Yale Law Journal最新文献

{"title":"Bush v. Gore and the Uses of 'Limiting'","authors":"Chad W. Flanders","doi":"10.2307/20455752","DOIUrl":"https://doi.org/10.2307/20455752","url":null,"abstract":"My comment looks at the debate in the 6th Circuit case Stewart v. Blackwell in light of the history of the use of \"limiting language\" by the Supreme Court. I catalog the Court's past uses of limiting language, and distinguish between the Court's several uses of limiting language. Against those who defend the limiting language of Bush v. Gore as simply an example of innocuous minimalism, I report my findings that \"limiting\" is always used by the Court to nullify a principle that decided a previous case. Additionally, the Court has never, prior to Bush, used limiting language to limit the principle in the majority opinion of case being decided. The Stewart majority would have been well advised to note this new use of limiting language, and to ask for further clarification by the Supreme Court.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"36 1","pages":"1159"},"PeriodicalIF":6.4,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73513034","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 Constitution Outside the Constitution","authors":"E. A. Young","doi":"10.2139/SSRN.965865","DOIUrl":"https://doi.org/10.2139/SSRN.965865","url":null,"abstract":"In countries that lack a single canonical text, the \"constitution\" is defined to include all those laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, is generally thought to include a variety of constitutive statutes, such as Magna Carta, the Parliament Acts, and the Human Rights Act. This article proposes a thought experiment: What if we defined the U.S. constitution by function, rather than by form? Viewed from this perspective, \"the Constitution\" would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. It would include, for example, the Judiciary Act of 1789, the Administrative Procedure Act, the Executive Orders establishing Presidential control of administrative rulemaking, and the non-statutory rules that govern voting in the House and Senate and the structure of our major political parties. These sorts of extra-canonical materials perform the basic constitutional functions of constituting the government and conferring rights on individuals. What they lack is a third characteristic shared by some (but not all) constitutions: formal entrenchment against legal change. Entrenchment has become central to the American conception of a constitution, but I propose here to decouple the entrenching function from the constitutive function for purposes of constitutional analysis. This approach offers a relatively simple answer to one of the most important problems in constitutional theory: How do we explain the evident fact that the structure of our government and the rights of the people have changed pervasively since the Founding, in ways that are simply not reflected in Article V amendments to the canonical text? The answer is that the constitutional order can change in this way because most of it was never entrenched in the canonical text to begin with. Most of the salient changes - the growth of the administrative state, the proliferation of individual entitlements - are changes to our \"constitution outside the constitution\" that are neither mandated nor forbidden by the canonical document. Because I do not view these changes as any more entrenched than the arrangements they replaced, I do not need to develop any complex and contestable theory of \"higher lawmaking\" to set these changes apart from other \"ordinary\" legislation. The functional account of constitutionalism offered here also has implications for constitutional doctrine and scholarship. My account tends to undermine doctrinal prescriptions grounded in a sharp dichotomy between constitutional and statutory claims. Such prescriptions would include arguments that the federal courts' irreducible jurisdiction under Article III should be defined by their power to hear constitutional claims, or that the federal civil rights statute, 42 U.S.C. § 1983, should be interpreted to exclude claims under feder","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"54 24 1","pages":"408"},"PeriodicalIF":6.4,"publicationDate":"2007-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84846529","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":"Property and Half-Torts","authors":"L. Fennell","doi":"10.2307/20455765","DOIUrl":"https://doi.org/10.2307/20455765","url":null,"abstract":"The idea that a tort can be split analytically into two parts - risk and harm - underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed's famous entitlement framework. Thus, in discussing an entitlement to pollute, scholars rarely distinguish inputs to pollution (a factory's emission of fumes from a smokestack) from outcomes of pollution (a neighbor's grimy linens or respiratory distress). Instead, pollution is viewed as a single unified event that one party or the other receives an entitlement to control. This failure to conceptually separate risky inputs from harmful outcomes has led to imprecise and inaccurate ways of thinking and talking about entitlements. Property theory has suffered as a result, as has our understanding of how property and torts relate to each other. In this paper, I make a start at bringing the concept of the divided tort - here termed half-torts - into the property picture. Doing so generates a reformulated entitlement framework that fits more comfortably with moral intuitions, highlights the potential roles of luck and self-help in producing outcomes, and clarifies the available menu of alternatives for addressing property conflicts. The approach taken here advances a functional view of property as a container designed to collect inputs and outcomes with some regularity.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"30 1","pages":"1400"},"PeriodicalIF":6.4,"publicationDate":"2007-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78227733","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 Promise and Pitfalls of the New Voting Rights Act","authors":"N. Persily","doi":"10.2307/20455790","DOIUrl":"https://doi.org/10.2307/20455790","url":null,"abstract":"In the summer of 2006, Congress reauthorized the expiring provisions of the Voting Rights Act (VRA) with a unanimous vote in the Senate and with limited opposition in the House of Representatives. The veneer of bipartisanship that outsiders perceived in the final vote glossed over serious disagreements between the parties over the meaning of the central provision of the new VRA, which prohibits voting laws that \"diminish the ability\" of minority citizens \"to elect their preferred candidates of choice.\" Those disagreements came to the surface in a fractured Senate Committee Report released only after Congress had passed the law. This Article describes the unprecedented legislative history of this law, and the political and constitutional constraints that led the law to take the form that it did. It also presents an interpretation of the new retrogression standard that avoids the partisan bias of alternatives while emphasizing the importance of racially polarized voting to the constitutionality and meaning of this new law. It urges that the new law be read as preventing redistricting plans that reduce the aggregated probability across districts of the election of candidates preferred by the minority community and disfavored by whites.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":"174-253"},"PeriodicalIF":6.4,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79997259","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":"Living History: How Homeowners in a New Local Historic District Negotiate Their Legal Obligations","authors":"Tad Heuer","doi":"10.2307/20455740","DOIUrl":"https://doi.org/10.2307/20455740","url":null,"abstract":"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"24 1","pages":"768"},"PeriodicalIF":6.4,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82247064","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":"An Empirical Look at Churches in the Zoning Process","authors":"Stephen Clowney","doi":"10.2307/20455742","DOIUrl":"https://doi.org/10.2307/20455742","url":null,"abstract":"Using data from New Haven, Connecticut, this study attempts to examine empirically whether churches face discrimination in the zoning context. Specifically, in this paper I scrutinize local government records to determine whether religious institutions are treated fairly in the zoning appeals process. This study contributes to the ongoing discussion over the regulation of religious land uses by answering two questions. First, to what extent does the Board of Zoning Appeals treat churches differently from secular applicants? Second, are there disparities between the fates of small religious sects and mainstream denominations in applications for zoning exemptions? My research casts some doubts upon the dominant narrative, which suggests churches have been routinely victimized by local zoning boards.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"10 1","pages":"859"},"PeriodicalIF":6.4,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89065295","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":"Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties","authors":"Curtis J Mahoney","doi":"10.2307/20455741","DOIUrl":"https://doi.org/10.2307/20455741","url":null,"abstract":"With the nation's treaty obligations proliferating and foreign affairs cases taking up a growing share of the Supreme Court's docket, it is surprising how undertheorized the field of treaty interpretation remains. To fill this void, some have suggested that textualism, which has had a major impact on statutory interpretation over the past two decades, should be applied to treaty interpretation. This Note rebuts that notion and suggests instead that courts draw from modern contract theory in developing canons of treaty interpretation. AUTHOR. Yale Law School, J.D. zoo6; Harvard College, A.B. 20oo. The author wishes to thank Professor William N. Eskridge, Jr., for introducing him to the field of statutory interpretation and for advising the research project that led to this Note. He also wishes to thank Professor Akhil Amar, Aaron Crowell, Justin Florence, Kate Wiltenburg Todrys, and Kimberly Gahan for their comments on earlier drafts. Finally, he wishes to thank Rebecca Iverson Mahoney for all of her love and support.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"101 1","pages":"824"},"PeriodicalIF":6.4,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80605509","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":"Sentencing Organizations After Booker","authors":"Timothy A. Johnson","doi":"10.2307/20455733","DOIUrl":"https://doi.org/10.2307/20455733","url":null,"abstract":"A B ST R ACT. In United States v. Booker, the Supreme Court held that courts violate individuals' right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled to a criminal jury. Accordingly, Booker's full implications for the organizational sentencing guidelines are not immediately clear. Nonetheless, a careful reading of the law suggests that organizations are entitled to a jury in at least most federal criminal cases and thus that Booker's logic should apply to the organizational guidelines.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"3 1","pages":"632"},"PeriodicalIF":6.4,"publicationDate":"2006-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91164955","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 Efficient Performance Hypothesis","authors":"R. Brooks","doi":"10.2307/20455731","DOIUrl":"https://doi.org/10.2307/20455731","url":null,"abstract":"Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. Much of the justification for this endeavor has rested upon claims of judicial and economic efficiency. But efficiency neither favors nor disfavors this conception of contract, formalized by the efficient breach hypothesis. This Essay develops an alternative approach to contract enforcement, expressed as the efficient performance hypothesis. The alternative approach predicts the same efficiency as the traditional one, but differs starkly in terms of its ethical understanding of contractual obligation. The efficient breach hypothesis supposes that the promisor has the legal right—not merely the power—to choose to perform or pay damages. That right belongs to the promisee under the efficient performance hypothesis. These discrete conceptions of promissory obligation do not exhaust the possibilities of course, but taken together the hypotheses suggest that other conceptions of legal and moral obligation may be employed within an efficient enforcement framework.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"2 1","pages":"568"},"PeriodicalIF":6.4,"publicationDate":"2006-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78380937","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":"Combatant Status Review Tribunals: Flawed Answers to the Wrong Question","authors":"Joseph Blocher","doi":"10.2307/20455734","DOIUrl":"https://doi.org/10.2307/20455734","url":null,"abstract":"This Comment argues that the Combatant Status Review Tribunals were not competent to deny Prisoner of War status because they were charged only with identifying enemy combatants, a broad category that by its own terms includes many POWs. Given the substantial overlap between the definitions of \"enemy combatant\" and \"POW,\" a CSRT's affirmative enemy combatant determination actually supports a detainee's POW status. Thus, even after their enemy combatant status has been adjudicated by the CSRTs, Guantanamo detainees should still be treated as presumptive POWs.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"20 1","pages":"667"},"PeriodicalIF":6.4,"publicationDate":"2006-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77103311","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}