Our Scholarship & Publications committee regularly puts out a newsletter highlighting the latest legal scholarship that might interest the members of our chapter.
We won’t recap all the exciting discussions that take place in the blogosphere, so we encourage you to peruse some of our favorites on your own:
- FedSoc Blog
- Yale JREG Notice & Comment
- Bench Memos
- Least Dangerous Blog
- Howe on the Court
- Josh Blackman's Blog
We also encourage you to check out some of our favorite podcasts:
- SCOTUS 101
- Short Circuit
- We The People
- Constitutionally Speaking
- Make No Law: The First Amendment Podcast
And here are a few starting points for research:
VOL. 6 – APRIL 2018
Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals by YLS Professor Abbe Gluck '00 and former Judge Richard Posner, Harvard Law Review. The survey results in this Article claim to substantiate the irrelevance of the "boring" textualism-versus-puposivism debate. The authors found that most judges use legislative history and do not utilize dictionaries.
The 'Guarantee' Clause by Ryan C. Williams; Harvard Law Review. Professor Williams uses eighteenth century treaty practice to decipher the original meaning of the word "guarantee." He claims the original meaning and practice of the term provides support to longstanding Supreme Court doctrine that the Guarantee Clause represents a nonjusticiable political question.
Courts and Jurisprudence
Judging the Political and Political Judging: Justice Scalia as Case Study by Richard L. Hasen; Chicago-Kent Law Review, forthcoming. Professor Hasen analyzes Scalia's contradictory positions on incumbency and self-dealing, and what they say about the interaction between the Court, the political branches, and election law.
Local Evidence in Constitutional Interpretation by Brandon L. Garrett; Cornell Law Review, forthcoming. The Article looks at the way local law and practice can be used as evidence in constitutional interpretation by the courts. The increasing availability of rich county-level data is one reason the author advocates the use of local law in constitutional interpretation.
International Law and National Security
Remote Control: Treaty Requirements for Regulatory Procedures by Paul Mertenskötter and Richard Stewart; Cornell Law Review, forthcoming. The Article synthesizes several theories of administrative law and regulation to explain how the domestic procedural requirements incorporated into modern trade agreements favor certain private interests.
Being Seen Like a State: How Americans (and Britons) Built the Constitutional Infrastructure of a Developing Nation by Daniel Hulsebosch; William & Mary Law Review, forthcoming. Professor Hulsebosch focuses on the foreign impact of the ratification of the federal Constitution. In particular, he chronicles the Constitution's role in the development of the Anglo-American relationship, with Britain financing much of early American development.
Civil Rights and Civil Liberties
The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt by Mark Tushnet '71. Professor Tushnet argues that courts are limited in their attempts to achieve true substantive equality, but "[t]he attempt more than the achievement is what matters."
Sexual Harassment and Solidarity by Marion G. Crain and Kenneth Matheny;George Washington Law Review, forthcoming. The authors present a way in which labor unions can join in the battle against sexual harassment, modeled on similar social movements such as the campaign for a living wage.
VOL. 5 – MARCH 2018
Constitutional Preservation and the Judicial Review of Partisan Gerrymanders by Edward Foley. Professor Foley defends judicial review of gerrymandering on originalist grounds, arguing that originalism demands the application of legal doctrines that preserve popular sovereignty and the structure of a federal republic.
Of Synchronicity and Supreme Law by Saikrishna Prakash '93. Professor Prakash came to discuss this paper with FedSoc earlier in the semester, and recently posted it on SSRN! His Essay concerns how originalism imposes time constraints on when statutes, treaties, and constitutional amendments can be made good law.
Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court's First Decade by Nina Mendelson '89; Michigan Law Review, forthcoming. Professor Mendelson discusses the inconsistent application of the canons of construction in Roberts Court jurisprudence and calls into question a core part of textualist statutory interpretation.
Courts and Jurisprudence
Due Process, Free Expression, and the Administrative State by Martin H. Redish and Kristen McCall. The authors argue that the due process requirement of adjudicative neutrality that exists for the judiciary should be extended to administrative agencies. They especially back this move for cases where the constitutionality of agency actions is challenged.
Asymmetric Constitutional Hardball by David Pozen '07 and Joseph Fishkin '07; Columbia Law Review, forthcoming. The Article asserts that conservative politicians and judges use a restorationist vision of the Constitution to advocate for more ideologically purist outcomes than their Democratic/liberal counterparts. Professors Pozen and Fishkin delve into the deeper historical/political foundations of this asymmetry, and make predictions for its consequences in the Trump era and beyond.
International Law and National Security
The Inconsequential Choice of Law Question Posed by Jesner v. Arab Bank by Beth Van Schaack '97; ILSA Journal of International and & Comparative Law, forthcoming. Professor Van Schaack shows how both international law and federal common law support a thesis that the Alien Tort Statute supports corporate tort liability. (It's also a very short read!)
Government Hacking by Jonathan Meyer; 127 Yale Law Journal 490 (2018). This Article examines how federal law regulates government malware and argues that government hacking is inherently a Fourth Amendment search.
Civil Rights and Civil Liberties
Individual Rights under State Constitution in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States by Steven Calabresi '83 et al. Professor Calabresi and his coauthors survey the amendments in state constitutions over time to investigate which individual rights have remained entrenched, and which have not.
Privacy Localism by Ira Rubinstein '85. Rubinstein, using case studies from New York City and Seattle, explores how privacy regulation at the city level can help compensate for failures in regulation at the state and federal levels. It also considers how city ordinances can avoid federal and state preemption.
VOL. 4 – FEBRUARY 2018
Reclaiming the Originalist Text from Originalism: The Case of Executive Power by Victoria Nourse; California Law Review, forthcoming. Nourse uses principles from the philosophy of language to critique the "interpretation zone" of originalism. Focusing on cases involving executive power, she claims that judges have erroneously added to the constitutional text, rather than simply relying on it.
"We Are All Textualists Now": The Legacy of Justice Antonin Scalia, remarks of Judge Diarmuid O'Scannlain; St. John's Law Review. Judge O'Scannlain claims that textualism, which found a zealous advocate in the late Justice Scalia, has transformed the jurisprudence of both liberal and conservative judges on the Court.
Form and Formalism, by Thomas Nachbar. Nachbar defends "formalism" against criticisms of being overly deterministic, and presents it as a method of bringing form to legal thought and interpretation. He portrays originalism and textualism as intellectual offshoots of formalism.
Courts and Jurisprudence
The Endgame of Administrative Law: Government Disobedience and the Judicial Contempt Power, by YLS Professor Nicholas Parrillo; Harvard Law Review. Parrillo shows how federal judges are willing to issue contempt findings against government officials who do not obey court orders, but are reluctant to impose sanctions. Ultimately, courts depend on the "shaming effect" of contempt findings, rather than sanctions, to maintain a level of power over the government.
Article III, Representation, and Remedies, by Andrew Coan and David Marcus (YLS '02). Coan and Marcus critique the representation-based theory of standing as overly simplistic. They cite nationwide injunctions granted by district court judges against policies of the last two presidents as evidence of courts dispensing with the logic of representation at the remedies stage.
International Law and National Security
Courts, Congress and the Conduct of Foreign Relations, by Kristen Eichensehr (YLS '08); University of Chicago Law Review, forthcoming. Eichensehr creates a "converse Youngstown framework" for determining when communications with a foreign executive branch by the Courts or Congress are constitutional.
Presidential Tariff Authority, by John K. Veroneau and Catherine H. Gibson; American Journal of International Law. Veroneau and Gibson review the potential of Section 338 of the Tariff Act of 1930 in furthering executive control over international trade, and allowing the president to unilaterally advance protectionism. (Available via Yale wifi)
Civil Rights and Civil Liberties
Is the First Amendment Obsolete?, by Tim Wu. Wu points to the deleterious effects of modern problems such as "troll armies" and "fake news" on free speech. The undermining of public debate, he says, threatens to return the First Amendment to the political irrelevance it suffered for most of American history.
Religious Liberty and Public Accommodations: What Would Hohfeld Say?, by Joseph William Singer. Singer argues that claims of both religious liberty and free access to public accommodations often entail a right to control the behavior of others. Therefore, choosing whether a public accommodation can deny service to a consumer the owner objects to is not a question that can be easily resolved from the abstract concepts of freedom or religious liberty.
VOL. 3 – NOVEMBER 2017
The Letter and the Spirit: A Unified Theory of Originalism, by Randy Barnett and Evan Bernick. Barnett and Bernick posit how good-faith originalist judges should operate in the “construction zone”: they should first identify the spirit, or “original function” of the relevant clause at the time of its enactment; then they should devise rules that give effect to both that spirit and the letter in the present and future cases.
Confronting Crawford: Justice Scalia, the Judicial Method, and the Limits(?) of Originalism, by Gary Lawson (YLS ’83); University of Chicago Law Review, forthcoming. Lawson argues that Crawford v. Washington, a pathbreaking Confrontation Clause case, was Justice Scalia’s most important majority opinion. Crawford showcases the Justice’s commitment to methodology over results, and exemplifies both the strengths and shortcomings of his originalism.
Originalism, by Cass Sunstein. Sunstein tentatively accepts that originalism may be legitimate on consequentialist grounds in certain circumstances – particularly in evaluating the impeachment power.
The Morality of Administrative Law, by Cass Sunstein and Adrian Vermeule; Harvard Law Review, forthcoming. Sunstein and Vermeule apply Lon Fuller’s theory of the internal morality of law to unify seemingly disparate doctrines in administrative law.
Theories of Interpretation
Debate in Response to “Is the Constitution Special?”, by Richard Primus (YLS ‘98), Christopher Serkin, Kevin Stack (YLS ’97), and Nelson Tebbe (YLS ’99); Cornell Law Review. Last year, Tebbe and Serkin argued in a Cornell Law Review article that it is unjustifiable to approach constitutional interpretation differently from statutory or common-law interpretation. TheLaw Review invited Richard Primus and Kevin Stack to respond to the original article in a series of debating essays.
Settled Versus Right: A Theory of Precedent, by Randy Kozel; introduction to his forthcoming book. Kozel raises serious challenges to the existing doctrine of precedent, arguing that its promotion of stability and impersonality is inadequate.
Corpus Linguistics as a Tool in Legal Interpretation, by Lawrence Solan and Tammy Gales; BYU Law Review, forthcoming. Solan and Gales build off Lee and Mouritsen’s forthcoming article in YLJ about the use of corpus linguistics in legal interpretation.
National Security and International Law
Exiting Congressional-Executive Agreements, by Curtis Bradley. Bradley rebuts the argument that even if the President can unilaterally terminate Article II treaties, he can’t unilaterally terminate congressional-executive agreements like NAFTA.
Rights and Liberties
Heckle: To Disconcert with Questions, Challenges, or Gibes, by Jeremy Waldron. Waldron conceives of hecklers not as suppressors of speech (“the heckler’s veto”), but rather as promotional of exchange and free speech values.
Atlas Nods: The Libertarian Case for a Basic Income, by Miranda Fleischer and Daniel Hemel (YLS ’12); Wisconsin Law Review, forthcoming. Fleischer and Hemel argue that a universal basic income makes more sense as a preferred policy for libertarians, not a second-best option.
Criminal Justice, Inc., by John Rappaport. Rappaport describes “retail justice companies,” which many big retailers hire to extract payments from caught shoplifters in exchange for not calling the police. He develops conclusions about the criminal justice system more broadly and makes prescriptions for the best uses of privatized criminal justice.
VOL. 2 – OCTOBER 2017
Rights and Liberties
The Damagings Clauses, by Molly Brady (YLS JD ’11, PhD in Law ‘16); Virginia Law Review, forthcoming. Twenty-seven state constitutions contain a clause prohibiting the damage or injury of property without just compensation. Brady offers the first comprehensive study of these cousins of the federal Takings Clause.
The Right to Keep and Bear Arms in the Roberts Court, by Nelson Lund. Lund analyzes the legal and historical background of the Roberts Court’s two major Second Amendment decisions, Heller and McDonald, as well as their application in the lower courts.
The Emptiness of Decisional Limits: Reconceiving Presidential Control of the Administrative State, by Cary Coglianese; Administrative Law Review. Coglianese proposes abandoning the “decisional limit”—the prevailing view in administrative law that presidents may not make decisions for the heads of agencies. Instead, he proposes a bright-line “signature limit” that will require agency officials to sign off on agency actions before they take effect.
Federal Decentralization, by David Fontana (YLS ’05); Virginia Law Review, forthcoming. Fontana argues for the physical decentralization of federal officials away from Washington, DC as a mechanism to diffuse power that complements traditional federalism and the separation of powers.
Inside the “Constitutional Revolution” of 1937, by Barry Cushman; Supreme Court Review. Cushman explores the surviving docket books from October Term 1936 to learn more about the Justices’ internal deliberations during the famed “switch in time.”
Reapportionment, Nonapportionment, and Recovering Some Lost History of One-Person, One Vote, by Pamela Karlan (YLS ’84); William & Mary Law Review, forthcoming. Congress failed to reapportion congressional seats for a full decade after the 1920 census. Karlan explores the history of apportionment doctrine before 1920 to analyze why. She also makes predictions about the upcoming 2020 reapportionment.
Justice Souter’s Common Law, by Charles Barzun; Virginia Law Review, forthcoming. Barzun characterizes Justice Souter as a common-law judge, and compares him to common-law scholars Ronald Dworkin and Judge Posner. Barzun concludes that Justice Souter’s brand of common-law jurisprudence was both more history-focused and more radical than his counterparts’—a conclusion drawn from the case study of Justice Souter’s opinion in Planned Parenthood of Southeastern Pa. v. Casey.
The Power to Wage War Successfully, by Matthew Waxman (YLS ’99); Columbia Law Review. In this April piece, Waxman explores future Chief Justice Hughes’s well-known defense of expansive wartime powers during World War I.
An Irresistible Force Meets a Moveable Object: The Technology Tsunami and the Liberal World Order, by Richard Danzig. A policy paper out of Lawfare that discusses the influence of rapidly changing technology on the liberal world order.
Constitutional Law in an Age of Alternative Facts, by Allison Orr Larsen; N.Y.U. Law Review, forthcoming. Larsen raises concerns about constitutional decisionmaking in the era of fractured news and “alternative facts.” In constitutional cases that may require factual background knowledge (like the effect of violent video games on brain development or the commonality of voter fraud), Larsen calls for courts to accord less deference to the legislative record and do more fact-checking.
The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799, by James Cleith Phillips and Sara White. Phillips and White use corpus linguistics tools to conclude that the Congressional and Presidential Emoluments Clauses contained a narrow, public-office sense of the word “emolument,” but that the Foreign Emoluments Clause likely had broader meaning.
Touching the Untouchable: Constitutional Injury and Tangibility, by Rachel Bayefsky (YLS ‘15); William & Mary Law Review, forthcoming. Bayefsky challenges the distinction the Supreme Court drew recently in Spokeo v. Robins between “tangible” and “intangible” harm in the standing context.
VOL. 1 — SUMMER 2017
Early American Constitutional History: A Source Guide, by Will Baude (YLS ’07) and Jud Campbell. Two originalist scholars have updated their guide to early American sources—a valuable resource for students making originalist arguments in their scholarship.
Originalism Without Text, by Stephen Sachs (YLS ’07); Yale Law Journal, forthcoming. Sachs contends that originalist scholarship has been overly focused on textual meaning. Instead, he argues, originalists should also pay attention to atextual legal commitments at the Founding as well.
Originalism as a Constraint on Judges, by Will Baude (YLS ’07); University of Chicago Law Review, forthcoming. Baude considers Justice Scalia’s primary argument for originalism—that it constrains judges—and concludes that originalist scholars today are more conflicted about the value and nature of judicial constraint, and that originalism may only work well as an internal constraint on those judges who want to be constrained.
Rights and Liberties
Natural Rights and the First Amendment, by Jud Campbell; Yale Law Journal, forthcoming. Up-and-coming originalist scholar Campbell argues that originalist treatments of the First Amendment have overlooked the shared conceptual understandings about the relationship between natural law, positive law, and common law at the Founding.
Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, by Morgan Weiland; Stanford Law Review, forthcoming. Weiland, a young First Amendment scholar, discusses an alternative to the competing republican and liberal speech theories: a libertarian speech theory that focuses on listeners’ rights and corporate speech rights.
How Could Religious Liberty be a Human Right?, by Andrew Koppelman (YLS ’89); International Journal of Constitutional Law, forthcoming. Koppelman argues that religious liberty is a human right in this piece blending law and political philosophy.
Take the Fifth, . . . Please! The Original Insignificance of the Fifth Amendment’s Due Process Clause, by Gary Lawson (YLS ’83); Brigham Young University Law Review, forthcoming. Lawson asserts that the Fifth Amendment’s Due Process Clause contributed very little to the Constitution’s original meaning, and that its small contribution was more substantive than procedural.
The Rise of Federal Title, by Gregory Ablavsky; California Law Review, forthcoming. Ablavsky offers a new account of the historical process by which the federal government came to own most of the nation’s public land, and explores its implications for current federalism debates.
Further from the People? The Puzzle of State Administration, by Miriam Seifter; NYU Law Review, forthcoming. Seifter challenges an argument often made in debates about federalism—that state governments are “closer to the people” than federal governments—by asserting that state governments are subject to less oversight by the public, the media, and other watchdogs.
Symposia of Note
Justice Thomas: Twenty-Five Years on the Supreme Court; Yale Law Journal symposium. Last semester, our chapter organized a weekend-long symposium in honor of Justice Thomas’s twenty-fifth anniversary on the Court (at which the Justice himself made an appearance). Thanks to the efforts of our members, the Yale Law Journal has published a collection of essays written by several of the scholars, judges, and practitioners who participated in the conference.
Justice Scalia and the Federal Courts; Notre Dame Law Review symposium. In February, Notre Dame Law School hosted a symposium on Justice Scalia and the federal courts. The reflections from that symposium—including pieces by Judge Kavanaugh, Amy Coney Barrett, Abbe Gluck, Adrian Vermeule, and more—appeared in the Notre Dame Law Review in May.
Will Baude’s Busy Summer
Is Qualified Immunity Unlawful?, by Will Baude (YLS ’07); California Law Review, forthcoming. Baude argues that the doctrine of qualified immunity—which prevents plaintiffs from recovering damages in § 1983 suits unless there has been a “clear violation of established law”—is unlawful. In May, Justice Thomas cited the forthcoming article in his concurrence in Ziglar v. Abbasi.
Standing in the Shadow of Congress, by Will Baude (YLS ’07); Supreme Court Review. Baude discusses the Supreme Court’s recent decision in Spokeo v. Robins, which considered whether a plaintiff can satisfy Article III’s standing requirement by alleging the bare violation of a statute. Baude ultimately agrees with Justice Thomas’s concurrence in Spokeo (and Judge O’Scannlain’s decision below), and fleshes out the theory behind those opinions.
Arguing with Friends, by Will Baude (YLS ’07) & Ryan Doerfler. In a recent Georgetown Law Journal article, Eric Posner and Adrian Vermeule proposed that judges should presumptively find ambiguity when other judges disagree with them. Baude and Doerfler respond with a counter-proposal: judges should only give significant weight to the views of other judges who share their basic interpretive method.
Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past, by Josh Chafetz (YLS ’07); Harvard Law Review, forthcoming. Chafetz explores recent and historical judicial confirmation battles, and concludes with a broader discussion of the discourse surrounding the past.
Constitutional Rot; Constitutional Rot and Constitutional Crisis, by Jack Balkin; book chapter and Maryland Law Review, forthcoming. Balkin introduces the idea of “constitutional rot” to characterize the legal landscape under Trump. He focuses on political polarization, lack of trust in government, economic inequality, and decaying norms.
Presidential Administration Under Trump, by Daniel Farber. Farber evaluates then-Professor Kagan’s seminal article, Presidential Administration, in the context of the Trump Administration. He draws the tentative conclusion that the Trump administration gives more weight to risks of presidential administration that Kagan had originally downplayed.
Presidential Obstruction of Justice, by Daniel Hemel (YLS ’12) and Eric Posner. Hemel and Posner argue that obstruction of justice statutes apply to the president, and that a president violates them when he intervenes in an investigation to advance personal, rather than public interests.