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.
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.
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.
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.