The Yale Law Journal



The Local Lawmaking Loophole

Daniel B. Rosenbaum

This Article illustrates how contracts between local governments—interlocal agreements (ILAs)—play a powerful lawmaking function yet lack democratic accountability.  It traces the problem to state statutory schemes, where checks designed to promote transparency are ignored by state officials and cou…


Suing Cities

Zachary D. Clopton & Nadav Shoked

Current law makes it easy to sue cities. Too easy. While suing federal and state governments is notoriously difficult, various doctrines open courthouse doors to taxpayers, homeowners, and politically favored groups suing local governments. These doctrines further strengthen powerful actors, weaken …


The Glaring Gap in Tort Theory

Kenneth S. Abraham & Catherine M. Sharkey

The glaring gap in tort theory is its failure to take adequate account of liability insurance. We explain how to begin filling the gap in tort theory that results from omitting consideration of liability insurance, showing how liability insurance can appropriately figure in both deontic and conseque…


Ghostwriting Federalism

Adam S. Zimmerman

Drawing on interviews and historical accounts, this Article explains how federal agencies help states write legislation. Even as the Supreme Court has curtailed administrative power in the name of federalism, this Article shows how agency collaborations with statehouses may further values associated…


Resisting Mass Immigrant Prosecutions

Eric S. Fish

Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This Article documents, analyzes, and draws lessons from immigrants’ defiance. In particular, the battles in California and Texas reveal several effective lega…


Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power

K-Sue Park

What is the source of jurisdictional power, or the power to say what the law is and give it force in a territory? This Article examines how this fundamental attribute of sovereignty historically arose, in America, from property and property institutions, especially the local, mundane, overlooked and…


The Unabridged Fifteenth Amendment

Travis Crum

The Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the VRA. This Article completes the historical record, providin…



Ganesh Sitaraman

This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. It shows that the tension between service and exclusion is endemic to common carriers, utilities, and other infrastructural services, including technology platforms, and that the American …


In Loco Reipublicae

Anne C. Dailey

This Article proposes a new framework for children in constitutional law that recognizes children’s rights as developing citizens and parents’ duties to safeguard those rights. An examination of children’s First Amendment right to access ideas illustrates parents’ duty to ensure children are exposed…


Deciphering the Commander-in-Chief Clause

Saikrishna B. Prakash

At the Founding, commanders in chief (CINCs) enjoyed neither sole nor supreme military authority, each military branch having many chief commanders. Thus, most presidential authority over the military stemmed from the rest of Article II, not the CINC Clause. Consequently, Congress enjoys sweeping au…


Originalism-by-Analogy and Second Amendment Adjudication

Joseph Blocher & Eric Ruben

In New York State Rifle & Pistol Assn v. Bruen, the Supreme Court announced a novel historical-analogical approach to constitutional decisionmaking. The Court sought to constrain judicial discretion, but Bruen’s originalism-by-analogy has enabled judicial subjectivity, obfuscation, and unpredictabi…


Separation-of-Powers Avoidance

Z. Payvand Ahdout

Federal judges are not mere arbiters of the separation of powers. Whenever they adjudicate cases, judicial power is implicated. This Article documents how this phenomenon impacts doctrine concerning the structural constitution and contends that we ought to be wary when this doctrine travels outside …


Judicial Legitimacy and Federal Judicial Design: Managing Integrity and Autochthony

Gabrielle Appleby & Erin F. Delaney

This Article argues that the sociological legitimacy of judicial institutions in federal systems rests on both integrity and autochthony. Through theoretical and comparative inquiry, we explore the ways in which initial federal constitutional design, as well as ongoing legislative and judicial manag…


The Modern State and the Rise of the Business Corporation

Taisu Zhang & John D. Morley

This Article argues that the rise of the modern state was a necessary condition for the rise of the business corporation. Corporate technologies require the support of a powerful state with the geographical reach, administrative power, and legal capacity necessary to enforce the law uniformly among …


The Weaponization of Attorney’s Fees in an Age of Constitutional Warfare

Rebecca Aviel & Wiley Kersh

States are using the threat of catastrophic, one-sided fee awards to evade judicial review in controversial areas like abortion and gun control. Litigants challenging such laws—and their attorneys—face liability for the opposing party’s legal fees, while the state and its ideological allies bear no …


The Accountable Bureaucrat

Anya Bernstein & Cristina Rodríguez

An elected leader’s control may seem essential to bureaucratic accountability. But the administrative state itself better secures accountability’s core values. As this empirical study shows, complementarity between civil servants and political appointees; officials’ scrutiny of each other’s work; an…


Family Law for the One-Hundred-Year Life

Naomi Cahn, Clare Huntington & Elizabeth Scott

Family law is failing older adults, offering neither the family forms older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these problems. This Article responds to these challenges by proposing family law reform …


Equity’s Constitutional Source

Owen W. Gallogly

This Article uncovers the federal equity power’s constitutional source. It argues that, as originally understood, Article III vests the federal courts with inherent power to grant equitable remedies and to adapt the federal system of equity in ways beyond what the Supreme Court’s current cramped, st…


Coordinated Rulemaking and Cooperative Federalism’s Administrative Law

Bridget A. Fahey

Distilling patterns across cooperative federalism programs, this Article uncovers the distinctive cross-governmental administrative law—and the unusual rulemaking it facilitates—in our most consequential federal-state collaborations.


The Fourth Amendment and General Law

Danielle D’Onfro & Daniel Epps

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…


The Antibody Patent Paradox

Mark A. Lemley & Jacob S. Sherkow

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 the…


General Citizenship Rights

Jud Campbell

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 c…


The Perils and Promise of Public Nuisance

Leslie Kendrick

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 im…



Jason Mazzone & Cem Tecimer

Drawing on practice and convention from America and abroad, this Article documents the surprisingly robust role that past constitutions play in the interpretation of extant constitutions, and assesses what this pervasive practice tells us about theories of constitutional meaning, processes of consti…


Barbarians Inside the Gates: Raiders, Activists, and the Risk of Mistargeting

Zohar Goshen & Reilly S. Steel

This Article argues that the conventional wisdom about corporate raiders and activist hedge funds—lambasting raiders and praising activists—is wrong. The authors explain how activists are more likely than raiders to engage in mistargeting, implying they are also more likely to destroy value and, ult…


The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State

Daniel E. Walters

Scholars have long debated whether the administrative state is a democratic institution. This Article offers a new framework for analyzing this question—one drawn from agonistic democratic theory. It argues that agonism provides new grounding for the legitimacy of administrative agencies while also …


Open Access, Interoperability, and DTCC’s Unexpected Path to Monopoly

Dan Awrey & Joshua C. Macey

This Article argues that open-access and interoperability requirements helped the Depository Trust & Clearing Corporation monopolize U.S. securities clearing and depository markets. DTCC’s path to monopoly offers a cautionary tale for policymakers seeking to use open access and interoperability to c…


Navassa: Property, Sovereignty, and the Law of the Territories

Joseph Blocher & Mitu Gulati

The U.S. acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as property, rather than a piece of sovereign territory. The story of Navassa shows how the concept of property is central to the law of the territories—and, perhaps, a useful tool going forward.


The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories

Christina D. Ponsa-Kraus

This Article calls on the Supreme Court to overrule—rather than repurpose—the Insular Cases, and it points to constitutional doctrines beyond their reach that can preserve cultural practices without spawning a crisis of political illegitimacy in the unincorporated territories.



Aurelius’s Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and “The Law of the Territories”

James T. Campbell

The Article questions the wisdom of urging judicial overthrow of the Insular Cases without a rubric for the many doctrinal universes that might emerge from such an intervention. Ill-considered judicial intervention will pose a grave threat to procedurally legitimate self-determination and to path-de…


Indigenous Subjects

Addie C. Rolnick

Centering on the wide-ranging implications of the Supreme Court’s decision in Rice v. Cayetano, this Article argues that the Court’s race jurisprudence threatens Indigenous self-determination and land rights in the territories. It concludes by offering several strategies that litigants can use to pr…


The Separation-of-Powers Counterrevolution

Nikolas Bowie & Daphna Renan

The Article traces modern separation-of-powers jurisprudence to the Court’s reaction to Reconstruction. Converting Lost Cause dogma into the language of constitutional law, the Court sparked a counterrevolution that obscures, and eclipses, a more normatively compelling conception—one that locates in…


Whose Child Is This? Improving Child-Claiming Rules in Safety-Net Programs

Jacob Goldin & Ariel Jurow Kleiman

Benefit programs for families rely on rules to determine which individuals can claim which children. These rules shape who qualifies for a program and who does not. This Article critically assesses the design of child-claiming rules, using as case studies the Child Tax Credit and the Earned Income T…


Free-World Law Behind Bars

Aaron Littman

In the “free world,” we look to regulatory rather than constitutional law to keep us healthy, safe, and connected. But inside prison walls, regulatory law recedes. This Article considers its failure to protect prisoners; its substantive, procedural, and normative advantages over constitutional law; …


The Antitrust Duty to Deal in the Age of Big Tech

Erik Hovenkamp

Tech platforms are often accused of refusing to deal with their competitors. But courts have largely killed off antitrust liability for such behavior, citing concerns that it would chill investment in new technologies. This Article argues that antitrust can protect investment without needlessly stif…


The History Wars and Property Law: Conquest and Slavery as Foundational to the Field

K-Sue Park

The version of American history we adopt matters for our understanding of law. In property law, we overlook how the land system underpinning the American real estate market developed, and how that market grew through racial inequality, if we do not examine conquest and slavery as foundational to the…


Bankruptcy Grifters

Lindsey D. Simon

Bankruptcy grifters infiltrate the Chapter 11 process, seeking bankruptcy’s benefits for mass-tort defendants without incurring many of its costs. This Article concludes that bankruptcy should not be a procedural panacea for companies facing litigation exposure, and offers a number of potential solu…


The Corporate Governance Gap

Kobi Kastiel & Yaron Nili

This Article offers an empirical account of the differences in governance practices between large- and small-cap companies, resulting in what this Article terms the “Corporate Governance Gap.” Recognizing a disparity in the operation of driving forces that promote governance practices, the Article p…


The Emergence of Neutrality

Jud Campbell

This Article traces the origins of the content and viewpoint neutrality principles in First Amendment law. It argues that these ideas emerged later than scholars have previously appreciated and that their development was tied to a broader Twentieth Century transformation in constitutional rights jur…


Disparate Limbo: How Administrative Law Erased Antidiscrimination

Cristina Isabel Ceballos, David Freeman Engstrom & Daniel E. Ho

Does administrative law have a racial blind spot? Ceballos, Engstrom, and Ho examine “disparate limbo”: how claims that agencies caused racial disparities have come to evade review under both antidiscrimination and administrative law, and how ignoring race may have helped build modern administrative…


Rethinking Police Expertise

Anna Lvovsky

Judicial reasoning about police expertise has toggled between two distinct conceptions of expertise itself: as a professional virtue or a professional technology. Taking stock of both views offers new strategies in a range of disputes about police misconduct. It also illuminates debates about expert…


Unpacking Third-Party Standing

Curtis A. Bradley & Ernest A. Young

This Article “unpacks” the doctrine of third-party standing. First, it identifies true third-party standing problems by distinguishing them from first-party claims, largely by reference to the “zone of interests” concept. Second, it distinguishes among three types of parties invoking third-party sta…


Subordination and Separation of Powers

Matthew B. Lawrence

Liberty, accountability, and other values advanced by separation-of-powers tools such as the “power of the purse” come with real-world costs targeted at marginalized groups. Scholars and courts should account for such skewed impacts by including antisubordination among the values they consider in an…


Antitrust and Platform Monopoly

Herbert Hovenkamp

Large digital platforms often are not winner-take-all markets. As a result, antitrust has a role but breakup is rarely the right solution. Better options include incentivizing competition within the platform or forcing interoperability or information sharing. Current merger policy, however, is poorl…


The Constitutional Right of Self-Government

Nikolas Bowie

The Assembly Clause today serves little purpose. But long before the First Amendments drafting, American activists advanced what they called their right to “assemble” to defend their right to govern themselves. This Article argues that this right can be interpreted as a right to meaningfully partic…


A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s

Nicholas R. Parrillo

The Supreme Court is poised to consider whether the Constitution’s original meaning is compatible with numerous and longstanding congressional laws delegating power to the bureaucracy to enact regulations affecting private rights within the United States. New evidence presented in this Article indic…


Equity as Meta-Law

Henry E. Smith

This Article interprets equity as law about law, or meta-law. Equity specializes in solving complex and uncertain problems, especially those involving multiple parties, conflicting rights, and opportunism. The Article reconstructs this function, diagnoses the ills of current equity, and charts a pat…


Police Reform Through a Power Lens

Jocelyn Simonson

This Article examines recent social movements efforts to shift power over policing to those most harmed by mass criminalization. This focus on power-shifting—the power lens—opens up reform discussions to first-order questions about how the state should provide safety and security, with or without po…


The Race-Blind Future of Voting Rights

Jowei Chen & Nicholas O. Stephanopoulos

The world of voting rights could soon be turned upside down. A conservative Supreme Court might insist that minority voters' existing representation be compared to the representation they would receive if the redistricting process were race blind. This Article is the first to explore the potential c…


Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality

Kate Andrias & Benjamin I. Sachs

This Article proposes an innovative approach to addressing political inequality: using law to facilitate organizing by the poor and working class – as workers, tenants, debtors, and welfare beneficiaries. The Article offers a new direction for the literature on political inequality and critical less…


Retroactive Adjudication

Samuel Beswick

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 t…


Distorted Choice in Corporate Bankruptcy

David A. Skeel, Jr.

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 determin…


Expounding the Constitution

Farah Peterson

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 …


The First Amendment and the Right(s) of Publicity

Robert C. Post & Jennifer E. Rothman

First Amendment analysis in right of publicity cases is notoriously troublesome. To remedy this nettlesome conflict, this Article disaggregates the distinct interests that support publicity laws, and then analyzes how these intersect with First Amendment values. By doing so it offers a navigational …


Commonsense Consent

Roseanna Sommers

How do ordinary people understand the concept of consent? This Article documents that laypersons, unlike most legal theorists, believe consent is compatible with fraud. It uses this discovery to revisit the so-called “riddle of rape-by-deception” and to interrogate the relationship between public at…


Federalism by Contract

Bridget A. Fahey

Just as private parties use contracts to facilitate joint projects and nation-states use treaties to organize joint undertakings, our domestic governments use written instruments to formally coordinate their activities. This Article analyzes these distinctive contract-like instruments in which both …


Law Within Congress

Jonathan S. Gould

What law governs Congress? This Article explores the importance of parliamentary precedent as a body of law and the House and Senate parliamentarians who make and enforce that law. Understanding this legal system sheds light on how Congress operates and on topics in public law more broadly.


Competition Wrongs

Nicolas Cornell

Drawing on various forms of business law, this Article argues that misconduct in the marketplace can wrong other market actors even though those actors did not have a right against the misconduct. This argument challenges traditional philosophical and legal assumptions about rights and accountabilit…


Respect, Individualism, and Colorblindness

Benjamin Eidelson

The “colorblind” approach to equal protection purports to treat people as individuals. This Article excavates the philosophical foundations of that idea and argues that the Supreme Court has misconceived it. If the Court pursues colorblindness, it should do so not with indignation but with ambivalen…


The Wandering Officer

Ben Grunwald & John Rappaport

This Article conducts a systematic investigation of “wandering officers”—law-enforcement officers fired by one department who find work at another agency. It reports on the prevalence, labor mobility, and behavior of these officers. The Article also considers explanations for their continued employm…


Probable Cause Pluralism

Andrew Manuel Crespo

According to the Supreme Court, the most important phrase in the Fourth Amendment, probable cause, is not possible to define. This Article disagrees. It proposes a novel and comprehensive account of probable cause—one that offers meaningful and predictable constraints on law enforcement, while avo…


The Strategies of Anticompetitive Common Ownership

C. Scott Hemphill & Marcel Kahan

This Article examines the mechanisms through which anticompetitive effects may arise when institutional investors hold stakes in competing firms. Most mechanisms, including cartel facilitation and passive failures to encourage competition, either lack empirical evidence or else are contrary to the i…


Plessy Preserved: Agencies and the Effective Constitution

Joy Milligan

Federal officials enforced a “separate but equal” framework for public housing long after Brown invalidated that principle. This administrative regime wrote segregation into U.S. cities, operating as the effective Constitution for decades. This Article asks why a liberal, reformist agency chose that…


The New National Security Challenge to the Economic Order

J. Benton Heath

Changes in national security policy pose a fundamental challenge to international economic law. Security policies worldwide encompass many emerging threats, from cyber vulnerabilities to climate change. This expansion potentially undermines the ability of investment and trade treaties to discipline …


Secret Reason-Giving

Ashley S. Deeks

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 polic…


Paid on Both Sides: Quid Pro Quo Exchange and the Doctrine of Consideration

Jed Lewinsohn

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 reconcept…



Joseph Blocher

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. 


The Statutory Separation of Powers

Sharon B. Jacobs

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…


The Lessons of Lone Pine

Nora Freeman Engstrom

Lone Pine orders have become a prominent fixture of the mass-tort landscape. So far, the orders have been mostly heralded as an inventive way to streamline the resolution of complex cases. Complicating that consensus, this Article analyzes drawbacks associated with this potent device and advocates r…


Sex in Public

Elizabeth Sepper & Deborah Dinner

This Article provides the first history of sex discrimination in public accommodations. Fifty years ago, bars displayed “men-only” signs. Women held secondary status in leisure, professional, and financial institutions. In the 1970s, feminists challenged this discrimination. Sex equality came to sig…


The Claims of Official Reason: Administrative Guidance on Social Inclusion

Blake Emerson

Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally…


Bias In, Bias Out

Sandra G. Mayson

The rise of criminal justice risk assessment has generated concerns about its disparate racial impact. Yet the prevailing responses to this problem, this Article contends, are inadequate. The real issue is the nature of prediction itself, and this demands a fundamental rethinking of risk assessment …


Empire States: The Coming of Dual Federalism

Gregory Ablavsky

In the standard account of federalism’s eighteenth-century origins, the Framers divided government power among two sovereigns to protect individual liberties. This Article offers an alternative history. It emphasizes that federalism was a form of centralization—a shift of authority from diffuse quas…


Sexual Privacy

Danielle Keats Citron

New technology threatens the security of information about our intimate lives—our sexual privacy. This Article conceives of sexual privacy as a unique privacy interest that warrants more protection than traditional privacy laws offer. Instead, it suggests a new approach to protecting sexual privacy …


Pleading Poverty in Federal Court

Andrew Hammond

Approximately forty million Americans live in poverty. Yet we know little about how they encounter the federal civil justice system. This Article provides the first survey of the in forma pauperis pleading standards of all ninety-four federal district courts. It reveals an inefficient and arbitrary …


Disparate Impact, Unified Law

Nicholas O. Stephanopoulos

Lower federal courts have recently converged on a two-part test for vote denial claims under section 2 of the Voting Rights Act. Yet this status quo is doctrinally incoherent and constitutionally vulnerable. Courts, this Article contends, should look to disparate impact law to address these problems…


Regulatory Bundling

Jennifer Nou & Edward H. Stiglitz

Administrative agencies can aggregate or disaggregate provisions during a single legislative rulemaking. Such regulatory bundling has been especially prevalent over the last two decades, with agencies including increasingly more subjects in their final rules. This Article explores this phenomenon, t…


The Forgotten History of Metes and Bounds

Maureen E. Brady

Property scholarship has long derided metes and bounds systems of land demarcation, largely accepting that standardized boundaries best facilitate economic growth. Through a case study of colonial New Haven, Connecticut, this Article suggests that metes and bounds descriptions actually provided earl…


Innovation Policy Pluralism

Daniel J. Hemel & Lisa Larrimore Ouellette

Intellectual property is not a monolith. It rewards innovators with temporary exclusive rights to their creations, and it conditions consumers’ access to such goods through proprietary pricing. Using this insight, this Article develops a more accurate framework for analyzing the innovation policy la…


An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

Kate Andrias

This Article recovers an institutional experiment in the early history of the Fair Labor Standards Act as an example of democratic and egalitarian administrative law. The Act’s wage boards, the Article suggests, offer an alternative, participatory vision of governance in today’s age of growing polit…


What Should We Do After Work? Automation and Employment Law

Cynthia Estlund

The existing fortress of employment-based rights and benefits is falling apart. The dominant legal responses to fissuring fail to meet, and even exacerbate, the challenge of contemporary automation. The way forward, this Article contends, must begin by separating what workers’ entitlements should be…


Litigating Data Sovereignty

Andrew Keane Woods

Internet disputes increasingly occur across borders. The key question, this Article contends, is not whether states can exert control over data, but rather the shape their exercises of sovereign power will take. Given this reality, application of sovereign-deference doctrines represents the best hop…


The New Class Blindness

Cary Franklin

An increasing number of judges argue that courts are flatly prohibited from taking class into account when interpreting the Fourteenth Amendment. Contesting that claim, this Article traces the persistence of class-related concerns in Fourteenth Amendment doctrine from the Warren Court to the present…


Transparency’s Ideological Drift

David E. Pozen

From the early twentieth century to the present, the concept of transparency in American law has drifted across the political spectrum. Originally linked with progressive causes, it is now associated primarily with libertarian or neoliberal aims. This Article traces this multigenerational transforma…


First-Person FOIA

Margaret B. Kwoka

This Article reveals that Freedom of Information Act requests at seven federal agencies are dominated by individuals seeking records about themselves, including immigration, investigation, and medical records. Yet FOIA is ill-suited to meet the vital needs of first-person requesters, and these reque…


The Obsolescence of Advertising in the Information Age

Ramsi A. Woodcock

Online search renders most advertising obsolete for conveying product information. Today, the only purpose of most advertising is to persuade consumers to purchase products. Because the information function of advertising is now obsolete, this Article argues that the Federal Trade Commission should …


International Lobbying Law

Melissa J. Durkee

Consultation rules allow nonstate actors to gain special access to international institutions. While consultation once was understood as a means of democratizing international institutions, today, many consultants are industry and trade associations. This Article reframes these rules as a body of lo…


The New Law of the Child

Anne C. Dailey & Laura A. Rosenbury

This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The authors show how the existing legal regime focuses narrowly on state and parental control over children, and they propose a new framework that promotes a broader range of children’s …


Petitioning and the Making of the Administrative State

Maggie McKinley

This Article traces the roots of the modern administrative state to the petition process, drawing on an original database of over 500,000 petitions submitted to Congress from the Founding until 1950. This institutional history provides a deeper functional and textual understanding of the administrat…


The Jurisprudence of Mixed Motives

Andrew Verstein

How do various domains of law deal with mixed motives? Are we condemned by our darkest motive, forgiven according to our noblest, or something in between? This Article develops a precise descriptive vocabulary for how courts analyze motives, concluding that there are only four motive standards in co…


The De Facto Reporter’s Privilege

Christina Koningisor

There is no formal, federal reporter’s privilege against disclosing confidential information. Drawing on new historical sources, this Article shows how all three branches of government have deployed a variety of de facto protections for reporters. These conclusions enrich our understanding of whethe…


Judging Ordinary Meaning

Thomas R. Lee & Stephen C. Mouritsen

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 statut…


Dangerous Defendants

Sandra G. Mayson

Bail reformers aspire to untether pretrial detention from wealth and condition it instead on the risk that a defendant will commit crime if released. In setting this risk threshold, this Article argues that there is no clear constitutional, moral, or practical basis for distinguishing between equall…


Government Hacking

Jonathan Mayer

The United States government hacks computer systems for law enforcement purposes. This Article provides the first comprehensive examination of how federal law regulates government malware, and argues that government hacking is inherently a Fourth Amendment search—a question on which the courts have …


Natural Rights and the First Amendment

Jud Campbell

This Article excavates the Founding Era approach to expressive freedom, which was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. This forgotten history undercuts the Supreme Court’s recent insistence that the axioms of modern do…


Stuck! The Law and Economics of Residential Stagnation

David Schleicher

America has become a nation of homebodies. This Article advances two central claims. First, declining interstate mobility rates create problems for federal macroeconomic policymaking. Second, the Article argues that governments, mostly at the state and local levels, have created a huge number of leg…


How Qualified Immunity Fails

Joanna C. Schwartz

This Article reports the findings of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation. I found that qualified immunity rarely served its intended role as a shield from discovery and trial in these cases.


The Nature of Parenthood

Douglas NeJaime

This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary…


Machine Testimony

Andrea Roth

Machines play increasingly crucial roles in establishing facts in legal disputes. Some machines convey information—the images of cameras, the measurements of thermometers, the opinions of expert systems. When a litigant offers a human assertion for its truth, the law subjects…


Inside the Agency Class Action

Michael Sant'Ambrogio & Adam S. Zimmerman

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a re…


Why Have We Criminalized Aggressive War?

Tom Dannenbaum

On the dominant view, accepted by both defenders and critics of the criminalization of aggression, the criminal wrong of aggressive war is inflicted on the attacked state. This view is mistaken. It is true that whether a war is criminally aggressive is determined ordinarily by whether …


Tort Law Inside Out

Cristina Carmody Tilley

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body …


The Origins of Judicial Deference to Executive Interpretation

Aditya Bamzai

Judicial deference to executive statutory interpretation—a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doc…


Localist Administrative Law

Nestor M. Davidson

To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrativ…


The Perils of Experimentation

Michael A. Livermore

More than eighty years after Justice Brandeis coined the phrase “laboratories of democracy,” the concept of policy experimentation retains its currency as a leading justification for decentralized governance. This Article examines the downsides of experimentation, and in pa…


Shareholder Proposal Settlements and the Private Ordering of Public Elections

Sarah C. Haan

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, s…


The Cycles of Separation-of-Powers Jurisprudence

Aziz Z. Huq & Jon D. Michaels

abstract.The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although the Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between hard-edged rules and open-textured standards. The Court’s seem…


The New Labor Law

Kate Andrias

Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining am…


Probate Lending

David Horton & Andrea Cann Chandrasekher

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibitio…


The President’s Budget as a Source of Agency Policy Control

Eloise Pasachoff

A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely…


Foundling Fathers: (Non-)Marriage and Parental Rights in the Age of Equality

Serena Mayeri

The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however…


Administrative Forbearance

Daniel T. Deacon

This Article investigates the normative and constitutional case for a particular form of congressional delegation that is of increasing practical importance: delegations that give agencies the power to deprive statutory provisions of legal force and effect, a power this Artic…


Governance Reform and the Judicial Role in Municipal Bankruptcy

Clayton P. Gillette & David A. Skeel, Jr.

Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and limitations of using the Bankruptcy Code to adjust municipal debt. In this Article, we contend that, to resolve fully the distress of a substantial city, mun…


Professional Speech

Claudia E. Haupt

Professionals speak in the course of exercising their profession. At the same time, the state can regulate the professions. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive a…


The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection

Maureen E. Brady

In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Rec…


The First Patent Litigation Explosion

Christopher Beauchamp

The twenty-first century “patent litigation explosion” is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of toda…


Corporate Control and Idiosyncratic Vision

Zohar Goshen & Assaf Hamdani

This Article offers a novel theory of corporate control. It does so by shedding new light on corporate-ownership structures and challenging the prevailing model of controlling shareholders as essentially opportunistic actors who seek to reap private benefits at the expense of minor…


The Un-Territoriality of Data

Jennifer Daskal

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorit…


Political Entrenchment and Public Law

Daryl Levinson & Benjamin I. Sachs

Courts and legal scholars have long been concerned with the problem of “entrenchment”—the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and sch…


Against Immutability

Jessica A. Clarke

Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but…


The President and Immigration Law Redux

Adam B. Cox & Cristina M. Rodríguez

In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield nearly half the population of unauthorized immigrants from removal and en…


The New Corporate Web: Tailored Entity Partitions and Creditors’ Selective Enforcement

Anthony J. Casey

Firms have developed sophisticated legal mechanisms that partition assets across some dimensions but not others. The result is a complex web of interconnected affiliates. For example, an asset placed in one legal entity may serve as collateral guaranteeing the debts of anot…


Defining and Punishing Offenses Under Treaties

Sarah H. Cleveland & William S. Dodge

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress’s constitutional authority to implement treaties has recently received particu…


Administrative Severability Clauses

Charles W. Tyler & E. Donald Elliott

Severability clauses can help administrative agencies minimize the damage caused by judicial review and can make the regulatory environment more efficient, participatory, and predictable. Yet agencies rarely include these clauses in their rules becaus…


The Constitutional Duty To Supervise

Gillian E. Metzger

The IRS targets Tea Party organizations’ applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsi…


Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment

Sarah Schindler

The built environment is characterized by man-made physical features that make it difficult for certain individuals—often poor people and people of color—to access certain places. Bridges were designed to be so low that buses could not pass under …


Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction

James E. Pfander & Daniel D. Birk

Students of Article III have so far failed to resolve a fundamental tension in the theory of federal adjudication. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom seeks redress for an …


Beyond Diversification: The Pervasive Problem of Excessive Fees and "Dominated Funds" in 401(k) Plans

Ian Ayres & Quinn Curtis

Notwithstanding ERISA’s fiduciary requirements, a significant portion of 401(k) plans establish investment menus that predictably lead investors to hold high-cost portfolios. Using data from more than 3,500 401(k) plans with more than $120 billion i…


The Uneasy Case for Favoring Long-Term Shareholders

Jesse M. Fried

This Article challenges a persistent and pervasive view in corporate law and corporate governance: that a firm’s managers should favor long-term shareholders over short-term shareholders, and maximize long-term shareholders’ returns rather than th…


Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law

Saira Mohamed

The historian Raul Hilberg once observed that we would all be happier if we believed the perpetrators of the Holocaust were crazy. But mass atrocity is never so simple. We may search in Germany, Bosnia, the Congo, or Rwanda for the madman or the devi…


Cost-Benefit Analysis of Financial Regulation: Case Studies and Implications

John C. Coates IV

Some members of Congress, the D.C. Circuit, and the legal academy are promoting a particular, abstract form of cost-benefit analysis for financial regulation: judicially enforced quantification. How would CBA work in practice, if applied to specific,…


Beyond the Indian Commerce Clause

Gregory Ablavsky

This Article uses unexamined historical sources to argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. This history provides a more solid foundation for doctrinal principles derided as incoherent, and suggests more cabi…


Rules Against Rulification

Michael Coenen

The Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a r…


The Limits of Enumeration

Richard Primus

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article a…


Agency Enforcement of Spending Clause Statutes: A Defense of the Funding Cut-Off

Eloise Pasachoff

This Article contends that federal agencies ought more frequently to use the threat of cutting off funds to state and local grantees that are not adequately complying with the terms of a grant statute. Scholars tend to offer four arguments to explain—and often to justify—agen…


Criminal Attempts

Gideon Yaffe

The intuitive idea that failed attempts to complete crimes are often themselves crimes belies the complexity and confusion surrounding the adjudication of criminal attempts. This Article offers an account of the grounds for the criminalization of att…


Self-Help and the Separation of Powers

David E. Pozen

Self-help doctrines pervade the law. They regulate a legal subject’s attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call count…


Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation

Kristin A. Collins

Tracing the racially nativist origins of modern gender-based derivative citizenship law


Legitimacy and Federal Criminal Enforcement Power

Lauren M. Ouziel

The sources of forum disparities in criminal justice reconsidered


The Power to Threaten War

Matthew C. Waxman

Reframing the war powers debate


The New Minimal Cities

Michelle Wilde Anderson

Between 2007 and 2013, twenty-eight urban municipalities declared bankruptcy or entered a state receivership to manage fiscal insolvency. To cut costs and divert revenues to debt payments, these cities have taken dramatic austerity measures—an unwitting experiment wit…


The Separation of Funds and Managers: A Theory of Investment Fund Structure and Regulation

John D. Morley

abstract.This Article offers a broad theory of what distinguishes investment funds from ordinary companies, with ramifications for how these funds are understood and regulated. The central claim is that investment funds (i.e., mutual funds, hedge funds, private equity funds, and their …


Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950

Nicholas R. Parrillo

A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The result…


The Interpretation-Construction Distinction in Patent Law

Tun-Jen Chiang & Lawrence B. Solum

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to develop…


The Evolution of Shareholder Voting Rights: Separation of Ownership and Consumption

Henry Hansmann & Mariana Pargendler

The nineteenth century saw the standardization and rapid spread of the modern business corporation around the world. Yet those early corporations differed from their contemporary counterparts in important ways. Most obviously, they commonly deviated from the one-share-one…


Ice Cube Bonds: Allocating the Price of Process in Chapter 11 Bankruptcy

Melissa B. Jacoby & Edward J. Janger

In Chrysler’s Chapter 11 bankruptcy, a finding that the debtor was losing $100 million per day justified the hurry-up sale of the company to Fiat. The assertion that a firm is a melting ice cube is frequently offered, soon after a bankruptcy filing, to justify a qui…


Agencies as Litigation Gatekeepers

David Freeman Engstrom

A central challenge in the modern regulatory state is rationalizing and coordinating multiple, overlapping, and interdependent public and private enforcement mechanisms. To that end, recent years have seen mounting calls to vest administrative agencies with litigation …


Firearm Localism

Joseph Blocher

This Article argues that Second Amendment doctrine and state preemption laws can and should incorporate longstanding and sensible differences between urban and rural gun use and regulation. Doing so would protect rural gun culture while permitting cities to address urban gun violence.


City Unplanning

David Schleicher

122 Yale L.J. 1670 (2013).

Generations of scholarship on the political economy of land use have tried to explain a world in which tony suburbs use zoning to keep out development but big cities allow untrammeled growth because of the political influence of developers. But as demand to live in them has…


Rethinking the Federal Eminent Domain Power

William Baude

122 Yale L.J. 1738 (2013).

It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was t…


The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy

Jed Rubenfeld

122 Yale L.J. 1372 (2013).

“Rape-by-deception” is almost universally rejected in American criminal law. But if rape is sex without the victim’s consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in vir…


Commandeering and Constitutional Change

Wesley J. Campbell

122 Yale L.J. 1104 (2013).

Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of hi…


Parallel Exclusion

C. Scott Hemphill & Tim Wu

122 Yale L.J. 1182 (2013).

Scholars and courts have long debated whether and when “parallel pricing”—adoption of the same price by every firm in a market—should be considered a violation of antitrust law. But there has been a comparative neglect of the importance of “parallel exclusion”—conduct, enga…


Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second

Darrell A.H. Miller

122 Yale L.J. 852 (2013).

In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts hav…


Fudging the Nudge: Information Disclosure and Restaurant Grading

Daniel E. Ho

122 Yale L.J. 574 (2012).

One of the most promising regulatory currents consists of “targeted” disclosure: mandating simplified information disclosure at the time of decisionmaking to “nudge” parties along. Its poster child is restaurant sanitation grading. In principle, a simple posted letter grade …


The Disappearance of Civil Trial in the United States

John H. Langbein

122 Yale L.J. 522 (2012).

Since the 1930s, the proportion of civil cases concluded at trial has declined from about 20% to below 2% in the federal courts and below 1% in state courts. This Article looks to the history of the civil trial to explain why the trial endured so long and then vanished so ra…


Welfare and Rights Before the Movement: Rights as a Language of the State

Karen M. Tani

122 Yale L.J. 314 (2012).

In conversations about government assistance, rights language often emerges as a danger: when benefits become “rights,” policymakers lose flexibility, taxpayers suffer, and the poor lose their incentive to work. Absent from the discussion is an understanding of how, when, …


Aggregation and Law

Ariel Porat & Eric A. Posner

122 Yale L.J. 2 (2012).

If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent …


A Decision Theory of Statutory Interpretation: Legislative History by the Rules

Victoria F. Nourse

122 Yale L.J. 70 (2012).

We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article ar…


Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?

D. James Greiner & Cassandra Wolos Pattanayak

121 Yale L.J. 2118 (2012).

We report the results of the first of a series of randomized evaluations of legal assistance programs. This series of evaluations is designed to measure the effect of both an offer of and the actual use of representation, although it was not possible in the first study …


Regulating Opt-Out: An Economic Theory of Altering Rules

Ian Ayres

121 Yale L.J. 2032 (2012)

Whenever a rule is contractible, the law must establish separate rules governing how private parties can contract around the default legal treatment. To date, contract theorists have not developed satisfying theories for how to set “altering rules,” the rules that establish…


Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments

Richard M. Re & Christopher M. Re

121 Yale L.J. 1584 (2012).

The Reconstruction Amendments are justly celebrated for transforming millions
of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side.
In arguing that voting laws should not discriminate on the basis of morally insignificant statu…


Rights and Votes

Daryl J. Levinson

121 Yale L.J. 1286.

This Article explores the functional similarities, residual differences, and interrelationships between rights and votes, both conceived as tools for protecting minorities (or other vulnerable groups) from the tyranny of majorities (or other dominant social and political actors). …


Dissolving Cities

Michelle Wilde Anderson

121 Yale L.J. 1364.

During the twentieth century, thousands of new cities took shape across America. Stucco subdivisions sprawled and law followed, enabling suburbs to adopt independent governments. That story is familiar. But meanwhile, something else was also happening. A smaller but sizable numb…


What Is Tax Discrimination?

Ruth Mason & Michael S. Knoll

121 Yale L.J. 1014 (2012).

Prohibitions of tax discrimination have long appeared in constitutions, tax treaties, trade treaties, and other sources, but despite their ubiquity, little agreement exists as to how such provisions should be interpreted. Some commentators have concluded that tax discrimina…


Burden of Proof

Louis Kaplow

121 Yale L.J. 738 (2012).

The burden of proof is a central feature of all systems of adjudication, yet one that has been subject to little normative analysis. This Article examines how strong evidence should have to be in order to assign liability when the objective is to maximize social welfare. I…


Patent Inflation

Jonathan Masur

121 Yale L.J. 470 (2011).

For more than two decades, the Patent and Trademark Office (PTO) and the Federal Circuit have exercised nearly complete institutional control over the patent system. Yet in recent years their stewardship has been widely criticized, largely on the basis of two particular fail…


Outcasting: Enforcement in Domestic and International Law

Oona Hathaway & Scott J. Shapiro

121 Yale L.J. 252 (2011).

This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such …


Prods and Pleas: Limited Government in an Era of Unlimited Harm

Benjamin Ewing & Douglas A. Kysar


121 Yale L.J. 350 (2011).

Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional division of authority also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertai…


Misalignments in Tort Law

Ariel Porat

121 Yale L.J. 82 (2011).

In negligence law, the risks taken into account by courts when setting the standard
of care are the same risks considered when imposing liability and awarding damages. I call this
the “alignment principle.” One objective of this Article is to expose exceptions to the alignment


The Architecture of Jurisprudence

Jules L. Coleman

121 Yale L.J. 2 (2011).

Contemporary jurisprudence has been dominated by an unhelpful interest in
taxonomy. A conventional wisdom has grown up around these projects. This Article, the first in
a three-part series, identifies two dominant claims of this conventional wisdom in
jurisprudence—one substantiv…


Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine

Abbe R. Gluck

120 Yale L.J. 1898 (2011). 

Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though s…


Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine

Abbe R. Gluck

120 Yale L.J. 1898 (2011). 

Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though s…


The Inducement Standard of Patentability

Michael Abramowicz & John F. Duffy

120 Yale L.J. 1590 (2011). 

In Graham v. John Deere Co., the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents to only “those inventions which would not be disclosed or devised but for the inducement of a patent.” This Article argues that th…


Taxation and Liquidity

Yair Listokin

120 Yale L.J. 1682 (2011). 

One of the principal determinants of an asset’s return is its liquidity—the ease with which the asset can be bought and sold. Liquid assets yield a lower return than do otherwise comparable illiquid assets. This Article demonstrates that an income tax alters the tradeoff…


From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases

Reva B. Siegel

120 Yale L.J. 1278 (2011). 

For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned wi…


Associational Speech

Ashutosh Bhagwat

120 Yale L.J. 978 (2011). 

This Article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The Article provides important and new insights into this area of law, drawing upon recent scholarship to urge a sub…


Allocating Power Within Agencies

Elizabeth Magill & Adrian Vermeule

120 Yale L.J. 1032 (2011). 

Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental …


Remedies On and Off Contract

Richard R.W. Brooks & Alexander Stremitzer

120 Yale L.J. 690 (2011). 

Liberal allowance of rescission followed by restitution has, for centuries, unsettled legal authorities who fear it as a threat to commercial order or other normative values. Responding to these fears, authorities have limited the ease with which rescission may be elected…


Discrimination by Comparison

Suzanne B. Goldberg

120 Yale L.J. 728 (2011). 

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary’s dependence on comparators—those who are like a discrimination claimant but for the protected characteristic—as a favored heuristic fo…


The One and Only Substantive Due Process Clause

Ryan C. Williams

120 Yale L.J. 408 (2010). 

The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to prote…


Withdrawing from International Custom

Curtis A. Bradley & Mitu Gulati

120 Yale L.J. 202 (2010). 

Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to withdraw unilaterally from them. By contrast, the conventional wisdom is that nations never have the legal right to…


Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut

David L. Franklin

120 Yale L.J. 276 (2010). 

Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exemp…


Patent Law and the Two Cultures

Peter Lee

120 Yale L.J. 2 (2010). 

A half-century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, …


Taking Exit Rights Seriously: Why Governance and Fee Litigation Don’t Work in Mutual Funds

John D. Morley & Quinn Curtis

120 Yale L.J. 84 (2010). 

Unlike shareholders of ordinary companies, mutual fund shareholders do not sell their shares—they redeem them from the issuing funds for cash. We argue that this unique form of exit almost completely eliminates mutual fund investors’ incentives to use voting, boards, and f…


The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism

Abbe R. Gluck

119 Yale L.J. 1750 (2010). 

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of ju…


Federal Administration and Administrative Law in the Gilded Age

Jerry L. Mashaw

119 Yale L.J. 1362 (2010). 

The dominant story of America’s so-called “Gilded Age” describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal politicians, ran roughshod over a national state apparatus incapable of responding…


Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"

James Gray Pope

119 Yale L.J. 1474 (2010). 

The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough d…


The Politics of Nature: Climate Change, Environmental Law, and Democracy

Jedediah Purdy

119 Yale L.J. 1122 (2010). 

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwi…


Strategic Vagueness in Contract Design: The Case of Corporate Acquisitions

Albert Choi & George Triantis

119 Yale L.J. 848 (2010). 

The unprecedented and unanticipated economic and financial shocks of the past couple of years have led parties to look for contractual escapes from deals. As the current crisis works its way through our economic system, however, attention will be shifted from the collaps…



Douglas G. Baird & Robert K. Rasmussen

119 Yale L.J. 648 (2010). 

In large Chapter 11 cases, the prototypical creditor is no longer a small player holding a claim much like everyone else’s, but rather a distressed debt professional advancing her own agenda. Secured creditors are more pervasive and enjoy much more control than they had e…


Fourth Amendment Seizures of Computer Data

Orin S. Kerr

119 Yale L.J. 700 (2010). 

What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the …


Property as Process: How Innovation Markets Select Innovation Regimes

Jonathan M. Barnett

119 Yale L.J. 384 (2009). 

It is commonly asserted that innovation markets suffer from excessive intellectual property protections, which in turn stifle output. But empirical inquiries can neither confirm nor deny this assertion. Under the agnostic assumption that we cannot assess directly whether …


The President and Immigration Law

Adam B. Cox & Cristina Rodríguez

119 Yale L.J. 458 (2009). 

The plenary power doctrine sharply limits the judiciary’s power to police immigration regulation—a fact that has preoccupied immigration law scholars for decades. But scholars’ persistent focus on the distribution of power between the courts and the political branches has…


Government in Opposition

David Fontana

119 Yale L.J. 548 (2009).

In the past generation, in countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged in greater numbers, what this Article calls “government in opposition.” After democratic elections are …


Presidential Power over International Law: Restoring the Balance

Oona A. Hathaway

119 Yale L.J. 140 (2009). 

The vast majority of U.S. international agreements today are made by the President acting alone. Little noticed and rarely discussed, the agreements are concluded in a process almost completely hidden from outside view. This state of affairs is the result of a longterm tr…


Proposing a Place for Politics in Arbitrary and Capricious Review

Kathryn A. Watts

119 Yale L.J. 2 (2009). 

Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the no…


In Defense of Property

Kristen A. Carpenter, Sonia K. Katyal, & Angela R. Riley

118 Yale L.J. 1022 (2009).


This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of i…


Uncooperative Federalism

Jessica Bulman-Pozen & Heather K. Gerken

118 Yale L.J. 1256 (2009). 

This Essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, roles they play by virtue of being autonomous policymakers outsid…


The Classic Rule of Faith and Credit

David E. Engdahl

118 Yale L.J. 1584 (2009).


Since the late nineteenth century, orthodox doctrine under the Constitution’s Full Faith and Credit Clause has presumed that the interpretation of that Clause set forth in Justice Joseph Story’s 1833 Commentaries on the Constitution of the United States was essentially…


The Case for Symmetry in Creditors' Rights

Richard Squire

118 Yale L.J. 806 (2009).


Using an original framework for evaluating bankruptcy rules, this Article casts doubt on the efficiency of legal arrangements that give some creditors an absolute advantage over others in the division of a debtor’s assets. Such arrangements, which I classify as asymmetr…


Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages

Thomas B. Colby

118 Yale L.J. 392 (2008).


In Philip Morris USA v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, …


Learning Through Policy Variation

Yair Listokin

118 Yale L.J. 480 (2008).


Rationalist analysis of policymaking, exemplified by cost-benefit analysis, ignores the variance in outcomes associated with policies and seeks to maximize expected outcomes. Burkeans, by contrast, view policy outcome uncertainty negatively. The Burkean approach is echo…


Suspension as an Emergency Power

Amanda L. Tyler

118 Yale L.J. 600 (2009).


As the war on terrorism continues, and along with it a heated debate over the scope of executive authority in times of national emergency, one important question deserves careful attention: how much power may Congress vest in the executive to address the crisis at hand …


The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright

Oren Bracha

118 Yale L.J. 186 (2008).

The concept of the author is deemed to be central to copyright law. An important strand of copyright scholarship explores how the development of modern copyright law was intertwined with the rise of a new ideology of authorship as an individualist act of creation ex nihilo…


The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs

Matthew C. Stephenson

118 Yale L.J. 2 (2008).

This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balan…


Normative Canons in the Review of Administrative Policymaking

Kenneth A. Bamberger

118 Yale L.J. 64 (2008).


Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congress—norms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separa…


Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861

Jerry L. Mashaw

117 Yale L.J. 1568 (2008).

Jacksonian America was a country in rapid transition. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political refor…


Treaties' End: The Past, Present, and Future of International Lawmaking in the United States

Oona A. Hathaway

117 Yale L.J. 1236 (2008).

Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative…


Just Semantics: The Lost Readings of the Americans with Disabilities Act

Jill C. Anderson

117 Yale L.J. 992 (2008).

Disability rights advocates and commentators agree that the Americans with Disabilities Act (ADA) has veered far off course from the Act’s mandate of protecting people with actual or perceived disabilities from discrimination. They likewise agree that the fault lies in the…


Race and Democratic Contestation

Michael S. Kang

117 Yale L.J. 734 (2008).

As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, a growing number of liberals and conservatives, once united in support, now share deep reservations about it. This Article argues that…


The Access to Knowledge Mobilization and the New Politics of Intellectual Property

Amy Kapczynski

117 Yale L.J. 804 (2008).

Intellectual property law was once an arcane subject. Today it is at the center of some of the most highly charged political contests of our time. In recent years, college students, subsistence farmers, AIDS activists, genomic scientists, and free-software programmers have…


Antislavery Courts and the Dawn of International Human Rights Law

Jenny S. Martinez

117 Yale L.J. 550 (2008).

Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts …


Consumerism Versus Producerism: A Study in Comparative Law

James Q. Whitman

117 Yale L.J. 340 (2007).

The spread of American-style “consumerism” is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald’s, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) …


The Constitution Outside the Constitution

Ernest A. Young

117 Yale L.J. 408 (2007).

Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitu…


The Promise and Pitfalls of the New Voting Rights Act

Nathaniel Persily

117 Yale L.J. 174 (2007).

In the summer of 2006, Congress reauthorized the expiring provisions of the Voting Rights Act (VRA) with a unanimous vote in the Senate and with limited opposition in the House of Representatives. The veneer of bipartisanship that outsiders perceived in the final vote glos…


Contracting for Cooperation in Recovery

Gregory Klass

117 Yale L.J. 2 (2007).

There is a longstanding debate about whether courts should enforce contract terms purporting to limit the parties’ liability for fraud. It is less-often noticed that many contracts are designed to incorporate fraud liability by requiring one party to make representations abo…


Intellectual Property as Property: Delineating Entitlements in Information

Henry E. Smith

This Article proposes that intellectual property’s close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms o…


Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829

Jerry L. Mashaw

In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nat…


Property and Half-Torts

Lee Anne Fennell

116 Yale L.J. 1400 (2007)

The idea that a tort can be split analytically into two parts—risk and harm—underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed’s famous entitlement framework. Thus, in discussing an “ent…


Risk Aversion and Rights Accretion in Intellectual Property Law

James Gibson

116 Yale L.J. 882 (2007)

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence (vel non)…


The Constitutional Foundations of Chenery

Kevin M. Stack

116 Yale L.J. 952 (2007)

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review…


Chevron as a Voting Rule

Jacob E. Gersen & Adrian Vermeule

116 Yale L.J. 676 (2007)

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpret…


The Corporate Origins of Judicial Review

Mary Sarah Bilder

116 Yale L.J. 502 (2006)

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continu…


Unpacking the Household: Informal Property Rights Around the Hearth

Robert C. Ellickson

As Aristotle recognized in The Politics, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, h…


Education, Equality, and National Citizenship

Goodwin Liu

116 Yale L.J. 330 (2006)

For disadvantaged children in substandard schools, the recent success of educational adequacy lawsuits in state courts is a welcome development. But the potential of this legal strategy to advance a national goal of equal educational opportunity is limited by a sobering and l…


How To Remove a Federal Judge

Saikrishna Prakash & Steven D. Smith

116 Yale L.J. 72 (2006)

Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution's grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, a…


Criminal Law Comes Home

Jeannie Suk

116 Yale L.J. 2 (2006)

Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misd…


Beyond Lawrence: Metaprivacy and Punishment

Jamal Greene

115 Yale L.J. 1862 (2006)

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty–and communitarian–William Eskridge has described it as the ga…


Good Governance at the Supranational Scale: Globalizing Administrative Law

Daniel C. Esty

115 Yale L.J. 1490 (2006)

This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administr…


Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry

Judith Resnik

115 Yale L.J. 1564 (2006)

Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provi…


Recovering American Administrative Law: Federalist Foundations, 1787-1801

Jerry L. Mashaw

115 Yale L.J. 1256 (2006)

By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was mi…


Income Tax Discrimination and the Political and Economic Integration of Europe

Michael J. Graetz & Alvin C. Warren Jr.

115 Yale L.J. 1186 (2006)

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions h…


Managing Transitional Moments in Criminal Cases

Toby J. Heytens

115 Yale L.J. 922 (2006)

As long as some courts review the work of others, there will be situations in which governing precedent shifts during the interval between an initial decision and the underlying dispute's ultimate resolution. Although such "transitional moments" follow many appellate court de…


Immoral Purposes: Marriage and the Genus of Illicit Sex

Ariela R. Dubler

115 Yale L.J. 756 (2006)

In Lawrence v. Texas, the Supreme Court situates its opinion within the history of laws banning sodomy. Lawrence, however, is also part of another historical narrative: the history of attempts by federal lawmakers and judges to define the relationships among the genus of illi…


Anticipating Litigation in Contract Design

Robert E. Scott & George G. Triantis

115 Yale L.J. 814 (2006)

Contract theory does not address the question of how parties design contracts under the existing adversarial system, which relies on the parties to establish relevant facts indirectly by the use of evidentiary proxies. In this Article, we advance a theory of contract design i…


The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs

John C.P. Goldberg

115 Yale L.J. 524 (2005)

In our legal system, redressing private wrongs has tended to be the business of tort law, itself traditionally a branch of the common law. But do individuals have a "vested interest" in law that redresses wrongs? If so, do state and federal governments have a constitutional d…


Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes

Robert H. Sitkoff & Max M. Schanzenbach

115 Yale L.J. 356 (2005)

This Article presents the first empirical study of the domestic jurisdictional competition for trust funds. To allow donors to exploit a loophole in the federal estate tax, since 1986 a host of states have abolished the Rule Against Perpetuities as applied to interests in tru…


Rethinking Civil Rights Lawyering and Politics in the Era Before Brown

Kenneth W. Mack

115 Yale L.J. 256 (2005)

This Article argues that scholarly accounts of civil rights lawyering and politics have emphasized, incorrectly, a narrative that begins with Plessy v. Ferguson and ends with Brown v. Board of Education. That traditional narrative has relied on a legal liberal view of civil r…


Fixing Freezeouts

Guhan Subramanian

115 Yale L.J. 2 (2005)

Freezeout transactions, in which a controlling shareholder buys out the minority shareholders, have occurred more frequently since the stock market downturn of 2000 and the Sarbanes-Oxley Act of 2002. While freezeouts were historically executed as statutory mergers, recent Dela…


The City and the Poet

Kenji Yoshino

114 Yale L.J. 1835 (2005)

Although it is a contemporary of law and economics, law and literature has never secured widespread uptake in the legal academy. In this Article, Professor Yoshino explains the relative anemia of the discipline and prescribes a cure. Law has an incentive to distance itself f…


The Sarbanes-Oxley Act and the Making of Quack Corporate Governance

Roberta Romano

114 Yale L.J. 1521 (2005)

This Article provides an evaluation of the substantive corporate governance mandates of the Sarbanes-Oxley Act (SOX) of 2002 that is informed by the relevant empirical accounting and finance literature, and of the political dynamics that produced the mandates. The empirical …


Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?

John H. Langbein

114 Yale L.J. 929 (2005)

The duty of loyalty requires a trustee to administer the trust solely in the interest of the beneficiaries. Any transaction in which the trustee has an actual or potential interest violates the sole interest rule, no matter how beneficial the transaction to the beneficiaries.…


On the Alienability of Legal Claims

Michael Abramowicz

114 Yale L.J. 697 (2005)

Courts have become increasingly skeptical of rules restricting plaintiffs' ability to sell legal claims, while legal commentators have argued that markets for claims would be economically beneficial, moving claims to those who can prosecute them most efficiently. Claim sales …


The Right To Destroy

Lior Jacob Strahilevitz

114 Yale L.J. 781 (2005)

Do you have the right to destroy that which is yours? This Article addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy,…


The Defined Contribution Paradigm

Edward A. Zelinsky

114 Yale L.J. 451 (2004)

Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. This Article suggests that over the last generation something more fundamental, which can justly be called a paradigm shift, has…


The Federalist Dimension of Regulatory Takings Jurisprudence

Stewart E. Sterk

114 Yale L.J. 203 (2004)

Federalism concerns, underappreciated in the takings literature, play an important role in shaping the Supreme Court's takings jurisprudence. The Takings Clause does not guarantee any particular property rights; instead, the Clause protects primarily against change in backgro…


The Future of Disability Law

Samuel R. Bagenstos

114 Yale L.J. 1 (2004)

Since its enactment in 1990, the Americans with Disabilities Act (ADA) has dominated discussions of disability law in the legal academy. While the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appe…


The Eleventh Amendment and the Reading of Precise Constitutional Texts

John F. Manning

113 Yale L.J. 1663 (2004)


In recent years, the Supreme Court has frequently observed that most statutes involve compromise. In particular, when Congress enacts a clear and precise statutory text--one that articulates not only a set of relevant aims but also the specific means of their …


The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s-1950s

Peter L. Lindseth

113 Yale L.J. 1341 (2004)

The struggle to define the role of the legislature in the modern administrative state has been central to constitutional politics in Western countries. That struggle was especially intense in Germany and France from the 1920s to the 1950s. Contrary to claims of certain inte…


Contract and Collaboration

Daniel Markovits

113 Yale L.J. 1417 (2004)

Promises and contracts establish relations among the persons who engage them, and these relations lie at the center of persons' moral and legal experience of one another. But the most prominent accounts of these practices nevertheless remain firmly individualistic, seeking …


The Two Western Cultures of Privacy: Dignity Versus Liberty

James Q. Whitman

113 Yale L.J. 1151 (2004)

Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and …


The Integration of Tax and Spending Programs

David A. Weisbach & Jacob Nussim

113 Yale L.J. 955 (2004)

This Article provides a theory for deciding when a spending program should be implemented through the tax system. The decision is traditionally thought to be based on considerations of tax policy. The most common theories are the comprehensive tax base theory and the tax expe…


Offering an Invisible Hand: The Rise of the Personal Choice Model for Rationing Public Benefits

David A. Super

113 Yale L.J. 815 (2004)

The 1996 welfare law passed amidst promises to reduce welfare rolls without abandoning needy families. A strong economy, state work support programs, and the efforts of millions of low-income parents brought substantial reductions in the ranks of those eligible for cash assis…


Contract Theory and the Limits of Contract Law

Alan Schwartz & Robert E. Scott

113 Yale L.J. 541 (2003)

This Article sets out a normative theory to guide decisionmakers in the regulation of contracts between firms. Commercial law for centuries has drawn a distinction between mercantile contracts and others, but modern scholars have not systematically pursued the normative impli…


Punitive Damages as Societal Damages

Catherine M. Sharkey

113 Yale L.J. 347 (2003)

Jury awards of "classwide" punitive damages provide windfalls to individual plaintiffs, particularly in products liability, fraud, civil rights, and employment discrimination cases. This suggests a new angle from which to approach the ongoing punitive damages debate. Under cu…


How To Fix Wall Street: A Voucher Financing Proposal for Securities Intermediaries

Stephen J. Choi & Jill E. Fisch

113 Yale L.J. 269 (2003)

Securities market intermediaries reduce the collective action problem facing investors in the capital markets. Analysts provide securities research. Proxy advisory firms assist investors in determining how to vote their shares. Even shareholders bringing proxy contests can be…


An Old Judicial Role for a New Litigation Era

Jonathan T. Molot

113 Yale L.J. 27 (2003)

Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old …


Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act

Robert C. Post & Reva B. Siegel

112 Yale L.J. 1943 (2003)

The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separatio…


The Sanitized Workplace

Vicki Schultz

112 Yale L.J. 2061 (2003)

One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive--a conception that had come …


What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause

Seth P. Waxman & Trevor W. Morrison

112 Yale L.J. 1943 (2003)

When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with "federalism" have redefined the constitutional status of federal attempts to regu…


In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State

Ariela R. Dubler

112 Yale L.J. 1641 (2003)

This Article argues that the law has constructed marriage as an institution capable of regulating the rights and responsibilities of even unmarried women. In various ways, the law has constructed the rights of certain groups of unmarried women "in the shadow of marriage": Th…


Conspiracy Theory

Neal Kumar Katyal

112 Yale L.J. 1307 (2003)

Over one-quarter of all federal criminal prosecutions and a large number of state cases involve prosecutions for conspiracy. Yet, the major scholarly articles and the bulk of prominent jurists have roundly condemned the doctrine. This Article offers a functional justificatio…


Piercing the Veil

Madhavi Sunder

112 Yale L.J. 1399 (2003)

Human rights law has a problem with religion. In a postmodern world in which the nation-state has been deconstructed and eighteenth- and nineteenth-century notions of unmediated national sovereignty have been properly put to rest, religion--and its attendant category, cultur…


Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?

Oren Gross

112 Yale L.J. 1011 (2003)

This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the l…


Why Above-Cost Price Cuts To Drive Out Entrants Are Not Predatory--and the Implications for Defining Costs and Market Power

Einer Elhauge

112 Yale L.J. 681 (2003)

Recently, European and U.S. officials have made surprising moves toward restricting firms from using above-cost price cuts to drive out entrants. This Article argues that these legal developments likely reflect the fact that scholarly critiques of cost-based tests of predator…


Coase's Penguin, or, Linux and The Nature of the Firm

Yochai Benkler

112 Yale L.J. 369 (2002)

For decades our common understanding of the organization of economic production has been that individuals order their productive activities in one of two ways: either as employees in firms, following the directions of managers, or as individuals in markets, following price si…


Are Police Free To Disregard Miranda?

Steven D. Clymer

112 Yale L.J. 447 (2002)

This Article contends that the common understanding of Miranda as a direct restraint on custodial interrogation by police is mistaken. Instead, Miranda, like the privilege against compulsory self-incrimination that serves as its constitutional foundation, is a rule of admissi…


The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five

Barry Friedman

112 Yale L.J. 153 (2002)

How is it that the countermajoritarian difficulty became the central frame for constitutional theory for the last fifty years? That is the question taken up in this, the last installment of The History of the Countermajoritarian Difficulty. The piece explains that the counter…


The Freedom of Imagination: Copyright's Constitutionality

Jed Rubenfeld

112 Yale L.J. 1 (2002)

In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America.

Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic fr…


The Political Economy of School Choice

James E. Ryan & Michael Heise

111 Yale L.J. 2043 (2002)

This Article examines the political economy of school choice and focuses on the role of suburbanites. This group has re- ceived little attention in the commentary but is probably the most important and powerful stakeholder in choice debates. Suburbanites generally do not sup…


Do Human Rights Treaties Make a Difference?

Oona A. Hathaway

111 Yale L.J. 1870 (2002)

Do countries comply with the requirements of human rights treaties that they join? Are these treaties effective in chan- ging changing states' behavior for the better? This Article addresses these questions through a large-scale quan- titative analysis of the relationship be…


The Law and Economics of Reverse Engineering

Pamela Samuelson & Suzanne Scotchmer

111 Yale L.J. 1575 (2002)

Reverse engineering has a long history as an accepted practice. What it means, broadly speaking, is the process of extracting know-how or knowledge from a human-made artifact. Lawyers and economists have endorsed reverse engineering as an appropriate way to obtain such info…


The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt

George P. Fletcher

111 Yale L.J. 1499 (2002)

Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--n…


Framing Transactions in Constitutional Law

Daryl J. Levinson

111 Yale L.J. 1311 (2002)

Common-law rules and adjudication are typically structured around discrete interactions between strangers. The unit of legal analysis, or "transaction," is intuitively defined by the discontinuous event that disrupted the otherwise unrelated lives of the parties; and the foc…


Waging War, Deciding Guilt: Trying the Military Tribunals

Neal Kumar Kaytal & Laurence H. Tribe

111 Yale L.J. 1259 (2002)

In this Essay, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any members of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today…


The Anti-Antidiscrimination Agenda

Jed Rubenfeld

111 Yale L.J. 1141 (2002)

For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case …


Architecture as Crime Control

Neal Kumar Kaytal

111 Yale L.J. 1039 (2002)

Building on work in architectural theory, Professor Katyal demonstrates how attention to cities, neighborhoods, and individual buildings can reduce criminal activity. The field of cyberlaw has been transformed by the insight that architecture can regulate behavior in cybersp…



Kenji Yoshino

111 Yale L.J. 769 (2002)

In this article, Professor Yoshino considers how the gay civil rights movement might enright the American civil rights paradigm, which he takes to be predicated on the paradigm classifications of race and sex. He posits that gays may be able to contribute a more robust theory…



Abraham Bell & Gideon Parchomovsky

111 Yale L.J. 547 (2001)

Givings-government acts that enhance property value-are omnipresent. Yet they have received scant scholarly attention and no consistent doctrinal or theoretical treatment. Although givings and takings are mirror images of one another and are of equal practical and theoretical…


Corporations and Human Rights: A Theory of Legal Responsibility

Steven R. Ratner

111 Yale L.J. 443 (2001)

The path of international law over the last century has been one of increasing both the breadth and the depth of its coverage. Its breadth has grown through the addition of new areas for regulation, whether the environment, telecommunications, health, or human rights; and its…


The Executive Power over Foreign Affairs

Saikrishna B. Prakash & Michael D. Ramsey

111 Yale L.J. 231 (2001)

This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the United States government. The authors argue that modern scholarship has too hastily given up on the Constitution's text and too quickly concluded that the Constitut…


A Dilution Mechanism for Valuing Corporations in Bankruptcy

Barry E. Adler & Ian Ayres

111 Yale L.J. 83 (2001)

This Article proposes a new mechanism for valuing firms in bankruptcy. Under the "senior dilution" mechanism, a court would dilute the reorganized stock issued to senior claimants by issuing additional shares to junior claimants until there was no excess demand for the stock a…


The Rise of Dispersed Ownership The Roles of Law and the State in the Separation of Ownership and Control

John C. Coffee Jr.

111 Yale L.J. 1 (2001)

Deep and liquid securities markets appear to be an exception to a worldwide pattern in which concentrated ownership dominates dispersed ownership. Recent commentary has argued that a dispersed shareholder base is unlikely to develop in civil-law countries and transitional econo…


Currency Policies and Legal Development in Colonial New England

Claire Priest

110 Yale L.J. 1303 (2001)

This Article presents a new interpretation of the relation of law to economic development in colonial New England. Prior legal historical scholarship has focused almost exclusively on judicial decisionmaking, emphasizing judges' role in adapting the law in some optimal way …


Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas

Stephanos Bibas

110 Yale L.J. 1097 (2001)

Last June, in Apprendi v. New Jersey, the Supreme Court held that any fact that increases a defendant's statutory maximum sentence must be proved to a jury beyond a reasonable doubt. This rule, like most of criminal procedure law and scholarship, rests on the assumption that…


Federal Regulation of State Court Procedures

Anthony J. Bellia Jr.

110 Yale L.J. 947 (2001)

May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitution…


Rethinking the Puzzle of Escalating Penalties for Repeat Offenders

David A. Dana

110 Yale L.J. 733 (2001)

The general principle of escalating penalties based on offense history is so widely accepted that it strikes most people as simple common sense. This principle, however, tests the explanatory limits of economics. Contrary to the assumptions in the existing literature, probabi…


The Liberal Commons

Hanoch Dagan & Michael A. Heller

110 Yale L.J. 549 (2001)

Must we choose between the benefits of cooperative use of scarce resources and our liberal commitments to autonomy and exit? No. Well-tailored law can mediate between community and liberty, between commons and private property. Our theory of the liberal commons provides a fra…


The Essential Role of Organizational Law

Henry Hansmann & Reinier Kraakman

110 Yale L.J. 387 (2000)

In every developed market economy, the law provides for a set of standard-form legal entities. In the United States, these entities include, among others, the business corporation, the cooperative corporation, the nonprofit corporation, the municipal corporation, the limited …


A Liberal Theory of Social Welfare: Fairness, Utility, and the Pareto Principle

Howard F. Chang

110 Yale L.J. 173 (2000)

Amartya Sen shows how liberal rights can produce outcomes that everyone would prefer to avoid, thereby violating the Pareto principle. Similarly, Louis Kaplow and Steven Shavell identify potential conflicts between the Pareto principle and notions of "fairness," which give we…


Optimal Standardization in the Law of Property: The Numerus Clausus Principle

Thomas W. Merrill & Henry E. Smith

110 Yale L.J. 1 (2000)

In all postfeudal legal systems, the basic ways of owning property are limited in number and standardized, in the sense that courts will enforce as property only interests that are built from a list of recognized forms. In the common law, this principle has no name and is invok…