Jamal Greene
Is Korematsu Good Law?
This Essay argues that the Supreme Court’s claim to overrule Korematsu in Hawaii is both empty and grotesque. It argues that a decision to overrule a prior case is not meaningful unless it specifies which propositions it is disavowing, and Hawaii’s emptiness means to conceal its disturbing affinity with Korematsu.
Beyond Lawrence: Metaprivacy and Punishment
115 Yale L.J. 1862 (2006) Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty–and communitarian–William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation...
Divorcing Marriage from Procreation
114 Yale L.J. 1989 (2005) Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach...
Judging Partisan Gerrymanders Under the Elections Clause
114 Yale L.J. 1021 (2005) The Supreme Court has consistently decried the lack of standards for adjudicating partisan gerrymandering claims, most recently in last Term's Vieth v. Jubelirer. But it has ignored the potential for developing standards under the Elections Clause, which it held in Cook v. Gralike to bar attempts by state legislatures to influence federal election outcomes. This...