Volume 35, Issue 2

For Freedom of Expression, For Due Process, and For Yale: The Emerging Threat to Academic Freedom at a Great University

José A. Cabranes

We have good news and bad news today. The good news is that we are printing in hard copy the Woodward Report on Freedom of Expression at Yale. The bad news is that we need to reprint the Woodward Report. We are dealing today with interrelated developments at Yale that threaten freedom of expression and the institutions that protect it, including faculty due process rights, sometimes described as academic tenure. Many writers on this subject understandably focus on the fate of students. But it is important to recognize that today’s developments are also redefining the rights of faculty—and the role of faculty in the governance of this University. These are developments that, if not addressed, ultimately threaten Yale’s place among the great universities of the world.

Fare Trade: Reconciling Public Safety and Gender Discrimination in Single-Sex Ridesharing

Elizabeth Brown

The expansive growth of ridesharing companies like Uber and Lyft has changed the landscape of transportation services. These companies allow individuals to request a ride almost anywhere from a vetted driver by using a mobile app and paying for that ride online. The industry leaders are Uber and Lyft, whose modes of service differ only slightly from each other. Uber is the world’s most valuable company backed solely by private venture capital and dominates the ridesharing industry in the United States. But based on a number of allegations, customer experiences, and reports, the service might be unsafe for women. Uber has also been accused of grossly underreporting the incidence of sexual assault complaints lodged by its customers.

Solving the Riddle of Rape-by-Deception

Luis E. Chiesa

When people lie to obtain money, we call it theft. When they lie to enter private property, we call it trespass. When they lie to obtain sex . . . we have no idea what to call it.

Indigenizing Equality

M. Alexander Pearl & Kyle Velte

Cleo Pablo is a citizen of the Ak-Chin Tribal Community. She lives on the Ak-Chin Indian Reservation, located within the geographical boundaries of Maricopa County within the state of Arizona. Under the Ak-Chin Constitution, she qualifies for enrollment in the Ak-Chin Tribe—in other words, she is eligible for tribal citizenship and has all the rights and privileges that go along with it. Among those benefits are tribally funded housing, food stipends, household services, educational scholarships, and perhaps health care. Cleo Pablo is a lesbian. She has a partner, Tara Roy, a non-Indian. Like all other couples, they wish to live together and have their relationship confirmed under the laws of the sovereign under which they live—in this case, the Ak-Chin Indian Community. However, Ak-Chin law mandates that marriage exist only between a man and a woman. Furthermore, Ak-Chin law requires that couples living together in tribal housing on the reservation be married. Accordingly, Ms. Pablo and Ms.

Arbitration as Wealth Transfer

Deepak Gupta & Lina Khan

Over the last few decades, the Supreme Court has steadily expanded the reach of forced arbitration clauses—clauses that companies embed in the fine print of standard-form contracts to deny consumers and workers the right to band together to sue those corporations in court. While the Court’s decisions that set this trend in motion trace back to the 1980s, the real game changers have been more recent: 2010’s Rent-A-Center v. Jackson, holding that arbitration clauses must be enforced even when they are part of an illegal contract; 2011’s AT&T Mobility v. Concepcion, granting companies the unfettered right to enforce clauses that ban class actions; and 2013’s American Express Co. v. Italian Colors Restaurant, requiring enforcement even when doing so has the practical effect of completely precluding redress under a law enacted by Congress.

Federalism in a Time of Autocracy

Ian Millhiser

We live in dark times.

The President of the United States—Donald Trump—promised to “open up our libel laws” to punish news outlets that print coverage he does not like. He threatened to jail his political opponents. He called for certain political protesters to be stripped of citizenship. He pledged to kill the innocent family members of terrorists—an illegal order that, according to former Air Force General Michael Hayden, could set up the untenable circumstance in which military personnel refuse to obey an order from their civilian commander-in-chief. At one point, he called for “a total and complete shutdown of Muslims entering the United States.” And he opened his campaign by labeling Mexican immigrants criminals and “rapists.”

Meanwhile, his Attorney General—Jeff Sessions—prosecuted a former aide to Dr. Martin Luther King, Jr. after that aide helped black people in Alabama to vote. Sessions’ Department of Justice faces a Supreme Court that has actively dismantled much of the legal framework protecting voting rights.

The Immigration Consequences of Relocating Guantanamo Detainees

Sarah Weiner

Shortly after he took office in 2009, President Obama issued an executive order to close the military detention facility at Guantanamo Bay, Cuba. At that time, the United States was holding over 200 detainees at the facility, most of whom had already been detained for at least several years. In his executive order, the President noted “the significant concerns raised by these detentions, both within the United States and internationally” and argued that “closure of the facilities [at Guantanamo] . . . would further the national security and foreign policy interests of the United States and the interests of justice.” The President ordered that the detention facility be closed within one year, by January 2010. But that deadline came and went, and Guantanamo stayed open.

A War Developing Countries Cannot (Afford To) Win

Yusef Al-Jarani

David Aufhauser, the General Counsel of the U.S. Treasury Department from 2001 to 2004, opined that “[t]error traffics in three forms of currency: hate, counterfeit religion and money.” Since September 11, 2001 (9/‌11), the United States has led an international regime to counter global terrorism. One of the primary objectives of this regime has been to disrupt the cash flow of foreign terrorist organizations. Efforts to combat the financing of terrorism have borrowed heavily from anti-money laundering (AML) legislation used to combat drug cartels and enterprise crime in the late twentieth century. These efforts, however, fundamentally misunderstand terrorist finance and the evolving nature of the global terrorist threat, which has increasingly relied on “lone wolf” attacks. This brand of terror differs from organized crime in that it does not require a steady cash flow to achieve its objectives. Furthermore, AML strategies fare poorly against the tactics that terrorists now use to make and move money, from self-financing to the hawala system.

Public Choice and the Mandatory Minimum Temptation

John Ehrett

Contemporary debates over the problem of mass incarceration have often explored the relationship between booming prison populations and mandatory minimum sentencing schemes—provisions in state and federal law that constrain the sentencing discretion of the court system, requiring convicted persons to endure a fixed punishment prescribed by specific provisions of criminal law. For decades, proponents of criminal justice reform have critiqued this sentencing model at great length, noting how it perpetuates racial disparities and strips adjudicators of the ability to consider potential mitigating factors.