The Yale Law Journal

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130
01 Apr 2021

Victims Versus the State’s Monopoly on Punishment?

Stephanos Bibas

Gabriel Mendlow rightly argues that victims deserve larger roles in criminal justice, but mistakenly hints that they deserve exclusive control. Communities are also harmed by crimes and have standing to punish them. This Essay argues that criminal procedure should return to its roots as a communal morality play.

08 Mar 2021

Models, Race, and the Law

Moon Duchin & Douglas M. Spencer

The Race-Blind Future of Voting Rights is a provocative proof of concept with an unstable empirical foundation. The Article delivers a baseline for minority electoral opportunity using the ensemble method of random district generation; this Response flags technical issues and questions the conceptual alignment of the methods with their application.

08 Mar 2021

By Any Means: A Philosophical Frame for Rulemaking Reform in Criminal Law

Trevor George Gardner

Equitable crime policy and equity in the process of crime policymaking stand as the two goals most important to criminal-justice reform advocates. It would be a strategic mistake, however, to consider the two of equal importance. 

08 Mar 2021

Supreme Court Reform and American Democracy

Daniel Epps & Ganesh Sitaraman

The current crisis of the Supreme Court is inextricable from the question of the Court’s role in our democracy. We identify three strategies for ensuring the Court maintains its proper role—internal restraint, external constraints, and structural reform—and argue that internal restraint and external constraints suffer from serious drawbacks.

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2020 Yale Law Journal Student-Essay Competition

The Essays that won the third annual Yale Law Journal Student-Essay Competition each address current issues in First Amendment law. They are Justin W. Aimonetti & M. Christian Talley’s How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts and Meenakshi Krishnan’s The Foreign Intelligence Surveillance Court and the Petition Clause: Rethinking the First Amendment Right of Access.

20 Feb 2021

How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts

Justin W. Aimonetti & M. Christian Talley

When applied in tandem, the Supreme Court’s Sullivan standard and state anti-SLAPP statutes give public-figure defamation plaintiffs a near-impossible task. Such plaintiffs must introduce facts—before discovery—about the defendant’s mental state. Otherwise, courts must dismiss their claims. Our Essay proposes four solutions to this undesirable and unreasonably stringent “super-standard.”

20 Feb 2021

The Foreign Intelligence Surveillance Court and the Petition Clause: Rethinking the First Amendment Right of Access

Meenakshi Krishnan

Drawing on recent litigation seeking access to Foreign Intelligence Surveillance Court opinions, this Essay proposes anchoring the First Amendment right of access not just in the Speech, Press, and Assembly Clauses, but also the Petition Clause. Framed this way, access doctrine vindicates both public and individual rights.

03 Feb 2021

The Once and Future Countervailing Power of Labor

Catherine L. Fisk

Drawing on the law that supported labor movement’s exercise of countervailing power against 1930s plutocracy, progressive social movements can use law to create a new political economy. But, as a condition of granting labor power, law channeled unions away from radicalism. Powerful class-based movement organizations find law an unreliable ally.

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Antitrust and Digital Platforms

A fierce debate is raging over the proper level of antitrust enforcement against big tech companies like Google, Facebook, and Amazon. This Collection offers fresh perspectives on the history, implications, and challenges of applying antitrust law to digital platforms.

18 Jan 2021

Dominant Digital Platforms: Is Antitrust Up to the Task?

Steven C. Salop

Consolidation through mergers and exclusionary conduct by dominant firms can harm consumers and workers and reduce innovation. Digital networks are a particular concern because of barriers to entry. While antitrust law in principle can be strengthened by evolution, new legislation would be a more rapid and certain path to reform.

18 Jan 2021

Antitrust’s High-Tech Exceptionalism

Rebecca Haw Allensworth

Today, the digital marketplace is dominated by only a handful of tech companies. During the last two decades, American antitrust law has acquiesced to this consolidation not only by failing to evolve from its roots in smoke-stack industries, but also by giving big tech special dispensation under traditional antitrust doctrines.

18 Jan 2021

Market Definition and Anticompetitive Effects in Ohio v. American Express

Aaron M. Panner

With high-tech industries attracting increased scrutiny, the Supreme Court’s analysis of the two-sided market in Ohio v. American Express will be a focus of antitrust litigation.  This Essay argues that, despite the apparent focus on market definition, the Court’s opinion is most persuasive in its contextual evaluation of competitive effects. 

18 Jan 2021

The Easterbrook Theorem: An Application to Digital Markets

Joshua D. Wright & Murat C. Mungan

Frank Easterbrook argued that erroneous antitrust convictions are more costly than erroneous acquittals. We find that if he is correct, the optimal standard of proof is stronger than preponderance of evidence. Our conclusion stands in stark contrast to proposals to reduce the evidentiary burdens facing antitrust plaintiffs in digital markets.

18 Jan 2021

The New Antitrust/Data Privacy Law Interface

Erika M. Douglas

Antitrust theory portrays data privacy as a factor, like quality, that improves with competition. This Essay argues that view, though not inaccurate, is incomplete. It offers a new account of how data privacy interests have begun to clash at the margins with antitrust law, particularly in the digital economy.

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The 150th Anniversary of the Department of Justice

Last July marked the 150th anniversary of the establishment of the Department of Justice. The Department is perhaps as politicized as it’s ever been, and its relationship with the American public is fraught. In this Collection, alumni from the Department analyze what happened and what the future looks like.

15 Jan 2021

Introduction

Eric H. Holder, Jr.

Former Attorney General Eric Holder reflects on the Justice Department’s unique role in American society.

15 Jan 2021

The Civil Rights Division: The Crown Jewel of the Justice Department

Christy Lopez

This Essay contrasts the recent history of the Civil Rights Division with the first decades of its existence, arguing that civil rights advocates today should do more than reverse the harms of the Trump years. Rather, advocates must leverage the Division’s institutional dynamics to ensure its effectiveness in coming years.

15 Jan 2021

Thwarting the Separation of Powers in Interbranch Information Disputes

Annie L. Owens

The Office of Legal Counsel (OLC) advises the President in information disputes with Congress. This Essay analyzes how OLC’s increasingly aggressive separation-of-powers advice, the Trump Administration’s utilization of OLC opinions to resist congressional information requests, and congressional acquiescence threaten separation-of-powers principles by exalting the executive branch at Congress’s expense.

15 Jan 2021

Treat Every Defendant Equally and Fairly: Political Interference and the Challenges Facing the U.S. Attorneys’ Offices as the Justice Department Turns 150 Years Old

Joyce White Vance

How do the US Attorneys’ Offices restore their damaged credibility with the public? New laws and policies designed to preserve the independence of the Justice Department from politicization are much needed. But it will be even more important to rebuild public trust by reinforcing the culture of independence among prosecutors.

15 Jan 2021

Stare Decisis in the Office of the Solicitor General

Michael R. Dreeben

The Office of the Solicitor General (OSG) is generally believed to operate under its own form of stare decisis. But in many circumstances, OSG best serves governmental interests and those of the Supreme Court by submitting positions that it believes are right, even if they depart from prior submissions.

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The Progressive Era, 100 Years Later

One hundred years ago, Warren Harding’s election heralded the end of the Progressive Era. Harding promised a “return to normalcy,” but neither his administration nor subsequent changes have erased the progressives’ reforms. This collection evaluates the Progressive Era echoes in modern debates about race, labor, and the bureaucracy.

06 Jan 2021

Rules, Commands, and Principles in the Administrative State

Adrian Vermeule

Pound and Schmitt both assumed that the administrative state would increasingly abandon general rules in favor of ad hoc administrative commands. Dworkin, however, predicted that the increasing complexity of the administrative state would induce reliance on general legal principles to maintain legality. Dworkins prediction has largely been borne out.

06 Jan 2021

From Progressivism to Paralysis

Philip K. Howard

The complexity of the regulatory state undermines public goals, and leads to broad citizen alienation. The root cause is the progressive aspiration to organize government as a kind of machine producing uniform public choices. A functioning democracy requires a simpler framework allowing officials to take responsibility and be accountable.

06 Jan 2021

Black Progressivism and the Progressive Court

James W. Fox Jr.

This essay discusses Black progressive texts – Thomas Fortune’s Black and White, Ida Wells’s The Reason Why, and two statements of the Niagara Movement – and explores how the themes they developed contain a critique of the underlying rationales of the Supreme Court’s jurisprudence of the same period. 

06 Jan 2021

“There Is No Such Thing as an Illegal Strike”: Reconceptualizing the Strike in Law and Political Economy

Diana S. Reddy

Workers today are rediscovering the power of the strike and upending jurisprudential categories. Strikes are not just “economic weapons”; they are political protest. And like Progressive Era strikes, the success of strikes today may be in legitimating a new vision of law and political economy.

24 Nov 2020

The Proceduralist Inversion – A Response to Skeel

Edward J. Janger & Adam J. Levitin

This essay assesses Distorted Choice in Corporate Bankruptcy, by David Skeel. While Skeel usefully identifies how Restructuring Support Agreements (RSAs) help debtors secure support for Chapter 11 reorganizations, this essay argues that Skeel fails to appreciate that RSAs can also short-circuit the plan process, severing plan distributions from pre-bankruptcy entitlements.

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The Insular Cases in Light of Aurelius

Over 120 years after YLJ published its first piece on the Insular Cases, these cases appeared again before the Supreme Court in Aurelius. This collection evaluates these cases’ continuing influence, and is dedicated to the memory of Judge Juan R. Torruella, a forceful scholar of these cases’ troubled legacy.

02 Nov 2020

A Dedication to Judge Juan Torruella

Stephen G. Breyer

Justice Stephen Breyer reflects on his friendship with Judge Juan Torruella.

02 Nov 2020

On Judge Juan Torruella

José A. Cabranes

Judge José Cabranes describes Judge Juan Torruella’s legacy and his place in the history of Puerto Rico and of the United States.

02 Nov 2020

How We Study the Constitution: Rethinking the Insular Cases and Modern American Empire

Aziz Rana

This Essay defends the importance of the Insular Cases in American constitutional development. It explores the extent to which the United States has from the founding been a project of empire as well as the centrality of events surrounding those cases to basic transformations in twentieth century legal-political practice.

02 Nov 2020

After Aurelius: What Future for the Insular Cases?

Adriel I. Cepeda Derieux & Neil C. Weare

The Court’s recent failure to overrule the Insular Cases represents a missed opportunity to move past the racially motivated doctrine of territorial incorporation. Three cases involving the denial of citizenship, warrantless searches, and unequal benefits in U.S. territories demonstrate the Insular Cases’ continuing harm while offering hope for their reconsideration.

02 Nov 2020

Political Wine in a Judicial Bottle: Justice Sotomayor’s Surprising Concurrence in Aurelius

Christina D. Ponsa-Kraus

This Essay criticizes Justice Sotomayor’s concurring opinion in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC. for offering a one-sided and misleading explanation of the island’s constitutional status, and thereby taking sides in Puerto Rico’s decolonization debate.

02 Nov 2020

Closing Remarks on Judge Juan Torruella

José A. Cabranes

These closing remarks were delivered at the Yale Law Journal Insular Cases Panel in Honor of Judge Juan Torruella held via a Zoom conference.

Forum

Administrative Law and International Commitments

How do bureaucratic incentives shape how an agency implements international law? This Collection provides a window into the agency decisionmaking process that occurs after international commitments have already been made. Agencies’ choices in the foreign distilled spirits and detainee interrogation context reveal the many considerations at play.

26 Oct 2020

Torture and Institutional Design

Robert Knowles

This Essay discusses the creation, rise, and decline of the High-Value Detainee Interrogation Group (HIG) as a case study for how institutional design affects the implementation of international commitments. The HIG’s placement within the FBI rendered it unable to effectively promote policy change without direct support from the President.

26 Oct 2020

Regulating Foreign Commerce Through Multiple Pathways: A Case Study

Kathleen Claussen

Most accounts of trade law see legislation as the primary means of converting international commitments into U.S. law. Taking up trade in distilled spirits as a case study, this Essay shows that foreign commercial commitments trickle into domestic law through multiple pathways, including self-executing executive agreements and discretionary agency instruments.

Collection

Yale Law Journal Public-Interest Fellowship Essays

In this Collection, the 2019-20 Yale Law Journal Public-Interest Fellows draw on their work experiences. They present a novel approach to tackling inaccurate population data in malapportionment litigation; argue that criminal-defense attorneys and judges must convey the denaturalization consequences of plea deals; and explore New York City’s undercollection of fines.

20 Oct 2020

The Denaturalization Consequences of Guilty Pleas

Amber Qureshi

At a critical time when thousands of citizens face potential denaturalization, this Essay proposes an extension of the Supreme Court’s decision in Padilla v. Kentucky to protect the rights of U.S. citizens who are facing denaturalization as a result of pleading guilty to a criminal offense.

20 Oct 2020

Beyond the Adjustment Wars: Dealing with Uncertainty and Bias in Redistricting Data

Jeff Zalesin

This Essay offers a pragmatic approach to litigating legislative malapportionment cases with imperfect population data. Because the census historically is inaccurate and biased—and 2020 Census data may be even more so—courts should clarify that they will consider evidence that district populations are less equal than they facially appear.

20 Oct 2020

Who Pays? An Analysis of Fine Collection in New York City

Ruth Vassar Lazenby

This Essay analyzes New York City data on the collection of fines and concludes that slightly more than half of fines imposed are collected in full. The Essay explores barriers to collection and recommends reforms that attempt to directly target underlying harms, rather than increase resources for fine collection broadly.

02 Oct 2020

Reading the ACA’s Findings: Textualism, Severability and the ACA’s Return to the Court

Abbe R. Gluck

Challengers are using false textualism to implode the ACA. They argue that a findings section is an “inseverability clause,” ignoring the text and location; the language is boilerplate not for severability but for the commerce power; and Congress’s actual inseverability clauses are unmistakably explicit, using language absent from the ACA.

29 Jul 2020

Deadly Delay: The FDA’s Role in America’s COVID-Testing Debacle

Barbara J. Evans & Ellen Wright Clayton

Recently, the FDA asserted authority to regulate a type of COVID-19 diagnostics known as laboratory-developed tests, which long have been a front line of response to emerging disease. FDA did not, and should not, have authority to regulate these tests. Its intervention added minimal value while contributing to deadly delays.

19 Jul 2020

State of the Art: How Cultural Property Became a National-Security Priority

Nikita Lalwani

Until recently, the United States did little to help repatriate looted antiquities, thanks to a powerful coalition of art collectors, museums, and numismatists who preferred an unregulated art market. This Essay explores how the United States came to treat the protection of cultural property as an important national-security issue.

29 Jun 2020

The New Oil and Gas Governance

Tara K. Righetti, Hannah Jacobs Wiseman & James W. Coleman

Even as the United States has become the world’s leading producer of oil and gas, U.S. oil and gas governance has changed drastically. States have amended statutes, applied existing laws, and modified common law doctrine to move beyond a once-unilateral focus on maximizing production and address environmental and social concerns.

24 Jun 2020

Disability Law and the Case for Evidence-Based Triage in a Pandemic

Govind Persad

When lifesaving medical treatments are scarce, disability law permits triage policies to consider patients’ probability of survival and post-treatment life expectancy. Evidence-based triage that considers these factors, rather than inaccurate stereotypes, can be not only legal and ethical, but consonant with the goals of disability law and advocacy.

27 May 2020

Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols

Samuel R. Bagenstos

The coronavirus pandemic has forced us to take the threat of rationing life-saving treatments seriously. Many health systems employ protocols that explicitly deprioritize people for these treatments based on pre-existing disabilities. This argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act.

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