Cornell Law Review

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

Too Much “Acting,” Not Enough Confirming: The Constitutional Imbalance Between the President and Senate Under the Federal Vacancies Reform Act

Christopher D. Johnson, B.S., Northwestern University, 2014; Cornell Law School, J.D. Candidate, 2021.

“While the recent uproar over acting service largely stems from perceived abuses of the Federal Vacancies Reform Act during Trump’s presidency, it is properly understood as a foreseeable consequence of the structure of the legislative lever that the President—any president, not just President Trump—can pull to temporarily fill key positions in the Executive Branch absent Senate consent. This Note charts a path toward fixing that structure. . . .

This Note proceeds as follows. Part I describes the Federal Vacancies Reform Act’s basic mechanics, highlights aspects of the statute this Note’s proposed changes seek to address, and details Trump Administration controversies illustrating how, with regard to the process of filling the upper ranks of executive agencies, the FVRA amplifies presidential authority to the detriment of the Senate’s authority. Part II analyzes the FVRA’s constitutional foundation, delineates the key tension in the statute flowing from the nexus between the President’s take care obligation and the Senate’s advice and consent function, argues that the FVRA aids the former at the expense of the latter, and contextualizes this argument by describing the increasing Senate resistance the President must overcome in today’s appointments process. Part III sets forth changes to the FVRA in view of its constitutional imbalance between the Take Care Clause and Senate advice and consent.”

Nov 2020

The Death of Retaliatory Arrest Claims: The Supreme Courts Attempt to Kill Retaliatory Arrest Claims in Nieves v. Bartlett

Michael G. Mills, B.A., Siena College, 2018; Cornell Law School, J.D. Candidate, 2021.

“The Supreme Court’s recent decision in Nieves v. Bartlett threatens to render retaliatory arrest lawsuits superfluous and allows officers to flagrantly chill speech without repercussion. An officer violates the First Amendment when she arrests an individual because of his protected speech. Prior to the Supreme Court’s decision in Nieves, the individual could bring a lawsuit against the officer under 42 U.S.C. § 1983 for depriving the individual of his First Amendment rights. Nieves, however, required the individual to show that the officer lacked probable cause for the arrest. This requirement nearly eliminates retaliatory arrest claims since it is incredibly easy for an officer to show probable cause. Even if the individual could show the officer lacked probable cause, the individual could have already sued the officer for a false arrest. Thus, retaliatory arrest claims are now superfluous and no longer serve any purpose in discouraging officers from chilling free speech. The decision’s negative effects will be compounded with the increasing number of retaliatory arrests during protests of recent police killings of Black individuals, including George Floyd and Breonna Taylor.

The Court did create an exception in Nieves for when an officer had probable cause but normally would not exercise her discretion to arrest. For example, when an officer arrests an anti-police protester for jaywalking. Nonetheless, the Court suggested such a high standard to govern this exception that very few retaliatory arrest claims will succeed. Instead, lower courts should adopt a less stringent standard. This Note advocates that lower courts adopt a burden-shifting test used in employment discrimination cases. This standard is more realistic for plaintiffs to satisfy, and thus, will allow the Nieves exception to deter officers from chilling speech.”

Nov 2020

In Defense of Breakups: Administering a “Radical” Remedy

Rory Van Loo, Associate Professor of Law, Boston University; Affiliated Fellow, Yale Law School Information Society Project  

 

Calls for breaking up monopolies—especially Amazon, Facebook, and Google—have largely focused on proving that companies like Whole Foods, Instagram, and YouTube are anticompetitive. But scholars have paid insufficient attention to a separate step in the analysis that may help explain why the government in recent decades has not broken up a single large company. . . . This Article asserts that the pervasive hesitancy about administering breakups renders antitrust impotent in the face of monopolies—too often a statutory right without a remedy. More importantly, the Article challenges the perception of breakups as unadministrable.

Nov 2020

Against Prosecutors

I. Bennett Capers, Professor of Law and Director of the Center on Race, Law, and Justice, Fordham Law School. B.A. Princeton University; J.D. Columbia Law School.

Each year our jails cycle through approximately ten million people, the vast majority charged with nonviolent crimes. We are at a point where one in every three adults in America has a criminal record, and where for every fifteen persons born in 2001, one will likely spend time in jail or prison. Compared to other countries, the crime rate in the United States is not exceptional, and yet we have by far the highest incarceration rate in the world. None of this can be solved by simply tinkering with the machinery of prosecution. It is time to rethink why and how we prosecute in the first place. What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)? More radically, what would it mean to turn away from state controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves? This Article attempts to answer these questions.

Sep 2020

Disciplinary Sodomy: Prison Rape, Police Brutality, and the Gendered Politics of Societal Control in the American Carceral System

David Eichert, PhD Candidate, London School of Economics; Cornell Law School 2020.

“This Note engages with critical legal scholarship about gender and race to reframe discussions about sodomy in American law. Instead of concentrating on the history and constitutionality of sodomy bans, I instead demonstrate how disciplinary sodomy remains an intrinsic part of the American carceral system. I detail several scenarios in which anal rape and the threat of anal rape have been used by prison staff and law enforcement agents to control male bodies in the American carceral system. I then identify the “audiences” of this violence, demonstrating how ideas of sexuality, gender, and race are weaponized against marginalized populations to reinforce power hierarchies in American society.”

Sep 2020

FRAND and Antitrust

Herbert Hovenkamp, James B. Dinan University Professor, University of Pennsylvania Law School and The Wharton School.

This Article addresses one question: when is a Standard Setting Organization (SSO) participant’s violation of a FRAND commitment an antitrust violation, and if it is, of what kind and what are the implications for remedies? It warns against two extremes. One is thinking that any violation of a FRAND commitment is an antitrust violation as well. In the first instance FRAND obligations are contractual, and most breaches of contract do not violate any antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation. The question of an antitrust violation does not depend on whether the conduct breached a particular agreement but rather on whether it caused competitive harm. This can happen because the conduct restrained trade under section 1 of the Sherman Act, was unreasonably exclusionary under section 2 of the Sherman Act, or amounted to an anticompetitive condition or understanding as defined by section 3 of the Clayton Act. The end goal is to identify practices that harm competition, thereby injuring consumers.

Sep 2020

Equity, Punishment, and the Company You Keep: Discerning A Disgorgement Remedy Under the Federal Securities Laws

Theresa A. Gabaldon, Lyle T. Alverson Professor of Law, The George Washington University Law School; J.D. 1978, Harvard Law School; B.S. 1975, University of Arizona.

This Article first provides background on the judicial development of the SEC disgorgement remedy, up to and through Kokesh. It then examines parallel legislative developments, touching on the fraught subject of legislative history. After describing this necessary context, the Article relies on it to illuminate a problem endemic to litigation about federal remedies. This has to do with the promiscuous use of the word “equitable,” which appears to have greatly complicated any attempt to make sense of disgorgement. The confusion resulting from a sea of unexamined assumptions about “equity” that floats throughout the relevant cases and commentary has obscured a central issue. This is the difference between whether a remedy exists—the primary subject of this Article—and whether, if it does, there are constitutional consequences. In the process of shedding light on this subject, this Article answers three specific questions. The first is whether a right to seek disgorgement could be said to exist as a function of the Commission’s express authority to seek equitable remedies. The second is whether the SEC’s right to seek disgorgement could be said to exist at law. The third, which assumes an affirmative answer to both of the first two, is which of the two characterizations is more appropriate.

Sep 2020

Developing a Digital Property Law Regime

Kevin Dong, University of Illinois Urbana-Champaign, B.A., Philosophy & Political Science, 2014; Cornell Law School, J.D., 2020.

“In this Note, I will argue that the nature of digital property requires us to radically rethink what types of property rights we have, and that ultimately a new class of specific “virtual property” or “digital property” rights is necessary. In Part I, I give a brief history of the scholarship and debate around virtual property and argue why the virtual property debate is still important today. In Part II, I consider ways in which digital property and physical property may differ, and ultimately argue that Palka’s((Przemyslaw Palka, Virtual Property: Towards a General Theory (Dec. 20, 2017) (unpublished Ph.D. thesis, European University Institute) (on file with Cadmus).)) work on virtual property takes the necessary steps toward a coherent and sensible digital property regime. In Part III, I attempt to create the basis of what a digital property rights regime may look like and suggest future developments to my theory on digital property.”

Sep 2020

Demanding Trust in the Private Genetic Data Market

Benjamin T. Van Meter

This Note argues that to prevent the most damaging consequences of the trade in genetic data, U.S. law should impose tailored fiduciary duties on private genetic testing companies to ensure that their business practices do not harm their own customers. These testing companies rely on their customers’ genetic information to turn a profit, while all of the risk of this information’s exposure or misuse falls on customers.

Jul 2020

International Cultural Heritage Law: The Link Between Cultural Nationalism, Internationalism, and the Concept of Cultural Genocide

Ashley Mullen

Part I of this Note will explain the theoretical underpinnings of what constitutes “cultural heritage,” why it deserves protection, and what obstacles stand in the way of protection. Part II will discuss the existing international legal framework aimed at protecting cultural heritage, as well as the flaws within that framework. Part III will analyze the…

Jul 2020

Chevron as Construction

Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center

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

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand…

Jul 2020

Legitimate Interpretation—Or Legitimate Adjudication

Thomas W. Merrill, Charles Evans Hughes Professor, Columbia Law School

Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much better account of actual practice. This Article argues that if…

Jul 2020

MDL as Category

Zachary D. Clopton, Professor of Law, Northwestern Pritzker School of Law

Multidistrict litigation (MDL) dominates the federal civil docket. MDL has been used to consolidate hundreds of thousands of cases, including with respect to asbestos, the BP oil spill, Johnson & Johnson baby powder, NFL concussions, opioids, and more. In recent years, MDL has attracted the attention of reformers and scholars, who have offered proposals for…

Jul 2020

Why has Antitrust Law Failed Workers?

Ioana Marinescu & Eric A. Posner

Marinescu is Assistant Professor, School of Social Policy & Practice, University of Pennsylvania, and a faculty research fellow at the National Bureau of Economic Research.

Eric Posner is the Kirkland & Ellis Distinguished Service Professor at University of Chicago

In the last several years, economists have learned about an antitrust problem of vast scope. Far from approximating the conditions of perfect competition as long assumed, most labor markets are characterized by monopsony—meaning that employers pay workers less than their productivity because workers lack a credible threat to quit and find a higherpaying job in…

Jul 2020

An Essay on the Quieting of Products Liability Law

 Aaron D. Twerski, Irwin & Jill Cohen Professor of Law, Brooklyn Law School

For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter…

May 2020

The Paradoxical Impact of Scalia’s Campaign Against Legislative History

Stuart Minor Benjamin, Douglas B. Maggs Professor of Law, Duke Law School

Kristen M. Renberg, Ph.D. Candidate, Department of Political Science, Duke University & J.D. student, Duke Law School

Beginning in 1985, Judge and then Justice Antonin Scalia advocated forcefully against the use of legislative history in statutory interpretation. Justice Scalia’s position, in line with his textualism, was that legislative history was irrelevant and judges should avoid invoking it. Reactions to his attacks among Justices and prominent circuit judges had an ideological quality, with…

May 2020

Torts as Private Administration

Nathaniel Donahue, JD/Ph.D. candidate, Yale University, nathaniel.donahue@yale.edu

John Fabian Witt, Allen H. Duffy Class of 1960 Professor of Law, Professor of History, and Head of Davenport College, Yale University, john.witt@yale.edu

What does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine’s main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law’s hidden function is…

May 2020

The Corporate Privacy Proxy

Shaakirrah R. Sanders, Professor of Law, University of Idaho College of Law. J.D., Loyola University New Orleans College of Law (2001)

 This Article contributes to the First Amendment corporate privacy debate by identifying the relevance of agriculture security legislation, or ag-gag laws. Ag-gag laws restrict methods used to gather and disseminate information about commercial food cultivation, production, and distribution—potentially creating a “right” to control or privatize nonproprietary information about animal and agribusinesses. Yet, corporate privacy rights…

May 2020

Closing the Racial Gap in Financial Services: Balancing Algorithmic Opportunity with Legal Limitations

 Julia F. Hollreiser

This Note will explore the potential for financial institutions to use fintech to address race-based financial inequality while also being attentive to the possibility that seemingly innocuous technologies can generate biased banking practices against minority communities. Part I of this Note will discuss the history of the inequitable distribution of wealth in the United States and race-based gaps in access to financial services and products. Part II will then identify various techniques that financial institutions have used to target minority consumers. It will discuss the legality of those techniques under existing regulations, statutes, and case law. Part III of this Note will describe the role that algorithms, big data, and artificial intelligence have come to play in credit assessment and lending decisions, focusing on the risks inherent in algorithmic decision-making and the potential for these decisions to generate racially discriminate results. Part IV will then explore the opportunity for algorithmic lending in fintech to close the racial gap in financial services while still operating within the broader legal landscape.

May 2020

Executive Privilege—With A Catch: How a Crime-Fraud Exception to Executive Privilege Would Facilitate Congressional Oversight of Executive Branch Malfeasance in Accordance with the Constitution’s Separation of Powers

Anthony W. Wassef

Part I of this Note will provide a brief history of executive privilege via an analysis of the key case law underlying the doctrine and discuss the core tenets of the privilege that dictate its use. Part II will describe the origins of Congress’s power to investigate and the current rules for overcoming executive privilege in that context. Part III will discuss how, in playing the three critical functions mentioned above, a crime-fraud exception would balance Congress’s interest in performing its oversight duties with the executive branch’s interest in confidentiality while simultaneously reducing instances of criminal or fraudulent conduct by the executive branch.

May 2020

Remutualization

Erik F. Gerding, Professor of Law and Wolf-Nichol Fellow, University of Colorado Law School

Lynn Stout heartily embraced heterodox economic theories for describing capital markets and a progressive zeal for reforming them. Yet when she came to formulate her policy prescriptions for financial markets, one of the most prominent progressive corporate and financial law scholars of the twentieth century could sometimes take these twin intellectual engines into surprisingly “conservative”…

Mar 2020

Cryptocommunity Currencies

J.S. Nelson, Associate Professor of Law (Business Ethics), Villanova Law School; Dept. of Management & Operations (by courtesy), Villanova School of Business 

What are cryptocurrencies: securities, commodities, or something else? Maybe they are a new form of established currency—a non-sovereign fiat currency. Like other self-governing bodies, the communities that issue cryptocurrencies should be judged on how well they support their currencies. This analysis is not meaningfully different from how we have evaluated traditional sovereign issuers of currency….

Mar 2020

Artificial Agents in Corporate Boardrooms

Sergio Alberto Gramitto Ricci, Lecturer, Department of Business Law and Taxation, Monash Business School, Monash University

Thousands of years ago, Roman businessmen often ran joint businesses through commonly owned, highly intelligent slaves. Roman slaves did not have full legal capacity and were considered property of their co-owners. Now business corporations are looking to delegate decision-making to uberintelligent machines through the use of artificial intelligence in boardrooms. Artificial intelligence in boardrooms could…

Mar 2020

A Democratic Political Economy For the First Amendment

Nelson Tebbe, Jane M.G. Foster Professor of Law, Cornell Law School

Today, the relationship between the First Amendment and distributive justice is fraught. Judges and other constitutional actors have been interpreting freedoms of speech and religion in a manner that unwinds government programs designed to ameliorate disparities of wealth, income, and other primary goods. And the regressive impact of actions grounded in these constitutional freedoms is…

Mar 2020

Defined Contribution Plans and the Challenge of Financial Illiteracy

 Jill E. Fisch, University of Pennsylvania Law School; Annamaria Lusardi, The George Washington University;  & Andrea Hasler, The George Washington University School of Business

Retirement investing in the United States has changed dramatically. The classic defined benefit (DB) plan has largely been replaced by the defined contribution (DC) plan. With the latter, individual employees’ decisions about how much to save for retirement and how to invest those savings determine the benefits available upon retirement.  We analyze data from the…

Mar 2020

Corporate Law and the Myth of Efficient Market Control

 William W. Bratton, Nicholas F. Gallicchio Professor of Law, University of Pennsylvania Law School

Simone M. Sepe, Professor of Law and Finance, James E. Rogers College of Law, University of Arizona; Université Toulouse 1 Capitole; and Toulouse School of Economics

In recent times, there has been an unprecedented shift in power from managers to shareholders, a shift that realizes the long-held theoretical aspiration of market control of the corporation. This Article subjects the market control paradigm to comprehensive economic examination and finds it wanting.  The market control paradigm relies on a narrow economic model that…

Mar 2020

Are Publicly Traded Corporations Disappearing?

Margaret M. Blair, Milton R. Underwood Chair in Free Enterprise, and the FedEx Chair for Research at Vanderbilt University Law School

Corporate law scholars and economists have expressed concern recently about the fact that the number of publicly traded corporations in the United States has declined significantly since a peak in the late 1990s. In this Essay, in honor of the late Professor Lynn Stout, who devoted much of her career to the study of large…

Mar 2020

Lynn Stout Symposium: Introduction

Saule T. Omarova† & Diogo Magalhaes‡

† Beth and Marc Goldberg Professor of Law, Cornell Law School; Director, Jack Clarke Program on the Law and Regulation of Financial Institutions and Markets, Cornell Law School.

‡ Doctor of the Science of Law, Cornell University 2019.

On April 16, 2018, the Cornell Law School community lost one of its brightest stars, Professor Lynn Stout.  Lynn Stout was a brilliant thinker whose extensive body of work possesses that rare blend of in-depth knowledge, thorough and thoughtful analysis, eloquent and agile acuity, and more importantly—the quality of all great “greats”—unique paradigmatic thinking that…

Mar 2020