Law Commons^™

Legislative History Is Dead; Long Live Legislative History, Genevieve B. Tung

Librarian Scholarship at Penn Law

Review of Victoria Nourse, Misreading Law, Misreading Democracy (Harvard 2016)

The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman

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This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

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American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …

Lobbying And The Petition Clause, Maggie Blackhawk

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Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …

Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

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One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.

Intellectual history in the United States went into decline because …

Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee

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Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …

The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo

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Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the "executive by committee" used by the Articles of Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …