Category Archives: Yale Law Journal

Using Regulatory Law to Reform Prison Conditions



When prisoners are served food with bugs in it or given medical care by unlicensed physicians, where can they turn for help? Believe it or not, such prison conditions may not be deemed cruel and unusual punishment under the Eighth Amendment, but they could violate existing administrative regulations that set standards for food safety, medical licensing, building safety, and other so-called “free-world laws.” Professor Aaron Littman joins us to discuss his recently published Article, Free-World Law Behind Bars, to discuss the difficulties of prison condition litigation and how regulatory law could provide much needed relief. We open this episode on a conversation with Roy Bolus, former president of the Project for A Calculated Transition (PACT) about his first-hand experience surviving the harsh conditions of incarceration and his inspirational story of service. We also speak with renowned prison-condition litigator Easha Anand of the MacArthur Justice Center on the many possible paths reformers and advocates can take to better prison conditions.


When Lawyers Lie: The Future of Legal Ethics Rules After the 2020 Election



How should courts’ approaches to lawyer misconduct change following the flood of baseless lawsuits filed to undermine the valid results of the 2020 election? In this episode, we speak with both Professor Renee Knake Jefferson about her proposals for reforming standards of ethical conduct to apply both inside and outside the courtroom, and litigator David Fink of Fink Bressack about his experience winning the largest sanctions award to date against Donald Trump’s “Kraken” team of lawyers.

For more on this topic, take a look at Professor Jefferson’s Essay, Lawyer Lies and Political Speech, published in the Yale Law Journal Forum.


The Lasting Impact of the Insular Cases



The Insular Cases are a series of Supreme Court cases about the status of U.S. territories that were decided over a century ago. Professor Aziz Rana and attorney Celina Romany join us in this episode to speak about the lasting impact the Insular Cases have had on American constitutional law and on the status of U.S. territories like Puerto Rico.

To learn more about this topic, take a look at Professor Aziz Rana’s Essay in the Yale Law Journal Forum: How We Study the Constitution: Rethinking the Insular Cases and Modern American Empire.


Power-Shifting in Policing



The need for transformative change to policing is clear. But the United States continues to grapple with what that change should look like – and who should have the power to decide. In this episode, Professor Jocelyn Simonson speaks to why we should view the regulation of policing through what she terms “the power lens,” and outlines the importance of shifting power over policing to directly impacted communities. Tracey Corder, a Deputy Campaign Director for the Action Center on Race and the Economy and an organizer with the People’s Coalition for Safety and Freedom, joins us to discuss her work and explore what power-shifting looks like in practice.

To learn more about this topic, take a look at Professor Jocelyn Simonson’s Article, Police Reform Through a Power Lens, recently published in the Yale Law Journal.


New Fronts in the Battle for Voting Rights



While we often consider questions of who is eligible to vote and how votes are counted, the question of where votes are counted is just as important. In this episode, Professor Nicholas Stephanopoulos joins us to discuss the impact a race-blind baseline would have in racial vote-dilution case. Next, Alaa Chaker and Justin Farmer speak to us about prison malapportionment and their involvement in a federal court case challenging this practice, NAACP v. Merrill.

To learn more about this topic, take a look at The Race-Blind Future of Voting Rights, by Professors Jowei Chen and Nicholas Stephanopoulos, and Prison Malapportionment: Forging a New Path for State Courts, by Alaa Chaker – both recently published in the Yale Law Journal.


The Impact of Executive Defiance on Immigrants



What happens if a federal court issues an order in an immigration case, but the government does not obey it? As we’ll learn in this episode, it could mean that a young person who is eligible for relief under the Deferred Action for Childhood Arrivals (DACA) program cannot have their application processed, or that immigrants will be deported in violation of federal-court orders. Armando Ghinaglia – a law student in Yale Law School’s Worker and Immigrant Rights Advocacy Clinic who has been working on DACA litigation and is a former DACA recipient himself – and Professor Jennifer Lee Koh join us to explain this important issue.

To learn more about this topic, take a look at Professor Jennifer Lee Koh’s Feature, Executive Defiance and the Deportation State, recently published in the Yale Law Journal.


Who Gets the Ventilator? Disability Rights and COVID-19 Medical Rationing



The COVID-19 pandemic has forced healthcare systems to make decisions about how to ration medical treatments – and many have chosen to explicitly de-prioritize people for these treatments based on pre-existing disabilities. Professor Samuel Bagenstos and attorney Alison Barkoff join us to talk about their work on COVID-19 medical rationing advocacy and what lessons we can take away from how this issue has played out.

To learn more about this topic, take a look at Professor Samuel Bagenstos’s Essay, Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols, recently published in the Yale Law Journal Forum.


The Power of the Many: Harnessing Law and Organizing to Combat Inequality



When wealthy individuals are spending record amounts on electoral politics and the Supreme Court has refused to limit campaign spending, how can the law help low-income communities assert their democratic rights? Professors Kate Andrias and Benjamin Sachs join us to talk about the power of mass-membership organizations to equalize the political voice of citizens who lack the political influence that comes from wealth. Ai-jen Poo, co-founder and Executive Director of the National Domestic Workers Alliance, shares insights from her work building power on the ground.

To learn more about this topic, take a look at Professor Kate Andrias and Professor Benjamin I. Sachs’s article Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, recently published in the Yale Law Journal.


Antitrust Law and the Future of the Gig Labor Market



Gig economy workers at companies like Uber and Lyft often don’t have access to labor protections like minimum wage, overtime pay, workers’ compensation, and unemployment insurance. But gig workers risk liability under antitrust laws if they attempt to organize. Author Eugene Kim and former union leader Javier Morillo join us on this episode to talk about how to overcome this barrier to organizing – and why we should.

To learn more about this topic, take a look at Eugene Kim’s Note, Labor’s Antitrust Problem: A Case for Worker Welfare, recently published in the 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.