The Yale Law Journal

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Presidential Administration and the Durability of Climate-Consciousness

Yumehiko Hoshijima

Climate change presents unique governance problems. The Obama Administration attempted to allay some of these challenges through procedural requirements throughout the federal bureaucracy that entrenched scientific analysis and expertise. This Note documents those requirements and posits that they m…

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Disparate Statistics

Kevin Tobia

Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3)…

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Reinterpreting Corporate Inversions: Non-Tax Competitions and Frictions

Inho Andrew Mun

Corporate inversions have drawn outrage from all segments of society. In an inversion, a company reincorporates abroad to escape its U.S. tax burden. Regulators and academics have typically sought tax law solutions to curb tax inversions. However, the resulting tax regu…

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Ban the Address: Combating Employment Discrimination Against the Homeless

Sarah Golabek-Goldman

This Note presents a study of obstacles to employment faced by homeless job applicants and offers potential solutions. Homeless job applicants confront discrimination when they provide the address of a shelter or do not have an address to provide on applications. Advocates shou…

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What's Wrong with Intentionalism? Transformative Use, Copyright Law, and Authorship

Ben Picozzi

Copyright law’s experiment with transformative use is failing. So argue a growing number of scholars who contend that the standard conflicts with the goals of art. In their view, transformative use goes astray by conflating the accused work’s meaning with the defendan…

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Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law

Beatrice Walton

Low-intensity state-sponsored cyber attacks exist within a “gap” in public international law. Falling short of the definitions of use of force and intervention, these attacks are not clearly governed by international law. Some scholars have sought to stretch established …

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Prosecuting Gender-Based Persecution: The Islamic State at the ICC

Emily Chertoff

Reports suggest that Islamic State, the terrorist “caliphate,” has enslaved and brutalized thousands of women from the Yazidi ethnic minority of Syria and Northern Iraq. International criminal law has a name for what Islamic State has done to these women: gender-based persecu…

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Private Enforcement of the Affordable Care Act: Toward an "Implied Warranty of Legality" in Health Insurance

Christine H. Monahan

For decades, the individual health insurance market failed to provide consumers adequate or affordable health coverage. The Affordable Care Act (ACA) sought to change this state of affairs, establishing a new Patient’s Bill of Rights and instituting other protections that require…

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Amazon's Antitrust Paradox

Lina M. Khan

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware ma…

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Playing Nicely: How Judges Can Improve Dodd-Frank and Foster Interagency Collaboration

Joshua C. Macey

Devised in the aftermath of the most severe financial crisis since the Great Depression, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) was enacted to reduce risk, increase transparency, and promote market integrity. Since Dodd-Frank was sig…

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State Legislative Drafting Manuals and Statutory Interpretation

Grace E. Hart

Although legislation has become a central feature of our legal system, relatively little is known about how statutes are drafted, particularly at the state level. This Note addresses this gap by surveying drafting manuals used by bill drafters in state legislatures. These manua…

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The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations

Eric Chung

abstract.The United States often ratifies multilateral treaties by relying on what are commonly referred to as reservations, understandings, and declarations (RUDs). RUDs limit the domestic effect of treaties and confine provisions to particular meanings consistent with the United States’ prac…

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Founding-Era Jus Ad Bellum and the Domestic Law of Treaty Withdrawal

Daniel J. Hessel

The Constitution provides no textual guidance for how, as a matter of domestic law, the United States can withdraw from an Article II treaty. The Supreme Court has not clarified matters. In the face of this uncertainty, government officials and scholars alike have long debated …

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The Modification of Decrees in the Original Jurisdiction of the Supreme Court

James G. Mandilk

Interstate disputes in the Supreme Court’s original jurisdiction often implicate long-term interests, such as state boundaries or rights to interstate bodies of water. Decades after the Court issues a ruling in an original jurisdiction case, the parties may ask the Court to re…

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Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone

Kate Huddleston

This Note assesses the constitutionality of Texas House Bill 2 (H.B. 2), which regulates abortion providers, as applied to clinics located in the area between the state’s border with Mexico and internal federal immigration checkpoints. Should these statutory provisions go into …

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How To Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes

Robert L. Nightingale

This Note advocates a new approach to determining the severability of long, complex omnibus statutes. It first examines the legal basis for the Supreme Court’s current approach to severability, outlined in the three severability principles of Alaska Airlines, Inc. v. Brock. The …

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Will Putting Cameras on Police Reduce Polarization?

Roseanna Sommers

In the wake of national outrage and polarization over several high-profile police shootings of unarmed citizens, reformers have called for police officers to wear body cameras. This Note argues that, despite the seeming objectivity of the camera, video footage remains susceptible…

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Federal Questions and the Domestic-Relations Exception

Bradley G. Silverman

The domestic-relations exception to federal jurisdiction prohibits federal courts from hearing cases involving family-law questions within the traditional authority of the states. Since the Supreme Court first articulated the exception in 1858, the scope of the doctrine has remaine…

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Present at Antitrust’s Creation: Consumer Welfare in the Sherman Act’s State Statutory Forerunners

Charles S. Dameron

For the last four decades, federal courts have construed the Sherman Act as a consumer-welfare statute. But considerable disagreement persists within the legal academy regarding the true legislative aims of American antitrust law. This Note argues that interpreters of the Sherman…

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Fifty Shades of Gray: Sentencing Trends in Major White-Collar Cases

Jillian Hewitt

Between 1987 and 2005, federal judges sentenced defendants pursuant to binding Sentencing Guidelines that severely curtailed their discretion. In United States v. Booker, the Supreme Court held the mandatory Guidelines sentencing scheme unconstitutional and rendered the Gui…

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Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court

David Scott Louk

The text of a Supreme Court opinion rarely tells the full story of the debates, discussions, and disagreements that resulted in a particular decision. Drawing on previously unexamined archival papers of the Justices of the Burger Court, this Note tells the story of the Burger C…

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Reconciling the Crime of Aggression and Complementarity: Unaddressed Tensions and a Way Forward

Julie Veroff

In June 2010, after more than a decade of negotiation, the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC) agreed on a definition of the crime of aggression. But the Assembly failed to address a critical issue: whether and how prosecutions…

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Financing the Class: Strengthening the Class Action Through Third-Party Investment

Tyler W. Hill

Class action lawsuits compensate harmed individuals and enforce public norms. Their success depends largely on the ability of a private bar of entrepreneurial, fee-seeking attorneys to finance lawsuits through contingency fee representation. But the current method of awarding fee…

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Saving 60(b)(5): The Future of Institutional Reform Litigation

Mark Kelley

Institutional reform decrees are one of the chief means by which federal courts cure illegal state and federal institutional practices, such as school segregation, constitutionally inadequate conditions in prisons and mental hospitals, and even insufficient dental services under Me…

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A Reassessment of Common Law Protections for "Idiots"

Michael Clemente

When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; howe…

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Class Ascertainability

Geoffrey C. Shaw

In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules of Civil Procedure. The ascertainability requirement insist…

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The Right To Be Rescued: Disability Justice in an Age of Disaster

Adrien A. Weibgen

This Note explores the legal responsibilities that local governments have toward marginalized communities in a time of crisis and argues that people with disabilities (PWDs) have a “right to be rescued”: a legal right to have their unique needs acc…

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Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act's Nondiscrimination Mandate

Elizabeth B. Deutsch

Hobby Lobby represents a high-water mark in a decades-long movement to facilitate conscientious objection at both the federal and state levels. In addition, the number of conscientious objectors has grown because hospital consolidation has increased t…

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Executive Orders in Court

Erica Newland

This Note presents a study of judicial decisions that have engaged with executive orders. The study was designed to elucidate the contexts in which courts have considered executive orders; to identify the questions that courts have posed about executive …

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Mitigating Jurors' Racial Biases: The Effects of Content and Timing of Jury Instructions

Elizabeth Ingriselli

This Note examines, through an experimental design, whether juror biases against black defendants are explained by aversive racism theory or social identity theory and whether procedural justice can be used to decrease biases. The Note also examines whether the timing of debiasing …

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How To Eat an Elephant: Corporate Group Structure of Systemically Important Financial Institutions, Orderly Liquidation Authority, and Single Point of Entry Resolution

Kwon-Yong Jin

This Note evaluates the Orderly Liquidation Authority under the Dodd-Frank Act (OLA) and the Federal Deposit Insurance Corporation’s “Single Point of Entry” (SPOE) strategy. Applying organizational theory, this Note finds that because the parent and…

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Public Actors, Private Law: Local Governments’ Use of Covenants To Regulate Land Use

Noah M. Kazis

Though covenants are usually considered the private sector’s alternative to zoning, governments also use covenants to control land use. Governments choose between zoning and covenants, and this choice illuminates the legal differences between the t…

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Against the Tide: Connecticut Oystering, Hybrid Property, and the Survival of the Commons

Zachary C.M. Arnold

Property theorists hypothesize a trend of evolution toward efficiency and conventionally hold formal privatization out as the logical endpoint of this trend. Oystering, in particular, has often been cited as a context in which privatization is highly efficient. Nonetheless…

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Perceptions of Taxing and Spending: A Survey Experiment

Conor Clarke & Edward Fox

This Note presents the results of an original survey experiment on whether the public prefers “tax expenditures” to “direct outlays”—that is, whether members of the public are more likely to support government spending that takes the form of a tax credit…

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Civil Servant Suits

Alex Hemmer

A civil servant suit is a lawsuit brought by a government employee to declare unlawful a statute, regulation, or command that he or she is charged with enforcing. The theory of such suits is that the civil servant is uniquely situated to challenge su…

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A “Full and Fair” Discussion of Environmental Impacts in NEPA EISs: The Case for Addressing the Impact of Substantive Regulatory Regimes

Sarah Langberg

This Note argues that Environmental Impact Statements drafted pursuant to the National Environmental Policy Act should rigorously assess all major project impacts, including those that will be circumscribed by or substantively regulated under other environmental laws. Thi…

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Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem

Adam J. Adler

The Double Jeopardy Clause prohibits the government from prosecuting or punishing a defendant multiple times for the same offense. Double jeopardy protections, however, come with a major exception. Under the dual sovereignty doctrine, different sover…

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Measuring the Fortress: Explaining Trends in Supreme Court and Circuit Court Dictionary Use

John Calhoun

Recent research argues that the increasing use of dictionaries in Supreme Court and circuit court opinions may pose risks to the legitimacy, credibility, and accuracy of federal appellate court judgments. However, it is hard to understand why diction…

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Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law

Zachary R. Herz

abstract.American antidiscrimination law has addressed harmful stereotypes since, at least, the Civil Rights Act of 1964. Stereotypes about the different abilities of men and women, or of black and white workers, lay underneath much of the segregation and workp…

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The Rise of Institutional Mortgage Lending in Early Nineteenth-Century New Haven

Steven J. Kochevar

This Note presents a case study in local financial development, placing particular emphasis on the role of local political institutions in facilitating economic growth. It presents original primary research on mortgage lending in New Haven, Connectic…

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The Growth of Litigation Finance in DOJ Whistleblower Suits: Implications and Recommendations

Mathew Andrews

While scholars have identified the growth of litigation finance in cases ranging from personal injury to securities fraud, none have examined the recent growth of alternative litigation finance in qui tam (whistleblower) claims. To the extent that the False Claims Act …

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Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency

Zachary Liscow

This Note develops a framework for understanding when policymakers should use equity-informed legal rules—rather than taxes—to redistribute. First, policymakers should choose the most efficient way to reduce income inequality, which may involve allocating legal entitlemen…

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Domestic Violence Asylum After Matter of L-R-

Jessica Marsden

Women fleeing severe domestic violence have sought asylum in the United States for at least twenty years. Yet the legal system has been reluctant to understand domestic violence as occurring “on account of” gender or to see domestic violence victims as deserving asylu…

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Dignity as a Value in Agency Cost-Benefit Analysis

Rachel Bayefsky

President Obama’s 2011 Executive Order 13,563 on cost-benefit analysis (CBA) authorizes agencies to consider “human dignity” in identifying the costs and benefits of proposed regulation. The notion of incorporating dignity into CBA, this Note points out, highlights the import…

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Early Release in International Criminal Law

Jonathan H. Choi

Modern international tribunals have developed a presumption of unconditional early release after prisoners serve two thirds of their sentences, which decreases transparency and is generally out of line with the goals of international criminal law. I trace the development of this do…

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Ex Ante Review of Leveraged Buyouts

Laura Femino

Under current bankruptcy law, a leveraged buyout (LBO) that leaves an acquired company insolvent, undercapitalized, or unlikely to be able to pay back its debts may be later avoided as a fraudulent transfer. This regime, intended to protect the target’s creditors, requires a post…

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Stop Ignoring Pork and Potholes: Election Law and Constituent Service

Joshua Bone

This Note addresses a persistent gap in election law—the failure of scholars and judges to incorporate constituent service considerations into their theories and approaches. I argue that constituent service activities are both important aspects of representation and responsive to l…

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An Offense-Severity Model for Stop-and-Frisks

David Keenan & Tina M. Thomas

This Note joins a growing chorus of scholarship criticizing the lack of proportionality analysis in the Supreme Court’s Fourth Amendment jurisprudence. Rather than simply bemoan the current state of legal doctrine, we offer a practical test that state and federal courts could use t…

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Open Carry for All: Heller and Our Nineteenth-Century Second Amendment

Jonathan Meltzer

In the aftermath of District of Columbia v. Heller and McDonald v. City of Chicago, the most important frontier for defining the scope of the Second Amendment is the right to carry weapons outside the home. Lower courts have disagreed on the proper approach for resolving this issue, ho…

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Regulating Sexual Orientation Change Efforts: The California Approach, Its Limitations, and Potential Alternatives

Jacob M. Victor

California recently became the first state to ban licensed psychotherapists from engaging in “sexual orientation change efforts” (SOCE)—also known as conversion therapy—with a minor. This Note argues that, despite the legislation’s laudable goals, California’s regulatory …

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The Mens Rea of Accomplice Liability: Supporting Intentions

Sherif Girgis

Accomplice liability makes someone guilty of a crime he never committed, so long as he helped or influenced the perpetrator and did so with the required mens rea. Just what that mens rea should be has been contested for more than a century. Here I consider three major approache…

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Why Motives Matter: Reframing the Crowding Out Effect of Legal Incentives

Emad H. Atiq

Legal rules and regulations are routinely rationalized by appeal to the incentives they create. This Note examines an important but misunderstood fact about incentives—namely, that they often “crowd out” the natural motivations that citizens have to engage in social…

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Vindicating Vindictiveness: Prosecutorial Discretion and Plea Bargaining, Past and Future

Doug Lieb

This Note explores the past and possible future of the doctrine of vindictive prosecution, which prohibits retaliation against a criminal defendant for the exercise of a legal right. It presents a new historical account of the doctrine’s accidental origins. It argues that a r…

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The Case for Tax: A Comparative Approach to Innovation Policy

Shaun P. Mahaffy

The federal government deploys a variety of institutions—patent, tax, and spending, among others—to encourage innovation. But legal scholars have given short shrift to how these institutions should be coordinated. In this Note, I argue that tax credits could be used to amel…

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Special Juries in the Supreme Court

Lochlan F. Shelfer




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Should the Ministerial Exception Apply to Functions, Not Persons?

Jed Glickstein


122 Yale L.J. 1964 (2013).

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its m…

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How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change

Daniel Taylor Young


122 Yale L.J. 1990 (2013).

Bruce Ackerman argues that major shifts in constitutional law can occur outside the Article V amendment process when there are unusually high levels of sustained popular attention to questions of constitutional significance.  This Note develops a new empirical strategy to e…

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Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration

Charles W. Tyler


122 Yale L.J. 1560 (2013).

In consumer and employment arbitration, companies have more freedom to choose dispute resolution procedures than they do in courts. Specifically, companies may, through their form contracts, require their customers and employees to waive their rights to present certain form…

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Debtor’s Dilemma: The Economic Case for Ride-Through in the Bankruptcy Code

Amber J. Moren


122 Yale L.J. 1594 (2013).

Following the 2005 amendments to the Bankruptcy Code, a Chapter 7 debtor hoping to retain an encumbered asset such as a motor vehicle after bankruptcy faces at least five options. The Bankruptcy Code allows a debtor to redeem the asset, reaffirm the debt, or convert to a Ch…

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Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes

Josh Bendor & Miles Farmer


122 Yale L.J. 1280 (2013).

This Note examines whether state or federal principles of administrative law should govern suits challenging state agency action pursuant to cooperative federalism statutes. Despite the prevalence of cooperative federalism statutes, courts and scholars alike have given scan…

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Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct After Maples v. Thomas

Wendy Zorana Zupac


122 Yale L.J. 1328 (2013).

In recent terms the Supreme Court has attempted to carve out remedies for habeas petitioners with negligent lawyers. This Note explores the analysis used by the Court in these cases and applies a novel descriptive model to explain how the Court has applied two different mod…

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The Majoritarian Filibuster

Benjamin Eidelson


122 Yale L.J. 980 (2013).

The debate over the Senate filibuster revolves around its apparent conflict with the principle of majority rule. Because narrow Senate majorities often represent only a minority of Americans, however, many filibusters are not at odds with majority rule at all. By paying atte…

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Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms

Marissa C.M. Doran


122 Yale L.J. 1024 (2013).

This Note is about the practice of conditioning recovery for violations of prisoners’ intangible constitutional rights, like First Amendment petition rights, upon a showing of physical injury. It argues that the prior physical injury requirement of the Prison Litigation Ref…

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Targeting the Twenty-First-Century Outlaw

Jane Y. Chong


122 Yale L.J. 724 (2012).

This Note proposes using outlawry proceedings to bring legitimacy to the government’s targeted killing regime. Far from clearly contrary to the letter and spirit of American due process, outlawry endured for centuries at English common law and was used to sanction lethal for…

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Confronting Crawford v. Washington in the Lower Courts

Dylan O. Keenan


122 Yale L.J. 782 (2012).

Crawford v. Washington is arguably the most significant criminal procedure decision of the last decade. Critics have argued that the Crawford line is a doctrinal muddle that has led to arbitrary and unpredictable results in the lower courts. I respond to this critique by pre…

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Bankruptcy-Proof Finance and the Supply of Liquidity

Nathan Goralnik


122 Yale L.J. 460 (2012).

The 2008 financial crisis has prompted widespread criticism of the bankruptcy safe harbors for repurchase agreements (repos) and derivatives, which allow a failed firm’s counterparties to enforce these contracts outside of the bankruptcy process. The emerging consensus holds…

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The Artist as Brand: Toward a Trademark Conception of Moral Rights

Xiyin Tang


122 Yale L.J. 218 (2012).

The Visual Artists Rights Act of 1990 (VARA) controversially recognized artists’ “moral rights” by protecting their work from alteration or destruction and by preventing the use of an artist’s name on a work he did not create. While moral rights are frequently criticized as …

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Sales Tax Not Included: Designing Commodity Taxes for Inattentive Consumers

Jacob Goldin


122 Yale L.J. 258 (2012).

A spate of new research suggests that the salience of a tax dramatically shapes taxpayer behavior: the more salient a tax—i.e., the more prominent a good’s after-tax price—the more taxpayers respond. Policymakers make decisions about tax salience, whether they intend to or n…

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Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery

Jonah B. Gelbach


121 Yale L.J. 2270 (2012).

Many observers believe the Supreme Court’s Twombly and Iqbal opinions have curtailed access to civil justice. But previous empirical studies looking only at Rule 12(b)(6) grant rates have failed to capture the full effect of these cases because they have not accounted for …

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Mandatory and Fair? A Better System of Mandatory Arbitration

Miles B. Farmer


121 Yale L.J. 2346 (2012).

This Note proposes a set of reforms that address the problem of systematic bias in mandatory arbitration. Until now, mandatory arbitration literature has focused largely on the pros and cons of the practice rather than on solutions to improve this form of dispute resolutio…

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Recognizing Character: A New Perspective on Character Evidence

Barrett J. Anderson


121 Yale L.J. 1912 (2012).

Courts have historically regulated the use of character in trials because of its
potential to prejudice juries. In order to regulate this type of proof, courts must be able to
recognize what is and is not character evidence, but past attempts to define character in the law
of …

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Cross-National Patterns in FCPA Enforcement

Nicholas M. McLean


121 Yale L.J. 1970 (2012).

This Note undertakes an empirical examination of U.S. enforcement actions under
the Foreign Corrupt Practices Act (FCPA) in order to explore the cross-national patterns
associated with the United States’ international antibribery enforcement. I investigate a number
of possible…

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The Origins of the Elected Prosecutor

Michael J. Ellis


121 Yale. L.J. 1528. 

The United States is the only country in the world where voters elect prosecutors. But the American prosecutor did not start as an elected official. After the Revolutionary War, most states gave their governors, judges, or legislators the power to appoint prosecutors. Starting…

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The Twenty-Sixth Amendment Enforcement Power

Eric S. Fish


121 Yale L.J. 1168 (2012).


This Note argues that the Twenty-Sixth Amendment did more than just lower the voting age. It also gave Congress the power to override state policies that disproportionately burden the voting rights of particular age groups, such as strict voter ID laws and onerous absentee …

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“Done in Convention”: The Attestation Clause and the Declaration of Independence

Jesse Cross


121 Yale L.J. 1236 (2012).


This Note offers a response to commentators who have argued that the Attestation Clause is best read as a straightforward attempt by the Founders to import the spirit and values of the Declaration of Independence into the Constitution. This argument distorts the Constitutio…

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Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on Defendants’ Ability To Bring Successful Padilla Claims

Danielle M. Lang


121 Yale L.J. 944 (2012).

 

In Padilla v. Kentucky, the Supreme Court held that a lawyer’s failure to advise her noncitizen client of the deportation consequences of a guilty plea constitutes deficient performance of counsel in violation of a defendant’s Sixth Amendment rights. In the plea conte…

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Reconciling Punitive Damages with Tort Law’s Normative Framework

Amir Nezar


121 Yale L.J. 678 (2011).

As punitive damages have gained greater visibility in Supreme Court jurisprudence, the need for principles explaining punitive damages and guiding their application has grown. Corrective justice would seem suited to providing guidance in this arena of tort law, but unfortun…

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Common Control and the Delineation of the Taxable Entity

Michael Aikins


121 Yale L.J. 624 (2011).

This Note proposes a solution to what has been one of the most vexing problems in state corporate taxation and in multijurisdictional taxation generally: the delineation of the scope of the entity that an individual jurisdiction is entitled to tax. Starting from the observa…

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Baseline Framing in Sentencing

Daniel M. Isaacs

 

121 Yale L.J. 426 (2011).

When judges sentence criminal offenders, they begin their analysis with a baseline sentence established by statutes or guidelines. Cognitive biases will likely cause this initial baseline to frame judges’ thought processes, such that judges will impose different sentenc…

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The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement

Abigail M. Hinchcliff


121 Yale L.J. 194 (2011).


Section 2 of the Fourteenth Amendment allows states to disenfranchise citizens on
account of “rebellion, or other crime” without reducing the size of the state’s delegation in the
House of Representatives. In its 1974 decision in Richardson v. Ramirez, the Supreme Court held
th…

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Publius and the Petition: Doe v. Reed and the History of Anonymous Speech

Chesa Boudin

120 Yale L.J. 2140 (2011). 

This Note argues that signatures on petitions intended for use in direct democracy processes such as ballot initiatives should be subject to public scrutiny and disclosure. They should not benefit from free speech protections allowing for anonymity. Signatures used in th…

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Publius and the Petition: Doe v. Reed and the History of Anonymous Speech

Chesa Boudin

120 Yale L.J. 2140 (2011). 

This Note argues that signatures on petitions intended for use in direct democracy processes such as ballot initiatives should be subject to public scrutiny and disclosure. They should not benefit from free speech protections allowing for anonymity. Signatures used in th…

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An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities

Matthew J. Hegreness

120 Yale L.J. 1820 (2011). 

Since the ratification of the Fourteenth Amendment in 1868, judges and scholars have struggled to coherently identify the rights, privileges, and immunities that no state should abridge. Debates over the ambit of the Fourteenth Amendment, however, have consistently overl…

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Judicious Influence: Non-Self-Executing Treaties and the Charming Betsy Canon

Rebecca Crootof

120 Yale L.J. 1784 (2011). 

Despite their seeming impotency, non-self-executing treaties play an important role in domestic jurisprudence. When a statute permits more than one construction, judges have a number of interpretive tools at their disposal. One of these is the Charming Betsy canon, which…

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Deal or No Deal? Remedying Ineffective Assistance of Counsel During Plea Bargaining

David A. Perez

120 Yale L.J. 1532 (2011). 

What happens when a defendant receives defective counsel during plea bargaining but subsequently receives a fair trial? This Note discusses three different approaches: no remedy, specific performance of the plea bargain, and a retrial. It argues that specific performance…

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The Economic Logic of the Lease/Loan Distinction in Bankruptcy

Daniel Hemel

120 Yale L.J. 1492 (2011). 

The Bankruptcy Code accords much more favorable treatment to lessors than to secured lenders, but legal scholars have yet to identify a normative justification for the disparate treatment of the two transaction types. Law-and-economics scholars have written off the lease…

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How To Review State Court Determinations of State Law Antecedent to Federal Rights

E. Brantley Webb

120 Yale L.J. 1192 (2011). 

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court endorsed a judicial takings doctrine for the purpose of policing wayward state property law decisions. The plurality’s opin…

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The Impact of Teacher Collective Bargaining Laws on Student Achievement: Evidence from a New Mexico Natural Experiment

Benjamin A. Lindy

120 Yale L.J. 1130 (2011). 

This Note uses the 1999 sunset and 2003 reauthorization of New Mexico’s public employee collective bargaining law to estimate the causal effect of teacher collective bargaining on student achievement. This Note finds that mandatory teacher bargaining laws increase the …

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Securities Regulation in the Shadow of the Antitrust Laws: The Case for a Broad Implied Immunity Doctrine

Jacob A. Kling

120 Yale L.J. 910 (2011). 

This Note provides a defense of the Supreme Court’s decision in Credit Suisse Securities (USA) LLC v. Billing, in which the Court reaffirmed a broad standard for determining when securities market activities are impliedly immune from antitrust liability. It argues that, c…

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Defining Family in Immigration Law: Accounting for Nontraditional Families in Citizenship by Descent

Victoria Degtyareva

120 Yale L.J. 862 (2011). 

Most immigrants who gain permanent residence or citizenship in the United States do so through familial relations. As a result, immigration authorities must constantly decide what constitutes a family. Unfortunately, the Immigration and Nationality Act (INA) provides li…

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Citizens Informed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake of Citizens United

Daniel Winik

120 Yale L.J. 622 (2010). 

This Note proposes a new direction for the regulation of corporate electoral advocacy in the wake of Citizens United. Rather than examining whether Citizens United was rightly decided, it argues that broad disclosure and disclaimer regulations for corporate electoral spee…

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Against Insurance Recission

Brian Barnes

120 Yale L.J. 328 (2010). 

This Note argues that rescission—the traditional remedy for innocent misrepresentations on insurance applications—systematically overcompensates insurance companies. In short, rescission allows insurers to refuse benefits to people who make innocent misrepresentations…

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Uniform Ethical Regulation of Federal Prosecutors

Bradley T. Tennis

120 Yale L.J. 144 (2010). 

Federal prosecutors are subject to a bewildering array of ethical regulations ranging from state ethical codes to local rules adopted by federal courts to the internal policies of the Department of Justice. The inconsistent and overlapping application of these ethical rul…

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Accountability, Deference, and the Skidmore Doctrine

Bradley Lipton

119 Yale L.J. 2096 (2010). 

This Note argues that government agencies should receive substantial deference when they interpret statutes informally under the standard of Skidmore v. Swift & Co. A key reason why courts defer to agencies is that agencies are more politically accountable than courts. C…

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Disenfranchising Shareholders: The Future of Blasius After Mercier v. Inter-Tel

Jacob A. Kling

119 Yale L.J. 2040 (2010). 

This Note analyzes the Delaware Chancery Court’s recent decision in Mercier v. Inter-Tel (Delaware), Inc., in which the court upheld against a Blasius challenge the Inter-Tel board’s decision to postpone its imminent special meeting in order to prevent shareholders fro…

Note

The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance

Travis Crum

119 Yale L.J. 1992 (2010). 

Following NAMUDNO, the search is on for a way to save section 5 of the Voting Rights Act (VRA). This Note offers a solution through an examination of the VRA’s most obscure provision: section 3. Commonly called the bail-in mechanism or the pocket trigger, section 3 aut…

Note

A Free Pass for Foreign Firms? An Assessment of SEC and Private Enforcement Against Foreign Issuers

Natalya Shnitser

119 Yale L.J. 1638 (2010). 

While proponents of the bonding hypothesis have posited that foreign firms crosslist in the United States to signal compliance with the strict U.S. corporate governance regime, these scholars have taken the enforcement of U.S. securities laws largely for granted. This No…

Note

Bankruptcy as Constitutional Property: Using Statutory Entitlement Theory To Abrogate State Sovereign Immunity

Joseph Pace

119 Yale L.J. 1568 (2010). 

In the decade following Seminole Tribe’s ruling that Article I is not a grant of authority to abrogate state sovereign immunity, scholars and courts overwhelmingly agreed that the Eleventh Amendment barred Congress from subjecting states to suit in bankruptcy proceedin…

Note

Eminent Domain Due Process

D. Zachary Hudson

119 Yale L.J. 1280 (2010). 

This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislati…

Note

Maximizing Participation Through Campaign Finance Regulation: A Cap and Trade Mechanism for Political Money

William J. Rinner

119 Yale L.J. 1060 (2010). 

This Note attempts to reroute a burgeoning area of campaign finance scholarship and reform. Though many previous proposals have enshrined liberty or equality as the sole animating value to pursue through doctrinal and political means, few have considered the impact of ca…

Note

The Significance of Signatures: Why the Framers Signed the Constitution and What They Meant by Doing So

Michael Coenen

119 Yale L.J. 966 (2010). 

The signing of the U.S. Constitution is traditionally understood as the closing act of the Constitutional Convention. This Note provides an alternative account, one that understands the Constitution’s signing as the opening act of the ratification campaign that followed…

Note

Strategic or Sincere? Analyzing Agency Use of Guidance Documents

Connor N. Raso

119 Yale L.J. 782 (2010). 

This Note examines whether U.S. regulatory agencies frequently use guidance documents to issue policy decisions, avoiding the notice and comment process and other procedures normally required to issue rules. Legal scholars and recent presidential administrations both have…

Note

Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s

Craig J. Konnoth

119 Yale L.J. 316 (2009). 

Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially…

Note

Disastrously Misunderstood: Judicial Deference in the Japanese-American Cases

Jonathan M. Justl

119 Yale L.J. 270 (2009). 

This Note offers a new framework to evaluate judicial deference in cases reviewing government actions during national emergencies. Rejecting the conventional approach assessing deference as a matter of degree or as a condition present or not present, this Note offers a nu…

Note

When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation

Dina Mishra

119 Yale L.J. 86 (2009). 

In many cases, municipal attorneys defend both a municipality and a municipal official against § 1983 claims. Some defenses available to the two types of defendants are incompatible and may give rise to conflicts of interest. This Note analyzes the problems associated wit…

Note

Childbearing, Childrearing, and Title VII: Parental Leave Policies at Large American Law Firms

Christen Linke Young

118 Yale L.J. 1182 (2009).

In a fiercely competitive labor market, large American law firms universally offer some paid leave to attorneys after the birth of the child. This Note offers an empirical investigation of those policies, finding that all firms offer paid leave to new mothers, and many fi…

Note

Interrogation's Law

Wiliam Ranney Levi

118 Yale L.J. 1434 (2009).

 

Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal…

Note

The Law of Describing Accidents: A New Proposal for Determining the Number of Occurrences in Insurance

Michael Murray

118 Yale L.J. 1484 (2009).

 

This Note argues that the term “occurrence” in insurance law should be defined by reference to the statistical concept of independence. Most courts define occurrence according to a version of the “causation” theory. This approach, however, yields inconsistent results f…

Note

Racial Classification in Assisted Reproduction

Dov Fox

118 Yale L.J. 1844 (2009). 

This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the exp…

Note

Corruption in Our Courts: What It Looks Like and Where It Is Hidden

Stratos Pahis

118 Yale L.J. 1900 (2009).

 

Recent surveys and events indicate that judicial corruption could be a significant problem in the United States. This Note builds an economic model of bribery to better understand the incentives behind this pernicious phenomenon. It then compiles a data set of discover…

Note

Popular Constitutionalism, Civic Education, and the Stories We Tell Our Children

Tom Donnelly

118 Yale L.J. 948 (2009).

 

This Note analyzes a set of constitutional stories that has not been the subject of focused study—the constitutional stories we tell our schoolchildren in our most widely used high school textbooks. These stories help reinforce a constitutional culture that is largely d…

Note

Is There a Place for Religious Charter Schools?

Benjamin Siracusa Hillman

118 Yale L.J. 554 (2008).

 

Recently, religious groups have sought to become charter school providers. Scholarship and popular commentary dispute the desirability of this prospect. Religious charter schools can address unmet needs of religious groups and keep them invested in the public school sys…

Note

Gangs in the Military

Gustav Eyler

118 Yale L.J. 696 (2009).

 

Gang activity in the U.S. military is increasing. Gang members undermine good order and discipline in the armed services and pose a serious threat to military and civilian communities. Congress recently responded to this threat by directing the Secretary of Defense to p…

Note

Privatizing Democracy: Promoting Election Integrity Through Procurement Contracts

Jennifer Nou

118 Yale L.J. 744 (2009).

 

Voting machine failures continue to plague American elections. These failures have fueled the growing sense that private machine manufacturers must be held accountable. This Note argues that, because legitimacy externalities and resource disparities across election juri…

Note

The Anders Brief in Appeals from Civil Commitment

Joseph Frueh

118 Yale L.J. 272 (2008).


In Anders v. California, the Supreme Court crafted a procedure to prevent appointed attorneys from abandoning their clients after trial. The Court provided that if counsel wishes to withdraw from a “frivolous” case, he or she first must file a brief referring to anything…

Note

John Doe Subpoenas: Toward a Consistent Legal Standard

Nathaniel Gleicher

118 Yale L.J. 320 (2008).

 

This Note considers the rising trend of anonymous online harassment and the use of John Doe subpoenas to unmask anonymous speakers. Although anonymity often serves as an important shield for valuable speech, it also protects online harassment that can chill or completel…

Note

Comparative Corporate Criminal Liability: Exploring the Uniquely American Doctrine Through Comparative Criminal Procedure

Edward B. Diskant

118 Yale L.J. 126 (2008).


In the United States, corporations—as entities—can be criminally tried and convicted for crimes committed by individual directors, managers, and even low-level employees. From a comparative perspective, such corporate liability marks the United States as relatively uniqu…

Note

When Parents Aren't Enough: External Advocacy in Special Education

Erin Phillips

117 Yale L.J. 1802 (2008).

The Individuals with Disabilities Education Act (IDEA) has been widely celebrated for providing millions of disabled children with broader educational and life opportunities. This Note seeks to improve the implementation of the IDEA by questioning one of its key assumptio…

Note

Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment

Julia Simon-Kerr

117 Yale L.J. 1854 (2008).

This Note demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman’s “honor,” and thus her credibility, with her sexual virtue. The idea that a woman’s chastity informs her credibility did not originate in …

Note

Weight Discrimination: One Size Fits All Remedy?

Lucy Wang

117 Yale L.J. 1900 (2008).

Being fat is one of the most devastating social stigmas today. In seeking a legal remedy, commentators and advocates appeal to existing models of employment discrimination: disability, race, sex, and more recently, appearance. Fat people do face discrimination along these…

Note

Medicaid and Beneficiary Enforcement: Maintaining State Compliance with Federal Availability Requirements

Jon Donenberg

117 Yale L.J. 1374 (2008).

When states accept federal funding to administer a joint federal-state program, what assurance is there that they will conform to the requirements of governing federal law? This question takes on a new urgency in the Medicaid context since the § 1983 lawsuits that have hi…

Note

The Case Against Automatic Reversal of Structural Errors

Steven M. Shepard

117 Yale L.J. 1180 (2008).

This Note describes the case law governing three structural errors and shows that the rule of automatic reversal has led appellate courts to narrow the scope of the rights at issue. To avoid this effect, the Note proposes a new framework for determining whether a given ty…

Note

Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling

Murad Hussain

117 Yale L.J. 920 (2008).

Counterterrorism officials increasingly seek to scrutinize conduct and behavior that they believe, however uncertainly, to be probative of terrorist activity. When such conduct- based profiling specifically targets activity that is also expressive of Muslim identity, it ma…

Note

Profits as Commercial Success

Andrew Blair-Stanek

117 Yale L.J. 642 (2008).

Courts often use the extent of a patented invention’s commercial success as crucial nontechnical proof of the patent’s validity. Relying on misguided economic reasoning, most courts use revenue as the primary yardstick for commercial success. This Note argues that courts i…

Note

Enforcing the Treaty Rights of Aliens

Laura Moranchek Hussain

117 Yale L.J. 680 (2008).

Despite the Supremacy Clause’s declaration that treaties are the “Law of the Land,” efforts to incorporate treaties that guarantee individual rights into domestic law have been stymied by a wave of political opposition. Critics argue that giving these treaties the force of…

Note

Insurance Law’s Hapless Busybody: A Case Against the Insurable Interest Requirement

Jacob Loshin

117 Yale L.J. 474 (2007).

For centuries, the law has prevented people from purchasing insurance on the life or property of strangers because such insurance contracts would give policyholders incentives to end the life or destroy the property in order to collect the insurance payout. The law thus re…

Note

Concession Agreements:From Private Contract to Public Policy

Nicholas Miranda

117 Yale L.J. 510 (2007).

Many concession agreements between governments of developing countries and corporations have failed to produce expected infrastructural, monetary, and efficiency gains. This Note argues that these agreements fail in part because the parties construct them as traditional pr…

Note

The Canons of War

Daniel J. Freeman

117 Yale L.J. 280 (2007).

War powers hang in a delicate balance, with conflicting statutes overlying contrasting constitutional prerogatives. Because Congress has filled nearly every shadowy corner of Justice Jackson’s “zone of twilight” with its own imprimatur, war powers debates now hinge on trad…

Note

"I Did Not Come Here To Defend Myself": Responding to War on Terror Detainees' Attempts To Dismiss Counsel and Boycott the Trial

Matthew Bloom

117 Yale L.J. 70 (2007).

A significant portion of the war on terror detainees who have been charged at Guantanamo have announced their intentions to dismiss their attorneys, to waive their right to be present at their trials, or to take both actions simultaneously so that their interests will not b…

Note

Realizing the Potential of the Joint Harassment/Retaliation Claim

Eisha Jain

117 Yale L.J. 120 (2007).

This Note assesses the relationship between hostile work environment harassment and retaliatory harassment claims by reviewing several cases in which both claims were brought. It argues that courts have unjustifiably narrowed the reach of both claims by disaggregating hara…

Note

Designing a Constitution-Drafting Process: Lessons from Kenya

Alicia L. Bannon

This Note examines Kenya’s recent constitution-writing experience as a case study for designing constitution-drafting processes in emerging democracies. Eight years after Kenya’s constitutional review process began, and after a highly acrimonious drafting period, Kenyans roundly defeated a proposed …

Note

Searching for Balance in the Aftermath of the 2006 Takings Initiatives

Hannah Jacobs

116 Yale L.J. 1518 (2007)

The partial regulatory takings movement seeks to compensate private landowners when regulations diminish their land values. This movement has grown in recent years, particularly at the state level. Scholars have focused thus far on the cost of compensation and its effect …

Note

Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury

Richard M. Re

116 Yale L.J. 1568 (2007)

This Note proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury’s legitimacy, many scholars have observed that this…

Note

Tenant Screening Thirty Years Later: A Statutory Proposal To Protect Public Records

Rudy Kleysteuber

116 Yale L.J. 1344 (2007)

Most consumers learn about tenant-screening reports only when a landlord points to an item on such a report as the reason for rejecting an application and provides the tenant with a copy of that report as required by law. Legal scholars have criticized these reports for mo…

Note

Private Law or Social Norms? The Use of Restrictive Covenants in Beaver Hills

Valerie Jaffee

116 Yale L.J. 1302 (2007)

This Note provides a detailed history of the use of restrictive covenants in Beaver Hills, a planned residential subdivision built in New Haven between 1908 and the end of the 1930s. It analyzes these covenants in light of both the relevant common law of servitudes and the…

Note

Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext

Eric F. Citron

Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our…

Note

Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform

Damian Williams

116 Yale L.J. 1116 (2007)

Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 …

Note

Living History: How Homeowners in a New Local Historic District Negotiate Their Legal Obligations

Tad Heuer

116 Yale L.J. 768 (2007)

American historic preservationists are increasingly emphasizing the need to preserve not only prominent landmarks, but also the vernacular architectural culture of "ordinary neighborhoods." Preserving such neighborhoods often requires convincing homeowners to agree to legal r…

Note

Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties

Curtis J. Mahoney

116 Yale L.J. 824 (2007)

With the nation's treaty obligations proliferating and foreign affairs cases taking up a growing share of the Supreme Court's docket, it is surprising how undertheorized the field of treaty interpretation remains. To fill this void, some have suggested that textualism, which …

Note

Sentencing Organizations After Booker

Timothy A. Johnson

In United States v. Booker, the Supreme Court held that courts violate individuals' right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled …

Note

Environmental Economics: A Market Failure Approach to the Commerce Clause

Mollie Lee

116 Yale L.J. 456 (2006)

Congressional authority to enact environmental legislation has been called into question by recent Supreme Court cases suggesting that Commerce Clause regulation is valid only if Congress is regulating economic activity. This Note proposes a market failure approach to guide t…

Note

Contractual Waiver of Corporate Attorney-Client Privilege

Mark A. Kressel

116 Yale L.J. 412 (2006)

A corporate director, sued in her individual capacity in connection with corporate malfeasance, often seeks to raise the defense that she relied on the advice of the corporation's counsel that the proposed course of conduct was legal. A litigation impasse may arise, however, …

Note

From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce

Danielle Tarantolo

116 Yale L.J. 170 (2006)

The American workplace has undergone a fundamental transformation as businesses increasingly have replaced traditional employees with independent contractors. Yet many of these individuals fall outside federal employment law, including Title VII's antidiscrimination protectio…

Note

Making the No Fly List Fly: A Due Process Model for Terrorist Watchlists

Justin Florence

115 Yale L.J. 2148 (2006)

Since 9/11, the federal government's use of terrorist watchlists has constrained the liberty of thousands of American travelers and transportation workers. While watchlists make sense for security purposes, they have a pair of troubling side effects: Individuals may be liste…

Note

The Unforeseen Effects of Georgia v. Ashcroft on the Latino Community

Alvaro Bedoya

115 Yale L.J. 2112 (2006)

In Georgia v. Ashcroft, the Supreme Court weakened the protections afforded to minority voters in jurisdictions covered by the section 5 preclearance provisions of the Voting Rights Act (VRA). This Note highlights the fact that Georgia v. Ashcroft--a decision applicable to a…

Note

For-Profit and Nonprofit Charter Schools: An Agency Costs Approach

John Morley

115 Yale L.J. 1782 (2006)

This Note applies agency costs theory to explain charter schools' use of for-profit and nonprofit forms, and to suggest ways to make charter school regulation more sensitive to the differences between these forms. Borrowing from Henry Hansmann's "contract failure" theory of …

Note

Rehabilitating Rehab Through State Building Codes

Sara C. Galvan

115 Yale L.J. 1744 (2006)

Building codes are not neutral documents. Traditional codes have the effect of deterring the rehabilitation of older structures. But rehabilitation--which can have many positive effects, especially on cities--should be encouraged, not deterred. One promising method of encour…

Note

A Fair Trial Remedy for Brady Violations

Elizabeth Napier Dewar

115 Yale L.J. 1450 (2006)

This Note proposes a new remedy for criminal defendants when the government fails to fulfill its constitutional duty to disclose favorable evidence. When evidence that should have been disclosed earlier emerges during or shortly before trial, the court should consider instru…

Note

Grutter at Work: A Title VII Critique of Constitutional Affirmative Action

Jessica Bulman-Pozen

115 Yale L.J. 1408 (2006)

This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical…

Note

Securing Informationships: Recognizing a Right to Privity in Fourth Amendment Jurisprudence

Andrew J. DeFilippis

115 Yale L.J. 1086 (2006)

This Note argues for judicial recognition of a Fourth Amendment right to privity, conceived broadly as a right to make limited disclosure of one's personal information without surrendering the constitutional privacy interests that attach to it. In particular, this Note chall…

Note

The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade

Tara Helfman

115 Yale L.J. 1122 (2006)

Drawing on archival sources, this Note explores an early experiment in humanitarian intervention undertaken by the Court of Vice Admiralty at Sierra Leone through the suppression of the West African slave trade during the early decades of the nineteenth century. Part I discu…

Note

Civil Rights, Antitrust, and Early Decision Programs

Ruby Z. Afram

115 Yale L.J. 880 (2006)

Early decision admission programs--which allow a student to receive early notification of admission in return for a commitment to attend a particular institution--enjoyed explosive popularity at America's institutions of higher education in the 1990s. Schools use the programs…

Note

The Mosaic Theory, National Security, and the Freedom of Information Act

David E. Pozen

115 Yale L.J. 628 (2005)

This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began…

Note

Bridging the Book-Tax Accounting Gap

Celia Whitaker

115 Yale L.J. 680 (2005)

The book-tax accounting gap allows corporations to minimize their earnings for tax purposes while maximizing them in reports to investors, all within the letter of the law. Although the U.S. Treasury has reported the rising divergence between book and taxable income with alar…

Note

Bailing Out Congress: An Assessment and Defense of the Air Transportation Safety and System Stabilization Act of 2001

Jonathan Lewinsohn

115 Yale L.J. 438 (2005)

This Note provides the first detailed account of the conception, impact, and success of the Air Transportation Safety and System Stabilization Act (ATSSSA) of 2001, an $18 billion federal bailout of the airline industry passed eleven days after the terrorist attacks of Septem…

Note

The Creation of Homeownership: How New Deal Changes in Banking Regulation Simultaneously Made Homeownership Accessible to Whites and Out of Reach for Blacks

Adam Gordon

115 Yale L.J. 186 (2005)

The Federal Government, in creating the section 203(b) mortgage insurance program during the New Deal, transformed homeownership in America into the main way that middle-class households build wealth. In the first three decades of the program's existence, however, this wealth…

Note

A Walk Along Willard: A Revised Look at Land Use Coordination in Pre-Zoning New Haven

Stephen Clowney

115 Yale L.J. 116 (2005)

This Note seeks to forge a richer understanding of the costs and benefits of zoning. To accomplish its goal, this Note assesses and critiques Andrew Cappel's A Walk Along Willow. This Note asks and answers three questions: (1) Are Cappel's findings about land use patterns rep…

Note

Limiting Coercive Speech in Class Actions

Andrei Greenawalt

114 Yale L.J. 1953 (2005)

Courts once routinely banned communications of named parties and their counsel with potential class members, until the Supreme Court, in Gulf Oil Co. v. Bernard, called for "specific findings" and a "weighing of interests" before the imposition of such bans. Most courts have…

Note

Regulation by Software

James Grimmelmann

114 Yale L.J. 1719 (2005)

This Note builds on Larry Lessig's famous formulation that "code is law" to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that dist…

Note

The World Bank and the Internalization of Indigenous Rights Norms

Galit A. Sarfaty

114 Yale L.J. 1791 (2005)

The World Bank has emerged as an important actor in the international law community by enforcing social and environmental standards in borrower countries. One such standard is its indigenous peoples policy, which the Bank attempts to incorporate into domestic law through bin…

Note

Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts

Jennifer L. Peresie

114 Yale L.J. 1759 (2005)

This Note finds that the gender composition of the bench affected federal appellate court outcomes in Title VII sexual harassment and sex discrimination cases in 1999, 2000, and 2001. An empirical study (n = 1666) shows that female judges decided for plaintiffs more often …

Note

Applying Section 5: Tennessee v. Lane and Judicial Conditions on the Congressional Enforcement Power

Kevin S. Schwartz

114 Yale L.J. 1133 (2005)

Section 5 of the Fourteenth Amendment grants Congress the "power to enforce, by appropriate legislation," the Equal Protection and Due Process Clauses. Yet in the past seven years the Supreme Court has invalidated five different laws--including three landmark civil rights la…

Note

Judging Partisan Gerrymanders Under the Elections Clause

Jamal Greene

114 Yale L.J. 1021 (2005)

The Supreme Court has consistently decried the lack of standards for adjudicating partisan gerrymandering claims, most recently in last Term's Vieth v. Jubelirer. But it has ignored the potential for developing standards under the Elections Clause, which it held in Cook v. G…

Note

More Equal than Others: Defending Property-Contract Parity in Bankruptcy

Blake Rohrbacher

114 Yale L.J. 1099 (2005)

Contracts create property; contractual rights and obligations are property. In bankruptcy, however, this aspect of nonbankruptcy law is often not recognized. This Note argues that bankruptcy law and policy should recognize the property in contract. This Note examines instanc…

Note

The Character of Discrimination Law: The Incompatibility of Rule 404 and Employment Discrimination Suits

Lisa Marshall

114 Yale L.J. 1063 (2005)

Disregarding the dictates of Federal Rule of Evidence 404, plaintiffs in discrimination suits routinely prevail on the basis of propensity proofs. Yet neither the parties nor the courts are to blame for these rampant violations. It is, instead, the dearth of evidence availab…

Note

Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court's Docket

Ariel N. Lavinbuk

114 Yale L.J. 855 (2005)

Mainstream and revisionist scholars advance radically different histories of early judicial involvement in foreign affairs. By reconstructing the foreign affairs docket of the Jay and Marshall Courts, this Note presents empirical evidence with which these claims can be evalua…

Note

Patents, Paradigm Shifts, and Progress in Biomedical Science

Peter Lee

114 Yale L.J. 661 (2004)

This Note applies the concept of paradigm shifts from the history and philosophy of science to describe how patents on biomedical research tools--inputs to basic research--can help advance scientific theory. Patents on research tools frustrate scientific norms of sharing and …

Note

Compatibility and Interconnection Pricing in the Airline Industry: A Proposal for Reform

Bradley H. Weidenhammer

114 Yale L.J. 405 (2004)

Where rival firms compete in a network industry, compatibility among all firms maximizes the size, density, and total value of the network by combining rivals into a single network. Applying network-compatibility theory to the airline industry suggests that major carriers hav…

Note

An Article I, Section 7 Perspective on Administrative Law Remedies

Boris Bershteyn

114 Yale L.J. 359 (2004)

By applying game-theoretic analysis to the bicameralism and presentment requirements of Article I, Section 7, scholars have recommended reforms in constitutional law, statutory interpretation, and the Chevron doctrine. This Note builds on this work and explores whether Articl…

Note

Emergency Power and the Militia Acts

Stephen I. Vladeck

114 Yale L.J. 149 (2004)

An important chapter is missing from contemporary debates over the constitutional source of the federal government's emergency power. In focusing on five statutes passed by early Congresses to provide for the calling forth of the militia and the federal armed forces to respon…

Note

Appurtenancy Reconceptualized: Managing Water in an Era of Scarcity

Olivia S. Choe

113 Yale L.J. 1909 (2004)

I. THE NEED TO REASSESS REGULATED RIPARIANISM

Until recently, the eastern United States has been blessed with an abundance of water; unlike the arid West, shortages in the East have historically been "rare and short-lived." During the past few decades, however, water has i…

Note

What Feeney Got Right: Why Courts of Appeals Should Review Sentencing Departures De Novo

Andrew D. Goldstein

113 Yale L.J. 1955 (2004)

Last summer, when a panel of the U.S. Court of Appeals for the First Circuit issued its initial ruling in United States v. Thurston, it plunged into a war between federal judges and Congress, as well as between district and appellate courts, over how much flexibility trial j…

Note

"Hostility to the Presence of Women": Why Women Undermine Each Other in the Workplace and the Consequences for Title VII

Ramit Mizrahi

113 Yale L.J. 1579 (2004)

When women undermine and undercut each other, vying for advancement, they are reacting to workplace segregation and low organizational power. Employers must work to integrate workplaces to the best of their abilities, ensuring that women are present in ample numbers at all l…

Note

Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land

Marcia Yablon

113 Yale L.J. 1623 (2004)

The courts and Congress have left sacred sites protection in the hands of land management agencies, and although many feared this decision would be disastrous, land agencies have actually embraced their role and sought to accommodate Indian religions and protect their sacred…

Note

Taxing Political Donations: The Case for Corrective Taxes in Campaign Finance

David S. Gamage

113 Yale L.J. 1283 (2004)

Incentive-based regulations are generally more efficient than command-and-control measures. One of the primary categories of incentive-based regulations--and one that has gained significant support of economics scholars over the past few decades--is corrective taxation. Co…

Note

Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond

Bryan W. Leach

113 Yale L.J. 1093 (2004)

In Grutter v. Bollinger, the much-anticipated case challenging affirmative action practices at the University of Michigan Law School, the Supreme Court held for the first time that "obtaining the educational benefits that flow from a diverse student body" represents a compel…

Note

Private Voucher Schools and the First Amendment Right To Discriminate

Michael Kavey

113 Yale L.J. 743 (2003)

At the end of its 2001 Term, the Supreme Court settled one of the most contentious educational debates in recent history, ruling in Zelman v. Simmons-Harris that the inclusion of religious schools in a state school voucher program did not violate the Establishment Clause of t…

Note

How Judges Overrule: Speech Act Theory and the Doctrineof Stare Decisis

Pintip Hompluem Dunn

113 Yale L.J. 493 (2003)

Judges have been called liars, but lying is not necessarily a bad thing. Judges must be given the ability to overrule; otherwise, we would be stuck with a decision even if it was wrongly decided and times and thinking had changed. In the recent case of Lawrence v. Texas, the …

Note

Sacrifice, Atonement, and Legal Ethics

David Sweet

113 Yale L.J. 219 (2003)

Lawyers surely understand sacrifice. The business of representation requires a willingness to subjugate, at least temporarily, one's own priorities, beliefs, and comforts to those of another. Today, that willingness is tested and demanded with unprecedented force. Corporate l…

Note

Leaving FISA Behind: The Need To Return to Warrantless Foreign Intelligence Surveillance

Nola K. Breglio

113 Yale L.J. 179 (2003)

In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intellig…

Note

Limits of Competition: Accountability in Government Contracting

Janna J. Hansen

112 Yale L.J. 2465 (2003)

Government contracts with private providers for the supply of goods and services have grown in number and magnitude over the last several decades. Elected officials and other policymakers choose to privatize government functions for a variety of reasons. Politicians may wan…

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A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections

Kate E. Andrias

112 Yale L.J. 2415 (2003)

The First Amendment stands as a guarantor of political freedom and as the "guardian of our democracy." It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As t…

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Insuring Against Terror?

Jeffrey Manns

112 Yale L.J. 2509 (2003)

The current Act reflects the political reality of concentrated interests of insurers and businesses. This group had the influence and the platform to push for the government's assumption of much of their terrorist risk exposure. The Act disproportionately assists the insurer…

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Billboards and Big Utilities: Borrowing Land-Use Concepts To Regulate "Nonconforming" Sources Under the Clean Air Act

Deepa Varadarajan

112 Yale L.J. 2553 (2003)

I have suggested the incorporation of amortization provisions as a potential solution to the continued emissions problem posed by coal-burning electric utilities built prior to the original Clean Air Act. Thirty years after the Act's passage, these problematic sources have n…

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Unions and the Duty of Good Faith in Employment Contracts

Aditi Bagchi

112 Yale L.J. 1881 (2003)

Some American scholars of law and economics have expressed dismay at the anticompetitive and illiberal body of legal doctrine that is labor law. Their respondents, often in other fields if not other countries, have defended unions and the laws that support them on both econ…

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A Site Where Hackers Are Welcome: Using Hack-In Contests To Shape Preferences and Deter Computer Crime

Brent Wible

112 Yale L.J. 1577 (2003)

While the Internet has revolutionized communication and commerce, it has also created the conditions for a type of crime that can be committed anonymously, from anywhere in the world, and with consequences that are unprecedented in scope. With the failure of traditional law …

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Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts To Protect Abortion Patients and Staff

Alice Clapman

112 Yale L.J. 1545 (2003)

When Lori Driver, an anti-abortion activist, learned that Lisa Smith was scheduled to have an abortion the following day, Driver looked up Smith's telephone number and left her two telephone messages. Smith did not return Driver's calls, so Driver stepped up her efforts, go…

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Same-Sex Privacy and the Limits of Antidiscrimination Law

Amy Kapczynski

112 Yale L.J. 1257 (2003)

Title VII of the 1964 Civil Rights Act, as it has been interpreted by the courts, is an uncompromising statute. It bars adverse employment actions taken on the basis of race, color, religion, sex, and national origin, with only one exception: in cases where an employer can …

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Limiting Locke: A Natural Law Justification for the Fair Use Doctrine

Benjamin G. Damstedt

112 Yale L.J. 1179 (2003)

Focusing a discussion of intellectual property on a 300-year-old text may seem unusual, but John Locke's Two Treatises of Government has an uncommon place in American intellectual property theory. Historically, Lockean natural rights informed the Framers' understanding of i…

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Why Contempt Is Different: Agency Costs and "Petty Crime" in Summary Contempt Proceedings

Eric Fleisig-Greene

112 Yale L.J. 1223 (2003)

For as long as they have existed, contempt proceedings have been the source of significant controversy, their necessity and abuse hotly contested by the legal community, the legislature, and the judiciary. The raw, unchecked power of summary contempt--the ability of a judge …

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The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism

Michael T. Morley

112 Yale L.J. 109 (2002)

One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. Instead of being a supreme parliament, able to do whate…

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Inventing a Nonexclusive Patent System

John S. Leibovitz

111 Yale L.J. 2251 (2002)

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Proxy Consent to Organ Donation by Incompetents

Michael T. Morley

111 Yale L.J. 1215 (2002)

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Abolition Without Deliverance: The Law of Connecticut Slavery 1784-1848

David Menschel

111 Yale L.J. 183 (2001)

According to American public memory, slavery in the United States was peculiar to the South. Unless explicitly reminded of the North's history of slavery, most Americans associate the North with abolitionists rather than slaveholders. Alongside this public memory is the work …

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Jury Secrecy During Deliberations

Alison Markovitz

110 Yale L.J. 1493 (2001)


 

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A Labor Theory of Legal Parenthood

Shoshana L. Gillers

110 Yale L.J. 691 (2001)


 

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History as Precedent: The Post-Originalist Problem in Constitutional Law

Emil A. Kleinhaus

110 Yale L.J. 121 (2000)