Category: Print Volume 106
The Inevitability and Desirability of the Corporate Discretion to Advance Stakeholder Interests
Einer Elhauge, Petrie Professor of Law, Harvard Law School
In The Illusory Promise of Stakeholder Governance, Lucian Bebchuk and Roberto Tallarita offer a vigorous defense of the view that corporate leaders should have a legal duty to maximize only shareholder value.11. Lucian A. Bebchuk & Roberto Tallarita, The Illusory Promise of Stakeholder Governance, 106 CORNELL L. REV. 91 (2020). They define “corporate leaders” as…
Feb 2022
Distributed Federalism: The Transformation of Younger
Anne Rachel Traum, Professor of Law, University of Nevada, Las Vegas
For decades federal courts have remained mostly off limits to civil rights cases challenging the constitutionality of state criminal proceedings. Younger abstention, which requires federal courts to abstain from suits challenging the constitutionality of pending state prosecutions, has blocked plaintiffs from bringing meritorious civil rights cases and insulated local officials and federal courts from having…
Feb 2022
Shareholderism Versus Stakeholderism–A Misconceived Contradiction
Colin Mayer, Peter Moores Professor of Management Studies, Saïd Business School, University of Oxford
This Essay critiques an assessment by Lucian Bebchuk and Roberto Tallarita of the relative merits of shareholder and stakeholder governance. In “The Illusory Promise of Stakeholder Governance,” Bebchuk and Tallarita argue that stakeholder governance is either nothing more than enlightened shareholder value, or it imposes unmanageable trade-offs on directors of companies. But trade-offs are ubiquitous…
Feb 2022
The Missing Civility in Civil Damages: A Proposed Guidelines Structure for Calculating Punitive Damages
Ashley Stamegna, J.D. Candidate, Cornell Law School, 2022; B.S., University of Connecticut, Health Care Management, 2019
“[P]unitive damages are out of control”11. W. Kip Viscusi, The Social Costs of Punitive Damages Against Corporations in Environmental and Safety Torts, 87 GEO. L.J. 285, 333 (1998).—or so tort reformers say. The past two decades have witnessed heated debates over a range of tort reform proposals, from punitive damages caps to complete punitive damages…
Feb 2022
On the Promise of Stakeholder Governance: A Response to Bebchuk and Tallarita
William Savitt, Partner, Wachtell, Lipton, Rosen & Katz
Aneil Kovvali, Harry A. Bigelow Teaching Fellow & Lecturer in Law, University of Chicago Law School
Professor Bebchuk and his coauthor Roberto Tallarita have launched a broadside against recent efforts of business leaders, scholars, and lawyers to promote a corporate governance model that permits directors to take into account interests other than stockholders—a governance regime that authorizes directors to manage their corporations having in mind the interests not of stockholders alone,…
Feb 2022
Cookies and Wires: Can Facebook Lure Users Into Divulging Information Under the Wiretap Act’s Party Exception?
Richard T. Wang, B.A., Washington University in St. Louis, 2017; J.D. Candidate, Cornell Law School, 2022
The advent of the Internet brought immeasurable benefits11. See Lisa Eadicicco, Obama Wants to Reclassify the Internet by Turning It Into a Utility, BUSINESS INSIDER (Nov. 10, 2014, 9:36 AM), https:// … Continue reading to society in various ways—providing convenient access to information,22. Kotagiri Ramamohanarao, Kapil Kumar Gupta, Tao Peng & Christopher Leckie, The Curse of…
Feb 2022
Renaming Deadly Force
Scott A. Harman-Heath, J.D. University of Virginia, B.A. McGill University
Three times a day in the United States, a police officer kills someone. On any given day, this person might be an active shooter, a hostage-taker, or a bomber. But on that same day police might also kill a motorist reaching for his license (Philando Castile), someone selling loose cigarettes (Eric Garner), someone who used…
Feb 2022
“Are We There Yet?” No.: The Numbers That Support Adopting Automatic Appeals in Juvenile Delinquency Proceedings
Thomas G. Shannan, Cornell Law School’s Frank H.T. Rhodes 2021–2023 Public Interest Fellow, Citizens Concerned for Children, Inc.; J.D., Cornell Law School, 2021; B.S., Vanderbilt University, 2017.
The United States juvenile justice system is grossly inadequate on a national level. For over a century, juvenile courts in various forms have been heralded as benign mechanisms that offer an alternative for “troubled youth” who commit acts that would constitute crimes if committed by adults.11. See, e.g., Youth in the Justice System: An Overview,…
Nov 2021
Bostock v. Clayton County: The Implications of a Binary Bias
A. Russell, J.D. Candidate 2022, Cornell Law School; B.A. in Theater, Film & Media Studies, and Gender & Sexuality Studies, Haverford College, 2014.
This Note focuses specifically on the implications of Bostock v. Clayton County for nonbinary people. Although part of the broader transgender community, nonbinary people do not directly enter into the Court’s analysis.11. Vin Gurrieri, Questions About ‘Nonbinary’ Bias Linger After LGBT Ruling, LAW 360 (June 19, 2020), https://www.law360.com/articles/1284955/questions-about-nonbinary-bias-linger-after-lgbt-ruling … Continue reading Indeed, the only mention of…
Nov 2021
The State Courts Don’t Have Time for Your Crackpot Antiquarianism: A Decade of Domestic Homicides Since Giles V. California
Caren Myers Morrison, Associate Professor of Law, Georgia State University College of Law
How Giles v. California would affect domestic violence cases was hotly debated within the case itself and in the literature that followed. This article presents the first comprehensive review of the 114 domestic homicide cases since Giles in which there was an intimate relationship between the victim and the accused,11. The vast majority of the…
Nov 2021
Elder Financial Abuse: Capacity Law and Economics
Ben Chen, Lecturer in Law (Assistant Professor equivalent), The University of Sydney
Elder financial abuse is an alarming problem in this era of aging population. Baby boomers are entering retirement with a higher life expectancy and more wealth than any generation before them. The combination of mental decline and substantial wealth renders many seniors vulnerable to overreach. In private suits alleging elder financial abuse, courts often apply…
Nov 2021
Legal Corpus Linguistics and the Half-Empirical Attitude
Anya Bernstein, Professor of Law, SUNY Buffalo Law School
Legal writers have recently turned to corpus linguistics to interpret legal texts. Corpus linguistics, a social-science methodology, provides a sophisticated way to analyze large data sets of language use. Legal proponents have touted it as giving empirical grounding to claims about ordinary language, which pervade legal interpretation. But legal corpus linguistics cannot deliver on that…
Nov 2021
Trending Towards Leniency: What Millenium Laboratories & In re Plavix Marketing Teach About the Future of the False Claims Act’s First-to-File Rule
Zachary Sizemore, Cornell Law School, J.D. 2021.
Part I of this Note will discuss the history and development of the FCA, including its original purpose and modern use, why Congress added the first-to-file rule, and how the provision traditionally operated to bar later-filed claims. Part II will discuss the First and Third Circuits’ case law and overall jurisprudence regarding the first-to-file rule. It will also illustrate the First and Third Circuits’ FCA jurisprudence as a whole by looking to how the First and Third Circuits decided certain other issues arising under or related to the FCA. Part III will then discuss the factors that led to the circuits’ decisions in Millenium Labs and In re Plavix Marketing. This includes a mix of both external factors—like the rulings of other circuits—and internal factors, like the First and Third Circuits’ jurisprudence: their continued leniency in cases involving the FCA and their case law signaling the eventual recharacterization of the rule as nonjurisdictional. Part IV will briefly extract some lessons that these decisions can teach about what to look for in determining how a circuit might interpret the rule going forward, and based on these, predict that the Ninth Circuit will soon join these circuits in holding that the rule is nonjurisdictional. The Note will ultimately conclude that the decisions were simply a product of the First and Third Circuits’ FCA case law and the fact that federal courts should be more lenient on plaintiffs bringing claims under the FCA.
Sep 2021
Finding Benevolent Neutrality in Land Use: RLUIPA’s Equal Terms Provision and the Human Flourishing Theory of Property
Hun Lee, B.A., Catholic University of Korea, 2016; J.D., Cornell Law School, 2021.
This Note will examine the circuit courts’ different approaches to interpreting the Equal Terms provision and suggest that the provision should be interpreted from the perspective of property law rather than the current judicial framework, which is inapt to resolve the inherent tension underlying RLUIPA and First Amendment jurisprudence. The Note will first identify this tension in Part I by surveying the history of RLUIPA in relation to the evolution of First Amendment jurisprudence. Part II will analyze the different approaches that circuit courts have taken to interpret RLUIPA’s Equal Terms provision, concluding that existing judicial approaches and the commentaries thereof call for an alternative approach informed by principles of property law. Part III will introduce a property theory based on the concept of human flourishing, arguing that the theory can provide an effective interpretive framework that may resolve issues regarding religious land use such as the interpretation of RLUIPA’s Equal Terms provision.
Sep 2021
Disentangling Religion and Public Reason: An Alternative to the Ministerial Exception
Sabine Tsuruda, Assistant Professor, Queen’s University Faculty of Law.
This Article develops a theory of meaningful work to support an alternative to the ministerial exception that would permit religious organizations to hire like-minded employees, but only when doing so would not subvert the purposes of employment discrimination law. Such an “authenticity exception” can be implemented without state entanglement in religion by distinguishing the inherently religious issue of what makes work religious from the public issue of whether a limitation on someone’s rights is supported by public reasons—reasons that we could all accept as free and equal members of society. It then illustrates the authenticity exception through a similar exception in Canadian law and revisits ministerial exception cases to show how the authenticity exception better closes the gap between religious liberty and exempted discrimination.
Sep 2021
The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review
Alexandra Harrington, Associate Professor of Law and Director, Criminal Justice Advocacy Clinic, University of Buffalo School of Law.
This Article suggests a way to bring the current reality of parole closer to the Court’s promise that parole can render life sentences constitutional. This Article considers how the Supreme Court’s decisions in Graham, Miller, and Montgomery work to constitutionalize parole and change the conventional understanding of the board’s determination. The Article also details the current standards of judicial review of parole board decisions. Because parole is now operating to make constitutional the sentences of people who were children at the time of the offense, the Eighth Amendment task placed on parole boards’ shoulders necessitates substantive standards for the parole board, as well as judicial scrutiny of the board’s determinations.
Sep 2021
Law as a Battlefield: The U.S., China, and the Global Escalation of Lawfare
Jill I. Goldenziel, Professor of International Law and International Relations, Marine Corps University Command and Staff College; Affiliated Scholar, Fox Leadership International, University of Pennsylvania
This Article argues that the U.S. needs to develop a lawfare strategy to combat its adversaries. It will first define the concept of lawfare and discuss how its use has evolved and escalated globally in recent years. It will illustrate this phenomenon by examining three different instances of lawfare between China and the U.S. or its allies: China’s non-uniformed maritime militias, international arbitration over China’s claims to the Spratly Islands, and litigation involving the U.S. and Huawei. After discussing the rise of lawfare globally, including lawfare efforts by Russia and the U.S., the Article concludes with recommendations for a U.S. lawfare strategy.
Sep 2021
Patenting Pot: The Hazy Uncertainty Surrounding Cannabis Patents
Andrew Kingsbury, Arizona State University, B.S., Health Sciences, 2018; Cornell Law School, J.D., 2021
This Note explains the problems that surround cannabis patents. Part I provides an overview of patent law and discusses cannabis’s regulatory history. Part II expands on the topics discussed in Part I and explains how the lack of prior art within the cannabis space promulgates uncertainty for cannabis inventors. Part III argues for stronger claim requirements in cannabis patents and advocates for greater flexibility when factfinders evaluate cannabis patents. Further, Part III suggests alternative approaches to claim construction for challenged cannabis patents.
Aug 2021
Are There Rights in Guantánamo Bay: The Great Writ Rings Hollow
Kayla Anderson, J.D. Candidate, Cornell Law School, 2021; Notes Editor, Cornell Law Review, Volume 106; B.A. Arizona State University, 2017
This Note argues that the district court should decide that the entirety of the Fifth Amendment applies to Guantánamo Bay detainees given previous jurisprudence, the nature of the War on Terror, and the protection of detainee rights. However, this Note also details that the possible ramifications of such a broad decision render it unlikely that…
Aug 2021
Protecting Pregnancy
Jennifer Bennett Shinall, Professor of Law, Vanderbilt Law School
Laws to assist pregnant women in the workplace are gaining legislative momentum, both at the state and federal levels. Last year alone, four such laws went into effect at the state level, and federal legislation advanced farther than ever before in the House of Representatives. Four types of legislative protections for pregnant workers currently exist—pregnancy…
Aug 2021
Employment Practices Liability Insurance and Ex Post Moral Hazard
Erin E. Meyers, J.D./Ph.D., Program in Law and Economics, Vanderbilt Law School
Joni Hersch, Cornelius Vanderbilt Professor of Law and Economics, Vanderbilt Law School
Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law’s goal of deterrence and from notions of justice. We assess the validity of these criticisms…
Aug 2021
Women on the Frontlines
Michele Goodwin, Chancellor’s Professor of Law & Founding Director, Center for Biotechnology & Global Health Policy at the University of California, Irvine
This Article takes aim at the troubling and persistent dis-empowerment and invisibility of women generally, and particularly marginalized women of color even one hundred years after the ratification of the Nineteenth Amendment. It observes how the persistence of sexism, toxically combined with racism, impedes full political, economic, and social personhood of women and girls in…
Aug 2021
Civil Liberties in a Pandemic: The Lessons of History
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law
Michele Goodwin, Chancellor’s Professor at the University of California, Irvine; founding director of the Center for Biotechnology and Global Health Policy
Throughout American history, whenever there has been a crisis the response has been a deprivation of rights. Today, the United States is in the midst of the worst health crisis in over a century. As of this writing, over 500,000 people have died.11. Johns Hopkins U. & Med. Coronavirus Resource Ctr., https://coronavirus.jhu.edu/ [https://perma.cc/XK5J-Y6KS] (last visited…
Aug 2021
Left at the Gate: How Gate Money Could Help Prisoners Reintegrate Upon Release
Ji Hyun Rhim, B.A., Waseda University, 2014; J.D., Cornell Law School, 2020
Ji Hyun Rhim, B.A., Waseda University, 2014; J.D., Cornell Law School, 2020
“The First Step Act . . . addresses reform of the incarceration experience as well as the reentry process. . . . What the main components of this legislation, along with different conversations about ways to reduce recidivism, oftentimes overlooks is the immediate needs of the individual upon release. This Note contends that ‘release’ is a distinct phase between incarceration and reentry and that reentry can only be successful if the individual is truly released. Moreover, this Note argues that current gate money policies fall woefully short of its original purpose. This Note concludes by calling for a revamping of gate money policies as an effective method of reintegrating recently released individuals and reducing recidivism.”
Mar 2021
“The Intent to Influence”: Jury Tampering Statutes and the First Amendment
Miranda Herzog, B.A., University of Southern California, 2016; J.D., Cornell Law School, 2020; Executive Editor, Cornell Law Review, Volume 105
Part I of this Note discusses and categorizes various approaches to the criminalization of jury tampering and identifies a subset of jury tampering statutes whose essential requirement is simply communication with the intent to influence a juror. Part II details several recent First Amendment challenges to these statutes, all involving defendants who engaged in some degree of public participation through their communications with jurors. Part III illustrates how the broad formulation of communication-plus-intent jury tampering statutes implicates First Amendment concerns and suggests that these statutes must be narrowed to exclude public participation in order to pass constitutional muster.
Mar 2021
The City’s Second Amendment
Dave Fagundes, Baker Botts LLP Professor of Law, University of Houston Law Center
Darrell A. H. Miller, Melvin G. Shimm Professor of Law, Duke University School of Law
This Article addresses the question of the extent to which cities themselves have a right to bear arms. In addition to advancing the novel claim that cities themselves may assert rights to keep and bear arms, the Article also adds to the growing literature on municipal constitutional rights and the institutional framing of the Second Amendment in a post-Heller world.
Mar 2021
A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism
Neil H. Buchanan, Professor of Law and James J. Freeland Eminent Scholar Chair in Taxation, Fredric G. Levin College of Law, The University of Florida
Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School
This Article argues that we have witnessed substantially less direct conflict between L&E and O&T than one would expect because, despite their different foundations, the two approaches closely resemble each other in a way that permits conservative jurists to make all-things-considered and ideologically laden value choices and then use L&E, O&T, or both to offer post hoc rationalizations for those choices.
Mar 2021
Litigation Science After the Knowledge Crisis
Edith Beerdsen, Acting Assistant Professor of Lawyering, New York University School of Law
This Article is the first to address the broad implications of the Replication Crisis for the production of scientific knowledge in a civil-litigation context. Drawing on insights from the Crisis, it argues that current procedural practice is simply incapable of providing a court with the information it needs to make an accurate assessment of the reliability of scientific evidence. The Article identifies a number of core principles, drawn from the response of academic science to the Replication Crisis, that can guide reforms to the treatment of scientific evidence in civil litigation. It argues that shoring up the courts’ capacity to evaluate scientific evidence requires a rethinking of the entire chain of creation of scientific knowledge and a re-framing of the role of the court in that chain.
Mar 2021
Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions
Lauren Devendorf, B.A., Duke University, 2015; J.D., Cornell Law School, 2020; Publishing Editor, Cornell Law Review, Vol. 105.
This Note seeks to critique the conflicting approaches that the Third, Sixth, and Ninth Circuits have taken when analyzing what Second Amendment rights, if any, individuals are entitled to after a mental institution involuntarily commits them. Additionally, this Note offers a novel solution. To do so, it explores “not the what, where, when, or why of the Second Amendment’s limitations—but the who.” Tyler v. Hillsdale Cty. Sheriff’s Dep’t (Tyler I), 775 F.3d 308, 322 (6th Cir. 2014), vacated, 837 F.3d 678 (2016).
Jan 2021
Compelling Code: A First Amendment Argument Against Requiring Political Neutrality in Online Content Moderation
Lily A. Coad, B.A., Duke University, 2018; J.D., Cornell Law School, 2021; Publishing Editor, Cornell Law Review, Vol. 106
In 2019, Senator Josh Hawley (R-Mo.) introduced a bill that exemplifies conservatives’ criticisms of big tech and Section 230. The Ending Support for Internet Censorship Act seeks to eradicate the alleged “anti‑conservative bias” on social media platforms by requiring large tech companies to maintain politically neutral content moderation algorithms and practices. This Note argues that requiring tech companies to maintain politically neutral content moderation algorithms is a form of compelled speech and is therefore presumptively unconstitutional under the First Amendment. Further, it argues that Senator Hawley’s bill cannot survive the applicable standard of strict scrutiny because eliminating alleged political bias by social media companies is not a compelling government interest, and, even if it were, the bill is not narrowly tailored to serving that interest.
Jan 2021