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Current Print Issue

Are Anticompetitive Contracts Enforceable? The Illegality Defense and Modern Anticompetitive Contracts

William Friedman

Trial Attorney, Civil Conduct Task Force, Antitrust Division, Department of Justice. Dartmouth College, A.B. 2011; J.D. Duke Law School, 2015. The views expressed in this article are personal to the author and do not necessarily reflect those of the United States Department of Justice. The author thanks Scott Ballenger, Daniel Francis, Dan Guarnera, Devin Redding, and the Cornell Law Review editorial staff for their helpful comments and guidance.

This Article argues that contracts that violate Section 1 of the Sherman Act should not be enforceable. Although seemingly modest, courts do not accept this proposition. When a defendant in a breach of contract action raises the defense of “illegality” under the Sherman Act, courts will likely reject the defense unless the contractual provision at…

Creditors, Shareholders, and Losers in Between: A Failed Regulatory Experiment

Albert H. Choi & Jeffery Y. Zhang

Paul G. Kauper Professor of Law at the University of Michigan Law School and Research Member at the European Corporate Governance Institute (“ECGI”); and Assistant Professor of Law at the University of Michigan Law School. The authors thank Daryl Dietsche and Jacob Gerszten for outstanding research assistance as well as the following for insightful conservations: Lucy Chang, Gary Gorton, Howell Jackson, Ryan Rossner, Nicholas Tabor, Mark Van Der Weide, and seminar participants at Vanderbilt Law School, the Williams College Economics Department, the Sixth Conference on Law and Macroeconomics, the International Insolvency Institute Annual Meeting, the AALS Annual Conference, and the ALEA Annual Conference. Finally, the authors thank the editors of the Cornell Law Review for their helpful comments and suggestions.

In the aftermath of the 2007–08 Global Financial Crisis, regulators encouraged many of the world’s largest banks to hold a new type of regulatory instrument with the goal of improving their safety and soundness. The regulatory instrument was known as a “CoCo,” short for contingent convertible bond. CoCos are neither debt nor equity. They are…

Social Network as Work: A Labor Paradigm for Regulating Speech on Social Media

Francesca L. Procaccini

Assistant Professor of Law, Vanderbilt Law School. For insightful comments and discussions, I thank Rebecca Allensworth, Jack Balkin, Lisa Bressman, Edward Cheng, Gregory Day, Evelyn Douek, Cynthia Estlund, Noah Feldman, Nikolas Guggenberger, Chris Guthrie, Claudia Haupt, Thomas Kadri, Daphne Keller, Genevieve Lakier, Artur Pericles Lima Monteiro, Martha Minow, Blake Reid, Peter Salib, Christopher Serkin, Daniel Sharfstein, Ganesh Sitaraman, Christopher Slobogin, Kevin Stack, Xiangnong (George) Wang, Laura Weinrib, and participants of the Yale Freedom of Expression Scholars Conference and Washington University School of Law Faculty Workshop. Special thanks to Francisco Collantes for superb research assistance and to the editors of the Cornell Law Review for impeccable editing.

Social media has eluded regulation by taking refuge in the First Amendment. The First Amendment, scholars and lawmakers overwhelmingly argue, is a formidable obstacle to regulation because social media facilitates the creation and exchange of speech by users. The received wisdom, therefore, characterizes users as consumers of a speech-related service, which inevitably does raise thorny…

Protecting Entitlement-Holders with a Uniform Meaning of Fifth Amendment Property

Cameron Misner

J.D., 2024. Cornell Law School. I’m grateful to the to the notes editors at Cornell Law Review for lending their talents to this Note, to Professor Gali Racabi for inspiring the research, and to Professor Michael Dorf for helpful feedback.

Courts and commentators take it as given that the word “property” in the Fifth Amendment’s Due Process Clause refers to a broader class of assets than does the word “property” in the Fifth Amendment’s Takings Clause. In this Note, I challenge that assumption and argue that takings “property” ought to include the same assets that…

Murder, Multiple Values, and Harmless Free Exercise Error

Josiah Rutledge

Law Clerk to the Hon. Martha M. Pacold, United States District Court for the Northern District of Illinois. Thank you to Professor Nelson Tebbe for overseeing this project, and to the members of the Religion & The Constitution directed reading group: Gabrielle Blom, Michelle Briney, Carolyn Click, Kate Dolbear, Patrick George, Trinity Kipp, Pierre Saint-Perez, and Gigi Scerbo. Finally, thank you to all the members of the Cornell Law Review Notes Office.

Happily, ours is a country dedicated to religious toleration. Among the “crucial principles of our liberal democracy” is that “Americans should freely practice their religions, and government should not establish any religion.” Not content to let those principles remain aspirational, we give them legal force in the form of the Free Exercise and Establishment Clauses…

Current Online Issue

The “Section 122 Revolution” in Delaware Corporate Law and What to Do About It

Zachary J. Gubler

Marie Selig Professor of Law, Arizona State University, Sandra Day O’Connor College of Law.

Recently, the Delaware General Assembly amended Delaware’s corporate code to allow boards to delegate their decision-making powers to stockholders via contract. These amendments are significant because they effectively overturn a recent Delaware Chancery opinion. They’re also problematic, for two reasons: (1) because they are out of step with the best reading of Delaware corporate law—what…

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…