The Yale Law Journal


22 Apr 2024

How to Get the Property Out of Privacy Law

Jane R. Bambauer

Privacy law emphasizes control over “your” data, but requiring consent for each data use is unprincipled, not to mention utterly impractical in the AI era. American lawmakers should reject the property model and use a framework that creates defined zones of privacy and clear safe harbors, irrespective of consent.

22 Apr 2024

ARTificial: Why Copyright Is Not the Right Policy Tool to Deal with Generative AI

Micaela Mantegna

This Essay critiques the inadequacy of copyright law to address the challenges Generative Artificial Intelligence (GAI) poses. By analyzing copyright law’s frictions and inconsistent treatment of technical terms, and challenging the definitions of creativity, this Essay establishes a taxonomy of individual- and society-level rationales against using copyright to regulate GAI.

22 Apr 2024

The Ethics and Challenges of Legal Personhood for AI

Hon. Katherine B. Forrest (Fmr.)

AI’s increasing cognitive abilities will raise challenges for judges. “Legal personhood” is a flexible and political concept that has evolved throughout American history. In determining whether to expand that concept to AI, judges will confront difficult ethical questions and will have to weigh competing claims of harm, agency, and responsibility.

22 Apr 2024

Constructing AI Speech

Margot E. Kaminski & Meg Leta Jones

This Essay advocates for a “legal construction of technology” approach to AI speech, challenging the notion that technology disrupts law and emphasizing how law shapes technology based on societal value. Applying the method to four different legal constructions of AI, the authors examine AI within First Amendment jurisprudence, content moderation, risk regulation, and consumer protection, highlighting the proactive role of legal actors in aligning AI development with democratic values and norms.

17 Apr 2024

Can We Save Our Foodways? The Inflation Reduction Act, Climate Change, and Food Justice

Daniel Cornelius & Steph Tai

This Essay examines USDA programs supported by the Inflation Reduction Act and its approach toward addressing climate change and historical funding inequities for Indigenous and Black Farmers.  It also argues for how the next Farm Bill can expand upon these efforts to further address inequities and promote climate resilience.

16 Apr 2024

Bankruptcy by Another Name

Anthony J. Casey & Joshua C. Macey

A recent essay in this Journal critiques bankruptcy for limiting the litigation system’s ability to promote noneconomic public-policy goals. This Response argues that bankruptcy can and does further these public values, and that it is reasonably easy to tweak bankruptcy law to accommodate these goals more effectively.

11 Apr 2024

Making History

Melissa Murray

foreword What is history but a fable agreed upon? —Napoleon Bonaparte. Introduction October Term 2021 was a momentous one for the United States Supreme Court. In a series of decisions, the Court overturned two long-standing precedents guaranteeing the right to abortion,1 expanded the scope of the Second Amendment,2 and appeared to consign the Establishment Clause to the dustbin of history.3 This Collection focuses on the methods by which the Court produced that firs…

11 Apr 2024

Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It

Aaron Tang

Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court reconsiders Dobbs v. Jackson Women’s Health Organization, it will find an opinion whose historical errors dwarf those in Bowers.

11 Apr 2024

The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation

Reva B. Siegel

In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay traces the method’s spread, evolution, and justifications through decades of debate about originalism, history and tradition, and “levels of generality.”

11 Apr 2024

The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition

Mary Ziegler

By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.

11 Apr 2024

History and Tradition’s Equality Problem

Cary Franklin

This Essay identifies a key feature of the Court’s new history-and-tradition doctrine that has not yet attracted significant attention: outcomes in history-and-tradition cases (involving guns, abortion, etc.) are often driven by hidden, contemporary judgments about equality—judgments whose implications may extend far beyond these cases.

01 Apr 2024

Brandeisian Banking

Kathryn Judge

For much of the twentieth century, banking law used an array of carrots and sticks to create a banking system that was both very stable and highly decentralized. This history is key to understanding how banking law has, and could again, serve Brandeisian aims.

29 Mar 2024

The Right to Amend State Constitutions

Jessica Bulman-Pozen & Miriam Seifter

This Essay explores the people’s right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.

29 Mar 2024

De-judicialization Strategies

Mila Versteeg & Emily Zackin

Constitutions have long been understood to empower courts. We argue, however, that constitutions can also be used to de-judicialize politics. We focus on the de-judicialization strategy of adding detailed provisions to U.S. state constitutions, and demonstrate that it has been employed throughout U.S. history and is still in use today.

29 Mar 2024

Tar Heel Constitutionalism: The New Judicial Federalism in North Carolina

Anita Earls

Like many other state constitutions, the North Carolina Constitution contains unique provisions guaranteeing individual rights not present in the U.S. Constitution. This Essay explores the extent to which political and civil rights in the North Carolina Constitution have been enforced by the state supreme court in modern times.

29 Mar 2024

The “Bounds” of Moore: Pluralism and State Judicial Review

Leah M. Litman & Katherine Shaw

This Essay examines a potential version of the “independent state legislature theory” (ISLT) that, were it adopted, could require states to adopt particular interpretive methods for state laws regarding federal elections. That ISLT variant, however, has no basis in history, federalism, or democracy.

13 Mar 2024

Hayek Goes to Family Court

Jackson Neagli

Applying Hayek’s theory of law and liberty to contemporary American family law, this Essay concludes that family-law scholars—especially those undertaking distributional analyses—would benefit from greater attention to the Hayekian values of predictability, adaptation, and equal application.

13 Mar 2024

Facilitating Future Workforce Participation for Stay-at-Home Parents: Mitigating the Career Costs of Parenthood

Isabella Soparkar

Current policies help parents stay in the workforce after having children. But what about the quarter of American mothers who choose to become stay-at-home moms, then later face employment obstacles? This Essay proposes expanding worker opportunity tax credits and Title VII to help stay-at-home parents return to work when ready.

08 Mar 2024

The Insidious War Powers Status Quo

Rebecca Ingber

This Essay highlights two features of modern war powers that hide from public view decisions that take the country to war: the executive branch’s exploitation of interpretive ambiguity to defend unilateral presidential authority, and its dispersal of the power to use force to the outer limbs of the bureaucracy.

08 Mar 2024

War Powers Reform: A Skeptical View

Matthew C. Waxman

Debates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reformists suppose, and there are ways to improve Congress’s political checking without substantial legal reform.

27 Feb 2024

What It Takes to Write Statutes that Hold the Firearms Industry Accountable to Civil Justice

Heidi Li Feldman

This Essay defends statutes creating public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. Such laws are predicate statutes under PLCAA and do not infringe the Second Amendment.

26 Feb 2024

An Expansive View of “Federal Financial Assistance”

Shariful Khan

Thanks to an ambiguity in civil-rights statutes passed under Congresss spending power, many programs enjoy ample financial benefits while avoiding the requirements of federal antidiscrimination laws. This Essay argues that the remedy lies in a statutory reading that aligns with the expansive nature of the civil-rights statutes themselves.

16 Feb 2024

What Are Federal Corruption Prosecutions for?

Lauren M. Ouziel

This Essay considers the role of prosecutors in the Supreme Court’s decades-long contraction of public corruption law. It examines how federal prosecutors’ reliance on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption, and considers how prosecutors might adjust their approach. 

16 Feb 2024

Demoralizing Elite Fraud

Zephyr Teachout

The Supreme Court’s effort to avoid interpreting morally weighted terms like “fraud” and “honest services” has led it to make bad and confusing law in wire-fraud cases. These cases, unlike Citizens United and its ilk, are unanimous, joining liberal and conservative Justices, reflecting a shared skepticism about anticorruption law.

16 Feb 2024

The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco

Ciara Torres-Spelliscy

In Percoco, the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to make prosecuting corrupt campaign managers arduous.

16 Feb 2024

Navigating Between “Politics as Usual” and Sacks of Cash

Daniel C. Richman

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments.

09 Feb 2024

Against Bankruptcy: Public Litigation Values Versus the Endless Quest for Global Peace in Mass Litigation

Abbe R. Gluck, Elizabeth Chamblee Burch & Adam S. Zimmerman

For the first time in years, in the Purdue Pharma opioids litigation, the Court is reviewing an unorthodox bankruptcy maneuver aimed at securing global settlement. This Essay critiques corporate defendants’ increasingly common turn to bankruptcy to shut down, or avoid altogether, complex civil litigation and the public goods it generates.

29 Jan 2024

“We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws

David Cole

In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws. 

04 Dec 2023

The End of Asylum Redux and the Role of Law School Clinics

Elora Mukherjee

The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then identifies emerging opportunities for law school clinics to address these new challenges, including by serving asylum seekers south of the U.S.-Mexico border.

04 Dec 2023

Establishment as Tradition

Marc O. DeGirolami

Traditionalism holds that enduring practices are the presumptive determinants of constitutional meaning and law. This Essay examines two questions: Why has traditionalism had special salience in interpreting the Establishment Clause? And is traditionalism more disposition or mood than constitutional theory, more a matter of the heart than of the head?

04 Dec 2023

Freedom for Religion

Michael Stokes Paulsen

The First Amendment’s religious-freedom provisions are best understood as protecting “freedom for religion”—religious liberty for the benefit of religion, for generous protection of its free exercise by individuals and groups, and for the autonomy of religious institutions. The Supreme Court’s most recent decisions appear headed in that direction.

04 Dec 2023

Replacing Smith

Stephanie H. Barclay

As the Supreme Court has sought to ground more of its constitutional jurisprudence in original understanding, it has signaled an interest in revisiting aspects of Employment Division v. Smith. This Essay assesses potential replacement doctrines and defends a historically grounded version of strict scrutiny that does not require judicial balancing.

22 Nov 2023

The Continued (In)visibility of Cyber Gender Abuse

Danielle Keats Citron

This Essay highlights the continued invisibility of cyber gender abuse. The Supreme Court in Counterman v. Colorado regrettably exacerbated this problem. Now is time to reignite the discussion around cyber gender abuse, recognize the profound harms it causes, and pursue a reform agenda to combat it.

22 Nov 2023

Abolitionist Prison Litigation

Molly Petchenik

There has long been a perceived tension between abolition and prison-conditions litigation. This piece offers a path forward for such litigation that is consistent with abolitionist goals. Drawing from experience with Texas state prisons, the piece proposes a framework for litigating prison understaffing that advances the project of abolition. 

22 Nov 2023

State Implementation of the Electoral Count Reform Act and the Mitigation of Election-Subversion Risk in 2024 and Beyond

Kate Hamilton

The ECRA is a major step toward preventing future election subversion. But since states and localities administer elections, its success depends on state compliance. This Essay details how states should update their election codes ahead of the 2024 elections to guarantee that the new law lives up to its promise.

22 Nov 2023

Judging Debt: How Judges’ Practices in Consumer-Credit Court Undermine Procedural Justice

Nina Lea Oishi

This Essay draws from on-the-ground interviews and procedural-justice theory to analyze judging practices in debt-collection courts. Current practices undermine courts’ fairness and legitimacy. This Essay argues that courts must prioritize procedural justice by adopting judging practices that consider unrepresented litigants’ circumstances and require a more active judicial role.

21 Nov 2023

Remedies and Incentives in Presidential Removal Cases

Eli Nachmany

In Separation-of-Powers Avoidance, Z. Payvand Ahdout reconceptualizes a bevy of separation-of-powers precedents as judicial avoidance. But one of the cases she cites as a foil—Seila Law LLC v. Consumer Financial Protection Bureau—is a curious fit. The removal cases are tough to categorize in the separation-of-powers corpus.

31 Oct 2023

Opaque Capital and Mass-Tort Financing

Samir D. Parikh

Mass-tort cases have grown in scale and created escalating resource demands. Enter opaque capital: aggressive financiers who offer attorneys and plaintiffs access to capital. The prospect of leveling the playing field is alluring. But these financiers will never be passive partners. Opaque capital is moving into mass-tort financing to dictate outcomes.