Comment
Comment
Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge
In Bearden v. Georgia, the Supreme Court held a defendant cannot be imprisoned for failure to pay a fine they could not afford. Yet, many defendants remain incarcerated because they cannot pay for Electronic Monitoring. This Comment seeks to remedy that disparity by applying Bearden to Electronic Mo…
Comment
Fruit of the Racist Tree: A Super-Exclusionary Rule for Racist Policing Under California’s Racial Justice Act
What would it take for a state to eliminate racial bias in policing? This Comment explores one intervention set forth in California’s new Racial Justice Act: a guarantee of charging or sentencing relief for anyone subjected to police racism during arrest or investigation.
Comment
Unsafe and Unsound: HIV Policy in the U.S. Military
The military’s approach to HIV was developed in the 1980s, at the height of the epidemic. Today, however, medical advances have transformed HIV from a deadly disease into a manageable chronic illness—but the military’s policies remain stuck in the past. This Comment makes the case for reform.
Comment
Prison Malapportionment: Forging a New Path for State Courts
This Comment proposes the first comprehensive path forward for challenging prison malapportionment in state courts, a remedy largely unappreciated in the literature. These state-law claims make use of statutory provisions defining residency, state constitutional equal-population provisions, and dist…
Comment
Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination
This Comment problematizes the historical basis for the Supreme Court’s decision in Rice v. Cayetano. In deeming voting qualifications for the Office of Hawaiian Affairs racially discriminatory, the Rice Court evaded the more complex question whether Native Hawaiians constitute a political community…
Comment
The Power of Police Officers to Give “Lawful Orders”
Forty-four states, the District of Columbia, and the federal government criminalize disobeying the “lawful orders” of police officers. But it is uncertain which orders are lawful. This Comment proposes a model statute that would clarify and limit police authority while informing civilians about the …
Comment
The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional
Several courts have compelled religious arbitration of employment disputes even when the arbitration agreement explicitly states that holy text would trump federal law. This Comment articulates a “reverse-entanglement” principle that explains why courts violate the Establishment Clause when they enf…
Comment
Building Political Will for Accountable, Equitable Trade Policy Making
Trade policy is at an inflection point. Because trade deals are often negotiated in secret and without congressional input, the public lacks the information necessary to hold the executive branch accountable. This Comment therefore proposes that Congress establish a nonpartisan, expert body to produ…
Comment
The Treaty Problem: Understanding the Framers’ Approach to International Legal Commitments
Bond v. United States failed to answer important questions about the scope and limits of the treaty power. This Comment highlights an underexplored factor driving the Framers’ formulation of that power—the threat of war inherent in all treaty violations—and its implications for Bond’s lingering ques…
Comment
The Intercircuit Exclusionary Rule
Federal courts have long resolved intercircuit suppression disputes using a choice-of-law framework and applying the precedent of the circuit where the search occurred. This Comment shows that this approach is fundamentally mistaken. Choice-of-law problems only arise when different laws, not differe…
Comment
Exceptional Judgments: Revising the Terrorism Exception to the Foreign Sovereign Immunities Act
Rogue states are sometimes charged with massive default judgments for state-sponsored terrorism. Frequently, those judgements apportion responsibility to states that were not involved in terrorism and frustrate diplomatic progress. This Comment proposes a novel administrative solution to make claims…
Comment
Unlocking the Potential of Art Investment Vehicles
Fine art is increasingly not only purchased for aesthetic pleasure, but also as a financial asset, expanding the art investment market. However, the structure of art investment means that access to the market is restricted. This Comment offers solutions to democratize and leverage the potential of t…
Comment
Certification as Sabotage: Lessons from Guantánamo Bay
Through an analysis of two recent case studies, this Comment demonstrates how certifications—requirements that government officials personally attest to some proposition—can be effective checks on the executive branch. Using observations from political science and sociology, it also describes the co…
Comment
The Tarnished Golden Rule: The Corrosive Effect of Federal Prevailing-Party Standards on State Reciprocal-Fee Statutes
Drawing on the authors’ clinical experience, this Comment describes an asymmetry in how courts award attorney’s fees that makes it more difficult for consumer-defendants to recover the costs of litigation. The Comment articulates a standard of “prevailing party” that would ensure equitable and effic…
Comment
Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana
The spread of synthetic marijuana is a public health crisis. Municipalities struggle with how to regulate drugs that can change as quickly as officials can design enforcement regimes. This Comment proposes leveraging creative administrative design and existing consumer protection torts to stem the t…
Comment
Uncovering the Codifier’s Canon: How Codification Informs Interpretation
The orthodox view is that statutory captions and titles should not inform interpretation. However, a more nuanced method distinguishes between Congress’s codification choices and those that the Office of the Law Revision Council makes. While the latter are rightly disregarded, judges should use the …
Comment
When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union's Operation To Combat Smuggling in Libya’s Territorial Sea
Over the past three years, the number of human tragedies on the Mediterranean Sea has reached an unprecedented level.1 The now-iconic image of a German rescue worker cradling a drowned migrant baby in his arms in the sea between Libya and Italy remains a disturbing reminder of the…
Comment
Williams-Yulee and the Anomaly of Campaign Finance Law
In 2015, the U.S. Supreme Court held in Williams-Yulee v. Florida Bar that states may prohibit candidates for judicial office from personally soliciting campaign donations in order to protect the appearance of judicial integrity.2 For only the third time in its history, the Court upheld a l…
Comment
The “M” in MLP: A Proposal for Expanding the Roles of Clinicians in Medical-Legal Partnerships
Medical-legal partnerships (MLPs) are a promising innovation in the delivery of legal services. Usually located in health care facilities, MLPs connect medical patients with lawyers in order to “detect, address and prevent health-harming social conditions” that medicine alone …
Comment
The Bostic Question
Introduction Federal criminal procedure regularly struggles with a tension between fairness and finality. The Constitution provides defendants with special privileges and protections designed to prevent injustice,1 but systemic concerns about efficiency, comity, and finality make i…
Comment
In Wakefield’s Wake: Rescuing New York's Enterprise Corruption Jurisprudence
introduction For many years, New York State’s enterprise corruption law was grounded in a legal error. Recently, the New York Court of Appeals has sought to correct some of the doctrinal consequences of this mistake. Unfortunately, the court’s solution has left the law unmoored fro…
Comment
From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions
introduction On June 20, 1991, two police officers brought an African American man named Anthony Gray into custody for questioning related to the unsolved rape and murder of a woman in Calvert County, Maryland.1 During the interrogation, the detectives lied to Mr. Gray about the evid…
Comment
Jurisdiction and Applicable Law Under UNCLOS
Introduction In the recent case of Chagos Marine Protected Area,1 a five-member tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS)2 held in its hands the fate of the Chagos Archipelago. One of the questions before the tribunal was whether it had…
Comment
Reimagining Finality in Parallel Patent Proceedings
Parties may challenge the validity of issued patents in federal courts and before the Patent and Trademark Office (PTO) and its administrative tribunal, the Patent Trial and Appeal Board (PTAB). Recently, the Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdict…
Comment
Ideological Imbalance and the Peremptory Challenge
Legal scholars, by and large, revile peremptory challenges. Allowing parties to unilaterally strike prospective jurors without explanation has been attacked as undemocratic,1 as prone to manipulation,2 as a potential First Amendment violation,3 and—most often of all—as racist.4 Judge…
Comment
The State’s Right to Property Under International Law
introduction On December 3, 2013, agents of the Australian Secret Intelligence Service seized privileged documents belonging to Timor-Leste on the premises of one of Timor-Leste’s legal advisers in Australia.1 The documents concerned an ongoing arbitration between the two states over…
Comment
Toward an Efficient Licensing and Rate-Setting Regime: Reconstructing § 114(i) of the Copyright Act
Why is Sony/ATV Music Publishing, the world’s largest music publisher,1 unhappy about its massive hit single “Happy”?2 According to CEO and Chairman Martin Bandier, the answer comes down to the math behind digital streaming revenues. In the first three months of 2014, the Internet ra…
Comment
In Defense of “Free Houses”
Eight years after the start of America’s housing crisis, state courts are increasingly confronting an unanticipated consequence: what happens when a bank brings a foreclosure suit and loses? Well-established legal principles seem to provide a clear answer: the homeowner keeps her…
Comment
Tort Concepts in Traffic Crimes
Car crashes killed 32,719 Americans in 2013, and injured over 2.3 million more.1 Traffic is likely the most pervasive form of violence most Americans encounter.2 Accordingly, the law devotes substantial attention to preventing that bloodshed, allocating losses, and punishing …
Comment
Unpacking Wolf Packs
Wolf-pack activism has surged in the past three years. A wolf pack is composed of a group of activist investors working in unison to gain control of corporate boards.1 These activist investors collectively buy stock in a public company and then leverage their aggregate stake to influence …
Comment
Jurisdictional Rules and Final Agency Action
When Congress creates a statutory cause of action, some required elements of that cause of action may be considered “jurisdictional,” while others may not. The difference between jurisdictional and nonjurisdictional requirements is subtle but important. A jurisdictional element limit…
Comment
Law Enforcement and Data Privacy: A Forward-Looking Approach
The Edward Snowden revelations illustrated the ramifications of a domestic and international legal infrastructure that failed to keep up with technological advancements. The USA PATRIOT Act and other national security laws were ill-equipped to handle developments in bulk data collection. T…
Comment
Interbranch Removal and the Court of Federal Claims: “Agencies in Drag”
Last summer, the D.C. Circuit upheld a statute that gives the President the power to remove judges of the United States Tax Court.1 Kathleen and Peter Kuretski, a taxpayer couple, had challenged the constitutionality of that provision, alleging that it granted an executive official the imper…
Comment
Federal Sentencing Error as Loss of Chance
In July 2010, a federal district court sentenced DeAngelo Whiteside to seventeen years and six months in prison for a drug offense.1 Under Fourth Circuit precedent, Mr. Whiteside’s two prior state drug convictions triggered application of the Federal Sentencing G…
Comment
Stare Decisis and Secret Law: On Precedent and Publication in the Foreign Intelligence Surveillance Court
In the wake of the Snowden disclosures, both Congress and the public have taken a harder look at the work of the courts created by the Foreign Intelligence Surveillance Act (FISA), focusing in particular on the “secret body of law”1 they have created in the process of authorizing, modify…
Comment
Methodological Stare Decisis and Intersystemic Statutory Interpretation in the Choice-of-Law Context
When a state court determines that it must apply the statute of a sister state, what statutory interpretation methodology should the court use to interpret that statute? Is the forum court free to apply its own rules of statutory construction, or should it apply those of the sister state? …
Comment
The Psychology of Punishment and the Puzzle of Why Tortfeasor Death Defeats Liability for Punitive Damages
Nearly every jurisdiction that allows for the recovery of noncompensatory punitive damages conceives of them as serving two main purposes: (1) punishing outrageous conduct and (2) deterring its future occurrence.1 The deterrent function of punitive damages operates both to deter the defenda…
Comment
The Case for Regulating Fully Autonomous Weapons
On April 22, 2013, organizations across the world banded together to launch the Campaign to Stop Killer Robots. Advocates called for a ban on fully autonomous weapons (FAWs), robotic systems that can “choose and fire on targets on their own, without any human intervention.”1 Th…
Comment
From Child Protection to Children’s Rights: Rethinking Homosexual Propaganda Bans in Human Rights Law
On June 29, 2013, Russian President Vladimir Putin signed into law a bill prohibiting “propaganda of non-traditional sexual relations among minors,” including supportive statements about gay, lesbian, bisexual, and transgender persons.1 The legislation, which included fines of up to on…
Comment
Jagged Edges
Modern adverse possession doctrine appears to be in regular need of re-justification. There are now alternative methods of addressing innocent improvements or title defects, as well as increasingly robust and reliable recording systems. To the layperson, adverse possession appears to be lega…
Comment
Essential Data
Certain firms in the Internet economy may exclude competitors by refusing to deal data. Such conduct may impede innovation. But antitrust law lacks a coherent response to monopoly of data. This Comment proposes a policy inspired by duties to share. Over a century ago, courts devised an “es…
Comment
Parens Patriae, the Class Action Fairness Act, and the Path Forward: The Implications of Mississippi ex rel. Hood v. AU Optronics Corp.
Few issues in the law of federal courts generate more excitement than the relative strengths of state and federal courts and the power of the states to sue on behalf of their injured citizens. Since Congress passed the Class Action Fairness Act of 2005 (CAFA),1…
Comment
Contract After Concepcion: Some Lessons from the State Courts
In AT&T Mobility LLC v. Concepcion, the United States Supreme Court held that the Federal Arbitration Act (FAA) preempts the use of unconscionability doctrine to invalidate arbitration clauses that foreclose classwide remedies.1 The Court found that requiring the …
Comment
SEC "Monetary Penalties Speak Very Loudly," But What Do They Say? A Critical Analysis of the SEC's New Enforcement Approach
The U.S. Securities and Exchange Commission (SEC) has not been shy about promoting its use of monetary punishments under new Chair Mary Jo White.1 In September 2013, White asserted that “we must make aggressive use of our existing penalty authority, recognizing …
Comment
Beating Blackwater: Using Domestic Legislation to Enforce the International Code of Conduct for Private Military Companies
In the past decade, state use of private military companies (PMCs) has greatly expanded, sparked in large part by U.S. reliance on contractors in the wars in Afghanistan and Iraq. But several of the most horrific human rights abuses of the wars exposed the absence of a regulatory re…
Comment
Innocent Abroad? Morrison, Vilar, and the Extraterritorial Application of the Exchange Act
During the fall of 1919, two American sailors bound for Rio de Janeiro hatched a plan to defraud the United States government.1 When their scheme—which involved an unscrupulous Standard Oil agent, a Rio-based shipbuilder, and a large quantity of fuel—came to the attention of American…
Comment
The EU General Data Protection Regulation: Toward a Property Regime for Protecting Data Privacy
The European Union recently released draft legislation that has the potential to transform EU data privacy law. The draft General Data Protection Regulation (“draft Regulation”) proposes a range of new individual rights designed to protect consumers whose personal information is collected, p…
Comment
In Need of Correction: How the Army Board for Correction of Military Records Is Failing Veterans with PTSD
After completing two honorable tours of duty, fighting in four separate campaigns in Vietnam, and earning an Air Medal with Valor Device for heroism, John Doe1 was given an Undesirable Discharge after he began threatening and striking other soldiers in 1973.2 He was later diagnosed with Post-T…
Comment
Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders
Draconian restrictions on the activities and privacy of convicted sex offenders are a new, and troublesome, trend. In 1994 and 2006, following a national dialogue about crimes against children sparked by several high-profile incidents, Congress passed two laws requiring states to register and …
Comment
A First Amendment Approach to Generic Drug Manufacturer Tort Liability
In 2011, the landmark case PLIVA, Inc. v. Mensing1 foreclosed many claims against generic drug manufacturers for harms caused by their products. In particular, Mensingheld that because the Food, Drug, and Cosmetic Act (FDCA) requires generic manufacturers to use labels that are “the same as…
Comment
There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton
The political question doctrine poses a paradox. Courts increasingly dismiss claims as political questions, especially in sensitive fields like foreign affairs and national security.1 Yet the principles underlying the doctrine remain “murky and unsettled,”2 an “enigma” to courts and co…
Comment
The JOBS Act and Middle-Income Investors: Why It Doesn’t Go Far Enough
122 Yale L.J. 2069 (2013).
Comment
Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights
122 Yale L.J. 1089 (2013).
Comment
Copyright Protection in an Opt-Out World: Implied License Doctrine and News Aggregators
122 Yale L.J. 837 (2012).
Comment
Recoupment Under Dodd-Frank: Punishing Financial Executives and Perpetuating “Too Big To Fail”
122 Yale L.J. 507 (2012).
Comment
Intersystemic Statutory Interpretation in Transnational Litigation
122 Yale L.J. 303 (2012).
Comment
Corporate Purposes in a Free Enterprise System: A Comment on eBay v. Newmark
121 Yale L.J. 2405 (2012).
Comment
One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement
121 Yale L.J. 2013 (2012).
Comment
Can Section 1983 Help To Prevent the Execution of Mentally Retarded Prisoners?
121 Yale L.J. 1571.
Comment
The Future of the Voting Rights Act: Lessons from the History of School (Re-)Segregation
121 Yale L.J. 999 (2012).
Comment
The Solicitor General of the United States: Tenth Justice or Zealous Advocate?
121 Yale L.J. 725 (2011).
Comment
State Pension Deficits, the Recession, and a Modern View of the Contracts Clause
120 Yale L.J. 2199 (2011).
Comment
State Pension Deficits, the Recession, and a Modern View of the Contracts Clause
120 Yale L.J. 2199 (2011).
Comment
To "Make Full Disclosure and Play No Tricks": A Proposal To Enhance Fee Transparency After Jones v. Harris Associates
120 Yale L.J. 1579 (2011).
Comment
The Right Solution to the Wrong Problem: The Status of Controlling Shareholders After In re John Q. Hammons Hotels Inc.
120 Yale L.J. 1251 (2011).
Comment
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
Comment
Indefinite Detention of Immigrant Information: Federal and State Overreaching in the Interpretation of 8 C.F.R. § 236.6
120 Yale L.J. 667 (2010).
Comment
Privacy, Personhood, and the Courts: FOIA Exemption 7(C) in Context
120 Yale L.J. 379 (2010).
Comment
Implementing the Hague Convention on Choice of Court Agreements in the United States: An Opportunity to Clarify Recognition and Enforcement Practice
120 Yale L.J. 397 (2010).
Comment
Interpreting by the Book: Legislative Drafting Manuals and Statutory Interpretation
120 Yale L.J. 185 (2010).
Comment
Huppert v. City of Pittsburg: The Contested Status of Police Officers’ Subpoenaed Testimony After Garcetti v. Ceballos
119 Yale L.J. 2143 (2010).
Comment
Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions
119 Yale L.J. 1703 (2010).
Comment
Tax Cases Make Bad Work Product Law: The Discoverability of Litigation Risk Assessments After United States v. Textron
119 Yale L.J. 1715 (2010).
Comment
Addressing the Green Patent Global Deadlock Through Bayh-Dole Reform
119 Yale L.J. 1727 (2010).
Comment
Regulating in the Shadow of the U.C.C.: How Courts Should Interpret State Consumer Protection Laws
119 Yale L.J. 1329 (2010).
Comment
Discovery Audits: Model Rule 3.8(d) and the Prosecutor's Duty To Disclose
119 Yale L.J. 1339 (2010).
Comment
The Significance of Domicile in Lyman Trumbull's Conception of Citizenship
119 Yale L.J. 1351 (2010).
Comment
Constructing America: Mythmaking in U.S. Immigration Courts
119 Yale L.J. 1012 (2010).
This Note argues that immigration courts have served and continue to serve as important sites for the perpetuation of national identity myths. By focusing on a subset of cases called “cancellation of removal,” I examine the functional criteria by which immigrants are gra…
Comment
INA Section 242(g): Immigration Agents, Immunity, and Damages Suits
119 Yale L.J. 625 (2009).
Comment
Taxing Unreasonable Compensation: § 162(a)(1) and Managerial Power
119 Yale L.J. 637 (2009).
Comment
Fantasy Liability: Publicity Law, the First Amendment, and Fantasy Sports
119 Yale L.J. 131 (2009).
Comment
Applying the Absolute Priority Rule to Nonprofit Enterprises in Bankruptcy
118 Yale L.J. 1231 (2009).
Comment
Making Up for Lost Time: A Bright Line Rule for Equitable Tolling in Immigration Cases
118 Yale L.J. 1245 (2009).
Comment
The Federalism Challenges of Impact Litigation by State and Local Government Actors
118 Yale L.J. 1557 (2009).
Comment
Neither a Customer Nor a Subscriber Be: Regulating the Release of User Information on the World Wide Web
118 Yale L.J. 1945 (2009).
Comment
Olmstead v. L.C. and the Voluntary Cessation Doctrine: Toward a More Holistic Analysis of the "Effectively Working Plan"
118 Yale L.J. 1013 (2009).
Comment
The Sentence Imposed Versus the Statutory Maximum: Repairing the Armed Career Criminal Act
118 Yale L.J. 369 (2008).
Comment
Buying an Audience: Justifying the Regulation of Campaign Expenditures that Buy Access to Voters
118 Yale L.J. 379 (2008).
Comment
Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability
118 Yale L.J. 177 (2008).
Comment
The Supreme Court Appointments Process and the Real Divide Between Liberals and Conservatives
117 Yale L.J. 1947 (2008).
Comment
Balancing Burdens: Clarifying the Discovery Standard in Arbitration Proceedings
117 Yale L.J. 1559 (2008).
Comment
Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers' Power
117 Yale L.J. 1549 (2008).
Comment
Defining the Protected Class: Who Qualifies for Protection Under the Pregnancy Discrimination Act?
117 Yale L.J. 1215 (2008).
Comment
A Blueprint for Applying the Rules Enabling Act's Supersession Clause
117 Yale L.J. 1225 (2008).
Comment
Ledbetter in Congress: The Limits of a Narrow Legislative Override
117 Yale L.J. 971 (2008).
Comment
Seeking More Scienter: The Effect of False Claims Act Interpretations
117 Yale L.J. 981 (2008).
Comment
United States v. Ankeny: Remedying the Fourth Amendment's Reasonable Manner Requirement
117 Yale L.J. 723 (2008).
Comment
Piercing China's Corporate Veil: Open Questions from the New Company Law
117 Yale L.J. 329 (2007).
Comment
On Target? The Israeli Supreme Court and the Expansion of Targeted Killings
116 Yale L.J. 1873 (2007).
Comment
Sheltering Deprivations: FEMA, Section 408 Housing, and Procedural Redesign
116 Yale L.J. 1883 (2007).
Comment
Article III En Banc: The Judicial Conference as an Advisory Intercircuit Court of Appeals
116 Yale L.J. 1625 (2007)
Comment
Six Puerto Rican Congressmen Go to Washington
116 Yale L.J. 1389 (2007)
Read José R. Coleman Tió's Pocket Part Essay adapted from this Comment.
Read John C. Fortier's Response, The Constitution Is Clear: Only States Vote in Congress.
Read Christina Duffy Burnett's Response, Two Puerto Rican Senators Stay Home.
Comment
Combatant Status Review Tribunals: Flawed Answers to the Wrong Question
116 Yale L.J. 667 (2006)
Comment
BlackBerry Users Unite! Expanding the Consumer Class Action To Include a Class Defense
116 Yale L.J. 217 (2006)
Comment
Should the Criminal Defendant Be Assigned a Seat in Court?
115 Yale L.J. 2203 (2006)
In this Comment I question the U.S. Attorney's claim that every criminal defendant should be required to sit at the table farthest from the jury. Courtroom seating is properly within a trial judge's discretion, and there are good reasons for seating some criminal defendants …
Comment
United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review
115 Yale L.J. 2183 (2006)
This Comment argues that a proper understanding of Booker's reasonableness review validates the appellate court's rejection of these reduced-ratio sentences in Pho, and should do so despite the fact that the sentences issued by Judge Torres were eminently "reasonable" in any…
Comment
Suspending Employers' Immigration-Related Duties During Labor Disputes: A Statutory Proposal
115 Yale L.J. 2193 (2006)
Comment
Unaccountable at the Founding: The Originalist Case for Anonymous Juries
115 Yale L.J. 1823 (2006)
This Comment argues that the courts overlook important Founding-era evidence on juror accountability. It concludes that the Public Trial Clause does not require juror identification. Part I describes the Public Trial Clause accountability argument made against the anonymous …
Comment
Validation Procedures and the Burden of Ballot Access Regulations
115 Yale L.J. 1833 (2006)
Despite the prominent role they play in election contests, validation mechanisms have largely escaped judicial and scholarly scrutiny. This Comment urges courts to assess the constitutionality of a state's ballot access scheme in light of how the state evaluates and certifie…
Comment
Student Derivative Lawsuits
115 Yale L.J. 1471 (2006)
In this Comment, I argue that states could help avert financial scandals like the one at American University by adopting rules less protective of university boards. Specifically, I propose that states subject all nonprofit university boards to the same fiduciary standards as…
Comment
The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism
115 Yale L.J. 1157 (2006)
More than a decade after the world did nothing to halt genocide in Rwanda, and in the shadow of ongoing atrocities in Darfur, Sudan, the international community recently made a new commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes agai…
Comment
A Quantitative Look at the Two-Suspect Scenario
115 Yale L.J. 1167 (2006)
Two men are placed at the scene of a homicide. Each has an unsavory past and either could be the murderer--or an innocent man. It all depends on whether a witness should be believed, how the evidence is pieced together, and how the prosecutor decides to proceed. Should he tr…
Comment
Kilburn v. Libya: Cause for Alarm?
115 Yale L.J. 1177 (2006)
In Kilburn v. Libya, the D.C. Circuit held that a plaintiff may turn to United States courts to seek recovery from a foreign nation for injuries suffered at the hands of a terrorist organization with which the foreign nation was affiliated--if actions taken by that foreign n…
Comment
Limiting the Federal Forum: The Dangers of an Expansive Interpretation of the Tax Injunction Act
115 Yale L.J. 727 (2005)
In Henderson v. Stalder, the Court of Appeals for the Fifth Circuit held that the Tax Injunction Act (TIA) of 1937 prevents the federal courts from exercising jurisdiction over any case in which a victory for the plaintiff might reduce state revenues. In reaching this resul…
Comment
The Secret Ambition of Racial Profiling
115 Yale L.J. 491 (2005)
In 2000, a year after the shooting of Amadou Diallo, a select committee of the New York City Council held a series of meetings in the Bronx to address police-community relations. The committee intended the meetings "to open a dialogue between police officers and city resident…
Comment
The Unfinished Business of Bankruptcy Reform: A Proposal To Improve the Treatment of Support Creditors
115 Yale L.J. 247 (2005)
Amid the controversy surrounding the recently enacted Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (2005 Act), few commentators have focused on the Act's provisions designed to enhance the protection of "support creditors"--a class of creditors consisting …
Comment
Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury"
115 Yale L.J. 237 (2005)
Even when the facts are humanly grievous, plaintiffs do not often win their in vitro fertilization (IVF) tort suits. In Utah, an IVF clinic fertilized a woman's eggs with the wrong man's sperm; she ultimately bore a stranger's rather than her husband's children. A New York …
Comment
Grand Theft Oreo: The Constitutionality of Advergame Regulation
115 Yale L.J. 227 (2005)
In recent years, companies have increasingly embraced alternative forms of marketing that deviate from the conventional advertising model. One new type of marketing that has received particular attention is "advergames." The term--a combination of "advertisement" and "video g…
Comment
Affirmative Action's Affirmative Actions: A Reply to Sander
114 Yale L.J. 2011 (2005)
I am grateful to Professor Sander for his interest in my work and his willingness to pursue a valid answer to the critical question of the effects of law school tier on bar performance. Sander's readiness to respond to my Comment demonstrates the importance of the questions…
Comment
Why Affirmative Action Does Not Cause Black Students To Fail the Bar
114 Yale L.J. 1997 (2005)
In a widely discussed empirical study, Richard Sander concludes that affirmative action at U.S. law schools causes blacks to fail the bar. If correct, this conclusion would turn the jurisprudence, policy, and law of affirmative action on its head. But the article misapplie…
Comment
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-fashio…
Comment
Freeing Newsgathering from the Reporter's Privilege
114 Yale L.J. 1827 (2005)
A number of recent high-profile cases have forced courts to reexamine whether reporters must respond to subpoenas seeking disclosure of confidential sources or whether they are protected from doing so by the doctrine of reporter's privilege. While these confidential-source …
Comment
Can Attorneys and Clients Conspire?
114 Yale L.J. 1819 (2005)
A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acti…
Comment
The Inadequacy of Fiscal Constraints as a Substitute for Proportionality Review
114 Yale L.J. 1177 (2005)
The Constitution does not prohibit "everything that is intensely undesirable." In particular, Justice Scalia argues, the Eighth Amendment does not prohibit disproportionately long prison sentences. Yet Scalia seems to offer some consolation to those who worry about the "in…
Comment
American Prosecutors as Democracy Promoters: Prosecuting Corrupt Foreign Officials in U.S. Courts
114 Yale L.J. 1185 (2005)
On June 3, 2004, a jury in a San Francisco federal court convicted former Ukrainian Prime Minister Pavel Lazarenko of twenty-nine counts of money laundering, wire fraud, interstate transportation of stolen property (ITSP), and conspiracy. The jury found that Lazarenko stole…
Comment
Overlooking a Sixth Amendment Framework
114 Yale L.J. 905 (2005)
As the Supreme Court further plunges the world of criminal sentencing into turmoil, state courts in particular are scrutinizing their own statutory sentencing schemes and judicial practices. Ever since the Court's holding in Apprendi v. New Jersey (recently reformulated and…
Comment
Punishing Masculinity in Gay Asylum Claims
114 Yale L.J. 913 (2005)
Does a homosexual asylum seeker need to prove he is "gay enough" to win protection from a U.S. court? Increasingly, and troublingly, the answer is yes. In In re Soto Vega, the Board of Immigration Appeals (BIA) denied a gay man's application for asylum because he appeared to…
Comment
Solving the Due Process Problem with Military Commissions
114 Yale L.J. 921 (2005)
The terrorist attacks of September 11, 2001 prompted the creation of two new adjudicatory bodies within the Department of Defense. First, military commissions were established by presidential order just two months after the attacks in order to prosecute members of al Qaeda fo…
Comment
International Tribunals and Forum Non Conveniens Analysis
114 Yale L.J. 443 (2004)
Many international civil disputes are resolved via state-driven litigation before multinational tribunals. Indeed, under traditional principles of international law, individuals may not appear before such tribunals at all. Instead, states must advance claims on behalf of thei…
Comment
Lottery Winnings as Capital Gains
114 Yale L.J. 195 (2004)
Pity J. Michael Maginnis. In 1991, he had the misfortune to win $9 million in the lottery. Five years later, he sold his remaining winnings--fifteen annual payments of $450,000 each--to Woodbridge Financial Corporation for a $3.95 million lump sum. He reported this payment o…
Comment
Non-Self-Executing Treaties and the Suspension Clause After St. Cyr
113 Yale L.J. 2007 (2004)
Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003).
In INS v. St. Cyr, the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform …
Comment
Is the Right To Organize Unconstitutional?
113 Yale L.J. 1999 (2004)
Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).
Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act…
Comment
Dual Sovereignty and the Sixth Amendment Right to Counsel
113 Yale L.J. 1991 (2004)
United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002).
In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charg…
Comment
Security with Transparency: Judicial Review in "Special Interest" Immigration Proceedings
113 Yale L.J. 1333 (2004)
Much of the debate regarding post-September 11 counterterrorism initiatives has centered on the potentially damaging effects of these policies on constitutionally protected rights. Many observers have weighed the balance that the government has struck between national securi…
Comment
Appellate Review and the Exclusionary Rule
113 Yale L.J. 1143 (2004)
Today, application of the exclusionary rule to evidence obtained in reliance on a potentially invalid search warrant is governed by the Supreme Court's holding in United States v. Leon. Leon instructs courts to admit evidence obtained on the basis of a potentially invalid …
Comment
The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action
113 Yale L.J. 939 (2004)
Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held …
Comment
Turning the Endangered Species Act Inside Out?
113 Yale L.J. 947 (2004)
Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used…
Comment
A Missed Opportunity: Nonprofit Antitrust Liability in Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc.
113 Yale L.J. 533 (2003)
The antitrust laws are meant to govern and promote competition. But how antitrust law should treat nonprofit organizations, whose objectives lie outside the commercial sphere but whose actions nevertheless have economic consequences, is not settled. The Fourth Circuit recent…
Comment
Renting Space on the Shoulders of Giants: Madey and the Future of the Experimental Use Doctrine
113 Yale L.J. 261 (2003)
The experimental use doctrine in patent law protects alleged infringers who use patented inventions solely for experimental purposes, such as testing whether a device functions as claimed or re-creating a process to observe its effects from a scientific perspective. The judi…
Comment
A Better Interpretation of "Special Needs" Doctrine After Edmond and Ferguson
112 Yale L.J. 2591 (2003)
Comment
Korematsu Continued . . .
112 Yale L.J. 1911 (2003)
How far have America and her courts come since World War II? Even in the wake of September 11th, it seemed they would not again endorse racial intolerance on the level of wholesale internments. This Comment argues, however, that Dasrath v. Continental Airlines, Inc. indicat…
Comment
A "Flip" Look at Predatory Lending: Will the Fed's Revised Regulation Z End Abusive Refinancing Practices?
112 Yale L.J. 1919 (2003)
The regulation of predatory loans can be a tedious business. The whole topic redounds of such yawn-inducing terms as "single-premium credit insurance" and "negative amortization." Yet the human costs of predatory lending are no less real for all the financial jargon that mas…
Comment
Chevron Deference and Treaty Interpretation
112 Yale L.J. 1927 (2003)
One need not accept Hobbes's vision of international relations as a perpetual "condition of warre" to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign…
Comment
The Tenth Amendment and Local Government
This Comment posits that the Constitution may well carve out a limited space for the people to express themselves and exercise certain powers through local self-government—without interference by the state. More specifically, the Tenth Amendment endows the people with the right to choose and define …
Comment
Risk Magnified: Standing Under the Statist Lens
112 Yale L.J. 1633 (2003)
Why some harms count before the courts and others do not is a matter of acute expressive and practical impact. Judicial refusal to see claimed injuries is an effective denial of legal personhood and a bar from powerful judicial machinery. The issue of "erratic, even bizarre…
Comment
Romanticizing Guilt
112 Yale L.J. 1625 (2003)
George P. Fletcher's Romantics at War begins by describing an ironic blindness. The threat of terrorism has forced Americans to consider questions of war and guilt with a new sense of immediacy and relevance, to disorienting effect. We remain unable to reconcile our instinct…
Comment
The Limits on University Control of Graduate Student Speech
112 Yale L.J. 1295 (2003)
In the spring of 1999, Christopher Brown, a master's degree candidate in material sciences at the University of California at Santa Barbara (UCSB), submitted his thesis for approval. The copy reviewed by Brown's thesis committee contained no acknowledgments page. After the c…
Comment
A Small Problem of Precedent: 18 U.S.C. 4001(a) and the Detention of U.S. Citizen "Enemy Combatants"
112 Yale L.J. 961 (2003)
In 1971, Congress repealed the Emergency Detention Act, part of the Internal Security Act of 1950, by writing into 18 U.S.C. § 4001(a) the provision that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Ena…
Comment
Responsible Direction and the Supervisory Status of Registered Nurses
112 Yale L.J. 665 (2002)
The National Labor Relations Board (NLRB or the Board) has, for many years, wrestled with the problem of whether various classes of professional employees who regularly exercise discretion and judgment in their jobs should be classified as "supervisors" and therefore denied t…
Comment
Queer Brinksmanship: Citizenship and the Solomon Wars
112 Yale L.J. 673 (2002)
In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters from accessing campuses and directory information about students. It was the …
Comment
Section 1983, Statutes, and Sovereign Immunity
112 Yale L.J. 353 (2002)
This Comment argues that a significant, but unnoticed, way around state sovereign immunity has become available under current law. Although sovereign immunity now generally prohibits actions against states for violations of the Americans with Disabilities Act (ADA), a plaint…
Comment
"Exceedingly Vexed and Difficult": Games and the First Amendment
112 Yale L.J. 361 (2002)
The mayor of Tinley Park, Illinois, describes his village as a "dynamic, progressive community" of more than 45,000 people. He claims it is a "great place to live, work and play." Until September 22, 2000, however, the village was a "great" place to play only for those who …
Comment
Reorganization as a Substitute for Reform: The Abolition of the INS
112 Yale L.J. 145 (2002)
September 11th and the events that followed highlighted the shortcomings of our nation's immigration policies and their enforcement. Gaffes, such as the issuance of student visas to two of the hijackers on the six-month anniversary of 9/11, reinforced public perceptions that …
Comment
Simple Fairness: Ending Discrimination in Health Insurance Coverage of Addiction Treatment
111 Yale L.J. 2321 (2002)
Comment
The Kabuki Mask of Bush v. Gore
111 Yale L.J. 223 (2001)
Is law merely Kabuki politics? Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore, as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics p…