Legal Theory Blog has recently recommended two Yale Law Journal essays: Abbe R. Gluck’s Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond; and Michael C. Dorf and Neil Siegel’s forthcoming YLJO essay, “Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision. Mike Sacks and John Celock also feature a discussion of Dorf and Siegel’s essay in their recent Huffington Post article, Supreme Court Can’t Dodge Health Care Law’s Fate Under Bill From GOP Lawmaker.

In Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, published in the December 2011 issue, Abbe R. Gluck explores the oft-ignored topic of state implementation of federal law. Gluck raises the question of whether doctrine should protect “intrastatutory federalism,” which she defines as the “informal federalism” that emerges when states carry out acts of Congress. She argues that statutory interpretation canons fail to address the complicated issues that arise in the intrastatutory-federalism context, and she suggests a range of possible doctrinal responses to this increasingly prevalent phenomenon.

In “Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision, Michael C. Dorf and Neil Siegel examine whether the Tax Anti-Injunction Act (TAIA) bars the Supreme Court from reviewing the current challenges to the Patient Protection and Affordable Care Act (ACA). While most of the commentary on the TAIA issue has focused on the question of whether the ACA’s penalty provisions fall within the TAIA’s definition of “tax,” Dorf and Siegel adopt an alternative and original approach. Dorf and Siegel argue that the TAIA does not bar the review because “the present challenges to the ACA do not have ‘the purpose’ of restraining tax assessment or collection.” That purpose must be immediate because if the TAIA extended to challenges with the indirect purpose of restraining tax assessment or collection, it would also bar tax refund suits. ACA challenges cannot have the direct purpose of barring review because “the very authority to assess or collect will not exist until long after the litigation is concluded.”

A forthcoming YLJ Note has already received attention from legal commentators. Jonah Gelbach, a second-year student at Yale Law School, has written a Note titled Locking the Doors to Discovery? Conceptual Challenges in and Empirical Results for Assessing the Effects of Twombly and Iqbal on Access to Discovery. Read Lawrence Solum’s discussion of the Note on Legal Theory Blog and Alison Frankel’s On the Case post about it on the Thomson Reuters legal news site. 

In the forthcoming Note, Gelbach uses publicly available data and a new empirical approach to study the effects of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. Although the grant rate for Rule 12(b)(6) motions to dismiss pre-Twombly is about the same as the grant rate for Rule 12(b)(6) motions to dismiss post-Iqbal, Gelbach shows that defendants file Rule 12(b)(6) motions much more frequently post-Iqbal than they had in the pre-Twombly era.

Gelbach concludes that “among cases not involving financial instruments, civil rights, or employment discrimination, at least 18% of those that faced a Rule 12(b)(6) MTD during the post-Iqbal period ultimately will have been prevented from reaching discovery as a result of the switch to heightened pleading.” Gelbach also casts doubt on the common expectation that Twombly and Iqbal would have the most dramatic effects in the civil rights and employment discrimination contexts: his lower-bound estimates for the effects of Twombly and Iqbal on civil rights and employment discrimination cases are almost exactly the same as his lower-bound estimate for the effects of the decisions on other types of suits.

Gelbach’s Note will be published in Volume 121 of The Yale Law Journal in 2012. To read a preliminary draft on SSRN, please click here.

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In her recent New Yorker article entitled Birthright, Jill Lepore cites to Linda Greenhouse and Reva Siegel’s Before (and After) Roe v. Wade: New Questions About Backlash from Issue 8 of Volume 120 of The Yale Law Journal. Lepore writes:

But Linda Greenhouse and Reva Siegel, both of whom teach at Yale Law School, have argued that th[e] conventional narrative [of Roe v. Wade] gets history backward. In an article published in the Yale Law Journal in June, they suggest that what happened after Roe was a consequence not of the Court’s ruling but of G.O.P. strategists’ attempt to redefine the Party—before Roe. In their account, if there’s a villain it’s not Harry Blackmun; it’s Richard Nixon.¹

In their Feature essay, Greenhouse and Siegel challenge the common belief that the Supreme Court was the one to blame for the consequences of Roe v. Wade. They address “abortion conflict as an expression of politics—a conflict in which the Supreme Court was not the only or even the most important actor.”² Greenhouse and Siegel reveal that just prior to Richard Nixon’s 1972 campaign, the Democrats held a more conservative stance on abortion than did the Republicans, and that the conflict over Roe developed as the parties adjusted and realigned their respective positions. Greenhouse and Siegel conclude that “the dominance of the ‘Court-caused-it’ backlash narrative has shortchanged both legal scholars and the general public of a more complete understanding of an important chapter in America’s social, political, and legal history.” According to Greenhouse and Siegel, conflict in constitutional interpretation emerges from “sources outside as well as inside the courtroom,” a reality that the “conventional Court-centered narrative” all too often ignores.<sup>3

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1</sup> Jill Lepore, American Chronicles, Birthright, The New Yorker, November 14, 2011 at 44, 52, available at http://archives.newyorker.com/?i=2011-11-14#folio=052.
² Linda Greenhouse & Reva Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 228, 228 (2011), available at http://www.yalelawjournal.org/images/pdfs/987.pdf.
³ Id. at 2086.