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

  • Local Legislatures and Delegation

    Schleicher, David (Texas Law Review, 2024)
    The law governing local legislatures' delegations to local executives is a mess. Nondelegation doctrine, as applied to the state legislatures' delegations, has at least a coherent (if empirically dubious) formal logic in classic ideas about separation of powers. When applied to local governments, however, the logic underlying this doctrine disintegrates. In the context of state legislatures' delegations, the doctrine rests on the notion that the state constitution intended the state legislature, as the most democratically accountable representative of the state people, to take direct and inalienable responsibility for major policy decisions, leaving only the "details" of "implementation" to be decided by executive officials. This reasoning is incoherent in the local government context. Many of local governments' most important legislative powers are derived from statutory delegations enacted by the state legislature, refuting any prohibition on that body's delegating "legislative powers. " Further, that delegated power is carried out by unicameral local legislatures exercising a mix of both legislative and executive powers in defiance of state constitutional rules requiring bicameral legislatures to turn over implementation to executive officials. Ignoring these realities, state courts routinely enforce some version of the nondelegation doctrine against local governments without differentiating between local and state delegations, sometimes even senselessly relying on separation-of-powers logic that makes little sense at the local level. This Article attempts to bring some coherence to the law governing local delegations by recognizing that limits on local delegation have nothing to do with state constitutional separation of powers. Instead, those limits rest on statutory presumptions that ought to be crafted in light of the peculiarities of local legislatures. Unlike some state legislatures or Congress, local governments regularly lack the partisan competition necessary to support jurisdiction-wide policy platforms. Local legislators, therefore, tend to adopt parochial policies that ignore jurisdiction-wide costs and benefits, including mutual deference to each legislator's exclusion of locally costly infrastructure or land uses from their district and excessive deference to incumbent entitlement holders like vendors, contractors, public employees, and neighborhood associations. This Article argues that state courts should recognize that, in contrast to local legislators, mayors, county executives, and city managers have broader name recognition and greater capacity to mobilize the voting public on behalf of jurisdiction-wide considerations. Nondelegation canons that impede local legislative bodies from delegating broad policy-making power to such unitary executives, therefore, undermine rather than strengthen democratic accountability. Rather than try to clone state-level nondelegation doctrine at the local level, judge-made local government doctrines ought to strengthen the hand of these jurisdiction-wide executives, not undermine them with gratuitous impediments like local nondelegation doctrines.

    Kysar, Douglas (DePaul Law Review;, 2024)
    This article provides a historical context of climate change and the failure of political and international efforts to address greenhouse gas emissions. It discusses the rise of climate change litigation worldwide and explores conceptual issues related to a duty of climate care. The article highlights landmark cases that have resulted in court orders requiring governments to take stronger action on climate change. It also discusses lawsuits that aim to hold major fossil fuel companies accountable for their contribution to climate change. The challenges faced by plaintiffs in attributing emissions and establishing responsibility for climate change are also discussed. The article concludes by emphasizing the importance of legally enforceable duties of climate care in addressing the global climate crisis.
  • The Constitutionality of Medicare Drug-Price Negotiation under the Takings Clause

    Kapczynski, Amy; Brown, Nathan; Bhargava, Raj (Journal of Law, Medicine & Ethics, 2023)
    In recent months, pharmaceutical manufacturers have brought legal challenges to a provision of the 2022 Inflation Reduction Act (IRA) empowering the federal government to negotiate the prices Medicare pays for certain prescription medications. One key argument made in these filings is that price negotiation is a "taking" of property and violates the Takings Clause of the US Constitution. Through original case law and health policy analysis, we show that government price negotiation and even price regulation of goods and services, including patented goods, are constitutional under the Takings Clause. Finding that the IRA violates the Takings Clause would radically upend settled constitutional law and jeopardize the US's most important state and federal health care programs.
  • The Synergy of Legal and Medical Palliative Care: Challenges and Opportunities in Palliative MLP and the Yale Experience

    Gluck, Abbe R.; Iannantuoni, Rebecca; Rock, Emily B. (Journal of Law, Medicine & Ethics, 2023)
    Palliative care and medical-legal partnership are complementary disciplines dedicated to integrating care to treat the whole patient and intervening before a legal or medical issue is at a crisis point. In this paper, we discuss the founding and operations of the Yale Palliative Medical Legal Partnership, give examples of typical cases, explain special considerations in this area of law, and propose areas for further research.
  • Targeting Health-Related Social Risks in the Clinical Setting: New Policy Momentum and Practice Considerations

    Gluck, Abbe R.; Schultz, Blake N. (Journal of Law, Medicine & Ethics, 2023)
    The federal government is funding a sea change in health care by investing in interventions targeting social determinants of health, which are significant contributors to illness and health inequity. This funding power has encouraged states, professional and accreditation organizations, health care entities, and providers to focus heavily on social determinants. We examine how this shift in focus affects clinical practice in the fields of oncology and emergency medicine, and highlight potential areas of reform.

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