Recent Submissions

  • Mormon Property

    Follett, Andrew P. (2023-05)
    For most of the latter half of the nineteenth century, the American government fought desperately to rein in the Mormons in Utah. Narratives about this conflict generally treat it as one centered on polygamy or tensions between religion and the state. This paper, however, considers the central role of competing visions of property and property law in the Mormon-American conflict. It explores how the Mormon property system was not only a driver of the conflict but also one of the Mormons’ most important tools in attempting to subvert and overcome the American legal system. In particular, it outlines how the Mormons treated group identity and community standing as a property asset in order to govern through ecclesiastical structures independent of state authority. This historical context offers three advantages. (I) First, a framing centered on competing visions of property law sheds new light on the historical causes and drivers of the Mormon-American conflict and the drastic legal actions of the federal government, including those of the Supreme Court in several prominent decisions. (II) Second, this novel historical framing provides a new throughline for understanding the evolution of the Mormon property system and underscores an overlooked irony in the development of Mormon history: in attempting to subvert “sole and despotic” Anglo-American property norms, the Mormons ultimately succumbed to the American property logic under increasingly elaborate property arrangements. (II) Third, exploring the Mormon property system as one of law rather than merely religion inspires new appreciation for the role of non-state institutions in private ordering and enforcing property systems. At this level, this paper attempts to flesh out the story of the administration of property in Territorial Utah, under the law of consecration, as a case study in law without violence.
  • The NBA’s “One-and-Done” Rule: Procompetitive Justifications and Anticompetitive Effects

    Ruderman, Rachel (2023-05)
    In 2005, the National Basketball Association (NBA) implemented a rule prohibiting players from entering the League directly after high school. To be eligible to join the NBA, players need to meet two conditions: (1) at least one year must have elapsed since they graduated high school, and (2) they must be 19 years old or must turn 19 the year they enter.1 This rule,2 often termed the “One-and-Done” Rule, was first enacted in advance of the 2006 NBA draft. The most talented high school athletes tend to compete in National Collegiate Athletic Association (NCAA) basketball until they are eligible to play professionally, although a few alternative options do exist. To fully understand the anticompetitive and procompetitive effects of the One-and-Done Rule, this Article will examine the justifications and consequences of the rule under a fullrule- of-reason approach that courts may take if the legality of the rule were to be litigated.3 The following analysis demonstrates that, on balance, the rule has salient anticompetitive effects on the market for talented young basketball players, and may violate antitrust laws.
  • The Second Amendment on Board: Public and Private Historical Traditions of Firearm Regulation

    Hochman, Joshua (2023-11)
    In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court reaffirmed that laws prohibiting the carrying of firearms in sensitive places were presumptively constitutional. Since Bruen, several states and the District of Columbia have defended their sensitive-place laws by analogizing to historical statutes regulating firearms in other places, like schools and government buildings. Many judges, scholars, and litigants appear to have assumed that only statutes can count as evidence of the nation’s historical tradition of firearm regulation. This Note is the first expansive account since Bruen to challenge this assumption. It argues that courts should consider sources of analogical precedent outside of formal lawmaking when applying the Court’s Second Amendment jurisprudence. Taking public transportation as a case study, the Note surveys rules and regulations promulgated by railroad corporations in the nineteenth century and argues that these sources reveal an historical tradition of regulating firearm carriage on public transportation. Bruen expressly permits courts to engage in more nuanced analogical reasoning when dealing with unprecedented concerns or dramatic changes. One such change is the shift in state capacity that has placed sites that were previously privately or quasi-publicly operated before the twentieth century under public control in the twenty-first century. As in the case of schools, which the Court has already deemed sensitive, a substantial portion of the nation’s transportation infrastructure in the nineteenth century was not entirely publicly owned and operated. This case study instructs that courts and litigants can best honor Bruen’s history-based test by considering all of the nation’s history of firearm regulation.
  • Statutory Structure

    Bogue, Russell (2023)
    One of the least controversial tools of statutory interpretation the Supreme Court employs is also one of its least examined: the use of a statute’s “structure.” For decades—but particularly under Chief Justice Roberts—the Court has determined the meaning of ambiguous statutory provisions through reference to the “structure,” “scheme,” or “plan” of a statute. Despite its ubiquity in the Court’s opinions, however, structural argument in statutory interpretation has gone largely unexamined by scholars. This Note attempts to fill that gap. Through an analysis of recent case law, this Note categorizes the types of structural argument employed by the Court in its statutory-interpretation cases and the various assumptions needed to motivate such arguments. This fine-grained mapping permits a closer normative evaluation of structural argument and, in particular, of its compatibility with different methodologies of statutory interpretation. All dominant methods for reading statutes have good reason—on their own terms—to employ some types of structural argument, which demonstrates its cross-methodological appeal. But purposive reasoning best embodies the assumptions of coherence and rational design that undergird structuralism. The sway of this type of argument over a hypertextualist Supreme Court thus suggests the enduring need for purposive reasoning, particularly as the traditional tools of purposivism—such as legislative history—have been largely abandoned.
  • Brief for Respondents, Tyler v. Hennepin County, Minnesota

    Bogue, Russell (2022)
    QUESTIONS PRESENTED 1. Whether selling a tax-forfeited property to satisfy a tax debt and keeping the surplus value violates the Fifth Amendment’s Takings Clause in the absence of any state-created property right to that surplus value. 2. Whether a tax forfeiture of a property worth more than needed to satisfy its tax debt, plus interest, penalties, and costs, is a “fine” within the meaning of the Eighth Amendment.

    Suarez-Palomo, Victoria (2022)
    This writing sample is an assignment I submitted to Yale’s Supreme Court Advocacy Clinic. I was asked to review the certiorari petition and corresponding files in State of Oklahoma v. Robert Eric Wadkins, and then to draft a mock “cert pool memo.” The case addressed what requirements a criminal defendant must satisfy to qualify as an “Indian” for purposes of federal criminal law. I recommended the “Court” deny the petition. The assignment did not require formal Bluebook citations, but I have added them for purposes of this submission.

    Churba, Tomás E. (2022)
    In this paper, my goal is to shed light on a recent debate regarding the nature of justifications and wrongs in criminal law. As we delve deeper into the topic, we will see that wrongs and justifications are conceptually intertwined, and it is, therefore, crucial to have a clear understanding of their nature. The theoretical disputes and perplexities surrounding this topic can be attributed, in part, to an improper conception of moral wrongs. However, once we have a better understanding of this phenomenon, we will be able to account for many of the issues associated with the nature of justifications in criminal law. The distinction between offence denials and justifications is not morally neutral. The former assumes that there are no decisive moral reasons against performing an action. In short, they deny the existence of an offense altogether. Justifications, on the other hand, acknowledge the existence of an offense but deny that the conduct is wrong all things considered. To have a defense is to concede the existence of a pro tanto wrong or a provisional complaint, but to reject the claim that the conduct is wrongful in the particular context in question.

    Pugliese, Nicholas (2023-04-27)
    Under the U.S. Sentencing Guidelines’ recidivism provisions, prior judgments can be used to enhance a federal defendant’s advisory sentence and block relief from draconian mandatory minimums. This includes past offenses the defendant committed before age 18—whether the individual was prosecuted as an adult or as a juvenile. The use of pre-18 conduct to enhance later adult sentences is both constitutionally suspect and bad policy. First, the practice stands in tension with the U.S. Supreme Court’s juveniles-are-different line of cases that has recognized that “children are constitutionally different from adults in their level of culpability.” Second, the way in which the Guidelines draw a line between juvenile and adult priors generates unequal treatment between similarly situated defendants based on geography and race, a result at odds with the Guidelines’ “primary goal” of eliminating unwarranted sentencing disparities. Third, because juvenile systems in many states impose punitive sanctions while denying young people the right to a jury trial, the Guidelines enhance sentences based on convictions obtained in violation of the Sixth Amendment. Now that the U.S. Sentencing Commission is back in action following a three-and-a-half-year hiatus, this article recommends that the Commission amend the Guidelines to prohibit the use of offenses committed before age 18 to enhance advisory sentences. While those changes are pending, criminal defense attorneys and judges should implement training sessions to educate themselves about the flaws in the Guidelines so they can adjust their advocacy and sentencing decisions accordingly.
  • Like Circus Clowns and Movie Actors, Women Should Deduct Their Work-Appearance Costs

    Forero, Isabella (2022)
    The tax law on the deductibility of working expenses seems, on its face, gender neutral. A closer look shows that the doctrine fails to account for women’s working experiences, with the result that working women pay higher income taxes than working men. Women have historically been confined to the private sphere of the home and prohibited from engaging in the public sphere, both explicitly and constructively. Though much has changed in the world, scars of the previous division remain. The law of federal income taxation in the U.S. draws a seemingly unrelated distinction between the ‘personal’ and ‘business’ expenses of working in the public sphere. Expenses which are ordinary and necessary for the production of income are deductible, while those whose value is thought to be enjoyed more personally are not. This doctrinal distinction grows out of a body of law that, in addition to being drafted almost exclusively by men, contemplated a world in which the ‘production of income’ was taken on (and deducted) almost exclusively by men. Now that women make up about half of the U.S. workforce, the line between business and personal costs of working may require a shift, in consideration of women’s working experiences.
  • PACT: An Oral History

    Roberts, Eleanor (2022)
    This oral history documents the origins and trajectory of a group run by incarcerated men called the Project for A Calculated Transition (“PACT”) at Green Haven Correctional Facility in Stormville, New York, and their community partnership with students at Yale Law School. Incarcerated activists at Green Haven—a maximum-security prison—created PACT in the wake of the Attica Uprising. While PACT welcomes men of all backgrounds, most of the members of PACT are men of color who grew up in neighborhoods devoid of state investment, and most are serving long sentences for serious crimes. Meanwhile, most, but not all, of the Yale members have been white students from economically privileged communities, and their group includes all genders. The partnership has persisted since 1978. Over the past forty-three years, this community has generally met every other Monday night to discuss political, legal, and moral issues as peers. PACT’s partnership with Yale Law students has most recently consisted of a reading group where the incarcerated men lead the discussion, though in the past Yale students and PACT members have also taken turns leading discussions. Although the format of the meetings has changed, throughout the years, the members have challenged each other to change their perspectives and forge relationships built on honesty and respect. There have been some years where Yale students were unable to enter the prison, including the period between the start of the COVID-19 pandemic in March 2020 and the submission of this paper in January 2022.
  • Janus and the Movement Dissent

    Hosie, Duncan (2021)
    This paper examines Justice Kagan’s 2018 dissent in Janus v. AFSCME to illustrate how incisive, bold, and creative dissents can bolster ordinary citizens seeking constitutional change. Using the tools of intellectual history, the paper shows that the dissent created a dialogic relationship between the Supreme Court and labor activists and liberal academics. It then explores how progressive commentators, union leaders, politicians, and workers deployed the Janus dissent in political and discursive organizing that resisted the Court’s constitutional and economic visions. The paper concludes by reflecting on the promise of movement dissents in channeling constitutional cynicism and alienation into constitutional construction.
  • The Road From Rhodes: The Impact of Double Celling on State Investment in Incarceration

    Bogue, Russell C.; Johnson, Broderick; Wang, Shunhe (2021)
    Exactly forty years ago, the Supreme Court decided Rhodes v. Chapman, holding that Ohio’s practice of double celling prisoners did not violate the Eighth Amendment. In contravention of American Correctional Association and architectural minimum standards, the practice has since only continued to spread among prisons as a way to decrease the financial burdens of a rapidly expanding prison population. Both the COVID-19 pandemic and recent calls for prison abolition have brought the issues of overcrowding and carceral investment to the forefront of the national consciousness. This essay explores the financial costs of incarceration that states are able to avoid by virtue of their double celling practices. First, this essay provides a historical context to double celling, surveying prison space standards and variables designed to measure prison capacity, before drawing on Rhodes v. Chapman as a case study for estimating Ohio’s avoided costs before and after Rhodes. Second, this essay examines modern prison expenditures and overcrowding, using those figures to estimate the costs that Alabama’s prison system—which spends the least on its inmates— is able to currently externalize. Both federal and state prison systems should internalize these costs. Currently, governments simultaneously overinvest in the size of their carceral systems while underinvesting in the quality of prisons. This situation allows for the development of a carceral policy disconnected from the actual costs of incarceration. As a start, standards governing minimum space requirements exist and should be enforced. Individual state legislatures have near-plenary power over their prison systems, and Congress can provide incentives for states to comply with humane standards. Congress has direct powers over the federal system, and the executive branch can exercise control over the Federal Bureau of Prisons, an agency housed in the Department of Justice. In addition, much of the confusion around whether or not prisons meet minimum standards in the first place centers around inconsistent and incomplete data. Relevant government authorities should mandate—or at least heavily incentivize—data collection and standardization; otherwise, carceral systems will shield themselves through ambiguous and deficient data. Permitting double celling has created perverse incentives for prison systems, providing opportunities for prisons to minimize their financial costs at the expense of prisoners’ health and safety. COVID-19 has shown us the devastating consequences of such policies. The time to act to curtail Rhodes v. Chapman’s reach is now.
  • Mechanism Design and Behavioral Economics: Incentivizing Optimal Pre-Trial Discovery

    Brod, Andrew B. (2021)
    Practitioners and judges recognize excessive civil discovery to be a widespread and serious issue. Since litigants bear only a small portion of the costs of their own discovery requests and face unconscious psychological biases, they regularly seek far more discovery than would be relevant and proportional to proving their case. This in turn massively inflates litigation costs for their opponents. The 2015 Amendments to the Federal Rules of Civil Procedure (FRCP) recognized and confronted this problem directly: they rewrote Rule 26(b)(1) to encourage judges to more actively ensure that discovery requests are “proportional” to the needs of the case. In showing precisely how judges should implement the revised Rule 26(b)(1), I first explore the causes underlying excessive discovery. I draw on insights from classical economics (which understands litigants as purely rational actors) and from behavioral economics (which explores litigants’ psychological biases) to explain the current prevalence of excessive discovery. I then use techniques from mechanism design, a branch of mathematical economics, to develop a new discovery system. Under this system, judges formulate rigorously the “proportionality” standard envisioned in the amended FRCP, which they implement by correcting for the aforementioned causes of excessive discovery. I conclude by exploring questions regarding this proposed system’s real-world feasibility.
  • The Remediless Reading Right

    Hurley, Shana
    Lawmakers nationwide are trying to improve reading by embracing a scientific consensus regarding literacy acquisition and enacting robust regulatory regimes touching every part of the learning process. For most actors, “Right to Read” laws establish clear accountability rules and noncompliance remedies. However, students who are not provided with statutory reading entitlements have inconsistent or nonexistent remedies against their schools. As a result, states do not hold accountable educators using debunked instructional methods and schools failing to provide necessary interventions. And courts abstain from enforcing their entitlements based on anachronistic research and policy. This Note introduces the new literacy science and laws, arguing descriptively that Right to Read regimes are enforceable under an implied right of action or a statutory negligence claim. Nevertheless, it recommends that lawmakers enact a public enforcement scheme that would better serve the students most in need of support.
  • Felon Re-Enfranchisement and the Problem of “Lost” Rights

    Feinzig, Josh (2022-01)
    By conditioning the restoration of political rights on financial repayment, states have prevented hundreds of thousands of citizens with felony convictions from participating politically—profoundly altering the shape of the American electorate. Courts have upheld the practice by treating restoration as an exercise of legislative grace to nonmembers of the political community. Critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review. This Essay traces the disagreement back to an overlooked first-order question: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood? The conventional position assumes that disenfranchisement casts a citizen outside the democratic community, thereby voiding all constitutional claims to political participation. But for doctrinal and democratic-theoretical reasons, disenfranchisement is better understood as the subordination—not the revocation—of political rights and interests, just as punishment suppresses but does not eliminate an individual’s constitutional interests in physical liberty or other civil liberties. From this it follows that disenfranchised citizens retain a stake in political inclusion that cannot be conditioned on wealth status. Redescribing the disenfranchisement-to-restoration process in this way aligns with the Supreme Court’s reading of Section 2 of the Fourteenth Amendment in Richardson v. Ramirez and sharpens the constitutional symmetry between financially conditioned restoration and the paradigmatic poll tax. By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts outside the courts.
  • The Limits of Lex Americana: The Holocaust Restitution Litigation as a Cul-de-Sac of International Human-Rights Law

    Allen, Michael (2009-09-05)
    This article addresses the Holocaust-restitution litigation of the late 1990s, which resulted in spectacular settlements totaling over $9 billion and culminated with an Executive Agreement between Germany and the United States in 2000. Prominent law scholars such as NYU Professor Burt Neuborne and Michael Bazyler, author of Holocaust Justice: The Battle for Restitution in America's Courts (2003) and Holocaust Restitution: Perspectives on the Litigation and its Legacy (2006), have celebrated these lawsuits as a model for international human rights. Neuborne has extolled the litigation as the dawn of an era of “lex Americana,” in which multinational corporations (MNCs) have a “moral obligation … to live by American rules of fundamental fairness, both substantive and procedural, if they wish to participate in the remarkable success of this economic, social, and political culture." Bazyler is equally enthusiastic: “[T]he Holocaust restitution cases [are] beco! ming the principal model for victims and their representatives seeking to right past wrongs.” Legal scholarship has thus contributed to a heroic image of plaintiffs slaying the Goliath of global corporations in international human-rights litigation. This fits larger trends in foreign relations law that Anne-Marie Slaughter and David Bosco identify as “Plaintiff’s Diplomacy.” In Plaintiff’s Diplomacy, individuals directly shape foreign affairs by suing in the courts, thus bypassing the traditional diplomacy between states. According to this model, private parties can no longer be shut out. Bazyler’s summary of the Holocaust-era litigation provides an example: “The ‘one-two punch’ of American lawyers first filing the class action lawsuits against the European defendants [MNCs] and American officials at the state and local levels then threatening to exclude the defendants from profitable U.S. [business] deals … was the perfect strategy…" But Bazyler vastly exaggerates the importance of litigantion. The State Department had already been seeking to settle su! rvivors’ claims for several years in advance of any lawsuits. This article makes three original contributions. First, contrary to the heroic narrative of “plaintiffs’ diplomacy,” it argues that the United States’ political branches contributed more to the successful settlements than litigation. Instead of individuals mobilizing the courts to change the behavior of recalcitrant states, the process worked in reverse. States-parties led the way. Second, using historical evidence, this article examines the survivors’ legal claims, which sounded in restitution. Because the Holocaust survivors’ succeeded in large settlements and because their suffering was beyond question, scholars have simply taken it for granted that they advanced strong legal claims. Historical evidence shows that their claims were surprisingly weak. Third, this article tests Bazyler and Neuborne’s hypothesis that the Holocaust-era litigation provides a model for successful lawsuits against MNCs that perpetrate human-rights violations. By examining the legacy o! f the Holocaust-era lawsuits in other international human-rights litigation, this article shows that the plaintiffs’ restitutionary theories of recovery neither have nor can provide such a model.

    Suarez, Christopher (2009-11-01)
    Sheff v. O’Neill ushered in a new wave of education reform litigation that will challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Article proposes a new desegregation remedy—the sliding scale remedy—to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students’ academic outcomes. It balances concerns over local control and separation of powers with the court’s need to effectuate rights, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies.
  • Patent and Contribution: Bringing the Quid Pro Quo into eBay v. MercExchange

    Pesses, Elizabeth (2009-10-01)
    In eBay, Inc. v. MercExchange, L.L.C., the Supreme Court declared that an injunction granted to stop and prevent patent infringement is like any other injunction, and therefore should only issue after consideration of traditional equitable factors. It is not yet clear whether this decision has truly changed existing patent law, but one thing is certain—injunctions are no longer viewed as a guaranteed remedy for patent infringement. One potential effect of eBay on the world of technology is on the value of patents. Much of the discussion of eBay has focused on the decision’s effect on patent owners who do not practice their patent. Without the threat of a guaranteed permanent injunction, these patent owners will have less bargaining power in licensing negotiations and might get less favorable licensing arrangements. This note discusses this potential change in patent value and its relation to one primary justification for patent law, the quid pro quo, which views the patent as an exchange between the inventor and the public: invention and disclosure in exchange for the right to exclude. In the post-eBay world, the fact that an injunction is no longer a guarantee may reduce the value of the right to exclude. This may create a disparity in the exchange—the inventor may receive less value from the public in the form of a patent while the public receives more from the invention and disclosure through the denial of an injunction. This note argues that eBay need not conflict with the quid pro quo exchange, and that, although current decisions relying on the Supreme Court’s opinion do not do so, courts can and should use eBay to better tailor the patent right to the value of the actual contribution of invention and disclosure.
  • Leveraging International Economic Tools to Confront Child Soldiering

    Desierto, Diane (2010-02-06)
    Child soldiers in theatres of armed conflict represent the worst and most abusive forms of child labour. States parties to the conflict, as well as third party States, bear differentiated and continuing international legal obligations in relation to child soldiering. Not only are States parties to the conflict barred under international humanitarian law from drafting this class of protected persons into child soldiering, but it may also be argued that other States in the multilateral economic system can independently take measures pursuant to the General Exceptions (Article XX) and Security Exceptions (Article XXI) clauses of the GATT 1994 to ensure, prevent, and deter parties from enjoying economic advantages illicitly obtained from the labour of child soldiers. As the International Labour Organization has advocated in ILO Convention No. 182, States also have a significant role in post-conflict situations to guarantee effective and meaningful international human rights protection in the demobilization of child soldiers and their reintegration to their respective home communities and regional societies. Where child soldiers have been used en masse to perpetuate trade in both facially-licit and contraband goods, States can design policy measures that facially depart from the multilateral trading rules against non-discrimination, most favoured nation, market access, and unfair trade, but without incurring international legal sanction.
  • The Law of Unintended Consequences: A Critique of the Dilutive Effects and Efficiency Costs of Multilayer Regulation

    Podolyako, Ilya (2009-04-29)
    This Article examines the role obstruction charges play in the regulatory framework covering modern public corporations and their members. It finds that prosecutors’ reliance on obstruction charges undermines the legitimacy of substantive rules for enterprise behavior. This pattern not only causes significant inefficiency on its own, but indicates a broader problem with multilayer regulation. That is, in a previously regulated arena, the pre-existing legal environment may warp a new set of rules in undesirable ways. The Article concludes by proposing a means to address this problem generally and remove unnecessary costs associated with the compliance regime specifically.

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