The Yale Law Journal




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.