The Yale Law Journal


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.