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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.
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Reviving the Prophylactic VRA: Section 3, Purcell, and the New Vote Denial The Yale Law Journal (IF 4.986) Pub Date : 2023-03-31 David Herman
Given increasing threats to voting rights and an expansive Purcell doctrine, Section 3 of the Voting Rights Act is a vital but underused resource. To reinvigorate Section 3, this Note makes two observations: preclearance does not require intentional racial discrimination, and may be based on declaratory judgments, not just injunctions.
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Statutory Structure The Yale Law Journal (IF 4.986) Pub Date : 2023-03-31 Russell C. Bogue
Interpreting ambiguous statutory provisions in light of the “structure,” “scheme,” or “plan” of the statute is a popular, yet understudied, interpretive tool often deployed by the Supreme Court. This Note categorizes the various types of structural arguments the Court has used and evaluates their methodological compatibility with textualism and purposivism.
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The Illusory Promise of General Property Law The Yale Law Journal (IF 4.986) Pub Date : 2023-02-28 Maureen E. Brady
This Essay criticizes using “general” or federal property law to define constitutional rights, including protections against unlawful search and seizure. Federal property law is an ahistorical and indeterminate concept. Its ascendance in Takings Clause opinions illustrates its flaws and the risks it poses for beneficial variation in state property rules.
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The Fourth Amendment and General Law The Yale Law Journal (IF 4.986) Pub Date : 2023-02-28 Danielle D’Onfro, Daniel Epps
This Article contends that courts should interpret the Fourth Amendment by looking to “general law”—common-law rules under the control of no particular sovereign. This approach finds strong support in the Fourth Amendment’s text, doctrine, and historical background, and would protect the Amendment’s underlying values better than competing theories.
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The Antibody Patent Paradox The Yale Law Journal (IF 4.986) Pub Date : 2023-02-28 Mark A. Lemley, Jacob S. Sherkow
Shifts in patent law’s enablement and written description requirements make it impractical for patentees of antibody technologies to disclose and claim their inventions. We describe this as a doctrinal paradox and offer a solution that gives patentees the power to claim antibodies without giving them unlimited control over a market.
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Sex Equality’s Irreconcilable Differences The Yale Law Journal (IF 4.986) Pub Date : 2023-02-28 Courtney Megan Cahill
Sex equality assures us that laws based on real biological differences between the sexes are not sex stereotypes about the sexes. This Feature uses LGBTQ equality to show why sex equality is wrong: laws based on real differences are sex stereotypes, all the way down.
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Protecting Transgender Youth After Bostock: Sex Classification, Sex Stereotypes, and the Future of Equal Protection The Yale Law Journal (IF 4.986) Pub Date : 2023-02-28 Erik Fredericksen
This Note argues that Bostock v. Clayton County’s holding under Title VII—anti-LGBT discrimination is sex discrimination—applies under equal-protection analysis. It then combines Bostock with sex-stereotype reasoning to argue that recent laws and policies targeting transgender minors unconstitutionally rely on sex-based stereotypes—including that transgender minors are merely confused.
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The New Public Nuisance: Illegitimate and Dysfunctional The Yale Law Journal (IF 4.986) Pub Date : 2023-02-20 Thomas W. Merrill
The new public nuisance is illegitimate because it violates the rule of law and is inconsistent with norms of democratic accountability. It also ignores the dangers of over- and under-deterrence associated with joint ventures between prosecutors and personal-injury lawyers seeking massive damages from deep-pocketed defendants.
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The Power of Tribal Courts in Ongoing Environmental-Tort Litigation The Yale Law Journal (IF 4.986) Pub Date : 2023-02-17 Helia Bidad
The groundbreaking environmental tort-litigation across the country has overlooked the potential role of tribal courts. Using an original empirical analysis of over 300 cases, this Essay outlines tribal-court jurisdiction over environmental-tort cases in the wake of attacks on tribal sovereignty in the form of tribal jurisdiction stripping.
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Remand Without Vacatur in a Changing Environment The Yale Law Journal (IF 4.986) Pub Date : 2023-02-17 Andrew Slottje
A court reviewing unlawful agency action, in deciding whether to “remand without vacatur,” considers the two factors of legal deficiency and undue disruption. Surveying diverging approaches to balancing these factors in environmental cases, this Essay proposes a reframing of the test that draws on parallels with preliminary relief.
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Water Rights of Public Domain Allotments The Yale Law Journal (IF 4.986) Pub Date : 2023-02-17 Erin Rubin
This Article argues that public domain allotments (PDAs) are Indian Country and entitled to federal reserved water rights. By comparing federal statutes creating allotments and using the Indian Canons of Construction, the Article uses California as a case study to show that PDAs have rights to water outside state systems.
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Pedagogy of Prefiguration The Yale Law Journal (IF 4.986) Pub Date : 2023-02-14 Sameer M. Ashar
Social movements are engaged in prefigurative thinking, outside of the terms and constraints of our present moment of global climate emergency and democratic crisis. This Essay asks how we may teach ourselves—lawyers and law students—to work with social-movement organizations on projects that prefigure utopian social arrangements.
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General Citizenship Rights The Yale Law Journal (IF 4.986) Pub Date : 2023-01-31 Jud Campbell
This Article explores ideas of citizenship rights from the Revolutionary Era through Reconstruction and challenges the conventional view that citizenship rights came in only two sets—state and national. It argues that Americans also widely recognized general citizenship rights, reflecting an older constellation of ideas about federalism and fundamental law.
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The Perils and Promise of Public Nuisance The Yale Law Journal (IF 4.986) Pub Date : 2023-01-31 Leslie Kendrick
Public nuisance is a puzzle: both a medieval action and a contemporary force in large-scale opioid settlements, it has provoked historical, formalist, and institutional objections. Close examination reveals, however, that public nuisance adheres to the common law’s accepted bounds and can play an important role in today’s regulatory landscape.
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Native Voting Power: Enhancing Tribal Sovereignty in Federal Elections The Yale Law Journal (IF 4.986) Pub Date : 2023-01-31 Noelle N. Wyman
Restrictive voting laws not only infringe upon the rights of individual Native American citizens but also denigrate tribal sovereignty. This Note argues that to fulfill its trust obligation to tribes, Congress should require state election officials to form compacts with tribes governing the administration of federal elections.
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Familial-Status Discrimination: A New Frontier in Fair Housing Act Litigation The Yale Law Journal (IF 4.986) Pub Date : 2023-01-31 Rubin Danberg Biggs, Patrick Holland
A key exception to the Fair Housing Act’s prohibition of familial-status discrimination has allowed municipalities to weaponize senior-only housing to block the construction of affordable housing and perpetuate segregation. This Note documents this practice, offers a framework for advocates to challenge it through litigation, and proposes policy solutions.
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Seeking Justice: The State of Transnational Corporate Accountability The Yale Law Journal (IF 4.986) Pub Date : 2022-12-22 Charity Ryerson, Dean Pinkert, Avery Kelly
As communities harmed by multinational companies traverse the globe in search of remedy, they face diverse legal systems that are historically ill-equipped to meet their needs. This article explores the current legal context for such efforts in Global North jurisdictions and suggests some new and underutilized avenues for recourse.
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Living with History: Will the Alien Tort Statute Become a Badge of Shame or Badge of Honor? The Yale Law Journal (IF 4.986) Pub Date : 2022-12-22
This Essay considers the 2021 Supreme Court ruling in Nestlé USA, Inc. v. Doe to interrogate the importance of U.S. nationality in future Alien Tort Statute jurisdictional analysis, offering that the Supreme Court can still bring ATS jurisprudence back in line with history on the question of U.S.-actor liability.
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Utilizing Foreign Legal Assistance Actions to Promote Corporate Accountability for Human-Rights Abuses The Yale Law Journal (IF 4.986) Pub Date : 2022-12-22
This article discusses some of the challenges that may arise during transnational human-rights litigation against multinational corporations in U.S. courts. To complement these efforts, the author suggests utilizing the foreign legal assistance statute to strengthen human-rights cases promoting corporate accountability abroad.
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Interconstitutionalism The Yale Law Journal (IF 4.986) Pub Date : 2022-11-30 Jason Mazzone, Cem Tecimer
Drawing on practice and convention from America and abroad, this Article documents the surprisingly robust role that past constitutions play in the interpretation of extant constitutions, and assesses what this pervasive practice tells us about theories of constitutional meaning, processes of constitutional drafting, and exercises of popular sovereignty.
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Barbarians Inside the Gates: Raiders, Activists, and the Risk of Mistargeting The Yale Law Journal (IF 4.986) Pub Date : 2022-11-30 Zohar Goshen, Reilly S. Steel
This Article argues that the conventional wisdom about corporate raiders and activist hedge funds—lambasting raiders and praising activists—is wrong. The authors explain how activists are more likely than raiders to engage in mistargeting, implying they are also more likely to destroy value and, ultimately, social wealth.
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What We Ask of Law The Yale Law Journal (IF 4.986) Pub Date : 2022-11-30 Aziz Z. Huq
This Book Review asks what comprises a well-functioning legal system in light of new evidence of how law operated across a wide historical panorama. Such contextualization has implications for a sound working definition of law, understanding law’s relation to the rule of law, and law’s role in emancipatory projects.
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The Neglected Port Preference Clause and the Jones Act The Yale Law Journal (IF 4.986) Pub Date : 2022-11-30 Sam Heavenrich
The Constitution’s Port Preference Clause restricts Congress’s ability to favor “the Ports of one State over those of another.” This Note argues that the Jones Act, which prohibits foreign vessels from transporting goods between U.S. ports, violates the Clause by favoring West Coast ports over those of Alaska and Hawaii.
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Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine The Yale Law Journal (IF 4.986) Pub Date : 2022-11-21 Thomas B. Griffith, Haley N. Proctor
This Essay examines the major questions doctrine’s relationship to the administrative-law jurisprudence of a man who helped develop it: Justice Breyer. Born of Breyer’s proposal to bring nuance into judicial review of agency action, the doctrine has taken on a life of its own much different than what he imagined.
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The Jurisprudence of “Degree and Difference”: Justice Breyer and Judicial Deference The Yale Law Journal (IF 4.986) Pub Date : 2022-11-21 Lisa Schultz Bressman
Justice Stephen Breyer’s context-specific approach to judicial deference has prevailed in Supreme Court’s decisions to an underappreciated extent. Now the conservative majority is moving toward a no-deference rule. But they are unlikely to ultimately succeed because institutional pressure that then-Judge Breyer observed will drive courts to nevertheless consider context-based factors.
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The Binary Executive The Yale Law Journal (IF 4.986) Pub Date : 2022-11-21 Blake Emerson
The Supreme Court is inventing a new brand of administrative law, in which the President holds all executive power, but the Court restricts and countermands agencies’ policymaking discretion. The Court thus takes a share of the executive power it assigns exclusively to the President. The result is constitutionally unsound.
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Transformative Immigration Lawyering The Yale Law Journal (IF 4.986) Pub Date : 2022-11-18 Jayesh Rathod
Two deep-seated tendencies in U.S. immigration law are obstructing the expansive reforms long sought by movement actors: incrementalism and path dependence. This Essay recommends that law clinics counter these forces by setting ambitious goals for structural change and by equipping students with knowledge and skills needed for transformative lawyering.
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Radical Early Defense Against Family Policing The Yale Law Journal (IF 4.986) Pub Date : 2022-11-18 Julia Hernandez, Tarek Z. Ismail
What possibilities arise when law-school clinics experiment in challenging a well-oiled system at its untouched margins, within a collective, community-based movement whose lodestar is abolition? This Essay examines this question in the family-policing context and articulates a radical vision of family defense in subjudicial venues.
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Who’s Afraid of Carson v. Makin? The Yale Law Journal (IF 4.986) Pub Date : 2022-11-17 Aaron Tang
Carson v. Makin was yet another defeat for progressives in a brutal term. But just how bad was it? This Essay examines how Democratic lawmakers in Maine have already neutralized the ruling, teaching important lessons about how concerned Americans can best resist the Court’s conservative supermajority in the years ahead.
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The Once and Future Promise of Religious Schools for Poor and Minority Students The Yale Law Journal (IF 4.986) Pub Date : 2022-11-17
When Carson v. Makin allowed religious schools participation in educational-choice programs, the public-school establishment predicted dire results for marginalized students. This Essay responds to that prediction, exploring religious schools’ historical importance to marginalized students, the public-school establishment’s longstanding hostility to religious schools, and the establishment’s own role
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When Religion and the Public-Education Mission Collide The Yale Law Journal (IF 4.986) Pub Date : 2022-11-17
Recently, the Supreme Court has chosen education as the primary stomping ground for rewriting Free Exercise Clause doctrine. It has framed education policies that prevented public funds from promoting religious indoctrination as discrimination. In the process, it has created a new victim—educational equity and adequacy for traditionally disadvantaged students.
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Racialized Religious School Segregation The Yale Law Journal (IF 4.986) Pub Date : 2022-11-17
Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.
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Partisanship, Remedies, and the Rule of Law The Yale Law Journal (IF 4.986) Pub Date : 2022-11-15 Aziz Z. Huq
The essay responds to Don R. Willett and Aaron Gordon’s Review of The Collapse of Constitutional Remedies. I show that Willett and Gordon inaccurately describe Collapse’s main argument; offer an internally inconsistent critique; and fail to understand key terms such as judicial independence and the rule of law.
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Making the Temporary Permanent: Public Space in a Postpandemic World The Yale Law Journal (IF 4.986) Pub Date : 2022-11-07 Sarah Schindler
Local governments are deciding whether to retain modifications to the built environment implemented during the pandemic. While these sidewalk and street reconfigurations provide health and economic benefits, they also harm already-underrepresented community members. This Essay weighs these positive and negative implications to enable informed decision-making and create more equitable spaces.
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Can Affordable Housing Be a Safety Net? Lessons from a Pandemic The Yale Law Journal (IF 4.986) Pub Date : 2022-11-07 Noah M. Kazis
COVID-19 posed an unprecedented challenge to housing stability. This Essay argues that the pandemic exposed the mismatch of affordable-housing programs (including housing voucher programs, tax credits, and emergency rental assistance) to short-term crises, whether personal or nationwide. Yet the pandemic also helped reveal what building a housing safety net requires.
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Infrastructure Sharing in Cities The Yale Law Journal (IF 4.986) Pub Date : 2022-11-07 Sheila R. Foster
This Essay reflects on the ways that cities engaged in “infrastructure sharing” during the pandemic, and the implications for the potential of cities to address infrastructure inequity. The Essay argues that while cities found creative ways to repurpose public spaces, more can be done to repurpose their proprietary assets.
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Electoral Adequacy The Yale Law Journal (IF 4.986) Pub Date : 2022-11-02 Joshua S. Sellers
This Essay considers the status of election law, as an academic field, and advocates an interdisciplinary research program oriented around the concept of electoral adequacy. Electoral adequacy’s premise is that states are obligated to provide a minimal set of entitlements, or a baseline level of election services, to all voters.
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Election Law and Election Subversion The Yale Law Journal (IF 4.986) Pub Date : 2022-11-02 Lisa Marshall Manheim
The threat of election subversion has forced scholars into a rule-of-law pivot. This Essay identifies three prescriptive approaches dominating this discourse and explores their fundamental advantages and limitations. It then explains how the field of election law must further expand to respond to the multidimensional challenges posed by election subversion.
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The Majoritarian Difficulty The Yale Law Journal (IF 4.986) Pub Date : 2022-10-31 Bernadette Meyler
Many recent Supreme Court attacks on the administrative state have been rooted in an asserted effort to increase democratic accountability, or accountability to elected officials, whether the President or Congress. This approach neglects how the Constitution makes available a broader account of democracy that furnishes support for the administrative state.
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The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State The Yale Law Journal (IF 4.986) Pub Date : 2022-10-31 Daniel E. Walters
Scholars have long debated whether the administrative state is a democratic institution. This Article offers a new framework for analyzing this question—one drawn from agonistic democratic theory. It argues that agonism provides new grounding for the legitimacy of administrative agencies while also pointing to new horizons for reform.
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Open Access, Interoperability, and DTCC’s Unexpected Path to Monopoly The Yale Law Journal (IF 4.986) Pub Date : 2022-10-31 Dan Awrey, Joshua C. Macey
This Article argues that open-access and interoperability requirements helped the Depository Trust & Clearing Corporation monopolize U.S. securities clearing and depository markets. DTCC’s path to monopoly offers a cautionary tale for policymakers seeking to use open access and interoperability to curb industry consolidation in Big Tech, social media, and elsewhere.