Author: Yale Law Journal


The Yale Law Journal: Vol. 122, Issue 5

The Yale Law Journal

Volume 122, Issue 5
March 2013


The Yale Law Journal Online: Equality’s Frontiers Series

The Yale Law Journal Online recently published a series of essays based on remarks delivered at Equality’s Frontiers, a panel discussion celebrating Justice Ginsburg’s gender-equality jurisprudence and analyzing its relationship with new developments in the law of equality. Contributors include Judith ResnikKenji YoshinoReva B. SiegelIan ShapiroMelissa Murray, and Cary Franklin.

The discussion preceded Justice Ginsburg’s Gruber Distinguished Lecture in Women’s Rights, held on October 19, 2012 at Yale University’s Battell Chapel. A transcript of Justice Ginsburg’s conversation with Linda Greenhouse is also available online.


The Yale Law Journal Online: New Essays

The Yale Law Journal Online has just published Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court, by Alex Hemmer, and Emerging Counties? Prospects for Regional Governance in the Wake of Municipal Dissolution, by Ashira Pelman Ostrow. 

Ostrow writes that

[i]n Dissolving Cities, Professor Michelle Wilde Anderson suggests that municipal dissolution could enable counties to serve regionalist goals. This Essay argues that, on balance, municipal dissolution will not trigger the emergence of counties as agents of regional reform. Modern metropolitan regions span city, county, and state borders. As the scale of the region expands, state and local governments, including counties, will increasingly lack the territorial jurisdiction and regulatory capacity to respond to complex metropolitan problems. The Essay concludes by considering the role that the federal government can play, and has historically played, in facilitating regional collaboration at the appropriate scale. 

As Hemmer explains, 

Summary disposition is a procedural innovation—added only belatedly to the Supreme Court’s rules—in which the Court dispenses with a case without briefing or oral argument. It presents a puzzle for students of appellate decisionmaking: how can a case be significant enough to merit the Court’s consideration, but not significant enough to warrant the benefits of adversarial procedure? Commentators have asserted that the Roberts Court is more likely than its predecessors to use summary disposition to resolve cases, but this Essay presents the first systematic look at its use of that procedure. The Essay finds that—contrary to general understanding—the Roberts Court has not used summary disposition more than its predecessors did. Rather, it has used the procedure in different and potentially dangerous ways.

Preferred citations:

Alex Hemmer, Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court, 122 YALE L.J. ONLINE 209 (2013),

Ashira Pelman Ostrow, Emerging Counties? Prospects for Regional Governance in the Wake of Municipal Dissolution, 122 YALE L.J. ONLINE 187 (2013),


The Yale Law Journal: Vol. 122, Issue 4

The Yale Law Journal

Volume 122, Issue 4
January 2013


The Yale Law Journal Online: A Defense of Immigration-Enforcement Discretion

The Yale Law Journal Online has just published A Defense of Immigration Enforcement Discretion: The Legal and Policy Flaws of Kris Kobach’s Latest Crusade, an essay by David A. Martin. The essay disputes the legal claims set forth in a recent lawsuit that seeks to invalidate a policy of the Department of Homeland Security. The policy gives protection against deportation to unauthorized immigrants who came to the country as children, and the Department defends it as an exercise of prosecutorial discretion. The plaintiffs claim that no such discretion exists, because the Immigration and Nationality Act, as amended in 1996, requires that virtually all aliens who entered without inspection be detained and placed in removal proceedings whenever encountered by immigration agents. Closely examining the statutory language and drawing on the author’s own extensive involvement as General Counsel of the Immigration and Naturalization Service in the 1996 consideration of legislative amendments and administrative implementation, the essay makes the case that the plaintiffs’ argument misunderstands both Congress’s intent and consistent agency practice before and after those amendments.

Preferred Citation: David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade, 122 YALE L.J. ONLINE 167 (2012),


The Yale Law Journal: Vol. 122, Issue 3

The Yale Law Journal

Volume 122, Issue 3
December 2012



The Yale Law Journal Online: Liquid Assets: Groundwater in Texas

The Yale Law Journal Online has just published Liquid Assets: Groundwater in Texas, an essay by Gerald Torres that addresses the piecemeal management of groundwater resources in the American West. A recent Texas Supreme Court case, Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012), has significantly transformed the groundwater regime in Texas, and its changes are expected to inform discussion throughout the region, where water is scarce and valuable. Torres argues that Day has “sown confusion about the capacity of the state to regulate natural resources, while ignoring the science that ought to drive policy decisions.” He begins his critique with an analysis of the Texas groundwater-management regulatory system that existed prior to Day. He then examines the concept of ownership rights for groundwater in place. Finally, in light of Day, he considers alternative approaches to allocating the value and utility of groundwater.

Preferred citation: Gerald Torres, Liquid Assets: Groundwater in Texas, 122 YALE L.J. ONLINE 143 (2012),


The Yale Law Journal: Volume 122, Issue 2

The Yale Law Journal

Volume 122, Issue 2
November 2012



The Yale Law Journal Online: Lawrence Meets Libel

The Yale Law Journal Online has just published Lawrence Meets Libel: Squaring Constitutional Norms with Sexual-Orientation Defamation, an essay by Anthony Michael Kreis. Kreis identifies a trend in defamation law: many state statutes and judicial opinions continue to treat false allegations of homosexuality as actionable libel despite the growing acceptance of homosexuality nationwide. He argues that, “[w]hile defamation law functions as a legitimate governmental mechanism for vindicating harm to one’s reputation, it cannot constitutionally do so if it irrationally intertwines state action with class-based animus.” In his view, “recent sexual-orientation jurisprudence . . . stands for the clear proposition that government-backed stigmatization of gay and lesbian people is inconsistent with the Due Process Clause of the Fourteenth Amendment.” 

Preferred citation: Anthony Michael Kreis, Lawrence Meets Libel: Squaring Constitutional Norms with Sexual-Orientation Defamation, 122 YALE L.J. ONLINE 125 (2012),


The Yale Law Journal Online: Losers’ Rules

The Yale Law Journal Online has recently published Losers’ Rules, an essay by Nancy Gertner that provides “a firsthand and more detailed account of employment discrimination law’s skewed evolution” based on Gertner’s seventeen years on the federal bench. Gertner discusses the one-sided legal doctrines that characterize discrimination law. She suggests that asymmetric decisionmaking, in which judges write detailed opinions when granting summary judgment but not when denying it, changes the treatment of employment cases in two respects: “First, it encourages judges to see employment discrimination cases as trivial or frivolous, as decision after decision details why the plaintiff loses. And second, it leads to the development of decision heuristics–the Losers’ Rules–that serve to justify prodefendant outcomes and thereby exacerbate the one-sided development of the law.” Gertner then offers several proposals for remedying this problem.

Preferred citation: Nancy Gertner, Losers’ Rules, 122 YALE L.J. ONLINE 109 (2012),