The Yale Law Journal

Legal Philosophy

Review

Reevaluating Legal Theory

Jeff Pojanowski

Law is a social practice that pursues a moral purpose. Analyzing Professor Julie Dickson’s Evaluation and Legal Theory, this Review brings the natural-law tradition into conversation with contemporary philosophy of social science to seek an approach to general jurisprudence that respects both the fa…

Essay

The Moral Ambiguity of Public Prosecution

Gabriel S. Mendlow

In a legal system where criminal prosecution is the institutional analog of moral blame, a state that acts as exclusive prosecutor exceeds its moral standing and incurs a debt to the victim. The nature of this debt and how we might discharge it are the primary subjects of this Essay. 

Article

Equity as Meta-Law

Henry E. Smith

This Article interprets equity as law about law, or meta-law. Equity specializes in solving complex and uncertain problems, especially those involving multiple parties, conflicting rights, and opportunism. The Article reconstructs this function, diagnoses the ills of current equity, and charts a pat…

Article

Retroactive Adjudication

Samuel Beswick

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…

Article

Competition Wrongs

Nicolas Cornell

Drawing on various forms of business law, this Article argues that misconduct in the marketplace can wrong other market actors even though those actors did not have a right against the misconduct. This argument challenges traditional philosophical and legal assumptions about rights and accountabilit…

Article

Respect, Individualism, and Colorblindness

Benjamin Eidelson

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…

Feature

Sex as a Pedagogical Failure

Amia Srinivasan

This Feature offers an account of what is wrong with consensual professor-student sex. Such sex constitutes a failure, on the professor’s part, to satisfy the duties that arise from the practice of teaching. It often also feeds on and reinforces women students’ second-class standing in the universit…

Forum

The Tragedy and Promise of Self-Determination

Brian Slattery

The principle of self-determination, like Janus, has two faces: negative and positive. Often understood as enabling the fracture of states into national components, the principle is better seen as facilitating the creation of multinational frameworks that foster toleration and human rights. 

Forum

Twenty-First-Century Contract Law Is a Law of Agreements, Not Debts: A Response to Lewinsohn

Curtis Bridgeman

Jed Lewinsohn’s excellent article on consideration offers groundbreaking work on the concept of exchange but errs in seeing the motivational account of consideration as a bad fit with doctrine. I argue that the motivational account provides a more natural justification for both consideration and for…

Article

Paid on Both Sides: Quid Pro Quo Exchange and the Doctrine of Consideration

Jed Lewinsohn

The doctrine of consideration in contract is home to the law’s only substantial account of quid pro quo exchange—one that withers under philosophical scrutiny. By fleshing out the idea that exchange involves reciprocal payments, this Article offers both an original theory of exchange and a reconcept…

Article

The Claims of Official Reason: Administrative Guidance on Social Inclusion

Blake Emerson

Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally…

Essay

Why Is It Wrong To Punish Thought?

Gabriel S. Mendlow

It is an age-old maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, and unexecuted intentions. Yet its justification is something of a mystery. This Essay argues that each of the prevailing justifications is deficient and propo…

Review

Brief Lives

Laura Kalman

In this Review of Owen Fiss’s book, Pillars of Justice: Lawyers and the Liberal Tradition, Laura Kalman explores Fiss's views on the legal figures appearing in the book. In addition, Kalman discusses the criticisms of Brown v. Board of Education and legal liberalism that are missing in Fiss’s accoun…

Review

The Original Theory of Constitutionalism

David Singh Grewal & Jedediah Purdy

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…

Review

The Best Laid Plans

Frederick Schauer

120 Yale L.J. 586 (2010).