Conventional historical accounts of the Fourth Amendment generally ignore the entire antebellum period. Fourth Amendment scholars of an originalist bent typically look to the three decades from the American Writs of Assistance controversy and the British Wilkesite cases in the 1760s, to the adoption of the Bill of Rights in 1791. Scholarship then jumps to the post-Civil War period and the first two Supreme Court decisions interpreting the Amendment, In re Jackson in 1878 and United States v. Boyd in 1886. Ignoring the entire antebellum period makes some sense given that the Supreme Court did not decide a single Fourth Amendment case during this lengthy period.

Qualified immunity is a frequent target of scholarly criticism. Normative critiques typically argue that qualified immunity is an unjust policy that fails to achieve its purported policy objectives, whereas positive critiques seek to undermine the doctrine’s legal foundations largely by demonstrating that the Supreme Court committed any number of historical and interpretive errors when it created qualified immunity. Typically absent from such critiques, however, is any analysis of whether qualified immunity itself is permissible under the Constitution. This Article seeks to fill that gap and demonstrates that qualified immunity is unconstitutional under both Article III and equal protection principles. Qualified immunity violates Article III by forcing federal courts to choose between forsaking their duty to say what the law is or else issuing advisory opinions in the form of unnecessary constitutional rulings. As for equal protection, qualified immunity affords similarly situated plaintiffs with different substantive rights based only on their respective geographic locations, thereby interfering with the fundamental right of equal access to the courts. Notably, although the Supreme Court read qualified immunity into 42 U.S.C. § 1983, it has never squarely addressed the constitutionality of the doctrine. Thus, unlike other criticisms of qualified immunity, lower courts may permissibly accept the constitutional arguments presented herein and sever qualified immunity from Section 1983.

Democracies die in darkness. And so do the prospects of constitutional tort plaintiffs. Whether on account of chaos, prison bars, uniform dress, or unconsciousness, people who have suffered a constitutional tort (say, police brutality) may have no idea who harmed them.1 These identification issues can hamper or even foreclose section 1983 and Bivens suits that might otherwise lead to the recovery of damages for constitutional violations.2

This Comment will analyze how Pennsylvania courts are applying appellate waiver doctrine, and how excessive application of this doctrine is detrimentally impacting litigants’ exercise of their state constitutional right to appeal. Appellate courts have discretion to determine that litigants have waived their arguments if litigants do not strictly comply with a complicated morass of procedural and technical requirements legally necessary to preserve their arguments. While scholarly articles have engaged with the doctrine of appellate waiver, there is important empirical work that has not yet been done regarding the seemingly disproportionate use of the doctrine in Pennsylvania specifically. Ultimately, this Comment will use empirical findings to put forth three main arguments: (1) Pennsylvania appellate court judges are concluding that litigants have waived their appellate claims too frequently (and far more frequently than are the judges in other Third Circuit states); (2) the rigorous and overly formalistic rules of appellate procedure in Pennsylvania are contributing to the excessive number of cases finding that litigants have lost their rights to appeal; and (3) productive reform can be achieved through: arguing that Pennsylvania is infringing on the constitutional right to appeal, increased judicial restraint regarding the application of waiver doctrine, amendments to Pennsylvania’s formal waiver doctrine, and/or clearer instructions to Pennsylvania litigants regarding the steps they must take to preserve their claims.

In a recent series of articles, William Baude and Stephen E. Sachs have defended originalism on positivist grounds.1 Originalism is the correct theory of constitutional interpretation, they claim, because our law is originalist. If our law is originalist, then originalism is true (for us) neither because of a conceptual truth about written constitutions (e.g., that writtenness implies originalism), nor because of normative considerations (e.g., originalism successfully curbs judicial subjectivity). Rather, originalism is true in virtue of our positive law. Baude and Sachs argue that reflection on our current constitutional practices demonstrates a commitment to a specific version of originalism—what they call inclusive originalism. From a positivist perspective, to ask whether originalism is true just is to ask whether, as an empirical matter, our practices demonstrate a commitment to originalism.2