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Vol. 27 Masthead Jan 2024

Vol. 27 Masthead

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


When Handcuffs Replace Detention Slips: Reducing The Criminalization Of Students By Filling In Gaps In Fourth Amendment Doctrine, Julia Eger Jan 2024

When Handcuffs Replace Detention Slips: Reducing The Criminalization Of Students By Filling In Gaps In Fourth Amendment Doctrine, Julia Eger

University of Pennsylvania Journal of Law and Social Change

The presence of School Resource Officers (SROs) in today’s schools puts students at risk of being arrested for a variety of non-dangerous behaviors that schools would otherwise address through the school discipline process. This issue disproportionately affects students of color, and their interactions with SROs detract from their education and harm their futures. Current doctrine makes it extremely difficult for students to challenge school-based arrests and their disparate racial impact. Many experts call for schools to eliminate SRO programs, but this is unlikely to happen in the near future. Therefore, solutions that mitigate the negative effects of these programs are …


Unions, Black Worker, And Criminal Records: Reckoning With The Labor Movement's History Of Racial Discrimination Should Lead It Into The Future, Ty Parks Jan 2024

Unions, Black Worker, And Criminal Records: Reckoning With The Labor Movement's History Of Racial Discrimination Should Lead It Into The Future, Ty Parks

University of Pennsylvania Journal of Law and Social Change

Since the 1970s, the Labor Movement has been debilitated by a dramatic decline in union membership. However, in recent years, public approval of unions and unionization rates have increased, indicating the potential for Labor’s resurgence. Ironically, the same demographic of workers that unions have historically excluded are the workers leading these unionization efforts. Labor statistics illustrate that Black and brown workers are predominantly responsible for the current dynamism in the Labor Movement. To capitalize on this resurgence and lead the Labor Movement into the future, this Comment urges Labor to prioritize mobilizing workers of color.

With respect to this charge, …


Caged Birds And Those That Hear Their Songs: Effects Of Race And Sex In South Carolina Parole Hearings, David M. N. Garavito, Amelia Courtney Hritz, John H. Blume Jan 2024

Caged Birds And Those That Hear Their Songs: Effects Of Race And Sex In South Carolina Parole Hearings, David M. N. Garavito, Amelia Courtney Hritz, John H. Blume

University of Pennsylvania Journal of Law and Social Change

When most incarcerated persons go before the parole board, they hope that the decision whether to release them will be based on their institutional record; put differently, that the board will consider the use of opportunities available in prison, rehabilitation, and likelihood of success outside the carceral environment. However, numerous persons with excellent records and reentry plans are denied parole every year. Why? The actual variables that influence parole board decision making are often a mystery; parole rejections are left unexplained or opaque. Empirical research examining what drives parole outcomes is scarce, yet this research is necessary given the power …


The Trouble With Time Served, Kimberly Ferzan Jul 2023

The Trouble With Time Served, Kimberly Ferzan

All Faculty Scholarship

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time …


Resurrecting The Rent Strike Law, Greg Baltz Jan 2023

Resurrecting The Rent Strike Law, Greg Baltz

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


We Have The Right To Play, Duane Rudolph Jan 2023

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 …


Out Of Sight, Out Of Mind: Removing Unhoused People By Proxy Of Mental Illness, Carl Wu Jan 2023

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 Jan 2023

Masthead

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Anti-Bds Laws And The Politics Of Political Boycotts, Osama Alkhawaja Jan 2023

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

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


The Best Protection Is Abstinence (From Funding): The Illegality And Unconstitutionality Of Abstinence-Only Sex Education In The United States, Haley Ferise Jan 2023

The Best Protection Is Abstinence (From Funding): The Illegality And Unconstitutionality Of Abstinence-Only Sex Education In The United States, Haley Ferise

University of Pennsylvania Journal of Law and Social Change

The United States funds abstinence-only sex education through a variety of spending programs, such as the Title V Sexual Risk Avoidance Education (SRAE) program. Receiving abstinence-only sex education is correlated with higher teen pregnancy rates, more frequent instances of sexually transmitted diseases and infections among young people, young people’s engagement in sexual activity with a greater number of partners, and even a reduced average age of engagement in vaginal intercourse. Federal funding of programs which carry these risks must cease immediately. Scholars and litigants have raised challenges to the constitutionality of programs like SRAE; legal scholar James McGrath purports that …


From Trauma To Transformation: Trauma-Informed Pedagogy In Law School, Angela P. Harris, Monika B. Kashyap Jan 2023

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 Jan 2023

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 Jan 2023

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 …


Let's Talk About Sex (Work): The Irony Of Partial Decriminalization Of Sex Work, Linda S. Anderson Jan 2023

Let's Talk About Sex (Work): The Irony Of Partial Decriminalization Of Sex Work, Linda S. Anderson

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


California High: A Note On Enforcement Of The Harrison Act, Lawrence M. Friedman, Omar Vasquez Duque Jan 2023

California High: A Note On Enforcement Of The Harrison Act, Lawrence M. Friedman, Omar Vasquez Duque

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Internet Human Rights, Michael J. Kelly, David Satola Jan 2023

Internet Human Rights, Michael J. Kelly, David Satola

University of Pennsylvania Journal of Law and Social Change

The rate at which Internet connectivity is spreading is matched only by the increasing amount of time people spend online. Today over 5 billion humans access the Internet; the overwhelming majority of them engage in social media, and almost all of them live out key aspects of their daily lives digitally. Human rights are universal in the sense that they apply to everyone, everywhere. And while there are indicators that they apply in cyberspace, how they apply is a different story.

Now, as the Universal Declaration of Human Rights (UDHR) turns 75, we wonder how many of those rights accompany …


Socio-Philosophical Ontology: Supraorganic Emergence Of Social Reality, René Reich-Graefe Jan 2023

Socio-Philosophical Ontology: Supraorganic Emergence Of Social Reality, René Reich-Graefe

University of Pennsylvania Journal of Law and Social Change

This article develops and defends a general theory of supraorganic emergence of social reality which, as a base model, is also claimed to causally underpin all instances of sociolegal emergencenamely, the collectivist and wholistic organizational process of a given society that, over large, intergenerational timescales, produces sociolegal rules and practices in terms of legal-system social institutions on the one hand (for example, the first-tier legal recognition and organization of businesses as partnerships and corporations) and legal-system social laws on the other hand (for example, the second-tier legal recognition and organization of certain intra-business fiduciary duties among business owners and managers). …


Identity Annexation: Israel's Non-Territorial And Psychic Annexation Of West Bank Samaritans In The Occupied Palestinian Territories, Zeina Jallad Jan 2023

Identity Annexation: Israel's Non-Territorial And Psychic Annexation Of West Bank Samaritans In The Occupied Palestinian Territories, Zeina Jallad

University of Pennsylvania Journal of Law and Social Change

No abstract provided.


Gamestop And The Reemergence Of The Retail Investor, Jill E. Fisch Oct 2022

Gamestop And The Reemergence Of The Retail Investor, Jill E. Fisch

All Faculty Scholarship

The GameStop trading frenzy in January 2021 was perhaps the highest profile example of the reemergence of capital market participation by retail investors, a marked shift from the growing domination of those markets by large institutional investors. Some commentators have greeted retail investing, which has been fueled by app-based brokerage accounts and social media, with alarm and called for regulatory reform. The goals of such reforms are twofold. First, critics argue that retail investors need greater protection from the risks of investing in the stock market. Second, they argue that the stock market, in term, needs protection from retail investors. …


Sentencing Co-Offenders, Ehud Guttel, Ittai Paldor, Gideon Parchomovsky Oct 2022

Sentencing Co-Offenders, Ehud Guttel, Ittai Paldor, Gideon Parchomovsky

All Faculty Scholarship

Tort law and criminal law are the two main vehicles utilized by the state to deter wrongful behavior. Despite the many similarities between the two legal fields, they differ in their treatment of collaborations. While tort law divides liability among joint-tortfeasors, criminal law abides by a no-division rule that imposes on each co-offender the full brunt of the sanction. Thus, each of two offenders who jointly steal $1,000, will be subject to the full corresponding penalty (rather than the divided penalty for stealing $500).

This Article demonstrates that in property and financial crimes, the no-division regime of criminal law harms …


Selling Antitrust, Herbert J. Hovenkamp Aug 2022

Selling Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust enforcers and its other defenders have never done a good job of selling their field to the public. That is not entirely their fault. Antitrust is inherently technical, and a less engaging discipline to most people than, say, civil rights or criminal law. The more serious problem is that when the general press does talk about antitrust policy it naturally gravitates toward the fringes, both the far right and the far left. Extreme rhetoric makes for better press than the day-to-day operations of a technical enterprise. The extremes are often stated in overdramatized black-and-white terms that avoid the real …


Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese Jun 2022

Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese

All Faculty Scholarship

Following the June 2019 explosion at the Philadelphia Energy Solutions (PES) refinery, the city of Philadelphia now confronts major challenges associated with the future of the refinery site. Whether the site is reopened as a refinery or other chemical-processing operation, or redeveloped for other uses, the city will face challenges endemic to all kinds of public policy issues: complexity, uncertainty, dynamism, tradeoffs, and value choices. This testimony, delivered to the City of Philadelphia Refinery Advisory Group’s Environment Committee, offers three main suggestions to help guide Philadelphia officials in dealing with the future of the PES refinery site. First, city officials …


What History Can Tell Us About The Future Of Insurance And Litigation After Covid-19, Kenneth S. Abraham, Tom Baker Apr 2022

What History Can Tell Us About The Future Of Insurance And Litigation After Covid-19, Kenneth S. Abraham, Tom Baker

All Faculty Scholarship

This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that profoundly influenced the course of insurance and insurance law, in order to predict the post-COVID-19 future of these fields. In each instance, there was a direct and decided cause-and-effect relationship between these developments and subsequent change in the world of insurance and insurance law. As important as the influence of COVID-19 is at present and probably will be in the future, in our view the COVID-19 pandemic will not be as significant an influence on insurance and …


Dismantling The “Black Opticon”: Privacy, Race Equity, And Online Data-Protection Reform, Anita L. Allen Feb 2022

Dismantling The “Black Opticon”: Privacy, Race Equity, And Online Data-Protection Reform, Anita L. Allen

All Faculty Scholarship

African Americans online face three distinguishable but related categories of vulnerability to bias and discrimination that I dub the “Black Opticon”: discriminatory oversurveillance, discriminatory exclusion, and discriminatory predation. Escaping the Black Opticon is unlikely without acknowledgement of privacy’s unequal distribution and privacy law’s outmoded and unduly race-neutral façade. African Americans could benefit from race-conscious efforts to shape a more equitable digital public sphere through improved laws and legal institutions. This Essay critically elaborates the Black Opticon triad and considers whether the Virginia Consumer Data Protection Act (2021), the federal Data Protection Act (2021), and new resources for the Federal Trade …


Why Aim Law Toward Human Survival, John William Draper Feb 2022

Why Aim Law Toward Human Survival, John William Draper

Librarian Scholarship at Penn Law

Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.

If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.

There is no better choice. You and all your relatives have rights. The …


Leases As Forms, David A. Hoffman, Anton Strezhnev Jan 2022

Leases As Forms, David A. Hoffman, Anton Strezhnev

All Faculty Scholarship

We offer the first large scale descriptive study of residential leases, based on a dataset of ~170,000 residential leases filed in support of over ~200,000 Philadelphia eviction proceedings from 2005 through 2019. These leases are highly likely to contain unenforceable terms, and their pro-landlord tilt has increased sharply over time. Matching leases with individual tenant characteristics, we show that unlawful terms are surprisingly likely to be associated with more expensive leaseholds in richer, whiter parts of the city. This result is linked to landlords' growing adoption of shared forms, originally created by non-profit landlord associations, and more recently available online …


Remodeling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic Jan 2022

Remodeling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic

All Faculty Scholarship

This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …


Internal And External Challenges To Culpability, Stephen J. Morse Jan 2022

Internal And External Challenges To Culpability, Stephen J. Morse

All Faculty Scholarship

This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …


Algorithm Vs. Algorithm, Cary Coglianese, Alicia Lai Jan 2022

Algorithm Vs. Algorithm, Cary Coglianese, Alicia Lai

All Faculty Scholarship

Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, …