Law Commons^™

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 Nanasit

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 ...

 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.

By Any Other Name: The Vocabulary Of "Feminism" At The Supreme Court, Mckaye L. Neumeister

Yale Journal of Law & Feminism

Feminist legal theory is a significant area of scholarly inquiry, and the Supreme Court is no stranger to feminist legal arguments. Yet there has been no previous attempt to determine how the Court reacts to and makes use of the vocabulary of feminism. This Note conducts an empirical study of Supreme Court cases, and finds that-despite ample opportunity-the Court has only substantively discussed the words "feminist" or "feminism " twice in its history, both times in non-majority opinions. The Note attempts to understand this· aversion to the vocabulary of feminism, examining factors from within the legal profession
as well as the ...

Rape Process Templates: A Hidden Cause Of The Underreporting Of Rape, Eliza A. Lehner

Yale Journal of Law & Feminism

Fewer than a third of rape victims report their rape to the police. This low reporting rate appears to exist not only in jurisdictions with police
departments that intentionally discourage victims, but also, paradoxically, in areas with departments that believe they encourage victims to report and pursue allegations of rape. Relying on original qualitative research conducted with two local police departments (a city department and a university department) as a case study, this Note identifies a likely cause of the widespread underreporting­
"rape process templates"-and offers the foundation for a solution.

Legal Counsel For Survivors Of Campus Sexual Violence, Merle H. Weiner

Yale Journal of Law & Feminism

This Article argues that survivors of campus sexual violence often need legal counsel before, during, and after campus disciplinary proceedings. Lawyers have been overlooked as a critical resource for survivors, and this omission means that most survivors do not receive essential services for addressing their victimization and furthering their recovery. This Article sets forth the reasons why institutions of higher education should make available free legal services to their students who are victimized, and addresses the reasons why institutions might be hesitant to do so.

Freedom From Religion: A Vulnerability Theory Approach To Restricting Conscience Exemptions In Reproductive Healthcare, Sarah M. Stephens

Yale Journal of Law & Feminism

Conscience exemption laws, which permit refusals of service based on personal or religious belief, echo the formal equality approach embodied in antidiscrimination laws. They attempt to promote individual religious autonomy without taking into consideration the power and information disparities between institutional and individual actors and the harm that refusals can cause. Martha Fineman's vulnerability theory turns formal equality on its head by
dismantling our conception of independent individuals, who are freely able to achieve equal outcomes if they are treated alike, and by explaining that the shared vulnerability of all people requires a responsive state to address unequal access ...

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Yale Journal of Law & Feminism

On January 4, 2016, over 100 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief filed in Whole Woman 's Health v. Hellerstedt, the women spoke publicly about one of the most private decisions a woman can make. Their participation in this brief, which captured national media attention, marked their "coming out" to their clients and to all of their former, present, and future supervisors and colleagues; to the judges for whom they have clerked; and to the Justices of the Supreme Court.

Is Vulnerability Enough? Analyzing The Jurisdictional Divide On The Requirement For Post-Notice Harassment In Title Ix Litigation, Zachary Cormier

Yale Journal of Law & Feminism

A jurisdictional divide has arisen at a critical point in the evolution of Title IX litigation. Though the text of Title IX only provides for administrative enforcement of its gender discrimination clause, the Supreme Court has established a private cause of action for students who experience sexual harassment at an institution that receives federal funding. This private cause of action has evolved to allow for the recovery of monetary damages when the institution manifests a deliberate indifference to the harassment of a student after the institution had been notified of previous harassment.