Law Commons^™

The Facts Of Stigma: What's Missing From The Procedural Due Process Of Mental Health Commitment, Alexandra S. Bornstein

Yale Journal of Health Policy, Law, and Ethics

This is the first systematic review of federal, judicial opinions that engage the stigma of mental health commitment in the context of procedural due process. In 1979, in Addington v. Texas, the Supreme Court held that the stigma, or adverse social consequences, of civil commitment is relevant to the procedural due process analysis. The following year, in Vitek v. Jones, the Court held that the stigmatizing consequences of a transfer from a prison to a mental health facility, coupled with mandatory treatment, triggered procedural protections.

Righting Research Wrongs: An Empirical Study Of How U.S. Institutions Resolve Grievances Involving Human Subjects, Kristen Underhill

Yale Journal of Health Policy, Law, and Ethics

Tens of millions of people enroll in research studies in the United States every year, making human subjects research a multi-billion-dollar industry in the U.S. alone. Research carries risks: although many harms are inevitable, some also arise from errors or mistreatment by researchers, and the history of research ethics is in many ways a history of scandal. Despite regulatory efforts to remedy these abuses, injured subjects nonetheless have little recourse to U.S. courts. In the absence of tort remedies for research-related injuries, the only venue for resolving such disputes is through alternative dispute resolution (ADR)—or more commonly ...

The Problem Of Intra-Personal Cost, Brian Galle

Yale Journal of Health Policy, Law, and Ethics

"Externalities," or harms to others, provide a standard justification for government intervention in the private market. There is less agreement over whether government is justified in correcting "internalities," or harms we inflict on our own health or well-being. While some of the internality dispute is philosophical, some is practical. Critics suggest government lacks information to regulate internalities, and that any intervention would inefficiently distort a private market for self-help. This Article argues that these critiques of regulation overlook well-established tools of externality regulation, as well as a burgeoning literature on the measurement of internalities.

Starving The Statehouse: The Hidden Tax Policies Behind States’ Long‐Run Fiscal Crises, Jeremy Pilaar

Faculty Scholarship Series

American states have underinvested in infrastructure, education, and public welfare for decades. While the growing costs of certain state programs have accounted for part of the problem, stagnant and more volatile tax levies have also contributed to the lack of funds for public services. Surprisingly, however, scholars have devoted little attention to the latter problem. This paper begins to fill that void by proposing a new research agenda.

Death And The War Power, Mary L. Dudziak

Yale Journal of Law & the Humanities

In the vast literature on American war powers, attention is rarely paid to the product of war, the dead human body, and its impact on war politics and war powers. In legal scholarship on the war powers, the practice of war usually happens in the background. Presidents, Congress, and courts are in the foreground. Killing in war is thereby a background phenomenon, an aspect of the social context within which the war powers are exercised.

Legal Scholarship As Spectacular Failure, Omri Ben-Zvi, Eden Sarid

Yale Journal of Law & the Humanities

Most authors of legal scholarship would probably hesitate to describe their writings as heroic tales of (intellectual) conquest and adventure. They would also most likely deny that they are unreliable storytellers. Equally, conventional accounts of legal scholarship tend to view it as lacking a common structure. This article challenges these assumptions by offering a novel aesthetic perspective on legal writing.

Disentangling Perjury And Lying, Allison Douglis

Yale Journal of Law & the Humanities

Committing perjury is frequently treated as closely related-if not equivalent-to lying. Both legal scholars of perjury and philosophers of lying make this assumption. This, in turn, informs subsequent conclusions about both the nature of perjury and the nature of lying.

Welcoming Monsters: Disability As A Liminal Legal Concept, Jonas-Sebastien Beaudry

Yale Journal of Law & the Humanities

The philosophy of disability has burgeoned into a field of its own. Like the general field of disability studies, it hosts a multiplicity of schools, expertise and methodologies. It is unified, if at all, by a desire for the social integration of people perceived or understood to be "different", mentally or physically. This article aims to orient the reader within the field of the philosophy of disability and present some important lessons that it can teach legal actors.

Due Process Demands As Propaganda: The Rhetoric Of Title Ix Opposition, Annaleigh E. Curtis

Yale Journal of Law & the Humanities

How universities should deal with campus sexual assault is thorny and divisive, perhaps more so than any other current topic in the academy. Title IX is at the center of the debate on this issue, particularly following the issuance of the "Dear Colleague Letter" ("DCL") by the Department of Education's Office of Civil Rights ("OCR") in 2011.1 The DCL made it clear that sexual assault and harassment are a form of sex discrimination proscribed by Title IX and outlined some necessary features of the adjudication of these issues. Beyond its formal requirements, the DCL made clear that OCR ...

Backpay For Exonerees, Erik Encarnacion

Yale Journal of Law & the Humanities

Kristie Mayhugh, Elizabeth Ramirez, Cassandra Rivera, and Anna Vasquez were convicted for sexually assaulting a child. The prosecution's evidence included testimony from children and an expert witness who testified that objective signs of abuse existed. But years later one of the witnesses-now an adult-admitted to having fabricated the story with her sister. Another witness came forward and testified that the child witnesses had been forced to testify against the defendants. Even the expert witness retracted her testimony, acknowledging that she had relied upon an unreliable methodology.

Philosophy's Practical Turn, Kevin P. Tobia

Yale Journal of Law & the Humanities

Has modem philosophy taken a "practical turn?" If such a turn requires the first emphasis on practicality, then probably not. Prior philosophy has not discarded or neglected practicality. But a "turn" might instead be understood as a profound transformation.' Even if philosophy's practical concern is not new, perhaps its targets, methods, or character have changed significantly.

An Economy Of Violence: Financial Crisis And Whig Constitutional Thought, 1720-1721, Adam Lebovitz

Yale Journal of Law & the Humanities

The South Sea bubble burst suddenly in September 1720, the second in a chain of panics that struck Paris, London, and Amsterdam in quick succession. The crash in London was by far the most severe; within weeks two-thirds of England's nominal wealth had evaporated, public credit had collapsed, and London's most distinguished banking houses tottered on the brink of ruin. Commerce ground to a halt, leaving a forest of half-built ships rotting in city harbors and a thicket of unfinished mansions in London's fashionable districts.

Jerome Frank, Lon Fuller, And A Romantic Pragmatism, Charles L. Barzun

Yale Journal of Law & the Humanities

Jerome N. Frank (1889-1957) and Lon L. Fuller (1902-1978) are not frequently classed together in discussions of twentieth-century legal thought. Although they both wrote extensively about the nature of law and adjudication over roughly the same period of time (1930s-1950s), they are typically seen as standing on opposite sides of the issues that matter most in legal theory.

The Overdue Case Against Sex-Segregated Bathrooms, Laura Portuondo

Yale Journal of Law & Feminism

In 2002, Krystal Etsitty, a transgender woman, was fired from her job as a bus driver for her "intent to use women's public restrooms" along her route. In 2007, she lost an employment discrimination suit because, the Tenth Circuit held, her employer's "concern" that "the use of women's public restrooms by a biological male could result in liability . .. constitute[d] a legitimate, nondiscriminatory reason" for termination.

Interviewing Refugee Children: Theory, Policy, And Practice With Traumatized Asylum Seekers, Amit Jain, Joanne Lee

Yale Journal of Law & Feminism

For detained children seeking asylum, the Credible Fear Interview (CFI) is highly consequential: those who do not pass are deported to countries in which they fear persecution or torture. We consider whether policies and practices during child CFIs ensure that complete information is elicited in the first instance. We uncover infirmities that prevent some child asylum seekers from fully exercising their rights. Accordingly, we propose reforms across all branches of government to protect minors in CFIs, including updated and better enforced agency guidelines for child interviews, an end to child detention, habeas review, and appointment of counsel.

Federalism In Campus Sexual Violence: How States Can Protect Their Students When A Trump Administration Will Not, Emily A. Robey-Phillips

Yale Journal of Law & Feminism

Title IX has become shorthand for the issue of campus sexual assault. So common is Title IX attention on campus sexual violence that it is easy to forget how recently campus sexual violence was a neglected issue. Only after years of student activism did the federal government begin to address campus sexual violence. In 2014, President Obama created the White House Task Force to Protect Students from Sexual Assault. In his work on the issue, President Obama likely became the first U.S. president to even mention campus sexual violence, let alone work to combat it.

Transcending Prejudice: Gender Identity And Expression-Based Discrimination In The Metro Boston Rental Housing Market, Jamie Langowski, William L. Berman, Regina Holloway, Cameron Mcginn

Yale Journal of Law & Feminism

Surveys of transgender people reveal high levels of discrimination in housing. Surveys are helpful; however, in the housing context discriminatory actions are often subtle and occur without a person's knowledge. Very little empirical evidence in the form of statistic measures of discrimination exists regarding the actual level of gender identity-based discrimination that occurs in the rental housing market.

The U Visa's Failed Promise For Survivors Of Domestic Violence, Natalie Nanasi

Yale Journal of Law & Feminism

Recognizing the unique vulnerabilities of immigrants who become

victims of crime in the United States, Congress enacted the U visa, a form of immigration relief that provides victims, including survivors of domestic

violence, a path to lawful status. Along with this humanitarian. aim, the U visa was intended to aid law enforcement in efforts to investigate and prosecute crime, based on the notion that victims without legal status might otherwise be too fearful to "come out of the shadows" by reporting offenses to the police. Although these two goals were purportedly coequal, in practice, by requiring survivors to cooperate with ...

Shifting The Scope: How Taking School Demographics Into Account In College Admissions Could Reduce K-12 Segregation Nationwide, Thomas Scott-Railton

Yale Law & Policy Review

Deepening racial and socioeconomic segregation is producing unequal educational outcomes at the K-12 level, outcomes that are then reproduced in higher education. This is particularly true as rising competition among colleges has led many of them to focus increasingly on measures of merit that correlate with income and as parents and students adjust their behavior in light of those metrics.

Share, Own, Access, Shelly Kreiczer-Levy

Yale Law & Policy Review

Millennials are losing interest in ownership. They prefer to access property as needed on a casual, short-term basis. Prompted by the sharing economy, online platforms, and ethical consumerism, access presents a radical alternative to established property forms. This type of property use is popular among younger, technology-savvy generations.

Bureaucratic Agency: Administering The Transformation Of Lgbt Rights, Marie-Amlie George

Yale Law & Policy Review

In the 1940s and 1950s, the administrative state served as a powerful engine of discrimination against homosexuals, with agency officials routinely implementing anti-gay policies that reinforced gays' and lesbians' subordinate social and legal status. By the mid-1980s, however, many bureaucrats had become incidental allies, subverting statutory bans on gay and lesbian foster and adoptive parenting and promoting gay-inclusive curricula in public schools.

Cricket Soup: A Critical Examination Of The Regulation Of Insects As Food, Marie C. Boyd

Yale Law & Policy Review

Entomophagy-the practice of eating insects-has the potential to help meet the demand for human food and address food insecurities in an environmentally sustainable manner. The realization of the potential of insects as food, however, is not without its challenges. These challenges include the lack of regulation specifically addressing insects as food and the stigma towards the use of insects as food.

The Congressional Budget Office And The Demand For Pseudoscience Policy Essay, Arnold Kling

Yale Law & Policy Review

Politicians and journalists who participate in the policymaking process fail to
appreciate the limitations of the analytical models used by the Congressional Budget Office (CEO). The demand for pseudoscience leads to unwise policy choic­es. Although the CEO is nonpartisan, the presentation of its model results serves to focus attention on scenarios that are favorable to intervention and to deficit spending. But the policy discussion does not
include scenarios in which interven­tion fails to accomplish intended results or where economic shocks make a large government debt problematic. This Essay recommends ways for Congress to redi­rect the CEO, resulting ...

Three Theses On The Current Crisis Of International Liberalism, David Grewal

Faculty Scholarship Series

This essay advances three theses on the current crisis of international liberalism. First, it is a composite one, comprising interrelated crises of domestic political representation and of global governance affecting the international and supranational arrangements that were constructed in the post-war period. Second, the crisis is a specific development of neoliberal governance, which requires distinguishing international liberalism’s two historical variants: “embedded liberalism” and “neoliberalism.”

 The Roots And Branches Of The Medical-Legal Partnership Approach To Health: From Collegiality To Civil Rights To Health Equity, Joel Teitelbaum, Ellen Lawton

Yale Journal of Health Policy, Law, and Ethics

This Article traces the roots of the medical-legal partnership (MLP) approach

to health as a way of promoting the use of law to remedy societal and institutional pathologies that lead to individual and population illness and to health inequalities. Given current forces at work - the medical care and public health systems' foctis on social determinants of health, the increased use of value-based medical care payment reforms, and the emerging movement to train the next generation of health care and public health professionals in structural competency - the time is ripe to spread the view that law is an important lens through ...

 Ethics Of Evidence: Health Care Professionals In Public Benefits And Immigration Proceedings, Jesselyn Friley

Yale Journal of Health Policy, Law, and Ethics

This Article discusses the role of health care professionals in applications for public benefits and immigration relief. Medical-legal partnerships (MLPs) often represent patients who are applying for disability or veterans benefits, or who are seeking asylum based on past persecution. The strength of a patient's medical evidence often determines whether their claim succeeds or fails. Many health care professionals provide corroborating evidence for their patients, but even when they do not, their opinions appear in the proceedings through medical records.

 Medical-Legal Partnerships With Communities: Legal Empowerment To Transform Care, Tamar Ezer

Yale Journal of Health Policy, Law, and Ethics

Medical-legal partnerships (MLPs) integrate legal services into health care settings to provide holistic care and address the social determinants of health. This article brings a legal-empowerment lens to MLP work, arguing for a stronger focus on communities. It examines the application to MLPs of bringing services to communities, investing in rights literacy, and partnering with community-based paralegals. It then outlines the potential for a transformation in health and legal services to a rights - rather than needs-based framework where communities are active partners in program design and development.

 A Mental Health Checkup For Children At The Doctor's Office: Lessons From The Medical-Legal Partnership Movement To Fulfill Medicaid's Promise, Yael Cannon

Yale Journal of Health Policy, Law, and Ethics

Traumatic childhood events and the stress they cause can negatively affect health over a lifetime. For children with Medicaid coverage, visits to the doctor's office present an opportunity to improve this trajectory. Medicaid's Early Periodic Screening Diagnostic and Treatment (EPSDT) mandate requires that children receive more than a basic physical when they see a doctor for regular "well-child checks."

Introduction To The Medical-Legal Partnership Symposium Issue, Susanna D. Evarts, Nathan Guevremont

Yale Journal of Health Policy, Law, and Ethics

Since the first medical-legal partnership (MLP) opened in 1993 at the Boston Medical Center, MLPs have increasingly become integrated into community health centers around the United States. And MLPs are in the business of growth: more than 300 MLPs are currently operating in the United States, and 59 percent of those are fewer than five years old. MLPs are collaborations between physicians and civil attorneys in which the attorneys are integrated into the health care team, and work with the patient to address civil legal needs that impact the social determinants of a patient's health.

Final Remarks For Bob Gordon, John Witt

Faculty Scholarship Series

I'm thrilled to be able to be part of this celebration of the man I think we should all start calling the Notorious RWG.

I first encountered Bob Gordon-or rather, I first encountered his work­ in 1994. I was on a gap year between college and law school, working in the appeals bureau of Robert Morgenthau's Manhattan District Attorney's Office and applying to a history Ph.D. program. The office had a law library, complete with all the major law reviews. I decided that during my lunch hours I would read legal history in the law reviews ...