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2010

Yale Law School

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Articles 1 - 30 of 145

Full-Text Articles in Law

Financing Innovation: Infrastructure Development In New Haven, 1750-1850, Thomas P. Schmidt Dec 2010

Financing Innovation: Infrastructure Development In New Haven, 1750-1850, Thomas P. Schmidt

Student Legal History Papers

The nineteenth century was a time of astonishing change in technologies of transportation. When the Constitution was ratified, to travel from New Haven to Hartford would require an arduous and uncertain trip on a rough road that could span more than a day. At the start of the twentieth century, railroads conveyed thousands of people daily along that route in a few hours, and the first automobiles were motoring over roads. The great progress in infrastructure development radically transformed the commercial, physical, and cultural landscape of America.

This transformation required great mobilizations of capital and human labor, which, in turn ...


Deal Or No Deal: An Empirical Analysis Of The Settlement Dynamics Of Landlord-Tenant Disputes, Jeffrey Lin Dec 2010

Deal Or No Deal: An Empirical Analysis Of The Settlement Dynamics Of Landlord-Tenant Disputes, Jeffrey Lin

Student Legal History Papers

This paper seeks to combine three different strands of legal scholarship: the literature about the New Haven Housing Court, the alternative dispute resolution literature on the normative and positive dimensions of settlements, and the methodological practice known as docketology, which is the concept of mining court docket sheets for data. The focus of this paper will be on using data from the New Haven Housing Court docket sheets to empirically investigate how different factors influence the probability that a case is resolved via settlement rather than through litigation to final a judgment.


Revitalizing The “Liberty Of The Ancients” Through Citizen Participation In The Legislative Process, Athanasios E. Psygkas Dec 2010

Revitalizing The “Liberty Of The Ancients” Through Citizen Participation In The Legislative Process, Athanasios E. Psygkas

Student Scholarship Papers

In a 1819 lecture Benjamin Constant distinguished between two kinds of liberty: the “liberty of the moderns” (i.e., individual autonomy) and the “liberty of the ancients” (i.e., the collective and direct exercise of sovereignty). I argue that modern safeguards of individual autonomy aspire to keep in check potential excesses of collective power. However, in focusing on the “liberty of the moderns,” we must not lose sight of the “liberty of the ancients.” This essay begins with a case of the South African Constitutional Court, Doctors for Life, regarding citizen participation in the legislative process. It establishes a scheme ...


Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott Dec 2010

Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott

Faculty Scholarship Series

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest.

The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a ...


Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert Aug 2010

Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert

Student Scholarship Papers

This article explains what President Barack Obama meant when he called empathy an “essential ingredient” in judicial decision making and, thus, the outstanding quality he would look for in his Supreme Court nominees. It also provides a comparative study between Obama’s jurisprudence of empathy and Justice James Wilson’s jurisprudence of common sense in order to illustrate the dangers of deciding difficult Supreme Court cases with recourse to unconventional, extra-legal tools.


Randomizing Law, Ian Ayres, Yair J. Listokin, Michael Abramowicz Aug 2010

Randomizing Law, Ian Ayres, Yair J. Listokin, Michael Abramowicz

Faculty Scholarship Series

Governments should embrace randomized trials to estimate the efficacy of different laws and regulations. Just as random assignment of treatments is the most powerful method of testing for the causal impact of pharmaceuticals, randomly assigning individuals or firms to different legal rules can help resolve uncertainty about the consequential impacts of law. We explain why randomized testing is likely to produce better information than nonrandom evaluation of legal policies and offer guidelines for conducting legal experimentation successfully, considering a variety of obstacles, including ethical ones. Randomization will not be useful for all policies, but once government gains better experience with ...


Ambivalence And Activism: Employment Discrimination In China, Timothy J. Webster Aug 2010

Ambivalence And Activism: Employment Discrimination In China, Timothy J. Webster

Lecturer and Other Affiliate Scholarship Series

Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to bring legal challenges against employers who have discriminated against them in hiring. Plaintiffs’ relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists and scholars who actively support ...


Adverse Reactions: Structure, Philosophy, And Outcomes Of The Patient Protection And Affordable Care Act, Michael A. Lee Jr Jul 2010

Adverse Reactions: Structure, Philosophy, And Outcomes Of The Patient Protection And Affordable Care Act, Michael A. Lee Jr

Student Scholarship Papers

On March 24th, 2010, President Obama signed the Patient Protection and Affordable Care Act, declaring “everybody should have some basic security when it comes to their health care.” This Note provides legal scholarship’s first comprehensive examination of this complex legislation. Second, it reframes the bill by proposing that its miscellaneous-seeming provisions are designed to protect a single, central provision: the ban on health discrimination. Finally, it argues that underlying economic forces will likely cause PPACA to do more harm than good. While health reform may ultimately prove successful, America has good reason to be concerned.


Lessons From Implementing The 1990 Caa Amendments, E. Donald Elliott Jun 2010

Lessons From Implementing The 1990 Caa Amendments, E. Donald Elliott

Faculty Scholarship Series

No abstract provided.


Remedies On And Off Contract, Richard R.W. Brooks, Alexander Stremitzer Apr 2010

Remedies On And Off Contract, Richard R.W. Brooks, Alexander Stremitzer

Faculty Scholarship Series

Easy availability of rescission followed by restitution has, for centuries, unsettled legal authorities, who fear it as a threat to commercial order or other normative values. Responding to these fears, authorities have limited the ease with which rescission may be elected. Their approach is often excessive and based on misun-derstandings of the remedy’s effects. Rescission followed by restitu-tion may in fact promote contracting by allowing parties to create efficient incentives. Concern about the stability of contracting is not entirely unfounded, but the problem is not primarily due to the ease with which promisees are able to rescind following breach ...


Relational Formalism, Linguistic Theory And Legal Construction, Jonathan Yovel Apr 2010

Relational Formalism, Linguistic Theory And Legal Construction, Jonathan Yovel

Faculty Scholarship Series

Legal formalism and legal relationalism are traditionally thought of as defining opposite poles of jurisprudential analysis. This study develops the notion of “relational formalism” as it emerges from practices of commercial law and from linguistic theory. As an interpretation of practice, relational formalism—although maintaining the precedence of formalist construction over functional analysis—does so while responding to practical concerns and interests entailed by relations. It argues that legal formalism needs not be an expression of positivistic commitments, and can be approached on relational grounds, and must respond to those. The study empirically analyzes a well-known problem of negotiable instruments ...


The ‘Specificity’ Of Cultural Products Versus The ‘Generality’ Of Trade Obligations, Jingxia Shi Apr 2010

The ‘Specificity’ Of Cultural Products Versus The ‘Generality’ Of Trade Obligations, Jingxia Shi

Student Scholarship Papers

The duality of cultural products presents themselves both as commercial objects and assets which convey values and identity. The WTO regime currently does not legalize ‘cultural exception’ while the adoption of UNESCO Convention on Cultural Diversity adds more discord on the interface between the ‘specificity’ of cultural products and the ‘generality’ of trade obligations. Against this backdrop, the recently decided WTO case of China--Publications and Audiovisual Products provides an opportune chance to pinpoint the treatment of cultural products in the WTO framework. Based on the DSB reports, this comment centers its analysis on four key issues, including invoking the UNESCO ...


Do The Fifth And Sixth Amendments Prohibit The Designation Of U.S. Persons Under The International Emergency Economic Powers Act?, Eric Sandberg-Zakian Apr 2010

Do The Fifth And Sixth Amendments Prohibit The Designation Of U.S. Persons Under The International Emergency Economic Powers Act?, Eric Sandberg-Zakian

Student Scholarship Papers

The International Emergency Economic Powers Act (IEEPA) empowers the executive branch to designate organizations and individuals “Specially Designated Global Terrorists.” Though IEEPA designation is used against both domestic and foreign entities, its consequences are most severe within the United States. The designee’s assets are frozen and transacting with the designee becomes a federal felony. For an American organization, IEEPA designation is a death sentence. For an Amercan individual, it amounts to house arrest. This Article analyzes IEEPA using the Mendoza-Martinez test and concludes that IEEPA designation of U.S. persons violates the Fifth and Sixth Amendments by imposing punishment ...


Language And Power In A Place Of Contingencies: Law And The Polyphony Of Lay Argumentation, Jonathan Yovel Apr 2010

Language And Power In A Place Of Contingencies: Law And The Polyphony Of Lay Argumentation, Jonathan Yovel

Faculty Scholarship Series

This article analyzes legal language through the rhetorical, argumentative and narrative structures employed by non-represented litigants, whose linguistic interaction with the court is not mediated by professional counsel. It identifies two distinct concerns that lay litigants express when approaching justice: rhetorical effectiveness in terms of persuading the court of their case; and authentic expression of their justice-related concerns, moral standing, and other extra-legal parameters. Existing research correlates these concerns, roughly, with rule-oriented and relational linguistic approaches, respectively, and acknowledges tradeoffs that lay litigants perform between them. In this research, however, litigants were observed to resist such tradeoffs, requiring that their ...


The Myth Of Efficient Breach, Alan Schwartz, Daniel Markovits Apr 2010

The Myth Of Efficient Breach, Alan Schwartz, Daniel Markovits

Faculty Scholarship Series

We defend contract law’s preference for the expectation remedy against economic, doctrinal, and moral critics, who argue that a promisee should have a right to specific performance. It follows from this claim of right that the expectation remedy unjustifiably favors promisors, by allowing a promisor to capture the entire gain from unilaterally exiting a contract as long as she compensates her promisee for whatever profit he would have realized had he received the goods or services the contract described.

We show, however, that a promisee’s gross payoff under the typical contract is invariant to the remedy the law ...


Leveraging Presidential Power: Separation Of Powers Without Checks And Balances In Argentina And The Philippines, Susan Rose-Ackerman, Diane Desierto, Natalia Volosin Mar 2010

Leveraging Presidential Power: Separation Of Powers Without Checks And Balances In Argentina And The Philippines, Susan Rose-Ackerman, Diane Desierto, Natalia Volosin

Faculty Scholarship Series

Independently elected presidents invoke the separation of powers as a justification to act unilaterally without checks from the legislature, the courts, or other oversight bodies. Using the cases of Argentina and the Philippines, we demonstrate the negative consequences for democracy arising from presidential assertions of unilateral power. In both countries the constitutional texts have proved inadequate to check presidents determined to interpret or ignore the text in their own interests. We review five linked issues: the president’s position in the formal constitutional structure, the use of decrees and other law-like instruments, the management of the budget, appointments, and the ...


Regulatory Dualism As A Development Strategy: Corporate Reform In Brazil, The U.S., And The Eu, Henry Hansmann, Ronald J. Gilson, Mariana Pargendler Mar 2010

Regulatory Dualism As A Development Strategy: Corporate Reform In Brazil, The U.S., And The Eu, Henry Hansmann, Ronald J. Gilson, Mariana Pargendler

Faculty Scholarship Series

Countries pursuing economic development confront a fundamental obstacle. Reforms that increase the size of the overall pie are blocked by powerful interests that are threatened by the growth-inducing changes. This problem is conspicuous in efforts to create effective capital markets to support economic growth. Controlling owners and managers of established firms successfully oppose corporate governance reforms that would improve investor protection and promote capital market development. In this article, we examine the promise of regulatory dualism as a strategy to diffuse the tension between future growth and the current distribution of wealth and power. Regulatory dualism seeks to mitigate political ...


All Things In Proportion? American Rights Doctrine And The Problem Of Balancing, Alec S. Sweet Mar 2010

All Things In Proportion? American Rights Doctrine And The Problem Of Balancing, Alec S. Sweet

Faculty Scholarship Series

This Article describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of ...


Leveraging International Economic Tools To Confront Child Soldiering, Diane Desierto Feb 2010

Leveraging International Economic Tools To Confront Child Soldiering, Diane Desierto

Student Scholarship Papers

Child soldiers in theatres of armed conflict represent the worst and most abusive forms of child labour. States parties to the conflict, as well as third party States, bear differentiated and continuing international legal obligations in relation to child soldiering. Not only are States parties to the conflict barred under international humanitarian law from drafting this class of protected persons into child soldiering, but it may also be argued that other States in the multilateral economic system can independently take measures pursuant to the General Exceptions (Article XX) and Security Exceptions (Article XXI) clauses of the GATT 1994 to ensure ...


Deal Or No Deal? Remedying Ineffective Assistance Of Counsel During Plea Bargaining, David A. Perez Feb 2010

Deal Or No Deal? Remedying Ineffective Assistance Of Counsel During Plea Bargaining, David A. Perez

Student Scholarship Papers

Does a defendant suffer a remedial prejudice if, as a result of ineffective assistance of counsel during plea-bargaining, s/he rejects a favorable plea offer but subsequently receives a fair trial? Courts on both the federal and state levels remain bitterly divided over this question. Although there is no clear answer, courts have generally taken one of three approaches. The first two options – ordering a new trial or reinstating the original plea offer – are remedial, and assume that the defendant suffers prejudice. The third option finds that the defendant suffered no prejudice because s/he ultimately received a fair trial ...


The Reconstruction Power, Jack M. Balkin Feb 2010

The Reconstruction Power, Jack M. Balkin

Faculty Scholarship Series

Modern doctrine has not been faithful to the text, history, and structure of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were designed to give Congress broad powers to protect civil rights and civil liberties; together they form Congress's Reconstruction Power.

Congress gave itself broad powers because it believed it could not trust the Supreme Court to protect the rights of the freedmen. The Supreme Court soon realized Congress's fears, limiting not only the scope of the Reconstruction Amendments but also Congress's powers to enforce them in decisions like United States v. Cruikshank and the Civil Rights ...


Commerce, Jack M. Balkin Feb 2010

Commerce, Jack M. Balkin

Faculty Scholarship Series

This article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Non-originalists, in turn, point to these difficulties as a refutation of orignalist premises.

Contemporary originalist readings have tended to view the commerce power through modern eyes. Originalists defending narrow readings of federal power have identified “commerce” with the trade of commodities; originalists defending broad readings of federal ...


Foreword: Federalism All The Way Down, Heather K. Gerken Jan 2010

Foreword: Federalism All The Way Down, Heather K. Gerken

Faculty Scholarship Series

We make much of "Our Federalism."' The Supreme Court routinely crafts doctrine to further its ends, and paeans to federalism regularly appear in law reviews. Federalism is a system that permits minorities to rule, and we are intimately familiar with its benefits: federalism promotes choice, competition, participation, experimentation, and the diffusion of power. The Court reels these arguments off as easily as do scholars.


Being Honest About Being Honest Agents, Guido Calabresi Jan 2010

Being Honest About Being Honest Agents, Guido Calabresi

Faculty Scholarship Series

Let me begin by saying that I am completely in favor of the proposition as stated: that judges should be the honest agents of the enacting legislature. In saying this, I first want to make a distinction between interpretation and construction. Construction is not the same thing as interpretation. Historically in our judicial system, judges have had the power to construe. Whether they should have such power and whether they should only use that power when it is delegated to them by the legislature are interesting and difficult questions.


Remarks Of Hon. Guido Calabresi, Guido Calabresi Jan 2010

Remarks Of Hon. Guido Calabresi, Guido Calabresi

Faculty Scholarship Series

It is great to be here, both because it is always nice to come to NYU, and also because it is nice to see so many friends, old and new, among the people who are visiting NYU. Today, we are talking about preemption. This issue deals not just with the question of torts and pharmaceuticals: It deals with some of the deepest questions we have before us in terms of regulation and incentives in a time of crisis.

It seems to me, speaking as an academic and not as a judge, that there has been a tendency for courts to ...


Game Stories, Carol M. Rose Jan 2010

Game Stories, Carol M. Rose

Faculty Scholarship Series

In any discussion of "Law-And-", the elephant in the room is Law and Economics ("L&E"). Economic analysis has had greater success than any other discipline as a colonizer of legal scholarship. The main contenders, Law and Society and Law and Humanities, are certainly robust in their own rights, but relative to L&E, these approaches are underweight, and their adherents have been known to seethe at the capacity of L&E scholars to smother practically every legal field in sight.

In recent years, a number of L&E scholars have adopted a new tool, game theory, that expands their ...


Hazard, Harold Hongju Koh Jan 2010

Hazard, Harold Hongju Koh

Faculty Scholarship Series

Geoffrey C. Hazard, Jr. Or as he calls himself, when he answers his phone, simply "Hazard."

His name, like his personality, connotes danger, taking a chance, boldness in the face of risk. Meeting or talking to him, whether for the first or umpteenth time, always feels a bit intimidating and hazardous. Intimidating because he is so accomplished, quick, and deep. Hazardous because it is so likely you might get something just slightly wrong, only to be gently but firmly set straight by one of the most knowledgeable lawyers, legal scholars, and law reformers of our time.


The Golden Age Of Aging, And Its Discontents, Peter H. Schuck Jan 2010

The Golden Age Of Aging, And Its Discontents, Peter H. Schuck

Faculty Scholarship Series

Today's senior citizens in the United States live in the "golden age of aging," receiving more benefits from the government than ever before, far beyond what they reasonably could have expected to receive a generation ago. A large portion of government spending goes to seniors, especially to cover medical care, and Professor Schuck argues that much of this spending is inefficient and, at times, ineffective. In light of the 2008-2009 economic climate and President Obama's push for health care reform, Professor Schuck argues that now is the time to make the hard choices that would lead to more ...


Book Review: Comments On John Fischer’S My Way, Gideon Yaffe Jan 2010

Book Review: Comments On John Fischer’S My Way, Gideon Yaffe

Faculty Scholarship Series

When reading the careful, ingenious and illuminating essays contained in this collection, you cannot help but be struck by John Fischer’s intellectual honesty. More than twenty years ago, he described the broad outlines of his now very famous positions. But his accounts of moral responsibility, of the nature of control, of the value of morally responsible action and of the relations of these things to determinism, have been refined through serious and careful engagement with the many discussions and arguments that have been offered in response to his views. He doesn’t let published criticisms or proposed refinements fall ...


Making The Case For Changing U.S. Policy Regarding Highly Skilled Immigrants, Peter H. Schuck Jan 2010

Making The Case For Changing U.S. Policy Regarding Highly Skilled Immigrants, Peter H. Schuck

Faculty Scholarship Series

Highly skilled immigrants to the United States ("HSIs") have helped catalyze American economic growth and advances in human welfare by generating knowledge and innovations that have spawned new products, services, systems, jobs, and wealth. A number of studies document that HSIs are disproportionately innovative. Similarly, HSIs are more likely to start and grow companies, which are a vital source of new jobs. Unfortunately, current U.S. policy regarding HSIs–mostly relating to H-1B and EB series visas–inhibits our ability to more fully benefit from the growth enhancing contributions HSIs can make. In addition to tinkering around the edges of ...