Heightened Scrutiny Journal of Constitutional Law

Penn Law
Heightened Scrutiny

Penn JCL Online

The official online companion to the Journal of Constitutional Law

JCL Online is part of the Journal’s larger strategic vision of fostering academic discourse on cutting-edge issues in constitutional law.  Volume 14 established JCL Online, originally called Heightened Scrutiny, as the Journal’s online supplement, and Volume 15 was the first edition to be formally published as a companion to our print edition.  

Essays published on JCL Online in Volume 16 or earlier may be cited as U. Pa. J. Const. L. Height. Scrutiny. Thereafter, cite to U. Pa. J. Const. L. Online. 

Volume 16 Online Exclusives

Paroline, Restitution, and Transferred Scienter: Child Pornography Possessors and Restitution Based on a Commerce Clause-Derived, Aggregate Proximate Cause Theory

Adam Lamparello & Charles E. MacLean 

March 2014

On January 22, 2014, the Supreme Court heard oral argument in Paroline v. United States. Paroline addresses a circuit split over whether the federal restitution statute requires a victim of child pornography to show a causal connection between the underlying harm and the acts of those who possess, but do not manufacture, the sexually explicit images. In this Essay, Professors Lamparello and MacLean adopt a middle ground approach based upon a theory of aggregation that is often involved in the Court’s commerce clause jurisprudence. Their approach aims to strike a balance between the victim’s right to full restitution and the possessor’s due process rights. 

What Happens if Data is Speech?

Josh Blackman

February 2014

Recently, courts have grappled with the question of whether data is speech for purposes of the First Amendment. Google, and other tech giants, have defended their algorithmic outputs under the guise of free speech. This essay considers the next question in this emerging area of the law. What happens if data is speech?

Josh Blackman explores how affording constitutional scrutiny to data-based outputs impacts the validity of data privacy laws. He then considers whether the lack of regulation of search engines or the regulations themselves pose a greater threat to free expression. The essay concludes by offering a framework of how courts should treat algorithmic output for purposes of the First Amendment.

Is Bakke Now a Super-Precedent and Does it Matter? 

Mark S. Kende

December 2013

Professor Mark Kende examines the Supreme Court’s decision in Fisher v. University of Texas in light of the journey from Bakke to Grutter and Gratz. Has Justice Powell’s opinion in Bakke assumed the role of “super-precedent” and, if it has, what does that mean for future affirmative action cases?