Author Archive for yale-law-journal
The Yale Law Journal Online: Outcasting, Globalization, and the Emergence of International Law
posted by Yale Law Journal
Preferred citation: Robin Bradley Kar, Outcasting, Globalization, and the Emergence of International Law, 121 YALE L.J. ONLINE 413 (2012), http://yalelawjournal.org/2012/01/31/kar.html.
February 1, 2012 at 9:15 am
Posted in: International & Comparative Law, Law Rev (Yale)
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The Yale Law Journal Online: “Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision
posted by Yale Law Journal
The Yale Law Journal Online recently published an essay by Michael C. Dorf and Neil Siegel entitled “Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision. In the Essay, Dorf and Siegel examine whether the Tax Anti-Injunction Act (TAIA) bars the Supreme Court from reviewing the current challenges to the Patient Protection and Affordable Care Act (ACA). While most of the commentary on the TAIA issue has focused on the question of whether the ACA’s penalty provisions fall within the TAIA’s definition of “tax,” Dorf and Siegel adopt an alternative and original approach. They argue that the TAIA does not bar the review because “the present challenges to the ACA do not have ‘the purpose’ of restraining tax assessment or collection.” For a purpose to bar review, it must be immediate because if the TAIA extended to challenges with the indirect purpose of restraining tax assessment or collection, it would also bar tax refund suits. ACA challenges cannot have the direct purpose of barring review because “the very authority to assess or collect will not exist until long after the litigation is concluded.”
January 25, 2012 at 11:14 am
Posted in: Health Law, Law Rev (Yale), Tax
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The Yale Law Journal Online: Inflation Indicators
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The Yale Law Journal Online has published the third essay in a series on Jonathan Masur’s article Patent Inflation, which appeared in the December 2011 print issue of The Yale Law Journal. In his print-issue article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In Masur’s model, the cases that drive this process are direct appeals to the Federal Circuit from PTO denials of patent applications.
In the first response in the series, Arti K. Rai analyzed forces that might slow or reverse the process of “patent inflation,” including executive-branch actors and industry players who wield a deflationary influence over patentability standards. In the second response in the series, Lisa Larrimore Ouellette presented the results of a quantitative study of Federal Circuit cases and argued that, despite Patent Inflation’s emphasis on direct appeals from the PTO to the Federal Circuit, “patent inflation” may be attributable largely to infringement suits that reach the Federal Circuit from U.S. district courts. The third essay in the series, Inflation Indicators, is Masur’s sur-reply to Rai and Ouellette. In his sur-reply, Masur argues that the evidence in Rai’s and Ouellette’s responses is not only consistent with Patent Inflation, but that it indeed bolsters the theory he presented in his original article.
For Arti K. Rai’s response, Who’s Afraid of the Federal Circuit?, please click here. For Lisa Larrimore Ouellette’s response, What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, please click here.
Preferred citation: Jonathan Masur, Inflation Indicators, 121 YALE L.J. ONLINE 375 (2012), http://yalelawjournal.org/2012/01/03/masur.html.
January 5, 2012 at 11:26 am
Posted in: Intellectual Property, Law Rev (Yale)
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The Yale Law Journal Online: What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings
posted by Yale Law Journal
The Yale Law Journal Online has published the second essay in a series of responses to Jonathan Masur’s article Patent Inflation, which appeared in the December 2011 issue of The Yale Law Journal. In his article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, Lisa Larrimore Ouellette counters with an empirical study examining the numerical and doctrinal significance of direct appeals from the PTO to the Federal Circuit. She argues that these cases are too rare—and too rarely cited—to be the main drivers of patent inflation, as Masur’s model posits. She suggests that patent infringement suits and the Supreme Court are playing a greater role than Masur’s theory acknowledges.
For the first reply essay in this series, please click here. To read Jonathan Masur’s sur-reply, please click here.
Preferred citation: Lisa Larrimore Ouellette, What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, 121 YALE L.J. ONLINE 347 (2011), http://yalelawjournal.org/2011/12/27/ouellette.html.
December 28, 2011 at 12:23 pm
Posted in: Intellectual Property, Law Rev (Yale)
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The Yale Law Journal Online: Who’s Afraid of the Federal Circuit?
posted by Yale Law Journal
The Yale Law Journal Online has published the first essay in a series of responses to Jonathan Masur’s article Patent Inflation, published in the December 2011 issue of The Yale Law Journal. In his article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In Who’s Afraid of the Federal Circuit?, Arti K. Rai argues that by overlooking deflationary institutional pressures such as workload and reputational concerns, Masur overestimates the extent to which PTO administrators seek to avoid appeals and Federal Circuit reversals. In order to achieve further deflation, Rai suggests supplementing Masur’s proposed solution of using more PTO opposition proceedings with the empowerment of non-PTO players who are more wary of granting patents.
Preferred citation: Arti K. Rai, Who’s Afraid of the Federal Circuit?, 121 YALE L.J. ONLINE 335 (2011), http://yalelawjournal.org/2011/12/20/rai.html.
December 21, 2011 at 10:41 am
Posted in: Intellectual Property, Law Rev (Yale)
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The Yale Law Journal Online: Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming
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The Yale Law Journal Online has published a response to Benjamin Ewing and Douglas Kysar’s article Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November 2011 issue of YLJ. In Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming, Richard Epstein argues Ewing and Kysar’s “prods and pleas” will not solve the issue of global warming. Because global warming is a worldwide phenomenon, “the traditional allocation of responsibility between private rights of action (for large concentrated harms) and direct government administrative action (for diffuse harms) remains the proper approach.” Epstein suggests that the Supreme Court made the correct decision in American Electric Power Co. v. Connecticut and adds that the powers given to the Environmental Protection Agency displace private rights of action under both federal and state law.
Preferred citation: Richard A. Epstein, Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming, 121 YALE L.J. ONLINE 317 (2011), http://yalelawjournal.org/2011/12/06/epstein.html.
December 12, 2011 at 9:11 am
Posted in: Administrative Law, Law Rev (Yale), Tort Law
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The Yale Law Journal Online: Enforcement and the Concept of Law
posted by Yale Law Journal
The Yale Law Journal Online has published the first of two responses to Oona Hathaway and Scott J. Shapiro’s article Outcasting: Enforcement in Domestic and International Law, which appeared in the November 2011 issue of YLJ. In Enforcement and the Concept of Law, Joshua Kleinfeld argues that Hathaway and Shapiro’s broad conceptions of what count as enforcement and outcasting are underspecified. He develops a substantive definition of enforcement based on the goal of legal efficacy and identifies several limiting principles that define outcasting as a specifically legal mechanism of enforcement. The essay also identifies areas for further research to build on Hathaway and Shapiro’s work.
Preferred citation: Joshua Kleinfeld, Enforcement and the Concept of Law, 121 YALE L.J. ONLINE 293 (2011), http://yalelawjournal.org/2011/11/22/kleinfeld.html.
November 28, 2011 at 10:50 am
Posted in: Law Rev (Yale)
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The Yale Law Journal Online: Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate
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The Yale Law Journal Online recently published Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, in which Gary Lawson and David B. Kopel respond to Andrew Koppelman’s Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform. Koppelman’s essay argued that the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act could be derived from the Commerce Clause and the Necessary and Proper Clause by the same logic that renders federal laws against mail robbery constitutional. Lawson and Kopel argue that contrary to Koppelman’s belief, the Necessary and Proper Clause cannot be used to validate the constitutionality of the individual mandate. To arrive at this conclusion, Lawson and Kopel rely on principles of eighteenth-century agency law, administrative law, and corporate law embedded in the Necessary and Proper Clause.
Preferred citation: Gary Lawson & David B. Kopel, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 YALE L.J. ONLINE 267 (2011), http://yalelawjournal.org/2011/11/08/lawson&kopel.html.
November 14, 2011 at 11:10 am
Posted in: Constitutional Law, Health Law, Law Rev (Yale)
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The Yale Law Journal Online: “The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Be Protected After Prosecutorial Misconduct” and “When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches”
posted by Yale Law Journal
This month The Yale Law Journal Online published two new pieces: The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Be Protected After Prosecutorial Misconduct and When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches.
In The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Be Protected After Prosecutorial Misconduct, four Yale Law School students—David Keenan, Deborah Jane Cooper, David Lebowitz, and Tamar Lerer—address the issue of prosecutorial accountability in the wake of Connick v. Thompson, a recent Supreme Court case overturning a $14 million jury verdict awarded to a man who spent fourteen years on death row after prosecutors withheld key exculpatory evidence during his trial. The Court based its decision to overturn in part on the availability of other measures to check prosecutorial misconduct, including state professional disciplinary procedures. Keenan, Cooper, Lebowitz and Lerer challenge this presumption by undertaking a detailed analysis of these procedures in all fifty states. They demonstrate that these measures are ineffective tools for accountability and recommend several strategies for strengthening professional conduct rules and grievance procedures to deter and sanction prosecutorial misconduct.
In When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches, Priscilla J. Smith, Nabiha Syed, David Thaw, and Albert Wong examine the relationship between law enforcement’s use of GPS surveillance technology and the Fourth Amendment’s warrant requirement in anticipation of the Supreme Court’s upcoming consideration of United States v. Jones (oral argument to take place on November 8th). The authors argue that the Court must consider the impact of new surveillance technology on traditional privacy analysis as well as the potential for such technology to be abused. They ultimately conclude that the warrant rule should be applied to the law enforcement use of GPS surveillance technology.
Please visit The Yale Law Journal website to read the latest YLJ Online Essays and to view print content in an electronic format.
October 31, 2011 at 2:15 am
Posted in: Constitutional Law, Law Rev (Yale), Privacy (Electronic Surveillance), Technology
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The Yale Law Journal Online: The Supreme Court (of Baseball)
posted by Yale Law Journal
In his 2010 Yale Law Journal Online essay, The Justice as Commissioner: Benching the Judge-Umpire Analogy, Aaron Zelinsky traced the history of the judge-as-umpire analogy from the nineteenth century to the present. One year later, in The Supreme Court (of Baseball), Zelinsky shows why the right analogy is between the Supreme Court and the Commissioner of Major Leagues. He traces the Justice-Commissioner analogy back to 1903 and, through a series of paired case studies, shows how the comparison continues to apply today. As Zelinsky concludes, “Chief Justice Roberts had the right sport but the wrong position: Justices are not umpires; they are Commissioners.”
Please visit our website to read our latest Essays and to view the latest issues of our print edition in an electronic format.
October 2, 2011 at 1:02 pm
Posted in: Law Rev (Yale), Supreme Court
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YLJ Online Symposium: “AEP v. Connecticut and the Future of the Political Question Doctrine” and “What Litigation of a Climate Nuisance Suit Might Look Like”
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The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the final two installments of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).
In AEP v. Connecticut and the Future of the Political Question Doctrine, Professor James R. May considers the Court’s conspicuous silence regarding the political question doctrine in the climate change context. Although AEP rose to the Supreme Court on the political question issue—the district court dismissed the case as nonjusticiable under the doctrine and the Second Circuit reversed—the Supreme Court itself only obliquely addressed the political question doctrine in that case. But after parsing Justice Ginsburg’s opinion as well as Justice Alito’s concurrence, May concludes that “at the very least, a majority of the Supreme Court has broader views of the justiciability of federal common law claims for climate change than did the district court in AEP.” Although AEP’s implications for other types of cases (e.g., state-common-law claims) are “difficult to gauge,” May observes that one thing is clear: “in AEP, the Supreme Court appeared to endorse the view that courts should not hide from [climate change] issues behind the veil of the political question doctrine.”
While Professor May ultimately urges courts to grapple with global warming and the harms that it inflicts, Professor Michael B. Gerrard questions the wisdom of public nuisance suits in the climate change context. In What Litigation of a Climate Nuisance Suit Might Look Like, Gerrard considers the likely consequences that would follow if courts decline to dismiss these claims on grounds of “displacement, preemption, political question, and standing.” Gerrard concludes that even without those threshold issues, litigation would still involve “extraordinary difficulties.” Throughout the Essay, he enumerates the mind-numbing number of “open questions that would face the parties and the courts.”
Gerrard begins with the difficult question of selecting defendants in climate change actions. This question implicates complex issues of joint and several liability, personal jurisdiction, assessment of unreasonable conduct, operation under governmental permits, statutes of limitations, choice of law, company successorship, supply chains, government liability, and non-industrial emissions. Beyond defendant selection, other problems abound: burden of proof for causation, potential “sprawling class actions,” issue preclusion in multiple lawsuits against the same emitter, measure of damages, assumption of risk, insurance coverage, non-emissions conduct as a factor of liability, venue and consolidation, scope of discovery, and the potential for an almost-unlimited flood of alien tort actions against U.S. emitters.
At the end of his inquiry, Gerrard voices agreement with the Court in its decision that “setting emissions limitations is beyond the competence of the courts.” He predicts that “if any trial court does eventually approach the merits of a suit seeking money damages for [greenhouse gas] emissions, it may find it is embarking down a wormhole, and upon comprehending the journey it may recoil.” While it is crucial for courts to “interpret[] and enforc[e] congressional and regulatory mandates,” Gerrard warns that “erecting a new liability scheme to redress the impacts of our economic system is an entirely different and perilous voyage.”
The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.
September 23, 2011 at 9:30 pm
Posted in: Law Rev (Yale), Supreme Court, Uncategorized
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YLJ Online Symposium: Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine
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The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the fourth installment of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).
In Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine, Professor Daniel Farber argues that AEP is “a powerful illustration of the deep flaws” in the Court’s Article III standing jurisprudence. As Professor Farber points out, “the ‘injury’ that forms the basis for Article III standing does not need to have any logical connection with the legal claim” asserted by the plaintiff. While other commentators have suggested that standing doctrine may pose an insuperable obstacle for climate-change plaintiffs, Professor Farber shows how a “determined plaintiff with the resources to obtain the necessary expert evidence” can rely on harms from co-pollutants other than carbon dioxide to meet the standing test under the Supreme Court’s current standards. This is true “even if the injury from climate change [i]s considered too indirect or delayed to give rise to standing.” Notwithstanding its manipulability, “standing doctrine carries substantial costs” in terms of both litigants’ and judges’ resources. Professor Farber concludes that “it is time for the Court to rethink this ‘exquisitely murky’ doctrine and find some more sensible way to determine which cases are suitable for judicial resolution.”
The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.
September 19, 2011 at 8:18 pm
Posted in: Law Rev (Yale), Supreme Court
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YLJ Online Symposium: Climate Justice and the Elusive Climate Tort
posted by Yale Law Journal
The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the third installment of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).
In Climate Justice and the Elusive Climate Tort, Professor Maxine Burkett considers AEP from the perspective of climate justice, a field that focuses on the “intersection of race and/or indigeneity, poverty, and climate change.” She argues that by rejecting common law nuisance claims in AEP, the Court precludes a valuable mechanism for ensuring climate justice. Her commentary centers on the Ninth Circuit case Native Village of Kivalina v. ExxonMobil Corp., in which an Inupiat community in Alaska is seeking compensation from world’s largest oil companies for global warming-induced damage to the group’s ancestral homeland. Professor Burkett proposes an interpretation of AEP that potentially would allow the claims in Kivalina to survive. Ultimately, she concludes that in the post-AEP world, lower courts can distinguish “between the injunctive relief sought in AEP and the compensatory relief sought in Kivalina”; while AEP may preclude injunctive relief, the lingering possibility of compensatory damages in climate-change cases suggests that “the disparately impacted may enjoy appropriate recourse.” According to Professor Burkett, courts play a role that regulations cannot usurp: “climate tort claims would be the courts’ distinct contribution to what will hopefully be a diverse and multi-layered commitment to rectifying, at least in part, the losses of the climate vulnerable.”
The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.
September 15, 2011 at 10:18 pm
Posted in: Law Rev (Yale), Tort Law
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YLJ Online Symposium: “AEP v. Connecticut’s Implications for the Future of Climate Change Litigation” and “A Tale of Two Climate Cases”
posted by Yale Law Journal
The Yale Law Journal Online has launched the second symposium of its new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions. The newest installments comment on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP), in which an 8-0 majority held that the Clean Air Act and the EPA actions authorized thereunder have displaced the federal common law of public nuisance with respect to greenhouse gas emissions from coal power plants.
In AEP v. Connecticut’s Implications for the Future of Climate Change Litigation, Professor Hari M. Osofsky introduces the six installments of the AEP Summary Judgment symposium and adds four preliminary observations. First, Osofsky argues that while the Court shuts down federal public nuisance claims, it remains very much open to climate change litigation through suits by citizens and states on statutory grounds. Second, she notes that in AEP the Court fails to resolve many issues (some of which are picked up by other contributors in this series), including standing in suits with only nongovernmental petitioners, the political question doctrine, state law preemption, and the possibility that federal common law actions may be allowed if Congress decides to prevent EPA from regulating greenhouse gases. Third, in holding the EPA is better suited to assess climate change science, the Court overlooks the many judges who work with complex science in tort cases as well as the possibility that courts may be engaged in climate change science in non-agency ways. Lastly, Osofsky concludes that AEP will have “mixed impact”: while it ensures that climate change will continue to be an “exploding area” of the law, it also limits citizens and victims from obtaining redress for climate change harm. Addressing climate change issues through a regulatory framework implicates complex issues that all three branches of government will need to resolve.
In A Tale of Two Climate Cases, Professor Jonathan H. Adler juxtaposes AEP alongside the Court’s prior decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which held that greenhouse gas emissions constitute an “air pollutant” under the Clean Air Act. In Adler’s view, Connecticut and the other state plaintiffs in AEP “lost this particular climate battle . . . because they had already won the war”: they have persuaded the Court to confirm the EPA’s regulatory power over greenhouse gases. Moreover, although AEP displaces public nuisance suits under federal common law, Adler notes that the decision did not preclude suits filed under state law. With the door left upon to state-law claims and to regulatory action, Professor Adler concludes that “controls on [greenhouse gas] emissions will proliferate.”
The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.
September 14, 2011 at 11:21 pm
Posted in: Law Rev (Yale), Supreme Court
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The Yale Law Journal Online: Judges in Jeopardy!: Could IBM’s Watson Beat Courts at Their Own Game?
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In Judges in Jeopardy!: Could IBM’s Watson Beat Courts at Their Own Game?, Betsy Cooper examines IBM’s Watson computer and how it might affect the process by which new textualists interpret statutes. Cooper describes new textualism as being founded on the ‘ordinary meaning’ of language. She writes: “New textualists believe in reducing the discretion of judges in analyzing statutes. Thus, they advocate for relatively formulaic and systematic interpretative rules. How better to limit the risk of normative judgments creeping into statutory interpretation than by allowing a computer to do the work?”
Cooper’s essay considers how Watson – the IBM computer which won a resounding victory against prized human contestants on Jeopardy – might fare as a new textualist. She concludes that Watson has many advantages over humans. For example, a computer can pinpoint the frequency with which a phrase is used in a particular statutory context, and can “estimate the frequency within which each connotation arises, to determine which is most ‘ordinary.’” And Watson avoids bias: “when he makes mistakes, these mistakes are not due to any biases in his evaluation scheme “ because the computer has “no normative ideology of his own.”
Nevertheless, Cooper ultimately concludes that Watson has a fatal flaw: it lacks a normative ideology that is essential for ethical judging. Watson can provide to judges “a baseline against which to evaluate their own interpretations of ‘ordinary meaning,’” but cannot replace the job of judging itself.
Preferred Citation: Betsy Cooper, Judges in Jeopardy!: Could IBM’s Watson Beat Courts at Their Own Game?, 121 Yale L.J. Online 87 (2011).
September 6, 2011 at 11:04 pm
Posted in: Law Rev (Yale), Technology
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YLJ Online Symposium: “Winn and the Inadvisibility of Constitutionalizing Tax Expenditure Analysis” and “A Winn for Educational Pluralism”
posted by Yale Law Journal
The Yale Law Journal Online has published the first two installments in our new series, Summary Judgment, which will feature timely responses to recent Supreme Court decisions from academics and practitioners. The two inaugural pieces comment on the Court’s April decision in Arizona School Tuition Organization v. Winn, 131 S.Ct. 1436 (2011), in which a five-Justice majority held that taxpayers do not have standing to challenge the constitutionality of state tax credits that support religious schools and other educational institutions.
In Winn and the Inadvisibility of Constitutionalizing Tax Expenditure Analysis, Professor Edward A. Zelinsky responds to Justice Kagan’s blistering dissent in Winn. In that dissent, the Court’s most junior Justice draws on tax law scholarship to argue that tax credits and other tax expenditures are economically indistinguishable from direct spending. Zelinsky adopts a skeptical approach toward Justice Kagan’s core claim. According to Zelinsky, although tax expenditure analysis has helped policymakers and legislators with regard to budgetary matters, its utility does not extend to Establishment Clause jurisprudence. After decades of debate, tax law scholars have still not arrived at any satisfactory definition of tax expenditures. Ultimately, Zelinsky writes, “the Court is ill-advised to invoke tax expenditure analysis” in its Establishment Clause cases because “[a]t the end of the day, we do not know what a tax expenditure is.”
In A Winn for Educational Pluralism, Professor Nicole Stelle Garnett assesses the implications of the Winn decision for students, families, and communities. She argues that scholarship tax credits can stem the tide of Catholic school closures, which are linked to increased disorder, crime, and neighborhood disintegration. Drawing on her own past research, she also suggests that “scholarship tax credits may . . . enable cities to retain the young parents who all too frequently flee to suburbs and their high-performing public schools.” She concludes that Winn, by opening constitutional space for scholarship tax credit programs, represents “a victory for civil society.”
The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.
June 4, 2011 at 6:36 pm
Posted in: Constitutional Law, Law Rev (Yale), Tax, Uncategorized
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The Yale Law Journal Online: Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform
posted by Yale Law Journal
In Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, Andrew Koppleman analyzes Judge Vinson’s opinion in Florida v. U.S. Department of Health and Human Services (striking down the Affordable Care Act). Judge Vinson said that individual mandate was not a “Necessary and Proper” extension of the Act’s insurance industry reforms; instead, “the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself.” Koppelman shows why that reasoning amounts to a fallacy: “If . . . Congress has no power to address negative consequences that follow from its own statutory scheme, then Marshall was wrong about mail robbery after all. Mail robbery is an adverse consequence of Congress’s decision to establish a post office: had it not done that, all those valuable documents would not be gathered together in one place. But, you might say, That sounds crazy; of course Congress can decide that it’s worth having a post office, even if establishing one creates negative side effects, which then must be addressed. But if—as Vinson admitted—Congress can also decide that people with preexisting conditions can be protected, then how can the cases be distinguished?”
Please visit YLJ Online to read our latest Essays and to view the latest issues of our print edition in an electronic format.
May 9, 2011 at 4:17 pm
Posted in: Constitutional Law, Health Law, Law Rev (Yale)
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YLJ Online Symposium: A Republic of Statutes
posted by Yale Law Journal
The Yale Law Journal Online has just published the final piece of a symposium devoted to William N. Eskridge, Jr. and John Ferejohn’s remarkable new book, A Republic of Statutes: The New American Constitution. The book chronicles the development of constitutional principles derived not directly from the text of the Constitution itself but from the implementation of entrenched “superstatutes” by administrative and executive officials. The symposium essays examine both the broad contours of the theory advanced by Eskridge and Ferejohn as well as its application to particular fields of law, such as immigration, national security, and health care. Visit YLJ Online to read the full collection:
- Robert A. Katzmann, Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn’s A Republic of Statutes: The New American Constitution, 120 YALE L.J. ONLINE 293 (2011), http://yalelawjournal.org/2011/3/11/katzmann.html.
- Edward L. Rubin, How Statutes Interpret the Constitution, 120 YALE L.J. ONLINE 297 (2011), http://yalelawjournal.org/2011/3/14/rubin.html.
- John D. Skrentny & Micah Gell-Redman, Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment, 120 YALE L.J. ONLINE 325 (2011), http://yalelawjournal.org/3/18/skrentny-gellredman.html.
- Theodore W. Ruger, Plural Constitutionalism and the Pathologies of American Health Care, 120 YALE L.J. ONLINE 347 (2011), http://yalelawjournal.org/2011/3/21/ruger.html.
- Stephen M. Griffin, The National Security Constitution and the Bush Administration, 120 YALE L.J. ONLINE 367 (2011), http://yalelawjournal.org/2011/3/25/griffin.html.
- Mathew D. McCubbins & Daniel B. Rodriguez, Superstatutory Entrenchment: A Positive and Normative Interrogatory, 120 YALE L.J. ONLINE 387 (2011), http://yalelawjournal.org/2011/3/30/mccubbins-rodriguez.html.
March 31, 2011 at 1:25 pm
Posted in: Conferences, Government Secrecy, Health Law, Immigration, Law Rev (Yale)
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The Yale Law Journal Online: Opting out of the Law of War
posted by Yale Law Journal
In Opting out of the Law of War: Comments on Withdrawing from International Custom, David Luban responds to Curtis A. Bradley and Mitu Gulati’s recent Yale Law Journal Article, Withdrawing from International Custom. Professor Luban’s Essay focuses on Professors Bradley and Gulati’s reading of historical focus, which they use to show both that the customary law was historically considered subject to unilateral withdrawal (the Default View) and that the opposing Mandatory View carries a colonialist legacy. Professor Luban uses the law of war as his principal example to suggest that “stickiness” in international law rules may be a virtue, because if the Default View carries the day, “the alternative to supposedly outmoded customary law is likely to be no law rather than better law.”
Please visit YLJ Online to read our latest Essays and to view the latest issues of our print edition in an electronic format.
December 10, 2010 at 1:33 pm
Posted in: International & Comparative Law, Law Rev (Yale)
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The Yale Law Journal Online: Conditional Taxation and the Constitutionality of Health Care Reform
posted by Yale Law Journal
The recent passage of health care reform has sparked contentious debate on the constitutionality of the requirement that individuals purchase a qualifying health insurance plan or be subject to a tax (the “individualized responsibility requirement” or “IRR”). In the latest YLJ Online Essay, Conditional Taxation and the Constitutionality of Health Care Reform, Professor Brian Galle argues that even if the commerce power and Necessary and Proper Clause do not clearly authorize the IRR, it is a straightforward application of Congress’s broad taxation authority. Professor Galle further contends that attacks on the normative desirability of this reading of the taxing power are misguided.
Preferred citation: Brian Galle, Conditional Taxation and the Constitutionality of Health Care Reform, 120 YALE L.J. ONLINE 27 (2010), http://yalelawjournal.org/2010/5/31/galle.html.
May 31, 2010 at 8:36 am
Posted in: Constitutional Law, Health Law, Law Rev (Yale), Law Rev Forum, Tax
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