Author: Yale Law Journal

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The Yale Law Journal Online: Enforcement and the Concept of Law

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.

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The Yale Law Journal Online: Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate

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.

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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”

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.

 

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The Yale Law Journal Online: The Supreme Court (of Baseball)

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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.

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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”

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.

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YLJ Online Symposium: Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine

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.

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YLJ Online Symposium: Climate Justice and the Elusive Climate Tort

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.

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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”

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.

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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).

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YLJ Online Symposium: “Winn and the Inadvisibility of Constitutionalizing Tax Expenditure Analysis” and “A Winn for Educational Pluralism”

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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.