Yale Law Journal

The Dignity of the South

ryan.thoreson@yale.edu (Joseph Fishkin) — Sat, 08 Jun 2013 23:41:25 GMT

Section 5 as Simulacrum

ryan.thoreson@yale.edu (Justin Levitt) — Sat, 08 Jun 2013 03:32:07 GMT

Mapping a Post-Shelby County Contingency Strategy

ryan.thoreson@yale.edu (Guy-Uriel E. Charles and Luis Fuentes-Rohwer) — Fri, 07 Jun 2013 05:00:00 GMT

A Cure Worse than the Disease?

ryan.thoreson@yale.edu (Ellen D. Katz) — Tue, 04 Jun 2013 12:09:57 GMT

Prison Law Writing Contest Results

joanna.zhang@yale.edu (Elizabeth A. Reid, Ernie Drain, Aaron Lowers) — Sat, 18 May 2013 21:16:42 GMT

122 Yale L.J. 2082 (2013).

Interpretation Step Zero: A Limit on Methodology as “Law”

joanna.zhang@yale.edu (Andrew Tutt) — Sat, 18 May 2013 21:15:38 GMT

122 Yale L.J. 2055 (2013).

The JOBS Act and Middle-Income Investors: Why It Doesn’t Go Far Enough

joanna.zhang@yale.edu (James J. Williamson) — Sat, 18 May 2013 21:13:59 GMT

122 Yale L.J. 2069 (2013).

How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change

joanna.zhang@yale.edu (Daniel Taylor Young) — Sat, 18 May 2013 21:12:51 GMT

122 Yale L.J. 1990 (2013).

Bruce Ackerman argues that major shifts in constitutional law can occur outside the Article V amendment process when there are unusually high levels of sustained popular attention to questions of constitutional significance. This Note develops a new empirical strategy to evaluate this claim using the debate over ratification of the Fourteenth Amendment as its test case. The Note applies a statistical process known as unsupervised topic modeling to a dataset containing over 19,000 pages of text from

U.S.

newspapers published between 1866 and 1884. This innovative methodological technique illuminates the structure of constitutional discourse during this period. The Note finds empirical support for the notion that the salience of constitutional issues was high throughout the ratification debate and then gradually declined as the country returned to a period of normal politics. These findings buttress Ackerman’s cyclic theory of constitutional change at one of its more vulnerable points.

Should the Ministerial Exception Apply to Functions, Not Persons?

joanna.zhang@yale.edu (Jed Glickstein) — Sat, 18 May 2013 21:11:24 GMT

122 Yale L.J. 1964 (2013).

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its ministers. Despite Hosanna-Tabor’s significance, however, the so-called ministerial exception remains in flux. For one thing, it is still unclear who will be deemed a “minister” for purposes of the doctrine. The answer to that foundational question may be more complicated than it appears. Thus far, courts and commentators have assumed that ministerial status is binary; a given employee either is a minister (in which case the First Amendment completely bars her suit) or she is not (in which case her suit proceeds like any other). That way of thinking may make sense for the easy cases, but it fits uneasily with the wide range of positions that have been labeled ministerial by the lower courts. This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception—one that applies to ministerial functions, not ministerial persons—better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires.

The Continuum of Excludability and the Limits of Patents

joanna.zhang@yale.edu (Amy Kapczynski & Talha Syed) — Sat, 18 May 2013 21:10:02 GMT

122 Yale L.J. 1900 (2013).

In IP scholarship, patents are commonly understood as more efficient than other approaches to innovation policy. Their primary ostensible advantage is allocative: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensibly guiding investment toward inventions with the most social value. Existing accounts recognize that, in practice, signals of social value that patents facilitate may be attenuated because of, for example, transaction costs and limits on the scope and length of patent rights. We show here, however, a different problem with the conventional allocative account. The appropriability mechanism patents rely on, namely excludability, operates in asymmetrical ways for different kinds of information goods. While scholars have noted that patent systems fail to create goods whose value is difficult to appropriate in consumer markets, this fact has not been fully appreciated in the literature, nor have its implications for the standard justification for patents. Through detailed examples in the health context we show that some kinds of information goods will be much more difficult to exclude than others. Importantly, there is no reason to expect that the ease of exclusion will be correlated with social value. The analytic point that emerges is generalizable: patents themselves can have distortive effects, stemming from structural features of exclusion rights. Unlike the problem of attenuation, the problem of asymmetric nonexcludability cannot be resolved by increasing patent scope or length. Because excludability is variable along a continuum, property rights in information, even if formally perfected, and even assuming away conventional transaction costs, will create asymmetrical demand for different kinds of information goods. This argument provides an important new justification for alternatives to patents such as government funding and gives us new insights about how to allocate such funding. It also reinforces the need for a comparative institutional approach to innovation policy, and for incorporating into our debates currently unrecognized implications that patents may have for values such as privacy and free speech.