Year: 2024
Judicial Institutionalism
Rachel Bayefsky
Associate Professor of Law, University of Virginia School of Law.
The idea of institutionalism figures prominently in today’s debates about the role of federal courts in American democracy. For example, Chief Justice Roberts is often described as an institutionalist who seeks to preserve the Supreme Court’s power or reputation. But what exactly is institutionalism, and should judges be institutionalists? Although institutionalism is invoked in public…
Dec 2024
Earning Trade Secrets
Joseph P. Fishman & Deepa Varadarajan
Professor of Law, Vanderbilt Law School, Associate Professor of Law, Georgia State University College of Law.
Every intellectual property right, like every property right generally, has a moment of birth. Whether and when that moment occurs depend on doctrines of original acquisition. In most IP regimes, these doctrines are so fundamental that they’ve been reduced to a single verb. One can get a patent only by inventing, or a copyright only…
Dec 2024
Reproductive Justice at Work: Employment Law after Dobbs v. Jackson Women’s Health Organization
Laura T. Kessler
S.J. Quinney Endowed Chair and Professor of Law, University of Utah, S.J. Quinney College of Law.
In June 2022, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade and Planned Parenthood v. Casey, landmark decisions which held that the U.S. Constitution protected a right to abortion prior to fetal viability. Overnight, about 64 million American women of childbearing age potentially lost the right to decide what…
Dec 2024
Natural‑Person Shareholder Voting
Michael Simkovic
USC Gould School of Law.
“One-share, one-vote” corporate governance often leads to inefficient negative externalities, even when shareholders care about direct harm to themselves and even if corporations respond to shareholder preferences. Because equity ownership is concentrated, while many externalities are more diffuse, corporate voting underweights externalities. But allocating votes according to the principle of “one person, one vote” creates…
Dec 2024
On Bankruptcy Appeals: Equitable Mootness as Gatekeeper to Plan Confirmation Review
Zachary R. Hunt
J.D., Cornell Law School, 2024. M.S. in Finance, University of South Florida, 2021. Senior Articles Editor, Cornell Law Review Vol. 109.
In bankruptcy appeals, the judge-made prudential doctrine of “equitable mootness” allows appellate courts to dismiss an appeal as moot when granting the requested relief would undermine the finality of a substantially consummated plan of reorganization. As applied, however, the doctrine of equitable mootness is neither mootness nor equitable. On the former, equitable mootness is not…
Dec 2024
Payment as Punishment: Establishing College Athletes as Employees to Safeguard Athlete Welfare in the “Super Conference” Era
Haley Lukas
J.D., Cornell Law School, 2025; M.B.A., Cornell SC Johnson College of Business, 2025; B.S. (Business Administration) UC Berkeley, 2017. Prior to law school, Lukas captained the NCAA Division I UC Berkeley (California) women’s soccer team and played professional soccer in multiple top divisions across Europe.
This Note argues the increased profitability and shift toward “super conferences” in Division I college athletics does not comport with the NCAA’s “revered tradition of amateurism” and justifies college athletes’ classification as employees under the Fair Labor Standards Act (FLSA). Rather than making more traditional compensation arguments rooted in fairness or market value, employment status…
Dec 2024
Treating the Administrative as Law: Responding to the “Judicial Aggrandizement” Critique
Chad Squitieri
Assistant Professor of Law, Catholic University of America, Columbus School of Law.
Modern separation-of-powers jurisprudence—including key decisions decided during the Supreme Court’s 2023-24 term—has been critiqued on the grounds that it constitutes “judicial aggrandizement,” i.e., that it impermissibly empowers federal courts to decide separation-of-powers questions better left to Congress and the President. This “judicial aggrandizement” critique goes too far to the extent it suggests that federal courts…
Dec 2024
Altered Stakes: Reimagining the Amount-in-Controversy Requirement
Steven Gensler & Roger Michalski
Gene and Elaine Edwards Family Chair in Law, Professor of Law, University of Oklahoma College of Law, Professor of Law, University of Oklahoma College of Law.
Which state-law cases should Congress allow into federal court? Congress’s answer has always been “only the big ones.” This article revisits the choice to limit diversity jurisdiction to higher-value cases and critically examines how Congress has approached setting the amount threshold. It surveys alternate ways Congress could use case value to sort which cases make…
Sep 2024
Defense Lawyering in the Progressive Prosecution Era
Jenny Roberts
Dean and Professor of Law, Maurice A. Deane School of Law, Hofstra University.
The movement to elect so-called “progressive prosecutors” is relatively new, but there is a robust literature analyzing it from a number of angles. Scholars consider how to define “progressive prosecution,” look at the movement through a racial justice lens, and examine it in the context of rural spaces, deportation, and the pandemic. One essay even…
Sep 2024
Taxing Luxury Emissions
Clinton G. Wallace & Shelley Welton
Associate Professor of Law, University of South Carolina School of Law, Presidential Distinguished Professor of Law & Energy Policy, University of Pennsylvania Carey Law School and Kleinman Center for Energy Policy.
Recent economic and sociological studies have documented the rising challenge of carbon inequality—that is, extreme class disparities in carbon emissions both within the United States and globally. These studies show an alarming divide, with the top 10% of emitters producing half of all emissions and the top 1% alone producing 17% of emissions. Meanwhile, the…
Sep 2024
Takings and Homeowners’ Expectations in Times of Rapid Climate Change
Gijs de Bra
J.D. Candidate, Cornell Law School 2025; M.S., University of Amsterdam 2019.
This Note argues that courts should give more weight to climate change when assessing the reasonable investment-backed expectations that define the owner’s property interest. First, the owner’s expectations should be viewed dynamically, evolving over time, because government regulations—climate and disaster controls in particular—must also respond to changing circumstances. Currently, expectations are fixed at the time…
Sep 2024
The Case For a Uniform Invention Assignment Agreement Act (UIAAA)
Amanda Shoemaker
J.D., Cornell Law School, 2024; B.S., Marketing and Media Arts, Bentley University, 2021.
An invention is broadly defined as “anything that is created or devised.” As the Supreme Court once remarked, “the word cannot be defined in such manner as to afford any substantial aid in determining whether a particular device involves an exercise of the inventive faculty or not.” Today, most “inventors” are employees of a corporate enterprise…
Sep 2024
Arousal by Algorithm
Amy Adler
Emily Kempin Professor of Law, NYU School of Law.
The problem of Big Tech has consumed recent legal scholarship and popular discourse. We are reckoning daily with the threats that digital speech platforms like Facebook, X (formerly known as Twitter), TikTok, and YouTube pose to our personal and political lives. Yet while this conversation is raging in discussions about the impact of technology on…
Aug 2024
Article II and the Federal Reserve
Aditya Bamzai & Aaron L. Nielson
Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law, Professor of Law, J. Reuben Clark Law School, Brigham Young University.
The Supreme Court has twice held since 2020 that statutory restrictions on the President’s removal power violate Article II of the U.S. Constitution. Because such removal restrictions create a measure of policy independence from the President, these cases have prompted discussion about the future of independent agencies generally, with special attention to the Federal Reserve…
Aug 2024
Antitrust for Immigrants
Gregory Day
Associate Professor, University of Georgia Terry College of Business; Courtesy Appointment University of Georgia School of Law; Affliated Fellow, Yale Law School Information Society Project.
Immigrants and undocumented people have often encountered discrimination because they compete against “native” businesses and workers, resulting in protests, boycotts, and even violence intended to exclude immigrants from markets. Key to this story is government’s ability to discriminate as well: it is indeed common for state and federal actors to enact protectionist laws and regulations…
Aug 2024
How the Mitigation Doctrine Produces Protections Against Workplace Discrimination
Richard A Gagliardi, III
J.D. Candidate, Cornell Law School, 2024; Ph.D. in Politics, Princeton University, 2021; A.B. in Economics and Political Science, Brown University, 2015; Online Editor, Cornell Law Review Vol. 109.
Employment discrimination weakens the American economy, contributes to inequality, and deprives individuals of career opportunities. Estimates place the annual cost of employment discrimination at over sixty-four billion dollars. Economic research further documents earnings differentials of more than thirty percent between members of different racial groups or genders. To combat employment discrimination, Congress enacted a series…
Aug 2024
Neurosearches
Josh A. Roth
J.D. Candidate, Cornell Law School, 2024; Articles Editor, Cornell Law Review Vol. 109.
Neurotechnology is advancing exponentially, and the laws of data privacy and security cannot keep pace. Soon, governments will exploit this technology in criminal investigations with what this Note calls “neurosearches.” Scholars have argued against the compelled gathering of neurological evidence as a violation of the Fifth Amendment, likening it to testimony and thus barred as…
Aug 2024
New Vision, Old Model: How the FTC Exaggerated Harms When Rejecting Business Justifications for Noncompetes
Alan J. Meese
Ball Professor of Law and Director, Center for the Study of Law & Markets, William & Mary Law School.
The Federal Trade Commission has rejected consumer welfare and the Rule of Reason—standards that drove antitrust for 50 years—in favor of a “NeoBrandeisian” vision. This approach seeks to enhance democracy by condemning abuses of corporate power that restrict the autonomy of employees and consumers, regardless of impact on prices or wages. Pursuing this agenda, the…
Jun 2024
A Common Law for the Age of Amici: How the Party-Presentation Principle Can Help Identify Binding Precedent
David S. Coale
Partner, Lynn Pinker Hurst & Schwegmann, LLP, Dallas, Texas.
Two recent Supreme Court cases suggest an additional dimension for the traditional test that distinguishes dicta from holding. In the first, United States v. Sineneng-Smith, the Ninth Circuit reversed a criminal conviction based on arguments made by amici appointed by that court. The Supreme Court then reversed 9-0, holding that the Ninth Circuit’s handling of…
May 2024
The Right to a Glass Box: Rethinking the Use of Artificial Intelligence in Criminal Justice
Brandon L. Garrett & Cynthia Rudin
L. Neil Williams, Jr. Distinguished Professor of Law, Duke University School of Law and Faculty Director, Wilson Center for Science and Justice, Earl D. McLean, Jr. Professor of Computer Science, Electrical and Computer Engineering, Statistical Science, Mathematics, and Biostatistics & Bioinformatics, Duke University.
Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how…
Apr 2024
Excuse 2.0
Yehonatan Givati, Yotam Kaplan & Yair Listokin
Sylvan M. Cohen Professor at Hebrew University Law School, Professor at Hebrew University Law School, Deputy Dean and the Shibley Family Fund Professor of Law at Yale Law School.
Excuse doctrine presents one of the great enigmas of contract law. Excuse allows courts to release parties from their contractual obligations. It thus stands in sharp contrast to the basic principles of contract law and adds significant uncertainty to contract adjudication. This Article offers a crucial missing perspective on the doctrine of excuse: the view…
Apr 2024
Forced Robot Arbitration
David Horton
Martin Luther King Jr. Professor of Law, University of California, Davis, School of Law.
Recently, advances in artificial intelligence (“AI”) have sparked interest in a topic that sounds like science fiction: robot judges. Researchers have harnessed AI to build programs that can predict the outcome of legal disputes. Some countries have even begun allowing AI systems to resolve small claims. These developments are fueling a fascinating debate over whether…
Apr 2024
Collective Disagreement: The Uneasy Interaction of the FLSA and FRCP 4(k) After Bristol-Myers Squibb
Ronahn Clarke
J.D. Candidate, Cornell Law School, 2024; B.A., Philosophy and Classical Civilization, Colby College, 2021.
Across the country, due to a circuit split over the meaning of Federal Rule of Civil Procedure (“Rule”) 4(k), federal courts are enforcing the Fair Labor Standards Act (“FLSA”) inconsistently. This Note argues that, under the current state of the law, Rule 4(k) must be read to apply to out-of-state opt-in employee-plaintiffs’ claims and FLSA…
Apr 2024
Dependent Contractors? The Case for Giving Non-Competes a Central Role in Worker-Classification Tests Under Federal Law
Cameron Misner
J.D. Candidate, Cornell Law School, 2024; B.A. in Political Science, University of Indianapolis, 2021.
As legal commentators and policymakers have taken greater notice of the harms that covenants not to compete (“noncompetes”) cause workers, they have offered numerous policy proposals seeking to curb those harms. Indeed, the Federal Trade Commission proposed an outright ban on non-competes on January 5, 2023. None of these policy proposals have yet become law…
Apr 2024
Eliminating the Common Law Limitations on Force Majeure Clauses
Ben Luo
J.D. Candidate, Cornell Law School 2024; B.A., University of California, Berkeley 2020.
This Note will argue that as a matter of law, courts should not apply common law limitations when interpreting catch-all provisions in contractual force majeure clauses. Instead, to properly limit the potential all-encompassing scope of force majeure catch-alls, courts should rely on the more general principles of contract interpretation. Part I of this Note will…
Feb 2024
One-Offs
William D. Araiza
Stanley A. August Professor of Law, Brooklyn Law School.
This Article examines the phenomenon of “one-offs”: court opinions that are rarely cited by the court that issued them and do not explicitly generate further doctrinal development. At first glance, one might think that such opinions are problematic outputs from an apex court such as the U.S. Supreme Court, whose primary tasks are the exposition…
Feb 2024
Penalizing Prevention: The Paradoxical Legal Treatment of Preventative Medicine
Doron Dorfman
Associate Professor of Law, Seton Hall Law School Faculty.
Preventive medicine, which includes interventions intended to preempt illnesses before they surface, has long been a priority for furthering public health goals and improving quality of care. Yet, preventive medicine also sends strong signals about the possible risks associated with the users’ behavior and character. This signaling effect intersects with existing stigma and pervades law…
Feb 2024
Rape as Indignity
Ben A. McJunkin
Associate Professor of Law, Sandra Day O’Connor College of Law at Arizona State University; Associate Deputy Director, Academy for Justice.
Rape law has a consent problem. The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially. It is now widely taken as axiomatic that nonconsensual sex is paradigmatic of rape. But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law…
Feb 2024
Lethal Immigration Enforcement
Abel Rodriguez
Assistant Professor of Law, St. John’s University School of Law.
Increasingly, U.S. immigration law and policy perpetuate death. As more people become displaced globally, death provides a measurable indicator of the level of racialized violence inflicted on migrants of color. Because of Clinton-era policies continued today, deaths at the border have reached unprecedented rates, with more than two migrant deaths per day. A record 853…
Feb 2024
Regulating Crisis Pregnancy Centers: the State Attorney General Perspective
Yue Wu
J.D., Cornell Law School, 2024; B.A., Carleton College, 2019.
This Note will discuss state AGs’ role in addressing CPC regulations and in fighting questionable CPC practices. Part I introduces CPCs and their history, describes some of the earlier efforts in combating deceptive CPC practices, and summarizes the supreme Court’s NIFLA ruling that invalidated legislation designed to curb CPC harm. Part II grapples with the…
Jan 2024