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Full-Text Articles in Law

Foreword: Abolition Constitutionalism, Dorothy E. Roberts Jan 2019

Foreword: Abolition Constitutionalism, Dorothy E. Roberts

Faculty Scholarship at Penn Law

In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is ...


What Gideon Did, Sara Mayeux Jan 2016

What Gideon Did, Sara Mayeux

Faculty Scholarship at Penn Law

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on ...


The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer Jan 2016

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

Faculty Scholarship at Penn Law

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current ...


Bait And Switch: Why United States V. Morrison Is Wrong About Section Five, Kermit Roosevelt Iii Jan 2015

Bait And Switch: Why United States V. Morrison Is Wrong About Section Five, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

As the title suggests, the article examines Morrison’s creation of the rule that the Section Five power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by—indeed, “controlled by”—precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case. An independent evaluation of the ...


Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani Jan 2015

Administrative Equal Protection: Federalism, The Fourteenth Amendment, And The Rights Of The Poor, Karen M. Tani

Faculty Scholarship at Penn Law

This Article intervenes in a burgeoning literature on “administrative constitutionalism,” the phenomenon of federal agencies — rather than courts — assuming significant responsibility for elaborating the meaning of the U.S. Constitution. Drawing on original historical research, I document and analyze what I call “administrative equal protection”: interpretations of the Fourteenth Amendment’s Equal Protection Clause in a key federal agency at a time when the Clause’s meaning was fiercely contested. These interpretations are particularly important because of their interplay with cooperative federalism — specifically, with states’ ability to exercise their traditional police power after accepting federal money.

The Article’s argument ...


Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee Jan 2014

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

Faculty Scholarship at Penn Law

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 ...


Reconciling Equal Protection Law In The Public And In The Family: The Role Of Racial Politics, Dorothy E. Roberts Jan 2014

Reconciling Equal Protection Law In The Public And In The Family: The Role Of Racial Politics, Dorothy E. Roberts

Faculty Scholarship at Penn Law

In Constitutional Colorblindness and the Family, Katie Eyer brings to our attention an intriguing contradiction in the Supreme Court's equal protection jurisprudence. Far from ending race‐based family law rules with its 1967 decision, Loving v. Virginia, the Court has ignored lower courts' decisions approving official uses of race in foster care, adoption, and custody decisions in the last half century. Thus, as Eyer observes, “during the same time that the Supreme Court has increasingly proclaimed the need to strictly scrutinize all government uses of race, family law has remained a bastion of racial permissiveness.”

Scholars who oppose race ...


Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal Jan 2013

Debate: The Constitutionality Of Stop-And-Frisk In New York City, David Rudovsky, Lawrence Rosenthal

Faculty Scholarship at Penn Law

Stop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light ...


Valid Rule Due Process Challenges: Bond V. United States And Erie’S Constitutional Source, Kermit Roosevelt Iii Jan 2013

Valid Rule Due Process Challenges: Bond V. United States And Erie’S Constitutional Source, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

This article begins by asking what constitutional provision is violated by the enforcement of law without a lawmaker. Taking a positivist view—i.e., that law does not exist without a lawmaker—it concludes that the problem of law without a lawmaker collapses into the problem of coercion without law. Coercion without law violates the Due Process Clause in an obvious way: it is deprivation of something “without … law.” The article then explores the existence of this form of substantive due process in American law, arguing that we find it in three somewhat surprising places: Lochner-era substantive due process ...


Originalism And The Other Desegregation Decision, Ryan C. Williams Oct 2012

Originalism And The Other Desegregation Decision, Ryan C. Williams

Faculty Scholarship at Penn Law

Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively "incorporates ...


United States Sovereign Debt: A Thought Experiment On Default And Restructuring, Charles W. Mooney Jr. Jan 2012

United States Sovereign Debt: A Thought Experiment On Default And Restructuring, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This chapter adopts the working assumption that it is conceivable that at some time in the future it would be in the interest of the United States to restructure its sovereign debt (i.e., to reduce the principal amount). It addresses in particular U.S. Treasury Securities. The chapter first provides an overview of the intermediated, tiered holding system for book-entry Treasuries. For the first time the chapter then explores whether and how—logistically and legally—such a restructuring could be effected. It posits the sort of dire scenario that might make such a restructuring advantageous. It then outlines a ...


Associational Privacy And The First Amendment: Naacp V. Alabama, Privacy And Data Protection, Anita L. Allen Jan 2011

Associational Privacy And The First Amendment: Naacp V. Alabama, Privacy And Data Protection, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii Jan 2011

What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

No abstract provided.


Plenary No Longer: How The Fourteenth Amendment "Amended" Congressional Jurisdiction-Stripping Power, Maggie Blackhawk Jan 2011

Plenary No Longer: How The Fourteenth Amendment "Amended" Congressional Jurisdiction-Stripping Power, Maggie Blackhawk

Faculty Scholarship at Penn Law

This Note proposes a solution to the long-standing debate among federal courts scholars as to where to draw the limits of congressional power to strip appellate jurisdiction from the Supreme Court and to strip original jurisdiction from the lower federal courts. Although the Supreme Court has rarely addressed the possibility of limitations on congressional jurisdiction-stripping power, the few determinative cases to go before the Court reveal an acceptance of the orthodox view of plenary power. Proponents of the orthodox view maintain that state courts, bound to hear constitutional claims by their general jurisdictional grant and to enforce the Constitution by ...


Originalism And Its Discontents (Plus A Thought Or Two About Abortion), Mitchell N. Berman Jan 2007

Originalism And Its Discontents (Plus A Thought Or Two About Abortion), Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


Litigating Civil Rights Cases To Reform Racially Biased Criminal Justice Practices, David Rudovsky Jan 2007

Litigating Civil Rights Cases To Reform Racially Biased Criminal Justice Practices, David Rudovsky

Faculty Scholarship at Penn Law

No abstract provided.


Forget The Fundamentals: Fixing Substantive Due Process, Kermit Roosevelt Iii Jan 2006

Forget The Fundamentals: Fixing Substantive Due Process, Kermit Roosevelt Iii

Faculty Scholarship at Penn Law

No abstract provided.


Running In Place: The Paradox Of Expanding Rights And Restricted Remedies, David Rudovsky Jan 2005

Running In Place: The Paradox Of Expanding Rights And Restricted Remedies, David Rudovsky

Faculty Scholarship at Penn Law

No abstract provided.


Constitutional Choices: Legal Feminism And The Historical Dynamics Of Change, Serena Mayeri Jan 2004

Constitutional Choices: Legal Feminism And The Historical Dynamics Of Change, Serena Mayeri

Faculty Scholarship at Penn Law

No abstract provided.


"A Common Fate Of Discrimination": Race-Gender Analogies In Legal And Historical Perpsective, Serena Mayeri Jan 2001

"A Common Fate Of Discrimination": Race-Gender Analogies In Legal And Historical Perpsective, Serena Mayeri

Faculty Scholarship at Penn Law

No abstract provided.


The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer Jul 1997

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

Faculty Scholarship at Penn Law

No abstract provided.


Territoriality And Moral Dissensus: Thoughts On Abortion, Slavery, Gay Marriage And Family Values, Seth F. Kreimer Jan 1996

Territoriality And Moral Dissensus: Thoughts On Abortion, Slavery, Gay Marriage And Family Values, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Principled Silence, Tobias Barrington Wolff Jan 1996

Principled Silence, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

No abstract provided.


The Proposed Equal Protection Fix For Abortion Law: Reflections On Citizenship, Gender, And The Constitution, Anita L. Allen Jan 1995

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

Faculty Scholarship at Penn Law

No abstract provided.


The Constitutionality Of Enjoining Criminal Street Gangs As Public Nuisances, Christopher S. Yoo Jan 1994

The Constitutionality Of Enjoining Criminal Street Gangs As Public Nuisances, Christopher S. Yoo

Faculty Scholarship at Penn Law

California jurisdictions have increasingly used injunctions to combat the growth criminal street gangs. The use of civil sanctions to redress criminal activity raises difficult constitutional questions, potentially creating personal criminal codes that may infringe upon defendants’ substantive constitutional rights. In addition, employing civil remedies may deprive defendants of constitutional procedural protections that would have been provided if the jurisdiction had elected to deter the same behavior with available criminal sanctions. Although the use of injunctions places pressure on a number of substantive constitutional rights, including the freedom of association, freedom of expression, right to travel, the injunction terms will likely ...


The Law Of Choice And Choice Of Law: Abortion, The Right To Travel, And Extraterritorial Regulation In American Federalism, Seth F. Kreimer Jan 1992

The Law Of Choice And Choice Of Law: Abortion, The Right To Travel, And Extraterritorial Regulation In American Federalism, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Autonomy's Magic Wand: Abortion And Constitutional Interpretation, Anita L. Allen Jan 1992

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

Faculty Scholarship at Penn Law

No abstract provided.


Tribe's Judicious Feminism, Anita L. Allen Nov 1991

Tribe's Judicious Feminism, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Punishing Drug Addicts Who Have Babies: Women Of Color, Equality, And The Right Of Privacy, Dorothy E. Roberts Jan 1991

Punishing Drug Addicts Who Have Babies: Women Of Color, Equality, And The Right Of Privacy, Dorothy E. Roberts

Faculty Scholarship at Penn Law

No abstract provided.


Mark Tushnet On Liberal Constitutional Theory: Mission Impossible, Frank Goodman Jan 1989

Mark Tushnet On Liberal Constitutional Theory: Mission Impossible, Frank Goodman

Faculty Scholarship at Penn Law

No abstract provided.