Category: xArchives
Mass-Tort Trusts and the Faustian Bargain
Suneal Bedi & Samir D. Parikh
Associate Professor of Business Law & Ethics, Jerome Bess Faculty Fellow, Kelley School of Business, Indiana University. Ishani Sachdeva provided excellent research assistance.
Professor of Law, Wake Forest School of Law. For helpful comments and conversations, I am grateful to Ronit Berkovich, Judge Shelley Chapman (ret.), Judge Robert Drain (ret.), Eric Green, Laura Davis Jones, Jessica Lauria, and Judge James Peck. Davis Hayter, Mark Lee, and Austin Magleby provided excellent research assistance. As always, I thank my family for their unwavering support.
In bankruptcy, establishing a mass-tort trust is the final piece in structuring resolution of protracted aggregate litigation faced by a corporate debtor. As seen in cases like Purdue Pharma and Boy Scouts of America, the multibillion-dollar aggregate settlement figure captures all the headlines. But the trust distribution provisions—which actually provide the details of how individual…
May 2026
Phase II: Managing the Remedial Phase in Aggregate Litigation
Alexandra D. Lahav
Anthony W. and Lulu C. Wang Professor, Cornell Law School. Conflicts of interest disclosure: The author has been a paid expert on how to approach Phase II in litigation. Many thanks to the editors of the Cornell Law Review and to Tom Baker, David Hoffman, Brian Fitzpatrick, Joe Sellers and participants in the University of Pennsylvania and Vanderbilt University law school workshops for excellent comments that helped improve this Article.
This Article proposes nine methods for dealing with the damages phase in a mass tort or mass accident situation after an issue class action on liability has been certified and plaintiff has prevailed on liability in Phase I or once a case has been filed in a bankruptcy court and needs to be valued. Courts,…
May 2026
The Alchemist’s Inversion
Samir D. Parikh
Professor of Law, Wake Forest University School of Law. For helpful comments and conversations, I am grateful to John Abegg, Suneal Bedi, John Beisner, Andrew Bradt, Elizabeth Cabraser, Sergio Campos, Zachary Clopton, Alex Dahl, Hon. Robert Drain, Nora Freeman Engstrom, Page Faulk, Peter Gardner, Maria Glover, Jason Joy, Alexi Lahav, Jessica Lauria, Matt Linder, Jim Murdica, Edward Neiger, Leigh O’Dell, Billy Organek, Robert Rasmussen, Teddy Rave, Chris Seeger, Emily Siegel, Brennan Torregrossa, Chaz Vandemotter, Anupama Yerramalli, and participants at the Duke-UNC-UVA-Wake Forest Business Law Colloquium and the Law & Economics Center’s Third Party Litigation Research Roundtable. I thank my family for their unwavering support.
Litigation finance makes the world go round. The capital financiers provide is the lifeblood for plaintiffs’ firms and individual claimants attempting to run the litigation gauntlet in high-stakes battles with wealthy corporate entities. Third-party litigation funding in general litigation is well documented and frequently discussed. But the role financiers play and the dynamics they create…
May 2026
Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funders’ Intermeddling
Maya Steinitz
Professor of Law and R. Gordon Butler Scholar in International Law at Boston University Law School. I thank Nora Freeman Engstrom, Brian Fitzpatrick, Nancy Moore, Jessica Silbey, Chris Robertson, Mike Maurer, Nathan Miller, Abigail Field, and the participants of Boston University School of Law’s faculty workshop for their comments. I am also grateful to Ryan Reimers and Robert Madden for their research assistance. The Author occasionally serves in litigation finance matters as an expert witness or consultant to plaintiffs, defendants, litigation funding firms, law firms, and investors.
The main debate surrounding litigation funding in recent years has focused on the question of disclosure of funding agreements. While the issue is important, predominantly because of its effects on the course and outcome of individual cases, far more important are bigger, interrelated questions that have systemic effects on the civil justice system, the legal…
May 2026
The Ordinary and Extraordinary in Mass Tort Litigation
Andrew D. Bradt & Sergio J. Campos
Shannon Cecil Turner Professor of Jurisprudence, University of California, Berkeley, School of Law. Email: abradt@law.berkeley.edu. Phone: (510) 664-4984.
Professor of Law, Boston College Law School. Email: sergio.campos@bc.edu. Phone: (617) 552-4387. The authors would like to thank Abbe Gluck, Alexi Lahav, Samir Parikh, Adam Zimmerman, and the participants at a summer workshop at Boston College Law School for their comments. Emma McMillan and Chloe Heller provided excellent research assistance. All errors are our own.
Mass torts have inspired a number of innovative procedural approaches. They include creative uses of class actions, multidistrict litigation (“MDL”) and, more recently, the bankruptcy system. These procedural innovations have been challenged as a “revolution” that departs from “traditional litigation goals,” particularly our “deep-rooted tradition” of one having their “day in court.” In this Essay,…
May 2026
MDL Strikes Back
Andrew D. Bradt, Zachary D. Clopton & D. Theodore Rave
Bradt is the Shannon Cecil Turner Professor of Jurisprudence at University of California Berkeley School of Law, Clopton is the Daniel Hale Williams Professor of Law at Northwestern University School of Law, and Rave is the Bernard J. Ward Centennial Professor of Law at the University of Texas School of Law. Thanks to Bruce Markel, Troy McKenzie, and David Molton for helpful conversations. Madeline Love and Jackson Roberg provided excellent research assistance.
One of the crucial insights of the judges responsible for the Multidistrict Litigation Act was that no one could opt out. Indeed, the whole idea of MDL is that everyone is stuck there, required to participate in pretrial proceedings until the litigation is resolved or the Judicial Panel on Multidistrict Litigation (JPML) decides it’s time…
May 2026
Her Fundamental Right To Procreate: The Unconstitutionality Of Abortion Bans
Yasmine Leila Kasra
J.D., Cornell Law School, 2026; B.A., Government, Cornell University, 2022. I would like to extend my gratitude to Professor Nelson Tebbe for the generosity of his time and guidance, along with the Cornell Law Review editors for assisting in the publication of this Note. Most importantly, I would like to thank my mother and father for teaching me to have courage in my convictions and speak loudly against injustice. I hope this Note does just that.
As she was wheeled into surgery, Amber Thurman said to her mother, “Promise me you’ll take care of my son.” She was suffering a rare complication from the abortion pill that she was legally prescribed at nine weeks of pregnancy. Not all of the fetal tissue had been expelled, and, as a result, she needed…
Mar 2026
A Call To Eradicate The Reid Technique: An Alternative To Deceptive Interrogations
Marieya E. Jagroop
J.D., Cornell Law School, 2026; B.A., Political Science, Macaulay Honors College at CUNY John Jay College of Criminal Justice, 2023. Thank you to the editors of Cornell Law Review for their suggestions and edits. This Note is dedicated to the innocent who were pressured to confess and to those working to make sure it never happens again. To truth, fairness, and the hope of a better future.
The use of manipulative interrogation techniques by police officers in the United States, specifically the Reid Interrogation Technique, is like a psychological tsunami. The steam-rolling effect of utilizing intense pressure and police deception to intimidate suspects into confessing to crimes has resulted in false confessions and wrongful convictions, which disparately impact the Black community, youth,…
Mar 2026
The Public/Private Home
Clare Ryan
Associate Professor of Law, University of Alabama School of Law. My deepest thanks to the participants in the 2023 and 2024 Family Law Scholars and Teachers Conferences, the 2024 West Coast Gender, Sexuality, and the Law Conference, the 2024 Law & Society Association Annual Meeting, the Northeastern University School of Law faculty colloquium, the Yale Law School PhD in Law 10th Anniversary conference, and the 2024 Junior/Senior Faculty workshop, as well as to my wonderful colleagues at the University of Alabama School of Law for their insights. I am also grateful to my excellent research assistants, Margaret-Anne Stewart, Sydney Hardern, and Bailey Ruhm for their hard work. My thanks to the editors of Cornell Law Review.
Families today are more private and more public than traditional family law doctrine ever envisioned. This Article reveals how many elements of family life, which the law often assumes will occur in public—work, school, social life—have moved into the private sphere of the home. While at the same time, private family life has become increasingly…
Mar 2026
A Critical Analysis Of Rap Shield Laws
Alexa Perez
Assistant Professor of Law at Drake University Law School.
Many thanks to Andrea Dennis, Laura Appleman, Erin Sheley, Danielle Shelton, Anthony Gaughan, Andrew Jurs, Mark Kende, Joseph Schomberg, and the participants at the 2024 Evidence Summer Workshop at Vanderbilt Law School and the 2024 Women in Law Teaching Works-in-Progress Workshop at the University of Minnesota Law School for helpful comments and suggestions. For research support, many thanks to Rachel Rozendaal, Michael Blankenship, and the Drake University Law School Library, particularly Karen Wallace, Lexi Brennan, Rebecca Lutkenhaus, and David Hanson. Thanks also to the editors of the Cornell Law Review for their excellent editing and professionalism.
For years, scholars have been sounding the alarm on “rap on trial,” or the use of rap as evidence in criminal proceedings, pointing out that the fundamental characteristics of rap music make it uniquely susceptible to misinterpretation and prejudice. Scholars have also cautioned that rap on trial has the potential to chill artistic expression in…
Mar 2026
Formulating Public Pharma
Shweta Kumar
Assistant Professor of Law, University of Kentucky J. David Rosenberg College of Law. I am very grateful to Christopher Morten, John F. Duffy, Joshua Sarnoff, Sapna Kumar, George Horvath, Anya Prince, Larry Solum, Amanda Levendowski, Omolara Bewaji Joseney, Sarah Dorman, Regina Wang, Ashlynn Kendzior, and Sophia Tan for their incredible expertise and insights on this paper. Thank you to the scholars and organizers at the Wiet Life Science Law Scholars Workshop, ASMLE Health Law Professors Conference, Intellectual Property Scholars Conference, and Mid-Atlantic Clinicians Writing Workshop who provided valuable suggestions and helped me workshop this paper.
In 2022, prices for both brand-name and generic drugs in the United States were nearly three times as high as prices in comparably industrialized nations, with the cost of insulin products in particular being nearly ten times as high. As a result, three out of ten American adults cannot afford to take their medication as…
Mar 2026
Copyright’s Invisible Hand: Subsidizing America’s Cultural Institutions
Guy A. Rub
Vincent J. Marella Professor of Law, Temple University Beasley School of Law.
The doctrine of copyright exhaustion conceals a substantial and underappreciated subsidy at the heart of American copyright law. For more than a century, it has operated as a deliberate congressional scheme transferring billions of dollars in value to cultural institutions, such as libraries, museums, and galleries. This Essay reconceptualizes copyright law as a system of…
Feb 2026
The Beginnings Of The One Big Beautiful Bill Act: Placing The 2017 Tax Cuts And Jobs Act In Historical Perspective
Amanda Borwegen & Ajay K. Mehrotra
J.D. 2025, Northwestern Pritzker School of Law; B.A. 2019, Washington & Jefferson College. Stanford Clinton Sr. and Zylpha Kilbride Clinton Research Professor of Law, Northwestern Pritzker School of Law; Affiliated Professor of History, Northwestern University; and Research Professor, American Bar Foundation. An earlier version of this essay was presented at the 2025 American Association of Law School Conference. We thank the participants at that conference for their useful feedback, and to those colleagues and friends who reviewed and discussed drafts of this essay including Jennifer Bird-Pollan, Ari Glogower, Christopher Hanna, Andy Koppelman, Philip Postlewaite, Samy Abdelsalam, and Maggie Amen. We are grateful to Noah Taran for excellent research assistance, and to Jeena Patel and the staff of the Cornell Law Review for their assistance. All errors, of course, remain our own.
On July 4, 2025, President Donald J. Trump signed into law the One Big Beautiful Bill Act (OBBBA). This new law was built on the foundations of its immediate predecessor, the 2017 Tax Cuts and Jobs Act (TCJA). This Essay examines the historical roots and contemporary implications of these two laws. It argues that both…
Feb 2026
Moving Forward from Brackeen and Solutions for the Greater Efficacy of the Indian Child Welfare Act
Jeena Patel
J.D. Candidate, Cornell Law School, 2026; B.A. in Political Science, Boston University, 2021. Firstly, the author thanks the editors and board members of Cornell Law Review. The author would like to thank Professor Robert Odawi Porter for teaching a life-changing course on Indigenous Law. The author would also like to thank Kathryn E. Fort, whose knowledge, insights, and passion for ICWA made this Note possible.
The Indian Child Welfare Act (ICWA) of 1978, enacted to protect Native American children from being removed from their tribes, was recently upheld in 2023 by the U.S. Supreme Court in Haaland v. Brackeen in the face of considerable challenge. Through analyzing the upholding of ICWA and its ramifications, this Note seeks to examine how…
Jan 2026
The Unpropertied Internet
Nicholas J. Nugent
Assistant Professor of Law, University of Tennessee. This Article benefited from presentations at New York University, Wake Forest University, the University of Arizona, the University of Richmond, and the Annual Meeting of the Association of American Law Schools in Washington, D.C. In addition to helpful comments from participants in those events, I would like to thank Joshua Fairfield, Aaron Perzanowski, Asaf Lubin, James Grimmelmann, Yaft Lev-Aretz, Maurice Stucke, Gregory Stein, and Gary Pulsinelli for their helpful comments and suggestions. Thanks to Daniel Mendoza for helpful research assistance and to the editors at the Cornell Law Review for fantastic work getting this Article into shape for publication.
It has often been said that the internet lacks public property. Unlike the offline world, denizens of cyberspace cannot gather in the digital equivalent of public parks, cannot shame websites by picketing on adjacent cyber-sidewalks, and cannot loiter in online streets and alleys if they lack a cyber-place of their own. Yet scant attention has…
Jan 2026
Proportional Possession
Allyson E. Gold & Joseph A. Singleton
Allyson E. Gold is a Professor of Law at Wake Forest University School of Law. Joseph A. Singleton is the Health Law & Policy Fellow at Wake Forest University School of Law. Thank you to workshop attendees at the New York University Clinical Writers Workshop, the faculty of NOVA Southeastern Shepard Broad College of Law, and Association for Law and Property Scholars conference attendees for invaluable feedback. We are grateful to John Knox, Jessica Shoemaker, Jenny Russell, Hano Ernst, Michel Vols, and Rachael Walsh for extremely helpful comments and conversations.
American eviction proceedings are governed by a fusion of property and contract law. The law’s narrow understanding of eviction ignores the importance of a dwelling place to its occupants. Property is not merely land or a structure on that land; it is a home with the power to shape communities, social relationships, and human values….
Jan 2026
Rethinking Plyler: Preserving the Right to Education for Undocumented Children
Meghan Brady-Fuchsman
J.D., Cornell Law School, 2026; B.S. in Policy Analysis and Management, Cornell University, 2023; Executive General Editor, Cornell Law Review Vol. 111.
In the summer of 1977, several families living in Tyler, Texas received a letter informing them that their children were no longer eligible to attend public school—unless they could pay $1,000 in tuition. Nine-year-old Alfredo Lopez should have been starting second grade, but his family could not afford the fee. What set him apart from…
Jan 2026
Income Taxation and the Regulation of Supreme Court Justices’ Conduct
Omri Marian
Professor of Law, University of California, Irvine School of Law. I received excellent written comments from Swethaa Ballakrishnen, Joshua Blank, Alex Camacho, Adam Chodorow, Bridget Crawford, Victor Fleischer, Sarah Lawsky, Leslie Samuels, Song Richardson, Gabe Roth, and Ari Waldman. Any errors or omissions are my own.
In 2023, investigative journalists reported multiple instances where billionaires showered Supreme Court Justices with lavish gifts. Previously undisclosed luxury fishing trips, private jet travel, and yacht cruises ignited popular and scholarly debates about Congress’s role in regulating Justices’ conduct. This Article explains how income taxation can, and should, be used to regulate judicial misconduct where…
Jan 2026
Asian Americans and the Harm of Exceptionalized Inclusion
Kaiponanea T. Matsumura & Erin Suzuki
Professor of Law and William M. Rains Fellow, Loyola Law School, Los Angeles. Associate Professor of Literature and Asian American Studies, University of California, San Diego. The authors contributed equally to this Article and are listed alphabetically by last name. We thank Shirin Bakhshay, Robert Chang, Gabriel “Jack” Chin, Tristin Green, Vinay Harpalani, Ariel Jurow Kleiman, Solangel Maldonado, Julia Mendoza, Kimberly West-Faulcon, and Tiffany Yang for their thoughtful feedback. We also thank the editors of Cornell Law Review for their careful and constructive work on this Article.
The use of race in college admissions is contentious not only because elite colleges are a gateway to good careers, but because the colleges themselves symbolize belonging at the highest levels of American society. In this sense, the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”)…
Aug 2025
Modern Cyber Warfare and International Law
Esther In
J.D., 2026. Cornell Law School. Thank you to Professor Sarah Kreps for inspiring this line of research, and to the Cornell Law Review Notes Offce for lending their talent to this Note.
In an increasingly technological, interconnected, and digital world, advancements in technology pose significant legal challenges. “Grey zone” conflicts—such as in cyber warfare, election interference, political subversion, and proxy wars—share a common characteristic: exploiting gaps in international law. These conflicts allow States to leverage legal ambiguities as tools in their strategic planning, enabling them to pursue…
Aug 2025
Undue Computational Experimentation: Can In Silico Experiments Allows Genus Claims to Survive?
Gregory Jameson
J.D., Cornell Law School, 2025; Ph.D. (Biophysics), The Ohio State University, 2022. Thank you to Profs. Joanna T. Brougher and Oskar Liivak for inspiring this line of legal research and to Prof. Steffen Lindert for seeding the scientific knowledge in this idea.
U.S. courts have, time and again, struck down genus claims for undue experimentation. The most recent blow came last year in Amgen v. Sanofi, when the Supreme Court affirmed the lower court’s ruling that Amgen’s patent on antibodies with a specific target was invalid for lack of enablement. In that ruling, the Court invoked the…
Aug 2025
When Hard Cases Make Bad Law: A Theory of How Case Facts Affect Judge-Made Law
Sepehr Shahshahani
Associate Professor, Fordham Law School. I thank the participants in the Harvard/Yale/Stanford Junior Faculty Forum and the Fordham Law Faculty Workshop for their discussion of this work. I am also grateful for the helpful comments of Aditi Bagchi, Scott Baker, Deborah Beim, Bob Bone, Pam Bookman, Rick Brooks, Bennett Capers, Michael Carrier, Courtney Cox, Nestor Davidson, Debby Denno, Josh Fischman, Janet Freilich, Barry Friedman, Ezra Friedman, John Goldberg, William Hubbard, Clare Huntington, Lewis Kornhauser, Jae Lee, Ethan Leib, Ann Lipton, Gaurav Mukherjee, John Pfaff, Susan Scafdi, Jed Shugerman, Henry Smith, Rebecca Tushnet, Maggie Wittlin, and Ben Zipursky. Finally, I thank Joe Palandrani, Miles Patton, and Hooman Yazdanian for excellent research assistance.
“Hard cases make bad law” is one of the most famous aphorisms in Anglo-American law. Its insight is that when strict application of a generally sound law would impose a special hardship on someone, a court may be tempted to distort the law to avoid the hardship. Scholars have long debated the meaning and truth…
Aug 2025
(Non)Police Brutality
Shawn E. Fields
Professor of Law, California Western School of Law. Many thanks to the brilliant minds who have provided feedback on aspects of this project, including Bobbi Jo Boyd, Tony Ghiotto, Gustavo Ribeiro, Joanna Schwartz, Erin Sheley, Christopher Slobogin, and Daniel Yeager. I beneftted greatly from feedback at presentations at the Southeastern Association of Law Schools, University of Oregon School of Law, University of Kentucky Rosenberg School of Law, University of Tennessee Knoxville School of Law, and Chapman Fowler School of Law. I extend my deepest gratitude to Noël Harlow, whose support and encouragement made this Article possible. All errors are my own.
Municipalities increasingly rely on nonpolice public safety experts—from substance abuse counselors and mental health interventionists to homeless outreach teams and violence interrupters—to address safety issues once solely within the purview of armed police. These “alternate responders” aim to resolve public safety concerns with less unnecessary conflict, violence, and death. But what happens when these nonpolice…
Aug 2025
Birthright Citizenship and the Dunning School of Unoriginal Meanings
Evan D. Bernick, Paul Gowder & Anthony Michael Kreis
Associate Professor of Law, Northern Illinois University College of Law; Professor of Law, Northwestern University Pritzker School of Law; and Assistant Professor of Law, Georgia State University College of Law. Authors’ names are listed in alphabetical order. The authors thank Maggie Blackhawk, Christine Kexel Chabot, Jack Chin, Stella Burch Elias, Paul Lombardo, Ryan Rowberry, and Melissa Stewart for helpful suggestions. The authors alone are responsible for the content of this Essay and any mistakes therein.
This Essay critically surveys the recent debate surrounding birthright citizenship in the United States, particularly in light of arguments presented by legal scholars Randy Barnett, Kurt Lash, and Ilan Wurman. Under the guise of “originalism,” Barnett, Lash, and Wurman propose an ahistorical, revisionist interpretation of the Fourteenth Amendment’s Citizenship Clause. They suggest that the term…
Jul 2025
The Federal Rules of Climate Change
Roger Michalski
Roger Michalski holds the Arch B. & Jo Anne Gilbert Professorship of Law, University of Oklahoma College of Law. The author would like to thank Melissa Mortazavi for her helpful feedback on earlier drafts. A special thanks to Emily Taylor Poppe. This article grew out of a previous article co-authored with her and it would not exist without her.
A new Federal Rule of Civil Procedure, Rule 87, quietly took effect in December 2023. The wholesale adoption of a new rule is rare; most changes to the Federal Rules of Civil Procedure involve tweaks or minor revisions to existing rules, and many existing rules are quite old. Yet, despite the novelty of a new…
Jul 2025
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