Yale Law Journal最新文献

{"title":"Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability","authors":"Michael B Kimberly","doi":"10.2307/20454706","DOIUrl":"https://doi.org/10.2307/20454706","url":null,"abstract":"On July 8, 2001 in Lake Park, Florida, Anthony Frierson was sitting in his .1981 Plymouth sedan on Old Dixie Highway waiting for the light to turn green. Once the green turn arrow appeared, he turned left without using his signal. Although turning without a signal does not violate Florida traffic laws,' Officer Steven Miller observed Frierson making the turn and pulled him over illegally.2 When asked, Frierson provided the officer with his license, which Miller used to run a warrants check. The check revealed an outstanding warrant for Frierson's arrest for failure to appear in traffic court. On the basis of that warrant, Officer Miller arrested Frierson and conducted a search incident to arrest. That search revealed an illegal firearm, for which Frierson was charged and later convicted. 3 In State v. Frierson, the Florida Supreme Court upheld the conviction, permitting entry of the firearm into evidence. The court reasoned that \"the outstanding arrest warrant was a judicial order directing the arrest of respondent whenever the respondent was located,\" and thus \"the search was incident to the outstanding warrant and not incident to the illegal stop.\"4 Although the suspicionless traffic stop violated the Federal Constitution, the","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"76 1","pages":"177"},"PeriodicalIF":6.4,"publicationDate":"2008-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/20454706","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72514988","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":"Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart","authors":"Reva B. Siegel","doi":"10.2307/20454694","DOIUrl":"https://doi.org/10.2307/20454694","url":null,"abstract":"This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court's recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe - exploring strategic considerations that lead advocates to favor incremental restrictions over bans, and to supplement fetal-protective justifications with woman-protective justifications for regulating abortion. The essay argues that a multi-faceted commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity is a value that bridges communities divided in the abortion debate, as well as diverse bodies of constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion, while Casey invokes dignity as a reason for protecting women's abortion decisions from government regulation. This dignity-based analysis of Casey/Carhart offers principles for determining the constitutionality of woman-protective abortion restrictions. that are grounded in a large body of substantive due process and equal protection case law. Protecting women can violate women's dignity if protection is based on stereotypical assumptions about women's capacities and women's roles, as many of the new woman-protective abortion restrictions are. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. The new woman-protective abortion restrictions do not provide women in need what they need: they do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting on alternative - and constitutional - modes of protecting women who are making decisions about motherhood.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"12 1","pages":"1694"},"PeriodicalIF":6.4,"publicationDate":"2008-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84815409","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":"Elements of the Law of Contracts","authors":"E. Harriman","doi":"10.2307/1321507","DOIUrl":"https://doi.org/10.2307/1321507","url":null,"abstract":"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"39 1","pages":"116"},"PeriodicalIF":6.4,"publicationDate":"2008-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78765846","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":"Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages","authors":"Thomas B. Colby","doi":"10.2307/20454718","DOIUrl":"https://doi.org/10.2307/20454718","url":null,"abstract":"In Philip Morris v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of this landmark decision. It argues that, although the Court's procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages - questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution's criminal procedural safeguards? The Article argues that punitive damages are properly conceived of a form of punishment for private wrongs: judicially sanctioned private revenge. As such, the Article explains, it makes both theoretical and doctrinal sense to impose them without affording the defendant criminal procedural protections, which are necessitated only for the punishment of public wrongs on behalf of society. When, however, courts employ punitive damages as a form of punishment for public wrongs, they become a substitute for the criminal law and thus make an intolerable end run around the Bill of Rights. For that reason, Williams was ultimately correct that punitive damages must be limited to punishment for the harm done to the individual plaintiff, not the harm done to the general public. The Article concludes by considering the future of punitive damages in light of the Williams decision. It concludes that, contrary to the emerging conventional wisdom, Williams does not stand in the way of the imposition of substantial extra-compensatory damages of the type favored by law and economics scholars as a means of forcing the defendant to internalize the costs of its behavior in order to achieve optimal deterrence. It is the fact that punitive damages punish, and that they do so in order to vindicate the interests of the state, that precludes their use to address third-party harms. Once the element of punishment is eliminated from the remedy, the constitutional infirmity at issue in Williams is ameliorated.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"66 1","pages":"392"},"PeriodicalIF":6.4,"publicationDate":"2008-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77461724","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":"From Litigation, Legislation: A Review of Brian Landsberg's Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act","authors":"Cristina M. Rodríguez","doi":"10.2307/20454676","DOIUrl":"https://doi.org/10.2307/20454676","url":null,"abstract":"In the early 1960s, Brian Landsberg and his colleagues at the Department of Justice challenged the discriminatory practices of Alabama's local voting officials, who manipulated registration requirements to prevent blacks from joining the voting rolls. In Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act, Landsberg gives these lawyers their historical due. He demonstrates how the cases they brought helped shape the landmark Voting Rights Act of 1965. Though Landsberg's account ends with the dawn of the VRA, the importance of the DOJ litigators' work ultimately transcended is impact on the original statute. The history Landsberg tells underscores that when remedies migrate from litigation to legislation, they establish a framework that subsequent reformers can use to address new challenges. This Essay demonstrates this dynamic. It highlights how the DOJ lawyers provoked a paradigm shift that ultimately supported the extension of the VRA to language minorities, giving rise to the bilingual ballot. Though much separates 1960s Alabama from 1970s Texas, the time and place that produced the VRA's extensions, the two historical moments are connected by principles of great significance to contemporary conceptions of democracy. This same comparison, however, also demonstrates that remedies targeted at the problems of one group may not translate well to the context of another group. In addition to providing an opportunity for reflection on the far-reaching consequences of the DOJ litigation, then, Landsberg's work reminds us of the need to look beyond existing frameworks when addressing contemporary challenges to equality in the political process.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"473 1","pages":"3"},"PeriodicalIF":6.4,"publicationDate":"2008-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79662223","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":"Weight Discrimination: One Size Fits All Remedy?","authors":"Lucy Wang","doi":"10.2307/20454697","DOIUrl":"https://doi.org/10.2307/20454697","url":null,"abstract":"A U T H O R. Yale Law School, J.D. expected 2008; Yale University, B.A. 2005. The author is indebted to Professor Peter H. Schuck for his ldndness, support, and brutal honesty. She wishes to thank everyone at the Rudd Center for their guidance on this project; Professors Richard Brooks, Christine Jolls, Theodore Ruger, and Stephen D. Sugarman for their helpful comments; and Sarah L. Bishop for her artful editing.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"100 1","pages":"1900"},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73595831","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":"When Parents Aren't Enough: External Advocacy in Special Education","authors":"E. Phillips","doi":"10.2307/20454695","DOIUrl":"https://doi.org/10.2307/20454695","url":null,"abstract":"A U T H O R. Yale Law School, J.D. expected 2009; A.B. Duke University, 2006. I am grateful to Anne Alstott for her guidance and inspiration throughout the development of this piece. Thanks also to Stephen Meyer for his insightful comments and unwavering encouragement, to my family and particularly my mother, Elizabeth Phillips, for constant support and ideas, and to Adam Banks for his exceptional editing.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"60 1","pages":"1802"},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74108204","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":"Justifications, Powers and Authority","authors":"M. Thorburn","doi":"10.2307/20454675","DOIUrl":"https://doi.org/10.2307/20454675","url":null,"abstract":"Justification defenses have been the subject of a protracted debate in criminal law theory for the past thirty years. Both sides in this debate have assumed that the question at issue is whether the actor's conduct is morally justified; they differ only in their views on this question. Whereas Paul Robinson has insisted that conduct is morally justified when it prevents greater harm than it causes, George Fletcher and John Gardner have insisted that the actor's reasons for action also play a crucial role. This article contends that both sides in the justifications debate have been asking the wrong question. An examination of actual justification defenses throughout the common law world makes clear that they are primarily concerned with the special permission conferred upon the actor by an authorized individual (e.g., a justice of the peace confers the authority to conduct a search on a police officer). In some cases, the authority deciding to permit the conduct is the very person who carries it out (as when a police officer decides that it is permissible to make a warrantless arrest or when a parent decides that it is permissible to use physical force against her child). Given the role that justifications clearly play in criminal law doctrine, it is appropriate to shift our attention from an evaluation of the conduct itself to a review of the authority's decision to permit it. A court's job, when evaluating justifications, is akin to the judicial review of an administrative decision. We should ask whether the decision was made reasonably and on the proper grounds, and not whether the outcome of their deliberation was correct, all things considered. Through this study of justification defenses, we begin to see that private authority in criminal law (such as parents over their children) and public authority (such as the decisions of a justice of the peace) share a common normative structure. This article concludes with a number of new questions of political legitimacy raised by this analysis.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"54 1","pages":"1070"},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89554224","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 Supreme Court Appointments Process and the Real Divide Between Liberals and Conservatives","authors":"Frederick Liu","doi":"10.2307/20454698","DOIUrl":"https://doi.org/10.2307/20454698","url":null,"abstract":"What distinguishes judicial liberals from judicial conservatives? The answer, argues Christopher Eisgruber in The Next Justice: Repairing the Supreme Court Appointments Process, is the same as what distinguishes liberals from conservatives generally: their \"political and moral values.\"' According to Eisgruber, a self-described liberal,2 the line dividing liberals and conservatives is especially evident on the Supreme Court. Because the Court's docket ''consists almost exclusively of hard cases where the law's meaning is genuinely in doubt,\" applying the law \"will require the justices to make politically controversial judgments\" \"in a significant number of instances. ' \"When they make those judgments,\" writes Eisgruber, \"they have no choice but to bring their values to bear on the issues in front of them.\"4 Eisgruber thus argues that Senators should thoroughly examine a Supreme Court nominee's ideological convictions before voting to confirm the next Justice.'","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"23 1","pages":"6"},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81662160","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":"Administration and 'The Democracy': Administrative Law from Jackson to Lincoln, 1829-1861","authors":"J. Mashaw","doi":"10.2307/20454693","DOIUrl":"https://doi.org/10.2307/20454693","url":null,"abstract":"Jacksonian America was a country in rapid transition, technologically, economically, geographically, sociologically and politically. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political reform. For Jacksonian Democrats the answer to this popular yearning was the reconstruction of American democracy - including a broadened electorate, offices open to all and the elimination of monopoly and other special privileges. Government at the national level was to be kept small and returned to the people. But as is often the case, the institutionalization of democracy demands a corresponding increase in governmental capacities. Destroying the power of the Monster Bank gave new powers and capacities to the Treasury for the management of monetary policy and fiscal transfers. Offices open to all through the new system of rotation in office created the need for bureaucratic systems of control that replaced status-based restraints and personal loyalties. And the side-effects of technological development, in particular the human carnage that accompanied the rapid expansion of steamboat travel, prompted the creation of a recognizably modern system of health and safety regulation. The Democracy established by the Jacksonians both furthered the building of an American administrative state and solidified an emerging, 19th Century, model of American administration law. In that model administrative accountability was preeminently a matter of (1) political oversight and direction and (2) internal hierarchical control. Judicial control of administration featured a cramped vision of mandamus review that found administrative discretion, and therefore non-reviewability, almost anywhere thought by the responsible official was required. Yet, as individuals, officials remained personally responsible for damages whenever a jury determined that their actions were unauthorized pursuant to some standard common law tort or property action. Although administrative law structured in this fashion seems peculiar, indeed almost invisible, to the 21st Century legal imagination, it fit comfortably within Jacksonian democratic ideology. The Democracy did not envision the judiciary as having a mandate to protect errant officials from responsibility to their fellow citizens for compensation, or to interfere with the discretionary authority of an executive branch headed by a popularly-elected President. Internal hierarchical control of administration smacks of bureaucracy, but not when viewed as reinforcing the elected President's power to carry out the people's will. Bureaucracy, understood as hierarchical control of executive branches officials, and democracy, understood in presidentialist terms, were complements, not competitors. Then, as now, competition between the President and Congress for control of administration was mediated ","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"61 1","pages":"1568"},"PeriodicalIF":6.4,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83384961","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}