Law Commons^™

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 …

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

University of Pennsylvania Law Review

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

All Faculty Scholarship

No abstract provided.

Facebook Fallacies, Geoffrey C. Hazard Jr.

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No abstract provided.

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

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No abstract provided.

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

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This Article uses the history of equal employment rulemaking at the Federal Communications Commission (FCC) and the Federal Power Commission (FPC) to document and analyze, for the first time, how administrative agencies interpret the Constitution. Although it is widely recognized that administrators must implement policy with an eye on the Constitution, neither constitutional nor administrative law scholarship has examined how administrators approach constitutional interpretation. Indeed, there is limited understanding of agencies’ core task of interpreting statutes, let alone of their constitutional practice. During the 1960s and 1970s, officials at the FCC relied on a strikingly broad and affirmative interpretation of …

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

University of Pennsylvania Law Review Online

The February 19th, 2010 release of a memorandum by the Justice Department clearing former Bush Administration lawyers John Yoo and Jay Bybee of any professional misconduct for their roles in authoring the so-called torture memos may have closed the chapter on the case against Bush Administration lawyers for formal sanctions from the United States government. But the debate about the propriety of the lawyers’ actions and the proper repercussions for them is far from over. The DOJ memorandum has renewed debate in the press and the academy about the now-hypothetical just deserts for the two men, even while Spanish authorities …

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

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No abstract provided.

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

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No abstract provided.

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

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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 …

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

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No abstract provided.

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

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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. …

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

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No abstract provided.

The Real Separation In Separation Of Powers Law, Elizabeth Magill

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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

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No abstract provided.

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

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No abstract provided.

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

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No abstract provided.

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

All Faculty Scholarship

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

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No abstract provided.

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

All Faculty Scholarship

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 …

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

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No abstract provided.

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

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No abstract provided.

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

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No abstract provided.

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

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No abstract provided.

Tribe's Judicious Feminism, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Democracy And Its Critics, Cary Coglianese

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No abstract provided.

Government "Largesse" And Constitutional Rights: Some Paths Through And Around The Swamp, Seth F. Kreimer

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No abstract provided.

Look Before You Leap: Some Cautionary Notes On Civic Republicanism, Michael A. Fitts

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No abstract provided.

The Federalist's Plain Meaning: Reply To Tushnet, Anita L. Allen

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No abstract provided.

Privacy, Surrogacy, And The Baby M Case, Anita L. Allen

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No abstract provided.