120 Yale L.J. 690 (2011).
Liberal allowance of rescission followed by restitution has, for centuries, unsettled legal authorities who fear it as a threat to commercial order or other normative values. Responding to these fears, authorities have limited the ease with which rescission may be elected. Their responses, however, are often excessive and based on misunderstandings of the remedy’s effects. Rescission, followed by restitution, may in fact promote contracting by allowing parties to create efficient incentives. Concern about the stability of contracting is not entirely unfounded, but the problem is not primarily due to the ease of rescission following breach; rather, the problem concerns the remedy that follows rescission. This Article presents an argument for liberal rescission followed by limited ensuing remedies. Modern reforms and proposals seem to embrace the opposite route, restricting access to rescission while, at times, allowing for generous ensuing remedies. These reforms and proposals, we show, are the real threat to contractual stability.
120 Yale L.J. 728 (2011).
Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary’s dependence on comparators—those who are like a discrimination claimant but for the protected characteristic—as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today’s mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed in second-generation intersectionality, identity performance, and structural discrimination theories. By treating comparators as an essential element of discrimination, instead of as a heuristic device to help discern whether discrimination has occurred, courts have largely foreclosed these other theories from consideration. At the same time, courts have further shrunk the very idea of discrimination by disregarding a central lesson from harassment and stereotyping jurisprudence: discrimination can occur without a comparator present. The comparator methodology retains its appeal, despite these deficiencies, because its empirical patina permits courts to evaluate discrimination claims without appearing to engage in a subjective analysis of workplace dynamics. Given the complex nature of both identity and discrimination, however, the comparisons produce a false certainty at best. By contrast, alternate methodologies, including the contextual consideration favored in harassment and stereotyping jurisprudence as well as the hypothetical comparator embraced in European law, offer a meaningful framework for matching discrimination law and norms to workplace facts, while preserving judicial legitimacy. With comparators dislodged from their methodological pedestal, we may yet recover space for the renewed development of discrimination jurisprudence and theory.
120 Yale L.J. 814 (2011).
School choice policies, which allow parents to select among a range of options to satisfy compulsory schooling for their children, have arisen from five periods of political and legal struggle. This Feature considers the shape of school choice that emerged in the 1920s education fight over Americanization of immigrants; the freedom-of-choice plans used to avoid court-ordered school desegregation in the 1950s and 1960s; magnet schools used to promote school desegregation in the 1970s until they were halted by the Supreme Court; constitutional campaigns for vouchers to pay for religious schooling; and current experiments with charter schools and other alternatives, including special-identity schools. The idea of school choice appeals to individual freedom, market competition, religious freedom, multiculturalism, and ideological neutrality. School choice programs draw new talent into schooling and offer new avenues for social integration but only if that goal becomes an explicit public commitment, shaping available choices. Otherwise, school choice can enable new forms of social separation and obscure the absence of equal opportunities for all students.
120 Yale L.J. 850 (2011).
The Bluebook: A Uniform System of Citation
By the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and The Yale Law JournalCambridge, Mass.: The Harvard Law Review Association, 19th ed., 2010, pp. xvii, 511. $32.00 (paperbound).
120 Yale L.J. 862 (2011).
Most immigrants who gain permanent residence or citizenship in the United States do so through familial relations. As a result, immigration authorities must constantly decide what constitutes a family. Unfortunately, the Immigration and Nationality Act (INA) provides little guidance. While the INA provides some definitions of what constitutes a family, the definitions generally assume a traditional view of the family in which all parental roles lie with only two individuals. This assumption creates substantial problems when applying the INA’s provisions to nontraditional families in which parental roles may be split between three or more people. Because the INA does not account for such families, it is often unclear whether the families are entitled to the plethora of immigration and citizenship benefits available to those with familial relations in the United States. In response to the lack of clarity, this Note proposes the adoption of a unified definition of family that is based on interpersonal, rather than biological, relationships. The proposed solution is consistent with existing provisions of the INA, finds support in state family law, and provides an effective way of dealing with nontraditional families.
120 Yale L.J. 910 (2011).
This Note provides a defense of the Supreme Court’s decision in Credit Suisse Securities (USA) LLC v. Billing, in which the Court reaffirmed a broad standard for determining when securities market activities are impliedly immune from antitrust liability. It argues that, contrary to criticisms leveled by several commentators, Billing’s implied immunity analysis is consistent with precedent and, moreover, that a broad grant of immunity is normatively desirable. Antitrust courts are likely to prohibit too much conduct in the securities area and to impose excessive liability even as to activities that merit prohibition. As a result, the concern with a narrow implied immunity doctrine is not just that it might produce overdeterrence ex post but that ex ante it might induce the SEC to forgo an optimal, nuanced regulatory approach in favor of completely authorizing a particular practice in order to preempt antitrust litigation.