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

 The Yale Law Journal

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

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The Yale Law Journal Online: New Essays

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.

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

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.

 

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

 The Yale Law Journal

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

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

Yale Journal Online

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

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The Yale Law Journal Online: New Summary Judgment Essays

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.


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The Yale Law Journal: Prison Law Writing Contest

The Yale Law Journal is pleased to announce its first Prison Law Writing Contest. The Contest will accept submissions from men and women who are or recently have been in prison. It offers people in prison the chance to share their stories with people who shape the law and to explain how the law affects their lives. The three top submissions will win cash prizes, and the Journal hopes to publish the best work. For the Contest rules and more information, please visit the Journal website. A Spanish-language version is also available.

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The Yale Law Journal Online: I Say Dissental, You Say Concurral

The Yale Law Journal Online has just published I Say Dissental, You Say Concurral, by Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit and attorney James Burnham. In the essay, Kozinski and Burham examine the trend of “dissentals” and “concurrals,” through which circuit judges write dissents from, and concurrences in, orders denying rehearing en banc. Although many have disparaged the practice, Kozinski and Burnham argue that dissentals and concurrals have become “an established and useful part of the appellate process.”

Preferred citation: Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 YALE L.J. ONLINE 601 (2012), http://yalelawjournal.org/2012/04/10/kozinski&burnham.html.

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The Yale Law Journal Online: “The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty” and “In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients”

The Yale Law Journal Online has published two essays on legal ethics: The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty by Lawrence Fox, and In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients, a response to Fox’s essay by James W. Jones and Anthony E. Davis.

In The Gang of Thirty-Three, Lawrence Fox reviews the proposed “sophisticated client” amendments to the Model Rules of Professional Conduct. Thirty-three General Counsels at AmLaw 100 law firms submitted the proposal to the American Bar Association, requesting that some Model Rules obligations be adjusted or lessened in relationships with “sophisticated clients.”  Fox examines the suggested changes and argues that they compromise the lawyer’s most important fiduciary duty to the client. As Fox writes, lawyers must safeguard their clients’ entitlements to loyalty if they “should be entitled” to call themselves professionals at all.

James W. Jones and Anthony E. Davis respond in In Defense of a Reasoned Dialogue About Law Firms and Their Clients, arguing that the current Model Rules are outdated and no longer reflect the needs of modern law firms and their increasingly global clientele. As people who were “directly involved in the preparation of the Law Firm Proposals,” Jones and Davis offer insight into the motivations for the proposals and respond to Fox’s critique.

 

Preferred citations:

Lawrence Fox, The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty, 121 YALE L.J. ONLINE 567 (2012), http://yalelawjournal.org/2012/03/27/fox.html.

James W. Jones & Anthony E. Davis, In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients, 121 YALE L.J. ONLINE 589 (2012), http://yalelawjournal.org/2012/03/27/jones&davis.html.

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The Yale Law Journal Online: Mistakes, Misunderstandings, and Misalignments

The Yale Law Journal Online has just published Mistakes, Misunderstandings, and Misalignments, in which Jules L. Coleman responds to Ariel Porat’s October 2011 Yale Law Journal article, Misalignments in Tort Law. In the YLJO essay, Coleman argues that the “misalignments” identified by Porat are in fact consistent with the normative structure of tort law. As Coleman writes: “[T]ort law has its own standard of alignment that is independent of efficiency. Indeed, it is independent of any particular theory of tort law or of any particular aim or goal of tort law.” Coleman points out that Porat’s efficiency-oriented approach is common in tort law literature, so although his response focuses primarily on Porat’s article, his objections are widely applicable.

Preferred citation: Jules L. Coleman, Mistakes, Misunderstandings, and Misalignments, 121 YALE L.J. ONLINE 541 (2012), http://yalelawjournal.org/2012/03/20/coleman.html.