Yale Law Journal最新文献

{"title":"Abolitionist Prison Litigation","authors":"Molly Petchenik","doi":"","DOIUrl":"https://doi.org/","url":null,"abstract":"<p>There has long been a perceived tension between abolition and prison-conditions litigation. This piece offers a path forward for such litigation that is consistent with abolitionist goals. Drawing from experience with Texas state prisons, the piece proposes a framework for litigating prison understaffing that advances the project of abolition.&nbsp;</p>\u0000<p>&nbsp;</p>","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"9 12","pages":""},"PeriodicalIF":6.4,"publicationDate":"2023-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"50164652","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How to Save the Supreme Court","authors":"Daniel Epps, Ganesh Sitaraman","doi":"10.2139/SSRN.3288958","DOIUrl":"https://doi.org/10.2139/SSRN.3288958","url":null,"abstract":"The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in serious jeopardy. Moreover, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further escalation that would leave the Court’s image and the rule of law badly damaged. \u0000 \u0000The coming crisis can be stopped. But saving the Court’s legitimacy as an institution above politics will require a radical rethinking of how the Court has operated for more than two centuries. In this Feature, we outline a new framework for Supreme Court reform. Specifically, we argue for reforms that are plausibly constitutional (and thus implementable by statute) and that are capable of creating a stable equilibrium even if initially implemented using “hardball” tactics. Under this framework, we evaluate existing proposals and offer two of our own: the Supreme Court Lottery and the Balanced Bench. Whether policymakers adopt these precise proposals or not, our framework can guide their much-needed search for reform. We can save what is good about the Court—but only if we are willing to transform the Court.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"19 1","pages":""},"PeriodicalIF":6.4,"publicationDate":"2019-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89134272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prosecuting Corporate Crime When Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review","authors":"Nicholas Werle","doi":"10.2139/SSRN.3216152","DOIUrl":"https://doi.org/10.2139/SSRN.3216152","url":null,"abstract":"Some corporations have become so large or so systemically important that when they violate the law, the government cannot credibly threaten “efficient” criminal sanctions. By introducing political economy constraints into a standard microeconomic model of corporate liability, this Note shows how this Too Big to Jail (TBTJ) problem reduces prosecutors’ ability to deter corporate crime by simply fining a defendant corporation without the accompanying prosecution of culpable individuals and mandatory structural reforms. This Note further illustrates how the risk of corporate criminal liability alone cannot incentivize a TBTJ firm to invest in internal controls or cooperate with government investigations. To deter criminality by TBTJ firms, prosecutorial strategy should credibly threaten culpable managers with monetary and nonmonetary penalties, and not unduly rely on corporate defendants’ cooperation.The Note also advances a structural explanation for the dearth of individual prosecutions relative to negotiated criminal settlements with TBTJ companies: prosecutors currently rely on an intrafirm apparatus for investigation that may produce information necessary for corporate settlements but will not reliably produce evidence to charge culpable individuals. In response, this Note proposes enlisting the courts as a bulwark against these structural incentives for prosecutors to agree to large corporate settlements without insisting on comprehensive investigation of underlying individual culpability. Thus, I present a legislative reform that authorizes judicial review of deferred prosecution agreements to ensure prosecutors have collected sufficient evidence prior to finalizing corporate settlements.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"15 1","pages":"1366"},"PeriodicalIF":6.4,"publicationDate":"2018-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76854403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Statutory Separation of Powers","authors":"Sharon B. Jacobs","doi":"10.2139/SSRN.3229255","DOIUrl":"https://doi.org/10.2139/SSRN.3229255","url":null,"abstract":"The separation of powers forms the backbone of our constitutional democracy. But it is also a guiding principle in sub-constitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. This statutory separation of powers may be seen clearly in the simultaneous legislative creation of the independent Federal Energy Regulatory Commission (FERC) and the executive Department of Energy (DOE). Like its constitutional counterpart, the statutory separation of powers seeks to prevent the dominance of faction and create policy stability. But separating and balancing statutory authority is a delicate business subject to challenges of imprecise allocation, lopsided aggrandizement, and infrequent adjustment. The relationship between FERC and the DOE demonstrates these challenges, which have allowed the DOE to weaponize statutory checks and balances in its pursuit of policy dominance. The article concludes with recommendations for how Congress, the judiciary, and agencies themselves might mitigate these tendencies and preserve the statutory separation of powers as a meaningful safeguard against the perils of concentrated policymaking authority.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"84 1","pages":""},"PeriodicalIF":6.4,"publicationDate":"2018-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73428381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Cooperative Federalism Approach to Shareholder Arbitration","authors":"Z. Clopton, Verity Winship","doi":"10.31228/osf.io/2yu3t","DOIUrl":"https://doi.org/10.31228/osf.io/2yu3t","url":null,"abstract":"128 Yale Law Journal Forum 169 (2018).Arbitration dominates private law across an ever-expanding range of fields. Its latest target, however, may not be a new field as much as a new form: mandatory arbitration provisions built into corporate charters and bylaws. Recent developments in corporate law coupled with signals from the Securities and Exchange Commission suggest that regulators may be newly receptive to shareholder arbitration. What they do next may have dramatic consequences for whether and how corporate and securities laws are enforced.The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set of responses. In particular, the overlapping authority of federal and state actors with respect to corporate law calls for approaches that sound in cooperative federalism. Yet cooperative-federalist approaches have been absent from recent debates about shareholder arbitration. This Essay explains why cooperative federalism is a natural fit for addressing these issues. Moreover, we marshal specific examples of cooperative solutions in this area that could help frame federal-state coordination going forward. Such a cooperative response would avoid unnecessary federal-state conflict and allow policymakers to approach shareholder arbitration with expertise, accountability, and mutual respect.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"2 1","pages":""},"PeriodicalIF":6.4,"publicationDate":"2018-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90650034","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Pleading Poverty in Federal Court","authors":"Andrew Hammond","doi":"10.2139/SSRN.3102522","DOIUrl":"https://doi.org/10.2139/SSRN.3102522","url":null,"abstract":"What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound — across and within district courts — and produce a pleading system that is arbitrary, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard — one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"38 1","pages":"1"},"PeriodicalIF":6.4,"publicationDate":"2018-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87322452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Title VII's Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections","authors":"William N. Eskridge","doi":"10.2139/SSRN.3024259","DOIUrl":"https://doi.org/10.2139/SSRN.3024259","url":null,"abstract":"The Equal Employment Opportunity Commission (EEOC) and the Seventh Circuit have taken the position that Title VII’s bar to employment discrimination “because of * * * sex” applies to discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons. This interpretation follows from the ordinary meaning of the statute, read as a whole and in light of its purpose. If an employer fires a woman because she is married to another woman, rather than a man, the employer has, literally, acted “because of” her sex (if she had been a man, marriage to a woman would have been fine) and because of the sex of her partner. It is hard to deny that “sex” is not at least one “motivating factor” in the employment decision, which is all that the current version of Title VII requires for liability. Moreover, this reading of Title VII accords with its purpose, which is to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities. \u0000Treatment of anti-gay discrimination as a form of sex discrimination is not a new idea, but for several decades most federal judges have rejected it, and most Members of Congress have ignored it. This is an idea that has ripened over time, however. New circumstances have rendered the argument not only plausible but compelling. The biggest new development has been social facts and assumptions about sex minorities: In 1964, employees thought to be “homosexuals” were outside the scope of the merit-based workplace, because Americans believed them to be mentally ill, psychopathic, and predatory. Today, those views have been discredited, and this connects with a second new circumstance, a radically different constitutional baseline. As late as 2003, “homosexuals” could constitutionally be considered presumptive criminals, but the Supreme Court has for twenty years been developing a constitutional norm that gay people cannot be excluded from the law because of who they are. Indeed, the Court has ruled that the constitutional right to marry applies to same-sex (i.e., “homosexual”) couples. It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. \u0000A third new development has been the formal evolution of Title VII itself. Judges as well as commentators have largely ignored the “statutory history” of Title VII — its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court. The Trump Administration and other skeptics of a broad reading of sex discrimination maintain that Title VII divides the world into males and females and does nothing more than require employers to apply the same rules to both sexes; anti-homosexual workplace exclusions or harassment operates equally on both sexes (i.e., both lesbians and gay men are harmed). But the Supreme","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"14 1","pages":"322"},"PeriodicalIF":6.4,"publicationDate":"2017-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79367624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Nature of Parenthood","authors":"Douglas NeJaime","doi":"10.2139/SSRN.2990640","DOIUrl":"https://doi.org/10.2139/SSRN.2990640","url":null,"abstract":"In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted. \u0000This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm. \u0000Today, the law increasingly accommodates families formed through ART, and, in doing so, recognizes parents on not only biological but also social grounds. Yet, as courts and legislatures approach the parental claims of women and same-sex couples within existing frameworks organized around marital and biological relationships, they reproduce some of the very gender- and sexuality-based asymmetries embedded in those frameworks. With biological connection continuing to anchor nonmarital parenthood, unmarried gays and lesbians face barriers to parental recognition. With the gender-differentiated, heterosexual family continuing to structure marital parenthood, the law organizes the legal family around a biological mother. Against this backdrop, nonbiological mothers in different-sex couples, as well as nonbiological fathers in same-sex couples, struggle for parental recognition. \u0000To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"126 1","pages":"1"},"PeriodicalIF":6.4,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86890089","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judging Ordinary Meaning","authors":"Thomas R. Lee, Stephen C. Mouritsen","doi":"10.2139/SSRN.2937468","DOIUrl":"https://doi.org/10.2139/SSRN.2937468","url":null,"abstract":"Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there — out of respect for the notice function of the law or deference to the presumed intent of the lawmaker. \u0000 \u0000Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly bemoan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation. \u0000 \u0000We agree with the diagnosis of important scholars in this field — from Richard Fallon and Cass Sunstein to Will Baude and Steve Sachs — but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning we seek to take it seriously. We seek to do so through theories and methods developed in the scholarly field designed for the study of language — linguistics. \u0000 \u0000We identify theoretical and operational deficiencies in our law’s attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning — from the famous “no vehicles in the park” hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan) and a Seventh Circuit opinion of Judge Richard Posner (in United States v. Costello). We show that the law’s conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions. \u0000 \u0000When we speak of ordinary meaning we are asking an empirical question — about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law of interpretation. And we consider and respond to criticisms of their use by lawyers and judges.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"14 1","pages":"1"},"PeriodicalIF":6.4,"publicationDate":"2017-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86909657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Origins of Judicial Deference to Executive Interpretation","authors":"Aditya Bamzai","doi":"10.2139/SSRN.2649445","DOIUrl":"https://doi.org/10.2139/SSRN.2649445","url":null,"abstract":"Judicial deference to executive statutory interpretation — a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council — is one of the central jurisprudential principles in modern American public law. Despite its significance, however, the doctrine’s origins and development are poorly understood. The Court in Chevron claimed that judicial deference’s roots stem back to statutory-interpretation cases from the early Nineteenth Century. Others, by contrast, have sought to locate Chevron’s doctrinal roots in judicial review’s origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multi-factor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize. This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified Nineteenth Century statutory-interpretation cases applying canons of construction “respecting” contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the Nineteenth Century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework in the early Twentieth Century; the Supreme Court’s embrace of these intellectual challenges in the early 1940s; and Congress’s attempt in the Administrative Procedure Act’s standard-of-review provision to reject the Court’s interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish — contrary to the suggestion in Chevron and recent cases — that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law — the APA — was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":"1"},"PeriodicalIF":6.4,"publicationDate":"2015-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83811070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}