• A Comparative Analysis of the United States’s Response to Extradition Requests from China

      Bloom, Matthew (2008-05-01)
      Since the late 1970s, China has undertaken a process of opening up to the world and engaging in economic reform. This process has brought increased opportunities for Western nations to cooperate with China. Predictably, efforts to cooperate also have given rise to new challenges, as Chinese and Western cultures and systems often conflict.
    • A Critical Look at New Haven’s Tax-and-Tow Program: Early Benefits and Long-Term Dangers of Monopoly Service Provision in Municipal Contracting

      Sweeney, Brian (2013-05-01)
      In the spring of 2008, Crown Auto Center—along with four other New Haven towing companies—petitioned the City to investigate whether another towing operator, Anthony Monaco, had improperly gained a second spot on the police department’s towing rotation. 1 As established by New Haven’s "tow truck ordinance," the police department must rotate municipal towing assignments among eligible towers on a "reasonably fair, equitable, and nondiscriminatory basis . . . ." 2 Writing to the City, Crown and other protesting towers alleged that Mr. Monaco, already the owner of one towing outfit, Lombard Motors, had created a "new" sham business—Anthony’s High-Tech—in an illegitimate attempt to gain a second spot on the rotation and thus increase his share of the City’s towing assignments.3 Their letter to New Haven’s then-Corporation Counsel, John Ward, noted that Anthony’s was located next-door to Lombard and that Mr. Monaco remained the landlord for both properties.4
    • “A DANGEROUS UNDERTAKING”: THE PROBLEM OF INTENTIONALISM AND PROMISE OF EXPERT TESTIMONY IN APPROPRIATION ART INFRINGEMENT CASES

      Jasiewicz, Isia (2013-01-01)
      In May 2011, a federal district court issued a ruling that shocked the art world. In a copyright infringement action against prominent artist Richard Prince,[1] Judge Deborah Batts of the Southern District of New York dispensed the art world equivalent of the death penalty: an injunction requiring that artworks be “deliver[ed] up for impounding, destruction, or other disposition.”[2] The condemned works—a series of Prince collages titled “Canal Zone”—contained photographs from Yes, Rasta, a book of portraits of Jamaican Rastafarians by the photographer Patrick Cariou.[3] Prince had cut out images from the book and painted over them, combining them in his collages with other original and found images.[4] The court held that by using images from Yes, Rasta, Prince infringed Cariou’s copyrights, and his work did not qualify for the fair use defense.[5] [1] See Richard Prince Biography, Gagosian Gallery, http://gagosian.vaesite.net/__data/9fc46da40860e8dfbd593fb7af4bc63f.pdf (last visited Feb. 1, 2013). [2] Cariou v. Prince, 784 F.Supp.2d 337, 355 (S.D.N.Y. 2011). [3] Id. at 343-44. [4] Id. [5] Id. at 353-54.
    • A dedicatory letter and its context: Beinecke MS 1154.

      Fenton, Miri (2012-05-01)
      The text is written in two different Italian scripts of the early or mid twelfth century. The first hand ceases after the first three letters of f.84r (the - dam of quodam in Liber de Vita Christiana IV.44). The first line, after -dam, and the next three lines of f.84r are blank. The second hand begins on the fourth line at the start of Liber de Vita Christiana IV.45 with ‘Filius Romanum ecclesiam’. The second hand is smaller and rounder, probably later than the first, which is more clear and consistent through the first half of the text. The layout and structure of the text, including patterns of the rubric, remains the same throughout despite this change.
    • A Distaste for War at Walden Pond: Thoreau’s The Bean-Field, Theories of Personal Property, and the Mexican-American War

      Cross, Jesse (2011-01-01)
      Upon the tenth anniversary of their graduation from Harvard University, the members of the Harvard class of 1837 were sent a survey asking them to state, among other things, their current occupation. One member of this class, Henry David Thoreau, undoubtedly encountered this request while in a peculiar frame of mind. Thoreau responded to the survey on September 30, 1847, less than four weeks after he had left the small home he had occupied for two years at Walden Pond. Once again a “sojourner in civilized life,” Thoreau responded to his alma mater by listing no less than thirteen different occupations. “I am a Schoolmaster,” Thoreau explained, “a Private Tutor, a Surveyor—a Gardener, a Farmer—a Painter, I mean a House Painter, a Carpenter, a Mason, a Day-Laborer, a Pencil-Maker, a Glass-paper Maker, a Writer, and sometimes a Poetaster.”
    • A Modern Fiduciary Theory of the Necessary & Proper Clause

      Levitz, Philip (2012-03-01)
      This Article offers a new originalist account of the Necessary and Proper Clause, with important implications for the Supreme Court’s pending decision on the constitutionality of the Affordable Care Act’s individual mandate. In United States v. Comstock, the Supreme Court recently offered a substantial rethinking of the Necessary and Proper Clause, for perhaps the first time since McCulloch v. Maryland. Underlying the Court’s Comstock decision are two puzzles. First, there is a puzzle on the surface of the opinion as to how to apply Justice Breyer’s novel five “considerations” in future cases, which this Article demonstrates has already left lower courts deeply confused, notably in the cases on the constitutionality of the Affordable Care Act. Second, Comstock brings back to the surface a deeper puzzle that has sat dormant in Necessary and Proper Clause jurisprudence from the beginning: the puzzle of what it really means for congressional legislation to be rationally related to an enumerated constitutional end. This Article seeks to solve both puzzles together by proposing a modern fiduciary theory of the Necessary and Proper Clause that provides meaning to Breyer’s considerations and clarifies the nature of a rational relation between legislated means and enumerated ends. After canvassing the range of possible readings of Comstock and its means-end fit test, the Article draws on newly uncovered history of the fiduciary and agency law roots of the Necessary and Proper Clause to argue that the means-end test that is the best reading of Comstock would ask whether Congress, in legislating, is acting as a proper fiduciary of the people of the United States, within the context of its enumerated powers. Using the Affordable Care Act as a case study, the Article demonstrates that the modern fiduciary theory brings to bear a new and valuable toolset in interpreting the Act, and ultimately makes clear that the Necessary and Proper Clause should not pose a challenge to the law’s constitutionality.
    • A New Ideal for Government in Malory’s Morte Darthur

      Goldblatt, Dana (2005-09-01)
      This is a paper about the ideal of government expressed in Sir Thomas Malory’s fifteenth-century Morte Darthur, but it is also a paper about the relationship of laws to stories, and both to history. In Malory’s vision of the founding of the Round Table, King Arthur’s knights shed personal histories, family ties, even their memories of the functions of chivalry and knighthood. In place of traditional norms, emotional bonds, and personal histories, they substitute a code that, while it produces behaviors identical in many respects those that the traditional norms would have produced, imagines for itself a new origin in Merlin’s magical interventions. Thus redefined, honor becomes about righting all wrongs and eradicating all potential injustices, not just injustices that impinge upon friends and family. The objects of the adventures are not previously associated with the knights in any way and are in many ways irrelevant to the honor-seeking project itself. The Knights of the Round Table serve an ideal of honor that is basically impersonal – the same for every knight in every situation. The fellowship is united not by blood but by excellence.
    • A New National Security Court? The Case for a Provisional Approach to the Guantanamo Habeas Suits

      Brill, Sophia (2010-01-01)
      A preventive detention court sits today in Washington, D.C. It has jurisdiction over more than 200 people. In each case before the court, the government claims that the petitioner can be detained by the executive without trial because he is part of a terrorist organization and would pose a threat to the United States if released. The petitioner, who is hundreds of miles away but may participate via telephone or video access, denies the claim and on occasion presents countervailing evidence of his own. Hearsay evidence is admissible, and the standard of proof is preponderance of the evidence. Often the government’s case is based largely on the petitioner’s own statements. Hearings rarely last more than a day or two. If the petitioner loses, and loses on appeal, he may not ever have a right to return to a court for the rest of his life. Several years ago, some began calling for Congress to create a new “national security court” that would perform this function or something like it. But Congress has done no such thing. Instead, this system is the result of a Supreme Court victory on behalf of Guantánamo Bay detainees. In Boumediene v. Bush —after several years of habeas litigation from multiple detainees—the Court settled a core issue: people being held in Guantánamo have a constitutional right to bring habeas petitions in Article III courts. Dozens of petitions that had been filed were allowed to proceed; for the sake of organization and some measure of uniformity, they were channeled through the United States District Court for the District of Columbia. The D.C. judges have been left to improvise; with only a vague balancing test envisioned by the Court in Hamdi v. Rumsfeld and an invitation to “innovat[e]” in Boumediene, they have come up with their own set of rules for the habeas proceedings. Gradually, they have been building through common law what looks substantially like a “national security court”: a specialized judicial body that decides on preventive detention through abbreviated hearings.
    • A NEW REMEDY FOR HIGH-STAKES EDUCATION LAWSUITS IN A POST-NCLB WORLD

      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.
    • A Political Reading of the Constitution

      Munoz L., Fernando (2009-03-12)
      Constitutional theory greatly benefits by the use of intellectual resources from disciplines such as political theory and philosophy of language. In this work, such elements are combined to elaborate on the agenda of constitutional theory and distinguish it from other projects. The emphasis is put on the possibility of understanding the constitution as a political grammar, providing its users –the participants of the politico-constitutional process broadly speaking– with syntactic rules and semantic signposts to formulate their ideas, projects, strategies. This view can account for the radical instability of constitutional meaning –in other words, disagreement– by pointing to the so-called separation of signifier and signified made prominent by contemporary philosophy, reinforced by the fact that the recursiveness and self-reference of written language makes the syntactic functions of the constitution open to the same instability that its semantic contents have. Regarding the constitution, just as any other text, we can proclaim the death of the author.
    • A Private Ordering Solution to Blockholder Disclosure

      Mitts, Joshua (2013-01-01)
      The recent debate over reforming the Securities Exchange Act section 13(d) ten-day filing window demonstrates the importance of balancing the costs and benefits of delayed blockholder disclosure in both consequentialist and deontological terms. While hedge fund activism may create shareholder value, short-termism is a very real problem for firms today. Rather than a rigid mandatory rule, the duration of the blockholder disclosure window should be set through a shareholder amendment to the corporate bylaws that empowers shareholders to set an optimal maximum length for each firm. To internalize the economic and moral costs to society of permitting trading on asymmetric information, the SEC should impose a filing fee on blockholders utilizing the delayed disclosure window and use the proceeds to compensate investors who sold shares while a blockholder engaged in a stealth accumulation.
    • A Punitive Bind: Policing, Poverty and Neoliberalism in New York City

      Kaplan-Lyman, Jeremy (2012-01-01)
      Narrowly conceived, neoliberalism is a system of economic ideas and policy initiatives that emphasize small government and market-based solutions to social and economic problems. Adopted in response to the fiscal, welfare and racial crises of the Keynesian state, neoliberalism has become the dominant governing principle in the United States over the last forty years. A growing body of literature has shown how the rise of neoliberalism has underwritten the massive expansion of the American criminal justice system and the growth of its incarceral arm. Yet theorists of neoliberalism have largely ignored how the rise of neoliberalism has affected policing practices and, in turn, have failed to consider the role that police play in the neoliberal state.
    • A Question of Rank

      Ehrenberg, Shuky (2007-11-11)
      U.S. News and World Report rankings have long been a part of the law school application process, with school rank often playing an important role in a prospective student’s decisions. This Paper addresses the question of whether law schools act strategically in order to maximize their U.S. News and World Report ranking, with a focus on the admissions process. The Paper will show that some law schools admit students in order to maximize their ranking, as opposed to admitting students expected to succeed in law school. The Paper will also include a more general discussion of U.S. News’s ranking methodology, and possible implications to affirmative action and minority admissions in law schools.
    • A Reassessment of Common Law Protections for “Idiots”

      Clemente, Michael (2015-01-01)
      When the Eighth Amendment was ratified, common law protections categorically prohibited the execution of “idiots.” On two occasions, the Supreme Court considered whether these protections proscribe executing people with intellectual disabilities; however, the Court concluded that idiocy protections shielded only the “profoundly or severely mentally retarded.” This Note argues that the Court’s historical analysis of idiocy protections was unduly narrow. It then proceeds to reassess common law insanity protections for idiots and finds strong evidence that these protections included people with a relatively wide range of intellectual disabilities. Based on this new historical account, this Note argues that there are people with intellectual disabilities on death row today who likely would have been protected from execution in 1791.
    • A Sobering Look at Why Sunday Closing Laws Violate the Sherman Act

      Tetelbaum, Elina (2010-01-01)
      On April 8, 2010, an attempt to allow liquor stores to open on Sundays was overwhelmingly defeated in the Minnesota state house. Minneapolis Rep. Phyllis Kahn, who has unsuccessfully tried to overturn the Sunday closing laws for years, “tried to put an amendment on another liquor-related bill, but it was voted down 110-20.” Minnesota is one of many states that maintain a ban on Sunday liquor sales, even though Sunday sales of alcohol could bring in much-needed revenues to the state. Despite a recent momentum in opposing these bans, which date back to the seventeenth century in the United States, they continue to persist, notwithstanding repeated constitutional and political challenges.
    • A Study of Changes to the Land Demarcation System in Seventeenth and Eighteenth Century New Haven

      Boyle, Maureen (2011-04-01)
      There is a default assumption in the field of urban legal history that systematic, coordinated action is superior to individualized, haphazard action when it comes to decisions about town planning and local land policy. Economic historians of colonial towns and institutions view the informality of early planning as an anomaly and a flaw; they argue that their irregular property systems were inefficient and failed to stimulate local land markets. In contrast, they argue that comprehensive plans and rectangular layouts facilitated land markets, which was beneficial for the settlements that adopted them. Theorists who agree with this assumption argue that the upfront costs of comprehensive planning are justified because they reduce the significant transactions costs caused by irregular plans and layouts.
    • A Study of the Housing Patterns of Yale Law School Students

      Hayakawa, Masato (1999-10-01)
      In 1948, only about one-tenth of the law students lived in what we now term the law student ghetto. By 1997, more law students lived in this neighborhood than in any other - students in this neighborhood outnumbered students living in other off-campus neighborhoods by a margin of two-to-one, and they made up a simple majority of the enrollment. This paper examines the formation of this concentration. The evidence shows that the law student ghetto did no always exist in its current form, but rather that it is a product of housing developments of the last thirty years. This paper traces these developments. I discuss the demographic make-up of the student body, the housing distribution of the students, and events in New Haven or the wider world which affected either the demographics or the distribution. Because the Yale Law School is located in New Haven, this paper also examines the relationship between New Haven and Yale University, and the intertwined history of these two communities.
    • A Unified Constitutional View of Financial Punishment: Synthesizing the Excessive Fines Clause and Bearden-Based Protections

      Feinzig, Joshua M. (2020-01-01)
      This Note coordinates the Eighth Amendment Excessive Fines Clause with the Fourteenth Amendment wealth-discrimination protection set forth in Bearden v. Georgia. It is generally assumed that the two protections operate independently: while the Excessive Fines Clause protects individuals against exorbitant financial obligations, Bearden limits the state from converting criminal debt into a severe liberty deprivation. But in recognizing how the two doctrines are normatively and functionally reinforcing, this Note proposes a single framework for considering financial punishment’s constitutionality. If the Eighth Amendment protection applies at the imposition of a financial punishment, Bearden provides a “second look” at the constitutionality of that punishment. Or, put another way, the Eighth Amendment is a preemptive look at the downstream poverty-based liberty deprivations that Bearden secures individuals against. Appreciating this relationship affords additional authority to both protections, and suggests a number of improvements to existing safeguards.
    • A Universal Enemy? Legal Regimes of Exclusion and Exemption Under the ‘Global War on Terror'

      Li, Darryl (2009-08-06)
      This essay argues that the ongoing U.S.-driven “Global War on Terror” stands apart from similar state campaigns in its special focus on confronting “foreign fighters” – armed transnational non-state Islamists operating outside their home countries – in places where the U.S. is no less foreign. This global hunt for foreign fighters animates diverse attempts to exclude similarly “out of place” Muslim migrants and travelers from legal protection by reshaping laws and policies on interrogation, detention, immigration, and citizenship. Yet at the same time, certain other outsiders – namely the U.S. and its allies – enjoy various forms of exemption from local legal accountability. This essay illustrates this braided logic of exclusion and exemption by juxtaposing the problems of extraordinary rendition and military contractor impunity in both post-war Bosnia-Herzegovina and post-invasion Iraq. This framework – which predates and will likely outlast the Bush administration – undermines the rule of law and state-building efforts and occludes crucial questions surrounding the legitimacy of how U.S. global power is exercised. This essay employs treaties, Bosnian, Iraqi, and U.S. statutes, cases, and regulations to reframe post-Cold War debates about nation-building and post-9/11 arguments about the laws of war.
    • A Walk Through West Haven: Land Use Coordination, Homeownership, and the Origins of Zoning in an American Suburb

      Dameron, Charles (2014-12-18)
      In his social history of Boston's inner suburbs, Sam Warner reminded his readers that "[t]he world is full of Roxburys and Dorchesters; places statesmen never visited. towns and counties upon whose fate no intellectual movement or nation has as yet depended.