The Yale Law Journal



Prisons as Laboratories of Antidemocracy

Brandon Hasbrouck

Jeffrey Bellin's Mass Incarceration Nation robustly analyzes how state and federal policies have combined to drive up prison populations. Mass incarceration represents a failure of democracy, but the repressive policies of American prisons represent an even graver threat as laboratories of antidemoc…


What We Ask of Law

Aziz Z. Huq

This Book Review asks what comprises a well-functioning legal system in light of new evidence of how law operated across a wide historical panorama. Such contextualization has implications for a sound working definition of law, understanding law’s relation to the rule of law, and law’s role in emanc…


Rights, Structure, and Remediation

Don R. Willett & Aaron Gordon

In The Collapse of Constitutional Remedies, Aziz Huq contends federal courts exacerbate societal inequities by overzealously enforcing constitutional limits on government regulation while neglecting individual-rights violations. Though some of Huq’s criticisms are spot-on, others are overstated, and…


Capitalist Development, Labor Law, and the New Working Class

Brishen Rogers

Gabriel Winant’s The Next Shift charts the transformation of Pittsburgh’s political economy from World War II through 2008. This Review suggests that the long-term process of capitalist development—which is central to Winant’s account—also helped to reshape our labor law over the same period. 



Unwritten Law and the Odd Ones Out

Vincent S.J. Buccola

In a new book, Douglas Baird argues that the values of reorganization professionals, more than statute or case law, define the norms of corporate bankruptcy. This Book Review shows how rule-by-reorganizers can explain Chapter 11's troubling tendency to disregard the interests of legacy creditors. 


Writing About the Past That Made Us: Scholars, Civic Culture, and the American Present and Future

Annette Gordon-Reed

This Review assesses the arguments made in Akhil Amar’s The Words That Made Us about the impoverished nature of our current discourse on our constitutional system of government.



(Re)Framing Race in Civil Rights Lawyering

Angela Onwuachi-Willig & Anthony V. Alfieri

This Review examines the significance of Henry Louis Gates, Jr.’s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation’s legal system and for the regulation of race in the legal profession.


Reevaluating Legal Theory

Jeff Pojanowski

Law is a social practice that pursues a moral purpose. Analyzing Professor Julie Dickson’s Evaluation and Legal Theory, this Review brings the natural-law tradition into conversation with contemporary philosophy of social science to seek an approach to general jurisprudence that respects both the fa…


Truer U.S. History: Race, Borders, and Status Manipulation

Sam Erman

Daniel Immerwahr’s How to Hide an Empire rewrites U.S. history with empire at the core. Building on that accomplishment, this Review sketches a U.S. legal history of indigeneity, race, slavery, immigration, and empire in which legal “status manipulation” accomplished and hid the myriad wrongs done.


Examining the Case for Socialized Law

Myriam Gilles & Gary Friedman

In Equal Justice: Fair Legal Systems in an Unfair World, Frederick Wilmot-Smith argues that it is only by deprivatizing markets for legal services that we can ever hope to achieve equal justice. This Book Review explains why his bold prescription is worthy of serious examination and critical debate.


The Law of Informational Capitalism

Amy Kapczynski

Informational capitalism brings new dangers of surveillance and manipulation—but also of accelerating monopoly, inequality, and democratic disempowerment. Examining two important new books on the topic, this Review maps the law and political economy of informational capitalism, a domain of rising pr…


Fidelity and Construction

Amul R. Thapar & Joe Masterman

Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” This Review explores how Lessig’s theory of fidelity to role can inform an originalist understanding of constitutional construction.


The Politics of Decarceration

Rebecca Goldstein

Can the political process help undo mass incarceration? This Book Review argues that changes in the two major political parties, the results of recent state-level elections, and changes in public opinion all provide reason to hope that democratic politics is compatible with ending mass incarceration…


Equality of Opportunity and the Schoolhouse Gate

Michelle Adams & Derek W. Black

Cases involving schools have implicated nearly every major civil right. In this Review of Justin Driver’s The Schoolhouse Gate, however, Professors Michelle Adams and Derek Black demonstrate that the right to equal educational opportunity is the tie that binds together the Supreme Court’s many dispa…


The High Stakes of Low-Level Criminal Justice

Alexandra Natapoff

Alexandra Natapoff reviews Misdemeanorland, summarizing the book’s key contributions and extending its insights about New York City’s system of misdemeanor managerial social control to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process.


State Courts and Constitutional Structure

Goodwin Liu

Justice Goodwin Liu of the California Supreme Court reviews Judge Jeffrey Sutton’s new book,  51 Imperfect Solutions: The Making of American Constitutional Law.



The New Jim Crow Is the Old Jim Crow

Katie R. Eyer

A vast divide exists in the national imagination between the racial struggles of the civil rights era and those of the present. Drawing on the work of Elizabeth Gillespie McRae and Jeanne Theoharis, this Review argues that complexifying this oversimplified history is critical to contemporary racial …


Who Locked Us Up? Examining the Social Meaning of Black Punitiveness

Darren Lenard Hutchinson

In this Review of James Forman, Jr.’s Pulitzer Prize-winning Locking Up Our Own: Crime and Punishment in Black America, Darren Hutchinson reconciles Forman’s research with antiracist accounts of U.S. crime policy. Literature on implicit bias, social dominance orientation, and right-wing authoritaria…


Brief Lives

Laura Kalman

In this Review of Owen Fiss’s book, Pillars of Justice: Lawyers and the Liberal Tradition, Laura Kalman explores Fiss's views on the legal figures appearing in the book. In addition, Kalman discusses the criticisms of Brown v. Board of Education and legal liberalism that are missing in Fiss’s accoun…


Pregnancy, Poverty, and the State

Michele Goodwin & Erwin Chemerinsky

In this Review of Khiara Bridges’s book, The Poverty of Privacy Rights, Michele Goodwin and Erwin Chemerinsky argue that state legislatures, as well as the federal government and courts, express moral disregard and even outright contempt for poor women in multitudinous ways that include, but extend …


How Long Is History’s Shadow?

Anita S. Krishnakumar

Josh Chafetz, in Congress’s Constitution, urges Congress to rehabilitate its underused but important nonlegislative powers. In this Book Review, Anita Krishnakumar argues that while reinvigorating these powers is a good idea in theory, Congress may not have the ability or inclination to do so. 


The Original Theory of Constitutionalism

David Singh Grewal & Jedediah Purdy

The conflict between various versions of “originalism” and “living constitutionalism” has long defined the landscape of constitutional theory and practice. In this Review of Richard Tuck’s The Sleeping Sovereign, David Grewal and Jedediah Purdy adapt the sovereignty-government distinction at the hea…


Privacy’s Trust Gap: A Review

Neil Richards & Woodrow Hartzog

Obfuscation: A User’s Guide for Privacy and Protest By Finn Brunton and Helen Nissenbaum Cambridge and London: The MIT Press 2015 author. Neil Richards is Thomas and Karole Green Professor of Law, Washington University School of Law; Affiliate Scholar, The Center for Internet…


Systemic Triage: Implicit Racial Bias in the Criminal Courtroom

L. Song Richardson

Crook County: Racism and Injustice in America’s Largest Criminal Court By Nicole van cleve Stanford university press, april 2016 author. Professor of Law, U.C. Irvine School of Law. A.B. Harvard College, J.D. Yale Law School. I wish to thank Rick Banks, Erwin Chemerins…


A Review

Eric A. Posner

The Court and the World: American Law and the New Global Realities BY STEPHEN BREYER, ALFRED A. KNOPF, 2015 author. Kirkland & Ellis Distinguished Service Professor, University of Chicago Law School. Thanks to Will Baude and Curt Bradley for helpful comments, Kathrine Gutierrez f…


Eighteen Years On: A Re-Review

Richard A. Posner

The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment BY WILLIAM N. ESKRIDGE, JR. NEW YORK: THE FREE PRESS, 1996. author. Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School. In 1992 I published a book called…


The Banality of Racial Inequality

Richard R.W. Brooks

Reproducing Racism: How Everyday Choices Lock in White Advantage BY DARIA ROITHMAYR NEW YORK: NYU PRESS, 2014, PP. 205. $25.00. author. Charles Keller Beekman Professor of Law at Columbia Law School and Professor (Adjunct) of Law at Yale Law School. I…


Constitutions of Hope and Fear

Frederick Schauer

Citizens Divided: Campaign Finance Reform and the Constitution BY ROBERT C. POST CAMBRIDGE, MA: HARVARD UNIVERSITY PRESS, 2014, PP. 264. $29.95. author. David and Mary Harrison Distinguished Professor of Law, University of Virginia. I am gra…


Judging Justice on Appeal

Marin K. Levy

A review of Injustice on Appeal: The United States Courts of Appeals in Crisis


Why Protect Religious Freedom?

Michael W. McConnell

Why Tolerate Religion? BY BRIAN LEITER PRINCETON, NJ: PRINCETON UNIVERSITY PRESS, 2012, PP. 208. $24.95. author. Richard and Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institution. The auth…


Next-Generation Civil Rights Lawyers: Race and Representation in the Age of Identity Performance

Anthony V. Alfieri & Angela Onwuachi-Willig

122 Yale L.J. 1484 (2013).

This Book Review addresses two important new books, Professor Kenneth Mack’s Representing the Race: The Creation of the Civil Rights Lawyer and Professors Devon Carbado and Mitu Gulati’s Acting White? Rethinking Race in Post-Racial America, and utilizes their insights to bo…


Lightning in the Hand: Indians and Voting Rights

Pamela S. Karlan

120 Yale L.J. 1420 (2011). 

American Indians and the Fight for Equal Voting Rights

By Laughlin McDonald

Norman, OK: University of Oklahoma Press, 2010, pp. 347. $55.00.


The Common School Before and After Brown: Democracy, Equality, and the Productivity Agenda

Rosemary C. Salomone

120 Yale L.J. 1455 (2011). 

In Brown's Wake: Legacies of America's Educational Landmark

By Martha Minow

New York, NY: Oxford University Press, 2010, pp. 320. $24.95.


Multiplicity in Federalism and the Separation of Powers

Josh Chafetz

120 Yale L.J. 1084 (2011). 

The Ideological Origins of American Federalism

By Allison L. Lacroix

Cambridge, MA: Harvard University Press, 19th ed., 2010, PP. 312. $35.00.


The Bluebook Blues

Richard A. Posner

120 Yale L.J. 850 (2011). 

The Bluebook: A Uniform System of Citation

By the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and The Yale Law Journal

Cambridge, Mass.: The Harvard Law Review Association, 19th ed., 2010, pp. xvii, 511. $32.00 (paperbound).


The Best Laid Plans

Frederick Schauer

120 Yale L.J. 586 (2010). 


Unbundling Homeownership: Regional Reforms from the Inside Out

Nicole Stelle Garnett

119 Yale L.J. 1904 (2010). 


Contract Interpretation Redux

Alan Schwartz & Robert E. Scott

119 Yale L.J. 926 (2010). 

Contract interpretation remains the largest single source of contract litigation between business firms. In part this is because contract interpretation issues are difficult, but it also reflects a deep divide between textualist and contextualist theories of interpretatio…


Debunking Blackstonian Copyright

Shyamkrishna Balganesh

118 Yale L.J. 1126 (2009).


Copyright’s Paradox

NEW YORK, NY: OXFORD UNIVERSITY PRESS, 2008, PP.ix, 274. $34.95.



Giving the Constitution to the Courts

Jamal Greene

117 Yale L.J. 886 (2008).




Wealth Without Markets?

Lior Jacob Strahilevitz

116 Yale L.J. 1472 (2007) 

The Wealth of Networks: How Social Production Transforms Markets and Freedom




Cosmopolitan Law?

Noah Feldman

116 Yale L.J. 1022 (2007)


Restoring the Right Constitution?

Eduardo Penalver

116 Yale L.J. 732 (2007)


Save the Cities, Stop the Suburbs?

Nicole Stelle Garnett

116 Yale L.J. 598 (2006)

Sprawl: A Compact History

The City: A Global History


The Pragmatic Passion of Stephen Breyer

Paul Gewirtz

115 Yale L.J. 1675 (2006)

Now in his twelfth year as a Supreme Court Justice, Stephen Breyer has written an important book, Active Liberty, which crystallizes a fundamental set of beliefs about the American Constitution and his role as a Justice. Taking Active Liberty as the entry point, this piece p…


Justice Breyer Throws Down the Gauntlet

Richard A. Posner

115 Yale L.J. 1699 (2006)

A Supreme Court Justice writing a book about constitutional law is like a dog walking on his hind legs: The wonder is not that it is done well but that it is done at all. The dog's walking is inhibited by anatomical limitations, the Justice's writing by political ones. Supre…


Justice Breyer's Democratic Pragmatism

Cass R. Sunstein

115 Yale L.J. 1719 (2006)

As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" t…


Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction

Tom R. Tyler

The "CSI effect" is a term that legal authorities and the mass media have coined to describe a supposed influence that watching the television show CSI: Crime Scene Investigation has on juror behavior. Some have claimed that jurors who see the high-quality forensic evidence presented on CSI raise th…


Who Will Find the Defendant if He Stays with His Sheep? Justice in Rural China

Frank K. Upham

114 Yale L.J. 1675 (2005)

In Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu [Sending Law to the Countryside: Research on China's Basic-Level Judicial System], Dean Zhu Suli of Beijing University Law School claims that Chinese legal scholars uncritically accept foreign models and rule-of-law ideol…


Property in All the Wrong Places?

Carol M. Rose

114 Yale L.J. 991 (2005)

In Who Owns Native Culture? and Public Lands and Political Meaning, an anthropologist and a historian document an ever-increasing deployment of property categories in two quite different domains: native people's recent cultural claims in the first book and the longer story o…


Judicial Power and Civil Rights Reconsidered

David E. Bernstein & Ilya Somin

114 Yale L.J. 593 (2004)

Michael Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of…


The Law and Economics of Critical Race Theory

Devon W. Carbado & Mitu Gulati

112 Yale L.J. 1757 (2003)

Our story is about the production and consumption of racial prototypes. The regulatory thrust of homogeneity creates both a demand for, and a supply of, specific racial prototypes--outsiders who can fit within predominantly white workplace cultures without "disturb[ing] the …


The Politics of Corporate Governance Regulation

Peter A. Gourevitch

112 Yale L.J. 1829 (2003)

Why do corporate governance systems differ quite substantially around the world? The American model supervises managers through a board representing a diffuse mass of external shareholders whose rights are defended by a variety of institutional rules (such as those governing…


The Grounds of Welfare

Jules L. Coleman

112 Yale L.J. 1511 (2003)

Louis Kaplow and Steven Shavell are talented and distinguished legal academics who for the past several years have been working jointly on a massive project in normative law and economics. The project's goal is to answer the question: What are the criteria by which legal pol…


What Ails Us?

Lillian R. BeVier

112 Yale L.J. 1135 (2003)

Is American democracy sick? If so, what ails it? More importantly, can the disease be cured? Can its symptoms be alleviated by imaginative and well-crafted laws? Or is it a genetic disorder embedded in the DNA of modern representative government and thus unlikely to yield to…


Friedman's Law

Michael E. Parrish

112 Yale L.J. 925 (2003)

In this appraisal of Lawrence M. Friedman's American Law in the Twentieth Century, I begin in Part I with a survey of the several "schools" of American legal history that have risen to prominence in the years since World War II, utilizing a suggestive framework first offered …


Homes Rule

Lee Anne Fennell

112 Yale L.J. 617 (2002)

In this important new book on local governance, economist William Fischel presents and defends a deceptively simple and intuitively resonant proposition: "that homeowners, who are the most numerous and politically influential group within most localities, are guided by their …


Fall from Grace: Arming America and the Bellesiles Scandal

James Lindgren

111 Yale L.J. 2195 (2002)


Method and Principle in Legal Theory

Stephen R. Perry

111 Yale L.J. 1757 (2002)

The Practice of Principle is an excellent book that practically overflows with interesting and original arguments. Coleman is a superb analytical philosopher, as every page of the book attests. This is one of the most important contributions to legal theory to come along in …


Why Tax the Rich? Efficiency, Equity, and Progressive Taxation

Reuven S. Avi-Yonah

111 Yale L.J. 1391 (2002)

In Greek mythology, Atlas was a giant who carried the world on his shoulders. In Ayn Rand's 1957 novel Atlas Shrugged, Atlas represents the "prime movers"--the talented few who bear the weight of the world's economy. In the novel, the prime movers go on strike against the o…


Tobacco Unregulated: Why the FDA Failed, and What To Do Now

Margaret Gilhooley

111 Yale L.J. 1179 (2002)

The book jacket promises drama. David Kessler, former Commissioner of the Food and Drug Administration (FDA), is said to tell "a gripping detective story," a story of "right and wrong" and "moral courage." The "unlikely heroes" are a small team of FDA employees who set out t…


Dialectics and Domestic Abuse

Katharine K. Baker

110 Yale L.J. 1459 (2001)



Erie and the History of the One True Federalism

Susan Bandes

110 Yale L.J. 829 (2001)


Signaling Discount Rates: Law, Norms, and Economic Methodology

Richard H. McAdams

110 Yale L.J. 625 (2001)

For decades, sociologists and law-and-society scholars have studied law in a broader social context that includes norms. More recently, the subject of social norms has come to the sustained attention of rational choice scholars, including economists, philosophers, politica…


Animal Rights

Richard A. Posner

110 Yale L.J. 527 (2000)

The "animal rights" movement is gathering steam, and Steven Wise is one of the pistons. A lawyer whose practice is the protection of animals, he has now written a book in which he urges courts in the exercise of their common-law powers of legal rulemaking to confer legally en…


Corruption, Pollution, and Politics

John Copeland Nagle

110 Yale L.J. 293 (2000)