what is civil law essay

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Civil law is a body of rules that defines and protects the private rights of citizens, offers legal remedies that may be sought in a dispute, and covers areas of law such as contracts, torts, property and family law . Civil law is derived from the laws of ancient Rome which used doctrines to develop a code that determined how legal issues would be decided. To explore this concept, consider the following civil law definition.

Definition of Civil Law

• Noun. The body of laws that govern ordinary private matters, separate from laws presiding over criminal, military, or political matters.
• Noun.  The body of law that governs private or civil rights , providing redress for wrongs by compensating the person or entity that has been wronged rather than punishing the wrongdoer.

Origin:  Late circa 1400 Late Middle English jus cilile

What is Civil Law

Emperor Justinian I ruled ancient Rome from 527 A.D. to 565 A.D. One of his lasting legacies is his rewriting of Roman law in “Corpus Juris Civilis,” (“Body of Civil Law”) which still serves as a basis for modern civil law systems worldwide.

In the United States, civil law has a couple of different meanings. In most parts of the U.S., civil law is synonymous with “ common law ,” or “ judge -made law” which relies on prior court decisions to determine the outcome of cases. The governing principle is “ Stare Decisis ,” which means that the outcome of a lawsuit depends on the outcomes of previous similar cases.

Civil Law vs. Criminal Law

Civil law and criminal law serve different purposes in the United States legal system. The primary purpose of civil law is to resolve disputes and provide compensation for someone injured by someone else’s acts or behavior. The primary purpose of criminal law is to prevent undesirable behavior and punish those who commit an act deemed undesirable by society.

In civil law, it is the injured person who brings the lawsuit. By contrast, in criminal law, it is the government that files charges. The injured person may file a complaint , but it is the government that decides whether criminal charges should be filed. A violation of criminal law is considered a crime against the state or federal government and is a violation of public law rather than private law. Civil law cases are concerned only with private law. In some instances, a person may be entitled to file a complaint, trusting the legal system to punish the wrongdoer with prosecution, while bringing a civil lawsuit to receive compensation for the damages done by the wrongdoer.

Another key difference between civil and criminal law is the standards of proof required to reach a verdict. A plaintiff need only prove his civil law case by a “ preponderance of evidence .” This standard requires that the plaintiff convince the court that, based on the evidence presented at trial , it is “more likely than not” that the plaintiff’s allegation is true.

In contrast, the standard of proof is higher in criminal law proceedings. The state must prove their case “ beyond a reasonable doubt .” The reason for this higher standard is because a person’s freedom is at stake, and the fundamental belief that convicting an innocent person is worse than allowing a guilty person to go free.

Branches of Civil Law

Civil law cases are divided into four main categories, each covering a range of issues.  See below for the types of civil cases and corresponding civil law examples.

Contract Law

Contract law deals with agreements between two or more parties, each of which is obligated to hold up their portion of the agreement. For example, two parties enter into an agreement for the lease of an apartment. The Lessor has the right to use the apartment, and the landlord receives rent money as compensation. If one party violates any of the provisions of the contract, they have committed a civil wrong known as “ breach of contract .” Generally speaking, contracts may be oral or written, however there are certain types of contracts that must be put in writing.

Tort law is a branch of civil law that is concerned with personal injury and civil wrongdoing. A tort is a civil wrong, done by one person or entity to another which results in injury or property damage , and frequently involves monetary compensation to the injured party. There are three categories of torts: negligence , intentional tort , and strict liability .

Negligence is an unintentional tort, to which there are four elements that must be satisfied.

• Duty . The defendant had a duty to act in a reasonable manner
• Breach of Duty , meaning that the defendant failed to act reasonably
• Causation . The defendant’s breach of duty must be the cause of the plaintiff’s injury or loss
• Damages . Monetary, property, or other loss

An intentional tort is a deliberate wrongdoing in which the defendant acted with intent to cause harm or injury. Some examples of intentional torts include: assault and battery , false imprisonment , fraud , invasion of privacy , and intentional infliction of emotional distress .

Strict liability is a tort that does not require actual negligence or intent to injure. It is based on an absolute or “strict” duty to ensure something is safe. Strict liability frequently comes into play with hazardous activities, such as bungee jumping. The company that owns the bungee cords, or offers the activity to consumers, has an absolute duty to make sure the bungee cords are intact, hooked up correctly, and are ready to operate safely. If a consumer is injured because the cord breaks or comes undone, the company is liable for the injury under strict liability.

Property Law

Property law covers both personal property and real property . Personal property can be tangible, such as jewelry, animals , and merchandise, or intangible such as patents, copyrights, stocks, and bonds. Real property refers to land and anything built on it that cannot be easily removed, as well as anything under the surface of the land, such as oil and minerals. There are two types of property law torts: trespass and conversion.

• Trespass to chattels refers to a defendant intentionally and physically interfering with the plaintiff’s right to possession and use of their personal property.
• Trespass to land occurs when a defendant enters plaintiff’s private property without consent of the plaintiff.
• Conversion refers to a defendant depriving a plaintiff of their personal property without the plaintiff’s consent, and then using the plaintiff’s property as his own.

For example, a lady sees her neighbor planting flowers in her garden, and notices she has five extra containers of flowers with no place to plant them. The lady decides she would like flowers in her garden as well, and takes the leftover containers of flowers without asking for permission from neighbor. The lady deprived the neighbor of her flowers, planting them instead in her own garden. The lady has committed conversion.

Family law is the branch of civil law that deals with marriage, divorce , annulment , child custody , adoption , birth, child support , and any other issues affecting families. This branch of civil law is unique in that there is not necessarily a person who committed a civil wrong. This is particularly true in states that have no-fault divorces. The family court gets involved with dividing up property and finances after a divorce, establishing child custody, child support, and spousal support among other things. Some newer areas that fall under the family law umbrella are same-sex marriage, artificial conception, surrogate motherhood, in vitro fertilization, and palimony .

Civil Case Example

While the lawsuit against McDonald’s made national headlines, the facts of the case regarding negligence, defective product, and breach of implied warranty make a fascinating civil case.

Liebeck v. McDonald’s Restaurants CV-93-02419, 1995 (N.M. Dist., Aug. 18, 1994)

This case began when 79-year-old Stella Liebeck, who was a passenger in her grandson’s car, purchased a cup of coffee at McDonald’s drive-through. While the car was still parked, Liebeck removed the lid from the cup to add some creamer to her coffee, inadvertently dropping the cup and spilling the scalding hot coffee on her lap. Liebeck suffered third-degree, deep tissue burns on her legs that required multiple surgeries and skin grafts.

Liebeck filed a civil lawsuit against McDonald’s for her injuries under the torts of strict liability and negligence. This case was controversial in that the media portrayed Liebeck’s civil lawsuit as frivolous because she was suing over coffee being too hot. However, the damages to her body, her pain and suffering, loss of income, and loss of enjoyment in life due to pain were real and she did prevail in court. The jury found that the defendant’s product (the coffee) was defective (too hot to drink) and this constituted a breach of implied warranty (the assumption that the coffee was safe to drink). The jury also found that Liebeck was twenty percent at fault for her injuries.

Related Terms

• Preponderance of Evidence – the standard of proof used in most civil trials; the jury is instructed to find for the party that has the stronger evidence, even if it is only marginally stronger than the other side.
• Beyond a Reasonable Doubt – the standard of proof used in criminal trials; a reasonable person would believe that the defendant is guilty of the crime; a higher standard than is used in civil law.
• Common Law – the body of law that is based on judicial decisions.
• Stare Decisis – the doctrine that requires judges to use prior cases as precedent on which to decide current cases.
• Case Law – judge-made law; law that is found in collections of reported cases.
• Chattels – an item of tangible, movable property; possessions that can be moved from one place to another.
• Lessor – a person who leases or rents out a property; a landlord.
• Lessee – a person to whom a lease is granted; a tenant or renter.

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111 Civil Law Essay Topic Ideas & Examples

Inside This Article

Civil law is a vast and complex area of legal study that deals with private disputes between individuals or organizations. It encompasses a wide range of topics, including torts, contracts, property, family law, and more. If you're looking for inspiration for your next civil law essay, here are 111 topic ideas and examples to consider:

• The evolution of civil law in different legal systems.
• Comparative analysis of civil law and common law systems.
• The role of civil law in protecting individual rights and liberties.
• The significance of civil law in modern society.
• Exploring the principles of civil liability.
• The concept of negligence in civil law.
• Analyzing the elements of a valid contract.
• The legal consequences of breaching a contract.
• The role of civil law in regulating business transactions.
• The impact of civil law on consumer protection.
• Exploring the legal remedies available in civil law cases.
• The concept of causation in civil law.
• Analyzing the concept of duty of care in tort law.
• The role of civil law in addressing medical malpractice.
• Exploring the legal implications of defamation in civil law.
• The impact of civil law on intellectual property rights.
• Analyzing the legal requirements for establishing a trust.
• The concept of property rights in civil law.
• The role of civil law in regulating landlord-tenant relationships.
• Exploring the legal framework for family law matters.
• The impact of civil law on child custody disputes.
• Analyzing the legal requirements for divorce in civil law.
• The concept of alimony in civil law.
• Exploring the legal implications of domestic violence in civil law.
• The role of civil law in addressing discrimination issues.
• The impact of civil law on employment contracts.
• Analyzing the legal framework for workplace harassment cases.
• The concept of wrongful termination in civil law.
• Exploring the legal requirements for filing a personal injury lawsuit.
• The role of civil law in addressing product liability issues.
• The impact of civil law on environmental protection.
• Analyzing the legal implications of construction defects in civil law.
• The concept of professional negligence in civil law.
• Exploring the legal framework for class action lawsuits.
• The role of civil law in regulating privacy rights.
• The impact of civil law on cybersecurity issues.
• Analyzing the legal implications of data breaches in civil law.
• The concept of intellectual property infringement in civil law.
• Exploring the legal framework for international civil law cases.
• The role of civil law in addressing human rights violations.
• The impact of civil law on immigration issues.
• Analyzing the legal implications of refugee rights in civil law.
• The concept of state responsibility in civil law.
• Exploring the legal framework for war crimes in civil law.
• The role of civil law in regulating international trade.
• The impact of civil law on cross-border disputes.
• Analyzing the legal implications of international investment disputes in civil law.
• The concept of diplomatic immunity in civil law.
• Exploring the legal framework for extradition in civil law.
• The role of civil law in addressing maritime disputes.
• The impact of civil law on aviation accidents.
• Analyzing the legal implications of space law in civil law.
• The concept of cultural property rights in civil law.
• Exploring the legal framework for animal rights in civil law.
• The role of civil law in regulating art transactions.
• The impact of civil law on sports law issues.
• Analyzing the legal implications of doping in civil law.
• The concept of copyright infringement in civil law.
• Exploring the legal framework for music piracy in civil law.
• The role of civil law in addressing cyberbullying issues.
• The impact of civil law on social media defamation.
• Analyzing the legal implications of revenge pornography in civil law.
• The concept of privacy rights in civil law.
• Exploring the legal framework for genetic privacy in civil law.
• The role of civil law in regulating assisted reproductive technologies.
• The impact of civil law on surrogate motherhood issues.
• Analyzing the legal implications of adoption in civil law.
• The concept of same-sex marriage in civil law.
• Exploring the legal framework for LGBTQ+ rights in civil law.
• The role of civil law in addressing gender discrimination.
• The impact of civil law on reproductive rights issues.
• Analyzing the legal implications of reproductive technologies in civil law.
• The concept of abortion rights in civil law.
• Exploring the legal framework for child custody in civil law.
• The role of civil law in addressing child abuse cases.
• The impact of civil law on child support issues.
• Analyzing the legal implications of child trafficking in civil law.
• The concept of parental rights in civil law.
• Exploring the legal framework for surrogate parenting in civil law.
• The role of civil law in addressing elder abuse cases.
• The impact of civil law on inheritance rights.
• Analyzing the legal implications of wills and trusts in civil law.
• The concept of guardianship in civil law.
• Exploring the legal framework for mental health law in civil law.
• The role of civil law in addressing addiction issues.
• The impact of civil law on involuntary commitment cases.
• Analyzing the legal implications of medical decision-making in civil law.
• The concept of patient rights in civil law.
• Exploring the legal framework for organ transplantation in civil law.
• The role of civil law in addressing end-of-life issues.
• The impact of civil law on euthanasia and assisted suicide.
• Analyzing the legal implications of medical research ethics in civil law.
• The concept of human experimentation in civil law.
• Exploring the legal framework for mental capacity in civil law.
• The role of civil law in addressing disability rights.
• The impact of civil law on accessibility issues.
• Analyzing the legal implications of discrimination against people with disabilities in civil law.
• The concept of inclusive education in civil law.
• Exploring the legal framework for employment discrimination in civil law.
• The role of civil law in addressing workplace harassment cases.
• The impact of civil law on wage and hour disputes.
• Analyzing the legal implications of workplace safety in civil law.
• The concept of workers' compensation in civil law.
• Exploring the legal framework for labor union rights in civil law.
• The role of civil law in addressing wrongful termination cases.
• The impact of civil law on workplace discrimination issues.
• Analyzing the legal implications of sexual harassment in civil law.
• The concept of workplace privacy in civil law.
• Exploring the legal framework for whistleblowing in civil law.
• The role of civil law in addressing intellectual property theft.
• The impact of civil law on trade secret protection.

These essay topics and examples provide a starting point for your exploration of civil law. Remember to narrow down your focus, conduct thorough research, and present a well-structured argument in your essay. Good luck!

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Home — Essay Samples — Law, Crime & Punishment — Judiciary — Civil Law

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Civil Law Essay Titles

• Adversarial System Vs. Civil Law: A Comparison Analysis
• The Origins of American Civil Law: Implications For State Constitutions
• The Civil Law Code of the Ancient Greeks
• Can Civil Law Countries Develop Strong Institutions?
• Civil Law and Canon Law Perspectives on Abortion
• European Sociology: Civil Law and Common Law
• A Comparison of Common Law and Civil Law Countries’ Effectiveness
• Countries With Civil Law and Their Criminal Justice Systems
• Overview of the Common and Civil Law Legal Systems
• Civil Law As A Basis For Legal and Ethical Principles
• Common and Civil Law As Market-Friendly Adaptations
• Civil Law Remedies For Competition Law Violations
• Considerations Regarding the Characteristics of Potestative Rights Under Romanian Civil Law
• Civil Law Vs. Criminal Law: Social Roles
• Criminal and Civil Law In Indonesia and the United States: A Comparison
• Civil Vs. Customary Law In Old Regime France
• The English Legal System’s Criminal and Civil Law
• The Distinction between English Civil Law and Common Law
• Criminal Vs. Civil Law In Medical Practice
• What Is the Difference between Civil Law and Criminal Procedure?

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• Distinguishing Criminal Law from Civil Law
• Criminal and Civil Law Enforcement and Forensic Science
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• Significant Differences between Common Law and Civil Law
• Comparison of Common Law and Civil Law Countries
• Asian Civil Law Jurisdictions’ Trust Law
• Sophocles’ Antigone: Moral Law Vs. Civil Law
• The Best Copyright Protection: Civil Vs. Criminal Law
• Civil Law and Catholic Teachings on Pornography
• What Is A Contract In Australian Law Under Civil and Private Law?
• Reforming A Person’s Civil Status In Romanian Civil Law
• Similarities between Mosaic Law and Criminal and Civil Law
• How the Civil Law and Social Rights Systems Work
• The Australian Legal System, Civil Law, and Criminal Justice Differences
• Limitations of Property Rights Under Civil Law
• The United States of America’s Civil Law System
• The Conflict between Civil and Divine Law

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Home Essay Samples Law

Essay Samples on Civil Law

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Best topics on Civil Law

1. Deciphering Legal Realms: Exploring the Difference Between Civil and Criminal Law

2. Some Reflections On Civil Disobedience

3. Analysis Of The Strict Liability In Tort Law

4. Role Of Judges In Common Law And Civil Law Systems

5. Scottish Civil Law Structure and Legal Personnel

6. Portrayal of Civil Actions in A Civil Action

7. Difference Between Criminal Action and Civil Action:

8. A Summary and Brief Overview of the Narrative in A Civil Action

9. Hammurabi’s Code: Then and Now

10. Jurisprudence and Different Legal System Throughout Legal History

11. Definiton of Civil Rights as an American Citizen

12. The Civil Law of Indian Legal Framework

13. Humanitarian Intervention in Civil Law and International Law

14. Types of Stealing According to the Law Classification in Malaysia

15. Gender And The Law In The Commonwealth Caribbean

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This Essay is a cautionary tale about what the law does to history. It uses a landmark ruling about whether scientific evidence is admissible in court to illustrate how the law renders historical evidence invisible. Frye v. United States established o…

The End of Jurisprudence

For more than forty years, jurisprudence has been dominated by the Hart-Dworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how the cont…

Bounded Institutions

This Essay examines two alternative designs for hierarchical institutions: “bounded” and “unbounded.” In a bounded structure, a principal decides on a bounded aggregate numerical allocation, and then an agent makes the allocation to an underly…

We the People : Each and Every One

In his book series, We the People, Bruce Ackerman offers a rich description of how constitutional law comes to be changed by social movements. He also makes some normative claims about “popular sovereignty,” “popular consent,” “higher law,” …

Reactionary Rhetoric and Liberal Legal Academia

As celebrations mark the fiftieth anniversary of the Civil Rights Act of 1964, it is essential to recover the arguments mainstream critics made in opposing what has become a sacrosanct piece of legislation. Prominent legal scholarship now appears to m…

Popular Sovereignty and the United States Constitution: Tensions in the Ackermanian Program

The very title of Bruce Ackerman’s now three-volume masterwork, We the People, signifies his commitment to popular sovereignty and, beyond that, to the embrace of democratic inclusion as the leitmotif of American constitutionalism. But “popular…

The Neo-Hamiltonian Temptation

The central force behind the development of constitutional law, according to Bruce Ackerman’s magisterial We the People: The Civil Rights Revolution, is not the courts but the People, acting through the elected officials who were responsible for th…

The Civil Rights Canon: Above and Below

This essay builds on the constitutional history of the civil rights movement from below to complement and complicate the canon identified in We the People: The Civil Rights Revolution. Like Professor Ackerman’s work, this essay embraces the concept o…

Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements

This essay was influenced by a class on Law and Social Movements that Professors Guinier and Torres taught at the Yale Law School in 2011. This essay was also informed by numerous conversations with Bruce Ackerman regarding his book that is under review in this Symposium. …

Protecting Civil Rights in the Shadows

Beyond grand constitutional moments such as the New Deal and the civil rights era, the American people also remove other, less prominent issues from majoritarian politics. This process of petit popular constitutionalism resolves numerous important issues of government …

Universalism and Civil Rights (with Notes on Voting Rights After Shelby )

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They ins…

Separate Spheres

This essay is about the mixed legacy, or incomplete achievement, of the landmark legal changes of the Second Reconstruction. This mixed legacy is one of the central themes of The Civil Rights Revolution, the third volume of Bruce Ackerman’s We the…

Ackerman’s Civil Rights Revolution and Modern American Racial Politics

Bruce Ackerman’s The Civil Rights Revolution makes a signal contribution by documenting how the major civil rights statutes of the 1960s, especially the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act, pragmatically …

Rethinking Rights After the Second Reconstruction

The Civil Rights Act was remarkably successful in fighting overt bigotry and discrimination, but much less so in combating the subtler, institutionalized disadvantages that are now the main sources of social injustice. The heroic idea of rights as protecti…

A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci

Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a co…

Have We Moved Beyond the Civil Rights Revolution?

Bruce Ackerman’s account of the Civil Rights Revolution stresses the importance of popular sovereignty and the separation of powers as the basis of constitutional significance. In this view, key spokespersons, including Martin Luther King, Jr. and Ly…

Equal Protection in the Key of Respect

This essay challenges the three related claims embedded within Professor Ackerman’s assertion that the distinctive wisdom of Chief Justice Warren’s opinion in Brown v. Board of Education lies in its recognition of segregation as institutionalized humiliation. Ack…

Ackerman’s Brown

This essay contends that, despite its revisionist ethos, Professor Ackerman’s We the People: The Civil Rights Revolution is conventional in its assessment of Brown v. Board of Education. Ackerman praises Brown as “the greatest judicial opinion of the twentieth cen…

The Anti-Humiliation Principle and Same-Sex Marriage

Bruce Ackerman’s volume on the civil rights revolution argues that the Second Reconstruction was centrally concerned with the concept of institutionalized humiliation. Ackerman inveighs against the fact that we have turned away from this “anti-humiliat…

De-Schooling Constitutional Law

For more than two centuries, constitutional law has been created by a dialogue between generations. As newcomers displace their predecessors, they begin to challenge parts of the legacy they have inherited while cherishing other elements of their tradition. The…

Five to Four: Why Do Bare Majorities Rule on Courts?

Interrogating a commonsense assumption

Federalism as the New Nationalism: An Overview

Federalism has had a resurgence of late, with symposia organized,1 stories written,2 and new scholarly paths charted. Now is an appropriate moment to assess where the new “new federalism”3 is heading. This Feature thus brings together five scholars who have made unique contribution…

From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to aband…

The Loyal Opposition

The term loyal opposition is not often used in American debates because (we think) we lack an institutional structure for allowing minorities to take part in governance. On this view, we’ve found our own way to build loyalty while licensing opposition, but it’s been a rights-…

Our [National] Federalism

“National Federalism” best describes the modern allocation of state and federal power, but it is a federalism without doctrine. Federalism today comes primarily from Congress—through its decisions to give states prominent roles in federal schemes and so to ensure the stat…

The Shadow Powers of Article I

This essay argues that the interpretive struggle over the meaning of American federalism has recently shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfa…

Negotiating Conflict Through Federalism: Institutional and Popular Perspectives

The contours of our federal system are under constant negotiation, as governments construct the scope of one another’s interests and powers while pursuing their agendas. For our institutions to manage these dynamics productively, we must understand the value the system is capab…

The Moral Impact Theory of Law

I develop an alternative to the two main views of law that have dominated legal thought. My view offers a novel account of how the actions of legal institutions make the law what it is, and a correspondingly novel account of how to interpret legal texts. According to my view, legal obl…

Pretrial Detention and the Right to Be Monitored

Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. This Essay develops two rel…

Reconsidering Citizens United as a Press Clause Case

The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a documentary film criticizing a candidate for public office falls within the core…

Tops, Bottoms, and Versatiles: What Straight Views of Penetrative Preferences Could Mean for Sexuality Claims Under Price Waterhouse

This Essay reports the results of a survey experiment that we conducted on over eight hundred heterosexual respondents to compare associational attitudes toward gay men who engage in different types of sexual practices. Specifically, we randomly assigned respondents to hear one…

The Unbundled Union: Politics Without Collective Bargaining

Why civil gideon won’t fix family law.

This Essay explains why we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. The comparable importance of these interests does not necess…

Gideon Exceptionalism?

122 Yale L.J. 2126 (2013). There is no doubt that Gideon v. Wainwright is extraordinary, but in thinking about its uniqueness, we are reminded of “American exceptionalism” and the diametrically opposed meanings that advocates have ascribed to the phrase. Gideon too is exceptional, in both the laudato…

Fifty Years of Defiance and Resistance After Gideon v. Wainwright

122 Yale L.J. 2150 (2013). In its 1963 ruling Gideon v. Wainwright , the Supreme Court declared the right to a lawyer “fundamental and essential” to fairness in the criminal courts and held that lawyers must be provided for people who could not afford them so that every person “stands equal before the…

Poor People Lose: Gideon and the Critique of Rights

122 Yale L.J. 2176 (2013). A low income person is more likely to be prosecuted and imprisoned post- Gideon than pre- Gideon . Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The crit…

Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services

122 Yale L.J. 2206 (2013). Recent empirical studies tested whether litigants with access to lawyers fared better than litigants with access only to advice or limited assistance. Two of the three studies produced null findings—the litigants with access to lawyers, the treatment group, fared no better …

Race and the Disappointing Right to Counsel

122 Yale L.J. 2236 (2013). Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hop…

Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law

122 Yale L.J. 2260 (2013). Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality…

Gideon’s Migration

122 Yale L.J. 2282 (2013). For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright ’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon ’s migration. At the level of everyday practice, criminal defense attorneys appointe…

Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda

122 Yale L.J. 2316 (2013). As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same t…

Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?

122 Yale L.J. 2336 (2013). In Gideon v. Wainwright , twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in…

Valuing Gideon’s Gold: How Much Justice Can We Afford?

122 Yale L.J. 2358 (2013). In this Essay, we explore Gideon ’s impact in our community, El Paso, Texas, which has the will to try to meet Gideon ’s challenge, but lacks the resources to deliver fully Gideon ’s promise. We look at the origins of our community’s indigent defense reform and examine our off…

Investigating Gideon’s Legacy in the U.S. Courts of Appeals

122 Yale L.J. 2376 (2013). This Essay investigates the legacy of Gideon by examining the de facto courts of last resort for convicted offenders: the federal courts of appeals. Part I focuses on the U.S. courts of appeals’ judges and caseloads, revealing that very few federal appellate judges have pri…

An Immigration Gideon for Lawful Permanent Residents

122 Yale L.J. 2394 (2013). In evaluating the legacy of Gideon v. Wainwright , it is critical to remember that the Supreme Court’s decision rested on the Sixth Amendment right to counsel for the accused in criminal cases. American law sharply demarcates between the many rights available to criminal def…

Gideon at Guantánamo

122 Yale L.J. 2416 (2013). The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether …

Enforcing Effective Assistance After Martinez

122 Yale L.J. 2428 (2013). This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent represen…

Gideon’s Law-Protective Function

122 Yale L.J. 2460 (2013). Gideon v. Wainwright dramatically affects the rights of indigent defendants by entitling them to representation. But Gideon has another systemic consequence as well. In addition to protecting the rights of individual defendants in particular trials, Gideon also protects the…

Gideon’s Shadow

122 Yale L.J. 2482 (2013). The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elabo…

Gideon at Guantánamo: Democratic and Despotic Detention

122 Yale L.J. 2504 (2013). One measure of Gideon v. Wainwright is that it made the U.S. government’s efforts to isolate 9/11 detainees from all outsiders at Guantánamo Bay conceptually and legally unsustainable. Gideon , along with Miranda v. Arizona , is part of a democratic narrative shaped over dec…

Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures

122 Yale L.J. 2550 (2013). Fifty years ago Gideon promised that an attorney would vindicate the constitutional rights of any accused too poor to afford an attorney. But Gideon also promised more. Writ small, Gideon promised to protect individual defendants; writ large, Gideon promised to protect our …

Federal Public Defense in an Age of Inquisition

122 Yale L.J. 2578 (2013). This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Ac…

Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures

122 Yale L.J. 2604 (2013). Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life int…

Implicit Racial Bias in Public Defender Triage

122 Yale L.J. 2626 (2013). Despite the promise of Gideon , providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defend…

Effective Plea Bargaining Counsel

122 Yale L.J. 2650 (2013). Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men,…

The Continuum of Excludability and the Limits of Patents

122 Yale L.J. 1900 (2013). In IP scholarship, patents are commonly understood as more efficient than other approaches to innovation policy. Their primary ostensible advantage is allocative: as a form of property rights, patents act as a conduit between market signals and potential innovators, ostensi…

Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right

122 Yale L.J. 1444 (2013). This Essay puts forward the conceptual and normative underpinnings of a principle of abuse of property right. Owners abuse their right, I argue, when their decisions about a thing are designed just to produce harm. This is so whether that harm is an end in itself (spite) or…

Reconceptualizing the Burden of Proof

122 Yale L.J. 1254 (2013). The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponder…

Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?

122 Yale L.J. 940 (2013). It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senat…

Asymmetries and Incentives in Plea Bargaining and Evidence Production

122 Yale L.J. 690 (2012). Legal rules severely restrict payments to fact witnesses, though the government can often offer plea bargains or other nonmonetary inducements to encourage testimony. This asymmetry is something of a puzzle, for most asymmetries in criminal law favor the defendant. The asymm…

Contra Nemo Iudex in Sua Causa: The Limits of Impartiality

122 Yale L.J. 384 (2012).

Regularly invoked by the Supreme Court in diverse contexts, the maxim nemo iudex in sua causa —no man should be judge in his own case—is widely thought to capture a bedrock principle of natural justice and constitutionalism. I will argue that the nemo iudex principle is a m…

Judicial Capacity and the Substance of Constitutional Law

122 Yale L.J. 422 (2012). Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This Essay advances a tw…

How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes

122 Yale L.J. 154 (2012). One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how defense counsel affect murder case outcomes. Compare…

One in five indigent murder defendants in Philadelphia is randomly assigned representation by public defenders while the remainder receive court-appointed private attorneys. We exploit this random assignment to measure how defense counsel affect murder case outcomes. Comp…

The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other

121 Yale L.J. 2216 (2012) . The potential complementarities between antitrust and consumer protection law—collectively, “consumer law”—are well known. The rise of the newly established Consumer Financial Protection Bureau (CFPB) portends a deep rift in the intellectual infrastructure of consumer law …

Due Process as Separation of Powers

121 Yale L.J. 1672 (2012) . From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether t…

Income Tax Discrimination: Still Stuck in the Labyrinth of Impossibility

121 Yale L.J. 1118 (2012).

In previous articles, we have argued that the European Court of Justice’s reliance on nondiscrimination as the basis for its decisions did not (and could not) satisfy commonly accepted tax policy norms, such as fairness, administrability, economic efficiency, production o…

Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond

121 Yale L.J. 534 (2011).

State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law.  We have no Chevron , federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s…

The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability

121 Yale L.J. 142 (2011). When a tort rule is fully aligned, harms are valued equally across the elements. Because the valuation of harm within duty equals the valuation within the damages remedy, a fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any harm by…

Justifications, Power, and Authority

117 Yale L.J. 1070 (2008).

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structu…

Irreparable Benefits

116 Yale L.J. 1284 (2007)

The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the…

The Efficient Performance Hypothesis

116 Yale L.J. 568 (2006) Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. Much of the justification for this endeavor has rested upon claims of judicial and economic effic…

Executive Branch Usurpation of Power: Corporations and Capital Markets

115 Yale L.J. 2416 (2006) Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branch…

Beyond Marbury: The Executive's Power To Say What the Law Is

115 Yale L.J. 2580 (2006) Under Marbury v. Madison , it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural R…

Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System

This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.

Rational War and Constitutional Design

115 Yale L.J. 2512 (2006) Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative …

Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive

115 Yale L.J. 2446 (2006) Proponents of the unitary executive have contended that its adoption by the framers "swept plural executive forms into the ash bin of history." Virtually every state government, however, has a divided executive in which executive power is apportioned among different executiv…

Gubernatorial Foreign Policy

115 Yale L.J. 2380 (2006) In a variety of circumstances, state governors exercise independent decision-making power over matters affecting the foreign policy of the United States. This Essay describes and defends this emerging system of gubernatorial foreign policy on both legal and functional ground…

Setting the World Right

115 Yale L.J. 2350 (2006) Five years after September 11, 2001, America's response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global war on terror calls for an entirely new legal paradigm, the Bush Administration and its supporters have p…

The President's Completion Power

115 Yale L.J. 2280 (2006) This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows tha…

Quasipublic Executives

115 Yale L.J. 2254 (2006) In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is,…

Why (and When) Cities Have a Stake in Enforcing the Constitution

115 Yale L.J. 2218 (2006) This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco . The Essay argu…

Inherent Executive Power: A Comparative Perspective

115 Yale L.J. 2480 (2006) In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay's study of British and …

Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within

115 Yale L.J. 2314 (2006) The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of …

Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain

115 Yale L.J. 1930 (2006) In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from "absolute priority" treatment are commonplace. Explaining these deviations has been a central preoccupation…

Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access

115 Yale L.J. 996 (2006) According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has bee…

Of Property and Federalism

115 Yale L.J. 72 (2005) This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and…

Democratic Disobedience

114 Yale L.J. 1897 (2005) Traditional justifications for civil disobedience emphasize the limits of legitimate political authority and defend civil disobedience as a just response when governments overstep these limits. Such liberal justifications are well suited to certain classes of civil disobedie…

To Insure Prejudice: Racial Disparities in Taxicab Tipping

114 Yale L.J. 1613 (2005) Many studies have documented seller discrimination against consumers, but this Essay tests and finds that consumers discriminate based on the seller's race. The authors collected data on more than 1000 taxicab rides in New Haven, Connecticut in 2001. After controlling for a …

Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It

114 Yale L.J. 535 (2004) Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a m…

Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production

114 Yale L.J. 273 (2004) This Essay offers a framework to explain large-scale effective practices of sharing private, excludable goods. It starts with case studies of carpooling and distributed computing as motivating problems. It then suggests a definition for shareable goods as goods that are "lump…

Integrating Remorse and Apology into Criminal Procedure

114 Yale L.J. 85 (2004) Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substan…

The Priority of Morality: The Emergency Constitution's Blind Spot

113 Yale L.J. 1753 (2004) INTRODUCTION In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the…

Editor's Note: The Constitution in Times of Emergency

113 Yale L.J. 1751 (2004) Earlier in this Volume of The Yale Law Journal, Professor Bruce Ackerman published his essay The Emergency Constitution, in which he advocated a new constitutional regime to confront the potential for recurring terrorist attacks among modern nations--and the United States in…

The Anti-Emergency Constitution

113 Yale L.J. 1801 (2004) INTRODUCTION The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the d…

Adverse Selection in Insurance Markets: An Exaggerated Threat

113 Yale L.J. 1223 (2004) The phrase "adverse selection" was originally coined by insurers to describe the process by which insureds utilize private knowledge of their own riskiness when deciding to buy or forgo insurance. If A knows he will die tomorrow (but his insurer does not), life insurance th…

The Emergency Constitution

113 Yale L.J. 1029 (2004) Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the wat…

Juries and Race in the Nineteenth Century

113 Yale L.J. 895 (2004) The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause p…

Bargaining in the Shadow of Takeover Defenses

113 Yale L.J. 621 (2003) For decades, practitioners and academic commentators who believe that target boards should have broad discretion to resist hostile takeover attempts have put forward the "bargaining power hypothesis" to support their view. This hypothesis states that a target with strong tak…

Insider Abstention

113 Yale L.J. 455 (2003) Scholars writing on insider trading have long believed that insiders can beat the market simply by using nonpublic information to decide when not to trade. Using a simple model, this Essay has shown that the conventional wisdom is wrong. Insiders prevented from trading while …

Minorities, Shareholder and Otherwise

113 Yale L.J. 119 (2003) "[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himsel…

Digital Architecture as Crime Control

112 Yale L.J. 2261 (2003) The first generation of cyberlaw was about what regulates cyberspace. Led by Larry Lessig's path-breaking scholarship isolating architecture as a constraint on behavior online, a wide body of work has flourished. In a recent article, I took those insights and reverse-engine…

How Much Redistribution Should There Be?

112 Yale L.J. 2291 (2003) Egalitarianism ties people's fortunes together. It takes the good and bad things in people's lives--their blessings and their afflictions--and shares them out, or redistributes them, among their fellows. Where egalitarianism operates, each person's fortunes and misfortunes c…

Eldred and Lochner: Copyright Term Extensionand Intellectual Property as Constitutional Property

112 Yale L.J. 2331 (2003) As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic conse…

Common Law, Common Ground, and Jefferson's Principle

112 Yale L.J. 1717 (2003) Why do we care about the Framers of the Constitution? After all, they lived long ago, in a world that was different in countless ways from ours. Why does it matter what their views were, for any reasons other than purely historical ones? And if we don't care about the Framer…

The Secret History of Race in the United States

112 Yale L.J. 1473 (2003) In the beginning, there was a man named Looney. George Looney's world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, …

Economic Analysis of Contract Law After Three Decades: Success or Failure?

112 Yale L.J. 829 (2003) Modern economic analysis of contract law began about thirty years ago and, many scholars would agree, has become the dominant academic style of contract theory. Traditional doctrinal analysis exerts less influence than it did prior to 1970 and enjoys little prestige. Philosop…

Vigorous Race or Leisurely Walk: Reconsidering the Competition over Corporate Charters

112 Yale L.J. 553 (2002) Does American corporate law work effectively to enhance shareholder value? The recent corporate governance crisis makes this time as good as any for reexamining the basic structure of this body of law. This Essay provides such a reconsideration of a defining feature of U.S. c…

100 Million Unnecessary Returns: A Fresh Start for the U.S. Tax System

112 Yale L.J. 261 (2002) We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the inco…

Probability Neglect: Emotions, Worst Cases, and Law

112 Yale L.J. 61 (2002) In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…

Local Policing After the Terror

111 Yale L.J. 2137 (2002) Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It…

Legislative Entrenchment: A Reappraisal

111 Yale L.J. 1665 (2002) There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds,…

Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique

111 Yale L.J. 1707 (2002) Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial re…

Stopping Above-Cost Predatory Pricing

111 Yale L.J. 941 (2002) This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price re…

Categorical Federalism: Jurisdiction, Gender, and the Globe

111 Yale L.J. 619 (2001) An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense t…

Veil of Ignorance Rules in Constitutional Law

111 Yale L.J. 399 (2001) A veil of ignorance rule (more briefly a "veil rule") is a rule that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision. …

What Happened to Property in Law and Economics?

111 Yale L.J. 357 (2001) Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism…

Drug Designs are Different

111 Yale L.J. 151 (2001) In an essay published in this Journal entitled Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, George Conk criticizes the American Law Institute and the Reporters of the new Restatement for immunizing prescription drug manufacturers from lia…

Bush v. Gore and the Boundary Between Law and Politics

110 Yale L.J. 1407 (2001) Shortly after the Supreme Court's 5-4 decision in Bush v. Gore, one member of the majority, Associate Justice Clarence Thomas, addressed a group of students in the Washington, D.C., area. He told them that he believed that the work of the Court was not in any way influenced…

Pennhurst, Chevron, and the Spending Power

110 Yale L.J. 1187 (2001) Narrowly construed, Pennhurst is a sensible (even if not necessary) process-based limitation on Congress's power to bind states to costly burdens. If read to mean that a state can never be bound by a grant condition when the statute itself does not unmistakably speak to a pa…

The Internet and the Dormant Commerce Clause

110 Yale L.J. 785 (2001)

Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel

110 Yale L.J. 441 (2000) Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, …

Disaggregating Constitutional Torts

110 Yale L.J. 259 (2000) This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe mo…

Deliberative Trouble? Why Groups Go to Extremes

110 Yale L.J. 71 (2000) In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more ext…

Announcing the Eighth Annual Student Essay Competition

Announcing the ylj academic summer grants program, announcing the editors of volume 134, featured content, lock them™ up: holding transnational corporate human-rights abusers accountable, administrative law at a turning point, law and movements: clinical perspectives.

Differences Between Criminal vs. Civil Law Research Paper

The contemporary society can be described as a multi-layered system that functions effectively due to the existence of multiple institutions regulating its development and cooperation between all individuals. The Justice system belongs to these fundamentals as it guarantees protection to people. Regarding the increased complexity of relations in the modern world, there are civil and criminal laws that exist to differentiate various cases and introduce appropriate punishments for lawbreakers not insulting their basic rights and preserving the chance to integrate with the society in the future. That is why it is critical to realize the differences between these two laws existing in the justice system.

Civil and criminal law are two separate entities that have certain regulations and appropriate punishments for various offenses. The first one deals with a set of behaviors or actions that injure an individual or another private party, organization, or corporation (Erstad, 2018). Such cases involve property damage, breach of contract, negligence, or malpractice (Legal Aid Society, n.d.). Criminal law presupposes the work with acts that are considered a threat or offense against the public, society, and the state, even if victims of the wrong behavior are individuals (Erstad, 2018). Murders, assaults, and thefts are investigated by criminal law.

Both civil lawsuits and criminal trials rest on the idea that all sorts of crimes should be proved to avoid injustice and other failures. However, there is a significant difference in the standards that comes from the severity of offenses and punishments provided for them.

Civil cases traditionally presuppose lower standards of proof, such as the preponderance of the evidence (Legal Aid Society, n.d.). It means that a court considers a crime using the idea that some act is more probable to occur in a certain way than not (Erstad, 2018). Regarding criminal law, all crimes should be proved using credible evidence and solid facts because of the existing presumption of innocence (Erstad, 2018). These differences impact the work, of course, significantly.

In criminal courts, the government is the main accuser. It files a case against a person for committing a crime who is called a defendant (Reid, 2016). During the process, the government must provide evidence proving that a defendant is guilty beyond a reasonable doubt (Legal Aid Society, n.d.).

If the guilt is proven, he/she will be provided with the punishment and imprisoned. Otherwise, in civil court, one party sues against another party because of the existence of a particular problem between them; organizations, business agencies, and companies can also become parties (Erstad, 2018). If an individual loses a civil case, he/she might be obliged to pay a fine or return a particular property (Legal Aid Society, n.d.). Civil law does not presuppose imprisonment.

Finally, there is a critical difference between capital and non-capital offenses that should be considered while speaking about courts. The capital offense is determined as a serious crime that can be provided with the death penalty as an appropriate punishment; usually, the term is applied to murders (Reid, 2016). At the same time, non-capital crimes presuppose less severe penalties because of their nature. Regarding the client’s case involving her son breaking the front window of the restaurant, it can be considered a non-capital offense that will not presuppose a lengthy punishment.

Altogether, there is a significant divergence between civil and criminal law as they deal with different cases resting on their severity. The suggested offense can be considered a non-capital one as the boy broke the window of the restaurant, which is not a serious crime. Regarding the information provided above, the restaurant may file a case against him, but only a fine will be considered an appropriate punishment for this incident.

Erstad, W. (2018). Civil law vs. criminal law: Breaking down the differences . Web.

Legal Aid Society of Northeastern New York. (n.d.). The differences between criminal court and civil court . Web.

Reid, S. (2016). Criminal law: The essentials (3rd ed.). New York, NY: Oxford University Press.

• Chicago (A-D)
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IvyPanda. (2021, June 14). Differences Between Criminal vs. Civil Law. https://ivypanda.com/essays/criminal-vs-civil-law/

"Differences Between Criminal vs. Civil Law." IvyPanda , 14 June 2021, ivypanda.com/essays/criminal-vs-civil-law/.

IvyPanda . (2021) 'Differences Between Criminal vs. Civil Law'. 14 June.

IvyPanda . 2021. "Differences Between Criminal vs. Civil Law." June 14, 2021. https://ivypanda.com/essays/criminal-vs-civil-law/.

1. IvyPanda . "Differences Between Criminal vs. Civil Law." June 14, 2021. https://ivypanda.com/essays/criminal-vs-civil-law/.

Bibliography

IvyPanda . "Differences Between Criminal vs. Civil Law." June 14, 2021. https://ivypanda.com/essays/criminal-vs-civil-law/.

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Workplace DEI Worry Shouldn’t Overshadow a Civil Rights Victory

When we argued our client’s case, Muldrow v. City of St. Louis, before the Supreme Court Dec. 6, the growing narrative among court watchers about our client’s otherwise “ under-the-radar ” anti-discrimination case was that a decision favoring Jatonya Muldrow would apparently “ gut workplace DEI initiatives .”

But, as the Supreme Court’s unanimous decision April 17 confirmed, that’s not what Muldrow’s case is about. At issue in Muldrow’s case is her story and the story of individuals like her—people suffering precisely the type of discrimination that Title VII of the Civil Rights Act was designed to stamp out. Fears that this case could affect workplace DEI programs shouldn’t overshadow a victory that goes to the heart of American civil rights law.

Muldrow maintains that the St. Louis Police Department changed her job wholesale because of her sex. But she found herself without a legal remedy because, for decades, courts have required Title VII plaintiffs to prove not only that they’ve been discriminated against at work, but also that the discrimination harmed their career prospects or their pocketbook.

Muldrow’s claim and the claims of others like her had been historically “rejected,” as Justice Elena Kagan explained for the court, “solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.”

Think about that for a minute: Courts all over the country have been holding that under Title VII—one of the most important civil-rights laws ever enacted—it’s legal to change an employee’s job because they’re a woman or Black or Muslim or Asian American or Catholic.

Under this pernicious doctrine, courts have been behaving like their hands are tied when an employer discriminates as to when , where , and with whom you work, or as to your job tasks , or whether you receive the same training or equipment as your peers.

In Muldrow’s situation, the allegedly sex-based job transfer affected her schedule, responsibilities, supervisor, workplace environment, and other important job benefits tied to workplace advancement—for example, she previously reported directly to the chief of police. But Muldrow’s salary remained the same, so the lower courts tossed her case, maintaining that the discriminatory job transfer caused her no “significant disadvantage.”

For several years , we’ve been representing clients like Muldrow—clients who have suffered subordinating discrimination but who couldn’t obtain relief because they purportedly couldn’t demonstrate to a court that the discrimination harmed them significantly.

Take what happened to a different client of ours—Captain Reginald Anderson—as an example of just how difficult it had become before the court’s intervention for individuals facing workplace discrimination. Anderson is an Emergency Medical Service supervisor in Cleveland, Ohio, who has worked for the city since 1992. He is Black and, along with other Black EMS employees, alleged that he had long faced discrimination at work.

We met Anderson when, after nearly two decades working the day shift, he was abruptly transferred to working nights. The reason? His race. When a union steward confronted the city about the race-based assignment system, leadership threw around terms “about strength and weakness, lazy and stupid,” according to a supervisor’s deposition testimony.

If the captains had any doubts about “which race” the city was implying “is the lazy one, which race is stupid,” they got their answer when they learned that although the city wouldn’t tolerate shifts comprised only of Black captains, the city made no effort to break up all-white shifts, according to testimony .

Anderson and the other Black captains whose schedules were controlled by the city’s discriminatory policy filed suit under Title VII. Despite the overwhelming evidence of workplace discrimination, that court held, under the rule that the Supreme Court overturned April 17, that the discrimination didn’t violate Title VII because it didn’t sufficiently harm Anderson and others. The Sixth Circuit reversed the trial court’s decision, but it had to look past nearly unanimous nationwide precedent to reach that result.

The Supreme Court’s decision makes clear that employers can’t change the parameters of a job because of race, sex, or any of Title VII’s other protected characteristics.

For various reasons, we’re quite skeptical that the court’s decision has any genuine, legal ramifications on thoughtful efforts to create workplace equity through DEI initiatives. And no justice left even a bread crumb suggesting otherwise.

Even if it were true that the Muldrow decision leads to a flood of coordinated claims seeking to end mentoring and training programs for underrepresented groups or undermining other DEI initiatives, it can’t be that employees like Muldrow and Anderson who faced subjugating discrimination were simply supposed to grin and bear it. Were they supposed to endure sex-based job transfers, discriminatory night shifts, or the like just to avoid giving anti-DEI interest groups the opportunity to press for a less equitable society?

Having won a hard-fought battle to overrule decades-old, terrible precedent, people like Jatonya Muldrow who suffered under that precedent and fought to dismantle it deserve a moment’s celebration and recognition before they get back to work.

The case is Muldrow v. City of St. Louis , US, No. 22-193, decided 4/17/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Madeline Meth is an associate clinical professor at Boston University School of Law and co-counsel for petitioner Jatonya Muldrow.

Brian Wolfman is a professor from practice at Georgetown University Law Center and director of the Appellate Courts Immersion Clinic. He is co-counsel for petitioner Jatonya Muldrow and argued the case before the Supreme Court.

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To contact the editors responsible for this story: Jessie Kokrda Kamens at [email protected] ; Jada Chin at [email protected]

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Other Papers Say: Reform seizure, forfeiture laws

The following editorial originally appeared in The Seattle Times:

A state audit of Washington law enforcement agencies found that when it comes to the civil seizure and forfeiture of property during a crime investigation, the rules are skewed to help enrich police departments, which creates a conflict of interest. Also the process lacks transparency for those who have had their property seized.

The Legislature should enact reforms, and lawmakers will likely get another chance to do so next year.

The Washington Office of State Auditor reviewed three years of seizures and forfeitures at 100 law enforcement agencies.

Under current state laws, as in many states, civil forfeiture can deprive people of their property without due process. Even when there is due process, there still remain potential conflicts of interest because the police departments that seized the property also decide the outcome of the seizure cases.

Civil asset forfeiture is government’s legal tool to seize property believed to have been used in a crime, such as firearms, drugs, vehicles, real estate or cash. Property can be seized without an arrest, a charge or a conviction. Even if the owner is cleared, it can be difficult to get property back.

In fact, the audit showed that only 25 percent of those whose property was forfeited between January 2020 and December 2022 were convicted of a crime.

During that time, more than 100 law enforcement agencies in Washington received $40 million from local, state and federal forfeitures, mostly from cash, vehicles and equipment. Since the state gets 10 percent of the proceeds from any sales of property, some state officials have been reticent to change the rules, despite bipartisan support nationally to do so.

Spurred by the Institute for Justice, Rep. Roger Goodman, D-Kirkland, has for years pushed for changes in civil asset seizure processes. He wants more uniformity statewide. Currently, agencies have different rules for seizures for drug cases or sex trafficking cases or fish-and-wildlife violations.

Secondly, those whose property has been seized — especially without being charged — need more transparency so they can learn how to file an appeal to get back their property.

The Legislature had a chance to reform the process during this year’s session, but House Bill 1385 failed to pass the House. Had it passed, it would have given property owners more time to reclaim their property, established uniform reporting requirements for all seizing agencies and required the state treasurer to collect information on each case and make it available online.

The audit also found racial disparities in seizures and forfeitures in five jurisdictions.

The civil seizure and forfeitures process has been discussed for more than 20 years in Washington. The state audit makes a case that it’s time to act. Lawmakers and law enforcement officials should be ready to consider reforms in the next legislative session.

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