Essay
Essay
Banking and Antitrust
This Essay seeks to recover the deeply rooted connection between U.S. banking law and antitrust. It reconceptualizes banking law as a sector-specific antimonopoly regime that imposes multiple structural constraints on publicly subsidized banks’ ability to abuse their power over the supply and alloca…
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Policing the Polity
Interior immigration enforcement reaches well beyond deportation. In practice, it also offers a rationale for policing U.S. residents stereotyped as foreign. This Essay shows how a “deportation-centric” approach limits the ability of courts to recognize and redress unjustified surveillance, and it a…
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The Moral Ambiguity of Public Prosecution
In a legal system where criminal prosecution is the institutional analog of moral blame, a state that acts as exclusive prosecutor exceeds its moral standing and incurs a debt to the victim. The nature of this debt and how we might discharge it are the primary subjects of this Essay.
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The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance
The Fourth Amendment allows police to perform warrantless searches of individuals if they give consent to be searched and that consent is voluntary. Based on original laboratory research, this Essay posits that fact-finders assessing voluntariness underappreciate the extent to which suspects feel pr…
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Democratic Policing Before the Due Process Revolution
Prevailing narratives of the Warren Court’s Due Process Revolution emphasize how it constrained police behavior. This Essay questions this account. It returns to the legal culture before the Revolution, focusing on three lectures by the prominent scholar Jerome Hall. Due process, it concludes, as mu…
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The Dilemma of Localism in an Era of Polarization
Localism discourse has long confronted a fundamental problem: how can we remain committed to decentralized decision-making while checking the excesses of local parochialism? This Essay proposes a new approach in our polarized era, emphasizing the joint role state individual rights and the often-igno…
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Why Is It Wrong To Punish Thought?
It is an age-old maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, and unexecuted intentions. Yet its justification is something of a mystery. This Essay argues that each of the prevailing justifications is deficient and propo…
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Originalism Without Text
Originalism is not about the text. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. What originalism generally is about is our present constitutional law and its dependence on a crucial moment in the pa…
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Police Reform and the Dismantling of Legal Estrangement
In police reform circles, many scholars and policymakers diagnose the frayed relationship between police forces and the communities they serve as a problem of illegitimacy, or the idea that people lack confidence in the police and thus are unlikely to comply or cooperate with t…
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Cops and Pleas: Police Officers’ Influence on Plea Bargaining
abstract.Police officers play an important, though little-understood, role in plea bargaining. This Essay examines the many ways in which prosecutors and police officers consult, collaborate, and clash with each other over plea bargaining. Using original interviews with criminal justice of…
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Agency Design and Political Control
Although historical debates about the separation of powers focus on Congress, the President, and the Judiciary, in modern times, the bureaucracy is the elephant in the room. In a world of seemingly inevitable widespread congressional delegation to administrative agencies, as we…
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Fiduciary Political Theory: A Critique
“Fiduciary political theory” is a burgeoning intellectual project that uses fiduciary principles to analyze public law. This Essay provides a framework for assessing the usefulness and limitations of fiduciary political theory. Our thesis is that fiduciary principles can be…
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The New Public
By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotiv…
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The Domestic Analogy Revisited: Hobbes on International Order
This Essay reexamines Thomas Hobbes’s understanding of international order. Hobbes defended the establishment of an all-powerful sovereign as the solution to interpersonal conflict, and he advanced an analogy between persons and states. Extending this “domestic analogy,” the…
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Which Way To Nudge? Uncovering Preferences in the Behavioral Age
Behavioral Law and Economics has created a dilemma for policymakers. On the one hand, research from the field suggests a wide range of unconventional policy instruments (“nudges”) may be used to shape people’s voluntary choices in order to lead them to the option they most pref…
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On Evidence: Proving Frye as a Matter of Law, Science, and History
This Essay is a cautionary tale about what the law does to history. It uses a landmark ruling about whether scientific evidence is admissible in court to illustrate how the law renders historical evidence invisible. Frye v. United States established o…
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The End of Jurisprudence
For more than forty years, jurisprudence has been dominated by the Hart-Dworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how the cont…
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Bounded Institutions
This Essay examines two alternative designs for hierarchical institutions: “bounded” and “unbounded.” In a bounded structure, a principal decides on a bounded aggregate numerical allocation, and then an agent makes the allocation to an underly…
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We the People: Each and Every One
In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about “popular sovereignty,” “popular consent,” “higher law,” …
Essay
Reactionary Rhetoric and Liberal Legal Academia
As celebrations mark the fiftieth anniversary of the Civil Rights Act of 1964, it is essential to recover the arguments mainstream critics made in opposing what has become a sacrosanct piece of legislation. Prominent legal scholarship now appears to m…
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Popular Sovereignty and the United States Constitution: Tensions in the Ackermanian Program
The very title of Bruce Ackerman’s now three-volume masterwork, We the People, signifies his commitment to popular sovereignty and, beyond that, to the embrace of democratic inclusion as the leitmotif of American constitutionalism. But “popular…
Essay
The Neo-Hamiltonian Temptation
The central force behind the development of constitutional law, according to Bruce Ackerman’s magisterial We the People: The Civil Rights Revolution, is not the courts but the People, acting through the elected officials who were responsible for th…
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The Civil Rights Canon: Above and Below
This essay builds on the constitutional history of the civil rights movement from below to complement and complicate the canon identified in We the People: The Civil Rights Revolution. Like Professor Ackerman’s work, this essay embraces the concept o…
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Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements
This essay was influenced by a class on Law and Social Movements that Professors Guinier and Torres taught at the Yale Law School in 2011. This essay was also informed by numerous conversations with Bruce Ackerman regarding his book that is under review in this Symposium. …
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Protecting Civil Rights in the Shadows
Beyond grand constitutional moments such as the New Deal and the civil rights era, the American people also remove other, less prominent issues from majoritarian politics. This process of petit popular constitutionalism resolves numerous important issues of government …
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Universalism and Civil Rights (with Notes on Voting Rights After Shelby)
After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They ins…
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Separate Spheres
This essay is about the mixed legacy, or incomplete achievement, of the landmark legal changes of the Second Reconstruction. This mixed legacy is one of the central themes of The Civil Rights Revolution, the third volume of Bruce Ackerman’s We the…
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Ackerman’s Civil Rights Revolution and Modern American Racial Politics
Bruce Ackerman’s The Civil Rights Revolution makes a signal contribution by documenting how the major civil rights statutes of the 1960s, especially the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act, pragmatically …
Essay
Rethinking Rights After the Second Reconstruction
The Civil Rights Act was remarkably successful in fighting overt bigotry and discrimination, but much less so in combating the subtler, institutionalized disadvantages that are now the main sources of social injustice. The heroic idea of rights as protecti…
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A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci
Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a co…
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Have We Moved Beyond the Civil Rights Revolution?
Bruce Ackerman’s account of the Civil Rights Revolution stresses the importance of popular sovereignty and the separation of powers as the basis of constitutional significance. In this view, key spokespersons, including Martin Luther King, Jr. and Ly…
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Equal Protection in the Key of Respect
This essay challenges the three related claims embedded within Professor Ackerman’s assertion that the distinctive wisdom of Chief Justice Warren’s opinion in Brown v. Board of Education lies in its recognition of segregation as institutionalized humiliation. Ack…
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Ackerman’s Brown
This essay contends that, despite its revisionist ethos, Professor Ackerman’s We the People: The Civil Rights Revolution is conventional in its assessment of Brown v. Board of Education. Ackerman praises Brown as “the greatest judicial opinion of the twentieth cen…
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The Anti-Humiliation Principle and Same-Sex Marriage
Bruce Ackerman’s volume on the civil rights revolution argues that the Second Reconstruction was centrally concerned with the concept of institutionalized humiliation. Ackerman inveighs against the fact that we have turned away from this “anti-humiliat…
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De-Schooling Constitutional Law
For more than two centuries, constitutional law has been created by a dialogue between generations. As newcomers displace their predecessors, they begin to challenge parts of the legacy they have inherited while cherishing other elements of their tradition. The…
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Federalism as the New Nationalism: An Overview
Federalism has had a resurgence of late, with symposia organized,1 stories written,2 and new scholarly paths charted. Now is an appropriate moment to assess where the new “new federalism”3 is heading. This Feature thus brings together five scholars who have made unique contribution…
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From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism
Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to aband…
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The Loyal Opposition
The term loyal opposition is not often used in American debates because (we think) we lack an institutional structure for allowing minorities to take part in governance. On this view, we’ve found our own way to build loyalty while licensing opposition, but it’s been a rights-…
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Our [National] Federalism
“National Federalism” best describes the modern allocation of state and federal power, but it is a federalism without doctrine. Federalism today comes primarily from Congress—through its decisions to give states prominent roles in federal schemes and so to ensure the stat…
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The Shadow Powers of Article I
This essay argues that the interpretive struggle over the meaning of American federalism has recently shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfa…
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Negotiating Conflict Through Federalism: Institutional and Popular Perspectives
The contours of our federal system are under constant negotiation, as governments construct the scope of one another’s interests and powers while pursuing their agendas. For our institutions to manage these dynamics productively, we must understand the value the system is capab…
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The Moral Impact Theory of Law
I develop an alternative to the two main views of law that have dominated legal thought. My view offers a novel account of how the actions of legal institutions make the law what it is, and a correspondingly novel account of how to interpret legal texts. According to my view, legal obl…
Essay
Pretrial Detention and the Right to Be Monitored
Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. This Essay develops two rel…
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Reconsidering Citizens United as a Press Clause Case
The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a documentary film criticizing a candidate for public office falls within the core…
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Tops, Bottoms, and Versatiles: What Straight Views of Penetrative Preferences Could Mean for Sexuality Claims Under Price Waterhouse
This Essay reports the results of a survey experiment that we conducted on over eight hundred heterosexual respondents to compare associational attitudes toward gay men who engage in different types of sexual practices. Specifically, we randomly assigned respondents to hear one…
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Why Civil Gideon Won’t Fix Family Law
This Essay explains why we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. The comparable importance of these interests does not necess…
Essay
Gideon Exceptionalism?
122 Yale L.J. 2126 (2013).
There is no doubt that Gideon v. Wainwright is extraordinary, but in thinking about its uniqueness, we are reminded of “American exceptionalism” and the diametrically opposed meanings that advocates have ascribed to the phrase. Gideon too is exceptional, in both the laudato…
Essay
Fifty Years of Defiance and Resistance After Gideon v. Wainwright
122 Yale L.J. 2150 (2013).
In its 1963 ruling Gideon v. Wainwright, the Supreme Court declared the right to a lawyer “fundamental and essential” to fairness in the criminal courts and held that lawyers must be provided for people who could not afford them so that every person “stands equal before the…
Essay
Poor People Lose: Gideon and the Critique of Rights
122 Yale L.J. 2176 (2013).
A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The crit…
Essay
Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services
122 Yale L.J. 2206 (2013).
Recent empirical studies tested whether litigants with access to lawyers fared better than litigants with access only to advice or limited assistance. Two of the three studies produced null findings—the litigants with access to lawyers, the treatment group, fared no better …
Essay
Race and the Disappointing Right to Counsel
122 Yale L.J. 2236 (2013).
Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hop…
Essay
Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law
122 Yale L.J. 2260 (2013).
Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality…
Essay
Gideon’s Migration
122 Yale L.J. 2282 (2013).
For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon’s migration. At the level of everyday practice, criminal defense attorneys appointe…
Essay
Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda
122 Yale L.J. 2316 (2013).
As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same t…
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Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?
122 Yale L.J. 2336 (2013).
In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in…
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Valuing Gideon’s Gold: How Much Justice Can We Afford?
122 Yale L.J. 2358 (2013).
In this Essay, we explore Gideon’s impact in our community, El Paso, Texas, which has the will to try to meet Gideon’s challenge, but lacks the resources to deliver fully Gideon’s promise. We look at the origins of our community’s indigent defense reform and examine our off…
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Investigating Gideon’s Legacy in the U.S. Courts of Appeals
122 Yale L.J. 2376 (2013).
This Essay investigates the legacy of Gideon by examining the de facto courts of last resort for convicted offenders: the federal courts of appeals. Part I focuses on the U.S. courts of appeals’ judges and caseloads, revealing that very few federal appellate judges have pri…
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An Immigration Gideon for Lawful Permanent Residents
122 Yale L.J. 2394 (2013).
In evaluating the legacy of Gideon v. Wainwright, it is critical to remember that the Supreme Court’s decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal def…
Essay
Gideon at Guantánamo
122 Yale L.J. 2416 (2013).
The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether …
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Enforcing Effective Assistance After Martinez
122 Yale L.J. 2428 (2013).
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent represen…
Essay
Gideon’s Law-Protective Function
122 Yale L.J. 2460 (2013).
Gideon v. Wainwright dramatically affects the rights of indigent defendants by entitling them to representation. But Gideon has another systemic consequence as well. In addition to protecting the rights of individual defendants in particular trials, Gideon also protects the…
Essay
Gideon’s Shadow
122 Yale L.J. 2482 (2013).
The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elabo…
Essay
Gideon at Guantánamo: Democratic and Despotic Detention
122 Yale L.J. 2504 (2013).
One measure of Gideon v. Wainwright is that it made the U.S. government’s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon, along with Miranda v. Arizona, is part of a democratic narrative shaped over dec…
Essay
Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures
122 Yale L.J. 2550 (2013).
Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our …
Essay
Federal Public Defense in an Age of Inquisition
122 Yale L.J. 2578 (2013).
This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Ac…
Essay
Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures
122 Yale L.J. 2604 (2013).
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life int…
Essay
Implicit Racial Bias in Public Defender Triage
122 Yale L.J. 2626 (2013).
Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defend…
Essay
Effective Plea Bargaining Counsel
122 Yale L.J. 2650 (2013).
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men,…
Essay
The Continuum of Excludability and the Limits of Patents
122 Yale L.J. 1900 (2013).
In IP scholarship, patents are commonly understood as more efficient than other approaches to innovation policy. Their primary ostensible advantage is allocative: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensi…
Essay
Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right
122 Yale L.J. 1444 (2013).
This Essay puts forward the conceptual and normative underpinnings of a principle of abuse of property right. Owners abuse their right, I argue, when their decisions about a thing are designed just to produce harm. This is so whether that harm is an end in itself (spite) or…
Essay
Reconceptualizing the Burden of Proof
122 Yale L.J. 1254 (2013).
The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponder…
Essay
Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?
122 Yale L.J. 940 (2013).
It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senat…
Essay
Asymmetries and Incentives in Plea Bargaining and Evidence Production
122 Yale L.J. 690 (2012).
Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymm…
Essay
Contra Nemo Iudex in Sua Causa: The Limits of Impartiality
122 Yale L.J. 384 (2012).
Regularly invoked by the Supreme Court in diverse contexts, the maxim nemo iudex in sua causa—no man should be judge in his own case—is widely thought to capture a bedrock principle of natural justice and constitutionalism. I will argue that the nemo iudex principle is a m…
Essay
Judicial Capacity and the Substance of Constitutional Law
122 Yale L.J. 422 (2012).
Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This Essay advances a tw…
Essay
How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes
122 Yale L.J. 154 (2012).
One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how defense counsel affect murder case outcomes. Compare…
Essay
How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes
122 Yale L.J. 154 (2012).
One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how defense counsel affect murder case outcomes. Compare…
Essay
How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes
122 Yale L.J. 154 (2012).
One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how defense counsel affect murder case outcomes. Comp…
Essay
The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other
121 Yale L.J. 2216 (2012).
The potential complementarities between antitrust and consumer protection law—collectively, “consumer law”—are well known. The rise of the newly established Consumer Financial Protection Bureau (CFPB) portends a deep rift in the intellectual infrastructure of consumer law …
Essay
Due Process as Separation of Powers
121 Yale L.J. 1672 (2012).
From its conceptual origin in Magna Charta, due process of law has required that
government can deprive persons of rights only pursuant to a coordinated effort of separate
institutions that make, execute, and adjudicate claims under the law. Originalist debates about
whether t…
Essay
Income Tax Discrimination: Still Stuck in the Labyrinth of Impossibility
121 Yale L.J. 1118 (2012).
In previous articles, we have argued that the European Court of Justice’s reliance on nondiscrimination as the basis for its decisions did not (and could not) satisfy commonly accepted tax policy norms, such as fairness, administrability, economic efficiency, production o…
Essay
Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond
121 Yale L.J. 534 (2011).
State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law. We have no Chevron, federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s…
Essay
The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability
121 Yale L.J. 142 (2011).
When a tort rule is fully aligned, harms are valued equally across the elements.
Because the valuation of harm within duty equals the valuation within the damages remedy, a
fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any
harm by…
Essay
Justifications, Power, and Authority
117 Yale L.J. 1070 (2008).
Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structu…
Essay
Irreparable Benefits
116 Yale L.J. 1284 (2007)
The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the…
Essay
The Efficient Performance Hypothesis
116 Yale L.J. 568 (2006)
Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. Much of the justification for this endeavor has rested upon claims of judicial and economic effic…
Essay
Executive Branch Usurpation of Power: Corporations and Capital Markets
115 Yale L.J. 2416 (2006)
Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branch…
Essay
Beyond Marbury: The Executive's Power To Say What the Law Is
115 Yale L.J. 2580 (2006)
Under Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural R…
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Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System
This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.
Essay
Rational War and Constitutional Design
115 Yale L.J. 2512 (2006)
Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative …
Essay
Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive
115 Yale L.J. 2446 (2006)
Proponents of the unitary executive have contended that its adoption by the framers "swept plural executive forms into the ash bin of history." Virtually every state government, however, has a divided executive in which executive power is apportioned among different executiv…
Essay
Gubernatorial Foreign Policy
115 Yale L.J. 2380 (2006)
In a variety of circumstances, state governors exercise independent decision-making power over matters affecting the foreign policy of the United States. This Essay describes and defends this emerging system of gubernatorial foreign policy on both legal and functional ground…
Essay
Setting the World Right
115 Yale L.J. 2350 (2006)
Five years after September 11, 2001, America's response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global war on terror calls for an entirely new legal paradigm, the Bush Administration and its supporters have p…
Essay
The President's Completion Power
115 Yale L.J. 2280 (2006)
This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows tha…
Essay
Quasipublic Executives
115 Yale L.J. 2254 (2006)
In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is,…
Essay
Why (and When) Cities Have a Stake in Enforcing the Constitution
115 Yale L.J. 2218 (2006)
This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argu…
Essay
Inherent Executive Power: A Comparative Perspective
115 Yale L.J. 2480 (2006)
In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay's study of British and …
Essay
Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within
115 Yale L.J. 2314 (2006)
The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of …
Essay
Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain
115 Yale L.J. 1930 (2006)
In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from "absolute priority" treatment are commonplace. Explaining these deviations has been a central preoccupation…
Essay
Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access
115 Yale L.J. 996 (2006)
According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has bee…
Essay
Of Property and Federalism
115 Yale L.J. 72 (2005)
This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and…
Essay
Democratic Disobedience
114 Yale L.J. 1897 (2005)
Traditional justifications for civil disobedience emphasize the limits of legitimate political authority and defend civil disobedience as a just response when governments overstep these limits. Such liberal justifications are well suited to certain classes of civil disobedie…
Essay
To Insure Prejudice: Racial Disparities in Taxicab Tipping
114 Yale L.J. 1613 (2005)
Many studies have documented seller discrimination against consumers, but this Essay tests and finds that consumers discriminate based on the seller's race.
The authors collected data on more than 1000 taxicab rides in New Haven, Connecticut in 2001. After controlling for a …
Essay
Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It
114 Yale L.J. 535 (2004)
Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a m…
Essay
Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production
114 Yale L.J. 273 (2004)
This Essay offers a framework to explain large-scale effective practices of sharing private, excludable goods. It starts with case studies of carpooling and distributed computing as motivating problems. It then suggests a definition for shareable goods as goods that are "lump…
Essay
Integrating Remorse and Apology into Criminal Procedure
114 Yale L.J. 85 (2004)
Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substan…
Essay
The Priority of Morality: The Emergency Constitution's Blind Spot
113 Yale L.J. 1753 (2004)
INTRODUCTION
In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the…
Essay
Editor's Note: The Constitution in Times of Emergency
113 Yale L.J. 1751 (2004)
Earlier in this Volume of The Yale Law Journal, Professor Bruce Ackerman published his essay The Emergency Constitution, in which he advocated a new constitutional regime to confront the potential for recurring terrorist attacks among modern nations--and the United States in…
Essay
The Anti-Emergency Constitution
113 Yale L.J. 1801 (2004)
INTRODUCTION
The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the d…
Essay
Adverse Selection in Insurance Markets: An Exaggerated Threat
113 Yale L.J. 1223 (2004)
The phrase "adverse selection" was originally coined by insurers to describe the process by which insureds utilize private knowledge of their own riskiness when deciding to buy or forgo insurance. If A knows he will die tomorrow (but his insurer does not), life insurance th…
Essay
The Emergency Constitution
113 Yale L.J. 1029 (2004)
Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the wat…
Essay
Juries and Race in the Nineteenth Century
113 Yale L.J. 895 (2004)
The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause p…
Essay
Bargaining in the Shadow of Takeover Defenses
113 Yale L.J. 621 (2003)
For decades, practitioners and academic commentators who believe that target boards should have broad discretion to resist hostile takeover attempts have put forward the "bargaining power hypothesis" to support their view. This hypothesis states that a target with strong tak…
Essay
Insider Abstention
113 Yale L.J. 455 (2003)
Scholars writing on insider trading have long believed that insiders can beat the market simply by using nonpublic information to decide when not to trade. Using a simple model, this Essay has shown that the conventional wisdom is wrong. Insiders prevented from trading while …
Essay
Minorities, Shareholder and Otherwise
113 Yale L.J. 119 (2003)
"[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himsel…
Essay
Digital Architecture as Crime Control
112 Yale L.J. 2261 (2003)
The first generation of cyberlaw was about what regulates cyberspace. Led by Larry Lessig's path-breaking scholarship isolating architecture as a constraint on behavior online, a wide body of work has flourished. In a recent article, I took those insights and reverse-engine…
Essay
How Much Redistribution Should There Be?
112 Yale L.J. 2291 (2003)
Egalitarianism ties people's fortunes together. It takes the good and bad things in people's lives--their blessings and their afflictions--and shares them out, or redistributes them, among their fellows. Where egalitarianism operates, each person's fortunes and misfortunes c…
Essay
Eldred and Lochner: Copyright Term Extensionand Intellectual Property as Constitutional Property
112 Yale L.J. 2331 (2003)
As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic conse…
Essay
Common Law, Common Ground, and Jefferson's Principle
112 Yale L.J. 1717 (2003)
Why do we care about the Framers of the Constitution? After all, they lived long ago, in a world that was different in countless ways from ours. Why does it matter what their views were, for any reasons other than purely historical ones? And if we don't care about the Framer…
Essay
The Secret History of Race in the United States
112 Yale L.J. 1473 (2003)
In the beginning, there was a man named Looney. George Looney's world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, …
Essay
Economic Analysis of Contract Law After Three Decades: Success or Failure?
112 Yale L.J. 829 (2003)
Modern economic analysis of contract law began about thirty years ago and, many scholars would agree, has become the dominant academic style of contract theory. Traditional doctrinal analysis exerts less influence than it did prior to 1970 and enjoys little prestige. Philosop…
Essay
Vigorous Race or Leisurely Walk: Reconsidering the Competition over Corporate Charters
112 Yale L.J. 553 (2002)
Does American corporate law work effectively to enhance shareholder value? The recent corporate governance crisis makes this time as good as any for reexamining the basic structure of this body of law. This Essay provides such a reconsideration of a defining feature of U.S. c…
Essay
100 Million Unnecessary Returns: A Fresh Start for the U.S. Tax System
112 Yale L.J. 261 (2002)
We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the inco…
Essay
Probability Neglect: Emotions, Worst Cases, and Law
112 Yale L.J. 61 (2002)
In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…
Essay
Local Policing After the Terror
111 Yale L.J. 2137 (2002)
Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It…
Essay
Legislative Entrenchment: A Reappraisal
111 Yale L.J. 1665 (2002)
There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds,…
Essay
Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique
111 Yale L.J. 1707 (2002)
Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial re…
Essay
Stopping Above-Cost Predatory Pricing
111 Yale L.J. 941 (2002)
This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price re…
Essay
Categorical Federalism: Jurisdiction, Gender, and the Globe
111 Yale L.J. 619 (2001)
An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense t…
Essay
Veil of Ignorance Rules in Constitutional Law
111 Yale L.J. 399 (2001)
A veil of ignorance rule (more briefly a "veil rule") is a rule that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision. …
Essay
What Happened to Property in Law and Economics?
111 Yale L.J. 357 (2001)
Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism…
Essay
Drug Designs are Different
111 Yale L.J. 151 (2001)
In an essay published in this Journal entitled Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, George Conk criticizes the American Law Institute and the Reporters of the new Restatement for immunizing prescription drug manufacturers from lia…
Essay
Bush v. Gore and the Boundary Between Law and Politics
110 Yale L.J. 1407 (2001)
Shortly after the Supreme Court's 5-4 decision in Bush v. Gore, one member of the majority, Associate Justice Clarence Thomas, addressed a group of students in the Washington, D.C., area. He told them that he believed that the work of the Court was not in any way influenced…
Essay
Pennhurst, Chevron, and the Spending Power
110 Yale L.J. 1187 (2001)
Narrowly construed, Pennhurst is a sensible (even if not necessary) process-based limitation on Congress's power to bind states to costly burdens. If read to mean that a state can never be bound by a grant condition when the statute itself does not unmistakably speak to a pa…
Essay
Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel
110 Yale L.J. 441 (2000)
Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, …
Essay
Disaggregating Constitutional Torts
110 Yale L.J. 259 (2000)
This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe mo…
Essay
Deliberative Trouble? Why Groups Go to Extremes
110 Yale L.J. 71 (2000)
In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more ext…