The government often gives reasons in secret. Although secret reason-giving targets different audiences than public reason-giving, it confers some of the same benefits, including improved decisional quality and accountability. It also imposes important constraints on executive-branch legal and policy decision-making in the national security space.
The doctrine of consideration in contract is home to the law’s only substantial account of quid pro quo exchange—one that withers under philosophical scrutiny. By fleshing out the idea that exchange involves reciprocal payments, this Article offers both an original theory of exchange and a reconceptualization of consideration.
Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” This Review explores how Lessig’s theory of fidelity to role can inform an originalist understanding of constitutional construction.
This Note provides the first study of public rights of first refusal, an underappreciated land-use power that governments use to acquire property. It argues that these rights can, under certain conditions, provide a means of balancing individual and collective needs that is superior to both eminent domain and regular purchasing.
Contractual choice-of-forum clauses pose significant obstacles to individuals’ claims against corporations. But states can and do enact legislation protecting vulnerable parties from unjust forum selection. This Note discusses the breadth of existing state anti-choice-of-forum statutes and argues that states should continue legislating in this area.
On February 15, 2019, President Trump declared a national emergency at the southern border, sparking a renewed debate on the powers granted to the President in the National Emergencies Act. This Collection considers the use of emergency powers in the United States and delves into potential checks on their invocation.
The Essays that won the third annual Yale Law Journal Student-Essay Competition each raise concerns with recent developments in immigration law. They are Zachary New’s Ending Citizenship for Service in Forever Wars and Elizabeth Montano’s The Rise and Fall of Administrative Closure in Immigration Courts.
Jed Lewinsohn’s excellent article on consideration offers groundbreaking work on the concept of exchange but errs in seeing the motivational account of consideration as a bad fit with doctrine. I argue that the motivational account provides a more natural justification for both consideration and for contract law as a whole.
The Nineteenth Amendment’s ratification in 1920 granted women the right to vote, but fell short of broader gender-equity goals. This Collection explores the suffrage movement’s goals, intersectional voices, and differences from other movements in the United States and abroad. This rich history provides important lessons on the Amendment’s Centennial.
This Collection considers the implications of the Supreme Court’s decision in Timbs v. Indiana. It discusses the emergence of an anti-ruination principle for punishment, the suitability of the Excessive Fines Clause’s “gross proportionality” standard, and the development of a forfeiture jurisprudence that would inquire into individual and familial hardship.
A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.
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.