Copyright (c) 2009 Yale Law School All rights reserved. http://digitalcommons.law.yale.edu/student_papers Recent documents in Student Scholarship Papers en-us Sun, 08 Nov 2009 23:25:19 PST 3600 http://digitalcommons.law.yale.edu/student_papers/95 http://digitalcommons.law.yale.edu/student_papers/95 Sat, 07 Nov 2009 08:35:12 PST Sheff v. O'Neill ushered in a new wave of education reform litigation that will challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Article proposes a new desegregation remedy--the sliding scale remedy--to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students' academic outcomes. It balances concerns over local control and separation of powers with the court's need to effectuate rights, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies. Christopher Suarez http://digitalcommons.law.yale.edu/student_papers/94 http://digitalcommons.law.yale.edu/student_papers/94 Sun, 06 Sep 2009 12:31:02 PDT External legal rules are only one of many ways to direct behavior in a desired direction. People sustain cooperation in a variety of situations using systems of self-governing internally-developed and internally-enforced norms and morals. These systems have a feedback relationship with external rules. Norms and morals both influence, and are influenced by, externally-imposed legal systems. This Article examines norms' and morals' ability to sustain cooperation, both in laboratory settings and in everyday experiences. The relationship between norms and morals on the one hand, and law and order on the other, is then examined, using quantitative datasets measuring dimensions of culture and the rule of law. This examination builds on prior work that emphasizes, perhaps too strongly, the impact of legal origins - civil vs. common law - on law and order. Finally, this Article considers the feedback relationship between legal rules and norms and morals, exploring how rules may replace internal governance both explicitly and, through their expressive function, implicitly. The specific case of legal rules' influence on culture adopted through the naturalization process is considered. Peter Molk http://digitalcommons.law.yale.edu/student_papers/93 http://digitalcommons.law.yale.edu/student_papers/93 Sun, 06 Sep 2009 10:28:28 PDT This article addresses the Holocaust-restitution litigation of the late 1990s, which resulted in spectacular settlements totaling over $9 billion and culminated with an Executive Agreement between Germany and the United States in 2000. Prominent law scholars such as NYU Professor Burt Neuborne and Michael Bazyler, author of Holocaust Justice: The Battle for Restitution in America's Courts (2003) and Holocaust Restitution: Perspectives on the Litigation and its Legacy (2006), have celebrated these lawsuits as a model for international human rights. Neuborne has extolled the litigation as the dawn of an era of "lex Americana," in which multinational corporations (MNCs) have a "moral obligation to live by American rules of fundamental fairness, both substantive and procedural, if they wish to participate in the remarkable success of this economic, social, and political culture." Bazyler is equally enthusiastic: "[T]he Holocaust restitution cases [are] beco! ming the principal model for victims and their representatives seeking to right past wrongs." Legal scholarship has thus contributed to a heroic image of plaintiffs slaying the Goliath of global corporations in international human-rights litigation. This fits larger trends in foreign relations law that Anne-Marie Slaughter and David Bosco identify as "Plaintiff's Diplomacy." In Plaintiff's Diplomacy, individuals directly shape foreign affairs by suing in the courts, thus bypassing the traditional diplomacy between states. According to this model, private parties can no longer be shut out. Bazyler's summary of the Holocaust-era litigation provides an example: "The 'one-two punch' of American lawyers first filing the class action lawsuits against the European defendants [MNCs] and American officials at the state and local levels then threatening to exclude the defendants from profitable U.S. [business] deals was the perfect strategy" But Bazyler vastly exaggerates the importance of litigantion. The State Department had already been seeking to settle su! rvivors' claims for several years in advance of any lawsuits. This article makes three original contributions. First, contrary to the heroic narrative of "plaintiffs' diplomacy," it argues that the United States' political branches contributed more to the successful settlements than litigation. Instead of individuals mobilizing the courts to change the behavior of recalcitrant states, the process worked in reverse. States-parties led the way. Second, using historical evidence, this article examines the survivors' legal claims, which sounded in restitution. Because the Holocaust survivors' succeeded in large settlements and because their suffering was beyond question, scholars have simply taken it for granted that they advanced strong legal claims. Historical evidence shows that their claims were surprisingly weak. Third, this article tests Bazyler and Neuborne's hypothesis that the Holocaust-era litigation provides a model for successful lawsuits against MNCs that perpetrate human-rights violations. By examining the legacy o! f the Holocaust-era lawsuits in other international human-rights litigation, this article shows that the plaintiffs' restitutionary theories of recovery neither have nor can provide such a model. Michael Allen http://digitalcommons.law.yale.edu/student_papers/92 http://digitalcommons.law.yale.edu/student_papers/92 Fri, 07 Aug 2009 10:19:58 PDT This essay argues that the ongoing U.S.-driven "Global War on Terror" stands apart from similar state campaigns in its special focus on confronting "foreign fighters" - armed transnational non-state Islamists operating outside their home countries - in places where the U.S. is no less foreign. This global hunt for foreign fighters animates diverse attempts to exclude similarly "out of place" Muslim migrants and travelers from legal protection by reshaping laws and policies on interrogation, detention, immigration, and citizenship. Yet at the same time, certain other outsiders - namely the U.S. and its allies - enjoy various forms of exemption from local legal accountability. This essay illustrates this braided logic of exclusion and exemption by juxtaposing the problems of extraordinary rendition and military contractor impunity in both post-war Bosnia-Herzegovina and post-invasion Iraq. This framework - which predates and will likely outlast the Bush administration - undermines the rule of law and state-building efforts and occludes crucial questions surrounding the legitimacy of how U.S. global power is exercised. This essay employs treaties, Bosnian, Iraqi, and U.S. statutes, cases, and regulations to reframe post-Cold War debates about nation-building and post-9/11 arguments about the laws of war. Darryl Li http://digitalcommons.law.yale.edu/student_papers/91 http://digitalcommons.law.yale.edu/student_papers/91 Fri, 01 May 2009 08:30:50 PDT This Article examines the role obstruction charges play in the regulatory framework covering modern public corporations and their members. It finds that prosecutors' reliance on obstruction charges undermines the legitimacy of substantive rules for enterprise behavior. This pattern not only causes significant inefficiency on its own, but indicates a broader problem with multilayer regulation. That is, in a previously regulated arena, the pre-existing legal environment may warp a new set of rules in undesirable ways. The Article concludes by proposing a means to address this problem generally and remove unnecessary costs associated with the compliance regime specifically. Ilya O. Podolyako Administrative Law Commercial Law Contracts Corporations Criminal Law and Procedure Employment Practice http://digitalcommons.law.yale.edu/student_papers/88 http://digitalcommons.law.yale.edu/student_papers/88 Wed, 01 Apr 2009 14:31:04 PDT This Article attempts to reroute a burgeoning area of campaign finance scholarship and reform. Though many previous proposals have enshrined liberty or equality as the sole animating value to pursue through doctrinal and political means, few have considered the impact of campaign finance regulation on citizen participation. Those that have proposed participation as a goal often remain tied to unworkable or self-defeating notions of equality. In building an alternative model of maximizing participation, this Article rejects the premise that direct political action such as volunteering embodies a superior form of participation to contributions, but recognizes the externalities that the latter form may produce. It proposes a new mechanism for reform: a cap and trade policy in which citizens can increase their rights to contribute to political candidates or parties based by purchasing permits from other contributors. Derived from proposals to regulate pollution in environmental economics, this mechanism serves as a helpful alternative to ineffective and inefficient contribution limits. William J. Rinner Administrative Law Constitutional Law Economics Law and Economics Law and Society Legislation Politics Public Law and Legal Theory http://digitalcommons.law.yale.edu/student_papers/87 http://digitalcommons.law.yale.edu/student_papers/87 Sun, 29 Mar 2009 08:24:55 PDT President Barack Obama has convened a multiagency taskforce whose remit includes considering whether the U.S. should develop a new system of 'preventive detention' to hold terrorist suspects. American scholars and advocates who favor the establishment of a 'preventive detention' regime in the United States frequently point to comparative examples in support of their argument. At the same time, advocates and scholars opposed to the introduction of such a system often turn to comparative law to bolster their arguments against 'preventive detention.' Thus far, however, the scholarship produced by both sides of the debate has been limited in two key respects. Firstly, there have been definitional inconsistencies in the literature--the term 'preventive detention' has been used over-broadly, to describe a number of different kinds of detention, with very little acknowledgment of the fundamental differences between these alternative regimes. Secondly, the debate has been narrow in scope--focusing almost exclusively on 'preventive detention' in three or four other (overwhelmingly Anglophone) countries. This Article seeks to advance the debate about 'preventive detention' by moving beyond each of these limitations. First, the Article defines, analyzes, and differentiates between the different kinds of 'preventive detention.' Second, the Article broadens the scope of the debate by comparing the systems of terrorism-related 'preventive detention' in use in thirty-two different countries. The Article constructs a taxonomy of 'preventive detention,' based on core principles of international law, to distill the key attributes of the preventive detention regimes in each of the countries surveyed. Using the taxonomy, the Article proposes that there are three different overarching frameworks used to detain terrorist suspect detainees: (1) the pre-trial detention framework; (2) the immigration detention framework; and (3) the national security detention framework. This Article proposes that U.S. policymakers contemplating possible future approaches to the detention of suspected terrorists should move beyond the inapposite and misleading question of whether to introduce 'preventive detention,' and should instead determine which of these three frameworks offers the most appropriate approach to the detention of terrorist suspects. The Article concludes with the argument that, once this determination is made, U.S. policymakers should conclude that a version of the pre-trial detention framework approach would be most suited for use in the United States. Stella J. Burch Comparative Law Human Rights Law International Law http://digitalcommons.law.yale.edu/student_papers/86 http://digitalcommons.law.yale.edu/student_papers/86 Sun, 15 Mar 2009 08:15:27 PDT Isn't it nonsensical to suggest, as Susan Sontag does, that "the pornographic imagination says something worth listening to?" The relationship between constitutional law and pornography is usually considered in a unidirectional way. The most common questions are what does the law say about pornography or what should the law say about it. This is nothing but a legal monologue; sometimes passionate, often judgmental, almost always self-righteous but, all in all, nothing but a monologue. In this paper, I take the opposite road, exploring the aesthetics and narrative of pornography, its underlying anthropology and sociology, and its psychological appeal to our imagination, as an illustrative resource for some debates within constitutional theory. I call this particular reversal of the legal monologue an exercise in Political Pornography. Fernando Munoz L. Arts and Literature Constitutional Law Law and Society Politics Sexuality and the Law http://digitalcommons.law.yale.edu/student_papers/85 http://digitalcommons.law.yale.edu/student_papers/85 Sun, 15 Mar 2009 08:11:12 PDT Constitutional theory greatly benefits by the use of intellectual resources from disciplines such as political theory and philosophy of language. In this work, such elements are combined to elaborate on the agenda of constitutional theory and distinguish it from other projects. The emphasis is put on the possibility of understanding the constitution as a political grammar, providing its users -the participants of the politico-constitutional process broadly speaking- with syntactic rules and semantic signposts to formulate their ideas, projects, strategies. This view can account for the radical instability of constitutional meaning -in other words, disagreement- by pointing to the so-called separation of signifier and signified made prominent by contemporary philosophy, reinforced by the fact that the recursiveness and self-reference of written language makes the syntactic functions of the constitution open to the same instability that its semantic contents have. Regarding the constitution, just as any other text, we can proclaim the death of the author. Fernando Munoz L. Constitutional Law Jurisprudence Law and Society Politics Public Law and Legal Theory http://digitalcommons.law.yale.edu/student_papers/84 http://digitalcommons.law.yale.edu/student_papers/84 Wed, 04 Mar 2009 12:35:41 PST Establishing that the Framers understood Washington to be the model for the Commander-in-Chief Clause, this Article uses an originalist approach to advance contemporary debate regarding military tribunals. In analyzing the legality of the Bush Administration's actions based upon the war powers of the United States' first commander in chief, this Article uses extensive primary source materials to detail the functioning of American military courts under General George Washington. It uncovers evidence of the Executive's obligation to turn American citizens over to civilian courts. At the same time, it also finds original intent support for the President's power to convene military tribunals for foreign enemy combatants without Congressional authorization. This approach's startling conclusions have profound implications for contemporary debate. Brian L. Beirne Constitutional Law Human Rights Law Military Law