The Yale Law Journal

Civil-Rights Law


The Unabridged Fifteenth Amendment

Travis Crum

The Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the VRA. This Article completes the historical record, providin…


“Trying to Save the White Man’s Soul”: Perpetually Convergent Interests and Racial Subjugation

M. Broderick Johnson


The assumption that remedying racial inequality benefits only people of color while being costly to White people underlies many Supreme Court decisions. White people benefit spiritually and democratically from racial equality. Recognizing these benefits warrants a new theory of interest conve…


Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge

Ryanne Bamieh

In Bearden v. Georgia, the Supreme Court held a defendant cannot be imprisoned for failure to pay a fine they could not afford. Yet, many defendants remain incarcerated because they cannot pay for Electronic Monitoring. This Comment seeks to remedy that disparity by applying Bearden to Electronic Mo…


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.


Backdoor Municipal Immunity

Joanna C. Schwartz

Although local governments aren’t entitled to qualified immunity, four circuits have held that granting an officer qualified immunity dooms a failure-to-train claim against their employer. This “backdoor municipal immunity” misunderstands the role that court decisions actually play in police policie…


(Re)Framing Race in Civil Rights Lawyering

Angela Onwuachi-Willig & Anthony V. Alfieri

This Review examines the significance of Henry Louis Gates, Jr.’s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation’s legal system and for the regulation of race in the legal profession.


Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality

Kate Andrias & Benjamin I. Sachs

This Article proposes an innovative approach to addressing political inequality: using law to facilitate organizing by the poor and working class – as workers, tenants, debtors, and welfare beneficiaries. The Article offers a new direction for the literature on political inequality and critical less…


Plessy Preserved: Agencies and the Effective Constitution

Joy Milligan

Federal officials enforced a “separate but equal” framework for public housing long after Brown invalidated that principle. This administrative regime wrote segregation into U.S. cities, operating as the effective Constitution for decades. This Article asks why a liberal, reformist agency chose that…


Lessons from the Suffrage Movement in Iran

Arzoo Osanloo

The women’s suffrage movement in Iran achieved the vote in 1963, several decades after women in the United States. The challenges and opportunities in Iranian women’s fight for equal rights offer insight into the complex and often fraught politics of calling for women’s rights and participation in a…


After Suffrage: The Unfinished Business of Feminist Legal Advocacy

Serena Mayeri

This Essay chronicles Pauli Murray’s intersectional feminist legal advocacy, which transformed post-suffrage women’s citizenship and continues to shape an ambitious and urgent agenda for universal enfranchisement in the Nineteenth Amendment’s second century. 


Reconstituting the Future: An Equality Amendment

Catharine A. MacKinnon & Kimberlé W. Crenshaw

A new constitutional amendment embodying a substantive intersectional equality analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical social inequalities. Historical and doctrinal context and critique show why this step is urgently needed. A draft of the ame…


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 …


Disparate-Impact Liability for Policing

Alisa Tiwari

This Note develops the first analysis of the Safe Street Act’s (SSA’s) antidiscrimination power and argues that the SSA imposes disparate-impact liability on police departments. When conventional legal tools have proven inadequate in curbing disparate policing, the SSA presents an unrecognized path …


The Claims of Official Reason: Administrative Guidance on Social Inclusion

Blake Emerson

Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally…


Bias In, Bias Out

Sandra G. Mayson

The rise of criminal justice risk assessment has generated concerns about its disparate racial impact. Yet the prevailing responses to this problem, this Article contends, are inadequate. The real issue is the nature of prediction itself, and this demands a fundamental rethinking of risk assessment …


Disparate Impact, Unified Law

Nicholas O. Stephanopoulos

Lower federal courts have recently converged on a two-part test for vote denial claims under section 2 of the Voting Rights Act. Yet this status quo is doctrinally incoherent and constitutionally vulnerable. Courts, this Article contends, should look to disparate impact law to address these problems…


State Courts and Constitutional Structure

Goodwin Liu

Justice Goodwin Liu of the California Supreme Court reviews Judge Jeffrey Sutton’s new book,  51 Imperfect Solutions: The Making of American Constitutional Law.



A Response to Justice Goodwin Liu

Jeffrey S. Sutton

Judge Jeffery Sutton responds to Justice Goodwin Liu’s Review of 51 Imperfect Solutions: States and the Making of American Constitutional Law.


The New Jim Crow Is the Old Jim Crow

Katie R. Eyer

A vast divide exists in the national imagination between the racial struggles of the civil rights era and those of the present. Drawing on the work of Elizabeth Gillespie McRae and Jeanne Theoharis, this Review argues that complexifying this oversimplified history is critical to contemporary racial …


What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence

Reginald Dwayne Betts

Many read Justice Kennedy’s landmark Eighth Amendment sentencing cases to herald a fundamental change in how juveniles are treated in the criminal justice system. But the better reading is more modest. Instead, they force us to ask what it means to say that youth is relevant to the determination of …


Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations

Tarra Simmons

This Essay is rooted in the author’s experience as a formerly justice-involved individual who overcame numerous barriers to become an attorney and advocate. It argues that bar associations should use a conditional-approval process that informs applicants whether the bar intends to admit them before …


The Effort to Reform the Federal Criminal Justice System

Shon Hopwood

This Essay describes the difficult process of federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future reforms and discusses the criteria advocates should use in deciding whether to support future refo…


Is Korematsu Good Law?

Jamal Greene

This Essay argues that the Supreme Court’s claim to overrule Korematsu in Hawaii is both empty and grotesque. It argues that a decision to overrule a prior case is not meaningful unless it specifies which propositions it is disavowing, and Hawaii’s emptiness means to conceal its disturbing affinity …


Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu

Neal Kumar Katyal

This Essay compares the Supreme Court’s decision to uphold President Trump’s travel ban to the Court’s decision nearly seventy-five years ago to affirm the internment of Japanese Americans in Korematsu. It argues that while Hawaii v. Trump formally overturned Korematsu, it essentially recreated the …


This Is (Not) Who We Are: Korematsu, Constitutional Interpretation, and National Identity

Mari J. Matsuda

Asserting the continued usefulness of legal claims, this Essay asks a critical question: what would it really take to overturn Korematsu and end structures of subordination? It argues that a true overruling of Korematsu requires a generative interpretation of our Constitution to uphold the inherent …


Masquerading Behind a Facade of National Security

Eric K. Yamamoto & Rachel Oyama

What will happen when those discriminated against in the name of national security turn to the courts for legal protection? This Essay refracts this question through the lens of Korematsu, examining how courts will—and should—respond to the dual needs to promote national security and protect fundame…


Securing Public Interest Law’s Commitment to Left Politics

Charles Du

Through an analysis of the challenges facing the “new working class,” this Essay argues that in order to advance their clients’ interests, progressive lawyers must redefine public interest law such that it centers on a commitment to developing left political power.


Beyond the Box: Safeguarding Employment for Arrested Employees

Shelle Shimizu

Most criminal system reform efforts neglect the collateral consequences experienced by individuals with pending criminal cases. This Essay argues that meaningful reform requires enhanced protections for current employees and applicants with open criminal cases.


Queering Sexual Harassment Law

Brian Soucek

Franchina v. City of Providence may be the first judicial opinion of the #MeToo movement. But it also points beyond the #MeToo movement, exemplifying harassment that is motivated by desires to enforce gender roles and why sexual orientation discrimination is sex discrimination under Title VII.


Was Sexual Harassment Law a Mistake? The Stories We Tell

Tristin K. Green

Does our sexual harassment law hinder the larger project of reducing harassment? This Essay demonstrates that the law constrains stories of harassment and hamstrings our calls for reform. Ultimately, the law, not just public perception, must change if this movement is to have a lasting effect.


Brief Lives

Laura Kalman

In this Review of Owen Fiss’s book, Pillars of Justice: Lawyers and the Liberal Tradition, Laura Kalman explores Fiss's views on the legal figures appearing in the book. In addition, Kalman discusses the criticisms of Brown v. Board of Education and legal liberalism that are missing in Fiss’s accoun…


The First Amendment Freedom of Assembly as a Racial Project

Justin Hansford

Beginning with the author’s experience of being arrested as a legal observer during a Ferguson protest, this Essay explores the First Amendment freedom of assembly’s fragile protection for those who fight for racial justice, arguing that civil rights movements have always been and continue to be dis…


Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections

William N. Eskridge, Jr.

In light of HivelyEvans, and Zarda, this Feature argues that Title VII’s bar to discrimination “because of sex” applies to LGBT individuals. This interpretation follows from Title VII's ordinary meaning, particularly in light of its purpose to entrench a merit-based workplace, in addition to its s…


How Qualified Immunity Fails

Joanna C. Schwartz

This Article reports the findings of the largest and most comprehensive study to date of the role qualified immunity plays in constitutional litigation. I found that qualified immunity rarely served its intended role as a shield from discovery and trial in these cases.


Police Reform and the Dismantling of Legal Estrangement

Monica C. Bell

In police reform circles, many scholars and policymakers diagnose the frayed relationship between police forces and the communities they serve as a problem of illegitimacy, or the idea that people lack confidence in the police and thus are unlikely to comply or cooperate with t…


Policing Through an American Prism

Debo P. Adegbile

Policing practices in America are under scrutiny. Video clips, protests, and media coverage bring attention and a sense of urgency to fatal police civilian incidents that are often accompanied by broader calls for reform. Tensions often run high after officer involved shootings of unarmed civilians,…


The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman’s Health

Linda Greenhouse & Reva B. Siegel

As the case that became Whole Woman’s Health worked its way to the Supreme Court, few were confident about how the Court would respond to a law, enacted in the name of protecting women’s health, that would predictably shut most of a state’s abortion clinics. All agreed that the governing standard wa…


Nervous Victors, Illiberal Measures

Sherif Girgis

Douglas NeJaime and Reva B. Siegel’s Conscience Wars1 is an exemplar of a dying breed: a progressive piece that takes religious freedom seriously for political foes in the sex-and-reproduction culture wars. In just one generation, those battles have turned religious liberty, that cons…


Reconstructing RFRA: The Contested Legacy of Religious Freedom Restoration

Martin S. Lederman

Introduction Almost every member of Congress voted to approve the Religious Freedom Restoration Act of 1993 (RFRA),1 a bill endorsed by an unprecedented coalition of dozens of religious and civil rights organizations spanning the political and ideological spectrum.2 President Clinton quip…


For the Title IX Civil Rights Movement: Congratulations and Cautions

Nancy Chi Cantalupo

On September 25, 2015, the Yale Law Journal held a “Conversation on Title IX” that confirmed the existence of a new civil rights movement in our nation and our schools. The movement’s leaders are smart, courageous survivors of gender-based violence—virtually all of whom are current un…


Only Once I Thought About Suicide

Reginald Dwayne Betts

I. Every prison and jail in Virginia has a series of cells used for solitary confinement. Fairfax County Jail had three units for solitary confinement. None had windows. The R-Cells had ceilings so high that a tall man could not reach them by jumping. The other had a door so thick and hea…


Worse than Death

Alex Kozinski

For decades, lawyers and activists have questioned the constitutionality of our criminal justice system’s most severe punishments. Is lethal injection okay?1 What about a firing squad?2 How about life sentences for pirates3 or drug possessors4 or people who pass rubber checks?5 But we he…


Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails

Marie Gottschalk

The United States is exceptional not only because it incarcerates so many people, but also because of the inhumane and degrading conditions that prevail in so many of its jails and prisons.1 This country stands alone among Western nations in its widespread and routine use of extreme and pro…


The Liman Report and Alternatives to Prolonged Solitary Confinement

Jules Lobel

Introduction Our nation’s prisons and jails are often shrouded in secrecy. Media access to prisoners, particularly those in solitary, is limited or non-existent, and many states do not provide adequate data on how their penal systems actually operate.1 As Justice Kennedy recently put it…


Time-In-Cell: Isolation and Incarceration

Judith Resnik, Sarah Baumgartel & Johanna Kalb

What is solitary confinement, and what has been constitutional law’s relationship to the practices of holding prisoners in isolation? One answer comes from Wilkinson v. Austin,1 a 2005 U.S. Supreme Court case discussing Ohio’s super-maximum security (“supermax”) prison, which opene…


Time-In-Cell: A Practitioner’s Perspective

Ashbel T. ("A.T.") Wall

Earlier this year, The New York Times reported that President Obama ordered the Department of Justice to review the practice of federal prison administrative segregation, commonly referred to as “solitary confinement.”1 The Association of State Correctional Administrators (ASCA), the mem…


Eighteen Years On: A Re-Review

Richard A. Posner

The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment BY WILLIAM N. ESKRIDGE, JR. NEW YORK: THE FREE PRESS, 1996. author. Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School. In 1992 I published a book called…


Against Immutability

Jessica A. Clarke

Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but…


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…


Perfect Plaintiffs

Cynthia Godsoe

Brown. Roe. Loving. These names evoke seminal Supreme Court decisions that instituted massive social and legal shifts.1 While it may not roll off the tongue quite as easily, Obergefell is poised to join this pantheon. Jim Obergefell and the twenty-nine other men and women named in Obergefell…


Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality

Katie Eyer

Introduction Nearly fifty years ago, in the 1967 case Loving v. Virginia, the Supreme Court struck down bans on interracial marriage.1 This Term, the Court seems poised to further expand marriage equality by holding that same-sex couples, too, are guaranteed the constitutional right to mar…


Section 5 as Simulacrum

Justin Levitt

Professor Justin Levitt discusses the Shelby County challenge to section 5 of the Voting Rights Act, noting downsides to the Act’s tremendous symbolic importance. In particular, he finds that the case seems to hinge on a simulacrum of the statute—like an editorial cartoonist’s rendering of a politic…


The Dignity of the South

Joseph Fishkin

The plaintiffs in Shelby County v. Holder argue that section 5 of the Voting Rights Act offends the “equal dignity” of the states. In this Essay, written in advance of the decision, Professor Joseph Fishkin situates this claim in a larger context. Americans have been fighting since the Civil War and…


Mapping a Post-Shelby County Contingency Strategy

Guy-Uriel E. Charles & Luis Fuentes-Rohwer


Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various str…


A Cure Worse than the Disease?

Ellen D. Katz

 The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to ad…


Next-Generation Civil Rights Lawyers: Race and Representation in the Age of Identity Performance

Anthony V. Alfieri & Angela Onwuachi-Willig

122 Yale L.J. 1484 (2013).

This Book Review addresses two important new books, Professor Kenneth Mack’s Representing the Race: The Creation of the Civil Rights Lawyer and Professors Devon Carbado and Mitu Gulati’s Acting White? Rethinking Race in Post-Racial America, and utilizes their insights to bo…


Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument

Lawrence G. Sager

My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of …


The Twenty-Sixth Amendment Enforcement Power

Eric S. Fish

121 Yale L.J. 1168 (2012).

This Note argues that the Twenty-Sixth Amendment did more than just lower the voting age. It also gave Congress the power to override state policies that disproportionately burden the voting rights of particular age groups, such as strict voter ID laws and onerous absentee …


An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities

Matthew J. Hegreness

120 Yale L.J. 1820 (2011). 

Since the ratification of the Fourteenth Amendment in 1868, judges and scholars have struggled to coherently identify the rights, privileges, and immunities that no state should abridge. Debates over the ambit of the Fourteenth Amendment, however, have consistently overl…


From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases

Reva B. Siegel

120 Yale L.J. 1278 (2011). 

For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned wi…


Discrimination by Comparison

Suzanne B. Goldberg

120 Yale L.J. 728 (2011). 

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary’s dependence on comparators—those who are like a discrimination claimant but for the protected characteristic—as a favored heuristic fo…


The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance

Travis Crum

119 Yale L.J. 1992 (2010). 

Following NAMUDNO, the search is on for a way to save section 5 of the Voting Rights Act (VRA). This Note offers a solution through an examination of the VRA’s most obscure provision: section 3. Commonly called the bail-in mechanism or the pocket trigger, section 3 autho…


Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"

James Gray Pope

119 Yale L.J. 1474 (2010). 

The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough d…


The Significance of Domicile in Lyman Trumbull's Conception of Citizenship

Mark Shawhan

119 Yale L.J. 1351 (2010).


INA Section 242(g): Immigration Agents, Immunity, and Damages Suits

Sameer Ahmed

119 Yale L.J. 625 (2009). 


Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s

Craig J. Konnoth

119 Yale L.J. 316 (2009). 

Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially…


Race and Democratic Contestation

Michael S. Kang

117 Yale L.J. 734 (2008).

As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and faces upcoming constitutional challenges to its recent renewal, a growing number of liberals and conservatives, once united in support, now share deep reservations about it. This Article argues that…


Ledbetter in Congress: The Limits of a Narrow Legislative Override

Kathryn A. Eidmann

117 Yale L.J. 971 (2008).


The Promise and Pitfalls of the New Voting Rights Act

Nathaniel Persily

117 Yale L.J. 174 (2007).

In the summer of 2006, Congress reauthorized the expiring provisions of the Voting Rights Act (VRA) with a unanimous vote in the Senate and with limited opposition in the House of Representatives. The veneer of bipartisanship that outsiders perceived in the final vote glos…


Democracy, Not Statehood: The Case for Puerto Rican Congressmen

José R. Coleman Tió

Congress is currently considering the District of Columbia House Voting Rights Act of 2007 (H.R. 1433), which attempts to address the disenfranchisement of District residents by granting the District representation in the House of Representatives. In a Comment recently published in this Journal, I s…


Two Puerto Rican Senators Stay Home

Christina Duffy Burnett



Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury

Richard M. Re

116 Yale L.J. 1568 (2007)

This Note proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury’s legitimacy, many scholars have observed that this…


Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform

Damian Williams

116 Yale L.J. 1116 (2007)

Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 …


Equal Educational Opportunity and the Federal Government: A Response to Goodwin Liu

Carl F. Kaestle

Goodwin Liu’s inspiring article mines a rich vein of the history of American education. He revives and re-interprets congressional attempts to create a national system of public schools in the years following the Civil War. Professor Liu’s work is a signal contribution to the national movement f…


A Response to Goodwin Liu

Robin West

Professor Liu’s article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to pro…


Federal Nagging: How Congress Should Promote Equity and Common High Standards in Public Schools

Cynthia G. Brown

In two articles—one recently published in this Journal and another forthcoming in the NYU Law Review—Professor Goodwin Liu argues that the federal government should play a greater role in financing public education, should distribute more fairly among states its funds targeted to the neediest sc…


To Young People, Don't Ask, Don't Tell Means Don't Enlist

P. Casey Pitts

In the next few months, the First Circuit will consider Cook v. Rumsfeld, the first post-Lawrence v. Texas legal challenge to the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy. Given the deference that federal courts afford to congressional judgments about military pol…


Please Don't Cite This Case! The Precedential Value of Bush v. Gore

Chad Flanders

As Americans turn out to vote today, the ghost of the 2000 Presidential elections will hover over the voting booths. According to The New York Times, this will be the first midterm election in which the “Democratic Party is mobilizing teams of lawyers and poll watchers” to check for voting irre…


Education, Equality, and National Citizenship

Goodwin Liu

116 Yale L.J. 330 (2006)

For disadvantaged children in substandard schools, the recent success of educational adequacy lawsuits in state courts is a welcome development. But the potential of this legal strategy to advance a national goal of equal educational opportunity is limited by a sobering and l…


HAVA's Unintended Consequences: A Lesson for Next Time

Brandon Fail

116 Yale L.J. 493 (2006)


The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right

Dale A. Oesterle

Earlier this year, the South Dakota legislature passed a stiff anti-abortion bill, H.B. 1215, designed to test the durability of Roe v. Wade. Soon thereafter, the bill’s opponents collected enough signatures to put the Act on the South Dakota ballot. South Dakota voters will reject or affirm the A…


Ending Court Protection of Voters from the Initiative Process

Richard L. Hasen

When journalists write their stories about state ballot propositions in the 2006 election, they likely will focus on South Dakota’s abortion rights referendum, Michigan’s affirmative action measure, or the variety of eminent domain measures reacting to the Supreme Court’s Kelo decision. But th…


Civil Rights Litigation and Social Reform

Michael J. Klarman

[Editor's Note: Civil Rights Litigation and Social Reform is a Response to Kenneth W. Mack, The Myth of Brown?, Yale L.J. (The Pocket Part), Nov. 2005,]


Equal Justice-Same Vision in a New Day

Eva Paterson, Kimberly Thomas Rapp & Johnson Lee

[Editor's Note: Equal Justice—Same Vision in a New Day is a Response to Kenneth W. Mack, The Myth of Brown?, Yale L.J. (The Pocket Part), Nov. 2005,]


A Dialogue

Akhil Reed Amar & Jed Rubenfeld

115 Yale L.J. 2015 (2006)


Civil Rights, Antitrust, and Early Decision Programs

Ruby Z. Afram

115 Yale L.J. 880 (2006)

Early decision admission programs--which allow a student to receive early notification of admission in return for a commitment to attend a particular institution--enjoyed explosive popularity at America's institutions of higher education in the 1990s. Schools use the programs…


Rethinking Civil Rights Lawyering and Politics in the Era Before Brown

Kenneth W. Mack

115 Yale L.J. 256 (2005)

This Article argues that scholarly accounts of civil rights lawyering and politics have emphasized, incorrectly, a narrative that begins with Plessy v. Ferguson and ends with Brown v. Board of Education. That traditional narrative has relied on a legal liberal view of civil r…


To Insure Prejudice: Racial Disparities in Taxicab Tipping

Ian Ayres, Fredrick E. Vars, & Nasser Zakariya

114 Yale L.J. 1613 (2005)

Many studies have documented seller discrimination against consumers, but this Essay tests and finds that consumers discriminate based on the seller's race.

The authors collected data on more than 1000 taxicab rides in New Haven, Connecticut in 2001. After controlling for a …


Judicial Power and Civil Rights Reconsidered

David E. Bernstein & Ilya Somin

114 Yale L.J. 593 (2004)

Michael Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of…


"Hostility to the Presence of Women": Why Women Undermine Each Other in the Workplace and the Consequences for Title VII

Ramit Mizrahi

113 Yale L.J. 1579 (2004)

When women undermine and undercut each other, vying for advancement, they are reacting to workplace segregation and low organizational power. Employers must work to integrate workplaces to the best of their abilities, ensuring that women are present in ample numbers at all l…


Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond

Bryan W. Leach

113 Yale L.J. 1093 (2004)

In Grutter v. Bollinger, the much-anticipated case challenging affirmative action practices at the University of Michigan Law School, the Supreme Court held for the first time that "obtaining the educational benefits that flow from a diverse student body" represents a compel…


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 …


Minorities, Shareholder and Otherwise

Anupam Chander

113 Yale L.J. 119 (2003)

"[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himsel…


Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act

Robert C. Post & Reva B. Siegel

112 Yale L.J. 1943 (2003)

The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separatio…


Fall from Grace: Arming America and the Bellesiles Scandal

James Lindgren

111 Yale L.J. 2195 (2002)



Kenji Yoshino

111 Yale L.J. 769 (2002)

In this article, Professor Yoshino considers how the gay civil rights movement might enright the American civil rights paradigm, which he takes to be predicated on the paradigm classifications of race and sex. He posits that gays may be able to contribute a more robust theory…


The Kabuki Mask of Bush v. Gore

Nick Levin

111 Yale L.J. 223 (2001)

Is law merely Kabuki politics? Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore, as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics p…


Abolition Without Deliverance: The Law of Connecticut Slavery 1784-1848

David Menschel

111 Yale L.J. 183 (2001)

According to American public memory, slavery in the United States was peculiar to the South. Unless explicitly reminded of the North's history of slavery, most Americans associate the North with abolitionists rather than slaveholders. Alongside this public memory is the work …