University of Pennsylvania journal of constitutional law最新文献

{"title":"Good Enough for Government Work: Two Cheers for Content Neutrality","authors":"Seth F. Kreimer","doi":"10.2139/SSRN.2337499","DOIUrl":"https://doi.org/10.2139/SSRN.2337499","url":null,"abstract":"When then-Professor Elena Kagan emerged on the public stage in the mid-1990s, she declared “the distinction between content-based and content-neutral regulations of speech serves as the keystone of First Amendment law.” In the last decade and a half, commentators and Supreme Court opinions regularly echoed that declaration. Yet the First Amendment does not mention “content neutrality.” It is an artifact of modern constitutional doctrine - a doctrine subject to a sustained barrage of judicial and academic criticism.Most scholarly critiques of content neutrality focus on First Amendment theory and Supreme Court opinions. After surveying these critiques, along with the incomplete defenses of content neutrality, this Article seeks illumination by shifting to a more grounded focus. I compare the 614 reported cases in which the lower federal courts deployed the doctrine between September 2009 and February 2013 with the First Amendment cases decided by the Roberts Court. I analyze what political science and behavioral psychology tell us about the way that the content neutrality doctrine is likely to function in setting the terms of interaction between the private actors and government officials who actually populate and seek guidance from the case law.Unlike the recent Supreme Court docket, contemporary content neutrality cases in the lower courts center on contests between potential “village tyrants” - local officials and street level bureaucrats who will often find it difficult to hold fast to tolerant ideals - and local dissenters who are likely to provoke them. In these struggles, there are important reasons to prefer a strong doctrine of content neutrality to its proposed doctrinal competitors. Content neutrality is important not as a first best rule to assure that the Supreme Court properly implements a theory of the First Amendment, but as a usable norm for the government actors who make decisions before court proceedings commence and for the polity to which those actors answer.Content neutrality frames the terms of engagement between the governed and the governors of the United States in ways that incline the “general spirit of the people and the government” to the protection of rights of free expression. Its flamboyant protection of speech repugnant to a variety of constituencies means that the lived reality of free expression will mobilize support from an array of political factions. Content neutrality is, as the Court maintained in laying the doctrine’s foundations, an important practical element of constitutional architecture that preserves a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"16 1","pages":"1261"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68116992","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Constitutional Limitation on Trademark Propertization","authors":"Patrick J. Karol","doi":"10.2139/SSRN.2358506","DOIUrl":"https://doi.org/10.2139/SSRN.2358506","url":null,"abstract":"The following article seeks to apply the retrenchment in constitutional Commerce Clause jurisprudence of the last few decades to the phenomenon of trademark propertization, the expansive and largely federal movement towards protecting trademarks as assets apart from any connection to referent goods and services. Trademark scholars have filled the trademarks literature with critiques of propertization that generally object, on policy and historical grounds, to the trend and offer constructions of the Lanham Act designed to check its progress. With the notable exception of an article published in 2000 by Professor Kenneth Port, however, the literature has largely avoided addressing the question of whether the United States Congress possesses the authority to push trademark law so far in that direction.Building off of Barton Beebe’s semiotic account of trademark law, the article observes that much of the Commerce Clause case law in the trademark space is muddied by the failure to draw an analytic distinction between the trademark as such (i.e., the trademark’s signifier) and the goods and services with which it is used. Moreover, many of the seminal cases in the area predate such important new contributions to Commerce Clause jurisprudence as United States v. Lopez, Gonzalez v. Raich and even last year’s health care decision, National Federation of Independent Business v. Sibelius.Upon close review of these and other recent precedents, and a thorough application of contemporary, three-category Commerce Clause analysis to trademark propertization, the article concludes that there is, and should be, a firm constitutional limit to Congresses’ ability to regulate trademark signifiers detached from goods and services. Namely, Congress may not recognize or protect a property interest in trademarks as such except as a rational means of furthering the regulation of referent goods or services. Although distant and unreachable in most cases, this constitutional ceiling serves as a critical constructional limit on certain controversial trademark doctrines like dilution and the rule against assignments in gross, and prevents the U.S. Congress from ever recognizing pure trademarks in the abstract as property upon creation. Although a complete defense of trademark “localism” is outside of the article’s scope, it ends by offering some basic policy and structural justifications for accepting this limit on federal authority in the trademark sphere.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"17 1","pages":"1065"},"PeriodicalIF":0.0,"publicationDate":"2013-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68137901","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Executive Warmaking Authority and Offensive Cyber Operations: Can Existing Legislation Successfully Constrain Presidential Power?","authors":"Eric Lorber","doi":"10.2139/SSRN.2017036","DOIUrl":"https://doi.org/10.2139/SSRN.2017036","url":null,"abstract":"Offensive cyber operations represent a broad new frontier in warfare that allow states to achieve kinetic-like effects without using traditional means such as airstrikes and troop deployments. For example, in a recent debate in the Obama Administration in the lead-up to the deployment of NATO forces in Libya, lawyers and policymakers considered using such cyber attacks in lieu of traditional military operations to disable Libya’s air defense network. Yet, like many areas of emerging warfare, a bevy of questions concerning the legality of these new types of operations arise. In particular, American policymakers have only begun to question whether the use of cyber weapons – such as the Stuxnet virus purportedly developed by the United States and Israel and responsible for attacking and destroying Iranian uranium enrichment facilities – trigger traditional means of limiting the President’s war-making authority, such as the War Powers Resolution.This article examines the interaction of this new tool of warfare with the War Powers Resolution, one of the most controversial means by which Congress has attempted to limit the President’s ability to use his Article 2, Section 2 authority as Commander in Chief to deploy U.S. military forces. 50 U.S.C. sec. 1541–1548. At its core, the article answers the following questions: insofar as it is constitutional, can (and under what circumstances) the War Powers Resolution serve as an effective limit on the President’s Article 2, Section 2 power? Conversely, does this new type of tool help the executive branch evade Congressional oversight of U.S. military operations?","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"15 1","pages":"961"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2017036","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67855601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Appraising 9/11: ‘Sacred’ Value and Heritage in Neoliberal Times","authors":"Mateo Taussig-Rubbo","doi":"10.2139/SSRN.2213532","DOIUrl":"https://doi.org/10.2139/SSRN.2213532","url":null,"abstract":"On September 11, 2001, United Airlines Flight 93 — one of the four airplanes hijacked that day — crashed into a vacant parcel of land in rural Pennsylvania, killing all on board. For many, including family members of those killed in the attack and the Park Service that now manages the national memorial at the site, the former strip mine was transformed into ‘sacred’ ground. Unable to settle on a price with the landowner, in 2009 the government took the property through eminent domain. Focusing on the ongoing effort in United States of America v. 275.81 Acres of Land to determine the amount of compensation due the owner under the Fifth Amendment, this article tells the story of this piece of property. It argues that even if the attack increased the monetary value of the site fifty-fold as the landowner’s stigma appraiser contends, the government should not have to pay that enhanced amount. The Supreme Court has repeatedly stated that just compensation is grounded in equity. Unlike other windfalls, there are equitable reasons why this increase should not accrue to the landowner.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"18 1","pages":"1179-1230"},"PeriodicalIF":0.0,"publicationDate":"2013-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67996194","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World","authors":"M. Leary","doi":"10.2139/ssrn.2025485","DOIUrl":"https://doi.org/10.2139/ssrn.2025485","url":null,"abstract":"The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the Court has stated that it would adjust the definition of a search if the government tried to “condition” citizens to have no expectation of privacy. Today, those concerns have come to bear, but not in the way Amsterdam or the Court predicted, and the Court has failed to respond. Today, private commercial entities, not the government, have utilized technology to “condition” citizens to have no expectation of privacy. They have done so on two particular levels. First, these commercial entities have obtained private data about citizens, i.e. information from their “digital dossier.” They have then revealed the information to others resulting in citizens feeling as though “nothing is private.” Second, when these entities obtain the data, they do not afford the individuals the opportunity to “demonstrate” their subjective expectation of privacy. Since a “search” requires a demonstration of a subjective expectation of privacy, and these commercial entities have used today’s technology to strip citizens of any expectation of privacy or ability to demonstrate one, then little the government examines will constitute a “search” and trigger Fourth Amendment protections. This article identifies this assault on the expectation of privacy due to “commercial conditioning” of the consumer and proposes a viable legislative solution. It examines the Court’s existing approaches, including a thorough analysis of the recently articulated frameworks announced in the majority and concurring opinions of United States v. Jones, noting their inadequacy for today’s technological challenges. Utilizing the example of satellite imaging technology, it demonstrates the threat to privacy expectations unanticipated by the Court. This article proposes a new legislative framework for respecting privacy protections in response to these commercial induced privacy affronts. This framework, supported by analogous American law and European proposals, calls for an opt-in model. Before a citizen can be assumed to have voluntarily sacrificed his privacy, he must meaningfully opt in to the sharing of his private data. Such an opt-in must not conditioned upon the service but must be uncoerced. This approach advocates for addressing this unanticipated problem further upstream than other solutions by focusing on the commercial e","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"15 1","pages":"331"},"PeriodicalIF":0.0,"publicationDate":"2012-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67863949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unlikely Beginnings of Modern Constitutional Thought","authors":"L. Weinberg","doi":"10.2139/SSRN.2125471","DOIUrl":"https://doi.org/10.2139/SSRN.2125471","url":null,"abstract":"This paper notes an intellectual transformation occurring in relatively obscure cases in the New Deal Court. Among other things, these cases prefigure the advent of the tiered scrutiny characteristic of modern rights-based constitutional litigation. At a deeper level, they mark a revolution in constitutional analysis with resonance for our present structural understandings of national power, state power, and the workings of American federalism.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"15 1","pages":"291"},"PeriodicalIF":0.0,"publicationDate":"2012-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67927739","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Embracing a New Era of Ineffective Assistance of Counsel","authors":"J. Marceau","doi":"10.2139/SSRN.2116541","DOIUrl":"https://doi.org/10.2139/SSRN.2116541","url":null,"abstract":"The recent decisions in Missouri v. Frye and Lafler v. Cooper represent a seismic shift in the Court’s right to counsel jurisprudence. No longer is the right to counsel limited to protecting thefairness and adequacy of the trial. Although these two cases arose in the plea bargaining context, the doctrinal shift may have its greatest impact in cases where plea bargaining is not at issue.This Article identifies the salient features of this new — non-trial oriented — conception of the right to counsel and explains its far-reaching impacts on the day-to-day practice of criminal law.Specifically, this Article explains the import of the newly minted right to effective assistance as it relates to a variety of procedural constitutional rights, including speedy trial, pretrial detention, double jeopardy, and jury selection rights. The explicit recognition that the right to counsel is not only, or even primarily a trial or truth protecting right promises to be a staggeringly important constitutional event.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"14 1","pages":"1161"},"PeriodicalIF":0.0,"publicationDate":"2012-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67919858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What the New Deal Settled","authors":"J. Greene","doi":"10.7916/D89W0DMT","DOIUrl":"https://doi.org/10.7916/D89W0DMT","url":null,"abstract":"This brief essay, written in conjunction with a symposium comparing the Franklin Delano Roosevelt and Obama presidencies, explores the absence of substantive due process arguments in the Affordable Care Act litigation and attendant public discourse. I argue that a substantive due process argument against the Act's individual mandate is at least as sound doctrinally as a federalism-based argument, but to the extent such arguments have been made, they have been rejected as frivolous. I suggest that this phenomenon may result in part from political obstacles to coalescing around and funding a substantive due process argument and in part from the shadow Lochner v. New York casts over arguments that may be characterized (even inaccurately) as sounding in economic due process. The ACA litigation demonstrates one way in which Lochner's anticanonicity distorts modern legal argument.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"15 1","pages":"265"},"PeriodicalIF":0.0,"publicationDate":"2012-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71365527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Conspiracy Law's Threat to Free Speech","authors":"S. Morrison","doi":"10.2139/SSRN.1955159","DOIUrl":"https://doi.org/10.2139/SSRN.1955159","url":null,"abstract":"Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story.This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes the use of speech in conspiracy cases, and thereby reveals threats to free speech not recognized by past approaches to the subject.Current scholarship’s unipolar approach has led some commentators to conclude that conspiracy law poses no threat to freedom of speech. Contrary to the necessary assumptions underlying this conclusion, the All-Purpose Speech Model discounts the operational distinction between agreement, overt act, mens rea, and evidence thereof. It reveals that these elements and evidence in support of them collapse together, becoming homogenized. The result is that speech used as evidence becomes the crime of conspiracy itself. This raises serious concerns for free speech.This Article first provides a factual context by discussing conspiracy issues in terrorism, communism, and narcotics cases. It then sets forth the All-Purpose Speech Model by exploring the intersection between conspiracy law and free speech. Next, it uses Kent Greenawalt’s tripartite typology of speech and the category of speech integral to criminal conduct to establish a new four-part typology that is useful to analyzing the use of speech in conspiracy cases. Finally, it applies this typology to the extant system of speech protection, which includes the familiar concepts of high-value speech, low-value speech, and speech thought to be entirely outside of the First Amendment’s protection.This Article addresses only conspiracy’s threat to principles of freedom of speech. A different, and equally important, inquiry concerns its potential violation of the First Amendment. Recognizing the novelty of its argument and the political, evidentiary, and conceptual challenges of placing conspiracy charge-related speech under First Amendment protection, I reserve that inquiry for later work, so that it may be given the attention it deserves. Nonetheless, I conclude with a tentative foray into Brandenburg-related constitutional questions posed by conspiracy law.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"15 1","pages":"865"},"PeriodicalIF":0.0,"publicationDate":"2011-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1955159","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67811011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Constitutional Incompleteness Theorem","authors":"John F. Muller","doi":"10.2139/SSRN.1826984","DOIUrl":"https://doi.org/10.2139/SSRN.1826984","url":null,"abstract":"In this Article, I argue that some truths about our constitutional order are best left misunderstood. I do so by defending a self-deception at the core of American discourse on constitutionalism. We tend to speak as if our constitutional system rests upon an uncompromising inquiry into constitutional meaning, yet all viable interpretive theories privilege some concerns above such meaning, however they define it. This paradox, I argue, arises out of the tension between longstanding constitutional commitments to Enlightenment thought and the common law tradition. It also preserves an appearance of coherence that is, in my view, as vital as it is false. In elevating an Enlightenment ideal that belies our common law culture, we foster a redemptive vision of constitutionalism that binds us together even as conflicts over constitutional meaning drive us apart.","PeriodicalId":90761,"journal":{"name":"University of Pennsylvania journal of constitutional law","volume":"15 1","pages":"1373"},"PeriodicalIF":0.0,"publicationDate":"2011-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67755322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}