116 Yale L.J. 1170 (2007)

A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, courts usually interpret ambiguous statutes to conform to international law and understand them not to apply outside of the nation’s territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in particular contexts the costs of deference to foreign interests are lower than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such cases, executive interpretations should be permitted to trump the comity doctrines, as long as those interpretations are reasonable. This conclusion is supported both by considerations of institutional competence and by the distinctive position of the President in the domain of foreign affairs. It follows that if the executive wants to interpret ambiguous statutes to conflict with international law or to apply extraterritorially, it should be permitted to do so. The analysis of the interpretive power of the executive can be justified by reference to the Chevron doctrine in administrative law, which similarly calls for deference to executive interpretation of statutory ambiguities. Sometimes the Chevron doctrine literally applies to executive interpretations; sometimes it operates as a valuable analogy. At the same time, the Chevron principle is qualified by doctrines requiring a clear congressional statement, especially when constitutionally sensitive rights are involved. These claims have many implications for legal issues raised by the war on terror, including those explored in the Hamdi and Hamdan cases.

116 Yale L.J. 1284 (2007)

The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the same is true of errant irreversible gains. When a preliminary injunction wrongly issues, then, there are actually two distinct errors to count: the irreparable harm wrongly imposed on the nonmoving party, and the irreparable benefit wrongly enjoyed by the moving party. Similarly, when a preliminary injunction is wrongly denied, there are again two errors: the irreparable harm wrongly imposed on the moving party, and the irreparable benefit errantly accorded the nonmoving party. The conventional approach to preliminary relief mistakenly accounts for only half the problem.

Read Professor Lichtman's Pocket Part essay on this topic, Irreparable Benefits.

Read Professor Porat's response, When Do Irreparable Benefits Matter? A Response to Douglas Lichtman on Irreparable Benefits.

Read Professor Ben-Shahar's response, Against Irreparable Benefits.

Read Aaron Petty's response,  The Relative Weight of Irreparable Benefits .

116 Yale L.J. 1344 (2007)

Most consumers learn about tenant-screening reports only when a landlord points to an item on such a report as the reason for rejecting an application and provides the tenant with a copy of that report as required by law. Legal scholars have criticized these reports for more than thirty years, however, observing that they are prone to error, open to abuse, and generally contrary to established public policies. This Note examines existing mechanisms used to regulate these reports and finds them inadequate, endorsing instead one state’s approach of “choking” information flows by disclosing eviction records only when the landlord prevails in court. In a digital age in which personal information is easily aggregated, court records should not be a vehicle for automatic damage to an individual’s renting prospects and reputation.