Articles, notes, and symposia pieces published in CLR’s print volumes.
Print Edition
Color as a Batson Class in California
Batson v. Kentucky prohibits race-based discrimination in the exercise of peremptory challenges during jury selection in criminal and civil jury trials. In People v. Bridgeforth, New York’s highest court recently expanded this well-established protection to include discrimination based on skin color. Courts throughout the nation should adopt…
The Pharmaceutical Access Act: An Administrative Eminent Domain Solution to High Drug Prices
In this Note, Brittany S. Burns recommends that Congress enact a statute, which she calls the Pharmaceutical Access Act (“PAA”). The PAA, inspired by the Atomic Energy Act of 1954, would create a new executive agency with the power to grant compulsory licenses to pharmaceutical patents. She argues that this intervention would remedy high drug…
The Constitutionalization of Disparate Impact—Court-Centered and Popular Pathways: A Comment on Owen Fiss’s Brennan Lecture
At Yale Law School, I had the great fortune of studying with Owen Fiss, who provided a riveting introduction to constitutional law. He encouraged me to go into teaching at a time when there were scarcely any women on the faculty at Yale. His work on antisubordination—the group-disadvantaging principle—orients much of my work on inequality…
Second Redemption, Third Reconstruction
In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection…
Racial Justice in the Age of Diversity
It is a special honor to be here with Owen Fiss, my first-year small group professor at Yale Law School. Among the many giants of the legal academy at Yale, it is fair to say that none more powerfully motivated me to probe the law’s relationship to justice…
The Accumulation of Disadvantages
The continued subjugation of a historically disadvantaged group is the product of policies that cut across all walks of life. Members of such a group are personally shunned, their educational opportunities are impaired, the jobs open to them are limited, and they are confined…
The Keyes of Constitutional Law
Before beginning law school in 2001, I knew the names of an embarrassingly small number of judicial decisions. The only case names that I readily possessed were Brown v. Board of Education, Roe v. Wade, Bush v. Gore, and a smattering of other opinions that had managed to escape the narrow confines of the legal community. I did, however, know the name of at least one relatively obscure opinion…
#I🔫U: Considering the Context of Online Threats
The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common but also magnify the potential for a speaker’s innocent words to be misunderstood. People speak differently on different social media platforms, and architectural features of platforms…
Lactation Law
Over the last twenty years, state legislatures have passed a number of laws designed to support and encourage breastfeeding, including laws that protect public breastfeeding and lactating employees in the workplace. Both sides of the political aisle cheered the passage of these laws, and more recent federal laws, as an unqualified positive for women, families…
Rethinking Political Power in Judicial Review
For decades, scholars have argued that the proper judicial response when democratically enacted laws burden politically powerless minority groups is more aggressive judicial review. This political process approach, however, has fallen on deaf ears at the Supreme Court since the 1970s. Justice Scalia was thus accurate (if not politic) when…
Are Women’s Spaces Transgender Spaces? Single-Sex Domestic Violence Shelters, Transgender Inclusion, and the Equal Protection Clause
Transgender survivors of intimate partner violence (IPV) face unique struggles in finding safe and inclusive housing as they seek reprieve from violence. Domestic violence shelters are often marked “women-only” with the goal of creating spaces for female empowerment, wherein women learn feminist principles of liberation and find a “sisterhood” of support by forging healthy female…
All Disputes Must Be Brought Here: the Future of Multidistrict Litigation
Multidistrict litigation (“MDL”) is an immensely powerful tool. In an MDL, cases that share a common question of fact are consolidated in a single district for pretrial proceedings. MDLs abide by the general principle that governs all transfers within the federal system: because transfer is no more than a “housekeeping measure,” an action retains the…
Legislating for Litigation: Delegation, Public Policy, and Democracy
When Congress enacts command-and-control regulation, it chooses between implementation through litigation and courts, through bureaucracy, or through a hybrid regime. Since the late 1960s, the frequency with which Congress has relied on civil litigation for frontline enforcement of statutes grew dramatically, and with it grew rates of federal statutory litigation and the role of courts…
Redefining the Legality of Undocumented Work
Undocumented workers face a new harsh reality under the Trump administration. Federal law’s prohibition of undocumented work has facilitated exploitation because workers fear being brought to the attention of immigration authorities. The current administration’s aggressive stance towards worksite enforcement will only exacerbate abuses against undocumented workers, such as wage theft…
Remedial Convergence and Collapse
This Article describes and interrogates a phenomenon of spillovers across remedies—how the legal standards governing the availability of remedies in cases regarding executive violations of individuals’ constitutional rights, particularly in the area of policing, have converged around similar ideas that narrow the availability of several different remedies. A similar set of limits restricts the availability…
A Theory of Corporate Joint Ventures
In a corporate joint venture, two corporations—often competitors—collaborate on a project. But how can corporations be partners and competitors at the same time? Though it sounds like a contradiction, such collaborations are commonplace. Many of the most familiar products come from corporate joint ventures, from high-technology like solid-state drives for laptops or rocket boosters for…