The Yale Law Journal


30 Apr 2019

Law, Prison, and Double-Double Consciousness: A Phenomenological View of the Black Prisoner’s Experience

James Davis III

This Essay introduces double-double consciousness as a new way of conceptualizing the psychological ramifications of being a black prisoner. Based on my own experience as a black prisoner, I conclude that double-double consciousness is a mechanism through which the prisoner can maintain dignity despite living in captivity.

22 Apr 2019

The Present Crisis in American Bail

Kellen Funk

This Essay reviews the recent rise of systemic injunctions against money bail systems and a major question they raise: what level of scrutiny applies to allegedly unconstitutional bail systems. It concludes that, in light of history and precedent, strict scrutiny is the appropriate standard. 

08 Apr 2019

Good and Bad Patient Involvement: Implementing the Patient-Involvement Provisions of the 21st Century Cures Act at the FDA

Kyle T. Edwards

This Essay examines the FDA’s implementation of new statutory patient-involvement requirements in light of past problems with simlar initiatives atthe FDA. Despite the risks of repeating these mistakes, the Essay concludes that the Agency’s early implementation efforts are encouraging.

08 Apr 2019

Pregnancy and Living Wills: A Behavioral Economic Analysis

Elizabeth Villarreal

In most states, women are not permitted to have binding living wills during parts of their pregnancies. This Essay argues that the laws imposing these restrictions are ill-conceived and likely unconstitutional and, using behavioral economics, suggests a better alternative that respects women’s preferences and autonomy. 


The Future of Privacy Law

Rapid technological change has led some to question whether modern Fourth Amendment doctrine appropriately protects individual privacy. This Collection considers that question across four domains: warrantless electronic surveillance, border searches, law enforcement cross-border data access, and civil litigation in the absence of a comprehensive data-protection regime.

01 Apr 2019

Fourth Amendment Reasonableness After Carpenter

Alan Z. Rozenshtein

In Carpenter v. United States, the Supreme Court held that a warrant is required when the government collects certain categories of third-party data. This Essay argues that a categorical warrant requirement for electronic surveillance is a mistake, and that, when faced with warrantless electronic surveillance, courts should instead consider whether such surveillance is reasonable.

01 Apr 2019

Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches

Laura K. Donohue

This Essay traces the historical evolution of the border search exception to the Fourth Amendment to argue that CBP and ICE are currently operating outside constitutional constraints and proposes a tiered approach, restricted in scope and requiring increasing levels of protections the more invasive the search becomes.

01 Apr 2019

Data Rights and Data Wrongs: Civil Litigation and the New Privacy Norms

Joseph V. DeMarco & Brian A. Fox

This Essay argues that that civil litigation between private parties in the data privacy space is shaping important privacy norms. Because no comprehensive data privacy law exists in the United States, litigants must rely on doctrines that are ill suited to the legal questions raised by the mass collection of personal data.

01 Apr 2019

Privacy and Security Across Borders

Jennifer Daskal

This Essay analyzes the impetus and results of recent initiatives by the United States, European Union, and Australia to regulate law enforcement access to data, highlights their promise and their limits, and offers a way forward that protects speech, privacy, and other rights in the process.

28 Mar 2019

A Response to Justice Goodwin Liu

Jeffrey S. Sutton

Judge Jeffery Sutton responds to Justice Goodwin Liu’s Review of 51 Imperfect Solutions: States and the Making of American Constitutional Law.

28 Mar 2019

The Punishment Bureaucracy: How to Think About “Criminal Justice Reform”

Alec Karakatsanis

The “criminal justice reform” movement is in danger. Efforts to change the punishment bureaucracy are at risk of being co-opted by bureaucrats who have created and profited from mass human caging. This Essay seeks to understand the true functions of the punishment bureaucracy and to offer suggestions for dismantling it.

25 Mar 2019

The Past, Present, and Future of Section 1115: Learning from History to Improve the Medicaid-Waiver Regime Today

Anthony Albanese

This Essay argues that section 1115 waivers in the Medicaid program have increasingly bee misused, opening the door to ideologically motivated cuts or preconditions on coverage, and suggests a response. 

18 Mar 2019

Sovereign Difference and Sovereign Deference on the Internet

Jack Goldsmith

This Response to Andrew Woods makes two points. First, it shows why the “fragmentation” charge frequently levied against sovereignty-based approaches to internet governance is misplaced. Second, it questions the efficacy of Woods’s normative theory of judicial comity.


Critical Voices on Criminal Justice: Essays from Directly Affected Authors

People who have experienced incarceration have unique insights into the criminal system—insights that are often missing from legal scholarship and criminal justice policy. This Collection begins to bridge that gap.

25 Feb 2019

What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence

Reginald Dwayne Betts

Many read Justice Kennedy’s landmark Eighth Amendment sentencing cases to herald a fundamental change in how juveniles are treated in the criminal justice system. But the better reading is more modest. Instead, they force us to ask what it means to say that youth is relevant to the determination of a just prison sentence.

25 Feb 2019

Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations

Tarra Simmons

This Essay is rooted in the author’s experience as a formerly justice-involved individual who overcame numerous barriers to become an attorney and advocate. It argues that bar associations should use a conditional-approval process that informs applicants whether the bar intends to admit them before they begin law school.

25 Feb 2019

Ending the Incarceration of Women and Girls

Andrea James

Drawing on the author’s experience as a formerly incarcerated mother and advocate, this Essay challenges the reader to consider whether incarceration generally—and incarceration of women and girls specifically—is a fundamentally misguided response to violence and poverty that we must retire.

25 Feb 2019

The Effort to Reform the Federal Criminal Justice System

Shon Hopwood

This Essay describes the difficult process of federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future reforms and discusses the criteria advocates should use in deciding whether to support future reforms.

05 Feb 2019

Wayfair Undermines Nicastro: The Constitutional Connection Between State Tax Authority and Personal Jurisdiction

Allan Erbsen

This Essay exposes connections between two controversial cases that unsettled two ostensibly distinct areas of constitutional law—Wayfair v. South Dakota and J. McIntyre Machinery, Ltd. v. Nicastro—arguing that Wayfair’s underlying logic warrants narrowing or overruling Nicastro. 


Korematsu in the Court of History: Seventy-Five Years Later

2019 marks seventy-five years since the Supreme Court handed down its opinion in Korematsu v. United States. This Collection examines Korematsu's legacy for national security law, race, and equal protection, and explores what Korematsu means today in light of its formal overruling in Trump v. Hawaii.

30 Jan 2019

Is Korematsu Good Law?

Jamal Greene

This Essay argues that the Supreme Court’s claim to overrule Korematsu in Hawaii is both empty and grotesque. It argues that a decision to overrule a prior case is not meaningful unless it specifies which propositions it is disavowing, and Hawaii’s emptiness means to conceal its disturbing affinity with Korematsu.

30 Jan 2019

Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu

Neal Kumar Katyal

This Essay compares the Supreme Court’s decision to uphold President Trump’s travel ban to the Court’s decision nearly seventy-five years ago to affirm the internment of Japanese Americans in Korematsu. It argues that while Hawaii v. Trump formally overturned Korematsu, it essentially recreated the doctrine under a new name.

30 Jan 2019

This Is (Not) Who We Are: Korematsu, Constitutional Interpretation, and National Identity

Mari J. Matsuda

Asserting the continued usefulness of legal claims, this Essay asks a critical question: what would it really take to overturn Korematsu and end structures of subordination? It argues that a true overruling of Korematsu requires a generative interpretation of our Constitution to uphold the inherent dignity of all human beings.

30 Jan 2019

Masquerading Behind a Facade of National Security

Eric K. Yamamoto & Rachel Oyama

What will happen when those discriminated against in the name of national security turn to the courts for legal protection? This Essay refracts this question through the lens of Korematsu, examining how courts will—and should—respond to the dual needs to promote national security and protect fundamental democratic liberties.

06 Dec 2018

The Reach of Local Power

James Horner & Christine Kwon

Recent litigation has challenged local California prosecutors’ power to seek and receive statewide relief for violations occurring outside county lines. This Essay argues against this trend and explains why it is inappropriate to apply the constitutional norms that state-versus-federal conflicts to conflicts between states and municipalities. 

03 Dec 2018

The Pope and the Capital Juror

Aliza Plener Cover

The Pope recently pronounced capital punishment impermissible. Counterintuitively, this might make capital punishment less popular but more prevalent. This Essay anticipates this dynamic, and explores how “death qualification” of juries insulates the death penalty even as community morality evolves away from it.

26 Nov 2018

Impeachment: A Handbook

Philip Bobbitt

Charles Black’s Impeachment: A Handbook has become the authoritative guide on the subject of presidential impeachment. This year, the Yale University Press published a new edition of the classic, incorporating new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new edition appears in this Essay.

21 Nov 2018

In the Shadow of Child Protective Services: Noncitizen Parents and the Child-Welfare System

Tal D. Eisenzweig

The noncitizen parent exists between two often-conflicting legal identities: that of an immigrant and that of a parent. This Essay argues that state child services should strive to mitigate the tension between these identities and take an active role in shielding these parents from immigration consequences of family-law proceedings.  

12 Nov 2018

Presidential Power to Terminate International Agreements

Harold Hongju Koh

Can President Trump unilaterally withdraw the United States from any and all international agreements to which the United States is a party? This Essay argues that constitutional, functional, and comparative-law considerations dictate that the answer is a resounding “no.” 


Reflections on the 2017 Tax Act

The 2017 Tax Act, sometimes called the Tax Cuts & Jobs Act, has been heralded by some as historic reform and by others as Armageddon. This Collection analyzes the Act, exploring the process by which it was passed, the values that undergird its policies, and how specific provisions will affect the structure of the U.S. and global economy moving forward.

25 Oct 2018

Foreword—The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy

Michael J. Graetz

This Essay argues that the 2017 Tax Act provides neither an effective nor stable solution to the nation’s economic and fiscal challenges.

25 Oct 2018

Critiquing (and Repairing) the New International Tax Regime

Rebecca M. Kysar

The 2017 Tax Act significantly changed the U.S. international tax regime. The legislation, however, failed to solve existing problems and opened the door to new ones. This Essay addresses these shortcomings, and outlines recommendations for a better approach.

25 Oct 2018

International Cooperation and the 2017 Tax Act

Susan C. Morse

Some have criticized the 2017 Tax Act for lowering the corporate tax rate. This Essay argues instead that Congress deserves credit for bringing the U.S. rate in line with other OECD countries, potentially saving the corporate tax by establishing a minimum global rate.

25 Oct 2018

Not So Fast: 163(j), 245A, and Leverage in the Post-TCJA World

Robert E. Holo, Jasmine N. Hay & William J. Smolinski

The Tax Cuts & Jobs Act moves the United States from a worldwide system of taxation to a quasi-territorial regime. This Essay reviews these changes and reflects on their likely effect on cross-border financing structures.

25 Oct 2018

The Social Meaning of the Tax Cuts and Jobs Act

Linda Sugin

The 2017 Tax Act reflects values that were not openly debated in the legislative process. This Essay unearths these values and argues that justice in taxation is impossible without a full and honest evaluation of the law’s underlying principles.


An Exchange on the Draft Restatement (Third) of Conflict of Laws

The American Law Institute is currently engaged in drafting a new restatement on the subject of Conflict of Laws. In this exchange, Lea Brilmayer & Daniel B. Listwa debate the merits of the new restatement with Kermit Roosevelt III & Bethan R. Jones.

22 Oct 2018

Continuity and Change in the Draft Restatement (Third) of Conflict of Laws: One Step Forward and Two Steps Back?

Lea Brilmayer & Daniel B. Listwa

A deep contradiction lies at the heart of the Draft Restatement (Third) of Conflict of Laws. This Essay addresses that tension, explaining that the new Restatement’s synthesized black-letter rules are incompatible with its modern two-step theory.

22 Oct 2018

The Draft Restatement (Third) of Conflict of Laws: A Response to Brilmayer & Listwa

Kermit Roosevelt III & Bethan R. Jones

This Essay responds to Lea Brilmayer & Daniel B. Listwa, defending the Draft Restatement as an attempt to bring greater predictability and coherence to choice of law through more determinate rules.

21 Oct 2018

Securing Public Interest Law’s Commitment to Left Politics

Charles Du

Through an analysis of the challenges facing the “new working class,” this Essay argues that in order to advance their clients’ interests, progressive lawyers must redefine public interest law such that it centers on a commitment to developing left political power.

20 Oct 2018

Beyond the Box: Safeguarding Employment for Arrested Employees

Shelle Shimizu

Most criminal system reform efforts neglect the collateral consequences experienced by individuals with pending criminal cases. This Essay argues that meaningful reform requires enhanced protections for current employees and applicants with open criminal cases.

14 Sep 2018

Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop

Douglas NeJaime & Reva Siegel

Conversation about Masterpiece Cakeshop has focused on the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. This Essay brings to light the case’s broader guidance on religious exemptions under the Free Exercise Clause and what that means for judicial and legislative actors going forward. 

05 Sep 2018

The Limits of Professional Speech

Claudia E. Haupt

This Essay argues that the definition of professional speech should not be expanded beyond the doctrine’s purpose: ensuring that clients receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. It then examines these limits of professional speech through NIFLA v. Becerra.

09 Jul 2018

A Cooperative Federalism Approach to Shareholder Arbitration

Zachary D. Clopton & Verity Winship

Arbitration has begun to take a new form: mandatory arbitration provisions built into corporate charters and bylaws. The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set of responses. This Essay provides one, explaining why the overlapping authority of federal and state actors in this field makes cooperative federalism is a natural fit for addressing these issues. 


#MeToo and the Future of Sexual Harassment Law

The #MeToo movement has prompted a national dialogue about sexual harassment. This Companion Collection, launched in collaboration with the Stanford Law Review, aims to draw lessons from the #MeToo movement for activists, scholars, policymakers, lawyers, and judges. Across the two journals, the Collection offers twelve scholars’ insights on the ways sexual harassment produces and is produced by broader forms of inequality. Companion Essays can be found at the Stanford Law Review Online.

18 Jun 2018

Reconceptualizing Sexual Harassment, Again

Vicki Schultz

The #MeToo movement has spurred a renewed focus on sexual harassment. But often, the narratives that emerge overemphasize sexualized forms of harassment at the expense of broader structural causes. This Essay builds on Schultz’s previous work to explore those institutional drivers of harassment.

18 Jun 2018

Queering Sexual Harassment Law

Brian Soucek

Franchina v. City of Providence may be the first judicial opinion of the #MeToo movement. But it also points beyond the #MeToo movement, exemplifying harassment that is motivated by desires to enforce gender roles and why sexual orientation discrimination is sex discrimination under Title VII.

18 Jun 2018

Of Power and Process: Handling Harassers in an At-Will World

Rachel Arnow-Richman

Pressure is mounting on companies to take swift disciplinary action regarding alleged sexual harassment. But our employment law incentivizes employers to tolerate high-ranking harassers while cracking down on inappropriate behavior by the rank-and-file. This Essay suggests a better path forward.

18 Jun 2018

What About #UsToo?: The Invisibility of Race in the #MeToo Movement

Angela Onwuachi-Willig

The #MeToo movement has rightly been praised for breaking long-held silences about harassment. It has also rightly been critiqued for ignoring unique forms of harassment that women of color face. This Essay calls for a sexual harassment law that embraces intersectional, multidimensional identity.

18 Jun 2018

Sexual Harassment Law After #MeToo: Looking to California as a Model

Ramit Mizrahi

The #MeToo movement has motivated people to speak out about sexual harassment, but many of those speaking remain vulnerable to retaliation. This Essay provides the perspective of an employment lawyer on the shortcomings of sexual harassment law and how state law can afford greater protection.

18 Jun 2018

Was Sexual Harassment Law a Mistake? The Stories We Tell

Tristin K. Green

Does our sexual harassment law hinder the larger project of reducing harassment? This Essay demonstrates that the law constrains stories of harassment and hamstrings our calls for reform. Ultimately, the law, not just public perception, must change if this movement is to have a lasting effect.

23 Mar 2018

Nonmajority Opinions and Biconditional Rules

Adam Steinman

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. This Essay identifies the complications that arise in addressing this question when biconditional rules are involved and proposes a way to coherently resolve those difficulties.