Civil-Rights Law
Article
The Unabridged Fifteenth Amendment
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…
Note
“Trying to Save the White Man’s Soul”: Perpetually Convergent Interests and Racial Subjugation
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…
Comment
Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge
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…
Note
The Anatomy of Social Movement Litigation
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.
Forum
Backdoor Municipal Immunity
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…
Review
(Re)Framing Race in Civil Rights Lawyering
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.
Article
Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality
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…
Article
Plessy Preserved: Agencies and the Effective Constitution
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…
Forum
Lessons from the Suffrage Movement in Iran
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…
Forum
After Suffrage: The Unfinished Business of Feminist Legal Advocacy
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.
Forum
Reconstituting the Future: An Equality Amendment
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…
Forum
An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection
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 …
Note
Disparate-Impact Liability for Policing
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 …
Article
The Claims of Official Reason: Administrative Guidance on Social Inclusion
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…
Article
Bias In, Bias Out
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 …
Article
Disparate Impact, Unified Law
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…
Review
State Courts and Constitutional Structure
Justice Goodwin Liu of the California Supreme Court reviews Judge Jeffrey Sutton’s new book, 51 Imperfect Solutions: The Making of American Constitutional Law.
Forum
A Response to Justice Goodwin Liu
Judge Jeffery Sutton responds to Justice Goodwin Liu’s Review of 51 Imperfect Solutions: States and the Making of American Constitutional Law.
Review
The New Jim Crow Is the Old Jim Crow
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 …
Forum
What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence
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 …
Forum
Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations
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 …
Forum
The Effort to Reform the Federal Criminal Justice System
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…
Forum
Is Korematsu Good Law?
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 …
Forum
Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu
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 …
Forum
This Is (Not) Who We Are: Korematsu, Constitutional Interpretation, and National Identity
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 …
Forum
Masquerading Behind a Facade of National Security
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…
Forum
Securing Public Interest Law’s Commitment to Left Politics
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.
Forum
Beyond the Box: Safeguarding Employment for Arrested Employees
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.
Forum
Queering Sexual Harassment Law
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.
Forum
Was Sexual Harassment Law a Mistake? The Stories We Tell
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.
Review
Brief Lives
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…
Forum
The First Amendment Freedom of Assembly as a Racial Project
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…
Feature
Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections
In light of Hively, Evans, 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…
Article
How Qualified Immunity Fails
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.
Essay
Police Reform and the Dismantling of Legal Estrangement
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…
Feature
Policing Through an American Prism
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,…
Forum
The Difference a Whole Woman Makes: Protection for the Abortion Right After Whole Woman’s Health
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…
Forum
Nervous Victors, Illiberal Measures
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…
Forum
Reconstructing RFRA: The Contested Legacy of Religious Freedom Restoration
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…
Forum
For the Title IX Civil Rights Movement: Congratulations and Cautions
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…
Forum
Only Once I Thought About Suicide
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…
Forum
Worse than Death
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…
Forum
Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails
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…
Forum
The Liman Report and Alternatives to Prolonged Solitary Confinement
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…
Forum
Time-In-Cell: Isolation and Incarceration
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…
Forum
Time-In-Cell: A Practitioner’s Perspective
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…
Review
Eighteen Years On: A Re-Review
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…
Article
Against Immutability
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…
Note
Saving 60(b)(5): The Future of Institutional Reform Litigation
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…
Forum
Perfect Plaintiffs
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…
Forum
Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality
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…
Forum
Section 5 as Simulacrum
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…
Forum
The Dignity of the South
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…
Forum
Mapping a Post-Shelby County Contingency Strategy
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…
Forum
A Cure Worse than the Disease?
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…
Review
Next-Generation Civil Rights Lawyers: Race and Representation in the Age of Identity Performance
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…
Forum
Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument
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 …
Comment
Can Section 1983 Help To Prevent the Execution of Mentally Retarded Prisoners?
121 Yale L.J. 1571.
Note
The Twenty-Sixth Amendment Enforcement Power
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 …
Comment
The Future of the Voting Rights Act: Lessons from the History of School (Re-)Segregation
121 Yale L.J. 999 (2012).
Note
An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities
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…
Article
From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases
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…
Comment
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
Article
Discrimination by Comparison
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…
Note
The Voting Rights Act's Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance
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…
Article
Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"
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…
Comment
The Significance of Domicile in Lyman Trumbull's Conception of Citizenship
119 Yale L.J. 1351 (2010).
Comment
INA Section 242(g): Immigration Agents, Immunity, and Damages Suits
119 Yale L.J. 625 (2009).
Note
Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s
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…
Article
Race and Democratic Contestation
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…
Comment
Ledbetter in Congress: The Limits of a Narrow Legislative Override
117 Yale L.J. 971 (2008).
Article
The Promise and Pitfalls of the New Voting Rights Act
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…
Forum
Democracy, Not Statehood: The Case for Puerto Rican Congressmen
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…
Note
Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury
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…
Note
Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform
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 …
Forum
Equal Educational Opportunity and the Federal Government: A Response to Goodwin Liu
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…
Forum
A Response to Goodwin Liu
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…
Forum
Federal Nagging: How Congress Should Promote Equity and Common High Standards in Public Schools
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…
Forum
To Young People, Don't Ask, Don't Tell Means Don't Enlist
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…
Forum
Please Don't Cite This Case! The Precedential Value of Bush v. Gore
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…
Article
Education, Equality, and National Citizenship
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…
Forum
The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right
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…
Forum
Ending Court Protection of Voters from the Initiative Process
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…
Forum
Civil Rights Litigation and Social Reform
[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, http://www.thepocketpart.org/2005/11/mack.html.]
Forum
Equal Justice-Same Vision in a New Day
[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, http://www.thepocketpart.org/2005/11/mack.html.]
Note
Civil Rights, Antitrust, and Early Decision Programs
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…
Article
Rethinking Civil Rights Lawyering and Politics in the Era Before Brown
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…
Essay
To Insure Prejudice: Racial Disparities in Taxicab Tipping
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 …
Review
Judicial Power and Civil Rights Reconsidered
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…
Note
"Hostility to the Presence of Women": Why Women Undermine Each Other in the Workplace and the Consequences for Title VII
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…
Note
Race as Mission Critical: The Occupational Need Rationale in Military Affirmative Action and Beyond
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…
Comment
The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action
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
Minorities, Shareholder and Otherwise
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…
Article
Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act
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…
Note
Reconceptualizing VAWA's "Animus" for Rape in States' Emerging Post-VAWA Civil Rights Legislation
111 Yale L.J. 1417 (2002)
Note
To Promote the General Welfare: The Republican Imperative To Enhance Citizenship Welfare Rights
111 Yale L.J. 1457 (2002)
Article
Covering
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…
Comment
The Kabuki Mask of Bush v. Gore
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…
Note
Abolition Without Deliverance: The Law of Connecticut Slavery 1784-1848
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 …
Note
"A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective
110 Yale L.J. 1045 (2001)