Law Commons^™

The Ecology Of Transparency Reloaded, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

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 …

The Value Of The Right To Exclude: An Empirical Assessment, Jonathan Klick, Gideon Parchomovsky

Faculty Scholarship at Penn Carey Law

Property theorists have long deemed the right to exclude fundamental and essential for the efficient use and allocation of property. Recently, however, proponents of the progressive property movement have called into question the centrality of the right to exclude, suggesting that it should be scaled back to allow the advancement of more socially beneficial uses of property. Surprisingly, the debate between the opponents and detractors of the right to exclude is devoid of any empirical evidence. The actual value of the right to exclude remains unknown.

In this Article, we set out to fill this void by measuring, for the …

First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen

Faculty Scholarship at Penn Carey Law

No abstract provided.

Facebook Fallacies, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Carey Law

No abstract provided.

Should Bush Administration Lawyers Be Prosecuted For Authorizing Torture?, Claire Oakes Finkelstein, Michael Lewis

Faculty Scholarship at Penn Carey Law

No abstract provided.

Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Carey Law

No abstract provided.

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Carey Law

No abstract provided.

James Wilson And The Drafting Of The Constitution, William Ewald

Faculty Scholarship at Penn Carey Law

No abstract provided.

Alternative Career Resolution Ii: Changing The Tenure Of Supreme Court Justices, Stephen B. Burbank

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Unitary Executive During The Third Half-Century, 1889-1945, Christopher S. Yoo, Steven G. Calabresi, Laurence D. Nee

Faculty Scholarship at Penn Carey Law

Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive, in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features …

Torture Lite, Full-Bodied Torture, And The Insulation Of Legal Conscience, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

Watching The Watchers: Surveillance, Transparency, And Political Freedom In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

Too Close To The Rack And The Screw: Constitutional Constraints On Torture In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo

Faculty Scholarship at Penn Carey Law

Recent Supreme Court decisions and political events have reinvigorated the debate over Congress's authority to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitutional Convention rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive in which all administrative authority is centralized in the President. More recently, the debate has turned towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. …

The Pennsylvania Constitution's Protection Of Free Expression, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

Technologies Of Protest: Insurgent Social Movements And The First Amendment In The Era Of The Internet, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

What's So Special About American Law?, William Ewald

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Real Separation In Separation Of Powers Law, Elizabeth Magill

Faculty Scholarship at Penn Carey Law

This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way.

Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of "formalist" …

The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Unitary Executive During The First Half-Century, Steven G. Calabresi, Christopher S. Yoo

Faculty Scholarship at Penn Carey Law

Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress’s authority to employ devices such as special counsels and independent agencies to restrict the President’s control over the administration of the law. The initial debate focused on whether the Constitution rejected the “executive by committee” employed by the Articles of the Confederation in favor of a “unitary executive,” in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features …

Exploring The Dark Matter Of Judicial Review: A Constitutional Census Of The 1990s, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

Most debate about the power of judicial review proceeds as if courts primarily invoke the Constitution against the considered judgment of elected legislatures; most constitutional commentary focuses on confrontations between the United States Supreme Court and state or federal legislatures. In fact, the federal courts most often enforce constitutional norms against administrative agencies and street-level bureaucrats, and the norms are enforced not by the Supreme Court but by the federal trial courts. In this Article, Professor Kreimer surveys this "dark matter" of our constitutional universe.

The Article compares the 292 cases involving constitutional claims decided by the Supreme Court during …

From Black And White To High Definition Equal Protection, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

Does Pro-Choice Mean Pro-Kevorkian? An Essay On Roe, Casey, And The Right To Die, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

The Proposed Equal Protection Fix For Abortion Law: Reflections On Citizenship, Gender, And The Constitution, Anita L. Allen

Faculty Scholarship at Penn Carey Law

No abstract provided.

"But Whoever Treasures Freedom...": The Right To Travel And Extraterritorial Abortions, Seth F. Kreimer

Faculty Scholarship at Penn Carey Law

No abstract provided.

Autonomy's Magic Wand: Abortion And Constitutional Interpretation, Anita L. Allen

Faculty Scholarship at Penn Carey Law

No abstract provided.

Tribe's Judicious Feminism, Anita L. Allen

Faculty Scholarship at Penn Carey Law

No abstract provided.