In her recent New Yorker article entitled Birthright, Jill Lepore cites to Linda Greenhouse and Reva Siegel’s Before (and After) Roe v. Wade: New Questions About Backlash from Issue 8 of Volume 120 of The Yale Law Journal. Lepore writes:

But Linda Greenhouse and Reva Siegel, both of whom teach at Yale Law School, have argued that th[e] conventional narrative [of Roe v. Wade] gets history backward. In an article published in the Yale Law Journal in June, they suggest that what happened after Roe was a consequence not of the Court’s ruling but of G.O.P. strategists’ attempt to redefine the Party—before Roe. In their account, if there’s a villain it’s not Harry Blackmun; it’s Richard Nixon.¹

In their Feature essay, Greenhouse and Siegel challenge the common belief that the Supreme Court was the one to blame for the consequences of Roe v. Wade. They address “abortion conflict as an expression of politics—a conflict in which the Supreme Court was not the only or even the most important actor.”² Greenhouse and Siegel reveal that just prior to Richard Nixon’s 1972 campaign, the Democrats held a more conservative stance on abortion than did the Republicans, and that the conflict over Roe developed as the parties adjusted and realigned their respective positions. Greenhouse and Siegel conclude that “the dominance of the ‘Court-caused-it’ backlash narrative has shortchanged both legal scholars and the general public of a more complete understanding of an important chapter in America’s social, political, and legal history.” According to Greenhouse and Siegel, conflict in constitutional interpretation emerges from “sources outside as well as inside the courtroom,” a reality that the “conventional Court-centered narrative” all too often ignores.<sup>3

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1</sup> Jill Lepore, American Chronicles, Birthright, The New Yorker, November 14, 2011 at 44, 52, available at http://archives.newyorker.com/?i=2011-11-14#folio=052.
² Linda Greenhouse & Reva Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 228, 228 (2011), available at http://www.yalelawjournal.org/images/pdfs/987.pdf.
³ Id. at 2086.

Legal Theory Blog has named YLJ article Outcasting: Enforcement in Domestic and International Law as its recommended “Download of the Week.” Opinio Juris has also held a symposium on the article, with commentaries from Samantha Besson, Gary Bass, and Michael Helfand, among others. Responses from Oona A. Hathaway and Scott J. Shapiro, authors of the article, follow. 

In Outcasting: Enforcement in Domestic and International Law, an article in Issue 2 of Volume 121 of YLJ, Hathaway and Shapiro examine “outcasting,” a nonviolent method of law enforcement that denies the benefits of social cooperation and membership to the disobedient. Hathaway and Shapiro illustrate that outcasting underpins legal regimes from medieval Iceland to the World Trade Organization. The article demonstrates that the traditional critique of international law—that it is not enforced and is therefore not “real” law—ignores the fact that outcasting in international law resembles similar forms of nonviolent enforcement that have sustained a variety of legal regimes for centuries.

In a recent New York Times article on the upcoming Smith v. Cain oral argument before the Supreme Court, Campbell Robertson and Adam Liptak cite The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct for the proposition that "prosecutors who withhold evidence are almost never disciplined." Andrew Rosenthal also referenced the YLJO essay in his New York Times editorial: he quotes Lincoln Caplan, a fellow editor at The Times, in noting that "[a] group of Yale Law School students recently published a report on 'The Myth of Prosecutorial Accountability After Connick v. Thompson,' which is unsettling but well worth reading." Jarvis DeBerry of NOLA.com has discussed the piece in his article and Deborah Jane Cooper, one of the authors of the YLJO essay, has written further on the topic in an opinion in The National Law Journal. 

In The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Be Protected After Prosecutorial Misconduct, David Keenan, Deborah Jane Cooper, David Lebowitz, and Tamar Lerer examine prosecutorial accountability in the wake of Connick v. Thompson, a recent Supreme Court case overturning a $14 million jury verdict awarded to a man who spent fourteen years on death row after prosecutors withheld key exculpatory evidence during his trial. The Court based its decision in part on the availability of other measures to check prosecutorial misconduct, including state professional disciplinary procedures. Keenan, Cooper, Lebowitz, and Lerer challenge this presumption by undertaking a detailed analysis of these procedures in all fifty states. They demonstrate that these measures are ineffective tools for accountability and recommend several strategies for strengthening professional conduct rules and grievance procedures to deter and sanction prosecutorial misconduct.

Please click here to read the YLJO Essay in full.

In Judges in Jeopardy!: Could IBM’s Watson Beat Courts at Their Own Game?, Betsy Cooper examines IBM’s Watson computer and how it might affect the process by which new textualists interpret statutes. Cooper describes new textualism as being founded on the ‘ordinary meaning’ of language. She writes: “New textualists believe in reducing the discretion of judges in analyzing statutes. Thus, they advocate for relatively formulaic and systematic interpretative rules. How better to limit the risk of normative judgments creeping into statutory interpretation than by allowing a computer to do the work?”

Cooper’s essay considers how Watson – the IBM computer which won a resounding victory against prized human contestants on Jeopardy – might fare as a new textualist. She concludes that Watson has many advantages over humans. For example, a computer can pinpoint the frequency with which a phrase is used in a particular statutory context, and can “estimate the frequency within which each connotation arises, to determine which is most ‘ordinary.’” And Watson avoids bias: “when he makes mistakes, these mistakes are not due to any biases in his evaluation scheme “ because the computer has “no normative ideology of his own.”

• Dan Nosowitz, Yale Law Journal Ponders the Wisdom of IBM Robot Watson As a Judge, Popular Sci. (Sept. 9, 2011, 2:20 PM), http://www.popsci.com/technology/article/2011-09/yale-law-journal-ponders-wisdom-ibm-robot-watson-judge. 
• Ryan Calo, Artificial Clerks, Concurring Opinions (Sept. 7, 2011, 6:06 PM), http://www.concurringopinions.com/archives/2011/09/artificial-clerks.html.