The Yale Law Journal

Forum

VOLUME
129
07 Nov 2019

Abolish ICE . . . and Then What?

Peter L. Markowitz

This Essay proposes a blueprint for a new humane and effective immigration-enforcement system that could follow the dissolution of ICE. It explores the irredeemable defects of ICE and its enforcement paradigm and suggests realistic mechanisms to increase compliance with immigration laws without detention or mass deportation.

06 Nov 2019

An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection

Devon W. Carbado & Kimberlé W. Crenshaw

Examining a long-overlooked passage on gender in Justice Powell’s Bakke concurrence, the Essay applies the theory of intersectionality to show that Justice Powell’s reasoning was flawed. As his “single-axis” approach reveals, tiers-of-scrutiny analysis creates a doctrinal puzzle in equal-protection law, especially when applied to Black women.

04 Nov 2019

Nudges and Norms in Multidistrict Litigation: A Response to Engstrom

Elizabeth Chamblee Burch

Multidistrict-litigation judges have invented a medley of new procedures to adjudicate the mass-tort cases before them. As plaintiff fact sheets and Lone Pine orders become widespread, however, formal rules’ built-in protections wane and procedural burdens may fall more harshly on one side.

04 Nov 2019

Supreme Court as Superweapon: A Response to Epps & Sitaraman

Stephen E. Sachs

Daniel Epps and Ganesh Sitaraman propose radical reforms to restore a moderate Supreme Court. Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. A Court unbound by legal principle is too powerful a weapon to leave around in a democracy; we should start thinking about disarmament.

15 Oct 2019

Prove It! Judging the Hostile-or-Warlike-Action Exclusion in Cyber-Insurance Policies

Adam B. Shniderman

Cyber-insurance policies often include a hostile-or-warlike action exclusion. The legal system is ill-equipped to handle the litigation that arises from coverage denials under this exclusion. This Essay explores the difficulties of accurately attributing attacks and adjudicating these insurance-coverage disputes. It concludes with four proposals to improve attribution and adjudication.

07 Oct 2019

Gender-Identity Protection, Trade, and the Trump Administration: A Tale of Reluctant Progressivism

Jean Galbraith & Beatrix Lu

This Essay discusses the inclusion of gender-identity protections in the Trump Administration’s “new NAFTA,” hypothesizing that these provisions were initially included without consulting important executive-branch stakeholders. Intriguingly, these protections demonstrate that trade agreements can lead even powerful governments to make value-laden commitments at odds with their own domestic agendas.

07 Aug 2019

The Predominance Test: A Judicially Manageable Compactness Standard for Redistricting

Michael McDonald

Most states require compact legislative districts, but courts have no framework to judge when contorted districts are legally suspect. This Essay proposes a “Predominance Test” that limits the most egregious gerrymanders by comparing challenged maps to maximally compact plans to test whether compactness predominates over lower-tier and discretionary criteria.

30 Jul 2019

While They Waited: Pre-Obergefell Lives and the Law of Nonmarriage

Michael J. Higdon

This Essay looks at married same-sex couples who, pre-Obergefell, spent time in nonmarital relationships while awaiting the right to wed. In discussing how courts now count those pre-equality years toward the length of couples’ relationships—a decision relevant to adjudicating many benefits—the Essay illuminates weaknesses in current nonmarriage law.

VOLUME
128
VOLUME
127
VOLUME
126
VOLUME
125
VOLUME
124
VOLUME
123
VOLUME
122
VOLUME
121
VOLUME
120
VOLUME
119
VOLUME
118
VOLUME
117
VOLUME
116
VOLUME
115