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The civil justice system is obliged to aggregate what would otherwise be individual lawsuits, to provide practical and affordable redress and binding resolution, when thousands, or millions, of consumers, investors, or businesses are harmed by defective mass-marketed products or deceptive practices. This course will explore judicial approaches and plaintiffs' and defendants' strategies in navigating the modern forms of aggregate litigation: class actions, multidistrict litigation, federal/state coordinated proceedings, and mass torts.
Mass Incarceration Seminar
R. Jones, Jr
Mass Incarceration: Seminar (20113). 2 units. This seminar examines the growth and consequences of American detention centers, jails, and prisons in this age of “mass incarceration.” Nearly 2.2 million people are behind bars, roughly one in every 100 adults, far more per crime than any industrialized nation. If we include persons on parole or probation, one adult in 23 is under correctional supervision. With taxpayers paying costs in excess of $75 billion each year and with African Americans and Latinos overrepresented in the American justice system, some scholars, advocates, and policy makers argue that mass incarceration represents one of the greatest social injustices of our time. This class is taught during a moment of mass activism and bipartisan support for justice reform. As the movement shifts from protests to politics, this class will examine the origins and consequences of mass incarceration, as well as the policy issues and solutions to fix a “justice” system that destroys lives and harms communities, and ask the hard questions:
• What accounts for the growth of incarceration?
• What are its moral, fiscal, and public safety consequences?
• What were the precursors of mass incarceration?
• How do we reimagine policing in America?
• What roles do race, gender, and poverty play in perpetuating injustice?
International Taxation (20100). 3 units. This course will survey the basic United States rules and policies concerning the taxation of international (i.e., cross-border) transactions. The course will cover the major U.S. income tax rules governing the taxation of foreign persons (including corporations) investing and doing business in the United States ("inbound transactions") and the taxation of U.S. persons (including corporations) investing and doing business abroad ("outbound transactions"). Importantly, although countries' rules on the taxation of international transactions vary, there is a surprising degree of commonality across systems as to basic issues and many design features. Thus, a good understanding of the U.S. system for taxing cross-border transactions provides a foundation for evaluating and anticipating issues confronting the international tax systems of other jurisdictions, and for engaging in comparative analysis.
International Capital Markets: Law and Institutions
International Capital Markets: Law and Institutions (20593). 3 units. This subject will examine, from a regulatory perspective, internationalization of capital markets. An introductory section will look at the role of international capital markets in the Global Financial Crisis (2008-9), and the subsequent implications. The course will look at the regulatory techniques, many pioneered in the European Union, used in international capital markets, and how they have developed in response to changing markets. The course will consider the role of international financial institutions, such as the IMF, The World Bank, the Financial Stability Board and the International Organization of Securities Commissions (IOSCO), as capital raisers, standard setters, international coordinators and financial sector assessors. Part of the course will be devoted to specific US regulatory responses to the internationalization of capital markets: the creation of a ‘parallel’ system of regulation of non-US participants in US markets and the balancing of the need for accommodations against the political imperative of the ‘level playing field.' Major US initiatives which continue to shape international markets, such as Regulation S, Rule 144A, the Multijurisdictional Disclosure System and ADRs will be discussed. A third part of the course will look at the future of capital markets in the European Union and the UK. The European Union has embarked upon an ambitious ‘Capital Markets Union’ initiative as well as overseeing a massive regulatory realignment under a new supranational regulator, the European Securities and Markets Authority (ESMA). The City of London, once the world’s pre-eminent international financial center and the financial capital of Europe, is struggling to redefine itself and its regulatory framework post-Brexit. The last part of the course looks beyond the ‘transatlantic corridor,' to Islamic capital markets, China and other emerging and transitional economies. Depending on class size and the level of interest, there may be the opportunity for student presentations in the last two or three weeks of the course.
Immigration Law (20611). 4 units. This survey of immigration law and policy explores several broad and complex questions: Who is a citizen of the United States and what does citizenship mean? What are the criteria and processes for noncitizens to come to the United States on a temporary or permanent basis? Under what circumstances may noncitizens be forced to leave the United States? Which actors and institutions have authority to establish, administer, and enforce rules concerning immigration and citizenship? What substantive and procedural rights do noncitizens have? To examine these questions, we will study a variety of different sources of law—constitutional provisions, statutes, regulations and other administrative materials, judicial opinions, and treaties and other sources of international law—and materials placing the contemporary immigration law regime in historical, political, and social context. Specific topics will include the constitutional authority to regulate immigration, the legal and institutional frameworks governing admission and expulsion of noncitizens, the role of the judiciary in ensuring the legality of official action, the criteria and processes for naturalization, the issues arising from unauthorized migration, the relationship between the immigration and criminal law systems, the role of states and localities in regulating immigration-related matters, the intersection between immigration and national security law, a brief introduction to refugee and asylum law, and contemporary proposals for immigration reform.
Alternative Dispute Resolution
Alternative Dispute Resolution (20314). 3 units. The vast majority of legal disputes are resolved prior to trial and transactional attorneys need to be effective negotiators and know how to consider and how to address disputes should they arise in the future. This course is designed to help you explore and reflect on what it means to be an effective advocate and to practice important skills. You will be expected to learn and apply theories from a broad range of disciplines including law, economics, psychology, sociology and management. These theories will be explored in class discussions and practiced through highly interactive simulations. We will focus on the use of negotiation, mediation and arbitration in making deals and in resolving disputes. We will conduct simulations in a variety of contexts including face-to-face via Zoom and email. We will look at how ethics should influence our behavior. I hope this course will help you identify what works best for you in a variety of settings. All of this will be done in a very intensive setting requiring preparation, attention and commitment.
Upon completion of this course, students will be able to:
1. Identify basic tensions in finding agreement among parties, and how those tensions manifest in conflict situations.
2. Identify negotiating styles, and evaluate where each type of negotiating style might be successful or problematic.
3. Discuss cognitive and implicit bias, and the role such biases can play in conflict and negotiation.
4. Calculate a reservation value, BATNA, and bargaining zone and describe the methodology for determining them.
5. Describe the basic principles of mediation, the role of the mediator, parties and counsel.
6. Describe how arbitration differs from other forms of dispute resolution.
7. Identify criteria for selecting between mediation and arbitration and drafting of dispute resolution clauses.
8. Discuss the ethical obligations of a lawyer with respect to candor when representing a client.
Bioethics and Law
Bioethics and Law (20571). 2 or 3 units. Participants in this seminar will discuss the regulation by the federal government and, more importantly, by the states, of a number of current issues in biomedical ethics. Topics to be discussed include end-of-life care and aid-in-dying; abortion, assisted reproduction and related family-law issues; experimentation on human subjects and on human tissues; organ recruitment, donation and transplantation; and issues relating to informed consent and privacy. We will take brief comparative looks at other countries' regulations in some areas.
Collective Action in the Workplace: Organizing, Unions, and Collective Bargaining
Collective Action in the Workplace: Organizing, Unions, and Collective Bargaining (20213). 3 units. This course will examine labor law -- the law governing employee organizing, union representation, and collective bargaining in the United States. The primary focus will be on the private sector and thus on the National Labor Relations Act of 1935, as amended, but the course will also examine key legal controversies in public section labor relations.
Criminal Procedure: Adjudication
Criminal Procedure: Adjudication (20270). 3 units. This course will consider the workings of the criminal justice system, beginning with the bail decision. We will cover bail, prosecutorial discretion, discovery, jury trial rights, plea bargaining, sentencing, double jeopardy, and appeals. the course will focus on the leading Supreme Court precedents and the ongoing efforts for reform.
Disability Law and Culture
Disability Law and Culture (20027). 2 units. The scope and meaning of disability depend upon the attitudes and cultural context in which the law operates. This seminar therefore stands at the intersection of disability law, theory, and culture. The course materials will introduce key statutory provisions, cases, and doctrines in U.S. disability law, and discussions will center on the dialogue between these laws and attitudes to disability in mainstream culture and in disability communities in this country. Material from psychology, economics, literature, film, and the arts will be examined alongside the legal readings.
Topics include the following: the challenge of defining disability; social, medical, and alternative models of disability; attitudes to disability from inside and outside a disability rights perspective; the relations among different kinds of disabilities, including physical and mental, psychiatric and cognitive; the nature and causes of disability discrimination; the proper scope, potential, and limits of legal regulation; the potential for disability arts and culture to shape societal and legal understandings; the role of extra-legal knowledge in the project of responding to disability discrimination; racial justice critiques of disability studies; and the relationship between “disability” and “race” in law and society. Moreover, students will bring their own topics of interest into the classroom through the facilitated discussion assignment, which serves as a final project for the course.
European Union Law in a Time of Nationalist Illiberalism
G. de Burca
European Union Law in a Time of Nationalist Illiberalism (20282). 2 units. Recent years have seen the spread of political illiberalism in many parts of the world, including in Europe and the US. The turn to illiberalism generally features a weakening of democratic checks and balances, erosion of the rule of law, undermining of independent institutions and media, scapegoating of migrants and other ‘outsiders’, resistance to international institutions, and a rollback of human rights protections. The European Union is an experiment in regional integration which seems to exemplify the opposite to nationalist illiberalism. As an elite-driven project of economic integration (including labor migration), it sought to reunite Eastern and Western Europe through a process of democratization, with a strong emphasis on legal integration, independent supranational institutions, and the rule of law. However, after a decade during which the EU has been beset by various economic and other crises, the spread of Euroscepticism and the rise of nationalism and illiberalism across the continent warrant a closer look at this unique regional polity. Based on an examination of some of the major constitutional doctrines which have shaped the EU as a legal and political system, including the supremacy of EU law, the central role of the European Court of Justice, protection for fundamental rights and respect for the rule of law, the course will reflect on the extent to which these doctrines may have helped to fuel the rise of nationalist illiberalism. It will also assess the adequacy of the EU’s responses to nationalist illiberalism and the alternatives that might be considered in the years ahead.