The Fourth Amendment and General Law
This Article contends that courts should interpret the Fourth Amendment by looking to “general law”—common-law rules under the control of no particular sovereign. This approach finds strong support in the Fourth Amendment’s text, doctrine, and historical background, and would protect the Amendment’s…
The Illusory Promise of General Property Law
This Essay criticizes using “general” or federal property law to define constitutional rights, including protections against unlawful search and seizure. Federal property law is an ahistorical and indeterminate concept. Its ascendance in Takings Clause opinions illustrates its flaws and the risks it…
General Citizenship Rights
This Article explores ideas of citizenship rights from the Revolutionary Era through Reconstruction and challenges the conventional view that citizenship rights came in only two sets—state and national. It argues that Americans also widely recognized general citizenship rights, reflecting an older c…
Drawing on practice and convention from America and abroad, this Article documents the surprisingly robust role that past constitutions play in the interpretation of extant constitutions, and assesses what this pervasive practice tells us about theories of constitutional meaning, processes of consti…
The Neglected Port Preference Clause and the Jones Act
The Constitution’s Port Preference Clause restricts Congress’s ability to favor “the Ports of one State over those of another.” This Note argues that the Jones Act, which prohibits foreign vessels from transporting goods between U.S. ports, violates the Clause by favoring West Coast ports over those…
Partisanship, Remedies, and the Rule of Law
This Essay responds to Don R. Willett and Aaron Gordon’s Review of The Collapse of Constitutional Remedies. I show that Willett and Gordon inaccurately describe Collapse’s main argument; offer an internally inconsistent critique; and fail to understand key terms such as judicial independence and th…
Rights, Structure, and Remediation
In The Collapse of Constitutional Remedies, Aziz Huq contends federal courts exacerbate societal inequities by overzealously enforcing constitutional limits on government regulation while neglecting individual-rights violations. Though some of Huq’s criticisms are spot-on, others are overstated, and…
Since the Supreme Court’s 1975 decision that students enjoy constitutionally protected property interests in education, most states have passed laws and regulations requiring schools to provide meals and health services to students. These services arguably constitute entitlements, requiring sc…
The Emergence of Neutrality
This Article traces the origins of the content and viewpoint neutrality principles in First Amendment law. It argues that these ideas emerged later than scholars have previously appreciated and that their development was tied to a broader Twentieth Century transformation in constitutional rights jur…
Writing About the Past That Made Us: Scholars, Civic Culture, and the American Present and Future
This Review assesses the arguments made in Akhil Amar’s The Words That Made Us about the impoverished nature of our current discourse on our constitutional system of government.
Felon Re-Enfranchisement and the Problem of “Lost” Rights
Courts have upheld laws conditioning felon re-enfranchisement on financial repayment by reasoning that disenfranchised citizens lack the rights and protections of political equality. Drawing on legal and democratic theory, this Essay challenges that view. Because disenfranchised citizens retain cogn…
The Constitutional Right of Self-Government
The Assembly Clause today serves little purpose. But long before the First Amendment’s drafting, American activists advanced what they called their right to “assemble” to defend their right to govern themselves. This Article argues that this right can be interpreted as a right to meaningfully partic…
A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s
The Supreme Court is poised to consider whether the Constitution’s original meaning is compatible with numerous and longstanding congressional laws delegating power to the bureaucracy to enact regulations affecting private rights within the United States. New evidence presented in this Article indic…
Nondelegation at the Founding
Several current Supreme Court Justices have signaled a renewed interest in resurrecting the nondelegation doctrine, but numerous scholars have portrayed the doctrine as ahistorical and unoriginalist. This Feature systematically reviews the evidence and concludes there is much more historical support…
Supreme Court Reform and American Democracy
The current crisis of the Supreme Court is inextricable from the question of the Court’s role in our democracy. We identify three strategies for ensuring the Court maintains its proper role—internal restraint, external constraints, and structural reform—and argue that internal restraint and external…
The Race-Blind Future of Voting Rights
The world of voting rights could soon be turned upside down. A conservative Supreme Court might insist that minority voters' existing representation be compared to the representation they would receive if the redistricting process were race blind. This Article is the first to explore the potential c…
Spinning Secrets: The Dangers of Selective Declassification
Presidents often engage in what this Note calls selective declassification: the practice of declassifying documents that help advance a presidential agenda while keeping conflicting documents secret. This Note shows how selective declassification distorts public perceptions and policy choices, and o…
This Article defends the inherent retroactivity of judicial lawmaking. It argues that there is no principled foundation for the Supreme Court’s non-retroactivity doctrine, and it provides an alternative framework: courts should always apply “new law” to old cases, and constrain its effects instead t…
Political Wine in a Judicial Bottle: Justice Sotomayor’s Surprising Concurrence in Aurelius
This Essay criticizes Justice Sotomayor’s concurring opinion in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC. for offering a one-sided and misleading explanation of the island’s constitutional status, and thereby taking sides in Puerto Rico’s decolonization de…
Expounding the Constitution
This Article reinterprets Founding-era debates about constitutional interpretation as arguments over its nature. If analogous to public legislation, it would be read pragmatically; if more like private legislation, it would be construed narrowly. This insight provides vital context for contemporary …
The First Amendment and the Right(s) of Publicity
First Amendment analysis in right of publicity cases is notoriously troublesome. To remedy this nettlesome conflict, this Article disaggregates the distinct interests that support publicity laws, and then analyzes how these intersect with First Amendment values. By doing so it offers a navigational …
The Attorney General’s Settlement Authority and the Separation of Powers
Can the federal government make policy when it settles litigation? Surprisingly, yes. This Note offers a comprehensive account of the Department of Justice’s authority to enter into policymaking settlements, and a new separation-of-powers defense of that authority. Ultimately, policymaking settlemen…
Condemning Worship: Religious Liberty Protections and Church Takings
This Note explores how courts interpret religious liberty protections when the government seeks to condemn property owned by faith communities (“church takings”), revealing how judges discriminate between types of religious property. While protecting houses of worship, courts allow condemning author…
The Law of Presidential Transitions
Presidents-elect and presidential transition teams wield exceptional power, from nominating cabinet secretaries to drafting policies that often become law. This Note argues that, despite these powers, presidential transitions are essentially ungoverned. It highlights the governance and ethical risks…
Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination
This Comment problematizes the historical basis for the Supreme Court’s decision in Rice v. Cayetano. In deeming voting qualifications for the Office of Hawaiian Affairs racially discriminatory, the Rice Court evaded the more complex question whether Native Hawaiians constitute a political community…
Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences
Because bodily liberty is a fundamental right, the government may confine someone only to the extent necessary to further a compelling interest. Courts limit pretrial detention and civil commitment accordingly but exempt criminal sentences without explanation. This Note argues that carceral sentence…
Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners
Current First Amendment doctrine permits courts to judge a claimant’s religious sincerity in a free-exercise suit but prohibits them from adjudicating religious questions. This Note challenges that understanding by explaining and evaluating how courts treat Muslim prisoner accommodation claims in pr…
Respect, Individualism, and Colorblindness
The “colorblind” approach to equal protection purports to treat people as individuals. This Article excavates the philosophical foundations of that idea and argues that the Supreme Court has misconceived it. If the Court pursues colorblindness, it should do so not with indignation but with ambivalen…
Probable Cause Pluralism
According to the Supreme Court, the most important phrase in the Fourth Amendment, “probable cause,” is not possible to define. This Article disagrees. It proposes a novel and comprehensive account of probable cause—one that offers meaningful and predictable constraints on law enforcement, while avo…
A Federal Builder’s Remedy for Exclusionary Zoning
This Note argues that when a local zoning body blocks construction of low-income housing in order to exclude the poor, courts should provide a constitutional remedy. After articulating a doctrinal path through the Due Process Clause, this Note makes the normative case for this “builder’s remedy” for…
After Suffrage: The Unfinished Business of Feminist Legal Advocacy
This Essay chronicles Pauli Murray’s intersectional feminist legal advocacy, which transformed post-suffrage women’s citizenship and continues to shape an ambitious and urgent agenda for universal enfranchisement in the Nineteenth Amendment’s second century.
The Nineteenth Amendment and the Democratization of the Family
Women’s claim to vote advanced a broader effort to democratize the family. This Essay recovers debates over the family connecting the Reconstruction Amendments and the Nineteenth Amendment, and considers how this lost history might guide the Constitution’s interpretation in courts and politics today…
(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”
Timbs v. Indiana reaffirms the Constitution's role in determining the bounds of licit punishment. This Essay weaves together doctrines that are often siloed but answer the same question: what can't governments do as punishment? I argue that the law has begun to build the principle that governments n…
A Proposal to Stop Tinkering with the Machinery of Debt
In the wake of the Supreme Court’s 2019 decision in Timbs v. Indiana, which applied the Excessive Fines Clause to the States, this Essay argues that defendants are better protected by replacing the clause’s “gross disproportionality” standard with the more rigorous proportionality guarantee of the E…
Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs
This Essay sketches the outlines of a forfeitures jurisprudence under the Eighth Amendment’s Excessive Fines Clause in which the effect of property deprivations on individuals and their families—in particular, the infliction of financial hardship—is a core criterion in assessing a forfeiture’s sever…
Courts have often suggested that “bans” are per se unconstitutional. But what makes a regulation a ban and why should it matter? This Article addresses those questions, which are particularly pressing as the Supreme Court prepares to hear its first Second Amendment case in nearly a decade.
Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless Sex-Offender Registrants
New York’s poor, disabled sex-offender registrants are ensnared in a cruel catch-22: New York will not release them from prison without housing, but laws and policies make finding housing nearly impossible for this population. This Essay explores potential legal challenges to New York’s harmful, cou…
An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection
Examining a long-overlooked passage on gender in Justice Powell’s Bakke concurrence, the Essay applies the theory of intersectionality to show that Justice Powell’s reasoning was flawed. As his “single-axis” approach reveals, tiers-of-scrutiny analysis creates a doctrinal puzzle in equal-protection …
Supreme Court as Superweapon: A Response to Epps & Sitaraman
Daniel Epps and Ganesh Sitaraman propose radical reforms to restore a moderate Supreme Court. Unfortunately, their proposals might destroy the Court’s legitimacy in order to save it. A Court unbound by legal principle is too powerful a weapon to leave around in a democracy; we should start thinking …
How to Save the Supreme Court
The Supreme Court faces an impending legitimacy crisis. This Feature explains why structural reform is necessary to save what is good about the Court, and identifies criteria that effective reform should satisfy. The Feature then proposes two alternative reforms to the Court’s structure: the Lottery…
Jury Selection as Election: A New Framework for Peremptory Strikes
The ability of peremptory strikes to contribute to impartial juries has long been debated. This Note argues that both defenders and critics have overlooked an important value served by peremptory strikes beyond impartiality: democratic legitimacy. Just as elections help legitimate the state’s coerci…
Empire States: The Coming of Dual Federalism
In the standard account of federalism’s eighteenth-century origins, the Framers divided government power among two sovereigns to protect individual liberties. This Article offers an alternative history. It emphasizes that federalism was a form of centralization—a shift of authority from diffuse quas…
The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance
The Fourth Amendment allows police to perform warrantless searches of individuals if they give consent to be searched and that consent is voluntary. Based on original laboratory research, this Essay posits that fact-finders assessing voluntariness underappreciate the extent to which suspects feel pr…
The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional
Several courts have compelled religious arbitration of employment disputes even when the arbitration agreement explicitly states that holy text would trump federal law. This Comment articulates a “reverse-entanglement” principle that explains why courts violate the Establishment Clause when they enf…
The High Stakes of Low-Level Criminal Justice
Alexandra Natapoff reviews Misdemeanorland, summarizing the book’s key contributions and extending its insights about New York City’s system of misdemeanor managerial social control to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process.
Making Black Lives Matter: Properly Valuing the Rights of the Marginalized in Constitutional Torts
Black lives are systematically undervalued by constitutional enforcement remedies. Courts and scholars have unquestioningly adopted tort law’s corrective-justice scheme for § 1983 suits. But corrective justice is unsatisfactory in a context where the government and private parties frequently interac…
The Present Crisis in American Bail
This Essay reviews the recent rise of systemic injunctions against money bail systems and a major question they raise: what level of scrutiny applies to allegedly unconstitutional bail systems. It concludes that, in light of history and precedent, strict scrutiny is the appropriate standard.
Fourth Amendment Reasonableness After Carpenter
In Carpenter v. United States, the Supreme Court held that a warrant is required when the government collects certain categories of third-party data. This Essay argues that a categorical warrant requirement for electronic surveillance is a mistake, and that, when faced with warrantless electronic su…
Customs, Immigration, and Rights: Constitutional Limits on Electronic Border Searches
This Essay traces the historical evolution of the border search exception to the Fourth Amendment to argue that CBP and ICE are currently operating outside constitutional constraints and proposes a tiered approach, restricted in scope and requiring increasing levels of protections the more invasive …
State Courts and Constitutional Structure
Justice Goodwin Liu of the California Supreme Court reviews Judge Jeffrey Sutton’s new book, 51 Imperfect Solutions: The Making of American Constitutional Law.
A Response to Justice Goodwin Liu
Judge Jeffery Sutton responds to Justice Goodwin Liu’s Review of 51 Imperfect Solutions: States and the Making of American Constitutional Law.
The New Jim Crow Is the Old Jim Crow
A vast divide exists in the national imagination between the racial struggles of the civil rights era and those of the present. Drawing on the work of Elizabeth Gillespie McRae and Jeanne Theoharis, this Review argues that complexifying this oversimplified history is critical to contemporary racial …
The Dilemma of Localism in an Era of Polarization
Localism discourse has long confronted a fundamental problem: how can we remain committed to decentralized decision-making while checking the excesses of local parochialism? This Essay proposes a new approach in our polarized era, emphasizing the joint role state individual rights and the often-igno…
The Treaty Problem: Understanding the Framers’ Approach to International Legal Commitments
Bond v. United States failed to answer important questions about the scope and limits of the treaty power. This Comment highlights an underexplored factor driving the Framers’ formulation of that power—the threat of war inherent in all treaty violations—and its implications for Bond’s lingering ques…
Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu
This Essay compares the Supreme Court’s decision to uphold President Trump’s travel ban to the Court’s decision nearly seventy-five years ago to affirm the internment of Japanese Americans in Korematsu. It argues that while Hawaii v. Trump formally overturned Korematsu, it essentially recreated the …
A Legal Sanctuary: How the Religious Freedom Restoration Act Could Protect Sanctuary Churches
Over the last three decades, the doctrine and political valence of protections for religious exercise have shifted significantly. This Note analyzes how those changes provide new legal protections for sanctuary churches, demonstrating how religious freedom statutes can protect marginalized individua…
Impeachment: A Handbook
Charles Black’s Impeachment: A Handbook has become the authoritative guide on the subject of presidential impeachment. This year, the Yale University Press published a new edition of the classic, incorporating new material by constitutional theorist Philip Bobbitt. Bobbitt’s contribution to the new …
Presidential Power to Terminate International Agreements
Can President Trump unilaterally withdraw the United States from any and all international agreements to which the United States is a party? This Essay argues that constitutional, functional, and comparative-law considerations dictate that the answer is a resounding “no.”
The New Class Blindness
An increasing number of judges argue that courts are flatly prohibited from taking class into account when interpreting the Fourteenth Amendment. Contesting that claim, this Article traces the persistence of class-related concerns in Fourteenth Amendment doctrine from the Warren Court to the present…
Congressional Power over Office Creation
This Note argues that the Constitution gives Congress exclusive authority over office creation. This exclusive power has important and surprising implications for a series of live constitutional questions, such as the constitutionality of qualifications clauses, for-cause removal provisions, and tem…
The Limits of Professional Speech
This Essay argues that the definition of professional speech should not be expanded beyond the doctrine’s purpose: ensuring that clients receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. It then examines these limits of professi…
The Original Theory of Constitutionalism
The conflict between various versions of “originalism” and “living constitutionalism” has long defined the landscape of constitutional theory and practice. In this Review of Richard Tuck’s The Sleeping Sovereign, David Grewal and Jedediah Purdy adapt the sovereignty-government distinction at the hea…
Local Action, National Impact: Standing Up for Sanctuary Cities
Natural Rights and the First Amendment
This Article excavates the Founding Era approach to expressive freedom, which was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. This forgotten history undercuts the Supreme Court’s recent insistence that the axioms of modern do…
Originalism Without Text
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…
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)…
Williams-Yulee and the Anomaly of Campaign Finance Law
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…
Capital Jurors in an Era of Death Penalty Decline
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…
Private Enforcement of the Affordable Care Act: Toward an "Implied Warranty of Legality" in Health Insurance
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…
The Origins of Judicial Deference to Executive Interpretation
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…
The Unitary Executive and the Scope of Executive Power
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…
The Private Search Doctrine After Jones
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…
The Due Process Right To Pursue a Lawful Occupation: A Brighter Future Ahead?
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…
Beating Rubber-Stamps into Gavels: A Fresh Look at Occupational Freedom
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…
Business Licensing and Constitutional Liberty
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…
From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions
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…
The Cycles of Separation-of-Powers Jurisprudence
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…
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…
Apple and the American Revolution: Remembering Why We Have the fourth Amendment
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…
The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations
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…
Predicting Utah v. Streiff’s Civil Rights Impact
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…
Innocence and Override
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…
Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine
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 …
Ideological Imbalance and the Peremptory Challenge
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…
The President’s Budget as a Source of Agency Policy Control
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…
The Constitutionality of Civil Forfeiture
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…
Transformation Requires Transparency: Critical Policy Reforms To Advance Campus Sexual Violence Response
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…
A Better Balance: Providing Survivors of Sexual Violence with “Effective Protection” Against Sex Discrimination Through Title IX Complaints
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 …
Gender Violence Costs: Schools’ Financial Obligations Under Title IX
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…
Title IX: An Imperfect but Vital Tool To Stop Bullying of LGBT Students
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…
In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education
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.…
Campus Sexual Assault Adjudication and Resistance to Reform
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…
The Modification of Decrees in the Original Jurisdiction of the Supreme Court
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…
Fiduciary Political Theory: A Critique
“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…
Can Corpus Linguistics Help Make Originalism Scientific?
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…
Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical
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…
The Fourth Amendment in the Information Age
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…
Border Checkpoints and Substantive Due Process: Abortion Rights in the Border Zone
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 …
How To Trim a Christmas Tree: Beyond Severability and Inseverability for Omnibus Statutes
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 …
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…
Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice
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…
Federal Questions and the Domestic-Relations Exception
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…
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…
Religious Liberty for Politically Active Minority Groups: A Response to NeJaime and Siegel
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…
RFRA and First Amendment Freedom of Expression
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…
Nervous Victors, Illiberal Measures
Douglas NeJaime and Reva B. Siegel’s Conscience Wars1 is an exemplar of a dying breed: a progressive piece that takes religious freedom seriously for political foes in the sex-and-reproduction culture wars. In just one generation, those battles have turned religious liberty, that cons…
Evidence-Based Sentencing and the Taint of Dangerousness
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…
Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court
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…
Time-In-Cell: Isolation and Incarceration
What is solitary confinement, and what has been constitutional law’s relationship to the practices of holding prisoners in isolation? One answer comes from Wilkinson v. Austin,1 a 2005 U.S. Supreme Court case discussing Ohio’s super-maximum security (“supermax”) prison, which opene…
Only Once I Thought About Suicide
I. Every prison and jail in Virginia has a series of cells used for solitary confinement. Fairfax County Jail had three units for solitary confinement. None had windows. The R-Cells had ceilings so high that a tall man could not reach them by jumping. The other had a door so thick and hea…
Worse than Death
For decades, lawyers and activists have questioned the constitutionality of our criminal justice system’s most severe punishments. Is lethal injection okay?1 What about a firing squad?2 How about life sentences for pirates3 or drug possessors4 or people who pass rubber checks?5 But we he…
The Liman Report and Alternatives to Prolonged Solitary Confinement
Introduction Our nation’s prisons and jails are often shrouded in secrecy. Media access to prisoners, particularly those in solitary, is limited or non-existent, and many states do not provide adequate data on how their penal systems actually operate.1 As Justice Kennedy recently put it…
Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails
The United States is exceptional not only because it incarcerates so many people, but also because of the inhumane and degrading conditions that prevail in so many of its jails and prisons.1 This country stands alone among Western nations in its widespread and routine use of extreme and pro…
Time-In-Cell: A Practitioner’s Perspective
Earlier this year, The New York Times reported that President Obama ordered the Department of Justice to review the practice of federal prison administrative segregation, commonly referred to as “solitary confinement.”1 The Association of State Correctional Administrators (ASCA), the mem…
Political Entrenchment and Public Law
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…
Interbranch Removal and the Court of Federal Claims: “Agencies in Drag”
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…
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…
Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context
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…
Justice Thomas and the Originalist Turn in Administrative Law
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…
Looking Back Ten Years After Kelo
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 …
Brown, Not Loving: Obergefell and the Unfinished Business of Formal Equality
Introduction Nearly fifty years ago, in the 1967 case Loving v. Virginia, the Supreme Court struck down bans on interracial marriage.1 This Term, the Court seems poised to further expand marriage equality by holding that same-sex couples, too, are guaranteed the constitutional right to mar…
How Conflict Entrenched the Right to Privacy
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…
Overlooking Equality on the Road to Griswold
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,…
Griswold and the Public Dimension of the Right to Privacy
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…
Griswold's Progeny: Assisted Reproduction, Procreative Liberty, and Sexual Orientation Equality
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…
Contraception as a Sex Equality Right
“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…
Cost-Benefit Analysis of Financial Regulation: A Reply
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 …
How To Think About Law as Morality: A Comment on Greenberg and Hershovitz
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 …
The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration
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…
Roundup: Citizens United and Public Corruption
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…
Fighting for the "Right To Try" Unapproved Drugs: Law as Persuasion
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…
Warning!: Self-Help and the Presidency
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…
Abuse of Property Right Without Political Foundations: A Response to Katz
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…
Hall v. Florida and Ending the Death Penalty for Severely Mentally Ill Defendants
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…
Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts
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…
A Conversation with Justice Sotomayor
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…
Secrecy, Intimacy, and Workable Rules: Justice Sotomayor Stakes Out the Middle Ground in United States v. Jones
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 …
Why Firearm Federalism Beats Firearm Localism
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…
Syria, Threats of Force, and Constitutional War Powers
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…
Windsor’s Right to Marry
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…
Lower Court Popular Constitutionalism
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…
Why Civil Gideon Won’t Fix Family Law
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…
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…
Poor People Lose: Gideon and the Critique of Rights
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…
Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services
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 …
Race and the Disappointing Right to Counsel
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…
Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law
122 Yale L.J. 2260 (2013).
Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality…
An Immigration Gideon for Lawful Permanent Residents
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…
Investigating Gideon’s Legacy in the U.S. Courts of Appeals
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…
Valuing Gideon’s Gold: How Much Justice Can We Afford?
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…
Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?
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…
Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda
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…
Gideon at Guantánamo
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 …
Gideon at Guantánamo: Democratic and Despotic Detention
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…
Enforcing Effective Assistance After Martinez
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…
Gideon’s Law-Protective Function
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…
Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures
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 …
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…
Federal Public Defense in an Age of Inquisition
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…
Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures
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…
Implicit Racial Bias in Public Defender Triage
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…
Effective Plea Bargaining Counsel
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,…
Lessons from Gideon
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…
Gideon at Fifty: A Problem of Political Will
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.…
The Dignity of the South
The plaintiffs in Shelby County v. Holder argue that section 5 of the Voting Rights Act offends the “equal dignity” of the states. In this Essay, written in advance of the decision, Professor Joseph Fishkin situates this claim in a larger context. Americans have been fighting since the Civil War and…
Section 5 as Simulacrum
Professor Justin Levitt discusses the Shelby County challenge to section 5 of the Voting Rights Act, noting downsides to the Act’s tremendous symbolic importance. In particular, he finds that the case seems to hinge on a simulacrum of the statute—like an editorial cartoonist’s rendering of a politic…
Rethinking the Federal Eminent Domain Power
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…
How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change
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…
Commandeering and Constitutional Change
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…
Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second
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…
Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?
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…
Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms
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…
Judicial Capacity and the Substance of Constitutional Law
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…
Contra Nemo Iudex in Sua Causa: The Limits of Impartiality
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…
Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments
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…
Due Process as Separation of Powers
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
Redistricting Commissions: A Better Political Buffer?
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
One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement
121 Yale L.J. 2013 (2012).
Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument
My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of …
Rights and Votes
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). …
Bad News for John Marshall
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…
Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism
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…
The Twenty-Sixth Amendment Enforcement Power
121 Yale L.J. 1168 (2012).
This Note argues that the Twenty-Sixth Amendment did more than just lower the voting age. It also gave Congress the power to override state policies that disproportionately burden the voting rights of particular age groups, such as strict voter ID laws and onerous absentee …
“Done in Convention”: The Attestation Clause and the Declaration of Independence
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…
Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State
**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…
Courts in the Age of Dysfunction
**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 …
Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate
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 …
The Anti-Federalists and Presidential War Powers
121 Yale L.J. 459 (2011).
When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches
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…
The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement
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
What Litigation of a Climate Nuisance Suit Might Look Like
**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…
AEP v. Connecticut and the Future of the Political Question Doctrine
**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…
Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine
**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 …
Climate Justice and the Elusive Climate Tort
**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…
A Tale of Two Climate Cases
**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…
AEP v. Connecticut’s Implications for the Future of Climate Change Litigation
**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…
Judges in Jeopardy!: Could IBM’s Watson Beat Courts at Their Own Game?
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…
Making Our Democracy Work: The Yale Lectures
120 Yale L.J. 1999 (2011).
Before (and After) Roe v. Wade: New Questions About Backlash
120 Yale L.J. 2028 (2011).
Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this c…
Publius and the Petition: Doe v. Reed and the History of Anonymous Speech
120 Yale L.J. 2140 (2011).
This Note argues that signatures on petitions intended for use in direct democracy processes such as ballot initiatives should be subject to public scrutiny and disclosure. They should not benefit from free speech protections allowing for anonymity. Signatures used in th…
Puerto Rico’s Eleventh Amendment Status Anxiety
120 Yale L.J. 2183 (2011).
State Pension Deficits, the Recession, and a Modern View of the Contracts Clause
120 Yale L.J. 2199 (2011).
A Winn for Educational Pluralism
**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…
Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis
**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…
Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform
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…
America's Lived Constitution
120 Yale L.J. 1734 (2011).
This Feature is an adaptation of chapter 3 of a forthcoming book, America’s Unwritten Constitution, which in turn is a sequel to a 2005 book, America’s Constitution: A Biography. The 2005 book explores America’s written Constitution in considerable detail, taking readers…
An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities
120 Yale L.J. 1820 (2011).
Since the ratification of the Fourteenth Amendment in 1868, judges and scholars have struggled to coherently identify the rights, privileges, and immunities that no state should abridge. Debates over the ambit of the Fourteenth Amendment, however, have consistently overl…
The Taxing Power, The Affordable Care Act, and the Limits of Constitutional Compromise
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, …
From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases
120 Yale L.J. 1278 (2011).
For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned wi…
The Common School Before and After Brown: Democracy, Equality, and the Productivity Agenda
120 Yale L.J. 1455 (2011).
In Brown's Wake: Legacies of America's Educational Landmark
By Martha Minow
New York, NY: Oxford University Press, 2010, pp. 320. $24.95.
Deal or No Deal? Remedying Ineffective Assistance of Counsel During Plea Bargaining
120 Yale L.J. 1532 (2011).
What happens when a defendant receives defective counsel during plea bargaining but subsequently receives a fair trial? This Note discusses three different approaches: no remedy, specific performance of the plea bargain, and a retrial. It argues that specific performance…
Superstatutory Entrenchment: A Positive and Normative Interrogatory
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…
The National Security Constitution and the Bush Administration
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…
Plural Constitutionalism and the Pathologies of American Health Care
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…
Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment
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…
Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn's A Republic of Statutes: The New American Constitution
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…
120 Yale L.J. 978 (2011).
This Article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The Article provides important and new insights into this area of law, drawing upon recent scholarship to urge a sub…
Allocating Power Within Agencies
120 Yale L.J. 1032 (2011).
Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental …
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
The New Judicial Takings Construct
[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…
Rethinking the Facial Takings Claim
120 Yale L.J. 967 (2011).
Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations
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…
The One and Only Substantive Due Process Clause
120 Yale L.J. 408 (2010).
The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to prote…
Reversed on Appeal: The Uncertain Future of President Obama’s “Empathy Standard”
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 …
Citizens United and Its Critics
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…
Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to Content-Neutral Regulations
Slow and Steady: David Souter's Life in the Law
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…
Conditional Taxation and the Constitutionality of Health Care Reform
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…
Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"
119 Yale L.J. 1474 (2010).
The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough d…
Bankruptcy as Constitutional Property: Using Statutory Entitlement Theory To Abrogate State Sovereign Immunity
119 Yale L.J. 1568 (2010).
In the decade following Seminole Tribe’s ruling that Article I is not a grant of authority to abrogate state sovereign immunity, scholars and courts overwhelmingly agreed that the Eleventh Amendment barred Congress from subjecting states to suit in bankruptcy proceedings…
Eminent Domain Due Process
119 Yale L.J. 1280 (2010).
This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislati…
The Significance of Domicile in Lyman Trumbull's Conception of Citizenship
119 Yale L.J. 1351 (2010).
The Significance of Signatures: Why the Framers Signed the Constitution and What They Meant by Doing So
119 Yale L.J. 966 (2010).
The signing of the U.S. Constitution is traditionally understood as the closing act of the Constitutional Convention. This Note provides an alternative account, one that understands the Constitution’s signing as the opening act of the ratification campaign that followed i…
Maximizing Participation Through Campaign Finance Regulation: A Cap and Trade Mechanism for Political Money
119 Yale L.J. 1060 (2010).
This Note attempts to reroute a burgeoning area of campaign finance scholarship and reform. Though many previous proposals have enshrined liberty or equality as the sole animating value to pursue through doctrinal and political means, few have considered the impact of ca…
Fourth Amendment Seizures of Computer Data
119 Yale L.J. 700 (2010).
What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the …
Constitutional Avoidance Step Zero
119 Yale L.J. 837 (2010).
Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process
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…
Docket Capture at the High Court
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…
If It Ain't Broke . . .
“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…
Government in Opposition
119 Yale L.J. 548 (2009).
In the past generation, in countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged in greater numbers, what this Article calls “government in opposition.” After democratic elections are …
Wishing International Law Away
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; …
The Prospects for the Peaceful Co-Existence of Constitutional and International Law
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…
Old W(h)ine, Old Bottles: A Reply to Professor Paulsen
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…
The Fog of Certainty
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…
The Classic Rule of Faith and Credit
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…
Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law
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…
Introduction: The Constitutional Law and Politics of Reproductive Rights
118 Yale L.J. 1312 (2009).
From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights
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…
Popular Constitutionalism, Civic Education, and the Stories We Tell Our Children
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…
Original Jurisdiction Deadlocks
118 Yale L.J. 1003 (2009).
The Example of America
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…
Suspension as an Emergency Power
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 …
Learning Through Policy Variation
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…
The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs
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…
Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability
118 Yale L.J. 177 (2008).
Response: Corporate Law’s Distributive Design
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…
Minorities, Immigrant and Otherwise
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…
Oops! Racism as Mistake: Lessons from Corporate Law
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…
Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart
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…
The Supreme Court Appointments Process and the Real Divide Between Liberals and Conservatives
117 Yale L.J. 1947 (2008).
Treaties' End: The Past, Present, and Future of International Lawmaking in the United States
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…
A Blueprint for Applying the Rules Enabling Act's Supersession Clause
117 Yale L.J. 1225 (2008).
Giving the Constitution to the Courts
117 Yale L.J. 886 (2008).
Ledbetter in Congress: The Limits of a Narrow Legislative Override
117 Yale L.J. 971 (2008).
United States v. Ankeny: Remedying the Fourth Amendment's Reasonable Manner Requirement
117 Yale L.J. 723 (2008).
The Constitution Outside the Constitution
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…
Law Is Everywhere
117 Yale L.J. 256 (2007).
The Canons of War
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…
The Historical Origins of Judicial Independence and Their Modern Resonances
Responding to Mary Sarah Bilder’s argument that the roots of judicial review can be found in corporate law of the colonial era, Scott Gerber contends that judicial review is an extension of the notion of an independent judiciary that emerged from Revolutionary Era political theory. Gerber convinci…
Designing a Constitution-Drafting Process: Lessons from Kenya
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 …
Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829
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…
Democracy, Not Statehood: The Case for Puerto Rican Congressmen
Congress is currently considering the District of Columbia House Voting Rights Act of 2007 (H.R. 1433), which attempts to address the disenfranchisement of District residents by granting the District representation in the House of Representatives. In a Comment recently published in this Journal, I s…
Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury
116 Yale L.J. 1568 (2007)
This Note proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury’s legitimacy, many scholars have observed that this…
Article III En Banc: The Judicial Conference as an Advisory Intercircuit Court of Appeals
116 Yale L.J. 1625 (2007)
Police Pretext as a Democracy Problem
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…
On Rights and Responsibilities: A Response to The Problem with Pretext
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…
How Whren Protects Pretext
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…
Six Puerto Rican Congressmen Go to Washington
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.
The Organizational Guidelines: R.I.P.?
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…
The Constitutional Foundations of Chenery
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…
Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform
116 Yale L.J. 1116 (2007)
Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 …
Bush v. Gore and the Uses of “Limiting”
116 Yale L.J. 1159 (2007)
The "Bong" Show: Viewing Frederick's Publicity Stunt Through Kuhlmeier's Lens
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…
Why We Have Judicial Review
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…
Original Understanding and the Whether, Why, and How of Judicial Review
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…
The Political Theory of an Independent Judiciary
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…
Restoring the Right Constitution?
116 Yale L.J. 732 (2007)
The Corporate Origins of Judicial Review
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…
Sentencing Organizations After Booker
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 …
Equal Educational Opportunity and the Federal Government: A Response to Goodwin Liu
Goodwin Liu’s inspiring article mines a rich vein of the history of American education. He revives and re-interprets congressional attempts to create a national system of public schools in the years following the Civil War. Professor Liu’s work is a signal contribution to the national movement f…
A Response to Goodwin Liu
Professor Liu’s article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to pro…
Federal Nagging: How Congress Should Promote Equity and Common High Standards in Public Schools
In two articles—one recently published in this Journal and another forthcoming in the NYU Law Review—Professor Goodwin Liu argues that the federal government should play a greater role in financing public education, should distribute more fairly among states its funds targeted to the neediest sc…
Please Don't Cite This Case! The Precedential Value of Bush v. Gore
As Americans turn out to vote today, the ghost of the 2000 Presidential elections will hover over the voting booths. According to The New York Times, this will be the first midterm election in which the “Democratic Party is mobilizing teams of lawyers and poll watchers” to check for voting irre…
Environmental Economics: A Market Failure Approach to the Commerce Clause
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…
HAVA's Unintended Consequences: A Lesson for Next Time
116 Yale L.J. 493 (2006)
Federal Judicial Supremacy on the Ballot
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…
Can Interagency Dialogue Serve as the New Separation of Powers?
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…
Can Process Cure Substance? A Response to Neal Katyals Internal Separation of Powers
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…
Toward Internal Separation of Powers
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…
Political Checks on a Politicized Presidency: A Response to Neal Katyals Internal Separation of Powers
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…
The New Line Item Veto Proposal: This Time Its Constitutional (Mostly)
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…
A Debate Between Peter Strauss and Cass 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…
Gender and Constitutional Design
115 Yale L.J. 2643 (2006)
Of Sovereigns and Servants
115 Yale L.J. 2633 (2006)
Chevron and Agency Norm-Entrepreneurship
115 Yale L.J. 2623 (2006)
The President: Lightning Rod or King?
115 Yale L.J. 2611 (2006)
Beyond Marbury: The Executive's Power To Say What the Law Is
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…
Rational War and Constitutional Design
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 …
Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive
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…
Executive Branch Usurpation of Power: Corporations and Capital Markets
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…
Setting the World Right
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…
Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within
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 …
The President's Completion Power
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…
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,…
Why (and When) Cities Have a Stake in Enforcing the Constitution
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…
Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System
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.
What the Court Said in Lawrence
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 …
Learning What From a Nominee's Views of Past Court Rulings?
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…
Making Confirmation Hearings Meaningful
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…
The Meta-Nonsense of Lawrence
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…
Big Money v. The Framers
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…
A Remedy Without a Wrong
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…
Civil Rights Litigation and Social Reform
[Editor's Note: Civil Rights Litigation and Social Reform is a Response to Kenneth W. Mack, The Myth of Brown?, Yale L.J. (The Pocket Part), Nov. 2005, http://www.thepocketpart.org/2005/11/mack.html.]
Executive Power from a Connecticut Perspective: Lowering the Impeachment Bar
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…
The Domestic War
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…
We The People's Executive
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…
Is There an Exclusive Commander-in-Chief Power?
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…
A Law Unto Itself?
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…
Clauses Not Cases
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…
From the Court’s Docket: DaimlerChrysler Corp. v. Cuno and the European Experience
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 …
Questioning Justice: Law and Politics in Judicial Confirmation Hearings
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…
Sentencing Review: Judgment, Justice, and the Judiciary
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…
Reasoning Through Reasonableness
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…
What Yogi Berra Teaches About Post-Booker Sentencing
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…
An Open Letter to Professors Paulsen and Powell
115 Yale L.J. 2101 (2006)
Reply to Commentators
115 Yale L.J. 2093 (2006)
Commentary: Grand Visions in an Age of Conflict
115 Yale L.J. 2067 (2006)
Commentary: How To Interpret the Constitution (and How Not To)
115 Yale L.J. 2037 (2006)
Introduction: America's Constitution and the Yale School of Constitutional Interpretation
115 Yale L.J. 1997 (2006)
115 Yale L.J. 2015 (2006)
Introduction: The Paradigm-Case Method
115 Yale L.J. 1977 (2006)
115 Yale L.J. 1975 (2006)
Beyond Lawrence: Metaprivacy and Punishment
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…
Making the No Fly List Fly: A Due Process Model for Terrorist Watchlists
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…
Justice Breyer's Democratic Pragmatism
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…
Justice Breyer Throws Down the Gauntlet
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…
The Pragmatic Passion of Stephen Breyer
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…
Validation Procedures and the Burden of Ballot Access Regulations
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…
Unaccountable at the Founding: The Originalist Case for Anonymous Juries
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 …
Rehabilitating Rehab Through State Building Codes
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…
Recovering American Administrative Law: Federalist Foundations, 1787-1801
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…
Managing Transitional Moments in Criminal Cases
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…
Securing Informationships: Recognizing a Right to Privity in Fourth Amendment Jurisprudence
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…
The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs
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…
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…
Freeing Newsgathering from the Reporter's Privilege
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 …
The Duty To Defend
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.
Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics
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…
Comment: War and Uncertainty
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 …
John Hart Ely and the Problem of Gerrymandering: The Lion in Winter
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…
Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror
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…
Globalization and Distrust
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…
The Coherentism of Democracy and Distrust
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…
Applying Section 5: Tennessee v. Lane and Judicial Conditions on the Congressional Enforcement Power
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…
Judging Partisan Gerrymanders Under the Elections Clause
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…
Overlooking a Sixth Amendment Framework
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…
Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court's Docket
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…
Solving the Due Process Problem with Military Commissions
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…
An Article I, Section 7 Perspective on Administrative Law Remedies
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…
The Federalist Dimension of Regulatory Takings Jurisprudence
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…
Emergency Power and the Militia Acts
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…
This Is Not a War
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…
The Anti-Emergency Constitution
113 Yale L.J. 1801 (2004)
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…
The Priority of Morality: The Emergency Constitution's Blind Spot
113 Yale L.J. 1753 (2004)
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…
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…
The Eleventh Amendment and the Reading of Precise Constitutional Texts
113 Yale L.J. 1663 (2004)
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 …
Non-Self-Executing Treaties and the Suspension Clause After St. Cyr
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 …
Is the Right To Organize Unconstitutional?
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…
Dual Sovereignty and the Sixth Amendment Right to Counsel
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…
The Emergency Constitution
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…
Appellate Review and the Exclusionary Rule
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 …
Turning the Endangered Species Act Inside Out?
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…
Juries and Race in the Nineteenth Century
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…
Minorities, Shareholder and Otherwise
113 Yale L.J. 119 (2003)
"[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himsel…
Eldred and Lochner: Copyright Term Extensionand Intellectual Property as Constitutional Property
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…
Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act
112 Yale L.J. 1943 (2003)
The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separatio…
Korematsu Continued . . .
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…
The Tenth Amendment and Local Government
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 …
Common Law, Common Ground, and Jefferson's Principle
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…
Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?
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…
Queer Brinksmanship: Citizenship and the Solomon Wars
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 …
The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five
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…
Section 1983, Statutes, and Sovereign Immunity
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…
The Freedom of Imagination: Copyright's Constitutionality
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…
The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism
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…
Fall from Grace: Arming America and the Bellesiles Scandal
111 Yale L.J. 2195 (2002)
Simple Fairness: Ending Discrimination in Health Insurance Coverage of Addiction Treatment
111 Yale L.J. 2321 (2002)
Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination
111 Yale L.J. 2289 (2002)
Inventing a Nonexclusive Patent System
111 Yale L.J. 2251 (2002)
Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique
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…
Legislative Entrenchment: A Reappraisal
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,…
Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification After Bushell's Case
111 Yale L.J. 1815 (2002)
Framing Transactions in Constitutional Law
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…
Waging War, Deciding Guilt: Trying the Military Tribunals
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…
To Promote the General Welfare: The Republican Imperative To Enhance Citizenship Welfare Rights
111 Yale L.J. 1457 (2002)
111 Yale L.J. 1251 (2002)
Mary D. Fan
The Anti-Antidiscrimination Agenda
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 …
Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy
111 Yale L.J. 993 (2002)
Categorical Federalism: Jurisdiction, Gender, and the Globe
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…
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…
Veil of Ignorance Rules in Constitutional Law
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. …
The Executive Power over Foreign Affairs
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…
Unreasonable Probability of Error
111 Yale L.J. 435 (2001)
Federal Regulation of State Court Procedures
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…
The Internet and the Dormant Commerce Clause
110 Yale L.J. 785 (2001)
Narrow Clauses and Trial Balloons
110 Yale L.J. 543 (2000)
Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel
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, …
Disaggregating Constitutional Torts
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…
Deliberative Trouble? Why Groups Go to Extremes
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…
History as Precedent: The Post-Originalist Problem in Constitutional Law
110 Yale L.J. 121 (2000)