Federal Courts
Article
Judicial Legitimacy and Federal Judicial Design: Managing Integrity and Autochthony
This Article argues that the sociological legitimacy of judicial institutions in federal systems rests on both integrity and autochthony. Through theoretical and comparative inquiry, we explore the ways in which initial federal constitutional design, as well as ongoing legislative and judicial manag…
Article
Equity’s Constitutional Source
This Article uncovers the federal equity power’s constitutional source. It argues that, as originally understood, Article III vests the federal courts with inherent power to grant equitable remedies and to adapt the federal system of equity in ways beyond what the Supreme Court’s current cramped, st…
Forum
The Constitution as a Source of Remedial Law
This Essay responds to Owen Gallogly’s Equity’s Constitutional Source. It argues that it is implausible to locate the federal courts’ authority to afford equitable relief in Article III, but it defends a constitutional default rule applicable to legal as well as equitable remedies having its source…
Forum
Ordering Conduct Yet Evading Review: A Simple Step Toward Preserving Federal Supremacy
Texas’s patently unconstitutional Senate Bill 8, which effectively bans abortions and assigns enforcement to private individuals, has forced the question whether states can insulate their laws from pre-enforcement review. This piece offers a roadmap for the Court to hold that states may not engage i…
Forum
Equal Supreme Court Access for Military Personnel: An Overdue Reform
Federal law currently provides for direct Supreme Court review of criminal convictions from almost all American jurisdictions, but not of most court-martial convictions. For them, an Article I court can veto access to the Supreme Court. This Essay argues for elimination of that veto.
Forum
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…
Article
Retroactive Adjudication
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…
Note
Island Judges
Tracing the evolution of territorial courts over the last half century, this Note argues that prevailing justifications for withholding life tenure from federal judges in U.S. territories are now obsolete. It foregrounds the central role that the Judicial Conference has played in preserving two sepa…
Review
Fidelity and Construction
Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” This Review explores how Lessig’s theory of fidelity to role can inform an originalist understanding of constitutional construction.
Forum
The Point Isn't Moot: How Lower Courts Have Blessed Government Abuse of the Voluntary-Cessation Doctrine
Should government defendants be able to more easily moot a case than private defendants? This Essay argues that a strong voluntary-cessation doctrine is important to protecting individual rights and explains why—based on both precedent and policy—government and private defendants should be subject t…
Forum
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 …
Feature
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…
Forum
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.
Forum
Nonmajority Opinions and Biconditional Rules
In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. This Essay identifies the complications that arise in addressing this question when biconditional rules are involved and proposes a way to coh…
Note
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…
Note
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…
Forum
Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms
In two recent articles, we urged financial regulators to use cost-benefit analysis (CBA) to evaluate financial regulations.1 John Coates has emerged as a leading critic of this view.2 In this essay, we respond to his objections. We make several points. First, Coates conflates two separate …
Forum
Financial Regulation and Cost-Benefit Analysis
I. what government doesn’t know Cost-benefit analysis is best understood as a way for agencies to ensure that their decisions are informed—that they are based on knowledge about likely consequences, rather than on dogmas, intuitions, hunches, or interest-group pressures.1 But when agen…
Forum
Economists in the Room at the SEC
The SEC’s economic analysis has been under fire in recent years. This essay argues that the agency’s response to successful challenges to its rules has produced real progress in the SEC’s rulemaking process as well. The SEC has refined its internal processes and improved its work produc…
Forum
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 …
Forum
Claim Construction or Statutory Construction?: A Response to Chiang & Solum
Introduction “Claim construction” is the process by which a court determines the meaning of a patent’s claims—a process that in turn determines the scope of the covered invention. This process is extremely important because a court must determine what the patent covers before it ca…
Forum
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…
Forum
The Jurisdictional Question in Hobby Lobby
Burwell v. Hobby Lobby Stores, Inc. may well be the biggest case of the past Term.1 But by its own rules, the Supreme Court lacked jurisdiction to decide the case. An obscure statute, the Anti-Injunction Act of 1867 (AIA), imposes a pay-first requirement on federal tax challenges. The deeply…
Forum
Questioning the Use of Structure To Interpret Statutory Intent: A Critique of Utility Air Regulatory Group v. EPA
In late 2009 and early 2010, the Environmental Protection Agency promulgated a series of final agency actions that operate together to regulate greenhouse gas (GHG) emissions under the Clean Air Act (CAA). Under some CAA programs, sources of pollution are required to obtain permits based on …
Forum
Hobby Lobby and the Dictionary Act
Before the end of this month, the Supreme Court will decide Burwell v. Hobby Lobby Stores, Inc.1 and in so doing will determine whether the Religious Freedom and Restoration Act (RFRA) exempts from the Affordable Care Act’s (ACA) contraception mandate closely held, for-profit companies wh…
Forum
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…
Forum
Justice Sotomayor and Criminal Justice in the Real World
As part of the symposium to reflect on Justice Sotomayor’s first five years on the Supreme Court, this Essay explores Justice Sotomayor’s contributions to the Court’s criminal law jurisprudence. Professor Rachel Barkow argues that Justice Sotomayor’s prior experience working on criminal law cases as…
Forum
The People’s Justice?
Over the past few decades, the liberal Justices on the Supreme Court have made their most notable extrajudicial communications about the Constitution in academic venues discussing academic issues. This has limited their appeal to broader audiences. In this Essay, Professor David Fontana explores the…
Forum
Justice Sotomayor and the Jurisprudence of Procedural Justice
In this Essay, Professors Tyler and Meares highlight the ways in which recent social science research supports the model of jurisprudence articulated by Justice Sotomayor. Her model defines building identification with political and legal institutions as an important goal for the Court. It further …
Forum
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…
Essay
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…
Forum
Inflation Indicators
**This is the sur-reply to a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Lisa Ouellette's response, see here.**
In Patent Inflation, I argued that the asymmetry in Federal Cir…
Forum
What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings
**This is the second in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Professor Masur's sur-reply, see here.**
Professor Jonathan Masur’s recent article, Patent Inflation, argue…
Forum
Who’s Afraid of the Federal Circuit?
**This is the first in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Lisa Ouellette's response, see here. For Professor Masur's sur-reply, see here.**
Jonathan Masur’s argument regarding “Patent Inflation” rests on the a…
Comment
The Solicitor General of the United States: Tenth Justice or Zealous Advocate?
121 Yale L.J. 725 (2011).
Forum
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…
Forum
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…
Forum
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…
Forum
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 …
Forum
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…
Article
Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine
120 Yale L.J. 1898 (2011).
Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though s…
Note
Judicious Influence: Non-Self-Executing Treaties and the Charming Betsy Canon
120 Yale L.J. 1784 (2011).
Despite their seeming impotency, non-self-executing treaties play an important role in domestic jurisprudence. When a statute permits more than one construction, judges have a number of interpretive tools at their disposal. One of these is the Charming Betsy canon, which…
Comment
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
Note
How To Review State Court Determinations of State Law Antecedent to Federal Rights
120 Yale L.J. 1192 (2011).
In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court endorsed a judicial takings doctrine for the purpose of policing wayward state property law decisions. The plurality’s opinio…
Note
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…
Comment
Constructing America: Mythmaking in U.S. Immigration Courts
119 Yale L.J. 1012 (2010).
This Note argues that immigration courts have served and continue to serve as important sites for the perpetuation of national identity myths. By focusing on a subset of cases called “cancellation of removal,” I examine the functional criteria by which immigrants are gra…
Comment
INA Section 242(g): Immigration Agents, Immunity, and Damages Suits
119 Yale L.J. 625 (2009).
Forum
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…
Forum
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…
Forum
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…
Forum
Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?
I. Introduction: The Need for “Political” Analysis My participation in the excellent conference on case selection in the Supreme Court was surely based neither on my experience lawyering before the Court, nor on my systematic study of the case selection process as a methodologically sophisticat…
Note
Disastrously Misunderstood: Judicial Deference in the Japanese-American Cases
119 Yale L.J. 270 (2009).
This Note offers a new framework to evaluate judicial deference in cases reviewing government actions during national emergencies. Rejecting the conventional approach assessing deference as a matter of degree or as a condition present or not present, this Note offers a nu…
Note
When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation
119 Yale L.J. 86 (2009).
In many cases, municipal attorneys defend both a municipality and a municipal official against § 1983 claims. Some defenses available to the two types of defendants are incompatible and may give rise to conflicts of interest. This Note analyzes the problems associated with…
Forum
The Mess of Manifest Disregard
A circuit split is in the making, and it could signal a shift with significant implications for federal arbitration law. Just eighteen months after the U.S. Supreme Court’s March 25, 2008 decision in the controversial case of Hall Street Associates v. Mattel, Inc., three circuits are already in ri…
Article
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…
Comment
Article III En Banc: The Judicial Conference as an Advisory Intercircuit Court of Appeals
116 Yale L.J. 1625 (2007)
Article
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…
Forum
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…
Forum
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…
Forum
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…
Article
Chevron as a Voting Rule
116 Yale L.J. 676 (2007)
In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpret…
Article
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…
Forum
Please Don't Cite This Case! The Precedential Value of Bush v. Gore
As Americans turn out to vote today, the ghost of the 2000 Presidential elections will hover over the voting booths. According to The New York Times, this will be the first midterm election in which the “Democratic Party is mobilizing teams of lawyers and poll watchers” to check for voting irre…
Forum
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…
Article
How To Remove a Federal Judge
116 Yale L.J. 72 (2006)
Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution's grant of good-behavior tenure is an implicit reference to impeachment. This Article challenges that conventional wisdom. Using evidence from England, the colonies, a…
Response
Good Behavior, Judicial Independence, and the Foundations of American Constitutionalism
116 Yale L.J. 139 (2006)
Essay
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…
Comment
United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review
115 Yale L.J. 2183 (2006)
This Comment argues that a proper understanding of Booker's reasonableness review validates the appellate court's rejection of these reduced-ratio sentences in Pho, and should do so despite the fact that the sentences issued by Judge Torres were eminently "reasonable" in any…
Article
Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry
115 Yale L.J. 1564 (2006)
Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provi…
Comment
Limiting the Federal Forum: The Dangers of an Expansive Interpretation of the Tax Injunction Act
115 Yale L.J. 727 (2005)
In Henderson v. Stalder, the Court of Appeals for the Fifth Circuit held that the Tax Injunction Act (TIA) of 1937 prevents the federal courts from exercising jurisdiction over any case in which a victory for the plaintiff might reduce state revenues. In reaching this resul…
Comment
Divorcing Marriage from Procreation
114 Yale L.J. 1989 (2005)
Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashio…
Note
Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts
114 Yale L.J. 1759 (2005)
This Note finds that the gender composition of the bench affected federal appellate court outcomes in Title VII sexual harassment and sex discrimination cases in 1999, 2000, and 2001. An empirical study (n = 1666) shows that female judges decided for plaintiffs more often …
Feature
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…
Feature
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…
Comment
American Prosecutors as Democracy Promoters: Prosecuting Corrupt Foreign Officials in U.S. Courts
114 Yale L.J. 1185 (2005)
On June 3, 2004, a jury in a San Francisco federal court convicted former Ukrainian Prime Minister Pavel Lazarenko of twenty-nine counts of money laundering, wire fraud, interstate transportation of stolen property (ITSP), and conspiracy. The jury found that Lazarenko stole…
Note
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…
Note
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…
Article
The Right To Destroy
114 Yale L.J. 781 (2005)
Do you have the right to destroy that which is yours? This Article addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy,…
Review
Judicial Power and Civil Rights Reconsidered
114 Yale L.J. 593 (2004)
Michael Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of…
Comment
International Tribunals and Forum Non Conveniens Analysis
114 Yale L.J. 443 (2004)
Many international civil disputes are resolved via state-driven litigation before multinational tribunals. Indeed, under traditional principles of international law, individuals may not appear before such tribunals at all. Instead, states must advance claims on behalf of thei…
Note
What Feeney Got Right: Why Courts of Appeals Should Review Sentencing Departures De Novo
113 Yale L.J. 1955 (2004)
Last summer, when a panel of the U.S. Court of Appeals for the First Circuit issued its initial ruling in United States v. Thurston, it plunged into a war between federal judges and Congress, as well as between district and appellate courts, over how much flexibility trial j…
Comment
Security with Transparency: Judicial Review in "Special Interest" Immigration Proceedings
113 Yale L.J. 1333 (2004)
Much of the debate regarding post-September 11 counterterrorism initiatives has centered on the potentially damaging effects of these policies on constitutionally protected rights. Many observers have weighed the balance that the government has struck between national securi…
Comment
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 …
Note
Leaving FISA Behind: The Need To Return to Warrantless Foreign Intelligence Surveillance
113 Yale L.J. 179 (2003)
In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intellig…
Article
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…
Essay
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,…
Essay
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…
Article
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…
Essay
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. …
Essay
Bush v. Gore and the Boundary Between Law and Politics
110 Yale L.J. 1407 (2001)
Shortly after the Supreme Court's 5-4 decision in Bush v. Gore, one member of the majority, Associate Justice Clarence Thomas, addressed a group of students in the Washington, D.C., area. He told them that he believed that the work of the Court was not in any way influenced…