Antisubordinating the Second Amendment
Racial-justice claims have played an enduring role in the movement and jurisprudential history of the contemporary Second Amendment. This Note argues that, far from a source of equal freedom, our modern expansionist Second Amendment—which reasons in the register of history and tradition—reinforces c…
Judicial Bypass and Parental Rights After Dobbs
This Note explores the status of judicial bypass of parental-involvement laws for abortion, historically mandated to balance minors’ right to abortion and their parent’s right to direct their upbringing. We argue that, even after Dobbs, judicial bypass is legally supported and consistent with a prop…
Reviving the Prophylactic VRA: Section 3, Purcell, and the New Vote Denial
Given increasing threats to voting rights and an expansive Purcell doctrine, Section 3 of the Voting Rights Act is a vital but underused resource. To reinvigorate Section 3, this Note makes two observations: preclearance does not require intentional racial discrimination, and may be based on declara…
Interpreting ambiguous statutory provisions in light of the “structure,” “scheme,” or “plan” of the statute is a popular, yet understudied, interpretive tool often deployed by the Supreme Court. This Note categorizes the various types of structural arguments the Court has used and evaluates their me…
Protecting Transgender Youth After Bostock: Sex Classification, Sex Stereotypes, and the Future of Equal Protection
This Note argues that Bostock v. Clayton County’s holding under Title VII—anti-LGBT discrimination is sex discrimination—applies under equal-protection analysis. It then combines Bostock with sex-stereotype reasoning to argue that recent laws and policies targeting transgender minors unconstitutiona…
Native Voting Power: Enhancing Tribal Sovereignty in Federal Elections
Restrictive voting laws not only infringe upon the rights of individual Native American citizens but also denigrate tribal sovereignty. This Note argues that to fulfill its trust obligation to tribes, Congress should require state election officials to form compacts with tribes governing the adminis…
Familial-Status Discrimination: A New Frontier in Fair Housing Act Litigation
A key exception to the Fair Housing Act’s prohibition of familial-status discrimination has allowed municipalities to weaponize senior-only housing to block the construction of affordable housing and perpetuate segregation. This Note documents this practice, offers a framework for advocates to chall…
The Neglected Port Preference Clause and the Jones Act
The Constitution’s Port Preference Clause restricts Congress’s ability to favor “the Ports of one State over those of another.” This Note argues that the Jones Act, which prohibits foreign vessels from transporting goods between U.S. ports, violates the Clause by favoring West Coast ports over those…
Between Public and Private: Care Workers, Fissuring, and Labor Law
Although states set wages and regulate working conditions, NLRA-covered care workers are often restricted to bargaining with their private employers. To address this challenge, this Note argues that states should recognize their implicit joint-employer relationship with these workers, enabling care …
State Water Ownership and the Future of Groundwater Management
Many states claim to own their water. How to understand such claims is a perennially muddied question which the Supreme Court recently failed to clarify. This Note demonstrates why states can have literal ownership of their water, and why a contrary conclusion could imperil groundwater management in…
“We Hold the Government to Its Word”: How McGirt v. Oklahoma Revives Aboriginal Title
McGirt’s insistence on unambiguous proof of Congress’s intent created an opening for aboriginal-title suits against the United States. By enforcing the congressional-intent requirement, McGirt cleared the sovereign immunity and preclusion bars that have stymied such suits. An overlooked Tenth Circui…
Proceduralize Student Speech
This Note proposes a new dimension for student-speech jurisprudence: procedure. How schools punish speech drives the lessons students learn, and the lessons students learn should drive judicial determinations of whether the educational value of a restriction is worth the First Amendment infringement…
Youth Always Matters: Replacing Eighth Amendment Pseudoscience with an Age-Based Ban on Juvenile Life Without Parole
Existing Eighth Amendment protections force judges to sort children into pseudoscientific categories. An analysis of sentencing transcripts reveals that sentencers routinely rely on unfounded assumptions when sentencing juveniles to life in prison. Following efforts led by formerly incarcerated yout…
Equalizing Access to Evidence: Criminal Defendants and the Stored Communications Act
The Stored Communications Act poses an increasing threat to criminal defendants’ ability to access evidence. This Note analyzes pathways criminal defendants can pursue to access evidence within the current statutory framework and argues that the statute is unconstitutional as applied to cases where …
Since the Supreme Court’s 1975 decision that students enjoy constitutionally protected property interests in education, most states have passed laws and regulations requiring schools to provide meals and health services to students. These services arguably constitute entitlements, requiring sc…
Agency Control and Internally Binding Norms
Modern applications of the binding-norm test suggest that agencies cannot bind even low-level officials to internal guidance. This Note, however, finds that internal binding norms are common tools of bureaucratic supervision. In response, it proposes a new approach to judicial review of guidance tha…
Fitting the MPC into a Reasons-Responsiveness Conception of Subjective Culpability
This Note compares the MPC’s mens rea regime with the “reasons-responsiveness” conception of culpability widespread among criminal law theorists. It argues that if the reasons-responsiveness account is correct, the MPC will often fail to track offenders’ relative culpability, resulting in disproport…
One Size Fits None: An Overdue Reform for Chapter 7 Trustees
Despite their differences, consumer and business Chapter 7 cases are administered by the same trustees under the same rules. We advance normative arguments against this one-size-fits-all approach, buttressed by novel empirical research. Two policy changes are appropriate: (1) trustee compensation sh…
Judging the Fed
Judicial review of the Federal Reserve is uncommon. But this may soon change: a Court skeptical of administrative governance is poised to collide with an increasingly interventionist Fed. This Note argues that any path forward must take seriously the Fed’s role in our economic system while acknowled…
Introducing Independence to the Foreign Intelligence Surveillance Court
The Foreign Intelligence Surveillance Court’s ex parte, in camera proceedings are in tension with the Article III values of transparency and adversarialism. This Note assesses the limited participation of outside amici curiae at the court and proposes a special advocate to serve as a permanent, inde…
Not Hers Alone: Victim Standing Before the CEDAW Committee After M.W. v. Denmark
This Note argues that the CEDAW Committee should embrace and expand on its admissibility decision in M.W. v. Denmark, in which the Committee granted victim standing to a male child, by allowing any individual to allege CEDAW violations without restriction on the basis of sex, gender, or gender ident…
Reconstructing the Bankruptcy Power: An Originalist Approach
The Bankruptcy Clause delimits Congress’s bankruptcy power, but its limits changed after ratification of the Thirteenth Amendment. Before, it enabled collective creditor remedies against merchant debtors; after, it provided relief to insolvent debtors threatened by economic oppression. Recognizing t…
Congressional Influence on Military Justice
Even as Congress has gradually improved the military justice system, its members have unjustly interfered with individual cases. This Note surveys the complex history of Congress’s involvement with military justice and proposes reforms to preserve productive oversight and reduce destructive interfer…
Dismantling the Master’s House: Reparations on the American Plantation
In southeastern Louisiana, plantations still line the Mississippi River, surrounded by Black communities who experience these estates as sites of racialized harm. This Note explores the use of eminent domain to achieve land-based reparations for these descendants and draws lessons for reparations at…
Divide and Conquer? Lessons on Cooperative Federalism from a Decade of Mental Health Parity Enforcement
This ten-year retrospective on the Mental Health Parity and Addiction Equity Act (MHPAEA) traces the law’s ambivalent track record to its merely partial adoption of a cooperative-federalist framework. Drawing from enforcement data, state settlement documents, and other cooperative-federalist statute…
Title 18 Insider Trading
Securities regulation is a poor host for insider trading doctrine. This Note advances an alternative: the law of federal criminal fraud. It argues that a standalone model of Title 18 insider trading can resolve stubborn doctrinal puzzles, stamp out judge-made securities crimes, and reanchor the offe…
Voters Need to Know: Assessing the Legality of Redboxing in Federal Elections
Redboxing is the term used by campaign operatives to describe when candidates and political parties post public, online messages to share campaign strategy with super PACs. This Note provides the first descriptive account of the practice, and assesses its legality under the Federal Election Commissi…
Disability Law and HIV Criminalization
Over thirty states maintain laws that criminalize people living with HIV, exposing them to incarceration, fines, and social stigma. This Note argues that many such laws violate the ADA’s ban on public discrimination. While previous challenges to HIV-criminalization laws have failed, federal disabili…
The Problem with Public Charge
This Note seeks to identify the causes of “public charge” confusion. Mapping the exclusion’s history reveals how Congress and the courts have left the administrative state a near-impossible task: reconciling public charge with evolving commitments to public welfare. Drawing on archived Clinton-era n…
Spinning Secrets: The Dangers of Selective Declassification
Presidents often engage in what this Note calls selective declassification: the practice of declassifying documents that help advance a presidential agenda while keeping conflicting documents secret. This Note shows how selective declassification distorts public perceptions and policy choices, and o…
Labor’s Antitrust Problem: A Case for Worker Welfare
Labor and antitrust have historically been at odds: workers have faced antitrust liability for organizing, as the market power of employers has grown. Motivated by recent developments in the gig economy, this Note argues that antitrust law must preserve the welfare of workers, and proposes reforms t…
The Attorney General’s Settlement Authority and the Separation of Powers
Can the federal government make policy when it settles litigation? Surprisingly, yes. This Note offers a comprehensive account of the Department of Justice’s authority to enter into policymaking settlements, and a new separation-of-powers defense of that authority. Ultimately, policymaking settlemen…
Condemning Worship: Religious Liberty Protections and Church Takings
This Note explores how courts interpret religious liberty protections when the government seeks to condemn property owned by faith communities (“church takings”), revealing how judges discriminate between types of religious property. While protecting houses of worship, courts allow condemning author…
The Law of Presidential Transitions
Presidents-elect and presidential transition teams wield exceptional power, from nominating cabinet secretaries to drafting policies that often become law. This Note argues that, despite these powers, presidential transitions are essentially ungoverned. It highlights the governance and ethical risks…
Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences
Because bodily liberty is a fundamental right, the government may confine someone only to the extent necessary to further a compelling interest. Courts limit pretrial detention and civil commitment accordingly but exempt criminal sentences without explanation. This Note argues that carceral sentence…
Rulemaking § 101
This Note chronicles the Patent Office’s use of guidance to reduce the judicially created uncertainty that surrounds patentable subject matter. It argues that these guidance documents closely resemble legislative rulemaking and thus push the boundaries of the Office’s current authority.
Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners
Current First Amendment doctrine permits courts to judge a claimant’s religious sincerity in a free-exercise suit but prohibits them from adjudicating religious questions. This Note challenges that understanding by explaining and evaluating how courts treat Muslim prisoner accommodation claims in pr…
Tracing the evolution of territorial courts over the last half century, this Note argues that prevailing justifications for withholding life tenure from federal judges in U.S. territories are now obsolete. It foregrounds the central role that the Judicial Conference has played in preserving two sepa…
A Federal Builder’s Remedy for Exclusionary Zoning
This Note argues that when a local zoning body blocks construction of low-income housing in order to exclude the poor, courts should provide a constitutional remedy. After articulating a doctrinal path through the Due Process Clause, this Note makes the normative case for this “builder’s remedy” for…
When the law’s requirements are uncertain, potential remedies for a violation of the law influence how actors behave within that zone of uncertainty. This Note proposes a new class of remedies to handle such problems. It argues that “reflective remedies” encourage socially optimal behavior when cert…
Better Together? The Peril and Promise of Aggregate Litigation for Trafficked Workers
Procedural rules often prevent classes of trafficked workers from vindicating their rights in court. This Note examines the difficulties that face labor-trafficking class actions and proposes a new litigation strategy. That strategy urges state attorneys general to bring a more effective kind of agg…
Public Rights of First Refusal
This Note provides the first study of public rights of first refusal, an underappreciated land-use power that governments use to acquire property. It argues that these rights can, under certain conditions, provide a means of balancing individual and collective needs that is superior to both eminent …
Keeping Litigation at Home: The Role of States in Preventing Unjust Choice of Forum
Contractual choice-of-forum clauses pose significant obstacles to individuals’ claims against corporations. But states can and do enact legislation protecting vulnerable parties from unjust forum selection. This Note discusses the breadth of existing state anti-choice-of-forum statutes and argues th…
The #MeToo Movement Migrates to M&A Boilerplate
A new provision in M&A boilerplate addresses the business risk of sexual-harassment allegations in the #MeToo era. While the #MeToo clause was designed to maximize corporate profit, this Note argues for its potential to both reduce buy-side risk and to incentivize companies to maintain effective rep…
Constraint Through Independence
Skepticism of the federal bureaucracy has inspired growing calls to cabin the independence of certain agency actors, including administrative law judges (ALJs). Through a holistic assessment of NLRB case law, including a novel empirical study, this Note argues that eliminating ALJ independence would…
Miss-Conceptions: Abortifacients, Regulatory Failure, and Political Opportunity
Scientific evidence overwhelmingly shows that the categorization of Plan B and other emergency contraceptives as “abortifacient,” or abortion-inducing, is incorrect. This Note argues that policy-makers and judges entrench this misunderstanding, incorrectly and unnecessarily blurring the lines betwee…
Disparate-Impact Liability for Policing
This Note develops the first analysis of the Safe Street Act’s (SSA’s) antidiscrimination power and argues that the SSA imposes disparate-impact liability on police departments. When conventional legal tools have proven inadequate in curbing disparate policing, the SSA presents an unrecognized path …
Jury Selection as Election: A New Framework for Peremptory Strikes
The ability of peremptory strikes to contribute to impartial juries has long been debated. This Note argues that both defenders and critics have overlooked an important value served by peremptory strikes beyond impartiality: democratic legitimacy. Just as elections help legitimate the state’s coerci…
Zoned Out: How Zoning Law Undermines Family Law’s Functional Turn
A fatal conflict in the legal definition of family lurks at the intersection of family law and zoning law. Family law has increasingly embraced “functional families,” those whose bonds can be traced to cohabitation, while zoning law has narrowed to restrict residency to individuals related by blood,…
Beyond Nudging: Debiasing Consumers Through Mixed Framing
Mixed framing juxtaposes the positive and negative attributes of a product. For example, a label using mixed framing might characterize food as “90% fat-free / 10% fat.” This Note advocates that regulators embrace mixed framing as a middle ground in the battle between paternalistic and libertarian a…
Special Meetings and Consent Solicitations: How the Written-Consent Right Uniquely Empowers Shareholders
Despite a decline in takeover defenses, provisions barring shareholders from acting by written consent remain intact. Companies frequently argue that the written-consent right is unnecessary because it is equivalent to the right to call a special meeting. This Note shows why that equivalence is fals…
Making Black Lives Matter: Properly Valuing the Rights of the Marginalized in Constitutional Torts
Black lives are systematically undervalued by constitutional enforcement remedies. Courts and scholars have unquestioningly adopted tort law’s corrective-justice scheme for § 1983 suits. But corrective justice is unsatisfactory in a context where the government and private parties frequently interac…
Prosecuting Corporate Crime when Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review
Some corporations have become so large or so systemically important that the government cannot credibly threaten efficient criminal sanctions. This Note presents a microeconomic model of corporate criminal prosecution for Too-Big-to-Jail businesses and offers several prosecutorial reforms to help ho…
Separation of Prosecutors
The decentralized structure of the federal criminal-justice system has generated significant criticism. This Note offers a novel explanation and defense of this structure, arguing that decentralization is a feature of congressional design, not a bug of congressional abdication.
Monuments to the Confederacy and the Right to Destroy in Cultural-Property Law
The recent protests over Confederate memorials illustrate a gap in cultural-property law. Because cultural-property law presses inexorably toward preservation, it has no framework for addressing when a nation might be justified in destroying its own cultural property. This Note provides a framework …
Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony
In the wake of Hurricanes Irma and Maria, Puerto Ricans were faced with a stark reminder of their second-class citizenship. This Note traces the development of the island’s civil rights movement through the little-known history of the Puerto Rico Legal Project, revealing the power (and limits) of ri…
A Legal Sanctuary: How the Religious Freedom Restoration Act Could Protect Sanctuary Churches
Over the last three decades, the doctrine and political valence of protections for religious exercise have shifted significantly. This Note analyzes how those changes provide new legal protections for sanctuary churches, demonstrating how religious freedom statutes can protect marginalized individua…
An Avoidance Canon for Erie: Using Federalism to Resolve Shady Grove’s Conflicts Analysis Problem
Since the Supreme Court's tripartite split in Shady Grove, federal courts have struggled to determine whether a Federal Rule of Civil Procedure and a state law conflict under Erie. This Note proposes a novel federalism-based avoidance canon to identify such conflicts.
Congressional Power over Office Creation
This Note argues that the Constitution gives Congress exclusive authority over office creation. This exclusive power has important and surprising implications for a series of live constitutional questions, such as the constitutionality of qualifications clauses, for-cause removal provisions, and tem…
Timing Judicial Review of Agency Interpretations in Chevron’s Shadow
Administrative finality jurisprudence is mired in a doctrinal morass. Specifically, courts have not converged on a finality doctrine for interpretative rules. This Note integrates an historical analysis of the Administrative Procedure Act with the revolution that Chevron deference fostered to provid…
Reviving the Power of the Purse: Appropriations Clause Litigation and National Security Law
The President is increasingly the epicenter of national security decision making, a development in tension with the shared war-making power in the Constitution. This Note explores how Congress could use an Appropriations Clause lawsuit to reassert its constitutional prerogative against the President’…
Attorney for the Day: Measuring the Efficacy of In-Court Limited-Scope Representation
Using a unique dataset, this Note studies the impact of limited-scope representation and finds that unbundling legal services is an effective way to combat the civil-litigation justice gap. Based on those results, the Note recommends solutions that will both serve those who lack counsel and respect …
Dodd-Frank Is a Pigouvian Regulation
Although commentators have criticized Dodd-Frank for not solving the problem of "too big to fail" banks, this Note identifies one promising feature of the law. As a "Pigouvian regulation," Dodd-Frank imposed compliance costs that incentivized banks to divest risky assets while providing regulators t…
Spending Money To Make Money: CBO Scoring of Secondary Effects
This Note discusses how the budget scorekeeping guidelines prevent the Congressional Budget Office from considering savings from program integrity and enforcement when it scores proposed legislation. The Note argues that that limitation leads Congress to irrationally underfund those activities and p…
Courts and agencies are traditionally understood to interact in two ways: judicial review and agency determinations of which cases reach federal courthouses. This Note identifies and evaluates a third dynamic by which agencies across the federal bureaucracy shape how cases proceed in court using the…
Democratizing the FLSA Injunction: Toward a Systemic Remedy for Wage Theft
This Note identifies a remedial shortcoming in the Fair Labor Standards Act: the absence of private injunctive relief. It identifies this oversight as a vestige of a New Deal-era presumption of agency-centered enforcement and proposes a new way to vindicate workers’ rights through private enforcemen…
Competing Exclusionary Rules in Multistate Investigations: Resolving Conflicts of State Search-and-Seizure Law
The existing approaches to conflicts of state search-and-seizure laws are either theoretically or practically flawed. When a search implicates multiple states’ laws, courts should undertake a two-step analysis. First, they should determine whether a conflict exists; and second, they should apply the…
Presidential Administration and the Durability of Climate-Consciousness
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…
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)…
Reinterpreting Corporate Inversions: Non-Tax Competitions and Frictions
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…
Ban the Address: Combating Employment Discrimination Against the Homeless
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…
What’s Wrong with Intentionalism? Transformative Use, Copyright Law, and Authorship
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…
Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law
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 …
Prosecuting Gender-Based Persecution: The Islamic State at the ICC
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…
Private Enforcement of the Affordable Care Act: Toward an "Implied Warranty of Legality" in Health Insurance
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…
Amazon’s Antitrust Paradox
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…
Playing Nicely: How Judges Can Improve Dodd-Frank and Foster Interagency Collaboration
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…
State Legislative Drafting Manuals and Statutory Interpretation
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…
The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations
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…
Founding-Era Jus Ad Bellum and the Domestic Law of Treaty Withdrawal
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 …
The Modification of Decrees in the Original Jurisdiction of the Supreme Court
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…
Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone
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 …
How To Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes
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 …
Will Putting Cameras on Police Reduce Polarization?
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…
Federal Questions and the Domestic-Relations Exception
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…
Present at Antitrust’s Creation: Consumer Welfare in the Sherman Act’s State Statutory Forerunners
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…
Fifty Shades of Gray: Sentencing Trends in Major White-Collar Cases
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…
Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court
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…
Reconciling the Crime of Aggression and Complementarity: Unaddressed Tensions and a Way Forward
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…
Financing the Class: Strengthening the Class Action Through Third-Party Investment
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…
Saving 60(b)(5): The Future of Institutional Reform Litigation
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…
A Reassessment of Common Law Protections for "Idiots"
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…
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…
The Right To Be Rescued: Disability Justice in an Age of Disaster
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…
Expanding Conscience, Shrinking Care: The Crisis in Access to Reproductive Care and the Affordable Care Act’s Nondiscrimination Mandate
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…
Executive Orders in Court
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 …
Mitigating Jurors' Racial Biases: The Effects of Content and Timing of Jury Instructions
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 …
How To Eat an Elephant: Corporate Group Structure of Systemically Important Financial Institutions, Orderly Liquidation Authority, and Single Point of Entry Resolution
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…
Public Actors, Private Law: Local Governments’ Use of Covenants To Regulate Land Use
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…
Against the Tide: Connecticut Oystering, Hybrid Property, and the Survival of the Commons
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…
Perceptions of Taxing and Spending: A Survey Experiment
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…
Civil Servant Suits
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…
A “Full and Fair” Discussion of Environmental Impacts in NEPA EISs: The Case for Addressing the Impact of Substantive Regulatory Regimes
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…
Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem
The DoubleJeopardy Clause prohibits the government from prosecuting or punishing adefendant multiple times for the same offense. Double jeopardy protections, however, come with a major exception. Under the dual sovereignty doctrine, different sovereign states can prosecute a defendant multiple times…
Measuring the Fortress: Explaining Trends in Supreme Court and Circuit Court Dictionary Use
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…
Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law
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…
The Rise of Institutional Mortgage Lending in Early Nineteenth-Century New Haven
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…
The Growth of Litigation Finance in DOJ Whistleblower Suits: Implications and Recommendations
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 …
Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency
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…
Domestic Violence Asylum After Matter of L-R-
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…
Dignity as a Value in Agency Cost-Benefit Analysis
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…
Early Release in International Criminal Law
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…
Ex Ante Review of Leveraged Buyouts
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…
Stop Ignoring Pork and Potholes: Election Law and Constituent Service
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…
An Offense-Severity Model for Stop-and-Frisks
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…
Open Carry for All: Heller and Our Nineteenth-Century Second Amendment
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…
Regulating Sexual Orientation Change Efforts: The California Approach, Its Limitations, and Potential Alternatives
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 …
The Mens Rea of Accomplice Liability: Supporting Intentions
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…
Why Motives Matter: Reframing the Crowding Out Effect of Legal Incentives
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…
Vindicating Vindictiveness: Prosecutorial Discretion and Plea Bargaining, Past and Future
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…
The Case for Tax: A Comparative Approach to Innovation Policy
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…
Should the Ministerial Exception Apply to Functions, Not Persons?
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…
How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change
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…
Lawmaking in the Shadow of the Bargain: Contract Procedure as a Second-Best Alternative to Mandatory Arbitration
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…
Debtor’s Dilemma: The Economic Case for Ride-Through in the Bankruptcy Code
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…
Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes
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…
Mere Negligence or Abandonment? Evaluating Claims of Attorney Misconduct After Maples v. Thomas
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…
The Majoritarian Filibuster
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…
Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms
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…
Targeting the Twenty-First-Century Outlaw
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…
Confronting Crawford v. Washington in the Lower Courts
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…
Bankruptcy-Proof Finance and the Supply of Liquidity
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…
The Artist as Brand: Toward a Trademark Conception of Moral Rights
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 …
Sales Tax Not Included: Designing Commodity Taxes for Inattentive Consumers
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…
Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery
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 …
Mandatory and Fair? A Better System of Mandatory Arbitration
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…
Recognizing Character: A New Perspective on Character Evidence
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
Cross-National Patterns in FCPA Enforcement
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
The Origins of the Elected Prosecutor
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…
The Twenty-Sixth Amendment Enforcement Power
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 …
“Done in Convention”: The Attestation Clause and the Declaration of Independence
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…
Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on Defendants’ Ability To Bring Successful Padilla Claims
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…
Reconciling Punitive Damages with Tort Law’s Normative Framework
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…
Common Control and the Delineation of the Taxable Entity
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…
Baseline Framing in Sentencing
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…
The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement
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
Publius and the Petition: Doe v. Reed and the History of Anonymous Speech
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…
Publius and the Petition: Doe v. Reed and the History of Anonymous Speech
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…
Judicious Influence: Non-Self-Executing Treaties and the Charming Betsy Canon
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…
An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities
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…
The Economic Logic of the Lease/Loan Distinction in Bankruptcy
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…
Deal or No Deal? Remedying Ineffective Assistance of Counsel During Plea Bargaining
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…
The Impact of Teacher Collective Bargaining Laws on Student Achievement: Evidence from a New Mexico Natural Experiment
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 pe…
How To Review State Court Determinations of State Law Antecedent to Federal Rights
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 opinio…
Defining Family in Immigration Law: Accounting for Nontraditional Families in Citizenship by Descent
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…
Securities Regulation in the Shadow of the Antitrust Laws: The Case for a Broad Implied Immunity Doctrine
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…
Citizens Informed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake of Citizens United
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…
Against Insurance Recission
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 and…
Uniform Ethical Regulation of Federal Prosecutors
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…
The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance
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 autho…
Disenfranchising Shareholders: The Future of Blasius After Mercier v. Inter-Tel
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 from …
Accountability, Deference, and the Skidmore Doctrine
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…
Bankruptcy as Constitutional Property: Using Statutory Entitlement Theory To Abrogate State Sovereign Immunity
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 proceedings…
A Free Pass for Foreign Firms? An Assessment of SEC and Private Enforcement Against Foreign Issuers
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…
Eminent Domain Due Process
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…
The Significance of Signatures: Why the Framers Signed the Constitution and What They Meant by Doing So
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 i…
Maximizing Participation Through Campaign Finance Regulation: A Cap and Trade Mechanism for Political Money
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…
Strategic or Sincere? Analyzing Agency Use of Guidance Documents
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…
Disastrously Misunderstood: Judicial Deference in the Japanese-American Cases
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…
Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s
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…
When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation
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 with…
Childbearing, Childrearing, and Title VII: Parental Leave Policies at Large American Law Firms
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…
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…
The Law of Describing Accidents: A New Proposal for Determining the Number of Occurrences in Insurance
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…
Racial Classification in Assisted Reproduction
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…
Corruption in Our Courts: What It Looks Like and Where It Is Hidden
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…
Popular Constitutionalism, Civic Education, and the Stories We Tell Our Children
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…
Is There a Place for Religious Charter Schools?
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…
Gangs in the Military
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…
Privatizing Democracy: Promoting Election Integrity Through Procurement Contracts
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…
The Anders Brief in Appeals from Civil Commitment
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…
John Doe Subpoenas: Toward a Consistent Legal Standard
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…
Comparative Corporate Criminal Liability: Exploring the Uniquely American Doctrine Through Comparative Criminal Procedure
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…
When Parents Aren't Enough: External Advocacy in Special Education
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…
Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment
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 …
Weight Discrimination: One Size Fits All Remedy?
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…
Medicaid and Beneficiary Enforcement: Maintaining State Compliance with Federal Availability Requirements
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…
The Case Against Automatic Reversal of Structural Errors
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…
Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling
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…
Profits as Commercial Success
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…
Enforcing the Treaty Rights of Aliens
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…
Insurance Law’s Hapless Busybody: A Case Against the Insurable Interest Requirement
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…
Concession Agreements:From Private Contract to Public Policy
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…
The Canons of War
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…
"I Did Not Come Here To Defend Myself": Responding to War on Terror Detainees' Attempts To Dismiss Counsel and Boycott the Trial
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…
Realizing the Potential of the Joint Harassment/Retaliation Claim
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…
Designing a Constitution-Drafting Process: Lessons from Kenya
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 …
Searching for Balance in the Aftermath of the 2006 Takings Initiatives
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 …
Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury
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…
Tenant Screening Thirty Years Later: A Statutory Proposal To Protect Public Records
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…
Private Law or Social Norms? The Use of Restrictive Covenants in Beaver Hills
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…
Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext
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…
Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform
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 …
Living History: How Homeowners in a New Local Historic District Negotiate Their Legal Obligations
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…
Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties
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 …
Sentencing Organizations After Booker
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 …
Environmental Economics: A Market Failure Approach to the Commerce Clause
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…
Contractual Waiver of Corporate Attorney-Client Privilege
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, …
From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce
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…
Making the No Fly List Fly: A Due Process Model for Terrorist Watchlists
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…
The Unforeseen Effects of Georgia v. Ashcroft on the Latino Community
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…
For-Profit and Nonprofit Charter Schools: An Agency Costs Approach
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 …
Rehabilitating Rehab Through State Building Codes
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…
A Fair Trial Remedy for Brady Violations
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…
Grutter at Work: A Title VII Critique of Constitutional Affirmative Action
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…
Securing Informationships: Recognizing a Right to Privity in Fourth Amendment Jurisprudence
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…
The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade
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…
Civil Rights, Antitrust, and Early Decision Programs
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…
The Mosaic Theory, National Security, and the Freedom of Information Act
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…
Bridging the Book-Tax Accounting Gap
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…
Bailing Out Congress: An Assessment and Defense of the Air Transportation Safety and System Stabilization Act of 2001
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…
The Creation of Homeownership: How New Deal Changes in Banking Regulation Simultaneously Made Homeownership Accessible to Whites and Out of Reach for Blacks
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…
A Walk Along Willard: A Revised Look at Land Use Coordination in Pre-Zoning New Haven
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…
Limiting Coercive Speech in Class Actions
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…
Regulation by Software
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 dis…
The World Bank and the Internalization of Indigenous Rights Norms
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…
Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts
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 …
Applying Section 5: Tennessee v. Lane and Judicial Conditions on the Congressional Enforcement Power
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…
Judging Partisan Gerrymanders Under the Elections Clause
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…
More Equal than Others: Defending Property-Contract Parity in Bankruptcy
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…
The Character of Discrimination Law: The Incompatibility of Rule 404 and Employment Discrimination Suits
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…
Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court's Docket
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…
Patents, Paradigm Shifts, and Progress in Biomedical Science
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 …
Compatibility and Interconnection Pricing in the Airline Industry: A Proposal for Reform
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…
An Article I, Section 7 Perspective on Administrative Law Remedies
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…
Emergency Power and the Militia Acts
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…
Appurtenancy Reconceptualized: Managing Water in an Era of Scarcity
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…
What Feeney Got Right: Why Courts of Appeals Should Review Sentencing Departures De Novo
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…
"Hostility to the Presence of Women": Why Women Undermine Each Other in the Workplace and the Consequences for Title VII
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…
Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land
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…
Taxing Political Donations: The Case for Corrective Taxes in Campaign Finance
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…
Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond
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…
Private Voucher Schools and the First Amendment Right To Discriminate
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…
How Judges Overrule: Speech Act Theory and the Doctrineof Stare Decisis
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 …
Sacrifice, Atonement, and Legal Ethics
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…
Leaving FISA Behind: The Need To Return to Warrantless Foreign Intelligence Surveillance
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…
Limits of Competition: Accountability in Government Contracting
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…
A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections
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…
Insuring Against Terror?
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…
Billboards and Big Utilities: Borrowing Land-Use Concepts To Regulate "Nonconforming" Sources Under the Clean Air Act
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…
Unions and the Duty of Good Faith in Employment Contracts
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…
A Site Where Hackers Are Welcome: Using Hack-In Contests To Shape Preferences and Deter Computer Crime
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 …
Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts To Protect Abortion Patients and Staff
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…
Same-Sex Privacy and the Limits of Antidiscrimination Law
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 …
Limiting Locke: A Natural Law Justification for the Fair Use Doctrine
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…
Why Contempt Is Different: Agency Costs and "Petty Crime" in Summary Contempt Proceedings
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 …
The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism
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…
Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination
111 Yale L.J. 2289 (2002)
Inventing a Nonexclusive Patent System
111 Yale L.J. 2251 (2002)
Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification After Bushell's Case
111 Yale L.J. 1815 (2002)
Reconceptualizing VAWA's "Animus" for Rape in States' Emerging Post-VAWA Civil Rights Legislation
111 Yale L.J. 1417 (2002)
To Promote the General Welfare: The Republican Imperative To Enhance Citizenship Welfare Rights
111 Yale L.J. 1457 (2002)
Proxy Consent to Organ Donation by Incompetents
111 Yale L.J. 1215 (2002)
Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy
111 Yale L.J. 993 (2002)
Tortious Interference and the Law of Contract: The Case for Specific Performance Revisited
111 Yale L.J. 735 (2001)
Abolition Without Deliverance: The Law of Connecticut Slavery 1784-1848
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 …
Jury Secrecy During Deliberations
110 Yale L.J. 1493 (2001)
Connecticut Retrenches: A Proposal To Save the Affordable Housing Appeals Procedure
110 Yale L.J. 1247 (2001)
"A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective
110 Yale L.J. 1045 (2001)
State Courts, Citizen Suits, and the Enforcement of Federal Environmental Law by Non-Article III Plaintiffs
110 Yale L.J. 1003 (2001)
A Labor Theory of Legal Parenthood
110 Yale L.J. 691 (2001)
The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age
110 Yale L.J. 333 (2000)
History as Precedent: The Post-Originalist Problem in Constitutional Law
110 Yale L.J. 121 (2000)