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Full-Text Articles in Law

Three Theses On The Current Crisis Of International Liberalism, David Grewal Jul 2018

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.”


Final Remarks For Bob Gordon, John Witt May 2018

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 ...


Reading Early Colonial Legal History As Bob Gordon's Student, Claire Priest May 2018

Reading Early Colonial Legal History As Bob Gordon's Student, Claire Priest

Faculty Scholarship Series

Commenting on Bob Gordon's early work is a humbling experience that might compare to a composer commenting on early Beethoven or a painter on early Michelangelo. The eloquence of Gordon's writing is unparalleled. It is an absolute delight to read and enjoy every turn of phrase. Gordon perfectly describes what others can only grasp at.


Critical Legal Histories And Law's (In)Determinacy, Reva Siegel May 2018

Critical Legal Histories And Law's (In)Determinacy, Reva Siegel

Faculty Scholarship Series

Over the years, I have had the delight, adventure, and nourishment of having Bob Gordon as friend, colleague, and co-teacher. But for this Reflection, I was moved to excavate Gordon's role in my life before I ever met him, in those years when a first encounter with Critical Legal Histories helped me find my voice as a law student in New Haven in the 1980s.


Is Efficiency Biased?, Zachary Liscow May 2018

Is Efficiency Biased?, Zachary Liscow

Faculty Scholarship Series

Efficiency is a watchword in policy circles. If we choose policies that maximize people’s willingness to pay, we are told, we will grow the economic pie and thus benefit the rich and poor alike. Who would oppose efficiency when it is cast in this fashion?


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.


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 ...


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 ...


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 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 ...


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 ...


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 ...


Constraint, Authority, And The Rule Of Law In A Federal Circuit Court Of Appeals, John Witt Jan 2018

Constraint, Authority, And The Rule Of Law In A Federal Circuit Court Of Appeals, John Witt

Faculty Scholarship Series

One hundred and twenty-five years ago, during the little-remembered presidency of Benjamin Harrison, Congress put in place one of the building blocks of our modem legal system. The Evarts Act, signed into law in 1891, created a new Article III federal court for the first time since the ill-fated and short-lived Midnight Judges Act of 1801.


A Regulatory Framework For Exchange-Traded Funds, John Morley, Henry T.C. Hu Jan 2018

A Regulatory Framework For Exchange-Traded Funds, John Morley, Henry T.C. Hu

Faculty Scholarship Series

This is the first academic work to show the need for, or to offer, a regulatory framework for exchange-traded funds ("ETFs"). The economic significance of this financial innovation is enormous. U.S.-listed ETFs now hold more than $3.6 trillion in assets and comprise seven of the country’s ten most actively traded securities. ETFs also possess an array of unique characteristics raising distinctive concerns. They offer what we here conceptualize as a nearly frictionless portal to a bewildering, continually expanding universe of plain vanilla and arcane asset classes, passive and active investment strategies, and long, short, and leveraged ...


A2j/A2k: Access To Justice, Access To Knowledge, And Economic Inequalities In Open Courts And Arbitrations, Judith Resnik Jan 2018

A2j/A2k: Access To Justice, Access To Knowledge, And Economic Inequalities In Open Courts And Arbitrations, Judith Resnik

Faculty Scholarship Series

The topic of this symposium, Secrecy, suggests a focus on affirmative decisions shutting out the public by sealing records and closing courtrooms. My interest, in contrast, is in a broader set of processes that makes dispute resolution inaccessible and, in that sense, secret. My focus is on the problem of institutional privatization, as contrasted with questions of individuals' personal privacy.


Prochoicelife: Asking Who Protects Life And How And Why It Matters In Law And Politics, Reva Siegel Jan 2018

Prochoicelife: Asking Who Protects Life And How And Why It Matters In Law And Politics, Reva Siegel

Faculty Scholarship Series

Government can protect new life in many ways. It can restrict a woman's access to abortion, help a woman avoid an unwanted pregnancy, or help a pregnant woman bear a healthy child.
If we expand the frame and analyze restrictions on abortion as one of many ways government can protect new life, we observe facts that escape notice when we debate abortion in isolation. Jurisdictions that support abortion rights may protect new life in ways that jurisdictions that restrict abortion rights will not. One jurisdiction may protect new life by means that respect women's autonomy, while another protects ...


Pregnancy As A Normal Condition Of Employment: Comparative And Role-Based Accounts Of Discrimination, Reva Siegel Jan 2018

Pregnancy As A Normal Condition Of Employment: Comparative And Role-Based Accounts Of Discrimination, Reva Siegel

Faculty Scholarship Series

As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination. In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. Both Congress and the Court appealed to social roles in defining the wrongs of pregnancy discrimination.


Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp - And Some Pathways For Change, Reva Siegel Jan 2018

Blind Justice: Why The Court Refused To Accept Statistical Evidence Of Discriminatory Purpose In Mccleskey V. Kemp - And Some Pathways For Change, Reva Siegel

Faculty Scholarship Series

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision's thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.


Reconceptualizing Sexual Harassment, Again, Vicki Schultz Jan 2018

Reconceptualizing Sexual Harassment, Again, Vicki Schultz

Faculty Scholarship Series

Sexual harassment has always been more about sexism than it is about sex. Nearly twenty years ago, Vicki Schultz pioneered a new understanding of sexual harassment that recognized and theorized this empirical reality. The framework she developed in two articles published in the Yale Law Journal -Reconceptualizing Sexual Harassment and The Sanitized Workplace -still holds important lessons for today.


Open Statement On Sexual Harassment From Employment Discrimination Law Scholars, Vicki Schultz Jan 2018

Open Statement On Sexual Harassment From Employment Discrimination Law Scholars, Vicki Schultz

Faculty Scholarship Series

We, the undersigned legal scholars and educators with expertise in employment discrimination law, seek to offer a new vision and agenda for eliminating sexual harassment and advancing workplace equality. We are inspired by the #MeToo movement: The courage and sheer number of people who have come forward to report harassment and abuse, the cross-race, cross-class solidarity among activists, the media’s in-depth and sustained coverage, and the public’s willingness to hear and believe so many victims all suggest this is a watershed moment for change.


Keep On Keeping On: Maintaining Momentum For Criminal Justice Reform During The Trump Era, Miriam S. Gohara Jan 2018

Keep On Keeping On: Maintaining Momentum For Criminal Justice Reform During The Trump Era, Miriam S. Gohara

Faculty Scholarship Series

President Donald Trump and his Attorney General, Jeff Sessions, have swiftly and starkly distinguished their criminal justice rhetoric and policies from those of their predecessors. President Trump and Attorney General Sessions have traded on racist stereotypes and notions that criminals have been emboldened in recent years in the wake of the Obama Administration’s purported lenience in law enforcement and sentencing. In doing so, the Trump Administration has heightened the imperative for criminal justice reform, particularly for policies designed to reduce the numbers of people in jails and prison, the most urgent civil rights and racial justice issue of the ...


War Manifestos, Oona Hathaway, William S. Holste, Scott J. Shapiro, Jacqueline Van De Velde, Lisa Wang Lachowicz Jan 2018

War Manifestos, Oona Hathaway, William S. Holste, Scott J. Shapiro, Jacqueline Van De Velde, Lisa Wang Lachowicz

Faculty Scholarship Series

This Article is the first to examine "war manifestos, "documents that set out the legal reasons sovereigns provided for going to war from the late fifteenth through the mid-twentieth centuries. We have assembled the world's largest collection of war manifestos--over 350--in languages as diverse as Classical Chinese, German, French, Latin, Serbo-Croatian, and Dutch. Prior Anglophone scholarship has almost entirely missed war manifestos.


Hope And Fear For Democracy In America, Daniel Markovits Jan 2018

Hope And Fear For Democracy In America, Daniel Markovits

Faculty Scholarship Series

The familiar saying “money is power” carries two meanings: one is common in the United States today; the other less so. The common meaning asserts that money buys power and therefore that economic inequality tends towards, or causes, political inequality. According to this idea, the rich can use their income and wealth to pay lobbyists and influence legislation, to subsidize political campaigns and influence elections, and even to buy publicity and influence public opinion. In the limit case, the rich deploy these and other related methods to monopolize political power. Political scientists increasingly document that the limit case is not ...


Beyond Head Of Household: Rethinking The Taxation Of Single Parents, Jacon Goldin, Zachary Liscow Mar 2017

Beyond Head Of Household: Rethinking The Taxation Of Single Parents, Jacon Goldin, Zachary Liscow

Faculty Scholarship Series

Under current law, unmarried taxpayers with children can take advantage of the head of household filing status (HHFS) to reduce their federal income taxes. We argue that the design of the filing status is largely obsolete, geared toward alleviating a “marriage penalty” in the tax code that is much less important than when the filing status was first established. At the same time, the growth in the fraction of Americans raising children outside of traditional two-parent households has dramatically raised the cost of the filing status to the fisc.


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 ...


A Market Test For Bayh-Dole Patents, Ian Ayres, Lisa Larrimore Ouellette Jan 2017

A Market Test For Bayh-Dole Patents, Ian Ayres, Lisa Larrimore Ouellette

Faculty Scholarship Series

The Bayh-Dole Act, which allows patenting of federally funded research, has been praised for driving growth but also criticized for creating unnecessary deadweight loss and con­tributing to a patent "anticommons." Much of the controversy stems from Bayh-Dole's differing effects on different inventions. The dominant Justification for Bayh-Dole patents is commercialization theory: the idea that exclusive rights are necessary to bring inventions to market. This theory is con­vincing for inventions like pharmaceuticals with high regula­tory barriers and low imitation costs, but not when exclusivity is unnecessary for commercialization, such as for Stanford's widely licensed patents on ...


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 ...


Courting Disaster: Climate Change And The Adjudication Of Catastrophe, Douglas A. Kysar, R Henry Weaver Jan 2017

Courting Disaster: Climate Change And The Adjudication Of Catastrophe, Douglas A. Kysar, R Henry Weaver

Faculty Scholarship Series

Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort and constitutional law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop ...


Innovation Snowballing And Climate Law, Zachary Liscow, Quentin Karpilow Jan 2017

Innovation Snowballing And Climate Law, Zachary Liscow, Quentin Karpilow

Faculty Scholarship Series

Findings at the frontier of economics suggest startling implications of an under-appreciatedf act about technological development: innovation builds on itself developing path dependencies in which past innovations attract similar, but more advanced, innovations. Innovation snowballs. The world economy needs to undergo a dramatic transformation to avoid the risk of catastrophic effects from climate change. Policy to encourage this transformation should be sensitive to innovation snowballing.


Constitutional Crisis And Constitutional Rot, Jack M. Balkin Jan 2017

Constitutional Crisis And Constitutional Rot, Jack M. Balkin

Faculty Scholarship Series

No one could accuse Donald Trump's presidency of being boring. The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Because Donald Trump is very unpopular, and because he regularly does things that his opponents consider outrageous, his critics have begun to describe his actions as creating or precipitating a "constitutional crisis," especially following his first executive order limiting entry into the United States, and again after his firing of FBI director James Comey.