The Yale Law Journal

Administrative Law

Article

Inside the Agency Class Action

Michael Sant'Ambrogio & Adam S. Zimmerman

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a re…

Essay

Agency Design and Political Control

Christopher R. Berry & Jacob E. Gersen

Although historical debates about the separation of powers focus on Congress, the President, and the Judiciary, in modern times, the bureaucracy is the elephant in the room. In a world of seemingly inevitable widespread congressional delegation to administrative agencies, as we…

Article

The Origins of Judicial Deference to Executive Interpretation

Aditya Bamzai

Judicial deference to executive statutory interpretation—a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doc…

Article

Localist Administrative Law

Nestor M. Davidson

To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrativ…

Note

Playing Nicely: How Judges Can Improve Dodd-Frank and Foster Interagency Collaboration

Joshua C. Macey

Devised in the aftermath of the most severe financial crisis since the Great Depression, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) was enacted to reduce risk, increase transparency, and promote market integrity. Since Dodd-Frank was sig…

Article

The Cycles of Separation-of-Powers Jurisprudence

Aziz Z. Huq & Jon D. Michaels

abstract.The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although the Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between hard-edged rules and open-textured standards. The Court’s seem…

Forum

The “Freedom From Information” Act: A Look Back at Nader, FOIA, and What Went Wrong

David E. McCraw

Not long after the Freedom of Information Act (“FOIA”) went into effect, consumer advocate Ralph Nader sent one hundred students out to test whether the statute was working. The students made FOIA requests to more than a dozen federal agencies on a range of consumer topics, from highway safety and a…

Forum

A Resurgence of Secret Law

Jameel Jaffer & Brett Max Kaufman

This much should be uncontroversial: the public should have access to the law and to the government’s interpretations of it. This principle is an imperative not just of due process but also of republican governance. The Freedom of Information Act (FOIA), which the Eighty-ninth Congress enacted half …

Forum

Memorandums to Messages: The Evolution of FOIA in the Age of the Internet

Melanie A. Pustay

This year marks the fiftieth anniversary of the Freedom of Information Act (FOIA). In the words of President Obama, this law, “which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government.” Since its enactment…

Forum

Inside FOIA, Inc.

Margaret B. Kwoka

The Freedom of Information Act (FOIA) has a lofty goal: to open the doors of government offices and allow the public a front-row seat in watching over government affairs. In turn, this sort of bright transparency should enhance our participatory democracy and the accountability of our elected offici…

Forum

Is Open Data the Death of FOIA?

Beth Simone Noveck

For fifty years, the Freedom of Information Act (FOIA) has been the platinum standard for open government in the United States. The statute isconsidered the legal bedrock of the public’s right to know about the workingsof our government. More than one hundred countries and all fifty states haveenact…

Forum

Securities Settlements in the Shadows

Urska Velikonja

The Dodd-Frank Act authorized the Securities and Exchange Commission (“SEC”) to bring almost any enforcement action in an administrative proceeding. Before Dodd-Frank, the SEC could secure civil fines against registered broker-dealers and investment advisers in administrative proceedings, but had to…

Article

The President’s Budget as a Source of Agency Policy Control

Eloise Pasachoff

A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely…

Article

Administrative Forbearance

Daniel T. Deacon

This Article investigates the normative and constitutional case for a particular form of congressional delegation that is of increasing practical importance: delegations that give agencies the power to deprive statutory provisions of legal force and effect, a power this Artic…

Comment

Jurisdictional Rules and Final Agency Action

Sundeep Iyer

When Congress creates a statutory cause of action, some required elements of that cause of action may be considered “jurisdictional,” while others may not. The difference between jurisdictional and nonjurisdictional requirements is subtle but important. A jurisdictional element limit…

Forum

Bounds in Bank Regulation

Sung Eun (Summer) Kim

Introduction In his recent essay, Bounded Institutions,1 Yair Listokin examines bounded and unbounded structures as two alternative designs for principals to delegate regulatory authority to their agents.2 Bounds refer to numerical or quantifiable limitations that are set by the principa…

Article

The President and Immigration Law Redux

Adam B. Cox & Cristina M. Rodríguez

In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield nearly half the population of unauthorized immigrants from removal and en…

Comment

Interbranch Removal and the Court of Federal Claims: “Agencies in Drag”

James Anglin Flynn

Last summer, the D.C. Circuit upheld a statute that gives the President the power to remove judges of the United States Tax Court.1 Kathleen and Peter Kuretski, a taxpayer couple, had challenged the constitutionality of that provision, alleging that it granted an executive official the imper…

Forum

Justice Thomas and the Originalist Turn in Administrative Law

Brian Lipshutz

Introduction Until this term, administrative law seemed beyond the reach of originalist scrutiny at the Supreme Court. Then, in a series of six originalist opinions, Justice Thomas called into question agency rulemaking, judicial deference to agencies, and certain agency adjudications…

Forum

Pixelating Administrative Common Law in Perez v. Mortgage Bankers Association

Kathryn E. Kovacs

In Perez v. Mortgage Bankers, the Supreme Court struck down a rule of administrative common law on the grounds that it was inconsistent with the Administrative Procedure Act (APA). But instead of simply respecting Congress’s deliberate choices, the Court continues to weigh policy considera…

Forum

Statutory Ambiguity in King v. Burwell: Time for a Categorical Chevron Rule

Bradley Silverman

Introduction The fate of the Affordable Care Act1 (ACA) may turn on the precise meaning of five words tucked into 26 U.S.C. § 36B(b)(2)(A), a once-obscure provision of the law under which tax subsidies are available for “qualified health plans . . . which were enrolled in through an exc…

Forum

No Good Options: Picking Up the Pieces After King v. Burwell

Nicholas Bagley & David K. Jones

Introduction If the Supreme Court rules against the government in King v. Burwell,1 insurance subsidies available under the Affordable Care Act (ACA) will evaporate in the thirty-four states that have refused to establish their own health-care exchanges.2 The pain could be felt within week…

Forum

Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms

Eric A. Posner & E. Glen Weyl

In two recent articles, we urged financial regulators to use cost-benefit analysis (CBA) to evaluate financial regulations.1 John Coates has emerged as a leading critic of this view.2 In this essay, we respond to his objections. We make several points. First, Coates conflates two separate …

Forum

Financial Regulation and Cost-Benefit Analysis

Cass R. Sunstein

I. what government doesn’t know Cost-benefit analysis is best understood as a way for agencies to ensure that their decisions are informed—that they are based on knowledge about likely consequences, rather than on dogmas, intuitions, hunches, or interest-group pressures.1 But when agen…

Forum

Economists in the Room at the SEC

Bruce R. Kraus

The SEC’s economic analysis has been under fire in recent years. This essay argues that the agency’s response to successful challenges to its rules has produced real progress in the SEC’s rulemaking process as well. The SEC has refined its internal processes and improved its work produc…

Forum

Cost-Benefit Analysis of Financial Regulation: A Reply

John C. Coates IV

Let me begin by thanking Professors Posner, Weyl, and Sunstein, and Mr. Kraus, for their thoughtful and thought-provoking replies, and the editors of the Yale Law Journal for organizing this exchange. The comments are rich, and a full response would take on the size of another article—but …

Forum

Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders

Rebecca Wexler

Introduction Since the 1980s, the FBI has issued documents referred to as National Security Letters (NSLs), which demand data from companies—including financial institution records and the customer records of telephone companies and communications service providers—for foreign intellig…

Forum

Fighting for the "Right To Try" Unapproved Drugs: Law as Persuasion

Sam Adriance

Over the last several months, five states have passed “Right to Try” laws,1 which are designed to allow terminally ill patients to obtain experimental drugs.2 Often popularly known as “Dallas Buyers Club” laws,3 Right to Try legislation appears to bypass the FDA’s safety procedures…

Forum

Questioning the Use of Structure To Interpret Statutory Intent: A Critique of Utility Air Regulatory Group v. EPA

Matthew R. Oakes

In late 2009 and early 2010, the Environmental Protection Agency promulgated a series of final agency actions that operate together to regulate greenhouse gas (GHG) emissions under the Clean Air Act (CAA). Under some CAA programs, sources of pollution are required to obtain permits based on …

Note

Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes

Josh Bendor & Miles Farmer


122 Yale L.J. 1280 (2013).

This Note examines whether state or federal principles of administrative law should govern suits challenging state agency action pursuant to cooperative federalism statutes. Despite the prevalence of cooperative federalism statutes, courts and scholars alike have given scan…

Forum

Inflation Indicators

Jonathan Masur

**This is the sur-reply to a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Lisa Ouellette's response, see here.**

In Patent Inflation, I argued that the asymmetry in Federal Cir…

Forum

What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings

Lisa Larrimore Ouellette

**This is the second in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Professor Masur's sur-reply, see here.**

Professor Jonathan Masur’s recent article,
Patent Inflation, argue…

Forum

Who’s Afraid of the Federal Circuit?

Arti K. Rai

**This is the first in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Lisa Ouellette's response, see here. For Professor Masur's sur-reply, see here.**

Jonathan Masur’s argument regarding “Patent Inflation” rests on the a…

Forum

Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming

Richard A. Epstein

**This is the first in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ.**

In Prods and Pleas, Benjamin Ewing and Douglas Kysar claim that the American legal sy…

Forum

AEP v. Connecticut’s Implications for the Future of Climate Change Litigation

Hari M. Osofsky

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “th…

Forum

A Tale of Two Climate Cases

Jonathan H. Adler

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In July 2004, eight states, the City of New York, and a number of conservation organ…

Forum

Climate Justice and the Elusive Climate Tort

Maxine Burkett

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

The Supreme Court’s decision in American Electric Power Co. v. Connecticut (AEP) clo…

Forum

Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine

Daniel A. Farber

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

Article III standing has three seemingly simple components: (1) the plaintiffs must …

Forum

What Litigation of a Climate Nuisance Suit Might Look Like

Michael B. Gerrard

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly le…

Article

Allocating Power Within Agencies

Elizabeth Magill & Adrian Vermeule

120 Yale L.J. 1032 (2011). 

Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental …

Article

Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut

David L. Franklin

120 Yale L.J. 276 (2010). 

Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exemp…

Note

Accountability, Deference, and the Skidmore Doctrine

Bradley Lipton

119 Yale L.J. 2096 (2010). 

This Note argues that government agencies should receive substantial deference when they interpret statutes informally under the standard of Skidmore v. Swift & Co. A key reason why courts defer to agencies is that agencies are more politically accountable than courts. C…

Article

Federal Administration and Administrative Law in the Gilded Age

Jerry L. Mashaw

119 Yale L.J. 1362 (2010). 

The dominant story of America’s so-called “Gilded Age” describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal politicians, ran roughshod over a national state apparatus incapable of responding…

Forum

The Dirty Climate Debate

Brian H. Potts

Climate change has become the hottest environmental debate in decades. It could also go down as the dirtiest—and not just politically. As legislators, regulators, pundits, and stakeholders debate the question of whether or not to regulate greenhouse gas emissions, the regulatory uncertainty that t…

Note

Strategic or Sincere? Analyzing Agency Use of Guidance Documents

Connor N. Raso

119 Yale L.J. 782 (2010). 

This Note examines whether U.S. regulatory agencies frequently use guidance documents to issue policy decisions, avoiding the notice and comment process and other procedures normally required to issue rules. Legal scholars and recent presidential administrations both have…

Comment

Constitutional Avoidance Step Zero

Anthony Vitarelli

119 Yale L.J. 837 (2010). 

Article

Proposing a Place for Politics in Arbitrary and Capricious Review

Kathryn A. Watts

119 Yale L.J. 2 (2009). 

Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the no…

Forum

Regulating Federal Prosecutors: Let There Be Light

Bruce A. Green

The Office of Professional Responsibility (OPR), housed within the U.S. Department of Justice (DOJ), investigates alleged misconduct by federal prosecutors and other DOJ personnel. Under the Bush administration, even when OPR found serious prosecutorial misconduct, DOJ kept the disciplinary investig…

Article

Normative Canons in the Review of Administrative Policymaking

Kenneth A. Bamberger

118 Yale L.J. 64 (2008).

 

Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congress—norms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separa…

Article

Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861

Jerry L. Mashaw

117 Yale L.J. 1568 (2008).

Jacksonian America was a country in rapid transition. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political refor…

Essay

Justifications, Power, and Authority

Malcolm Thorburn

117 Yale L.J. 1070 (2008).

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structu…

Comment

Sheltering Deprivations: FEMA, Section 408 Housing, and Procedural Redesign

Damian Williams

116 Yale L.J. 1883 (2007).

Article

Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829

Jerry L. Mashaw

In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nat…

Article

The Constitutional Foundations of Chenery

Kevin M. Stack

116 Yale L.J. 952 (2007)

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review…

Forum

Improving Deference: Chevron as a Voting Rule

Jacob E. Gersen & Adrian Vermeule

Of central importance to administrative law and theory is the question whether, and when, courts will defer to agency interpretations of law. In Chevron v. Natural Resources Defense Council, the Supreme Court replaced earlier answers to that question with a new framework: courts should defer to an a…

Forum

The Costs of Voting Rule Chevron: A Comment on Gersen and Vermeules Proposal

Matthew C. Stephenson

Professors Gersen and Vermeule argue that we should replace “doctrinal Chevron,” which instructs courts to defer to an agency’s reasonable interpretation of a statute the agency administers, with “voting rule Chevron.” Under voting rule Chevron, judges would not defer to agency views. Inst…

Article

Chevron as a Voting Rule

Jacob E. Gersen & Adrian Vermeule

116 Yale L.J. 676 (2007)

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpret…

Forum

Can Interagency Dialogue Serve as the New Separation of Powers?

Christopher S. Yoo

In Internal Separation of Powers, an essay recently published in this Journal, Neal Katyal adds his own distinctive twist to the debates about the growth of presidential power by suggesting reforms within the executive branch that would cabin executive discretion without violating the Constitution…

Forum

Can Process Cure Substance? A Response to Neal Katyals Internal Separation of Powers

M. Elizabeth Magill

We lawyers are committed to reason. A process founded on the exchange of reasoned argument, we want to believe, will produce the right decisions. Professor Katyal profoundly disagrees with the legal decisions reached by the Bush Administration in the aftermath of September 11. In response, he propos…

Forum

Toward Internal Separation of Powers

Neal Kumar Katyal

The standard American conception of separation of powers presumes three branches of government, each replete with ambition to maximize its power. But due to a complicated interplay of party dynamics and executive branch assertiveness, Congress has often been content to stay at the sidelines of regul…

Forum

Political Checks on a Politicized Presidency: A Response to Neal Katyals Internal Separation of Powers

William G. Howell

Frustrated by Congress’s apparently feeble efforts to check presidential war powers and unconvinced that another round with the War Powers Resolution will do much good, Neal Katyal recommends, in an essay recently published in the Journal, the promotion of an “internal separation of powers.” P…

Forum

A Debate Between Peter Strauss and Cass Sunstein

Peter L. Strauss & Cass R. Sunstein

In Beyond Marbury: The Executive’s Power To Say What the Law Is, 115 Yale L.J. 2580 (2006), Professor Cass Sunstein argues that Chevron is the Marbury v. Madison of our age, and that it is now the province of the executive branch to "say what the law is." Professor Peter Strauss responds that Chev…

Essay

Executive Branch Usurpation of Power: Corporations and Capital Markets

Jonathan Macey

115 Yale L.J. 2416 (2006)

Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branch…

Feature

Chevron and Agency Norm-Entrepreneurship

William N. Eskridge, Jr. & Kevin S. Schwartz

115 Yale L.J. 2623 (2006)

Essay

Quasipublic Executives

K.A.D. Camara & Paul Gowder

115 Yale L.J. 2254 (2006)

In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is,…

Article

Good Governance at the Supranational Scale: Globalizing Administrative Law

Daniel C. Esty

115 Yale L.J. 1490 (2006)

This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administr…

Review

Justice Breyer's Democratic Pragmatism

Cass R. Sunstein

115 Yale L.J. 1719 (2006)

As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" t…

Article

Recovering American Administrative Law: Federalist Foundations, 1787-1801

Jerry L. Mashaw

115 Yale L.J. 1256 (2006)

By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was mi…

Article

The Sarbanes-Oxley Act and the Making of Quack Corporate Governance

Roberta Romano

114 Yale L.J. 1521 (2005)

This Article provides an evaluation of the substantive corporate governance mandates of the Sarbanes-Oxley Act (SOX) of 2002 that is informed by the relevant empirical accounting and finance literature, and of the political dynamics that produced the mandates. The empirical …

Note

Regulation by Software

James Grimmelmann

114 Yale L.J. 1719 (2005)

This Note builds on Larry Lessig's famous formulation that "code is law" to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that dis…

Review

Property in All the Wrong Places?

Carol M. Rose

114 Yale L.J. 991 (2005)

In Who Owns Native Culture? and Public Lands and Political Meaning, an anthropologist and a historian document an ever-increasing deployment of property categories in two quite different domains: native people's recent cultural claims in the first book and the longer story o…

Comment

Punishing Masculinity in Gay Asylum Claims

Fadi Hanna

114 Yale L.J. 913 (2005)

Does a homosexual asylum seeker need to prove he is "gay enough" to win protection from a U.S. court? Increasingly, and troublingly, the answer is yes. In In re Soto Vega, the Board of Immigration Appeals (BIA) denied a gay man's application for asylum because he appeared to…

Article

The Defined Contribution Paradigm

Edward A. Zelinsky

114 Yale L.J. 451 (2004)

Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. This Article suggests that over the last generation something more fundamental, which can justly be called a paradigm shift, has…

Note

Compatibility and Interconnection Pricing in the Airline Industry: A Proposal for Reform

Bradley H. Weidenhammer

114 Yale L.J. 405 (2004)

Where rival firms compete in a network industry, compatibility among all firms maximizes the size, density, and total value of the network by combining rivals into a single network. Applying network-compatibility theory to the airline industry suggests that major carriers hav…

Note

An Article I, Section 7 Perspective on Administrative Law Remedies

Boris Bershteyn

114 Yale L.J. 359 (2004)

By applying game-theoretic analysis to the bicameralism and presentment requirements of Article I, Section 7, scholars have recommended reforms in constitutional law, statutory interpretation, and the Chevron doctrine. This Note builds on this work and explores whether Articl…

Essay

Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production

Yochai Benkler

114 Yale L.J. 273 (2004)

This Essay offers a framework to explain large-scale effective practices of sharing private, excludable goods. It starts with case studies of carpooling and distributed computing as motivating problems. It then suggests a definition for shareable goods as goods that are "lump…

Comment

Is the Right To Organize Unconstitutional?

Aron Fischer

113 Yale L.J. 1999 (2004)

Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).

Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act…

Note

Taxing Political Donations: The Case for Corrective Taxes in Campaign Finance

David S. Gamage

113 Yale L.J. 1283 (2004)

Incentive-based regulations are generally more efficient than command-and-control measures. One of the primary categories of incentive-based regulations--and one that has gained significant support of economics scholars over the past few decades--is corrective taxation. Co…

Article

The Integration of Tax and Spending Programs

David A. Weisbach & Jacob Nussim

113 Yale L.J. 955 (2004)

This Article provides a theory for deciding when a spending program should be implemented through the tax system. The decision is traditionally thought to be based on considerations of tax policy. The most common theories are the comprehensive tax base theory and the tax expe…

Comment

The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action

Brianne J. Gorod

113 Yale L.J. 939 (2004)

Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held …

Essay

Insider Abstention

Jesse M. Fried

113 Yale L.J. 455 (2003)

Scholars writing on insider trading have long believed that insiders can beat the market simply by using nonpublic information to decide when not to trade. Using a simple model, this Essay has shown that the conventional wisdom is wrong. Insiders prevented from trading while …

Note

Leaving FISA Behind: The Need To Return to Warrantless Foreign Intelligence Surveillance

Nola K. Breglio

113 Yale L.J. 179 (2003)

In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intellig…

Note

A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections

Kate E. Andrias

112 Yale L.J. 2415 (2003)

The First Amendment stands as a guarantor of political freedom and as the "guardian of our democracy." It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As t…

Note

Billboards and Big Utilities: Borrowing Land-Use Concepts To Regulate "Nonconforming" Sources Under the Clean Air Act

Deepa Varadarajan

112 Yale L.J. 2553 (2003)

I have suggested the incorporation of amortization provisions as a potential solution to the continued emissions problem posed by coal-burning electric utilities built prior to the original Clean Air Act. Thirty years after the Act's passage, these problematic sources have n…

Comment

A "Flip" Look at Predatory Lending: Will the Fed's Revised Regulation Z End Abusive Refinancing Practices?

Michael J. Pyle

112 Yale L.J. 1919 (2003)

The regulation of predatory loans can be a tedious business. The whole topic redounds of such yawn-inducing terms as "single-premium credit insurance" and "negative amortization." Yet the human costs of predatory lending are no less real for all the financial jargon that mas…

Comment

Chevron Deference and Treaty Interpretation

Evan Criddle

112 Yale L.J. 1927 (2003)

One need not accept Hobbes's vision of international relations as a perpetual "condition of warre" to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign…

Comment

Responsible Direction and the Supervisory Status of Registered Nurses

Nikhil Shanbhag

112 Yale L.J. 665 (2002)

The National Labor Relations Board (NLRB or the Board) has, for many years, wrestled with the problem of whether various classes of professional employees who regularly exercise discretion and judgment in their jobs should be classified as "supervisors" and therefore denied t…

Comment

Reorganization as a Substitute for Reform: The Abolition of the INS

Jeffrey Manns

112 Yale L.J. 145 (2002)

September 11th and the events that followed highlighted the shortcomings of our nation's immigration policies and their enforcement. Gaffes, such as the issuance of student visas to two of the hijackers on the six-month anniversary of 9/11, reinforced public perceptions that …

Essay

Probability Neglect: Emotions, Worst Cases, and Law

Cass R. Sunstein

112 Yale L.J. 61 (2002)

In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…

Review

Tobacco Unregulated: Why the FDA Failed, and What To Do Now

Margaret Gilhooley

111 Yale L.J. 1179 (2002)

The book jacket promises drama. David Kessler, former Commissioner of the Food and Drug Administration (FDA), is said to tell "a gripping detective story," a story of "right and wrong" and "moral courage." The "unlikely heroes" are a small team of FDA employees who set out t…