Author: Yale Law Journal


Yale Law Journal: Volume 123, Issue 8


The Meaning of the Civil Rights Revolution

The final issue of Volume 123 of the Yale Law Journal contains a symposium of essays on the origins and status of the civil rights project fifty years after the Civil Rights Act of 1964, using Bruce Ackerman’s We the People: The Civil Rights Revolution (2014) as a focal point and a foil.



Randy E. Barnett, We the People: Each and Every One

Justin Driver, Reactionary Rhetoric and Liberal Legal Academia

Sanford Levinson, Popular Sovereignty and the United States Constitution: Tensions in the Ackermanian Program

David A. Strauss, The Neo-Hamiltonian Temptation

Tomiko Brown-Nagin, The Civil Rights Canon: Above and Below

Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements

David A. Super, Protecting Civil Rights in the Shadows

Samuel R. Bagenstos, Universalism and Civil Rights (with Notes on Voting Rights After Shelby)

Cary Franklin, Separate Spheres

Rogers M. Smith, Ackerman’s Civil Rights Revolution and Modern American Racial Politics

Richard Thompson Ford, Rethinking Rights After the Second Reconstruction

Sophia Z. Lee, A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci

John D. Skrentny, Have We Moved Beyond the Civil Rights Revolution?

Deborah Hellman, Equal Protection in the Key of Respect

Randall L. Kennedy, Ackerman’s Brown

Kenji Yoshino, The Anti-Humiliation Principle and Same-Sex Marriage

Bruce Ackerman, De-Schooling Constitutional Law


Yale Law Journal: Volume 123, Issue 7


The Yale Law Journal: Volume 123, Issue 3

The Yale Law Journal

Volume 123, Issue 3
December 2013


The Yale Law Journal: Vol. 123, Issue 2

The Yale Law Journal

Volume 123, Issue 2
November 2013


The Yale Law Journal: Vol. 123, Issue 1

The Yale Law Journal

Volume 123, Issue 1
October 2013


The Yale Law Journal: Vol. 122, Issue 7

The Yale Law Journal

Volume 122, Issue 7
May 2013

David Schleicher, City Unplanning
Elizabeth A. Reid, Ernie Drain, Aaron Lowers, Prison Law Writing Contest Results

The Yale Law Journal: Vol. 122, Issue 6

The Yale Law Journal

Volume 122, Issue 6
April 2013


The Yale Law Journal Online: New Content

The Yale Law Journal Online recently published Ineffective in Any Form: How Confirmation Bias and Distractions Undermine Improved Home-Loan Disclosures, an essay by Debra Pogrund Stark, Jessica M. Choplin, and Mark A. LeBoeuf. The essay

examines three experiments that tracked eye fixations as participants reviewed home-loan disclosure forms. The experiments revealed confirmation biases in which participants read to confirm what they were told (e.g., “Your loan is at 4%”) and then failed to look for contradictory evidence such as rate adjustments. Improved forms reduced confirmation biases, but that improvement was undermined when the experimenter engaged participants in distracting conversation. These results demonstrate that improving disclosure forms cannot sufficiently protect consumers. They also suggest that mortgage counseling is necessary for many borrowers.

Preferred citation:

Debra Pogrund Stark, Jessica M. Choplin & Mark A. LeBoeuf, Ineffective in Any Form: How Confirmation Bias and Distractions Undermine Improved Home-Loan Disclosures, 122 YALE L.J. ONLINE 377 (2013),


The Yale Law Journal Online: Implementing Aggregation in Law

The Yale Law Journal Online has just published Implementing Aggregation in Law: The Median Outcome Rule, an essay by Alon Cohen. Cohen argues that

[i]n multiple-claim lawsuits, courts tend to address each claim separately, thereby disregarding valuable information about the defendant’s misconduct that might be gained by considering claims together. Ignoring that information may lead to the misalignment of liability with wrongdoing. To avoid such distortion, Ariel Porat and Eric Posner have argued in The Yale Law Journal that courts should adjudicate multiple-claim lawsuits in the aggregate. They do not specify the method to implement this novel idea, however, leaving it susceptible to several complications that might undermine its merits. To deal with these potential complications, this Essay introduces the concept of the “median outcome rule.”

Preferred citation:

Alon Cohen, Implementing Aggregation in Law: The Median Outcome Rule, 122 YALE L.J. ONLINE 359 (2013),


The Yale Law Journal Online: New Content

The Yale Law Journal Online recently published a Summary Judgment series on the Supreme Court’s recent decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., featuring Essays by Jacob S. Sherkow and Rebecca S. Eisenberg.

Sherkow writes that

[t]he Mayo Court’s novel test for patent eligibility—whether or not an invention involves “well-understood, routine, conventional activity, previously engaged in by researchers in the field”—focuses on how an invention is accomplished rather than what an invention is. That concern with the method of invention poses several normative, statutory, and administrative difficulties. Taken seriously, the “how” requirement will likely have broad effects across all levels of patent practice.

And Eisenberg comments on the legacy of Mayo and the significance of an upcoming Supreme Court case concerning patent eligibility:

The Supreme Court’s decision last Term in Mayo v. Prometheus left considerable uncertainty as to the boundaries of patentable subject matter for molecular diagnostic inventions.  First, the Court took an expansive approach to what counts as an unpatentable natural law by applying that term to the relationship set forth in the challenged patent between a patient’s levels of a drug metabolite and the indication of a need to adjust the patient’s drug dosage. And second, in evaluating whether the patent claims add enough to this unpatentable natural law to be patent eligible, the Court did not consult precedents concerning the patentability of claims involving natural laws and natural products. Instead, it turned to two seemingly inconsistent decisions that reached opposing conclusions concerning the patent eligibility of industrial methods that used mathematical algorithms. The Court’s analysis invites challenges to many issued patents, while offering little guidance for resolving them. This Term, in the Association for Molecular Pathology case, the Court has another opportunity to clarify the meaning of its exclusion of natural phenomena from patent eligibility.

The Yale Journal Online also published an Essay by Alec Ewald entitled Escape from the “Devonian Amber”: A Reply to Voting and Vice. Ewald’s Essay

replies to Richard Re and Christopher Re’s Voting and Vice. That article, recently published in The Yale Law Journal, demonstrates that the inclusion of the phrase “other crime” in Section 2 of the Fourteenth Amendment was no accident, and the authors contend that widespread support for criminal disenfranchisement in the Reconstruction Congress should enhance the restriction’s status today. This Essay argues that those who wrote disenfranchisement into the U.S. Constitution did so from a context far removed from the views to which Americans adhere today when they talk about voting and political equality. Despite the fact that some Republicans made principled arguments contrasting criminal disenfranchisement with African-American enfranchisement, citizens and legislators who propose to abolish or restrict disenfranchisement neither dishonor nor render incoherent the Reconstruction Amendments.

Preferred citations:

Jacob S. Sherkow, And How: Mayo v. Prometheus and the Method of Invention, 122 YALE L.J. ONLINE 351 (2013),

Rebecca S. Eisenberg, Prometheus Rebound: Diagnostics, Nature, and Mathematical Algorithms, 122 YALE L.J. ONLINE 341 (2013),

Alec Ewald, Escape from the “Devonian Amber”: A Reply to Voting and Vice, 122 YALE L.J. ONLINE 319 (2013),