Author: Yale Law Journal

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The Yale Law Journal: Volume 121, Issue 5 (March 2012)

March 2012 | Volume 121, Issue 5

 

ARTICLE

 

What Is Tax Discrimination?

Ruth Mason & Michael S. Knoll

 

ESSAY

 

Income Tax Discrimination: Still Stuck in the Labyrinth of Impossibility

Michael J. Graetz & Alvin C. Warren, Jr.

 

NOTES

 

The Twenty-Sixth Amendment Enforcement Power

Eric S. Fish

 

“Done in Convention”: The Attestation Clause and the Declaration of Independence

Jesse Cross

 

COMMENT

 

Shifting the Burden in Software Licensing Agreements

Stephen S. Gilstrap

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The Yale Law Journal Online: “Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism” and “Bad News for John Marshall”

The Yale Law Journal Online has published its third and fourth installments in a series on the Necessary and Proper Clause and the constitutionality of the 2010 health care reform law. The first essay in the series, Andrew Koppelman’s Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, argued that the individual mandate in the Patient Protection and Affordable Care Act is a “necessary and proper” exercise of Congress’s powers under Article I, Section 8 of the Constitution. In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, Gary Lawson and David B. Kopel responded to Professor Koppelman’s essay and, on argued—on the basis of their historical analysis—that the Necessary and Proper Clause does not validate the constitutionality of the individual mandate.

The debate now continues with Koppleman’s Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism and Lawson and Kopel’s Bad News for John Marshall. In Bad News for Everybody, Koppelman argues that Lawson and Kopel’s interpretation of the Necessary and Proper Clause “implies the greatest revolution in federal power in American history.” He concludes that using “new evidence of original meaning [as] a legitimate basis for hamstringing Congress’s power to address pressing national problems” is “insane.” Lawson and Kopel respond once again in Bad News for John Marshall, arguing that Koppelman “wrongly conflates [their] argument with a wide range of interpretative and substantive positions that are not logically entailed.” They conclude that the original understanding of the Necessary and Proper Clause is fully consistent with Chief Justice John Marshall’s reasoning in McCulloch v. Maryland. They write: “If, as Professor Koppelman appears to believe, only reprobates intent upon ending civilization, crashing the world financial order, and randomly killing off the populace could advance our arguments, a new biography of John Marshall is clearly warranted.”

Preferred citations:

Andrew Koppelman, Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism, 121 YALE L.J. ONLINE 515 (2012),http://yalelawjournal.org/2012/03/06/koppelman.html.

Gary Lawson & David B. Kopel, Bad News for John Marshall, 121 YALE L.J. ONLINE 529 (2012), http://yalelawjournal.org/ 2012/03/06/lawson&kopel.html.

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The Yale Law Journal Online: Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State

The Yale Law Journal Online has published the third in a series of responses to Benjamin Ewing and Douglas A. Kysar’s recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of The Yale Law Journal. In their article, Ewing and Kysar argue that the traditional constitutional model of “checks and balances” could be improved by incorporating “prods and pleas,” through which different government branches incentivize action from other branches. To set forth their argument, Ewing and Kysar explore federal climate nuisance litigation as an example and analyze how prods and pleas function in that arena.

In Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State, Daniel A. Farber argues that Ewing and Kysar place too much focus on common law. He writes that, with respect to climate change, “[t]he common law is simply not where the action is in today’s world.” Instead, he suggests that public law litigation and state legislative activity are more useful mechanisms for “fill[ing] the gaps created by congressional or presidential policy defaults.”

Preferred Citation: Daniel A. Farber, Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State, 121 YALE L.J. ONLINE 499 (2012), http://yalelawjournal.org/2012/02/21/farber.html.

Previous responses in this series:

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.

Jonathan Zasloff, Courts in the Age of Dysfunction, 121 YALE L.J. ONLINE 479 (2012), http://yalelawjournal.org/2012/02/14/zasloff/html.

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The Yale Law Journal Online: Courts in the Age of Dysfunction

The Yale Law Journal Online has published the second in a series of responses to Benjamin Ewing and Douglas A. Kysar’s recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of The Yale Law Journal. In their article, Ewing and Kysar argue that the traditional constitutional model of “checks and balances” could be improved by incorporating “prods and pleas,” through which different government branches incentivize action from other branches. To establish their argument, Ewing and Kysar explore federal climate nuisance litigation as an example and analyze how prods and pleas function in that arena.

In Courts in the Age of Dysfunction, Jonathan Zasloff argues that pleas are ineffective because government branches are unlikely to listen to arguments from other branches. Zasloff does find insight in Ewing and Kysar’s theory of prods, however, and he suggests that judicial prodding is appropriate in three areas: “1) where legislation is blocked by a filibuster; 2) where opposition to legislation rejects science; and 3) where the legislative process produces results that discriminate against diffuse and invisible (and thus powerless) groups.” Zasloff examines Ewing and Kysar’s example of climate change and ultimately concludes that “under current circumstances, judicial prodding is, in fact, appropriate.”

Preferred citation: Jonathan Zasloff, Courts in the Age of Dysfunction, 121 YALE L.J. ONLINE 479 (2012), http://yalelawjournal.org/2012/02/14/zasloff/html.

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The Yale Law Journal Online: Outcasting, Globalization, and the Emergence of International Law


 The Yale Law Journal Online has published the second in a series of responses to Oona Hathaway and Scott S. Shapiro’s article Outcasting: Enforcement in Domestic and International Law, which appeared in the November 2011 issue of The Yale Law Journal. In Outcasting, Globalization, and the Emergence of International Law, Robin Bradley Kar builds on Hathaway and Shapiro’s work by recasting their conclusions in the context of obligation. Kar argues that understanding the perceived obligatoriness of law is key to arguing whether international law is law. Enforcement mechanisms like outcasting or physical sanction are effective because they provide the necessary evolutionary stability conditions for a system of international legal obligations to thrive. Kar posits that the emergence of such a system is evidence of a significant transformation in our social order.

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.

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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

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.”

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The Yale Law Journal Online: Inflation Indicators

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.

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The Yale Law Journal Online: What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings

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.

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The Yale Law Journal Online: Who’s Afraid of the Federal Circuit?

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.

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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

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.