scholars or reformers about what makes the criminal law unique.
This Essay argues that Antony Duff’s The Realm of Criminal …
Mitigations: The Forgotten Side Of The Proportionality Principle, 2020 University of Pennsylvania Carey Law School
Mitigations: The Forgotten Side Of The Proportionality Principle, Paul H. Robinson
All Faculty Scholarship
In the first change to the Model Penal Code since its promulgation in 1962, the American Law Institute in 2017 set blameworthiness proportionality as the dominant distributive principle for criminal punishment. Empirical studies suggest that this is in fact the principle that ordinary people use in assessing proper punishment. Its adoption as the governing distributive principle makes good sense because it promotes not only the classic desert retributivism of moral philosophers but also crime-control utilitarianism, by enhancing the criminal law’s moral credibility with the community and thereby promoting deference, compliance, acquiescence, and internalization of its norms, rather than suffering the …
Divided By The Sermon On The Mount, 2020 University of Pennsylvania Carey Law School
Divided By The Sermon On The Mount, David A. Skeel Jr.
All Faculty Scholarship
This Essay, written for a festschrift for Bob Cochran, argues that the much-discussed friction between evangelical supporters of President Trump and evangelical critics is a symptom of a much deeper theological divide over the Sermon on the Mount, where Jesus told his disciples to turn the other cheek when struck, love their neighbor as themselves, and pray that their debts will be forgiven as they forgive their debtors. Divergent interpretations of these teachings have given rise to competing evangelical visions of justice. One side of today’s divide—the religious right—can be traced directly back to the fundamentalist critics of the early …
Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, 2020 University of Pennsylvania Carey Law School
Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels—nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of …
The Post-Chicago Antitrust Revolution: A Retrospective, 2020 University of Pennsylvania Law School
The Post-Chicago Antitrust Revolution: A Retrospective, Christopher S. Yoo
All Faculty Scholarship
A symposium examining the contributions of the post-Chicago School provides an appropriate opportunity to offer some thoughts on both the past and the future of antitrust. This afterword reviews the excellent papers with an eye toward appreciating the contributions and limitations of both the Chicago School, in terms of promoting the consumer welfare standard and embracing price theory as the preferred mode of economic analysis, and the post-Chicago School, with its emphasis on game theory and firm-level strategic conduct. It then explores two emerging trends, specifically neo-Brandeisian advocacy for abandoning consumer welfare as the sole goal of antitrust and the …
Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, 2020 University of Pittsburgh School of Law
Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson
Articles
The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.
Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns …
Racial Profiling: Past, Present, And Future, 2020 University of Pittsburgh School of Law
Racial Profiling: Past, Present, And Future, David A. Harris
Articles
It has been more than two decades since the introduction of the first bill in Congress that addressed racial profiling in 1997. Between then and now, Congress never passed legislation on the topic, but more than half the states passed laws and many police departments put anti-profiling policies in place to combat it. The research and data on racial profiling has grown markedly over the last twenty-plus years. We know that the practice is real (contrary to many denials), and the data reveal racial profiling’s shortcomings and great social costs. Nevertheless, racial profiling persists. While it took root most prominently …
Copyright As Legal Process: The Transformation Of American Copyright Law, 2020 University of Pennsylvania Carey Law School
Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh
All Faculty Scholarship
American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law—focusing on horizontal rights, privileges and private liability—copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. In the Legal Process …
Conclusion: Law As Scapegoat, 2020 University of Pennsylvania Carey Law School
Conclusion: Law As Scapegoat, Cary Coglianese
All Faculty Scholarship
Populist nationalist movements have been on the rise around the world in recent years. These movements have tapped into, and fueled, a deep anger among many members of the public. Especially in the face of stagnant or declining economic prospects—as well as expanding inequality—much anger has been directed at minorities and migrants. Politicians with authoritarian tendencies have sought to leverage such public anger by reinforcing tendencies to scapegoat others for their society’s problems. In this paper, I show that laws and regulations—like migrants—can be framed as “the other” too and made into scapegoats. With reference to developments in Brazil, the …
Illuminating Regulatory Guidance, 2020 University of Pennsylvania Law School
Illuminating Regulatory Guidance, Cary Coglianese
All Faculty Scholarship
Administrative agencies issue many guidance documents each year in an effort to provide clarity and direction to the public about important programs, policies, and rules. But these guidance documents are only helpful to the public if they can be readily found by those who they will benefit. Unfortunately, too many agency guidance documents are inaccessible, reaching the point where some observers even worry that guidance has become a form of regulatory “dark matter.” This article identifies a series of measures for agencies to take to bring their guidance documents better into the light. It begins by explaining why, unlike the …
Dismantling “Dilemmas Of Difference” In The Workplace, 2020 University of Pennsylvania Carey Law School
Dismantling “Dilemmas Of Difference” In The Workplace, Rangita De Silva De Alwis, Sarah Heberlig, Lindsay Holcomb
All Faculty Scholarship
Over the course of six months, the University of Pennsylvania Carey Law School’s class “Women, Law, and Leadership” interviewed 55 women between the ages of 25 and 85, all leaders in their respective fields. Nearly half of the women interviewed were women of color, and 10 of the women lived and worked in countries other than the U.S., spanning across Europe, Africa, and Southeast Asia. Threading together the common themes touched upon in these conversations, we gleaned a number of novel insights, distinguishing the leadership trajectories pursued by women who have risen to the heights of their professions. Through thousands …