yale law journal essays

The Water District and the State

In much of the American West, local special districts with undemocratic governance structures and archaic boundaries dominate water governance. In some places, they are expanding their reach into new policy realms. This Article explains how these governance systems evolved, why they are problematic, and how state governments can respond.

Reconstructing Critical Legal Studies

Had the critical legal studies movement never existed, it would have to be invented today. That movement framed law as a forceful instrument of domination but one compatible with both functional and interpretative underdeterminacy. Its discoveries are indispensable to any successor venture, including the current law and political economy movement.

Auto Clubs and the Lost Origins of the Access-to-Justice Crisis

A century ago, auto clubs offered an astonishing array of legal services, representing members in civil and criminal cases, on both sides of the proverbial “v.” But in the 1930s, bar associations decimated these clubs, alongside other group-legal-service providers—and, we argue, sowed the seeds of the current access-to-justice crisis.

The Eyes-On Doctrine

Across the germinal period of American constitutional and penological history, a ubiquitous, cohesive body of law gave force to the following view: the judicial power includes supervisory authority over prison government and conditions of confinement. This Note argues for a witting revival of that commonsense regime.

The Political Economy of Arbitration Law

The prevalent academic critique of arbitration, the access-to-justice critique, fails to account for arbitration’s influence on how firms organize themselves. This Note offers a new critique of arbitration from a political economy perspective, arguing that today’s highly restrictive arbitration law greatly benefits firms organized as gig platforms. 

Against Ventriloquizing Children: How Students’ Rights Disguise Adult Culture Wars

This Essay argues against the pursuit of students’ rights, which function mainly as a smokescreen behind which adults have advanced their own partisan agendas in our culture wars. Independent rights for students are both theoretically untenable and politically damaging to our liberal democracy.

“Safety, in a Republican Sense”: Trump v. United States , Democracy, and an Antisubordination Theory of the Criminal Law

Democratic governance requires holding the powerful to account. This Essay therefore proposes a broad antisubordination theory of the criminal law which grapples directly with disparities in power, rather than obscuring them under the guise of formal equality. Neither formal equality nor its alternative, prison abolitionism, can adequately protect democracy.

The Effects of 401(k) Vesting Schedules—in Numbers

In 2022, over 1.87 million Americans ceased employment before satisfying their employer’s 401(k) plan vesting schedule, causing them to forfeit nonvested employer contributions. This Essay uses data to demonstrate the effects of using vesting schedules and highlights companies who had the most affected workers or amassed significant forfeitures in 2022.

The Education Justice

author. Robert R. Slaughter Professor of Law, Yale Law School; Law Clerk for Justice Sandra Day O’Connor, 2006-07.

In June 2007—as my year with Justice O’Connor began drawing to a close—she stopped by my office for a friendly chat late one afternoon. Rather than physically knocking, she playfully intoned the

Introduction

Introduction to the special issue on state and local governance.

Many are well-acquainted with Justice Brandeis’s metaphor that states serve as laboratories of democracy. While dicta in the 1932 decision, New State Ice Co. v. Liebmann , 1 Brandeis’s words have taken hold in legal scholarship and subsequent jurisprudence for nearly a century since. However, what is often left out

Lessons from My Mentor, Justice Sandra Day O’Connor

author. Circuit Judge, United States Court of Appeals for the Ninth Circuit; Law Clerk for Justice Sandra Day O’Connor, 2001-02. I thank my law clerks Rianna Hidalgo and Becca Hansen for their helpful edits to drafts of this tribute.

I had the great fortune to clerk for Justice O’Connor in

Featured Content

Lock them™ up: holding transnational corporate human-rights abusers accountable.

In the increasingly globalized modern economy, large corporate actors have long operated with relative impunity for transnational human-rights abuses committed in the name of profit maximization. This Collection explores perspectives from a range of voices engaged in the fight for corporate accountability in both the United States and abroad.

Administrative Law at a Turning Point

Administrative law faces a critical juncture. Settled doctrines ranging from deference to agency interpretations of statutes to delegations of executive power have been destabilized. And earlier this year, Justice Breyer—himself an administrative-law scholar—retired from the Supreme Court. We publish this Collection as a tribute to his judicial legacy.

Law and Movements: Clinical Perspectives

As law-school clinics assume a growing role in legal education, instructors, students, and community partners have used clinics to test novel, sometimes radical lawyering approaches. This Collection draws from those experiments, using case studies from family defense, immigration, and worker rights to explore the relationship between law and social movements.

Announcing the First-Year Editors of Volume 134

Announcing the second annual academic summer grants program, volume 133’s emerging scholar of the year: robyn powell, announcing the eighth annual student essay competition.