abstract. Recently,
federal prosecutors have faced a stark choice: follow the orders of their
supervisors or abide by what they consider to be their obligation to the public
to seek justice. Political appointees within the Department of Justice
have the incentive to appease elected officials, and politicians have
sought to use the immense power of
Latest from The Yale Law Journal
Pointless IP
abstract. This Essay examines the recent rise of
originalist and textualist methods of analysis in the Supreme Court’s
intellectual-property jurisprudence. The features and failures of these
methods are examined by analyzing their application by the Court within three areas
of intellectual-property law. In all three areas, originalism and textualism have
led to perplexing and unsatisfactory
Before Losing
abstract. Winning Through Losing, which I published almost fifteen years ago, focused on
how social-movement actors can leverage litigation loss for productive internal
and external effects. At the time,
LGBTQ-movement lawyers, who provided some of the primary examples of winning
through losing, were approaching litigation with caution and trying to avoid
losses in court.
Every Court Everywhere All at Once
abstract. Rulemaking agencies have always faced the risk of getting sued. But they have not traditionally
faced the risk of getting sued for failing to discuss their risk of getting
sued. They do now. In Ohio v. EPA,
the Supreme Court found that an EPA rule was likely arbitrary and capricious
because the rule’s
Restricted Charitable Gifts to the Government
abstract.
With surprising frequency, the government accepts a restricted
charitable gift but later determines that compliance with the donor’s
restrictions is illegal, undesirable, or impossible. The government must then
continue complying with a restriction it deems objectionable, and seek court
approval to modify or deviate, or otherwise risk legal consequences for
violation. When accepting a
The Dangerous Rise of “Dual-Use” Objects in War
abstract. Each day, the news brings stories of
military attacks on schools, hospitals, apartment buildings, electrical
facilities, and other critical civilian infrastructure. The militaries
attacking these objects often seek to justify the attacks by claiming that the
civilian objects are being used by militants. Objects that are believed to have
both military and civilian use
The Prison Discovery Crisis
abstract. For incarcerated people
litigating pro se, the civil discovery process is vitally important. When
imprisoned litigants lack meaningful access to discovery, their cases become
swearing contests they are bound to lose, and wrongdoing in prison goes unaddressed.
Yet for these same plaintiffs, civil discovery is defunct. The vast majority of
incarcerated plaintiffs, including those
The Proper Role of Equality in Constitutional Adjudication: The Cathedral’s Missing Buttress
Railroad Regulation Reinterpreted
abstract. Railroading today is profitable but struggles to serve customers, workers, and
communities, as punctuated by recent high-profile disputes and disasters. This
Note traces the development of the legal regulation of railroads from the
Progressive Era’s antimonopoly vision to today’s deregulated environment.
Railroads’ financial success and operational failures both come from this
deregulation in the
Piety Police
abstract. Religiously
affiliated universities are permitted to maintain their own private police
under the rationale that these departments serve an educational, rather than
religious, mission. This Note calls that rationale into question by uncovering
the history of the Brigham Young University Police Department’s (BYUPD’s)
morals policing, which blurred the lines between the enforcement of the