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. 

  • "Who Was Your Grandfather on Your Mother's Side?" Seduction, Race, and Gender in 1932 Virginia

    Nicolas, Taylor (Yale Journal of Law & the Humanities, 2024)
    Was Dorothy Short Black? And, more importantly, did she know it? These questions, odd-sounding and perhaps unsettling to the contemporary reader, were the ones raised by Leonard Harry Wood in the hopes of avoiding prison for the crime of seduction. This Article examines the story of Dorothy Short and Leonard Wood, their relationship, and the criminal case that followed it in order to explore the ways in which seduction laws worked to create ( and recreate) gendered categories of race. The Article's main contribution is shedding new light on the 1932 Virginia Supreme Court case Wood v. Commonwealth of Virginia, and more broadly on the ways in which seduction jurisprudence influenced racialized understandings of gender.
  • The Lawyer, the Witch, and the Witness: Proving Witchcraft in the English Courts

    Maddox, Trace M. (Yale Journal of Law & the Humanities, 2024)
    In the sixteenth century, a new crime arrived on the scene of the secular courts: witchcraft. Over the following two hundred years, tens of thousands of individuals across Europe and its colonies would be tried and convicted of this offense. In England alone, hundreds of men and women were executed for covenanting with the Devil or using harmful magic against their neighbors. Almost universally, this "age of credulity and injustice"5 has provoked a kind of retrospective horror that "rational, highly educated men 'could have been so bigoted as to put people to death for ... patently impossible acts' ." In popular thought, convictions for witchcraft must have been miscarriages of justice: because witchcraft does not exist, witchcraft prosecutions are, almost by definition, sham trials. And certainly, many aspects of the witch trials seem barbaric by modem standards. In particular, much of the evidence relied upon seems nonsensical. The criminal justice systems of early modem Europe lacked many of the evidentiary rules that, today, seem most fundamental - and contemporary commentators clamored for the suspension of those that did exist. Because witchcraft was "an extraordinary matter," the argument ran, it required "extraordinary dealing."
  • Dred Scott's Daughter: Gradual Emancipation, Freedom Suits, and the Citizenship Clause

    Frost, Amanda (Yale Journal of Law & the Humanities, 2024)
    The Fourteenth Amendment's Citizenship Clause connected borders, birth, and egalitarian status to forge a new definition of U.S. citizenship, freed for the first time from constraints of race and lineage. This Article locates a forerunner to the Citizenship Clause in antebellum laws enacted by six northern states under which all persons born within their borders were deemed free, regardless of their parents' race or enslaved status. In subsequent freedom suits, courts in these states declared this rule applied even to children born to fugitive slaves, holding that the child's status turned solely on location of birth, not the mother's enslavement. The Article begins by analyzing the development of "birthright freedom" an antebellum doctrine that was well known at the time to lawyers, politicians, and at least some enslaved women, who freed their children by escaping to free states while pregnant. These six states not only declared the children of slaves born within their borders to be free albeit required to serve lengthy periods ofindenture to their mother's enslaver they also mandated that these children be educated, treated as "servants" (not slaves), and that their births be registered with the state to protect their free status. The Article then argues that this linkage of location of birth, legal status, and membership rights provided socio-legal context for the drafting and ratification of the Citizenship Clause. In conclusion, the Article describes how the doctrines of birthright freedom and birthright citizenship have shaped legal rules and social practices around borders, birth, and status throughout U.S. history.
  • Copyright, Moral Rights, and the Social Self

    Simon, David A. (Yale Journal of Law & the Humanities, 2024)
    Moral rights—non-economic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction. On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the harm they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate questions of whether and to what extent the Investment Theory is justified.
  • Cooperating to Resist: Society and State during China's COVID Lockdowns

    Qiao, Shitong (Yale Journal of Law & the Humanities, 2024)
    China's lockdown during the COVID-19 pandemic was widely considered a stark demonstration of the unconstrained power of an authoritarian state. Yet this power may not be as limitless as it appears. This article, the result of extensive fieldwork encompassing over ninety interviews and on-site visits to Chinese cities, primarily focusing on Shanghai and Wuhan, where the most significant lockdowns occurred, delves into the intricacies of the Chinese partystate's response to the pandemic. It offers a unique perspective on the constraints that societal forces impose on the party-state's exercise of power and, in doing so, challenges conventional wisdom. While the Chinese Communist Party (" CCP") touted its COVID-19 response as a testament to the robustness of its institutions, critics pointed to the widespread infringement of individual rights and the suffering endured during China's pandemic lockdowns. However, one aspect has been largely overlooked: the role of society itself. This study uncovers the hitherto unexamined role of society in monitoring and resisting the party-state's encroachments on individual rights during the pandemic, a phenomenon I term" cooperating to resist." My research reveals the state's inherent limitations in enforcing neighborhood lockdowns and providing essential services to locked-down communities. Crucially, I demonstrate that the cooperation of citizens, particularly homeowners, was indispensable to the state's ability to maintain its COVID-19 control measures. Yet, this cooperation was not without its implications. When homeowners, who had been willing partners of the government, invoked legal narratives to voice their concerns, the government found itself compelled to respond. This interdependence between the government and homeowners unveils a dynamic where dependence begets power, complicating the prevailing narrative of China's" strong state, weak society." It also offers fresh insights into the dynamics of power and legality in authoritarian regimes and casts new light on the relationship between property rights and sovereignty. In an authoritarian regime, property law emerges as a sanctuary of resistance for citizens.

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