Yale Law Journal最新文献

{"title":"Mandatory Versus Default Rules: How Can Customary International Law Be Improved?","authors":"C. Bradley, G. Gulati","doi":"10.2139/SSRN.1779782","DOIUrl":"https://doi.org/10.2139/SSRN.1779782","url":null,"abstract":"Customary International Law (CIL) is plagued with uncertainties about its sources, its content, its manipulability, and its normative attractiveness. The rise of law-making through multilateral treaties also makes the proper role of CIL increasingly uncertain. This is an opportune time, therefore, to be thinking of ways to revive and improve CIL. In a prior article, we argued that the \"Mandatory View\" of CIL, pursuant to which nations are barred from ever withdrawing unilaterally from rules of CIL, is functionally problematic, at least when applied across the board to all of CIL. We also suggested that CIL might be improved by allowing for exit rights similar to those allowed for under treaty regimes, many of which allow nations to withdraw unilaterally, at least after giving advance notice of their intent to do so. In a series of papers in Yale Law Journal’s online edition, a number of scholars - Lea Brilmayer, William Dodge, David Luban, Carlos Vazquez, and Isaias Tesfalidet - take issue with our proposal of such a \"Default View\" of CIL. In this essay, we respond to their arguments, while also emphasizing the need for additional consideration of the ways in which CIL might be improved.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"38 1","pages":"421"},"PeriodicalIF":6.4,"publicationDate":"2011-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77530160","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":"Aggregation and Law","authors":"A. Porat, E. Posner","doi":"10.2139/SSRN.1974565","DOIUrl":"https://doi.org/10.2139/SSRN.1974565","url":null,"abstract":"If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent claims, and each of them is too weak to justify a remedy, the plaintiff will usually lose, even if the claims are jointly powerful enough to justify a remedy. Thus, as a general rule courts refuse to engage in what we call factual aggregation (the first case) and normative aggregation (the second case). (We also identify other forms of aggregation.) Yet we show numerous exceptions to this rule in private and public law. Notably, in public law the hybrid rights doctrine permits courts to aggregate two weak constitutional claims as long as one involves free exercise of religion. In private law, certain tort and contract doctrines also permit aggregation. We criticize the courts’ inconsistent approaches to aggregation, and propose conditions under which courts should (and should not) aggregate.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"22 1","pages":"1"},"PeriodicalIF":6.4,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85114338","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":"Cartooning: Philosophy and Practice","authors":"Ivan Brunetti","doi":"10.37862/aaeportal.003703","DOIUrl":"https://doi.org/10.37862/aaeportal.003703","url":null,"abstract":"The best cartooning is efficient visual storytelling-it is as much a matter of writing as it is of drawing. In this book, noted cartoonist and illustrator Ivan Brunetti presents fifteen distinct lessons on the art of cartooning, guiding his readers through wittily written passages on cartooning terminology, techniques, tools, and theory. Supplemented by Brunetti's own illustrations, prepared specially for this book, these lessons move the reader from spontaneous drawings to single-panel strips and complicated multipage stories. Through simple, creative exercises and assignments, Brunetti offers an unintimidating approach to a complex art form. He looks at the rhythms of storytelling, the challenges of character design, and the formal elements of comics while composing pages in his own iconic style and experimenting with a variety of tools, media, and approaches. By following the author's sophisticated and engaging perspective on the art of cartooning, aspiring cartoonists of all ages will hone their craft, create their personal style, and discover their own visual language.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147904085","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":"Lightning in the Hand: Indians and Voting Rights","authors":"Pamela S. Karlan","doi":"10.2139/SSRN.1719702","DOIUrl":"https://doi.org/10.2139/SSRN.1719702","url":null,"abstract":"This review essay discusses Laughlin McDonald’s book, American Indians and the Fight For Equal Voting Rights (2010), to explore questions of disenfranchisement, dilution, and constitutional design. McDonald examines the barriers to full political equality faced by Indians in communities in five Western states and describes litigation under the Voting Rights Act of 1965 attacking these barriers. In many ways, the Indian voting rights cases resemble the cases brought, often a generation earlier, by black citizens in the South and Latino citizens in the Southwest. But as McDonald explains, Indians occupy a distinctive status within the American political order. Indians are citizens not only of the United States and the state where they reside but often also (and particularly in those regions where they are most likely to bring voting rights claims) of a separate sovereign as well – their tribe. This fact has inflected both the history of Indian disenfranchisement and the course of litigation under the Voting Rights Act. Part I describes the history of Indian disenfranchisement in light of their distinctive constitutional status. Indians’ exclusion from the political process reflected profound racism as pernicious and pervasive as the discrimination facing blacks in the South and Latinos in the Southwest. But it also involved complex constitutional and conceptual issues unique to Indians, who were excluded from citizenship, even after passage of the Fourteenth Amendment and who remained subject to distinct treatment even after citizenship was conferred. Part II then turns to the relatively recent vote dilution litigation that forms the heart of McDonald’s book. Indian voting rights cases have followed a clear path blazed by earlier cases involving blacks and Latinos. Nevertheless, themes related to Indians’ distinctive political status crop up within the litigation at various points. Finally, Part III looks beyond Indians’ claims under the Voting Rights Act to discuss issues related to internal tribal elections. Like other elections, these contests involve fundamental questions about enfranchisement and electoral design. Tribal answers to these questions sometimes depart dramatically from the rules governing federal, state, and local elections. I talk about two such departures, one related to voting by non-residents and the other related to nonequipopulous voting districts, to show how they that tie into ongoing debates extending far beyond Indian law.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"115 1","pages":"3"},"PeriodicalIF":6.4,"publicationDate":"2010-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80267178","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 Free Pass for Foreign Firms? An Assessment of SEC and Private Enforcement Against Foreign Issuers","authors":"Natalya Shnitser","doi":"10.2139/SSRN.2846045","DOIUrl":"https://doi.org/10.2139/SSRN.2846045","url":null,"abstract":"While proponents of the bonding hypothesis have posited that foreign firms crosslist in the United States to signal compliance with the strict U.S. corporate governance regime, these scholars have taken the enforcement of U.S. securities laws largely for granted. This Note presents an empirical examination of previously unexplored data on the enforcement of U.S. securities laws against foreign issuers. The results suggest that relative to domestic issuers, foreign issuers in the United States have benefited not only from a more lax set of rules, but also from a more forgiving public enforcement agency. At the same time, U.S. courts have limited private enforcement against foreign issuers, thus restricting an alternative to public enforcement and further widening the gap between the corporate governance regime for U.S. issuers and the one for foreign issuers.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"7 1","pages":"1638"},"PeriodicalIF":6.4,"publicationDate":"2010-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83817590","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":"Uniform Ethical Regulation of Federal Prosecutors","authors":"Bradley T. Tennis","doi":"10.2139/SSRN.1593212","DOIUrl":"https://doi.org/10.2139/SSRN.1593212","url":null,"abstract":"Federal prosecutors are subject to a bewildering array of ethical regulations ranging from state ethical codes to local rules adopted by federal courts to the internal policies of the Department of Justice. The inconsistent and overlapping application of these ethical rules has led to regulatory confusion that has inhibited the development of clear ethical expectations for federal prosecutors. A uniform system of ethical regulation, dividing regulatory authority amongst the Courts, the Department of Justice, and a to-be-created independent ethical review commission should be adopted to ensure the consistent enforcement of federal criminal law.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"5 1","pages":"3"},"PeriodicalIF":6.4,"publicationDate":"2010-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90744793","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":"Cost-Shifting in Electronic Discovery","authors":"Bradley T. Tennis","doi":"10.2139/SSRN.1593242","DOIUrl":"https://doi.org/10.2139/SSRN.1593242","url":null,"abstract":"Rapid growth in the creation and retention of electronically stored information (ESI) has revealed fundamental inequities in the traditional allocation of discovery costs. While cost shifting has always been an option for a judge seeking to limit overly aggressive or intrusive discovery requests, no generally applicable framework for determining when cost shifting is appropriate has yet emerged. In 2006, the Federal Rules of Civil Procedure were amended in an attempt to more explicitly account for the peculiarities of the discovery of ESI and to unify the various district court approaches. However, due to the close relationship of the cost-shifting test embedded in the 2006 amendments and the leading doctrines in case law, courts have continued to apply prior case law directly, occasionally alongside or within the amendment framework. While the leading doctrine in the case law bears a structural similarity to the test proposed in the notes accompanying the 2006 amendments, the two tests are distinct and have different implications for the substantive protections afforded to responding parties. The tendency of courts to apply the tests interchangeably has undermined the development of a unified nationwide approach to cost shifting in electronic discovery.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"196 1","pages":"6"},"PeriodicalIF":6.4,"publicationDate":"2010-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75058635","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 Administration and Administrative Law in the Gilded Age","authors":"J. Mashaw","doi":"10.2139/SSRN.1499322","DOIUrl":"https://doi.org/10.2139/SSRN.1499322","url":null,"abstract":"This article has a simple message. The standard history of the development of American Administrative Law is at best partial and in many respects incorrect. The national government of the United States was an administrative government from the very beginning of the Republic. Moreover, that administrative government then, as now, was both constituted and constrained by law. In short, America had a federal administrative law long before that field of law was either recognized or named. In order to see administrative law in an era that mostly denies its existence, my inquiry is structured around three very general issues of governmental organization. Following the lead of Frank Goodnow, I see administrative officers as operating within three overlapping accountability regimes: political accountability to elected officials; hierarchical or managerial accountability to administrative superiors; and legal accountability to individuals and firms through judicial review. The distinctive characteristics of administration and administrative law in particular periods depend upon the relative importance of these regimes in structuring and checking administrative discretion and the particular mechanisms that political, administrative and legal actors deploy. Both the forms of and the balance among regimes shift over time. Indeed, it is the distinctive form and balance among these accountability regimes in the organization of 19th century national administration that has made administrative law invisible. But in every era there is a law of administration. To ignore that “administrative law” prior to the Interstate Commerce Act, in what I now tend to think of as “the lost 100 years of American administrative law,” is to ignore much of how American administrative institutions have been built, maintained and constrained. And, in my view, it is to ignore the incremental and pragmatic processes by which American public law usually develops. This article treats the Gilded Age incarnation of each of these three accountability regimes in turn. It first describes developments in the political control of administration in Post-Bellum America and the emergence of the “apolitical” civil service ideal, partially embodied in the Pendleton Act of 1883. As in all periods of American history, political control of administration in this period features both organizational changes in the political branches and the continuing struggle between presidents and congresses for dominance. The defining feature of this era might be said to be the migration of the provision of secure tenure in office from a congressional strategy to weaken presidential control over high-level administrators to an institutionalized protection for lower level officials that, in practical effect, constrained congressional power. The article next looks at developments in judicial review. Prior to 1860 judicial review of administrative action by federal courts had, to modern eyes, a peculiar structure. Review ","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"114 1","pages":"1"},"PeriodicalIF":6.4,"publicationDate":"2009-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79886558","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 Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights","authors":"R. West","doi":"10.4324/9781315588124-4","DOIUrl":"https://doi.org/10.4324/9781315588124-4","url":null,"abstract":"The essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support. These marginalized groups need greater community and state assistance with the demands of parenting, and the equation of reproductive justice with a right to terminate a pregnancy is in tension with a political or legal agenda for meeting those needs. The essay then explores the possibility of creating a right to legal abortion through ordinary political means, rather than through constitutional adjudication, in such a way as not to carry these costs.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"35 1","pages":"5"},"PeriodicalIF":6.4,"publicationDate":"2009-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85126283","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":"Contract Interpretation Redux","authors":"Alan L. Schwartz, R. Scott","doi":"10.2139/SSRN.1504223","DOIUrl":"https://doi.org/10.2139/SSRN.1504223","url":null,"abstract":"Contract interpretation remains the largest single source of contract litigation between business firms. In part this is because contract interpretation issues are difficult, but it also reflects a deep divide between textualist and contextualist theories of interpretation. While a strong majority of U.S. courts continue to follow the traditional, \"formalist\" approach to contract interpretation, some courts and most commentators prefer the \"contextualist\" interpretive principles as exemplified by the Uniform Commercial Code and the Second Restatement. In 2003, we published an article that set out a theory of contract interpretation to govern agreements between business firms. In that article, we support a formalist theory of contract interpretation. Our article has prompted a number of anti-formalist responses. In our article we argued that, although accurate judicial interpretations are desirable, accurate interpretations are costly for parties and courts to obtain. Thus, any socially desirable interpretive rule would trade accuracy off against contract writing and adjudication cost. This trade-off implies that risk neutral business parties will commonly prefer judicial interpretations to be made on a limited evidentiary base the most important element of which is the contract itself. But importantly, we also argued that commercial parties’ preferences along this dimension will be heterogeneous. Thus, any interpretation rules the state adopts should be defaults and the state should defer to the expressed preferences of particular parties regarding interpretation. This Review Essay clarifies and extends these arguments. We briefly summarize empirical data that support our theory, and respond to our critics. Although much academic commentary suggests otherwise, both the available evidence and prevailing judicial practice support the claim that sophisticated parties prefer textualist interpretation. Sophisticated commercial parties incur costs to cast obligations expressly in written and unconditional forms to permit a party to stand on its rights under the written contract, to improve party incentives to invest in the deal, and to reduce litigation costs. Contextualist courts and commentators prefer to withdraw from parties the ability to use these instruments for contract design. The contextualists, however, cannot justify rules that so significantly restrict contractual freedom in the name of contractual freedom.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"844 1","pages":"926"},"PeriodicalIF":6.4,"publicationDate":"2009-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76978296","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}