Yale Law Journal

Prison Law Writing Contest

joanna.zhang@yale.edu (Elizabeth A. Reid, Ernie Drain, Aaron Lowers) — Sat, 18 May 2013 21:16:42 GMT

122 Yale L.J. 2082 (2013).

Interpretation Step Zero: A Limit on Methodology as “Law”

joanna.zhang@yale.edu (Andrew Tutt) — Sat, 18 May 2013 21:15:38 GMT

122 Yale L.J. 2055 (2013).

The JOBS Act and Middle-Income Investors: Why It Doesn’t Go Far Enough

joanna.zhang@yale.edu (James J. Williamson) — Sat, 18 May 2013 21:13:59 GMT

122 Yale L.J. 2069 (2013).

How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change

joanna.zhang@yale.edu (Daniel Taylor Young) — Sat, 18 May 2013 21:12:51 GMT

122 Yale L.J. 1990 (2013).

Bruce Ackerman argues that major shifts in constitutional law can occur outside the Article V amendment process when there are unusually high levels of sustained popular attention to questions of constitutional significance. This Note develops a new empirical strategy to evaluate this claim using the debate over ratification of the Fourteenth Amendment as its test case. The Note applies a statistical process known as unsupervised topic modeling to a dataset containing over 19,000 pages of text from

U.S.

newspapers published between 1866 and 1884. This innovative methodological technique illuminates the structure of constitutional discourse during this period. The Note finds empirical support for the notion that the salience of constitutional issues was high throughout the ratification debate and then gradually declined as the country returned to a period of normal politics. These findings buttress Ackerman’s cyclic theory of constitutional change at one of its more vulnerable points.

Should the Ministerial Exception Apply to Functions, Not Persons?

joanna.zhang@yale.edu (Jed Glickstein) — Sat, 18 May 2013 21:11:24 GMT

122 Yale L.J. 1964 (2013).

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its ministers. Despite Hosanna-Tabor’s significance, however, the so-called ministerial exception remains in flux. For one thing, it is still unclear who will be deemed a “minister” for purposes of the doctrine. The answer to that foundational question may be more complicated than it appears. Thus far, courts and commentators have assumed that ministerial status is binary; a given employee either is a minister (in which case the First Amendment completely bars her suit) or she is not (in which case her suit proceeds like any other). That way of thinking may make sense for the easy cases, but it fits uneasily with the wide range of positions that have been labeled ministerial by the lower courts. This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception—one that applies to ministerial functions, not ministerial persons—better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires.

The Continuum of Excludability and the Limits of Patents

joanna.zhang@yale.edu (Amy Kapczynski & Talha Syed) — Sat, 18 May 2013 21:10:02 GMT

122 Yale L.J. 1900 (2013).

In IP scholarship, patents are commonly understood as more efficient than other approaches to innovation policy. Their primary ostensible advantage is allocative: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensibly guiding investment toward inventions with the most social value. Existing accounts recognize that, in practice, signals of social value that patents facilitate may be attenuated because of, for example, transaction costs and limits on the scope and length of patent rights. We show here, however, a different problem with the conventional allocative account. The appropriability mechanism patents rely on, namely excludability, operates in asymmetrical ways for different kinds of information goods. While scholars have noted that patent systems fail to create goods whose value is difficult to appropriate in consumer markets, this fact has not been fully appreciated in the literature, nor have its implications for the standard justification for patents. Through detailed examples in the health context we show that some kinds of information goods will be much more difficult to exclude than others. Importantly, there is no reason to expect that the ease of exclusion will be correlated with social value. The analytic point that emerges is generalizable: patents themselves can have distortive effects, stemming from structural features of exclusion rights. Unlike the problem of attenuation, the problem of asymmetric nonexcludability cannot be resolved by increasing patent scope or length. Because excludability is variable along a continuum, property rights in information, even if formally perfected, and even assuming away conventional transaction costs, will create asymmetrical demand for different kinds of information goods. This argument provides an important new justification for alternatives to patents such as government funding and gives us new insights about how to allocate such funding. It also reinforces the need for a comparative institutional approach to innovation policy, and for incorporating into our debates currently unrecognized implications that patents may have for values such as privacy and free speech.

The Storrs Lectures: Behavioral Economics and Paternalism

joanna.zhang@yale.edu (Cass R. Sunstein) — Sat, 18 May 2013 21:08:17 GMT

122 Yale L.J. 1826 (2013).

A growing body of evidence demonstrates that in some contexts and for identifiable reasons, people make choices that are not in their interest, even when the stakes are high. Policymakers in a number of nations, including the United States and the

United Kingdom

, have used this evidence to inform regulatory initiatives and choice architecture. Both the resulting actions and the relevant findings have raised the possibility that an understanding of human errors opens greater space for paternalism (and thus raises doubts about John Stuart Mill’s famous “harm principle”). Such errors can be thought of as behavioral market failures, and they are an important supplement to the standard account of market failures. Actions taken to correct behavioral market failures can sometimes be justified, even if the resulting actions are paternalistic. While hard forms of paternalism cannot be ruled out of bounds, a general principle of behaviorally informed regulation—its first and only law—is that the appropriate responses to behavioral market failures usually consist of nudges, generally in the form of disclosure, warnings, and default rules. Some people invoke autonomy as an objection to paternalism, but the strongest objections are welfarist in character. Official action may fail to respect heterogeneity, may diminish learning and self-help, may be subject to pressures from self-interested private groups (the problem of “behavioral public choice”), and may reflect the same errors that ordinary people make. Where paternalism is optional, the objections, though plausible, are unhelpfully abstract; they depend on empirical assumptions that may not hold in identifiable contexts. There are many opportunities for improving human welfare through improved choice architecture.

Rethinking the Federal Eminent Domain Power

joanna.zhang@yale.edu (William Baude) — Sat, 18 May 2013 21:05:11 GMT

122 Yale L.J. 1738 (2013).

It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the District of Columbia and the territories—but not within states. Politicians and judges (including in two Supreme Court decisions) repeatedly denied the existence of such a power, and when the federal government did need to take land, it relied on state cooperation to do so. People during this period refused to infer a federal eminent domain power from Congress’s enumerated powers or the Necessary and Proper Clause because they viewed it as a “great power”—one that was too important to be left to implication. And they refused to infer it from the Takings Clause either, because the Clause was not intended to expand Congress's power beyond the District and territories.

Eminent domain aside, the notion of great powers is increasingly relevant after National Federation of Independent Business v. Sebelius, in which Chief Justice Roberts invoked a theory of great powers to argue that the Necessary and Proper Clause could not justify the individual mandate. While his application of the theory is questionable, there are many other areas of law—such as commandeering, sovereign immunity, conscription, and the freedom of the press—where the great powers idea may rightfully have more bearing.

City Unplanning

joanna.zhang@yale.edu (David Schleicher) — Sat, 18 May 2013 21:02:59 GMT

122 Yale L.J. 1670 (2013).

Generations of scholarship on the political economy of land use have tried to explain a world in which tony suburbs use zoning to keep out development but big cities allow untrammeled growth because of the political influence of developers. But as demand to live in them has increased, many of the nation’s biggest cities have substantially limited development. Although developers remain important players in city politics, we have not seen enough growth in the housing supply in many cities to keep prices from skyrocketing. This Article seeks to explain this change with a story about big-city land use that places the legal regime governing land-use decisions at its center. In the absence of strong local political parties, land-use laws that set the voting procedure in local legislatures determine policy results between cycling preferences. Specifically, the Standard Zoning Enabling Act (SZEA) creates a peculiar procedure that privileges the intense preferences of local residents opposed to new building. Amendments to zoning maps are considered one-by-one, making deals across projects and neighborhoods difficult. Legislators may prefer to allow some building rather to stopping it everywhere, but are most concerned that their districts not bear the brunt of the negative externalities associated with new development. Absent deals that link zoning changes in different neighborhoods, all legislators will work to stop the zoning amendments that effect their districts. Without a strong party leadership to whip votes into line, the preferences of legislators about projects in their districts dominate and building is restricted everywhere. Further, the seriatim nature of local land-use procedure results in frequent downzonings, as big developers do not have an incentive to fight reductions in the ability of landowners to build incremental additions to the housing stock as of right. The cost of moving amendments through the land-use process means that small developers cannot overcome the burdens imposed by downzonings. The Article concludes by considering several forms of legislative process reform that mimic procedural changes Congress adopted in order to pass international trade treaties.

A Brief Sur-Reply to Professors Graetz and Warren

bridget.fahey@yale.edu (Ruth Mason and Michael Knoll) — Thu, 16 May 2013 21:37:16 GMT

Professors Ruth Mason and Michael Knoll defend their interpretation of the tax-discrimination jurisprudence of the Court of Justice of the European Union, arguing that the nature of their project has been misunderstood by Professors Michael Graetz and Alvin Warren. In Mason and Knoll’s view, competitive neutrality remains the principle most plausibly guiding Court of Justice rulings on tax discrimination, and thereby illuminates the clearest way out of the doctrinal confusion in this field of law.