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Superfund In The Trump Era, Donald E. Elliott Feb 2018

Superfund In The Trump Era, Donald E. Elliott

Faculty Scholarship Series

Since President Donald Trump took office just over one year ago, much has changed at the U.S. Environmental Protection Agency. In this Expert Analysis series, former EPA general counsels discuss some of the most significant developments and what they mean for the future of environmental law in the U.S.


Free Speech In The Algorithmic Society: Big Data, Private Governance, And New School Speech Regulation, Jack M. Balkin Jan 2018

Free Speech In The Algorithmic Society: Big Data, Private Governance, And New School Speech Regulation, Jack M. Balkin

Faculty Scholarship Series

The problems of free speech in any era are shaped by the communications technology available for people to use and by the ways that people actually use that technology. Twenty years ago, in 1997, when I began the Information Society Project at Yale, we were just entering the age of the Internet. Most people were still using dial-up modems, there was no Facebook, Google, or YouTube, Instagram or Snapchat; there were no iPhones. Only twenty years later, we have already entered into a new phase the Algorithmic Society - which features large, multinational social media platforms that sit between traditional nation ...


The Original Theory Of Constitutionalism, David Singh Grewal Jan 2018

The Original Theory Of Constitutionalism, David Singh Grewal

Faculty Scholarship Series

The conflict between various versions of "originalism" and "living constitutionalism" has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinctions, each one also returns to a core concern: the democratic authority of constitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance . . . who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is ...


Data Privacy And Dignitary Privacy: Google Spain, The Right To Be Forgotten, And The Construction Of The Public Sphere, Robert C. Post Jan 2018

Data Privacy And Dignitary Privacy: Google Spain, The Right To Be Forgotten, And The Construction Of The Public Sphere, Robert C. Post

Faculty Scholarship Series

The 2014 decision of the European Court ofJustice in Google Spain controversially held that the fair information practices set forth in European Union (EU) Directive 95/46/EC (Directive) require that Google remove from search results links to websites that contain true information. Google Spain held that the Directive gives persons a "right to be forgotten." At stake in Google Spain are values that involve both privacy and freedom of expression. Google Spain badly analyzes both. With regard to the latter, Google Spain fails to recognize that the circulation of texts of common interest among strangers makes possible the emergence ...


Statutory Interpretation On The Bench: A Survey Of Forty-Two Judges On The Federal Courts Of Appeals, Abbe R. Gluck, Richard A. Posner Jan 2018

Statutory Interpretation On The Bench: A Survey Of Forty-Two Judges On The Federal Courts Of Appeals, Abbe R. Gluck, Richard A. Posner

Faculty Scholarship Series

The vast majority of statutory interpretation cases are resolved by the federal courts of appeals, not by the Supreme Court, even though the Supreme Court's practice has received nearly all of the attention from academics and practitioners. In part due to this myopia, the Court and many academics have been mired for decades in a by-now boring debate about "textualism" versus "purposivism." That debate, while ostensibly about the judge's relationship to Congress and its work, has centered in practice on little more than the most appropriate evidentiary tools of interpretation: text, statutory purpose, legislative history, interpretive presumptions, and ...


The Universal Declaration Of Human Rights And The Challenge Of Religion, Samuel Moyn Jan 2018

The Universal Declaration Of Human Rights And The Challenge Of Religion, Samuel Moyn

Faculty Scholarship Series

As its title indicates, Johannes Morsink’s new book takes stock of the grounding and prospects of human rights ideals in the face of what people often call “the return of religion.” He starts by claiming that, given its Holocaust origins, the Universal Declaration of Human Rights of 1948 reflected secular assumptions—a common agreement transcending all faith commitments and requiring none in particular and, in fact, no faith of any kind. I think he proves his case, but scants the reasons why human rights were compatible with so many religions at the time and sidesteps the considerable recent debate ...


The Endgame Of Administrative Law: Governmental Disobedience And The Judicial Contempt Power, Nicholas R. Parrillo Jan 2018

The Endgame Of Administrative Law: Governmental Disobedience And The Judicial Contempt Power, Nicholas R. Parrillo

Faculty Scholarship Series

Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the courts say. But in fact, the federal government's compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government's disobedience. The Article makes four conclusions. First, the federal ...


Justice Scalia's Unfinished Business In Statutory Interpretation: Where Textualism's Formalism Gave Up, Abbe R. Gluck Jan 2017

Justice Scalia's Unfinished Business In Statutory Interpretation: Where Textualism's Formalism Gave Up, Abbe R. Gluck

Faculty Scholarship Series

Justice Scalia, in the end, was no interpretive formalist. He would not be pleased to hear this claim, but the fact is that formalism has not succeeded in statutory interpretation, and in fact, the textualism that Justice Scalia deserves so much credit for creating never really embraced formalism at all.

Textualism lacks all the conditions necessary for formalism. It does not have a defined set of predictable rules ordered to ensure objective application. Instead, we have more than one hundred interpretive presumptions-the presumptions favored by textualists-with no defined method of choosing among them. These doctrines of the field are not ...


The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Amar Jan 2017

The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Amar

Faculty Scholarship Series

Our story begins with a Republican president taking office even though, pretty clearly, more Americans had voted against him than had voted for him. No, we are not talking about Donald Trump. (But since he does love being talked about, we will talk about him soon enough.) And no, we are not talking about George W. Bush in 2001, although he too will enter our story, stage right, later on. Nor are we talking about Benjamin Harrison in 1889 or about Rutherford B. Hayes in 1877. Rather in this, the Inaugural Abraham Lincoln Lecture on Constitutional Law, it is altogether ...


Anxiety Psychoeducation For Law Students: A Pilot Program, Ian Ayres, Joseph Bankman, Barbara Fried, Kristine Luce Jan 2017

Anxiety Psychoeducation For Law Students: A Pilot Program, Ian Ayres, Joseph Bankman, Barbara Fried, Kristine Luce

Faculty Scholarship Series

Many law students experience anxiety, which can impair academic performance and reduce quality of life. The authors developed a brief psychoeducation program designed to help law students cope with anxiety. The program was based on the cognitive behavioral model of anxiety and was offered to first-year students at Stanford and Yale Law School. Class attendance was voluntary and consisted of two one- to two-hour meetings. Student response was measured by anonymous online surveys. Virtually all the students thought the material was worthwhile and should be taught as a part of the curriculum. Students reported using many of the techniques
described ...


Police Reform And The Dismantling Of Legal Estrangement, Monica C. Bell Jan 2017

Police Reform And The Dismantling Of Legal Estrangement, Monica C. Bell

Faculty Scholarship Series

In police reform circles, many scholars and policymakers diagnose the frayed relationship between police forces and the communities they serve as a problem of illegitimacy, or the idea that people lack confidence in the police and thus are unlikely to comply or cooperate with them. The core proposal emanating from this illegitimacy diagnosis is procedural justice, a concept that emphasizes police officers' obligation to treat people with dignity and respect, behave in a neutral, non-biased way, exhibit an intention to help, and give them voice to express themselves and their needs, largely in the context of police stops. This Essay ...


The Three Laws Of Robotics In The Age Of Big Data, Jack M. Balkin Jan 2017

The Three Laws Of Robotics In The Age Of Big Data, Jack M. Balkin

Faculty Scholarship Series

When I was a boy, I read all of Isaac Asimov's stories about robotics. In Asimov's world, robots were gradually integrated into every aspect of society. They had various degrees of similarity to humans, but as the stories and novels progressed, the most advanced robots were very human in appearance and form. The most famous feature of these robot stories is Asimov's three laws of robotics that were built into every robot's positronic brain. The three laws are:

First Law: "a robot may not injure a human being, or, through inaction, allow a human being to ...


Federalism 3.0, Heather K. Gerken Jan 2017

Federalism 3.0, Heather K. Gerken

Faculty Scholarship Series

This Essay lays out a research agenda for federalism in the twenty-first century. I recognize the hubris in this, so let me hasten to add that what follows is a synthesis of hundreds of pages of law review articles. I will give a bird's eye view of the terrain I've already mapped and then describe the path we should take from here. What I write is very much in the spirit of Justice William Brennan, whose legacy is honored by these lectures. Like me, Justice Brennan was a nationalist who believed that states could play a central role ...


Distinguished Scholar In Residence Lecture: A User's Guide To Progressive Federalism, Heather K. Gerken Jan 2017

Distinguished Scholar In Residence Lecture: A User's Guide To Progressive Federalism, Heather K. Gerken

Faculty Scholarship Series

I want to start by thanking the extraordinary faculty of Hofstra Law School for this honor. It's wonderful to be here, and you have treated me with extraordinary graciousness. Today I'm going to offer you a "user's guide" to progressive federalism. I should emphasize that while I'll be attaching the word progressive to federalism, my main point is that federalism doesn't have a political valence. We often associate federalism with conservatism, but that's pure foolishness on our part. Federalism is a powerful weapon no matter what your political preferences. It can be a source ...


Playing Cards In A Hurricane: Party Reform In An Age Of Polarization, Heather K. Gerken Jan 2017

Playing Cards In A Hurricane: Party Reform In An Age Of Polarization, Heather K. Gerken

Faculty Scholarship Series

In his Frankel Lecture, Outsourcing Politics: The Hostile Takeover of Our Hollowed-Out Political Parties, Sam Issacharoff suggests that legal changes have systematically disabled the leadership of political parties from exercising sway over their candidates. As a result, party leaders cannot create the necessary incentives for moderation, and office holders are being swept away from the center by the gales of polarization. This Commentary suggests that, at bottom, Issacharoff isn't asking the right question. His Lecture asks how we can reduce the effects of polarization, when the real question may be whether we can. It's possible that legal changes ...


Congress, Statutory Interpretation, And The Failure Of Formalism: The Cbo Canon And Other Ways That Courts Can Improve On What They Are Already Trying To Do, Abbe R. Gluck Jan 2017

Congress, Statutory Interpretation, And The Failure Of Formalism: The Cbo Canon And Other Ways That Courts Can Improve On What They Are Already Trying To Do, Abbe R. Gluck

Faculty Scholarship Series

The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project-typified by but not limited to Justice Antonin Scalia's brand of textualism-has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as blackletter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically ...


Unorthodox Civil Procedure: Modern Multidistrict Litigation's Place In The Textbook Understandings Of Procedure, Abbe R. Gluck Jan 2017

Unorthodox Civil Procedure: Modern Multidistrict Litigation's Place In The Textbook Understandings Of Procedure, Abbe R. Gluck

Faculty Scholarship Series

Multidistrict litigation (MDL) is unorthodox, modern civil procedure. It is an old-but-new procedural tool that significantly disrupts decades of worked-out doctrinal equilibria-and, now comprising a shocking 39% of the cases on the civil docket, MDLs warrant more attention than they have received. The MDL puts a thumb on the scale of nationalism over federalism, consent over adversity, procedural exceptionalism over transsubstantivity, and common law over the Federal Rules. In other words, the MDL takes what has generally been the losing side of procedure's big theoretical and doctrinal debates; it is a symptom of deeper pressures on the system to ...


Ensuring Responsibility: Common Article 1 And State Responsibility For Non-State Actors, Oona A. Hathaway, Emily Chertoff, Lara Dominguez, Zachary Manfredi, Peter Tzeng Jan 2017

Ensuring Responsibility: Common Article 1 And State Responsibility For Non-State Actors, Oona A. Hathaway, Emily Chertoff, Lara Dominguez, Zachary Manfredi, Peter Tzeng

Faculty Scholarship Series

In Syria, the United States is "training and equipping" non-state groups to battle ISIS. In Eastern Ukraine, Russia has provided weapons, training, and support to separatists. In China, "private" computer hackers operating with state support create codes designed to infiltrate sensitive computer systems. These are just afew examples of the many ways in which states work with nonstate actors to accomplish their military and political objectives. While state/ non-state collaboration can be benign, it can be malignant where a state uses a non-state actor as a proxy to violate international law. This is no mere academic hypothetical: consider the Former ...


The Return Of The Lawyer-Statesman?, Robert W. Gordan Jan 2017

The Return Of The Lawyer-Statesman?, Robert W. Gordan

Faculty Scholarship Series

Ben W. Heineman, Jr., a former general counsel of General Electric, has written a book (The Inside Counsel Revolution) proposing an ambitious role for legal advisors to corporations, which he calls "resolving the partner-guardian tension." Corporate lawyers, Heineman argues, must be effective agents in helping their clients attain their performance goals. But they must also ensure that the company acts with "integrity," meaning compliance with the spirit as well as the letter of the laws of the jurisdictions in which the company does business, fostering constructive relations with stakeholders as well as maximizing share prices, and forming collaborations with other ...


Order Without Intellectual Property Law: Open Science In Influenza, Amy Kapczynski Jan 2017

Order Without Intellectual Property Law: Open Science In Influenza, Amy Kapczynski

Faculty Scholarship Series

Today, intellectual property (IP) scholars accept that IP as an approach to information production has serious limits. But what lies beyond IP? A new literature on "intellectual production without IP" (or "IP without IP") has emerged to explore this question, but its examples and explanations have yet to convince skeptics. This Article reorients this new literature via a study of a hard case: a global influenza virus-sharing network that has for decades produced critically important information goods, at significant expense, and in a loose-knit group-all without recourse to IP. I analyze the Network as an example of "open science," a ...


The Enduring Legacies Of The Haitian Refugee Litigation, Harold H. Koh Jan 2017

The Enduring Legacies Of The Haitian Refugee Litigation, Harold H. Koh

Faculty Scholarship Series

Why still talk about the "Haitian Refugee Litigation," Haitian Centers Council, Inc. v. Sale, twenty-five years later? After all, fine books have been written about the litigation: Brandt Goldstein's gripping nonfiction novel, "Storming the Court", and the accompanying Civil Procedure teaching materials expertly assembled by Brandt Goldstein, Rodger Citron, and Molly Beutz Land. The episode has been used as a case study for Procedure classes at Yale, Columbia, Touro Law School, University of Connecticut, and New York Law School, just to name a few. The episode has spawned many articles. And symposia held over the last few years have ...


The Family's Constitution, Douglas Nejaime Jan 2017

The Family's Constitution, Douglas Nejaime

Faculty Scholarship Series

Many of the leading constitutional issues of our day implicate family law matters. Modern substantive due process is replete with questions of family law. Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Planned Parenthood v. Casey, and Lawrence v. Texas raise issues of family formation, intimate relationships, and reproductive decision making. Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley address the contours of marriage. Moore v. City of East Cleveland protects the extended family. Stanley v. Illinois, Lehr v. Robertson, and Michael H. v. Gerald D. consider the rights of unmarried fathers. Troxel v. Granville protects a ...


A Principled Approach Toward Insurance Law: The Economics Of Insurance And The Current Restatement Project, George L. Priest Jan 2017

A Principled Approach Toward Insurance Law: The Economics Of Insurance And The Current Restatement Project, George L. Priest

Faculty Scholarship Series

The American Law Institute ("ALI") initiated a project in 2010 to propose the Principles of the Law of Liability Insurance ("Principles"). A Principles project by the ALI is different from a Restatement of Law, for which the ALI is better known. A Restatement seeks to restate the common law of the fifty U.S. jurisdictions in systematized form. The ALI was organized many decades ago to achieve this ambition, in particular to counter the criticism that varying common law principles in the many different states in the U.S. made the law confused and contradictory across the states. The ALI ...


Leadership In Educational Institutions: Reflections Of A Law School Dean, Robert C. Post Jan 2017

Leadership In Educational Institutions: Reflections Of A Law School Dean, Robert C. Post

Faculty Scholarship Series

As Deborah Rhode observes in her superb book Lawyers as Leaders, there is a vast literature on leadership. It has become an object of microscopic study. It is as though leadership were an element that could be measured, its essence extracted, its secrets replicated, and its puissance transmitted to those capable of learning. I have no doubt that we can acquire a great deal by the study of leadership. But my own intuition is that leadership is more a verb than a noun. It is evidenced in actions appropriate to ambient circumstances. Leadership is like the right key sliding into ...


Legitimacy And Hate Speech, Robert C. Post Jan 2017

Legitimacy And Hate Speech, Robert C. Post

Faculty Scholarship Series

It is a pleasure to participate in this symposium on democratic legitimacy and hate speech regulation. Although I have often contemplated the relationship between First Amendment doctrine and democratic legitimation, I have always done so in the manner of a legal scholar. I have not inquired -as perhaps a moral philosopher might- about what James Weinstein calls "the objective criteria that morally entitle a political entity to govern." I find myself unmoved to speculate about such objective normative criteria, and am instead content to focus on the descriptive conditions necessary for a diverse and heterogeneous population to live together in ...


Inequality Rediscovered, David Singh Grewal Jan 2017

Inequality Rediscovered, David Singh Grewal

Faculty Scholarship Series

Widespread recognition that economic inequality has been growing
for forty years in most of the developed world, and in fact has tended
to grow across most of the history of modern economies, shows that
the period 1945-1973, when inequality of wealth and income shrank,
was a marked anomaly in historical experience. At the time, however,
the anomalous period of equality seemed to vindicate a long history of
optimism about economic life: that growth would overcome meaningful
scarcity and usher in an egalitarian and humanistic period that could
almost qualify as post-economic. This has not been the experience
of the last ...


Before Peer Production: Infrastructure Gaps And The Architecture Of Openness In Synthetic Biology, David Singh Grewal Jan 2017

Before Peer Production: Infrastructure Gaps And The Architecture Of Openness In Synthetic Biology, David Singh Grewal

Faculty Scholarship Series

Legal scholarship on intellectual property needs to be reoriented to consider how state action helps to generate the infrastructure of emerging fields in ways that prove conducive to their development. In this Article, I contribute to that reorientation through an in-depth analysis of one important emerging technology, synthetic biology. The ambition of synthetic biology is to make biology easier to engineer through standardization and associated technical processes. Early successes indicate the scientific promise of the field and help to explain why its advocates are concerned to see the field develop in an open and publicly beneficial manner. What openness might ...


The “Complete Diversity” Requirement For Federal Jurisdiction: Time To Correct This 210-Year-Old Error, E. Donald Elliott Jan 2017

The “Complete Diversity” Requirement For Federal Jurisdiction: Time To Correct This 210-Year-Old Error, E. Donald Elliott

Faculty Scholarship Series

Legal Opinion Letter


A New Deal For Old Age, Anne L. Alstott Jan 2017

A New Deal For Old Age, Anne L. Alstott

Faculty Scholarship Series

These are strange days. I, like many of you, am still struggling with the enormity of the presidential election. I am trying to comprehend the implications for the future of our country and the world. I fear that we, as a nation, will lose the progressive gains made in the last eight years. And, worse, we may face retrogression in every sphere of public life, from international relations to climate change to domestic economic policy. The strangeness of these days has a personal dimension. When I wrote the book that serves as the basis for this lecture, I had what ...


Red Lights To Green Lights: From 20th Century Environmental Regulation To 21st Century Sustainability, Daniel C. Esty Jan 2017

Red Lights To Green Lights: From 20th Century Environmental Regulation To 21st Century Sustainability, Daniel C. Esty

Faculty Scholarship Series

Twentieth century environmental protection delivered significant improvements in America ' air and water quality and led companies to manage their waste, use of toxic substances, and other environmental impacts with much greater care. But the pace of environmental progress has slowed as the limits of the command-and-control regulatory model have been reached This Article calls for a new 21st century sustainability strategy that overcomes the ideological, structural, and operational issues that have led to political gridlock and blocked environmental policy reform. It makes the case for a transformed legal framework that prioritizes innovation, requires payment of "harm charges" and an "end ...