This Article contends that courts should interpret the Fourth Amendment by looking to “general law”—common-law rules under the control of no particular sovereign. This approach finds strong support in the Fourth Amendment’s text, doctrine, and historical background, and would protect the Amendment’s underlying values better than competing theories.
Shifts in patent law’s enablement and written description requirements make it impractical for patentees of antibody technologies to disclose and claim their inventions. We describe this as a doctrinal paradox and offer a solution that gives patentees the power to claim antibodies without giving them unlimited control over a market.
Sex equality assures us that laws based on real biological differences between the sexes are not sex stereotypes about the sexes. This Feature uses LGBTQ equality to show why sex equality is wrong: laws based on real differences are sex stereotypes, all the way down.
This Note argues that Bostock v. Clayton County’s holding under Title VII—anti-LGBT discrimination is sex discrimination—applies under equal-protection analysis. It then combines Bostock with sex-stereotype reasoning to argue that recent laws and policies targeting transgender minors unconstitutionally rely on sex-based stereotypes—including that transgender minors are merely confused.
This Essay criticizes using “general” or federal property law to define constitutional rights, including protections against unlawful search and seizure. Federal property law is an ahistorical and indeterminate concept. Its ascendance in Takings Clause opinions illustrates its flaws and the risks it poses for beneficial variation in state property rules.
The new public nuisance is illegitimate because it violates the rule of law and is inconsistent with norms of democratic accountability. It also ignores the dangers of over- and under-deterrence associated with joint ventures between prosecutors and personal-injury lawyers seeking massive damages from deep-pocketed defendants.
The Essays in this Collection won the sixth annual Yale Law Journal Student-Essay Competition. Essays by current and recent law students explore emerging issues in law and the changing natural environment.
This Article explores ideas of citizenship rights from the Revolutionary Era through Reconstruction and challenges the conventional view that citizenship rights came in only two sets—state and national. It argues that Americans also widely recognized general citizenship rights, reflecting an older constellation of ideas about federalism and fundamental law.
Public nuisance is a puzzle: both a medieval action and a contemporary force in large-scale opioid settlements, it has provoked historical, formalist, and institutional objections. Close examination reveals, however, that public nuisance adheres to the common law’s accepted bounds and can play an important role in today’s regulatory landscape.
A key exception to the Fair Housing Act’s prohibition of familial-status discrimination has allowed municipalities to weaponize senior-only housing to block the construction of affordable housing and perpetuate segregation. This Note documents this practice, offers a framework for advocates to challenge it through litigation, and proposes policy solutions.
In the increasingly globalized modern economy, large corporate actors have long operated with relative impunity for transnational human-rights abuses committed in the name of profit maximization. This Collection explores perspectives from a range of voices engaged in the fight for corporate accountability in both the United States and abroad.
Administrative law faces a critical juncture. Settled doctrines ranging from deference to agency interpretations of statutes to delegations of executive power have been destabilized. And earlier this year, Justice Breyer—himself an administrative-law scholar—retired from the Supreme Court. We publish this Collection as a tribute to his judicial legacy.
As law-school clinics assume a growing role in legal education, instructors, students, and community partners have used clinics to test novel, sometimes radical lawyering approaches. This Collection draws from those experiments, using case studies from family defense, immigration, and worker rights to explore the relationship between law and social movements.