Yale Law Journal最新文献

{"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":"Infants, Toddlers, and Preschoolers","authors":"Patti M. Valkenburg, Jessica Taylor Piotrowski","doi":"10.12987/yale/9780300218879.003.0004","DOIUrl":"https://doi.org/10.12987/yale/9780300218879.003.0004","url":null,"abstract":"This chapter discusses how media preferences evolve from birth through early childhood. The focus is on two age groups, infants and young toddlers (up to 2 years old) and older toddlers and preschoolers (2–5 years). For both age groups, it describes a number of specific developmental characteristics and predicts how they influence these young children's media preferences. At what age do infants begin to take an interest in media, and why at that age? Why are toddlers so fascinated by smartphones and tablets? Should very young children even be using media? What is the “pink frilly dress” phenomenon and how does it influence media preferences? And finally, why exactly is development such a strong predictor of media preference?","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147922380","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":"A Third Front","authors":"Andrew F. Stewart","doi":"10.12987/yale/9780300208559.003.0009","DOIUrl":"https://doi.org/10.12987/yale/9780300208559.003.0009","url":null,"abstract":"This chapter considers the final element of General Wavell's grand plan: providing support for the rebellion in Ethiopia. What this did was to open up a third front in the war for Italian East Africa, as mobile attacks on isolated posts and ambushes along the main routes helped to create “a deep sense of insecurity in the minds of Italian forces.” The defending troops came to fear the possibility of being captured by the irregular forces that increasingly swarmed around them and their real value lay in this psychological distraction. In sponsoring the use of these forces, Wavell demonstrated once again his formidable understanding of warfare and the degree to which the greatest weapon was not always bullets and bombs but something a little more sophisticated.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147886181","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 Lost Museum, 1793","authors":"Coll Thrush","doi":"10.12987/yale/9780300206302.003.0008","DOIUrl":"https://doi.org/10.12987/yale/9780300206302.003.0008","url":null,"abstract":"<italic>Sparry bodies, eagle stones, Muscovy mica, ponderous earths</italic>; <italic>garnets of twenty-six sides, violet fluors, Brazil rubies, Peru emeralds.</italic> Eora people are singing, Eora people are dreaming, Eora people are stick-firing the land, Eora people are seeing the ships come in. Eora people are greeting the newcomers, Eora people...","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147912902","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 New Public","authors":"Sarah A. Seo","doi":"10.5040/9781408166710.ch-047","DOIUrl":"https://doi.org/10.5040/9781408166710.ch-047","url":null,"abstract":"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 196os who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history of criminal procedure, putting some limits on the police's discretionary power may require partitioning the enforcement of traffic laws from the investigation of crime. A U T H 0 R. I am grateful for the comments and encouragement received from the participants at the Modern America Workshop at Princeton University, the Legal History Colloquium at New York University School of Law, the Institute for Constitutional Studies at Stanford Law School, and the Contemporary Issues in Legal Scholarship Workshop at Yale Law School. I am especially indebted to Judge Guido Calabresi, Margot Canaday, Anne Coughlin, Risa Goluboff, Dirk Hartog, Laura Kalman, William Nelson, Daniel Rodgers, and David Sklansky.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"6 1","pages":"2"},"PeriodicalIF":6.4,"publicationDate":"2016-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91369513","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":"Chapter 9 - A Staggering Spectacle: Early Byzantine Aesthetics in the Triconch","authors":"Elizabeth S. Bolman","doi":"10.37862/aaeportal.00359.9","DOIUrl":"https://doi.org/10.37862/aaeportal.00359.9","url":null,"abstract":"Chapter 9. A Staggering Spectacle: Early Byzantine Aesthetics in the TriconchElizabeth S. BolmanThe Red Monastery Church: Beauty and Asceticism in Upper EgyptOne of the rarest and most dramatic aspects of the Red Monastery church triconch is its painted skin...AuthorElizabeth S. BolmanPublisherYale University PressCopyright© 2016 by American Research Center in Egypt, Inc.Related print edition pages: pp.119-127 https://doi.org/10.37862/aaeportal.00359.9 Stable URL: https://aaeportal.com/?id=-23731Copy Chapter subject tags:Red Monastery church, Sohag, EgyptArchitecture, Byzantine--EgyptDecoration and ornament, ByzantineTriconchsPolychromy (Architecture)","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147921111","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}

{"title":"Federal Questions and the Domestic-Relations Exception","authors":"B. Silverman","doi":"10.2139/SSRN.2629956","DOIUrl":"https://doi.org/10.2139/SSRN.2629956","url":null,"abstract":"The domestic-relations exception to federal jurisdiction prohibits federal courts from hearing cases involving family-law questions within the traditional authority of the states. Since the Supreme Court first articulated the exception in 1858, the scope of the doctrine has remained unclear; in particular, confusion persists over whether it applies only to diversity cases, or to federal questions as well. This Note argues that the domestic-relations exception does not, as a matter of positive law, apply to federal-question cases. Applying the exception to bar federal courts from jurisdiction over bona fide federal questions would violate Article III, which endows federal courts with jurisdiction over all federal-question cases in law or equity. Additionally, the federal-question jurisdiction statute is best read as reflecting a congressional intent that federal jurisdiction extend to domestic-relations matters that raise questions of federal law. Federal courts have the authority to resolve important and timely questions of federal law. The domestic-relations exception should not be misconstrued to stand in their way.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"51 1","pages":"4"},"PeriodicalIF":6.4,"publicationDate":"2015-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82166326","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":"Defining and Punishing Offenses Under Treaties","authors":"Sarah H. Cleveland, William S. Dodge","doi":"10.2139/SSRN.2310779","DOIUrl":"https://doi.org/10.2139/SSRN.2310779","url":null,"abstract":"One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress’s constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing a statute to respect federalism, but these questions are unlikely to go away. This Article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress’s constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Article I power to “define and punish...Offences against the Law of Nations” is limited to customary international law. But the Framers of the Constitution understood the law of nations to include both custom and treaties, or what they called “the conventional law of nations.” The history and purpose of the Offenses Clause show that it was intended to reach treaties and — despite the prevailing view in the academy — that Congress and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"72 1","pages":"1"},"PeriodicalIF":6.4,"publicationDate":"2015-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86730760","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}