The Yale Law Journal



Nonmajority Opinions and Biconditional Rules

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is

23 Mar 2018
Federal CourtsCivil Procedure


When Patents are Sovereigns: The Competitive Harms of Leasing Tribal Immunity

The Hatch-Waxman Act and the AIA balance exclusive rights of pharmaceutical patent holders with entry of generic competitors. Allergan’s recent patent transfer to the Saint Regis Mohawk Tribe threatens this balance. This Essay proposes antitrust suits to sidestep sovereign immunity and prevent companies from unduly increasing their patents’ probabilistic value.

02 Mar 2018
Antitrust LawIntellectual PropertyHealth Law


Judging Ordinary Meaning

When we speak of ordinary meaning we are asking an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. This Article proposes to import those methods into statutory interpretation. 

22 Feb 2018
Statutory Interpretation


How Long Is History's Shadow?

Josh Chafetz, in Congress’s Constitution, urges Congress to rehabilitate its underused but important nonlegislative powers. In this Book Review, Anita Krishnakumar argues that while reinvigorating these powers is a good idea in theory, Congress may not have the ability or inclination to do so. 

22 Feb 2018


Spending Money To Make Money: CBO Scoring of Secondary Effects

This Note discusses how the budget scorekeeping guidelines prevent the Congressional Budget Office from considering savings from program integrity and enforcement when it scores proposed legislation. The Note argues that that limitation leads Congress to irrationally underfund those activities and proposes guidelines that would be more rational, efficient, and fair.

22 Feb 2018


Litigation Rulemaking

Courts and agencies are traditionally understood to interact in two ways: judicial review and agency determinations of which cases reach federal courthouses. This Note identifies and evaluates a third dynamic by which agencies across the federal bureaucracy shape how cases proceed in court using the various tools at their disposal.

22 Feb 2018
Administrative LawCivil Procedure


24 Jan 2018

Presenting Volume 128

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