Law Commons^™

Outcome Reasons And Process Reasons In Normative Constitutional Theory, Larry Solum

University of Pennsylvania Law Review

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of their counterfactual implications for a handful of prior decisions of the Supreme Court. …

Arbitration's Unraveling, Myriam E. Gilles

University of Pennsylvania Law Review

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area …

T.L.O. Goes Home: Remote Learning And The Future Of School Search Doctrine After Ogletree V. Cleveland State University, William Mcdonald

University of Pennsylvania Law Review

The Supreme Court has not addressed the relationship between searches by school administrators and a student’s Fourth Amendment rights in over two decades. Since then, remote learning and other advances in educational technology have changed the meaning of the “school environment.” In a recent federal district court case in Ohio, the court held that a public university’s remote examination policy, which required a student to conduct a scan of her own bedroom before beginning a remote exam, violated the student’s Fourth Amendment rights. This Comment argues that the previous school search Supreme Court cases offer poor tests for this new …

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.

Democracy's Bureaucracy: The Complicated Case Of Voter Registration Lists, Michael Morse

Articles

This Article calls attention to the development and derailment of a novel cross-governmental bureaucracy for voter registration. It focuses specifically on voter registration lists as the vulnerable backbone of election administration. In short, the constitutional allocation of election authority has left a mobile electorate scattered across fifty different state registration lists. The result is more than a tenth of the electorate likely registered in their former jurisdiction and more than a third not registered at all. The solution, in the vocabulary of election officials, has become “list maintenance”—or, identifying when voters, previously registered at one address, subsequently move or die, …

Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw

Articles

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics—electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants—measured by the fixed terms of state and federal executive officials—may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts—measured by the fixed terms of state judges—creates openings for strategic behavior among litigants (both public …

Vietnam's "Entire People Ownership" Of Land: Theory And Practice, Phan Trung Hien, Hugh D. Spitzer

University of Pennsylvania Asian Law Review

The Constitution of Vietnam declares that “[t]he Socialist Republic of Vietnam State is a socialist rule of law State of the People, by the People, and for the People.” It also states that land is “under ownership by the entire people represented and uniformly managed by the State.” This means the entire people of Vietnam are collective landowners and the Vietnam State is their “representative.” Given that, how might the public execute its real ownership—rather than treating “people’s ownership” as just a slogan? This article analyzes the gaps in theory and practice in Vietnam, a country with a robust market …

Deconstructing The Decolonizing Plot Of The Tydings-Mcduffie Act: A Review Of America's International Relations In Asia In The Early Twentieth Century, Alvin Hoi-Chun Hung

University of Pennsylvania Asian Law Review

The Tydings-McDuffie Act was enacted in 1934 to establish a designated path for the Philippines, then an American colony, to become independent after a ten-year transition period. This article looks into the macro-environment of the Asia-Pacific region in the 1930s regarding the impact of the Soviet Union, the Republic of China, the Shōwa empire of Japan, and its puppet state “Manchukuo” in China, embedded within the innumerable socio-political and economic conflicts between the U.S. and the Philippines. The Tydings-McDuffie Act is critically examined to assess its underlying decolonizing plot of the political and economic relationship between the U.S. and the …

Prevention Of Judicial Corruption In Bangladesh: Cutting The Gordian Knot By Ensuring Accountability, S M Solaiman

University of Pennsylvania Asian Law Review

Judicial corruption has eaten away at good governance in Bangladesh for decades, hindering its ambition to attain the United Nations Sustainable Development Goals (“SDGs”) and taking advantage of the absence of any effective accountability mechanism. The magnitude of corruption is so intense that the successive Chief Justices, Attorneys-General, local, and international anti-corruption organizations, and even the Supreme Court of Bangladesh (“SCB”) itself in a judgment have forthrightly admitted the prevalence of judicial corruption. The malpractice does profoundly undermine the rule of law and infringe on the people’s right to fair trial. Corruption is on the rise in the country as …

Intellectual Property Legislation Holism In China, Taorui Guan

University of Pennsylvania Asian Law Review

No abstract provided.

The Emerging Commercial Space Age: Legal And Policy Implications, Gerald L. Adams Iii, Christopher S. Yoo

Journal of Law & Innovation

No abstract provided.

Space Law As Twenty-First Century International Law, Melissa J. Durkee

Journal of Law & Innovation

Space law’s current moment reflects international law’s current moment. That is, lawmaking processes aimed at updating international space law for the commercial space age reveal three larger themes about international lawmaking in the twenty-first century. These themes are: (a) evolutive lawmaking efforts by states; (b) the parallel development of laws in different fora by different actors; and (c) interpretive entrepreneurship by private actors. The themes are interrelated. They offer one story—but not the only possible story—about how international law develops when multilateral cooperation is out of reach. Together, the themes forecast a more pluralist international legal future, demanding new forms …

Controlling Decisions On Anti-Satellite Weapons: A Policy-Oriented Perspective, Gershon Hasin

Journal of Law & Innovation

Through the lens of policy-oriented jurisprudence, this contribution will consider the potential avenues for controlling the decisions of participants when it comes to anti-satellite (“ASAT”) weapons within and outside the formal international lawmaking process. Given that all the major space powers have tested ASAT weapons and are thus primarily exposed to the adverse effects of any further testing and the strategic detriments of further proliferation, their interests seem to align in favor of a testing prohibition and non-proliferation. In fact, the United States has proclaimed a self-ban on destructive testing and has promoted a call for an international testing ban …

From “Open Skies” To Traffic Jams In 12 Ghz: A Short History Of Satellite Radio Spectrum, Thomas Hazlett, Dongning Guo, Michael Honig

Journal of Law & Innovation

As an industry, communications satellites have traced a wobbly trajectory. Envisioned to bring revolutionary advances to telecommunications services in the U.S. Communications Satellite Act of 1962, the marketplace did open via Comsat, a public-private partnership. But the sluggish pace was revealed a decade later when progress increased substantially with the Open Skies policy. Free entry collapsed costs for wide area distribution of broadcasting services, launching the U.S. cable television industry (disrupting the TV broadcasting triopoly) in the 1980s and then direct-to-subscriber satellite TV (challenging the new incumbent cable operators) in the 1990s. In ensuing decades, however, fortunes reversed. Satellite phone …

Property Rights Over The Moon Or On The Moon? The Legality Of Space Resource Exploitation On Celestial Bodies, Frans G. Von Der Dunk

Journal of Law & Innovation

One of the most debated issues in humankind’s ongoing ventures into outer space today from a legal perspective concerns the various plans and projects for long-term human settlements on the Moon and Mars and the accompanying interest in In-Situ Resource Utilization (ISRU) as part of what more commonly is known as “space mining.” Given the lack of precision of the 1967 Outer Space Treaty,1 the lack of support for the 1979 Moon Agreement,2 and the more recent enunciation of a few national laws on the matter,3 major questions arise as to the extent of the legality of commercial exploitation of …

Should Satellite Broadband Be Included In Universal Service Subsidy Programs?, Gregory L. Rosston, Scott J. Wallsten

Journal of Law & Innovation

The United States is at a pivotal moment for broadband competition, with emerging technologies like 5G fixed wireless and Low-Earth Orbit (LEO) satellites offering high-quality broadband service that can be substitutes for wireline service. LEO satellites, especially, can provide cost-effective coverage for areas otherwise very expensive to reach. Despite the quality of these services, the Universal Service Fund (USF), an $8-$9 billion annual broadband subsidy program has traditionally excluded satellite service. NTIA and state regulators also appear ready to severely limit or exclude satellite service from the large new programs designed to eliminate the digital divide. This Article will focus …

Masthead

Journal of Law & Innovation

No abstract provided.

Expecting Specific Performance, Tess Wilkinson-Ryan, David Hoffman, Emily Campbell

Articles

Using a series of surveys and experiments, we find that ordinary people think that courts will give them exactly what they bargained for after breach of contract; in other words, specific performance is the expected contractual remedy. This expectation is widespread even for the diverse array of deals where the legal remedy is traditionally limited to money damages. But for a significant fraction of people, the focus on equity seems to be a naïve belief that is open to updating. In the studies reported here, individuals were less likely to anticipate specific performance when they were briefly introduced to the …

Defeating The Empire Of Forms, David Hoffman

Articles

For generations, contract scholars have waged a faint-hearted campaign against form contracts. It’s widely believed that adhesive forms are unread and chock full of terms that courts will not, or should not, enforce. Most think that the market for contract terms is broken, for both employees and consumer adherents. And yet forms are so embedded in our economy that it’s hard to imagine modern commercial life without them. Scholars thus push calibrated, careful solutions that walk a deeply rutted path. Notwithstanding hundreds of proposals calling for their retrenchment, the empire of forms has continued to advance into new areas of …

The Slogans And Goals Of Antitrust Law, Herbert J. Hovenkamp

All Faculty Scholarship

This is a comparative examination of the slogans and goals most advocated for antitrust law today – namely, that antitrust should be concerned with “bigness,” that it should intervene when actions undermine the “competitive process,” or that it should be concerned about promoting some conception of welfare. “Bigness” as an antitrust concern targets firms based on absolute size rather than share of a market, as antitrust traditionally has done. The bigness approach entails that antitrust cannot be concerned about low prices, or the welfare of consumers and labor. Nondominant firms could not sustain very high prices or cause significant reductions …

Standing Back And Standing Down: Citizen Non-Cooperation And Police Non-Intervention As Causes Of Justice Failure And Crime, Paul H. Robinson, Jeffrey Seaman, Muhammad Sarahne

Articles

The article discusses the failures of the American justice system to find and punish offenders for the majority of serious crimes. It highlight the low clearance and conviction rates for crimes such as murder, rape, and assault. It further argues that these failures of justice have practical consequences on crime rates and also disproportionately affect racial minorities and low-income communities.

"You’Re Fired": Criminal Use Of Presidential Removal Power, Claire Finkelstein, Richard Painter

Articles

This Article addresses a specific, but critically important aspect of presidential power: the intersection between the president’s power to remove executive branch officers and criminal laws that are generally applicable to both office-holders and non-office-holders alike. The question we ask is whether the president can obstruct justice by removing a presidential appointee who is investigating or prosecuting crimes of the president himself or of his associates. Can a president remove an appointee who refuses to work on behalf of the president’s re-election campaign even though it is a crime for anyone, including a president, to order or coerce a federal …

Gender And Deception: Moral Perceptions And Legal Responses, Gregory Klass, Tess Wilkinson-Ryan

Articles

Decades of social science research has shown that the identity of the parties in a legal action can affect case outcomes. Parties’ race, gender, class, and age all affect decisions of prosecutors, judges, juries, and other actors in a criminal prosecution or civil litigation. Less studied has been how identity might affect other forms of legal regulation. This Essay begins to explore perceptions of deceptive behavior—i.e., how wrongful it is, and the extent to which it should be regulated or punished—and the relationship of those perceptions to the gender of the actors. We hypothesize that ordinary people tend to perceive …

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 …

Cyber Borders: Exercising State Sovereignty Online, Beth Simmons, Rachel Hulvey

All Faculty Scholarship

The internet brings challenges that threaten national identities and the foundations of what it means to be a state. Well-known challenges include difficulties maintaining important national values, competition threatening local economic plans, and even the inability to maintain a meaningful informational environment for self-governance. These influences are plausibly understood as challenges to some of the basic functions of a sovereign state. Despite these challenges, we identify the social practice of establishing control over mercurial mediums. States have responded by erecting cyberborders with a collection of laws, practices, and internet architecture designed to filter digital information within the territorial jurisdiction of …

Where's The Insurance In Mass Tort Litigation?, Tom Baker

Articles

This article reports and explains four key findings about the difference between the role of insurance in mass tort litigation and the role of insurance in ordinary tort and corporate governance litigation as reported in earlier research: (1) outside of the insolvency context, mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants’ liability insurance; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their …

The Intersectional Origins Of Modern Feminist Legal Advocacy, Serena Mayeri

All Faculty Scholarship

Intersectionality, reproductive justice, abolitionism, LGBTQ+ liberation, and democracy defense have moved to the center of twenty-first century feminist legal thought and advocacy, with feminists of color and queer scholars and activists at the forefront. But it wasn’t always so. Or was it?

The ‘Weaponized’ First Amendment At The Marble Palace And The Firing Line: Reaction And Progressive Advocacy Before The Roberts Court And Lower Federal Courts, Seth F. Kreimer

All Faculty Scholarship

It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction.

This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come …

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

All Faculty Scholarship

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleging that Harvard engages in intentional discrimination …

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

All Faculty Scholarship

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …