Now showing items 21-40 of 18352

    • Grid Reliability in the Electric Era

      Macey, Joshua C.; Welton, Shelley; Wiseman, Hannah (Yale Journal on Regulation, 2024)
      The United States has delegated the responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Although NERC is a crucial example of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To decarbonize its economy, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run largely on clean but intermittent renewable resources. These new resources demand new approaches to electric grid reliability—approaches that NERC is failing to adequately embrace. This Article traces NERC’s history, situates NERC in ongoing debates about climate change and grid reliability, and assesses the viability of reliability self-regulation in the electric era. A self-regulatory model for maintaining U.S. electric-grid reliability sufficed in prior decades, when regulated monopolies managed nearly every segment of electricity production. But the criteria that NERC once used to justify self-regulation— ’ expertise, clear accountability metrics, and public-private alignment of interests—no longer hold. The climate crisis creates a need for expertise beyond NERC’s domain, while the introduction of competition in the electricity sector blurs lines of accountability for reliability failures. NERC’s structure also perpetuates an incumbency bias at odds with public goals for the energy transition. These shifting conditions have caused to fail to keep pace with the reliability challenges of the electric era. Worse still, outdated NERC standards help entrench fossil-fuel interests by justifying electricity-market rules poorly suited to accommodate renewable resources. We therefore suggest a suite of reforms that would increase direct government oversight and accountability in electricity-reliability regulation.
    • The Nondelegation Doctrine and the Structure of the Executive

      Froomkin, David B. (Yale Journal on Regulation, 2024)
      In a series of recent opinions, the Supreme Court has threatened to transform the nondelegation doctrine into a device for imposing sweeping limits on congressional authority to empower the regulatory state. But, as a matter of history and logic, the nondelegation doctrine has a quite different purpose. This Article argues that the nondelegation doctrine plays an underappreciated role in constitutional structure: encouraging the segmentation of executive power. The nondelegation doctrine vindicates the Article I Vesting Clause by preventing Congress from being divested of its legislative power. Its purpose is to reinforce Congress’s legislative supremacy in the realm of ordinary law, not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies. The nondelegation doctrine accomplishes its distinctly structural purpose by constraining the delegation of broad powers to the President directly, a constraint that encourages legislative delegation of regulatory authority to administrative agencies. The Article explains as a matter of theory why broad delegations to the President, unlike the delegation of substantial regulatory authority to administrative agencies, jeopardize legislative supremacy and hence pose heightened nondelegation concerns, and it finds strong support for this distinction in the history of nondelegation decisions. It concludes that the diffuse departmental structure of the modern administrative state is a testament to the great success of the nondelegation doctrine, not evidence of its underenforcement. Indeed, the contemporary push to reinvent the nondelegation doctrine in an indiscriminate way would turn it into something closer to its opposite, a cudgel against legislative supremacy rather than its guardian. †
    • The Financial Inclusion Trilemma

      Levitin, Adam J. (Yale Journal on Regulation, 2024)
      The challenge of financial inclusion is among the most intractable policy problems in banking. Despite living in the world’s wealthiest economy, many Americans are shut out of the financial system. Five percent of American households lack a bank account, and an additional thirteen percent rely on expensive and sometimes predatory fringe financial services, such as check cashers or payday lenders. Financial inclusion presents a policy trilemma. It is possible to simultaneously achieve only two of three goals: widespread availability of services to low-income consumers, fair terms of service, and profitability of service. Thus it is possible to provide fair and profitable services, but only to a small, cherry-picked population of low-income consumers. Conversely, it is possible to provide profitable service to a large population, but only on exploitative terms. Or it is possible to provide fair services to a large population, but not at a profit. The financial inclusion trilemma is not a market failure. Instead, it is the result of the market working. The market result, however, does not accord with policy preferences. Rather than addressing that tension, American financial inclusion policy still leads with market-based solutions, soft government nudges, and the hope that technology will transform the economics of small-balance deposit accounts and small-dollar loans. It is time to recognize the policy failure in financial inclusion and consider to a menu of stronger regulatory interventions: hard service mandates, taxpayer subsidies, and public provision of financial services. In particular, this Article argues for following the approach taken in Canada, the European Union, and the United Kingdom. This approach—the adoption of a mandate for the provision of free or low-cost basic banking services to all qualified applicants—is the simplest solution to the problem of the unbanked. Addressing small-dollar credit, however, remains an intractable problem, largely beyond the scope of financial regulation because the challenge many low-income consumers face is solvency, not liquidity.
    • Work Disguised as Leisure, Leisure Disguised as Work: The Roots and Consequences of the Bifurcated Economy

      Hull, Samuel (Yale Journal of Law & the Humanities, 2023)
      This Article argues that the framework laid out in the post-Marxist scholar André Gorz’s 1989 book on the alienation inherent in a system focused on efficiency, Critique of Economic Reason, provides a valuable approach for understanding the alienation that inheres in the unequal modern economy, as well as the roots of the legal-political structure that undergirds that inequality. The Article first describes Gorz’s understanding of how the rise of quantification and economic reason left modern work patterns deeply alienating, and how incentivizing long hours of unfulfilling work through “compensatory consumption” and an “ideology of work” led to the bifurcation of society into elite and “servile” classes. The Article then updates Gorz’s model to analyze the rise of several phenomena that represent a fuller extension of this bifurcation: the gig economy, which embodies Gorz’s notion of “disguising private activities and leisure activities themselves as work and jobs”; and what this Article terms “totalizing firms,” which conversely disguise work as leisure. The Article next discusses how economic reason has reinforced its hegemony, both by undermining the potential for political solidarity and through its entrenchment in the legal apparatus. Finally, the Article turns to how reorienting the labor movement and economic policy toward a focus on free time could challenge economic reason.
    • The Purloined Debtor: Edgar Allan Poe’s Bankruptcy in Law and Letters

      Sheley, Erin; Rosen, Zvi (Yale Journal of Law & the Humanities, 2023)
      This Article represents the first interdisciplinary case study of Edgar Allan Poe’s bankruptcy as an inflection point in the legal and cultural history of debt. Although Poe hardly leaps to mind for portrayals of legal procedure, much of his oeuvre reveals a terror of legal process as an interstitial principle. The anxiety around identity in Poe’s work reveals an ongoing struggle between an individual subject and two opposing yet equally degenerate legal statuses: possession and indebtedness. This opposition renders a distinct form of legal process legible in these texts: the then-emerging law of bankruptcy. Poe declared bankruptcy at a unique moment in American legal history, where for thirteen months in the early 1840s, America had a debtor-focused bankruptcy law under which a bankrupt could seek protection. Poe’s case, read alongside his literary output, reveals both legal and narrative contradictions at the heart of bankruptcy, which the 1841 Act did a poor job of resolving. On the one hand, bankruptcy reframes the identity of the debtor, who becomes the object of a quasi-inquisitorial process. On the other, bankruptcy restores some degree of material agency to the debtor as a subject, often at the expense of creditors.
    • Looking for the Common Good with Adrian Vermeule and William Shakespeare

      Sczygelski, Lucas P. (Yale Journal of Law & the Humanities, 2023)
      In a March 2020 essay for The Atlantic, Harvard Law professor Adrian Vermeule called on fellow conservative legal thinkers to renounce the bedrock principle on which Originalism rests—the separation of law and morality. Instead of placing legal reasoning inside an airtight box into which no moral or political exigencies may enter, Vermeule counseled the conservative legal movement to permit moral and legal claims to mingle freely, to drop the drab positivist hermeneutics and embrace a vibrant form of natural law oriented to the “common good.” The essay provoked intense reactions, and in the process Vermeule—an administrative lawyer theretofore known primarily for his robust if increasingly lonely conservative defense of Chevron deference—became something of a legal celebrity on the integralist right. His recent attempt to expand his 2020 essay into a book entitled Common Good Constitutionalism is the subject of this Article. I read Vermeule’s book against Shakespeare’s The Merchant of Venice in an attempt to draw out some of the unsettling ahistorical patness at the center of Vermeule’s theory. Where Vermeule assumes that legal questions can have a single correct solution coterminous with the common good, The Merchant of Venice provides that legal subjects, in their ineradicable and splendid human inconsistency, will have no trouble suggesting others.
    • “Death by Bureaucracy”: How the U.S. State Department Used Administrative Discretion to Bar Refugees from Nazi Europe

      Leff, Laurel (Yale Journal of Law & the Humanities, 2023)
      During the Nazi era, the United States could have remained within overall and country-by-country quotas limiting immigration and still have admitted an additional 350,000 refugees from Germany and Germanoccupied or -allied countries. Instead, the State Department, whose consular officers abroad decided whether visas were to be issued, denied them to hundreds of thousands seeking refuge between 1933 and 1945. Largely untethered by judicial or public oversight, consular officials deployed their discretion in a way that produced direct and often deadly consequences for the mostly Jewish refugees. This episode has been largely overlooked in histories of administrative or immigration law, and minimized in historical accounts focused upon congressional intransigence and presidential acquiescence in failing to change the statutory scheme. Its meaning has been lost in the gap between disciplines. This article seeks to bridge the divide by showing how State Department officials used the discretion afforded them under the immigration statute and through judicial decisions to implement an anti-foreign, antisemitic policy. Understanding the multiplicity of decisions officials faced gives lie to the oft-repeated refrain that the law in the form of an impenetrable statute dictated the result. Reviewing the history also demonstrates the power of the “law made me do it” claim, as it persists decade after decade, despite overwhelming evidence that “the law” did no such thing. This tragic case study ultimately illuminates the need for historians to develop a better understanding of law, and for legal scholars to gain a better understanding of history.
    • Law and Redemption: Expounding and Expanding Robert Cover’s Nomos and Narrative

      Levine, Samuel J. (Yale Journal of Law & the Humanities, 2023)
      This Article explores two interrelated themes that distinguish much of Robert Cover’s scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover’s, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover’s foundation, this Article further examines the transformative power of law in Jewish tradition, using examples that illustrate Cover’s redemptive vision for the law. The unrealized redemptive potential of the American legal system ultimately reflects the failure of American law and society to grapple with our past wrongs, a necessary first step on the bridge to Messianic harmony.
    • 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.

      Stith, Kate (Harvard Journal of Law & Public Policy, 2023)
      The article focuses on U.S. Supreme Court Justice Samuel Alito's jurisprudence dedicated to the criminal law. Topics discussed include opinion of Justice Alito on categorical approach, one aspect of federal criminal law, insight on the case, Johnson v. United States, wherein Justice Alito's unease with the categorical approach became far more pronounced by 2010, and examples from cases in which Justice Alito had previously opined.

      ESKRIDGE JR., WILLIAM N.; Slocum, Brian G; Tobia, Kevin (Columbia Law Review, 2023)
      The article examines the complexities of modern textualism, challenging the simplicity and objectivity promised by the interpretive theory. It identifies twelve categories of doctrinal and theoretical choices that often divide modern textualists, causing internal divisions within the Supreme Court. It further suggest that textualists need to better define their methodology, eliminating activist or idiosyncratic doctrines.

      ESKRIDGE JR., WILLIAM N. (Notre Dame L. Rev, 2023)
      The Administrative Procedure Act of 1946 (APA) is a “super-statute,” creating a robust, enduring governance structure for the modern regulatory state. An emerging literature on “APA originalism” maintains that some of the judge-created rules of administrative law are inconsistent with the APA’s original public meaning and therefore illegitimate. In the context of notice-and-comment rulemaking, some academics and judges wield APA originalism as a reason to abrogate the presumption of judicial review, hard-look review of agency factual conclusions, and judicial deference to agency interpretations of law. Some of the judges who would apply original public meaning to those issues have asserted an even more aggressive judicial role to limit agency rulemaking that has large-scale social or economic impact. As an initial matter, this Article responds to the methodological premises of some of the APA originalists. They tend to approach the APA as through a time machine and seek the answers to today’s issues that they say are embedded in the 1946 law. APA originalists also tend to view the APA as a “shallow compromise,” enacted because the exhausted stakeholders wanted closure, and seek to limit administrative law to what they consider the narrow parameters of that compromise. This Article contests these premises. The APA was what political philosophers call a “deep compromise,” where stakeholders’ positions evolved in the course of the long debate and reached a creative resolution of governance issues that has proven to be lasting. Original public meaning for super-statutes such as this one ought to focus on the law's important concepts, which in this case are rooted in democratic theory. Even viewed as a shallow compromise through the mechanism of a time machine, the APA presumes the availability of judicial review for agency rules, encourages a hard look at fishy agency reasoning, and tolerates or even valorizes a deferential attitude toward agency interpretations under many circumstances. Understood as a deep compromise whereby conservatives accepted the legitimacy of the modern administrative state and liberals accepted procedural guardrails protecting against secret or arbitrary agency rules, the APA supports a presumption of judicial review, hard-look examination of agency reasoning, and deferential consideration of agency reasoning. The doctrine that is most offensive to a serious APA originalism—whether the law is treated as a shallow or a deep compromise—is the Roberts Court’s creation of a “major questions doctrine” that antidefers to agency rulemaking having large social or economic effects, even when the agency action is authorized by the plain meaning of statutes broadly delegating rulemaking authority.