Yale Law Journal最新文献

{"title":"Administrative Severability Clauses","authors":"J. Mashaw","doi":"10.2139/SSRN.2362452","DOIUrl":"https://doi.org/10.2139/SSRN.2362452","url":null,"abstract":"Severability clauses can help administrative agencies minimize the damage caused by judicial review and can make the regulatory environment more efficient, participatory, and predictable. Yet agencies rarely include these clauses in their rules because courts tend to treat administrative rules with severability clauses the same as those without. Courts have treated administrative severability clauses in this way largely because they have mistakenly analogized them to severability clauses contained in statutes. While Congress routinely includes severability clauses in statutes that are drafted in distinct iterations, by different committees with legislative staff who often lack the time and expertise to consider the clauses’ potential ramifications, administrative agencies use these clauses with more care. This Article proposes a Chevron-style deference framework for administrative severability clauses. Under this framework, after a reviewing court has set aside a challenged regulatory provision, the court should defer to a promulgating agency’s opinion on severability as expressed through a severability clause, unless the remainder of the rule itself would suffer from legal defects resulting from the court’s invalidation of the challenged provisions. This framework would better promote the overarching goals of administrative law than do current judicial doctrine and agency practice.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"43 1","pages":"2"},"PeriodicalIF":6.4,"publicationDate":"2015-03-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74993072","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":"Rules Against Rulification","authors":"Michaela Coenen","doi":"10.2139/SSRN.2388927","DOIUrl":"https://doi.org/10.2139/SSRN.2388927","url":null,"abstract":"The Supreme Court often confronts the choice between bright-line rules and open-ended standards—a point well understood by commentators and the Court itself. Less well understood is a related choice that arises once the Court has opted for a standard over a rule: may lower courts develop subsidiary rules to facilitate their own application of the Supreme Court’s standard, or must they always apply that standard in its pure, un-“rulified” form? In several cases, spanning a range of legal contexts, the Court has endorsed the latter option, fortifying its first-order standards with second-order “rules against rulification.”Rules against rulification are a curious breed: they promote the use of standards, but only in a categorical, rule-like manner. The existing literature on the rules-standards dilemma sheds only limited light on the special problems that anti-rulification rules present. This Article addresses these problems head-on, disentangling the sometimes-unintuitive consequences that follow from the Court’s adoption of anti-rulification rules, while also offering practical insights as to when and how these rules should be deployed. Among other things, the Article points out that anti-rulification rules, while useful in some circumstances, can carry the surprisingly maximalist consequences of freezing the development of the law and constraining the methodological choices of lower court actors. In addition, the Article sets forth some prescriptive suggestions regarding the creation and detection of anti-rulification rules, proposing, for instance, that the Court should proceed cautiously before pronouncing rules against rulification and that lower courts should insist on express prohibitions from the Court before deeming themselves barred from the rulification endeavor.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"26 1","pages":"644-714"},"PeriodicalIF":6.4,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73836029","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":"Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction","authors":"James E. Pfander, D. Birk","doi":"10.2139/SSRN.2538423","DOIUrl":"https://doi.org/10.2139/SSRN.2538423","url":null,"abstract":"The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that has seemed hard to square with the nation’s commitment to an adversary system. In this article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: that over disputes between adverse parties, which was known in Roman and civil law as \"contentious\" jurisdiction, and that over ex parte and other non-contentious proceedings, which was described in Roman and civil law as voluntary or \"non-contentious\" jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into such familiar bodies of civil law as equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. It was non-contentious jurisdiction that allowed the federal courts to entertain such familiar ex parte proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and to conduct inquisitorial proceedings in connection with the entry of default judgments. Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we re-consider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Non-contentious jurisdiction also sheds new light on Article III’s elusive case-controversy distinction. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"120 1","pages":"1346-1474"},"PeriodicalIF":6.4,"publicationDate":"2014-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75488286","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 Rock Inscriptions of Gebel Akhenaton","authors":"","doi":"10.2307/j.ctvhrcxnk.8","DOIUrl":"https://doi.org/10.2307/j.ctvhrcxnk.8","url":null,"abstract":"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":"83-98"},"PeriodicalIF":0.0,"publicationDate":"2013-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147916119","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 Offense-Severity Model for Stop-and-Frisks","authors":"D. Keenan, T. Thomas","doi":"10.2139/SSRN.2235707","DOIUrl":"https://doi.org/10.2139/SSRN.2235707","url":null,"abstract":"This Note joins a growing chorus of scholarship criticizing the lack of proportionality analysis in the Supreme Court’s Fourth Amendment jurisprudence. Rather than simply bemoan the current state of legal doctrine, we offer a practical test that state and federal courts could use to determine the permissible scope of pedestrian stop-and-frisks. Specifically, we propose that courts adopt an offense-severity model that distinguishes minor offenses (like jaywalking, public alcohol consumption, and simple trespass) from more serious misdemeanors and felonies. Two state supreme courts — Massachusetts’ and Washington’s — have already adopted a similar approach. As a result, police in those states may not engage in intrusive stop-and-frisks based on mere suspicion of noncriminal infractions. Our Note takes these decisions as a starting point to engage in a broader debate about crime-severity’s usefulness as a rubric for assessing police conduct under the Fourth Amendment and its state law equivalents.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"25 1","pages":"6"},"PeriodicalIF":6.4,"publicationDate":"2013-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73529400","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":"Five to Four: Why do Bare Majorities Rule on Courts?","authors":"Jeremy Waldron","doi":"10.2139/SSRN.2195768","DOIUrl":"https://doi.org/10.2139/SSRN.2195768","url":null,"abstract":"Courts, like the US Supreme Court, make important decisions about rights by voting and often the decision is determined by a bare majority. But the principle of majority-decision (MD) for courts has not been much reflected on. What justifies judges' reliance on MD? In democratic contexts, MD is usually defended either as (i) a way of reaching the objectively best decision or (ii) as a way of respecting the principle of political equality. Howerver, it is difficult to see how either of these arguments works for the judicial case. The only other argument is one of convenience, but that seems an odd basis for majoritarian authority on a court, given the momentousness of their decsiions and given that the role of courts is to check popular majorities. The paper reflects on these and other matters and concludes that, at the very least, defenders of judicial authority should be more tentative in their denunciatiions of democratic majoritarianism.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"6 1","pages":"2"},"PeriodicalIF":6.4,"publicationDate":"2013-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87144660","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 Architecture of Jurisprudence","authors":"Jules L. Coleman","doi":"10.1007/978-94-007-6067-7_5","DOIUrl":"https://doi.org/10.1007/978-94-007-6067-7_5","url":null,"abstract":"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"24 1","pages":"61-126"},"PeriodicalIF":6.4,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80021447","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":"Fair Notice About Fair Notice","authors":"J. Love","doi":"10.2139/SSRN.2035995","DOIUrl":"https://doi.org/10.2139/SSRN.2035995","url":null,"abstract":"The rule of lenity instructs courts to resolve statutory ambiguity in the defendant’s favor. One goal of the rule is to ensure that defendants have fair notice of the scope of criminal prohibitions. While lenity has deep roots in the common law, a majority of state legislatures have passed statutes instructing courts not to follow the rule of lenity in criminal cases. Some state courts abide by the legislature’s lenity-displacing command; others explicitly disregard it; and most have come down somewhere in between — neither disclaiming the rule of lenity entirely nor employing it explicitly. But judges cannot have it both ways. If they try to construe laws to be consistent with the lenity canon’s notice-giving values while avoiding an outright clash with the state legislature, they undermine the very same values that they seek to preserve. After all, if the rule of lenity is meant (at least in part) to ensure that potential criminal defendants are put on notice about the illegality of their actions, then if the courts are not clear about the interpretive method they are using, criminal defendants risk being left in the dark not only about the meaning of a state’s substantive laws, but also about how the courts will decide how to decide what the law means. A rule of lenity whose application is uncertain may be just as problematic from a fair-notice perspective as having no rule of lenity at all.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"15 1","pages":"6"},"PeriodicalIF":6.4,"publicationDate":"2012-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82362420","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":"'Who's Afraid of the Federal Circuit'","authors":"A. Rai","doi":"10.2139/SSRN.1975138","DOIUrl":"https://doi.org/10.2139/SSRN.1975138","url":null,"abstract":"In this brief Essay, I respond to Professor Jonathan Masur's Yale Law Journal article \"Patent Inflation.\" Professor Masur's argument rests on the assumption that U.S. Patent and Trademark Office (\"PTO\") behavior is determined almost entirely by a desire to avoid reversal by the Federal Circuit. Although the PTO is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction. The PTO is influenced not only by the Federal Circuit but also by executive branch actors, industry players, and workload concerns that can push in a deflationary direction.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"43 1","pages":"335"},"PeriodicalIF":6.4,"publicationDate":"2011-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89725997","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":"Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?","authors":"James Greiner, C. Pattanayak","doi":"10.1257/rct.1677-1.0","DOIUrl":"https://doi.org/10.1257/rct.1677-1.0","url":null,"abstract":"We report the results of the first of a series of randomized evaluations of legal assistance programs. This series of evaluations is designed to measure the effect of both an offer of and the actual use of representation, although it was not possible in the first study we report here to measure constructively all effects of actual use. The results of this first evaluation are unexpected, and we caution against both over-generalization and under-generalization. Specifically, the offers of representation came from a law school clinic, which provided high-quality and well-respected assistance in administrative “appeals” to state ALJs of initial rulings regarding eligibility for unemployment benefits (these “appeals” were actually de novo mini-trials). Our randomized evaluation found that the offers of representation from the clinic had no statistically significant effect on the probability that an unemployment claimant would prevail in the “appeal,” but that the offers did delay proceedings by (on average) about two weeks. Actual use of representation (from any source) also delayed the proceeding; we could come to no firm conclusions regarding the effect of actual use of representation (from any source) on the probability that claimants would prevail. Keeping in mind the high-quality and well-respected nature of the representation the law school clinic offered and provided, we explore three possible explanations for our results, each of which has implications for delivery of legal services. We conduct a review of previous quantitative research attempting to measure representation effects. We find that excepting the results of two randomized studies separated by more than thirty years, this literature provides virtually no credible quantitative information on the effect of an offer of or actual use of legal representation. We discuss disadvantages, advantages, and future prospects of randomized studies in the provision of legal assistance.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"19 1","pages":"2"},"PeriodicalIF":6.4,"publicationDate":"2011-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86264459","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}