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Full-Text Articles in Law

Starving The Statehouse: The Hidden Tax Policies Behind States’ Long‐Run Fiscal Crises, Jeremy Pilaar Oct 2018

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.


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

Three Theses On The Current Crisis Of International Liberalism, David Singh 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.”


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?


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.


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

Superfund In The Trump Era, E. Donald 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 ...


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.


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 ...


Surreply: How And Why We Should Become Un-Stuck!, David Schleicher Jan 2018

Surreply: How And Why We Should Become Un-Stuck!, David Schleicher

Faculty Scholarship Series

Writing a "surreply" in a law review symposium is almost always a mistake. The author of the initial piece is inevitably motivated by conflicting and counterproductive impulses. Initially, the author will always experience an overwhelming feeling of gratitude that leading scholars took the time to write responses. I certainly feel this. The four responses to my article, Stuck! The Law and Economics of Residential Stagnation, are serious, in-depth, and thoughtful. I am very grateful to their four respective authors. But focusing on one's appreciation leads to saccharine responses, better fodder for thank you notes than for the pages of ...


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. The kind of secrecy I discuss here has several sources including the promotion of alternative dispute resolution ("ADR") through in-chambers judicial management and settlement efforts; the design of some online dispute resolution ("ODR") and court-annexed arbitration programs; mandates to outsource ...


Critical Legal Histories And Law's (In)Determinancy, Reva B. Siegel Jan 2018

Critical Legal Histories And Law's (In)Determinancy, Reva B. 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.

As I have pulled on the string of these memories, what strikes me is how Critical Legal Histories enabled some of my first work on the modernization of marital status law, even as I ...


The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy Jan 2018

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy

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 ...


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 ...


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 ...


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 ...


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.


The Accumulation Of Disadvantages, Owen M. Fiss Jan 2018

The Accumulation Of Disadvantages, Owen M. Fiss

Faculty Scholarship Series

The continued subjugation of a historically disadvantaged group is the product of policies that cut across all walks of life. Members of such a group are personally shunned, their educational opportunities are impaired, the jobs open to them are limited, and they are confined to living with one another in the same neighborhood, usually in the oldest and most dilapidated housing, unable to count on the most rudimentary public services. Often, members of such a group are even denied the right to vote.


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

Pregnancy As A Normal Condition Of Employment: Comparative And Role-Based Accounts Of Discrimination: Cutler Lecture, Reva B. 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. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women's labor force participation, and affirmed a world in which ...


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 ...


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.


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 ...


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.


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.


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

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


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

The lecture's aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways ...