The Yale Law Journal

Comparative Law


Judicial Legitimacy and Federal Judicial Design: Managing Integrity and Autochthony

Gabrielle Appleby & Erin F. Delaney

This Article argues that the sociological legitimacy of judicial institutions in federal systems rests on both integrity and autochthony. Through theoretical and comparative inquiry, we explore the ways in which initial federal constitutional design, as well as ongoing legislative and judicial manag…


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…


Privacy and Security Across Borders

Jennifer Daskal

This Essay analyzes the impetus and results of recent initiatives by the United States, European Union, and Australia to regulate law enforcement access to data, highlights their promise and their limits, and offers a way forward that protects speech, privacy, and other rights in the process.


Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law

Martha F. Davis

122 Yale L.J. 2260 (2013).

Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality…


Amici Curiae in Civil Law Jurisdictions

Steven Kochevar

122 Yale L.J. 1653 (2013).



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 …


Outcasting, Globalization, and the Emergence of International Law

Robin Bradley Kar

**This is the second in a series of responses to Oona Hathaway and Scott J Shapiro's recent article, Outcasting, which appeared in the November issue of YLJ. For Joshua Kleinfeld's response, see here.**

This Essay argues that we have been undergoing a profound sociocultural transformation over the …


Consumerism Versus Producerism: A Study in Comparative Law

James Q. Whitman

117 Yale L.J. 340 (2007).

The spread of American-style “consumerism” is a burning global issue today. The most visible symbols of American consumerism, large enterprises like Wal-Mart and McDonald’s, attract vitriolic attacks in many parts of the world. Political conflict in Europe (and elsewhere) …


The Constitution Outside the Constitution

Ernest A. Young

117 Yale L.J. 408 (2007).

Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitu…


Cleaning House: Congressional Commissioners for Standards

Josh Chafetz

117 Yale L.J. 165 (2007).


The Historical Origins of Judicial Independence and Their Modern Resonances

David C. Flatto

Responding to Mary Sarah Bilder’s argument that the roots of judicial review can be found in corporate law of the colonial era, Scott Gerber contends that judicial review is an extension of the notion of an independent judiciary that emerged from Revolutionary Era political theory. Gerber convinci…


Designing a Constitution-Drafting Process: Lessons from Kenya

Alicia L. Bannon

This Note examines Kenya’s recent constitution-writing experience as a case study for designing constitution-drafting processes in emerging democracies. Eight years after Kenya’s constitutional review process began, and after a highly acrimonious drafting period, Kenyans roundly defeated a proposed …


On Target? The Israeli Supreme Court and the Expansion of Targeted Killings

Kristen E. Eichensehr

116 Yale L.J. 1873 (2007).


Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry

Judith Resnik

115 Yale L.J. 1564 (2006)

Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provi…


Income Tax Discrimination and the Political and Economic Integration of Europe

Michael J. Graetz & Alvin C. Warren Jr.

115 Yale L.J. 1186 (2006)

In recent years, the European Court of Justice (ECJ) has invalidated many income tax law provisions of European Union (EU) member states as violating European constitutional treaty guarantees of freedom of movement for goods, services, persons, and capital. These decisions h…


Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access

Daniel Fitzpatrick

115 Yale L.J. 996 (2006)

According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has bee…


Who Will Find the Defendant if He Stays with His Sheep? Justice in Rural China

Frank K. Upham

114 Yale L.J. 1675 (2005)

In Song fa xiaxiang: Zhongguo jiceng sifazhidu yanjiu [Sending Law to the Countryside: Research on China's Basic-Level Judicial System], Dean Zhu Suli of Beijing University Law School claims that Chinese legal scholars uncritically accept foreign models and rule-of-law ideol…


The World Bank and the Internalization of Indigenous Rights Norms

Galit A. Sarfaty

114 Yale L.J. 1791 (2005)

The World Bank has emerged as an important actor in the international law community by enforcing social and environmental standards in borrower countries. One such standard is its indigenous peoples policy, which the Bank attempts to incorporate into domestic law through bin…


The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s-1950s

Peter L. Lindseth

113 Yale L.J. 1341 (2004)

The struggle to define the role of the legislature in the modern administrative state has been central to constitutional politics in Western countries. That struggle was especially intense in Germany and France from the 1920s to the 1950s. Contrary to claims of certain inte…


The Two Western Cultures of Privacy: Dignity Versus Liberty

James Q. Whitman

113 Yale L.J. 1151 (2004)

Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and …


The Politics of Corporate Governance Regulation

Peter A. Gourevitch

112 Yale L.J. 1829 (2003)

Why do corporate governance systems differ quite substantially around the world? The American model supervises managers through a board representing a diffuse mass of external shareholders whose rights are defended by a variety of institutional rules (such as those governing…


The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt

George P. Fletcher

111 Yale L.J. 1499 (2002)

Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--n…


Categorical Federalism: Jurisdiction, Gender, and the Globe

Judith Resnik

111 Yale L.J. 619 (2001)

An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense t…