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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.


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 ...


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 ...


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.


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


Why Care About Mass Incarceration?, James Forman Jr Jan 2010

Why Care About Mass Incarceration?, James Forman Jr

Faculty Scholarship Series

Advocates for less punitive crime policies in the United States face long and dispiriting odds. The difficulty of the challenge becomes clear if we compare our criminal justice outcomes with those of other nations: We lock up more people, and for longer, than anyone else in the world. We continue to use the death penalty long after Europe abandoned it, we are the only country in the world to lock up juveniles for life, and we have prisoners serving fifty-year sentences for stealing videotapes from Kmart. Our courts offer little relief: the German Constitutional Court prohibits a sentence of life ...


Between Access To Counsel And Access To Justice: A Psychological Perspective, Tom R. Tyler, Nourit Zimerman Jan 2010

Between Access To Counsel And Access To Justice: A Psychological Perspective, Tom R. Tyler, Nourit Zimerman

Faculty Scholarship Series

"Access to justice" is a broad term that can be defined in different ways. In this volume alone we find different contributions which present different views of access to justice, and different answers to central normative questions concerning access to justice, such as how much access is appropriate, access to what exactly or access by whom. The movement to increase access to justice has likewise taken different directions, including the development of less formal forms of dispute resolution, simplification of legal processes, and the progress of in-court assistance to unrepresented litigants. Yet, traditionally, and for the most part, increasing access ...


Choice Of Law Theory And The Metaphysics Of The Stand-Alone Trigger, Lea Brilmayer Jan 2010

Choice Of Law Theory And The Metaphysics Of The Stand-Alone Trigger, Lea Brilmayer

Faculty Scholarship Series

This Article provides a novel account for the choice of law revolution of the 1960s and 1970s and, building on our new conceptualization of the choice of law revolution, this Article argues for a fundamental shift in modern choice of law -- a shift toward a multifactor future.


The California Proposition 8 Case: What Is A Constitution For?, William N. Eskridge Jr. Jan 2010

The California Proposition 8 Case: What Is A Constitution For?, William N. Eskridge Jr.

Faculty Scholarship Series

Professor Philip Frickey is an exemplar of the American Midwest, but his academic career has also flourished in California. This state has recently been the situs of the most interesting constitutional litigation sequence in the new millennium, starting with the California Supreme Court's 2008 decision invalidating the state's barring of same-sex marriages and culminating in the court's 2009 decision upholding Proposition 8 (which had amended the state constitution to override the 2008 decision). These landmark decisions, discussed in Part I of this Essay, are not just about same-sex marriage. The Marriage Case and, even more, the Proposition ...


Sexual And Gender Variation In American Public Law: From Malignant To Benign To Productive, William N. Eskridge Jr. Jan 2010

Sexual And Gender Variation In American Public Law: From Malignant To Benign To Productive, William N. Eskridge Jr.

Faculty Scholarship Series

Sexuality, gender, and the law now constitutes an important field of legal inquiry and scholarship. This Article traces the evolution of the "big idea" in this area: Contrary to natural law assumptions, the nation is moving decisively toward the norm that sexual and gender variation are typically benign and not malignant. Today, this liberal norm is hotly contested by both traditionalists who oppose legal reforms that require them to accommodate sexual and gender minorities, and progressives who argue that the norm should be pressed more aggressively to assail status quo institutions such as marriage. The notion that sexual and gender ...


Is Political Powerless A Requirement For Heightened Equal Protection Scrutiny?, William N. Eskridge Jr. Jan 2010

Is Political Powerless A Requirement For Heightened Equal Protection Scrutiny?, William N. Eskridge Jr.

Faculty Scholarship Series

Deferring to other scholars for analysis of the immutability argument, this Article will analyze the political powerlessness argument. Part II will lay out the intellectual and political background of the argument. Part III will demonstrate, through a close analysis of U.S. Supreme Court equal protection precedent, that political powerlessness is neither necessary nor sufficient for a classification to meet the Court's requirement for heightened scrutiny. To the contrary, the U.S. Supreme Court will not announce heightened scrutiny to protect a totally powerless minority group against pervasive discrimination. Part IV argues that, as a normative matter, political powerlessness ...


Chevron As A Canon, Not A Precedent: An Empirical Study Of What Motivates Justices In Agency Deference Cases, William N. Eskridge Jr. Jan 2010

Chevron As A Canon, Not A Precedent: An Empirical Study Of What Motivates Justices In Agency Deference Cases, William N. Eskridge Jr.

Faculty Scholarship Series

Legal scholars and jurists believe that federal judges often defer to agency interpretations of statutes. Debate has focused on when judges should defer and how judges should operationalize a deference regime doctrinally, perhaps as a matter of stare decisis. Such normative debates about deference rest upon assumptions that have not been rigorously tested, however. Examining the entire population of Supreme Court cases where an agency interpretation was in play (1984-2006), our empirical study finds that the Justices do not generally give deference-regime precedents anything close to stare decisis effect, but that the policies underlying the major deference regimes do have ...


Keynote Address: What Election Law Has To Say To Constitutional Law, Heather K. Gerken Jan 2010

Keynote Address: What Election Law Has To Say To Constitutional Law, Heather K. Gerken

Faculty Scholarship Series

This Address briefly reexamines the relationship between election law and constitutional law. For those unfamiliar with the history of this relationship, 44 Indiana Law Review 7 (2010)allow me to offer a tongue-in-cheek sketch. Election law is a young field. It was not formally declared its own field of study until 1999, though its roots date back earlier. While there were a handful of scholars writing systematically about the subject before 1990, the field came into its own during the early 1990s as a group of dynamic young scholars entered the field and made a name for themselves.