Law Commons^™

Marital Supremacy And The Constitution Of The Nonmarital Family, Serena Mayeri

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Despite a transformative half century of social change, marital status still matters. The marriage equality movement has drawn attention to the many benefits conferred in law by marriage at a time when the “marriage gap” between affluent and poor Americans widens and rates of nonmarital childbearing soar. This Essay explores the contested history of marital supremacy—the legal privileging of marriage—through the lens of the “illegitimacy” cases of the 1960s and 1970s. Often remembered as a triumph for nonmarital families, these decisions defined the constitutional harm of illegitimacy classifications as the unjust punishment of innocent children for the “sins” of their …

Brulotte'S Web, Herbert J. Hovenkamp

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Kimble v. Marvel Entertainment held that stare decisis required the Supreme Court to adhere to the half century old, much criticized rule in Brulotte v. Thys. Justice Douglas' Brulotte opinion concluded that license agreements requiring royalties measured by use of a patent after its expiration are unenforceable per se. The court need not inquire into market power nor anticompetitive effects, effects on innovation, and it may not accept any defense. Congress can change the rule if it wants to, but has resisted many invitations to do so.

Under Brulotte a hybrid license on patents and trade secrets requires a royalty …

Empowering Employees To Prevent Fraud In Nonprofit Organizations, John M. Bradley

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This Article examines the significant problem of fraud within nonprofit organizations and demonstrates that current anti-fraud measures do not adequately reflect the important role employees play in perpetuating or stopping fraudulent activity. Psychological and organizational behavior studies have established the importance of (1) participation and (2) peers in shaping the behavior of individuals within the organizational context. This Article builds on that research and establishes that to successfully combat fraud, organizations must integrate employees into the design, implementation, and enforcement of anti-fraud strategy and procedures. Engaged, empowered employees will be less likely to commit fraud and more likely to dissuade …

The Functions Of Family Law, Serena Mayeri

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Melissa Murray's Family Law's Doctrines provides a fascinating case study of legal parentage cases involving assisted reproductive technology, where judges applied relatively new laws to even newer circumstances never contemplated by the laws' drafters. The Uniform Parentage Act (UPA) was a modernizing statute intended to resolve legal questions generated by new societal developments: namely, the rise of nonmarital heterosexual relationships producing children, and the use of artificial insemination within heterosexual marital relationships.

In the decades after its adoption in California, the UPA confronted a brave new world. Two developments further transformed the reality of family life: assisted reproductive technologies such …

Child Well-Being In Context, Tara Grigg Garlinghouse, Scott Trowbridge

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

"Far From The Turbulent Space": Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Heather Ellis Cucolo, Michael L. Perlin

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

The Common Sense Of Contract Formation, Tess Wilkinson-Ryan, David A. Hoffman

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What parties know and think they know about contract law affects their obligations under the law and their intuitive obligations toward one another. Drawing on a series of new experimental questionnaire studies, this Article makes two contributions.First, it lays out what information and beliefs ordinary individuals have about how to form contracts with one another. We find that the colloquial understanding of contract law is almost entirely focused on formalization rather than actual assent, though the modern doctrine of contract formation takes the opposite stance. The second Part of the Article tries to get at whether this misunderstanding matters. Is …

The Moral Vigilante And Her Cousins In The Shadows, Paul H. Robinson

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By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law …

Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank

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In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that …

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

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The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …

Collateral Consequences And The Preventive State, Sandra G. Mayson

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Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should …

Inventing The Classical Constitution, Herbert J. Hovenkamp

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One recurring call over a century of American constitutional thought is for return to a "classical" understanding of American federal and state Constitutions. "Classical" does not necessarily mean "originalist" or "interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, …