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    Yale Law Journal: Volume 122, Number 6 - April 2013
    Yale Law Journal: Volume 122, Number 6 - April 2013
    Yale Law Journal: Volume 122, Number 6 - April 2013
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    Yale Law Journal: Volume 122, Number 6 - April 2013

    By Yale Law Journal

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    About this ebook

    One of the world's leading law journals is available as an ebook. This issue of The Yale Law Journal (the sixth of Volume 122, academic year 2012-2013) features new articles and essays on law and legal theory by internationally recognized scholars.

    Contents include an article analyzing rape-by-deception and the mythical idea of sexual autonomy, by Jed Rubenfeld; an essay on extortion and the principle of abuse of property right, by Larissa Katz; and a book review essay on the new generation of civil rights lawyers and the construction of racial identity, by Anthony Alfieri and Angela Onwuachi-Willig.

    The issue also features extensive student research, in the form of Notes and Comments, on such cutting-edge subjects as mandatory arbitration and contract procedure; the concept of ride-through in bankruptcy law as an economic good; kidney allocation and the limits of age discrimination law; and how civil law jurisdictions treat amici curiae parties and briefs.

    Quality ebook formatting includes fully linked notes and an active Table of Contents (including linked Contents for individual articles and essays), as well as active URLs in notes.

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal's content. The principal articles are written by leading legal scholars.

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateDec 24, 2013
    ISBN9781610278997
    Yale Law Journal: Volume 122, Number 6 - April 2013
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

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      Book preview

      Yale Law Journal - Yale Law Journal

      THE YALE LAW JOURNAL

      APRIL 2013

      VOLUME 122, NUMBER 6

      Yale Law School

      New Haven, Connecticut

      Smashwords edition. Published by Quid Pro Books, at Smashwords.

      Copyright © 2013 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the Responses page.

      The publisher of various formats and editions is The Yale Law Journal, who authorized exclusively Quid Pro Books to reproduce it in ebook formats: digitally published in such editions, for The Yale Law Journal, by Quid Pro Books. Available in all major digital formats and at leading retailers and booksellers.

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      Cataloging for Volume 122, Number 6:

      ISBN 978-1-61027-899-7 (ePUB)

      CONTENTS

      About The Yale Law Journal

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to The Yale Law Journal Online at http://yalelawjournal.org/submissions.html. We cannot guarantee that submitted responses will be published. Those responses that are selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, excluding February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to The Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 122 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. Dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, overseas claims within 180 days; thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Manager.

      SINGLE AND BACK ISSUES. Each issue of Volume 122 of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc. for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. Dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-121, please contact William S. Hein and Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org/).

      MANUSCRIPTS. The Journal invites the submission of unsolicited articles, essays, and book reviews. Manuscripts must be submitted online at http://yalelawjournal.org/submissions.html.

      COPYRIGHT. Copyright © 2012 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com/.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.

      INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Richard Charles Levin, B.A., B.Litt., Ph.D., President of the University

      Peter Salovey, A.B., M.A., Ph.D., Provost of the University

      Robert C. Post, A.B., J.D., Ph.D., Dean

      Douglas Kysar, B.A., J.D., Deputy Dean

      Megan A. Barnett, B.A., J.D., Associate Dean

      Toni Hahn Davis, B.A., M.S.W., J.D., LL.M., Associate Dean

      Brent Dickman, B.B.A., M.B.A., Associate Dean

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Mark LaFontaine, B.A., J.D., Associate Dean

      Kathleen B. Overly, B.A., J.D., Ed.D., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, B.A., M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, B.S., B.A., LL.B., M.A., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon L. Dalton, A.B., J.D., Professor Emeritus of Law

      Mirjan R. Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, B.A., LL.B., Ph.D., M.A., Walter Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History and Professor (Adjunct) of Law

      Michael J. Graetz, B.B.A., LL.B., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Quintin Johnstone, A.B., J.D., LL.M., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Carol M. Rose, B.A., M.A., Ph.D., J.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Peter H. Schuck, B.A., J.D., LL.M., M.A., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law (fall term)

      John G. Simon, B.A., LL.B., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      FACULTY

      Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      †    Muneer I. Ahmed, A.B., J.D., Clinical Visiting Professor of Law

      Anne L. Alstott, A.B., J.D., Jacquin D. Bierman Professor in Taxation

      Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Ian Ayres, B.A., J.D., Ph.D., William K. Townsend Professor of Law

      ‡    Jack M. Balkin, A.B., J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Lea Brilmayer, B.A., J.D., LL.M., Howard M. Holtzmann Professor of International Law

      Richard Brooks, B.A., M.A., Ph.D., J.D., Leighton Homer Surbeck Professor of Law

      Robert A. Burt, B.A., M.A., J.D., Alexander M. Bickel Professor of Law (fall term)

      Guido Calabresi, B.S., B.A., LL.B., M.A., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡    Stephen L. Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon L. Dalton, A.B., J.D., Professor Emeritus of Law

      Mirjan R. Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Bruno Deffains, Ph.D., Visiting Professor of Law (spring term)

      Jan Ginter Deutsch, B.A., LL.B., Ph.D., M.A., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Fiona Doherty, B.A., J.D., Clinical Associate Professor of Law

      Steven B. Duke, B.S., J.D., LL.M., Professor of Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law (spring term)

      E. Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      †    William Eskridge, Jr., B.A., M.A., J.D., John A. Garver Professor of Jurisprudence

      *    Daniel C. Esty, A.B., M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Jeffrey Fagan, M.E., M.S., Ph.D., Florence Rogatz Visiting Professor of Law (spring term)

      Owen M. Fiss, B.A., B.Phil., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      James Forman, Jr., A.B., J.D., Clinical Professor of Law

      ‡    Heather Gerken, A.B., J.D., J. Skelly Wright Professor of Law

      Paul Gewirtz, A.B., J.D., Potter Stewart Professor of Constitutional Law and Director, The China Center

      Abbe R. Gluck, B.A., J.D., Associate Professor of Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History and Professor (Adjunct) of Law (fall term)

      Michael J. Graetz, B.B.A., LL.B., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)

      David Singh Grewal, B.A., J.D., Ph.D., Associate Professor of Law

      Dieter Grimm, LL.M., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (spring term)

      Henry B. Hansmann, A.B., J.D., Ph.D., Oscar M. Ruebhausen Professor of Law

      Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method

      Oona A. Hathaway, B.A., J.D., Ph.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Roderick M. Hills, Jr., B.A., J.D., Anne Urowsky Visiting Professor of Law

      Edward J. Janger, B.A., J.D., Visiting Professor of Law (fall term)

      Quintin Johnstone, A.B., J.D., LL.M., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law

      †    Christine Jolls, B.A., J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology

      ‡    Paul W. Kahn, B.A., Ph.D., J.D., Robert W. Winner Professor of Law and the Humanities and Director, Orville H. Schell, Jr. Center for International Human Rights

      Amy Kapczynski, A.B., M.Phil., M.A., J.D., Associate Professor of Law

      S. Blair Kauffman, B.S., B.A., J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Amalia D. Kessler, A.B., M.A., J.D., Ph.D., Sidley Austin-Robert D. McLean ’70 Visiting Professor of Law (fall term)

      Daniel J. Kevles, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

      ‡    Alvin K. Klevorick, B.A., M.A., Ph.D., John Thomas Smith Professor of Law and Professor of Economics

      †    Harold Hongju Koh, A.B., B.A., J.D., M.A., Martin R. Flug ’55 Professor of International Law

      Anthony T. Kronman, B.A., Ph.D., J.D., Sterling Professor of Law

      Douglas Kysar, B.A., J.D., Deputy Dean and Joseph M. Field ’55 Professor of Law

      John H. Langbein, A.B., LL.B., Ph.D., Sterling Professor of Law and Legal History

      Justin Levitt, B.A., M.P.A., J.D., Visiting Associate Professor of Law (spring term)

      James S. Liebman, B.A., J.D., Visiting Professor of Law

      ‡    Yair Listokin, A.B., M.A., Ph.D., J.D., Professor of Law

      Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      †    Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      Miguel Maduro, Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Chibli Mallat, L.L.B., L.L.M., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

      Joseph G. Manning, B.A., A.M., Ph.D., Professor (Adjunct) of Law (fall term)

      David Marcus, B.A., J.D., Maurice R. Greenberg Visiting Professor of Law

      Daniel Markovits, B.A., M.Sc., B.Phil./D.Phil., J.D., Guido Calabresi Professor of Law

      Jerry L. Mashaw, B.A., LL.B., Ph.D., Sterling Professor of Law (fall term)

      Braxton McKee, M.D., Associate Professor (Adjunct) of Law (fall term)

      †    Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law

      Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)

      Nicholas Parrillo, A.B., M.A., J.D., Ph.D., Associate Professor of Law

      Jean Koh Peters, B.A., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney

      Thomas Pogge, Ph.D., Professor (Adjunct) of Law (spring term)

      Robert C. Post, A.B., J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney

      Claire Priest, B.A., J.D., Ph.D., Professor of Law

      George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      ‡    W. Michael Reisman, LL.B., LL.M., J.S.D., Myres S. McDougal Professor of International Law

      ‡    Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      ‡    Cristina Rodríguez, B.A., M.Litt., J.D., Professor of Law

      ‡    Roberta Romano, B.A., M.A., J.D., Sterling Professor of Law and Director, Yale Law School Center for the Study of Corporate Law

      Carol M. Rose, B.A., M.A., Ph.D., J.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Susan Rose-Ackerman, B.A., M.Phil., Ph.D., Henry R. Luce Professor of Jurisprudence, Law School and Department of Political Science

      Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      Jennifer Prah Ruger, B.A., M.A., M.Sc., Ph.D., M.S.L., Associate Professor (Adjunct) of Law (spring term)

      William M. Sage, A.B., M.D., J.D., Visiting Professor of Law (spring term)

      Peter H. Schuck, B.A., J.D., LL.M., M.A., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law (fall term)

      Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences

      ‡    Alan Schwartz, B.S., LL.B., Sterling Professor of Law

      Ian Shapiro, B.Sc., M.Phil., Ph.D., J.D., Professor (Adjunct) of Law (spring term)

      †    Scott J. Shapiro, B.A., J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy

      Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Reva Siegel, B.A., M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      Norman I. Silber, B.A., J.D., Ph.D., Visiting Professor of Law

      James J. Silk, A.B., M.A., J.D., Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, and Executive Director, Orville H. Schell, Jr. Center for International Human Rights

      John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Richard Squire, B.A., M.B.A., J.D., Florence Rogatz Visiting Professor of Law

      Stephanie M. Stern, B.A., J.D., Irving S. Ribicoff Visiting Associate Professor of Law (fall term)

      Richard B. Stewart, B.A., M.A., LL.B., Visiting Professor of Law (fall term)

      †    Kate Stith, A.B., M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, B.A., M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies

      Tom R. Tyler, B.A., M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology

      Patrick Weil, B.A., M.B.A., Ph.D., Visiting Professor of Law (fall term)

      James Q. Whitman, B.A., M.A., Ph.D., J.D., Ford Foundation Professor of Comparative and Foreign Law

      Abraham L. Wickelgren, A.B., J.D., Ph.D., Florence Rogatz Visiting Professor of Law

      Luzius Wildhaber, LL.M., J.S.D., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Ralph K. Winter, Jr., B.A., LL.B., Professor (Adjunct) of Law

      ‡    Michael Wishnie, B.A., J.D., William O. Douglas Clinical Professor of Law and Director, Jerome N. Frank Legal Services Organization

      John Fabian Witt, B.A., J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      †    Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law

      *    On leave of absence, 2012–2013.

      †    On leave of absence, fall term, 2012.

      ‡    On leave of absence, spring term, 2013.

      LECTURERS IN LAW

      Emily Bazelon, B.A., J.D.

      Cynthia Carr, B.A., J.D., LL.M.

      Adam S. Cohen, A.B., J.D.

      Linda Greenhouse, B.A., M.S.L.

      Adam Grogg, B.A., M.Phil., J.D.

      Lucas Guttentag, A.B., J.D.

      Bruce J. Ho, B.A., M.E.M., J.D.

      Jamie P. Horsley, B.A., M.A., J.D.

      Margot E. Kaminski, B.A., J.D.

      Katherine Kennedy, A.B., J.D.

      Alex A. Knopp, B.A., J.D.

      Annie Lai, B.A., J.D.

      John T. Marshall, B.A., M.A., J.D.

      Hope R. Metcalf, B.A., J.D.

      Christina M. Mulligan, B.A., J.D.

      James E. Ponet, B.A., M.A., D.D.

      Nina Rabin, B.A., J.D.

      Sia Sanneh, B.A., M.A., J.D.

      Daniel Wade, B.A., M.A., M.Div., M.A., M.S., J.D.

      VISITING LECTURERS IN LAW

      Josh Abramowitz, B.A., J.D.

      Melinda Agsten, A.B., J.D.

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Richard Baxter, B.A., M.A., J.D.

      H.E. Stuart Beck, B.A., J.D.

      Frank P. Blando, B.S., M.B.A., J.D.

      Stephen B. Bright, B.A., J.D.

      Jennifer Gerarda Brown, A.B., J.D.

      Helen V. Cantwell, B.A., J.D.

      Brett Cohen, B.A., J.D.

      Timothy C. Collins, B.A., M.B.A.

      Victoria Cundiff, B.A., J.D.

      Brian T. Daly, B.A., M.A., J.D.

      Karl Tom Dannenbaum, B.A., M.A., J.D.

      Lisa Nachmias Davis, B.A., J.D.

      Francis X. Dineen, A.B., LL.B.

      Stewart I. Edelstein, B.A., J.D.

      Eugene R. Fidell, B.A., LL.B.

      Gregory Fleming, B.A., J.D.

      Lawrence Fox, B.A., J.D.

      Shelley Diehl Geballe, B.A., J.D., M.P.H.

      Lee Gelernt, B.A., M.Sc., J.D.

      Jeffrey Gentes, B.A., J.D.

      Frederick S. Gold, B.A., J.D.

      Gregg Gonsalves, B.S.

      Benjamin Heineman, B.A., B.Litt., J.D.

      Rebecca M. Heller, B.A., J.D.

      Stephen Hudspeth, B.A., M.A., J.D.

      Frank Iacobucci, B.Com., LL.B., LL.M.

      Aaron Korman, B.A. M.Sc., J.D.

      Anika Singh Lemar, B.A., J.D.

      Barbara B. Lindsay, A.B., J.D., LL.M.

      Barbara Marcus, B.A., M.S., Ph.D.

      Michael S. McGarry, A.B., J.D.

      Jennifer Mellon, B.A., J.D.

      Margaret M. Middleton, B.S., J.D.

      Cantwell F. Muckenfuss, III, B.A., J.D.

      Laurence P. Nadel, A.B., J.D.

      Charles Nathan, B.A., J.D.

      Ann M. Parrent, B.A., J.D.

      Andrew J. Pincus, B.A., J.D.

      Eric S. Robinson, A.B., M.B.A., J.D.

      David N. Rosen, B.A., LL.B.

      Charles A. Rothfeld, A.B., J.D.

      Barry R. Schaller, B.A., J.D.

      David A. Schulz, B.A., M.A., J.D.

      Michael Solender, B.A., J.D.

      Laurence T. Sorkin, B.A., LL.B., LL.M.

      Sidney H. Stein, A.B., J.D.

      David J. Stoll, B.A., J.D.

      Christof R.A. Swaak, Ph.D.

      Willard B. Taylor, B.A., LL.B.

      Thomas Ullmann, B.S., J.D.

      Stefan Underhill, B.A., J.D.

      John M. Walker, Jr., B.A., J.D.

      Michael Weisman, B.A., J.D.

      David M. Zornow, B.A., J.D.

      The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy

      JED RUBENFELD

      [cite as 122 YALE L.J. 1372 (2013)]

      ABSTRACT. Rape-by-deception is almost universally rejected in American criminal law. But if rape is sex without the victim’s consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all. Moreover, rejecting rape-by-deception fails to vindicate sexual autonomy, which is widely viewed today as rape law’s central principle and, indeed, as a constitutional right. This Article argues against the idea of sexual autonomy and against the understanding of rape as unconsented-to sex. A better understanding, it is argued, can be arrived at by comparing rape to slavery and torture, which are violations of a person’s fundamental right to self-possession. This view of rape can explain the rejection of rape-by-deception, which current thinking cannot, but it will also suggest that rape law’s much-maligned force requirement may not be so malign after all.

      AUTHOR. Robert R. Slaughter Professor of Law, Yale Law School. This Article benefited immeasurably from reactions and assistance given to me by a great many people, including Nomi Stolzenberg, Anne Dailey, Sandra Macpherson, Gideon Yaffe, Tracy Meares, Dan Kahan, Scott Shapiro, Daniel Markovits, Bruce Ackerman, Paul Gewirtz, Richard Brooks, Elizabeth Emens, Charles Fried, Katherine Franke, Adam Cohen, Suzanne Goldberg, Leah Bellshaw, Caroline Harkins, Elizabeth Hanft, Julia Malkina, Danielle Sassoon, Josh Meltzer, Sophie Brill, Lina Tetelbaum, Josh Geltzer, Marisa West, Noam Finger, and Amy Chua.

      ARTICLE CONTENTS

      INTRODUCTION

      In 2010, a man was convicted of rape in Jerusalem—not for forcing sex on his victim, but for posing as a Jewish bachelor with a serious romantic interest in her:

      If [the complainant] had not thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated with him. . . .

      . . . .

      The court is obliged to protect the public interest from sophisticated, smooth-tongued and sweet-talking criminals who can deceive innocent victims at an unbearable price—the sanctity of their bodies and souls.¹

      Even as the Kashour case was pending in Israel, a bill was pending in Massachusetts authorizing life imprisonment for anyone who has sexual intercourse . . . with a person having obtained that person’s consent by the use of fraud, concealment or artifice.² In Tennessee, rape is already defined to include sexual penetration . . . accomplished by fraud.³ A man commits rape in Idaho, under a 2011 amendment, when he has sex with a woman who, because of his artifice, pretense or concealment, believes him to be someone other than who he is.⁴ In Canada, a Supreme Court Justice has stated that rape is committed whenever sex is procured through dishonesty.⁵

      Thus rape-by-deception is a live and intensifying issue in criminal law. The problem it poses is easy to describe. Many—perhaps most—of us don’t think rape-by-deception is rape at all.⁶ Neither, as a rule, do our courts.⁷ The problem is that we ought to think it is rape, and courts ought to so hold, given what we say rape is.

      According to a very widely shared view, rape means sex without the victim’s consent. The crime was often so understood by common law judges;⁸ it is explicitly so defined in many modern statutes;⁹ and it is frequently so described in contemporary usage, both lay and legal.¹⁰ But sex-by-deception is sex without consent, because a consent obtained by deception, as courts have long and repeatedly held outside of rape law, is no consent at all.¹¹

      A person who enters your house pretending to be a meter reader commits trespass (entry onto real property without consent);¹² a Ponzi-scheme swindler commits larceny or theft (taking property without consent) by deception;¹³ a man posing as a doctor who lays his hands on [a woman’s] person commits battery (offensive touching without consent).¹⁴ Fraud, as Judge Learned Hand put it, will vitiate consent as well as violence.¹⁵ Why, then, isn’t sex-by-deception rape?

      The answer, for American courts, is that rape requires more than nonconsent; it requires force, and deception isn’t force.¹⁶ But this answer hardly answers, not without an explanation of why rape requires force—an explanation that has never been forthcoming. The force requirement makes rape law blind to all the situations in which people, often women, are coerced or manipulated into sex through social pressure or alcohol or other means falling short of physical violence.¹⁷ As a result, [v]irtually all modern rape scholars want to modify or abolish the force requirement as an element of rape,¹⁸ and some jurisdictions have already eliminated it.¹⁹

      But this means rape law has a serious problem. Existing doctrine has no trouble dismissing rape-by-deception claims, but only because of the much-decried force requirement. If rape law were really to eliminate the force requirement—as so many argue it should, as many statutes have already seemingly done, and as courts have begun to do—then sex-by-deception would and should be rape, because the legal definition of rape would then be sex without consent, and a defrauded consent, like a coerced one, is no consent at all.

      This problem is by itself a considerable challenge. It implicates the most fundamental questions about what rape is and how the law ought to define it. But the problem runs deeper still.

      Just as we speak of antidiscrimination law, referring to an interlocking set of constitutional rights, statutes, regulations, and judicial decisions, so too we might speak of sex law, comprising the same elements. And we might say that sex law in this country is converging on a single unifying principle: the right to sexual autonomy.

      The idea behind sexual autonomy is simple. People have a right to decide for themselves with whom and under what circumstances to have sex. The legal fight for this principle has been waged on several fronts, including:

      Constitutionalization. Constitutional sex law commenced in earnest with Griswold v. Connecticut,²⁰ and the Court’s most important recent decision in this field, Lawrence v. Texas,²¹ is widely read to stand for a right of sexual autonomy.²²

      Decriminalization. Long before Lawrence, sodomy prosecutions were rare, and older sex crimes such as fornication and seduction had been abolished, reflecting a conviction that private, consensual sex was not an appropriate target of criminal law.²³

      Sex codes. Sexual misconduct has long been regulated privately on college campuses and elsewhere. But while such sex codes used to aim at prohibiting sex, today their aim is different: to ensure that sexual activities are consensual.²⁴

      Rape law reform. Finally, over the last several decades, radical transformation came to rape law as well. Old doctrines have been discarded, reopening core questions about how rape ought to be defined,²⁵ and today, the central purpose widely ascribed to rape law is the protection of sexual autonomy.²⁶

      Thus sexual autonomy seems to provide a single, clear, appealing foundation for the regulation of sex in the United States, unifying its major components. But there is an anomaly in the system: sex-by-deception. From autonomy’s viewpoint, fraud is as great an evil as force.²⁷ Precisely by failing to punish rape-by-deception, sex law fails to vindicate sexual autonomy. This failure would seem to put rape law in tension not only with its own central principle, but with the rest of American sex law, including Lawrence.²⁸

      The purpose of this Article is to demonstrate that sex-by-deception does in fact pose all the difficulties just outlined. It requires a rethinking of what rape really is. It also requires sex law to pick its poison—to decide if it does or doesn’t stand for sexual autonomy, whether that means embracing rape-by-deception or reconsidering Lawrence. Finally, it requires a reevaluation of the ideal of autonomy itself, at least as applied to sexuality.

      Part I will trace the emergence of sexual autonomy as the fundamental principle of American sex law. Part II will lay out rape-by-deception doctrine and the difficulties it creates. Part III maps the main options available to rape law once these difficulties are exposed: (1) sticking with the force requirement in order to say no to rape-by-deception; (2) embracing sexual autonomy and with it a much broader doctrine of rape-by-deception; and (3) staking out a compromise in which coercive sex would be rape, but deceptive sex would not. This compromise would, I will argue, capture many people’s intuitions, beat a retreat from the force requirement’s worst aspects, and bring rape law closer to vindicating sexual autonomy.

      Parts IV and V of this Article—well, Parts IV and V should probably never have been written. Many readers will disagree with them. To begin with, I will reject the coercion-based compromise just described. Its half-logic is too unprincipled, its results contradictory. Instead, Part IV will oppose the principle of sexual autonomy altogether. Notwithstanding Lawrence, I will suggest that there is and should be no fundamental right to sexual autonomy. The great principle of individual autonomy hits a kind of limit in sexuality, where the pursuit of bodily and psychological conjugation makes the goal of autonomy strangely chimerical, at odds with desire itself.

      But how should rape be understood if not in terms of sexual autonomy? Part V lays out an answer. Rape violates what I will call the right to self-possession. The right to self-possession is best illustrated by two other offenses that also violate it: slavery and torture. Rape should be thought about, I will argue, the way we think about those two crimes. Every act of rape may not be an act of slavery or torture, but all rape shares core elements of both.

      A warning: this way of seeing rape will have at least one glaring weakness. It will suggest that the much-maligned force requirement might not be so malign after all.

      Taking Parts I to V together, the argument will be as follows: Current rape-by-deception doctrine is unjustifiable given today’s predominant, sexual-autonomy-based view of rape. If rape means sex without consent, sex-by-deception ought to be rape. At a minimum, given principles of sexual autonomy, sex-by-deception ought to be very broadly criminalized, if not under the name of rape, then as a separate (perhaps lesser) offense. My conclusion, however, is that sex-by-deception should not be broadly criminalized; instead the mistake lies in the autonomy-based view of rape—indeed in the whole notion of sexual autonomy as a fundamental right. For American sex law in general, this conclusion suggests a rethinking of Lawrence and related cases. For rape law, the implication is that rape cannot be understood merely as unconsented-to sex; a certain kind of force, to be explained below, is in fact central to the crime.

      I. SEXUAL AUTONOMY AS THE FUNDAMENTAL PRINCIPLE OF AMERICAN SEX LAW

      Not long ago, the consensuality of a sex act was irrelevant to its legality. And almost all sex was illegal.

      If an unmarried man and woman had sex, it was fornication.²⁹ If either had a spouse, it was adultery in the married party and fornication in the other, or adultery in both.³⁰ If a man lured a woman into bed through a promise of marriage, he committed seduction.³¹ If one was black and the other white, they were chargeable with miscegenation.³² If both were male, it was sodomy.³³ If both were female, it was plainly an abomination, although no one seemed to know exactly what kind.³⁴

      Even a married couple could go to jail for having the wrong kind of sex.³⁵ If they sought to prevent childbirth, they faced more criminal sanctions.³⁶ Merely possessing information about contraception could be a crime.³⁷

      Thus went traditional American sex law. The only safe sex was heterosexual, copulative, marital intercourse.³⁸ No kind of autonomy figured in this legal landscape—not sexual,³⁹ not male, not female, not marital.

      Today, things are slightly different. In the last several decades, a sex-law revolution has taken place, in which sexual autonomy has emerged as something like a fundamental right. This transformation has occurred across at least four areas: the right to privacy; sex crimes; sex codes; and rape law.⁴⁰

      A. Sexual Autonomy and the Right to Privacy

      When the right to privacy first appeared in Griswold,⁴¹ it did not imply a right of sexual autonomy. The Griswold Court repeatedly emphasized that the case involved marriage⁴² and stressed the repulsive prospect of police scouring the sacred precincts of marital bedrooms for evidence.⁴³ Thus Griswold’s privacy looked potentially quite narrow.⁴⁴

      But in Eisenstadt v. Baird,⁴⁵ striking down a ban on the distribution (rather than, as in Griswold, the use) of contraceptives, the Court declared that the right to privacy protected every individual, married or single, . . . from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.⁴⁶ Suddenly privacy reached far beyond marriage and private places like the bedroom. Under Eisenstadt, the new right to privacy seemed hardly to be about privacy at all.⁴⁷

      What, then, was it about? No one really knew. But a year later, when the Court decided Roe v. Wade, privacy began to look like it really might mean sexual autonomy. Arguably, one of the most important elements of sexual autonomy is reproductive autonomy. Thus did Richard Posner feel justified in declaring that in a series of decisions between 1965 and 1977, the Supreme Court created a constitutional right of sexual or reproductive autonomy, which it called privacy.⁴⁸

      But if Roe held out the promise of sexual autonomy, that promise was dashed in Bowers v. Hardwick.⁴⁹ There the Court upheld the criminalization of consensual sex acts traditionally considered immoral and offensive.⁵⁰ Seventeen years later, however, Lawrence reversed Bowers.

      Interestingly, the term right to privacy never appears in Lawrence. Instead, the majority opinion speaks of autonomy. Justice Kennedy began that opinion by declaring, Liberty presumes an autonomy of self that includes . . . certain intimate conduct.⁵¹ He also quoted Justice Stevens’s Bowers dissent, calling the following two points controlling:

      First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . . Second, individual decisions by married [and unmarried] persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the [Constitution].⁵²

      Where two adults, the Court concluded, with full and mutual consent from each other, engage[] in sexual practices, the State cannot . . . control their destiny by making their private sexual conduct a crime.⁵³

      Given such statements, it’s no wonder that so many read Lawrence to have enshrined sexual autonomy as a constitutional right.⁵⁴ Indeed, under Lawrence, the Fifth Circuit has struck down a ban on the sale of sexual stimulation devices, holding that such a statute violated an individual’s right to engage in private intimate conduct of his or her choosing.⁵⁵

      B. Sexual Autonomy and Decriminalization

      Over the course of the twentieth century, private (noncommercial) consensual sex was almost wholly decriminalized. At times this transformation was constitutionally mandated. Often, however, state legislatures and prosecutors acted on their own.

      Thus, fifty years ago, penal fornication and adultery statutes were already so widely unenforced that the draftsmen of the Model Penal Code described them as dead-letter statutes.⁵⁶ In many states, formal repeal followed.⁵⁷ Similarly, the crime of seduction long ago passed into oblivion.⁵⁸

      Indeed, decades before Lawrence, many states had already repealed or stopped enforcing their sodomy laws.⁵⁹ Rather than being mandated by the Supreme Court, the widespread decriminalization of consensual sex paved the way for the sexual revolution of the 1960s and thus, ultimately, for the Court’s own decisions in cases like Griswold, Roe, and Lawrence.

      C. Sexual Autonomy and the New Sex Codes

      Outside criminal law, private sexual misconduct regulations have long been common, especially at colleges. Traditionally, such sex codes aimed at blanket sexual suppression.⁶⁰ By contrast, the typical college sex code today permits sex on campus, seeking only to ensure one goal: consent.

      For example, Duke University in 2010 defined sexual misconduct as any physical act of a sexual nature perpetrated against an individual without consent.⁶¹ Under this provision, no genuinely consensual sex is misconduct. Moreover, consent must be informed,⁶² suggesting that deception might negate it, and power differentials, whether [r]eal or perceived, can be coercive, even when such coercion is unintentional.⁶³

      Yale’s new 2011 provisions are similar. Sexual misconduct at Yale includes any conduct of a sexual nature that is nonconsensual; sexual assault includes any kind of nonconsensual sexual contact.⁶⁴ Consent in turn is

      defined as clear, unambiguous, and voluntary agreement . . . to engage in specific sexual activity. Consent cannot be inferred from the absence of a no; a clear yes, verbal or otherwise, is necessary. . . . Talking with sexual partners about desires and limits may seem awkward, but serves as the basis for positive sexual experiences shaped by mutual willingness and respect.

      Consent cannot be obtained from someone who is asleep . . . .

      . . . .

      Consent to some sexual acts does not imply consent to others, nor does past consent to a given act imply ongoing or future consent.⁶⁵

      Assuming these regulations are to be taken seriously—as a disciplinary code Yale intends to enforce, rather than, say, a display of legally useful institutional concern⁶⁶—some interesting results follow. Blowing a kiss to one’s boyfriend without asking him first could fit the definition of sexual misconduct at Yale (conduct of a sexual nature without a clear ‘yes’ or unambiguous agreement to that specific . . . activity). Kissing a girlfriend when she’s asleep is apparently assault. Even where two students willingly have sex, either (or both) could be charged with sexual assault if there was any ambiguity about which acts they had consented to.⁶⁷

      Given such consequences, it may be wrong to take Yale’s regulations at face value. Nonetheless, they strongly express a sexual-autonomy-based ideal of full disclosure, of positive sexual experiences achieved through [t]alking, and of advance, affirmative consent to each specific act engaged in.

      D. Sexual Autonomy and Rape Law

      Like the Supreme Court’s right-to-privacy jurisprudence, rape law has been for decades a body of law in search of a principle, but has now seemingly found that principle in sexual autonomy.

      1. The Enigma of Rape Law

      An unanswered question lies at

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