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Penn Law faculty predictions for the legal landscape in 2020

December 17, 2019

What’s coming on the legal front in 2020? Penn Law professors tell us what to expect.

The faculty at the University of Pennsylvania Carey Law School is poised to address a new year of legal challenges, debates, and changes, and in this feature they offer their expert analyses on what the legal landscape will look like in 2020, from climate change, criminal law, and immigration to startup governance, patents, and impeachment.

Health care law expert Professor of Law Allison Hoffman, for example, predicts “that health law will remain front and center in the headlines, election debates, and the courts in 2020.”

Also sharing their perspectives and insights are:

Edward B. Shils Professor of Law and Professor of Political Science Cary Coglianese, Director of the Penn Program on Regulation:

“With respect to climate change, some predictions for next year seem rather sure bets. In the year 2020, the world will continue to see the accumulation of greenhouse gases. Individuals and businesses will experience still further effects of a changing planet with the manifestation of heightened risks of storms, fires, floods, droughts, and heat waves.

“At the same time, in terms of legal and policy responses to climate change, the nations of the world will continue to struggle to take effective coordinated action. With the recently concluded climate talks in Madrid leaving important implementing details still unresolved, international negotiations will continue over key aspects of the global climate framework established under the Paris Agreement. At the same time, and under that same framework, individual countries are supposed to come forward in 2020 with revised ‘nationally determined contributions.’ These updated pledges are supposed to demonstrate renewed commitment to making progress in reducing greenhouse gas emissions. But how many countries will do so — or do so with adequate ambition and resolve — remains very much an open question.

“Hanging over the future of the Paris Agreement is the U.S. government’s declared intent to withdraw from the treaty, a withdrawal slated to take official effect on November 4, 2020 — the day after election day in the United States. What happens at the U.S. ballot box on election day will undoubtedly affect the future of legal and policy action over climate change. Yet even if the United States sees a new administration take office in January 2021, social and political activism will continue to be needed to stem the tide of populism around the world that is undercutting much-needed political support for international environmental cooperation.”

Professor of Law Elizabeth Pollman, who joins the Law School faculty in January 2020:

“In 2020, I predict we’ll see lots more turmoil with late-stage startups and their governance, the continued importance of private markets, and tech-enabled employee activism. The debate about corporate purpose will likely continue to evolve and ‘ESG’ will be brought in line with mainstream corporate governance. The regulation of big tech will get even hotter.”

Professor of Law John Hollway, Executive Director of the Quattrone Center for the Fair Administration of Justice

“I think in 2020 we can expect to see more prosecutors making their data available to the general public, more exonerations of wrongful convictions originating in Conviction Integrity Units, and more public sentinel event reviews Following those cases so that the system can rebuild its relationships with communities by acknowledging and learning from its mistakes.”

Algernon Biddle Professor of Law and Professor of Philosophy Claire Finkelstein, Director of the Center for Ethics and the Rule of Law (CERL)

“2020 will bring us a bruising impeachment trial in the Senate, particularly over the question of whether witnesses will be called and if so whom.  Without additional witnesses drawn from the President’s key advisers and former advisers, there is little likelihood that Republicans in the Senate will vote with the Democrats.  If Trump is voted in for a second term, the chances of impeachment may go up somewhat after the election, as there are several key races in the Senate where Democrats could pick up seats, namely Maine, Colorado, Arizona and North Carolina. It seems unlikely, however, that Democrats will be in the majority in the 117th Senate, and still less likely that they will command the two-thirds supermajority they need to remove the President.

“Following the current Inspector General’s report, we may see a bipartisan effort to reform the FBI’s activities by amending the FISA process, as Democrats have long been concerned to the privacy of Americans from the surveillance of their own intelligence community and Republications are convinced that, as Attorney General Barr recently put it, the Trump campaign was ‘spied on’ by the FBI. Assuming Democrats retain their majority in the House, they may also return to the issue of constraints on the ability of the President to re-appropriate military funding for other purposes, which they recently had to give up on in the military funding bill that just passed. Moving forward, Democrats will seek a number of different avenues for trying to hold the president accountable, and we may see a renewed effort to examine limits to executive authority.”

Professor of Law, Business Economics, and Public Policy David Abrams

“In criminal law, I expect to see a continuation of the bipartisan reform efforts both at the federal and state levels. This should include reforms to drug laws, potentially including federal legalization of marijuana. At the state level and local levels, we will see more reforms aimed at a reduction of reliance on cash bail. We will also likely see an expansion of automatic criminal record expungement for low-level offenders who have not reoffended. A new area of focus that may lead to legal reforms in 2020 is the reduction or elimination of administrative fees that can have outsize effects for indigent offenders.

“In the intellectual property sphere, I expect there to be a continued emphasis on appropriate eligible subject matter for patents. This is something my class discussed with USPTO director Andrei Iancu in discussions with him both at the PTO and on campus. The Supreme Court has some opportunities to clarify outstanding questions, particularly as related to DNA, medical devices, business methods and software.”

Practice Professor of Law Sarah Paoletti, Director of Transnational Legal Clinic:

“As we head into 2020, the Trump Administration continues to push policies and practices aimed at restricting immigration and effectively denying asylum seekers the right to seek refuge in the United States. The open question is whether the courts will continue to hold the line on the most egregious of policies and whether pending nationwide injunctions protecting the basic human rights of migrants will hold. Among the issues pending before the courts are the reallocation of funding to build a border wall, and the termination of DACA (Deferred Action for Childhood Arrivals). Courts in California and DC considering the fate of the border wall have been called upon to ensure the Administration cannot use its executive powers to trump the rights of the indigenous and binational communities who live, work, worship and play along the border, overriding the significant environmental concerns associated with building the wall.

“Meanwhile, we await the Supreme Court’s decision on the fate of DACA (Deferred Action for Childhood Arrivals), which has granted work authorization and drivers’ licenses and opened up opportunities for 800,000 recipients to the benefit of their families and the broader communities to which they daily contribute.

“While I am beyond predicting what the Trump Administration will do next in carrying out its anti-immigrant agenda, I am certain advocates, lawyers, and immigrants themselves will continue to tread on the well-worn steps of the courts, to flood the federal agencies with comments on proposed rules, and to demand congressional action in an effort to preserve the most basic of human rights for all.”