Yale Law Journal Research Articles

Bioethics-CSR Divide

Bioethics-CSR Divide

Reconsidering commonsense consent

ABSTRACT In the 2020 Yale Law Journal article, “Commonsense Consent,” Roseanna Sommers argues that deception is compatible with the layperson’s intuitive sense of consent. That is, unlike the canonical understanding of consent defended by legal scholars and philosophers, the notion of consent defended by the folk is not invalidated by deception. In this study, I find that while respondents do appear to attribute consent to victims of deception, they do so in a limited number of contexts – i.e., they attribute de re consent to victims of de dicto deception and attribute de dicto consent to victims of de re deception. When the two varieties of consent and deception are properly disambiguated and matched type for type however, we see the reverse phenomenon – i.e., participants refrain from attributing de dicto consent to de dicto deception and refrain from attributing de re consent to de re deception. If this is right, rather than saying, as Sommers does, that deception generally fails to invalidate commonsense consent, we should refine our understanding of commonsense consent to include two varieties of consent, each of which is in fact invalidated by its own variety of deception.

Ask a Political Scientist: A Conversation with Catharine A. MacKinnon about Power, Politics, and Political Science

Ask a Political Scientist: A Conversation with Catharine A. MacKinnon about Power, Politics, and Political Science

To the Editor

To the Editor Jon O. Newman, Senior Judge March, 22, 2022 Re Courtney Chistensen’s very interesting article on Trop v. Dulles and the related cases of Perez v. Brownwell and Nishikawa v. Dulles (Vol. 64, No. 3), which (to my surprise) quotes from my law clerk memos to Chief Justice Earl Warren, four comments: 1. In 1967, the Supreme Court rejected its 1958 decision in Perez. The Court ruled 5 to 4 that the Fourteenth Amendment prohibits Congress from terminating United States citizenship. Afroyim v. Rusk, 387 U.S. 523 (1967). 2. As for Trop, it later provoked this astonishing statement by Justice Scalia, “That case has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.” Glossip v. Gross, 576 U.S. 863, 899 (2015) (Scalia, J., with whom Thomas, J., joins, concurring). No doubt Scalia was bemoaning Chief Justice Warren’s explicit statement that the Eighth Amendment “must draw its meaning from the evolving standards of [End Page 232] decency that mark the progress of a maturing society,” Trop, 376 U.S. at 101 (Warren, C.J, with whom Black, J. and Douglas, J., join, dissenting), a statement that explicitly rejected an originalist view of the Eighth Amendment. Although scorning Warren’s opinion with its reference to “evolving standards of decency,” Justice Scalia had earlier acknowledged that “this Court has ‘not confined the prohibition embodied in the Eighth Amendment to “barbarous” methods that were generally outlawed in the 18th Century,’ but instead has interpreted the Amendment ‘in a flexible and dynamic manner.’” Stanford v. Kentucky, 492 U.S. 361, 369 (1986) (quoting Griggs v. Georgia, 428 U.S. 153, 171 (1976). And, he interestingly added, “[O]ur job is to identify the ‘evolving standards of decency.’” Ibid, at 378 (quoting Trop, 356 U.S. at 101 (emphasis in original)). 3. The Yale Law Journal comment referred to in Ms. Chistensen’s article, which first advanced the argument that taking away citizenship as punishment for a crime violated the Eighth Amendment, was written by then-second-year law student Stephen J. Poliak, who went on to become Advisor on National Capitol Affairs to President Johnson in 1967, Asst. Attorney General in charge of the Civil Rights Division in 1968, and thereafter a distinguished lawyer in the District of Columbia. 4. Ms. Christensen’s article frequently refers to Trop (and Perez and Nishikawa) as “denaturalization” cases, when in fact they are denationalization cases (involving loss of citizenship acquired at birth, not revocation of a fraudulently obtained naturalization certificate).1 Jon O. Newman, Senior Judge Second Circuit Court of Appeals ENDNOTE 1. Of minor import, page 338 of the article misquotes the word “pasted” (from Warren’s Trop dissent, 356 U.S. at 94) as “posted.” Copyright © 2022 Supreme Court Historical Society

One Child Town: The Health Care Exceptionalism Case Against Agglomeration Economies

This Article offers an extended rebuttal to the suggestion to move residents away from dying communities to places with greater economic promise. Rural America, arguably, is one of those dying places. A host of strategies aim to shore up those communities and make them more economically viable. But one might ask, “Why bother?” In a similar vein, David Schleicher’s provocative 2017 Yale Law Journal article, Stuck! The Law and Economics of Residential Stagnation, recommended dismantling a host of state and local government laws that operate as barriers to migration by Americans from failing economies to robust agglomeration economies. But Schleicher said little about the fate of the places left behind. Schleicher’s article drew a number of pointed responses, urging the value and preservation of Small Town America. But those arguments failed fully to meet the rational economic thesis, countering instead with more sentimental or humanitarian concerns. This Article offers a way to reconcile the two views, refracted through a health care lens. Health care is a particularly apt perspective for considering the question of whether America’s rural places are worth saving because it necessarily, under longstanding U.S. policy preferences, walks the line between economic principles and human rights; individual responsibility and communitarian values; the rational actor and the deserving recipient of aid. The health care exceptionalism case against agglomeration economies urges consideration of the real, quantifiable costs of migration and, correlatively, the value of home, as well as the market imperfections inherent in health care and, even more so, in rural health care.

Pregnancy Clauses

Pregnancy Clauses

Wesley Hohfeld's Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (Annotated and Edited)

Wesley Hohfeld was an important legal theorist from the early 20th century. His article, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, which appeared in the Yale Law Journal in 1913, is one of the most-cited law articles of all time. It has had a profound impact not only in the field of jurisprudence but also on numerous scholars, lawyers, and jurists more broadly, notably including the drafters of the Restatement (First) of Property and judges of the U.S. Supreme Court and many lower courts. Although the article was intended for students, in actuality, it has been quite difficult to parse for students and professors alike. This chapter offers an annotated and slightly condensed version of the article. Textual annotations aim to explain key paragraphs and sentences in fairly basic terms, while footnote annotations are intended for scholars wishing to take a “deep dive” into the Hohfeldian typology. Although the chapter’s analysis generally endorses Hohfeld’s assertions, in part, it also provides friendly critique. This critique, along with careful interpretation of the original text, aligns Hohfeld’s typology more closely—though not completely—with a formalist approach than previous characterizations in the legal literature, which have largely viewed the typology and Hohfeld’s work as an early foray into legal realism.

Letter to the Yale Law Journal Forum

This essay is a legal scholarship in the form of a letter to the Yale Law Journal Forum, reflecting on the nature of the market for legal scholarships.

Faculty Perceptions of Online Law Journals

Online-only law journals (OLJs) are sometimes referred to as “companions” or “supplements.” They are law journals that are only distributed in a digital medium. The Yale Law Journal Pocket Part became the first OLJ in 2005. In the brief existence of OLJs, they have experienced rapid growth in both prestige and prevalence. There were already four OLJs in the top 100 of the Washington & Lee law journal rankings by 2015. In 2020, there are now seven OLJs in the top 100. Using the impact factor measure, there are ten OLJs in the top 100. The Forum—Harvard’s OLJ—is ranked ahead of the flagship print journals North Carolina Law Review and Connecticut Law Review. The performance of OLJs in rankings is even more impressive when considering how a key measure used in the rankings—impact factor—disadvantages OLJs because they publish shorter articles. OLJs generally have less stringent footnote requirements and a faster turnaround time from acceptance to publishing. OLJs publish a greater variety of articles than their print counterparts. Book reviews, short essays, responses, current event musings, and even poetry and satirical pieces are published in OLJs. Some scholars applaud this flexibility, while others criticize it as unpredictable. There is great variance in OLJ article lengths, but they are generally shorter than flagship print journal articles. Some OLJs have an explicitly stated maximum of only 2,500 words including footnotes. Others allow submissions of over 15,000 words. Demand for printing and purchasing physical law journal editions has been steadily decreasing due to cost, limited library shelf space, and increased popularity of digital legal research. Physical distribution of the Harvard Law Review has decreased almost 90%. Even libraries at elite law schools, such as Columbia, are canceling subscriptions to hundreds of print law journals. Some commentators argue persuasively that certain flagship journals should move exclusively online. The budget cuts many colleges face from coronavirus will likely accelerate this trend of transitioning toward OLJs.This article first examines current conceptions for weighting OLJs compared to print law journals, criticism of OLJs, and praise for OLJs. It then reports the findings of a survey of business law faculty to measure perceptions of OLJs. Finally, faculty demographic factors are also analyzed to determine what role they may play in forming these perceptions.

May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals

Part I of this article examines the proportion of reported opinions from U.S. federal and state courts between 1945 and 2018 that cite at least one academic legal periodical, while Part II applies that data beginning in 1970 to compare the proportion of opinions that cite to the flagship journals of 17 law schools selected and hierarchically categorized based on their U.S. News & World Reports rankings. Representing the most elite schools are Harvard Law Review and Yale Law Journal, the two longest running student-edited journals 1 at arguably the two most prestigious law schools in the United States, 2 followed by journals from three exemplar schools from the “Top 14,” and three law schools from each of the rankings' four tiers. This article explores these trends in the context of changes in technology, the judiciary, legal scholarship, and academic legal publishing.

May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities? Notes on the Law and Ethics of Disability-Based Medical Rationing

Thanks to the coronavirus pandemic, the threat of medical rationing is now clear and present. Hospitals faced with a crush of patients must now seriously confront questions of how to allocate scarce resources—notably life-saving ventilators—at a time of severe shortage. In their protocols for addressing this situation, hospitals and state agencies often employ explicitly disability-based distinctions. For example, Alabama’s crisis standards of care provide that “people with severe or profound intellectual disability ‘are unlikely candidates for ventilator support.’”This essay, written as this crisis unfolds, argues that disability-based distinctions like these violate the law. The Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act all prohibit health care providers from discriminating against qualified individuals with disabilities because of their disabilities. The explicit discrimination embodied in numerous state policies on its face violates these prohibitions. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. Longstanding and authoritative interpretations of the law bar the use of such circular techniques to insulate disability discrimination from legal challenge. Although a proper interpretation of the law may permit medical providers to use disability as a basis for a rationing decision where an individual’s underlying disability will kill the individual in the immediate term regardless of the treatment, those circumstances will be narrow. And a proper interpretation of the law requires assurances that such imminent-death determinations will be made based on the best available objective evidence, free from bias against people with disabilities or devaluation of their lives.Medical providers retain substantial discretion to make resource allocation decisions in a time of triage. They may make decisions based on non-disability factors. And where those factors do not dictate a decision, they may employ a lottery process. Such a process is more fair and democratically legitimate than placing the burden on disabled individuals—individuals who already experience disadvantage as a result of societal discrimination, and who disproportionately lack access to the political processes that frame policies concerning medical rationing.

Reconceptualizing Sexual Harassment, Again

Sexual harassment has always been more about sexism than it is about sex. Nearly twenty years ago, Vicki Schultz pioneered a new understanding of sexual harassment that recognized and theorized this empirical reality. The framework she developed in two articles published in the Yale Law Journal—Reconceptualizing Sexual Harassment and The Sanitized Workplace—still holds important lessons for today. The emergence of the #MeToo movement has brought about a welcome, renewed focus on sexual harassment and motivated long-overdue terminations of accused harassers across industries. Yet pervasive narratives still narrowly emphasize sexualized forms of harassment and assault—at the expense of broader understandings of harassment and its causes. This Essay revisits and expands on Schultz’s previous work in the contemporary context, drawing on the technology and film industries as case studies and showing that sex segregation and unchecked, subjective authority are central institutional causes of sex-based harassment. To end harassment will thus require more than firing individual harassers. It will require structural reform to eliminate arbitrary authority and sex segregation at work. Bold solutions are needed if we are to ensure sexual harassment isn’t still prevalent twenty years from now.

The Case for the Repeal of the Fifteenth Amendment in the Yale Law Journal

In June 1903, in the depths of the Jim Crow system, the Yale Law Journal published an article by famed New York corporate lawyer John R. Dos Passos (whose son, with the same name, later became a famous modernist novelist and socialist). The article, entitled “The Negro Question,” argued that many African American citizens in southern state were not yet ready for voting rights. The article defended the restriction of rights in southern states since the end of Reconstruction among African-Americans. Dos Passos’ article has received virtually no attention in recent years. It is important evidence of the intellectual credibility of ideas of segregation and second-class citizenship at the turn of the twentieth century. It reveals the breadth of the entrenched opposition to the ideas of racial equality. And it invites further examination of how law reviews in the early twentieth century supported Jim Crow segregation.

J. Lepore, “On Evidence: Proving Frye as a Matter of Law, Science, and History”, The Yale Law Journal 2015, 124, 1092–1158, and J. Lepore, “The Secret History of Wonder Woman”, Knopf, Borzoi NY 2014.

<i>J. Lepore, “On Evidence: Proving Frye as a Matter of Law, Science, and History”, The Yale Law Journal 2015, 124, 1092–1158, and J. Lepore, “The Secret History of Wonder Woman”, Knopf, Borzoi NY 2014</i>.

Why Tolerate Religion, Again? A Reply to Michael McConnell

This essay discusses a lengthy review by Professor Michael McConnell of the Stanford Law School in the Yale Law Journal to my 2013 book WHY TOLERATE RELIGION? (Princeton University Press). I identify two important objections that Prof. McConnell raises, but also identify eight different mistakes or misunderstandings that mar other parts of the review. I conclude by taking Prof. McConnell to task for several rhetorical cheap shots that, together with the other errors, suggests that his essay was more a partisan brief than a scholarly evaluation of the arguments. Most surprisingly, the fact that Professor McConnell, in his lengthy review, never actually responds to my book's central thesis -- namely, that the inequality between religious and non-religious claims of conscience is not morally defensible -- suggests that there may really be no serious argument on the other side.

A Comment on Statistical Significance and Standards of Proof

A Comment on Statistical Significance and Standards of Proof

The Missing Justice in Coleman v. Miller

All nine of the sitting justices took part in the 1939 case of Coleman v. Miller, which concerned whether the Kansas legislature had ratified the pending Child Labor Amendment. One of the issues in the case was decided by a vote of 5-4, while another was resolved by a vote of 7-2. With respect to a third issue, however, Chief Justice Charles Evans Hughes reported that it presented “a question upon which the Court is equally divided and therefore the Court expresses no opinion upon that point.” Scholars understandably have been puzzled by how a decision in which a full Court participated could have been “equally divided” on an issue. Shortly after the decision was handed down, the Yale Law Journal published an anonymous Note entitled Sawing a Justice in Half, which remarked that the division “should astonish even a Yogi magician.” The perplexed author concluded by asking, “is it possible to saw a Justice vertically in half during a conference and have him walk away whole?” This brief article seeks to determine what happened in Coleman, and to pin down the identity of the missing justice.

Deconstructing the Durham Statement: The Persistence of Print Prestige During the Age of Open Access

In the seven years following the promulgation of the Durham Statement on Open Access to Legal Scholarship, law journals have largely responded to the call to make articles available in open, electronic formats, but not to the call to stop print publication and publish only in electronic format. Nearly all of the flagship law reviews at ABA-accredited institutions still insist on publishing in print, despite the massive decline in print subscribers and economic and environmental waste. The availability of a law journal in print format remains a superficial indicator of prestige and quality to law professors, student editors, and law school administrations. A shift from print publication to electronic-only publication is not as simple as having a law journal merely cancel its print runs, but rather requires several fundamental changes to the publication process. Many law journals must also greatly improve their websites before electronic-only publication can truly replace print publication. The Durham Statement was drafted by law library directors from top law schools across the country. Law librarians today must assist in facilitating the transition if we ever expect to see a world of electronic-only publication of law journals. This paper argues that the Harvard Law Review, Yale Law Journal, and Stanford Law Review must be the first law reviews to transition to electronic-only publication, after which other law journals will follow suit.

“They’re creepy and they’re kooky” and They’re Copyrighted: How Copyright Is Used to Dampen the (Re-)Imagination

“They’re creepy and they’re kooky” and They’re Copyrighted: How Copyright Is Used to Dampen the (Re-)Imagination

A Confederate History in the Yale Law Journal

This essay revisits Yale history professor Allen Johnson’s article “The Constitutionality of the Fugitive Slave Acts,” which appeared in the Yale Law Journal in December 1921. Johnson wrote about a law that had been nullified by the Civil War and the Thirteenth Amendment nearly 70 years before. His article was part of the scholarly reconsideration of the origins of Civil War designed to reconcile North and South. Northerners, especially Northern scholars, blamed the Civil War on fanatics on both sides and in some ways exculpated Southerners for their role in the War. While scholars of memory have explored the rewriting of history in the early twentieth century, no one has noticed how it stretched outside of history books and into the pages of the distinguished Yale Law Journal. The efforts to re-write constitutional history and to defend the south’s case for one of the most reviled acts in American history reached into territory and to scholars we had not previously known. This essay thus implicates a wider stretch of legal and historical writing than we had known in the efforts to defend the proslavery south.