The Yale Law Journal


18 Oct 2016

The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent

Neil S. Siegel

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, is relatively young by Supreme Court standards (66 years old), is methodologically conventional, and is uniquely reliable. As a consequence, many conservatives love to celebrate him as the ideal Justice, and many liberals love to condemn him as politically driven.

11 Oct 2016

The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman’s Health

Linda Greenhouse & Reva B. Siegel

As the case that became Whole Woman’s Health worked its way to the Supreme Court, few were confident about how the Court would respond to a law, enacted in the name of protecting women’s health, that would predictably shut most of a state’s abortion clinics. All agreed that the governing standard was the undue burden framework the Court had adopted a quarter century earlier in Planned Parenthood v. Casey. But the meaning of “undue burden” was in doubt. Opponents of the abortion right asserted that after the Court decided Gonzales v. Carhart, upholding the Partial Birth Abortion Ban Act, the Casey framework meant little more than rational basis deference to legislative decision making. Supporters were confident that the undue burden framework provided women more constitutional protection than that—but many still worried that the standard was too indeterminate to constrain state legislatures.

19 Sep 2016

Predicting Utah v. Streiff's Civil Rights Impact

Katherine A. Macfarlane

The Supreme Court’s recent Utah v. Strieff decision declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop. The opinion, in conjunction with Justice Sotomayor’s dissent, has reanimated discussions regarding when, if ever, criminal defendants can expect the exclusionary rule to apply. When applied, the exclusionary rule renders inadmissible evidence recovered through “unconstitutional police conduct”; the evidence’s exclusion reinforces the Fourth Amendment’s ban on unreasonable searches and seizures. Unlike most discussions of Strieff, which focus on its implications for criminal defendants,this Essay examines how Strieff will impact civil rights plaintiffs’ ability to recover damages for unconstitutional stops under 42 U.S.C. § 1983.

07 Sep 2016

Securities Settlements in the Shadows

Urska Velikonja

The Dodd-Frank Act authorized the Securities and Exchange Commission (“SEC”) to bring almost any enforcement action in an administrative proceeding. Before Dodd-Frank, the SEC could secure civil fines against registered broker-dealers and investment advisers in administrative proceedings, but had to sue in court non-registered firms and individuals, including public companies and executives charged with accounting fraud, or traders charged with insider trading violations. After the Dodd-Frank amendment, save for a few remedies that can only be obtained in court, the SEC can choose the forum in which it prosecutes enforcement actions.

08 Aug 2016

Innocence and Override

Patrick Mulvaney & Katherine Chamblee

For the past three decades, the practice of judicial override in capital cases has allowed Alabama judges to impose the death penalty even where the jury voted for life. However, recent developments have cast doubt on the future of override in Alabama. The United States Supreme Court struck down part of Florida’s capital sentencing scheme in January because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” In response, the Florida legislature eliminated override in March, and the Delaware Supreme Court invalidated its own state’s override system on August 2, leaving Alabama as the only state that still permits the practice. Override in Alabama has been attacked on other grounds as well; in 2013, two Justices of the United States Supreme Court expressed Eighth Amendment concerns that Alabama overrides are arbitrary and linked to political pressure.

27 Jul 2016

Protecting the Fourth Amendment in the Information Age: A Response to Robert Litt

Cindy Cohn

Robert Litt, General Counsel of the Office of the Director of National Intelligence, has offered a new analysis for the Fourth Amendment in the Information Age, grounded in two cases arising from the NSA’s domestic surveillance programs.1 As opposing counsel or amicus in the cases he cites in his argument, I thought it would be useful to respond.

18 Jul 2016

Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine

Laurence H. Tribe

The time is ripe for a reappraisal of the separation of powers as the organizing principle of our federal government. Most of the relevant doctrinal architecture has been constructed over the past seven decades. Perhaps because of Justice Robert H. Jackson’s incomparable brilliance as a writer, the two-dimensional landscape famously described in his concurring opinion condemning President Truman’s seizure of the U.S. steel industry has dominated discourse about the interaction of the three federal branches. Charting presidential conduct on the vertical axis of a map whose horizontal axis measures Congress’s position ranging from approval to disapproval gave Jackson an elegantly simple and memorable way to classify presidential actions from the most strongly defensible to the most constitutionally vulnerable.

07 Jul 2016

Apple and the American Revolution: Remembering Why We Have the Fourth Amendment

Clark Cunningham

On Thursday, February 18, 2016 the New York Times reported on its front page that an order issued by a federal court in California had “set off a furious public battle” between the Federal Bureau of Investigation and the Apple corporation “in a dispute with far-reaching legal implications.” The order would have forced Apple to create and give to the FBI new software capable of defeating the basic security features of Apple’s most famous product, the iPhone. Over the next two months the story that came be to be known as “FBI v Apple” probably received more national media coverage than any topic other than the 2016 presidential primaries; the New York Times alone published more than 30 additional articles on the subject, including three more on the front page, and the story made the cover of Time magazine. In explaining his company’s strenuous opposition, Apple CEO Tim Cook said: “[W]e fear that this demand would undermine the very freedoms and liberty our government is meant to protect.”

13 Jun 2016

Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws

Graham White

Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels. Three years later, the treatment had done just that. Rhoades’s risk of transmitting the virus to a sexual partner had been reduced by 93%, nearly the same reduction of risk associated with condom usage. Shortly thereafter, Rhoades engaged in consensual sexual activity with a man he met on a social networking site. The two men used additional protection. But Rhoades did not disclose his HIV-positive status until several days after their encounter. Rhoades’s sexual partner did not contract the virus. He pressed charges anyway under Iowa’s HIV criminal statute, which makes it a felony to expose another person to HIV. A jury convicted Rhoades in 2008. He was sentenced to twenty-five years in prison.

01 Jun 2016

Democracy and Legitimacy in Investor-State Arbitration

Cory Adkins & David Singh Grewal

In January 2016, the Canadian infrastructure company TransCanada Corporation filed a notice of intent to sue the United States government in a North American Free Trade Agreement (NAFTA) Chapter 11 arbitration over the Keystone XL pipeline. At the center of this dispute is the State Department’s refusal to permit the construction of an oil pipeline between Canada and Nebraska. TransCanada claims that the State Department ignored its own favorable environmental assessments of the pipeline multiple times and rejected the proposal to placate misinformed activists and foreign governments. The State Department acknowledges that it denied the permit to enhance the Obama Administration’s credibility at the 2015 United Nations Climate Change Conference in Paris, with the long-term goal of reducing emissions through collective political action.

27 May 2016

Can Corpus Linguistics Help Make Originalism Scientific?

Lawrence M. Solan

James Phillips, Daniel Ortner, and Thomas Lee begin their engaging essay, Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical, by pronouncing originalism “the predominant interpretive methodology for constitutional meaning in American history.” They then describe and attempt to justify a new tool to improve originalist methodology: a large corpus of Founding-era documents, representative of a host of genres available to educated people of that period. As their title suggests, the brand of originalism they set out to improve is the version at times dubbed “the new originalism”—an iteration that seeks to construe the Constitution in accordance with the understanding of the state constitutional convention members who read its words and heard its supporters at the time.

23 May 2016

The Rise of Bank Prosecutions

Brandon L. Garrett

Before 2008, prosecutions of banks had been quite rare in the federal courts, and the criminal liability of banks and bankers was not a topic that received much public or scholarly attention. In the wake of the last financial crisis, however, critics have begun to ask whether prosecutors adequately held banks and bankers accountable for their crimes. Senator Jeff Merkley complained: “[A]fter the financial crisis, the [Justice] Department appears to have firmly set the precedent that no bank, bank employee, or bank executive can be prosecuted.” Federal judge Jed Rakoff and many others asked why prosecutors brought, with one or two low-level exceptions, no prosecutions of bankers in the wake of the 2007-2008 financial crisis and whether they were too quick to settle corporate cases by merely compelling fines and “window-dressing” compliance reforms. The response from the Department of Justice (DOJ) to criticism of its approach towards corporate and financial prosecutions has ranged from stern denial that it had been remiss—as when Attorney General Eric Holder announced in a video message in 2014 that “[t]here is no such thing as too big to jail” and that no financial institution “should be considered immune from prosecution”—to reform in the face of acknowledged lack of public confidence in its approach—as when the DOJ in 2015 adopted policies designed to make corporate prosecutions more effective.

18 May 2016

Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical

James C Phillips, Daniel M. Ortner, & Thomas R. Lee

Originalism has been the predominant interpretive methodology for constitutional meaning in American history: it is the methodology that has been with us since the Constitution’s birth. With its rebirth in the latter part of the twentieth century and its theoretical evolution from original intent to original public meaning, originalism has been working itself pure—almost.

27 Apr 2016

The Fourth Amendment in the Information Age

Robert S. Litt

To badly mangle Marx, a specter is haunting Fourth Amendment law—the specter of technological change. In a number of recent cases, in a number of different contexts, courts have questioned whether existing Fourth Amendment doctrine, developed in an analog age, is able to deal effectively with digital technologies. 

11 Apr 2016

Contract and (Tribal) Jurisdiction

Matthew L.M. Fletcher

Consider two commercial contracts. The first requires customers to waive their rights to bring class actions against large businesses in favor of private arbitration. The second requires a reservation leaseholder to adjudicate disputes in tribal court. Both contracts require dispute resolution in fora over which the Supreme Court does not exercise supervisory jurisdiction. Both arbitration and tribal courts are favored by acts of Congress. Both contracts are hotly contested in the Supreme Court. But the arbitration clause contract has been affirmed in a series of recent decisions. The tribal court contract, by contrast, is pending before the Court in Dollar General Corp. v. Mississippi Band of Choctaw Indians. Ironically, while the more conservative Justices signed on to the arbitration clause decisions, these same Justices may be Dollar General’s best bets for escaping tribal jurisdiction. This short Essay details the key arguments in Dollar General and argues that to undo the tribal contract would unnecessarily and unconstitutionally undo the right to contract for Indian nations.