The Yale Law Journal

Constitutional Law

Essay

Originalism Without Text

Stephen E. Sachs

Originalism is not about the text. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. What originalism generally is about is our present constitutional law and its dependence on a crucial moment in the pa…

Note

Disparate Statistics

Kevin Tobia

Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3)…

Comment

Williams-Yulee and the Anomaly of Campaign Finance Law

Noah B. Lindell

In 2015, the U.S. Supreme Court held in Williams-Yulee v. Florida Bar that states may prohibit candidates for judicial office from personally soliciting campaign donations in order to protect the appearance of judicial integrity.2 For only the third time in its history, the Court upheld a l…

Forum

Capital Jurors in an Era of Death Penalty Decline

Brandon Garrett, Daniel Krauss & Nicholas Scurich

The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s. Following decades during which the death penalty shared broad public support, over the last decad…

Article

The Origins of Judicial Deference to Executive Interpretation

Aditya Bamzai

Judicial deference to executive statutory interpretation—a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doc…

Note

Private Enforcement of the Affordable Care Act: Toward an "Implied Warranty of Legality" in Health Insurance

Christine H. Monahan

For decades, the individual health insurance market failed to provide consumers adequate or affordable health coverage. The Affordable Care Act (ACA) sought to change this state of affairs, establishing a new Patient’s Bill of Rights and instituting other protections that require…

Forum

The Unitary Executive and the Scope of Executive Power

John Harrison

In the Justice Department’s Office of Legal Counsel (OLC) in the 1980s, “unitary” meant unitary, as in e pluribus unum. When Deputy Assistant Attorney General Samuel Alito and his colleagues in OLC used the phrase “unitary executive,” they used “unitary” to convey two kinds of oneness. The executive…

Forum

The Private Search Doctrine After Jones

Andrew MacKie-Mason

In United States v. Jacobsen, the Supreme Court created a curious aspect of Fourth Amendment law now known as the private search doctrine. Under the private search doctrine, once a private party has conducted an initial search independent of the government, the government may repeat that search, eve…

Forum

Business Licensing and Constitutional Liberty

Amanda Shanor

Claims that the Constitution prohibits business licensing requirements have proliferated in recent years. The U.S. Court of Appeals for the District of Columbia Circuit recently concluded that a District requirement that tour guides obtain business licenses violated the First Amendment. The Sixth Ci…

Forum

Beating Rubber-Stamps into Gavels: A Fresh Look at Occupational Freedom

Clark Neily

The number of Americans who must obtain government permissionto work in their chosen vocation has been steadily rising. A recent White Housereport observed that “[o]ccupational licensing has grown rapidly over the past few decades” and has come to include manyharmless vocations such as interior desi…

Forum

The Due Process Right To Pursue a Lawful Occupation: A Brighter Future Ahead?

David E. Bernstein

For decades, the Supreme Court has rejected arguments that the Fourteenth Amendment’s Due Process Clause protects a general right to liberty of contract worthy of more than cursory judicial attention. Instead, the Court, along with most state courts, has reviewed economic regulations that do not imp…

Article

The Cycles of Separation-of-Powers Jurisprudence

Aziz Z. Huq & Jon D. Michaels

abstract.The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although the Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between hard-edged rules and open-textured standards. The Court’s seem…

Comment

From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions

Katie Wynbrandt

introduction On June 20, 1991, two police officers brought an African American man named Anthony Gray into custody for questioning related to the unsolved rape and murder of a woman in Calvert County, Maryland.1 During the interrogation, the detectives lied to Mr. Gray about the evid…

Review

A Review

Eric A. Posner

The Court and the World: American Law and the New Global Realities BY STEPHEN BREYER, ALFRED A. KNOPF, 2015 author. Kirkland & Ellis Distinguished Service Professor, University of Chicago Law School. Thanks to Will Baude and Curt Bradley for helpful comments, Kathrine Gutierrez f…

Forum

Apple and the American Revolution: Remembering Why We Have the fourth Amendment

Clark D. Cunningham

On February 16, 2016, the U.S. Department of Justice (DOJ)obtained an unprecedented court order in the San Bernardino shooting case thatwould have forced Apple to design and deliver to the DOJ software capable ofdestroying the encryption and passcode protections built into the iPhone. The DOJasserte…

Note

The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations

Eric Chung

abstract.The United States often ratifies multilateral treaties by relying on what are commonly referred to as reservations, understandings, and declarations (RUDs). RUDs limit the domestic effect of treaties and confine provisions to particular meanings consistent with the United States’ prac…

Forum

Predicting Utah v. Streiff's Civil Rights Impact

Katherine A. Macfarlane

The Supreme Court’s recent Utah v. Strieff decision declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop. The opinion, in conjunction with Justice Sotomayor’s dissent, has reanimated discussions regarding when, if ever, criminal d…

Forum

Innocence and Override

Patrick Mulvaney & Katherine Chamblee

For the past three decades, the practice of judicial override in capital cases has allowed Alabama judges to impose the death penalty even where the jury voted for life. However, recent developments have cast doubt on the future of override in Alabama. The United States Supreme Court struck down par…

Forum

Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine

Laurence H. Tribe

The time is ripe for a reappraisal of the separation of powers as the organizing principle of our federal government. Most of the relevant doctrinal architecture has been constructed over the past seven decades. Perhaps because of Justice Robert H. Jackson’s incomparable brilliance as a writer, the …

Article

The President’s Budget as a Source of Agency Policy Control

Eloise Pasachoff

A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely…

Comment

Ideological Imbalance and the Peremptory Challenge

Joshua Revesz

Legal scholars, by and large, revile peremptory challenges. Allowing parties to unilaterally strike prospective jurors without explanation has been attacked as undemocratic,1 as prone to manipulation,2 as a potential First Amendment violation,3 and—most often of all—as racist.4 Judge…

Feature

The Constitutionality of Civil Forfeiture

Caleb Nelson

Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safe…

Essay

Fiduciary Political Theory: A Critique

Ethan J. Leib & Stephen R. Galoob

“Fiduciary political theory” is a burgeoning intellectual project that uses fiduciary principles to analyze public law. This Essay provides a framework for assessing the usefulness and limitations of fiduciary political theory. Our thesis is that fiduciary principles can be…

Note

The Modification of Decrees in the Original Jurisdiction of the Supreme Court

James G. Mandilk

Interstate disputes in the Supreme Court’s original jurisdiction often implicate long-term interests, such as state boundaries or rights to interstate bodies of water. Decades after the Court issues a ruling in an original jurisdiction case, the parties may ask the Court to re…

Feature

Campus Sexual Assault Adjudication and Resistance to Reform

Michelle J. Anderson

The forty-year history of rape law reform sheds light on current debates around the adjudication of campus sexual assault. Two strands of rape law reform are important. The first, a progressive reform movement, abolished the unique procedural hurdles in rape prosecutions. Tha…

Feature

Title IX: An Imperfect but Vital Tool To Stop Bullying of LGBT Students

Adele P. Kimmel

LGBT students are bullied at dramatically higher rates than other students. School bullying generally, and the targeting of LGBT students in particular, has recently garnered national attention as a serious problem that needs to be solved. Just as society is increasingly re…

Feature

In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education

Catharine A. MacKinnon

The treatment of sexual harassment victims by their schools, and of schools by courts, under the institutional liability standard of deliberate indifference for damages in private suits is inconsistent with Title IX’s guarantee of equal educational outcomes on the basis of sex.…

Feature

Gender Violence Costs: Schools’ Financial Obligations Under Title IX

Dana Bolger

The last two years have witnessed a surge in attention to the issue of sexual assault in higher education. Campus rape has become the subject of new legislation, inspired a White House task force, and dominated news headlines. Yet largely neglected in this growing national conver…

Feature

A Better Balance: Providing Survivors of Sexual Violence with “Effective Protection” Against Sex Discrimination Through Title IX Complaints

Alyssa Peterson & Olivia Ortiz

Although gender-based violence has long been recognized as a form of sex discrimination prohibited under Title IX, many survivors receive little to no support from their college or university after experiencing violence. In response, an increasing number have sought redress by …

Feature

Transformation Requires Transparency: Critical Policy Reforms To Advance Campus Sexual Violence Response

Zoe Ridolfi-Starr

This Feature discusses the lack of transparency in campus adjudication of gender violence reports. It examines the harms caused by this procedural opacity to both accusing and accused students alike, including pervasive mistrust in the system and decreased reporting rates. The pi…

Forum

Can Corpus Linguistics Help Make Originalism Scientific?

Lawrence M. Solan

James Phillips, Daniel Ortner, and Thomas Lee begin their engaging essay, Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical, by pronouncing originalism “the predominant interpretive methodology for constitutional meaning in American history.” They then descr…

Forum

Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical

James C Phillips, Daniel M. Ortner, & Thomas R. Lee

Originalism has been the predominant interpretive methodology for constitutional meaning in American history: it is the methodology that has been with us since the Constitution’s birth. With its rebirth in the latter part of the twentieth century and its theoretical evolution from original intent to…

Forum

The Fourth Amendment in the Information Age

Robert S. Litt

To badly mangle Marx, a specter is haunting Fourth Amendment law—the specter of technological change. In a number of recent cases, in a number of different contexts, courts have questioned whether existing Fourth Amendment doctrine, developed in an analog age, is able to deal effectively with digita…

Article

Administrative Forbearance

Daniel T. Deacon

This Article investigates the normative and constitutional case for a particular form of congressional delegation that is of increasing practical importance: delegations that give agencies the power to deprive statutory provisions of legal force and effect, a power this Artic…

Note

Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone

Kate Huddleston

This Note assesses the constitutionality of Texas House Bill 2 (H.B. 2), which regulates abortion providers, as applied to clinics located in the area between the state’s border with Mexico and internal federal immigration checkpoints. Should these statutory provisions go into …

Note

How To Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes

Robert L. Nightingale

This Note advocates a new approach to determining the severability of long, complex omnibus statutes. It first examines the legal basis for the Supreme Court’s current approach to severability, outlined in the three severability principles of Alaska Airlines, Inc. v. Brock. The …

Article

Professional Speech

Claudia E. Haupt

Professionals speak in the course of exercising their profession. At the same time, the state can regulate the professions. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive a…

Note

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…

Feature

Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice

Linda Greenhouse & Reva B. Siegel

We offer a fresh understanding of how the Supreme Court’s abortion jurisprudence addresses laws that invoke not potential life, but women’s health as a reason to single out abortion for burdensome regulation that has the effect of closing clinics. The current wave of hea…

Forum

Religious Liberty for Politically Active Minority Groups: A Response to NeJaime and Siegel

Douglas Laycock

Introduction Douglas NeJaime and Reva Siegel have offered an elaborately reasoned argument against claims of conscience with respect to healthcare and marriage, claims that they call “complicity-based conscience claims.”1 I appreciate that they have avoided some of the exaggerations o…

Forum

RFRA and First Amendment Freedom of Expression

Robert Post

I have very little expertise in the Religious Freedom Restoration Act (RFRA)1 or in the underlying constitutional law of freedom of religion that RFRA seeks to codify. I therefore venture into the debate surrounding Douglas NeJaime and Reva B. Siegel’s Conscience Wars: Complicity-Based Co…

Forum

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…

Forum

Evidence-Based Sentencing and the Taint of Dangerousness

Gregory Cui

Today’s world is “all about the data.”1 In a variety of contexts, innovators have offered statistical models as a way to reduce or eliminate human error.2 The promise of quantitative optimization has even influenced our criminal justice system. About twenty states have developed or a…

Note

Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court

David Scott Louk

The text of a Supreme Court opinion rarely tells the full story of the debates, discussions, and disagreements that resulted in a particular decision. Drawing on previously unexamined archival papers of the Justices of the Burger Court, this Note tells the story of the Burger C…

Forum

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…

Forum

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…

Forum

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…

Forum

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…

Forum

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…

Forum

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…

Article

Political Entrenchment and Public Law

Daryl Levinson & Benjamin I. Sachs

Courts and legal scholars have long been concerned with the problem of “entrenchment”—the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and sch…

Article

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…

Comment

Interbranch Removal and the Court of Federal Claims: “Agencies in Drag”

James Anglin Flynn

Last summer, the D.C. Circuit upheld a statute that gives the President the power to remove judges of the United States Tax Court.1 Kathleen and Peter Kuretski, a taxpayer couple, had challenged the constitutionality of that provision, alleging that it granted an executive official the imper…

Forum

Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context

Eric M. Ruben & Saul Cornell

Introduction During recent oral arguments in Peruta v. County of San Diego, a case being reconsidered en banc in the U.S. Court of Appeals for the Ninth Circuit, former Solicitor General Paul Clement turned to what may appear an unusual guide for interpreting the scope of the Second Amendm…

Forum

Justice Thomas and the Originalist Turn in Administrative Law

Brian Lipshutz

Introduction Until this term, administrative law seemed beyond the reach of originalist scrutiny at the Supreme Court. Then, in a series of six originalist opinions, Justice Thomas called into question agency rulemaking, judicial deference to agencies, and certain agency adjudications…

Forum

Looking Back Ten Years After Kelo

Dana Berliner

Dana Berliner is the Litigation Director of the Institute for Justice. Along with her colleague Scott Bullock, she represented the homeowners in Kelo v. City of New London from the inception of the case to its conclusion at the Supreme Court. This year marks the tenth anniversary of the Supreme …

Forum

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…

Forum

How Conflict Entrenched the Right to Privacy

Reva B. Siegel

We are about to mark the fiftieth anniversary of Griswold v. Connecticut,1 a 1965 case in which the Supreme Court struck down a Connecticut law that criminalized the use of contraception, in the process giving birth to the modern right to privacy. From Griswold’s understanding of “libert…

Forum

Overlooking Equality on the Road to Griswold

Melissa Murray

This year marks the fiftieth anniversary of Griswold v. Connecticut,1the Supreme Court decision that famously articulated a right to privacy.2 As we celebrate Griswold, it is easy to overlook what preceded it—and what was surrendered in Griswold’s embrace of the right to privacy. In 1960,…

Forum

Griswold and the Public Dimension of the Right to Privacy

Cary Franklin

Fifty years ago, the Court in Griswold v. Connecticut1 invalidated Connecticut’s ban on birth control. The various opinions in Griswold were in many ways products of their time. For instance, none of the Justices focused on the implications of the Connecticut law for women’s equality. Con…

Forum

Griswold's Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality

Douglas NeJaime

In Griswold v. Connecticut,1 the Supreme Court ruled that a Connecticut statute criminalizing the use of contraception violated married couples’ privacy rights. On the decision’s fiftieth anniversary, this brief Essay takes cues from a principle at stake in Griswold—that procreative li…

Forum

Contraception as a Sex Equality Right

Neil S. Siegel & Reva B. Siegel

“Not only the sex discrimination cases, but the cases on contraception, abortion, and illegitimacy as well, present various faces of a single issue: the roles women are to play in society. Are women to have the opportunity to participate in full partnership with men in the nation’s socia…

Forum

Cost-Benefit Analysis of Financial Regulation: A Reply

John C. Coates IV

Let me begin by thanking Professors Posner, Weyl, and Sunstein, and Mr. Kraus, for their thoughtful and thought-provoking replies, and the editors of the Yale Law Journal for organizing this exchange. The comments are rich, and a full response would take on the size of another article—but …

Forum

How To Think About Law as Morality: A Comment on Greenberg and Hershovitz

Steven Schaus

Introduction In philosophy, we can sometimes hope to make progress just by looking at old issues in new ways. The hope is that we might see familiar facts and controversies differently and understand them better for it. In their recent Essays, Mark Greenberg and Scott Hershovitz make the …

Forum

The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration

Kurt T. Lash

In his provocative article, The Limits of Enumeration,1 Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without refe…

Forum

Roundup: Citizens United and Public Corruption

Noah A. Rosenblum

Public corruption has occupied an interstitial space in American law, cutting across many different legal fields, including traditional criminal law, campaign finance regulation, special rules governing public officers, and First Amendment doctrine. When Citizens United was decided,1 its eff…

Forum

Fighting for the "Right To Try" Unapproved Drugs: Law as Persuasion

Sam Adriance

Over the last several months, five states have passed “Right to Try” laws,1 which are designed to allow terminally ill patients to obtain experimental drugs.2 Often popularly known as “Dallas Buyers Club” laws,3 Right to Try legislation appears to bypass the FDA’s safety procedures…

Forum

Warning!: Self-Help and the Presidency

William P. Marshall

It may be hard to look over the current political landscape without concluding that some remedy for the current political dysfunction is in order.1 We live in a time when political polarization is so intense that some members of one party have openly stated that they would do virtually anyth…

Forum

Abuse of Property Right Without Political Foundations: A Response to Katz

Mitchell N. Berman

Suppose that Oliver owns Blackacre, a parcel adjacent to Whiteacre, owned by Teresa. Oliver erects a large sculpture on Blackacre along the shared property line. The sculpture conforms to zoning regulations. But Oliver erects it in order to block Teresa’s access to light. Is he legally ent…

Forum

Hall v. Florida and Ending the Death Penalty for Severely Mentally Ill Defendants

Lise E. Rahdert

This Term in Hall v. Florida the Supreme Court held a portion of Florida’s death penalty statute unconstitutional under the Eighth and Fourteenth Amendments.1 Specifically, the Court invalidated Florida’s rigid system for determining whether a capital defendant is intellectually disabled…

Forum

Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts

Patrick Weil

In this Essay, Professor Patrick Weil reexamines the constitutional function of the passport in relation to American citizenship. The State Department recently developed apolicy of passport revocation whereby some Americans are transformed into de facto stateless persons, like Edward Snowden, or are…

Forum

A Conversation with Justice Sotomayor

Justice Sonia Sotomayor & Linda Greenhouse

On February 3, 2014, Justice Sonia Sotomayor delivered the James A. Thomas Lecture at Yale Law School. This transcript is adapted (with slight editing) from that lecture, which took the form of a conversation between Justice Sotomayor and Linda Greenhouse. The lecture touched on topics including Jus…

Forum

Secrecy, Intimacy, and Workable Rules: Justice Sotomayor Stakes Out the Middle Ground in United States v. Jones

Miriam H. Baer

In this Essay, Professor Miriam Baer focuses on Justice Sotomayor’s concurrence in United States v. Jones, which has attracted widespread notice due to Justice Sotomayor’s suggestion that the Court reconsider its reasonable expectation of privacy test and the related third-party doctrine. Professor …

Forum

Why Firearm Federalism Beats Firearm Localism

Michael P. O'Shea

Americans are increasingly polarized on gun rights and gun policy, leading some scholars to ask whether the Second Amendment provides a tool to manage disagreement and promote decentralization. Joseph Blocher’s Firearm Localism takes up this perspective and makes a case for deference to local and mu…

Forum

Syria, Threats of Force, and Constitutional War Powers

Matthew C. Waxman

In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constrain…

Forum

Lower Court Popular Constitutionalism

Katie Eyer

Scholars of popular constitutionalism have persuasively argued that an array of nonjudicial actors—social movements, the federal political branches, state and local political entities—play an important role in shaping constitutional meaning. To date, the accounts of such scholars have largely focuse…

Forum

Windsor’s Right to Marry

Douglas NeJaime

In this Essay, Professor Douglas NeJaime reads United States v. Windsor, which technically rested on equal protection grounds, through the lens of the fundamental right to marry. The Windsor Court absorbed decades of LGBT rights advocacy by situating same-sex couples within a contemporary model of m…

Essay

Why Civil Gideon Won’t Fix Family Law

Rebecca Aviel

This Essay explains why we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. The comparable importance of these interests does not necess…

Essay

Gideon Exceptionalism?

John H. Blume & Sheri Lynn Johnson


122 Yale L.J. 2126 (2013).

There is no doubt that Gideon v. Wainwright is extraordinary, but in thinking about its uniqueness, we are reminded of “American exceptionalism” and the diametrically opposed meanings that advocates have ascribed to the phrase. Gideon too is exceptional, in both the laudato…

Essay

Poor People Lose: Gideon and the Critique of Rights

Paul D. Butler


122 Yale L.J. 2176 (2013).

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The crit…

Essay

Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services

Jeanne Charn


122 Yale L.J. 2206 (2013).

Recent empirical studies tested whether litigants with access to lawyers fared better than litigants with access only to advice or limited assistance. Two of the three studies produced null findings—the litigants with access to lawyers, the treatment group, fared no better …

Essay

Race and the Disappointing Right to Counsel

Gabriel J. Chin


122 Yale L.J. 2236 (2013).

Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hop…

Essay

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…

Essay

Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda

Roger A. Fairfax, Jr.


122 Yale L.J. 2316 (2013).

As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same t…

Essay

Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?

Bruce A. Green


122 Yale L.J. 2336 (2013).

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in…

Essay

Valuing Gideon’s Gold: How Much Justice Can We Afford?

M. Clara Garcia Hernandez & Carole J. Powell


122 Yale L.J. 2358 (2013).

In this Essay, we explore Gideon’s impact in our community, El Paso, Texas, which has the will to try to meet Gideon’s challenge, but lacks the resources to deliver fully Gideon’s promise. We look at the origins of our community’s indigent defense reform and examine our off…

Essay

Investigating Gideon’s Legacy in the U.S. Courts of Appeals

Emily Hughes


122 Yale L.J. 2376 (2013).

This Essay investigates the legacy of Gideon by examining the de facto courts of last resort for convicted offenders: the federal courts of appeals. Part I focuses on the U.S. courts of appeals’ judges and caseloads, revealing that very few federal appellate judges have pri…

Essay

An Immigration Gideon for Lawful Permanent Residents

Kevin R. Johnson


122 Yale L.J. 2394 (2013).

In evaluating the legacy of Gideon v. Wainwright, it is critical to remember that the Supreme Court’s decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal def…

Essay

Gideon at Guantánamo

Neal Kumar Katyal


122 Yale L.J. 2416 (2013).

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether …

Essay

Enforcing Effective Assistance After Martinez

Nancy J. King


122 Yale L.J. 2428 (2013).

This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent represen…

Essay

Gideon’s Law-Protective Function

Nancy Leong


122 Yale L.J. 2460 (2013).

Gideon v. Wainwright
dramatically affects the rights of indigent defendants by entitling them to representation. But Gideon has another systemic consequence as well. In addition to protecting the rights of individual defendants in particular trials, Gideon also protects the…

Essay

Gideon’s Shadow

Justin F. Marceau


122 Yale L.J. 2482 (2013).

The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elabo…

Essay

Gideon at Guantánamo: Democratic and Despotic Detention

Hope Metcalf & Judith Resnik


122 Yale L.J. 2504 (2013).

One measure of Gideon v. Wainwright is that it made the U.S. government’s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon, along with Miranda v. Arizona, is part of a democratic narrative shaped over dec…

Essay

Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures

Pamela R. Metzger


122 Yale L.J. 2550 (2013).

Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our …

Essay

Federal Public Defense in an Age of Inquisition

David E. Patton


122 Yale L.J. 2578 (2013).

This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Ac…

Essay

Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures

Eve Brensike Primus


122 Yale L.J. 2604 (2013).

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life int…

Essay

Implicit Racial Bias in Public Defender Triage

L. Song Richardson & Phillip Atiba Goff


122 Yale L.J. 2626 (2013).

Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defend…

Essay

Effective Plea Bargaining Counsel

Jenny Roberts


122 Yale L.J. 2650 (2013).

Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men,…

Address

Lessons from Gideon

Erwin Chemerinsky


122 Yale L.J. 2676 (2013).

Why has the promise of Gideon gone largely unfulfilled and what can be learned from this? Gideon was an unfunded mandate to state governments, requiring them to provide the money to ensure competent counsel for all criminal defendants facing possible prison sentences. Gideo…

Address

Gideon at Fifty: A Problem of Political Will

Carol S. Steiker


122 Yale L.J. 2694 (2013).

Although it is fitting to celebrate Gideon’s promise of representation for indigent criminal defendants at this landmark anniversary, it is important also to note that part of Gideon’s legacy should be our recognition of the limits of law in the fulfillment of that promise.…

Forum

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…

Forum

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…

Article

Rethinking the Federal Eminent Domain Power

William Baude


122 Yale L.J. 1738 (2013).

It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was t…

Note

How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change

Daniel Taylor Young


122 Yale L.J. 1990 (2013).

Bruce Ackerman argues that major shifts in constitutional law can occur outside the Article V amendment process when there are unusually high levels of sustained popular attention to questions of constitutional significance.  This Note develops a new empirical strategy to e…

Article

Commandeering and Constitutional Change

Wesley J. Campbell


122 Yale L.J. 1104 (2013).

Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of hi…

Article

Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second

Darrell A.H. Miller


122 Yale L.J. 852 (2013).

In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts hav…

Essay

Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?

Matthew C. Stephenson


122 Yale L.J. 940 (2013).

It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senat…

Note

Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms

Marissa C.M. Doran


122 Yale L.J. 1024 (2013).

This Note is about the practice of conditioning recovery for violations of prisoners’ intangible constitutional rights, like First Amendment petition rights, upon a showing of physical injury. It argues that the prior physical injury requirement of the Prison Litigation Ref…

Essay

Contra Nemo Iudex in Sua Causa: The Limits of Impartiality

Adrian Vermeule


122 Yale L.J. 384 (2012).

Regularly invoked by the Supreme Court in diverse contexts, the maxim nemo iudex in sua causa—no man should be judge in his own case—is widely thought to capture a bedrock principle of natural justice and constitutionalism. I will argue that the nemo iudex principle is a m…

Essay

Judicial Capacity and the Substance of Constitutional Law

Andrew B. Coan


122 Yale L.J. 422 (2012).

Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This Essay advances a tw…

Article

Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments

Richard M. Re & Christopher M. Re


121 Yale L.J. 1584 (2012).

The Reconstruction Amendments are justly celebrated for transforming millions
of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side.
In arguing that voting laws should not discriminate on the basis of morally insignificant statu…

Essay

Due Process as Separation of Powers

Nathan S. Chapman & Michael W. McConnell


121 Yale L.J. 1672 (2012).

From its conceptual origin in Magna Charta, due process of law has required that
government can deprive persons of rights only pursuant to a coordinated effort of separate
institutions that make, execute, and adjudicate claims under the law. Originalist debates about
whether t…

Comment

One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement

Margaret B. Weston


121 Yale L.J. 2013 (2012).

Feature

Redistricting Commissions: A Better Political Buffer?

Bruce E. Cain


121 Yale L.J. 1808 (2012).

The new institutionalism in election law aims to lessen the necessity of court
intervention in politically sensitive election administration matters such as redistricting by
harnessing politics to fix politics. Many hope that independent citizen commissions (ICCs) will
improve…

Forum

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 …

Article

Rights and Votes

Daryl J. Levinson

121 Yale L.J. 1286.

This Article explores the functional similarities, residual differences, and interrelationships between rights and votes, both conceived as tools for protecting minorities (or other vulnerable groups) from the tyranny of majorities (or other dominant social and political actors). …

Forum

Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism

Andrew Koppelman

Gary Lawson and David Kopel’s Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate argues, on the basis of recent research, that the Necessary and Proper Clause incorporates norms from eighteenth-century agency law, administrative law, and corporate law, and…

Forum

Bad News for John Marshall

Gary Lawson & David B. Kopel

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Mar…

Note

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 …

Note

“Done in Convention”: The Attestation Clause and the Declaration of Independence

Jesse Cross


121 Yale L.J. 1236 (2012).


This Note offers a response to commentators who have argued that the Attestation Clause is best read as a straightforward attempt by the Founders to import the spirit and values of the Declaration of Independence into the Constitution. This argument distorts the Constitutio…

Forum

Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State

Daniel A. Farber

**This is the third in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ. For Professor Richard Epstein's response, see here. For Professor Jonathan Zasloff's res…

Forum

Courts in the Age of Dysfunction

Jonathan Zasloff

**This is the second in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ. For Professor Richard Epstein's response, see here.**

This Essay comments on Benjamin …

Forum

Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate

Gary Lawson & David B. Kopel

In Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, Professor Andrew Koppelman argues that the individual mandate in the Patient Protection and Affordable Care Act is constitutionally authorized by the Necessary and Proper Clause. This view is fundamentally wrong. The …

Comment

The Anti-Federalists and Presidential War Powers

Cameron O. Kistler

121 Yale L.J. 459 (2011).

Forum

When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches

Priscilla J. Smith, Nabiha Syed, David Thaw & Albert Wong

Introduction

Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enfor…

Note

The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement

Abigail M. Hinchcliff


121 Yale L.J. 194 (2011).


Section 2 of the Fourteenth Amendment allows states to disenfranchise citizens on
account of “rebellion, or other crime” without reducing the size of the state’s delegation in the
House of Representatives. In its 1974 decision in Richardson v. Ramirez, the Supreme Court held
th…

Forum

AEP v. Connecticut’s Implications for the Future of Climate Change Litigation

Hari M. Osofsky

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “th…

Forum

A Tale of Two Climate Cases

Jonathan H. Adler

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In July 2004, eight states, the City of New York, and a number of conservation organ…

Forum

Climate Justice and the Elusive Climate Tort

Maxine Burkett

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

The Supreme Court’s decision in American Electric Power Co. v. Connecticut (AEP) clo…

Forum

Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine

Daniel A. Farber

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

Article III standing has three seemingly simple components: (1) the plaintiffs must …

Forum

AEP v. Connecticut and the Future of the Political Question Doctrine

James R. May

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

Whether and how to apply the political question doctrine were among the issues for w…

Forum

What Litigation of a Climate Nuisance Suit Might Look Like

Michael B. Gerrard

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly le…

Forum

Judges in Jeopardy!: Could IBM’s Watson Beat Courts at Their Own Game?

Betsy Cooper

Introduction

February 16, 2011 was a day of reckoning for humankind. A new computer, appropriately dubbed “Watson,” beat the world’s best Jeopardy! players at their own game. At first blush this may not seem so surprising: after all, computers are notoriously better than humans at “recalling” factu…

Forum

Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis

Edward A. Zelinsky

**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

In Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court decided, by the thinnest of margins, that Arizona taxpayers cannot m…

Forum

A Winn for Educational Pluralism

Nicole Stelle Garnett

**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**

Over the past decade, scholarship tax credit programs, like the one at issue in Arizona Christian School Tuition Organization v. Winn, have emerged a…

Forum

Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform

Andrew Koppelman

The Supreme Court may be headed for its most dramatic intervention in American politics—and most flagrant abuse of its power—since Bush v. Gore. Challenges to President Obama’s health care law have started to work their way toward the Court and have been sustained by two Republican-appointed distric…

Forum

The Taxing Power, The Affordable Care Act, and the Limits of Constitutional Compromise

Brian Galle

After a quiet century or so, the scope of Congress’s power “[t]o lay and collect taxes” is once again in the news. The taxing power was at issue when the Supreme Court issued a decision that President (and Chief Justice) Taft would later call the worst injury to the Court’s reputation ever, …

Forum

Superstatutory Entrenchment: A Positive and Normative Interrogatory

Mathew D. McCubbins & Daniel B. Rodriguez

William Eskridge, Jr., and John Ferejohn’s magnum opus on “small ‘c’” constitutionalism and the republic of statutes is an unusually wide-ranging work of legal and political analysis, one that defies comprehensive summary. In this Essay, we bore in on a central element of their thesis: the…

Forum

The National Security Constitution and the Bush Administration

Stephen M. Griffin

There is a widespread intuition that the Constitution provides much less than a full blueprint of the structure and powers of the contemporary federal government. Even if we regard judicial doctrine as part of the “Large ‘C’” Constitution, the intuition still seems valid. In particular, it i…

Forum

Plural Constitutionalism and the Pathologies of American Health Care

Theodore W. Ruger

I. America’s Two Health Care Constitutions The United States has two health care constitutions, and the old is the enemy of the new. The recently enacted Patient Protection and Affordable Care Act (PPACA) is the latest step in the federal government’s incremental efforts over the past half cent…

Forum

Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment

John D. Skrentny & Micah Gell-Redman

In his 2008 campaign, then-Democratic presidential candidate Barack Obama promised “comprehensive immigration reform.” Two years into his Administration, and despite continued efforts to promote reform, there has not even been a vote in Congress on a comprehensive bill. President Obama’s prede…

Forum

Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn's A Republic of Statutes: The New American Constitution

Robert A. Katzmann

A Republic of Statutes: The New American Constitution is a landmark collaboration of two preeminent scholars, law professor William N. Eskridge, Jr. and political scientist John Ferejohn. Nearly a quarter century ago, Professor Eskridge, with the late Professor Philip Frickey, sparked the revival of…

Forum

The New Judicial Takings Construct

Timothy M. Mulvaney

[To] halt the law's evolution... would be to sever property's link to the culture it serves. In time, a static property regime would inevitably become an anachronism and would gradually be perceived as an obstacle to progressIn Stop the Beach Renourishment, Inc. v. Florida Department of Environmenta…

Forum

Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations

Deana Pollard Sacks

The Supreme Court’s forthcoming decision in Snyder v. Phelps will address the clash between two fundamental and longstanding American values: freedom of speech and “the right to be let alone.” Freedom of speech is a cherished and distinguishing characteristic of American democracy, while the r…

Forum

Reversed on Appeal: The Uncertain Future of President Obama's "Empathy Standard"

John Paul Rollert

Words have a way of coming back to haunt you, especially those you bother to print. Just ask Elena Kagan. In a 1995 book review, she famously skewered the Senate Judiciary Committee hearings for Supreme Court nominees as “a vapid and hollow charade, in which repetition of platitudes have replaced …

Forum

Citizens United and Its Critics

Floyd Abrams

Testifying before the Senate Judiciary Committee regarding her confirmation as a Supreme Court Justice, Solicitor General Elena Kagan summed up in a cool and even-handed manner the arguments she and her opponents in the Citizens United v. FEC case had made to the Supreme Court. The “strongest argu…

Forum

Slow and Steady: David Souter's Life in the Law

Adam D. Chandler

David Souter stepped down from the Supreme Court one year ago, making way for the carefully choreographed nomination and confirmation of his successor, Justice Sonia Sotomayor. This summer will feature a similar transition dance as Elena Kagan, the nominee for Justice Stevens’s now-vacant seat, appe…

Forum

Conditional Taxation and the Constitutionality of Health Care Reform

Brian Galle

The recent enactment of major health care reform legislation has brought with it a welter of constitutional challenges to the legislation and its key provisions. Attorneys General in more than a dozen states have already filed suits seeking to enjoin the operation of the statute, arguing that its re…

Forum

Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process

Frederick Schauer

As the output of the Supreme Court shrinks, from about 150 cases per Term decided with full opinions in the mid-1980s to about seventy now, concern has grown over whether the Court is deciding too few cases and consequently leaving too many important cases and issues undecided. The extent to which t…

Forum

If It Ain't Broke . . .

J. Harvie Wilkinson III

“The most important thing we do,” Justice Brandeis once remarked, Alexander Bickel showed long ago how the Supreme Court’s discretionary certiorari jurisdiction was the lynchpin of those “passive virtues” that are essential to principled government. Indeed, the cautious exercise of the cer…

Forum

Docket Capture at the High Court

Richard J. Lazarus

The declining number of cases on the Supreme Court’s plenary docket may or may not be a problem. After all, there are many good reasons that such a decline could be happening, including the obvious possibility that the Court was previously hearing too many cases that did not warrant plenary review…

Forum

The Fog of Certainty

Robert Ahdieh

In The Constitutional Power To Interpret International Law, Michael Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, international law is “policy and politics.” For all the certainty with which his…

Forum

Old W(h)ine, Old Bottles: A Reply to Professor Paulsen

Margaret E. McGuinness

International law is “everywhere” in the United States: informing state CO2 emissions standards; providing inspiration for local civil rights codes; and overseeing the more than three trillion dollars in annual trade in goods, to name just a few examples. A reader of Professor Michael Stokes Pau…

Forum

The Prospects for the Peaceful Co-Existence of Constitutional and International Law

Julian G. Ku

There is much to admire in Michael Stokes Paulsen’s elegant and bold polemic on the Constitution and international law. Paulsen deserves substantial praise both for offering a clear and accessible theory of the Constitution and international law, and for then bravely taking that theory to its logi…

Forum

Wishing International Law Away

Peter J. Spiro

But for its contemporary particularities, Michael Stokes Paulsen’s essay The Constitutional Power To Interpret International Law would work comfortably as an excellent example of late-nineteenth-century legal scholarship, with all of its best and worst qualities. The piece makes for good reading; …

Article

The Classic Rule of Faith and Credit

David E. Engdahl

118 Yale L.J. 1584 (2009).

 

Since the late nineteenth century, orthodox doctrine under the Constitution’s Full Faith and Credit Clause has presumed that the interpretation of that Clause set forth in Justice Joseph Story’s 1833 Commentaries on the Constitution of the United States was essentially…

Feature

Introduction: The Constitutional Law and Politics of Reproductive Rights

Reva B. Siegel

118 Yale L.J. 1312 (2009).

Feature

From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights

Robin West

118 Yale L.J. 1394 (2009).

 

The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative rig…

Feature

Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law

José A. Cabranes

118 Yale L.J. 1660 (2009).

 

From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritor…

Comment

Original Jurisdiction Deadlocks

Michael Coenen

118 Yale L.J. 1003 (2009).

Note

Popular Constitutionalism, Civic Education, and the Stories We Tell Our Children

Tom Donnelly

118 Yale L.J. 948 (2009).

 

This Note analyzes a set of constitutional stories that has not been the subject of focused study—the constitutional stories we tell our schoolchildren in our most widely used high school textbooks. These stories help reinforce a constitutional culture that is largely d…

Forum

The Example of America

Owen Fiss

Owen M. Fiss, Sterling Professor of Law at Yale Law School, tackled legal issues involved in the war on terror on March 5, 2009 at the 13th Annual John W. Hager Distinguished Lecture at The University of Tulsa College of Law.

The Pocket Part is pleased to present an adapted version of Professor Fis…

Article

Learning Through Policy Variation

Yair Listokin

118 Yale L.J. 480 (2008).

 

Rationalist analysis of policymaking, exemplified by cost-benefit analysis, ignores the variance in outcomes associated with policies and seeks to maximize expected outcomes. Burkeans, by contrast, view policy outcome uncertainty negatively. The Burkean approach is echo…

Article

Suspension as an Emergency Power

Amanda L. Tyler

118 Yale L.J. 600 (2009).

 

As the war on terrorism continues, and along with it a heated debate over the scope of executive authority in times of national emergency, one important question deserves careful attention: how much power may Congress vest in the executive to address the crisis at hand …

Article

The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs

Matthew C. Stephenson

118 Yale L.J. 2 (2008).

This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balan…

Comment

Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability

Michael Kimberly

118 Yale L.J. 177 (2008).

Forum

Oops! Racism as Mistake: Lessons from Corporate Law

Richard Delgado

In Minorities, Shareholder and Otherwise, Anupam Chander points out that the law treats discrimination by corporate insiders against minority shareholders with suspicion. Yet discrimination against ordinary minorities, in buying or selling a house or applying for a job, for example, receives increas…

Forum

Minorities, Immigrant and Otherwise

Kevin R. Johnson

Anupam Chander’s article Minorities, Shareholder and Otherwise brilliantly offers a “conservative” justification for a U.S. constitutional law truly dedicated to fairness and justice for all. It does so by counterintuitively looking to the bottom-line-oriented world of corporate law. This comm…

Forum

Response: Corporate Law’s Distributive Design

Anupam Chander

Minorities, Shareholder and Otherwise makes two novel claims: that corporate law places protection of minority shareholders at the heart of its endeavor; and that this minority-mindfulness should have even greater purchase in constitutional contexts. My retelling of the corporate law narrative coupl…

Feature

Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart

Reva B. Siegel

117 Yale L.J. 1694 (2008).

This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court’s recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes de…

Article

Treaties' End: The Past, Present, and Future of International Lawmaking in the United States

Oona A. Hathaway

117 Yale L.J. 1236 (2008).

Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative…

Comment

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

Anthony Vitarelli

117 Yale L.J. 1225 (2008).

Comment

Ledbetter in Congress: The Limits of a Narrow Legislative Override

Kathryn A. Eidmann

117 Yale L.J. 971 (2008).

Review

Giving the Constitution to the Courts

Jamal Greene

117 Yale L.J. 886 (2008).

 

 

Article

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…

Note

The Canons of War

Daniel J. Freeman

117 Yale L.J. 280 (2007).

War powers hang in a delicate balance, with conflicting statutes overlying contrasting constitutional prerogatives. Because Congress has filled nearly every shadowy corner of Justice Jackson’s “zone of twilight” with its own imprimatur, war powers debates now hinge on trad…

Tribute

Law Is Everywhere

Owen Fiss

117 Yale L.J. 256 (2007).

 

 

Forum

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…

Note

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 …

Article

Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829

Jerry L. Mashaw

In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nat…

Forum

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…

Forum

Two Puerto Rican Senators Stay Home

Christina Duffy Burnett

 

Note

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…

Forum

Police Pretext as a Democracy Problem

Eric Citron

Democracy, at the very least, requires that the dangerous branches of government—like the executive and law enforcement—be accountable to the people or their representatives. Ignoring claims of police pretext, as our Fourth Amendment jurisprudence currently does, creates a barrier to that accoun…

Forum

On Rights and Responsibilities: A Response to The Problem with Pretext

Margaret Raymond

Eric Citron’s piece, Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext, gets some things quite wrong, but it gets one important thing right—that our Fourth Amendment law is all about what suspects do and very little about what police do. Citron starts from the…

Forum

How Whren Protects Pretext

James Robertson

Funny, isn’t it, that “pretext” is a dirty word, a liability-conferring word, in an employment discrimination case, or a fraud case, but that in Fourth Amendment jurisprudence the word has been given a free pass? That, to use Eric Citron’s phrase, the word even seems to open up a “liberate…

Comment

Six Puerto Rican Congressmen Go to Washington

José R. Coleman Tió

116 Yale L.J. 1389 (2007)

 

Read José R. Coleman Tió's Pocket Part Essay adapted from this Comment.

 

Read John C. Fortier's Response, The Constitution Is Clear: Only States Vote in Congress.

 

Read Christina Duffy Burnett's Response, Two Puerto Rican Senators Stay Home.

Forum

The Organizational Guidelines: R.I.P.?

Peter J. Henning

In a recent issue of this Journal, Timothy A. Johnson argues that Congress may not make the Federal Sentencing Guidelines provisions on the sentencing of organizations (the “Organizational Guidelines”) mandatory because United States v. Booker guarantees the constitutional right of corporations…

Forum

The Power of the Corporate Charging Decision over Corporate Conduct

Christopher A. Wray & Robert K. Hur

 

Article

The Constitutional Foundations of Chenery

Kevin M. Stack

116 Yale L.J. 952 (2007)

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review…

Comment

Bush v. Gore and the Uses of “Limiting”

Chad Flanders

116 Yale L.J. 1159 (2007)

Note

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 …

Forum

The "Bong" Show: Viewing Frederick's Publicity Stunt Through Kuhlmeier's Lens

Murad Hussain

Next week, the U.S. Supreme Court will hear argument in Morse v. Frederick. At issue is whether a public high school principal violated a student’s First Amendment rights by suspending him for displaying a banner reading “BONG HiTS 4 JESUS” at an outdoor school rally for the 2002 Winter Olympi…

Forum

Treasons Return

Kristen Eichensehr



Forum

Why We Have Judicial Review

Mary Sarah Bilder

Judicial review in the United States is controversial largely because, as Daniel Farber and Suzanna Sherry explain , there exists among the public “a sense of innate conflict between democracy and judicial review.” The standard account of judicial review, which describes the practice as invented…

Forum

Original Understanding and the Whether, Why, and How of Judicial Review

William Michael Treanor

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a…

Forum

The Political Theory of an Independent Judiciary

Scott D. Gerber

Many of the nation’s most influential constitutional law scholars have argued recently that judicial review should be sharply limited or eliminated altogether. The list includes such notable thinkers as Larry D. Kramer, Cass R. Sunstein, William M. Treanor, and Mark V. Tushnet. Mary Sarah Bilde…

Review

Restoring the Right Constitution?

Eduardo Penalver

116 Yale L.J. 732 (2007)

Article

The Corporate Origins of Judicial Review

Mary Sarah Bilder

116 Yale L.J. 502 (2006)

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continu…

Note

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 …

Forum

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…

Forum

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…

Forum

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…

Forum

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…

Comment

HAVA's Unintended Consequences: A Lesson for Next Time

Brandon Fail

116 Yale L.J. 493 (2006)

Note

Environmental Economics: A Market Failure Approach to the Commerce Clause

Mollie Lee

116 Yale L.J. 456 (2006)

Congressional authority to enact environmental legislation has been called into question by recent Supreme Court cases suggesting that Commerce Clause regulation is valid only if Congress is regulating economic activity. This Note proposes a market failure approach to guide t…

Forum

Federal Judicial Supremacy on the Ballot

Jaynie Randall

The 2006 campaign season has witnessed an onslaught of challenges to one of our nation’s longest serving incumbents: federal judicial supremacy. On Tuesday, voters across the country will decide the future of this notion—that the decisions of the United States Supreme Court bind the decisions of…

Forum

Can Interagency Dialogue Serve as the New Separation of Powers?

Christopher S. Yoo

In Internal Separation of Powers, an essay recently published in this Journal, Neal Katyal adds his own distinctive twist to the debates about the growth of presidential power by suggesting reforms within the executive branch that would cabin executive discretion without violating the Constitution…

Forum

Can Process Cure Substance? A Response to Neal Katyals Internal Separation of Powers

M. Elizabeth Magill

We lawyers are committed to reason. A process founded on the exchange of reasoned argument, we want to believe, will produce the right decisions. Professor Katyal profoundly disagrees with the legal decisions reached by the Bush Administration in the aftermath of September 11. In response, he propos…

Forum

Toward Internal Separation of Powers

Neal Kumar Katyal

The standard American conception of separation of powers presumes three branches of government, each replete with ambition to maximize its power. But due to a complicated interplay of party dynamics and executive branch assertiveness, Congress has often been content to stay at the sidelines of regul…

Forum

Political Checks on a Politicized Presidency: A Response to Neal Katyals Internal Separation of Powers

William G. Howell

Frustrated by Congress’s apparently feeble efforts to check presidential war powers and unconvinced that another round with the War Powers Resolution will do much good, Neal Katyal recommends, in an essay recently published in the Journal, the promotion of an “internal separation of powers.” P…

Forum

Removing Federal Judges Without Impeachment

Saikrishna Prakash & Steven D. Smith

 

Forum

The New Line Item Veto Proposal: This Time Its Constitutional (Mostly)

Aaron-Andrew P. Bruhl

When President Bush asked Congress to enact a line item veto in his 2006 State of the Union Address, it sounded like a story we had heard before, one that didn’t have a happy ending. But it turns out that this proposed sequel differs from the 1996 Line Item Veto Act that the Supreme Court struck d…

Forum

A Debate Between Peter Strauss and Cass Sunstein

Peter L. Strauss & Cass R. Sunstein

In Beyond Marbury: The Executive’s Power To Say What the Law Is, 115 Yale L.J. 2580 (2006), Professor Cass Sunstein argues that Chevron is the Marbury v. Madison of our age, and that it is now the province of the executive branch to "say what the law is." Professor Peter Strauss responds that Chev…

Essay

Executive Branch Usurpation of Power: Corporations and Capital Markets

Jonathan Macey

115 Yale L.J. 2416 (2006)

Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branch…

Essay

Beyond Marbury: The Executive's Power To Say What the Law Is

Cass R. Sunstein

115 Yale L.J. 2580 (2006)

Under Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural R…

Essay

Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System

Richard C. Schragger

This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.

Essay

Rational War and Constitutional Design

Jide Nzelibe & John Yoo

115 Yale L.J. 2512 (2006)

Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative …

Essay

Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive

William P. Marshall

115 Yale L.J. 2446 (2006)

Proponents of the unitary executive have contended that its adoption by the framers "swept plural executive forms into the ash bin of history." Virtually every state government, however, has a divided executive in which executive power is apportioned among different executiv…

Essay

Setting the World Right

Harold Hongju Koh

115 Yale L.J. 2350 (2006)

Five years after September 11, 2001, America's response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global war on terror calls for an entirely new legal paradigm, the Bush Administration and its supporters have p…

Essay

The President's Completion Power

Jack Goldsmith & John F. Manning

115 Yale L.J. 2280 (2006)

This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows tha…

Essay

Quasipublic Executives

K.A.D. Camara & Paul Gowder

115 Yale L.J. 2254 (2006)

In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is,…

Essay

Why (and When) Cities Have a Stake in Enforcing the Constitution

David J. Barron

115 Yale L.J. 2218 (2006)

This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argu…

Essay

Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within

Neal Kumar Katyal

115 Yale L.J. 2314 (2006)

The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of …

Feature

Chevron and Agency Norm-Entrepreneurship

William N. Eskridge, Jr. & Kevin S. Schwartz

115 Yale L.J. 2623 (2006)

Feature

The President: Lightning Rod or King?

Steven G. Calabresi & James Lindgren

115 Yale L.J. 2611 (2006)

Feature

Of Sovereigns and Servants

Heather K. Gerken

115 Yale L.J. 2633 (2006)

Feature

Gender and Constitutional Design

Paula A. Monopoli

115 Yale L.J. 2643 (2006)

Forum

From the Court's Docket: DaimlerChrysler Corp. v. Cuno and the European Experience

Michael J. Graetz, Alvin C. Warren, Jr. & Robert Yablon

Nearly every state uses tax incentives to attract local investment. Do such incentives discriminate against interstate commerce in violation of the dormant Commerce Clause? The Supreme Court now confronts this question in DaimlerChrysler Corp. v. Cuno (oral arguments on March 1). If the Court takes …

Forum

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, http://www.thepocketpart.org/2005/11/mack.html.]

Forum

A Remedy Without a Wrong

Philip K. Howard

Somewhere far away, in a land not studied by Professor John Goldberg, there may be a legal system that denies injured people redress for injuries. Flipping through the yellow pages here in America, however, there seems to be heavy traffic in the commerce of bringing lawsuits for almost any setback i…

Forum

Big Money v. The Framers

John Vail

African-Americans and women were once, at law, lesser beings. They were made that way, in part, by not having the right to go to court and get redress there, the right by which the powerless hold the powerful to account. Why is it even plausible that so fundamental a right is not protected by the Co…

Forum

Questioning Justice: Law and Politics in Judicial Confirmation Hearings

Robert Post & Reva Siegel

Senate confirmation hearings for Supreme Court nominees have in recent years grown increasingly contentious. Nominees have refused to answer questions about their constitutional views on the ground that any such interrogation would compromise the constitutional independence of the judiciary. This Ar…

Forum

Making Confirmation Hearings Meaningful

Erwin Chemerinsky

The hearings concerning the nomination of Judge Samuel Alito to the Supreme Court obviously are of enormous importance. Most significantly, Justice Sandra Day O’Connor was the decisive fifth vote in countless important areas, such as abortion, affirmative action, campaign finance, death penalty, f…

Forum

Learning What From a Nominee's Views of Past Court Rulings?

Laurence H. Tribe

Reva Siegel and Robert Post have argued convincingly that constitutional democracy could be advanced while preserving judicial independence by the practice of asking Supreme Court nominees how they would have ruled in already decided cases—and by treating a refusal to respond to such inquiry as re…

Forum

Clauses Not Cases

Randy E. Barnett

In Questioning Justice, Robert Post and Reva Siegel make three claims. First, that the Constitution authorizes the Senate to rest its judgement, in part, on the constitutional philosophy of nominees to the Supreme Court; second, that this practice is justified on grounds of democratic legitimacy; an…

Forum

A Law Unto Itself?

Dean Harold Hongju Koh

In an uncertain world, crisis demands executive action. And so 2005, a year of crisis, became a year of executive muscle-flexing, in response to crises ranging from Hurricane Katrina to avian flu to the Global War on Terror. In many ways, the legal debates generated were déjà vu all over again. Ex…

Forum

Is There an Exclusive Commander-in-Chief Power?

Julian G. Ku

Which President was advised by his lawyers that he had the constitutional authority to refuse to comply with federal statutes enacted by Congress? Which President also openly violated a federal statute in the exercise of his Commander-in-Chief power? The answer is not George W. Bush, but Bill Clinto…

Forum

We The People's Executive

Rosa Ehrenreich Brooks

Perhaps to no one’s surprise, a recent survey found that most Americans know far more about television hits than they know about the United States Constitution. For instance, 52% of Americans surveyed could name at least two characters from the Simpsons, and 41% could name at least two judges from…

Forum

The Domestic War

Saikrishna B. Prakash

We are fighting three wars, not two. Besides Iraq and Afghanistan, there is a full scale war in the press and in the academy about whether we have an imperial presidency. President Bush’s critics cry that he has violated or ignored numerous statutes; has adopted absurdly narrow understandings of o…

Forum

Executive Power from a Connecticut Perspective: Lowering the Impeachment Bar

Kimberly Gahan

Impeachment is a nasty accusation these days. In the wake of Senator Feingold’s proposed resolution to censure President Bush, Republicans alleged that the resolution revealed Democrats’ hopes to impeach the President if they gain control of Congress in the November elections. The allegation was…

Forum

What the Court Said in Lawrence

Paul M. Smith

The Supreme Court in Lawrence v. Texas held that same-sex couples have a constitutional right to engage in sexual intimacy, free of regulation by the state. It seems to me that Mr. Greene ignores the actual rationale underlying the substantive due process ruling in Lawrence v. Texas—the rationale …

Forum

The Meta-Nonsense of Lawrence

Edward Whelan

Jamal Greene’s interesting essay deals not with Justice Kennedy’s actual majority opinion in Lawrence v. Texas but with an opinion of Greene’s own imagining. This is not surprising, since Justice Kennedy’s actual opinion reads like a cruel parody of the modern make-it-up-as-you-go-along judi…

Forum

Sentencing Review: Judgment, Justice, and the Judiciary

Eric Citron

Since United States v. Booker, the main task of sentencing academics and appellate judges has been to solve the riddles of its mandated “reasonableness” review. This is a crucial task because the answers reached will largely determine whether Booker’s promise of fresh discretion in federal sen…

Forum

Reasoning Through Reasonableness

Douglas A. Berman

After United States v. Booker, federal district judges may no longer just find Guideline-specified facts, plug those facts into a Guideline calculation, and then mechanically impose a Guideline sentence. Instead of sentencing-by-the-numbers, Booker requires district courts to exercise independent re…

Forum

What Yogi Berra Teaches About Post-Booker Sentencing

Nancy Gertner

Judicial opinions post-Booker reflect something that the great legal scholar Yogi Berra described. The same decisions that turned the Federal Sentencing Guidelines (“Guidelines”) into mandatory rules are being adopted by courts across the country, with the same results. Booker or no Booker, it i…

Article

Beyond Lawrence: Metaprivacy and Punishment

Jamal Greene

115 Yale L.J. 1862 (2006)

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty–and communitarian–William Eskridge has described it as the ga…

Note

Making the No Fly List Fly: A Due Process Model for Terrorist Watchlists

Justin Florence

115 Yale L.J. 2148 (2006)

Since 9/11, the federal government's use of terrorist watchlists has constrained the liberty of thousands of American travelers and transportation workers. While watchlists make sense for security purposes, they have a pair of troubling side effects: Individuals may be liste…

Feature

Introduction: The Paradigm-Case Method

Jed Rubenfeld

115 Yale L.J. 1977 (2006)

Feature

A Dialogue

Akhil Reed Amar & Jed Rubenfeld

115 Yale L.J. 2015 (2006)

Feature

Commentary: How To Interpret the Constitution (and How Not To)

Michael Stokes Paulsen

115 Yale L.J. 2037 (2006)

Feature

Commentary: Grand Visions in an Age of Conflict

H. Jefferson Powell

115 Yale L.J. 2067 (2006)

Feature

Reply to Commentators

Jed Rubenfeld

115 Yale L.J. 2093 (2006)

Feature

An Open Letter to Professors Paulsen and Powell

Akhil Reed Amar

115 Yale L.J. 2101 (2006)

Feature

Preface

Stephen G. Breyer

115 Yale L.J. 1975 (2006)

Comment

Unaccountable at the Founding: The Originalist Case for Anonymous Juries

Kory A. Langhofer

115 Yale L.J. 1823 (2006)

This Comment argues that the courts overlook important Founding-era evidence on juror accountability. It concludes that the Public Trial Clause does not require juror identification. Part I describes the Public Trial Clause accountability argument made against the anonymous …

Comment

Validation Procedures and the Burden of Ballot Access Regulations

Robert Yablon

115 Yale L.J. 1833 (2006)

Despite the prominent role they play in election contests, validation mechanisms have largely escaped judicial and scholarly scrutiny. This Comment urges courts to assess the constitutionality of a state's ballot access scheme in light of how the state evaluates and certifie…

Review

The Pragmatic Passion of Stephen Breyer

Paul Gewirtz

115 Yale L.J. 1675 (2006)

Now in his twelfth year as a Supreme Court Justice, Stephen Breyer has written an important book, Active Liberty, which crystallizes a fundamental set of beliefs about the American Constitution and his role as a Justice. Taking Active Liberty as the entry point, this piece p…

Review

Justice Breyer Throws Down the Gauntlet

Richard A. Posner

115 Yale L.J. 1699 (2006)

A Supreme Court Justice writing a book about constitutional law is like a dog walking on his hind legs: The wonder is not that it is done well but that it is done at all. The dog's walking is inhibited by anatomical limitations, the Justice's writing by political ones. Supre…

Review

Justice Breyer's Democratic Pragmatism

Cass R. Sunstein

115 Yale L.J. 1719 (2006)

As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" t…

Note

Rehabilitating Rehab Through State Building Codes

Sara C. Galvan

115 Yale L.J. 1744 (2006)

Building codes are not neutral documents. Traditional codes have the effect of deterring the rehabilitation of older structures. But rehabilitation--which can have many positive effects, especially on cities--should be encouraged, not deterred. One promising method of encour…

Article

Recovering American Administrative Law: Federalist Foundations, 1787-1801

Jerry L. Mashaw

115 Yale L.J. 1256 (2006)

By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was mi…

Article

Managing Transitional Moments in Criminal Cases

Toby J. Heytens

115 Yale L.J. 922 (2006)

As long as some courts review the work of others, there will be situations in which governing precedent shifts during the interval between an initial decision and the underlying dispute's ultimate resolution. Although such "transitional moments" follow many appellate court de…

Note

Securing Informationships: Recognizing a Right to Privity in Fourth Amendment Jurisprudence

Andrew J. DeFilippis

115 Yale L.J. 1086 (2006)

This Note argues for judicial recognition of a Fourth Amendment right to privity, conceived broadly as a right to make limited disclosure of one's personal information without surrendering the constitutional privacy interests that attach to it. In particular, this Note chall…

Article

The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs

John C.P. Goldberg

115 Yale L.J. 524 (2005)

In our legal system, redressing private wrongs has tended to be the business of tort law, itself traditionally a branch of the common law. But do individuals have a "vested interest" in law that redresses wrongs? If so, do state and federal governments have a constitutional d…

Essay

Democratic Disobedience

Daniel Markovits

114 Yale L.J. 1897 (2005)

Traditional justifications for civil disobedience emphasize the limits of legitimate political authority and defend civil disobedience as a just response when governments overstep these limits. Such liberal justifications are well suited to certain classes of civil disobedie…

Comment

Freeing Newsgathering from the Reporter's Privilege

Jaynie Randall

114 Yale L.J. 1827 (2005)

A number of recent high-profile cases have forced courts to reexamine whether reporters must respond to subpoenas seeking disclosure of confidential sources or whether they are protected from doing so by the doctrine of reporter's privilege. While these confidential-source …

Feature

Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics

William N. Eskridge Jr.

114 Yale L.J. 1279 (2005)

John Hart Ely argued that judicial review is most appropriate when democratic politics has broken down. Professor Eskridge argues that judicial review is also appropriate to lower the stakes of pluralist politics. Stakes get high when the system becomes embroiled in bitter d…

Feature

Globalization and Distrust

Anupam Chander

114 Yale L.J. 1193 (2005)

There was a time when the critics of international law denounced it for its irrelevance, its masquerade of power. Now, in the post-ontological era of international law, the critique has shifted. International law is denounced not for its weakness but for its vigor, specifica…

Feature

The Duty To Defend

Barbara Allen Babcock

114 Yale L.J. 1489 (2005)

Through the lens of history and doctrine, combining personal narrative, memoir, and stump speech, Barbara Babcock recalls John Ely's contributions to criminal defense.

Feature

Comment: War and Uncertainty

Lori Fisler Damrosch

114 Yale L.J. 1405 (2005)

This comment builds on John Hart Ely's concern in War and Responsibility with Congress's duty to investigate the factual predicate for going to war in circumstances of uncertainty. Professor Damrosch argues that Congress should exercise its constitutional power to decide to …

Feature

John Hart Ely and the Problem of Gerrymandering: The Lion in Winter

Pamela S. Karlan

114 Yale L.J. 1329 (2005)

In Democracy and Distrust, John Hart Ely articulated a "participation-oriented, representation-reinforcing approach to judicial review" that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay explores the implications…

Feature

Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror

Jonathan Simon

114 Yale L.J. 1419 (2005)

In War and Responsibility, John Hart Ely sought to answer a question that has bedeviled constitutional scholars since the beginning of the Republic: What meaningful checks should be placed on the power of the Executive in wartime? For Ely, the answer was a new and improved v…

Feature

The Coherentism of Democracy and Distrust

Michael C. Dorf

114 Yale L.J. 1237 (2005)

John Hart Ely's justly celebrated Democracy and Distrust aims to reconcile judicial review with the fundamentally democratic character of the American Constitution. Yet taken at face value, the book does not establish that the American Constitution is fundamentally democrati…

Note

Applying Section 5: Tennessee v. Lane and Judicial Conditions on the Congressional Enforcement Power

Kevin S. Schwartz

114 Yale L.J. 1133 (2005)

Section 5 of the Fourteenth Amendment grants Congress the "power to enforce, by appropriate legislation," the Equal Protection and Due Process Clauses. Yet in the past seven years the Supreme Court has invalidated five different laws--including three landmark civil rights la…

Note

Judging Partisan Gerrymanders Under the Elections Clause

Jamal Greene

114 Yale L.J. 1021 (2005)

The Supreme Court has consistently decried the lack of standards for adjudicating partisan gerrymandering claims, most recently in last Term's Vieth v. Jubelirer. But it has ignored the potential for developing standards under the Elections Clause, which it held in Cook v. G…

Comment

Overlooking a Sixth Amendment Framework

Jason Colin Cyrulnik

114 Yale L.J. 905 (2005)

As the Supreme Court further plunges the world of criminal sentencing into turmoil, state courts in particular are scrutinizing their own statutory sentencing schemes and judicial practices. Ever since the Court's holding in Apprendi v. New Jersey (recently reformulated and…

Comment

Solving the Due Process Problem with Military Commissions

Nicholas Stephanopoulos

114 Yale L.J. 921 (2005)

The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda fo…

Note

Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court's Docket

Ariel N. Lavinbuk

114 Yale L.J. 855 (2005)

Mainstream and revisionist scholars advance radically different histories of early judicial involvement in foreign affairs. By reconstructing the foreign affairs docket of the Jay and Marshall Courts, this Note presents empirical evidence with which these claims can be evalua…

Article

The Federalist Dimension of Regulatory Takings Jurisprudence

Stewart E. Sterk

114 Yale L.J. 203 (2004)

Federalism concerns, underappreciated in the takings literature, play an important role in shaping the Supreme Court's takings jurisprudence. The Takings Clause does not guarantee any particular property rights; instead, the Clause protects primarily against change in backgro…

Note

An Article I, Section 7 Perspective on Administrative Law Remedies

Boris Bershteyn

114 Yale L.J. 359 (2004)

By applying game-theoretic analysis to the bicameralism and presentment requirements of Article I, Section 7, scholars have recommended reforms in constitutional law, statutory interpretation, and the Chevron doctrine. This Note builds on this work and explores whether Articl…

Note

Emergency Power and the Militia Acts

Stephen I. Vladeck

114 Yale L.J. 149 (2004)

An important chapter is missing from contemporary debates over the constitutional source of the federal government's emergency power. In focusing on five statutes passed by early Congresses to provide for the calling forth of the militia and the federal armed forces to respon…

Article

The Eleventh Amendment and the Reading of Precise Constitutional Texts

John F. Manning

113 Yale L.J. 1663 (2004)

INTRODUCTION

In recent years, the Supreme Court has frequently observed that most statutes involve compromise. In particular, when Congress enacts a clear and precise statutory text--one that articulates not only a set of relevant aims but also the specific means of their …

Essay

The Priority of Morality: The Emergency Constitution's Blind Spot

David Cole

113 Yale L.J. 1753 (2004)

INTRODUCTION

In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the…

Essay

Editor's Note: The Constitution in Times of Emergency

113 Yale L.J. 1751 (2004)

Earlier in this Volume of The Yale Law Journal, Professor Bruce Ackerman published his essay The Emergency Constitution, in which he advocated a new constitutional regime to confront the potential for recurring terrorist attacks among modern nations--and the United States in…

Essay

The Anti-Emergency Constitution

Laurence H. Tribe & Patrick O. Gudridge

113 Yale L.J. 1801 (2004)

INTRODUCTION

The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the d…

Comment

Non-Self-Executing Treaties and the Suspension Clause After St. Cyr

Stephen I. Vladeck

113 Yale L.J. 2007 (2004)

Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003).

In INS v. St. Cyr, the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform …

Comment

Is the Right To Organize Unconstitutional?

Aron Fischer

113 Yale L.J. 1999 (2004)

Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).

Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act…

Comment

Dual Sovereignty and the Sixth Amendment Right to Counsel

David J. D'Addio

113 Yale L.J. 1991 (2004)

United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002).

In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charg…

Response

This Is Not a War

Bruce Ackerman

113 Yale L.J. 1871 (2004)

I know that some people question if America is really in a war at all. They view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted and tri…

Essay

The Emergency Constitution

Bruce Ackerman

113 Yale L.J. 1029 (2004)

Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the wat…

Comment

Appellate Review and the Exclusionary Rule

Zack Bray

113 Yale L.J. 1143 (2004)

Today, application of the exclusionary rule to evidence obtained in reliance on a potentially invalid search warrant is governed by the Supreme Court's holding in United States v. Leon. Leon instructs courts to admit evidence obtained on the basis of a potentially invalid …

Essay

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…

Comment

Turning the Endangered Species Act Inside Out?

Jud Mathews

113 Yale L.J. 947 (2004)

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used…

Essay

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…

Article

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…

Essay

Eldred and Lochner: Copyright Term Extensionand Intellectual Property as Constitutional Property

Paul M. Schwartz & William Michael Treanor

112 Yale L.J. 2331 (2003)

As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic conse…

Essay

Common Law, Common Ground, and Jefferson's Principle

David A. Strauss

112 Yale L.J. 1717 (2003)

Why do we care about the Framers of the Constitution? After all, they lived long ago, in a world that was different in countless ways from ours. Why does it matter what their views were, for any reasons other than purely historical ones? And if we don't care about the Framer…

Comment

Korematsu Continued . . .

Elbert Lin

112 Yale L.J. 1911 (2003)

How far have America and her courts come since World War II? Even in the wake of September 11th, it seemed they would not again endorse racial intolerance on the level of wholesale internments. This Comment argues, however, that Dasrath v. Continental Airlines, Inc. indicat…

Comment

The Tenth Amendment and Local Government

Jake Sullivan

This Comment posits that the Constitution may well carve out a limited space for the people to express themselves and exercise certain powers through local self-government—without interference by the state. More specifically, the Tenth Amendment endows the people with the right to choose and define …

Article

Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?

Oren Gross

112 Yale L.J. 1011 (2003)

This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the l…

Comment

Queer Brinksmanship: Citizenship and the Solomon Wars

Amy Kapczynski

112 Yale L.J. 673 (2002)

In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters from accessing campuses and directory information about students. It was the …

Article

The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five

Barry Friedman

112 Yale L.J. 153 (2002)

How is it that the countermajoritarian difficulty became the central frame for constitutional theory for the last fifty years? That is the question taken up in this, the last installment of The History of the Countermajoritarian Difficulty. The piece explains that the counter…

Comment

Section 1983, Statutes, and Sovereign Immunity

Nick Daum

112 Yale L.J. 353 (2002)

This Comment argues that a significant, but unnoticed, way around state sovereign immunity has become available under current law. Although sovereign immunity now generally prohibits actions against states for violations of the Americans with Disabilities Act (ADA), a plaint…

Article

The Freedom of Imagination: Copyright's Constitutionality

Jed Rubenfeld

112 Yale L.J. 1 (2002)

In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America.

Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic fr…

Note

The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism

Michael T. Morley

112 Yale L.J. 109 (2002)

One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. Instead of being a supreme parliament, able to do whate…

Review

Fall from Grace: Arming America and the Bellesiles Scandal

James Lindgren

111 Yale L.J. 2195 (2002)



Note

Inventing a Nonexclusive Patent System

John S. Leibovitz

111 Yale L.J. 2251 (2002)

Essay

Legislative Entrenchment: A Reappraisal

Eric A. Posner & Adrian Vermeule

111 Yale L.J. 1665 (2002)

There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds,…

Essay

Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique

Philip P. Frickey & Steven S. Smith

111 Yale L.J. 1707 (2002)

Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial re…

Article

Framing Transactions in Constitutional Law

Daryl J. Levinson

111 Yale L.J. 1311 (2002)

Common-law rules and adjudication are typically structured around discrete interactions between strangers. The unit of legal analysis, or "transaction," is intuitively defined by the discontinuous event that disrupted the otherwise unrelated lives of the parties; and the foc…

Article

Waging War, Deciding Guilt: Trying the Military Tribunals

Neal Kumar Kaytal & Laurence H. Tribe

111 Yale L.J. 1259 (2002)

In this Essay, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any members of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today…

Article

The Anti-Antidiscrimination Agenda

Jed Rubenfeld

111 Yale L.J. 1141 (2002)

For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case …

Comment

Textual Imagination

Mary D. Fan

111 Yale L.J. 1251 (2002)

Mary D. Fan

Article

Givings

Abraham Bell & Gideon Parchomovsky

111 Yale L.J. 547 (2001)

Givings-government acts that enhance property value-are omnipresent. Yet they have received scant scholarly attention and no consistent doctrinal or theoretical treatment. Although givings and takings are mirror images of one another and are of equal practical and theoretical…

Essay

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…

Article

The Executive Power over Foreign Affairs

Saikrishna B. Prakash & Michael D. Ramsey

111 Yale L.J. 231 (2001)

This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the United States government. The authors argue that modern scholarship has too hastily given up on the Constitution's text and too quickly concluded that the Constitut…

Essay

Veil of Ignorance Rules in Constitutional Law

Adrian Vermeule

111 Yale L.J. 399 (2001)

A veil of ignorance rule (more briefly a "veil rule") is a rule that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision. …

Comment

Unreasonable Probability of Error

Jed Handelsman Shugerman

111 Yale L.J. 435 (2001)



Article

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…

Essay

The Internet and the Dormant Commerce Clause

Jack L. Goldsmith & Alan O. Sykes

110 Yale L.J. 785 (2001)

Essay

Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel

Robert C. Post & Reva B. Siegel

110 Yale L.J. 441 (2000)

Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, …

Comment

Narrow Clauses and Trial Balloons

Michael Novick

110 Yale L.J. 543 (2000)



Essay

Disaggregating Constitutional Torts

John C. Jeffries & Jr.

110 Yale L.J. 259 (2000)

This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe mo…

Essay

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…

Note

History as Precedent: The Post-Originalist Problem in Constitutional Law

Emil A. Kleinhaus

110 Yale L.J. 121 (2000)