The Yale Law Journal


26 Apr 2022

A Proposed Postpandemic Framework for Ordinary Course and MAE Provisions in Merger Agreements: Reviewing Recent Market Practice Changes and Addressing Skewed Incentives

Gail Weinstein & David A. Cooperstein

This empirical analysis of merger agreements indicates an evolution in market practice since the COVID-19 pandemic toward providing additional flexibility to targets to respond to extraordinary events that may occur pending closing. This Essay argues that relying on the buyer’s providing consent for such responses is inadequate, and proposes a new framework for ordinary course covenants and MAE provisions.

28 Feb 2022

Mandatory Aggregation of Mass Tort Litigation in Bankruptcy

Ralph Brubaker

Nondebtor releases are the rotten core of the “bankruptcy grifter” phenomenon that Lindsey Simon’s article critiques. Such releases are an unconstitutional exercise of substantive common lawmaking by the federal courts, and they are not necessary for the bankruptcy process to facilitate efficient and fair aggregate settlements of mass tort litigation.

31 Jan 2022

In Search of Good Corporate Governance

Dorothy S. Lund

In this Forum Response, Dorothy Lund considers whether the “corporate governance gap” between large and small public companies is the product of harmful or beneficial forces, and in so doing, rejects the idea that there is a single governance framework that is optimal for all public companies.

31 Jan 2022

A Counter-History of First Amendment Neutrality

Genevieve Lakier

InThe Emergence of Neutrality, Jud Campbell provocatively argues that courts only recently recognized the importance of neutrality to First Amendment law. In this Response I argue that this claim is wrong: that neutrality has always been important to free speech law, even if its meaning has shifted over time.


2021 Yale Law Journal Student-Essay Competition

The Essays in this Collection won the fifth annual Yale Law Journal Student Essay Competition on emerging issues in employment and labor law. In Solidarity, Legitimacy, and the Janus Double Bind, J. Colin Bradley analyzes labor organizing and civic trust. In Unemployment Insurance for the Gig Economy, Benjamin Della Rocca proposes extending unemployment benefits to gig-economy workers.

26 Jan 2022

Solidarity, Legitimacy, and the Janus Double Bind

J. Colin Bradley

Janus’s failure to recognize a state interest in labor organizing contained a twofold mistake. Organizing develops a culture of civic trust. In turn, civic trust is necessary for citizens to accept the sorts of accommodations raised by conscience-based exemptions claims—like Janus’s—that the state must legitimize.

26 Jan 2022

Unemployment Insurance for the Gig Economy

Benjamin Della Rocca

Historically, U.S. unemployment insurance has excluded workers lying outside the conventional employer/employee binary. That should change. This Essay argues for extending benefits to gig-economy workers, via structures fashioned after states’ existing unemployment programs. It grounds its argument in two philosophical traditions foundational to tax-law scholarship: liberal egalitarianism and utilitarianism.

17 Jan 2022

On “Confetti Regulation”: The Wrong Way to Regulate Gamified Investing

Kyle Langvardt & James Fallows Tierney

Robinhood and similar investment apps bear a disturbing resemblance to video slot machines. This kind of “gamified” product design drives investors to lose money by overtrading. But if regulators try to cure the problem by de-gamifying the software, they will pick a First Amendment fight that securities law cannot afford. 

14 Jan 2022

Felon Re-Enfranchisement and the Problem of “Lost” Rights

Joshua M. Feinzig

Courts have upheld laws conditioning felon re-enfranchisement on financial repayment by reasoning that disenfranchised citizens lack the rights and protections of political equality. Drawing on legal and democratic theory, this Essay challenges that view. Because disenfranchised citizens retain cognizable interests in political participation, financial-repayment conditions are unconstitutional poll taxes. 

03 Jan 2022

The Overreach of Limits on “Legal Advice”

Lauren Sudeall

Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due-process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice.

30 Nov 2021

The Ostensible (and, at Times, Actual) Virtue of Deference

Anthony O’Rourke

Rethinking Police Expertise reveals how litigators can use police officers’ assertions of expertise against them. This Response questions the value, however, of urging judges to treat police expertise as a “professional technology” as opposed to a “professional virtue.” Insisting on this conceptual distinction may weaken the article’s considerable normative potential.  

Forum Collection

The Tax Revolution of the American Rescue Plan Act

This Collection surveys the novel tax implications of the American Rescue Plan Act (ARPA). These Essays analyze ARPA through the lens of fiscal impoverishment, race, unemployment insurance, and state and local responses to economic crises. Each Essay proposes changes to our tax system based on the lessons learned from ARPA.

28 Nov 2021

Revolutionizing Redistribution: Tax Credits and the American Rescue Plan

Ariel Jurow Kleiman

The American Rescue Plan Act temporarily altered refundable tax credits in 2021 to include previously excluded families and workers. These changes protect millions of households from being pushed into poverty by taxes. This Essay argues that Congress should build on these reforms to make refundable tax credits more protective.

28 Nov 2021

The American Rescue Plan and the Future of the Safety Net

Brian Galle

This Essay considers the lessons of the American Rescue Plan for design of the safety net, using unemployment insurance as a case study. It shows why UI failed and how to fix it, including how to provide benefits to part-time workers.

28 Nov 2021

Getting Beyond Ad Hoc Fiscal Federalism: A Proposal for a Default Federal Liquidity Facility for the States

Darien Shanske

Our current approach to state debt overcorrects for the problem that states might borrow too much.We can do better and aspects of the federal response to the pandemic illustrate how.The federal government should make forgiveable low-cost loans available to the states, but within limits to prevent moral hazard. 

28 Nov 2021

Biden’s Gambit: Advancing Racial Equity While Relying on a Race-Neutral Tax Code

Goldburn P. Maynard Jr.

This Essay analyzes ARPA’s major provisions to determine their potential impact on racial equity. It argues that the Biden Administration should do more to tackle racial wealth inequality and the structural issues in the tax code that allow the rich to benefit disproportionately from tax subsidies.

19 Nov 2021

Ordering Conduct Yet Evading Review: A Simple Step Toward Preserving Federal Supremacy

Georgina Yeomans

Texas’s patently unconstitutional Senate Bill 8, which effectively bans abortions and assigns enforcement to private individuals, has forced the question whether states can insulate their laws from pre-enforcement review. This piece offers a roadmap for the Court to hold that states may not engage in such procedural trickery.

Forum Collection

Envisioning Equitable Online Governance

This Collection examines how inequality manifests on social media platforms and in the digital public sphere. Essays analyze how race, gender, and other facets of identity shape people’s experience of and access to the digital public sphere and explore the harms minority groups suffer in these spaces. Several Essays chart paths for legislative reform.

The Forum publishes this Collection in collaboration with the Information Society Project (ISP), including ISP Fellows Elettra Bietti and Adam Posluns, and with the generous support of the Knight Foundation.

16 Nov 2021

Beyond the Public Square: Imagining Digital Democracy

Mary Anne Franks

To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic cliché of the unregulated public square and commit to the hard work of designing for democracy.

16 Nov 2021

Agonistic Privacy & Equitable Democracy

Scott Skinner-Thompson

Privacy protections play a vital role in disrupting surveillance-caused subordination and should be at the forefront of efforts to reform digital and physical public space. Robust privacy protections empower marginalized groups to safely participate, while increasing heterogeneity within the public sphere and enabling the healthy contestation of ideas. 

16 Nov 2021

Platform Realism, Informational Inequality, and Section 230 Reform

Olivier Sylvain

Online companies bear few duties under law to tend to the discrimination that they facilitate or the disinformation that they deliver. Consumers and members of historically marginalized groups are accordingly the likeliest to be harmed. These companies should bear the same, if not more, responsibility to guard against such inequalities.

16 Nov 2021

Language on the Move: “Cancel Culture,” “Critical Race Theory,” and the Digital Public Sphere

Khiara M. Bridges

Scores of people have been talking about “cancel culture” and “Critical Race Theory” recently. However, what people mean when they use the terms varies wildly. This Essay analyzes the role that the digital public sphere has played in generating these examples of language on the move.

16 Nov 2021

Dismantling the “Black Opticon”: Privacy, Race, Equity, and Online Data-Protection Reform

Anita L. Allen

African Americans suffer a discriminatory predicament, a “Black Opticon” of  panoptic oversurveillance, ban-optic exclusion and con-optic predation. The Virginia Consumer Data Protection Act, a federal Data Protection Act, and proposed FTC expansions are measured critically against imperatives of civil rights and a race-conscious African American Online Equity Agenda.

Forum Collection

Bankruptcy and Restructuring in Response to Exogenous Shocks

This Collection explores the impact of exogenous shocks on corporate restructurings and bankruptcies. These Essays analyze trends in restructuring practices and policy making, and they carefully consider the relationship between market forces and the Bankruptcy Code in achieving efficient restructuring outcomes that benefit a variety of stakeholders.

10 Nov 2021

Pandemic Hope for Chapter 11 Financing

David Skeel

The pandemic revealed that the increasing complexity of debtors’ capital structure could supply much-needed competition in the Chapter 11 financing market, as other inside lenders increasingly challenge a debtor’s favored inside lenders. After discussing the benefits of this surprising development, the Essay identifies several impediments and offers strategies for removing them.

10 Nov 2021

COVID-19 Debt and Bankruptcy Infrastructure

Robert K. Rasmussen

The COVID induced debt spike on corporate balance sheets portends a wave of future bankruptcy cases. Congress should act now to build up a bankruptcy infrastructure by requiring that every circuit create a “business bankruptcy panel” designed to administer the Chapter 11 filing of large companies. Recent Delaware caselaw would likely enforce a corporation’s precommitment to file in one of these venues.

10 Nov 2021

J. Crew, Nine West, and the Complexities of Financial Distress

Kenneth Ayotte & Christina Scully

The law-and-economics literature assumes that omnisciently rational “sophisticated parties” write optimal contracts, making bankruptcy law unnecessary. Two case studies, J. Crew and Nine West, illustrate the limitations of this idealized model. We argue for a theory of debt contracting based in bounded rationality that recognizes bankruptcy’s inherent complexity.

10 Nov 2021

Small Business Disaster Relief and Restructuring

Brook E. Gotberg

To assist small businesses in the wake of an exogenous shock, Congress should consider implementing a system of lending that models the financing provided to small business debtors in a bankruptcy proceeding. Such a system would be more targeted, effective, and fair than traditional government loans, but less stigmatizing than bankruptcy.

10 Nov 2021

Shocking Business Bankruptcy Law

Melissa B. Jacoby

The intersection of major crises and financial distress generates no shortage of stock stories. This Essay offers one more: how shocks can be used opportunistically in big Chapter 11 cases to unravel bankruptcy law, and to shift the system further away from the objective of responding to overindebtedness.

Forum Collection

The Contemporary Family

This Collection explores how the law treats the modern family. From divorced families to LGBTQ+ families to chosen families, these Essays suggest ways that the law should evolve to match emerging family structures. Two debating Essays illustrate the clash between religious beliefs about family and antidiscrimination law after the Supreme Court's decision in Fulton.

05 Nov 2021

Chosen Family, Care, and the Workplace

Deborah A. Widiss

Although federal law offers, at best, unpaid time off work to care for family members with medical needs, recently enacted state laws guarantee paid leave. This Essay argues the laws are groundbreaking in their inclusion of nonmarital partners, extended family, and other chosen family, and it proposes strategies for effective implementation. 

05 Nov 2021

The Case for Creative Pluralism in Adoption and Foster Care

Alexander Dushku

Religious and secular beliefs about marriage and sexuality are often in tension. Partisans on both sides commonly insist that public policy entirely reflect their views, which leads to perpetual conflict. This Essay advocates for pluralistic solutions to such conflicts, using an example from the context of adoption and foster care.

05 Nov 2021

Religious Exemptions and the Family

Louise Melling

This Essay highlights the threat claims for religious exemptions to antidiscrimination laws pose to the diverse family arrangements that now populate our society. It argues we should not abide efforts to thwart, undermine, and ultimately overturn advances in equality norms in the family based on religious belief.

05 Nov 2021

Ridding the Family-Law Canon of the Relics of Coverture: The Due Process Right to Alternative Fee Arrangements in Divorce

Zachary Potter

The prohibition on contingency fee arrangements with divorce lawyers is a relic of the coverture regime. It cannot withstand Due Process scrutiny because the supposed governmental interests it purports to advance—burdening access to the divorce process for economically vulnerable persons—are not legitimate governmental interests under modern constitutional jurisprudence.

Forum Collection

Legal Ethics in Today’s Political Climate

In this Collection, academic, judicial, and political voices examine the relationship between legal and judicial ethics and today’s political climate. The Essays range from discussions of the theoretical pillars of legal ethics to the appropriate boundaries of ethical behavior by various actors and institutions. Several suggest possible reforms.

24 Oct 2021

Pluralism, Polarization, and the Common Good: The Possibility of Modus Vivendi Legal Ethics

W. Bradley Wendel

Scholars and critics of the legal profession often call on lawyers to represent clients in the public interest or with due regard for justice. However, in a climate of intense political polarization, rule-of-law values are of paramount significance for legal ethics.

24 Oct 2021

Lawyer Lies and Political Speech

Renee Knake Jefferson

Lawyer lies designed to sabotage valid election results are not protected political speech under the First Amendment. Ethics rules governing candor and frivolous litigation require sanctions, if not disbarment. Moreover, the duty of candor should be extended from the courthouse to the public square when lawyer lies threaten our democracy.

24 Oct 2021

A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency

Sheldon Whitehouse

This Essay explores how amicus briefs became a tool for coordinated judicial lobbying by dark-money interests. I show how current funding-disclosure rules for amici fail to provide genuine transparency—undermining fairness—and discuss reforms that could improve the judiciary’s amicus-disclosure regime and restore faith in the courts.

24 Oct 2021

Staying Off the Sidelines: Judges as Agents for Justice System Reform

Bridget Mary McCormack

Chief Justice Bridget McCormack argues there is no ethical obstacle to judges working to improve the justice system. To the contrary: although ethical constraints limit the form of their advocacy, effective law reform depends on judges’ contributions and they are ethically obligated to improve the judicial system over which they preside.

24 Oct 2021

Politics and Judicial Ethics: A Historical Perspective

M. Margaret McKeown

This Essay explores the ethics and politics of extrajudicial activities from a distinctly historical perspective. While others have written about judges and their political and extrajudicial endeavors, this Essay situates its discussion within the evolution of judicial ethics codes, beginning in antiquity and proceeding to the present.

Forum Collection

Vaccines and the Law

This Collection taps into ongoing legal discussions related to vaccine development, approval, and administration processes during and beyond the COVID-19 pandemic. The first Essay of the series (Vaccination Equity by Design) proposes a federal regulatory framework for countering the inverse equity effects of initial vaccine rollout.

18 Sep 2021

Vaccination Equity by Design

Kristen Underhill & Olatunde C.A. Johnson

This Essay examines how states’ initial COVID-19 vaccine-distribution strategies tended to disadvantage populations of color, including Black, Latinx, and Native American communities. These dynamics resonate with “inverse equity” effects of other public-health innovations. We argue for a federal regulatory framework to reduce inequity-forcing effects during initial vaccine rollout.

18 Sep 2021

Depolarizing the COVID Vaccine Passport

Sebastián Guidi, Alessandro Romano & Chiara Sotis

Vaccine passports are the latest item in the COVID culture wars and are fiercely opposed by some. Can anything be done to depolarize positions around them and other public health issues? We show how flagging that vaccine passports are not a novelty and can foster support and depolarize positions around them.

18 Sep 2021

Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause

Zalman Rothschild

While scholars have interpreted Fulton v. City of Philadelphia as a minimalist decision that avoids revolutionizing the Free Exercise Clause, this Essay uses vaccine mandates as a case study to clarify how Fulton has in fact transformed it by interpreting the right to free exercise as an expansive equality right. 

Forum Collection

Yale Law Journal Public-Interest Fellowship Essays

In this Collection, the 2020-21 Yale Law Journal Public-Interest Fellows draw on their work experiences. The first Essay in this Collection argues that Congress can and should replace the existing state-law defamation regime with a federal defamation law.

15 Sep 2021

The Case for a Federal Defamation Regime

Alexandra M. Gutierrez

This Essay argues that Congress can and should replace the existing state-law defamation regime with a federal defamation law. Doctrinally, a federal regime would better fit the modern, boundaryless digital-communications paradigm. Practically, it would benefit press organizations by ensuring their access to the federal courts in defamation cases.

15 Sep 2021

Arbitration Asymmetries in Class Actions

Emily Villano

Courts frequently deny class certification when confronted with “arbitration asymmetries”: cases where the class representative is not bound to arbitrate claims, but class members may be. The result? Courts enforce illegal or nonexistent arbitration agreements. To avoid such patent injustice, this Essay advances an alternate approach to arbitration asymmetries.

31 May 2021

Equal Supreme Court Access for Military Personnel: An Overdue Reform

Eugene R. Fidell, Brenner M. Fissell & Philip D. Cave

Federal law currently provides for direct Supreme Court review of criminal convictions from almost all American jurisdictions, but not of most court-martial convictions. For them, an Article I court can veto access to the Supreme Court. This Essay argues for elimination of that veto.