118 Yale L.J. 1660 (2009).
From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the
118 Yale L.J. 1712 (2009).
Given the rise of globalization and the need for international governance of problems of the commons, the delegation of binding domestic authority to international agents is likely to be an issue of growing importance. This Essay considers the extent to which
118 Yale L.J. 1762 (2009).
What is the force of international law as a matter of
118 Yale L.J. 1844 (2009).
This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the expressive dimension of wrongful discrimination. Even practices marked by innocent motives and benign effects can give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. Race-based differentiation in voting ballots, dating websites, and donor catalogs helps us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.
117 Yale L.J. 1854 (2008).
This Note demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman’s “honor,” and thus her credibility, with her sexual virtue. The idea that a woman’s chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion that an unchaste woman might be a lying witness, most jurisdictions ultimately rejected unchastity impeachment as illogical or irrelevant. In the process, the gendered notion of honor may have influenced judicial preference for reputation evidence over evidence regarding specific acts as a form of impeachment. The unchaste/incredible equation remained viable in the law of rape as courts continued to insist that the victim’s sexual history was relevant to credibility, consent, or both. Although legal reforms have narrowed the use of sexual history evidence in rape trials, the concept that a woman’s sexual virtue signifies her credibility survives today in moral turpitude law and in the treatment of prostitution as a crime that bears on credibility.
117 Yale L.J. 1900 (2008).
Being fat is one of the most devastating social stigmas today. In seeking a legal remedy, commentators and advocates appeal to existing models of employment discrimination: disability, race, sex, and more recently, appearance. Fat people do face discrimination along these fronts. Weight discrimination, however, is a distinct form of discrimination. Weight discrimination blames fat people for their excess weight. Commentators fail to address the central problem when they ignore this unique psychological mechanism. More broadly, commentators miss the boat by focusing entirely on weight discrimination in employment. To really aid fat people, commentators and advocates should begin with an even more harmful area of weight discrimination: health care and health insurance.
118 Yale L.J. 1900 (2009).
Recent surveys and events indicate that judicial corruption could be a significant problem in the
118 Yale L.J. 1945 (2009).
118 Yale L.J. 1584 (2009).
Since the late nineteenth century, orthodox doctrine under the Constitution’s Full Faith and Credit Clause has presumed that the interpretation of that Clause set forth in Justice Joseph Story’s 1833 Commentaries on the Constitution of the United States was essentially sound. This Article argues, however, that Justice Story’s view had been endorsed by almost no one before him and actually contradicted the “classic rule” of faith and credit, which Justice Story had articulated in 1813. The Supreme Court, moreover, consistently reiterated the “classic rule” despite Justice Story’s change of mind, continuing to do so even after his death. By the 1880s, perhaps due to a lack of critical attention, the “classic rule” of faith and credit had quietly fallen into desuetude, obscured by respect for Justice Story’s name and the impression of authority associated with his works. This contradiction at the root of modern orthodox Full Faith and Credit doctrine has never been confronted until now. This Article assesses the historicity and soundness of both the “classic rule” and Justice Story’s interpretation, which is now the orthodox view, concluding that the “classic rule” is far more defensible textually, grammatically, historically, and politically. This Article also examines the process by which, and the purpose for which, discretion over the “Effect” of sister-state “public Acts, Records, and judicial Proceedings” was conferred upon Congress by the second sentence of the Full Faith and Credit Clause. Finally, this Article argues that the complete and unqualified nature of the discretion thus vested regarding sister-state effects is an important element of the Constitution’s system of separation of powers and facilitates pragmatic and responsible resolution, from time to time, of any issues in the conflict of laws that might give rise to significant concern or controversy on a national scale.