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Showing papers in "Yale Law Journal in 2019"


Journal Article
TL;DR: This paper argued that the source of racial inequality in risk assessment lies neither in the input data nor in a particular algorithm, nor in algorithmic methodology, and that criminal system actors should respond to risk with support rather than restraint whenever possible.
Abstract: Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether. This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology. The deep problem is the nature of prediction itself. All prediction looks to the past to make guesses about future events. In a racially stratified world, any method of prediction will project the inequalities of the past into the future. This is as true of the subjective prediction that has long pervaded criminal justice as of the algorithmic tools now replacing it. What algorithmic risk assessment has done is reveal the inequality inherent in all prediction, forcing us to confront a much larger problem than the challenges of a new technology. Algorithms shed new light on an old problem. Ultimately, the Article contends, redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk. The Article argues that criminal law and policy should, first, more clearly delineate the risks that matter, and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion—in which case they cannot justify state coercion. To the extent that we can reliably assess risk, on the other hand, criminal system actors should strive to respond to risk with support rather than restraint whenever possible. Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that targets the risky for support.

34 citations


Journal Article
TL;DR: In this article, a conceptual framework for analyzing combinations of IP and non-IP policy mechanisms and present a new vocabulary to characterize those combinations, and identify reasons why different combinations may be optimal in specific circumstances.
Abstract: When lawyers and scholars speak of “intellectual property,” they are generally referring to a combination of two distinct elements: an innovation incentive that promises a market-based reward to producers of knowledge goods, and an allocation mechanism that makes access to knowledge goods conditional upon payment of a proprietary price. Distinguishing these two elements clarifies ongoing debates about intellectual property and opens up new possibilities for innovation policy. Once intellectual property is disaggregated into its core components, each element can be combined synergistically with non-IP innovation incentives such as prizes, tax preferences, and direct spending on grants and government research, or with non-IP allocation mechanisms that promote broader access to knowledge goods. In this Article, we build a novel conceptual framework for analyzing combinations of IP and non-IP policy mechanisms and present a new vocabulary to characterize those combinations. Matching involves the pairing of an IP incentive with a non-IP allocation mechanism—or, vice versa, the pairing of a non-IP incentive with IP as an allocation strategy. Mixing entails the use of IP and non-IP tools on the same side of the incentive/allocation divide: i.e., the use of both IP and non-IP innovation incentives, or of IP and non-IP allocation mechanisms. Layering refers to the use of different policies at different jurisdictional levels, such as using non-IP innovation incentives and allocation mechanisms at the domestic level within an international legal system oriented around IP. After setting forth this framework, we identify reasons why different combinations of IP and non-IP tools may be optimal in specific circumstances. Our project is not merely theoretical: we argue that “pluralism”—the combination of IP and non-IP policies—provides a more descriptively accurate account of the innovation policy landscape than those that dominate the existing literature. Governments routinely, though often unwittingly, incorporate strategies of matching, mixing, and layering into their innovation policies. Even in the pharmaceutical industry—a sector sometimes described as the poster child for the pure IP patent system—the United States and other countries rely on complex combinations of IP and non-IP elements at the domestic level, all layered within an international IP system that apportions the costs of knowledge production across countries. Dissecting and reassembling the elements of this knowledge-production system reveals a richer menu of possibilities for IP reform, with potential applications to property law more broadly.

11 citations


Journal Article
TL;DR: The Genetic Information Nondiscrimination Act (GINA) offers a blueprint for preventing employers from breaching employee privacy as discussed by the authors, but it has faced significant criticism since its enactment in 2008: commentators have dismissed the law as ill-conceived, unnecessary, and ineffective.
Abstract: Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. We argue that the Genetic Information Nondiscrimination Act (GINA) offers a blueprint for preventing employers from breaching employee privacy. GINA has faced significant criticism since its enactment in 2008: commentators have dismissed the law as ill-conceived, unnecessary, and ineffective. While we concede that GINA may have failed to alleviate anxieties about medical genetic testing, we assert that it has unappreciated value as an employee-privacy statute. In the era of big data, protections for employee privacy are more pressing than protections against genetic discrimination. Instead of failed legislation, GINA could represent the future of employment law.

9 citations


Journal Article
TL;DR: This paper found that participants feel significantly less free to refuse the same request than did Forecasters contemplating the same situation hypothetically, and that the reason people comply with police, not informational, is social not informational.
Abstract: Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of voluntariness are likely to be impaired by a systematic bias in social perception. Fact finders are likely to underappreciate the degree to which suspects feel pressure to comply with police officers’ requests to perform searches. In two preregistered laboratory studies, we approached a total of 209 participants (“Experi- encers”) with a highly intrusive request: to unlock their password-protected smartphones and hand them over to an experimenter to search through while they waited in another room. A sepa- rate 194 participants (“Forecasters”) were brought into the lab and asked whether a reasonable person would agree to the same request if hypothetically approached by the same researcher. Both groups then reported how free they felt, or would feel, to refuse the request. Study 1 found that whereas most Forecasters believed a reasonable person would refuse the experimenter’s request, most Experiencers — 100 out of 103 people — promptly unlocked their phones and handed them over. Moreover, Experiencers reported feeling significantly less free to refuse than did Forecasters contemplating the same situation hypothetically. Study 2 tested an intervention modeled after a commonly proposed reform of consent searches, in which the experimenter explicitly advises participants that they have the right to with- hold consent. We found that this advisory did not significantly reduce compliance rates or make Experiencers feel more free to say no. At the same time, the gap between Experiencers and Fore- casters remained significant. These findings suggest that decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indi- cates that a key justification for suspicionless consent searches — that they are voluntary — relies on an assessment that is subject to bias. The results thus provide support to critics who would like to see consent searches banned or curtailed, as they have been in several states. The results also suggest that a popular reform proposal — requiring police to advise citizens of their right to refuse consent — may have little effect. This corroborates previous observational stud- ies, which find negligible effects of Miranda warnings on confession rates among interrogees, and little change in rates of consent once police start notifying motorists of their right to refuse vehicle searches. We suggest that these warnings are ineffective because they fail to address the psychology of compliance. The reason people comply with police, we contend, is social, not informational. The social demands of police-citizen interactions persist even when people are informed of their rights. It is time to abandon the myth that notifying people of their rights makes them feel empowered to exercise those rights.

7 citations


Journal Article
TL;DR: The legal validity and effect of recent administrative actions concerning civil rights and social inclusion have been examined in this article, where the authors argue that guidance can provide a privileged reason for an agency to act, but cannot categorically mandate or prohibit any course of public or private conduct.
Abstract: This Article examines the legal validity and effect of recent administrative actions concerning civil rights and social inclusion. Agencies under the Obama Administration issued “guidance” concerning sexual assault and harassment on college campuses, transgender rights, the use of arrest and conviction records in employment decisions, and deferral of deportation proceedings against undocumented immigrants. These actions have either been set aside by circuit courts or rescinded under the Trump Administration, in part on the grounds that they were issued without notice-and-comment rulemaking. Nonetheless, two district courts have blocked the Trump Administration’s rescission of the deferred action program because the government failed to take into account the “serious reliance interests” the program had generated. I explore these controversies over guidance on social inclusion in order to address some of the most difficult and long-disputed questions of administrative law: what is the appropriate scope of the “guidance exception” to notice-and-comment rulemaking, and what kinds of legal effects, if any, can such guidance generate? Drawing on the philosophy of law to interpret the case law, I argue that guidance can provide a privileged reason for an agency to act, but cannot categorically mandate or prohibit any course of public or private conduct. I show how such non-binding actions can nonetheless generate legally cognizable interests when individuals and institutions rely on the guidance to make plans and investments, or to see their status or the harms they suffer recognized. These reliance interests need to be taken into account if the policy is to be rescinded. My argument has concrete consequences for the staying power of the policies federal agencies put in place during the Obama Administration. More broadly, it sheds light on problems of internal administrative procedure and judicial review of administrative action, as well as fundamental issues in jurisprudence concerning “the force and effect of law.”

6 citations


Journal Article
TL;DR: In this paper, the authors introduce political economy constraints into a standard microeconomic model of corporate liability, and show how this Too Big to Jail (TBTJ) problem reduces prosecutors' ability to deter corporate crime by simply fining a defendant corporation without the accompanying prosecution of culpable individuals and mandatory structural reforms.
Abstract: Some corporations have become so large or so systemically important that when they violate the law, the government cannot credibly threaten “efficient” criminal sanctions. By introducing political economy constraints into a standard microeconomic model of corporate liability, this Note shows how this Too Big to Jail (TBTJ) problem reduces prosecutors’ ability to deter corporate crime by simply fining a defendant corporation without the accompanying prosecution of culpable individuals and mandatory structural reforms. This Note further illustrates how the risk of corporate criminal liability alone cannot incentivize a TBTJ firm to invest in internal controls or cooperate with government investigations. To deter criminality by TBTJ firms, prosecutorial strategy should credibly threaten culpable managers with monetary and nonmonetary penalties, and not unduly rely on corporate defendants’ cooperation. The Note also advances a structural explanation for the dearth of individual prosecutions relative to negotiated criminal settlements with TBTJ companies: prosecutors currently rely on an intrafirm apparatus for investigation that may produce information necessary for corporate settlements but will not reliably produce evidence to charge culpable individuals. In response, this Note proposes enlisting the courts as a bulwark against these structural incentives for prosecutors to agree to large corporate settlements without insisting on comprehensive investigation of underlying individual culpability. Thus, I present a legislative reform that authorizes judicial review of deferred prosecution agreements to ensure prosecutors have collected sufficient evidence prior to finalizing corporate settlements.

4 citations


Journal Article
TL;DR: The early Fair Labor Standards Act (FLSA) as mentioned in this paper established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis.
Abstract: There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American — in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law. By telling the story of FLSA’s industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes — one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups’ participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly.

4 citations


Journal Article
TL;DR: The authors proposes a new approach to the dilemma of localism in an era of polarization to calibrate the allocation of state/local power in the current social and political reckoning, and proposes a normative lens on localism foregrounding what is truly at stake in contemporary state-local conflicts.
Abstract: Localism, the discourse of local legal power and state-local relations, has returned to the center of national attention, driven by gridlock at the federal level and sharply rising political and cultural conflicts between cities and their states In recent years, states have aggressively sought to constrain, eliminate, and even criminalize local policy discretion across an array of policy domains Cities and their advocates have just as aggressively fought back—in litigation, in the political arena, and in popular discourse Advocacy for resurgent local empowerment is raising anew what has long been the central dilemma of localism: how can a vertical allocation of authority in our legal system reflect a general commitment to devolution and decentralization, yet at the same time check the worst excesses of local parochialism? Local governments can be great fonts of democracy, community, and policy innovation, but they can also be exclusionary and stubbornly unwilling to account for the external consequences of local decision-making This Essay proposes a new approach to the dilemma of localism in an era of polarization To calibrate the allocation of state/local power in the current social and political reckoning, the normative dimensions of localism must be more directly confronted In delineating values to determine where subsidiarity is most appropriately constrained, aspects of state law not always associated with state-local relations can provide normative guidance State constitutional individual rights provisions, addressing equality and equity in many states, as well as employment, education, social welfare, and the environment, bear on the normative commitments states have undertaken And the too-often neglected idea that when states delegate authority to local governments, local governments must act cognizant of the broader general welfare of the state provides a complementary structural principle to import normative concerns into the vertical allocation of power To be sure, there are limits to the judicial capacity to apply a more equitable localism, and the values at issue are contestable But a normative lens on localism foregrounds what is truly at stake in contemporary state/local conflicts In short, it is critical to ask not just what localism is, but what localism is for Properly framed, law can find a jurisprudential and institutional path to an answer

3 citations


Journal Article
TL;DR: The authors reconstructs the legal culture before the Due Process Revolution by analyzing the prominent criminal law scholar Jerome Hall's public lectures, Police and Law in a Democratic Society, which he delivered in 1952 on the differences between democratic and totalitarian police forces.
Abstract: According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 on the differences between democratic and totalitarian police forces. Hall’s definition of democratic policing appealed to self-rule, then to the rule of law, and finally, to due process, as he struggled to account for twentieth-century police forces that were not, in important ways, governed by the people or entirely constrained by law. Hall ultimately settled on the idea that in a democratic society due process meant that the police did not decide the outcome of a “fair trial”—a definition that is different from today’s understanding of due process, which emphasizes judicial review of police action. The Essay applies the methodology of cultural history to argue that during the Cold War, Hall articulated a concept of due process that was not just a legal norm but also a cultural value that rationalized discretionary policing and served to distinguish two competing systems of government that both relied on discretionary authority. The Essay concludes by exploring how Hall’s explication of due process, which was representative of midcentury views, might revise standard accounts of the Due Process Revolution. Understanding the legal culture that came before—and informed—the Warren Court’s criminal procedure decisions suggests that due process functioned as much to justify as to restrain police discretion.

2 citations


Journal Article
TL;DR: The authors reconstructs the forgotten history of metes and bounds within recording practice and finds that the benefits of mete and bounds were greater and the associated costs lower than ahistorical examination of these records would indicate.
Abstract: Since long before the settling of the American colonies, property boundaries were described by the “metes and bounds” method, a system of demarcation dependent on localized knowledge of movable stones, impermanent trees, and transient neighbors. Metes and bounds systems have long been the subject of ridicule among scholars, and a recent wave of law-and-economics scholarship has argued that land boundaries must be easily standardized to facilitate market transactions and yield economic development. However, historians have not yet explored the social and legal context surrounding earlier metes and bounds systems—obscuring the important role that nonstandardized property can play in stimulating growth. Using new archival research from the American colonial period, this Article reconstructs the forgotten history of metes and bounds within recording practice. Importantly, the benefits of metes and bounds were greater—and the associated costs lower—than ahistorical examination of these records would indicate. The rich descriptions of the metes and bounds of colonial properties were customized to the preferences of American settlers and could be tailored to different types of property interests, permitting simple compliance with recording laws. While standardization is critical for enabling property to be understood by a larger and more distant set of buyers and creditors, customized property practices built upon localized knowledge serve other important social functions that likewise encourage development.

2 citations


Journal Article
TL;DR: The first comprehensive study of how district courts determine when a poor litigant may proceed in forma pauperis in a civil lawsuit was conducted by as discussed by the authors, who showed that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations.
Abstract: What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. This Article shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound — across and within district courts — and produce a pleading system that is arbitrary, inefficient, and invasive. This Article makes four contributions. First, it codes all the poverty pleadings currently used by the 94 federal district courts. Second, the Article shows that the flaws of these pleading procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard — one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.

Journal Article
TL;DR: In this paper, the authors argue that the relationship between the independent Federal Energy Regulatory Commission (FERC) and the executive Department of Energy (DOE) demonstrates these challenges, which have allowed the DOE to weaponize statutory checks and balances in its pursuit of policy dominance.
Abstract: The separation of powers forms the backbone of our constitutional democracy. But it is also a guiding principle in sub-constitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. This statutory separation of powers may be seen clearly in the simultaneous legislative creation of the independent Federal Energy Regulatory Commission (FERC) and the executive Department of Energy (DOE). Like its constitutional counterpart, the statutory separation of powers seeks to prevent the dominance of faction and create policy stability. But separating and balancing statutory authority is a delicate business subject to challenges of imprecise allocation, lopsided aggrandizement, and infrequent adjustment. The relationship between FERC and the DOE demonstrates these challenges, which have allowed the DOE to weaponize statutory checks and balances in its pursuit of policy dominance. The article concludes with recommendations for how Congress, the judiciary, and agencies themselves might mitigate these tendencies and preserve the statutory separation of powers as a meaningful safeguard against the perils of concentrated policymaking authority.

Journal Article
TL;DR: The consumer protection literature can be divided into two camps: laissez-faire libertarianism and paternalism as mentioned in this paper, and this dichotomy is overstated by focusing on an understudied form of consumer protection regulation: mixed framing.
Abstract: The consumer-protection literature can be divided into two camps: laissez-faire libertarianism and paternalism. Paternalism, as advanced by behavioral law and economics, calls for nudging consumers toward their utility-maximizing preference. Laissez-faire libertarianism, instead, calls for relying on rational-choice theory and the free market to allocate consumer goods. Although each camp presents the other as its diametric opponent, this Note shows that this dichotomy is overstated. Neither camp is incompatible with the other, nor infallible on its own. Through an original behavioral study, this Note reveals flaws in the fundamental assumptions of both camps: that no information can be conveyed neutrally (behavioral law and economics) and that consumer-oriented regulation diminishes autonomy (rational-choice theory). It does so by focusing on an understudied form of consumer-protection regulation: mixed framing. Legal scholars and regulators have largely ignored this phenomenon, yet it offers a more robust and actionable regulatory approach than the existing literature and one that is distinct from both paternalism and libertarianism. By examining the case study of food-safety regulations, this Note sketches the analytic and normative case for why regulators should embrace mixed framing. Using a process of debiasing through mixed framing, agencies can promulgate rules that minimize the risk of deceptive advertising tactics and maximize the provision of neutral and complete information—without running afoul of the First Amendment or falling into paternalistic restrictions on autonomy.

Journal Article
TL;DR: This paper argued that the attitudes and legal strategies of segregationists in the civil rights era were explicit, gross, and founded exclusively in raw racial animus, whereas racial inequality in the present is subtle, subconscious, and structural.
Abstract: A vast divide exists in the national imagination between the racial struggles of the civil rights era and the racial inequality of the present. The attitudes and legal strategies of segregationists in the civil rights era are conceptualized as explicit, gross, and founded exclusively in raw racial animus. In contrast, racial inequality in the present is conceptualized as subtle, subconscious, and structural. The causes of modern racial inequality — and the obstacles to its remediation — are thus characterized as fundamentally distinct from those undergirding historical racial inequality. Drawing on the recent work of Elizabeth Gillespie McRae and Jeanne Theoharis, as well as other historians of the South and the civil rights movement, this Book Review argues that this oversimplified account obscures key continuities between our racial past and present. As the work of McRae, Theoharis, and others has shown, facially race-neutral opposition to racial equality and integration did not originate in the modern era but rather long predated Brown v. Board of Education in both the North and the South. Moreover, many of the justifications that segregationists offered for their actions — such as a desire for good schools and safe neighborhoods — do not look so very different from the justifications that we continue to rely on to legitimatize racial inequality today. Thus, an accurate accounting of our national history of racial discrimination — rather than substantiating a sharp break between past and present — reveals many uncomfortable continuities. This Book Review suggests that recognizing and coming to terms with this more complex history is critical to contemporary racial-equality work, both in and outside the courts.


Journal Article
TL;DR: Despite a decline in companies’ takeover defenses, provisions barring shareholders from acting by written consent remain intact as mentioned in this paper, despite the fact that the written-consent right does uniquely empower shareholders.
Abstract: Despite a decline in companies’ takeover defenses, provisions barring shareholders from acting by written consent remain intact. A key reason that these antitakeover provisions persist rests in the widely held view that giving shareholders the right to act by written consent would not increase their power over the company’s management as long as shareholders already have the right to call a special meeting. This Note argues that this view is wrong. The written-consent right does uniquely empower shareholders. That power results not from what the right allows shareholders to do but from what it prevents boards from doing without shareholder consent. author. Yale Law School, J.D. 2018. I am very grateful to Professor John Morley for his guidance and encouragement and to Stephen Fraidin for his mentorship and for sparking my interest in the topic. I am also exceptionally thankful to Yena Lee and the editors of the Yale Law Journal for their thoughtful edits. Finally, I want to thank my family and friends for their support and the professor and students in the Advanced M&A Deals Workshop. All errors are my own. special meetings and consent solicitations 1707 note contents introduction 1708 i. the backlash against takeover defenses 1714 A. Takeover Defenses in the Early 2000s 1714 B. The Current State of Takeover Defenses 1716 ii. the right to act by written consent 1719 A. A Majority of Companies Still Bar Shareholders from Acting by Written Consent 1719 B. The Procedural Differences Between the Two Rights Are Overstated 1722 iii. comparing restrictions on the two rights 1726 A. Data on the Use of the Special-Meeting and Written-Consent Rights 1726 B. The Key Difference Between the Special-Meeting and Written-Consent Rights 1728 1. Restrictions on Special Meetings Imposed by Company Bylaws 1728 a. Limitations on When a Special Meeting Can Be Called 1729 b. Limitations on How a Special Meeting Can Be Called 1731 c. Limitations on Who Can Call a Special Meeting 1732 d. How These Restrictions Interact with a Poison Pill and Section 13(d) of the Williams Act 1734 2. Boards’ Inability to Impose Similar Restrictions on Shareholders’ Right to Act by Written Consent 1736 iv. takeaways for corporate governance 1739

Journal Article
TL;DR: In this paper, the authors offer an alternate account of federalism's late eighteenth-century origins, emphasizing the federalist ideology of dual sovereignty as a form of centralization, a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns.
Abstract: This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization — a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns. In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, separatist movements. The second shift came with the drafting and ratification of the U.S. Constitution, which bolstered federal authority partly in order to protect state authority against internal competitors, an aim reflected in the Guarantee and New State Clauses. Ultimately, the Constitution both limited and enhanced state authority; it entrenched a framework of dual sovereignty. After ratification, competitors to state sovereignty were increasingly constrained to appeal to some federal right or power. What had previously been contests among supposedly coequal sovereigns—what modern scholars would call horizontal federalism — became a question of vertical federalism, an issue of whether federal authority would vindicate states or their opponents. Although the Article concludes with some implications of this history for present-day federalism doctrine and theory, its primary contribution is descriptive. Judges and lawyers routinely and almost unthinkingly invoke localism and power diffusion as the historical values of federalism. Yet the history explored here challenges whether these near-universal assumptions about federalism’s aims actually reflect what federalism was designed to accomplish.


Journal Article
TL;DR: The work of as discussed by the authors counters the CLS intuition that rights talk lacks value by focusing on the origins and development of the Puerto Rico Legal Project, an understudied but critical force for community development and legal advocacy on the island that was founded in response to severe political repression during the late 1970s and early 1980s.
Abstract: Long skeptical of the ability of rights to advance oppressed groups’ political goals, Critical Legal Studies (CLS) scholars might consider a U.S. territory like Puerto Rico and ask, “What good are rights when you live in a colony?” In this Note, I will argue that CLS’s critique of rights, though compelling in the abstract, falters in the political and historical context of Puerto Rico. Although it may appear that rights have failed Puerto Ricans, rights talk has historically provided a framework for effective organizing and community action. Building on the work of Critical Race Theory and LatCrit scholars, this Note counters the CLS intuition that rights talk lacks value by focusing on the origins and development of the Puerto Rico Legal Project, an understudied but critical force for community development and legal advocacy on the island that was founded in response to severe political repression during the late 1970s and early 1980s. This Note draws on original interviews with Puerto Rican and U.S. lawyers and community activists to reveal fissures in the critique of rights and to propose certain revisions to the theory. By concentrating on the entitlements that rights are thought to provide, CLS’s critique of rights ignores the power of rights discourse to organize marginalized communities. The critique of rights also overlooks the value of the collective efforts that go into articulating a particular community’s aspirations through rights talk, efforts which can be empowering and help spur further political action. By analyzing twentieth-century Puerto Rican legal and political history and the Puerto Rico Legal Project, I demonstrate the value (and limits) of rights in a colonized nation. author. Yale Law School, J.D. expected 2019; Harvard College, B.A. 2015. I am incredibly grateful to Rebeca L. Hey-Colón and Linda Colón, who made this Note possible, and to the brave Puerto Rican and U.S. lawyers and community leaders who shared their stories with me. I am also thankful for the support and encouragement of Professors Monica C. Bell, Sheri Lynn Johnson, Amy Kapczynski, Aziz Rana, Rachel E. Rosenbloom, Gerald Torres, and Michelle A. Fongyee Whelan. For suggesting the background materials that inspired me to write on this topic, I thank Patricio Martínez Llompart. Lastly, I thank Giovanni Sanchez and the editors of the Yale Law Journal for their insightful suggestions and meticulous editing. I dedicate this Note to my family and a mi isla, Puerto Rico. beyond the critique of rights 793 note contents introduction 794 i. critiquing the critique of rights 801 A. CLS’s Critique of Rights 801 B. CRT and LatCrit’s Response to the Critique of Rights 804 ii. puerto rico’s colonial status under the u.s. legal system 810 A. Puerto Ricans, (Second-Class) U.S. Citizens 810 B. Repression on the Island 813 iii. the advent of civil rights litigation in puerto rico 817 A. Keeping Movements Alive 817 B. Lawyering for the People 822 C. A Project of Their Own 828 iv. turning towards rights talk 832 A. Rights Talk as Restitution 832 B. CLS, Revisited 836 conclusion 839 the yale law journal 128:792 2019

Journal Article
TL;DR: In this article, a supermarket moves to dismiss the suit because the employment application included an agreement to arbitrate all Title VII disputes, and the arbitrator is a pastor, and because the rules of Procedure for Christian Conciliation permit holy scripture to trump federal law, the supermarket loses the case.
Abstract: Imagine you apply to be a cashier at a supermarket. At the beginning of the interview, you sign an employment application. You don’t get the job, and your interviewer’s remarks make you suspect it’s because you are Muslim. You sue in federal court under Title VII of the Civil Rights Act of 1964. The supermarket moves to dismiss the suit because your employment application included an agreement to arbitrate all Title VII disputes. The court dismisses your case and compels arbitration. You arrive to see that the arbitrator is a pastor. When you protest, the employer reminds you that the agreement specified arbitration by a Christian tribunal. And because the “Rules of Procedure for Christian Conciliation” permit holy scripture to trump federal law, you lose the case. 1 The district court then upholds the arbitrator’s decision 2 under the highly deferential standard of review mandated by the Federal Arbitration Act (FAA). 3

Journal Article
TL;DR: Ahmed et al. as mentioned in this paper argued that the use of race-based actuarial tables in constitutional torts is both unconstitutional and theoretically unsound, and pointed out that when the legal dispute turns on a government actor's violations of a citizen's constitutional rights, the harms and benefits exchanged between plaintiff and defendant are more complex and indeterminate than between purely private parties.
Abstract: Black lives are systematically undervalued by constitutional enforcement remedies. Section 1983 adopts, wholesale, the damages scheme from torts, which not only permits, but encourages, the consideration of race and gender to calculate actuarially “accurate” damages figures. Given that Blacks earn seventy-five percent of what white men earn on average, it’s no surprise that this results in significantly lower damages awards. This Note argues that the use of racebased actuarial tables in constitutional torts is both unconstitutional and theoretically unsound. Yet, plaintiffs rarely challenge this practice and often even stipulate to its use. This presents a puzzle—why does a bad practice go unchallenged? Furthermore, the largely unchallenged adoption of race-based actuarial tables is symptomatic of constitutional law’s broader, unquestioned embrace of the corrective justice framework. Corrective justice’s appeal is that it ostensibly allows judges to focus on the narrow task of returning plaintiffs to a prior baseline rather than requiring legislative-type determinations of whether that “baseline” is normatively desirable. But, when the legal dispute turns on a government actor’s violations of a citizen’s constitutional rights, the harms and benefits exchanged between plaintiff and defendant are more complex and indeterminate than between purely private parties. The complicated relationship between parties in constitutional torts makes corrective justice’s determinate inquiry uncertain and unsatisfactory. Indeed, the selection of a prior baseline requires judges to engage in value-laden choices about which harms and benefits—among the innumerable exchanged between citizen and government—are counted toward the plaintiff’s baseline. Thus, this Note reveals that the purported normative neutrality that commends corrective justice in private torts is a mere illusion in the constitutional tort context. Finally, this Note argues that distributive justice emerges as a viable alternative framework for developing constitutional tort remedies. Under that framework, remedial schemes should be premised on moving toward a more ideal distribution rather than limited to returning plaintiffs to a particular baseline. While distributive justice is often rejected in tort litigation, the framework has much to offer in the constitutional tort context. Yet, much of constitutional law and scholarship has overlooked distributive justice and adopted a narrow, tort-like version of corrective justice—a doubly value-laden choice. This Note demonstrates that selecting between the two frameworks should be a contested question—one that has broader implications for our understanding of constitutional law. making black lives matter 1743 author. Yale Law School, J.D. 2018. I am grateful and indebted to John Witt for his constant encouragement, mentorship, thoughtful feedback, and generous support from the very start. I also owe a great deal of thanks to Daryl Levinson for his guidance on this Note and on writing interesting scholarship. This Note was strengthened considerably by conversations with Guido Calabresi, Issa Kohler-Hausmann, Daniel Markovits, Lincoln Caplan, and Emily Bazelon, and by the thoughtful feedback I received on early versions from Ashraf Ahmed, James Durling, and Bill Powell. I am also grateful for the many people who engaged with me about the ideas in this piece, with particular thanks to Rachel Chung, Christina Ford, Richard Frohlichstein, Ted Lee, Laura Portuondo, Roseanna Sommers, Harrison Stark, and Emily Wanger for their helpful conversations and support as this piece took shape. Additional thanks to Giovanni Sanchez for his thoughtful comments and editorial suggestions, as well as to Christine Smith, Zoe Jacoby, and all the editors of the Yale Law Journal for their careful editing. All arguments and errors in this Note are my own. the yale law journal 128:1742 2019 1744 note contents introduction 1745 i. the constitutionality of race-based actuarial tables 1752 A. State Action in Private Torts 1753 B. State Action in Constitutional Torts 1757 C. Classifications, Narrow Tailoring, and Compelling State Interests 1762 D. Lingering Concerns About Accuracy 1765 ii. corrective justice and constitutional torts 1766 A. The Origins and Appeal of Corrective Justice 1766 B. The Incomplete Importation of Corrective Justice from Private Tort Law 1768 C. Applying a Broader Transactional Scope Within a Corrective Justice Framework to Actuarial Tables 1772 iii. distributive justice and constitutional torts 1775 A. Distributive Justice as Applied to Constitutional, Rather than Private, Torts 1776 B. Evaluating Supercompensatory Damages for Constitutional Torts in a Distributive Justice Framework 1781 iv. toward a distributive constitution? trade-offs and implications 1788 making black lives matter

Journal Article
TL;DR: In this paper, a new regime for cultural-property law that permits destruction in cases where the monument in question was established in celebration of a violation of the customary international law of human rights is proposed.
Abstract: This Note identifies problems in cultural-property law that the recent wave of removals of Confederate memorials has illustrated. Because cultural-property law’s internal logic tends inexorably towards supporting preservation, it has no conceptual framework for recognizing when a culture might be justified in destroying its own cultural property. I argue that destruction of cultural property can, in some cases, serve values that the preservationist impulse of culturalproperty law has overlooked. I propose a new regime for cultural-property law that permits destruction in cases where the monument in question was established in celebration of a violation of the customary international law of human rights. author. Yale Law School, J.D. 2019. I am very grateful to Professor James Whitman, for first suggesting this topic to me and for his guidance through the research and writing process. Special thanks to Yena Lee, for her many generous and insightful comments throughout the editorial process, and to the editors of the Yale Law Journal. monuments to the confederacy and the right to destroy 1131 note contents introduction 1132 i. preservation as cultural-property law’s core value 1134 A. Cultural-Heritage Law in Practice 1136 1. International Cultural-Property Law 1136 a. Treaties 1137 b. Customary International Law 1138 i. Yugoslavia 1139 ii. Bamiyan 1140 2. Domestic Cultural-Property Law 1142 a. The National Historic Preservation Act 1143 b. State Historic Preservation Law 1146 B. Cultural-Heritage Law in Theory 1147 ii. cultural property and the value of destruction 1149 A. The Expressive Value of Cultural-Property Destruction 1150 B. The Cathartic Value of Cultural-Property Destruction 1154 C. The Practical Value of Destruction 1156 iii. a human rights-based approach 1157 A. Cultural-Property Law as Human Rights Law 1158 B. A Human Rights-Based Approach to Cultural-Property Destruction 1161 1. A Limited Exception to Cultural Preservation Law 1161 2. Determining a Monument’s Amenability to Destruction 1164 3. Confederate Monuments and the Human Rights Approach 1167 conclusion 1171 the yale law journal 128:113