Law Commons^™

Antitrust Interoperability Remedies, Herbert J. Hovenkamp

All Faculty Scholarship

Compelled interoperability can be a useful remedy for dominant firms, including large digital platforms, who violate the antitrust laws. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.

Given the wide variety of structures and business models for big tech, “interoperability” must be defined broadly. It can realistically include everything from “dynamic” interoperability that requires real time sharing of data and operations, to “static” interoperability which requires portability but not necessarily real time interactions. Also included are the compelled sharing of intellectual property or …

The Supreme Court Review Act: Fast-Tracking The Interbranch Dialogue And Destabilizing The Filibuster, Aaron-Andrew P. Bruhl

JCL Online

This Essay presents an analysis of the Supreme Court Review Act, a bill that was recently introduced in Congress. The Act would create a streamlined legislative process for bills responding to new Supreme Court decisions that interpret federal statutes or restrict constitutional rights. By facilitating legislative responses to controversial cases, the Act would promote the “dialogue” that commentators and the courts themselves have used as a model for interbranch relations. The Essay describes how the proposed Supreme Court Review Act would work, discusses some of its benefits, addresses its constitutionality, and raises some questions about its implementation and effects.

Duty To Contract: Free Labor Ideology And Contractual Freedom In The Postbellum South, 1865-1867, Janice Y. Jiang

JCL Online

This essay explores the ways in which the right to contract interacted with the free labor ideology at this pivotal moment in American legal history. It examines this relationship by looking at the perspectives of four groups of historical actors: grassroots actors such as anti-slavery activists and ordinary laborers, legislatures of the former Confederate states, agents of the Freedmen’s Bureau, and federal lawmakers in the 39th Congress. This essay argues that, although Congress legislated some of the key grassroots demands on a system of free labor and the right to contract through constitutional amendments and federal statutes, enforcement by the …

Compelled Climate Speech, Michael Zschokke

JCL Online

Climate change threatens nearly every corner of human life and may structurally change the global financial system. Investors increasingly demand information about how climate change may impact their investments. In response, the U.S. Securities and Exchange Commission issued a proposed rule that would require registered companies to disclose certain climate-related information in their registration statements and annual reports. But some critics argue that this proposed rule is unconstitutional under the Supreme Court’s current doctrine on compelled and commercial speech.

This doctrine misunderstands the First Amendment. When corporations engage in speech that possesses commercial and non-commercial characteristics, the Court’s binary, categorical …

Vol. 19 Masthead

University of Pennsylvania Asian Law Review

No abstract provided.

We Have The Right To Play, Duane Rudolph

University of Pennsylvania Journal of Law and Social Change

This article evaluates landmark cases spanning almost seven decades from the Supreme Court of the United States dealing with sexual orientation and gender identity. The cases are as follows: (1) One, Inc. v. Olesen (1958); (2) Boutilier v. Immigration and Naturalization Service (1967); (3) Baker v. Nelson (1972); (4) Rowland v. Mad River Local School District (1985); (5) Bowers v. Hardwick (1986); (6) Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995); (7) Romer v. Evans (1996); (8) Boy Scouts of America v. Dale (1996); (9) Lawrence v. Texas (2003); (10) United States v. Windsor (2013); (11) Hollingsworth …

A Simple Unifying Framework For Categorizing Disparate Risk Transactions: Securities Investments, Insurance, Gambling, And Derivative Contracts, W. C. Bunting

University of Pennsylvania Journal of Business Law

No abstract provided.

A Weighty Question: Substantial Burden And Free Exercise, Jess Zalph

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Babies And Individual Income Tax: How To Boost China's Fertility, Alex Ang Gao

University of Pennsylvania Asian Law Review

Winner of THE 2023 PAMELA DALEY PRIZE, to the graduating student writing the best paper in the field of tax law.

Out Of Sight, Out Of Mind: Removing Unhoused People By Proxy Of Mental Illness, Carl Wu

University of Pennsylvania Journal of Law and Social Change

Across the United States, various legal mechanisms have subjected unhoused people to cruel practices that seek to remove them from public view. These practices have included laws that criminalize sleeping in public. Following a decades-long series of Supreme Court decisions, the Ninth Circuit recently struck down these “anti-homeless” laws under the Eighth Amendment’s ban on Cruel and Unusual Punishment and held that one’s status and unavoidable conduct resulting from that status could not be criminalized. Since 2022, a second wave of removal has emerged. California and New York City have both enacted initiatives, shrouded under the guise of a “compassionate” …

Masthead

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Convertible Equity In The Japanese Startup Ecosystem, A. Reid Monroe-Sheridan

University of Pennsylvania Asian Law Review

No abstract provided.

Anti-Bds Laws And The Politics Of Political Boycotts, Osama Alkhawaja

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Campbell V. Reisch: The Dangers Of The Campaign Loophole In Social-Media-Blocking Litigation, Clare R. Norins, Mark L. Bailey

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Common Law Constitutionalism And The Protean First Amendment, Ronald J. Krotoszynski Jr.

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Exigencies, Not Exceptions: How To Return Warrant Exceptions To Their Roots, Michael Gentithes

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Second Middle Passage: How Anti-Abortion Laws Perpetuate Structures Of Slavery And The Case For Reproductive Justice, Halley Townsend

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Voting Rights In Alabama, 2006 To 2022, Deuel Ross

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Can States Restrict The Constitutional Right To Bear Arms By Following The Design Of Texas Bill 8?, Amin R. Yacoub, Becky Briggs

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Fugitives From Slavery And The Lost History Of The Fourth Amendment, Michael J. Zydney Mannheimer

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Appellate Waiver In Pennsylvania And Its Effect On Litigants’ Rights To Appeal, Sarah Reeves

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

Racial Justice: The Failure Of The Warren Court's Criminal Procedure, George C. Thomas Iii

University of Pennsylvania Journal of Constitutional Law

No abstract provided.

From Trauma To Transformation: Trauma-Informed Pedagogy In Law School, Angela P. Harris, Monika B. Kashyap

University of Pennsylvania Journal of Law and Social Change

In this essay, we seek to expand the meaning of “trauma” by aligning trauma-informed pedagogy with principles of disability justice and progressive critiques of legal education. We argue first that the existence of trauma is not a sign of individual brokenness or deficiency, but rather should be taken as a warning about broken or deficient social institutions or practices. This approach to trauma recognizes the potential of those who experience trauma—whose bodies and minds bear the marks of both subordination and resilience—to contribute to institutional and structural transformation. We use as an example the trauma too often experienced in law …

The Hazy Employment Protections For Medical Marijuana Users In The Pennsylvania Medical Marijuana Act, Kathryn M. Capizzi

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

Anti-Carceral Human Rights Advocacy, Chi Adanna Mgbako, Nate Johnson, Vivienne Bang Brown, Megan Cheah, Kimya Zahedi

University of Pennsylvania Journal of Law and Social Change

The theory of carceral abolition entered the mainstream during the 2020 global protests for Black lives. Abolition calls for divestment from carceral institutions like police and prisons in favor of the expansion of social and economic programs that ensure public safety and nurture community well-being. Although there is little scholarship explicitly linking abolition to international human rights, there are scholars and advocates who implicitly echo abolitionist theories by critiquing the international human rights regime's overreliance on criminal law. These critics argue that relying on carceral institutions to address impunity for human rights abuses and promote gender justice does little to …

Sanctions, Nukes And Juche: Franchising In North Korea, Robert W. Emerson, Jason R. Parnell

University of Pennsylvania Journal of International Law

No abstract provided.

Getting Involved In The Technology Sector: The Role Of Sovereign Wealth Funds And Their Challenges To International Economic Governance, Mengjing Kong

University of Pennsylvania Journal of International Law

No abstract provided.

Climate Neutrality And Sustainability In International Trade, Rafael Leal-Arcas, Luis Ulloa Martinez, Victory Abang, Krishma Kapur, Saffron Greenwood, Konstantinos Chatzopoulos, Archana Nair, Lisa Schoettmer

University of Pennsylvania Journal of International Law

No abstract provided.

Legal Gender Recognition In Nepal And Comparative Context, Holning Lau, Mara Malagodi

University of Pennsylvania Journal of International Law

The Supreme Court of Nepal was a groundbreaker when it ruled in Pant v. Nepal (2007) that people have the right to change their gender on identity documents based on “self-feelings” and “self-determination” as opposed to medical or other criteria. At the time, no other national apex court or national government had so clearly prioritized self-determination as the guiding principle for resolving matters concerning gender identity. The decision in Pant, however, focused on people of “third gender,” in other words people who identify as neither male nor female. Now, the Supreme Court of Nepal is considering the case of a …

Economic Inequality In The Age Of Human Rights, Daniel Benoliel

University of Pennsylvania Journal of International Law

The monstrous pendulum of inequality in the twenty-first century swings sideways amid welfare economics and egalitarianism. Horizontal inequalities embodied by pro-poor policy on grounds such as gender, race, and disability, have long been core international human rights concerns. Yet, gross inequalities in economic status, nationally and globally, are still poorly conceptualized by legal scholars, policymakers, and practitioners.

In search of a policy lever, this article argues that as far as economic theory goes, neither theoretical nor empirical economic research adequately correlates economic inequalities and growth. That is, beyond horizontal inequalities concerning the extreme poor. As economic research remains inept in …