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The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act The Yale Law Journal (IF 4.986) Pub Date : 2022-06-23 David Horton
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was supposed to eliminate forced arbitration of cases involving sexual misconduct. This Essay explains why the Act fails to do so. In addition, it outlines what lawmakers and courts can do to fix this problem.
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The Separation-of-Powers Counterrevolution The Yale Law Journal (IF 4.986) Pub Date : 2022-05-31 Nikolas Bowie, Daphna Renan
The Article traces modern separation-of-powers jurisprudence to the Court’s reaction to Reconstruction. Converting Lost Cause dogma into the language of constitutional law, the Court sparked a counterrevolution that obscures, and eclipses, a more normatively compelling conception—one that locates in representative institutions authority to constitute the separation of powers by statute.
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Rights, Structure, and Remediation The Yale Law Journal (IF 4.986) Pub Date : 2022-05-31 Don R. Willett, Aaron Gordon
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 his confessed “redistributive goals” —exalting certain constitutional protections over others—imperil
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State Water Ownership and the Future of Groundwater Management The Yale Law Journal (IF 4.986) Pub Date : 2022-05-31 Samuel T. Ayres
Many states claim to own their water. How to understand such claims is a perennially muddied question which the Supreme Court recently failed to clarify. This Note demonstrates why states can have literal ownership of their water, and why a contrary conclusion could imperil groundwater management in the climate-changed future.
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“We Hold the Government to Its Word”: How McGirt v. Oklahoma Revives Aboriginal Title The Yale Law Journal (IF 4.986) Pub Date : 2022-05-31 Claire Blumenthal
McGirt’s insistence on unambiguous proof of Congress’s intent created an opening for aboriginal-title suits against the United States. By enforcing the congressional-intent requirement, McGirt cleared the sovereign immunity and preclusion bars that have stymied such suits. An overlooked Tenth Circuit decision unknowingly demonstrated how courts can implement McGirt.
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Whose Child Is This? Improving Child-Claiming Rules in Safety-Net Programs The Yale Law Journal (IF 4.986) Pub Date : 2022-04-30 Jacob Goldin, Ariel Jurow Kleiman
Benefit programs for families rely on rules to determine which individuals can claim which children. These rules shape who qualifies for a program and who does not. This Article critically assesses the design of child-claiming rules, using as case studies the Child Tax Credit and the Earned Income Tax Credit.
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Policing the Polity The Yale Law Journal (IF 4.986) Pub Date : 2022-04-30 Eisha Jain
Interior immigration enforcement reaches well beyond deportation. In practice, it also offers a rationale for policing U.S. residents stereotyped as foreign. This Essay shows how a “deportation-centric” approach limits the ability of courts to recognize and redress unjustified surveillance, and it argues for a different framework.
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Capitalist Development, Labor Law, and the New Working Class The Yale Law Journal (IF 4.986) Pub Date : 2022-04-30 Brishen Rogers
Gabriel Winant’s The Next Shift charts the transformation of Pittsburgh’s political economy from World War II through 2008. This Review suggests that the long-term process of capitalist development—which is central to Winant’s account—also helped to reshape our labor law over the same period.
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Proceduralize Student Speech The Yale Law Journal (IF 4.986) Pub Date : 2022-04-30 Bo Malin-Mayor
This Note proposes a new dimension for student-speech jurisprudence: procedure. How schools punish speech drives the lessons students learn, and the lessons students learn should drive judicial determinations of whether the educational value of a restriction is worth the First Amendment infringement.
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Youth Always Matters: Replacing Eighth Amendment Pseudoscience with an Age-Based Ban on Juvenile Life Without Parole The Yale Law Journal (IF 4.986) Pub Date : 2022-04-30 Hannah Duncan
Existing Eighth Amendment protections force judges to sort children into pseudoscientific categories. An analysis of sentencing transcripts reveals that sentencers routinely rely on unfounded assumptions when sentencing juveniles to life in prison. Following efforts led by formerly incarcerated youth, an age-based ban is necessary to protect youth from irreversible punishment.
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A Proposed Postpandemic Framework for Ordinary Course and MAE Provisions in Merger Agreements: Reviewing Recent Market Practice Changes and Addressing Skewed Incentives The Yale Law Journal (IF 4.986) Pub Date : 2022-04-26 Gail Weinstein, David A. Cooperstein
This empirical analysis of merger agreements indicates an evolution in market practice since the COVID-19 pandemic toward providing additional flexibility to targets to respond to extraordinary events that may occur pending closing. This Essay argues that relying on the buyer’s providing consent for such responses is inadequate, and proposes a new framework for ordinary course covenants and MAE provisions
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Free-World Law Behind Bars The Yale Law Journal (IF 4.986) Pub Date : 2022-03-29 Aaron Littman
In the “free world,” we look to regulatory rather than constitutional law to keep us healthy, safe, and connected. But inside prison walls, regulatory law recedes. This Article considers its failure to protect prisoners; its substantive, procedural, and normative advantages over constitutional law; and how to strengthen it behind bars.
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The Antitrust Duty to Deal in the Age of Big Tech The Yale Law Journal (IF 4.986) Pub Date : 2022-03-29 Erik Hovenkamp
Tech platforms are often accused of refusing to deal with their competitors. But courts have largely killed off antitrust liability for such behavior, citing concerns that it would chill investment in new technologies. This Article argues that antitrust can protect investment without needlessly stifling enforcement in meritorious cases.
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Unwritten Law and the Odd Ones Out The Yale Law Journal (IF 4.986) Pub Date : 2022-03-29 Vincent S.J. Buccola
In a new book, Douglas Baird argues that the values of reorganization professionals, more than statute or case law, define the norms of corporate bankruptcy. This Book Review shows how rule-by-reorganizers can explain Chapter 11's troubling tendency to disregard the interests of legacy creditors.
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Equalizing Access to Evidence: Criminal Defendants and the Stored Communications Act The Yale Law Journal (IF 4.986) Pub Date : 2022-03-29 Rebecca Steele
The Stored Communications Act poses an increasing threat to criminal defendants’ ability to access evidence. This Note analyzes pathways criminal defendants can pursue to access evidence within the current statutory framework and argues that the statute is unconstitutional as applied to cases where such pathways to exculpatory evidence are blocked.
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Schoolhouse Property The Yale Law Journal (IF 4.986) Pub Date : 2022-03-29 Sherry Maria Tanious
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 schools to afford heightened procedural protections to students subject to exclusionary discipline.
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The History Wars and Property Law: Conquest and Slavery as Foundational to the Field The Yale Law Journal (IF 4.986) Pub Date : 2022-02-28 K-Sue Park
The version of American history we adopt matters for our understanding of law. In property law, we overlook how the land system underpinning the American real estate market developed, and how that market grew through racial inequality, if we do not examine conquest and slavery as foundational to the field.
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Bankruptcy Grifters The Yale Law Journal (IF 4.986) Pub Date : 2022-02-28 Lindsey D. Simon
Bankruptcy grifters infiltrate the Chapter 11 process, seeking bankruptcy’s benefits for mass-tort defendants without incurring many of its costs. This Article concludes that bankruptcy should not be a procedural panacea for companies facing litigation exposure, and offers a number of potential solutions to deter non-debtor defendants from becoming bankruptcy grifters.
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Corporate Governance Reform and the Sustainability Imperative The Yale Law Journal (IF 4.986) Pub Date : 2022-02-28 Christopher M. Bruner
Promoting sustainable corporate governance will require reforming features of the corporation that incentivize excessive risk-taking and cost externalization. This Feature critiques how prevailing theories cabin the debate and presents an alternative approach more conducive to reform, evaluating disclosure-based strategies and assessing initiatives that re-envision board composition and underlying
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Agency Control and Internally Binding Norms The Yale Law Journal (IF 4.986) Pub Date : 2022-02-28 Alexander Nabavi-Noori
Modern applications of the binding-norm test suggest that agencies cannot bind even low-level officials to internal guidance. This Note, however, finds that internal binding norms are common tools of bureaucratic supervision. In response, it proposes a new approach to judicial review of guidance that separates its internal and external effects.
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Fitting the MPC into a Reasons-Responsiveness Conception of Subjective Culpability The Yale Law Journal (IF 4.986) Pub Date : 2022-02-28 Gregory Antill
This Note compares the MPC’s mens rea regime with the “reasons-responsiveness” conception of culpability widespread among criminal law theorists. It argues that if the reasons-responsiveness account is correct, the MPC will often fail to track offenders’ relative culpability, resulting in disproportionate punishments both within and across grades of crimes.
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Mandatory Aggregation of Mass Tort Litigation in Bankruptcy The Yale Law Journal (IF 4.986) Pub Date : 2022-02-28 Ralph Brubaker
Nondebtor releases are the rotten core of the “bankruptcy grifter” phenomenon that Lindsey Simon’s article critiques. Such releases are an unconstitutional exercise of substantive common lawmaking by the federal courts, and they are not necessary for the bankruptcy process to facilitate efficient and fair aggregate settlements of mass tort litigation.
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In Search of Good Corporate Governance The Yale Law Journal (IF 4.986) Pub Date : 2022-01-31 Dorothy S. Lund
In this Forum Response, Dorothy Lund considers whether the “corporate governance gap” between large and small public companies is the product of harmful or beneficial forces, and in so doing, rejects the idea that there is a single governance framework that is optimal for all public companies.
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A Counter-History of First Amendment Neutrality The Yale Law Journal (IF 4.986) Pub Date : 2022-01-31 Genevieve Lakier
In The Emergence of Neutrality, Jud Campbell provocatively argues that courts only recently recognized the importance of neutrality to First Amendment law. In this Response I argue that this claim is wrong: that neutrality has always been important to free speech law, even if its meaning has shifted over time.
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The Corporate Governance Gap The Yale Law Journal (IF 4.986) Pub Date : 2022-01-31 Kobi Kastiel, Yaron Nili
This Article offers an empirical account of the differences in governance practices between large- and small-cap companies, resulting in what this Article terms the “Corporate Governance Gap.” Recognizing a disparity in the operation of driving forces that promote governance practices, the Article proposes policy reforms aimed at bridging this gap.
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The Emergence of Neutrality The Yale Law Journal (IF 4.986) Pub Date : 2022-01-31 Jud Campbell
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 jurisprudence.
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Writing About the Past That Made Us: Scholars, Civic Culture, and the American Present and Future The Yale Law Journal (IF 4.986) Pub Date : 2022-01-31 Annette Gordon-Reed
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.
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One Size Fits None: An Overdue Reform for Chapter 7 Trustees The Yale Law Journal (IF 4.986) Pub Date : 2022-01-31 Belisa Pang, Emile Shehada
Despite their differences, consumer and business Chapter 7 cases are administered by the same trustees under the same rules. We advance normative arguments against this one-size-fits-all approach, buttressed by novel empirical research. Two policy changes are appropriate: (1) trustee compensation should differ by case type, and (2) trustees should specialize.
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Fruit of the Racist Tree: A Super-Exclusionary Rule for Racist Policing Under California’s Racial Justice Act The Yale Law Journal (IF 4.986) Pub Date : 2022-01-31 Marnie Lowe
What would it take for a state to eliminate racial bias in policing? This Comment explores one intervention set forth in California’s new Racial Justice Act: a guarantee of charging or sentencing relief for anyone subjected to police racism during arrest or investigation.
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Unemployment Insurance for the Gig Economy The Yale Law Journal (IF 4.986) Pub Date : 2022-01-26 Benjamin Della Rocca
Historically, U.S. unemployment insurance has excluded workers lying outside the conventional employer/employee binary. That should change. This Essay argues for extending benefits to gig-economy workers, via structures fashioned after states’ existing unemployment programs. It grounds its argument in two philosophical traditions foundational to tax-law scholarship: liberal egalitarianism and utilitarianism
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Solidarity, Legitimacy, and the Janus Double Bind The Yale Law Journal (IF 4.986) Pub Date : 2022-01-26 J. Colin Bradley
Janus’s failure to recognize a state interest in labor organizing contained a twofold mistake. Organizing develops a culture of civic trust. In turn, civic trust is necessary for citizens to accept the sorts of accommodations raised by conscience-based exemptions claims—like Janus’s—that the state must legitimize.
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On “Confetti Regulation”: The Wrong Way to Regulate Gamified Investing The Yale Law Journal (IF 4.986) Pub Date : 2022-01-17 Kyle Langvardt, James Fallows Tierney
Robinhood and similar investment apps bear a disturbing resemblance to video slot machines. This kind of “gamified” product design drives investors to lose money by overtrading. But if regulators try to cure the problem by de-gamifying the software, they will pick a First Amendment fight that securities law cannot afford.
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Felon Re-Enfranchisement and the Problem of “Lost” Rights The Yale Law Journal (IF 4.986) Pub Date : 2022-01-14 Joshua M. Feinzig
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 cognizable interests in political participation, financial-repayment conditions are unconstitutional poll
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Biden’s Gambit: Advancing Racial Equity While Relying on a Race-Neutral Tax Code The Yale Law Journal (IF 4.986) Pub Date : 2021-11-28 Goldburn P. Maynard Jr.
This Essay analyzes ARPA’s major provisions to determine their potential impact on racial equity. It argues that the Biden Administration should do more to tackle racial wealth inequality and the structural issues in the tax code that allow the rich to benefit disproportionately from tax subsidies.
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The Overreach of Limits on “Legal Advice” The Yale Law Journal (IF 4.986) Pub Date : 2022-01-03 Lauren Sudeall
Nonlawyers, including court personnel, are typically prohibited from providing legal advice. But definitions of “legal advice” are unnecessarily broad, creating confusion, disadvantaging self-represented litigants, and possibly raising due-process concerns. This Essay argues for a narrower, more explicit definition of legal advice that advances, rather than undercuts, access to justice.
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The Ostensible (and, at Times, Actual) Virtue of Deference The Yale Law Journal (IF 4.986) Pub Date : 2021-11-30 Anthony O’Rourke
Rethinking Police Expertise reveals how litigators can use police officers’ assertions of expertise against them. This Response questions the value, however, of urging judges to treat police expertise as a “professional technology” as opposed to a “professional virtue.” Insisting on this conceptual distinction may weaken the article’s considerable normative potential.
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Disparate Limbo: How Administrative Law Erased Antidiscrimination The Yale Law Journal (IF 4.986) Pub Date : 2021-11-30 Cristina Isabel Ceballos, David Freeman Engstrom, Daniel E. Ho
Does administrative law have a racial blind spot? Ceballos, Engstrom, and Ho examine “disparate limbo”: how claims that agencies caused racial disparities have come to evade review under both antidiscrimination and administrative law, and how ignoring race may have helped build modern administrative law’s empire.
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Rethinking Police Expertise The Yale Law Journal (IF 4.986) Pub Date : 2021-11-30 Anna Lvovsky
Judicial reasoning about police expertise has toggled between two distinct conceptions of expertise itself: as a professional virtue or a professional technology. Taking stock of both views offers new strategies in a range of disputes about police misconduct. It also illuminates debates about expertise and deference beyond the criminal law.
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A Relational Theory of Data Governance The Yale Law Journal (IF 4.986) Pub Date : 2021-11-30 Salomé Viljoen
Data practices of powerful technology companies are aimed primarily at deriving population-level, relational insights, not individual insights specific to a data subject. To apprehend and adjudicate among the supra-individual legal interests that result from data relations necessitates far more public and collective (i.e., democratic) forms of governing data production.
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Judging the Fed The Yale Law Journal (IF 4.986) Pub Date : 2021-11-30 Steffi Ostrowski
Judicial review of the Federal Reserve is uncommon. But this may soon change: a Court skeptical of administrative governance is poised to collide with an increasingly interventionist Fed. This Note argues that any path forward must take seriously the Fed’s role in our economic system while acknowledging its democratic deficiencies.
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Introducing Independence to the Foreign Intelligence Surveillance Court The Yale Law Journal (IF 4.986) Pub Date : 2021-11-30 Simon Chin
The Foreign Intelligence Surveillance Court’s ex parte, in camera proceedings are in tension with the Article III values of transparency and adversarialism. This Note assesses the limited participation of outside amici curiae at the court and proposes a special advocate to serve as a permanent, independent adversary to the government.
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Revolutionizing Redistribution: Tax Credits and the American Rescue Plan The Yale Law Journal (IF 4.986) Pub Date : 2021-11-28 Ariel Jurow Kleiman
The American Rescue Plan Act temporarily altered refundable tax credits in 2021 to include previously excluded families and workers. These changes protect millions of households from being pushed into poverty by taxes. This Essay argues that Congress should build on these reforms to make refundable tax credits more protective.
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The American Rescue Plan and the Future of the Safety Net The Yale Law Journal (IF 4.986) Pub Date : 2021-11-28 Brian Galle
This Essay considers the lessons of the American Rescue Plan for design of the safety net, using unemployment insurance as a case study. It shows why UI failed and how to fix it, including how to provide benefits to part-time workers.
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Getting Beyond Ad Hoc Fiscal Federalism: A Proposal for a Default Federal Liquidity Facility for the States The Yale Law Journal (IF 4.986) Pub Date : 2021-11-28 Darien Shanske
Our current approach to state debt overcorrects for the problem that states might borrow too much. We can do better and aspects of the federal response to the pandemic illustrate how. The federal government should make forgiveable low-cost loans available to the states, but within limits to prevent moral hazard.
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Ordering Conduct Yet Evading Review: A Simple Step Toward Preserving Federal Supremacy The Yale Law Journal (IF 4.986) Pub Date : 2021-11-19 Georgina Yeomans
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 in such procedural trickery.
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Beyond the Public Square: Imagining Digital Democracy The Yale Law Journal (IF 4.986) Pub Date : 2021-11-16 Mary Anne Franks
To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic cliché of the unregulated public square and commit to the hard work of designing for democracy.
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Agonistic Privacy & Equitable Democracy The Yale Law Journal (IF 4.986) Pub Date : 2021-11-16 Scott Skinner-Thompson
Privacy protections play a vital role in disrupting surveillance-caused subordination and should be at the forefront of efforts to reform digital and physical public space. Robust privacy protections empower marginalized groups to safely participate, while increasing heterogeneity within the public sphere and enabling the healthy contestation of ideas.
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Platform Realism, Informational Inequality, and Section 230 Reform The Yale Law Journal (IF 4.986) Pub Date : 2021-11-16 Olivier Sylvain
Online companies bear few duties under law to tend to the discrimination that they facilitate or the disinformation that they deliver. Consumers and members of historically marginalized groups are accordingly the likeliest to be harmed. These companies should bear the same, if not more, responsibility to guard against such inequalities.
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Pandemic Hope for Chapter 11 Financing The Yale Law Journal (IF 4.986) Pub Date : 2021-11-10 David Skeel
The pandemic revealed that the increasing complexity of debtors’ capital structure could supply much-needed competition in the Chapter 11 financing market, as other inside lenders increasingly challenge a debtor’s favored inside lenders. After discussing the benefits of this surprising development, the Essay identifies several impediments and offers strategies for removing them.
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COVID-19 Debt and Bankruptcy Infrastructure The Yale Law Journal (IF 4.986) Pub Date : 2021-11-10 Robert K. Rasmussen
The COVID induced debt spike on corporate balance sheets portends a wave of future bankruptcy cases. Congress should act now to build up a bankruptcy infrastructure by requiring that every circuit create a “business bankruptcy panel” designed to administer the Chapter 11 filing of large companies. Recent Delaware caselaw would likely enforce a corporation’s precommitment to file in one of these venues
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Small Business Disaster Relief and Restructuring The Yale Law Journal (IF 4.986) Pub Date : 2021-11-10 Brook E. Gotberg
To assist small businesses in the wake of an exogenous shock, Congress should consider implementing a system of lending that models the financing provided to small business debtors in a bankruptcy proceeding. Such a system would be more targeted, effective, and fair than traditional government loans, but less stigmatizing than bankruptcy.
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Shocking Business Bankruptcy Law The Yale Law Journal (IF 4.986) Pub Date : 2021-11-10 Melissa B. Jacoby
The intersection of major crises and financial distress generates no shortage of stock stories. This Essay offers one more: how shocks can be used opportunistically in big Chapter 11 cases to unravel bankruptcy law, and to shift the system further away from the objective of responding to overindebtedness.
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J. Crew, Nine West, and the Complexities of Financial Distress The Yale Law Journal (IF 4.986) Pub Date : 2021-11-10 Kenneth Ayotte, Christina Scully
The law-and-economics literature assumes that omnisciently rational “sophisticated parties” write optimal contracts, making bankruptcy law unnecessary. Two case studies, J. Crew and Nine West, illustrate the limitations of this idealized model. We argue for a theory of debt contracting based in bounded rationality that recognizes bankruptcy’s inherent complexity.
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Chosen Family, Care, and the Workplace The Yale Law Journal (IF 4.986) Pub Date : 2021-11-05 Deborah A. Widiss
Although federal law offers, at best, unpaid time off work to care for family members with medical needs, recently enacted state laws guarantee paid leave. This Essay argues the laws are groundbreaking in their inclusion of nonmarital partners, extended family, and other chosen family, and it proposes strategies for effective implementation.
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The Case for Creative Pluralism in Adoption and Foster Care The Yale Law Journal (IF 4.986) Pub Date : 2021-11-05 Alexander Dushku
Religious and secular beliefs about marriage and sexuality are often in tension. Partisans on both sides commonly insist that public policy entirely reflect their views, which leads to perpetual conflict. This Essay advocates for pluralistic solutions to such conflicts, using an example from the context of adoption and foster care.
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Religious Exemptions and the Family The Yale Law Journal (IF 4.986) Pub Date : 2021-11-05 Louise Melling
This Essay highlights the threat claims for religious exemptions to antidiscrimination laws pose to the diverse family arrangements that now populate our society. It argues we should not abide efforts to thwart, undermine, and ultimately overturn advances in equality norms in the family based on religious belief.
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Ridding the Family-Law Canon of the Relics of Coverture: The Due Process Right to Alternative Fee Arrangements in Divorce The Yale Law Journal (IF 4.986) Pub Date : 2021-11-05 Zachary Potter
The prohibition on contingency fee arrangements with divorce lawyers is a relic of the coverture regime. It cannot withstand Due Process scrutiny because the supposed governmental interests it purports to advance—burdening access to the divorce process for economically vulnerable persons—are not legitimate governmental interests under modern constitutional jurisprudence.
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Unpacking Third-Party Standing The Yale Law Journal (IF 4.986) Pub Date : 2021-10-31 Curtis A. Bradley, Ernest A. Young
This Article “unpacks” the doctrine of third-party standing. First, it identifies true third-party standing problems by distinguishing them from first-party claims, largely by reference to the “zone of interests” concept. Second, it distinguishes among three types of parties invoking third-party standing: directly regulated parties, collaterally injured parties, and representative parties.
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Subordination and Separation of Powers The Yale Law Journal (IF 4.986) Pub Date : 2021-10-31 Matthew B. Lawrence
Liberty, accountability, and other values advanced by separation-of-powers tools such as the “power of the purse” come with real-world costs targeted at marginalized groups. Scholars and courts should account for such skewed impacts by including antisubordination among the values they consider in analyzing separation-of-powers questions.
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Recovering the Moral Economy Foundations of the Sherman Act The Yale Law Journal (IF 4.986) Pub Date : 2021-10-31 Sanjukta Paul
This Feature grounds a core prescription for antitrust law—to disperse economic coordination rights—in its “moral economy” origins, tracing a thread through the common law, nineteenth-century antimonopoly politics, and the legislative history of the Sherman Act. The normative thread traced here is interwoven with an argument about institutional roles.