Essay

The Radical-Incremental Change Debate, Racial Justice, and the Political Economy of Teachers’ Choice

Essay

Radical or incremental change? In this profound moment of racial reckoning, that is the fundamental question that divides those within the growing movement for racial justice. It is also a question at the crux of several essays in this important trans-journal symposium.

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Trolls & The Preemption Dilemma

Essay

Patent trolls account for most patent assertions and are often blamed for the increased costs of patent litigation. Congress and the...

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Avoiding Legal Scrutiny: The U.S. Release of a Suspected ISIL Fighter to Avoid a Legal Challenge to the War on ISL

Essay

In September 2017, an American citizen known as John Doe, who had been fighting for ISIL in Syria, was turned over to the American...

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Considering Reconsidering Judicial Independence

Essay

The University of Pennsylvania Law Review Online presents the second installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar.” The series continues with Professor Charles Geyh’s response, “Considering Reconsidering Judicial Independence.” Professor Geyh draws on Professor Burbank’s idea that judicial independence and judicial accountability are merely “two sides of the same coin” and goes further, positing that the two‐sided coin and its expected cyclical return to equilibrium is a “Hallmark after‐school special” version of the reality, and that curbing the erosion of the public perception of the judiciary will take more than reliance on that cycle perpetuating.

Primarily, Professor Geyh shows that in order to slow and stop the downward spiral, we must wean ourselves off the “antiquated” approach to judicial independence and accountability—the rule‐of‐law paradigm—by turning toward of a more robust “legal culture” paradigm which takes into account the fact that, indeed, judges’ decisions are necessarily subject to extra‐legal influences.

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Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower

Essay

The University of Pennsylvania Law Review Online presents the first installment of “Independent and Accountable Courts in...

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Judicial Independence Under Attack: A Theory of Necessity

Essay

Did the longest government shutdown in United States history this past winter constitute a severe threat to a functioning and...

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Following the Letter of the Law Into Absurdity: Why the Supreme Court’s Severability Rule Does Not Preclude Determining an Arbitration Provision’s Enforceability Under the Law Supplied by an Agreement’s General Choice-of-Law Clause

Essay

A new hire signs an employment agreement. The agreement contains an arbitration provision. Embedded in the arbitration provision is a one‐sentence delegation clause granting the arbitrator exclusive authority to decide threshold issues of arbitrability, including whether the arbitration provision is valid and enforceable. The agreement has a general choice‐of‐law clause providing that California law applies to the entire agreement, including the arbitration provision and delegation clause. An employee based outside California sues the employer in court and argues that the arbitration provision and delegation clause are unenforceable. Should the court apply California law or the law of the employee’s home state to the enforceability analysis? Several courts have confronted and wrongly answered that question in recent litigation involving Uber. Why they got it wrong—their misapplication of the Supreme Court’s severability rule—is the subject of this essay.

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PHH Corporation v. Consumer Financial Protection Bureau: Financial Fairness and Administrative Anxiety

Essay

In PHH Corporation v. Consumer Financial Protection Bureau, the D.C. Circuit upheld the constitutionality of the Consumer...

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Rogue Retailers or Agents of Necessary Change? Using Corporate Policy as a Tool to Regulate Gun Ownership

Essay

The tragedy of the Parkland, Florida high school shooting shocked the nation and sent thousands of student protestors out of the...

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The Disparate Impact Canon

Essay

In early January, the U.S. Supreme Court heard oral argument in Husted v. A. Philip Randolph Institute. The case presented a question of pure statutory interpretation: whether Ohio’s procedure for updating its voter registration rolls violates § 8(b)(2) of the National Voter Registration Act (NVRA). At oral argument, Justice Sonia Sotomayor raised the possibility of resolving the case according to a new, potentially revolutionary canon of statutory construction: interpreting federal laws, where reasonably possible, to avoid, minimize, or prohibit racially disparate impacts. Adopting this rule would have important ramifications across numerous fields of law, raise serious constitutional questions, and represent a tremendous victory for the critical race theory movement, which has long emphasized the law’s role in perpetuating structural racial inequality. This potential canon also implicates compelling questions—questions that arose during Justice Sotomayor’s confirmation proceedings—concerning the proper role of judges.

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