Author Archive for yale-law-journal

The Yale Law Journal: Vol. 122, Issue 6

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Volume 122, Issue 6
April 2013

  April 18, 2013 at 11:49 am   Posted in: Law Rev (Yale)   Print This Post   No Comments

The Yale Law Journal Online: New Content

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The Yale Law Journal Online recently published Ineffective in Any Form: How Confirmation Bias and Distractions Undermine Improved Home-Loan Disclosures, an essay by Debra Pogrund Stark, Jessica M. Choplin, and Mark A. LeBoeuf. The essay

examines three experiments that tracked eye fixations as participants reviewed home-loan disclosure forms. The experiments revealed confirmation biases in which participants read to confirm what they were told (e.g., “Your loan is at 4%”) and then failed to look for contradictory evidence such as rate adjustments. Improved forms reduced confirmation biases, but that improvement was undermined when the experimenter engaged participants in distracting conversation. These results demonstrate that improving disclosure forms cannot sufficiently protect consumers. They also suggest that mortgage counseling is necessary for many borrowers.

Preferred citation:

Debra Pogrund Stark, Jessica M. Choplin & Mark A. LeBoeuf, Ineffective in Any Form: How Confirmation Bias and Distractions Undermine Improved Home-Loan Disclosures, 122 YALE L.J. ONLINE 377 (2013), http://yalelawjournal.org/2013/04/16/stark-choplin&leboeuf.html.

  April 18, 2013 at 11:44 am   Posted in: Law Rev (Yale)   Print This Post   No Comments

The Yale Law Journal Online: Implementing Aggregation in Law

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The Yale Law Journal Online has just published Implementing Aggregation in Law: The Median Outcome Rule, an essay by Alon Cohen. Cohen argues that

[i]n multiple-claim lawsuits, courts tend to address each claim separately, thereby disregarding valuable information about the defendant’s misconduct that might be gained by considering claims together. Ignoring that information may lead to the misalignment of liability with wrongdoing. To avoid such distortion, Ariel Porat and Eric Posner have argued in The Yale Law Journal that courts should adjudicate multiple-claim lawsuits in the aggregate. They do not specify the method to implement this novel idea, however, leaving it susceptible to several complications that might undermine its merits. To deal with these potential complications, this Essay introduces the concept of the “median outcome rule.”

Preferred citation:

Alon Cohen, Implementing Aggregation in Law: The Median Outcome Rule, 122 YALE L.J. ONLINE 359 (2013), http://yalelawjournal.org/2013/04/09/cohen.html.

  April 10, 2013 at 12:27 am   Posted in: Law Rev (Yale), Uncategorized   Print This Post   No Comments

The Yale Law Journal Online: New Content

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The Yale Law Journal Online recently published a Summary Judgment series on the Supreme Court’s recent decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., featuring Essays by Jacob S. Sherkow and Rebecca S. Eisenberg.

Sherkow writes that

[t]he Mayo Court’s novel test for patent eligibility—whether or not an invention involves “well-understood, routine, conventional activity, previously engaged in by researchers in the field”—focuses on how an invention is accomplished rather than what an invention is. That concern with the method of invention poses several normative, statutory, and administrative difficulties. Taken seriously, the “how” requirement will likely have broad effects across all levels of patent practice.

And Eisenberg comments on the legacy of Mayo and the significance of an upcoming Supreme Court case concerning patent eligibility:

The Supreme Court’s decision last Term in Mayo v. Prometheus left considerable uncertainty as to the boundaries of patentable subject matter for molecular diagnostic inventions.  First, the Court took an expansive approach to what counts as an unpatentable natural law by applying that term to the relationship set forth in the challenged patent between a patient’s levels of a drug metabolite and the indication of a need to adjust the patient’s drug dosage. And second, in evaluating whether the patent claims add enough to this unpatentable natural law to be patent eligible, the Court did not consult precedents concerning the patentability of claims involving natural laws and natural products. Instead, it turned to two seemingly inconsistent decisions that reached opposing conclusions concerning the patent eligibility of industrial methods that used mathematical algorithms. The Court’s analysis invites challenges to many issued patents, while offering little guidance for resolving them. This Term, in the Association for Molecular Pathology case, the Court has another opportunity to clarify the meaning of its exclusion of natural phenomena from patent eligibility.

The Yale Journal Online also published an Essay by Alec Ewald entitled Escape from the “Devonian Amber”: A Reply to Voting and Vice. Ewald’s Essay

replies to Richard Re and Christopher Re’s Voting and Vice. That article, recently published in The Yale Law Journal, demonstrates that the inclusion of the phrase “other crime” in Section 2 of the Fourteenth Amendment was no accident, and the authors contend that widespread support for criminal disenfranchisement in the Reconstruction Congress should enhance the restriction’s status today. This Essay argues that those who wrote disenfranchisement into the U.S. Constitution did so from a context far removed from the views to which Americans adhere today when they talk about voting and political equality. Despite the fact that some Republicans made principled arguments contrasting criminal disenfranchisement with African-American enfranchisement, citizens and legislators who propose to abolish or restrict disenfranchisement neither dishonor nor render incoherent the Reconstruction Amendments.

  April 5, 2013 at 1:37 pm   Posted in: Uncategorized   Print This Post   One Comment

The Yale Law Journal: Vol. 122, Issue 5

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Volume 122, Issue 5
March 2013

  April 5, 2013 at 1:10 pm   Posted in: Law Rev (Yale)   Print This Post   No Comments

The Yale Law Journal Online: Equality’s Frontiers Series

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The Yale Law Journal Online recently published a series of essays based on remarks delivered at Equality’s Frontiers, a panel discussion celebrating Justice Ginsburg’s gender-equality jurisprudence and analyzing its relationship with new developments in the law of equality. Contributors include Judith Resnik, Kenji Yoshino, Reva B. Siegel, Ian Shapiro, Melissa Murray, and Cary Franklin.

The discussion preceded Justice Ginsburg’s Gruber Distinguished Lecture in Women’s Rights, held on October 19, 2012 at Yale University’s Battell Chapel. A transcript of Justice Ginsburg’s conversation with Linda Greenhouse is also available online.

  March 3, 2013 at 2:24 pm   Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal Online: New Essays

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The Yale Law Journal Online has just published Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court, by Alex Hemmer, and Emerging Counties? Prospects for Regional Governance in the Wake of Municipal Dissolution, by Ashira Pelman Ostrow. 

Ostrow writes that

[i]n Dissolving Cities, Professor Michelle Wilde Anderson suggests that municipal dissolution could enable counties to serve regionalist goals. This Essay argues that, on balance, municipal dissolution will not trigger the emergence of counties as agents of regional reform. Modern metropolitan regions span city, county, and state borders. As the scale of the region expands, state and local governments, including counties, will increasingly lack the territorial jurisdiction and regulatory capacity to respond to complex metropolitan problems. The Essay concludes by considering the role that the federal government can play, and has historically played, in facilitating regional collaboration at the appropriate scale. 

As Hemmer explains, 

Summary disposition is a procedural innovation—added only belatedly to the Supreme Court’s rules—in which the Court dispenses with a case without briefing or oral argument. It presents a puzzle for students of appellate decisionmaking: how can a case be significant enough to merit the Court’s consideration, but not significant enough to warrant the benefits of adversarial procedure? Commentators have asserted that the Roberts Court is more likely than its predecessors to use summary disposition to resolve cases, but this Essay presents the first systematic look at its use of that procedure. The Essay finds that—contrary to general understanding—the Roberts Court has not used summary disposition more than its predecessors did. Rather, it has used the procedure in different and potentially dangerous ways.

Preferred citations:

Alex Hemmer, Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court, 122 YALE L.J. ONLINE 209 (2013), http://yalelawjournal.org/2013/1/23/hemmer.html.

Ashira Pelman Ostrow, Emerging Counties? Prospects for Regional Governance in the Wake of Municipal Dissolution, 122 YALE L.J. ONLINE 187 (2013), http://yalelawjournal.org/2013/01/03/ostrow.html.

  January 30, 2013 at 5:02 pm   Posted in: Supreme Court, Uncategorized   Print This Post   One Comment

The Yale Law Journal: Vol. 122, Issue 4

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Volume 122, Issue 4
January 2013

  January 23, 2013 at 12:27 pm   Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal Online: A Defense of Immigration-Enforcement Discretion

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The Yale Law Journal Online has just published A Defense of Immigration Enforcement Discretion: The Legal and Policy Flaws of Kris Kobach’s Latest Crusade, an essay by David A. Martin. The essay disputes the legal claims set forth in a recent lawsuit that seeks to invalidate a policy of the Department of Homeland Security. The policy gives protection against deportation to unauthorized immigrants who came to the country as children, and the Department defends it as an exercise of prosecutorial discretion. The plaintiffs claim that no such discretion exists, because the Immigration and Nationality Act, as amended in 1996, requires that virtually all aliens who entered without inspection be detained and placed in removal proceedings whenever encountered by immigration agents. Closely examining the statutory language and drawing on the author’s own extensive involvement as General Counsel of the Immigration and Naturalization Service in the 1996 consideration of legislative amendments and administrative implementation, the essay makes the case that the plaintiffs’ argument misunderstands both Congress’s intent and consistent agency practice before and after those amendments.

Preferred Citation: David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade, 122 YALE L.J. ONLINE 167 (2012), http://yalelawjournal.org/2012/12/20/martin.html.

  December 24, 2012 at 4:59 pm   Posted in: Immigration, Law Rev (Yale), Uncategorized   Print This Post   No Comments

The Yale Law Journal: Vol. 122, Issue 3

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Volume 122, Issue 3
December 2012

 

  December 24, 2012 at 3:51 pm   Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal Online: Liquid Assets: Groundwater in Texas

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The Yale Law Journal Online has just published Liquid Assets: Groundwater in Texas, an essay by Gerald Torres that addresses the piecemeal management of groundwater resources in the American West. A recent Texas Supreme Court case, Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012), has significantly transformed the groundwater regime in Texas, and its changes are expected to inform discussion throughout the region, where water is scarce and valuable. Torres argues that Day has “sown confusion about the capacity of the state to regulate natural resources, while ignoring the science that ought to drive policy decisions.” He begins his critique with an analysis of the Texas groundwater-management regulatory system that existed prior to Day. He then examines the concept of ownership rights for groundwater in place. Finally, in light of Day, he considers alternative approaches to allocating the value and utility of groundwater.

Preferred citation: Gerald Torres, Liquid Assets: Groundwater in Texas, 122 YALE L.J. ONLINE 143 (2012), http://yalelawjournal.org/2012/12/4/torres.html.

  December 6, 2012 at 6:24 pm   Posted in: Law Rev (Yale), Property Law   Print This Post   No Comments

The Yale Law Journal: Volume 122, Issue 2

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Volume 122, Issue 2
November 2012

 

  November 19, 2012 at 3:10 pm   Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal Online: Lawrence Meets Libel

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The Yale Law Journal Online has just published Lawrence Meets Libel: Squaring Constitutional Norms with Sexual-Orientation Defamation, an essay by Anthony Michael Kreis. Kreis identifies a trend in defamation law: many state statutes and judicial opinions continue to treat false allegations of homosexuality as actionable libel despite the growing acceptance of homosexuality nationwide. He argues that, “[w]hile defamation law functions as a legitimate governmental mechanism for vindicating harm to one’s reputation, it cannot constitutionally do so if it irrationally intertwines state action with class-based animus.” In his view, “recent sexual-orientation jurisprudence . . . stands for the clear proposition that government-backed stigmatization of gay and lesbian people is inconsistent with the Due Process Clause of the Fourteenth Amendment.” 

  November 19, 2012 at 3:00 pm   Posted in: Constitutional Law, First Amendment, Law Rev (Yale), LGBT, Uncategorized   Print This Post   No Comments

The Yale Law Journal Online: Losers’ Rules

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The Yale Law Journal Online has recently published Losers’ Rules, an essay by Nancy Gertner that provides “a firsthand and more detailed account of employment discrimination law’s skewed evolution” based on Gertner’s seventeen years on the federal bench. Gertner discusses the one-sided legal doctrines that characterize discrimination law. She suggests that asymmetric decisionmaking, in which judges write detailed opinions when granting summary judgment but not when denying it, changes the treatment of employment cases in two respects: “First, it encourages judges to see employment discrimination cases as trivial or frivolous, as decision after decision details why the plaintiff loses. And second, it leads to the development of decision heuristics–the Losers’ Rules–that serve to justify prodefendant outcomes and thereby exacerbate the one-sided development of the law.” Gertner then offers several proposals for remedying this problem.

Preferred citation: Nancy Gertner, Losers’ Rules, 122 YALE L.J. ONLINE 109 (2012), http://yalelawjournal.org/2012/10/16/gertner.html. 

  October 17, 2012 at 10:25 am   Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal: Volume 122, Issue 1 (October 2012)

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Volume 122, Issue 1
October 2012

 

ARTICLES

Ariel Porat & Eric A. Posner, Aggregation and Law

Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules

 

ESSAY

James M. Anderson & Paul Heaton, How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes

 

NOTES

Xiyin Tang, The Artist as Brand: Toward a Trademark Conception of Moral Rights

Jacob Goldin, Sales Tax Not Included: Designing Commodity Taxes for Inattentive Consumers

 

COMMENT

Nicholas M. McLean, Intersystemic Statutory Interpretation in Transnational Litigation

  October 17, 2012 at 1:19 am   Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal Online: New Essays

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The Yale Law Journal Online has recently published two essays, one discussing the legacy of the Supreme Court’s decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and the other providing insight into the Court’s upcoming argument in Fisher v. University of Texas at Austin, 132 S. Ct. 1536 (Feb. 21, 2012) (No. 11-345), granting cert. to 631 F.3d 213 (5th Cir. 2011).

In West Coast Hotel’s Place in American Constitutional History, G. Edward White shows that the conventional narrative about West Coast Hotel, which many view as representing “the Supreme Court’s abandonment of a constitutional jurisprudence featuring aggressive scrutiny of legislation that regulated economic activity or redistributed economic benefits,” is misleading. Instead, West Coast Hotel’s significance comes from its place in a “different narrative, one featuring clashing views on the issue of constitutional adaptivity: how the general provisions of the Constitution are adapted to new controversies and whether the meaning of those provisions change in the process.”

Turning to the present, Adam D. Chandler writes in How (Not) To Bring an Affirmative-Action Challenge about the “grave defects” in Fisher, a much-hyped affirmative action case concerning the use of race as a factor in undergraduate admissions at the University of Texas at Austin. Chandler’s argument “boils down to this: The only relief still available to Fisher is a refund of her application fees (Part I). Texas could therefore moot the case for a tiny sum (Part II). Regardless, the Eleventh Amendment and Title VI jurisprudence bar recovery of the fees (Part III). In addition, there are three defects in Fisher’s standing to claim the fees (Part IV). The potential recourses for resuscitating the case are fraught and unconvincing (Part V). And if, despite all that, the Court reaches the merits, the Justices will find the case a much narrower dispute than they might have expected (Part VI).” Chandler’s essay presents a number of ways that the Court could “exercise its passive virtues” and retreat from deciding a case that threatens its institutional legitimacy and legacy.

Preferred citations:

G. Edward White, West Coast Hotel’s Place in American Constitutional History, 122 YALE L.J. ONLINE 69 (2012), http://yalelawjournal.org/2012/09/24/white.html.

Adam D. Chandler, How (Not) To Bring an Affirmative-Action Challenge, 122 YALE L.J. ONLINE 85 (2012), http://yalelawjournal.org/2012/10/01/chandler.html.

  October 2, 2012 at 4:05 pm   Posted in: Constitutional Law, Race   Print This Post   No Comments

The Yale Law Journal Online: Service Delivery, Resource Allocation, and Access to Justice

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The Yale Law Journal Online has just published Service Delivery, Resource Allocation, and Access to Justice: Greiner and Pattanayak and the Research Imperative, an essay by Jeffrey Selbin, Jeanne Charn, Anthony Alfieri & Stephen Wizner. In their essay, the authors respond to D. James Greiner & Cassandra Wolos Pattanayak, Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?, 121 YALE L.J. 2118 (2012), a provocative empirical study concerning the effect of providing legal assistance to low-income clients. These clinical teachers encourage the public interest legal community to take seriously Greiner and Pattanayak’s finding that, in certain kinds of proceedings relating to social welfare benefits, people without lawyers may do just as well or better than people who receive an offer of representation from a well-regarded legal services practice. They provide an “optimistic reading” of the Greiner and Pattanayak study and argue that empirical research “can inform service delivery, resource allocation, and access-to-justice questions.” The authors then discuss recent developments that provide incentives for such research and call for legal services lawyers and clinical law professors to “embrace an expansive, empirical research agenda.”

Preferred citation: Jeffrey Selbin, Jeanne Charn, Anthony Alfieri & Stephen Wizner, Service Delivery, Resource Allocation, and Access to Justice: Greiner and Pattanayak and the Research Imperative, 122 YALE L.J. ONLINE 45 (2012), http://yalelawjournal.org/2012/07/30/selbin-charn-alfieri&wizner.html.

 

  August 15, 2012 at 12:33 am   Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal: Volume 121, Issue 8 (June 2012)

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Volume 121, Issue 8
June 2012

 

ARTICLES

Ian Ayres, Regulating Opt-Out: An Economic Theory of Altering Rules

D. James Greiner & Cassandra Wolos Pattanayak, Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?

 

ESSAY

Joshua D. Wright, The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other

 

NOTES

Jonah B. Gelbach, Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery

Miles B. Farmer, Mandatory and Fair? A Better System of Mandatory Arbitration

 

COMMENTS

Jeffrey A. Love, Fair Notice About Fair Notice

David A. Wishnick, Corporate Purposes in a Free Enterprise System: A Comment on eBay v. Newmark

  June 7, 2012 at 4:38 pm   Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal: Volume 121, Issue 7 (May 2012)

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Volume 121, Issue 7
May 2012

 

ARTICLE

Richard M. Re & Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments,

 

ESSAY

Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers

 

FEATURES

Bruce E. Cain, Redistricting Commissions: A Better Political Buffer?

Christopher S. Elmendorf & David Schleicher, Districting for a Low-Information Electorate

Joseph Fishkin, Weightless Votes

 

NOTES

Barrett J. Anderson, Recognizing Character: A New Perspective on Character Evidence

Nicholas M. McLean, Cross-National Patterns in FCPA Enforcement

 

COMMENT

Margaret B. Weston, One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement

  May 3, 2012 at 8:56 am   Posted in: Uncategorized   Print This Post   No Comments

The Yale Law Journal Online: New Summary Judgment Essays

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The Yale Law Journal Online has just published three essays on the Supreme Court’s recent decision in Douglas v. Independent Living Center of Southern California, Inc. , No. 09-958 (U.S. Feb. 22, 2012), http://www.supremecourt.gov/opinions/11pdf/09-958.pdf (to be reported at 132 S. Ct. 1204). These essays are part of an ongoing series called “Summary Judgment,” featuring short commentaries on recent Supreme Court cases.

In Preemption as a Judicial End-Run Around the Administrative Process?, Catherine M. Sharkey uses Douglas to explore two important questions: first, “whether courts can act as ‘prompters,’ pushing federal agencies to discharge their duty to weigh in on potential conflicts between federal and state law”; and second, “whether a synergistic relationship can exist between courts and agencies in making such conflict determinations.” She finds that courts do engage in “agency-forcing” measures and that “Douglas only skims the surface of the potentially rich interface between the administrative process and preemption challenges.”

In Douglas and the Fate of Ex Parte Young, Stephen I. Vladeck examines Chief Justice Roberts’s sweeping dissent in Douglas to understand better the majority’s reasons for not deciding the question on which the Court granted certiorari. He concludes that Justice Kennedy may ultimately be sympathetic with the dissent’s approach but joined the majority to defer making the “momentous” decision to limit injunctive relief available to private plaintiffs under the Supremacy Clause.

Finally, in Medicaid Preemption Claims in Douglas Avert the Astra Abyss, Rochelle Bobroff discusses the relationship between Douglas and the Court’s little-noticed decision in Astra USA, Inc. v. Santa Clara County, 131 S. Ct. 1342 (2011). Both the majority and the dissent rely on this precedent, but they interpret it in strikingly different ways. Bobroff concludes that Douglas “does not prevent court access to enforce Medicaid, but the threat of the dissent’s interpretation of Astra still looms.”

Preferred citations:

Catherine M. Sharkey, Preemption as a Judicial End-Run Around the Administrative Process?, 122 YALE L.J. ONLINE 1 (2012), http://yalelawjournal.org/2012/04/30/sharkey.html.

Stephen I. Vladeck, Douglas and the Fate of Ex Parte Young, 122 YALE L.J. ONLINE 13 (2012), http://yalelawjournal.org/2012/04/30/vladeck.html.

Rochelle Bobroff, Medicaid Preemption Claims in Douglas Avert the Astra Abyss, 122 YALE L.J. ONLINE 19 (2012), http://yalelawjournal.org/2012/04/30/bobroff.html.

  April 30, 2012 at 6:17 pm   Posted in: Uncategorized   Print This Post   No Comments

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