This Article defends the inherent retroactivity of judicial lawmaking. It argues that there is no principled foundation for the Supreme Court’s non-retroactivity doctrine, and it provides an alternative framework: courts should always apply “new law” to old cases, and constrain its effects instead through well-recognized limitations on rights of action.
Two new strategies—restructuring support agreements and deathtrap provisions—distort the voting process in nearly every big Chapter 11 case. Although they could be banned, this Article, the first comprehensive assessment, calls for a more nuanced approach, outlining four rules of thumb for determining whether a distortive technique should be permitted.
Labor and antitrust have historically been at odds: workers have faced antitrust liability for organizing, as the market power of employers has grown. Motivated by recent developments in the gig economy, this Note argues that antitrust law must preserve the welfare of workers, and proposes reforms to achieve that vision.
Is marriage all there is? This Note adds to the growing call for partnership pluralism by highlighting the life-or-death consequences matrimony can bring for those reliant on government healthcare benefits. It illustrates why marriage is not a realistic choice for all couples, proposing a contract-based alternative: the registered partnership.
A fierce debate is raging over the proper level of antitrust enforcement against big tech companies like Google, Facebook, and Amazon. This Collection offers fresh perspectives on the history, implications, and challenges of applying antitrust law to digital platforms.
Last July marked the 150th anniversary of the establishment of the Department of Justice. The Department is perhaps as politicized as it’s ever been, and its relationship with the American public is fraught. In this Collection, alumni from the Department analyze what happened and what the future looks like.
One hundred years ago, Warren Harding’s election heralded the end of the Progressive Era. Harding promised a “return to normalcy,” but neither his administration nor subsequent changes have erased the progressives’ reforms. This collection evaluates the Progressive Era echoes in modern debates about race, labor, and the bureaucracy.
This essay assesses Distorted Choice in Corporate Bankruptcy, by David Skeel. While Skeel usefully identifies how Restructuring Support Agreements (RSAs) help debtors secure support for Chapter 11 reorganizations, this essay argues that Skeel fails to appreciate that RSAs can also short-circuit the plan process, severing plan distributions from pre-bankruptcy entitlements.
Over 120 years after YLJ published its first piece on the Insular Cases, these cases appeared again before the Supreme Court in Aurelius. This collection evaluates these cases’ continuing influence, and is dedicated to the memory of Judge Juan R. Torruella, a forceful scholar of these cases’ troubled legacy.
This Article reinterprets Founding-era debates about constitutional interpretation as arguments over its nature. If analogous to public legislation, it would be read pragmatically; if more like private legislation, it would be construed narrowly. This insight provides vital context for contemporary debates about how to interpret statutes and expound the Constitution.
Over 120 years after YLJ published its first piece on the Insular Cases, these cases appeared again before the Supreme Court in Aurelius. This collection evaluates these cases’ continuing influence, and is dedicated to the memory of Judge Juan R. Torruella, a forceful scholar of these cases’ troubled legacy.
In this Collection, the 2019-20 Yale Law Journal Public-Interest Fellows draw on their work experiences. They present a novel approach to tackling inaccurate population data in malapportionment litigation; argue that criminal-defense attorneys and judges must convey the denaturalization consequences of plea deals; and explore New York City’s undercollection of fines.
Challengers are using false textualism to implode the ACA. They argue that a findings section is an “inseverability clause,” ignoring the text and location; the language is boilerplate not for severability but for the commerce power; and Congress’s actual inseverability clauses are unmistakably explicit, using language absent from the ACA.