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Articles 1 - 30 of 54
Full-Text Articles in Law
Amicus Brief In Maryland Comptroller V. Wynne, Michael S. Knoll, Ruth Mason
Amicus Brief In Maryland Comptroller V. Wynne, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
The internal consistency test reveals that Maryland applies systematically higher “county” taxes to interstate commerce than to in-state commerce.
Economic analysis of Maryland’s tax regime — including its taxes on inbound, outbound, and domestic activities — confirms what the internal consistency test suggests, namely, that the Maryland “county” tax discourages interstate commerce. Specifically, the Maryland tax regime discourages Maryland residents from earning income outside of Maryland, and it simultaneously discourages nonresidents from earning income in Maryland. Maryland alone causes this distortion; the distortion does not depend on the taxes imposed by any other state.
Petitioner’s argument that Maryland’s outbound tax …
Ineffective Assistance Of Counsel Before Powell V. Alabama: Lessons From History For The Future Of The Right To Counsel, Sara Mayeux
All Faculty Scholarship
The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason …
A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee
A Revolution At War With Itself? Preserving Employment Preferences From Weber To Ricci, Sophia Z. Lee
All Faculty Scholarship
Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to …
Catalogs, Gideon Parchomovsky, Alex Stein
Catalogs, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …
Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod
Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod
JCL Online
No abstract provided.
What Happens If Data Is Speech?, Josh Blackman
A Defense Of The Doctrine Of Preemption: Revealing The Fallacy That Federal Preemption Contributed To The Financial Crisis, Dori K. Bailey
A Defense Of The Doctrine Of Preemption: Revealing The Fallacy That Federal Preemption Contributed To The Financial Crisis, Dori K. Bailey
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Paroline, Restitution, And Transferred Scienter: Child Pornography Possessors And Restitution Based On A Commerce Clause-Derived, Aggregate Proximate Cause Theory, Adam Lamparello, Charles E. Maclean
Paroline, Restitution, And Transferred Scienter: Child Pornography Possessors And Restitution Based On A Commerce Clause-Derived, Aggregate Proximate Cause Theory, Adam Lamparello, Charles E. Maclean
JCL Online
No abstract provided.
Truthiness And The First Amendment, Ilya Shapiro, Trevor Burrus, Gabriel Lattner
Truthiness And The First Amendment, Ilya Shapiro, Trevor Burrus, Gabriel Lattner
JCL Online
No abstract provided.
Insights From Canada For American Constitutional Federalism, Stephen F. Ross
Insights From Canada For American Constitutional Federalism, Stephen F. Ross
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Alienating Aliens: Equal Protection Violations In The Structures Of State Public-Benefit Schemes, Gregory T. W. Rosenberg
Alienating Aliens: Equal Protection Violations In The Structures Of State Public-Benefit Schemes, Gregory T. W. Rosenberg
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Secret History Of American Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman
The Secret History Of American Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Observers As Participants: Letting The Public Monitor The Criminal Justice Bureaucracy, Stephanos Bibas
Observers As Participants: Letting The Public Monitor The Criminal Justice Bureaucracy, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
All Assemble: Order And Disorder In Law, Politics, And Culture, Tabatha Abu El-Haj
All Assemble: Order And Disorder In Law, Politics, And Culture, Tabatha Abu El-Haj
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Your Honor, Please Explain: Why Congress Can, And Should, Require Justices To Publish Reasons For Their Recusal Decisions, Suzanne Levy
Your Honor, Please Explain: Why Congress Can, And Should, Require Justices To Publish Reasons For Their Recusal Decisions, Suzanne Levy
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Should I Stay Or Should I Go Now: Foreign Law Implications For The Supreme Court's Recusal Problem, Christina Reichert
Should I Stay Or Should I Go Now: Foreign Law Implications For The Supreme Court's Recusal Problem, Christina Reichert
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Voting Rights Act And The Fifteenth Amendment Standard Of Review, Jeremy Amar-Dolan
The Voting Rights Act And The Fifteenth Amendment Standard Of Review, Jeremy Amar-Dolan
University of Pennsylvania Journal of Constitutional Law
One of the most successful pieces of civil rights legislation in American History, the Voting RightsAct of 1965 helped achieve a level of black enfranchisement that had seemed impossible since the ratification of the Fifteenth Amendment nearly a century earlier. Indispensable to the VRA’s success was Section 5, which turns the tables on jurisdictions deemed to be the worst offenders by creating a presumption of racial discrimination that had to be overcome by “preclearing” any change in voting practices with federal authorities. Although the VRA has withstood a number of constitutional challenges over the years, the Supreme Court recently held …
Weighing The Eighth Amendment: Finding The Balance Between Treating And Mistreating Suicidal Prisoners, Jessa Irene Degroote
Weighing The Eighth Amendment: Finding The Balance Between Treating And Mistreating Suicidal Prisoners, Jessa Irene Degroote
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Constitution And Legislative History, Victoria F. Nourse
The Constitution And Legislative History, Victoria F. Nourse
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Effectiveness Of State-Filed Amicus Briefs At The United States Supreme Court, Brandon D. Harper
The Effectiveness Of State-Filed Amicus Briefs At The United States Supreme Court, Brandon D. Harper
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Judicial Review And Non-Enforcement At The Founding, Matthew Steilen
Judicial Review And Non-Enforcement At The Founding, Matthew Steilen
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Beyond Suspect Classifications, Susannah W. Pollvogt
Beyond Suspect Classifications, Susannah W. Pollvogt
University of Pennsylvania Journal of Constitutional Law
Suspect classification analysis is dead. Or so it would seem.
As is well known, suspect classification analysis and the associated tiers of scrutiny framework are the primary doctrinal features of contemporary equal protection jurisprudence. How plaintiffs fare under these twin doctrines determines the ultimate fate of their equal protection claims. Accordingly, equal protection advocates often turn their attention to suspect classification analysis in crafting their arguments.
And yet, despite the profound impact of suspect classification analysis on contemporary equal protection jurisprudence, the doctrine sits much like an aging patriarch, exerting a level of control that far exceeds its actual efficacy. …
Revisiting The Manson Test: Social Science As A Source Of Constitutional Interpretation, Benjamin Wiener
Revisiting The Manson Test: Social Science As A Source Of Constitutional Interpretation, Benjamin Wiener
University of Pennsylvania Journal of Constitutional Law
Throughout the late 1960s and early 1970s, the Supreme Court defined the Due Process limitations on the admissibility of eyewitness identifications. The Court ultimately settled on a test in Manson v. Brathwaite. Since 1977, the Court’s test has been roundly criticized in the legal7 and social science8 literature. Despite developments in social science that have augmented our understanding of eyewitness identifications, the Supreme Court has failed to readdress the issue.
This Comment considers whether or not the United States Supreme Court should use social science evidence as a source for reinterpreting the Due Process Clause as expressed through the …
I Am A Camera: Scrutinizing The Assumption That Cameras In The Courtroom Furnish Public Value By Operating As A Proxy For The Public, Cristina Carmody Tilley
I Am A Camera: Scrutinizing The Assumption That Cameras In The Courtroom Furnish Public Value By Operating As A Proxy For The Public, Cristina Carmody Tilley
University of Pennsylvania Journal of Constitutional Law
The United States Supreme Court has held that the public has a constitutional right of access to criminal trials and other proceedings, in large part because attendance at these events furnishes a number of public values. The Court has suggested that the press operates as a proxy for the public in vindicating this open court guarantee. That is, the Court has implied that any value that results from general public attendance at trials is replicated when members of the media at-tend and report on trials using the same means of perception as other members of the public.
The concept of …
Sport As Speech, Genevieve Lakier
Sport As Speech, Genevieve Lakier
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Original Meaning Of Recess, David J. Arkush
The Original Meaning Of Recess, David J. Arkush
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Public Concern And Outrageous Speech: Testing The Inconstant Boundaries Of Iied And The First Amendment Three Years After Snyder V. Phelps, Clay Calvert
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Treaty Termination As Foreign Affairs Exceptionalism, Jean Galbraith
Treaty Termination As Foreign Affairs Exceptionalism, Jean Galbraith
All Faculty Scholarship
No abstract provided.
The First Amendment Right To Speak About The Human Genome, Barbara J. Evans
The First Amendment Right To Speak About The Human Genome, Barbara J. Evans
University of Pennsylvania Journal of Constitutional Law
There is a fairly broad consensus among bioethicists and state and federal regulators that scientific investigators’ communication of genetic test results to research participants should be subject to prior review and content-based restrictions on what the participants can be told. The recommended restrictions often include outright bans on the return of results that are scientifically uncertain, that lack a well-established clinical or reproductive significance, or that reveal risks about which little can be done given the limitations of current medical knowledge. Yet, many research participants are curious about their genomes and want to know what researchers found out about them. …
Masthead
University of Pennsylvania Journal of Constitutional Law
No abstract provided.