The Yale Law Journal




A Tribute to Charles Reich

Charles Reich—a beloved law professor, writer, and visionary—passed away on June 15, 2019. This Collection explores his rich life and legacy in the law and shares some of his unfinished, previously unpublished work.

16 Mar 2020

Introduction to the Collection

Guido Calabresi

Most people in the mid-1960s thought the world was fine and headed in a comfortably liberal and unified direction. Charles Reich saw it differently.

16 Mar 2020

Charles Reich's Unfinished Work

Douglas A. Kysar

Charles Reich never wavered in his conviction that true freedom must—and can—come from individuals working together. In two previously unpublished book proposals, Reich places ideas about nature at the heart of his analysis of the political economy. Although shared in 2008, they still carry an eerie resonance today.

16 Mar 2020

The Individual Sector: A Book Proposal

Charles A. Reich

16 Mar 2020

The Rise of Lawless Power: A Book Proposal

Charles A. Reich

16 Mar 2020

Constituting Security and Fairness: Reflecting on Charles Reich’s Imagination and Impact

Judith Resnik

Charles Reich had remarkable insights into social structures, economic power, and human needs. His scholarship created bedrock principles of constitutional, administrative, and property law, and his insights have shaped statutes, regulations, the environmental movement, and people’s lives.

16 Mar 2020

Charles Reich’s Unruly Administrative State

Kali Murray

This Essay considers Charles Reich’s impact on three areas of “microlevel” administrative law. Reich analyzed how individuals experiences are shaped by certain “spaces” of the administrative state, revealed the diverse constitutional regimes that affect individuals encounters with the state, and studied how individuals’ identities shape their experiences of the state.


Challenges to Self-Determination in the Twenty-First Century

What does self-determination mean in the twenty-first century? This Collection explores the connection between the new international economic world order and self-determination, expounds upon the difficulties that climate change poses for peoples who seek self-determination, and proposes a multinational conception of self-determination to replace the traditional understanding of the concept.

24 Feb 2020

The Tragedy and Promise of Self-Determination

Brian Slattery

The principle of self-determination, like Janus, has two faces: negative and positive. Often understood as enabling the fracture of states into national components, the principle is better seen as facilitating the creation of multinational frameworks that foster toleration and human rights.

24 Feb 2020

Climate Change and Challenges to Self- Determination: Case Studies from French Polynesia and the Republic of Kiribati

Tekau Frere, Clement Yow Mulalap & Tearinaki Tanielu

This Essay examines effects of climate change and related phenomena on self-determination through two case studies. The case of French Polynesia highlights effects on people’s right to freely dispose of their natural resources. The case of the Republic of Kiribati demonstrates how a defeatist narrative of such effects undermines sovereignty.

24 Feb 2020

The Multiple Selves of Economic Self-Determination

Odette Lienau

This Essay contends that dyadic understandings of economic self-determination, formed in light of earlier anticolonial struggles, are no longer sufficient. It argues instead for a plural and flexible conception, centered on a broader vision of the economic “self,” that more accurately reflects sources of economic constraint in the contemporary world.


National Emergencies

On February 15, 2019, President Trump declared a national emergency at the southern border, sparking a renewed debate on the powers granted to the President in the National Emergencies Act. This Collection considers the use of emergency powers in the United States and delves into potential checks on their invocation.

15 Feb 2020

Manufactured Emergencies

Robert L. Tsai

As America goes through a democratic decline, a new problem rears its head: the manufactured crisis. To stem further degradation of democratic norms, this Essay calls for judges to reject unjustified assertions of unilateral power by carefully reviewing facts and refusing to tolerate lies.

15 Feb 2020

The Separation of National Security Powers: Lessons from the Second Congress

Stephen I. Vladeck

Can Congress reclaim a meaningful institutional role in supervising some of the broad national security powers it has delegated to the executive branch? This Essay argues that Congress can do so and explains how an obscure statute—the Calling Forth Act of 1792—provides a roadmap for how it should.

15 Feb 2020

Ending Bogus Immigration Emergencies

Cecillia D. Wang

Justice Jackson warned in Korematsu that the decision was “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Seventy-five years later, President Trump has picked up that doctrinal weapon. This Essay identifies three reforms that would unload it.


2019 Yale Law Journal Student-Essay Competition

The Essays that won the third annual Yale Law Journal Student-Essay Competition each raise concerns with recent developments in immigration law. They are Zachary New’s Ending Citizenship for Service in Forever Wars and Elizabeth Montano’s The Rise and Fall of Administrative Closure in Immigration Courts.

11 Feb 2020

Ending Citizenship for Service in the Forever Wars

Zachary R. New

For centuries, noncitizens serving in the U.S. Armed Forces during periods of hostilities have been rewarded with a special pathway to citizenship. This Essay explores how two policies enacted since 2017 are blocking this pathway and reflects on the implications of this shift for the meaning of citizenship.

11 Feb 2020

The Rise and Fall of Administrative Closure in Immigration Courts

Elizabeth Montano

For over three decades, immigration judges used administrative closure as a case-management tool to encourage efficiency and fairness. After then-Attorney General Sessions ended this practice, the U.S. immigration-court system has faced severe and unjustifiable consequences. This Essay argues for a legislative solution to revive administrative closure.

31 Jan 2020

Twenty-First-Century Contract Law Is a Law of Agreements, Not Debts: A Response to Lewinsohn

Curtis Bridgeman

Jed Lewinsohn’s excellent article on consideration offers groundbreaking work on the concept of exchange but errs in seeing the motivational account of consideration as a bad fit with doctrine. I argue that the motivational account provides a more natural justification for both consideration and for contract law as a whole.


The Nineteenth Amendment at 100

The Nineteenth Amendment’s ratification in 1920 granted women the right to vote, but fell short of broader gender-equity goals. This Collection explores the suffrage movement’s goals, intersectional voices, and differences from other movements in the United States and abroad. This rich history provides important lessons on the Amendment’s Centennial.

20 Jan 2020

The Nineteenth Amendment and the Democratization of the Family

Reva B. Siegel

Women’s claim to vote advanced a broader effort to democratize the family. This Essay recovers debates over the family connecting the Reconstruction Amendments and the Nineteenth Amendment, and considers how this lost history might guide the Constitution’s interpretation in courts and politics today.

20 Jan 2020

Lessons from the Suffrage Movement in Iran

Arzoo Osanloo

The women’s suffrage movement in Iran achieved the vote in 1963, several decades after women in the United States. The challenges and opportunities in Iranian women’s fight for equal rights offer insight into the complex and often fraught politics of calling for women’s rights and participation in a non-Western context.

20 Jan 2020

After Suffrage: The Unfinished Business of Feminist Legal Advocacy

Serena Mayeri

This Essay chronicles Pauli Murray’s intersectional feminist legal advocacy, which transformed post-suffrage women’s citizenship and continues to shape an ambitious and urgent agenda for universal enfranchisement in the Nineteenth Amendment’s second century.


Excessive Fines and Punishments

This Collection considers the implications of the Supreme Court’s decision in Timbs v. Indiana. It discusses the emergence of an anti-ruination principle for punishment, the suitability of the Excessive Fines Clause’s “gross proportionality” standard, and the development of a forfeiture jurisprudence that would inquire into individual and familial hardship.

03 Jan 2020

(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”

Judith Resnik

Timbs v. Indiana reaffirms the Constitution's role in determining the bounds of licit punishment. This Essay weaves together doctrines that are often siloed but answer the same question: what can't governments do as punishment? I argue that the law has begun to build the principle that governments not set out to cause debilitation when they punish.

03 Jan 2020

A Proposal to Stop Tinkering with the Machinery of Debt

Brandon Buskey

In the wake of the Supreme Court’s 2019 decision in Timbs v. Indiana, which applied the Excessive Fines Clause to the States, this Essay argues that defendants are better protected by replacing the clause’s “gross disproportionality” standard with the more rigorous proportionality guarantee of the Excessive Bail Clause.

03 Jan 2020

Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs

Beth A. Colgan & Nicholas M. McLean

This Essay sketches the outlines of a forfeitures jurisprudence under the Eighth Amendment’s Excessive Fines Clause in which the effect of property deprivations on individuals and their families—in particular, the infliction of financial hardship—is a core criterion in assessing a forfeiture’s severity.

26 Dec 2019

Reconstituting the Future: An Equality Amendment

Catharine A. MacKinnon & Kimberlé W. Crenshaw

A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the amendment is offered.

26 Nov 2019

The Point Isn't Moot: How Lower Courts Have Blessed Government Abuse of the Voluntary-Cessation Doctrine

Joseph C. Davis & Nicholas R. Reaves

Should government defendants be able to more easily moot a case than private defendants? This Essay argues that a strong voluntary-cessation doctrine is important to protecting individual rights and explains why—based on both precedent and policy—government and private defendants should be subject to the same strict standard.


Yale Law Journal Public-Interest Fellowship Essays

In this Collection, the 2018-19 Yale Law Journal Public-Interest Fellows draw from their on-the-job experiences. They show how New York locks up poor, disabled sex-offender registrants beyond their sentences; long detention is used to deter immigrants in historically anomalous ways; and students face obstacles when seeking to vote.

25 Nov 2019

Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless Sex-Offender Registrants

Allison Frankel

New York’s poor, disabled sex-offender registrants are ensnared in a cruel catch-22: New York will not release them from prison without housing, but laws and policies make finding housing nearly impossible for this population. This Essay explores potential legal challenges to New York’s harmful, counter-productive, and unlawful regime.

25 Nov 2019

Fighting Back to Protect Student Voting Rights

Joaquin Gonzalez

Relying on the author’s experiences as a Yale Law Journal Fellow, this Essay looks at direct and indirect obstacles faced by college students seeking to vote on campus. It explores and proposes legal avenues and advocacy efforts that can be used to successfully overcome these obstacles.

25 Nov 2019

Detention and Deterrence: Insights from the Early Years of Immigration Detention at the Border

Aaron Korthuis

This Essay examines the early years of U.S. immigration detention, arguing that such detention was brief and limited in purpose. This history has important constitutional implications for current immigration policy, questioning its use of lengthy detention to deter immigrants from pursuing their claims to remain in the United States.

19 Nov 2019

Did Bristol-Myers Squibb Kill the Nationwide Class Action?

Daniel Wilf-Townsend

This Essay presents the first comprehensive survey examining whether Bristol-Myers Squibb Co. v. Superior Court significantly limits multistate class actions in federal courts. It finds, contrary to many commenters, that a large supermajority of cases reject the argument that BMS’s constraints apply with respect to unnamed plaintiff class members.


Election Reform

As the first bill introduced in the current Congress, H.R. 1 seeks to revamp our democracy through sweeping electoral reforms. This Collection critiques small-donor-based public financing, argues for legislation mandating Election Day registration, and defends H.R. 1’s constitutionality based on Congress’s broad authority to regulate federal elections.

18 Nov 2019

Small-Donor-Based Campaign-Finance Reform and Political Polarization

Richard H. Pildes

Small-donor campaign-finance reform is supported by participatory, egalitarian, and anti-corruption values. But while reform advocates focus on these values, they ignore the evidence that such reforms might further fuel the ideological extremes in American politics. Small-donor campaign-finance reform requires confronting possible tradeoffs between internet-based political participation and ideological extremism.

18 Nov 2019

The Elections Clause and the Underenforcement of Federal Law

Franita Tolson

Drawing on nineteenth-century federal voting-rights legislation, this Essay argues that challenges to federal authority over elections persist for two reasons. First, the Supreme Court has not fully delineated federal power under the Elections Clause. Second, Congress has never exercised its Elections Clause power to its full conceptual limits.

18 Nov 2019

Election Day Registration and the Limits of Litigation

Dale E. Ho

This Essay examines Election Day registration (EDR)—the single reform that would do the most to improve U.S. voter turnout. While legislative reform efforts over the last decade have doubled the number of EDR states, litigation challenging registration deadlines has not yet succeeded, making federal legislation much needed.

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.