Cornell Law Review

Professor Katyal’s Cornell Article is judged as best 2019 intellectual property law review article

Professor Sonia Katyal’s Article The Paradox of Source Code Secrecy was selected for inclusion in the 2020 edition of the Intellectual Property Law Review, an anthology published annually by Thomson Reuters (West). This article was originally published in 104 Cornell L. Rev. 1183 (2019). Abstract In Lear v. Adkins, the Supreme Court precipitously wrote, “federal…

Jul 2020

Incarceration or E-Carceration: California SB 10 Bail Reform and the Potential Pitfalls for Pretrial Detainees

Ashley Mullen

On April 23, 2017, Kenneth Humphrey followed an elderly man into his home and demanded money—he left with seven dollars and a bottle of cologne.11. In re Humphrey, 228 Cal. Rptr. 3d 513, 518 (Cal. Ct. App. 2018). A few days later, Humphrey was arrested and a court ordered that he be held on $350,000…

Nov 2019

To Know Our Enemy: How and When the International Laws of War Define Whom the President May Fight in the War on Terror

Gianni P. Pizzitola

Within one week of the terrorist attacks on September 11, 2001, the United States Congress authorized the President to hunt down those responsible. Through the Authorization for the Use of Military Force (AUMF), Congress granted the President the power to mobilize the military and destroy the terrorist organizations that planned and carried out the attack….

Nov 2019

Privacy as Pretext

Susan Hazeldean

The terms of the debate over LGBT rights have shifted in recent years, particularly since the Supreme Court made marriage equality the law of the land in Obergefell v. Hodges. Today, people against LGBT equality argue that curtailing LGBT rights is necessary to protect the rights of others. One potent rhetorical weapon used to oppose…

Nov 2019

Does the Clear and Present Danger Test Survive Cost-Benefit Analysis?

Cass R. Sunstein, Robert Walmsley University Professor, Harvard University.

Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, an important contemporary test for the regulation of speech involves “clear and present danger.” In general, officials cannot censor…

Nov 2019

Oversight Failure in Securities Markets

Yesha Yadav, Professor of Law, Vanderbilt Law School

According to statute, securities exchanges play an essential role in ensuring compliance with applicable laws and industry standards. Long imagined as unique in their institutional capacity to bring traders together, collect information and exclude problem participants from the marketplace, exchanges have offered an efficient source of private discipline for public regulators. The classic conception of…

Nov 2019

Politics and Authority in the U.S. Supreme Court

Joshua B. Fischman, Professor of Law, University of Virginia School of Law

Public discourse on the Supreme Court often focuses on the divide between the liberal and conservative Justices. There has been a second persistent divide in the Court, however, which has been largely overlooked by scholars, the media, and the public. This second divide has arisen most often in cases involving the jury trial right, the…

Sep 2019

Locked Up, Then Locked Out: The Case for Legislative—Rather Than Executive—Felon Disenfranchisement Reform

Amanda J. Wong

A cohesive anti-felon disenfranchisement perspective has gained traction over the last two decades in America. Scholars have harshly criticized disenfranchisement provisions for their insulation and perpetuation of nonwhite marginalization a la Jim Crow. ` Other critics have also decried felon disenfranchisement for barring prior felons from full social integration. Still more critics point to how…

Sep 2019

Incorporating the Fresh Start Into Sovereign Debt Restructuring Through Odious Debt

Matthew B. Masaro

One of the glaring differences between personal bankruptcies and sovereign “bankruptcies” is the absence of a fresh start for sovereigns. This is largely because sovereigns cannot declare bankruptcy in the same way that individuals can declare bankruptcy.11. Martin Guzman et al., Introduction to TOO LITTLE, TOO LATE: THE QUEST TO RESOLVE SOVEREIGN DEBT CRISES XIII, XIII…

Sep 2019

Aiding and Abetting in International Criminal Law

Oona A. Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy & Alyssa T. Yamamoto

To achieve justice for violations of international law such as genocide, torture, crimes against humanity, and war crimes, it is essential to address complicity for international crimes. Beginning in the 1990s, there was a proliferation of international and hybrid criminal tribunals, which sought to hold perpetrators of these crimes accountable and, in turn, generated an…

Sep 2019

Staying Faithful to the Standards of Proof

Kevin M. Clermont, Ziff Professor of Law, Cornell University

Academics have never quite understood the standards of proof or, indeed, much about the theory of proof. Their formulations beget probabilistic musings, which beget all sorts of paradoxes, which in turn beget radical reconceptions and proposals for reform. The theoretical radicals argue that the law needs some basic reconception such as recognizing the aim of…

Sep 2019

“Traveling While Hispanic”: Border Patrol Immigration Investigatory Stops at TSA Checkpoints and Hispanic Appearance

Pablo Chapablanco

In 1896, Justice Harlan dissented against the “separate, but equal” doctrine established by Plessy v. Ferguson,11. 163 U.S. 537 (1896). saying, [I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor…

Jul 2019

Speech, Intent, and the President

Katherine Shaw

Judicial inquiries into official intent are a familiar feature of the legal landscape. Across various bodies of constitutional and public law—from equal protection and due process to the first amendment’s free exercise and establishment clauses, from the eighth amendment to the dormant commerce clause, and in statutory interpretation and administrative law cases across a range…

Jul 2019

The Endogenous Fourth Amendment: An Empirical Assessment of How Police Understandings of Excessive Force Become Constitutional Law

Osagie K. Obasogie, University of California, Berkeley

Zachary Newman, Visiting Scholar, University of California, Berkeley

If the Fourth Amendment is designed to protect citizens from law enforcement abusing its powers, why are so many unarmed Americans killed? Traditional understandings of the Fourth Amendment suggest that it has an exogenous effect on police use of force, i.e., that the Fourth Amendment provides the ground rules for how and when law enforcement…

Jul 2019

The Paradox of Source Code Secrecy

Sonia K. Katyal, Haas Distinguished Chair and Chancellor’s Professor of Law, University of California at Berkeley.

Today, the government relies on machine learning and AI in predictive policing analysis, family court delinquency proceedings, parole decisions, and DNA and forensic science techniques, among other areas, producing a fundamental conflict between civil rights and automated decisionmaking. Ground zero for this conflict, I argue, has become the murky, messy intersection between software, trade secrecy, and public governance. In many…

Jul 2019

An Empirical Investigation of Third Party Consumer Litigant Funding

Ronen Avraham & Anthony Sebok

This is the first large-scale empirical study of consumer third-party litigation funding in the United States. Despite being part of the American legal system for more than two decades there has been almost no real data-driven empirical study to date. We analyzed funding requests from American consumers in over 100,000 cases over a twelve year period. This proprietary data set was provided to us by one of the largest consumer litigation…

Jul 2019

Hertz So Good: Amazon, General Jurisdiction’s Principal Place of Business, and Contacts Plus as the Future of the Exceptional Case

D.E. Wagner, B.A., McGill University, 2013; J.D., Cornell Law School, 2019; Publishing Editor, Cornell Law Review, Vol. 104. My thanks to Professor Zachary D. Clopton, for his unwavering guidance in aid of both this Note and my development as an attorney; to Leonardo Mangat, for listening to me ramble endlessly about personal jurisdiction; and to the entire staff of the Cornell Law Review for their tireless work. All errors are my own.

This Note proceeds in six parts. Part I describes the genesis of general jurisdiction jurisprudence from Pennoyer v. Neff through Daimler. Part II briefly describes the curtailment of specific jurisdiction in Bristol-Myers Squibb and its effect on personal jurisdiction. In Part III, this Note details lower courts’ treatment of general jurisdiction following Daimler, finding that…

May 2019

Rethinking “Just” Compensation: Dignity Restoration as a Basis for Supplementing Existing Takings Remedies with Government-Supported Community Building Initiatives

Alyssa M. Hasbrouck, B.A., Yale University, 2014; J.D., Cornell Law School, 2019; Notes Editor, Cornell Law Review, Vol. 104. I would like to thank Professor Laura Underkuffler for her unwavering confidence in me and for encouraging me throughout the process of writing this Note. Without her thoughtful feedback, this Note would not exist. Further, my thanks to Susan Green Pado and my colleagues on the Cornell Law Review for their diligent work on this Note during the publication process. Special thanks to Madelaine Horn, Doug Wagner, and Bryan Magee for selflessly going above and beyond to prepare this Note for publication, and for their intellectual camaraderie and support. Lastly, thank you to my parents—for your unconditional love and support since day one.

“We have to give a damn. We have to give a damn about people staying in their home. We have to give a damn about poor and working-class folks, and about seniors who want to spend their sunset years in the homes that they know and love. We have to care, and our policies will follow…

May 2019

Property, Dignity, and Human Flourishing

Gregory S. Alexander

Human flourishing and human dignity are not empty phrases. They have real content, and they matter in real lives. The facts are that we want to live flourishing lives and we want to live lives of dignity. We cannot live such lives, however, unless certain conditions are fulfilled. Among these conditions, flourishing is personal autonomy,…

May 2019

The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration

Michele Goodwin, University of California, Irvine School of Law

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Thirteenth Amendment (1865) Introduction On August 31, 2017, The New York Times published a provocative news article, “The Incarcerated Women Who Fight California’s…

May 2019

Local Evidence in Constitutional Interpretation

Brandon L. Garrett,

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look to local law. Although it has gone largely unnoticed, there is a robust practice of acknowledging and accounting for local law in the…

May 2019

Toward a Horizontal Fiduciary Duty in Corporate Law

Asaf Eckstein, Law Lecturer, the Ono Academic College.

Gideon Parchomovsky, Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Law.

Fiduciary duty is arguably the single most important aspect of our corporate law system. It consists of two distinct sub-duties — a duty of care and a duty of loyalty — and it applies to all directors and corporate officers. Yet, under extant law, the duty only applies vertically, in the relationship between directors and…

May 2019

Suicide and Euthanasia: The International Perspective on the Right to Die

Zachary A. Feldman

Several countries across the globe have weighed their interests in preserving life, in preventing suicide, and in allowing terminally ill patients to end their lives at their own discretion with, or without, the help of a physician. This Note will highlight the inconsistencies in jurisdictions that treat suicidal ideations both criminally and medically, and ultimately…

Mar 2019

On the Basis of Sex(ual Orientation or Gender Identity): Bringing Queer Equity to School with Title IX

Chan Tov McNamarah

A transgender fourth-grader’s teacher refuses to address her by her preferred name and gender. A lesbian high-school student’s sexual education class does not teach her about topics relevant to her experience as a queer woman. A gay male college student’s campus does not have LGBT-specific post-sexual assault care. Under a formal equality approach to Title…

Mar 2019

The Fair Labor Standards Act at 80: Everything Old is New Again

Kati L. Griffith

On the eightieth anniversary of the federal wage and hour statute, the Fair Labor Standards Act of 1938 (FLSA), critics warn that it cannot keep pace with shifting business trends. More and more individuals engage in “contract work,” some of which takes place in the much publicized “gig economy.” These work arrangements raise questions about…

Mar 2019

How Essential are Standard-Essential Patents?

Mark A. Lemley & Timothy Simcoe

Courts, commentators, and companies have devoted enormous time and energy to the problem of standard-essential patents (SEPs) – patents that cover (or at least are claimed to cover) industry standards. With billions of dollars at stake, there has been a great deal of litigation and even more lobbying and writing about problems such as how…

Mar 2019

Energy Exactions

Jim Rossi & Christopher Serkin

Exactions are demands levied on residential or commercial developers to force them, rather than a municipality, to bear the costs of new infrastructure. Local governments commonly use them to address the burdens that growth places on schools, transportation, water, and sewers. But exactions almost never address energy needs, even though local land use decisions can…

Mar 2019

Gender Parity: The Increasing Success and Subsequent Effect of ‘Anti-Male Bias’ Claims in Campus Sexual Assault Proceedings

Weiru Fang

Part I of this Note briefly discusses sexual assault and the legislative and legal history of Title IX. Part II of this Note provides an overview of “male bias” gender-discrimination suits and focuses in particular on the recent decisions by the Second Circuit and Sixth Circuit. In Part III, this Note explains the discrepancy behind…

Jan 2019

Impersonal Personhood: Crafting a Coherent Theory of the Corporate Entity

Bryan P. Magee

Corporate legal personhood is a baffling and elusive concept. Are corporations persons and, if so, what does this mean?Ascribing the moniker of “person” to a corporation can conjure up the idea that a corporate entity is entitled to all the natural and legal rights that natural “personhood” entails. This, however, ignores that there are different…

Jan 2019

Regulatory Takings and the Constitutionality of Commercial Rent Regulation in New York City

Henry R. Topper, Cornell Law School, J.D. 2019, hrt37@cornell.edu

In recent years, the plight of small businesses in New York City has become a contentious topic. Although the city and its current mayoral administration share a long-standing commitment to affordable housing, the city’s small businesses—an integral and defining feature of the urban landscape—have suffered immensely. In the past decade, local establishments have largely given…

Jan 2019