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
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…
122 Yale L.J. 1653 (2013).
Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights
122 Yale L.J. 1089 (2013).
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 …
**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 …
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) …
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…
117 Yale L.J. 165 (2007).
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…
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 …
116 Yale L.J. 1873 (2007).
Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry
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…
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…
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…
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…
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
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…
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 …
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…
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…
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…
110 Yale L.J. 1247 (2001)