The Yale Law Journal


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.

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.

21 Nov 2023

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.

21 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.

15 Nov 2023

Navigating Between “Politics as Usual” and Sacks of Cash

Daniel 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.

15 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.

10 Nov 2023

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.

06 Nov 2023

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.

06 Nov 2023

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.”

06 Nov 2023

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.

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.

20 Oct 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.