Cornell Law Review

Treating Each Applicant as an Individual in Students for Fair Admissions v. Harvard and its Key Precedents

Jiayu Liu

J.D., Cornell Law School, 2024; B.S.S., Political Science and Economics, University of Hong Kong, 2017. The author would like to thank Professor Andrei Marmor for his comments and guidance. The author would also like to thank the editors of Cornell Law Review for preparing this Note for publication.

This Note argues that the Supreme Court’s shifting attitude towards race-conscious school admissions can be best understood by making sense of the Court’s gradually elevated requirements of individuality in school admissions. Specifically, this note argues that (1) treating each applicant as an individual has been a constitutionally necessary, but not constitutionally sufficient, requirement since Bakke;…

May 2025

Blazing a Trail for the Enhanced Enforcement of Women’s Rights: Erga Omnes Partes Standing

Kathryn A. Donoho

J.D./L.L.M., Cornell Law School, 2026; M.B.A., Cornell Johnson Graduate School of Management, 2026; B.B.A. (Economics) and Bachelor of Accountancy, University of San Diego, 2017. A special thank you to Sandra L. Babcock, Elizabeth W. Brundige, Muna B. Ndulo, Radwa S. Elsaman, and Valeria Chiappini for your helpful feedback and insight on this Note.

The revolutionary principle of erga omnes partes standing can be utilized as an enforcement tool for the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”). Recent judicial developments within the International Court of Justice propel this argument forward, providing a novel solution to enforce international human rights obligations. While erga omnes…

May 2025

Tax Law as Muse

Brian Soucek 

Professor of Law and Chancellor’s Fellow, University of California, Davis School of Law. Ph.D. (Philosophy), Columbia University; J.D., Yale Law School. The author beneftted from conversations on this topic with BJ Ard, Joseph Blocher, Gregory Day, Jonathan Neufeld, Robert Post, Daniel Rauch, Darien Shanske, Dennis Ventry, my co-panelists at the 2019 Annual Meeting of the Law and Society Association, the audience at the 2022 Pacifc Division Meeting of the American Society for Aesthetics, and participants at the Fourth Annual Art Law Works-in-Progress Colloquium at New England Law School and the Twelfth Annual Freedom of Expression Scholars Conference at Yale Law School. The author is also thankful for research help from David Holt and an unusual number of tireless research assistants: Heather Bates, Chester Dubov, Jon Morgan Florentino, Cobi Soda Furdek, Nicholas Mak-Wasek, Jane Martin, Jack Mensik, Sydney Simon, and Linda Tauscher. And the author is grateful to Dean Kevin Johnson, Dean Jessica Berg, and the UC Davis School of Law for supporting their (and my) work through the Martin Luther King, Jr. Hall Research Fund.

Jennifer C. Lena 

Associate Professor of Arts Administration, Teachers College, Columbia University. Ph.D. (Sociology), Columbia University.

Admission charges at Chicago’s small music venues are generally exempt from tax. But a few years ago, officials came after clubs that hosted rock, hip-hop, country, and DJ performances, claiming that those kinds of music weren’t “commonly regarded as part of the fine arts.” Controversy exploded, critics derided the idea of turning tax collectors into…

May 2025

Is Death Different?

Jacob Bronsther 

Associate Professor of Law, Michigan State University College of Law, J.D., M.Phil., Ph.D. For their incisive comments and discussion, the author is grateful to Andrea Armstrong, Rachel Barkow, Kristen Bell, David Blankfein-Tabachnick, Vincent Chiao, James Chen, Alma Diamond, Raff Donelson, Avlana Eisenberg, Sheldon Evans, Lindsay Farmer, Chad Flanders, Charles Fried, Jonathan Gingerich, John Goldberg, Linda Greene, Catherine Grosso, Irene Oritseweyinmi Joe, Erin Kelly, Alexandra Klein, Josh Kleinfeld, Guha Krishnamurthi, Nicola Lacey, Christopher Lewis, Marah McLeod, Erin Miller, Kathryn Miller, Erin Murphy, Carmel Nemirovksy, Alex Platt, Peter Ramsay, Shalev Roisman, Steve Schaus, Amy Sepinwall, Marissa Jackson Sow, Carol Steiker, Victor Tadros, Will Thomas, James Tierney, Robin West, and the participants of presentations at Harvard Law School, the Law and Humanities Junior Scholars Workshop at the University of Pennsylvania, the London School of Economics and Political Science, the Maryland Discussion Group on Constitutionalism, Michigan State University College of Law, the University of Oklahoma College of Law, the AALS Jurisprudence Section’s Works-in-Progress Workshop, the ABA-AALS-Academy for Justice Workshop, the Decarceration Works-in-Progress Workshop, and the Junior Scholars Legal Research Workshop. The authors thanks also Timothy Innes for his excellent research assistance, and Ryan Ming-Yuan Lee and his colleagues at the Cornell Law Review for their thoughtful work.

This Article attempts to unite the movements against the death penalty and mass incarceration. The central argument is that many noncapital sentences are in the same category of injury as the death penalty. Thus, whatever the law says (or ought to say) about the legitimacy of the death penalty, it should also say about these…

May 2025

Copyright’s Latent Space: Generative AI and the Limits of Fair Use

BJ Ard 

Associate Professor of Law, University of Wisconsin Law School, and Affliate Fellow, Yale Information Society Project. The author thanks Oren Bracha, Robert Brauneis, Carys Craig, R. Feder Cooper, Rebecca Crootof, Deven Desai, Justin Hughes, Mark Lemley, Glynn Lunney, Michael Murray, David Nimmer, Jacob Noti-Victor, Blake Reid, Matthew Sag, Frederic Sala, Benjamin Sobel, Madhavi Sunder, Charlotte Tschider, Molly Shaffer Van Houweling, Christopher Yoo, and Peter Yu for feedback on this project, along with participants at the Fifth Annual Art Law Works-in-Progress Colloquium, 2024 Copyright Scholarship Round-table, UW Integrating Robots into the Future of Work Colloquium, 2024 Legal Scholars Roundtable on AI, Texas A&M School of Law Transformation in IP and Technology Law Symposium, 2024 Works-in-Progress for IP Colloquium, and faculty workshops at UGA and UW law schools. The author also thanks Kate Bishop, Peter Feider, John Lavanga, and Rosemary Patton for excellent research assistance. Research support was provided by the Office of the Vice Chancellor for Research and Graduate Education at UW with funding from the Wisconsin Alumni Research Foundation.

Generative AI poses deep questions for copyright law because it defies the assumptions behind existing legal frameworks. The tension surfaces most clearly in debates over fair use, where established tests falter in the face of generative systems’ distinctive features. This Article takes up the fair-use question to expose copyright’s limitations as well as its latent…

May 2025

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…

Apr 2025

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…

Apr 2025

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…

Apr 2025

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…

Apr 2025

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…

Apr 2025

Synthetic Data and the Future of AI

Peter Lee

Martin Luther King Jr. Professor of Law and Director, Center for Innovation, Law, and Society, UC Davis School of Law.

The future of artificial intelligence (AI) is synthetic. Several of the most prominent technical and legal challenges of AI derive from the need to amass huge amounts of real-world data to train machine learning (ML) models. Collecting such real-world data can be highly difficult and can threaten privacy, introduce bias in automated decision making, and…

Mar 2025

Animal Rights Before Legal Personhood

Ethan Prall 

Fellow and Doctoral Student, University of Miami, Rosenstiel School of Marine, Atmospheric, and Earth Science (JD, Harvard Law School; MTS, Duke University).

Growing scientific evidence shows that vast numbers of nonhuman animals are feeling, sentient beings, and ethicists have argued that this means they have moral value. However, law’s integration of individual animals as subjects with greater protection has been slow, despite the terrible threats that animals face today from human drivers like anthropogenic climate change and…

Mar 2025

In Pursuit of Quality: Amplifying Panel Effects on the United States Courts of Appeals

John McCloud 

J.D. Candidate, Cornell Law School, 2025. B.S. in Mechanical Engineering, University of California, Berkeley, 2020. Admissions & Membership Editor, Cornell Law Review Vol. 110.

The Shouldice Hospital, a medical center outside of Toronto, has become well known for bucking prevailing medical norms. Rather than performing the full panoply of medical services, like most hospitals, it focuses on a single type of surgery— hernia repair. The surgeons at Shouldice perform up to 800 hernia repairs per year, more than a…

Mar 2025

On “Death Houses” and “Kill Boxes”: The Death Penalty and Animal Slaughter

John H. Blume

Samuel F. Leibowitz Professor of Trial Techniques, Cornell Law School and Director the Cornell Death Penalty Project.

This Essay is somewhat unusual for a Symposium of this nature honoring the scholarship (and of course the memory) of my former colleague and friend Sherry Colb. I will not engage directly with an article or book Sherry did write, but rather with one that she didn’t. Sherry (and her husband and frequent coauthor Michael…

Feb 2025

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…

Feb 2025

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

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

Getting to Death: Race and the Paths of Capital Cases After Furman

Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law and Professor of Epidemiology, Columbia University; Garth Davies, Associate Professor of Criminal Justice, Simon Fraser University; and Raymond Paternoster, Professor of Criminology and Criminal Justice, University of Maryland

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment…

Sep 2022

Ghosts of Executions Past: A Case Study of Executions in South Carolina in the Pre-Furman Era

John H. Blume, Samuel F. Leibowitz Professor of Trial Techniques at Cornell Law School and Director of the Cornell Death Penalty Project

The protracted and (somewhat) ongoing debate over whether lethal injection—in some or all of its forms—is cruel and unusual punishment under the Eighth Amendment is the newest variation on the question of whether a particular form of capital punishment is inhumane and cruel. The history of capital punishment in the United States over the last…

Sep 2022

Explaining the Invidious: How Race Influences Capital Punishment in America

Sheri Lynn Johnson, James and Mark Flanagan Professor of Law, Cornell Law School

This Article primarily focuses on how racial bias creates nearly ubiquitous racial disparities in the imposition of the death penalty; it does so both to amass further reasons McCleskey was wrongly decided, and to point the way forward. Part I provides the necessary foundation by summarizing the history of race and the death penalty in…

Sep 2022

Little Furmans Everywhere: State Court Intervention and the Decline of the American Death Penalty

Carol S. Steiker, Henry J. Friendly Professor of Law, Harvard Law School & Jordan M. Steiker, Judge Robert M. Parker Endowed Chair in Law, University of Texas School of Law.

In 1972, the California Supreme Court in People v. Anderson and the U.S. Supreme Court in Furman v. Georgia abolished the death penalty pursuant to state and federal constitutional law, respectively. Both decisions evoked enormous popular backlash in an era of rising violent crime rates, including the Charles Manson murders in California and an increased…

Sep 2022

The Modern Federal Death Penalty: A Cruel and Unusual Penalty

Hannah Freedman, Staff Attorney and the Director of Juvenile Litigation, Justice 360 and adjunct clinical professor, Cornell Law School

The federal death penalty today would be unrecognizable to the founders, who saw the ultimate penalty as a means of protecting sovereign interests and who therefore carefully guarded the practice at English common law of yielding national interests to local ones. Over the course of time, the geographic distribution and substantive basis for the penalty…

Sep 2022

AEDPA Repeal

Brandon L. Garrett, L. Neil Williams Jr. Professor of Law, Duke University School of Law and Director, Wilson Center for Science and Justice & Kaitlin Phillips, J.D., 2021, Duke University School of Law

Given how pressing the problem has become, and the real interest in reforms to promote access to justice, this Article takes a different tack than prior habeas reform work: to restore habeas corpus to its pre-AEDPA and pre-Rehnquist court state, in which a federal court can review claims and reach their merits. The approach would…

Sep 2022

Is Unpublished Unequal? An Empirical Examination of the 87% Nonpublication Rate in Federal Appeals

Rachel Brown, Jade Ford, Sahrula Kubie, Katrin Marquez, Bennett Ostdiek & Abbe R. Gluck, Yale Law School Class of 2020

Federal judges resolved more than eighty-seven percent of appeals through unpublished opinions over the past five years. These dispositions are non-precedential and typically contain abbreviated reasoning. Such high rates of nonpublication may be difficult to reconcile with the core values of the federal judiciary—values grounded in precedent, reason-giving, and equal treatment. After intense attention to…

Apr 2022

When Patients Are Their Own Doctors: Roe v. Wade in an Era of Self-Managed Care

Yvonne Lindgren, Associate Professor of Law, University of Missouri-Kansas City. J.S.D, LL.M., U.C. Berkeley School of Law; J.D., Hastings College of Law; B.A., U.C.L.A.

It is a critical time to re-examine the gatekeeper framing of the abortion right considering the dramatic conservative shift in the Supreme Court that threatens Roe, and in the midst of a pandemic, which—in a complete reversal of the Roe period—renders in-person care by a provider potentially dangerous. In January, the Supreme Court’s first abortion…

Apr 2022

Protecting Dissent: The Freedom of Peaceful Assembly, Civil Disobedience, and Partial First Amendment Protection

Nick Robinson & Elly Page, Senior Legal Advisors at the International Center for Not-for-Profit Law

Protesters in the United States frequently engage in peaceful unlawful conduct, or civil disobedience, such as blocking traffic or trespass. Often citing to the First Amendment, authorities will routinely decline to arrest or prosecute this nonviolent conduct or do so for lesser offenses than they could. This treatment, though, can vary considerably by location, issue,…

Apr 2022

Independence in the Interregnum: Delayed Presidential Transitions and the GSA Administrator’s Ascertainment Under the Presidential Transition Act of 1963

Christopher D. Johnson, Cornell Law Class of 2021; Articles Editor, Cornell Law Review, Volume 106

If presidential transitions are so important, should a political appointee whose performance is subject to the control and direction of the outgoing President have virtually unfettered discretion to determine whether they have the resources they need to succeed? This Note answers that question in thenegative. It argues that the ascertainment the PTA assigns to the…

Apr 2022

Stealing From the Poor: Regulating Robinhood’s Exchange-Traded Options for Retails Investors

Chris Mao, J.D. Candidate, Cornell Law School Class of 2022

During the height of the COVID-19 pandemic, Robinhood, a brokerage-free stock trading app, saw a meteoric rise in account holders, with Americans seeking new income streams during times of economic hardship, unemployment, and, at times, sheer boredom. The ensuing trading activity significantly impacted the country’s stock market—a result of not only Robinhood’s three million new…

Apr 2022

Constitutional Rights in the Machine-Learning State

Aziz Z. Huq

Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School. 

This Article offers a start to the larger project of developing a general account of substantive rules and enforcement mechanisms to promote due process, privacy, and equality norms in the machine-learning state. Cataloging notable state and municipal adoptions of machine-learning tools, it considers how existing constitutional norms can be recalibrated (in the case of due process and equality) or retooled (in the case of privacy). It further reexamines the enforcement regime for constitutional interests in light of machine learning’s dissemination. Today, constitutional rights are (largely) enforced through discrete, individual legal actions. Machine learning’s normative implications arise from systemic design choices. The retail enforcement mechanisms that currently dominate the constitutional remedies context are therefore particularly ill fitting. Instead, a careful mix of ex ante regulation and ex post aggregate litigation, which are necessary complements, is more desirable.

Nov 2020

Presidential War Powers, The Take Care, and Article 2(4) of the U.N. Charter

Brian Finucane

The author serves as an attorney-adviser at the U.S. Department of State. He prepared this Article in his personal capacity, and the views expressed here do not necessarily represent the views of the Department of State or the U.S. government. 

This Article argues that by virtue of the Take Care Clause Article 2(4) of the U.N. Charter binds the President as a matter of domestic law. In substantiating this proposition, this Article relies primarily upon the arguments of the Executive Branch itself in three superficially distinct, though interrelated domains. By synthesizing Executive Branch views on war powers, the Take Care Clause, and Article 2(4), this Article shows how presidential arguments advancing claims of authority also delineate the scope of the corresponding constitutional duties. The Take Care Clause gives and takes at once. If the President is not constrained by treaties, the President also lacks the power to execute them.

I rebut a 1989 Office of Legal Counsel memorandum by now-Attorney General William Barr that concluded that the President may unilaterally “override” Article 2(4) because the treaty provision is non-self-executing and because the use of force is a “political question.” I explain that, though the political question and non-self-execution doctrines may be relevant to the justiciability of Article 2(4) in the courts, neither is dis-positive as to the status of Article 2(4) as a “Law” that the President is obligated to faithfully execute. The conclusion that Article 2(4) is a “Law” has significant implications for the allocation of war powers. Contrary to Barr’s 1989 memo, by virtue of the last-in-time rule, it is Congress—not the President—that possesses the authority to “override” this treaty provision.

Nov 2020