Feature
Feature
Churching NIMBYs: Creating Affordable Housing on Church Property
Faith communities across the United States are creating affordable housing on church property. Where sincerely held religious belief inspires their efforts, faith communities can assert religious liberty protections against land-use decisions that obstruct denser, multifamily developments. Legislati…
Feature
Practice-Based Constitutional Theories
This Feature provides the first full-length and most in-depth analysis of practice-based constitutional theories to date. It identifies and examines the primary justifications offered for such theories and shows why they are insufficient, on their own terms, to justify conforming to our social pract…
Feature
Policing Protest: Speech, Space, Crime, and the Jury
Speech can catalyze reform, particularly for marginalized speakers. Yet, criminal law regularly curtails speech rights by regulating access to spaces where speech occurs. This Feature (1) argues that, sometimes, presence in such spaces is the message and (2) proposes a First Amendment defense ground…
Feature
Non-Reformist Reforms and Struggles over Life, Death, and Democracy
This Feature examines the turn of left social movements to “non-reformist reforms” as a framework for reconceiving reform: not as an end but within struggles to reconstitute the terms of life, death, and democracy.
Feature
The Critical Racialization of Parents’ Rights
The anti-CRT movement is intertwined with the trend toward parents’ rights, which complains that official educational policies usurp fundamental parental rights. This Feature shows how these “twin” movements against CRT and for parents’ rights center White parents’ rights and the protection of White…
Feature
Legislative Constitutionalism and Federal Indian Law
This Feature offers alternative strategies and visions for a less court-centered constitutionalism with a case study of federal Indian law and American colonialism—a case study that places not only Congress, but the philosophies and agency of Native people and nations at the center of our constituti…
Feature
The Adjudicative State
This Feature identifies a foundational problem in modern administrative law. It argues that the Supreme Court’s dual commitments to unitary executive theory and separation-of-powers literalism are in deep conflict when it comes to agency courts. Recognizing this conflict advances debates about how t…
Feature
After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions
Within the post-New Deal constitutional framework, unions were categorized as engaging in commercial activity, rather than advancing inherently normative claims about justice at work. This Feature argues that this choice, what I call the law of apolitical economy, continues to shape how we understan…
Feature
Sex Equality’s Irreconcilable Differences
Sex equality assures us that laws based on real biological differences between the sexes are not sex stereotypes about the sexes. This Feature uses LGBTQ equality to show why sex equality is wrong: laws based on real differences are sex stereotypes, all the way down.
Feature
Neutralizing the Atmosphere
“Net zero” is the new organizing principle of climate action—but can it create politically, socially, and ecologically durable results? This Feature critiques net zero’s atomizing structure and sidelining of racial and social justice concerns. Its analysis offers pathways for improving public net-ze…
Feature
Corporate Governance Reform and the Sustainability Imperative
Promoting sustainable corporate governance will require reforming features of the corporation that incentivize excessive risk-taking and cost externalization. This Feature critiques how prevailing theories cabin the debate and presents an alternative approach more conducive to reform, evaluating dis…
Feature
A Relational Theory of Data Governance
Data practices of powerful technology companies are aimed primarily at deriving population-level, relational insights, not individual insights specific to a data subject. To apprehend and adjudicate among the supra-individual legal interests that result from data relations necessitates far more publ…
Feature
Recovering the Moral Economy Foundations of the Sherman Act
This Feature grounds a core prescription for antitrust law—to disperse economic coordination rights—in its “moral economy” origins, tracing a thread through the common law, nineteenth-century antimonopoly politics, and the legislative history of the Sherman Act. The normative thread traced here is i…
Feature
Reasoned Explanation and Political Accountability in the Roberts Court
The Supreme Court invalidated two major executive-branch initiatives in the past two years, pointing in each case to concerns about an evasion of political accountability. This Feature surfaces the “accountability-forcing” brand of arbitrariness review at work in these cases, unpacks its significanc…
Feature
Nondelegation at the Founding
Several current Supreme Court Justices have signaled a renewed interest in resurrecting the nondelegation doctrine, but numerous scholars have portrayed the doctrine as ahistorical and unoriginalist. This Feature systematically reviews the evidence and concludes there is much more historical support…
Feature
Executive Defiance and the Deportation State
Can federal administrative agencies defy the courts? As this Feature demonstrates, executive defiance of judicial authority is already afoot in the immigration system, and in ways that implicate multiple dimensions of the deportation state as well as the evolving relationship between the executive a…
Feature
Technocratic Pragmatism, Bureaucratic Expertise, and the Federal Reserve
Congress has given the Federal Reserve broad statutory mandates over the U.S. economy. This Feature articulates a framework, “technocratic pragmatism,” to evaluate how the Fed should structure experiments at the boundaries of its authority to combat complex problems (e.g., global climate change) con…
Feature
The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression
This Feature documents the creation of the Facebook Oversight Board, an independent external body that provides appellate review of Facebook’s content-moderation decisions and policy recommendations. Should the Oversight Board gain legitimacy, it has tremendous precedential potential for democratizi…
Feature
Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis
Current crises of economic inequality and eroding democracy require us to move beyond legal orientations that prioritize efficiency, neutrality, and apolitical governance. This Feature suggests new orientations and questions for scholarship on “law and political economy” that instead foreground real…
Feature
Sex as a Pedagogical Failure
This Feature offers an account of what is wrong with consensual professor-student sex. Such sex constitutes a failure, on the professor’s part, to satisfy the duties that arise from the practice of teaching. It often also feeds on and reinforces women students’ second-class standing in the universit…
Feature
How to Save the Supreme Court
The Supreme Court faces an impending legitimacy crisis. This Feature explains why structural reform is necessary to save what is good about the Court, and identifies criteria that effective reform should satisfy. The Feature then proposes two alternative reforms to the Court’s structure: the Lottery…
Feature
GINA, Big Data, and the Future of Employee Privacy
Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. This Feature examines the Genetic Information Nondiscrimination Act (GINA) and argues that it offers a blueprint for preventing employers from breaching employ…
Feature
Antitrust and Deregulation
Because regulation works alongside antitrust law to govern U.S. market structure and economic conduct, deregulatory cycles can create gaps in competition enforcement. This Feature argues that antitrust enforcement should strengthen as regulation weakens.
Feature
Invigorating Vertical Merger Enforcement
This Feature summarizes why and how vertical merger enforcement should be invigorated: in markets where economies of scale and network effects lead to barriers to entry and durable market power. In doing so, Salop disputes the Chicago School account regarding vertical merger enforcement.
Feature
Horizontal Mergers, Market Structure, and Burdens of Proof
Hovenkamp and Shapiro argue that the longstanding structural presumption is strongly supported by economic theory and evidence and suggest ways to further strengthen it. The Feature considers and suggests additions to a promising recent legislative proposal to reinforce and expand the presumption.
Feature
Horizontal Shareholding and Antitrust Policy
Horizontal shareholding occurs when a number of equity funds own shares of competitors operating in a concentrated product market. This Feature considers how antitrust laws might be applied to this: identifying a theory of harm and how it matches the law, as well as potential litigation hurdles.
Feature
Beyond Brooke Group: Bringing Reality to the Law of Predatory Pricing
This Feature offers a roadmap for bringing and deciding predatory pricing cases under the Supreme Court’s restrictive Brooke Group framework. Using historical research, Hemphill and Weiser identify flexibility within the framework that permits empirically grounded evaluation of predation claims.
Feature
Mergers that Harm Sellers
This Feature examines the antitrust treatment of mergers that harm sellers and demonstrates that lost upstream competition is an actionable harm to the competitive process. Hemphill and Rose contend that harm to sellers in an input market is and should be sufficient to support antitrust liability.
Feature
How Antitrust Law Can Make FRAND Commitments More Effective
This Feature argues that Section 1 of the Sherman Act can play an important role in ensuring that the rules established by standard-setting organizations are effective in preventing owners of standard-essential patents from engaging in patent holdup.
Feature
Multisided Platforms and Antitrust Enforcement
Multisided platforms are ubiquitous in today’s economy. This Feature concludes that enforcement should use a multiple-markets approach, which appropriately accounts for cross-market network effects without collapsing all of a platform’s users into a single product market.
Feature
Antitrust Enforcement Against Platform MFNs
Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions can protect competition in online markets, including hotel and transportation bookings, digital goods, or craft products. This Feature discusses how enforcement could reach anticompetitive platform MFNs.
Feature
Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections
In light of Hively, Evans, and Zarda, this Feature argues that Title VII’s bar to discrimination “because of sex” applies to LGBT individuals. This interpretation follows from Title VII's ordinary meaning, particularly in light of its purpose to entrench a merit-based workplace, in addition to its s…
Feature
Policing Through an American Prism
Policing practices in America are under scrutiny. Video clips, protests, and media coverage bring attention and a sense of urgency to fatal police civilian incidents that are often accompanied by broader calls for reform. Tensions often run high after officer involved shootings of unarmed civilians,…
Feature
Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System
Few topics are sexier among commentators on corporate governance now than whether activist hedge funds are good for, a danger to, or of no real consequence to public corporations and the people who depend upon them. As befits tradition in this space, catchy pejorat…
Feature
Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror
The United States’ aggressive War on Terror policies since 9/11 have led to significant prison sentences for many young American Muslims, even when their charged criminal conduct cannot be tied to any act of violence in the United States or abroad. A primary reason provide…
Feature
The Constitutionality of Civil Forfeiture
Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safe…
Feature
Campus Sexual Assault Adjudication and Resistance to Reform
The forty-year history of rape law reform sheds light on current debates around the adjudication of campus sexual assault. Two strands of rape law reform are important. The first, a progressive reform movement, abolished the unique procedural hurdles in rape prosecutions. Tha…
Feature
Title IX: An Imperfect but Vital Tool To Stop Bullying of LGBT Students
LGBT students are bullied at dramatically higher rates than other students. School bullying generally, and the targeting of LGBT students in particular, has recently garnered national attention as a serious problem that needs to be solved. Just as society is increasingly re…
Feature
In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education
The treatment of sexual harassment victims by their schools, and of schools by courts, under the institutional liability standard of deliberate indifference for damages in private suits is inconsistent with Title IX’s guarantee of equal educational outcomes on the basis of sex.…
Feature
Gender Violence Costs: Schools’ Financial Obligations Under Title IX
The last two years have witnessed a surge in attention to the issue of sexual assault in higher education. Campus rape has become the subject of new legislation, inspired a White House task force, and dominated news headlines. Yet largely neglected in this growing national conver…
Feature
A Better Balance: Providing Survivors of Sexual Violence with “Effective Protection” Against Sex Discrimination Through Title IX Complaints
Although gender-based violence has long been recognized as a form of sex discrimination prohibited under Title IX, many survivors receive little to no support from their college or university after experiencing violence. In response, an increasing number have sought redress by …
Feature
Transformation Requires Transparency: Critical Policy Reforms To Advance Campus Sexual Violence Response
This Feature discusses the lack of transparency in campus adjudication of gender violence reports. It examines the harms caused by this procedural opacity to both accusing and accused students alike, including pervasive mistrust in the system and decreased reporting rates. The pi…
Feature
Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice
We offer a fresh understanding of how the Supreme Court’s abortion jurisprudence addresses laws that invoke not potential life, but women’s health as a reason to single out abortion for burdensome regulation that has the effect of closing clinics. The current wave of hea…
Feature
Returning to Common-Law Principles of Insider Trading After United States v. Newman
Spurred on by the recent Second Circuit decision in United States v. Newman, this Feature examines the proper scope of the prohibition against insider trading under the securities laws. It argues that in some instances the law does not reach far enough, while in other instances t…
Feature
Arbitration and Americanization: The Paternalism of Progressive Procedural Reform
This Feature joins recent scholarship suggesting that the Federal Arbitration Act of 1925 (FAA) emerged, at least in part, from a broader Progressive commitment to procedural reform. It departs, however, from the tendency among procedure scholars to co…
Feature
Arbitration’s Counter-Narrative: The Religious Arbitration Paradigm
Arbitration theory and doctrine are dominated by a narrative conceptualizing arbitration via reflection on the qualities of litigation. Litigation, the thought goes, is more procedurally rigorous, but takes longer and costs more; arbitration, on the othe…
Feature
Disappearing Claims and the Erosion of Substantive Law
The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually …
Feature
Constitutional Law in an Age of Proportionality
Proportionality, accepted as a general principle of constitutional law by many countries, requires that government intrusions on freedoms be justified, that greater intrusions have stronger justifications, and that punishments reflect the relative s…
Feature
Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights
Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the reorientation of court-based procedures to assimilate judges’ activities to t…
Feature
Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics
Persons of faith are now seeking religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others. We term claims of this kind, which were at issue…
Feature
Legal Scholarship for Judges
This Feature examines the role of legal scholarship in judicial decision making. It first provides a historical snapshot of U.S. legal scholarship, noting that the advent of legal realism and other academic schools of thought may have contributed to a gap b…
Feature
Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty To Defend
Whether a state attorney general has a duty to defend the validity of state law is a complicated question, one that cannot be decided by reference either to the oath state officers must take to support the federal Constitution or the supremacy of federal law. In…
Feature
Romanticizing Democracy, Political Fragmentation, and the Decline of American Government
This Feature was delivered originally as the 2013-14 Ralph Gregory Elliot Lecture at Yale Law School. author. Sudler Family Professor of Constitutional Law, NYU School of Law. I am grateful for comments received there and at a presentati…
Feature
The Storrs Lectures: Behavioral Economics and Paternalism
122 Yale L.J. 1826 (2013).
A growing body of evidence demonstrates that in some contexts and for identifiable reasons, people make choices that are not in their interest, even when the stakes are high. Policymakers in a number of nations, including the United States and the United Kingdom, have used …
Feature
Redistricting Commissions: A Better Political Buffer?
121 Yale L.J. 1808 (2012).
The new institutionalism in election law aims to lessen the necessity of court
intervention in politically sensitive election administration matters such as redistricting by
harnessing politics to fix politics. Many hope that independent citizen commissions (ICCs) will
improve…
Feature
Districting for a Low-Information Electorate
121 Yale L.J. 1846 (2012).
Most commentary on redistricting is concerned with fairness to groups, be they
racial, political, or geographic. This Essay highlights another facet of the redistricting problem:
how the configuration of districts affects the ability of low-information voters to secure
respons…
Feature
Weightless Votes
121 Yale L.J. 1888 (2012).
Does “one person, one vote” protect persons, or voters? The Court has never resolved this question. Current practice overwhelmingly favors equal representation for equal numbers of persons. Opponents charge, however, that this approach dilutes the “weight” of some individua…
Feature
WikiLeaks and the Institutional Framework for National Security Disclosures
121 Yale L.J. 1448.
WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful wea…
Feature
Democracy and Debt
121 Yale L.J. 860 (2012).
Recent state and municipal budget crises have generated a great deal of consternation among market participants and policymakers; they have also led scholars to debate the merits of bailouts or other forms of debt relief. This Essay considers why the mechanisms that were s…
Feature
Bankruptcy, Backwards: The Problem of Quasi-Sovereign Debt
121 Yale L.J. 888 (2012).
This Feature considers the debts of quasi-sovereign states in light of proposals to let them file for bankruptcy protection. States that have ceded some but not all sovereign prerogatives to a central government face distinct challenges as debtors. It is unhelpful to analy…
Feature
Picking Winners: Olympic Citizenship and the Global Race for Talent
120 Yale L.J. 2088 (2011).
Across the globe, countries are promoting strategic or expedited passport grants, whereby membership is invested in exceptionally talented individuals with the expectation of receiving a return: for Olympic recruits, this means medals. The spread of the talent-for-citize…
Feature
Before (and After) Roe v. Wade: New Questions About Backlash
120 Yale L.J. 2028 (2011).
Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this c…
Feature
Picking Winners: Olympic Citizenship and the Global Race for Talent
120 Yale L.J. 2088 (2011).
Across the globe, countries are promoting strategic or expedited passport grants, whereby membership is invested in exceptionally talented individuals with the expectation of receiving a return: for Olympic recruits, this means medals. The spread of the talent-for-citize…Feature
Before (and After) Roe v. Wade: New Questions About Backlash
120 Yale L.J. 2028 (2011).
Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this c…
Feature
America's Lived Constitution
120 Yale L.J. 1734 (2011).
This Feature is an adaptation of chapter 3 of a forthcoming book, America’s Unwritten Constitution, which in turn is a sequel to a 2005 book, America’s Constitution: A Biography. The 2005 book explores America’s written Constitution in considerable detail, taking readers…
Feature
Failure Is an Option: An Ersatz-Antitrust Approach to Financial Regulation
120 Yale L.J. 1368 (2011).
We distinguish the economic problems when large financial institutions (“banks”) become insolvent from the political challenges that exist before banks are distressed. These political problems arise because policymakers would like to be able to precommit while a bank is …
Feature
Confronting the Seduction of Choice: Law, Education, and American Pluralism
120 Yale L.J. 814 (2011).
School choice policies, which allow parents to select among a range of options to satisfy compulsory schooling for their children, have arisen from five periods of political and legal struggle. This Feature considers the shape of school choice that emerged in the 1920s ed…
Feature
Rethinking Criminal Law and Family Status
119 Yale L.J. 1864 (2010).
In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their essays, Professors Ala…
Feature
When Family Matters
In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial stat…
Feature
Disestablishing the Family
119 Yale L.J. 1236 (2010).
This Feature explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-stat…
Feature
American Needle v. NFL: An Opportunity To Reshape Sports Law
119 Yale L.J. 726 (2010).
In American Needle v. National Football League, the U.S. Supreme Court will decide whether, and to what extent, section 1 of the Sherman Antitrust Act regulates a professional sports league and its independently owned franchises. For the first time, the Court could charac…
Feature
Introduction: The Constitutional Law and Politics of Reproductive Rights
118 Yale L.J. 1312 (2009).
Feature
How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars
118 Yale L.J. 1318 (2009).
More than twenty-one years after Robert Bork’s failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states ar…
Feature
"TRAP"ing Roe in Indiana and a Common-Ground Alternative
118 Yale L.J. 1356 (2009).
Public discourse over abortion overwhelmingly focuses on whether the Supreme Court will overrule Roe v. Wade and states will again ban abortion. But at least since 1992, when the Court in Planned Parenthood v. Casey reaffirmed Roe’s “central holding,” certain moderate…
Feature
From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights
118 Yale L.J. 1394 (2009).
The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative rig…
Feature
Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law
118 Yale L.J. 1660 (2009).
From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritor…
Feature
Medellin and the Future of International Delegation
118 Yale L.J. 1712 (2009).
Given the rise of globalization and the need for international governance of problems of the commons, the delegation of binding domestic authority to international agents is likely to be an issue of growing importance. This Essay considers the extent to which U.S. law …
Feature
The Constitutional Power To Interpret International Law
118 Yale L.J. 1762 (2009).
What is the force of international law as a matter of U.S. law? Who determines that force? This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determin…
Feature
Federalization in Information Privacy Law
118 Yale L.J. 868 (2009).
In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of str…
Feature
Preemption and Privacy
118 Yale L.J. 902 (2009).
A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the U.S. regulatory ap…
Feature
Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart
117 Yale L.J. 1694 (2008).
This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court’s recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes de…
Feature
Federal Sentencing in 2007: The Center Holds—The Supreme Court Doesn't
117 Yale L.J. 1374 (2008).
This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio o…
Feature
The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion
117 Yale L.J. 1420 (2008).
Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies examined the transfer of discretion from judges to prosecutors. Of equal significance are two other institutional…
Feature
Introduction: America's Constitution and the Yale School of Constitutional Interpretation
115 Yale L.J. 1997 (2006)
Feature
Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics
114 Yale L.J. 1279 (2005)
John Hart Ely argued that judicial review is most appropriate when democratic politics has broken down. Professor Eskridge argues that judicial review is also appropriate to lower the stakes of pluralist politics. Stakes get high when the system becomes embroiled in bitter d…
Feature
Globalization and Distrust
114 Yale L.J. 1193 (2005)
There was a time when the critics of international law denounced it for its irrelevance, its masquerade of power. Now, in the post-ontological era of international law, the critique has shifted. International law is denounced not for its weakness but for its vigor, specifica…
Feature
The Duty To Defend
114 Yale L.J. 1489 (2005)
Through the lens of history and doctrine, combining personal narrative, memoir, and stump speech, Barbara Babcock recalls John Ely's contributions to criminal defense.
Feature
Comment: War and Uncertainty
114 Yale L.J. 1405 (2005)
This comment builds on John Hart Ely's concern in War and Responsibility with Congress's duty to investigate the factual predicate for going to war in circumstances of uncertainty. Professor Damrosch argues that Congress should exercise its constitutional power to decide to …
Feature
Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy)
114 Yale L.J. 1353 (2005)
More than ever, urban school systems are segregated by race and class. While a chief cause of this segregation is the flight of white and upper-middle-class black families from predominantly black public schools, there is little discussion of white flight in contemporary edu…
Feature
John Hart Ely and the Problem of Gerrymandering: The Lion in Winter
114 Yale L.J. 1329 (2005)
In Democracy and Distrust, John Hart Ely articulated a "participation-oriented, representation-reinforcing approach to judicial review" that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications…
Feature
Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror
114 Yale L.J. 1419 (2005)
In War and Responsibility, John Hart Ely sought to answer a question that has bedeviled constitutional scholars since the beginning of the Republic: What meaningful checks should be placed on the power of the Executive in wartime? For Ely, the answer was a new and improved v…
Feature
Gideon in White/Gideon in Black: Race and Identity in Lawyering
114 Yale L.J. 1459 (2005)
Traditionally, poverty lawyers, criminal defenders, and clinical teachers have overlooked John Hart Ely's theory of judicial review in teaching the lawyering process and in representing impoverished clients and their communities. But the egalitarian themes of Ely's work on j…
Feature
The Coherentism of Democracy and Distrust
114 Yale L.J. 1237 (2005)
John Hart Ely's justly celebrated Democracy and Distrust aims to reconcile judicial review with the fundamentally democratic character of the American Constitution. Yet taken at face value, the book does not establish that the American Constitution is fundamentally democrati…