Cornell Law Review

Stacy Caplow† & Maryellen Fullerton††

†Professor of Law, Brooklyn Law School. This Article was generously supported by the Brooklyn Law School Dean’s Summer Research Stipend. This Article benefited enormously from the research assistance of Cristina Coudert Lynch, BLS ‘26, and Jean Davis, International and Foreign Law Reference Librarian.

††Suzanne J. and Norman Miles Professor of Law, Brooklyn Law School.

Duncan Hosie

Academic Fellow, Stanford Law School. 

I thank the editors of the Cornell Law Review for their meticulous edits, especially Vanna Carter. For thoughtful conversation, I thank Reva Siegel, Doug NeJaime, and Robert Post, as well as the participants in the Yale Law School Public Law Workshop, and the Stanford Law Journals Discussion Group.

Bijal Shah

Professor of Law and Provost Faculty Fellow, Boston College (BC) Law School.

The author thanks Michael Asimow, Beau Baumann, Meghan Brooks, Dominique Custos, Bridget Dooling, Blake Emerson, Frank Garcia, Hiba Hafiz, Chris Havasy, Mary Holper, Brandon Johnson, Olati Johnson, Renee Jones, Jennifer Koh, Matt Lawrence, Desiree LeClercq, Lawrence Liu, Beverly Moran, Jamelia Morgan, Joy Milligan, Melissa Powers, Sabeel Rahman, Shalini Ray, Blaine Saito, Susan Silbey, Tania Valdez, Justin Weinstein-Tull, and Alex Zhang, as well as participants in the University of Pennsylvania Law School conference on Regulatory Governance in a Changing World, University of Minnesota Law School National Immigration Law Professors conference, Boston College Law School faculty workshop, George Washington University Law School workshop on Power in the Administrative State, University at Buffalo School of Law conference on Mass Adjudication in a Changing Administrative State, Association of American Law Schools Annual Meeting, Law and Society Association Annual Meeting, and the 61st Annual Federal Administrative Law Judges Conference. All errors are my own.

Mengyi Wang

Climenko Fellow and Lecturer on Law, Harvard Law School.

For generous comments, suggestions, and support, I thank Bill Alford, Emilie Aguirre, Gregory Auclair, Dan Awrey, Colleen Baker, Marco Basile, Raúl Carrillo, Guy-Uriel Charles, Sabrina Charles, Felipe Cole, Nakita Cuttino, Sannoy Das, Kevin E. Davis, Christine Desan, Benjamin Dinovelli, Ryan D. Doerfler, Gemma Donofrio, Barry Eichengreen, Rui Pedro Esteves, Marc Flandreau, Jeffry Frieden, Idriss Fofana, Anna Gelpern, James Greiner, Howell Jackson, Elizabeth King, Naomi Lamoreaux, Fernando Loayza, Grégoire Mallard, Jonathan Masur, Perry Mehrling, Michael Mitchell, Ugo Panizza, Joost Pauwelyn, Zachary Price, Adam Sandel, Jérôme Sgard, Hal Scott, Matthew Stephenson, Raphael Stern, Nathan Sussman, Edward Swaine, Martin Sybblis, Cédric Tille, Susannah Barton Tobin, Pierre-Hugues Verdier, Adrian Vermeule, Bill Watson, Mark Wu, David Zaring, and Jeffery Zhang. I also thank the participants at DebtCon8, the 7th Conference on Law & Macroeconomics, the AALS Financial Regulation Mid-Year Workshop, the ABA Administrative Law Spring Workshop, the ASIL Mid-Year Research Forum, the Harvard Law School East Asian Legal Studies Brown Bag, the JILSA Summer Workshop, and the Money as a Democratic Medium Conference.

Michael W. Carroll† & Peter Jaszi††

†Professor of Law and Faculty Co-Director, Program on Information Justice and Intellectual Property, American University Washington College of Law.

Thanks to Pamela Samuelson, Rebecca Tushnet, Jonathan Band, Charles Duan, and participants in the 2024 Intellectual Property Scholars Conference at Berkeley Law School for helpful comments and to Jacqueline Jedrych for research assistance.

††Emeritus Professor of Law, American University Washington College of Law.

Brendan S. Maher

Professor of Law and Director, Health Law, Policy & Management Program, Texas A&M University School of Law. Stanford A.B.; Harvard J.D.

This Article builds in part upon ideas originally formed while litigating benefit and insurance disputes before the United States Supreme Court, including Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312 (2016) (representing Gobeille); Montanile v. Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan, 577 U.S. 136 (2016) (representing Montanile); Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. 99 (2013) (representing Heimeshoff); U.S. Airways, Inc. v. McCutchen, 569 U.S. 88 (2013) (representing McCutchen); and Conkright v. Frommert, 559 U.S. 506 (2010) (representing Frommert). I would also like to thank Professors Norman Stein, Dana Muir, Matthew Lawrence, Natalya Shnitser, Elizabeth McCluskey, Amy Monahan, Valarie Blake, Jessica Roberts, and Shaun Martin, as well as all the attendees at the Thirteenth Annual Employee Benefits & Social Insurance Conference, for their valuable insights. I would also like to thank my superb research assistants, Gregory Fassuliotis and Brandon Robinson, for their tireless work. All errors are mine.

Naoka Carey 

Acting Assistant Professor of Law, New York University School of Law. JD, New York University. PhD, Boston College Lynch School of Education & Human Development.

Many thanks to Rebekah Levine Coley, Lael Hiam Chester, Randy Hertz, Martin Guggenheim, Perry Moriearty, Rachel Rosenbloom, and Ryan Sakoda for helpful comments on earlier drafts, as well as participants in the Northeastern School of Law Junior Scholars Conference. Thank you also to my research assistant at Boston College, Jacob Lensen, and the editors at the Cornell Law Review, who provided excellent editorial assistance. All errors are my own.

Any views expressed are those of the author and not those of the U.S. Census Bureau. The Census Bureau has reviewed this data product to ensure appropriate access, use, and disclosure avoidance protection of the confidential source data used to produce this product. This research was performed at a Federal Statistical Research Data Center under FSRDC Project Number 2931 (CBDRB-FY24-P2931-R11936 and R12112).

Eleanor T. Morales

Assistant Clinical Professor of Law at Wake Forest University School of Law.

The author has had the honor of representing several Military Sexual Trauma survivors in her capacity as Director of the Veterans Legal Clinic at Wake Law. This Article is dedicated to those clinic clients. I am incredibly grateful to Alyse Bertenthal, John W. Brooker, Meghan Brooks, Yelena Duterte, Elizabeth G. Kubala, Dana Montalto, Rebecca Morrow, Sidney A. Shapiro, and Ronald Wright for their thoughtful feedback. Many thanks to Emily Norris for excellent research assistance.

Manoj Viswanathan

Joseph W. Cotchett ‘64 Professor of Law and Co-Director, Center on Tax Law, University of California College of the Law, San Francisco (formerly UC Hastings).

I am grateful to Benjamin Alarie, Lisa Chen, Michael Doran, Heather Field, David Gamage, Angie Gius, Brant Hellwig, David Levine, Dave Owen, Gregg Polsky, Sam Rosloff, Doug Stevick, Holden Taaffe, Larry Zelenak, and participants in workshops at the University of Toronto, UC Law San Francisco, Duke University, and the University of Virginia for their helpful feedback on earlier drafts. Special thanks are owed to Francis Shih for his truly outstanding research assistance.

Katherine Steefel

Incoming Associate Professor of Law, University of Kansas School of Law (Fall 2026). 

I am grateful to Alan Chen, Kevin M. Clermont, Nancy Leong, Seth Packrone, Judge Roberto Ramírez, and the participants of the University of Denver Sturm College of Law 2025 Summer Scholarship Workshop for their helpful comments and feedback. This Article benefited from excellent research and citation support from Claire Johnson, Avery Landt, Aili Miyake, Lauren Rowell, and Jeremy Werner. Finally, I would like to thank the editors of the Cornell Law Review for their careful editing.

Christopher Lau

Clinical Associate Professor, Co-Director, Wisconsin Innocence Project, University of Wisconsin Law School. 2026 Scholarly Papers Competition Finalist.

For feedback and engagement, thank you to Valena Beety, Teneille Brown, Edward Cheng, Catherine Crump, Eve Hanan, Daniel Harawa, Randy Hertz, Alexis Hoag-Fordjour, Nathan Rouse, Maneka Sinha, Sonja Starr, and Lisa Washington. Thank you as well to workshop organizers and participants of CrimFest, Decarceration Law Professors Workshop, N.Y.U. Clinical Law Review Writers’ Workshop, Chicagoland Junior Scholars Conference, and Vanderbilt University’s Evidence Summer Workshop. For excellent research assistance, thank you to Ismail El-Hassan, Demetri Sweat, and Grace Woo.

Laura E. Dolbow.

Associate Professor of Law, University of Colorado Law School.

Thanks to David Abrams, Jonas Anderson, Tom Baker, Fred Bloom, Cary Coglianese, Jorge Contreras, Sarah Fox, Tim Holbrook, Mark Janis, Amy Kapczynski, Mark Lemley, Chris Morten, Kali Murray, Tejas Narechania, Dave Owen, Ben Sirolly, Mike Pappas, Eloise Pasachoff, Arti Rai, Blake Reid, Jason Reinecke, Rachel Sachs, Chris Serkin, Sean Seymore, Ganesh Sitaraman, Harry Surden, Polk Wagner, Melissa Wasserman, and Christopher Yoo and to participants in the ABA Administrative Law Spring 2024 Conference, the Penn Carey Law Ad Hoc Workshop, the Marquette Junior Scholars Works-in-Progress Workshop, the NPU Workshop, the Power in the Administrative State Workshop, the Rocky Mountain IP Workshop, the Colorado Law Works-in-Progress Workshop, and the 2025 Intellectual Property Scholars Law Conference for helpful comments and conversations. Thanks to Amanda Donoghue and Tori Hawekotte for excellent research assistance.

David S. Ardia

Reef C. Ivey II Excellence Fund Term Professor of Law, University of North Carolina School of Law, and Faculty Co-Director, UNC Center for Media Law and Policy. Thanks to Margaret Kwoka, Bill Marshall, Mary-Rose Papandrea, and participants at the UNC Faculty Scholarship Workshop for helpful comments and discussion. Thank you also to Amy Price, Blythe Riggan, Kloee Sander Placke, and Kalysta Strauss for their research assistance.

Griffin Edwards, Samuel Landes & Stephen Rushin

Griffin Edwards is a Professor at the Collat School of Business at the University of Alabama, Birmingham. Edwards holds a Ph.D. from Emory University. Samuel Landes is a partner at Flannery | Georgalis, LLC. Landes holds a J.D. from The Ohio State University. Stephen Rushin is the Judge Hubert Louis Will Professor of Law and the Associate Dean of Faculty Research and Development at Loyola University Chicago. Rushin holds a J.D. and Ph.D. from the University of California, Berkeley. Thanks to those who have provided comments on earlier versions of this Article, including Jeannine Bell, John Breen, Samuel Brunson, Ramsey Donnell, Cynthia Ho, Margaret Moses, Nadia Sawicki, Jonathan Sheffield, and Arti Walker-Peddakotla.

Daniel J. Capra & Liesa L. Richter

Philip Reed Professor of Law, Fordham Law School. Reporter to the Judicial Conference Advisory Committee on Evidence Rules. All views expressed in this Article are those of the authors individually and do not represent the official views of the Advisory Committee on Evidence Rules. Our sincere thanks to Jessica Goldman, J.D. Fordham Law School 2025, for her invaluable research assistance.

George Lynn Cross Research Professor, Floyd & Martha Norris Chair in Law, University of Oklahoma College of Law. Academic Consultant to the Judicial Conference Advisory Committee on Evidence Rules.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.