Yale law & policy review最新文献

{"title":"Share, Own, Access","authors":"Shelly Kreiczer-Levy","doi":"10.2139/ssrn.2777119","DOIUrl":"https://doi.org/10.2139/ssrn.2777119","url":null,"abstract":"Ownership, the cornerstone of property law, is losing its prominence. Prompted by the sharing economy, digital asset-sharing and political consumerism, individuals now use, enjoy and engage with property in different ways. They share, own, and access. Access allows consumers to engage in short-term, casual use of assets on an as-needed basis. Share is a cooperative form of consumption based on participation and collaboration in the enjoyment of property (e.g., community lending libraries). This article argues that new consumption trends present an opportunity to re-imagine property. The new consumption era is a unique formative moment in public, political and legal discourse. It reinvigorate the interest in the use capacity of things. Access and share are normatively valuable alternatives to ownership that focus on use instead of control. They are forms of property relations that stand outside of property, challenge it and validate it. In particular, access reflects a choice not to have property (own or lease) but rather have a casual, short term, unattached relation to property. The law, however, makes it difficult to choose access and share and continues to privilege ownership and long-term possession. Accordingly, the article calls for reconsidering insurance, tax, tort and antidiscrimination laws. Once the article's theoretical and normative argument is accepted, regulators will need to evaluate other market and community effects.","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"36 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2015-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2777119","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68311916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The City as a Commons","authors":"Sheila Rose Foster, Christian Iaione","doi":"10.2139/SSRN.2653084","DOIUrl":"https://doi.org/10.2139/SSRN.2653084","url":null,"abstract":"As rapid urbanization intensifies around the world, so do contestations over how city space is utilized and for whose benefit urban revitalization is undertaken. The most prominent sites of this contestation are efforts by city residents to claim important urban goods — open squares, parks, abandoned or underutilized buildings, vacant lots, cultural institutions, streets and other urban infrastructure — as collective, or shared, resources of urban communities. The assertion of a common stake or interest in resources shared with others is a way of resisting the privatization and/or commodification of these resources. We situate these claims within an emerging “urban commons” framework embraced by progressive reformers and scholars across multiple disciplines. The urban commons framework has the potential to provide a discourse, and set of tools, for the development of revitalized and inclusive cities. Yet, scholars have failed to fully develop the concept of the “urban commons,” limiting its utility to policymakers. In this article, we offer a pluralistic account of the urban commons, including the idea of the city itself as a commons. We find that, as a descriptive matter, the characteristics of some shared urban resources mimic open-access, depletable resources that require a governance or management regime to protect them in a congested and rivalrous urban environment. For other kinds of resources in dispute, the language and framework of the commons operates as a normative claim to open up access of an otherwise closed or limited access good. This latter claim resonates with the social obligation norm in property law identified by progressive property scholars and reflected in some doctrines which recognize that private ownership rights must sometimes yield to the common good or community interest.Ultimately, however, the urban commons framework is more than a legal tool to make proprietary claims on particular urban goods and resources. Rather, we argue that the utility of the commons framework is to raise the question of how best to manage, or govern, shared or common resources. The literature on the commons suggests alternatives beyond privatization of common resources or monopolistic public regulatory control over them. We propose that the collaborative and polycentric governance strategies already being employed to manage some natural and urban common resources can be scaled up to the city level to guide decisions about how city space and common goods are used, who has access to them, and how they are shared among a diverse population. We explore what it might look like to manage the city as a commons by describing two evolving models of what we call “urban collaborative governance”: the sharing city and the collaborative city.","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"34 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2015-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2653084","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68240454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Sip of Cool Water: Pregnancy Accommodation after the ADA Amendments Act","authors":"Joan C. Williams, Robin Devaux, Danielle Fuschetti, C. Salmon","doi":"10.2139/SSRN.2155817","DOIUrl":"https://doi.org/10.2139/SSRN.2155817","url":null,"abstract":"This Article explains how the changes effected by the ADAAA entitle women to a broad range of accommodations for their pregnancy-related conditions under federal law. Part I documents the historical obstacles faced by plaintiffs claiming a right to accommodation based on pregnancy. Part II begins by explaining the history and purpose of the ADAAA, and then shows how the ADAAA creates rights to accommodation in two distinct ways: (1) directly, under the ADA, when pregnant workers can prove pregnancy-related impairments (the “impairment theory”); and (2) indirectly, under the PDA, by expanding the group of similarly situated workers to whom the plaintiff can point to prove she was not treated the same as nonpregnant workers with the same ability of inability to work (the “comparator theory”). Part III looks at the six pregnancy cases decided under the ADAAA to date, which suggest that (after an initial period of confusion) courts have begun to recognize that the ADA now offers accommodations for many pregnant women. Part IV describes the relative benefits for plaintiffs of filing a claim under either the PDA or the ADA. Which cause of action will offer more protection depends on factors explored in this section. The Article concludes by providing some examples of pregnancy-related conditions and explaining how working women with those conditions are now entitled to accommodation under the ADAAA. This section highlights the parallels between common pregnancy-related conditions and non-pregnancy-related conditions, a theme upon which we elaborate in the Appendix to this article.","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"32 1","pages":"97"},"PeriodicalIF":0.0,"publicationDate":"2013-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67956174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Municipal Constitutional Rights: A New Approach","authors":"Josh Bendor","doi":"10.2139/SSRN.2148736","DOIUrl":"https://doi.org/10.2139/SSRN.2148736","url":null,"abstract":"American law long held that the Constitution does not limit state power over municipalities, a doctrine exemplified by Hunter v. Pittsburgh. While the Supreme Court has made some moves to update this doctrine in light of the Reconstruction Amendments and the constitutional rights revolution, those moves have been minimal enough to obtain uneven recognition from the Courts of Appeal, and a recent Supreme Court decision suggests a possible return to the ancien regime. I argue that the problem is that Hunter’s reach today is determined by its dicta, not its purpose, which courts have forgotten. Hunter’s purpose should be to preserve state policy flexibility, which means that state grants of municipal powers are not constitutionally enshrined as property or contract. This leaves room for municipal residents and municipalities themselves to invoke the Constitution against their creating states when individual rights or federal regulatory regimes are at stake. It even leaves for municipalities themselves to claim constitutional rights. One such candidate is free speech rights. I also discuss suits between municipalities.","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"31 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2013-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67951569","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Punishing Crimes of Terror in Article III Courts","authors":"Christina Parajon Skinner","doi":"10.2139/SSRN.2144529","DOIUrl":"https://doi.org/10.2139/SSRN.2144529","url":null,"abstract":"As the government’s strategy for advancing the “War on Terror” has evolved, preventative prosecutions of terrorism suspects in the Article III courts have played an increasingly important role. In this way, the civilian courts have been enlisted as participants in the government’s war strategy in the conflict with al Qaeda. Problematically, though, there has been little attention to how this interbranch war strategy could be more effective and better coordinated. In particular, there has been relatively little conversation about the civilian courts’ approach to sentencing and punishing defendants convicted of terrorism crimes perpetrated in connection with the War on Terror. For whatever reason, movement toward reform has been stagnant — the United States Sentencing Guidelines have been largely accepted as providing adequate guidance to the courts in their sentencing practices. This article demonstrates why the Guidelines fall short and suggests how they can improve. The article takes as its frame of reference the Executive’s war strategy and war aims in this conflict, which include preventative prosecution. In view of that strategy and its related objectives, it considers how the current Guidelines framework for international terrorism is insufficient. In so doing, the article identifies the appropriate legal principles, sentencing purposes, and historical experiences that are relevant to the United States’ conflict with al Qaeda but not adequately accounted for in the current Guidelines regime. The article proposes a way to revise the Guidelines to incorporate these principles, purposes, and lessons from history in a way that will better serve the United States’ overarching war effort. Importantly, the article proposes a sentencing and punishment framework that draws from both domestic and international law and context — consistent with the global nature of this conflict — thereby enhancing the transparency of the civilian courts’ sentencing and punishment practices and improving the coherency of this component of United States counterterrorism policy.","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"31 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2012-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67945199","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Preemption Conflation: Dividing the Local from the State in Congressional Decision Making","authors":"A. Decker","doi":"10.2139/SSRN.2381332","DOIUrl":"https://doi.org/10.2139/SSRN.2381332","url":null,"abstract":"Under the Federal Constitution’s Supremacy Clause, Congress has the power to preempt state and local laws, rendering them “null, void, invalid and inoperative.” Congress often exercises this power by adopting statutory provisions that expressly preempt certain forms of state or local regulation. The traditional answer to whether federal preemption treats state law and local (city or county) law the same has been an unequivocal yes. This Article lifts the lid on that assumption of equal treatment to see whether Congress actually differentiates between state and local laws in the federal preemption context — and to ask whether it should do so. Perhaps the City of New Orleans should be allowed to escape federal preemption more easily than the State of Louisiana in order to encourage local experimentation, or because a single local law will have less impact on federal uniformity interests than a state law will. Or perhaps Louisiana should have more leeway than New Orleans because states are considered sovereigns in our federalist system and local governments are not, or because we have only fifty states but thousands of local governments, meaning that local laws could have a greater cumulative effect on federal interests than state laws would. I conclude that Congress distinguishes the state from the local more often than is commonly understood. Further, Congress is justified in doing so on both constitutional and policy grounds. Indeed, Congress should think even more systematically and regularly about state-local differences than it currently does when drafting preemption provisions. These conclusions strengthen ongoing scholarly efforts to disentangle the local from the state, emphasizing the unique contributions of local regulation in our federalist scheme. They also deepen the theory on federal preemption, one of the most active constitutional doctrines in the courts today.","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"30 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2012-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68161470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evidentiary Rules Governing Guantánamo Habeas Petitions: Their Effects and Consequences","authors":"J. Ahuja, A. Tutt","doi":"10.2139/SSRN.2011284","DOIUrl":"https://doi.org/10.2139/SSRN.2011284","url":null,"abstract":"Since Boumediene, the courts within the D.C. Circuit have heard over sixty habeas petitions from detainees at Guantanamo Bay. At first, many writs were granted. The lower courts applied a functional framework for determining the admissibility, credibility, and probity of evidence, holding the government to the ordinary burden of preponderance of the evidence. However, as the government and detainees began to appeal habeas decisions on the basis of adverse evidentiary rulings, the Court of Appeals announced binding evidentiary rules limiting the district courts’ discretion to admit, exclude, weigh, and consider evidence as the district courts saw fit. This Note argues that these evidentiary rules deny detainees a “meaningful opportunity” to contest the factual basis of their detention. The D.C. Circuit maintains that it holds the government to a preponderance standard and has cast its reversals of the District Court’s grants of habeas corpus as mere corrections in judging evidentiary probity. However, in substance, the Court of Appeals’ evidentiary rules have quietly but significantly eroded the evidentiary burden.","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"31 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2012-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67850076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transitional justice delayed is not transitional justice denied","authors":"Zachary D. Kaufman","doi":"10.4324/9780429244674-12","DOIUrl":"https://doi.org/10.4324/9780429244674-12","url":null,"abstract":"Human experimentation by Japanese officials during World War II presents one of the most horrifying instances of state-sponsored brutality. Since the end of the war, however, the Japanese government has not officially recognized that the atrocities occurred, nor has the U.S. government acknowledged its postwar role in sheltering the perpetrators of these heinous acts. This appalling yet unaddressed affair therefore demands international attention. Because typical transitional justice options are unavailable or inappropriate, the solution may lie in an innovative civil society initiative: a people’s tribunal that could pressure the Japanese and U.S. governments to bring meaningful closure to this tragedy. This piece begins by explaining the need for contemporary confrontation of Japanese human experimentation during World War II. The piece then makes the case that a people’s tribunal is a compelling transitional justice option for addressing these crimes. The piece argues that a people’s tribunal could raise public awareness about these offenses and shame the relevant authorities into action. The piece further argues that, in any event, other transitional justice options, such as the International Criminal Court, would not be suitable for this case. The piece concludes by drawing some lessons learned from this case study about the promise and perils of attempting to promote justice and accountability for past atrocities.","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"26 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2011-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70612349","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Teacher, Student, Ticket: John Frank, Leon Higginbotham and One Afternoon at the Supreme Court - Not a Trifling Thing","authors":"J. Barrett","doi":"10.2139/SSRN.305899","DOIUrl":"https://doi.org/10.2139/SSRN.305899","url":null,"abstract":"In the fall of 1949, John P. Frank was a leading American constitutional law scholar and a new associate professor at Yale Law School. He also was a co-author of the amicus brief that the \"Committee of Law Teachers Against Segregation in Legal Education\" filed in the Supreme Court on behalf of petitioner in Sweatt v. Painter, which challenged Texas's Jim Crow system of racially-segregated legal education. When the Sweatt case was set for oral argument in April 1950, Professor Frank took his first-year student, A. Leon Higginbotham, Jr., with him to the Supreme Court to witness the event. For Leon Higginbotham (himself an impoverished black law student), this chance to witness Thurgood Marshall's attack on Plessy v. Ferguson in the context of defending a black law student's right to equal protection in legal education became a galvanizing, life-defining event. This paper, which is based on a presentation at Yale Law School's February 2002 conference on the life and legacy of Judge Higginbotham (1928-1998), reconstructs these events of 1949-1950 and describes the enormous impact of John Frank's small effort to give Leon Higginbotham a special opportunity.","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"20 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2002-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68524722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Eugenics and equality: does the Constitution allow policies designed to discourage reproduction among disfavored groups?","authors":"Lisa Powell","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83556,"journal":{"name":"Yale law & policy review","volume":"20 2","pages":"481-512"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24530552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}