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Full-Text Articles in Law

Review Of Cathleen Kaveny, Prophecy Without Contempt: Religious Discourse In The Public Square, Andrew Forsyth Oct 2017

Review Of Cathleen Kaveny, Prophecy Without Contempt: Religious Discourse In The Public Square, Andrew Forsyth

Yale Journal of Law & the Humanities

Then Jesus said to them, "Prophets are not without honor, except in their hometown, and among their own kin, and in their own house" (Mark 6:4).

Hear the word of the LORD, 0 people of Israel; for the LORD has an indictment against the inhabitants of the land (Hosea 4:1 a).

Unsurprisingly, perhaps, presidential elections prompt Americans to take stock of the state of the nation, and, in particular, the state of democracy: the institutions, conventions, and habits, that is, which allow for representative government, and which-in principal, at least-ground and ensure equal rights and fair treatment. Countless ...


The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass Oct 2017

The Rules Of The Game And The Morality Of Efficient Breach, Gregory Klass

Yale Journal of Law & the Humanities

Because contractual obligations result from acts of agreement, every contract has an origin story-a story about what the parties did to change their legal situation, to enter into a contract. Theories of contract law, in turn, often tell stylized versions of such stories. These theory stories tell us about the character of the parties, what they want from their transaction, how they arrive at an agreement, and how the law figures into their relationship.


The Riddle Of Ruth Bryan Owen, Daniel B. Rice Oct 2017

The Riddle Of Ruth Bryan Owen, Daniel B. Rice

Yale Journal of Law & the Humanities

Her ancestors helped win America's independence. As a child, she watched House debates with rapt attention, vowing eventually to return to her beloved Capitol building. She gazed out on millions of cheering faces during her father's three presidential campaigns. Her uncle was a governor and vice-presidential nominee, her father the American Secretary of State. She ran the American Women's War Relief Fund alongside future First Lady Lou Hoover and nursed dying Allied soldiers. After establishing herself as Florida's leading female activist, she campaigned for the House of Representatives in 1928, promising to send her district's ...


Liberty To Misread: Sanctuary And Possibility In The Comedy Of Errors, Benjamin Woodring Oct 2017

Liberty To Misread: Sanctuary And Possibility In The Comedy Of Errors, Benjamin Woodring

Yale Journal of Law & the Humanities

Late in 1582, Christopher Jones scuffled with law enforcement officials on the streets of London. Breaking away in the middle of an attempted arrest, he bounded down an alley looking for cover. In this brief stint of time, he found assistance from clergy within St. Paul's and took sanctuary in the church.


Mor[T]Ality And Identity: Wills, Narratives, And Cherished Possessions, Deborah S. Gordon Oct 2017

Mor[T]Ality And Identity: Wills, Narratives, And Cherished Possessions, Deborah S. Gordon

Yale Journal of Law & the Humanities

Franz Kafka is credited with observing that "the meaning of life is that it stops." This recognition-that life's one certainty is certain death-has been the source of great inspiration. Indeed, much of what we do and create depends on our very human desire to make a mark on this world that will outlast our sentient selves.


Justice And Art, Face To Face, Desmond Manderson, Cristina S. Martinez Oct 2017

Justice And Art, Face To Face, Desmond Manderson, Cristina S. Martinez

Yale Journal of Law & the Humanities

This essay studies in detail, for the first time and in the context of legal as well as art history, Sir Joshua Reynolds's representation of Justice (1779). We argue that the image is of particular significance in the history of representations of justice, and marks the emergence of neoclassical ideals. These ideals became, for example in the work of Sir William Blackstone, central to the development of Anglo-American concepts of the common law. We argue that Reynolds's work exemplifies a profound shift and a rich complexity in these concepts.


The Foundations Of The Rule Of Law, Aleardo Zanghellini Oct 2017

The Foundations Of The Rule Of Law, Aleardo Zanghellini

Yale Journal of Law & the Humanities

An uncontroversial definition of the rule of law eludes us. There is broad agreement about the features that should characterise the rules of a legal system if this is to conform with the rule of law - namely, generality, publicity, clarity, relative stability etc. Scholars, however, disagree on what institutional and procedural arrangements the rule of law requires, on whether it has inherent moral value and on whether or not it imposes substantive constraints on the content of law.


Laughing At Censorship, Laura E. Little Oct 2017

Laughing At Censorship, Laura E. Little

Yale Journal of Law & the Humanities

Can a speech restriction ever be inherently good? Can we ever justify censorship as intrinsically beneficial, and not simply a justifiable means of protecting something more important than free expression?
For those steeped in American law and culture, these questions may seem almost heretical. But they deserve exploring, particularly given the prevalence and variety of censorship in the United States and elsewhere in the world. Happily, a context exists for exploring the questions that is less threatening and more entertaining than totalitarian thought control. The context is humor: jokes, cartoons, vignettes, and other expressions that make us laugh.


Closing Remarks: Law And Inequality After The Crisis, David Singh Grewal Apr 2017

Closing Remarks: Law And Inequality After The Crisis, David Singh Grewal

Yale Law & Policy Review

I am honored to have been asked to give the closing remarks to what has
been an inspiring and insightful conference, and humbled to do so before so many respected friends and colleagues.
I think my most important duty before doing so is to thank the truly amaz­ing students who conceived of and executed this conference from start to finish: Brian Highsmith, Lina Khan, Urja Mittal, and Jake Struebing, and also all of the student moderators too.
I also want to thank all the marvelous panelists who traveled from far and near to be here with us. It has ...


From Economic Inequality To Economic Freedom: Constitutional Political Economy In The New Gilded Age, K. Sabeel Rahman Apr 2017

From Economic Inequality To Economic Freedom: Constitutional Political Economy In The New Gilded Age, K. Sabeel Rahman

Yale Law & Policy Review

We live in a new Gilded Age. In the years since the 2008 financial crisis, it
has become increasingly clear that income inequality is widening dramatically, and that social mobility and genuine economic opportunity are an illusion for most Americans. Such economic inequality magnifies and interacts with chron­ic crises of structural racial injustice and persisting political dysfunction. The urgency of this moment is reflected not only in the virulent exclusionary
popu­lisms resurgent on the right, but also in the wide array of social movements and reform communities mobilizing on the left: from alternative labor organizing among low-wage and ...


Two Narratives Of Platform Capitalism, Frank Pasquale Apr 2017

Two Narratives Of Platform Capitalism, Frank Pasquale

Yale Law & Policy Review

Mainstream economists tend to pride themselves on the discipline's
resem­blance to science. But growing concerns about the reproducibility of economic research are undermining that source of legitimacy. These concerns have fueled renewed interest in another aspect of economic thought: its narrative nature. When presenting or framing their work, neoliberal economists tend to tell sto­ries about supply and demand, unintended consequences, and
transaction costs in order to justify certain policy positions. These stories often make sense, and warn policymakers against simplistic solutionism.


Law And Economics: Contemporary Approaches, Martha T Mccluskey, Frank Pasquale, Jennifer Taub Apr 2017

Law And Economics: Contemporary Approaches, Martha T Mccluskey, Frank Pasquale, Jennifer Taub

Yale Law & Policy Review

With a new project entitled Law and Economics: Contemporary Approaches,
we hope to liberate casebook examples of economic analysis of law from their current cramped confines. While law and economics associations increasingly feature empirical work in their annual conferences, casebooks in property, torts, contracts, and other core legal subjects all too often feature simple models of economic activity developed decades ago.' While new ways of thinking about
finance, health care, and privacy have developed rapidly in the past few decades (and particularly after the global financial crisis of 2008), casebooks all too often
rely on simple models of market-driven supply ...


Constitutional Economic Justice: Structural Power For We The People, Martha T. Mccluskey Apr 2017

Constitutional Economic Justice: Structural Power For We The People, Martha T. Mccluskey

Yale Law & Policy Review

It is time for an ambitious constitutional vision of economic justice.1 Since
the end of the Lochner era, the prevailing constitutional narrative has taught that the Constitution generally should leave economic policy decisions to the legislative and executive branches. That structural theory treats economic jus­ tice as discretionary, separate from and subordinate to fundamental constitu­tional protections for political and civil justice. At most, that narrative supports constitutional protections against economic inequality as narrow
exceptions subject to careful scrutiny and constraint.


Uncivil Procedure: How State Court Proceedings Perpetuate Inequality, Hannah Lieberman Apr 2017

Uncivil Procedure: How State Court Proceedings Perpetuate Inequality, Hannah Lieberman

Yale Law & Policy Review

Rules of civil procedure presuppose a level playing field where litigants have
structured opportunities to develop and present their claims to a neutral fact­ finder. In millions of cases-the vast majority processed by state courts today­ the field is neither level nor fair. Instead, enormous numbers of small dollar value cases are disposed of mechanically, without meaningful adjudication. High-volume state court dockets involve serious asymmetries of power and
knowledge, where plaintiffs' lawyers are able to manipulate or short-circuit the
rules against unrepresented and generally unsophisticated low-income defendants.


Needing And Fearing Billionaires In Cities Abandoned By Wealth, Michelle Wilde Anderson Apr 2017

Needing And Fearing Billionaires In Cities Abandoned By Wealth, Michelle Wilde Anderson

Yale Law & Policy Review

"Heck, we invented the middle class," wrote journalist Mitch Albom of Detroit in its heyday.' Today, the city is inventing something else entirely. A small group of
billionaires is leading what surely must be the largest privately fi­nanced urban transformation in American history. Detroit's new model for growth is premised on radical inequality, and it may well perpetuate it too. Is it good news anyway?


Old Dog, New Tricks: Title Vi And Teacher Equity, Noah B. Lindell Apr 2017

Old Dog, New Tricks: Title Vi And Teacher Equity, Noah B. Lindell

Yale Law & Policy Review

What can the law do to improve teacher quality? In answering this question, one can be forgiven for thinking about regulation rather than litigation. At the federal
level, most litigation-heavy education laws are antidiscrimination statutes, focused on protecting certain categories of students rather than on enforcing high teaching standards. Meanwhile, teacher quality has become a central aspect of education "policy" statutes. Lax teacher preparation standards and poor hiring policies, in particular, create challenges for the education
sys­ tem. Good teachers not only increase students' scores on standardized tests; they also can lower students' teen pregnancy rates, increase their likelihood of ...


Thoughts On The Unification Of U.S. Labor And Employment Law: Is The Whole Greater Than The Sum Of The Parts, Craig Becker Apr 2017

Thoughts On The Unification Of U.S. Labor And Employment Law: Is The Whole Greater Than The Sum Of The Parts, Craig Becker

Yale Law & Policy Review

As the need for fundamental reform of our nation's labor laws has grown more and more evident since the 1970s, major reform efforts have focused narrowly on adjusting the provisions of the National Labor Relations Act (NLRA), but have repeatedly foundered amidst intense polarization over tipping the existing "balance" between labor and management.' At the same time, at the federal, state, and, increasingly, municipal levels, U.S. labor laws governing worker organization and collective bargaining have been surrounded by a growing thicket of other laws governing the workplace.


The Right Of Refusal: Immigration Enforcement And The New Cooperative Federalism, Spencer E. Amdur Apr 2017

The Right Of Refusal: Immigration Enforcement And The New Cooperative Federalism, Spencer E. Amdur

Yale Law & Policy Review

In recent years, immigration enforcement has provoked conflicts among almost every level and branch of American government. Some disputes are hor­ izontal: between the President and Congress, governors and state legislatures, sheriffs and boards of supervisors. Others are vertical: between states and feder­al agencies, the President and governors, states and localities. Many of the
con­stitutional questions posed by these conflicts have entered the courts
and spawned large academic literatures. But at least one has not: federal power to enlist state and local aid.


The Right Of Refusal: Immigration Enforcement And The New Cooperative Federalism, Spencer E. Amdur Apr 2017

The Right Of Refusal: Immigration Enforcement And The New Cooperative Federalism, Spencer E. Amdur

Yale Law & Policy Review

In recent years, immigration enforcement has provoked conflicts among almost every level and branch of American government. Some disputes are horizontal: between the President and Congress, governors and state legislatures, sheriffs and boards of supervisors. Others are vertical: between states and federal agencies, the President and governors, states and localities. Many of the constitutional questions posed by these conflicts have entered the courts and spawned large academic literatures. But at least one has not: federal power to enlist state and local aid.


Coughing Up Executives Or Rolling The Dice: Individual Accountability For Corporate Corruption, Sharon Oded Apr 2017

Coughing Up Executives Or Rolling The Dice: Individual Accountability For Corporate Corruption, Sharon Oded

Yale Law & Policy Review

Anti-bribery enforcement continues to intensify on a global scale. More than ever before, multinational corporations currently face high financial and reputational risks relating to bribery and other corrupt practices. These increasing risks result predominantly from an escalating enforcement of the U.S. Foreign Corrupt Practices Act (FCPA). This escalation is clearly demonstrated by an increase in the ticket price of FCPA actions in recent years: in 2014, for instance, companies paid on average more than $150 million to resolve FCPA cases. This value is about seven-and-a-half times higher than the average total value of monetary resolutions of corporate FCPA cases ...


From The Regulatory Abyss: The Weakened Gatekeeping Incentives Under The Uniform Securities Act, Marc L Steinberg, James Ames Apr 2017

From The Regulatory Abyss: The Weakened Gatekeeping Incentives Under The Uniform Securities Act, Marc L Steinberg, James Ames

Yale Law & Policy Review

Under the Uniform Securities Act (Act or USA), in-house accountants, analysts, attorneys, and other inside gatekeepers may be held responsible for running afoul of the secondary liability provisions of the USA, while their outside counterparts will escape liability. As a result, an inherent inequity in treatment exists between inside and outside actors in private state securities litigation.


Undocumented: How Immigration Became Illegal By Aviva Chomsky, Lisa Y. Wang Apr 2017

Undocumented: How Immigration Became Illegal By Aviva Chomsky, Lisa Y. Wang

Yale Human Rights and Development Journal

Trainloads of Mexican laborers imported daily by American railroad capitalists, backed by the might of Congress . . . Sal, an Arizona high school graduate who was brought to the United States by his parents at the age of three, deported for the crime of jaywalking . . . Social workers at the border identifying migrants by their lack of shoelaces, anticipating that the Department of Homeland Security will have removed such suicide hazards. . . A deported Guatemalan woman's parental rights over her infant son terminated swiftly and obscurely, based on a tenuous legal theory of "effective abandonment" . . . A perverse and
unconcealed alliance between the private ...


The Experience Of Face Veil Wearers In Europe And The Law Edited By Eva Brems, Diana Li, Jacqueline Van De Velde Apr 2017

The Experience Of Face Veil Wearers In Europe And The Law Edited By Eva Brems, Diana Li, Jacqueline Van De Velde

Yale Human Rights and Development Journal

The Experience of Face Veil Wearers in Europe and the Law, edited by Eva
Brems, positions itself in the midst of a political, cultural, and intimately personal debate enveloping Europe over what is colloquially known as the "burqa ban." Since 2010, Belgium, France, and select regions of the Netherlands, Italy, and Spain have adopted laws prohibiting citizens from covering their faces with "disguises," "masks," and "costumes." Ostensibly, such bans are to
protect the rights of all citizens and improve national security; in practice, they function to prevent practicing Muslim women from wearing garments such as the niqab. Brems takes care ...


Speeding Up Sexual Assault Trials: A Constructive Critique Of India's Fast-Track Courts, Vandana Peterson Apr 2017

Speeding Up Sexual Assault Trials: A Constructive Critique Of India's Fast-Track Courts, Vandana Peterson

Yale Human Rights and Development Journal

India has a strong tradition of judicial activism for social change and comprehensive laws designed to combat sexual violence against women.
Yet such crime has significantly escalated. In December 2012, a widely publicized assault occurred in Delhi. The victim's death triggered a frantic response from many quarters including legal scholars, religious leaders, global media, and government officials. The central government undertook a comprehensive review of existing mechanisms to deter future crimes against women. Its findings led to the creation or designation of "fasttrack" courts to adjudicate cases involving sexual crime against women.


Denial Of Justice: The Latest Indigenous Land Disputes Before The European Court Of Human Rights And The Need For An Expansive Interpretation Of Protocol 1, Giovanna Gismondi Apr 2017

Denial Of Justice: The Latest Indigenous Land Disputes Before The European Court Of Human Rights And The Need For An Expansive Interpretation Of Protocol 1, Giovanna Gismondi

Yale Human Rights and Development Journal

In its three latest decisions on indigenous land rights, the European Court of Human Rights (ECtHR) has afforded scant protection to indigenous peoples. Through an analysis of each case in terms of substantive and procedural law, this Article evaluates the challenges indigenous peoples face when pursuing their claims before the Court. I argue that the European Court's narrow interpretation of the "right to peaceful enjoyment of possessions" codified in Protocol 1 (Article 1) of the European Convention on Human Rights (ECHR) has failed to consider the importance of collective lands in securing the cultural survival of indigenous peoples, their ...


Immigration, Imperialism, And The Legacies Of Indian Exclusion, Sherally Munshi Apr 2017

Immigration, Imperialism, And The Legacies Of Indian Exclusion, Sherally Munshi

Yale Journal of Law & the Humanities

In April of 1914, a few hundred men and women in Calcutta boarded a ship bound for Vancouver, though British Canada had recently enacted a law that would prevent the ship's passengers from landing. As the ship, the Komagata Maru, steamed its way across the Pacific, officials in Vancouver braced themselves for its arrival. For Canadian officials, this would be the first refusal of its kind. When the Komagata Maru finally reached the harbor, on May 3, immigration officers refused to allow the ship to dock. Vancouver police patrolled the waters and the shores to ensure that no Indian ...


Constitutional Economics, Luke Norris Apr 2017

Constitutional Economics, Luke Norris

Yale Journal of Law & the Humanities

The conventional narrative that courts and legal scholars tell about the repudiation of Lochnerism in the late 1930s is incomplete. The standard view is that the Lochner line of cases-those overturning state wage and hour laws under substantive due process doctrine-collapsed as their premises about economic liberty were undermined. The doctrine then remained dormant until it was revived in Griswold v. Connecticut. The account continues that the aim of substantive due process jurisprudence in the post-Griswold era, as the Supreme Court turned to vindicating personal and intimate rights under the doctrine, has been to distinguish the modem doctrine from Lochnerism ...


Born Breach: The Challenge Of Remedies In Surrogacy Contracts, Deborah S. Mazer Apr 2017

Born Breach: The Challenge Of Remedies In Surrogacy Contracts, Deborah S. Mazer

Yale Journal of Law & Feminism

This Note examines the legal approaches to surrogacy and argues that the realities of gestational surrogacy in the United States necessitate a predictable and clear legal approach. In Part 1, this Note surveys the state of surrogacy and highlights the pressing need for legal certainty. Part II considers and rejects common arguments against the enforceability of surrogacy contracts. Using recent examples from California, Part III demonstrates American courts' increasing comfort with adjudicating reproductive disputes in a freedom of contract framework, and encourages this judicial approach for future surrogacy disputes. The Note further argues that it is imperative that lawyers advising ...


Mind The Gap: Theorizing Asymmetry Between Parental Involvement And Statutory Rape Laws, Olivia Horton Apr 2017

Mind The Gap: Theorizing Asymmetry Between Parental Involvement And Statutory Rape Laws, Olivia Horton

Yale Journal of Law & Feminism

Within a single state, the age at which a minor can independently obtain an abortion rarely aligns with the age at which she can legally have sex. In the majority of states, parental involvement abortion laws constrain a minor for a year or longer beyond the age of consent. During this time, the law authorizes a minor to have sex while simultaneously declaring that, should she become pregnant, she must seek permission-from a parent or a judge-to obtain an abortion. Reasons supporting this status quo are outweighed by the particular harms and obstacles-expressive and practical-created by this dissonance. Minors who ...


Protections Of Equal Rights Across Sexual Orientation And Gender Identity: An Analysis Of 193 National Constitutions, Amy Raub, Adele Cassola, Isabel Latz, Jody Heymann Apr 2017

Protections Of Equal Rights Across Sexual Orientation And Gender Identity: An Analysis Of 193 National Constitutions, Amy Raub, Adele Cassola, Isabel Latz, Jody Heymann

Yale Journal of Law & Feminism

This article provides the first detailed global assessment of the ways in which constitutions protect equal rights based on sexual orientation and gender identity across the spheres of general equality and discrimination, employment and marriage rights. Drawing on global data from 193 U.N. member states, we examined how constitutional protections of equal rights varied according to the decade of constitutional adoption as well as the year of the most recent constitutional amendment as of May 2014. Regional variation and a comparison with constitutional protections on the basis of sex, race or ethnicity, religion, and disability are also conducted.