Yale Law Journal最新文献

{"title":"Searching for Balance in the Aftermath of the 2006 Takings Initiatives","authors":"Hannah L. Jacobs","doi":"10.2307/20455767","DOIUrl":"https://doi.org/10.2307/20455767","url":null,"abstract":"The partial regulatory takings movement seeks to compensate private landowners when regulations diminish their land values. This movement has grown in recent years, particularly at the state level. Scholars have focused thus far on the cost of compensation and its effect on the regulations that governments enact or enforce. In addition to exploring those concerns, this Note argues that partial regulatory takings regimes threaten to constrain residents’ ability to influence their communities’ growth and character. The greatest impact could fall on low-income communities, many of which contain disproportionate levels of undesirable land uses and lack adequate financial resources to influence land use planning in the absence of regulatory solutions or alternative venues. To address these problems, state and local governments should implement what I call a “regulatory balances” regime, strengthening participatory planning venues and funding the resulting measures. author. Yale Law School, J.D. expected 2007; Dartmouth College, A.B. 2002. I send my heartfelt gratitude to my fiance, Samuel Wiseman, for his constant support and help—from editing to organization to encouragement—throughout this process. Thanks also to my parents for their patience; to Josh Berman for the topic suggestion; to Adam Dressner, Andrea Gelatt, Grace Leslie, and Matthew Splitek for assistance with sources; and to Will Baude, Megan Ceronsky, Nicole Johnson, and other members of the Property, Social Justice, and the Environment Seminar for constructive discussion. Finally, many thanks to David Spohr and Professor Carol Rose, and to Annie Decker and the other editors of The Yale Law Journal, for their invaluable editing and reviewing assistance. JACOBSFORMATTEDFORSC1_01-31-07 5/17/2007 9:35:24 AM searching for balance","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"92 1","pages":"3"},"PeriodicalIF":6.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76377151","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":"Re-Justifying the Fair Cross Section Requirement: Equal Representation and Enfranchisement in the American Criminal Jury","authors":"Richard M. Re","doi":"10.2307/20455768","DOIUrl":"https://doi.org/10.2307/20455768","url":null,"abstract":"This Note proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury's legitimacy, many scholars have observed that this approach is at odds with contemporary jury law and practice. This Note argues that courts should instead defend the FCS requirement as a means of ensuring that eligible participants are included in the jury franchise. Besides solving an intractable doctrinal puzzle, an enfranchisement-based approach draws attention to ways in which widespread juror selection practices exclude underrepresented groups and thereby undermine the jury's democratic character.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"48 1","pages":"4"},"PeriodicalIF":6.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79486868","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 Canons of War","authors":"D. J. Freeman","doi":"10.2307/20455792","DOIUrl":"https://doi.org/10.2307/20455792","url":null,"abstract":"War powers hang in a delicate balance, with conflicting statutes overlying contrasting constitutional prerogatives. As Congress has filled nearly every shadowy corner of Justice Jackson's \"zone of twilight\" with its own imprimatur, war powers debates now hinge on traditional statutory interpretation, albeit in a unique context. This Note establishes context-specific canons for interpreting war powers legislation and effectuating its underlying values, aiming to provide principled resolution to seemingly intractable conflicts. In so doing, it draws upon the complete set of judicial opinions assessing authorizations of the use of military force and analyzes the institutional framework beneath them.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":"280"},"PeriodicalIF":6.4,"publicationDate":"2007-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78536017","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":"Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829","authors":"J. Mashaw","doi":"10.2307/20455775","DOIUrl":"https://doi.org/10.2307/20455775","url":null,"abstract":"In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nation confounded their ambitions. While reclaiming democracy they also built administrative capacity. This Article examines administrative structure and accountability in the Republican era in an attempt to understand the \"administrative law\" of the early nineteenth century. That inquiry proceeds through two extended case studies: the Jeffersonian Embargo of 1807-1809 and the multi-decade federal effort to survey and sell the ever-expanding \"public domain.\" The first was the most dramatic regulation of commerce attempted by an American national government either before or since. The second began a land office business that dominated the political and legal consciousness of the nation for nearly a century. The embargo tested the limits of administrative coercion and revealed an escalating conflict between the necessities of regulatory administration and judicial review in common law forms. The sale of the public domain required the creation of the first mass administrative adjudication system in the United States and revealed both the ambitions and the limits of congressional control of administration in a polity ideologically devoted to assembly government. Together these cases describe the early-nineteenth-century approach to a host of familiar topics in contemporary administrative law: presidential versus congressional control of administration, the propriety and forms of administrative adjudication, policy implementation via general rules, and the appropriate role of judicial review. Perhaps most significantly, both the embargo episode and the efforts to privatize the public domain demonstrate the singular importance of internal administrative control and accountability in maintaining neutrality and consistency in the application of federal law. This \"internal law of administration\" remains both a crucial and an understudied aspect of American administrative governance.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"27 1","pages":"1"},"PeriodicalIF":6.4,"publicationDate":"2007-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88727733","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":"Six Puerto Rican Congressmen Go to Washington","authors":"Jose R. Coleman Tio","doi":"10.2307/20455761","DOIUrl":"https://doi.org/10.2307/20455761","url":null,"abstract":"After io8 years as a colony1 of the United States, Puerto Rico continues to search for a dignified solution to its status of political subordination. Although Puerto Ricans have been U.S. citizens since 1917,2 they cannot vote in federal elections and have no say in the enactment, application, or administration of the federal laws and regulations that shape their lives. They are also denied the right to govern themselves without federal intrusion. A century of bitter internal debate, conspicuous federal neglect, and countless frustrated efforts at reform has failed to produce consensus on how to address this manifest lack of democracy. However, while the island's internal divisions reflect profound disagreements about politics, economics, and culture, Puerto Ricans from all political persuasions agree on the need to solve, at a minimum, the grossest democratic inequities of Puerto Rico's relationship with the United States. Unfortunately, the search for grand, permanent solutions to Puerto Rico's status may have dampened the search for pragmatic short-term alternatives. While the debate over the political future of the island has sputtered in Puerto Rico and Washington, Congress is currently considering a bold proposal to address the undemocratic status of another disenfranchised territory. The District of Columbia House Voting Rights Act of 2007 (H.R. 1433) attempts to end the congressional disenfranchisement of District of Columbia residents by treating the District as a state for purposes of","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"33 1","pages":"1389"},"PeriodicalIF":6.4,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76231883","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":"Private Law or Social Norms? The Use of Restrictive Covenants in Beaver Hills","authors":"Valerie Jaffee","doi":"10.2307/20455759","DOIUrl":"https://doi.org/10.2307/20455759","url":null,"abstract":"This Note provides a detailed history of the use of restrictive covenants in Beaver Hills, a planned residential subdivision built in New Haven between 19o8 and the end of the 1930s. It analyzes these covenants in light of both the relevant common law of servitudes and the contemporary evolution of public land use regulation, most notably zoning. These analyses reveal that restrictive covenants in this era are best understood as a form of signaling and social norms rather than as a form of private law. AUTHOR. Yale Law School, J.D. expected 2007; Columbia University, M.A. 2004; Harvard College, B.A. 1999. The author would like to thank Richard Brooks, Robert Ellickson, David Lenzi, and Henry Smith for their invaluable assistance with this Note.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"41 1","pages":"1302"},"PeriodicalIF":6.4,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89124867","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":"Tenant Screening Thirty Years Later: A Statutory Proposal To Protect Public Records","authors":"Rudy Kleysteuber","doi":"10.2307/20455760","DOIUrl":"https://doi.org/10.2307/20455760","url":null,"abstract":"A U T H O R. Yale Law School, J.D. expected 2007; Oxford University, B.A. (Hons.) 2004; University of North Carolina at Chapel Hill, B.S. 2002. I am grateful to my family and my partner, Justin Fansler, for their years of love, support, and encouragement; to Jay Pottenger and Frank Dineen at the Landlord-Tenant Clinic of the Jerome N. Frank Legal Services Organization for their inspiration, patient supervision, and guidance; to Fadi Hanna for extensive comments on drafts; and to Annie Decker for her indispensable insights and exceptional editing skills.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"1 1","pages":"1344"},"PeriodicalIF":6.4,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87422467","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":"Disregarding Foreign Relations Law","authors":"Derek P. Jinks, N. Katyal","doi":"10.2307/20455757","DOIUrl":"https://doi.org/10.2307/20455757","url":null,"abstract":"What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Professors Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference courts accord executive interpretations of law in the foreign-affairs context. They maintain that courts should presumptively give Chevron-syle deference to executive interpretations of foreign relations law - even if the executive interpretation is articulated only as a litigation position and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference in their proposal - namely, foreign relations law that operates in what we call the executive constraining zone. Courts have scrutinized, and should continue to scrutinize, executive interpretation of international law that has the status of supreme federal law, is made at least in part outside the executive, and conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the president in ways that would: subvert the nation's interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard; and law-interpreting authority at some point effectively constitutes law-breaking authority.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"127 1","pages":"1230-1283"},"PeriodicalIF":6.4,"publicationDate":"2007-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72679562","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":"Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext","authors":"Eric F Citron","doi":"10.2307/20455750","DOIUrl":"https://doi.org/10.2307/20455750","url":null,"abstract":"Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext. author. Yale Law School, J.D. expected 2007; Harvard College, A.B. 2003. Thanks to my many friends and my many editors on The Yale Law Journal—a group of perfect overlap—who contributed so much to whatever merit this piece may possess. And thanks especially to my family and my soon-to-be-wife Jamie, who daily give me the courage and conviction to risk failure in writing from the heart. CITRON FORMATTED FOR SC2_1-29-06 3/14/2007 4:33:46 PM right and responsibility in fourth amendment jurisprudence","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"6 1","pages":"1072"},"PeriodicalIF":6.4,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81159032","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":"Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform","authors":"Damian T. Williams","doi":"10.2307/20455751","DOIUrl":"https://doi.org/10.2307/20455751","url":null,"abstract":"Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 failed to fulfill a core VRA mandate: the preservation of minority political power. This Note provides the first critical account of this failure and argues that it transcends the specifics of Katrina. The Note then proposes a narrowly tailored doctrinal “fix” to resurrect section 5’s enforcement powers after a disaster. author. Yale Law School, J.D. expected 2007; University of Cambridge, M.Phil. 2003; Harvard University, A.B. 2002. I am deeply indebted to Professors Owen Fiss and Heather Gerken who both inspired and challenged me to develop this Note, and to Professors Dennis Curtis and Robert Solomon who directed me in the Hurricane Katrina Clinic. Many thanks to Marie Boyd, Jessica Bulman-Pozen, Kristen Clarke-Avery, Natalie Hershlag, Sia Sanneh, Robert Scott, and Katherine Wiltenburg Todrys for their incisive comments and edits. Finally, I dedicate this Note to the memory of my sister, Tiffani Simone Williams, who I miss every day. WILLIAMS_11-12-06_FORMATTEDFORSC1 3/14/2007 4:37:11 PM reconstructing section 5","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":"47 1","pages":"1116"},"PeriodicalIF":6.4,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81445868","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}