Cornell Law Review

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.

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.

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.

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.

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.

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.

Ethan Prall 

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

Andres Sawicki

Professor of Law, University of Miami School of Law; Director, Frost Institute for Data Science & Computing.

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.

Sherry F. Colb & Michael C. Dorf

Sherry F. Colb was C.S. Wong Professor, Cornell Law School. She died in August 2022, leaving behind a partial and preliminary draft of this Article. Michael C. Dorf is Robert S. Stevens Professor of Law, Cornell Law School, and was married to Professor Colb from 1991 until her death. Because readying this Article for publication required a substantial amount of further research, writing, and editing, Professor Dorf has chosen to identify himself as a co-author to make clear that he bears responsibility for any errors that Professor Colb would have corrected if she had had the opportunity.

John H. Blume

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

Taimie L. Bryant

Professor of Law, UCLA School of Law.

Neil H. Buchanan

James J. Freeland Eminent Scholar and Professor of Law, University of Florida Levin College of Law; Visiting Professor at Osgoode Hall Law School and the University of Toronto Faculty of Law.

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.

Deborah Dinner

Dorothea S. Clarke Professor of Law, Cornell Law School.

Sheri Lynn Johnson

The James and Mark Flanagan Professor of Law, Cornell Law School.

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director of the Supreme Court Litigation Clinic, Stanford Law School.

Tracey Maclin

Professor of Law and Raymond & Miriam Ehrlich Scholar Chair University of Florida Levin College of Law.

Christopher Slobogin

Milton Underwood Professor of Law, Vanderbilt University.

Mariann Sullivan

George C. Thomas III

Rutgers University Board of Governors Professor of Law & Judge Alexander P. Waugh, Sr. Distinguished Scholar.

Penny M. Venetis

Distinguished Clinical Professor of Law, Associate Professor of Law, Judge Dickinson R. Debevoise Scholar, Director of the International Human Rights Clinic, Rutgers Law School.

Rachel Bayefsky

Associate Professor of Law, University of Virginia School of Law.

Joseph P. Fishman & Deepa Varadarajan

Professor of Law, Vanderbilt Law School, Associate Professor of Law, Georgia State University College of Law.

Laura T. Kessler

S.J. Quinney Endowed Chair and Professor of Law, University of Utah, S.J. Quinney College of Law.

Michael Simkovic

USC Gould School of Law.

Steven Gensler & Roger Michalski

Gene and Elaine Edwards Family Chair in Law, Professor of Law, University of Oklahoma College of Law, Professor of Law, University of Oklahoma College of Law.

Jenny Roberts

Dean and Professor of Law, Maurice A. Deane School of Law, Hofstra University.

Clinton G. Wallace & Shelley Welton

Associate Professor of Law, University of South Carolina School of Law, Presidential Distinguished Professor of Law & Energy Policy, University of Pennsylvania Carey Law School and Kleinman Center for Energy Policy.

Amy Adler

Emily Kempin Professor of Law, NYU School of Law.