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Articles 1 - 30 of 46
Full-Text Articles in Law
Preserving Life By Ranking Rights, John William Draper
Preserving Life By Ranking Rights, John William Draper
Librarian Scholarship at Penn Law
Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.
The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …
Brief Of National Law Professors Of Criminal, Procedural, And Constitutional Law, In Re Humphrey, California Supreme Court, Regarding The Imposition Of Money Bail And Conditions Of Pretrial Release, Sandra G. Mayson, Kellen R. Funk
Brief Of National Law Professors Of Criminal, Procedural, And Constitutional Law, In Re Humphrey, California Supreme Court, Regarding The Imposition Of Money Bail And Conditions Of Pretrial Release, Sandra G. Mayson, Kellen R. Funk
All Faculty Scholarship
When the government proposes to incarcerate a person before trial, it must provide thorough justification, whether the mechanism of detention is a transparent detention order or its functional equivalent, the imposition of unaffordable money bail. A court contemplating money bail must determine whether it is likely to result in detention. If so, and the court nonetheless wishes to impose it, the court must find, by clear and convincing evidence established through an adversary hearing, that the unaffordable bail amount serves a compelling interest of the state that no less restrictive condition of release can meet. This will rarely be the …
Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …
Remedial Reading: Evaluating Federal Courts' Application Of The Prejudice Standard In Capital Sentences From "Weighing" And "Non-Weighing" States, Sarah Gerwig-Moore
Remedial Reading: Evaluating Federal Courts' Application Of The Prejudice Standard In Capital Sentences From "Weighing" And "Non-Weighing" States, Sarah Gerwig-Moore
JCL Online
No abstract provided.
Down But Not Out: Trinity Lutheran'S Implications For State No-Aid Provisions, Anthony Joseph
Down But Not Out: Trinity Lutheran'S Implications For State No-Aid Provisions, Anthony Joseph
JCL Online
No abstract provided.
Views Among College Students Regarding Freedom Of Expression: An Analysis In Light Of Key Supreme Court Decisions, John Villasenor
Views Among College Students Regarding Freedom Of Expression: An Analysis In Light Of Key Supreme Court Decisions, John Villasenor
JCL Online
No abstract provided.
A Counterfactual History Of Transgender Students' Rights, Kristi L. Bowman
A Counterfactual History Of Transgender Students' Rights, Kristi L. Bowman
JCL Online
No abstract provided.
Supervisory Liability In The Circuit Courts After Iqbal, Patrick Boynton
Supervisory Liability In The Circuit Courts After Iqbal, Patrick Boynton
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Taming Title Ix Tensions, Naomi M. Mann
Taming Title Ix Tensions, Naomi M. Mann
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Due Process Of Lawmaking Revisited, Stephen Gardbaum
Due Process Of Lawmaking Revisited, Stephen Gardbaum
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The New Heckler's Veto: Shouting Down Speech On College Campuses, Charles S. Nary
The New Heckler's Veto: Shouting Down Speech On College Campuses, Charles S. Nary
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Diverse Originalism, Christina Mullligan
Diverse Originalism, Christina Mullligan
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Campus Discourse And Democracy: Free Speech Principles Provide Sound Guidance Even After The Tumult Of 2017, Catherine J. Ross
Campus Discourse And Democracy: Free Speech Principles Provide Sound Guidance Even After The Tumult Of 2017, Catherine J. Ross
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Right To Be Counseled: The Effect Of Collateral Consequences On The Strickland Standard, Paul Quincy
The Right To Be Counseled: The Effect Of Collateral Consequences On The Strickland Standard, Paul Quincy
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Marketplace Of Fake News, Ari Ezra Waldman
The Marketplace Of Fake News, Ari Ezra Waldman
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Talking Trump And The Twenty-Fifth Amendment: Correcting The Record On Section 4, Joel K. Goldstein
Talking Trump And The Twenty-Fifth Amendment: Correcting The Record On Section 4, Joel K. Goldstein
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Don't Answer That: Revisiting The Political Question Doctrine In State Courts, Nat Stern
Don't Answer That: Revisiting The Political Question Doctrine In State Courts, Nat Stern
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Litigating Alternative Facts: School Vaccine Mandates In The Courts, Dorit Rubinstein Reiss
Litigating Alternative Facts: School Vaccine Mandates In The Courts, Dorit Rubinstein Reiss
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Charting Vagueness Shoals Through The Narrowing Of Corruption Statutes, Khari L. Cyrus
Charting Vagueness Shoals Through The Narrowing Of Corruption Statutes, Khari L. Cyrus
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Neoformalist Constitutional Construction And Public Employee Speech, Scott R. Bauries
Neoformalist Constitutional Construction And Public Employee Speech, Scott R. Bauries
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Masthead
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Ecology Of Transparency Reloaded, Seth F. Kreimer
The Ecology Of Transparency Reloaded, Seth F. Kreimer
All Faculty Scholarship
As Justice Stewart famously observed, "[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." What the Constitution's text omits, the last two generations have embedded in "small c" constitutional law and practice in the form of the Freedom of Information Act and a series of overlapping governance reforms including Inspectors General, disclosure of political contributions, the State Department’s “Dissent Channel,” the National Archives Information Security Oversight Office, and the publication rights guaranteed by New York Times v. United States. These institutions constitute an ecology of transparency.
The late Justice Scalia argued that the …
Diversity Gone Wrong: A Historical Inquiry Into The Evolving Meaning Of Diversity From Bakke To Fisher, Ofra Bloch
Diversity Gone Wrong: A Historical Inquiry Into The Evolving Meaning Of Diversity From Bakke To Fisher, Ofra Bloch
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Heller As Popular Constitutionalism? The Overlooked Narrative Of Armed Black Self-Defense, Katherine J. King
Heller As Popular Constitutionalism? The Overlooked Narrative Of Armed Black Self-Defense, Katherine J. King
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
The Garland Nomination, The Senate's Duty, And The Surprising Lessons Of Constitutional Text, Peter J. Eckerstrom
The Garland Nomination, The Senate's Duty, And The Surprising Lessons Of Constitutional Text, Peter J. Eckerstrom
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Privileging Privacy: Confidentiality As A Source Of Fourth Amendment Protection, Mihailis E. Diamantis
Privileging Privacy: Confidentiality As A Source Of Fourth Amendment Protection, Mihailis E. Diamantis
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Immunity Inconsistency At The Patent And Trademark Office: A Case Study For Sovereign Immunity In Administrative Adjudications, Michelle Bone
Immunity Inconsistency At The Patent And Trademark Office: A Case Study For Sovereign Immunity In Administrative Adjudications, Michelle Bone
University of Pennsylvania Journal of Constitutional Law
No abstract provided.
Our Principled Constitution, Mitchell N. Berman
Our Principled Constitution, Mitchell N. Berman
All Faculty Scholarship
Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.
Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …
Dangerous Defendants, Sandra G. Mayson
Dangerous Defendants, Sandra G. Mayson
All Faculty Scholarship
Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David Rudovsky, David A. Harris
Terry Stops And Frisks: The Troubling Use Of Common Sense In A World Of Empirical Data, David Rudovsky, David A. Harris
All Faculty Scholarship
The investigative detention doctrine first announced in Terry v. Ohio and amplified over the past fifty years has been much analyzed, praised, and criticized from a number of perspectives. Significantly, however, over this time period commentators have only occasionally questioned the Supreme Court’s “common sense” judgments regarding the factors sufficient to establish reasonable suspicion for stops and frisks. For years, the Court has provided no empirical basis for its judgments, due in large part to the lack of reliable data. Now, with the emergence of comprehensive data on these police practices, much can be learned about the predictive power of …