Arbitration has begun to take a new form: mandatory arbitration provisions built into corporate charters and bylaws. The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set of responses. This Essay provides one, explaining …
The #MeToo movement has motivated people to speak out about sexual harassment, but many of those speaking remain vulnerable to retaliation. This Essay provides the perspective of an employment lawyer on the shortcomings of sexual harassment law and how state law can afford greater protection.
For more than a decade, the bench, bar, and commentators have disagreed as to whether judges should look to decisions of international and foreign courts for guidance in resolving disputes that appear in U.S. courts. In 2003, Justice Scalia’s dissent in Lawrence v. Texas warned darkly that…
Health Care Exchanges and the Disaggregation of States in the Implementation of the Affordable Care Act
Introduction Federalism scholarship and doctrine have long viewed the states as monoliths.1 It is New York that is commandeered,2 Florida’s sovereign immunity that is violated,3 and Indiana that is coerced4—not officials, agencies, or political parties within the state, but the state…
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…
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…
Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes
122 Yale L.J. 1280 (2013).
This Note examines whether state or federal principles of administrative law should govern suits challenging state agency action pursuant to cooperative federalism statutes. Despite the prevalence of cooperative federalism statutes, courts and scholars alike have given scan…
Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond
121 Yale L.J. 534 (2011).
State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law. We have no Chevron, federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s…
120 Yale L.J. 2199 (2011).
120 Yale L.J. 2183 (2011).
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…
120 Yale L.J. 1084 (2011).
The Ideological Origins of American Federalism
By Allison L. Lacroix
Cambridge, MA: Harvard University Press, 19th ed., 2010, PP. 312. $35.00.
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…
[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…
A statute pointedly described as an “opaque, baroque maze of interlocking cross-references” is unlikely to represent an intelligent response to a fundamental failing in one of the most complicated and divisive areas of law. Yet, the Class Action Fairness Act (CAFA), ostensibly enacted by Congres…
On June 24, 2010, the Washington Supreme Court issued its opinion in McCurry v. Chevy Chase Bank, declining to follow nonmandatory but highly persuasive federal pleading standards. In doing so, Washington State became the first state supreme court post-Iqbal to abandon the ideal of national procedur…
The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism
119 Yale L.J. 1750 (2010).
This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of ju…
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…
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…
118 Yale L.J. 1256 (2009).
This Essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, roles they play by virtue of being autonomous policymakers outsid…
118 Yale L.J. 1557 (2009).
118 Yale L.J. 868 (2009).
In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of str…
118 Yale L.J. 902 (2009).
A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the U.S. regulatory ap…
Medicaid and Beneficiary Enforcement: Maintaining State Compliance with Federal Availability Requirements
117 Yale L.J. 1374 (2008).
When states accept federal funding to administer a joint federal-state program, what assurance is there that they will conform to the requirements of governing federal law? This question takes on a new urgency in the Medicaid context since the § 1983 lawsuits that have hi…
Should a landlord and tenant negotiating the lease of an apartment in Greenwich Village be entitled to spurn New York law and instead agree that their relationship is to be governed by the law of Idaho? Bell and Parchomovsky (B&P) apparently would answer yes. Their potentially revolutionary proposal…
First, the good news: Bell and Parchomovsky (B&P) see federalism’s potential to foster benign competition in the production of legal rules. This vision takes federalism beyond the traditional view of states as laboratories for experiment. It looks to federal structures that create a market for leg…
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.
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…
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…
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…
112 Yale L.J. 1943 (2003)
When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with "federalism" have redefined the constitutional status of federal attempts to regu…
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 …
112 Yale L.J. 553 (2002)
Does American corporate law work effectively to enhance shareholder value? The recent corporate governance crisis makes this time as good as any for reexamining the basic structure of this body of law. This Essay provides such a reconsideration of a defining feature of U.S. c…
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…
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…