The Legal Workshop

The Yale Law Journal has recently become a contributing member of The Legal Workshop, joining Cornell Law Review, Duke Law Journal, Georgetown Law Journal, NYU Law Review, Northwestern University Law Review, Stanford Law Review, and William and Mary Law Review. For its debut post, YLJ has contributed The Incidental Unconstitutionality of the Individual Mandate, by Gary S. Lawson and David B. Kopel.

The post is based on Gary Lawson & David B. Kopel, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale L.J. Online 267 (2011), http://yalelawjournal.org/2011/11/08/lawson&kopel.html. That YLJO Essay was written as a reply to Andrew Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 Yale L.J. Online 1 (2011), http://yalelawjournal.org/2011/04/26/koppelman.html. For subsequent installments in this series, see Andrew Koppelman, Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism, 121 Yale L.J. Online 515 (forthcoming March 2012); and Gary Lawson & David B. Kopel, Bad News for John Marshall, 121 Yale L.J. Online 529 (forthcoming March 2012).

Recent Media Coverage of YLJ Content

In a post on Election Law Blog, Professor Rick Hasen has recommended Fran Faircloth’s Comment, The Future of the Voting Rights Act: Lessons from the History of School (Re-)Segregation. The comment was published in the January 2012 issue of The Yale Law Journal. Faircloth is Managing Editor of Volume 121 and a third-year student at Yale Law School.

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 on at least one claim 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.