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Articles 1 - 30 of 14607
Full-Text Articles in Law
First Amendment And Consumer Advertisement, S. Kelvin Fang
First Amendment And Consumer Advertisement, S. Kelvin Fang
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Brilliance In Slaughterhouse: A Judicially Restrained And Original Understanding Of "Privileges Or Immunities", Lawrence Lessig
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.
Immigration In The Shadow Of Death, Eunice Lee
Immigration In The Shadow Of Death, Eunice Lee
University of Pennsylvania Journal of Constitutional Law
In this piece, I examine the immigration enforcement and adjudication system as a whole from the perspective of life and death. Drawing upon social theory frames as well as legal scholarship, I look to how doctrines and laws continually devalue and risk noncitizens’ lives. Although scholarly work has examined how differing aspects of immigration law and enforcement take lives—e.g., via detention, cross-border shootings, and deportation— explorations have yet to consider the system as a whole from this perspective.
My contribution illuminates how laws as well as legal doctrines serve as mechanisms for assigning differential value to human life, ultimately taking …
"The Key-Stone To The Arch": Unlocking Section 13'S Original Meaning, Kevin Bendesky
"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 …
The Federal War On Guns: A Story In Four-And-A-Half Acts, Brandon E. Beck
The Federal War On Guns: A Story In Four-And-A-Half Acts, Brandon E. Beck
University of Pennsylvania Journal of Constitutional Law
“History is a jangle of accidents, blunders, surprises and absurdities, and so is our knowledge of it, but if we are to report it at all we must impose some order upon it.”
Beginning in the early 1990s, the Executive Branch took a novel approach to the enforcement of federal firearms offenses. It replaced traditional notions of restraint with a newfound willingness to exercise its power broadly, leading to a sharp increase in the number of federal firearms offenders that continues today. A recent development, however, threatens to dismantle the core of the federal firearms scheme. Decided in 2022, the …
What Is The Matter With Dobbs?, Andrew Coan
What Is The Matter With Dobbs?, Andrew Coan
University of Pennsylvania Journal of Constitutional Law
Contrary to its critics, Dobbs v. Jackson Women’s Health Organization is not illegitimate or lawless. It is a highly consequential but fundamentally ordinary example of the inextricable connections between morality and constitutional law. If abortion is akin to murder, Dobbs could not—and should not—have come out any other way. If abortion is essential to personal autonomy and equal citizenship, the case was wrongly decided and should be reversed at the earliest opportunity.
The appropriate response to decisions like Dobbs is to criticize the moral judgments underlying them. Depending on the circumstances, institutional responses, such as court packing and jurisdiction stripping, …
The Shadow Constitution: Rescuing Our Inheritance From Neglect And Disuse, Stephen Menendian
The Shadow Constitution: Rescuing Our Inheritance From Neglect And Disuse, Stephen Menendian
University of Pennsylvania Journal of Constitutional Law
The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community. Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution. Much of this prior scholarship, however, is narrowly focused on a particular provision or small set of interrelated provisions. This article surveys twelve constitutional provisions characterized in prior scholarship …
Lavatories Of Democaracy: Recognizing A Right To Public Toilets Through International Human Rights And State Constitutitonal Law, Rick Weinmeyer
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
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 …
Concretizing Abstract Rights: Damages For Intangible Constitutional Injuries Under The Prison Litigation Reform Act, Abigail Kasdin
Concretizing Abstract Rights: Damages For Intangible Constitutional Injuries Under The Prison Litigation Reform Act, Abigail Kasdin
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Private Enforcement In The States, Diego A. Zambrano, Neel Guha, Austin Peters, Jeffrey Xia
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. …
Combatting Corporate Tokenism: The Role Of Shareholder Derivative Litigation In Board And Executive-Level Diversification, Caitlin Gleason
Combatting Corporate Tokenism: The Role Of Shareholder Derivative Litigation In Board And Executive-Level Diversification, Caitlin Gleason
University of Pennsylvania Law Review
In the wake of several social justice movements, including the #MeToo movement in 2017 and the Black Lives Matter Movement in 2020, corporations increasingly emphasized their commitments to diversity, equity, and inclusion (DEI) in a variety of ways. Amid shifts in both public attitudes and the corporate landscape, a new trend in shareholder derivative actions emerged: shareholders began suing boards of directors for corporate failures related to DEI shortcomings. As a result, major corporations like Meta, Cisco, and Gap have faced suits brought by shareholders seeking to hold boards accountable for corporations’ public pledges to DEI values and initiatives.
Although …
Don't Just Do Something, Stand There: What Crinimal Law Teaches Us About Article Iii Standing In Data Breach Cases, Caroline Ribet
Don't Just Do Something, Stand There: What Crinimal Law Teaches Us About Article Iii Standing In Data Breach Cases, Caroline Ribet
University of Pennsylvania Law Review
Data breaches of companies that expose consumer information are a pervasive and growing issue. The United States Courts of Appeals are divided over whether consumers have Article III Standing to sue the hacked organizations that did not protect their personal data. This Comment draws on insights from criminal law to argue that courts should take a more expansive view of the harm to consumers when their personal data is exposed, even where the plaintiffs cannot allege that their data has been misused. This approach would give more consumers the opportunity to have a day in court to vindicate the real …
Conflicts Of Law And The Abortion War Between The States, Paul Schiff Berman, Roey Goldstein, Sophie Leff
Conflicts Of Law And The Abortion War Between The States, Paul Schiff Berman, Roey Goldstein, Sophie Leff
University of Pennsylvania Law Review
On the subject of abortion, the so-called “United” States of America are becoming more disunited than ever. The U.S. Supreme Court’s precipitous decision in Dobbs v. Jackson Women’s Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court issued its decision, at least nineteen states have increased restrictions on abortion access, while at least twenty states and …
Surveillance Class Actions: Reconstructing A Federal Data Privacy Private Right Of Action, Nabil Shaikh
Surveillance Class Actions: Reconstructing A Federal Data Privacy Private Right Of Action, Nabil Shaikh
University of Pennsylvania Law Review
Class actions against online platforms alleging improper data collection and sharing practices have increased dramatically in recent years. In 2022, the Federal Trade Commission solicited public comment on governing these practices, which it termed “commercial surveillance,” through rulemaking. This Comment highlights the rise of private commercial surveillance and how both regulation and litigation have been employed to address ensuing harms. This Comment then discusses procedural barriers to these class actions, particularly Rule 23(b)(3)’s predominance requirement and Article III standing, and how some courts have relied on the U.S. Supreme Court’s decisions in Comcast v. Behrend and TransUnion v. Ramirez to …
Clarifying Judicial Aggrandizement, Allen Sumrall, Beau J. Baumann
Clarifying Judicial Aggrandizement, Allen Sumrall, Beau J. Baumann
University of Pennsylvania Law Review Online
Scholars argue that the Roberts Court has been engaged in a judicial “power grab.” Some scholars describe the Court as “juristocratic,” others “aggrandizing.” The Court’s supporters argue that these critics’ charges only thinly veil the critics’ policy differences with the Court. Is the Roberts Court’s power materially different from other Courts? If the charge is about “judicial activism,” do the critics hold the Warren Court to the same standard?
Scholarship about the Roberts Court has encountered a long-running difficulty; “judicial power” is an amorphous braid of norms, ideas, and institutional arrangements. We advance a taxonomy for understanding different aspects of …
Economic Inequality In The Age Of Human Rights, Daniel Benoliel
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 …
Background As Foreground: Section Three Of The Fourteenth Amendment And January 6th, Gerard N. Magliocca
Background As Foreground: Section Three Of The Fourteenth Amendment And January 6th, Gerard N. Magliocca
University of Pennsylvania Journal of Constitutional Law
[I]t is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, and property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a …
Equal Protection Against Policing, Evan Bernick
Equal Protection Against Policing, Evan Bernick
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Relational Human Rights Responsibility, Joyce De Coninck
Relational Human Rights Responsibility, Joyce De Coninck
University of Pennsylvania Journal of International Law
When a private corporation cooperates with States as well as international organizations, and conduct stemming from this cooperation results in international human rights violations, who can be held legally responsible?
This Article dissects systemic deficiencies in the traditionally state-centric human rights regime and challenges its inadequacies when dealing with contemporary forms of transnational cooperative governance. Transnational cooperative governance refers to modes of cooperation in which States, and different non- State actors work together in addressing transnational concerns that cannot be adequately regulated by any one of these actors alone.
Using border management cooperation between HawkEye 360, the European Union, and …
Legal Gender Recognition In Nepal And Comparative Context, Holning Lau, Mara Malagodi
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 …
(Re)Constructing An International Crime: Interpreting Sexual Victimhood In The Rohingya Genocide And Beyond, David Eichert
(Re)Constructing An International Crime: Interpreting Sexual Victimhood In The Rohingya Genocide And Beyond, David Eichert
University of Pennsylvania Journal of International Law
This Article argues that legal actors use narratives of gendered violence to generate intelligible victimhood categories when investigating and prosecuting sexual harm. Building upon several critical legal traditions, I argue that lawyers working on issues of sexual violence are constantly engaged in a dual process of interpretation wherein they attempt to confirm (1) if a sexual crime has occurred, and (2) whether the crime is severe enough to deserve inclusion in justice efforts. Instead of understanding this process as a simple “investigation” into a pre-existing reality, I argue that legal actors constitute both the crime and the identities of the …
Lay Bare Its Hidden Frame: The Deprivation Of Foreign Isis Fighter's Citizenship In Denmark, The Netherlands, And The United Kingdom, Helena Von Nagy
Lay Bare Its Hidden Frame: The Deprivation Of Foreign Isis Fighter's Citizenship In Denmark, The Netherlands, And The United Kingdom, Helena Von Nagy
University of Pennsylvania Journal of International Law
With the rise of ISIS came the return of banishment. Ministers for security, immigration, or justice in many European countries now may revoke individuals’ citizenships based on the suspicion of their involvement with ISIS. Despite the universality of human rights, citizenship plays a fundamental role in international human rights law and protections. It is the key legal connection between the individual and the human rights system. Appropriately, that human rights law protects against the arbitrary deprivation of citizenship. However, those same treaties empower States with the option to remove individuals’ citizenship if they act in ways prejudicial to the interests …
The Shift In Power Distribution And Its Influence On The Law Of The Sea, Youngmin Seo
The Shift In Power Distribution And Its Influence On The Law Of The Sea, Youngmin Seo
University of Pennsylvania Journal of International Law
Power and its distribution have always been the central themes of international law, yet international lawyers have paid limited attention to the correlation between power shifts and legal change. Notably, international law effectively operates when balance of power is sustained. With this qualification, this paper examines the relationship of international law with the change in power distribution, arguing that international law should proactively attend to power in order to contribute to the peaceful reconfiguration of the international system. Furthermore, this paper explores the mechanism of power shift being transmitted to law shift and specifically adduces the process and effectiveness of …
The International Norm Against Unjust Enrichment And State Enrichment Through The Harmful Conduct Of Private Parties, Ariel Zemach
The International Norm Against Unjust Enrichment And State Enrichment Through The Harmful Conduct Of Private Parties, Ariel Zemach
University of Pennsylvania Journal of International Law
States are often enriched by the flow to their coffers of wealth accrued to private actors through internationally harmful conduct such as overfishing, acts causing transboundary air or marine pollution, cyber attacks, and international corruption. A portion of the wealth acquired by private actors through such conduct is often passed on to the State through its tax system. This article argues that this form of income to the State triggers the application of the international norm against unjust enrichment. Under the international law of unjust enrichment, such income could give rise to a duty of restitution owed by the enriched …
Exploiting Seabed Law, Stephen Cody, Jeffrey Feldmann
Exploiting Seabed Law, Stephen Cody, Jeffrey Feldmann
University of Pennsylvania Journal of International Law
Private companies and sovereign States have begun mining the deep sea for polymetallic nodules that contain precious minerals, including cobalt, nickel, copper, and magnesium. In 2021, the small island nation of Nauru triggered a procedural “two-year rule” that requires the International Seabed Authority (ISA) to finalize regulations for deep sea mining (DSM) or consider the provisional approval of commercial exploitation applications. This two-year deadline passed in July 2023 without any resolution. ISA Members States continue to debate a precautionary moratorium on deep sea mining operations in light of inadequate scientific and environmental information about deep sea ecosystems. Meanwhile, advocates argue …
Examining The Inadequacy Of The Gatt's Rules-Exceptions Paradigm In The Fight Against Climate Change: The Case For A Wto Climate Waiver, Sarah Ahmad
University of Pennsylvania Journal of International Law
With the gradual deterioration of climate change, the World Trade Organization (“WTO”) faces a dilemma: how much leeway can the institution give its members to pursue trade-restrictive climate action while safeguarding the strength and integrity of the international trading system? The nexus between trade and climate change has become increasingly recognized, with the first-ever “trade day” to be held at this year’s COP28. This linkage gives rise to the question of how the General Agreement on Trade and Tariffs (“GATT”), laying the legal foundations for the WTO, accommodates members’ mitigatory climate action. In this regard, the GATT strictly separates the …
Dobbs V. Jackson Women's Health Organization: Reckoning With Its Impact And Charting A Path Forward, Hillary A. Schneller, Diana Kasdan, Risa E. Kaufman, Alexander Wilson
Dobbs V. Jackson Women's Health Organization: Reckoning With Its Impact And Charting A Path Forward, Hillary A. Schneller, Diana Kasdan, Risa E. Kaufman, Alexander Wilson
University of Pennsylvania Journal of Constitutional Law
Dobbs v. Jackson Women’s Health Organization undid 50 years of precedent guaranteeing the constitutional right to abortion in the United States. At the one-year anniversary of the decision, and as the devastating consequences continue to play out across the country, this article analyzes Dobbs and its impact. It also charts a way forward for rebuilding a more robust Fourteenth Amendment jurisprudence. It draws on the authors’ individual perspective and expertise, and the Center for Reproductive Rights’ role as lead counsel in the case and as a global human rights organization advancing reproductive rights in the United States and around the …
Reconstructing As Revolution: The Fourteenth Amendment And The Destruction Of Founding America, Kermit Roosevelt Iii
Reconstructing As Revolution: The Fourteenth Amendment And The Destruction Of Founding America, Kermit Roosevelt Iii
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Transportation: The Hidden Right To Exclude, Saleema Snow
Transportation: The Hidden Right To Exclude, Saleema Snow
University of Pennsylvania Journal of Constitutional Law
No abstract provided.