The Yale Law Journal

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Title VII's Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections

William N. Eskridge, Jr.

In light of HivelyEvans, 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…

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Policing Through an American Prism

Debo P. Adegbile

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,…

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Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System

Leo E. Strine, Jr.

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…

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Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror

Sameer Ahmed

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…

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The Constitutionality of Civil Forfeiture

Caleb Nelson

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…

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Campus Sexual Assault Adjudication and Resistance to Reform

Michelle J. Anderson

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…

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Title IX: An Imperfect but Vital Tool To Stop Bullying of LGBT Students

Adele P. Kimmel

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…

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In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education

Catharine A. MacKinnon

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.…

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Gender Violence Costs: Schools’ Financial Obligations Under Title IX

Dana Bolger

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…

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A Better Balance: Providing Survivors of Sexual Violence with “Effective Protection” Against Sex Discrimination Through Title IX Complaints

Alyssa Peterson & Olivia Ortiz

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 …

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Transformation Requires Transparency: Critical Policy Reforms To Advance Campus Sexual Violence Response

Zoe Ridolfi-Starr

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…

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Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice

Linda Greenhouse & Reva B. Siegel

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…

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Returning to Common-Law Principles of Insider Trading After United States v. Newman

Richard A. Epstein

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…

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Arbitration and Americanization: The Paternalism of Progressive Procedural Reform

Amalia D. Kessler

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…

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Arbitration's Counter-Narrative: The Religious Arbitration Paradigm

Michael A. Helfand

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…

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Disappearing Claims and the Erosion of Substantive Law

J. Maria Glover

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 …

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Constitutional Law in an Age of Proportionality

Vicki C. Jackson

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…

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Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights

Judith Resnik

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…

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Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics

Douglas NeJaime & Reva B. Siegel

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…

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Legal Scholarship for Judges

Diane P. Wood

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…

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Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty To Defend

Neal Devins & Saikrishna Bangalore Prakash

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…

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Romanticizing Democracy, Political Fragmentation, and the Decline of American Government

Richard H. Pildes

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…

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The Age of Consent

Philip C. Bobbitt

A new postscript to The Ages of American Law

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The Storrs Lectures: Behavioral Economics and Paternalism

Cass R. Sunstein


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 …

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Redistricting Commissions: A Better Political Buffer?

Bruce E. Cain


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…

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Districting for a Low-Information Electorate

Christopher S. Elmendorf & David Schleicher


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…

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Weightless Votes

Joseph Fishkin


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…

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WikiLeaks and the Institutional Framework for National Security Disclosures

Patricia L. Bellia


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…

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Democracy and Debt

Richard C. Schragger


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…

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Bankruptcy, Backwards: The Problem of Quasi-Sovereign Debt

Anna Gelpern


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…

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Picking Winners: Olympic Citizenship and the Global Race for Talent

Ayelet Shachar

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…

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Before (and After) Roe v. Wade: New Questions About Backlash

Linda Greenhouse & Reva B. Siegel

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…

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Picking Winners: Olympic Citizenship and the Global Race for Talent

Ayelet Shachar

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…

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Before (and After) Roe v. Wade: New Questions About Backlash

Linda Greenhouse & Reva B. Siegel

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…

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America's Lived Constitution

Akhil Reed Amar

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 reade…

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Failure Is an Option: An Ersatz-Antitrust Approach to Financial Regulation

Jonathan R. Macey & James P. Holdcroft, Jr.

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…

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Confronting the Seduction of Choice: Law, Education, and American Pluralism

Martha Minow

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…

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Rethinking Criminal Law and Family Status

Dan Markel, Ethan J. Leib & Jennifer M. Collins

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…

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Disestablishing the Family

Alice Ristroph & Melissa Murray

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…

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When Family Matters

Alafair S. Burke

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…

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American Needle v. NFL: An Opportunity To Reshape Sports Law

Michael A. McCann

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…

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Introduction: The Constitutional Law and Politics of Reproductive Rights

Reva B. Siegel

118 Yale L.J. 1312 (2009).

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How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars

Neal Devins

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…

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"TRAP"ing Roe in Indiana and a Common-Ground Alternative

Dawn Johnsen

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…

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From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights

Robin West

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…

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Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law

José A. Cabranes

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…

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Medellin and the Future of International Delegation

John O. McGinnis

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 …

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The Constitutional Power To Interpret International Law

Michael Stokes Paulsen

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…

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Federalization in Information Privacy Law

Patricia L. Bellia

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…

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Preemption and Privacy

Paul M. Schwartz

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…

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Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart

Reva B. Siegel

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…

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Federal Sentencing in 2007: The Center Holds—The Supreme Court Doesn't

Daniel Richman

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…

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The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion

Kate Stith

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…

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Chevron and Agency Norm-Entrepreneurship

William N. Eskridge, Jr. & Kevin S. Schwartz

115 Yale L.J. 2623 (2006)

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The President: Lightning Rod or King?

Steven G. Calabresi & James Lindgren

115 Yale L.J. 2611 (2006)

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Of Sovereigns and Servants

Heather K. Gerken

115 Yale L.J. 2633 (2006)

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Gender and Constitutional Design

Paula A. Monopoli

115 Yale L.J. 2643 (2006)

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Introduction: The Paradigm-Case Method

Jed Rubenfeld

115 Yale L.J. 1977 (2006)

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A Dialogue

Akhil Reed Amar & Jed Rubenfeld

115 Yale L.J. 2015 (2006)

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Commentary: How To Interpret the Constitution (and How Not To)

Michael Stokes Paulsen

115 Yale L.J. 2037 (2006)

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Commentary: Grand Visions in an Age of Conflict

H. Jefferson Powell

115 Yale L.J. 2067 (2006)

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Reply to Commentators

Jed Rubenfeld

115 Yale L.J. 2093 (2006)

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An Open Letter to Professors Paulsen and Powell

Akhil Reed Amar

115 Yale L.J. 2101 (2006)

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Preface

Stephen G. Breyer

115 Yale L.J. 1975 (2006)

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Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics

William N. Eskridge Jr.

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…

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Globalization and Distrust

Anupam Chander

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…

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The Duty To Defend

Barbara Allen Babcock

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.

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Comment: War and Uncertainty

Lori Fisler Damrosch

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 …

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Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on Racism and Democracy)

Charles R. Lawrence III

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…

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John Hart Ely and the Problem of Gerrymandering: The Lion in Winter

Pamela S. Karlan

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…

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Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror

Jonathan Simon

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…

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Gideon in White/Gideon in Black: Race and Identity in Lawyering

Anthony V. Alfieri

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…

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The Coherentism of Democracy and Distrust

Michael C. Dorf

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…