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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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 Perilous Times: Perspectives from the Academy, the Bench, and the Bar,” a series of articles, essays, and commentaries addressing the current state and direction of the judiciary. Contributors include scholars, judges, and practitioners whose extensive experience and diverse perspectives illuminate the relationship between judicial independence and accountability, as well as the forces which shape that relationship. Contributions to the series will be published throughout the summer and fall. The series begins with Professor Stephen B. Burbank's “Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower.” From his experiences as a Supreme Court clerk during Watergate, as a reporter on the judicial committee implementing the Judicial Conduct and Disability Act, and finally as a law professor deeply engaged in the study of judicial power, Professor Burbank suggests several lessons on how judicial accountability is essential to maintaining an independent judiciary.

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this Essay, I aim to provide practical context for some of the important lessons to be learned from the periods of stress for the federal judiciary that I have observed as a lawyer and concerned citizen and to provide theoretical context for lessons I have deemed significant as a scholar.

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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...

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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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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 Financial Protection Bureau’s “novel” structure over vociferous dissent. Yet the divisive constitutional and statutory challenges to the Bureau mirror those levied against its predecessor and partner agency, the Federal Trade Commission, beginning nearly a century ago. The anxiety produced by consumer protection’s infringement on freedom of contract is not “novel.” In this Essay, we explain how the trans‐substantive constitutional and administrative law principles at play in PHH should not distract from the substantive debates about consumer protection underlying the controversy. In short, PHH should be recognized as much as a referendum on “Consumer Financial Protection” as it is on the “Bureau.”

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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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