119 Yale L.J. 1122 (2010).
Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and scale of government. This Article traces several major episodes in those developments: the rise of a Romantic attachment to spectacular landscapes, a utilitarian ideal of rational management of resources, the legal and cultural concept of “wilderness,” and the innovation of “the environment” as a centerpiece of public debate at the end of the 1960s. The Article connects each development to changes in background culture and values and the social movements and political actors that brought them into public debate and, eventually, legislation. The result is both a set of specific studies and the outline of an account of the ways that the political struggles of a democratic community have created new, and always contested, ideas of “nature” throughout American history. The Article then shows how past episodes cast light on the present: today’s climate politics, including the seemingly anomalous (even “irrational”) choices by municipalities to adopt the Kyoto carbon-emissions goals, makes most sense when understood as an extension of a long tradition of political argument about nature, which does not simply take “interests” as fixed, but changes both interests and values by changing how citizens understand themselves, the country, and the natural world.
119 Yale L.J. 1210 (2010).In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial status and identifying the potential harms that are unleashed when criminal law recognizes family status. This Feature seeks to complement that contribution by situating the authors’ observations within the context of two considerations beyond Privilege or Punish’s immediate focus: chronological trends and the practical realities that can shape application of formal law. By distinguishing criminal law’s traditions from contemporary trends, the Feature identifies both a gradual de-emphasis of legally recognized family forms and an increased willingness to enforce criminal law within families, regardless of how they are comprised. It concludes by arguing that effective enforcement of criminal law within families often requires the criminal justice system to yield to family relationships, not for the purpose of promoting preferred family forms, but to serve the criminal law’s familiar retributive and utilitarian goals.
119 Yale L.J. 1236 (2010).
This Feature explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-state relationships has much to teach us about family-state relationships. Though substantial rights to what might be called “free exercise of the family” have been recognized in American constitutional doctrine, at present there is no parallel principle of familial disestablishment. The state is free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. This Feature suggests reasons to rethink these existing familial establishments. Disestablishment is a risky and unpredictable enterprise, but its risks may be the risks inherent in liberty.
119 Yale L.J. 1280 (2010).
This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislative reforms, at an absolute minimum, the Due Process Clause should guarantee that landowners receive notice and an opportunity for some sort of judicial determination of the legality of the taking before the land is actually taken. After cataloging existing eminent domain laws, this Note traces the evolution of these laws over time in both the legislatures and the courts. In parallel, this Note analyzes the evolving circumstances driving the judicial perception of eminent domain. Examining these facts, the Note explains why courts have failed to rein in the eminent domain power with procedural protections. After establishing the appropriateness of applying modern due process principles to eminent domain actions, the focus of the inquiry shifts to what procedural due process demands. This colloquy explains what process is due, what the content and form of that process should be, and the likely effects of recognizing due process rights in the eminent domain context.