The Yale Law Journal

Civil Procedure


When the Sovereign Contracts: Troubling the Public/Private Distinction in International Law

Kate Yoon

The distinction between a state’s public and private acts is flimsy and unclear. Choosing to see an act as essentially private or public often obscures the other features that complicate that characterization. And selectively recognizing the private aspects of transactions has disproportionately sub…


The Weaponization of Attorney’s Fees in an Age of Constitutional Warfare

Rebecca Aviel & Wiley Kersh

States are using the threat of catastrophic, one-sided fee awards to evade judicial review in controversial areas like abortion and gun control. Litigants challenging such laws—and their attorneys—face liability for the opposing party’s legal fees, while the state and its ideological allies bear no …


The Anatomy of Social Movement Litigation

Gregory Briker

This Note argues that particular elements of the litigation process offer social movement activists distinctive opportunities to draw extralegal benefits from legal action. These benefits, however, are enabled and constrained by the procedural rules and norms that structure litigation itself.


Unpacking Third-Party Standing

Curtis A. Bradley & Ernest A. Young

This Article “unpacks” the doctrine of third-party standing. First, it identifies true third-party standing problems by distinguishing them from first-party claims, largely by reference to the “zone of interests” concept. Second, it distinguishes among three types of parties invoking third-party sta…


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 E…


Retroactive Adjudication

Samuel Beswick

This Article defends the inherent retroactivity of judicial lawmaking. It argues that there is no principled foundation for the Supreme Court’s non-retroactivity doctrine, and it provides an alternative framework: courts should always apply “new law” to old cases, and constrain its effects instead t…


The Attorney General’s Settlement Authority and the Separation of Powers

Simon Brewer

Can the federal government make policy when it settles litigation? Surprisingly, yes. This Note offers a comprehensive account of the Department of Justice’s authority to enter into policymaking settlements, and a new separation-of-powers defense of that authority. Ultimately, policymaking settlemen…


Examining the Case for Socialized Law

Myriam Gilles & Gary Friedman

In Equal Justice: Fair Legal Systems in an Unfair World, Frederick Wilmot-Smith argues that it is only by deprivatizing markets for legal services that we can ever hope to achieve equal justice. This Book Review explains why his bold prescription is worthy of serious examination and critical debate.


Better Together? The Peril and Promise of Aggregate Litigation for Trafficked Workers

Nikko Price

Procedural rules often prevent classes of trafficked workers from vindicating their rights in court. This Note examines the difficulties that face labor-trafficking class actions and proposes a new litigation strategy. That strategy urges state attorneys general to bring a more effective kind of agg…


Keeping Litigation at Home: The Role of States in Preventing Unjust Choice of Forum

Cara Reichard

Contractual choice-of-forum clauses pose significant obstacles to individuals’ claims against corporations. But states can and do enact legislation protecting vulnerable parties from unjust forum selection. This Note discusses the breadth of existing state anti-choice-of-forum statutes and argues th…


Did Bristol-Myers Squibb Kill the Nationwide Class Action?

Daniel Wilf-Townsend

This Essay presents the first comprehensive survey examining whether Bristol-Myers Squibb Co. v. Superior Court significantly limits multistate class actions in federal courts. It finds, contrary to many commenters, that a large supermajority of cases reject the argument that BMS’s constraints apply…


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. 


The Lessons of Lone Pine

Nora Freeman Engstrom

Lone Pine orders have become a prominent fixture of the mass-tort landscape. So far, the orders have been mostly heralded as an inventive way to streamline the resolution of complex cases. Complicating that consensus, this Article analyzes drawbacks associated with this potent device and advocates r…


Jury Selection as Election: A New Framework for Peremptory Strikes

Ela A. Leshem

The ability of peremptory strikes to contribute to impartial juries has long been debated. This Note argues that both defenders and critics have overlooked an important value served by peremptory strikes beyond impartiality: democratic legitimacy. Just as elections help legitimate the state’s coerci…


Pleading Poverty in Federal Court

Andrew Hammond

Approximately forty million Americans live in poverty. Yet we know little about how they encounter the federal civil justice system. This Article provides the first survey of the in forma pauperis pleading standards of all ninety-four federal district courts. It reveals an inefficient and arbitrary …


Wayfair Undermines Nicastro: The Constitutional Connection Between State Tax Authority and Personal Jurisdiction

Allan Erbsen

This Essay exposes connections between two controversial cases that unsettled two ostensibly distinct areas of constitutional law—Wayfair v. South Dakota and J. McIntyre Machinery, Ltd. v. Nicastro—arguing that Wayfair’s underlying logic warrants narrowing or overruling Nicastro. 


An Avoidance Canon for Erie: Using Federalism to Resolve Shady Grove’s Conflicts Analysis Problem

Joshua P. Zoffer

Since the Supreme Court's tripartite split in Shady Grove, federal courts have struggled to determine whether a Federal Rule of Civil Procedure and a state law conflict under Erie. This Note proposes a novel federalism-based avoidance canon to identify such conflicts.



Nonmajority Opinions and Biconditional Rules

Adam Steinman

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. This Essay identifies the complications that arise in addressing this question when biconditional rules are involved and proposes a way to coh…


The Tarnished Golden Rule: The Corrosive Effect of Federal Prevailing-Party Standards on State Reciprocal-Fee Statutes

Nathan Nash, Solange Hilfinger-Pardo & James Mandilk

Drawing on the authors’ clinical experience, this Comment describes an asymmetry in how courts award attorney’s fees that makes it more difficult for consumer-defendants to recover the costs of litigation. The Comment articulates a standard of “prevailing party” that would ensure equitable and effic…


Litigation Rulemaking

Urja Mittal

Courts and agencies are traditionally understood to interact in two ways: judicial review and agency determinations of which cases reach federal courthouses. This Note identifies and evaluates a third dynamic by which agencies across the federal bureaucracy shape how cases proceed in court using the…


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…


Jurisdiction and Applicable Law Under UNCLOS

Peter Tzeng

Introduction In the recent case of Chagos Marine Protected Area,1 a five-member tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS)2 held in its hands the fate of the Chagos Archipelago. One of the questions before the tribunal was whether it had…


Reimagining Finality in Parallel Patent Proceedings

Ben Picozzi

Parties may challenge the validity of issued patents in federal courts and before the Patent and Trademark Office (PTO) and its administrative tribunal, the Patent Trial and Appeal Board (PTAB). Recently, the Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdict…


Returning to Common-Law Principles of Insider Trading After United States v. Newman

Richard A. Epstein

Spurred on by the recent Second Circuit decision in United States v. Newman, this Feature examines the proper scope of the prohibition against insider trading under the securities laws. It argues that in some instances the law does not reach far enough, while in other instances t…


Federal Questions and the Domestic-Relations Exception

Bradley G. Silverman

The domestic-relations exception to federal jurisdiction prohibits federal courts from hearing cases involving family-law questions within the traditional authority of the states. Since the Supreme Court first articulated the exception in 1858, the scope of the doctrine has remaine…


The Un-Territoriality of Data

Jennifer Daskal

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorit…


Saving 60(b)(5): The Future of Institutional Reform Litigation

Mark Kelley

Institutional reform decrees are one of the chief means by which federal courts cure illegal state and federal institutional practices, such as school segregation, constitutionally inadequate conditions in prisons and mental hospitals, and even insufficient dental services under Me…


Justice Sotomayor and the Jurisprudence of Procedural Justice

Tracey L. Meares & Tom R. Tyler

In this Essay, Professors Tyler and Meares highlight the ways in which recent social science research supports the model of jurisprudence articulated by Justice Sotomayor. Her model defines building identification with political and legal institutions as an important goal for the Court.  It further …


The Disappearance of Civil Trial in the United States

John H. Langbein

122 Yale L.J. 522 (2012).

Since the 1930s, the proportion of civil cases concluded at trial has declined from about 20% to below 2% in the federal courts and below 1% in state courts. This Article looks to the history of the civil trial to explain why the trial endured so long and then vanished so ra…


Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery

Jonah B. Gelbach

121 Yale L.J. 2270 (2012).

Many observers believe the Supreme Court’s Twombly and Iqbal opinions have curtailed access to civil justice. But previous empirical studies looking only at Rule 12(b)(6) grant rates have failed to capture the full effect of these cases because they have not accounted for …


Mandatory and Fair? A Better System of Mandatory Arbitration

Miles B. Farmer

121 Yale L.J. 2346 (2012).

This Note proposes a set of reforms that address the problem of systematic bias in mandatory arbitration. Until now, mandatory arbitration literature has focused largely on the pros and cons of the practice rather than on solutions to improve this form of dispute resolutio…


Fair Notice About Fair Notice

Jeffrey A. Love

121 Yale L.J. 2395 (2012).


Burden of Proof

Louis Kaplow

121 Yale L.J. 738 (2012).

The burden of proof is a central feature of all systems of adjudication, yet one that has been subject to little normative analysis. This Article examines how strong evidence should have to be in order to assign liability when the objective is to maximize social welfare. I…


CAFA and Federalized Ambiguity: The Case for Discretion in the Unpredictable Class Action

Michael D. Y. Sukenik & Adam J. Levitt

A statute pointedly described as an “opaque, baroque maze of interlocking cross-references” is unlikely to represent an intelligent response to a fundamental failing in one of the most complicated and divisive areas of law. Yet, the Class Action Fairness Act (CAFA), ostensibly enacted by Congres…


Tremors of Things To Come: The Great Split Between Federal and State Pleading Standards

Roger Michael Michalski

On June 24, 2010, the Washington Supreme Court issued its opinion in McCurry v. Chevy Chase Bank, declining to follow nonmandatory but highly persuasive federal pleading standards. In doing so, Washington State became the first state supreme court post-Iqbal to abandon the ideal of national procedur…


Cost-Shifting in Electronic Discovery

Bradley T. Tennis

119 Yale L.J. 1113 (2010). 


The Mess of Manifest Disregard

Hiro N. Aragaki

A circuit split is in the making, and it could signal a shift with significant implications for federal arbitration law. Just eighteen months after the U.S. Supreme Court’s March 25, 2008 decision in the controversial case of Hall Street Associates v. Mattel, Inc., three circuits are already in ri…


Original Jurisdiction Deadlocks

Michael Coenen

118 Yale L.J. 1003 (2009).


Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages

Thomas B. Colby

118 Yale L.J. 392 (2008).


In Philip Morris USA v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, …


The Anders Brief in Appeals from Civil Commitment

Joseph Frueh

118 Yale L.J. 272 (2008).

In Anders v. California, the Supreme Court crafted a procedure to prevent appointed attorneys from abandoning their clients after trial. The Court provided that if counsel wishes to withdraw from a “frivolous” case, he or she first must file a brief referring to anything…


Balancing Burdens: Clarifying the Discovery Standard in Arbitration Proceedings

Anne B. O'Hagen

117 Yale L.J. 1559 (2008).



A Blueprint for Applying the Rules Enabling Act's Supersession Clause

Anthony Vitarelli

117 Yale L.J. 1225 (2008).


The Marriage of Family Law and Private Judging in California

Sheila Nagaraj

116 Yale L.J. 1615 (2007)


Irreparable Benefits

Douglas Lichtman


When Do Irreparable Benefits Matter? A Response to Douglas Lichtman on Irreparable Benefits

Ariel Porat

In Irreparable Benefits, Douglas Lichtman argues that when courts consider granting preliminary relief, they should account not only for irreparable harms but also for irreparable benefits. He reasons that gains accrued during trial to a litigating party who wins at the preliminary stage but eventua…


Against Irreparable Benefits

Omri Ben-Shahar

In a recent essay in The Yale Law Journal, Douglas Lichtman argues that courts considering preliminary injunctions should account for irreparable benefits in addition to irreparable harms. This is a provocative idea. If a preliminary injunction harms one party but benefits the other, and if both eff…


Irreparable Benefits

Douglas Lichtman

116 Yale L.J. 1284 (2007)

The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the…



Lee H. Rosenthal

Editor's Note: This is the last of seven installments on the electronic discovery rules. To view an index of the installments, click here.

Much has been written on the expense, burden, and delay that responding to requests for electronic discovery entails. Some cost and complexity exists because ma…



Lee H. Rosenthal

Editor's Note: This is the sixth of seven installments on the electronic discovery rules. To view an index of the installments, click here.

Most discussions of e-discovery-related sanctions have been about alleged failures to meet preservation obligations, although sanctions also apply if parties i…


Metadata and Issues Relating to the Form of Production

Lee H. Rosenthal

Editor's Note: This is the fifth of seven installments on the electronic discovery rules. To view an index of the installments, click here.

Among the choices to be made in deciding what form or forms to use in producing electronically stored information is whether to delete, or “scrub,” the metadat…


Privilege Review

Lee H. Rosenthal

Editor's Note: This is the fourth of seven installments on the electronic discovery rules. To view an index of the installments, click here.

One of the areas to be discussed in the Rule 26(f) meet-and-confer is whether the parties can agree on a procedure for asserting claims of attorney-client pri…


Not Reasonably Accessible Information and Allocating Discovery Costs

Lee H. Rosenthal

Editor's Note: This is the third of seven installments on the electronic discovery rules. To view an index of the installments, click here.

A recurring problem in electronic discovery involves information stored on sources that are not reasonably accessible. Amended Rule 26(b)(2)(B) is designed to …


Meeting and Conferring

Lee H. Rosenthal

Editor's Note: This is the second of seven installments on the electronic discovery rules. To view an index of the installments, click here.

The new amendments that provoked the least controversy, the expansion of the meet-and-confer under Rule 26(f) and the initial conference with the court under …


Sentencing Organizations After Booker

Timothy A. Johnson

In United States v. Booker, the Supreme Court held that courts violate individuals' right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled …


An Overview of the E-Discovery Rules Amendments

Lee H. Rosenthal

Editor's Note: This is the first of seven installments on the electronic discovery rules. To view an index of the installments, click here.

The electronic discovery amendments are an interrelated package. The amendments address five broad areas: (1) the parties’ obligations to meet and confer about…


A Few Thoughts on Electronic Discovery After December 1, 2006

Lee H. Rosenthal

Editor's Note: On December 1, 2006, electronic discovery amendments to the Federal Rules of Civil Procedure go into effect. In this seven-part series, Judge Lee H. Rosenthal, chair of the Judicial Conference's Advisory Committee on Civil Rules, offers an introduction to the new amendments and descri…


Should the Criminal Defendant Be Assigned a Seat in Court?

Steven Shepard

115 Yale L.J. 2203 (2006)

In this Comment I question the U.S. Attorney's claim that every criminal defendant should be required to sit at the table farthest from the jury. Courtroom seating is properly within a trial judge's discretion, and there are good reasons for seating some criminal defendants …


The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade

Tara Helfman

115 Yale L.J. 1122 (2006)

Drawing on archival sources, this Note explores an early experiment in humanitarian intervention undertaken by the Court of Vice Admiralty at Sierra Leone through the suppression of the West African slave trade during the early decades of the nineteenth century. Part I discu…


Limiting Coercive Speech in Class Actions

Andrei Greenawalt

114 Yale L.J. 1953 (2005)

Courts once routinely banned communications of named parties and their counsel with potential class members, until the Supreme Court, in Gulf Oil Co. v. Bernard, called for "specific findings" and a "weighing of interests" before the imposition of such bans. Most courts have…


Gideon in White/Gideon in Black: Race and Identity in Lawyering

Anthony V. Alfieri

114 Yale L.J. 1459 (2005)

Traditionally, poverty lawyers, criminal defenders, and clinical teachers have overlooked John Hart Ely's theory of judicial review in teaching the lawyering process and in representing impoverished clients and their communities. But the egalitarian themes of Ely's work on j…


Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?

John H. Langbein

114 Yale L.J. 929 (2005)

The duty of loyalty requires a trustee to administer the trust solely in the interest of the beneficiaries. Any transaction in which the trustee has an actual or potential interest violates the sole interest rule, no matter how beneficial the transaction to the beneficiaries.…


More Equal than Others: Defending Property-Contract Parity in Bankruptcy

Blake Rohrbacher

114 Yale L.J. 1099 (2005)

Contracts create property; contractual rights and obligations are property. In bankruptcy, however, this aspect of nonbankruptcy law is often not recognized. This Note argues that bankruptcy law and policy should recognize the property in contract. This Note examines instanc…


The Character of Discrimination Law: The Incompatibility of Rule 404 and Employment Discrimination Suits

Lisa Marshall

114 Yale L.J. 1063 (2005)

Disregarding the dictates of Federal Rule of Evidence 404, plaintiffs in discrimination suits routinely prevail on the basis of propensity proofs. Yet neither the parties nor the courts are to blame for these rampant violations. It is, instead, the dearth of evidence availab…


On the Alienability of Legal Claims

Michael Abramowicz

114 Yale L.J. 697 (2005)

Courts have become increasingly skeptical of rules restricting plaintiffs' ability to sell legal claims, while legal commentators have argued that markets for claims would be economically beneficial, moving claims to those who can prosecute them most efficiently. Claim sales …


Juries and Race in the Nineteenth Century

James Forman Jr.

113 Yale L.J. 895 (2004)

The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause p…


Punitive Damages as Societal Damages

Catherine M. Sharkey

113 Yale L.J. 347 (2003)

Jury awards of "classwide" punitive damages provide windfalls to individual plaintiffs, particularly in products liability, fraud, civil rights, and employment discrimination cases. This suggests a new angle from which to approach the ongoing punitive damages debate. Under cu…


An Old Judicial Role for a New Litigation Era

Jonathan T. Molot

113 Yale L.J. 27 (2003)

Because litigation has changed so dramatically in the last half century, scholars tend to view contemporary civil procedure as raising new problems that require new solutions. We have overlooked that many of these problems can be explained, and even resolved, using an age-old …


Risk Magnified: Standing Under the Statist Lens

Mary D. Fan

112 Yale L.J. 1633 (2003)

Why some harms count before the courts and others do not is a matter of acute expressive and practical impact. Judicial refusal to see claimed injuries is an effective denial of legal personhood and a bar from powerful judicial machinery. The issue of "erratic, even bizarre…


Federal Regulation of State Court Procedures

Anthony J. Bellia Jr.

110 Yale L.J. 947 (2001)

May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitution…


Sovereignty on Our Terms

Jenia Iontcheva

110 Yale L.J. 885 (2001)



Deliberative Trouble? Why Groups Go to Extremes

Cass R. Sunstein

110 Yale L.J. 71 (2000)

In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more ext…