Digital Commons Network^™

Net Asset Value Financing And Private Equity, Colleen Baker

University of Pennsylvania Law Review Online

No abstract provided.

Child Sacrifices: The Precarity Of Minors' Autonomy And Bodily Integrity After Dobbs, Teri D. Baxter

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Salvaging The Speaker Clause: The Constitutional Case Against Nonmember Speakers Of The House, Tanner Wadsworth, Kade Allred, Adam Reed Moore

University of Pennsylvania Journal of Constitutional Law

As the Founding generation understood the word, “Speaker” meant an elected member of the House. Yet modern representatives nominate non-House-members for the speakership—and many argue the practice is constitutional. To correct this constitutional drift, this Article closely analyzes the text of the Speaker Clause, the structure of the Constitution, and 700 years of history and tradition to show that the Constitution requires the Speaker of the House to be a member of the House. It also considers the practicalities of correcting this drift. If, as this Article argues, the Constitution bars nonmembers from the speakership, who can enforce that rule, …

Gambling In Territorial Hawaii, Robert M. Jarvis

University of Pennsylvania Asian Law Review

This article collects and discusses gambling cases decided during Hawaii’s territorial period (1898–1959). Previous commentators have overlooked these decisions, even though they provide a rich source of information about life during this distinct period of Hawaii’s history.

Freedom Of Contract And M&A Termination Fees: Peculiar Case Of South Korea Vs. United States, Joseph Cho

University of Pennsylvania Asian Law Review

This manuscript offers a comprehensive survey of the liquidated damages regimes in the Republic of Korea and the United States, specifically within the framework of corporate mergers and acquisitions. In the Republic of Korea, liquidated damages play a crucial role in pre-estimating potential damages arising from contract breaches, offering numerous benefits such as reducing the creditor’s evidentiary burden and fostering contractual compliance. Notably, the Korean Civil Code provides checks against excessive predetermined damages. In contrast, the U.S. perspective is enriched by a series of case laws, emphasizing the compensatory intent of liquidated damages. A comparative analysis reveals intriguing intersections between …

Rules For Robots: Constitutional Challenges With The Ai Bill Of Right's Principles Regulating Automated Systems, Melany Amarikwa

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Regulating The Unregulated: The Beginning Of The End Of A Laissez-Faire Era Of The Crypto "Wild West", Bo Hyun Kim

University of Pennsylvania Asian Law Review

The crypto market has been left largely unregulated on a global scale for over a decade. 1 Recently, multiple jurisdictions are aligning efforts to tame the increasingly volatile crypto “Wild West” as evidenced by the influx of forthcoming legislations, consultations between operators and regulators, and regulatory crackdowns. 2 A cross-comparative analysis of the regulatory framework in the United States, the European Union, and Korea indicates that the proposed scopes of legislations cover an expansive breadth of assets. However, there are further needs for supplementary regulations following the enactment of the newly proposed regulations to close certain critical gaps that remain …

An Absent "No" Is Not A "Yes": A Legal Analysis Of Consent In Japan's Amended Penal Code And International Rape Legislation Standards, Larissa Truchan

University of Pennsylvania Asian Law Review

On June 16, 2023, the Japanese government passed a law to partially amend the Penal Code that explicitly outlines eight scenarios prosecutable as the crime of rape that make “it difficult for the victim to form, express, or fulfill the intention not to consent.” This article will reveal that the June 2023 amendment does not criminalize all “non-consensual sexual intercourse,” as its text suggests, but is premised on defining coercive circumstances that may interfere with a victim’s presumed duty to demonstrate their “intention not to consent.” As a result, Japanese courts will continue to possess the subjective power to determine …

The Roberts Court Revolution, Institutional Legitimacy, And The Promise (And Peril) Of Constitutional Statesmanship, Thomas Donnelly

University of Pennsylvania Journal of Constitutional Law

Our nation is in the middle of a constitutional revolution. While many periods of constitutional transformation have arisen out of large-scale political realignments, the Roberts Court Revolution is a product of our nation’s long (and unusual) political interregnum. Even as neither political party has managed to secure enough support to reconstruct our nation’s politics, the Roberts Court—with its young and ambitious conservative majority—has already moved quickly to reconsider key pillars of the existing constitutional regime. This represents a challenging moment for the Roberts Court and its institutional legitimacy. To counteract this danger, the Justices might return to an old idea—one …

The Brilliance In Slaughterhouse: A Judicially Restrained And Original Understanding Of "Privileges Or Immunities", Lawrence Lessig

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

"The Key-Stone To The Arch": Unlocking Section 13'S Original Meaning, Kevin Bendesky

University of Pennsylvania Journal of Constitutional Law

The Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This, says the court, is because Pennsylvania history does not provide evidence that the Commonwealth’s prohibition differs from the federal one. And without that historical basis, the court believes it is bound by federal precedent. This is mistaken.

History reveals that Pennsylvanians had a distinct, original …

Lavatories Of Democaracy: Recognizing A Right To Public Toilets Through International Human Rights And State Constitutitonal Law, Rick Weinmeyer

University of Pennsylvania Journal of Constitutional Law

The United States is a public toilet nightmare. Truly public toilets are a rarity, while the restrooms provided by private businesses are inconsistently available via “customer only” policies and the discriminatory actions of owners and their employees. Some jurisdictions have made tepid attempts at providing more bathrooms, but all have failed. The result: an accumulation of entirely preventable public health harms, including outbreaks of infectious disease, illness, and dignitary harms.

This Article is the first to provide a comprehensive review of U.S. toilet law—the laws and policies that determine where bathrooms are provided and who has access to them—and diagnose …

A Sword And A Shield: An Antidiscrimination Analysis Of Academic Freedom Protections, Apratim Vidyarthi

University of Pennsylvania Journal of Constitutional Law

Academic freedom is an essential principle undergirding education in the United States. Its purpose is to further the freedom of thought and inquiry in the academic profession by advancing knowledge and the search for truth. Academic freedom goes back more than a century, and is now intertwined with First Amendment doctrine. Yet today’s academic freedom doctrine suffers from serious problems, some of which perpetuate discrimination in the classroom and systemically in educational institutions.

The definition of academic freedom in theory is misaligned with that in case law. Courts have done little to analyze what protections academic freedom provides, and case …

Breaking Down Silos: The Selection Of Corporate Headquarters' Locations By Businesses, Ronni Mok

University of Pennsylvania Journal of Business Law

No abstract provided.

Women In Power: Clearing Pathways For Women To Rise To Positions Of Organizational Leadership, Cindy A. Schipani, Terry Morehead Dworkin, Bettina C.K. Binder

University of Pennsylvania Journal of Business Law

In 1973, Eleanor Sheldon became the first woman on the board of the organization that became Citicorp. A few years later she was also on the boards of Mobil Corporation and H.J. Heinz Company. She saw herself “as a beginning, not a token.” Despite this promising beginning, almost fifty years later, women are still often treated as tokens on a majority of boards. There have been several initiatives implemented in the last few years to help move beyond tokenism, however. Having women on boards means not only that more women are moving into positions of influence, but also, improved performance …

Missing Doctrines In Fifth Circuit Caselaw: Injury And Causation In Environmental Litigators' Standing, Karen Joo

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Implicit Bias, Structural Bias, And Implications For Law And Policy, Goodwin Liu

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Intraparty Conflict And The Separation Of Powers, Gregory Elinson

University of Pennsylvania Journal of Constitutional Law

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that, contrary to the Madisonian vision, competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty …

In The Room Where The Constitution Happens, Lorianne Updike Toler

University of Pennsylvania Journal of Constitutional Law

Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process.

In making this comparative case—one which has important implications for modern constitution-writing— scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots.

This study, the first monogram on New Hampshire’s five constitution-writing processes …

We're All Born Naked And The Rest Is Speech: Gender Expression And The First Amendment, Charlie Ferguson

University of Pennsylvania Law Review

As the antitransgender moral panic reaches a fever pitch, transgender civil rights are becoming increasingly fragile. A potential legal defense to these attacks lies within the First Amendment: if gender expression, or the way humans communicate their gender identity, is understood to be expressive conduct, it may receive protections under the Free Speech Clause. Using the framework of Spence v. Washington, this Comment argues that gender expression is a form of speech deserving of First Amendment protection. First, a speaker can use gender expression to share information about their identity. And second, an audience is likely to understand the speaker’s …

Private Enforcement In The States, Diego A. Zambrano, Neel Guha, Austin Peters, Jeffrey Xia

University of Pennsylvania Law Review

Scholarship on U.S. litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the U.S. often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance, and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress has deliberately empowered private plaintiffs instead of, or in addition to, government agencies. …

Systemic Failure To Appear In Court, Lindsay Graef, Sandra G. Mayson, Aurelie Ouss, Megan Stevenson

University of Pennsylvania Law Review

This Article aims to reorient the conversation around “failure-to-appear” (FTA) in criminal court. Recent policy and scholarship have addressed FTA mostly as a problem of criminal defendants in connection with questions about how bail systems should operate. But ten years of data from Philadelphia reveal a striking fact: it is not defendants who most frequently fail to appear but rather the other parties necessary for a criminal proceeding—witnesses and lawyers. Between 2010 and 2020, an essential witness or private attorney failed to appear for at least one hearing in 53% of all cases, compared to a 19% FTA rate for …

T.L.O. Goes Home: Remote Learning And The Future Of School Search Doctrine After Ogletree V. Cleveland State University, William Mcdonald

University of Pennsylvania Law Review

The Supreme Court has not addressed the relationship between searches by school administrators and a student’s Fourth Amendment rights in over two decades. Since then, remote learning and other advances in educational technology have changed the meaning of the “school environment.” In a recent federal district court case in Ohio, the court held that a public university’s remote examination policy, which required a student to conduct a scan of her own bedroom before beginning a remote exam, violated the student’s Fourth Amendment rights. This Comment argues that the previous school search Supreme Court cases offer poor tests for this new …

Equal Protection Against Policing, Evan Bernick

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Vietnam's "Entire People Ownership" Of Land: Theory And Practice, Phan Trung Hien, Hugh D. Spitzer

University of Pennsylvania Asian Law Review

The Constitution of Vietnam declares that “[t]he Socialist Republic of Vietnam State is a socialist rule of law State of the People, by the People, and for the People.” It also states that land is “under ownership by the entire people represented and uniformly managed by the State.” This means the entire people of Vietnam are collective landowners and the Vietnam State is their “representative.” Given that, how might the public execute its real ownership—rather than treating “people’s ownership” as just a slogan? This article analyzes the gaps in theory and practice in Vietnam, a country with a robust market …

Deconstructing The Decolonizing Plot Of The Tydings-Mcduffie Act: A Review Of America's International Relations In Asia In The Early Twentieth Century, Alvin Hoi-Chun Hung

University of Pennsylvania Asian Law Review

The Tydings-McDuffie Act was enacted in 1934 to establish a designated path for the Philippines, then an American colony, to become independent after a ten-year transition period. This article looks into the macro-environment of the Asia-Pacific region in the 1930s regarding the impact of the Soviet Union, the Republic of China, the Shōwa empire of Japan, and its puppet state “Manchukuo” in China, embedded within the innumerable socio-political and economic conflicts between the U.S. and the Philippines. The Tydings-McDuffie Act is critically examined to assess its underlying decolonizing plot of the political and economic relationship between the U.S. and the …

Prevention Of Judicial Corruption In Bangladesh: Cutting The Gordian Knot By Ensuring Accountability, S M Solaiman

University of Pennsylvania Asian Law Review

Judicial corruption has eaten away at good governance in Bangladesh for decades, hindering its ambition to attain the United Nations Sustainable Development Goals (“SDGs”) and taking advantage of the absence of any effective accountability mechanism. The magnitude of corruption is so intense that the successive Chief Justices, Attorneys-General, local, and international anti-corruption organizations, and even the Supreme Court of Bangladesh (“SCB”) itself in a judgment have forthrightly admitted the prevalence of judicial corruption. The malpractice does profoundly undermine the rule of law and infringe on the people’s right to fair trial. Corruption is on the rise in the country as …

Intellectual Property Legislation Holism In China, Taorui Guan

University of Pennsylvania Asian Law Review

No abstract provided.

The Emerging Commercial Space Age: Legal And Policy Implications, Gerald L. Adams Iii, Christopher S. Yoo

Journal of Law & Innovation

No abstract provided.

Space Law As Twenty-First Century International Law, Melissa J. Durkee

Journal of Law & Innovation

Space law’s current moment reflects international law’s current moment. That is, lawmaking processes aimed at updating international space law for the commercial space age reveal three larger themes about international lawmaking in the twenty-first century. These themes are: (a) evolutive lawmaking efforts by states; (b) the parallel development of laws in different fora by different actors; and (c) interpretive entrepreneurship by private actors. The themes are interrelated. They offer one story—but not the only possible story—about how international law develops when multilateral cooperation is out of reach. Together, the themes forecast a more pluralist international legal future, demanding new forms …