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Full-Text Articles in Law
Democratic Policing Before The Due Process Revolution, Sarah Seo
Democratic Policing Before The Due Process Revolution, Sarah Seo
Faculty Scholarship
According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …
An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias
An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias
Faculty Scholarship
There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American – in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor …
The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah S. Purdy
The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah S. Purdy
Faculty Scholarship
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, …
The New Public, Sarah Seo
The New Public, Sarah Seo
Faculty Scholarship
By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history …
The Age Of Consent, Philip Chase Bobbitt
The Age Of Consent, Philip Chase Bobbitt
Faculty Scholarship
On three October afternoons in the fall of 1974, Grant Gilmore, a Sterling Professor of Law at Yale, delivered his Storrs Lectures, the lecture series at Yale Law School whose speakers had included Roscoe Pound, Lon Fuller, and Benjamin Cardozo. Gilmore was a magisterial scholar: the author of a prize-winning treatise, Security Interests in Personal Property, and what remains the leading treatise on admiralty law; he was the Chief Reporter and draftsman for Article 9 of the Uniform Commercial Code; and his PhD on French poet and critic Stéphane Mallarmé had led to an appointment at Yale College before …
The Boundaries Of Private Property, Michael A. Heller
The Boundaries Of Private Property, Michael A. Heller
Faculty Scholarship
If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …
Commercial Arbitration In The Eighteenth Century: Searching For The Transformation Of American Law, Eben Moglen
Commercial Arbitration In The Eighteenth Century: Searching For The Transformation Of American Law, Eben Moglen
Faculty Scholarship
Some recent writing on the history of American law, notably that of Morton Horwitz, has observed a "transformation" in the early years of the nineteenth century as a new legal culture replaced the pre-commercial regime and altered rules of law in favor of the commercially active founders of industrial capitalism. In the course of this transformation, Horwitz argues, merchants and lawyers identified possible grounds for an "alliance," in which the lawyers gained social status and a monopoly in adjudicative institutions, while the commercial classes gained a system of law which subsidized their interests at the expense of other classes in …