Category Archives: Yale Law Journal

Professor Crespo on Probable Clause Pluralism

Professor Andrew Manuel Crespo discusses his recent article, Probable Clause Pluralism. The constitutionality of a search or seizure typically depends on the connection between the target of that search or seizure and some allegation of illegal behavior—a connection assessed by asking whether the search or seizure is supported by probable cause. But as central as probable cause is to the Fourth Amendment, no one seems to know what it means or how it operates. The Supreme Court insists it is “not possible” to define the term, calling instead for the application of “common sense” to “the totality of the circumstances.” This article seeks to navigate, and resolve, this tension between doctrinal flexibility and structure. To do so, it urges a rejection of an often invoked—if not always followed—tenet of Supreme Court doctrine: probable cause unitarianism. That dominant idea holds that whatever probable cause means, it ought to entail the same basic analytic method and be judged by the same substantive standard from one case to another. But on close inspection, the Supreme Court’s jurisprudence contains seeds of an alternative, superior conception of probable cause, which this article terms probable cause pluralism. On this view, probable cause can comfortably encompass distinct analytic frameworks and substantive standards, each of which can be tailored to different Fourth Amendment events. From there, the article proposes a three-part framework for determining the constitutionality of a search or seizure, which can better equip scholars and jurists to reason through the cases to come and assess the cases that have come before.

Professor Gould on Law Within Congress

Professor Jonathan Gould talks about his recent article, Law Within Congress. Recognizing that procedure has long shaped how Congress operates—from bills about civil rights to tax policy to presidential impeachments—this article explores parliamentary precedent in Congress. These precedents constitute a hidden system of law that has received little scholarly attention, despite being critical to shaping what goes on in Congress. Understanding parliamentary precedent requires understanding the institutional positions of the parliamentarians, the nonpartisan officials who resolve procedural disputes. Drawing on novel interviews with parliamentarians and the legislative staffers who work closely with them, this article illuminates the intersection of law and politics in the making of parliamentary precedent. A better understanding of parliamentary precedent contributes to our understanding of how Congress operates, and the fault lines that emerge in an age of polarization and hardball. These dynamics also hold lessons for public law more broadly.

Professors Grunwald & Rappaport on The Wandering Officer

Professors Grunwald and Rappaport talk about their recent article, The Wandering Officer. “Wandering officers” are law-enforcement officers fired by one department, sometimes for serious misconduct, who then find work at another agency. This Article shares the findings of the authors’ systematic investigation of wandering officers over thirty years in Florida, possibly the largest quantitative police-misconduct study of any kind. They find that in any given year, an average of just under 3 percent of all officers in Florida were “wandering officers.” These wandering officers seemed to face difficulty finding work, and were more likely to be fired from their next job or to receive a complaint for a “moral character violation.” The authors consider why departments nonetheless hire wandering officers and suggest potential policy responses.

Professor Joy Milligan on Plessy Preserved: Agencies and the Effective Constitution

Professor Joy Milligan talks about her recent article, Plessy Preserved: Agencies and the Effective Constitution. Federal officials enforced a “separate but equal” framework for public housing long after Brown invalidated that principle. This administrative regime wrote segregation into U.S. cities, operating as the effective Constitution for decades. This Article asks why a liberal, reformist agency chose that path—and what it teaches about administrative constitutionalism.      

Professor Sharon Jacobs on The Statutory Separation of Powers

Professor Sharon Jacobs talks about her recent article, The Statutory Separation of Powers. Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies might seek expansion of their authority vis-à-vis their independent counterparts. After exploring a case study involving the Department of Energy and the Federal Energy Regulatory Commission, the article concludes with recommendations for how Congress, agencies, and the judiciary might mitigate these tendencies and preserve the statutory separation of powers as a meaningful safeguard against the perils of concentrated executive policy-making authority.

Professor Nora Freeman Engstrom on The Lessons of Lone Pine

Professor Nora Freeman Engstrom talks about her recent article, The Lessons of Lone Pine. Over the past three decades, Lone Pine orders have become a fixture of the mass-tort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with certain evidence—or else face dismissal. So far, the orders have been mostly heralded as a way to expedite the resolution of complex cases.Yet it’s not so simple. Engstrom analyzes the drawbacks of Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and misguided insistence on using a binary screen. Given these problems, she concludes that courts ought to scale back their use of these orders. She ties Lone Pine orders to broader currents that are quietly transforming contemporary civil litigation, such as the growth of multidistrict litigation and managerial judging. Weaving these currents together, her study offers fresh insights to deepen—and complicate—our understanding of these profoundly influential phenomena.

Bans with Blocher

Professor Joseph Blocher talks about his recent article, Bans. He argues that, in certain areas of constitutional law, judges are particularly skeptical of laws that can be described as bans. For instance, some courts have held that laws that ban an entire “class of arms” are not subject to the usual means-ends balancing tests, but rather are automatically invalid. But, as Professor Blocher explains, figuring out when a law bans something is harder than it seems. Imagine a law prohibiting the sale of pink guns. Is that a general gun regulation, or a ban on pink guns? Professor Blocher describes three approaches to defining bans (functional, formal, and purposivist), and says, at least in Second Amendment doctrine, a functionalist approach is the best way for courts to resolve these issues.

How to Save the Supreme Court with Epps & Sitaraman


Professors Dan Epps and Ganesh Sitaraman talk about their recently published Feature, How to Save the Supreme Court. They argue that Justice Brett Kavanaugh’s Supreme Court confirmation represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s impartiality, its power to settle important legal questions will be in jeopardy. Moreover, many Democrats are already calling for changes like court-packing, which could provoke further escalation that would damage the Court’s image and the rule of law. The coming crisis can be stopped. But this will require a radical rethinking of how the Court has operated for more than two centuries. The Feature outlines a new framework for Supreme Court reform. The authors evaluate existing proposals and offer two of their own: the Supreme Court Lottery and the Balanced Bench. We can save what is good about the Court, they argue, but only if we are willing to transform it.

Cynthia Estlund on What We Should Do After Work


Will advances in robotics, artificial intelligence, and machine learning put vast swaths of the labor force out of work or into fierce competition for the jobs that remain? Or, as in the past, will new jobs absorb workers displaced by automation? On this episode of the Yale Law Journal Podcast, co-hosts Cody Poplin and Emily Shire interview Professor Cynthia Estlund about her recently published Article, What Should We Do After Work? Automation and Employment Law, which tackles this topic head on. The Article argues that these questions have profound implications for the fortress of rights and benefits that has been constructed on the foundation of the employment relationship, and it charts a path for reforming that body of law in the face of justified anxiety and uncertainty about the future effect of automation on jobs.

YLJ Podcast: David Pozen on Transparency’s Ideological Drift


On this episode of the Yale Law Journal Podcast, co-hosts Cody Poplin and Sasha Dudding interview Professor David Pozen about his recently published Article, Transparency’s Ideological Drift. The Article traces transparency’s drift in the United States from a progressive to a more libertarian, or neoliberal, orientation and offers some reflections on the causes and consequences—and on the possibility of a reversal.