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Hayek Goes to Family Court The Yale Law Journal (IF 4.986) Pub Date : 2024-03-13 Jackson Neagli
Applying Hayek’s theory of law and liberty to contemporary American family law, this Essay concludes that family-law scholars—especially those undertaking distributional analyses—would benefit from greater attention to the Hayekian values of predictability, adaptation, and equal application.
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Facilitating Future Workforce Participation for Stay-at-Home Parents: Mitigating the Career Costs of Parenthood The Yale Law Journal (IF 4.986) Pub Date : 2024-03-13 Isabella Soparkar
Current policies help parents stay in the workforce after having children. But what about the quarter of American mothers who choose to become stay-at-home moms, then later face employment obstacles? This Essay proposes expanding worker opportunity tax credits and Title VII to help stay-at-home parents return to work when ready.
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The Insidious War Powers Status Quo The Yale Law Journal (IF 4.986) Pub Date : 2024-03-08 Rebecca Ingber
This Essay highlights two features of modern war powers that hide from public view decisions that take the country to war: the executive branch’s exploitation of interpretive ambiguity to defend unilateral presidential authority, and its dispersal of the power to use force to the outer limbs of the bureaucracy.
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War Powers Reform: A Skeptical View The Yale Law Journal (IF 4.986) Pub Date : 2024-03-08 Matthew C. Waxman
Debates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reformists suppose, and there are ways to improve Congress’s political checking without substantial legal reform.
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The Unabridged Fifteenth Amendment The Yale Law Journal (IF 4.986) Pub Date : 2024-02-29 Travis Crum
The Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the VRA. This Article completes the historical record, providing an unabridged accounting of the Fifteenth Amendment’s adoption.
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Banking and Antitrust The Yale Law Journal (IF 4.986) Pub Date : 2024-02-29 Saule T. Omarova, Graham S. Steele
This Essay seeks to recover the deeply rooted connection between U.S. banking law and antitrust. It reconceptualizes banking law as a sector-specific antimonopoly regime that imposes multiple structural constraints on publicly subsidized banks’ ability to abuse their power over the supply and allocation of financial resources in a democratic economy.
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Churching NIMBYs: Creating Affordable Housing on Church Property The Yale Law Journal (IF 4.986) Pub Date : 2024-02-29 Patrick E. Reidy, c.s.c.
Faith communities across the United States are creating affordable housing on church property. Where sincerely held religious belief inspires their efforts, faith communities can assert religious liberty protections against land-use decisions that obstruct denser, multifamily developments. Legislative reforms can help them overcome the regulatory and financial hurdles of adaptive reuse.
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“Trying to Save the White Man’s Soul”: Perpetually Convergent Interests and Racial Subjugation The Yale Law Journal (IF 4.986) Pub Date : 2024-02-29 M. Broderick Johnson
The assumption that remedying racial inequality benefits only people of color while being costly to White people underlies many Supreme Court decisions. However, White people benefit spiritually and democratically from racial equality. Recognizing these benefits warrants a new theory of interest convergence and offers a promising path toward racial equality.
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What It Takes to Write Statutes that Hold the Firearms Industry Accountable to Civil Justice The Yale Law Journal (IF 4.986) Pub Date : 2024-02-27 Heidi Li Feldman
This Essay defends statutes creating public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. Such laws are predicate statutes under PLCAA and do not infringe the Second Amendment.
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An Expansive View of “Federal Financial Assistance” The Yale Law Journal (IF 4.986) Pub Date : 2024-02-26 Shariful Khan
Thanks to an ambiguity in civil-rights statutes passed under Congress’s spending power, many programs enjoy ample financial benefits while avoiding the requirements of federal antidiscrimination laws. This Essay argues that the remedy lies in a statutory reading that aligns with the expansive nature of the civil-rights statutes themselves.
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What Are Federal Corruption Prosecutions for? The Yale Law Journal (IF 4.986) Pub Date : 2024-02-16 Lauren M. Ouziel
This Essay considers the role of prosecutors in the Supreme Court’s decades-long contraction of public corruption law. It examines how federal prosecutors’ reliance on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption, and considers how prosecutors might adjust their approach.
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Demoralizing Elite Fraud The Yale Law Journal (IF 4.986) Pub Date : 2024-02-16 Zephyr Teachout
The Supreme Court’s effort to avoid interpreting morally weighted terms like “fraud” and “honest services” has led it to make bad and confusing law in wire-fraud cases. These cases, unlike Citizens United and its ilk, are unanimous, joining liberal and conservative Justices, reflecting a shared skepticism about anticorruption law.
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The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco The Yale Law Journal (IF 4.986) Pub Date : 2024-02-16 Ciara Torres-Spelliscy
In Percoco, the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to make prosecuting corrupt campaign managers arduous.
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Against Bankruptcy: Public Litigation Values Versus the Endless Quest for Global Peace in Mass Litigation The Yale Law Journal (IF 4.986) Pub Date : 2024-02-09
For the first time in years, in the Purdue Pharma opioids litigation, the Court is reviewing an unorthodox bankruptcy maneuver aimed at securing global settlement. This Essay critiques corporate defendants’ increasingly common turn to bankruptcy to shut down, or avoid altogether, complex civil litigation and the public goods it generates.
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“We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws The Yale Law Journal (IF 4.986) Pub Date : 2024-01-29 David Cole
In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.
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Establishment as Tradition The Yale Law Journal (IF 4.986) Pub Date : 2023-12-04
Traditionalism holds that enduring practices are the presumptive determinants of constitutional meaning and law. This Essay examines two questions: Why has traditionalism had special salience in interpreting the Establishment Clause? And is traditionalism more disposition or mood than constitutional theory, more a matter of the heart than of the head?
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Freedom for Religion The Yale Law Journal (IF 4.986) Pub Date : 2023-12-04 Michael Stokes Paulsen
The First Amendment’s religious-freedom provisions are best understood as protecting “freedom for religion”—religious liberty for the benefit of religion, for generous protection of its free exercise by individuals and groups, and for the autonomy of religious institutions. The Supreme Court’s most recent decisions appear headed in that direction.
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Replacing Smith The Yale Law Journal (IF 4.986) Pub Date : 2023-12-04 Stephanie H. Barclay
As the Supreme Court has sought to ground more of its constitutional jurisprudence in original understanding, it has signaled an interest in revisiting aspects of Employment Division v. Smith. This Essay assesses potential replacement doctrines and defends a historically grounded version of strict scrutiny that does not require judicial balancing.
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The End of Asylum Redux and the Role of Law School Clinics The Yale Law Journal (IF 4.986) Pub Date : 2023-12-04 Elora Mukherjee
The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then identifies emerging opportunities for law school clinics to address these new challenges, including by serving asylum seekers south of the U.S.-Mexico border.
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Deplatforming The Yale Law Journal (IF 4.986) Pub Date : 2023-11-30
This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. It shows that the tension between service and exclusion is endemic to common carriers, utilities, and other infrastructural services, including technology platforms, and that the American tradition has favored reasonable deplatforming.
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In Loco Reipublicae The Yale Law Journal (IF 4.986) Pub Date : 2023-11-30 Anne C. Dailey
This Article proposes a new framework for children in constitutional law that recognizes children’s rights as developing citizens and parents’ duties to safeguard those rights. An examination of children’s First Amendment right to access ideas illustrates parents’ duty to ensure children are exposed to information critical to their democratic citizenship.
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Practice-Based Constitutional Theories The Yale Law Journal (IF 4.986) Pub Date : 2023-11-30 J. Joel Alicea
This Feature provides the first full-length and most in-depth analysis of practice-based constitutional theories to date. It identifies and examines the primary justifications offered for such theories and shows why they are insufficient, on their own terms, to justify conforming to our social practices.
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Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge The Yale Law Journal (IF 4.986) Pub Date : 2023-11-30 Ryanne Bamieh
In Bearden v. Georgia, the Supreme Court held a defendant cannot be imprisoned for failure to pay a fine they could not afford. Yet, many defendants remain incarcerated because they cannot pay for Electronic Monitoring. This Comment seeks to remedy that disparity by applying Bearden to Electronic Monitoring requirements.
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De-judicialization Strategies The Yale Law Journal (IF 4.986) Pub Date : 2023-11-21 Mila Versteeg, Emily Zackin
Constitutions have long been understood to empower courts. We argue, however, that constitutions can also be used to de-judicialize politics. We focus on the de-judicialization strategy of adding detailed provisions to U.S. state constitutions, and demonstrate that it has been employed throughout U.S. history and is still in use today.
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Judging Debt: How Judges’ Practices in Consumer-Credit Court Undermine Procedural Justice The Yale Law Journal (IF 4.986) Pub Date : 2023-11-21 Nina Lea Oishi
This Essay draws from on-the-ground interviews and procedural-justice theory to analyze judging practices in debt-collection courts. Current practices undermine courts’ fairness and legitimacy. This Essay argues that courts must prioritize procedural justice by adopting judging practices that consider unrepresented litigants’ circumstances and require a more active judicial role.
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Remedies and Incentives in Presidential Removal Cases The Yale Law Journal (IF 4.986) Pub Date : 2023-11-21 Eli Nachmany
In Separation-of-Powers Avoidance, Z. Payvand Ahdout reconceptualizes a bevy of separation-of-powers precedents as judicial avoidance. But one of the cases she cites as a foil—Seila Law LLC v. Consumer Financial Protection Bureau—is a curious fit. The removal cases are tough to categorize in the separation-of-powers corpus.
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The Continued (In)visibility of Cyber Gender Abuse The Yale Law Journal (IF 4.986) Pub Date : 2023-11-22 Danielle Keats Citron
This Essay highlights the continued invisibility of cyber gender abuse. The Supreme Court in Counterman v. Colorado regrettably exacerbated this problem. Now is time to reignite the discussion around cyber gender abuse, recognize the profound harms it causes, and pursue a reform agenda to combat it.
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Navigating Between “Politics as Usual” and Sacks of Cash The Yale Law Journal (IF 4.986) Pub Date : 2023-11-15 Daniel Richman
Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments.
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State Implementation of the Electoral Count Reform Act and the Mitigation of Election-Subversion Risk in 2024 and Beyond The Yale Law Journal (IF 4.986) Pub Date : 2023-11-15 Kate Hamilton
The ECRA is a major step toward preventing future election subversion. But since states and localities administer elections, its success depends on state compliance. This Essay details how states should update their election codes ahead of the 2024 elections to guarantee that the new law lives up to its promise.
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The Right to Amend State Constitutions The Yale Law Journal (IF 4.986) Pub Date : 2023-11-10 Jessica Bulman-Pozen, Miriam Seifter
This Essay explores the people’s right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.
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Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It The Yale Law Journal (IF 4.986) Pub Date : 2023-11-06 Aaron Tang
Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court reconsiders Dobbs v. Jackson Women’s Health Organization, it will find an opinion whose historical errors dwarf those in Bowers.
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The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation The Yale Law Journal (IF 4.986) Pub Date : 2023-11-06 Reva B. Siegel
In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay traces the method’s spread, evolution, and justifications through decades of debate about originalism, history and tradition, and “levels of generality.”
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The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition The Yale Law Journal (IF 4.986) Pub Date : 2023-11-06 Mary Ziegler
By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.
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Base Constitutional Communities: Lessons from Liberation Theology for Democratic Constitutionalism The Yale Law Journal (IF 4.986) Pub Date : 2023-10-31 Benjamin P. Marcus
Liberation theologians advocate for lay interpretation of the Bible in base ecclesial communities. Proponents of democratic constitutionalism should adapt the base-ecclesial-community model to the constitutional context. By participating in base constitutional communities, Americans can play a direct role in constitutional interpretation, thereby improving the democratic legitimacy of constitutional
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Deciphering the Commander-in-Chief Clause The Yale Law Journal (IF 4.986) Pub Date : 2023-10-31 Saikrishna B. Prakash
At the Founding, commanders in chief (CINCs) enjoyed neither sole nor supreme military authority, each military branch having many chief commanders. Thus, most presidential authority over the military stemmed from the rest of Article II, not the CINC Clause. Consequently, Congress enjoys sweeping authority over the military and its operations.
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Originalism-by-Analogy and Second Amendment Adjudication The Yale Law Journal (IF 4.986) Pub Date : 2023-10-31 Joseph Blocher, Eric Ruben
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced a novel historical-analogical approach to constitutional decisionmaking. The Court sought to constrain judicial discretion, but Bruen’s originalism-by-analogy has enabled judicial subjectivity, obfuscation, and unpredictability. This Article describes Bruen’s methodology, identifies its challenges, and offers solutions.
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Policing Protest: Speech, Space, Crime, and the Jury The Yale Law Journal (IF 4.986) Pub Date : 2023-10-31 Jenny E. Carroll
Speech can catalyze reform, particularly for marginalized speakers. Yet, criminal law regularly curtails speech rights by regulating access to spaces where speech occurs. This Feature (1) argues that, sometimes, presence in such spaces is the message and (2) proposes a First Amendment defense grounded in communities’ own values.
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Base Constitutional Communities: Lessons from Liberation Theology for Democratic Constitutionalism The Yale Law Journal (IF 4.986) Pub Date : 2023-10-31
Liberation theologians advocate for lay interpretation of the Bible in base ecclesial communities. Proponents of democratic constitutionalism should adapt the base-ecclesial-community model to the constitutional context. By participating in base constitutional communities, Americans can play a direct role in constitutional interpretation, thereby improving the democratic legitimacy of constitutional
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The Antimonopoly Presidency The Yale Law Journal (IF 4.986) Pub Date : 2023-10-31 Daniel Backman
This Note traces the separation of powers in U.S. antimonopoly law—a division of authority that arose after the National Industrial Recovery Act failed in 1935 and that the Biden Administration is attempting to reconfigure today. To succeed, a revived antimonopoly presidency must incorporate the lessons of the NIRA’s history.
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Opaque Capital and Mass-Tort Financing The Yale Law Journal (IF 4.986) Pub Date : 2023-10-31 Samir D. Parikh
Mass-tort cases have grown in scale and created escalating resource demands. Enter opaque capital: aggressive financiers who offer attorneys and plaintiffs access to capital. The prospect of leveling the playing field is alluring. But these financiers will never be passive partners. Opaque capital is moving into mass-tort financing to dictate outcomes.
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Abolitionist Prison Litigation The Yale Law Journal (IF 4.986) Pub Date : 2023-10-20 Molly Petchenik
There has long been a perceived tension between abolition and prison-conditions litigation. This piece offers a path forward for such litigation that is consistent with abolitionist goals. Drawing from experience with Texas state prisons, the piece proposes a framework for litigating prison understaffing that advances the project of abolition.
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Separation-of-Powers Avoidance The Yale Law Journal (IF 4.986) Pub Date : 2023-06-30 Z. Payvand Ahdout
Federal judges are not mere arbiters of the separation of powers. Whenever they adjudicate cases, judicial power is implicated. This Article documents how this phenomenon impacts doctrine concerning the structural constitution and contends that we ought to be wary when this doctrine travels outside the courtroom.
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Judicial Legitimacy and Federal Judicial Design: Managing Integrity and Autochthony The Yale Law Journal (IF 4.986) Pub Date : 2023-06-30 Gabrielle Appleby, Erin F. Delaney
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 management, construct and reconstruct the integrity-autochthony balance.
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Non-Reformist Reforms and Struggles over Life, Death, and Democracy The Yale Law Journal (IF 4.986) Pub Date : 2023-06-30 Amna A. Akbar
This Feature examines the turn of left social movements to “non-reformist reforms” as a framework for reconceiving reform: not as an end but within struggles to reconstitute the terms of life, death, and democracy.
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COVID-19’s New Cosmopolitanism? Structural Considerations for the Proposed Pandemic Treaty The Yale Law Journal (IF 4.986) Pub Date : 2023-06-30 Laura Hallas
This Note examines the World Health Organization’s current efforts to create a novel pandemic treaty as a potential turning point in global health law. COVID-19 shocked the status quo, but this Note argues that normative shift effectuated through specific treaty structures could ensure the world does better in another pandemic.
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The Modern State and the Rise of the Business Corporation The Yale Law Journal (IF 4.986) Pub Date : 2023-05-31 Taisu Zhang, John D. Morley
This Article argues that the rise of the modern state was a necessary condition for the rise of the business corporation. Corporate technologies require the support of a powerful state with the geographical reach, administrative power, and legal capacity necessary to enforce the law uniformly among a corporation’s various owners.
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The Weaponization of Attorney’s Fees in an Age of Constitutional Warfare The Yale Law Journal (IF 4.986) Pub Date : 2023-05-31 Rebecca Aviel, Wiley Kersh
States are using the threat of catastrophic, one-sided fee awards to evade judicial review in controversial areas like abortion and gun control. Litigants challenging such laws—and their attorneys—face liability for the opposing party’s legal fees, while the state and its ideological allies bear no such risk.
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The Critical Racialization of Parents’ Rights The Yale Law Journal (IF 4.986) Pub Date : 2023-05-31 LaToya Baldwin Clark
The anti-CRT movement is intertwined with the trend toward parents’ rights, which complains that official educational policies usurp fundamental parental rights. This Feature shows how these “twin” movements against CRT and for parents’ rights center White parents’ rights and the protection of White children for the benefit of White supremacy.
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Legislative Constitutionalism and Federal Indian Law The Yale Law Journal (IF 4.986) Pub Date : 2023-05-31 Maggie Blackhawk
This Feature offers alternative strategies and visions for a less court-centered constitutionalism with a case study of federal Indian law and American colonialism—a case study that places not only Congress, but the philosophies and agency of Native people and nations at the center of our constitutional law and history.
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The Anatomy of Social Movement Litigation The Yale Law Journal (IF 4.986) Pub Date : 2023-05-31 Gregory Briker
This Note argues that particular elements of the litigation process offer social movement activists distinctive opportunities to draw extralegal benefits from legal action. These benefits, however, are enabled and constrained by the procedural rules and norms that structure litigation itself.
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The Accountable Bureaucrat The Yale Law Journal (IF 4.986) Pub Date : 2023-04-30 Anya Bernstein, Cristina Rodríguez
An elected leader’s control may seem essential to bureaucratic accountability. But the administrative state itself better secures accountability’s core values. As this empirical study shows, complementarity between civil servants and political appointees; officials’ scrutiny of each other’s work; and constant interaction with affected publics all promote deliberation, inclusivity, and responsiveness
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Family Law for the One-Hundred-Year Life The Yale Law Journal (IF 4.986) Pub Date : 2023-04-30 Naomi Cahn, Clare Huntington, Elizabeth Scott
Family law is failing older adults, offering neither the family forms older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these problems. This Article responds to these challenges by proposing family law reform for our aging society.
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The Adjudicative State The Yale Law Journal (IF 4.986) Pub Date : 2023-04-30 Adam B. Cox, Emma Kaufman
This Feature identifies a foundational problem in modern administrative law. It argues that the Supreme Court’s dual commitments to unitary executive theory and separation-of-powers literalism are in deep conflict when it comes to agency courts. Recognizing this conflict advances debates about how the Roberts Court is transforming the administrative state.
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Antisubordinating the Second Amendment The Yale Law Journal (IF 4.986) Pub Date : 2023-04-30 Danny Y. Li
Racial-justice claims have played an enduring role in the movement and jurisprudential history of the contemporary Second Amendment. This Note argues that, far from a source of equal freedom, our modern expansionist Second Amendment—which reasons in the register of history and tradition—reinforces conditions of racial subordination.
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Judicial Bypass and Parental Rights After Dobbs The Yale Law Journal (IF 4.986) Pub Date : 2023-04-30 Jessica Quinter, Caroline Markowitz
This Note explores the status of judicial bypass of parental-involvement laws for abortion, historically mandated to balance minors’ right to abortion and their parent’s right to direct their upbringing. We argue that, even after Dobbs, judicial bypass is legally supported and consistent with a proper understanding of parental rights.
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Racial Myopia in [Family] Law The Yale Law Journal (IF 4.986) Pub Date : 2023-04-30 Jessica Dixon Weaver
Racial myopia in law is a complex phenomenon that centers white identity as the standard. A critique of the Article Family Law for the One-Hundred-Year Life, this Response presents a concrete framework and clarion call for all scholars to address legal issues in a racially inclusive way.
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The Constitution as a Source of Remedial Law The Yale Law Journal (IF 4.986) Pub Date : 2023-03-31 Carlos M. Vázquez
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 in the Supremacy Clause.
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Equity’s Constitutional Source The Yale Law Journal (IF 4.986) Pub Date : 2023-03-31 Owen W. Gallogly
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, statute-based equity jurisprudence permits.
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Coordinated Rulemaking and Cooperative Federalism’s Administrative Law The Yale Law Journal (IF 4.986) Pub Date : 2023-03-31 Bridget A. Fahey
Distilling patterns across cooperative federalism programs, this Article uncovers the distinctive cross-governmental administrative law—and the unusual rulemaking it facilitates—in our most consequential federal-state collaborations.
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After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions The Yale Law Journal (IF 4.986) Pub Date : 2023-03-31 Diana S. Reddy
Within the post-New Deal constitutional framework, unions were categorized as engaging in commercial activity, rather than advancing inherently normative claims about justice at work. This Feature argues that this choice, what I call the law of apolitical economy, continues to shape how we understand unions—and much more—today.