Courts have often suggested that “bans” are per se unconstitutional. But what makes a regulation a ban and why should it matter? This Article addresses those questions, which are particularly pressing as the Supreme Court prepares to hear its first Second Amendment case in nearly a decade.
Separation of powers operates as an underappreciated structural principle in subconstitutional domains. Using the relationship between federal energy agencies as its primary case study, this Article argues that Congress creates statutory schemes of separation, checks, and balances in its delegations to administrative agencies operating within discrete policy domains.
Can the political process help undo mass incarceration? This Book Review argues that changes in the two major political parties, the results of recent state-level elections, and changes in public opinion all provide reason to hope that democratic politics is compatible with ending mass incarceration.
A new provision in M&A boilerplate addresses the business risk of sexual-harassment allegations in the #MeToo era. While the #MeToo clause was designed to maximize corporate profit, this Note argues for its potential to both reduce buy-side risk and to incentivize companies to maintain effective reporting channels.
Skepticism of the federal bureaucracy has inspired growing calls to cabin the independence of certain agency actors, including administrative law judges (ALJs). Through a holistic assessment of NLRB case law, including a novel empirical study, this Note argues that eliminating ALJ independence would counterproductively undermine judicial review of agency adjudications.
Should government defendants be able to more easily moot a case than private defendants? This Essay argues that a strong voluntary-cessation doctrine is important to protecting individual rights and explains why—based on both precedent and policy—government and private defendants should be subject to the same strict standard.
In this Collection, the 2018-19 Yale Law Journal Public-Interest Fellows draw from their on-the-job experiences. They show how New York locks up poor, disabled sex-offender registrants beyond their sentences; long detention is used to deter immigrants in historically anomalous ways; and students face obstacles when seeking to vote.
This Essay presents the first comprehensive survey examining whether Bristol-Myers Squibb Co. v. Superior Court significantly limits multistate class actions in federal courts. It finds, contrary to many commenters, that a large supermajority of cases reject the argument that BMS’s constraints apply with respect to unnamed plaintiff class members.
As the first bill introduced in the current Congress, H.R. 1 seeks to revamp our democracy through sweeping electoral reforms. This Collection critiques small-donor-based public financing, argues for legislation mandating Election Day registration, and defends H.R. 1’s constitutionality based on Congress’s broad authority to regulate federal elections.
This Essay proposes a blueprint for a new humane and effective immigration-enforcement system that could follow the dissolution of ICE. It explores the irredeemable defects of ICE and its enforcement paradigm and suggests realistic mechanisms to increase compliance with immigration laws without detention or mass deportation.
Examining a long-overlooked passage on gender in Justice Powell’s Bakke concurrence, the Essay applies the theory of intersectionality to show that Justice Powell’s reasoning was flawed. As his “single-axis” approach reveals, tiers-of-scrutiny analysis creates a doctrinal puzzle in equal-protection law, especially when applied to Black women.
Charles Black’s Impeachment: A Handbook has become the authoritative guide on the subject of presidential impeachment. This year, the Yale University Press published a new edition of the classic, incorporating new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new edition appears in this Essay.
The DoubleJeopardy Clause prohibits the government from prosecuting or punishing adefendant multiple times for the same offense. Double jeopardy protections, however, come with a major exception. Under the dual sovereignty doctrine, different sovereign states can prosecute a defendant multiple times for thesame offense. This Note argues that the due process
This Note argues that the Constitution gives Congress exclusive authority over office creation. This exclusive power has important and surprising implications for a series of live constitutional questions, such as the constitutionality of qualifications clauses, for-cause removal provisions, and temporary appointments, as well as the employee/officer distinction.