Welcome to the Yale Law School Legal Scholarship Repository. This repository provides open, global access to the scholarship of Yale Law School faculty and journals, as well as a selection of unique collections. 

  • The Video and the Algorithm: Democracy, Antitheatricality, and Paranoia in the Age of Streaming Media

    Stone Peters, Julie (Yale Journal of Law & the Humanities, 2024)
    As debates about “digital democracy” remind us, democracy is one of our central political keywords, but its meaning is difficult to pin down. It can point to any one of a wide variety of political norms, act rhetorically to buttress a set of contradictory claims, or sometimes merely gesture vaguely toward the general political good. This essay looks at democracy not as a set of normative claims but as an idea that takes shape in the spatial-visual imaginary. Exploring democracy as a set of images, I argue that two persistent “models” have helped us to envision it, models I describe as “the performing polis” and “the dispersed demos.” These models often appear in idealized form, but they also appear as corrupt Doppelgängers of the idealized versions: in antitheatrical images of the “evil theatrocracy”; in paranoid renderings of invisible networks of marauding automatons and invisible agents. I offer a compressed history of these models, which show up in both their utopian and dystopian forms in a variety of texts: ancient Greek philosophy, Early Modern and Enlightenment political treatises, modern and postmodern political and media theory. I then turn to two cases recently decided by the Supreme Court: Twitter v. Taamneh and Gonzalez v. Google. While these cases are formally about the liability of internet platforms for their users’ incendiary posts, they are also about democracy in the digital age. I look at how the two models of democracy I have identified inform them, appearing in the cases in both their utopian and dystopian forms. At the heart of the visions of democracy these cases proffer are the figures of the video and the algorithm: vehicles of democracy and its nightmare antitheses; synecdoches for its promises and pathologies; the central forces of our digital future.
  • Identifying Youth Sport

    Koller, Dionne (Yale Journal of Law & the Humanities, 2024)
    The United States is steeped in the prevailing discourse that youth sport is part of a “good” childhood. With approximately 60 million children participating, it would seem that the conventional wisdom is true. Yet the dominant narrative occurs within a troubling empirical reality. What is often referred to as the “professionalization” of youth sport, which emphasizes early sport specialization, over-training to the point of injury, competition, and the drive to win, leads the majority of children who enter youth sport to quit by adolescence. Because professionalized youth sport is also costly, millions more, particularly children of color and children with disabilities, never have the opportunity to play. Despite the known harms of the current system, there has been little legal scholarly attention to youth sport and little meaningful reform. This article seeks to lay the foundation for a different approach by taking a crucial threshold step: fully identifying what, in the U.S., youth sport is. While the answer may seem apparent, given our perceived familiarity with sport, I argue that it is more complex. This article explains that U.S. youth sport is a particular model infused with the power of the legal and policy choices, including the choice not to regulate, that reflect our historical moment. Youth sport occurring in this environment is not, as commonly thought, just a private family matter, but a site of significant societal production that supports all other levels of athletics. It is, in short, much more than simply play. Operating in this way, I argue that the U.S. youth sport model produces a surplus value that is distributed across society, from parents and fans to sports sponsors and state and local governments. By identifying youth sport by what it is, and not what it purports to be, this article reveals why the current system is resistant to change and sets the stage for more meaningful approaches to reform.
  • Affective Reproductive Legality: Navigating the Borderland of Life and Death

    Naaman, Noy (Yale Journal of Law & the Humanities, 2024)
    Birth and death are traditionally viewed as antithetical moments. They divide our relations in the world: from their instantaneous creation at the point of birth to their dissolution at the point of death. From partner to widow, from expectant to grieving parent, in confronting the life death threshold, we become someone other. This conventional view presupposes a clear demarcation between life and death, suggesting that beyond this threshold, our relationships experience a definitive change. Yet, while our relationship with the deceased is physically taken from us, could our affective bond with them not only hold firm but also be helped to flourish? If so, what might be the tradeoff of blurring the borderland between life and death? This Article considers these questions as a matter of law, particularly in the context of reproductive rights. It assesses and juxtaposes the jurisprudence surrounding two reproductive experiences where birth and death meet: stillbirth and posthumous assisted reproduction. Both delivering a stillborn child and conceiving a child posthumously using artificial reproductive technologies challenge accidentally or intentionally the life death borderland, posing a dilemma for policymakers regarding how to regulate such scenarios. Examining the question centered in this Article, I argue, could inform policymakers contemplating the regulation of these experiences.
  • A Political Approach to Legal Evidence

    Kenneth, Tomer (Yale Journal of Law & the Humanities, 2024)
    Legal evidence is often seen as exceptional. Its focus on facts distinguishes it from legal fields, and the particular legal setting in which it operates distances it from other fact-finding endeavors. This article challenges this view. It argues that legal evidence is closely connected to political theory. The article explains the similarities between legal and political decisions about facts: both are practical decisions, made by state institutions, under conditions of uncertainty, and aimed at determining the factual basis that underpins substantive judgements. Given these similarities, legal evidence can learn a lot from theories that govern political decisions, especially political decisions about facts. One emerging line of scholarship political epistemology seems particularly useful for this endeavor. Unfortunately, existing legal evidence scholarship overlooks these resources. Drawing on and developing these insights, this article makes three related arguments. First, legal evidence has close relations with political theory. Second and following, legal evidence should focus on the legitimacy, rather than the accuracy, of decisions about facts. Third, political epistemology can offer guidance on how to achieve this legitimacy. The article then employs this political approach to legal evidence. It developing evidence doctrines such as hearsay and the Confrontation Clause, jury biases, and epistemic injustices of specific rules. Finally, this approach also invites legal evidence to improve legal decisions about facts beyond the Federal Rules of Evidence, including decisions by the Supreme Court and quasi-judicial institutions.
  • Shorting Your Rivals: Negative Ownership as an Antitrust Remedy

    Hemphill, C. Scott; Ayres, Ian; Wickelgren, Abraham L. (Antitrust Law Journal, 2024)
    The article proposes a unique antitrust remedy of negative ownership positions in remaining rivals as an alternative to divestiture in mergers. This remedy aims to restore competition levels by counteracting anticompetitive effects of mergers through various implementations like compensation based on relative performance and derivative contracts. The text explores the concept of negative ownership in antitrust enforcement, discussing its benefits in maintaining pre-merger competitive incentives and potentially allowing procompetitive transactions. It also delves into scenarios of asymmetry among firms, impact on innovation, and a detailed model of the JetBlue/Spirit merger to illustrate how negative ownership can influence pricing decisions, offering a versatile tool for antitrust enforcement.

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