The Yale Law Journal

Published by Yale Law School
Online ISSN: 0044-0094
Publications
Article
The common law rules of fellow servant, assumption of risk, and contributory negligence posed a series of daunting obstacles for nineteenth- century workers seeking to recover for injuries suffered on the job. Strong opposition to the "unholy trinity" of the common law's workplace accident regime began to develop among progressive reformers in the first decade of the twentieth century. In 1910, New York State enacted the first modem workmen's compensation law in the United States, providing compensation to injured workers and their families without regard to fault. By the end of the decade an astounding thirty-nine states, the District of Columbia, and three U.S. territories had followed New York's lead. The transformation of work accident law has been the subject of a large and sometimes contentious scholarship among historians, lawyers, and social scientists. Scholars have generally been inattentive, however, to the ways in which the transformation of the law of work accidents reflected and gave shape to an important shift in the ways in which Americans thought about and organized work itself. This Note argues that the nineteenth-century law of workplace accidents is perhaps best understood by reference to what historian Daniel Rodgers has described as nineteenth-century Americans' "moral preoccupation with labor."
 
Article
May Congress abrogate the judicial policy of stare decisis and direct the Court to decide constitutional cases without according decision-altering weight to its precedents? That is, could Congress require the Court not to follow a precedent that the Court is otherwise persuaded is wrong on the merits? This Article argues that the answer is yes. Congress has power to pass such a statute pursuant to the Necessary and Proper Clause, as a law carrying into execution the judicial power of Article Ill. Stare decisis is not a constitutional requirement, but rather a judicial policy judgment. Examination of each of the factors embodied in that judgment shows that it is one appropriate for legislative determination. A statute abrogating stave decisis would not encroach on the "judicial Power" of Article Ill because it would not interfere with any exclusive constitutional prerogative of the judiciary. Such a statute would neither prescribe outcomes nor invalidate final judgments. It would merely require courts to decide cases on the basis of the judges' best understanding of the Constitution. A statute abrogating stare decisis might make a difference to the outcome of cases like Planned Parenthood v. Casey, in which the Court reaffirmed the constitutional right to abortion. If the Justices can be taken at their word, Casey rests almost entirely on the doctrine of stare decisis rather than on the merits. Taking Casey seriously on its own terms, a statute abrogating stare decisis in substantive due process cases should lead to a judicial decision overruling Poe v. Wade.
 
Article
To be a child is to be at risk, dependent, and without capacity or authority to decide what is "best" for oneself. To be an adult is to be a risktaker, independent, and with capacity and authority to decide and to do what is "best" for oneself. To be an adult who is a parent is to be presumed in law to have the capacity, authority, and responsibility to determine and to do what is good for one's children. The law is designed to assure for each child an opportunity to meet and master the developmental crises on the way to adulthood—to that critical age when he or she is presumed by the state to be qualified to determine what is "best" for oneself. As Jeremy Bentham observed not so long ago in 1840: The feebleness of infancy demands a continual protection. Everything must be done for an imperfect being, which as yet does nothing for itself. The complete development of its physical powers takes many years; that of its intellectual faculties is still slower. At a certain age, it has already strength and passions, without experience enough to regulate them. Too sensitive to present impulses, too negligent of the future, such a being must be kept under an authority more immediate than that of the laws ....
 
Article
As basic research in biotechnology yields increasing commercial applications, scientists and their research sponsors have become more eager to protect the commercial value of research discoveries through intellectual property law. Some scientists fear that these commercial incentives will weaken or even undermine the norms that have traditionally governed scientific research. In this Article, Professor Eisenberg examines the interaction of proprietary rights in inventions with these traditional scientific norms. Trade secrecy, she argues, is an undesirable strategy for protection of basic research discoveries because it impedes dissemination of new knowledge to the scientific community. She finds that patent law is in many respects more congruent with scientific norms than trade secrecy because it is premised on disclosure rather than secrecy. Professor Eisenberg demonstrates, however, that the fit between the patent system and the norms and incentives of the scientific community is hardly perfect. Patent law may operate to delay the dissemination of knowledge to other researchers. Moreover, by granting rights to exclude others from using patented inventions for a term of years, the patent system threatens the interest of the scientific community in the free use and extension of new discoveries. Professor Eisenberg concludes that greater sensitivity to the impact of patent law doctrine on scientific norms will help to reconcile the norms and incentives of these two systems.
 
Article
Contemporary tort doctrine creates perverse incentives to confine individuals with mental disabilities in institutions. Courts have declined to impose a duty of care on defendants with mental disabilities who reside in institutions and injure their caregivers, but hold defendants with mental disabilities who reside in the community to an objective, reasonable person standard. In drawing this distinction based on the defendant's confinement, courts have imported outdated reasoning that an objective standard will provide incentives to relatives to institutionalize such individuals to prevent injury to others. This 'logic of confinement' is at odds with contemporary civil rights law's preference for integration in the least restrictive environment. In assigning liability, courts should focus solely upon the nature of the relationship between the parties, their knowledge and expectations, and their relative abilities to prevent harm.
 
Article
The doctrine requiring physicians to obtain a patient's informed consentbefore undertaking treatment is relatively young, having first appeared in arecognizable, relatively robust form only in 1957. Yet the values that underliethe doctrine have an ancient pedigree. The consent norm had occupied aprominent and honored place in our legal thought for many centuries beforethe courts began to develop a jurisprudence of informed consent in healthcare. Also well established was the cognate notion that consent must beinformed or knowledgeable in some meaningful sense if we are to accord itlegal or moral significance.
 
Article
This essay argues against a right to physician-assisted suicide. It urges that the state has sufficient interests -- in protecting against abuse and diminished patient autonomy -- to justify intruding on any "fundamental right." It suggests that the previous substantive due process cases should be read as involving problems of equal protection or procedural due process.
 
Article
Scientific information is relevant to, even decisively important in, a rapidly growing percentage of civil and criminal cases. Most judges and juries however lack the background necessary to make independent judgments about scientific evidence. Thus, they solicit and defer to the opinions of expert scientific witnesses. In this Article, Professor Brewer explores and models the reasoning process that judges and juries use in assessing these witnesses' testimony. Almost inevitably finders of fact and law alike are presented, not with a univocal authoritative voice of scientific truth, but instead with competing scientific expert witnesses who testify to contrary or even contradictory scientific propositions. To resolve such inconsistencies, judges and juries rely on such indicia of expertise as credentials, reputation, and demeanor. Drawing on work in jurisprudence, philosophy of science, and epistemology, as well as on doctrines and leading cases on scientific evidence, the Article shows that in many cases such reliance yields epistemically arbitrary judgments. This outcome violates an emerging norm, a norm Professor Brewer calls "intellectual due process." This norm, the Article shows, is immanent in values to which many legal systems, including those of the United States, are already committed. Moreover it places important epistemic constraints on the reasoning process by which legal decisionmakers apply laws to individual litigants. The Article thus concludes with some brief observations about the kinds of doctrinal and institutional reforms that might better enable a legal system to meet the high aspirations of intellectual due process.
 
Article
Under Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." But as a matter of actual practice, statements about "what the law is" are often made by the executive department, not the judiciary. In the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron v. Natural Resources Defense Council, the most-cited case in modern public law. Chevron reflects a salutary appreciation of the fact that the executive is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. But the theory that underlies Chevron remains poorly understood, and in the last two decades, significant efforts have been made to limit the executive's interpretive authority. In general, these efforts should be resisted. The principal qualification involves certain sensitive issues, most importantly those involving constitutional rights. When such matters are involved, Congress should be required to speak unambiguously; executive interpretation of statutory ambiguities is not sufficient.
 
Article
The paper explains why open source software is an instance of a potentially broader phenomenon. Specifically, I suggest that nonproprietary peer-production of information and cultural materials will likely be a ubiquitous phenomenon in a pervasively networked society. I describe a number of such enterprises, at various stages of the information production value chain. These enterprises suggest that incentives to engage in nonproprietary peer production are trivial as long as enough contributors can be organized to contribute. This implies that the limit on the reach of peer production efforts is the modularity, granularity, and cost of integration of a good produced, not its total cost. I also suggest reasons to think that peer-production can have systematic advantages over both property-based markets and corporate managerial hierarchies as a method of organizing information and cultural production in a networked environment, because it is a better mechanism for clearing information about human capital available to work on existing information inputs to produce new outputs, and because it permits largers sets of agents to use larger sets of resources where there are increasing returns to the scale of both the set of agents and the set of resources available for work on projects. As capital costs and communications costs decrease in importance as factors of information production, the relative advantage of peer production in clearing human capital becomes more salient.
 
Article
A vast and often confusing economics literature relates competition to investment in innovation. Following Joseph Schumpeter, one view is that monopoly and large scale promote investment in research and development by allowing a firm to capture a larger fraction of its benefits and by providing a more stable platform for a firm to invest in R&D. Others argue that competition promotes innovation by increasing the cost to a firm that fails to innovate. This lecture surveys the literature at a level that is appropriate for an advanced undergraduate or graduate class and attempts to identify primary determinants of investment in R&D. Key issues are the extent of competition in product markets and in R&D, the degree of protection from imitators, and the dynamics of R&D competition. Competition in the product market using existing technologies increases the incentive to invest in R&D for inventions that are protected from imitators (e.g., by strong patent rights). Competition in R&D can speed the arrival of innovations. Without exclusive rights to an innovation, competition in the product market can reduce incentives to invest in R&D by reducing each innovator's payoff. There are many complications. Under some circumstances, a firm with market power has an incentive and ability to preempt rivals, and the dynamics of innovation competition can make it unprofitable for others to catch up to a firm that is ahead in an innovation race.
 
Book
These eleven essays written over the past fifteen years continue and develop Richard Cooper's central theme of interdependence, reflecting his experience in government in the Council of Economic Advisers and as Undersecretary of State for Economic Affairs. They focus in particular on the opportunities and constraints for national economic policy in an environment where goods, services, capital, and even labor are increasingly mobile. The first four chapters are informal, discursive treatments of economic and foreign policies in the face of growing interdependence among nations. The remaining chapters cover such specialist topics as optimal regional integration, the integration of world capital markets, the impact of greater interdependence on the effectiveness of domestic economic policy, the comparison of monetary and fiscal policy under fixed and flexible exchange rates, currency evaluation in developing countries, and the appropriate size and composition of a developing country's external debt. A concluding chapter surveys the preceding essays in terms of coordinating macroeconomic policymaking in an interdependent world economy. Richard N. Cooper is Maurits C. Boas Professor of International Economy at Harvard University.
 
Article
This Article contends that the current legislative approach to securities regulation is mistaken. It advocates a market-oriented approach of competitive federalism that would expand the role of the states in securities regulation and would fundamentally reconceptualize the regulatory scheme. Under a system of competitive federalism for securities regulation, only one sovereign will have jurisdiction over all transactions in the securities of a corporation that involve the issuer or its agents and investors: the sovereign chosen by the issuer from among the federal government, the fifty states, or foreign nations. The aim is to replicate for the securities setting the benefits produced by state competition for corporate charters -- a responsive legal regime that has tended to maximize share value. As a competitive legal market supplants a monopolist federal agency in the fashioning of regulation, it will produce rules more aligned with the preferences of investors, whose decisions drive the capital market. Competitive federalism for U.S. securities regulation also has important implications for international securities regulation. The jurisdictional principle applicable to domestic securities transactions is equally applicable: Foreign issuers selling shares in the United States would be able to opt out of the federal securities laws and choose the law of another nation, such as their country of incorporation, or of a U.S. state, to govern those U.S. transactions.
 
Article
The Role and Structure of Organizational Law In every society, the law establishes a set of standard legal entities. In the United States, these entities include the business corporation, the cooperative corporation, the nonprofit corporation, the municipal corporation, the limited liability company, the general partnership, the limited partnership, the private trust, the charitable trust, and marriage. In important respects, the number and nature of these entities is often strikingly similar from one jurisdiction to another, but at the same time, there are conspicuous variations, even among jurisdictions with similar economies. In this essay, we focus on two questions: What are the common features shared by legal entities, and to what extent do these features require specialized legal rules? Our thesis is that the essential feature of organizational law is asset partitioning -- that is, the provision of a mechanism by which creditors of the firm obtain a priority claim in the firm's assets over individual creditors of the firm's managers or HBIs. The idea that partitioning a fixed pool of assets can reduce overall costs of credit by reducing monitoring costs is already familiar. In large part, however, the existing literature focuses on devices for asset partitioning other than organizational law (for example, security interests). Our contribution here is to demonstrate the close relationship between asset partitioning and organizational law.
 
Article
More than twenty-one years after Robert Bork’s failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this essay, I will debunk those claims. First, I will explain how Casey’s approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey - either by restoring the trimester test or by overruling Roe altogether. Third (and most important), I will explain how it is that Casey stabilized state abortion politics. The national consensus favoring limited abortion rights remains intact. Correspondingly, the template of laws approved by the Supreme Court in Casey were politically popular at the time of Casey and remain politically popular today. Indeed, since Pennsylvania has always been one of the most restrictive states when it comes to abortion regulation, very few states are interested in pushing the boundaries of what Casey allows. And while a handful of outlier states have pushed the boundaries of what Casey allows, these states (which account for a quite small percentage of abortions) have largely worked within parameters set by the Court in Casey. Perhaps most telling, neither the confirmation of Chief Justice Roberts and Justice Alito nor the Supreme Court’s approval of federal partial-birth abortion legislation has significantly impacted state antiabortion efforts. For all these reasons, pro-choice and pro-life interests would be better served shifting their energies away from legalistic fights over abortion regulation and toward shaping the hearts and minds of the women who may seek abortions and the doctors and clinics that may provide abortion services.
 
Article
In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay’s study of British and German parliamentary systems, the semi-presidential French system, and the presidential Mexican and South Korean systems suggests that executive power is highly contingent and shaped by political context. The Essay identifies the common features of all these governmental structures, including the fluid line between executive and legislative power, and emphasizes that all of these nations have recognized the importance of placing limits on executive power, including in the spheres of foreign affairs and national security. These comparative examples thus provide a counterweight to recent arguments that executive power inherently requires unchecked authority in these spheres.
 
Chapter
Consumer product warranties are our most common of written contracts, but little is known about what determines their content or how they relate to the reliability and the durability of goods. Since the first appearance of standardized warranties early in this century, two theories have been proposed to explain their role in sales transactions. The first emphasizes the absence of bargaining over warranty provisions. It views warranties as devices of manufacturers to exploit consumers by unilaterally limiting legal obligations. The second and more recent theory focuses on the difficulty consumers face at the time of purchase in estimating the risk of product defects. This theory regards express warranties as messages signaling the mechanical attributes of goods. Both theories have influenced substantially judicial and legislative responses to product warranties. The view of the warranty as an exploitative device has provided crucial support to the policy of enterprise liability and the replacement of contract principles with tort principles in product defect cases. In addition, the exploitation theory is the intellectual basis for the modern judicial treatment of consumer warranty issues, in particular for the expansive interpretation of warranties implied by law, for the elimination of the requirement of privity of contract, and for the restriction of the manufacturer's authority to limit available remedies or to disclaim general obligations. More recently, the signal theory has informed the design of the federal Magnuson-Moss Warranty Act, which directly regulates both the form and content of consumer product warranties.
 
Article
After four years of consideration, the Israeli Supreme Court recently issued the world's first judicial decision on targeted killings in Public Committee Against Torture in Israel v. Government of Israel (PCATI). In PCATI, the court held that terrorists are civilians under the law of armed conflict and thus are lawfully subject to attack only when they directly participate in hostilities. But the court also expanded the traditional definition of direct participation and the time period during which civilians may lawfully be attacked. By disregarding the direct participation requirement's important evidentiary function, the court weakened the protections that international law affords to all civilians, not just to terrorists.
 
Chapter
Because human beings live on the surface of the earth, systems of law and custom which regulate property in land, and so establish the foundation of virtually all human activity, have sparked often fierce and monolithic ideological commentary. Professor Ellickson explores various fundamental issues of land ownership regimes and concludes that a more flexible understanding is needed. The Article's efficiency thesis is that close-knit groups tend to create, through law and custom, a cost-minimizing land regime that adaptively responds to changes in risk, technology, demand, and other economic conditions. In so doing, the group mixes private, group, and open access lands. According to the private property thesis, a close-knit group commonly employs a system of parcelized ownership for sites suitable for dwelling, agriculture, or other intensive uses. Drawing upon both the rational-actor model employed by many social scientists and a diverse body of historical evidence on the evolution of land institutions, Professor Ellickson demonstrates that land rules are not a shapeless jumble, but instead form an unauthored strategy which allocates a resource with extremely complex attributes.
 
Article
In negligence law, the risks taken into account by courts when setting the standard of care are the same risks considered when imposing liability and awarding damage. I call this the “alignment principle.” One objective of the Article is to expose the exceptions to the alignment principle, which I call “misalignments.” In cases of misalignment, the risks that are accounted for in setting the standard of care are different from the risks for which liability is imposed and damages are awarded. A second aim of the Article is to suggest modifications to the law, when misalignments cannot be justified. The most important aim of this Article is, however, to offer a theory as to how to evaluate and contend with misalignments. Five cases of misalignment are identified and discussed in the Article. The first case illustrates how courts set the standard of care regardless of the victim’s level of income, but award different amounts of damages to high- and low-income victims. The second case represents instances in which causation is inherently hard to prove. In such cases, courts set the standard of care according to the expected harm, but traditionally allow no compensation when the plaintiff suffers harm but cannot prove that it was caused by the defendant’s negligence. In the third case, courts set the standard of care according to both risks increased and decreased by the injurer, but ignore the decreased risks when awarding damages. In the fourth case, courts set the standard of care by taking into account both ordinary and unusual risks, but often refuse to impose liability for harms that materialized from the ordinary risks. Finally, in the fifth case, courts set the standard of care by considering the risks the injurer created toward others, but not the risks he created for himself, even though the negligent injurer bears harms materialized from both risks to others and to self. In all five cases, the goals of tort law would be better served were the misalignments removed and all risks equally accounted for both in setting the standard of care and awarding damages.
 
Article
There is a widespread belief that the law should, and does, protect windfalls (unexpected gains) every bit as much as it protects property earned by effort and enterprise. This article takes issue with both arms of this assertion. Windfalls present an efficient source of government revenue: since recipients do not expect windfalls, taxing them does not distort taxpayer behavior. Moreover, risk averse citizens will prefer sharing windfalls to the lottery-like alternative of leaving them in the hands of the lucky few. While private common law litigation cannot capture and redistribute windfalls, public legislation can. And governments have adopted policies to capture windfalls, from reserving undiscovered mineral rights, to the Crude Oil Windfall Profits Tax of 1980, to the just compensation standard of eminent domain law. Opportunities to capture and redistribute windfalls should grow in tandem with modern governments' expanding ability to collect and process information.
 
Article
Financially-distressed companies can melt like ice cubes. In Chrysler’s Chapter 11 bankruptcy, the finding that the debtor was losing $100,000,000 per day justified the hurry-up sale of the company to Fiat. This assertion -- that the firm is a rapidly wasting asset -- is frequently offered, and accepted, in support of quick sales under section 363(b) of the Bankruptcy Code. This raises a policy question: is this speed and streamlined process a “bug” or “feature?” Do these hurry-up going-concern sales create a speed premium and maximize value for the bankruptcy estate, or do they facilitate collusive deals between incumbent managers, senior creditors and potential purchasers? The answer is, “a little bit of both.” It is, therefore, crucial to distinguish between sales where the court and parties have good information about the value of the company and the costs of delay, from those in which melting ice cube leverage is used to exploit information asymmetries and to lock-in a favored deal. To accomplish this sorting and reduce transactional leverage, we seek to allocate the increased risks of foregone process to the beneficiaries of the sale. We propose that a reserve – the Ice Cube Bond – be set aside at the time of sale to preserve any potential disputes about valuation and priority for resolution after the sale has closed. This approach retains expedited section 363 sales as a useful way to quiet title in complex assets and preserve value, while preserving the opportunities for negotiation and adjudication contemplated by the Bankruptcy Code.
 
Article
Section 162(a)(1) of the Internal Revenue Code, as construed by the IRS, effectively allows publicly traded businesses to deduct an unlimited amount of executive compensation for corporate tax purposes. In contrast, the IRS has consistently used § 162(a)(1) to limit corporate deductions for executive compensation paid by closely held corporations. This Comment proposes that, in light of recent scholarship, the IRS has misapplied § 162(a)(1), since publicly traded corporations may lack the appropriate oversight and incentive infrastructure to set executive compensation reasonably. Therefore, this Comment proposes that the IRS should use § 162(a)(1) to render such compensation nondeductible, just as the Service examines the deductibility of compensation paid by privately held corporations.
 
Article
By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion. Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown. From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative, executive, and judicial authority in administrative agencies, broad delegations of administrative discretion, limitations on presidential control of administration, and ubiquitous opportunities for judicial review of executive action, represents a radical transformation of original constitutional understandings. There is much truth in this conventional vision of nineteenth-century governance, but far from the whole truth. This Article begins a project of recovering the lost one hundred years of federal administrative law. For statutory sources, agency practice, and common law actions in the Federalist period reveal a quite different and more nuanced picture. From the very beginning some administrators were clothed with broad statutory authority, made general rules, adjudicated cases, were located outside of departments, and were tightly bound to congressional oversight and direction. And common law actions provided a judicial review that was often more intrusive and robust than we observe in contemporary practice. If there was an original understanding of the structure, function, and control of administration in early federal law, Federalist practices suggest that it was a much more complex and pragmatic understanding than our conventional account admits.
 
Article
In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nation confounded their ambitions. While reclaiming democracy they also built administrative capacity. This Article examines administrative structure and accountability in the Republican era in an attempt to understand the "administrative law" of the early nineteenth century. That inquiry proceeds through two extended case studies: the Jeffersonian Embargo of 1807-1809 and the multi-decade federal effort to survey and sell the ever-expanding "public domain." The first was the most dramatic regulation of commerce attempted by an American national government either before or since. The second began a land office business that dominated the political and legal consciousness of the nation for nearly a century. The embargo tested the limits of administrative coercion and revealed an escalating conflict between the necessities of regulatory administration and judicial review in common law forms. The sale of the public domain required the creation of the first mass administrative adjudication system in the United States and revealed both the ambitions and the limits of congressional control of administration in a polity ideologically devoted to assembly government. Together these cases describe the early-nineteenth-century approach to a host of familiar topics in contemporary administrative law: presidential versus congressional control of administration, the propriety and forms of administrative adjudication, policy implementation via general rules, and the appropriate role of judicial review. Perhaps most significantly, both the embargo episode and the efforts to privatize the public domain demonstrate the singular importance of internal administrative control and accountability in maintaining neutrality and consistency in the application of federal law. This "internal law of administration" remains both a crucial and an understudied aspect of American administrative governance.
 
Top-cited authors
C. Sunstein
  • Harvard University
Lewis Kornhauser
  • New York University
Ian Ayres
  • Yale University
Robert Mnookin
  • Harvard University
Oona Hathaway
  • Yale University