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. 

  • Terceirizadas, Centered: A Critical Analysis of Outsourcing and Gender and Racial Hierarchies in Brazil

    de Barros Penteado, Taís (2023)
    This article presents a critical reading of the Brazilian Supreme Court decision in Arguição de Descumprimento de Preceito Fundamental (“ADPF”) 324—the case in which the prohibition of outsourcing was declared unconstitutional. In this decision, the majority opinion is underpinned by a neoliberal logic and relies on an argument that abuses that might occur in outsourcing are mere distortions. The minority opinion would allow the outsourcing of only “non-core” activities (which, in Brazil, correspond mostly to care-related work). Building on fem/race and class crit methods—that is, reflecting about the law by looking to the bottom, centering black female outsourced workers (“terceirizadas”)—the paper claims that both the majority and the dissenting opinions pose serious problems. Regarding the majority opinion, first, I use terceirizadas as a focal point to challenge the court’s neoliberal logic. Using terceirizadas as a point of departure shows that the neoliberal adoption of a universal individual is an abstraction that conceals how power relations operate on the ground and, in doing so, legitimates and perpetuates oppression. Second, the decision adopts a formal equality approach, which obscures how outsourcing is a fruit of, permeated by, and perpetuated by subordination. Regarding the dissenting position, the maintenance of the distinction between core and non-core activities derives from a non-intersectional look at the problem. It assumes a universal “worker,” missing the gender and racial aspects that create the possibility of different treatment in the first place. The paper then advances a possible path for the future, proposing a provisional antisubordination-based argument to argue for the unconstitutionality of outsourcing in Brazil.
  • Crawling Out of Fear and the Ruins of an Empire: Queer, Black, and Native Intimacies, Laws of Creation and Futures of Care

    Gali, Ali Murat (2023)
    Queerness is a generative desiring; it is an evoking of the playful, unpredictable, capacious possibilities of being in bodies, expressing selves, and exploring intimacies. In a society of definitive meanings, where identities signify specific and predictable positions, queerness insists on the incompleteness of any one structure of organizing individuals and relationships. While the social order is diluted by narratives instructing how relationships form, evolve, and get hierarchized, queer relationalities reject the simplicity of common-sense assumptions; in their place creating a playground of love, care, and dependencies. Against the fantasy of the monogamous couples and their biological families, for example, queer peoples have developed hand-made relational configurations. They intermingle friendships, families, lovers, and partners; they render these categories flexible and allow the individuals to give them meanings based on their unique patterns of connection, communication, and communion. Queer peoples have metamorphosed sensuality, from a private act of coupled intimacy, into what can pervade across social relations and positions. Intimacies take shape between individuals who may not know each other’s names, and in public spaces where privacy is carved out; sensuality becomes a part of body language between those who may not engage in sexual acts — it structures one’s disposition and gendered presentation. Intimacies turn into enactments of losing and gaining control, which stretch the definitions and functions of bodies.
  • Pink Tax and Other Tropes

    Crawford, Bridget J. (2023)
    Law reform advocates should be strategic in deploying tax tropes. This Article examines five common tax phrases—the “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax”—and demonstrates that tax rhetoric is more likely to influence law when used to describe specific economic injustices resulting from actual government duties, as opposed to figurative “taxes” in the form of other real-life burdens or differences. Slogans referring to figurative taxes have descriptive force in both popular and academic literature as a shorthand for group-based disparities, but they have limited impact on law and human behavior. This Article catalogues and evaluates what makes for effective tax talk, in terms of impact on the law generally as well as day-to-day actions on the ground. With this roadmap, lawyers, policymakers and others will be able make more forceful and precise arguments aimed at reforming the law and changing human behavior. This Article makes three principal claims—one descriptive, one empirical, and one normative. The Article first develops a taxonomy of tax phrases based on the object of critique. The classification distinguishes between criticisms of compulsory formal levies, on the one hand, and burdens or oppressions that are akin to taxes, on the other. The taxonomy also accounts for differences among tax tropes based on their linguistic form. Some phrases deploy a single-word modifier for “tax” (“nanny,” “death,” or “soda”) to signify a larger relationship, event, or transaction that is subject to taxation. Other phrases use a single-word modifier for “tax” (“Black” or “pink”) that is strongly associated with the persons subject to taxation.
  • Sperm is Still Cheap: Reconsidering the Law’s Male-Centric Approach to Embryo Disputes after Thirty Years of Jurisprudence

    Carpenter, Benjamin C. (2023)
    Few issues in a divorce may be as emotionally charged, or have such long-term consequences, as disputes over the control of embryos a couple had created and cryopreserved during their marriage. Most men in this scenario, still able to have children naturally, have sought to prevent their ex-wives from having a child they no longer desire. For many women, though, the embryos reflect their best, and perhaps only, opportunity to have a child. The interests could not be more polar, yet there can be no middle ground— one party’s interests must yield to the other. To date, appellate courts in over one-third of the states have addressed this issue and have overwhelmingly sided with the party seeking to avoid parenthood, expressly adopting a presumption against the use of the embryos. Only twice in twenty appellate cases has a court awarded the embryos to the party seeking to use them. Though gender neutral on its face, the effect of this presumption has disproportionately favored men. Courts have privileged men’s interests in avoiding the purely cognitive burdens of genetic parenthood, even when freed from any responsibilities of legal parenthood, above women’s interests and investments in experiencing genetic, gestational, and legal parenthood. This Article reconsiders courts’ and scholars’ prior arguments in support of the presumption and rejects that the outcomes simply reflect inherent biological differences between the sexes. Rather, the Article analyzes the decisions of the 129 judges who have now ruled on this issue, uncovers a distinct difference in outcome based on the judge’s gender, and argues the prevailing presumption against use reflects an implicit gender bias among judges. In doing so, the Article situates this issue as the latest in a long-line of male-centric approaches in American law to reproductive rights, autonomy, and parental responsibilities. As these cases are certain to increase in the coming years, this Article seeks to raise the consciousness of judges and legislators in the majority of states still to address the issue and to move the law toward a true balancing of both parties’ interests.
  • First Amendment Metaphors: The Death of the “Marketplace of Ideas” and the Rise of the Post-Truth “Free Flow of Information”

    Weiland, Morgan N. (2022)
    As cognitive linguists George Lakoff and Mark Johnson have shown, metaphors are words “we live by.” In law, they are words we govern by. The “marketplace of ideas,” introduced into the jurisprudential imagination just over a century ago by Justice Holmes dissenting in Abrams v. United States, persists as the central organizing metaphor for how judges, scholars, and the public understand the freedom of expression. It envisions a speech ecosystem where competition among ideas, refereed by a responsible press, results in truth winning out. But the marketplace metaphor is a relic. Today’s expressive ecosystem dramatically departs from the metaphor’s core assumptions, marked by information overload and replete with misinformation and lies proliferated by speech platforms unable or unwilling to act as “arbiters of truth.” These dynamics are better described by another First Amendment metaphor, “the free flow of information,” which has operated as a stealth metaphor: obscured by the ubiquitous marketplace metaphor, it has done enormous work within the doctrine without much critical notice. The metaphor’s logic privileges information over ideas, prioritizes content quantity over quality, and removes accountability from the system of free expression. In the end, truth is the casualty.

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