The Yale Law Journal



Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge

Ryanne Bamieh

In Bearden v. Georgia, the Supreme Court held a defendant cannot be imprisoned for failure to pay a fine they could not afford. Yet, many defendants remain incarcerated because they cannot pay for Electronic Monitoring. This Comment seeks to remedy that disparity by applying Bearden to Electronic Mo…


Fruit of the Racist Tree: A Super-Exclusionary Rule for Racist Policing Under California’s Racial Justice Act

Marnie Lowe

What would it take for a state to eliminate racial bias in policing? This Comment explores one intervention set forth in California’s new Racial Justice Act: a guarantee of charging or sentencing relief for anyone subjected to police racism during arrest or investigation.



Unsafe and Unsound: HIV Policy in the U.S. Military

Nikita Lalwani

The military’s approach to HIV was developed in the 1980s, at the height of the epidemic. Today, however, medical advances have transformed HIV from a deadly disease into a manageable chronic illness—but the military’s policies remain stuck in the past. This Comment makes the case for reform.


Prison Malapportionment: Forging a New Path for State Courts

Alaa Chaker

This Comment proposes the first comprehensive path forward for challenging prison malapportionment in state courts, a remedy largely unappreciated in the literature. These state-law claims make use of statutory provisions defining residency, state constitutional equal-population provisions, and dist…


Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination

Lisset M. Pino

This Comment problematizes the historical basis for the Supreme Court’s decision in Rice v. Cayetano. In deeming voting qualifications for the Office of Hawaiian Affairs racially discriminatory, the Rice Court evaded the more complex question whether Native Hawaiians constitute a political community…


The Power of Police Officers to Give “Lawful Orders”

James Mooney

Forty-four states, the District of Columbia, and the federal government criminalize disobeying the “lawful orders” of police officers. But it is uncertain which orders are lawful. This Comment proposes a model statute that would clarify and limit police authority while informing civilians about the …


The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional

Sophia Chua-Rubenfeld & Frank J. Costa, Jr.

Several courts have compelled religious arbitration of employment disputes even when the arbitration agreement explicitly states that holy text would trump federal law. This Comment articulates a “reverse-entanglement” principle that explains why courts violate the Establishment Clause when they enf…


Building Political Will for Accountable, Equitable Trade Policy Making

Theodore T. Lee

Trade policy is at an inflection point. Because trade deals are often negotiated in secret and without congressional input, the public lacks the information necessary to hold the executive branch accountable. This Comment therefore proposes that Congress establish a nonpartisan, expert body to produ…


The Treaty Problem: Understanding the Framers’ Approach to International Legal Commitments

Jade Ford & Mary Ella Simmons

Bond v. United States failed to answer important questions about the scope and limits of the treaty power. This Comment highlights an underexplored factor driving the Framers’ formulation of that power—the threat of war inherent in all treaty violations—and its implications for Bond’s lingering ques…


The Intercircuit Exclusionary Rule

James Durling

Federal courts have long resolved intercircuit suppression disputes using a choice-of-law framework and applying the precedent of the circuit where the search occurred. This Comment shows that this approach is fundamentally mistaken. Choice-of-law problems only arise when different laws, not differe…


Exceptional Judgments: Revising the Terrorism Exception to the Foreign Sovereign Immunities Act

E. Perot Bissell V & Joseph R. Schottenfeld

Rogue states are sometimes charged with massive default judgments for state-sponsored terrorism. Frequently, those judgements apportion responsibility to states that were not involved in terrorism and frustrate diplomatic progress. This Comment proposes a novel administrative solution to make claims…


Unlocking the Potential of Art Investment Vehicles

Alice Xiang

Fine art is increasingly not only purchased for aesthetic pleasure, but also as a financial asset, expanding the art investment market. However, the structure of art investment means that access to the market is restricted. This Comment offers solutions to democratize and leverage the potential of t…


Certification as Sabotage: Lessons from Guantánamo Bay

David Manners-Weber

Through an analysis of two recent case studies, this Comment demonstrates how certifications—requirements that government officials personally attest to some proposition—can be effective checks on the executive branch. Using observations from political science and sociology, it also describes the co…


The Tarnished Golden Rule: The Corrosive Effect of Federal Prevailing-Party Standards on State Reciprocal-Fee Statutes

Nathan Nash, Solange Hilfinger-Pardo & James Mandilk

Drawing on the authors’ clinical experience, this Comment describes an asymmetry in how courts award attorney’s fees that makes it more difficult for consumer-defendants to recover the costs of litigation. The Comment articulates a standard of “prevailing party” that would ensure equitable and effic…


Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana

Sophia House

The spread of synthetic marijuana is a public health crisis. Municipalities struggle with how to regulate drugs that can change as quickly as officials can design enforcement regimes. This Comment proposes leveraging creative administrative design and existing consumer protection torts to stem the t…


Uncovering the Codifier’s Canon: How Codification Informs Interpretation

Daniel B. Listwa

The orthodox view is that statutory captions and titles should not inform interpretation. However, a more nuanced method distinguishes between Congress’s codification choices and those that the Office of the Law Revision Council makes. While the latter are rightly disregarded, judges should use the …


When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union's Operation To Combat Smuggling in Libya’s Territorial Sea

Paul Strauch

Over the past three years, the number of human tragedies on the Mediterranean Sea has reached an unprecedented level.1 The now-iconic image of a German rescue worker cradling a drowned migrant baby in his arms in the sea between Libya and Italy remains a disturbing reminder of the…


Williams-Yulee and the Anomaly of Campaign Finance Law

Noah B. Lindell

In 2015, the U.S. Supreme Court held in Williams-Yulee v. Florida Bar that states may prohibit candidates for judicial office from personally soliciting campaign donations in order to protect the appearance of judicial integrity.2 For only the third time in its history, the Court upheld a l…


The “M” in MLP: A Proposal for Expanding the Roles of Clinicians in Medical-Legal Partnerships

Jesselyn Friley

Medical-legal partnerships (MLPs) are a promising innovation in the delivery of legal services. Usually located in health care facilities, MLPs connect medical patients with lawyers in order to “detect, address and prevent health-harming social conditions” that medicine alone …


The Bostic Question

Charles C. Bridge

Introduction Federal criminal procedure regularly struggles with a tension between fairness and finality. The Constitution provides defendants with special privileges and protections designed to prevent injustice,1 but systemic concerns about efficiency, comity, and finality make i…


In Wakefield’s Wake: Rescuing New York's Enterprise Corruption Jurisprudence

Noah A. Rosenblum

introduction For many years, New York State’s enterprise corruption law was grounded in a legal error. Recently, the New York Court of Appeals has sought to correct some of the doctrinal consequences of this mistake. Unfortunately, the court’s solution has left the law unmoored fro…


From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions

Katie Wynbrandt

introduction On June 20, 1991, two police officers brought an African American man named Anthony Gray into custody for questioning related to the unsolved rape and murder of a woman in Calvert County, Maryland.1 During the interrogation, the detectives lied to Mr. Gray about the evid…


Jurisdiction and Applicable Law Under UNCLOS

Peter Tzeng

Introduction In the recent case of Chagos Marine Protected Area,1 a five-member tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS)2 held in its hands the fate of the Chagos Archipelago. One of the questions before the tribunal was whether it had…


Reimagining Finality in Parallel Patent Proceedings

Ben Picozzi

Parties may challenge the validity of issued patents in federal courts and before the Patent and Trademark Office (PTO) and its administrative tribunal, the Patent Trial and Appeal Board (PTAB). Recently, the Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdict…


Ideological Imbalance and the Peremptory Challenge

Joshua Revesz

Legal scholars, by and large, revile peremptory challenges. Allowing parties to unilaterally strike prospective jurors without explanation has been attacked as undemocratic,1 as prone to manipulation,2 as a potential First Amendment violation,3 and—most often of all—as racist.4 Judge…


The State’s Right to Property Under International Law

Peter Tzeng

introduction On December 3, 2013, agents of the Australian Secret Intelligence Service seized privileged documents belonging to Timor-Leste on the premises of one of Timor-Leste’s legal advisers in Australia.1 The documents concerned an ongoing arbitration between the two states over…


Toward an Efficient Licensing and Rate-Setting Regime: Reconstructing § 114(i) of the Copyright Act

Joseph Pomianowski

Why is Sony/ATV Music Publishing, the world’s largest music publisher,1 unhappy about its massive hit single “Happy”?2 According to CEO and Chairman Martin Bandier, the answer comes down to the math behind digital streaming revenues. In the first three months of 2014, the Internet ra…


In Defense of “Free Houses”

Megan Wachspress, Jessie Agatstein & Christian Mott

Eight years after the start of America’s housing crisis, state courts are increasingly confronting an unanticipated consequence: what happens when a bank brings a foreclosure suit and loses? Well-established legal principles seem to provide a clear answer: the homeowner keeps her…


Tort Concepts in Traffic Crimes

Noah M. Kazis

Car crashes killed 32,719 Americans in 2013, and injured over 2.3 million more.1 Traffic is likely the most pervasive form of violence most Americans encounter.2 Accordingly, the law devotes substantial attention to preventing that bloodshed, allocating losses, and punishing …


Unpacking Wolf Packs

Carmen X.W. Lu

Wolf-pack activism has surged in the past three years. A wolf pack is composed of a group of activist investors working in unison to gain control of corporate boards.1 These activist investors collectively buy stock in a public company and then leverage their aggregate stake to influence …


Jurisdictional Rules and Final Agency Action

Sundeep Iyer

When Congress creates a statutory cause of action, some required elements of that cause of action may be considered “jurisdictional,” while others may not. The difference between jurisdictional and nonjurisdictional requirements is subtle but important. A jurisdictional element limit…


Law Enforcement and Data Privacy: A Forward-Looking Approach

Reema Shah

The Edward Snowden revelations illustrated the ramifications of a domestic and international legal infrastructure that failed to keep up with technological advancements. The USA PATRIOT Act and other national security laws were ill-equipped to handle developments in bulk data collection. T…


Interbranch Removal and the Court of Federal Claims: “Agencies in Drag”

James Anglin Flynn

Last summer, the D.C. Circuit upheld a statute that gives the President the power to remove judges of the United States Tax Court.1 Kathleen and Peter Kuretski, a taxpayer couple, had challenged the constitutionality of that provision, alleging that it granted an executive official the imper…


Federal Sentencing Error as Loss of Chance

Kate Huddleston

In July 2010, a federal district court sentenced DeAngelo Whiteside to seventeen years and six months in prison for a drug offense.1 Under Fourth Circuit precedent, Mr. Whiteside’s two prior state drug convictions triggered application of the Federal Sentencing G…


Stare Decisis and Secret Law: On Precedent and Publication in the Foreign Intelligence Surveillance Court

Jack Boeglin & Julius Taranto

In the wake of the Snowden disclosures, both Congress and the public have taken a harder look at the work of the courts created by the Foreign Intelligence Surveillance Act (FISA), focusing in particular on the “secret body of law”1 they have created in the process of authorizing, modify…


Methodological Stare Decisis and Intersystemic Statutory Interpretation in the Choice-of-Law Context

Grace E. Hart

When a state court determines that it must apply the statute of a sister state, what statutory interpretation methodology should the court use to interpret that statute? Is the forum court free to apply its own rules of statutory construction, or should it apply those of the sister state? …


The Psychology of Punishment and the Puzzle of Why Tortfeasor Death Defeats Liability for Punitive Damages

Roseanna Sommers

Nearly every jurisdiction that allows for the recovery of noncompensatory punitive damages conceives of them as serving two main purposes: (1) punishing outrageous conduct and (2) deterring its future occurrence.1 The deterrent function of punitive damages operates both to deter the defenda…


The Case for Regulating Fully Autonomous Weapons

John Lewis

On April 22, 2013, organizations across the world banded together to launch the Campaign to Stop Killer Robots. Advocates called for a ban on fully autonomous weapons (FAWs), robotic systems that can “choose and fire on targets on their own, without any human intervention.”1 Th…


From Child Protection to Children’s Rights: Rethinking Homosexual Propaganda Bans in Human Rights Law

Ryan Thoreson

On June 29, 2013, Russian President Vladimir Putin signed into law a bill prohibiting “propaganda of non-traditional sexual relations among minors,” including supportive statements about gay, lesbian, bisexual, and transgender persons.1 The legislation, which included fines of up to on…


Jagged Edges

Matthew Sipe

Modern adverse possession doctrine appears to be in regular need of re-justification. There are now alternative methods of addressing innocent improvements or title defects, as well as increasingly robust and reliable recording systems. To the layperson, adverse possession appears to be lega…


Essential Data

Zachary Abrahamson

Certain firms in the Internet economy may exclude competitors by refusing to deal data. Such conduct may impede innovation. But antitrust law lacks a coherent response to monopoly of data. This Comment proposes a policy inspired by duties to share. Over a century ago, courts devised an “es…


Parens Patriae, the Class Action Fairness Act, and the Path Forward: The Implications of Mississippi ex rel. Hood v. AU Optronics Corp.

Patrick Hayden

Few issues in the law of federal courts generate more excitement than the relative strengths of state and federal courts and the power of the states to sue on behalf of their injured citizens. Since Congress passed the Class Action Fairness Act of 2005 (CAFA),1…


Contract After Concepcion: Some Lessons from the State Courts

James Dawson

In AT&T Mobility LLC v. Concepcion, the United States Supreme Court held that the Federal Arbitration Act (FAA) preempts the use of unconscionability doctrine to invalidate arbitration clauses that foreclose classwide remedies.1 The Court found that requiring the …


SEC "Monetary Penalties Speak Very Loudly," But What Do They Say? A Critical Analysis of the SEC's New Enforcement Approach

Sonia A. Steinway

The U.S. Securities and Exchange Commission (SEC) has not been shy about promoting its use of monetary punishments under new Chair Mary Jo White.1 In September 2013, White asserted that “we must make aggressive use of our existing penalty authority, recognizing …


Beating Blackwater: Using Domestic Legislation to Enforce the International Code of Conduct for Private Military Companies

Reema Shah

In the past decade, state use of private military companies (PMCs) has greatly expanded, sparked in large part by U.S. reliance on contractors in the wars in Afghanistan and Iraq. But several of the most horrific human rights abuses of the wars exposed the absence of a regulatory re…


Innocent Abroad? Morrison, Vilar, and the Extraterritorial Application of the Exchange Act

Daniel E. Herz-Roiphe

During the fall of 1919, two American sailors bound for Rio de Janeiro hatched a plan to defraud the United States government.1 When their scheme—which involved an unscrupulous Standard Oil agent, a Rio-based shipbuilder, and a large quantity of fuel—came to the attention of American…


The EU General Data Protection Regulation: Toward a Property Regime for Protecting Data Privacy

Jacob M. Victor

The European Union recently released draft legislation that has the potential to transform EU data privacy law. The draft General Data Protection Regulation (“draft Regulation”) proposes a range of new individual rights designed to protect consumers whose personal information is collected, p…


In Need of Correction: How the Army Board for Correction of Military Records Is Failing Veterans with PTSD

Rebecca Izzo

After completing two honorable tours of duty, fighting in four separate campaigns in Vietnam, and earning an Air Medal with Valor Device for heroism, John Doe1 was given an Undesirable Discharge after he began threatening and striking other soldiers in 1973.2 He was later diagnosed with Post-T…


Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders

Erin Miller

Draconian restrictions on the activities and privacy of convicted sex offenders are a new, and troublesome, trend. In 1994 and 2006, following a national dialogue about crimes against children sparked by several high-profile incidents, Congress passed two laws requiring states to register and …


A First Amendment Approach to Generic Drug Manufacturer Tort Liability

Connor Sullivan

In 2011, the landmark case PLIVA, Inc. v. Mensing1 foreclosed many claims against generic drug manufacturers for harms caused by their products. In particular, Mensingheld that because the Food, Drug, and Cosmetic Act (FDCA) requires generic manufacturers to use labels that are “the same as…


There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton

Chris Michel

The political question doctrine poses a paradox. Courts increasingly dismiss claims as political questions, especially in sensitive fields like foreign affairs and national security.1 Yet the principles underlying the doctrine remain “murky and unsettled,”2 an “enigma” to courts and co…


The JOBS Act and Middle-Income Investors: Why It Doesn’t Go Far Enough

James J. Williamson

122 Yale L.J. 2069 (2013).


Interpretation Step Zero: A Limit on Methodology as “Law”

Andrew Tutt

122 Yale L.J. 2055 (2013).


Amici Curiae in Civil Law Jurisdictions

Steven Kochevar

122 Yale L.J. 1653 (2013).



Kidney Allocation and the Limits of the Age Discrimination Act

Benjamin Eidelson

122 Yale L.J. 1635 (2013).


Intersystemic Statutory Interpretation in Transnational Litigation

Nicholas M. McLean

122 Yale L.J. 303 (2012).


Fair Notice About Fair Notice

Jeffrey A. Love

121 Yale L.J. 2395 (2012).


Corporate Purposes in a Free Enterprise System: A Comment on eBay v. Newmark

David A. Wishnick

121 Yale L.J. 2405 (2012).


One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement

Margaret B. Weston

121 Yale L.J. 2013 (2012).


Shifting the Burden in Software Licensing Agreements

Stephen S. Gilstrap

121 Yale L.J. 1271 (2012).


The Solicitor General of the United States: Tenth Justice or Zealous Advocate?

Adam D. Chandler

121 Yale L.J. 725 (2011).


The Anti-Federalists and Presidential War Powers

Cameron O. Kistler

121 Yale L.J. 459 (2011).


Disaggregating Legal Strategies in the War on Terror

Michael J. Ellis

121 Yale L.J. 237 (2011).


Puerto Rico’s Eleventh Amendment Status Anxiety

Adam D. Chandler

120 Yale L.J. 2183 (2011).


Puerto Rico’s Eleventh Amendment Status Anxiety

Adam D. Chandler

120 Yale L.J. 2183 (2011). 


Should Tax Rates Decline with Age?

Daniel Hemel

120 Yale L.J. 1885 (2011). 


Trade Secret Law and the Changing Role of Judge and Jury

Bradley Lipton

120 Yale L.J. 955 (2011). 


Rethinking the Facial Takings Claim

David Zhou

120 Yale L.J. 967 (2011). 


Refreshing the Page on Online Collateral Auctions

Stephen S. Gilstrap

120 Yale L.J. 679 (2010). 


Neuroscience and Institutional Choice in Federal Sentencing Law

Rebecca Krauss

120 Yale L.J. 367 (2010). 


Privacy, Personhood, and the Courts: FOIA Exemption 7(C) in Context

Scott A. Hartman

120 Yale L.J. 379 (2010). 


The Reverse-Batson: Wrestling with the Habeas Remedy

Elina Tetelbaum

119 Yale L.J. 1739 (2010). 


Addressing the Green Patent Global Deadlock Through Bayh-Dole Reform

Lisa Larrimore Ouellette

119 Yale L.J. 1727 (2010). 


Discovery Audits: Model Rule 3.8(d) and the Prosecutor's Duty To Disclose

Christina Parajon

119 Yale L.J. 1339 (2010). 


The Significance of Domicile in Lyman Trumbull's Conception of Citizenship

Mark Shawhan

119 Yale L.J. 1351 (2010).


Constructing America: Mythmaking in U.S. Immigration Courts

Margot K. Mendelson

119 Yale L.J. 1012 (2010). 

This Note argues that immigration courts have served and continue to serve as important sites for the perpetuation of national identity myths. By focusing on a subset of cases called “cancellation of removal,” I examine the functional criteria by which immigrants are gra…


Cost-Shifting in Electronic Discovery

Bradley T. Tennis

119 Yale L.J. 1113 (2010). 


Suspending the Writ at Guantánamo: Take III?

Joseph Pace

119 Yale L.J. 825 (2010). 


Constitutional Avoidance Step Zero

Anthony Vitarelli

119 Yale L.J. 837 (2010). 


INA Section 242(g): Immigration Agents, Immunity, and Damages Suits

Sameer Ahmed

119 Yale L.J. 625 (2009). 


Taxing Unreasonable Compensation: § 162(a)(1) and Managerial Power

Aaron S.J. Zelinsky

119 Yale L.J. 637 (2009).


A Case for Varying Interpretive Deference at the State Level

D. Zachary Hudson

119 Yale L.J. 373 (2009). 


Fantasy Liability: Publicity Law, the First Amendment, and Fantasy Sports

Manav K. Bhatnagar

119 Yale L.J. 131 (2009). 


Applying the Absolute Priority Rule to Nonprofit Enterprises in Bankruptcy

Amelia Rawls

118 Yale L.J. 1231 (2009).


The Casualty of Investor Protection in Times of Economic Crisis

Kathleen Claussen

118 Yale L.J. 1545 (2009).


Optimizing Dual Agency Review of Telecommunications Mergers

William J. Rinner & III

118 Yale L.J. 1571 (2009).


Original Jurisdiction Deadlocks

Michael Coenen

118 Yale L.J. 1003 (2009).


Constructive Notice Under the Family and Medical Leave Act

Jillian J. Rennie

118 Yale L.J. 795 (2009).


Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability

Michael Kimberly

118 Yale L.J. 177 (2008).


Balancing Burdens: Clarifying the Discovery Standard in Arbitration Proceedings

Anne B. O'Hagen

117 Yale L.J. 1559 (2008).



A Blueprint for Applying the Rules Enabling Act's Supersession Clause

Anthony Vitarelli

117 Yale L.J. 1225 (2008).


Ledbetter in Congress: The Limits of a Narrow Legislative Override

Kathryn A. Eidmann

117 Yale L.J. 971 (2008).


Seeking More Scienter: The Effect of False Claims Act Interpretations

Michael Murray

117 Yale L.J. 981 (2008).


Cleaning House: Congressional Commissioners for Standards

Josh Chafetz

117 Yale L.J. 165 (2007).


On Target? The Israeli Supreme Court and the Expansion of Targeted Killings

Kristen E. Eichensehr

116 Yale L.J. 1873 (2007).


Sheltering Deprivations: FEMA, Section 408 Housing, and Procedural Redesign

Damian Williams

116 Yale L.J. 1883 (2007).


The Marriage of Family Law and Private Judging in California

Sheila Nagaraj

116 Yale L.J. 1615 (2007)


Six Puerto Rican Congressmen Go to Washington

José R. Coleman Tió

116 Yale L.J. 1389 (2007)


Read José R. Coleman Tió's Pocket Part Essay adapted from this Comment.


Read John C. Fortier's Response, The Constitution Is Clear: Only States Vote in Congress.


Read Christina Duffy Burnett's Response, Two Puerto Rican Senators Stay Home.


Bush v. Gore and the Uses of “Limiting”

Chad Flanders

116 Yale L.J. 1159 (2007)


Tax Expenditures as Foreign Aid

David E. Pozen

116 Yale L.J. 869 (2007)


An Empirical Look at Churches in the Zoning Process

Stephen Clowney

116 Yale L.J. 859 (2007)


HAVA's Unintended Consequences: A Lesson for Next Time

Brandon Fail

116 Yale L.J. 493 (2006)


Should the Criminal Defendant Be Assigned a Seat in Court?

Steven Shepard

115 Yale L.J. 2203 (2006)

In this Comment I question the U.S. Attorney's claim that every criminal defendant should be required to sit at the table farthest from the jury. Courtroom seating is properly within a trial judge's discretion, and there are good reasons for seating some criminal defendants …


United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review

Eric Citron

115 Yale L.J. 2183 (2006)

This Comment argues that a proper understanding of Booker's reasonableness review validates the appellate court's rejection of these reduced-ratio sentences in Pho, and should do so despite the fact that the sentences issued by Judge Torres were eminently "reasonable" in any…


Unaccountable at the Founding: The Originalist Case for Anonymous Juries

Kory A. Langhofer

115 Yale L.J. 1823 (2006)

This Comment argues that the courts overlook important Founding-era evidence on juror accountability. It concludes that the Public Trial Clause does not require juror identification. Part I describes the Public Trial Clause accountability argument made against the anonymous …


Validation Procedures and the Burden of Ballot Access Regulations

Robert Yablon

115 Yale L.J. 1833 (2006)

Despite the prominent role they play in election contests, validation mechanisms have largely escaped judicial and scholarly scrutiny. This Comment urges courts to assess the constitutionality of a state's ballot access scheme in light of how the state evaluates and certifie…


Student Derivative Lawsuits

Adam Kyle Kaufman

115 Yale L.J. 1471 (2006)

In this Comment, I argue that states could help avert financial scandals like the one at American University by adopting rules less protective of university boards. Specifically, I propose that states subject all nonprofit university boards to the same fiduciary standards as…


The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism

Alicia L. Bannon

115 Yale L.J. 1157 (2006)

More than a decade after the world did nothing to halt genocide in Rwanda, and in the shadow of ongoing atrocities in Darfur, Sudan, the international community recently made a new commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes agai…


A Quantitative Look at the Two-Suspect Scenario

Brian Netter

115 Yale L.J. 1167 (2006)

Two men are placed at the scene of a homicide. Each has an unsavory past and either could be the murderer--or an innocent man. It all depends on whether a witness should be believed, how the evidence is pieced together, and how the prosecutor decides to proceed. Should he tr…


Kilburn v. Libya: Cause for Alarm?

Stephen Townley

115 Yale L.J. 1177 (2006)

In Kilburn v. Libya, the D.C. Circuit held that a plaintiff may turn to United States courts to seek recovery from a foreign nation for injuries suffered at the hands of a terrorist organization with which the foreign nation was affiliated--if actions taken by that foreign n…


Limiting the Federal Forum: The Dangers of an Expansive Interpretation of the Tax Injunction Act

Brianne J. Gorod

115 Yale L.J. 727 (2005)

In Henderson v. Stalder, the Court of Appeals for the Fifth Circuit held that the Tax Injunction Act (TIA) of 1937 prevents the federal courts from exercising jurisdiction over any case in which a victory for the plaintiff might reduce state revenues. In reaching this resul…


The Secret Ambition of Racial Profiling

Steven Wu

115 Yale L.J. 491 (2005)

In 2000, a year after the shooting of Amadou Diallo, a select committee of the New York City Council held a series of meetings in the Bronx to address police-community relations. The committee intended the meetings "to open a dialogue between police officers and city resident…


The Unfinished Business of Bankruptcy Reform: A Proposal To Improve the Treatment of Support Creditors

Bryan W. Leach

115 Yale L.J. 247 (2005)

Amid the controversy surrounding the recently enacted Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (2005 Act), few commentators have focused on the Act's provisions designed to enhance the protection of "support creditors"--a class of creditors consisting …


Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury"

Joshua Kleinfeld

115 Yale L.J. 237 (2005)

Even when the facts are humanly grievous, plaintiffs do not often win their in vitro fertilization (IVF) tort suits. In Utah, an IVF clinic fertilized a woman's eggs with the wrong man's sperm; she ultimately bore a stranger's rather than her husband's children. A New York …


Grand Theft Oreo: The Constitutionality of Advergame Regulation

Seth Grossman

115 Yale L.J. 227 (2005)

In recent years, companies have increasingly embraced alternative forms of marketing that deviate from the conventional advertising model. One new type of marketing that has received particular attention is "advergames." The term--a combination of "advertisement" and "video g…


Affirmative Action's Affirmative Actions: A Reply to Sander

Daniel E. Ho

114 Yale L.J. 2011 (2005)

I am grateful to Professor Sander for his interest in my work and his willingness to pursue a valid answer to the critical question of the effects of law school tier on bar performance. Sander's readiness to respond to my Comment demonstrates the importance of the questions…


Why Affirmative Action Does Not Cause Black Students To Fail the Bar

Daniel E. Ho

114 Yale L.J. 1997 (2005)

In a widely discussed empirical study, Richard Sander concludes that affirmative action at U.S. law schools causes blacks to fail the bar. If correct, this conclusion would turn the jurisprudence, policy, and law of affirmative action on its head. But the article misapplie…


Divorcing Marriage from Procreation

Jamal Greene

114 Yale L.J. 1989 (2005)

Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashio…


Freeing Newsgathering from the Reporter's Privilege

Jaynie Randall

114 Yale L.J. 1827 (2005)

A number of recent high-profile cases have forced courts to reexamine whether reporters must respond to subpoenas seeking disclosure of confidential sources or whether they are protected from doing so by the doctrine of reporter's privilege. While these confidential-source …


Can Attorneys and Clients Conspire?

Allon Kedem

114 Yale L.J. 1819 (2005)

A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acti…


The Inadequacy of Fiscal Constraints as a Substitute for Proportionality Review

Elizabeth Napier Dewar

114 Yale L.J. 1177 (2005)

The Constitution does not prohibit "everything that is intensely undesirable." In particular, Justice Scalia argues, the Eighth Amendment does not prohibit disproportionately long prison sentences. Yet Scalia seems to offer some consolation to those who worry about the "in…


American Prosecutors as Democracy Promoters: Prosecuting Corrupt Foreign Officials in U.S. Courts

Matthew J. Spence

114 Yale L.J. 1185 (2005)

On June 3, 2004, a jury in a San Francisco federal court convicted former Ukrainian Prime Minister Pavel Lazarenko of twenty-nine counts of money laundering, wire fraud, interstate transportation of stolen property (ITSP), and conspiracy. The jury found that Lazarenko stole…


Overlooking a Sixth Amendment Framework

Jason Colin Cyrulnik

114 Yale L.J. 905 (2005)

As the Supreme Court further plunges the world of criminal sentencing into turmoil, state courts in particular are scrutinizing their own statutory sentencing schemes and judicial practices. Ever since the Court's holding in Apprendi v. New Jersey (recently reformulated and…


Punishing Masculinity in Gay Asylum Claims

Fadi Hanna

114 Yale L.J. 913 (2005)

Does a homosexual asylum seeker need to prove he is "gay enough" to win protection from a U.S. court? Increasingly, and troublingly, the answer is yes. In In re Soto Vega, the Board of Immigration Appeals (BIA) denied a gay man's application for asylum because he appeared to…


Solving the Due Process Problem with Military Commissions

Nicholas Stephanopoulos

114 Yale L.J. 921 (2005)

The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda fo…


International Tribunals and Forum Non Conveniens Analysis

Ryan T. Bergsieker

114 Yale L.J. 443 (2004)

Many international civil disputes are resolved via state-driven litigation before multinational tribunals. Indeed, under traditional principles of international law, individuals may not appear before such tribunals at all. Instead, states must advance claims on behalf of thei…


Lottery Winnings as Capital Gains

Matthew S. Levine

114 Yale L.J. 195 (2004)

Pity J. Michael Maginnis. In 1991, he had the misfortune to win $9 million in the lottery. Five years later, he sold his remaining winnings--fifteen annual payments of $450,000 each--to Woodbridge Financial Corporation for a $3.95 million lump sum. He reported this payment o…


Non-Self-Executing Treaties and the Suspension Clause After St. Cyr

Stephen I. Vladeck

113 Yale L.J. 2007 (2004)

Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003).

In INS v. St. Cyr, the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform …


Is the Right To Organize Unconstitutional?

Aron Fischer

113 Yale L.J. 1999 (2004)

Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).

Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act…


Dual Sovereignty and the Sixth Amendment Right to Counsel

David J. D'Addio

113 Yale L.J. 1991 (2004)

United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002).

In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charg…


Security with Transparency: Judicial Review in "Special Interest" Immigration Proceedings

Rashad Hussain

113 Yale L.J. 1333 (2004)

Much of the debate regarding post-September 11 counterterrorism initiatives has centered on the potentially damaging effects of these policies on constitutionally protected rights. Many observers have weighed the balance that the government has struck between national securi…


Appellate Review and the Exclusionary Rule

Zack Bray

113 Yale L.J. 1143 (2004)

Today, application of the exclusionary rule to evidence obtained in reliance on a potentially invalid search warrant is governed by the Supreme Court's holding in United States v. Leon. Leon instructs courts to admit evidence obtained on the basis of a potentially invalid …


The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action

Brianne J. Gorod

113 Yale L.J. 939 (2004)

Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held …


Turning the Endangered Species Act Inside Out?

Jud Mathews

113 Yale L.J. 947 (2004)

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used…


A Missed Opportunity: Nonprofit Antitrust Liability in Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc.

Olivia S. Choe

113 Yale L.J. 533 (2003)

The antitrust laws are meant to govern and promote competition. But how antitrust law should treat nonprofit organizations, whose objectives lie outside the commercial sphere but whose actions nevertheless have economic consequences, is not settled. The Fourth Circuit recent…


Renting Space on the Shoulders of Giants: Madey and the Future of the Experimental Use Doctrine

Tom Saunders

113 Yale L.J. 261 (2003)

The experimental use doctrine in patent law protects alleged infringers who use patented inventions solely for experimental purposes, such as testing whether a device functions as claimed or re-creating a process to observe its effects from a scientific perspective. The judi…


A Better Interpretation of "Special Needs" Doctrine After Edmond and Ferguson

Jonathan Kravis

112 Yale L.J. 2591 (2003)


Korematsu Continued . . .

Elbert Lin

112 Yale L.J. 1911 (2003)

How far have America and her courts come since World War II? Even in the wake of September 11th, it seemed they would not again endorse racial intolerance on the level of wholesale internments. This Comment argues, however, that Dasrath v. Continental Airlines, Inc. indicat…


A "Flip" Look at Predatory Lending: Will the Fed's Revised Regulation Z End Abusive Refinancing Practices?

Michael J. Pyle

112 Yale L.J. 1919 (2003)

The regulation of predatory loans can be a tedious business. The whole topic redounds of such yawn-inducing terms as "single-premium credit insurance" and "negative amortization." Yet the human costs of predatory lending are no less real for all the financial jargon that mas…


Chevron Deference and Treaty Interpretation

Evan Criddle

112 Yale L.J. 1927 (2003)

One need not accept Hobbes's vision of international relations as a perpetual "condition of warre" to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign…


The Tenth Amendment and Local Government

Jake Sullivan

This Comment posits that the Constitution may well carve out a limited space for the people to express themselves and exercise certain powers through local self-government—without interference by the state. More specifically, the Tenth Amendment endows the people with the right to choose and define …


Risk Magnified: Standing Under the Statist Lens

Mary D. Fan

112 Yale L.J. 1633 (2003)

Why some harms count before the courts and others do not is a matter of acute expressive and practical impact. Judicial refusal to see claimed injuries is an effective denial of legal personhood and a bar from powerful judicial machinery. The issue of "erratic, even bizarre…


Romanticizing Guilt

William B. Michael

112 Yale L.J. 1625 (2003)

George P. Fletcher's Romantics at War begins by describing an ironic blindness. The threat of terrorism has forced Americans to consider questions of war and guilt with a new sense of immediacy and relevance, to disorienting effect. We remain unable to reconcile our instinct…


The Limits on University Control of Graduate Student Speech

Tom Saunders

112 Yale L.J. 1295 (2003)

In the spring of 1999, Christopher Brown, a master's degree candidate in material sciences at the University of California at Santa Barbara (UCSB), submitted his thesis for approval. The copy reviewed by Brown's thesis committee contained no acknowledgments page. After the c…


A Small Problem of Precedent: 18 U.S.C. 4001(a) and the Detention of U.S. Citizen "Enemy Combatants"

Stephen I. Vladeck

112 Yale L.J. 961 (2003)

In 1971, Congress repealed the Emergency Detention Act, part of the Internal Security Act of 1950, by writing into 18 U.S.C. § 4001(a) the provision that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Ena…


Responsible Direction and the Supervisory Status of Registered Nurses

Nikhil Shanbhag

112 Yale L.J. 665 (2002)

The National Labor Relations Board (NLRB or the Board) has, for many years, wrestled with the problem of whether various classes of professional employees who regularly exercise discretion and judgment in their jobs should be classified as "supervisors" and therefore denied t…


Queer Brinksmanship: Citizenship and the Solomon Wars

Amy Kapczynski

112 Yale L.J. 673 (2002)

In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters from accessing campuses and directory information about students. It was the …


Section 1983, Statutes, and Sovereign Immunity

Nick Daum

112 Yale L.J. 353 (2002)

This Comment argues that a significant, but unnoticed, way around state sovereign immunity has become available under current law. Although sovereign immunity now generally prohibits actions against states for violations of the Americans with Disabilities Act (ADA), a plaint…


"Exceedingly Vexed and Difficult": Games and the First Amendment

Michael T. Morley

112 Yale L.J. 361 (2002)

The mayor of Tinley Park, Illinois, describes his village as a "dynamic, progressive community" of more than 45,000 people. He claims it is a "great place to live, work and play." Until September 22, 2000, however, the village was a "great" place to play only for those who …


Reorganization as a Substitute for Reform: The Abolition of the INS

Jeffrey Manns

112 Yale L.J. 145 (2002)

September 11th and the events that followed highlighted the shortcomings of our nation's immigration policies and their enforcement. Gaffes, such as the issuance of student visas to two of the hijackers on the six-month anniversary of 9/11, reinforced public perceptions that …


Textual Imagination

Mary D. Fan

111 Yale L.J. 1251 (2002)

Mary D. Fan


Bowling Together During War

Preston Quesenberry

111 Yale L.J. 1031 (2002)


The Copyright Law

Robert Kry

111 Yale L.J. 761 (2001)


Unreasonable Probability of Error

Jed Handelsman Shugerman

111 Yale L.J. 435 (2001)


The Kabuki Mask of Bush v. Gore

Nick Levin

111 Yale L.J. 223 (2001)

Is law merely Kabuki politics? Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore, as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics p…


Past Imperfect

Wendie Ellen Schneider

110 Yale L.J. 1531 (2001)



Fairness and Precedent

Daniel B. Levin

110 Yale L.J. 1295 (2001)



Baby Contracts

Chi Steve Kwok

110 Yale L.J. 1287 (2001)



Low Riding

Geoffrey Christopher Rapp

110 Yale L.J. 1089 (2001)


Sovereignty on Our Terms

Jenia Iontcheva

110 Yale L.J. 885 (2001)



Once in Doubt

Robert Kry

110 Yale L.J. 725 (2001)



Narrow Clauses and Trial Balloons

Michael Novick

110 Yale L.J. 543 (2000)


Measuring Language Rights Along a Spectrum

Christian A. Garza

110 Yale L.J. 379 (2000)



DNA's Dark Side

Geoffrey Christopher Rapp

110 Yale L.J. 163 (2000)