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Showing papers in "Yale Law Journal in 2013"


Journal Article
TL;DR: In this article, the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases are investigated.
Abstract: This Article presents new empirical evidence concerning the effects of United States v. Booker, which loosened the formerly mandatory U.S. Sentencing Guidelines, on racial disparities in federal criminal cases. Two serious limitations pervade existing empirical literature on sentencing disparities. First, studies focus on sentencing in isolation, controlling for the “presumptive sentence” or similar measures that themselves result from discretionary charging, plea-bargaining, and fact-finding processes. Any disparities in these earlier processes are excluded from the resulting sentence-disparity estimates. Our research has shown that this exclusion matters: pre-sentencing decision-making can have substantial sentence-disparity consequences. Second, existing studies have used loose causal inference methods that fail to disentangle the effects of sentencing-law changes, such as Booker, from surrounding events and trends. In contrast, we use a dataset that traces cases from arrest to sentencing, allowing us to assess Booker’s effects on disparities in charging, plea-bargaining, and fact-finding, as well as sentencing. We disentangle background trends by using a rigorous regression discontinuity-style design. Contrary to other studies (and in particular, the dramatic recent claims of the U.S. Sentencing Commission), we find no evidence that racial disparity has increased since Booker, much less because of Booker. Unexplained racial disparity remains persistent, but does not appear to have increased following the expansion of judicial discretion. authors. Sonja B. Starr is a Professor at the University of Michigan Law School. M. Marit Rehavi is an Assistant Professor of Economics at the University of British Columbia and a Fellow of the Canadian Institute for Advanced Research. For helpful comments and conversations, we thank David Abrams, Daron Acemoglu, Alberto Alesina, Joe Altonji, Alan Auerbach, Nick Bagley, John Bronsteen, Ing-Haw Cheng, Kristina Daugirdas, John DiNardo, Avlana Eisenberg, Leonid Feller, Nicole Fortin, Nancy Gallini, Nancy Gertner, David Green, Sam Gross, Don Herzog, Jim Hines, Jill Horwitz, Thomas Lemieux, Justin McCrary, Julian Mortenson, Brendan Nyhan, J.J. Prescott, Eve Brensike Primus, Adam Pritchard, Jeff Smith, Sara Sun Beale, and participants at the Ninth Circuit Judicial Conference, the National Sentencing Policy Institute, the NBER Summer Institute, the annual meetings of the American Law and Economics Association and the American Society of Criminology, workshops at the University of Michigan, UBC, Duke, and Loyola-Chicago, and the CIFAR-IOG Workshop. Sharon Brett, Michael Chi, Michael Farrell, Ryan Gersovitz, Seth Kingery, Matthew Lee, Midas Panikkar, Art Robiso, Sabrina Speianu, and Adam Teitelbaum provided able research assistance. mandatory sentencing and racial disparity

91 citations


Journal Article
TL;DR: A growing body of evidence demonstrates that in some contexts and for identifiable reasons, people make choices that are not in their interest, even when the stakes are high as mentioned in this paper, and that behavioral market failures should be taken into consideration, even if the resulting actions are paternalistic.
Abstract: A growing body of evidence demonstrates that in some contexts and for identifiable reasons, people make choices that are not in their interest, even when the stakes are high. Policymakers in a number of nations, including the United States and the United Kingdom, have used the underlying evidence to inform regulatory initiatives and choice architecture in a number of domains. Both the resulting actions and the relevant findings have raised the question whether an understanding of human errors opens greater space for paternalism. Behavioral market failures, which occur as a result of such errors, are an important supplement to the standard account of market failures; if promoting welfare is the guide, then behavioral market failures should be taken into consideration, even if the resulting actions are paternalistic. A general principle of behaviorally informed regulation – its first law – is that the appropriate responses to behavioral market failures usually consist of nudges, generally in the form of disclosure, warnings, and default rules. While some people invoke autonomy as an objection to paternalism, the strongest objections are welfarist in character. Official action may fail to respect heterogeneity, may diminish learning and self-help, may be subject to pressures from self-interested private groups (the problem of “behavioral public choice”), and may reflect the same errors that ordinary people make. The welfarist arguments against paternalism have considerable force, but choice architecture, and sometimes a form of paternalism, are inevitable, and to that extent the welfarist objections cannot get off the ground. Where paternalism is optional, the objections, though reasonable, depend on empirical assumptions that may not hold in identifiable contexts. There are many opportunities for improving human welfare through improved choice architecture.

53 citations


Journal Article
TL;DR: The preponderance standard is defined as an absolute probability threshold of 0.5 as mentioned in this paper, and it has been argued that this absolute characterization of the burden of proof is wrong and instead of focusing on an absolute threshold, the Essay reconceptualizes the preponderation standard as a probability ratio and shows how doing so eliminates many of the classical problems associated with probabilistic theories of evidence.
Abstract: The preponderance standard is conven tionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio and shows how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating for abductive models (inference to the best explanation), the Essay bridges a contentious rift in current evidence scholarship.

34 citations


Journal Article
TL;DR: In this paper, the authors consider the new EU draft regulation on data privacy, especially its controversial provision establishing a right to be forgotten, and argue that the regulation implicitly creates the kind of propertized data regime that scholars proposed and debated a decade ago.
Abstract: This Comment considers the new EU draft regulation on data privacy - especially its controversial provision establishing a "right to be forgotten" - and argues that the regulation implicitly creates the kind of propertized data regime that scholars proposed and debated a decade ago. The Comment identifies the key conceptual features of a data property regime, explains how the draft regulation implicitly embodies these features, and compares this property-centric framing to the human-rights framing that tends to dominate discussions of data privacy.

27 citations


Journal Article
TL;DR: Slaughter as discussed by the authors argues against the idea of sexual autonomy and against the understanding of rape as unconsented-to-sex, arguing that a better understanding can be arrived at by comparing rape to slavery and torture, which are violations of a person's fundamental right to self-possession.
Abstract: Rape-by-deception" is almost universally rejected in American criminal law. But if rape is sex without the victim's consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all. Moreover, rejecting rape-by-deception fails to vindicate sexual autonomy, which is widely viewed today as rape law's central principle and, indeed, as a constitutional right. This Article argues against the idea of sexual autonomy and against the understanding of rape as unconsented-to sex. A better understanding, it is argued, can be arrived at by comparing rape to slavery and torture, which are violations of a person's fundamental right to self-possession. This view of rape can explain the rejection of rape-by-deception, which current thinking cannot, but it will also suggest that rape law's much-maligned force requirement may not be so malign after all. author. Robert R. Slaughter Professor of Law, Yale Law School. This Article benefited immeasurably from reactions and assistance given to me by a great many people, including

25 citations



Book ChapterDOI
TL;DR: In analytic jurisprudence, the conventional wisdom can sometimes be misleading and the central problems poorly cast as mentioned in this paper, and this is the state of affairs in analytic legal research, and progress can be made only if much of the traditional conventional wisdom is displaced and its central questions are reframed.
Abstract: Two marks of a mature field of inquiry are that its central problems are well-formulated and that its conventional wisdom is sound. Even in the most mature fields, however, the conventional wisdom can sometimes be misleading and the central problems poorly cast. Unfortunately, this is the state of affairs in analytic jurisprudence. Progress can be made only if much of the conventional wisdom is displaced and its central questions are reframed.

20 citations


Journal Article
TL;DR: Richardson and Atiba-G Goff as discussed by the authors discuss implicit bias in public defender triage and suggest ways to safeguard against the effects of these implicit forces in the rationing of defense entitlements.
Abstract: Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not. Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions. There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime. This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces. authors. L. Song Richardson is Professor, University of Iowa College of Law; Yale Law School, J.D.; Harvard College, A.B. Phillip Atiba Goff is Assistant Professor, University of California, Los Angeles, Department of Psychology; Stanford University, Ph.D.; Harvard College, A.B. We are grateful to all those who took the time to provide insightful comments, critiques, and suggestions on this Essay, including John Bronsteen, Jack Chin, Stella Elias, Paul Gowder, Cynthia Ho, Emily Hughes, Angela Onwuachi-Willig, Todd Pettys, Matt Sag, Lauren Sudeall Lucas, Deborah Tuerkheimer, and faculty who attended the workshop at Loyola University Chicago School of Law. Additionally, I thank the organizers of this conference, Nancy Leong, Justin Marceau, and members of The Yale Law Journal, particularly Doug Lieb and Ida Araya-Brumskine. Solomon Chouicha, Ernâni Magalhaes, and Taylor Whitten provided excellent research assistance. Finally, Professor Richardson must acknowledge Kurt Kieffer for countless conversations and insights. Any errors are our own. implicit racial bias in public defender triage

18 citations


Journal Article
TL;DR: Amicus briefs are an ancient legal instrument, originating in Roman law and appearing early in the common law tradition as mentioned in this paper, and they are now used frequently in common law jurisdictions around the world, particularly the United States.
Abstract: Amicus briefs are an ancient legal instrument, originating in Roman law and appearing early in the common law tradition.' They are now used frequently in common law jurisdictions around the world, particularly the United States.! In recent decades, they have become well established in international adjudicatory proceedings as well. These two developments -the use of amicus briefs in common law courts and in international proceedings have been well documented and much discussed.' However, a more recent trend seems to have evaded thorough treatment by commentatorss: amicus

15 citations


Journal Article

13 citations



Journal Article
TL;DR: In this article, Bamberger et al. propose to measure improved access to legal services by the extent to which self-empowered consumers are able to resolve everyday legal problems on their own or with limited assistance.
Abstract: Recent empirical studies tested whether litigants with access to lawyers fared better than litigants with access only to advice or limited assistance. Two of the three studies produced null findings the litigants with access to lawyers, the treatment group, fared no better than litigants without a lawyer. In this Essay, I propose that we celebrate these null findings. I do not doubt that expert lawyer assistance will be necessary in some, perhaps many, cases, but we should reduce procedural and other complexities wherever possible in order to facilitate self-help. We should measure improved access to legal services by the extent to which self-empowered consumers are able to resolve everyday legal problems on their own or with limited assistance. The flowering of \"lawyer-lite\" service innovations -services often preferred by consumerssuggests that the practical work of building consumer-centered and consumerdriven legal services delivery is not only possible, it is already underway. A U T H 0 R. Senior Lecturer on Law and Director, Bellow-Sacks Access to Civil Legal Services Project, Harvard Law School. A preliminary version of this Essay was presented at the 9th Legal Services Research Centre International Legal Services Research Conference, Magdalen College, Oxford University, September 12-14, 2012. This Essay is dedicated to Clinton Bamberger-a mentor, colleague, and friend who, as its first president, made substantive justice the goal of the Office of Economic Opportunity Legal.Services Program and throughout his career in public service and clinical education has championed the cause of access to justice regardless of means.

Journal Article
TL;DR: This article showed that even full enforcement of Gideon would not significantly improve the status of low-income people in American criminal justice, and in some ways has worsened their plight, since it has not improved the situation of most poor people, and provided a degree of legitimacy for the status quo.
Abstract: A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice.

Journal Article
TL;DR: This paper applied 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 and found 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.
Abstract: AB S TRACT. 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.

Journal Article
TL;DR: Ayres et al. as discussed by the authors conducted a survey experiment with over eight hundred heterosexual respondents to compare associational attitudes toward gay men who engage in different types of sexual practices and found that heterosexuals displayed heightened and statistically significant associational aversion toward versatile characters and, to a lesser degree, toward bottom characters, relative to respondents' willingness to associate with top characters.
Abstract: This Essay reports the results of a survey experiment that we conducted on over eight hundred heterosexual respondents to compare associational attitudes toward gay men who engage in different types of sexual practices. Specifically, we randomly assigned respondents to hear one of three descriptions of a gay character, which differed only with regard to the character’s penetrative preference: top (preferring to penetrate one’s partner), bottom (preferring to be penetrated by one’s partner), and versatile (having an equal preference). Overall, we find that heterosexuals displayed heightened and statistically significant associational aversion toward versatile characters and, to a lesser degree, toward bottom characters, relative to respondents’ willingness to associate with top characters. We elaborate why heterosexuals seem to display systematically less associational aversion toward those men whose penetrative preference is most consistent with gender stereotypes. Based on those results, we revisit the notion, adopted by many courts, that Price Waterhouse sex-stereotyping doctrine cannot apply to sexuality claims because it would turn sexual orientation into a protected class after Congress has opted not to do so. Our results suggest that gender-motivated homophobia is not uniformly targeted toward all gay men or uniformly present among all who discriminate on the basis of sexual orientation. We also further consider why respondents were most averse to versatility, drawing a potential distinction between “trait opposition” and “trait intermediacy” gender violations. Finally, we discuss the implications of our findings for the broader LGBT movement in law and society. authors. Ian Ayres is William K. Townsend Professor, Yale Law School. Richard Luedeman is a J.D. Candidate, Yale Law School, Class of 2014. For helpful comments, thanks to Tara Ayres, Matthew Nelson, Travis Pantin, Vicki Schultz, and seminar participants at the American Law and Economics annual conference. For excellent research assistance, thanks to Su Da. tops, bottoms, and versatiles

Journal Article
TL;DR: Amar et al. as mentioned in this paper argued that the notion of great powers is increasingly relevant after National Federation of Independent Business v. Sebelius, in which Chief Justice Roberts invoked a theory of great power to argue that the Necessary and Proper Clause could not justify the individual mandate.
Abstract: It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning. From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the District of Columbia and the territories—but not within states. Politicians and judges (including in two Supreme Court decisions) repeatedly denied the existence of such a power, and when the federal government did need to take land, it relied on state cooperation to do so. People during this period refused to infer a federal eminent domain power from Congress’s enumerated powers or the Necessary and Proper Clause because they viewed it as a “great power”—one that was too important to be left to implication. And they refused to infer it from the Takings Clause either, because the Clause was not intended to expand Congress's power beyond the District and territories. Eminent domain aside, the notion of great powers is increasingly relevant after National Federation of Independent Business v. Sebelius, in which Chief Justice Roberts invoked a theory of great powers to argue that the Necessary and Proper Clause could not justify the individual mandate. While his application of the theory is questionable, there are many other areas of law— such as commandeering, sovereign immunity, conscription, and the freedom of the press— where the great powers idea may rightfully have more bearing. author. Fellow, Constitutional Law Center, Stanford Law School. As usual, I owe thanks to many generous people for their comments, suggestions, and (sometimes) encouragement—in this case, to Akhil Amar, Samuel Bray, Emily Bremer, Donald Burke, Christian Burset, Jud Campbell, Josh Chafetz, Nathan Chapman, Robert Ellickson, Richard Epstein, Chad Flanders, Roger Ford, Heather Gerken, Brianne Gorod, Kyle Graham, Daniel Hemel, Adam Hirsch, Orin Kerr, Andrew Koppelman, John Langbein, Ed Larson, Gary Lawson, Robert Leider, Jaynie Lilley, Irina Manta, Michael McConnell, David McGowan, Judith Miller, Christina Mulligan, John Ohlendorf, Alex Potapov, Dave Pozen, Sai Prakash, Zach Price, Mike Rappaport, Richard Re, Larry Rosenthal, Stephen Sachs, Mark Shawhan, Reva Siegel, Ilya Somin, James Stern, Lior Strahilevitz, Seth Barrett Tillman, Derek Webb, Ilan Wurman, the many people who discussed the paper with me during job interviews, presentations and workshops, and the tireless staff at the Stanford Law Library. rethinking the federal eminent domain power 1739 article contents

Journal Article
TL;DR: Girdhar et al. as discussed by the authors pointed out that the promise of Gideon v. Wainwright remains unfulfilled and that the remedy lies in directly prohibiting discrimination and having fewer crimes, fewer arrests, and fewer prosecutions.
Abstract: Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system. This Essay is doubtful that better lawyers will significantly address that problem. When the Supreme Court decided Gideon, it had two main purposes. First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of innocence claims at trial, issuing important, pro-defense decisions in the areas of confrontation, jury factfinding, the right to present a defense, and elsewhere. The Court's second goal was to protect African Americans subject to the Jim Crow system of criminal justice. But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly, attempting to deal with racial discrimination without explicitly addressing it. This timidity was portentous. Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch. Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement, and in sentencing practices are essentially unchallengeable. Since Gideon, racial disproportionality in the prison population has increased. Not only might Gideon not have solved the problem, it may have exacerbated it. To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution, and sentencing for indigent white defendants that they cannot for clients of color. For these reasons, racial disparity likely cannot be remedied indirectly with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination and having fewer crimes, fewer arrests, and fewer prosecutions.

Journal Article
TL;DR: In this paper, Magill and Vermeule show that administrative law allocates power both horizontally and vertically within agencies and offer some hypotheses about the nature of the resulting effects, such as relative influence within agencies of various types of professionals, scientists, civil servants, politicians, and others.
Abstract: Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental authority among the three branches of the national government. These discussions, however, are incomplete because agencies are typically treated as unitary entities. In this Article, we examine a different question: how does administrative law allocate power within agencies? Although scholars have sometimes cracked open the black box of agencies to peer inside, their insights are localized and confined to particular contexts. We will generalize the idea, attempting to show that administrative law allocates power both horizontally and vertically within agencies and offering some hypotheses about the nature of the resulting effects. Horizontally, administrative law directly or indirectly determines the relative influence within agencies of various types of professionalslawyers, scientists, civil servants, politicians, and others. Vertically, administrative law directly or indirectly determines the relative influence within agencies of appointed agency heads, midlevel bureaucrats, and line personnel. This perspective illuminates several of the most puzzling judicially developed principles and doctrines of administrative law, including the doctrines surrounding Chenery, Chevron, Mead, andAccardi, as well as agency structures and procedures established by statute or executive order. The internal allocation perspective offered here both improves upon and critiques existing justifications for these developments and in that sense points the way toward a superior understanding of administrative law. AUTHORS. Elizabeth Magill is Vice Dean, Joseph Weintraub Bank of America Distinguished Professor of Law, University of Virginia School of Law. Adrian Vermeule is John H. Watson Professor of Law, Harvard Law School. Thanks to Jake Gersen, Michael Gilbert, Jill Hasday, Michael Herz, Kristin Hickman, Dick Merrill, Anne Joseph O'Connell, Dan Ortiz, Fred Schauer, Glen Robinson, Peter Strauss, and George Yin. We would also like to thank participants in the winter faculty retreat at Virginia Law School, as well as workshops at Chicago, Emory, Minnesota, and Wisconsin law schools. Thanks to Chris Brown, Janet Kim, Dan Sullivan, and Sergei Zaslavsky for first-rate research assistance.

Journal Article
TL;DR: The Jumpstart Our Business Startups (JOBS) Act as discussed by the authors allows small businesses to raise capital through crowd-funding, the acquisition of small amounts of money from a large number of investors.
Abstract: The 2008 recession sparked broad calls for tighter financial regulation.! Yet, at the same time, small businesses and entrepreneurs lobbied to loosen restrictions on the funding of start-ups.! Frustrated by stagnant credit markets and limited access to capital, advocates pushed for reforms that would ease restrictions on investment and thereby encourage economic growth and job creation.' The result-the 2012 Jumpstart Our Business Startups (JOBS) Act-allows small businesses to raise capital through \"crowdfunding,\" the acquisition of small amounts of money from a large number of investors, for

Journal Article
TL;DR: Hemmer et al. as mentioned in this paper found that judicial use of legislative history became routine quite suddenly, in about 1940, in the newly expanded New Deal administrative state, which was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges.
Abstract: A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The resulting debate between textualists and their opponents—a debate that has dominated statutory interpretation for a generation—cannot be truly understood unless we know how legislative history came to be such a common tool of interpretation to begin with. This question is not answered by the scholarly literature, which focuses on how reliance on legislative history became permissible as a matter of doctrine (in the Holy Trinity Church case in 1892), not on how it became normal, routine, and expected as a matter of judicial and lawyerly practice. The question of normalization is key, for legislative history has long been considered more difficult and costly to research than other interpretive sources. What kind of judge or lawyer would routinize the use of a source often considered intractable? Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation. author. Associate Professor of Law, Yale Law School. For valuable conversations about the project, I thank Bruce Ackerman, Ian Ayres, James Q. Barrett, Joseph Blocher, James Brudney, Aaron-Andrew Bruhl, Josh Chafetz, Robert Ellickson, Daniel Ernst, William Eskridge, Heather Gerken, Abbe Gluck, Bob Gordon, Oona Hathaway, Daniel Ho, Christine Jolls, Dan Kahan, John Langbein, Robert Lieberman, Yair Listokin, John Manning, David Marcus, Jerry Mashaw, Tracey Meares, Thomas Merrill, Robert Post, Edward Purcell, Cristina Rodriguez, Susan RoseAckerman, Ted Ruger, Reuel Schiller, Alan Schwartz, Peter Strauss, Adrian Vermeule, Jim Whitman, and John Witt; and audiences for talks at Duke, Stanford, Yale, and the annual meeting of the American Society for Legal History. The quantitative aspect of the project was leviathan and interpretive revolution 267 made possible by the work of several excellent and dedicated research assistants: Allyson Bennett, Glenn Bridgman, Halley Epstein, Miles Farmer, Andrew Hammond, Tian Huang, Steven Kochevar, Stephen Petrany, Emily Rock, Clare Ryan, and Karun Tilak. For aid in obtaining sources, I thank the staffs of the Yale Law Library (particularly Sarah Kraus), the Harvard Law Library, the Columbia University Center for Oral History, the Library of Congress, the Franklin D. Roosevelt Presidential Library, the Harry S. Truman Presidential Library, the Margaret I. King Library at the University of Kentucky, the William L. Clements Library at the University of Michigan, and the National Archives; and Kim Dixon, Karen Needles, Doug Norwood, and Susan Strange. Glenn Bridgman generously shared data with me from his own research project. Alex Hemmer and his fellow members of the Yale Law Journal performed valuable work in editing and publishing the piece. I am grateful to Yale Law School for financial support. All errors are my own. All data produced for this project is available online at the Yale Law Journal’s website (http://www.yalelawjournal.org). the yale law journal 123:266 2013 268 article contents

Journal Article
TL;DR: In this paper, Cohen argues that the Senate's failure to act on a presidential appointment within a reasonable period of time can and should be interpreted as providing tacit or implied advice and consent to the appointment.
Abstract: It is generally assumed that the Constitution requires the Senate to vote to confirm the President's nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal -executive branch position, the Senate's failure to act on the nomination within a reasonable period of time can and should be construed as providing the Senate's tacit or implied advice and consent to the appointment. On this understanding, although the Senate can always withhold its constitutionally required consent by voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to, vote on the nominee one way or the other. Although this proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues that this reading of the Appointments Clause would not contravene the constitutional text, structure, or history. The Essay further argues that, at least under some circumstances, reading the Constitution to construe Senate inaction as implied consent to an appointment would have desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action on presidential nominations. A U T H 0 R. Professor of Law, Harvard Law School. I am grateful to Glenn Cohen, Jake Gersen, Jack Goldsmith, Jim Greiner, Adriaan Lanni, Daryl Levinson, John Manning, Anne Joseph O'Connell, Ben Roin, Ben Sachs, Jed Shugerman, Holger Spamann, David Strauss, and Adrian Vermeule, as well as participants at the Columbia Law School Roundtable on Administrative Law, for helpful comments and conversations, and to Carly Anderson, Jessica Goldberg, and Anthony Mariano for superb research assistance.

Journal Article
TL;DR: Chiang et al. as discussed by the authors argued that patent claims are not often ambiguous, and linguistic ambiguity is not a major cause of patent law uncertainty, and pointed out that the erroneous diagnosis of linguistic ambiguity has led the literature off track, and what will get us back on track to solving the uncertainty problem.
Abstract: The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims. In this Article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the literature off track, and what will get us back on track to solving the uncertainty problem. authors. Tun-Jen Chiang is Assistant Professor of Law, George Mason University School of Law. Lawrence B. Solum is John Carroll Research Professor of Law, Georgetown University Law Center. The authors thank Will Baude, Eric Claeys, Kevin Emerson Collins, John Duffy, Richard Gruner, Timothy Holbrook, Peter Lee, Mark Lemley, Doug Lichtman, Oskar Liivak, Jonathan Masur, Lisa Larrimore Ouellette, Laura Pedraza-Farina, Arti Rai, and audience members at presentations at the IP Scholars Conference, the University of San Diego, the Henry G. Manne Faculty Forum, and PatCon 3 for comments and suggestions. the interpretation-construction distinction in patent law 531 article contents

Journal Article
TL;DR: The authors argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, innovative ways to reduce crime and recidivism and enhance public safety.
Abstract: As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same time, fiscal necessity and moral outrage have prompted a historic reexamination of outdated policies that have led to an overreliance on incarceration and inefficiencies in the administration of criminal justice. This. Essay argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, innovative ways to reduce crime and recidivism and enhance public safety. By integrating indigent defense reform into this emerging \"smart-oncrime\" reform movement, we not only make better criminal justice policy, we also reaffirm our fidelity to the constitutional values undergirding Gideon. AUTHOR. Professor of Law, George Washington University Law School. I would like to thank Melanca Clark, Andrea Dennis, Lisa Fairfax, Kristin Henning, Rene Hutchins, Michael Pinard, Kami Simmons, and Yolanda Vdzquez for their feedback and suggestions on this Essay. This Essay is dedicated to the memory of Mr. Francis Leroy Butler.

Journal Article
TL;DR: The authors proposes to unbundle the union, allowing employees to organize politically through the union form without also organizing economically for collective bargaining purposes, which would have the immediate effect of liberating political-organizational efforts from the constraints of collective bargaining.
Abstract: Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions’ ability to serve as a political-organizing vehicle for lowerand middle-income groups. This Essay proposes that labor law unbundle the union, allowing employees to organize politically through the union form without also organizing economically for collective bargaining purposes. Doing so would have the immediate effect of liberating political-organizational efforts from the constraints of collective bargaining, an outcome that could mitigate representational inequality. The Essay identifies the legal reforms that would be necessary to enable such unbundled “political unions” to succeed. It concludes by looking beyond the union context and suggesting a broader regime of reforms aimed at facilitating political organizing by those income groups for whom representational inequality is now a problem. author. Professor of Law, Harvard Law School. The author thanks David Barron, Cynthia Estlund, Catherine Fisk, Gerald Frug, Jack Goldsmith, Daryl Levinson, and Matthew Stephenson for helpful comments and discussion. The author is also grateful to the participants in the Harvard Law School Faculty Workshop. Nikolas Bowie, William Dreher, Anna Lvovsky, Joshua Segal, and Heather Whitney provided outstanding research assistance.

Journal Article
TL;DR: This paper argued that classic due process analysis, including the constitutional protections previously extended by the Supreme Court to lawful permanent residents, requires guaranteed counsel for lawful permanent resident, the group of noncitizens most likely to have the strongest legal entitlement to remain in and the deepest community ties to the United States.
Abstract: A B ST R AC T. In evaluating the legacy of Gideon v. Wainwright, it is critical to remember that the Supreme Court's decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants. This Essay studies the right to counsel in a particular category of civil cases -immigration removal cases, which implicate life and liberty interests similar in important respects to those at stake in criminal prosecutions. It contends that classic due process analysis, including the constitutional protections previously extended by the Supreme Court to lawful permanent residents, requires guaranteed counsel for lawful permanent residents, the group of noncitizens most likely to have the strongest legal entitlement to remain in and the deepest community ties to the United States. Temporary visitors and undocumented immigrants generally lack such a weighty legal interest and community ties. Modern developments in U.S. immigration law and enforcement, including the dramatic increase in removal proceedings instituted by the U.S. government over the last ten years, limits imposed by Congress on judicial review of agency removal decisions, and the racially disparate impacts of immigration enforcement, make guaranteed representation for lawful permanent residents more necessary now than ever.

Journal Article
TL;DR: In this paper, the conceptual and normative underpinnings of a principle of abuse of property right are discussed, where owners abuse their right when their decisions about a thing are designed just to produce harm.
Abstract: This Essay puts forward the conceptual and normative underpinnings of a principle of abuse of property right. Owners abuse their right, I argue, when their decisions about a thing are designed just to produce harm. This is so whether that harm is an end in itself (spite) or a means to achieving some ulterior and possibly even valuable end (extortion). Theorists have tried to explain those limits concerned with spite in terms of maximizing utility or enforcing virtue. But these theories posit significant external limits on owners’ freedom and still do not explain those limits concerned with extortion. I argue that ownership’s political foundations account for its internal limits. Ownership confers the authority to answer what I call the Basic Question—what constitutes a worthwhile use of a thing. This authority is required to overcome twin problems of standing and coordination in a state of nature. We all have an interest in coordinating our uses of things (to avoid waste and conflict), but each of us faces a moral duty to forbear from imposing his answer to the Basic Question on others. A system of private property overcomes this dilemma, but its political foundations also give rise to constraints of legitimacy. Owners are charged with making decisions about things, but this authority does not extend to using a resource to gratify spite or gain leverage for some further end. These are not answers to the Basic Question, but rather efforts to use the position of ownership just in order to dominate others. When owners exceed their authority in this way, they abuse their right. author. Associate Professor, Faculty of Law, Queen’s University. This paper has benefited greatly from conversations at Brooklyn Law School, University of Colorado Law School, and Cornell Law School; discussions with the faculties of law at McGill University, University of Toronto, and University of Western Ontario; and the editorial work and suggestions of The Yale Law Journal’s editorial board. I owe particular thanks to Greg Alexander, Peter Cane, Eric Claeys, Hanoch Dagan, David Dyzenhaus, Chris Essert, Bob Hockett, Amnon Lehavi, David McNamee, Eduardo Penalver, Arthur Ripstein, Lionel Smith, Stephen Smith, Nelson Tebbe, anonymous reviewers for The Yale Law Journal, and especially Malcolm Thorburn for close reading and comments on this and earlier drafts.

Journal Article
TL;DR: Carrington et al. as discussed by the authors pointed out that the most powerful role in the struggle to ensure adequate representation for the poor in criminal cases will be in its capacity to generate and direct the political will to produce institutional change, and that the critical question to ask is how law can help to move the political actors who control the power of the purse, the organization and administration of indigent defense services, and the shape of the substantive criminal law to allocate the resources and make the institutional changes that are necessary to fix what in many jurisdictions is a failing system.
Abstract: Although it is fitting to celebrate Gideon’s promise of representation for indigent criminal defendants at this landmark anniversary, it is important also to note that part of Gideon’s legacy should be our recognition of the limits of law in the fulfillment of that promise. Law’s most powerful role in the struggle to ensure adequate representation for the poor in criminal cases will be in its capacity to generate and direct the political will to produce institutional change. The critical question to ask is how law can help to move the political actors who control the power of the purse, the organization and administration of indigent defense services, and the shape of the substantive criminal law to allocate the resources and make the institutional changes that are necessary to fix what in many jurisdictions is a failing system of indigent defense. Although there is no silver bullet, there are a variety of complementary strategies that can and should be pursued. These strategies include working for legislative change to limit the scope of the substantive criminal law, promoting the success of structural reform litigation in both federal and state courts, enlisting the support of state bar overseers and associations as well as the ABA, enlisting the private defense bar and NGOs that specialize in criminal defense to set higher norms of practice, urging greater federal government involvement in promoting indigent defense reform in the states, promoting social entrepreneurship to generate creative solutions to the indigent defense crisis, and harnessing both the great power of the media to educate and motivate the public and the more targeted power of the legal academy to educate and motivate the next generation of lawyers to address this pressing problem. author. Henry J. Friendly Professor of Law, Harvard Law School. I thank Tucker Carrington and Jonathan Rapping for helpful conversations and Andrew Chan, Daniel Kanter, and Conor Mulroe for helpful research assistance. gideon at fifty: a problem of political will 2695 Levon Brooks was exonerated by the Innocence Project after being convicted of the 1990 rape and murder of a child on the basis of bogus expert “bite mark” evidence. At Brooks’s trial in Noxubee County, Mississippi, the prosecutor—the allegorically named Forrest Allgood—gave a short but tremendously powerful opening statement. Allgood began by describing how three-year-old Courtney Smith had been put into bed along with her two sisters at their grandmother’s house. He continued: And some time that night, ladies and gentlemen, while they slept, a silent evil cloaked in the shape of a man came into the house. But the man who did this, ladies and gentlemen, left his mark. The State of Mississippi is simply going to prove to you that that man, and the man who left those teeth marks, is Levon Brooks. What happened next, however, was even more powerful than this hardhitting opening. What happened next was—nothing. That’s right—nothing. Levon Brooks’s defense attorneys in this capital trial did not stand. They did not say anything at all. The moment no doubt passed quickly; defense counsel’s decision not to respond takes up just over a line of the trial transcript. But the effect was devastating. The message to the jury could not have been more clear: Brooks’ lawyers said nothing because they had nothing to say. It was the functional equivalent of endorsing Allgood’s opening statement. If a criminal trial is an exercise in granting a defendant his day in court, Levon Brooks had just watched his come and go in a matter of seconds. Eventually, Brooks’s lawyers gave a brief and faltering opening statement after the close of the entire prosecution case and put on a half-hearted defense case. Their failure to meaningfully contest their innocent client’s guilt of a heinous crime cost him sixteen years in prison before he was exonerated. Most crimes are not as awful as the rape and murder of a young child. And of course, most criminal defendants are not completely innocent like Brooks. But dismal failures of representation like that of Brooks’s lawyers are all too common. There is the Washington state lawyer who failed to inform his 1. Transcript of Trial at 461-62, State v. Brooks (Miss. Cir. Ct. 1992) (No. 5937) (emphasis added), quoted in Tucker Carrington, Mississippi Innocence: The Convictions and Exonerations of Levon Brooks and Kennedy Brewer and the Failure of the American Promise 73-74 (2012) (unpublished manuscript) (on file with author). 2. Carrington, supra note 1, at 74. the yale law journal 122:2694 2013 2696 twelve-year-old client or his client’s parents that a plea of guilty to child molestation could never be expunged from his record and would lead to his registration as a sex offender, possibly for the rest of his life. And there are the New Orleans public defenders who were unable, in the wake of Hurricane Katrina, to produce a list of the 6,500 to 8,000 prisoners whom they were supposed to be representing. And let us not forget the Texas lawyers who slept through portions of their clients’ capital trials—who, Stephen Bright quips, give a new meaning to the phrase “Dream Team.” The recitation of dramatic failures like these, however, can mislead us about the nature of the challenge of ensuring adequate indigent defense services. The failures of individual lawyers, however appalling, are often the product of structural forces that pose systemic barriers to the delivery of adequate criminal defense services to the poor, even by demonstrably capable and dedicated lawyers. Structural constraints prevent many well-intentioned lawyers from meeting regularly with their clients, conducting adequate investigations or legal research, trying (as opposed to pleading) plausible cases, and providing meaningful adversarial testing of the evidence on the rare occasions when they do go to trial. For example, in some Mississippi counties, defendants may wait up to a year to speak to a court-appointed lawyer about their case, and many lawyers meet their clients for the first time on the day of trial. In Miami-Dade County, Florida, the average felony caseload per lawyer has reached five hundred in recent years due to budget cuts. And these conditions are not confined to the South: in New York, indigent defense services are supplied through a patchwork of inadequately funded countybased systems, without any statewide attorney training, supervision, or monitoring. 3. KAREN HOUPPERT, CHASING GIDEON: THE ELUSIVE QUEST FOR POOR PEOPLE’S JUSTICE 1720, 46 (2013).

Journal Article
TL;DR: The notion of mens rea of accomplice liability has been studied for more than a century as mentioned in this paper, and three major approaches have been proposed to date: the assumption that what matters is the helper's mental state toward the perpetrator's commission of an offensive act, and the notion that a helper is an accomplice if he (a) intends to see to it that the principal form or keep his own plan to commit an offense and does not intend or expect that plan's frustration.
Abstract: Accomplice liability makes someone guilty of a crime he never committed, so long as he helped or influenced the perpetrator and did so with the required mens rea. Just what that mens rea should be has been contested for more than a century. Here I consider three major approaches and find them all wanting. I propose rejecting their common (but rarely questioned) assumption that what matters is the helper’s mental state toward the perpetrator’s commission of an offense. I suggest considering instead his stance toward the perpetrator’s intention to act: a helper is an accomplice, on this view, if he (a) intends to see to it that the principal form or keep his own plan to commit an offense and (b) does not intend or expect that plan’s frustration. This standard better justifies imposing accomplice liability. It more precisely picks out those helpers culpable for the perpetrator’s very offense. And this parity of guilt is the best—perhaps the only good—basis for imposing the same liability on accomplice and principal, in a system so retribution-driven as to choose to do so at all. author. Yale Law School, J.D. expected 2016; Princeton University, Ph.D. expected 2016; University of Oxford, B.Phil. 2010; Princeton University, A.B. 2008. This Note was born of a stimulating seminar with Facundo Alonso; matured with exceptional help from Gideon Yaffe, John James Snidow, John Lewis, and Ben Eidelson; and owes its weaknesses to the author. the mens rea of accomplice liability

Journal Article
TL;DR: The political question doctrine poses a paradox. as mentioned in this paper argued that a claim under a statute entitling American passport holders born in Jerusalem to designate their birthplace as "Israel" did not constitute a political question.
Abstract: 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 commentators alike.3 One scholar famously questioned whether political questions even exist.4 The Supreme Court recently offered a partial answer. In Zivotofsky ex rel. Zivotofsky v. Clinton, the Court held—in contrast to two lower courts—that a claim under a statute entitling American passport holders born in Jerusalem to designate their birthplace as “Israel” did not constitute a political question.5

Journal Article
TL;DR: The case for and against vesting agencies with litigation gatekeeper authority across a range of regulatory contexts and elaborates some functional design principles that policymakers can use to weigh competing models or determine whether agency gatekeeping makes sense at all as mentioned in this paper.
Abstract: A central challenge in the modern regulatory state is rationalizing and coordinating multiple, overlapping, and interdependent public and private enforcement mechanisms. To that end, recent years have seen mounting calls to vest administrative agencies with litigation “gatekeeper” authority across a range of regulatory areas, from environmental protection and civil rights to antitrust and securities. Agencies, it is said, can use their expertise and synoptic perspective to weigh costs and benefits and determine whether private rights of action should lie at all. Alternatively, agencies might be given the power to evaluate lawsuits on a case-by-case basis, blocking bad cases, aiding good ones, and otherwise husbanding available private enforcement capacity in ways that conserve scarce public resources for other uses. Yet despite the proliferation of such calls, there exists strikingly little theory or evidence on how agency gatekeeper authority either should or would work in practice. This Article aims to fill that gap by offering a systematic account of this often-invoked but under-theorized role for agencies. Drawing on theories of agency behavior and empirical analysis of the gatekeeper regimes currently in existence, this Article sketches the case for and against vesting agencies with litigation gatekeeper authority across a range of regulatory contexts and elaborates some functional design principles that policymakers can use to weigh competing models or determine whether agency gatekeeping makes sense at all. There are other pay-offs as well. Anatomizing agency gatekeeping allows us to reimagine the agency role in some of our most consequential regulatory regimes, among them a system of job discrimination regulation that seems especially ripe for revision following the Supreme Court’s decision in Wal-Mart v. Dukes. More broadly, this Article makes a novel contribution to the otherwise oceanic literature on “litigation reforms” and reorients scholarly debate around optimal regulatory design and the contours and purposes of the administrative state itself by exploring the increasingly blurred boundary between administration and litigation.