The Yale Law Journal

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Administrative Law at a Turning Point

Administrative law faces a critical juncture. Settled doctrines ranging from deference to agency interpretations of statutes to delegations of executive power have been destabilized. And earlier this year, Justice Breyer—himself an administrative-law scholar—retired from the Supreme Court. We publish this Collection as a tribute to his judicial legacy.

21 Nov 2022

Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine

Thomas B. Griffith & Haley N. Proctor

This Essay examines the major questions doctrine’s relationship to the administrative-law jurisprudence of a man who helped develop it: Justice Breyer. Born of Breyer’s proposal to bring nuance into judicial review of agency action, the doctrine has taken on a life of its own much different than what he imagined.

21 Nov 2022

The Jurisprudence of “Degree and Difference”: Justice Breyer and Judicial Deference

Lisa Schultz Bressman

Justice Stephen Breyer’s context-specific approach to judicial deference has prevailed in Supreme Court’s decisions to an underappreciated extent. Now the conservative majority is moving toward a no-deference rule. But they are unlikely to ultimately succeed because institutional pressure that then-Judge Breyer observed will drive courts to nevertheless consider context-based factors.

21 Nov 2022

The Binary Executive

Blake Emerson

The Supreme Court is inventing a new brand of administrative law, in which the President holds all executive power, but the Court restricts and countermands agencies’ policymaking discretion. The Court thus takes a share of the executive power it assigns exclusively to the President. The result is constitutionally unsound.

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Law and Movements: Clinical Perspectives

As law-school clinics assume a growing role in legal education, instructors, students, and community partners have used clinics to test novel, sometimes radical lawyering approaches. This Collection draws from those experiments, using case studies from family defense, immigration, and worker rights to explore the relationship between law and social movements.

18 Nov 2022

Transformative Immigration Lawyering

Jayesh Rathod

Two deep-seated tendencies in U.S. immigration law are obstructing the expansive reforms long sought by movement actors: incrementalism and path dependence. This Essay recommends that law clinics counter these forces by setting ambitious goals for structural change and by equipping students with knowledge and skills needed for transformative lawyering.

18 Nov 2022

Radical Early Defense Against Family Policing

Julia Hernandez & Tarek Z. Ismail

What possibilities arise when law-school clinics experiment in challenging a well-oiled system at its untouched margins, within a collective, community-based movement whose lodestar is abolition? This Essay examines this question in the family-policing context and articulates a radical vision of family defense in subjudicial venues.

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Religion and the Public Schools: Reflections on Carson v. Makin

This Collection analyzes the Court’s decision in Carson v. Makin last Term. What does the case mean for minority students? LGBTQ children? How does it connect to the broader movement for public education in the United States? How does it relate to the history of religious schools in our country?

17 Nov 2022

Who’s Afraid of Carson v. Makin?

Aaron Tang

Carson v. Makin was yet another defeat for progressives in a brutal term. But just how bad was it? This Essay examines how Democratic lawmakers in Maine have already neutralized the ruling, teaching important lessons about how concerned Americans can best resist the Court’s conservative supermajority in the years ahead.

17 Nov 2022

The Once and Future Promise of Religious Schools for Poor and Minority Students

Michael Bindas

When Carson v. Makin allowed religious schools participation in educational-choice programs, the public-school establishment predicted dire results for marginalized students. This Essay responds to that prediction, exploring religious schools’ historical importance to marginalized students, the public-school establishment’s longstanding hostility to religious schools, and the establishment’s own role in educational inequality.

17 Nov 2022

When Religion and the Public-Education Mission Collide

Derek W. Black

Recently, the Supreme Court has chosen education as the primary stomping ground for rewriting Free Exercise Clause doctrine. It has framed education policies that prevented public funds from promoting religious indoctrination as discrimination. In the process, it has created a new victim—educational equity and adequacy for traditionally disadvantaged students.

17 Nov 2022

Racialized Religious School Segregation

Erika K. Wilson

Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.

15 Nov 2022

Partisanship, Remedies, and the Rule of Law

Aziz Z. Huq

The essay responds to Don R. Willett and Aaron Gordon’s Review of The Collapse of Constitutional Remedies.  I show that Willett and Gordon inaccurately describe Collapse’s main argument; offer an internally inconsistent critique; and fail to understand key terms such as judicial independence and the rule of law.

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Designing the Postpandemic City

The COVID-19 pandemic forced cities to radically transform in order to survive. This Collection examines the impacts that these measures have had on urban landscapes and assesses how they might inform future policymaking efforts. Its Essays analyze COVID-era policy changes in areas including public space, affordable housing, and infrastructure.

07 Nov 2022

Making the Temporary Permanent: Public Space in a Postpandemic World

Sarah Schindler

Local governments are deciding whether to retain modifications to the built environment implemented during the pandemic. While these sidewalk and street reconfigurations provide health and economic benefits, they also harm already-underrepresented community members. This Essay weighs these positive and negative implications to enable informed decision-making and create more equitable spaces.

07 Nov 2022

Can Affordable Housing Be a Safety Net? Lessons from a Pandemic

Noah M. Kazis

COVID-19 posed an unprecedented challenge to housing stability. This Essay argues that the pandemic exposed the mismatch of affordable-housing programs (including housing voucher programs, tax credits, and emergency rental assistance) to short-term crises, whether personal or nationwide. Yet the pandemic also helped reveal what building a housing safety net requires.

07 Nov 2022

Infrastructure Sharing in Cities

Sheila R. Foster

This Essay reflects on the ways that cities engaged in “infrastructure sharing” during the pandemic, and the implications for the potential of cities to address infrastructure inequity. The Essay argues that while cities found creative ways to repurpose public spaces, more can be done to repurpose their proprietary assets.

Forum Collection

Election Law and Democratic Renewal

Election law reflects collective efforts to institutionalize democratic precepts such as popular sovereignty, the rule of law, and the basic equality of citizens. However, recent elections have revealed fault lines that threaten these fundamental tenets. In response, this Collection discusses paths forward in the discipline for strengthening democratic accountability.

02 Nov 2022

Election Law and Election Subversion

Lisa Marshall Manheim

The threat of election subversion has forced scholars into a rule-of-law pivot. This Essay identifies three prescriptive approaches dominating this discourse and explores their fundamental advantages and limitations. It then explains how the field of election law must further expand to respond to the multidimensional challenges posed by election subversion.

02 Nov 2022

Electoral Adequacy

Joshua S. Sellers

This Essay considers the status of election law, as an academic field, and advocates an interdisciplinary research program oriented around the concept of electoral adequacy. Electoral adequacy’s premise is that states are obligated to provide a minimal set of entitlements, or a baseline level of election services, to all voters.

31 Oct 2022

The Majoritarian Difficulty

Bernadette Meyler

Many recent Supreme Court attacks on the administrative state have been rooted in an asserted effort to increase democratic accountability, or accountability to elected officials, whether the President or Congress. This approach neglects how the Constitution makes available a broader account of democracy that furnishes support for the administrative state. 

Forum Exchange

A Debate on the Future of the Legal Profession: Increased Nonlawyer Participation

Ralph Baxter and Stephen Younger debate reforming the ABA Model Rules of Professional Conduct to allow increased nonlawyer participation. Baxter argues reforms are necessary to solve the access-to-justice crisis. Younger contends nonlawyer ownership will not solve the crisis and would threaten the independence of the legal profession.

19 Oct 2022

Dereliction of Duty: State-Bar Inaction in Response to America’s Access-to-Justice Crisis

Ralph Baxter

Ralph Baxter explains how state bars can alleviate America’s access-to-justice crisis by opening up the justice system to let more people participate. Baxter argues that America has the resources to serve everyone, contends that state bars have a duty to unleash those resources, and prescribes a process to do so.

19 Oct 2022

The Pitfalls and False Promises of Nonlawyer Ownership of Law Firms

Stephen P. Younger

Whether nonlawyers should have ownership roles in law firms is a hotly debated topic. This Essay argues against rewriting existing ethical rules to permit nonlawyer ownership because it both fails to solve the access-to-justice problem, as advocates claim it will, and threatens the independence of the legal profession.

18 Oct 2022

The Abortion Interoperability Trap

Carleen M. Zubrzycki

There’s a hole in efforts to create abortion “safe havens”: they fail to recognize that medical care increasingly leaves a digital trail that will easily make its way back to abortion-seekers’ home states.  Lawmakers and providers must act now to shield politicized medical records by addressing this “interoperability trap.”

17 Oct 2022

Weaponizing Fear

S. Lisa Washington

Governor Abbott’s directive that the Texas Department of Family and Protective Services should investigate so-called “abusive sex change procedures” fits within a broader project of weaponizing fear to control marginalized families. The issue is not primarily the directive’s misuse of the family regulation system but the system itself. 

14 Oct 2022

Backdoor Municipal Immunity

Joanna C. Schwartz

Although local governments aren’t entitled to qualified immunity, four circuits have held that granting an officer qualified immunity dooms a failure-to-train claim against their employer. This “backdoor municipal immunity” misunderstands the role that court decisions actually play in police policies and training, and undermines Section 1983’s deterrence and compensation goals.

Forum Collection

Yale Law Journal Public-Interest Fellowship Essays

In this Collection, the 2021-22 Yale Law Journal Public-Interest Fellows draw on their fellowship experiences. The first Essay examines how state-level procedural protections fail to prevent excessive criminal sentences. The second argues the Supreme Court’s failure to clarify Fourth Amendment doctrine in light of mass digital surveillance threatens civil liberties.

10 Oct 2022

Excessive Sentencing Reviews: Eighth Amendment Substance and Procedure

Matt Kellner

Using Louisiana law as a case study, this Essay describes the consequences of the lack of substantive limits on noncapital sentences. It then critiques the focus on procedural rights that results from this vacuum of substantive rights, and discusses how to harness procedural changes to address excessive sentences.

10 Oct 2022

Unmanned Stakeouts: Pole-Camera Surveillance and Privacy After the Tuggle Cert Denial

Dana Khabbaz

The Supreme Court recently declined to review Tuggle, a Seventh Circuit opinion upholding warrantless, prolonged pole-camera surveillance of a home. This Essay argues that the Court missed an opportunity to update its Fourth Amendment search doctrine. This Essay also explores alternative opportunities—other than federal litigation—for safeguarding privacy rights.

05 Sep 2022

Security-Clearance Decisions and Constitutional Rights

Max Jesse Goldberg

In several recent cases involving claims that security-clearance decisions violated plaintiffs’ constitutional rights, courts have seemed more willing to scrutinize these decisions, which are usually seen as unreviewable. This Essay analyzes these cases and argues that federal courts are competent to review substantiated claims of constitutional-rights violations in security-clearance decisions. 

05 Jul 2022

Concerted Arbitration

Sam Heavenrich

With the emergence of mass arbitration, companies that once promoted arbitration now seek to block employees from arbitrating claims. This Essay argues that employees have a right to mass arbitrate their claims because mass arbitration is a concerted activity protected by the National Labor Relations Act.

23 Jun 2022

The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

David Horton

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was supposed to eliminate forced arbitration of cases involving sexual misconduct. This Essay explains why the Act fails to do so. In addition, it outlines what lawmakers and courts can do to fix this problem.

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