Archive for the ‘Law Rev (Yale)’ Category

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: 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: 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 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 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: “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”

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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.

  March 30, 2012 at 9:00 am   Posted in: Law Practice, Law Rev (Yale), Legal Ethics   Print This Post   No Comments

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

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  March 9, 2012 at 9:00 am   Posted in: Law Rev (Yale), Law Rev Contents   Print This Post   No Comments

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

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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.

  March 8, 2012 at 9:00 am   Posted in: Constitutional Law, Health Law, Law Rev (Yale)   Print This Post   No Comments

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

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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.

  February 22, 2012 at 12:25 pm   Posted in: Environmental Law, Law Rev (Yale)   Print This Post   No Comments

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

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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)   Print This Post   No Comments

The Yale Law Journal Online: “Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision

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  January 25, 2012 at 11:14 am   Posted in: Health Law, Law Rev (Yale), Tax   Print This Post   No Comments

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)   Print This Post   No Comments

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

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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)   Print This Post   No Comments

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

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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)   Print This Post   No Comments

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   Print This Post   No Comments

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

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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)   Print This Post   No Comments

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)   Print This Post   4 Comments

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”

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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   Print This Post   No Comments

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