Yale Law Journal最新文献

{"title":"Race and Democratic Contestation","authors":"Michael S. Kang","doi":"10.2307/20455811","DOIUrl":"https://doi.org/10.2307/20455811","url":null,"abstract":"As the Voting Rights Act of 1965 (VRA) passes its fortieth anniversary and soon faces constitutional challenges to its recent renewal, a growing number of liberals and conservatives once united in their unqualified support now share deep reservations about it. In this Article, I argue that the growing skepticism about the VRA and majority-minority districting is misguided by a simplistic and impoverished sensibility about the value of electoral competition in American politics. Electoral competition should be judged with reference to ultimate end states it is intended to produce - more democratic debate, greater civic engagement and participation, and richer political discourse - all of which are generated by a deeper first-order competition among political leaders that I describe as 'democratic contestation.' In the Article, I offer democratic contestation, in place of electoral competition, as a basic value to be pursued in the law of democracy and as foundation for new theory that helps reconcile approaches to race, representation, and political competition. A theory of democratic contestation shifts the normative focus from the pluralist absorption about which groups get what from politics, to a new focus on the tenor and quality of democratic contestation among leaders. When viewed through a theory of democratic contestation, the VRA is crucially pro-competitive in the broader sense of democratic contestation. By carving out safe majority-minority districts, the VRA breaks the discursive stasis of racial polarization in which politics by definition revolve around the single axis of race. A theory of democratic contestation reveals how majority-minority districts energize the process of democratic contestation and enable an internal discourse of ideas that moves beyond the racially polarized divide, otherwise impossible in the face of racial polarized opposition. A theory of democratic contestation thus demands a thorough re-evaluation of the Supreme Court's recent decision in LULAC v. Perry and provides a new understanding of the renewed VRA going forward in the modern political world of national partisan competition.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"35 1","pages":"734"},"PeriodicalIF":6.4,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73113555","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":"Giving the Constitution to the Courts","authors":"J. Greene","doi":"10.2307/20455813","DOIUrl":"https://doi.org/10.2307/20455813","url":null,"abstract":"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"67 1","pages":"886"},"PeriodicalIF":6.4,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76599855","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":"Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling","authors":"M. Hussain","doi":"10.2307/20455814","DOIUrl":"https://doi.org/10.2307/20455814","url":null,"abstract":"A B ST R ACT. Counterterrorism officials increasingly seek to scrutinize conduct and behavior that they believe, however uncertainly, to be probative of terrorist activity. When such conductbased profiling specifically targets activity that is also expressive of Muslim identity, it may inflict pervasive dignitary and stigmatic harms upon the American Muslim community. Those seeking redress from such policies through litigation would find that existing constitutional doctrine does not readily let judges account for group harms when balancing the interests at stake. This Note, however, argues that Muslim plaintiffs can use the Free Exercise Clause doctrine of \"hybrid situations,\" announced in Employment Division v. Smith, to plead that certain profiles' burdens upon their religiously motivated exercise of secular constitutional rights threaten to subordinate their religious community as a whole.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"12 1","pages":"920"},"PeriodicalIF":6.4,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89173387","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 Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion","authors":"Kate Stith","doi":"10.2139/SSRN.1099064","DOIUrl":"https://doi.org/10.2139/SSRN.1099064","url":null,"abstract":"Early analyses of the federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; more recent analyses have noted the transfer of discretion from judges to prosecutors. Of equal significance are two other power struggles: between local federal prosecutors and officials in the Department of Justice, and between Congress and the Supreme Court. In its 2005 decision in United States v. Booker, and its recent decisions elaborating Booker, the Supreme Court made a high-stakes move that boldly asserted significant responsibility and authority in sentencing judges, local prosecutors, and the Supreme Court itself. Although it was not the goal either of sentencing reformers, the actual result of the Guidelines regime that took effect in late 1987 was to transfer sentencing authority not to the United States Sentencing Commission, but to federal prosecutors and - particularly in recent years - to the Department of Justice in Washington. Congress' 2003 decision, in reaction to sentencing data that appeared to reveal that sentencing judges were willfully ignoring the Guidelines in a growing proportion of cases, to enact the Feeney Amendment represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to line-prosecutors. By design, this legislation, Feeney simultaneously empowered Congress' partner in the endeavor, the Justice Department in Washington. Booker (as well as Booker's immediate predecessor, Blakely v. Washington, and Booker's progeny handed down in 2007) can be understood as a collective decision by the Supreme Court - which for more than a decade had been loathe to intervene or even seriously analyze constitutional and other issues raised by the Guidelines - that it was constitutionally and institutionally obliged to act in order to undo the Feeney Amendment, to constrain the leverage that inheres in prosecutors in a mandatory sentencing regime, and to counteract the centralizing impulse of the Department of Justice. By introducing the opportunity for judges openly to exercise judgment independent of the Guidelines, Booker and its progeny not only allow judges to provide a counterweight to prosecutorial leverage over defendants, but may also counteract the constraints that the Justice Department moved to impose (in the wake of the Feeney Amendment) on line-prosecutors. Once again, sentencing is primarily a local event. After Booker, the Department in Washington may be calling signals, but the decision-makers on the playing field - prosecutors and their judges - need not hear the calls or abide by them.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"36 1","pages":"1420"},"PeriodicalIF":6.4,"publicationDate":"2008-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82069860","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 Sentencing in 2007: The Supreme Court Holds - The Center Doesn't","authors":"D. Richman","doi":"10.2307/20454684","DOIUrl":"https://doi.org/10.2307/20454684","url":null,"abstract":"This article takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Gonzales discovered that U.S. Attorneys can bite back - at least when Congress wants them to. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States enshrined the reasonable district court as the ineffable place where federal criminal policy, sentencing philosophy and individualized judgment merge. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the sentencing literature, which pits prosecutors against judges, the institutional pairing highlighted here is Main Justice vs. the Districts, with Justice Department sentencing policies since 2001 considered in the larger context of DOJ efforts to exercise power over U.S. Attorneys' Offices. What has often been framed as judicial discretion might better be seen as a coordinated exercise in local norm setting, an exercise in which line prosecutors, through charging power and shared control over investments in information gathering (in tandem with agencies), inevitably play a critical role. The extent to which prosecutors will be allowed to explicitly embrace the power they tacitly exercise already, and whether an illusory regime of sentencing uniformity will give way to a real one of collaborative norm articulation and development remains to be seen. But the suggestion here is that the new sentencing cases may point the way to a healthier federal criminal justice system.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"50 1","pages":"1374"},"PeriodicalIF":6.4,"publicationDate":"2008-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78249117","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":"United States V. Ankeny: Remedying the Fourth Amendment's Reasonable Manner Requirement","authors":"Richard M. Re","doi":"10.2307/20455807","DOIUrl":"https://doi.org/10.2307/20455807","url":null,"abstract":"At 5:30 a.m., just before dawn, forty-four police officers converged on Kelly David Ankeny’s two-story Portland residence to execute a warrant for his arrest. The officers in charge had spent weeks crafting a plan to arrest Ankeny, a convicted and wanted felon, for assaulting his estranged wife with a firearm. In a matter of seconds, heavily armed police broke down the building’s firstfloor doors, while others outside fired rubber bullets through the building’s second-floor windows, spewing glass into the house and leaving holes in the ceiling and furniture. The first officer who encountered Ankeny pointed a riflemounted flashlight in his eyes and ordered him to the ground, just as a second officer blindly tossed a “flash-bang” grenade into the room. The grenade exploded near Ankeny’s face, causing firstand second-degree burns. Meanwhile, police entering the second floor threw a flash-bang into an occupied bedroom, setting fire to a mattress and box spring that the police then threw out of a window. After securing the occupants, including a pregnant woman and one-year-old infant, one of the officers sent the following text message: “BIG TIME FUN!! LOTS OF BROKEN GLASS, BAD GUY JUMPED ON THE FLASHBANG, GOOD TIME HAD BY ALL.” In United States v. Ankeny, a divided Ninth Circuit panel declined to suppress the weapons that were discovered in Ankeny’s residence and used to charge him with, inter alia, being a felon in possession of firearms. Over Judge Reinhardt’s dissent, the majority held that suppression was an inappropriate remedy regardless of whether the search at issue was reasonable under the Fourth Amendment. Drawing on the Supreme Court’s recent knock-and-","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"36 1","pages":"723"},"PeriodicalIF":6.4,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86666350","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":"Enforcing the Treaty Rights of Aliens","authors":"Laura Moranchek Hussain","doi":"10.2307/20455806","DOIUrl":"https://doi.org/10.2307/20455806","url":null,"abstract":"been stymied by a wave of political opposition. Critics argue that giving these treaties the force of domestic law would be inconsistent with constitutional values like sovereignty, democracy, federalism, and separation of powers. This Note analyzes these four critiques and demonstrates that the values critics seek to protect are not jeopardized by the extraterritorial application of treaty-based rights or the domestic enforcement of treaties that guarantee rights specific to aliens. With that discovery in mind, this Note proposes to incorporate such treaties into U.S. law in a way that both affirms constitutional values and promotes the rule of law in foreign affairs. A U T H O R. J.D. Yale Law School, 2007; A.M. Harvard University, 2000; B.A. Yale University, 1998. The author wishes to thank Paul Kahn, Bruce Ackerman, Oona Hathaway, Murad Hussain, Harold Koh, Reva Siegel, and her editor, Saumya Manohar, for their valuable input and support at various stages of this project.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"9 1","pages":"680"},"PeriodicalIF":6.4,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83620127","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":"Antislavery Courts and the Dawn of International Human Rights Law","authors":"Jennifer S. Martinez","doi":"10.2307/20455804","DOIUrl":"https://doi.org/10.2307/20455804","url":null,"abstract":"Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these anti-slavery courts were the first international human rights courts. They were made up of judges from different countries. They sat on a permanent, continuing basis and applied international law. They were explicitly aimed at promoting humanitarian objectives. Over the lifespan of the treaties, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels. During their peak years of operation, the courts heard cases that may have involved as many as one out of every four or five ships involved in the trans-Atlantic slave trade.These international anti-slavery courts have been given scant attention by historians, and have been almost completely ignored by legal scholars. Most legal scholars view international courts and international human rights law as largely a post-World War II phenomenon, with the Nuremberg trials of the Nazi war criminals as the seminal moment in the turn to international law as a mechanism for protecting individual rights. But in fact, contrary to the conventional wisdom, the nineteenth century slavery abolition movement was the first successful international human rights campaign, and international treaties and courts were its central features. In addition to being of intrinsic historical interest, the story of the anti-slavery courts has important implications for contemporary issues in international law. The history of the anti-slavery courts reveals a more complex interrelationship between state power, moral ideas, and domestic and international legal institutions than many contemporary theories of international law and relations acknowledge. Moreover, the anti-slavery movement's use of international law and legal institutions as part of a broader social, political and military strategy can help us better understand the potential role of international law today in bringing about improvements in human rights.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"12 1","pages":"550"},"PeriodicalIF":6.4,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73417479","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":"Concession Agreements: From Private Contract to Public Policy","authors":"N. Miranda","doi":"10.2307/20455800","DOIUrl":"https://doi.org/10.2307/20455800","url":null,"abstract":"Many concession agreements between governments of developing countries and corporations have failed to produce expected infrastructural, monetary, and efficiency gains. This Note argues that these agreements fail in part because the parties construct them as traditional private contracts. Given their subject matter, their noneconomic focus and purposes, and the ways in which they shape future economic development strategy, international policymakers and business leaders should conceptually and procedurally recast concession agreements as traditional matters of public policy. This reinterpretation will make the agreements more stable and successful by making their costs and benefits more transparent, their drafters more accountable to the populations they are intended to benefit, and their terms more responsive to the concerns of those populations.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"46 1","pages":"510"},"PeriodicalIF":6.4,"publicationDate":"2007-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89615847","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":"Insurance Law's Hapless Busybody: A Case against the Insurable Interest Requirement","authors":"Jacob Loshin","doi":"10.2307/20455799","DOIUrl":"https://doi.org/10.2307/20455799","url":null,"abstract":"A B ST R ACT. For centuries, the law has prevented people from purchasing insurance on the life or property of strangers because such insurance contracts would give policyholders incentives to end the life or destroy the property in order to collect the insurance payout. The law thus requires that policyholders have an \"insurable interest\" in the person or property they insure, and contracts lacking such an \"insurable interest\" are invalidated by courts as against public policy. This Note presents an economic analysis of the insurable interest requirement, and argues that the doctrine creates perverse incentives that encourage the very practices the doctrine seeks to deter. In addition to failing on its own terms, the doctrine also invites unfairness and inefficiency in the insurance market. This Note concludes that the best way for courts to prevent insurance contracts on the life or property of strangers may be to refrain from invalidating such contracts in the first place.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"126 1","pages":"474"},"PeriodicalIF":6.4,"publicationDate":"2007-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75477959","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}